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r 




HARVARD LAW SCHOOL 
LIBRARY 




( 



I 



^ REPORTS OF CASES 



SUPEEME OOUET 



NEBRASKA. 



JANUARY AND SEPTEMBER TERMS, 1890. 



VOLUME XXX. 



D. A. CAMPBELL, 

OFFICIAL B^PORTEB. 



LINCOLN, NEB.: 

STATE JOUBNAL CO., LAW PUBLISHEB8. 
1891. 



Entered according to act of Ck)ugreBB in the office of the Librarian of Congress^ 

A. D. 1891, 

By D. a. CAMPBELL, Reporter of the Sdprexe Court. 
In behalf of the people of Nebraska. 



.5g-tc,>— ^/y /^f-2> 



th;e supreme court 



OF 



NEBRASKA. 
1891. 



CHIEF JUSTICE, 

AMA8A COBB. 

JUDGES, 

SAMUEL MAXWELL, 
T. L. NORVAL. 



OFnOERS. 

ATTORNEY GENERAL, 

GEORGE H. HASTINGS. 

CLERK AND REPORTER, 

D. A. CAMPBELL. 

DEPUTY CLERK, 

W. B. ROSE. 



DISTRICT COURTS OF NEBRASKA. 



JUDGES. 

FIRST DISTRICT. 

Jeffebson H. Bboady Beatrice. 

Thomas Appeloet Tecamseh. 

SECOND DISTRICT. 
Samuel M. Chapman ..Plattsmoaih. 

THIRD DISTRICT. 

Allen W. Field i Linoolo. 

A. S. TiBBETS Lincoln. 

ChablesL. Hall Lincoln. 

FOURTH DISTRICT. 

Elbazeb Wakblet Omaha. 

Geobge W. Doane Omaha. 

Melville R. Hopewell Tekamah. 

Hebbebt J. Davis Omaha. 

Leb S. Estellb Omaha. 

A. N. Febouson Omaha. 

Fbank Ibvinb Omaha. 

FIFTH DISTRICT. 

Edwabd Bates York. 

Matt Milleb David City. 

SIXTH DISTRICT. 

A. M. Post : Colambos. 

William Mabshall Fremont. 

SEVENTH DISTRICT. 
William H. Mobbis Crete. 

EIGHTH DISTRICT. 
W. F. NOBBIS Ponca. 

NINTH DISTRICT. 
Isaac Powebs, Jb Norfolk. 

TENTH DISTRICT. 
William Gaslin, Jb Alma. 

ELEVENTH DISTRICT. 

T. O. C. Habbison Grand lalandL 

E. M. Coffin Ord. 

TWELFTH DISTRICT. 
Fbancis G. Hambb. Kearney. 

THIRTEENTH DISTRICT. 
Jambs E. Cochban McCook. 

FIFTEENTH DISTRICT. 

Moses P. Einkaid O'Neill. 

Albebt W. Cbites Chadron. 

(iv) 



STENOGRAPHIC REPORTERS, 

FIRST DISTRICT. 

C. H. HoLMEB Beatrice. 

R. H. Pollock Pawnee City. 

SECOND DISTRICT. 
W. H. Wheslsb Lincoln. 

THIRD DISTRICT. 

O. A. MT7LL0N Lincoln. 

Bbbt £. Bbtts Lincoln. 

F. E. Bell « Lincoln. 

FOURTH DISTRICT. 

B. C. Wakelby A Omaha. 

C. C. Valentine Omaha. 

A.M. Hopkins ^ Omaha. 

Chables a. Potteb Omaha. 

H. M. Waring Omaha. 

Thomas P. Wilson Omaha 

William S. Heller Omaha. 

FIFTH DISTRICT. 

T. E. Hamilton York. 

W. S. Becker David City. 

SIXTH DISTRICT. 
Frank J. North Colamhns. 

E. R. MoCKETT Fremont. 

SEVENTH DISTRICT. 
Nora Block • Harvaid. 

EIGHTH DISTRICT. 
George CouPL AND Neligh. 

NINTH DISTRICT. 
Eugene Moore West Point. 

TENTH DISTRICT. 

F. M. Hallowell Kearney. 

ELEVENTH DISTRICT. 

C. W. Pearsall Grand Island. 

E. B. Henderson Albion. 

TWELFTH DISTRICT. 
J. W. Brewster Hastings. 

THIRTEENTH DISTRICT. 
E. A. Cary North Platte. 

FOURTEENTH DISTRICT. 
A. D. GiBBS McCook. 

FIFTEENTH DISTRICT. 

A. L. Warrick .• O'Neill. 

H. L. Laird Chadron. 



(y) 



PRACTICING ATTORNEYS. 



Admittbd Since the Publication op Volume XXIZ. 



Abthub £. Baldwik. 

M. M. House. 

Edwin M. Lamb. 

Wm. D. McHuqh. 

Jambs L. MoIntosh. 

W. A. Miles. 

Geoboe Abthub Mubphv. 



R. C. NOLEMAN. 

W. A. Prince. 

'Nellie M. Richabdson. 

CoBYDON Rood. 

W. G. SiMONSON. 

Alonzo p. Tabbox. 
Zaba a. Wilson. 



(vi) 



RULE OF COURT. 



Adopted Since the Publication op Volume XXIX. 



28. [Chief Justice May Make Orders Under 
Banking Law.] — Whereas, Questions arise under the 
linking law of the state which demand prompt attention 
in order to protect important business interests and valua- 
ble property, and which require the appointment of re- 
ceivers and other officers, and 

Whereas, Such questions are liable to arise at a time 
when the court is not in session, 

Therefore, The chief justice is hereby authorized and 
empowered to pass on all questions presented to him 
which arise under said banking law, and make all orders 
which are by him deemed necessary during the time when 
this court is not in session. 



(vii) 



The syllabus in each case was prepared by the judge 
writing the opinion, in accordance with rule 20. 



A table of statutes and constitutional provisions cited, 
construed, etc., numerically arranged, will be found on 
I)ages xliii-xlv. 



(viii) 



OLIVER PERRY MASON. 

Oliver Psrby Mason, chief jastioe of the anpreme court from 
1666 to 1873, died Aagnst 18, A. D. 1891. 

At the session of the sapreme coart, October 6, 1891, the following 
proceedings, touching his decease, took place: 

Mr. Attorney General Hastings: 

May it please Your Honors: Your committee to whom was 
allotted the duty of presenting resolutions of respect to the memory 
of Hon. Oliver P. Mason, late deceased, beg leave to submit the 
following: 

BeMhed^ That the bar of the state and the supreme court of Ne- 
braska unite in the expression of profound regret on account of the 
death of our brother, Hon. Oliver P. Mason; his long and useful 
services as a lawyer, a legislator, and a judge, his great powers, his 
honest record in public and private life, his loyalty of friendship and 
nobility of character, make his name and fame the heritage of our 
state, and have endenred him to the people. We feel that the bar of this 
state has been honored and exalted by his life and example from 
the earliest territorial days of our commonwealth to the present time. 
We know that, as a public man and jurist. Judge Mason has as much 
to do with, and exercised as great an influence in, the formation of 
oar civil government as a state, and in the organization and perma- 
nent establishment of our courts and judiciary on a high footing 
eqaal with that of any state of our American Union, as any public 
man of Nebraska. 

Resolvedf That in his life we recognize in the deceased a jurist pos- 
sessed of a scope and power of legal acumen and analysis equal to, 
if not greater than, that possessed by any member of the bar of Ne- 
braska. 

He was a man of great force of character, great kindness of heart, 
and of great integrity. 

As a judge npoji the district and supreme bench of this state, his 
power waa so mar!:ed and his individuality so great, that his every 

(ix) 



X IN MEMORIAM— 

decision and opinion was stamped thereby, regardless of research and 
argument before bim. He knew the law, and his analysis and expo- 
sition of it adorned his opinion, clothing the law in its pnrity, nnob- 
scured by those personal and special influences which always surround 
the subject in controversy. 

His was a rugged and picturesque character in the pioneer days of 
Nebraska, and in latter years left the strong imprint of his individ- 
uality on the legal and judicial history of the state. 

As a lawyer he was painstaking and conscientious, true to his 
clients; he believed that they were entitled to the full exertion of all 
his abilities. He rested only when the end was reached. During the 
contest he neither sent nor received a flag of truce. 

He thought for himself and spoke what he thought. He was loyal 
to his own convictions. He never, in the hope of selfish gain, agreed 
with the mistakes of majorities, but, regardless of consequences, 
pointed out and attacked their follies and prejudices. 

He was an open, honorable, manly foe, a loyal, true friend. He 
wore no mask. He knew his friends — his enemies knew him. 

He was the same at all times, in all places — the soul of honor. His 
integrity was never doubted. He was above corruption and suspi- 
cion. He neither bought nor sold. He has left his family a legacy 
grander than wealth — a good name, an untarnished reputation. 

Besolved^ That we condole with his family in their great loss, and 
that from an earnest desire to show every mark of respect due to the 
memory of a distinguished man and citizen, manifesting the high es- 
teem he was held in by all classes of our citizens, we will report 
these resolutions to this honorable court, now in session, and suggest 
that they be spread at length upon the records of the court. 

Gbo. H. HASTiKoa 
M. B. Reese. 
Geo. B. Lake. 
T. M. Marquett. 
M. L. Hayward. 

J. M. WOOLWOBTH. 

E. Wakblby. 
S. M. Chapman. 
E. W! Thomas. 

In presenting these resolutions on behalf of the committee, I pause 
bat to add, that the life and the labors of the distinguished lawyer 
and judge, whose death we all deplore, has become so closely blended 
with the history of this state, that to write the one of a necessity 
writes the biography of the other. His strong, sanguine, and potent 
touch has left its lasting impression on the court, the bar, and upon 
the trend of the constitution and legislative enactments since our 



OLIVER P. MASON. xi 

history as a territory and state began. No lofty broDze or marbl« 
shaft shall be his monament, do carved line upon the cold and paLse- 
less stone, no sentiment we write, no words we speak shall be his 
epitaph. He has reared for himself a monument more lasting than 
bras4 or granite, by his life and by his work in the midst of the peo- 
ple. His epitaph is found upon each page of our history, fashioned 
by his own vigorous hand, guided by the magnificent capabili ties of 
his genius and intellect. Let his life and his death admonish us 
each to 

"So live that when thy summons comes to Join 
The innumerable caravan that moves 
To the pale realms of shade, where each shall take 
His chamber in the silent halls of death, 
Thou go not, like the qnarry slave at night. 
Scourged to his dungeon, but, sustained and sooihed 
By an unfaltering trust, approach thy grave 
Like one who wraps the drapery of his couch 
About him. and lies down to pleasant dreams." 

Hon. Charles O. Whkdon: 

May it please the Court: It is a befitting custom, peculiar to 
the members of the bar, that when, as to a member of the profession 
who has enjoyed the confidence and esteem of his fellows, final judg- 
ment that he go hence without day has been pronounced and exe- 
cuted, his brothers assemble to testify to his worth. It is a privilege 
enjoyed by the members of no other profession that we are permitted 
to enter these our testimonials as enduring monuments upon the pub- 
lic records of a court. It is proper that the ordinary proceedings of 
this tribunal, over which the late Oliver P. Mason presided as chief 
justice, should be interrupted while we pay to his memory the merit 
of well-deserved praise. 

I count it as ore of the fortunate incidents of my life that in my 
early professional career I enjoyed the privilege of forming a partner- 
ship with Judge Mason, which continued from October, 1874, aatil 
the close of his active professional life. During these years I was as- 
sociated with him upon terms of closest intimacy, and I came to know 
him so well, that I can speak vnth the assurance of accurate knowl- 
edge of those qualities in his character that now claim from his asso- 
ciates at the bar and from this court those tokens of respect and 
honor we here and now offer to his memory. His was no common 



xii IN MEMORIAM— 

character. Nature, with a lavish hand, bestowed upon him the gifta 
of originality, intellectual power, and genins. Looking more fre- 
quently within than without for light, he was apt to rely more upon 
the inspiration of his own understanding and couTictions than upon 
the teachings of others, and he was more given to making precedents 
than to seeking after them. He was a man of marked personality; 
strong in his likes and dislikes; he was ever a steadfast friend, an un- 
compromising enemy. The principle of treating his enemy as though 
he might one day become his friend, had • no place in his creed, and 
he was ever ready to strike his opponents with the shafts of ridicule 
and sarcasm, weapons he always carried, and to the use of which he 
was not unaccustomed. He was honest in his convictions, both as to 
principles and men. An earnest and able advocate, in the trial of a 
cause he knew but one person in the whole world, and that ];>er8on was 
his client. Before courts his arguments upon the law were concise, 
logical, and convincing, and the power he possessed of swaying juries 
and popular assemblies was surpassed by few. The dissenting opin- 
ion delivered by him in this court in Tennant's case stands as a mon- 
ument to his keen perception of the powers and privileges of the sev- 
eral departments of the state government, his analytical powers of 
reasoning, and his vigorous use of language. He spoke and acted 
from the Impulses of a warm and generous heart, and policy, in the 
common acceptation of the term, was an unknown art. He was a 
commoner and his sympathies were ever with the unfortunate. As 
tending to show his views of the duties of the state towards the poor, 
the debtor class of citizens, I here quote at length the report which 
he, as chairman of the judiciary committee of the house in the then 
territory of Nebraska, made to that body October 6, 1858, thirty-three 
years ago to-day. He said: 

'' The undersigned, to whom were referred various homestead ex- 
emption bills, have carefully examined and considered the same, and 
would respectfully report the accompanying substitute for the con- 
sideration of the house, and recommend its passage. 

''Your committee would further state that in addition to the ordi- 
nary reasons and arguments in favor of the wisdom of legislative 
action protecting the homesteads of families from forced sale and exe- 
cution, the peculiar situation of the people of this territory and their 
present circumstanoes.nrge this policy upon us with a force which we 
cannot resist, animated as we are by a desire to subserve the public 
good. But one year ago everything around us rejoiced in the sunlight 



OLIVER P. MASON. xiii 

of prosperity and success. Enterprise was condDcting onr people 
through a thousand avenaes, illuminated with the hrilliant torchlight 
of hope, to individnal and national wealth. 

"The conquest of the wilderness went on fike the work of magic; 
civilization was fast rearing her altars on the camp ground of the sav- 
iage, and on every hand abounded the certain indications of thiiifl and 
contentment; but suddenly a cloud came upon the prospects of our 
people, and the gloom of midnight succeeded the brightness of noon- 
day. A financial revolution, without parallel in the history of our 
country, has entirely' deranged the affairs of our people, and the ruin 
of thousands of our citissens is inevitable unless they are upheld and 
sustained by the helping hand of legislation. 

" The home of the settler, the scene and the result of his hardship 
and toil, must go to swell the fortune of the merciless speculator, and 
heartless and foreign money lender, unless the law, armed with jus- 
tice, shall say to the avaricious and grasping creditor, ** thus far shalt 
thou go and no farther." And unless this is done, I fear a spiritless 
inaction will succeed and take the place of that tireless energy and 
persevering industry which has hitherto characterized onr young and 
vigorous population. 

" Our people are not responsible for this state of things; no human 
sagacity could have averted the evil. It came upon us like an ava- 
lanche, and has swept away the prospect which encouraged our indi- 
vidual efforts, and abated the ardor of enterprise which guaranteed 
success. 

** Tour committee is clearly of the opinion that a liberal homestead 
law is more loudly called for by the wants of onr people than any 
one other act of legislation. The passage of such a law would not 
only relieve our citizens from their present embarrassment, but would 
encourage immigration, offering, as it would, an inducement for set- 
tlement amongst us of that class who have felt the hand of adversity 
most severely in other parts of the country. Many a man of enter- 
prise and possessed of good business qualifications would thus be in- 
duced to gather up the remnants of a broken fortune, and purchase a 
homestead among us, and here, upon our broad prairies and from our 
generous soil, would, in the enjoyment of his home, by the fostering 
care of legislation, rear a home which would be an ornament to our 
country and a proud heritage for his children. 

''Another great benefit, universal in its application, which would 
result from the passage of a liberal homestead law, would be the blow 
that would be given to the credit system, that most dangerous of all 
systems, which destroys alike all who trust to the plaudits of its 
admirers. 

**For these and other reasons equally and still more weighty, your 
committee would most respectfully u.ge the early pp^ge of a liberal 
homestead exemption law." 



xiv IN MEMORIAM— 

It is not my purpose to review the pablic career of Judge Mason. 
To do so is to review the history of Nebraska as a territory and state. 
Suffice it to say that he* was a member of the territorial legislature of 
the fifth, ninth, tenth, and eleventh sessions; president of the council 
when the constitution of 1866 was formed, a member of the constitu- 
tional convention of 1871, judge of the district court of the First dis- 
trict, and chief justice of this court from 1866 to 1873, and be also filled 
other public positions of lesser importance. That man has not lived 
in vain whet has assisted in laying the foundation of a great state, in 
enacting and administering its laws, in forming its constitution, and 
by his counsels and labors aided in shaping its policy, and who, after 
performing every duty faithfully, has left a noble example and un- 
sullied name. 

For our deceased brother, death had no terrors. He regarded it as 
the natural, the inevitable consequences of life, to be feared neither 
too much nor too little, and when to him the inevitable period came, 
he met it with the fearlessness of a philosopher, leaving his future 
existence, in which he was a firm and undoubting believer, to that 
creative power which rules the universe. We laid his body in the 
cemetery near the scene of his earliest struggles and achievements, 
where he made his home when the savage and buffalo wandered at 
will over the site of this capital city. There, beside her, the compan- 
ion of his earliest years, whose loss he never ceased to mourn, he 
sleeps. He will pass from the memory of men as those of his day 
and generation meet the common doom of humanity, but no true his- 
tory of Nebraska will ever be written which will not contain a record 
of the public acts and services of Oliver P. Mason. 

Hon. G. M. Lambebtson: 

It is my privilege to add a few words to what has been already so 
fittingly said, before death's curtain falls forever between us and the fa- 
miliar form of Judge Mason. In the near past death has been busy 
in our midst, but when it laid low our friend, it reaped one of its rich- 
est harvests. He fought death with rare courage and hope, but at 
last the weary struggle is over. '^ God's finger touched him and he 
slepf Those who knew him best will be his truest mourners. His 
dear friends were his near friends, and they were drawn very close to 
him. 

Others have spoken of Judge Mason as a man, of his kindness of 



OLIVER P. MASON. xv 

heart. Certainly ander hiS} at times, gruff exterior there 'was a heart 
as teuder as a child's. He delighted in his home life, and the lovely 
family that he reared reciprocated to the fnllest extent the nnstinted 
and bonndless affection that he lavished upon them. His reference 
to the days long gone, when the fires of domestic happiness hnrned 
hrightly, his tribute of affection to the dear companion v?ho precedeil 
him to the realma beyond, melted all hearts. 

Able as Judge Mason was generally, it eeems to me that hia great 
powers were never so splendidly exhibited as when he appeared as the 
tribune of the people or the advocate at the bar. Here his great 
powers were shown in their ripest perfection. He was the strongest 
personality and the most unique fignre at the Nebraska bar. Hia 
individnality stamped everything it touched. Of massive propor- 
tions, of dignified^ even ponderous mien, he at times swept eveiything 
before him in the forensic arena by his physical momentum. When 
with a voice of thnnder " gathering his brows like a gathering storm/' 
with tremendous physical action, the very incarnation of force itself, 
he swept down npon an opponent, an error, heresy, or fraud, there was . 
as little chance of staying the onset as of stopping an avalanche by 
brandishing a pin in its pathway. 

He had all the qualities of a great advocate — form, voice, rhetoric, 
humor, pathos, argnmentative power, and that rare common sense 
that strikes the level of the common juror and wins the verdict when 
aU else fails. 

Judge Mason's originality was snch that his sayings have been 
household words among the bar for a quarter of a century. He had 
a soaring imagination, but if the wings of his fancy carried him to 
the heavens, his feet were always on the solid ground. However fer^ 
vid might be his rhetoric, yet he was always rooted in the facts of the 
case. His tread was massive, his steps elephantine and path-finding. 
We shall not soon look npon his like again. Now that the ripening, 
bending heads, ready for the harvest are being so rapidly gleaned by 
the sickle of death, the warning again comes to ns: 

" 'Tls the wink of an eye, a draught of the breath, 
From the bloflooms of health to the palenetf of death." 

Hon. W. S. Suichebs, Deputy Attorney General: 

It is my privilege to speak a lew words to the resolutions of respect, 
I speak in behalf of the younger members of the bar. 



xvi IN MEMORIAM— 

Id the history of mankind no one ever rose to prominence among 
his fellows withoat incarring the severe criticism and condemnation 
of the masses. However high the tide of civilization rolls, prejudice 
and jealousy always render unjust, to a greater or less degree, the 
judgment of the world. How often has the pathway of society been 
so obscured beneath the worthless fragments of an age that weary 
minds had to seek in vain for the hidden light. 

At the present time there rises before us an individual who, early 
in life, passed proudly above the confusion of the day, fixed his gase 
upon the great immortals and sought guidance fh>m their shining 
lights. Humanity reveals itself in fragments. While one intellect 
towers pre-eminently above others and thus becomes the exponent of 
one kind of greatness, another, delving in an opposite realm of thought, 
may rise and shine like a star of the first magnitude in the firmament 
of creative minds. We appreciate the tireless efforte of each, and be- 
stow the laurel crown on both. 

Therefore, in virtue of a character such as has not been surpassed in 
this great commonwealth, Oliyeb P. Mason, the eminent jurist, 
the eccentric citizen, deserves the epithet — ^great 

I am surrounded by men of my chosen profession. Many of you 
are older in years and larger in experience than am I. You have 
practiced at the bar before and with the subject of these resolutions. 
You know him as a lawyer. It has been my privilege to study him 
only as a citizen of a great, prosperous stete. I express to you my 
idea of his ability and capability. When the shams of centuries are 
Settling down like a dark pall upon the people, he comes forth and 
stands amidst the fury of contending factions. He scorns vaiif dream- 
ers of idle tales and spinners of specnlative cobwebs. He rebukes 
the teachers of unfeeling pride. He defends truth. To him falls the 
gigantic task, not of obeying, but of educating a people. Not sus- 
tained by the fire of passion, not inspired by a love for glory, he lifts 
a people by the force of his intellect, by the power of his logic, up 
into the atmosphere of his own mighty spirit, and infuses into their 
minds the fire of his own genius. He stamps indelibly upon the 
ideas and tendencies of a state the impress of his own individnality. 
To mankind he is an external conscience, whose judgment is at once 
courted and feared. His peculiar characteristic is his tremendous 
grasp on reality. We see his power in his fierce onslaught on social 
conventionalties; in the vivid lightning flashes with which he lights 



OLIVER P. MASON. xvii 

up moments of history and makes the historic past as hrilliant as the 
living present. He is intensely practical and thoroughly original. 
He is earnest, severe, and critical. He is impassioned, devoted, and 
heroic. His judgment is good. His intuition is a marvel. Man 
studies his fellows through eye-glasses stained hy our own peculiar 
moods. Two men study his mental traits. What is the result? To 
the one he is pre-eminently liberal; to the other he is emphatically 
conservative. To the one he is profound, philosophic, and analytic; 
to the other he is acute, sagacious, and theoretic. To the one he is 
ardent, energetic, and sanguine; to the other he is cold, apathetic, 
and cynleal. To the one he is a consummate master of details; to 
the other he abhors them. To the one he undertakes to demonstrate; 
to the other he attempts to conciliate. To the one he has no ele- 
ment of cunning duplicity; to the other he plans to subject every- 
thing to the beck and nod of his own caprice. To the one he is 
governed by principle; to the other he acts from policy. To the one 
he is a philanthropist; to the other he is misanthropic. The one says 
his actions spring from conscience; his method of procedure is the 
forcible presentation of fricts; his aim to prove himself, beyond all 
question, in the right. The other says he relies on precedent, and that 
his weapon is that stinging sarcasm which he vnelds with such terri- 
ble effect. In that acuteness which comprehends at a glance, in that 
shrewdness of planning and dexterity of execution, he has few su- 
periors. He towers like a bold and defiant cliff, rough and rugged in 
its greatness. Endowed with the power to pierce the secret springs 
of human nature and the faculty of sublimely unveiling his Titanic 
thoughts, he stands himself the embodiment of a mighty idea. He 
is a psychological contradiction. He might have been a philosophi- 
cal monarch. But death touched his tired heart. He left behind 
him many bright gems and tangible realities on the great strand of 
human thought. Let us hope that the angel of genius will descend, 
and, hovering around the tomb of this eccentric citiseen, will drop his 
* laurel crown, and with tears for his misfortunes, with charity for his 
mistakes, with reverence for his migestic intellect, may it wave a 
radiant scepter for his glory, and, ascending, bear that glory to a fairer 
clime. 

Mb. Chief Justice Ck>BB arose and said : 
In what has been said by the attorney general, by the gentlemen 



xviii IN MEMORIAM— 

At the bar, and in the resolntions reported io honor of the memory of 
the late Judge Mason, the court most sincerely concors. 

A natural sorrow exists in this coart and among the legal profession 
of the state, on account of his unexpected death. His close connec- 
tion with the constitution and laws and the administration of justice, 
during the earliest and most eventful history of the state, was so in- 
timate, so useful to the public, and so honorable to the state and to 
himself, that its severance forever occasions a mournful pause, and is 
fait as a calamity. To maintain this high position in public estima- 
tion was the great aim of his life, the cherished aspiration of a mind 
and faculties well composed and fitted for every intellectual strife. 
He was the first presiding officer of this court. 
The Chief Justice, Gantt, though his junior in judicial service, had 
preceded him to the bar of that court, that last tribunal of impar- 
tial justice which we, for yet a little while, can comprehend only 
through the vision of faith. 

I concur in all that has been so excellently well said here of Judge 
Mason's learning and skill as a lawyer, his discernment and impar- 
tiality as a chancellor, and his equal eloquence as an advocate. 

When he resumed the practice of law here he was not excelled by 
any counsel in the number and variety of important causes in which 
he has appeared. 

His capability was reinforced from all the sources and branches of 
the law. He argued as to the proper functions of government, as to 
the strict intention of the constitution, the purview of codes of pro- 
cedure, the construction of statutes, the rights of corporations, and 
the doctrines of the unwritten law, with equal fullness and learning 
and fairness of judgment. And in all these he seemed to equal the 
astuteness of those who had made each a special study; and each 
branch, as he argued it, seemed to be that which he had most per- 
fectly mastered. 

While my acquainticeship with Judge Mason was almost exclu- 
sively limited to the contentions of this hall, and to the time of my 
service here, that acquaintance grew from respect into high esteem 
and admiration for one who so nearly filled the measure of a perfect 
lawyer — **that honorable gentleman who speaks to every cause.'' 

During a professional experience in two states, Wisconsin and this 
state, I have had the opportunity to observe the acquirements of 
many eminent lawyers; and when I bring to reflection their gifts as 



OLIVER P. MASON. xix 

professional leaders and advocates at the bar, it seems to me that the 
intellectual forms of Ryak and Mason rise np as two of the most 
Gonspicnoos and exalted of the many. . 

Bnt Mason has gone; gone in the very vigor of mental capacity, 
leaving the sweet savor of an endearect name. His contentions are 
past. But are we not privileged of the reflection that there is an ex- 
cellence of public character over which death has no power and the 
grave no victory, but which still lives on to refresh the memory with 
its halo during the lapse of years? 

Resuming his seat the Chief Justiob said:^ 

The resolutions reported by the committee, the remarks of the 
members of the bar, and the reply of the court thereto, will be en- 
tered upon the journal acid published in the appropriate volume of 
Reports, and as a IVirther mark of respect to the deceased, the court 
will now a4Jonm. . 



TABLE OF CASES REPORTED. 



A. 

PAGK 

AiDsfield y. More 385 

Deeds. Corbection. Limitations. 

Alexander v. City of Plattsmoath 117 

Eminent Domain. Tax Liens. Limitations. 

Alexander v. Thacker 614 

Tax Liens. Pleading. 

Alexander v. Wilcox 793 

Adyebse Possession. Tax Deeds. 

ArmatroDg, State, ex rel. Pennell, y 493 

Aehby y. GreeDslaie 253 

Replevin. 

B. 

Bailey y. State.. 855 

Appeal. Liquobs. Village Ordinances. 

Ball, Millsap y.. 728 

Bank, Deaeiet Natl., y. NackoUs 754 

Bank, First Natl., Bine Hill, y. Tamer 80 

Bank, First Natl., Fairfield, Hall v 99 

Bank, First Natl., Madison, y. Carson 104 

Bank, Marathon Connty, y. Jones 798 

Bank, South Omaha Natl., y. Chase 444 

Bank, State, Boot y 772 

Banks y. Omaha Barb Wire Co 128 

Assignments for Creditors. 

Bealer, Myers y 280 

Beatrice Sewer Pipe Co. y. Erwin H6 

Continuance. Absence or Witness. 

Benton, Getchell y.. 870 

Bierbowery. MiUer 161 

Removal of Causes. 

Black y.C, B. &Q. RCo 197 

'Carriers. Live Stock. Act of God. 
("i) 



xxii TABLE OF CASES REPORTED. 

PAGX 

Bohn Mfg. Co. v. Eoantze 719 

LIEK& Priority. 

Bradford, EdUngv 593 

Bradford v. Peterson 96 

Mechanics' Liens. Wife's Property. 

Bristol, Mizer v 138 

Broderick, U. P. R. CJo. ▼ 735 

Brown v. Rice 236 

Appearance. Final Order. 

Brown, Weston v 609 

Brown v. Work .*. 800 

Unauthorized Preference of Creditors. 

Bmgman v. Bnrr 406 

Landlord and Tenant. Counter-claim. 

Bnrke, Obeme v 581 

Borr, Bragman v , 406 

Bnrr v. Lamaster 688 

Party Walls. Covenants Against Incumbrances. 

c. 

Calland v. Nichols 532 

Agistment. Negligence. 

Cannon v. Wilbur '. 777 

Landlord and Tenant. 

Carson, First Natl. Bank, Madison, y 104 

Carson, Stevens v 544 

CassConnty, Todd v 823 

Champion Machine Co. y. Gorder 89 

Chase, Sonth Omaha Natl. Bankv 444 

Chemical Natl. Bank, State, ex rel., y. School Dist. No. 9, Sherman 

Co... 620 

Cheney y. Wagner 262 

Error Proceedings. 

C.,B. &Q. R. Co., Black y 197 

C.,B. &Q. R. Co. y. Hogan 686 

Railroads. Fences. 

C, B. &Q. R. Co. y. Kriski 215 

Malicious Prosecution. 

City of Fremont, Magnean y 843 

City of Omaha y. Cochran 637 

City of Omaha y. Doll 637 

City of Omaha y. Howell Lumber Co 633 

City of Omaha, Lindsay v , ; 512 

City of Omaha y. Randolph 699 



TABLE OF CASES REPORTED. xxiii 

PAGB 

City of Omaha y. Rasmnssen 637 

City of Plattemonth, Alexander v 117 

City of Seward v. Klenck 775 

City of Tekamah, Kinney ▼ 605 

Cobbey, Oreenwood V^ 579 

Cobnm, Kaufman v 672 

Cocbran, Omaha v 637 

Cooley, McCarn y 552 

Connty of Caas, Todd y 823 

Conntyof Dixon y. Gantt 8a5 

Connty of Frontier, State, ex rel., y. Kelly 574 

Coy y< Jones. 798 

Limitations. Quasi-Penal Actions. 

Crooker, Hilton y 707 

Crowell y. Harvey 570 

Wabbanty. Plbadino. New Tbial. 

Cnim,F.y K & M. V. B.Co.y 70 

Cnrryy. Metcalf .' 266 

Review. 

D. 

Dayifl y. Giddings 209 

Conditional Sale. 
DeeeretNatl. Bank y. Nnckolls 754 

Judgment. Voluntaby Payment. 
Betwiler y. Detwiler 338 

Tbusts. Fbadulent Conveyances. 

Bickerson y. Mecbling 718 

Appeal. Unauthobized Dismissal. 

Dixon Connty y. Gantt '. 885 

Judgment by Default. 

DoU, Omaha y 637 

Donisthorpe y. P., E. & M. V. R. Co 14*2 

Right of Way. Repbesentations of Agent. 

Dorseyy. McGee 657 

Building Contbagt. 

Dnnigan, Wnllenwaber y 877 

Dnnterman, State, ex re]., y. Gaslin 651 

E. 

Early, Gandy y 183 

Ecklee, State, ex rel., Linch y 740 

Ediing y. Bradford 593 

Wbitten Instbuments. Constbuction, 



xxiv TABLE OF CASES REPORTED. 

Pi.OB 

Eldridge v. Hargreaves 638 

Warranty. Pleading. 

Erwin, Beatrice Sewer Pipe Co. y 86 

Eayart, Hawke t. 149 

F. 

Farmers Lcwn A Trust Co. v. MoDtgomeiy 33 

Witnesses. Impeachment. Instructions. 

Fedawa,Seebrock v 424 

First Natl. Bank, Blue Hill, v. Tamer ...« 80 

Banks. Garnishment. Service. 

First Natl, Bank, Fairfield, Hall v 99 

First Natl. Bank, Madison, v. Carson 104 

Promissory Note. Onus Probandl Trial. Appeal. 

Fitzgerald y. Richardson 365 

Evidence. 

Franz y. Yonng « 360 

School Officers. 

Fremont, Magnean y 843 

F., E. & M. V. R. Co. y. Crum 70 

Fires by Railways. Measure of Damages. 

F., E. AM, V. R.Co.,Donisthorpe y 142 

Frey, K. C. & O. R. Co. y.. 790 

Frontier Co., State, ex rel., y. Eellj 574 

Priedlandery. Ryder 783 

Landlord and Tenant. 
Fnller, Goldsmith y« 563 

G. 

Gandyy. Early 183 

Trial. Order of Proof. 

Gantt, Dixon County y 885 

Gaslin, State, ex rel. Dnnterman, y 651 

German Ins. Co. y. Heidak 288 

Insurance. 
Getchell y. Benton 870 

Internal Improvements. 

Giddings, Dayis y 209 

Giles y. Giles 624 

Custody of Children. 

Goldsmith y. Fuller 563 

Husband and Wife. Creditor's Bill. 

Gorder, Champion Machine Co. y 89 

Greenslate, Ashby v 253 



r 



TABLE OF CASES REPORTED, xxv 

Pi.QB 

Greenwood t. Gobbey,. 4 579 

Plkadino. 

Gregory, Tingley y 196 

Gae, Hoaok ▼ 113 

H. 

Haggerty, Walker ▼ 120 

Hale T. Hess. 42 

Contract. Rescission. Msasubb of Damages. 

Hallv. First Natl. Bank, Fairfield 99 

National Banks. Usury. 

Hammond, Kitchen Bros. Hotel Co. y. 618 

Hargreayes, Eldridge y 638 

Hartford Fire Ins. Co. y. Meyer 135 

Insurance. Enjoining Judgment. 

Haryey, Crowell y 570 

Hawke y. Enyan 149 

WiLiA Codicils. Conditions. 

Heath, l£ace y 620 

Heidnk, German Ins. Co. y 288 

Hene, Rickaids y 259 

HesB, Haley 42 

Hilton y. Crooker 707 

DEED& Reformation. Personal Contracts. 

Hogan, C, B. & Q. R Co. y 686 

Horbach, Schields y 536 

Horsty. McCormick Haryester Machine Co.. 558 

Decedents' Estates. 

Honck y. Gne 113 

Directing Verdict. Right of Argument. 

Honck y. Hnrley 113 

Howell Lumber Co., Omaha y 633 

Hnll, State, ex rel., v. Walker 501 

Hnnt y. Lipp 469 

Real Estate. Notice. Statute of Frauds. 

Hnrley, Honck y- 113 

f 

I. 

Ins. Co., German, y. Heidnk 288 

Ins. Co., Hartford Fire, y. Meyer 135 

J. 

Janeoek,0. & N. P. R. Co. y 276 

Johnson, Pefley y.. 529 

Jones, Coy y 798 



xxvi TABLE OF CASES REPORTED. 

PAGE 

Jones, Marathon Cbanty Bank y 798 

K. 

K, C, &0. R. Co. V. Frey 790 

Statutjes. Constitutionality. 
Kanfman y. Ck>barn : • 672 

iNSOLVKNCr. SUBBTIES. 

Kay, McPheey G2 

Kelly, State, ex rel. Frontier Go., y 574 

Kinney y. Tekamah 605 

CiTiBS. Unsafe Sidewalks. 

Kitchen Bros. Hotel Ck>. y. Hammond 618 

Findings. 

Klenck, City of Seward y 775 

Konntze, Bohn Mfg. Co. y 719 

Kri8ki,C., B. & Q. R. Co. y 215 

L. 

Lamaster, Bnrr y 688 

Lan,RaB8eIly 805 

Linchy. State, ex rel. Ecklea. 740 

Mastbb and Servant. Negltgenob. 

Lindsay y. Omaha 512 

Cities. Vacating Streets. 
Lipp, Hunt y 469 

M. 

Mace y. Heath 620 

Alteration. Statute of Frauds. 

Magnean y. City of Fremont 843 

City Council. Occupation Tax. 

Manger y. Shipman 352 

Animals Fer^e Nature 

Marathon Coonty Bank y. Jones 798 

Marston, U. P. R. Co. y 241 

Martin y. State ^. 421 

Liquors. Information. 

Martin V. State 507 

Liquors. Unlawful Sale by Agent. Indictment. 

McCarn v. Cooley 552 

Review. Bill of Exceptions Essential. 

McClay, Oppenheimer y 654 

McCormick Harvester Co., Horst y 558 

McGee, Dorsey y 657 



TABLE OF CASES REPORTED. xxvii 

PAGE 

McPheev. Kay 62 

Mechanics' Liens. 

Mechliog, Dickerson v 718 

Metcalf, Curry V 256 

Meyer, Hartford Fire Ins. Co. ▼ .135 

Miller, Bierbower y 161 

Millsapv. Ball 728 

Mechanics' Liens. 

Mizer T. Bristol 138 

Right to Open and Close. 

Montgomery, Farmers Loan & Trnst Co. v 33 

More, Ainsfield v *. 385 

Moudy, Roberta V 683 

Myers v. Bealer 280 

Negotiable Instruments. Pleading. Evidence. 

N. 

Natl. Lnmber Co. v. Wymore 356 

Cities. Claims Against. 

Nichols, Calland t 632 

Norman v. Waite 302 

Pabtnebship. Negotiable Instruments. Conveyances. 

Norton Y. Pilger 860 

Fraudulent Conveyances. 
Nuckolls, Deseret Natl. Banky 754 

O. 

Oakley y. Pegl^r.. 628 

Names. 

Oberliesy. Willis 705 

Lease. 

Oberney. Burke 561 

Agency. Apparent Authority. 

Omaha Barb Wire Co., Banks y 128 

Omaha y. Cochran 637 

Eminent Domain. Special Benefits. 

Omaha y. Doll 637 

Omaha y. Howell Lnmber Co 633 

Eminent Domain. Special Benefits. 

Omaha, Lindsay y 512 

Omaha y. Randolph 699 

Cities. Unsafe Streets. 
Omaha y. Rasmussen 637 



1 



xxviii TABLE OF CASES REPORTED. 

PA6B 

O. A N. R K. Co. T. Janecek 276 

Kajlboads. ▲bcttixo Pbopbbtt. Special DAMAOsa 
O. d:R. V. R. Co. V. SeTerin 318 

RAILKOAD6. FaBX CBOSSIXGS. 

Omaha Sch. Dist., State, ex rel., Whitlock t ^ 815 

Oppenbeimer t. McClay.. 654 

P. 

ParliD, Ward t- 376 

Pefley V. Johnsoo 629 

Pleading. 

Pegler, Oakley t 628 

Peo Dell, State, ex rel., v. Annatrong 493 

Petersen v. Townaeod 373 

Adyebse PossEssioir. 

Peterson, Bradford ▼ 96 

Pilger, Norton ▼ 860 

Plattsmonth, Alexander ▼. 117 

R. 

R. Co., C, B. &Q., Black t 197 

R. Co., C.,B. &Q., V. Hogan 686 

R. Co., C, B. & Q., T. Krislci ^ 216 

R. Co., F., K & M. v., T. Crnm 70 

R Co., F., E. & M. v., Doniathorpe t 142 

R, Co., K. C. &0., V. Frey r 790 

R. Co., O. & N. P., V. Janecek.. 276 

R. Co., O. &R. V.,v. Severin 318 

R. Co., U. P., V. Broderick 735 

R. Co., U, P.,v. Marston 241 

Randolph, Omaha v 699 

Rasmnssen, Omaha Y 637 

Riec, Brown v 236 

Richardson, Fitzgerald ▼ 365 

Rickards v. Hene 259 

Pabtnbbship. 

Roberta v. Mondy 683 

Exemptions. 

Roode, Watson v... 264 

RootY. State Bank 772 

Final Obdeb. 

Rnssell v. Lan 805 

Chattel Mobtoages. Oabnishmbnt. 
Ryder, Friedlander v 783 






TABLE OF CASES REPORTED. xxix 

S. 

PAGR 

Seebrock v. Fedawa 424 

Wills. Pbobate. Instbucjtions. 

Severin, O. & R. V. R. Co. v 318 

Seward v. Kleuck T75 

Review. Bills of Exceptions. Delay in Seeying. 

Schields V. Horbach 536 

Real Estate. Option. 
School Diet. No. 9, Sherman Co., State, ex rel. Chemical Natl. 

Bank,v 520 

School Dist. Omaha, State, ex rel., Whitlock y 815 

Scott, YallindiDgham v 187 

Shipmao, Manger v 352 

Shreck t. Spain 887 

Chattel Mobtgaoes. Pbiobity. 

South Omaha Natl. Bank y. Chase 444 

CoNTBACT. Chattel Mobtgaoes. Supbeme Coubt. 

Spain, Shreck ▼ * 887 

State, Bailey t.. 855 

State Bank, Root t 772 

State, Martin y 421 

State, Martin y 507 

State, ex rel. Chemical NatL Bank, y. School Dist. No. 9, Sherman 

County 520 

Mandamus. Limitations. 

State, ex rel. Duntermnn, y. Gaslin 651 

Referee. Bill of £xc£ftion& 

State, ex rel. Eckles, Linch y 740 

State, ex reL Frontier Co., y. Kelly , 574 

County Clebk. Fees. 

State, ex mL Hull, y. Walker 501 

County Attobney. Appointment. 

State, ex rel. Pennell, y. Armstrong 493 

New Counties. 

State, ex rel. Sch. Dist. of Omaha, Whitlock y. 815 

SteyenBT. Carson • 544 

Husband and Wife. Conveyances. 

T. 

Tekamah, Kinney y.. 605 

Tbacker, Alexander y 614 

Thompson y. Thompson 489 

Conditional Deed. Evidence. Supbeme Coubt. 



XXX TABLE OF CASES KEPOKTED. 

PAGE 

Tingley v. Gregory 19^> 

Homestead. Liens. 

Todd V. Cass County 8'2:i 

Bond Election. 

TowDsend, Petersen v 373 

Tamer, First Natl. Bank, Blue Hill, t 80 

u. 

U. p. R. Co. T. Broderick 735 

Mastbb and Servant. Neoliobngb. 

tJ. P. R. Co. V. Marston 241 

Cabribbs. Liability. View. 

Uppfalt T. Woermann..... 189 

Ejectment. Counter-claim. 

V. 

.Vallindingham v. Scott 187 

Bills of Exceptions. 

W. 

Wagner, Cheney t 262 

Waite, Norman y 302 

Walker, v. Haggerty 120 

Pbomissoby Note. Instbuctions. 

Walker, State, ex rel. Hull, v .* 501 

Wardv.Parlin 376 

EviDBNOB. Husband and Wife. Conveyances. 
Watson V. Boode 264 

Wabbanty. Pleading. Evidence. Instbuctions. 

Weston V.Brown ', 609 

Witnesses. Interest. 

WhiUock y. State, ex rel. School Dist. of Omaha 815 

Schools. Tbusts. 

Wilbur, Cannon y '. 777 

Wilcox, Alexander v 793 

Willis, Oberlies v 705 

Woermann, Uppfalt y.. 189 

Work, Brown v 800 

Wnllenwaber y.Donigan 877 

Railboad Bonds. Fai^e Representations. 
Wymore, Natl. LumberCo. y 356 

Y. 

Young, Frana v 360 



CASES CITED BY THE COURT. 



Casbb Marked * ark Ovkbruled in this Yolumb. 



A. 

PAOB 

Abbott y. Sbepard, 6 N. E. Bep. (Mass.), 826 134 

Abernatby ▼. Dennis, 49 Pa. St., 469.. 626 

Adams t. Gnerard, 29 Ga., 65U 405 

Aiken ▼. Weckerly, 19 Mich«, 482^ 434 

Altschnler T. Algaza, 16 Neb., 631 550 

Andrews T. Gillespie, 47 N. Y., 487 405 

Anstedt V. Bentley, 21 N. W. Rep. (Wis.), 807 134 

Arapahoe Village v. Albee, 24 Neb., 242 526 

A. & N. R. Co. V. Jones,9 Neb., 71- , 369 

Anltman v. Howe, 10 Neb., 8 556 

Anltman v.Mallory, 56 Neb., 180 866-7 

«Aaltman &Co. ▼. Obermeyer, 6 Neb., 260.. 550-1 

Austin y. Pickler,4 So. Rep. (N. Gar.), 35.... 316 

B. 

Baker y. Johnson, 331a., 151 526 

Baker y. Wiswell, 17 Neb., 52 488 

Baldwin y. Parker, 99 Mass., 79 442 

Ballard y. State. 19 Neb,, 609 34, 41 

Ballentine y. R. Co., 40 M6., 491 205-6 

Baltimore & P. R. Co. y. Fifth Bap. Ch., 108 U. S., 317 27» 

Bank y.Grindstaff, 45 Ind., 158 271 

Bank y. Hill, 48 Ind., 52- 698 

Bank y. Lnckow, 3 N. W. Rep., 434 316 

Barlow y. McKinley, 24 la., 69 698 

Bass y. Bass, 6 Pick., 362 62a 

Batten y. Smith, 22 N. W. Rep. (Wis,), 342 134 

Beach y. Leahy, 11 Kan., 23 363 

Beazley y. Denson, 40 Tex., 416 434 

Bedell y. Janney 4, Gilm. 193 524 

Bertram y.Cartis,31Ia., 46 697 

Bethlehem y. Annis, 40 Neb., 34, 40 717 

Bierbowery. Polk, 17 Neb., S68 13i 

2 (xxxi) 



xxxii CASES CITED BY THE COURT. 

PAOX 

Binck V. Wood, 43 Barb. (N. Y.), 316 770 

Bingham v. Cabot, 3 Ball. (U. S.), 381 181 

Black V. Winterstein, 6 Neb., 224 263 

Blakcly v. C, K. & N. Rj., 26 Neb., 207 279, 636 

Boggs V. R. Co., 6 N. W. Rep., 744 334 

Bohn Mfg. Co. v. Eoantze, 30 Neb., 719 732 

Boldt V. Budwig,19 Neb., 739 658 

Bonna v. Carter, 20 Neb., 666 672, 682 

Boston &M. R. Co. y. Barrett, 3 Cnsb., 224 640 

Bostwick V. R. Co., 46 N. Y.,712 248 

Bowie V. Spaida, 26 Neb., 635 34, 41 

Boyden ▼. Burke, 66 U. S. 676... 181 

Bradford v. Vinton, 26 N. W. Rep., 401 438 

Bradley v. Richardson, 23 Vt., 720 137 

Bradshaw v. State, 17 Neb., 147 34, 41 

Braidy v. Theritt, 17 Kan., 468 847 

Brewer V. Otoe County, 1 Neb., 382.. 625 

Brimmer T. Sothier, 1 Cnah. (Mass.), 118 160 

Bronson y. Coffin, 108 Mass., 176.. 695 

Brooks v. Dutcher, 22 Neb., 666 436 

Brooks y. Harris, 12 Ala., 667 405 

Brooks T. R. Co., 13 Barb. (N. Y.), 694 326-7 

Brooksbank v. Smith, 2 Younge & Coll. (Eng.), 58. 403 

Brown v. Edgerton, 14 Neb., 453 236, 240 

Brown V. Peck, 1 Eden (Eng.), 140 160 

Brown v. Rogers, 20 Neb. , 647 380 

Brown v. Second Natl. Bank, 72 Pa. St, 209 103 

Brown V. Work, 30 Neb., 800 811 

Burger V. Rice, 3 Ind., 126 717 

Burhopy. Milwaukee, 18 Wis., 43 882 

B. & M. B. Co. y. Barrett, 3 Cosh., 224 540 

Burrelly. State, 26 Neb., 681 509 

Butler y. Maples, 9 Wall., 766 690 

c. 

Callaway County y. Nolley,31 Pa. St., 393. 626 

Campau y. Detroit, 14 Mich., 276 869 

Capritz y. State, 1 Md..669 423 

Carli y. Rhener, 27 Minn., 292 847 

Chapman y. Summerfield, 14 Pac Rep., 236 384 

C. & G. T. R. Co. y. Campbell, 11 N. W. Rep., 152 688 

C.,K.&N. R. Co. y. Hazels, 26 Neb., 364 279 

C, R. &Ft W. R. Co. y. Wood, 82 Ind., 598 688 

C. & W. I. R, Co. y. Ayres, 106 111., 511 280 

Cincinnati y. Church, 8 0. St, 298- 525 



CASES CITED BY THE COURT, xxxiii 

FAGS 

Cincinnati y. Evans, 6 O. St., 594 526 

Citizens Bftnk v. Closson, 29 O. St, 78 ; 765 

Citizens Natl. Bank v. Webster, 41 N. W. Rep. (la.), 47 384 

Ciiy of Crete V. Childs, 11 Neb., 263 34, 41 

Clark V. Conroe, 38 Vt., 469 699 

Clark V. Iowa City, 20 Wall. (U. S.), 583 626 

Clarkv. State, 24 Neb., 263 748 

Cleaver V. Traders Ins. Co., 32 N. W. Rep. (Mich.), 660 297 

Cleaver V. Traders Ins. Co., 39 N. W. Rep., 671 297 

Clegborn V. Waterman, 16 Neb., 226 236,240 

Clements v. Anderson, 46 Miss., 681 626 

Cogswell V. R. Co., 8 N. E. Rep,, 637 279 

Collingwood V. Bank, 16 Neb., 121 146 

Columbus, etc., R. Co. v. Gardner, 46 O. St, 316 280 

Commonwealth v. Blood, 4 Gray, 31 423 

Commonwealth v. Cook, 13 B. Mon., 149 423 

Commonwealth V. Crawford, 9 Gray, 129 423 

Commonwealth of Ky. v. Gov. Ohio, 24 How., 66 627 

Commonwealth V. Remby, 2 Gray, 608 4^ 

Commonwealth y. Smith, 1 Gratt, 653 423 

Commonwealth y. Taggart, 8 Gratt, 697 423 

Commonwealth v. Tralnor, 123 Mass., 414 423 

Conrad y. Long, 33 Mich., 78 160 

Conyersev. Meyer, 14 Neb., 191 369 

Cooky, Powell, 7 Neb., 284 369 

Cooky. R. Co., 36 Wis., 46 332 

Corbet y. Evans, 26 Pa. St, 310 770 

Corie v. Corie, 42 Mich., 509 627 

Cornell t. Gibson, 16 N. E. Rep., 130., 384 

Crane y. Prather, 4 J. J. Mar. (Ky.) 76„ 404 

Credit Foncier y. Rogers, 8 Neb., 34 652, 556 

Crowninshield v. Crowninshield, 2 Gray, 627 434 

Crump V. U. 8. Mining Co., 66 Am. Dec., 116 852 

Cullmans v. Lindsay, 6 Atl. Rep., 332 316 

Curry v. Board of Supervisors, 16 N. W. Rep., 602 882 

D. 

Pale y. Hunneman, 12 Neb., 221 195 

Danforth v. Walker, 37 Vt, 239... 59 

Davis y. B. & M. R. Co., 26 la., 653 687 

Davis V. Dumont, 37 la., 47. , 882 

Davis y. Neligh, 7 Neb., 78 102 

Dawson y. Merch., etc., Bank, 30 Ga., 664 137 

DeCordovay. Galyeston, 4 Tez., 470 626 

D'Gette y. Sheldon, 27 Neb., 829 793, 795-797 



xxxiv CASES CITED BY THE COURT. 

PAGE 

Delafldd V. Parish, 25N. Y., 9 435 

Dement v. Rokker, 126 111., 189 528 

Dempsey t. Barliogton, 61 la., 688 518 

Denny y. R. Co.,13aray (Mass.), 481 206 

DentT. R.Ck>.,83Mo., 496 329 

Derby V. Johnson, 21Vt,17 58 

Dicev. Irwin, 11 N. E. Rep., 488 394 

Dietrich v. Hntchinson, 20 Neb., 52 131 

Dobbins v. Oberman, 17 Neb., 163 286 

Dolen V. State, 15 Neb., 405 557 

Donisthorpe V. F., E. & M. V. R, Co., 30 Neb., 142 884 

Donovan v. Fowler, 17 Neb., 247 112, 432 

Donovan v. Sherwin, 16 Neb., 130 776 

DoolitUe V. Marsh, 11 Neb., 243 800 

Dorman v. State, 34 Ala., 216..\ 423 

Dorrington y. Minnick, 15 Neb., 403 316 

Douglas y. HUl,29Kan,, 527 117 

Downey y. Ladd, 22 Neb., 631.. 456 

Qrncker y. Manhattan R. Co., 12 N. £. Rep., 568 280 

Duboisy. Kelly, 10 Barb., 508 788 

Duchess of Kingston's Case, 20 How. St. Tr., 538 195 

Dunbar y. Briggs, 18 Neb., 97 ., 550 

Dunbier v. Day, 12 Neb., 596 34, 41 

Dunny. Oibson, 9 Neb., 513 ', 658 

Durand y. C. & N. W. R. Co., 26 la., 559 688 

Dutchery. State, 16 Neb., 30 369, 658 

E. 

Eaton y. Carruth, 11 Neb., 231 556 

Eliason y. Henshaw, 4 Wheat. (U. S.), 226 640 

Emerson v. Navarro, 31 Tex., 334 405 

Enos V. Sun Ins. Co., 8 Pac. Rep., 379 297 

Evans v. Arnold, 52 Ga., 163 435 

Evans y. Erie County, 66 Pa. St., 225 526 

Ex parte Johnson, 16 Neb., 512 847 

F. 

Fallow y. Boston, 3 Allen (Mass.), 38 206 

Farwell v. Steinrod, 29 Neb., 108 804 

Ferris v. Henderson, 12 Pa. St., 49 405 

First Natl. Bank v. Carson, 30 Neb., 104 432 

Flanders v. Lamphear,9 N. H., 201 717 

Flint & P. M. R. Co. v. Lull, 28 Mich., 610 688 

iFrederick y. Ballard, 16 Neb., 566 34, 39 

F., E. & M. V. R. Co. V. Whalen, 11 Neb., 585 636 



CASES CITED BY THE COURT. xxxv 

PAGE 

Friedlander v. Pugh,43 Mias.,!!!.... .\ 69 

Fritz v.Pusey, 31 Minn., 368 693 

Fuller T. Schroeder, 20 Neb., 636 107 

G. 

G. & C. R. Co. V. Griffin, 31 111., 303 688 

Qana t. St. Paul F. & M. Ins. Co., 43 Wis., 108 299 

Gardiner v. Gardiner, 34 N. Y., 155 438 

Garland v. Scott, 15 La., 143...... 524 

Garrison t. Howe, 17 N. Y., 458! 800 

Gayer v. Parker, 24 Neb., 643 : 194 

George ▼. State, 16 Neb., 321 34, 39 

Gerriflh v. Nason, 23 Me., 438 435 

Gibson v. Cleveland Paper Co., 13 Neb., 277 369 

Gifford V. R. V. & K. R. R.Co.,20 Neb., 538 656 

Gillespie v. R. Co., 6 Mo. App., 554 205 

Gladding v. Ins. Co., 4 Pac. Rep., 764 297 

Gleeson v. R Co., 28 Am.& Eng. R. Cas., 202.. 206 

Goodwin v. Des Moines, 7 N. W. Rep., 411 704 

GrantT. Cropsey,8Neb.,205 116 

Gray v. R. Co., 37 la., 119 334 

Greenabanm v. Elliott, 2 Cent L. J., 439 770 

Grimes ▼. Farrington, 19 Neb., 48 131 

Grundy's Heirs v. Grundy, 12 B. Mon. (Ky.), 269 405 

H. 

Hall V. Vamier, 6 Neb., 85 116 

Halliday V. Briggs, 15 Neb., 219 276 

HankinsT. Ins. Co., 70 Wis., 1 297 

Hanscom t. Omaha, 11 Neb., 37 852 

Hardy V. Merrill, 56 N. H,,227 442 

Hartford Ins. Co. ▼. Wilcox, 57 111., 182 297 

Harvey V. Richards, 2 Gall. (U.S.), 229 194 

Hathaway's Appeal, 46 Mich., 327 436 

Havens ▼. Home Ins. Co., Ill Ind., 90 297 

Hedges V. Roach, 16 Neb., 674 380 

Helpbrey v. Redick, 21 Neb., 80 797 

Henderson V. Connelly, 123 111., 98 726 

Henderson v. San Antonio R. Co., 67 Am. Dec., 675 882 

Hendricks v. Starks,37 N. Y., 106 698 

Herrick v. Moore, 19 Me., 313 698-9 

Herron v. Cole Bros., 25 Neb., 692 658 

Heryford v. Davis, 102 U. S., 235 866 

Hibshman v. Dulleban, 4 Watts (Pa.), 191 194 

Hill V. Bowman, 35 Mich., 191 « 384 



xxxvi CASES CITED BY THE COURT. 

PAGE 

Hill V. Gill, 42 N. W. Rep., 294 727 

HoUiogswbrth v. Fitzgerald, 16 Neb., 492 813 

Holmes v. Riley, 14 Kau., 131 ..: 112 

Hooker V. Hammill, 7 Neb. , 235 316 

Hooper y. Browning, 19 Neb., 428 34, 39 

Hopper V. Hopper, 11 Paige Ch. (N. Y.), 46 765 

Howard v. Stratton, 64 Cal., 487 316 

Howell V. Hathaway, 28 Neb., 807 98 

Howell V. Roberts, 29 Neb., 483 798-799 

Hubbard V. Norton, 10 Conn., 422 699 

HnflFer v. Allen, 12 JurUt (Eng.), 930 770 

Hnlstead v. Commonwealth, 5 Leigb, 724 423 

Huyck V. Andrews, 113 N. Y., 81 698 

I. 

I. R. Co. V. Christy, 43 Ind., 143 688 

I. & C. C. R. Co. V. Oestel, 20 Ind., 231 688 

I. B. & W. R. Co. V. Quick, 9 N. E. Rep., 789 688 

Ingalls V. Nobles, 14 Neb., 272 47 

J. 

Jackman's Will, 26 Wis., 104 438 

Jackson V. Myers, 3 Johns. Rep., 387 314 

James v. Cavit, 2 Bre'^rd (S. Car.), 174 770 

Johnson v. Way, 27 O. St., "374 286 

Jones V. Null, 9 Neb., 256 263 

Jones V. Seligman, 81 N. Y., 190 327 

Jordan V. Robinson, 15 Me., 167 523 

Jordan v. White, 38 Mich., 263 394 

K. 

K. C. &E. R. Co. V. Kregelo, 5 Pac. Rep., 16 279-80 

Keating V. Korfhage, 4 West. Rep., 569 698 

Keith V. Estill, 9 Ala., 669 523 

Kellogg V. Maetin, 50 Mo., 496 699 

Kempsey V. McGinniss, 21 Mich., 123 434 

KendaU V. Brown, 74 111., 232 206 

Kendall v. U. S., 12 Pet., 615 527 

Kennebunkport v. Smith, 22 Me., 445 525-6 

Kerr V. Lunsford, 31 W. Va., 679 433 

Kirklan v. Brown's Admr., 4 Humph. (Tenn.), 174 770 

Kitchen Bros. Hotel Co. t. Hammond, 30 Neb., 618 658 

Knox's Appeal, 26 Conn., 20 435 

Knudson v. Hekla Ins. Co., 43 N. W. Rep., 954 297-8 



CASES CITED BY THE COURT, xxxvii 

PAOB 

Kopplekom v. Haffman, 12 Neb., 95.. 550 

Kartz v. McGaire, 5 Duer, 660 416 

Kylev. Chase, 14 Neb., 528 566 

L. 

L. &I. R.CO. v.8hriner,6Ind.,141 688 

Lahrv. R. Co., 104 N. Y.. 268 279 

Landsen v. McCarthy, 45 Mo., 106 717 

Lane v. Kennedy, 13 O. St., 42 525 

Lanphere v. Lowe, 3 Neb., 131 783, 790 

Larmon Y.Jordan, 56 111., 204 540 

Latham v. Bchaal, 25 Neb., 535 438 

Leach v. People, 122 111., 420 847 

Le Grand v. Francisco, 3 Man. (Va.), 83 770 

Lemon t. Sweeney, 6 111. App., 507 137 

Lexington Ins. Co. t. Paver, 16 0.,324 141 

Light V. Kennard, 10 Neb., 330 651, 653 

Lininger v. Raymond, 12 Neb., 19 131 

Lipp V. Horbach, 12 Neb.. 371 618, 658 

Lipp V. Hunt, 25 Neb., 91 488 

Lipp V. Hunt, 29 Neb., 256 488 

*Lipscomb v. Lyon, 19 Neb., 511 550-1 

Little V. Woodworth, 8 Neb., 281 276 

Lloyd V. Pac. R. Co., 49 Mo., 199 688 

Lonj? v.Clapp, 15 Neb., 417 : 658 

Long V. Moler, 5 O. St., 271 699 

Loomis V. Eagle Bank, 10 O. St., 327 413 

Lonnsbnry v. Catron, 8 Neb., 469 456 

Loyall Y. Newton, 1 Cong. El. Cases, 520 842 

M. 

Mack Y. Patchen,42N. Y., 167 782 

Mackey Y. Harmon, 34 Minn., 168 696 

Marion y. State, 20 Neb., 246 41 

Marriott v. Hampton, 7 T. R. (Eng.), 269 769, 771 

Marshalltown y. Forney, 51 la., 578 518 

Marston Y. Swett, 66 N. Y., 206 268 

May V. Sch. Dist., 22 Neb., 205 525 

McCall Y. Chamberlain, 13 Wis., 637.. 333 

McClellanY. Scott, 24 Wis., 81 882 

McCormick y. Lawton, 3 Neb., 449 98 

McGovern Y. Knox, 21 O. St., 547 569 

McGowan y. Myers, 60 la., 256 698 

McGrath y. D. M. & M. R. Co., 24 N. W. Rep. (Mich.), 854 688 

Mcintosh v. Saunders, 68 111., 128 404 



xxxviii CASES CITED BY THE COURT. 

PAGB 

McMechen v. McMechen, 17 W. Va., 683 442 

McMortry v. State, 19 Neb., 147 657 

Melendy v. Keen, 89 111., 396 882 

Meneran y. Phoenix Mnt. Life Ins. Co., 66 N. T., 274 297 

Meeeenger y. State, 26 Neb., 674 864, 859 

Michels Y. Olmstead, 14 Fed. Rep., 219 316 

Miller Y. Krueger, 13 Pac Rep., 641 384 

Mizer y. Bristol, 30 Neb., 138 436 

MohrY. Parmalee, 43 N. Y. Super. Gt., 320 697 

Monroe Y. Barclay, 17 0. St., 302 438 

Morehouse y. Ck>mstock, 42 Wis., 626.. 270 

Morrison y. DaYis, 20 Pa. St., 171 206 

Morrow Y. Sallender, 4 Neb., 376 263 

Morse y. Steinrod, 29 Neb., 108.. 801-803 

Morton y. Lee, 28 Kan., 286- 847 

Maldoon v. LoyI, 26 Neb., 457 854, 859 

Murphy v. State, 16 Neb., 385 369 

Murray v. Lardner, 2 Wall. (U. S.), 110 286 

Myers Y. Croeswell, 46 O. S., 643.. 413 

N. 

Nashville, etc, R. Co. y'. David, 6 Heisk. (Tenn.), 261.. 206 

Neal V. Gillet, 23 Conn., 436 .' 206 

Neb. & la. Ins. Co. v. Christiensen, 29 Neb., 572 296 

Neff*s App., 48 Pa. St, 501 160 

Nelson v. Garey, 15 Neb., 531 131 

Norton v. Shelby County, 118 U. S., 446 847 

Nycev. Shaffer, 20 Neb., 609 125 

o. 

Oatman v. Bond, 16 Wis., 22 869 

Olds Wagon Co. v. Benedict, 25 Neb., 376 436 

O'Leary v. Iskey, 12 Neb., 137 107 

O. «& R. V. R. Co. v. Brown, 29 Neb., 492 369 

O. & R. V. R. Co. Y. Martin, 14 Neb., 296 704 

O. & R. V. R. Co. V. Rogers, 16 Neb., 117 517 

Omaha v. Howell Lum. Co., 30 Neb., 633 638 

Orm.sby v. Longworth,ll O. St., 653 385, 403 

Osborne v. Kline, 18 Neb., 361 436 

Ottenstein v. Alpaugh, 9 Neb., 240 505-6 

P. 

Parker v. Kuhn,21Neb., 413 405 

Parker V. Matheson, 21 Neb., 646 797 

Parrat v. Neligh, 7 Neb., 459 263 

Parrish V. Whitney, 3 Gray, 516 699 



CASES CITED BY THE COURT. xxxix 

PAGB 

Patrick V. Loach, 8 Neb., 638- 560 

Paulsen t. Manske, 18 N. E. Rep., 275 727 

Payne V. Dudley, 1 Wash. (Va.), 196 137 

Payne v. Wilson, 41 N. W.Eep. (la.), 45 384 

Paynter v. Mills, 1 Neb., 440 768 

People V. Bangs, 24 111., 184 847 

People Y. Mahaney, 13 Mich., 494 791 

Peoria County v. Gordon, 82 111., 437.. 628 

P. P. & J. R. Co. V. Barton, 80 lU., 72 330 

Perkins y. Longee, 6 Neb., 220 884 

Perkins V. Perkins, 39 N. H., 163 436 

Perrenthal v. San Francisco, 21 Cal.,351 526 

Phcenix Ins. Co. v. Lansing, 16 Neb., 494 295-6 

Pierce Y. Pierce, 38 Mich,, 412 438 

Pinney V. Andrus, 41 Vt., 631 271 

Piatt Y. Eggleston, 20 O. St., 414 695 

Poland Y. O'Connor, 1 Neb., 50 487 

Polsley Y. Anderson, 7 W. Va., 202 59 

Porter Y. R. Co., 1 Neb., 14 286, 240 

Porterfield y. McCoy, 1 Cong. El. Cases, 261 842 

Potts Y. House, 6 Ga., 324 435 

Potts Y. Whitehead, 20 N. J.Eq.,55 540 

PotYin Y. Curran, 13 Neb., 303 369 

PresGott Y. Trueman, 4 Mass., 630 693 

Prichard Y. Atkinson, 8 N. H., 335 699 

PruittY. R. Co., 62 Mo., 627 205-6 

R. 

R. Co. Y. Anderson, 6 Am. A Eng. R. Cases, 407 206 

R. Co. Y. Combs, 10 Bush (Ky.), 382 279 

R. Co. V. Eddins, 60 Tex., 656 y 279 

R.Co. Y. RecYce, 10 Wall. (U. S.), 176 206 

R. Co. Y. Rowland, 50 Ind., 349 688 

Ray Y. Mason, 6 Neb., 101 556 

Real Y. Hollister, 17 Neb., 661 658 

RecYcs Y. Cooper. 1 Beasl. (N. J. Eq.), 223 137 

Renn Y. Samoe. 33 Tex., 760 435 

R. V. R. Co. Y. Fink, 18 Neb., 89 34, 41 

R. V. R. Co. Y. Linn, 15 Neb., 234 ...: 34,39 

Richardson y. Doty,25 Neb., 424 376, 379 

Richardson v. Tobey, 121 Mass., 457 695 

Robinson y. Adams, 62 Me., 369 435 

Roche Y. Ullman, 104 III., 1 695 

Rockford Mfg. Co. y. Mastin, 39 N. W. Rep., 219 384 

Roy Y. McPherson, 11 Neb., 197 569 

Runge Y. Brown, 23 Neb., 817 658 



xl CASES CITED BY THE COURT. 

PAGE 

Runyan v. Price, 15 O. St., 6 435 

Buasell v. Cedar Bapids Ins. Co., 42 N. W. Rep. (la.), 654 297 



St. Charles County v. Powell, 22 Pa. St. , 225 526 

Sandford v. Handy, 23 Wend., 260 882 

Sather V. R. Co., 40 Minn., 91 332 

Saner v. Kansas, 69 Mo., 46 137 

Saunders v. Albrighton, 37 Ala., 716 137 

Savage v. Mason, 3 Cush., 500 694 

Scales V. Paine, 13 Neb., 521 98 

Schaller v. Omaha, 23 Neb., 325 636 

Schoneman v. Ins. Co., 16 Neb., 404 296 

School Directors v. Georges, 50 Mo., 194 526 

School District v. First Natl. Bank, Xenia, 19 Neb., 89 526 

School District y. Holmes, 16 Neb., 487 765 

Schreckengast V. Ealy, 16 Neb., 514 125 

Schuyler NatL Bank v. Bol]ong,24 Neb.,825 612 

Scott V. Waldeck, 11 Neb., 525 776 

Search V. Miller, 9 Neb. , 27 550 

Severin v. Cole, 38 la., 463 120 

Sharp y. Cheatham, 88 Mo., 498 695 

Shaw V. State, 17 Neb., 334 852 

Sheldon v. Sill, 49 U. S., 440 177 

Shellenbarger v. Biser, 5 Neb., 195 456 

Sherwin v. O'Connor, 24 Neb., 605 125 

Sinnettv. Moles, 38 la., 25 882 

Skaaraas y. Finnegan, 16 N. W. Rep., 456 316 

Sloan y. Cobum, 26 Neb., 607 34, 41 

Smltiiy. Fly, 24 Tex., 345 405 

Smith, Admr., y. Lockwood, 7 Wend., 241 622 

Smith y. Steele, 8 Neb., ifS 799 

Smithy. Steinrod, 29 Neb., 108 804 

Snowhill y. Snowhill, 3 Zab. (N. J.), 447 160 

State y. Adams County, 15 Neb., 569 873, 876 

State y. Allen, 23 Neb., 451 577 

State y. Allen, 32 la., 491-493 423 

State y. Bennett, 19 Neb., 191 852 

State y. Carter, 7 Humph., 158- 423 

State y. Cox, 29 Mo.,475 423 

State y. Dodge county, 8 Neb, 124 852 

State V. Doyle, 11 R. L,574 423 

State V. Fauoett, 4 Dey. & Bat, 107.. 423 

State y. Gray, 23 Neb., 366 847, 849 

State y. Green, 27 Neb., 64 854 

State y. Hardy, 7 Neb., 377 854, 859 



CASES CITED BY THE COURT. xli 

PAGE 

State V. Hurds, 19 Neb., 323 864, 859 

State V. Jackson, 4 Blackf., 49 t 423 

State V. Lancaster County, 4 Neb., 537 852 

State V. Lancaster Connty, 6 Neb., 474 854, 859 

State V. Ijmcaster County, 17 Neb., 85 864, 859 

State V. Newman, 24 Neb., 40 499 

State V. Nntwell, 1 Gill, 54 423 

State V. Penniston, 11 Neb., 100 842 

State y. Pierce County, 10 Neb., 476 747 

State V. Pischel, 16 Neb., 608 422 

State V. Keam, 16 Neb., 685 832 

State v.Schmail,26 Minn.,368, 369 423 

State ▼. Sovereign, 17 Neb., 175 577 

State V. Stinson, 17 Me., 154 423 

State V. Steedman, 8 Rich. (S. Car.), 312 423 

State V.Walker, 3 Harr. (Del.), 547 423 

State V. Wentworth, 35 N. H., 442 423 

State,exrel. MiUer, v. Lancaster County, 13 Neb., 223 527 

State, ex rel. Stratton, v. Knapp, 8 Neb., 436 666 

Stephens y. Howe, 127 Mass., 164 770 

Stevens y. Benning, 6 DeG., M. &G.,223 717 

Stekes v. Knarr, 11 Wis., 389 137 

Stoutenbnrg V. Lybrand. 13 O. St., 228 281, 283 

Sturdevant v. State, 16 Neb., 459 627 

Sweetland v. R. Co, 102 Mass., 276 206 

Sycamore v. Gruudrab, 16 Neb., 537 369 

Syme v. Broaghton, 85 N. Car., 367 435 

T. 

Tafty.Ho8mer,14Mich.,309., 433-4 

Taylor v. Jeter, 23 Mo., 244 671 

Tennant v. Braie, Tothill (Ed. 1820), 77 160 

Tessier v. Crowley, 16 Neb., 369 657 

Thompson v. Loenig, 13 Neb., 386 550 

Thudiumv.Y08t,ll Atl. Rep., 436.. 316 

Tilton y. Gordon, 1 N. H., 33 770 

Tompkins v. Tompkins, 3 Stock! (N. J.), 312, 314 137 

Tooker v. Amoux, 76 N. Y., 397 416 

Trafton v. Nougues, 4 Cent. Law Joum., 230 182 

Traver v. Merrick County, 14 Neb., 327 873-4, 876 

Treadwell y. Commissioners, 11 O. St., 183 283 

Trumbo v. People, 75 111., 561 847 

Turner v. Bank, 4 Dall. (U. S.), 8 181 

Turner v. Enrille, 4 Dall. (U. S.), 7 181 

Turner v. Fitt, 3 M., G. & S., 701 632 

Turner v. Turner, 12 Neb., 161.. 651, 654 



xlli CASES CITED BY THE COURT, 

FAGB 

Tattle V. Hannegan. 4 Daly (N. Y.), 92; 64 N. Y., 686 268 

Tweedy v. Jarvis, 27 Conn., 42« * 632 

Tyler y. Gardiner, 35 N. Y., 659 442 

U. 

Underbill v. Trustees, 17 Cal., 172 526 

U. P. R. Co. V. Marston, 22 Neb., 722- 656 

U. S. V. Green, 3 Mason, 482.. 627 

Uppfalt V. Nelson, 18 Neb., 533 194 

V. 

Van Cortlandt v. Kip, 1 HiU (N. Y.), 590 159 

Vreeland v. New Jersey Stone Co., 29 N. J. Eq., 188 882 

Vifquain v. Finch, 16 Neb., 607 141, 436 

Wagner Y.Gage County, 3 Neb., 237 635-6 

Walker ▼. Lutz, 14 Neb., 274 556 

Way V. Lamb, 15 Ia.,79, 83 137 

Webster v. Wray, 17 Neb., 579 581,588 

Welton V. Belteaore, 17 Neb., 401 263 

Westman v. Erumweide, 16 N. W. Rep., 255 316 

Whitaker v. Cummings, L. & R. (Mass. £1. Cases), 360 842 

White V. Blum, 4 Neb., 563 799 

White ▼. Lincoln, 5 Neb., 515 791 

White Lake Lum. Co. v. Stone, 19 Neb., 402 589 

Whiting V. Brastow, 4 Pick. (Mass.), 311 790 

Whiting V. Steer, 16 Reporter, 134 316 

Wickbam v. Grant, 28 Kan., 617- 882 

Wiggins V. Chicago, 78 111., 378 853 

Wilcox V. Hemming, 58 Wis., 144 859 

Willard v.Foster,24 Neb., 213 376,379 

Williams v. Carey, 73 la., 194 518 

Williams V. Lowe, 4 Neb., 393 481 

Williams V. Robinson, 42 Vt, 658 433, 435 

Wilson V. Bumey, 8 Neb., 39 813 

Wilson V. Commonwealth, 14 Bush, 159 423 

WUson V. Shepherd, 15 Neb., 15 774 

Wing V. Gray, 36 Vt, 261 788 

Wood V. Matthews, 73 Mo., 477 316 

•Woodruff V. White, 25 Neb., 745 550-1 

Wreidt v. State, 48 Ind., 579 423 

Wren v. Bradley, 2 De Gex.& S. (Eng.), 49 160 

Y. 

Young v.FUley, 19 Neb., 543 841 



STATUTES AND CONSTITUTIONAL PROVISIONS 

CITED, CONSTRUED, ETC. 



STATE. 
Session Laws. 

1669. FAGB 

P. 9^ Internal improvements; bonds 872 

P. 232. Omaha schools; land conveyed to 815, 818-21 

1871. 
P. 177. Omaha schools.. 816, 821-2 

1887. 
P. 170. Frandalent transfers 857 

Compiled Statutes. 
1885. 

Cb. 28, sec. 13. Register of deeds; fees 577 

1889. 

Ch. 6, sees. 42, 43, 44. Assignments for creditors 131-3 

Ch. 7, sec 25. Ck)anty attorney; vacancy 501, 505-6 

Ch. 10, sees. 1, 15. Official bonds and oaths 363-4 

Ch. 12, sec 56. Metropolitan cities, streets, etc 517 

Ch. 14, art. 1, sees. 10, 76, 79. Cities of second class over 1,000; 

mayor; ordinances; passage 849 

sec 49. Cities of second class over 1,000; ordi- 
nances.. 857 

sec. 69, snbdivs. 9, 12. Liqnor licenses; ordi- 
nances 858 

sees. 104-6. Cities; plats 517 

art 2, sec 12. Cities of second class over 5,000; conncll.. 846 

sees. 18, 30. Mayor; ordinances; passage 848-9 

sec 52, subdiv. 8. Occupation tax 844, 851, 854 

Ch. 16, sec 106. Railroads; crossings 318, 321-2, 335 

sec 136, Corporations ; notice of indebtedness 798-9 

Ch. 18, art. l,sec. 10. New counties; formation 495, 500 

sees. 73, 74. County derk; duties 505 

sec. 77e. County clerk as r^^igter 578 

sec. 85. County clerk ; entries on numerical index, 578 

sec 90a. County clerk; administering oaths 576 

(xliii) 



xliv STATUTES, ETC., CITED. 

FAGB 

Ch. 19, sees. 19, 40, 57. Conrts; jurisdiction at chambers, 740, 747-8 
Ch. 23, sec. 123. TestameDtary capacity 430 

sees. 140, 141, 142. Probate notice; testimony.. 431 

sees. 266-7. Decedent's estates 559-61 

Ch. 26, sees. 103, 105. Vacancies in office 606 

Ch. 28, sec. 42. Surplus fees 578 

Ch. 32; sees. 3, 6. Statute of frauds 484, 485 

sees. 11, 26. Fraudulent transfers 444, 466, 860, 866-7 

Ch. 44, sec. 4. Interest 613 

Ch. 45, sec. 1. Internal improvements; bonds 872, 875 

Ch. 50, sees. 11, 12. Liquors; unlawful sale; hearing.. 858 

Ch. 54, art. 1, sec. 2. Mechanics' liens; filing claim.. 728, 733 

art 2. Liens of laborers and material-men.. 790-1 

sec. 3. Filing 62 

Ch. 57. Mills and mill-dams .....872-5 

Ch. 72, art 1. Railroads; fencing 318, 323, 335-6 

sec. 1 687 

sec 5. Common carriers; liability.. 248 

Ch. 77, sees. 179, l80. Tax liens 796 

Ch. 79, subd. 3, sec. 3. School officers 363-4 

subd. 14, sec. 5. School board; oath 364 

CoDB OF Civil Prookdubs. 

Sec. 2. Form of actions 55^7 

Sec 12. Limitations.. 403 

Sec 13. Limitations; one year 799 

Sec 16. Limitations 520, 528 

Sec. 51. Real property actions; loeuB 236, 239-40 

Sec 61. Change of venue 179 

Sees. 77-8. Service by publication 236, 239-40 

Sec 94. Demurrer; grounds 415 

Sec 96. Petition; waiver 420 

Sec 97. Misjoinder of causes 618 

Sees. 100, 101. Pleading; defenses 411 

Sec 109. Demurrer 414-15 

Sec 125. Pleading; matter stricken out 417 

Sees. 224-5. Attachment 81d 

Sec 303. Referee; exceptions 653 

Sec 311. Bills of exceptions 653 

Sec 530. Exemptions.. 683, 685 

Sees. 645-8. Mandamus 522 

Sees. 935-6. Garnishment 84-5 

Sec. 1010a. Appeals; pleadings 436 

Sees. 1011,1015. Appeals 417 

Sec llOOo. Written instrument; proof. 104, 106 



STATUTES, ETC., CITED. xlv 

Constitution. 

PAGB 

Art 1, see. 21. Priyate property 278 

Art. 3; sec. 11. Amendment of statutes 747 

Art. 9, sees. 1, 6. Taxation 844, 851-4 

Art 10, sees. 1,2,3. Ooanties; diyisioh 495 

FEDERAL. 

Statutes at Labgb. 

Vol. 1, ch. 20, sec 11, p. 78. Federal circuit courts; Jurisdic- 
tion 177 

Vol. 14, ch. 196, p. 55a Removal of causes^ 179-80 

Vol. 18, pt 3, ch. 137, p. 470. RemoTal of causes 177 

Vol. 24, ch. 373, sees. 1-3, p. 552. Removal of causes 171-9 

RsyissD Statutes. 
Sec. 5198. National banks; usury 99, 102 

Constitution. 
Art. 3, sec. 2. Federal courts; jurisdiction 177 



OASES 

ARGUED AND DETERMINED 

IH THB 

SUPREME COURT OF NEBRASKi 

JANUARY TERM, A. D. 1890, 



PRESENT: 
Hon. AMASA COBB, Chibf JusTioa 
" SAMUEL MAXWELL, ) t.^^— 
- T.L.NORVAL. r^** 



Farmers' Loan & Trust Co. v. Simon Montgomery 

ET AL. 
[Filed July 2, 1890.] 

1. Evidence: Impkachmbnt of Witnks. John Bell on De- 
cember 31, 1886, mortgaged a brown mare colt to Emma Moore, 
who assigned the mortgage to defendant Maxwell. Snbse- 
qnently J. B. gare a bill of sale of the mare and other property 
to his son Thomas Bell, whomor^^aged the same to the plaintifll 
After this, defendant Montgomery, as constable, took possession 
of the mare from T. B. and tamed it over to Maxwell on the 
first mortgage. The plaintiff repleyied the mare from the two 
last named. On the trial of the right of possession, T. B. was 
called by plaintiff to identify the property, and Montgomery by 
the defense to impeach his evidence by relating his former state- 
ment to him, inconsistent with his present testimony. The 
plaintiff's objection to this examination waa overruled by the 
3 (33) 




34 NEBRASKA REPORTS. [Vol. 30 

Farmen' Loan & Trust Co. y. Montgomery. 

court, and the statement given to the jary. HM^ That the ad- 
mission of the statement was error, without having first inter- 
rogated the witness as to whether he had made such statement 
and calling his attention to the time, place, and circumstances 
of the same. {Hooper v. Browning^ 19 Keh.,4i^; JR. V. R. 0>. v. 
Linn, 15 Id.-, 234; Qeorge v. State, 16 Id., 321; Frederick v, Bal- 
lard, Id., 565.) 

2. Instruotions: Not Based ov Evidbncb. On the fhrther trial, 
the court charged the jury that if they found from the evidence 
that the plaintiff had any actual knowledge, at the time of tak- 
ing its mortgage on the brown mare in controversy, that she was 
included in the defendants* Emma Moore mortgage, they should 
find for the defendants. Hdd, That as there was no evidence to 
the jury tending to prove that either the plaintiff or any of its 
agents had any notice or personal knowledge of the existence of 
the defendants' mortgage it was reversible error in the court to 
submit the proposition to the Jury. (City of Crete v. ChUds, 11 
Neb., 253; Bowie v. Spaida, 26 Id., 635; Sloan v. Ooburn, Id., 607; 
Dunbier v. Day, 12 Id., 596; Bradshaw v. State, 17 Id., 147; JB. 
Co. V. Fink, 18 Id., 89; Ballard v. State, 19 Id., 609.) 

Error to the district court for Madison county. Tried 
below before Powers, J, 

Wigton & Whitham, for plaintiff in error. 

H. C. Bromey and Burt Mapes, contra, 

Cobb, Ch. J. 

This action of replevin was tried in the district court of 
Madison county. The plaintiff in error was plaintiff be- 
low, aud the defendants were defendants below. 

The property described, in which the plaintiff claims a 
special property, and claims the right of possession, was 
"one iron gray mare about three years old,*' whicli plaint- 
iff claimed by virtue of a chattel mortgage, executed by 
Thomas Bell, May 10, 1887, and which, it was alleged, 
was wrongfully detained by the defendants. Their answer 
was a general denial, but the defense made was that of a 
chattel mortgage executed by John Bell, the grantor of 



Vol. 30] JANUARY TERM, 1890. 36 

Farmen' Loan A Trast Oo. t. Montgomery. 

ThoDias Belly to^Emma A. Moore, and by her assigned to 
K. H. Maxwell, and that defendant was the agent of Max- 
well in the foreclosure of the last mentioned mortgage, 
executed December 31, 1886, and in which the mare in 
controversy was described as "one brown mare colt, two 
years old, valued at $100." 

There was a trial to a jury, with a verdict and judgment 
for the defendant. 

Upon bringing the case to this court on error the plaint- 
iff assigns six substantial errors, which will be stated and 
considered in their order. 

There were numerous witnesses examined on either side. 
The facts testified to by the witnesses on either side were 
generally consistent with the testimony of other witnesses 
of the same side, but were in sharp conflict with that of the 
other side. . The case turned upon the question whether 
the mare was properly described in the mortgage to Mrs. 
Moore, so that the record of her mortgage would be con- 
structive notice to subsequent purchasers and mortgagees. 
The respect in which it was claimed that the description 
was insufficient for such purpose was as to color, and ac- 
cordingly nearly all the testimony was directed to the color 
of the mare in question at the several stages of existence, 
from foal to that of the trial in the justice court at Battle 
Creek. All of the witnesses who had seen the mare a 
sucking oolt agreed that she was then of a dark brown 
<x>lor. Some who had opportunities of observing testified 
that she ^'shed off'^ in the fall, others of equal opportuni- 
ties testified that she did not '^shed off'' until the next 
spring; but all agreed that she did shed her coat, and when 
new hair came on she developed considerable white hair 
around her eyes, the root of mane and tail, and upon her 
flanks. It may be said to have been the concurrence of 
testimony that each time she shed her coat the new hair 
contained more white than the old, that her color was less 
brown^ and approached nearer that of iron gray, gray 



36 NEBRASKA REPORTS. [Vol. 30 

Farmen' Loan A Trust Co. v. Montf ornery. 

roan, gray brown, or strawberry roan. But nearly or 
quite all of defendants' witnesses who had seen the mare, 
at about the date of Mrs. Moore's mortgage testified that 
she was then " a brown mare," with a few white hairs upon 
different parts of her body. Many of the same witnesses 
also saw her at the time of the trial at the justice's court, 
and testified that she was then a brown mare. 

On the other hand, many of the plaintiff's witnesses also 
saw the mare at and about the date of Mrs. Moore's mort- 
gage, and were equally emphatic in their testimony that she 
was then an "iron gray mare." 

There being, then, such a conflict of evidence upon the 
turning fact of the case, it was peculiarly a proper one for 
a jury to decide, and if it appears that no improper testi- 
mony was permitted to go before them, nor any erroneous 
or improper charge given them,. their verdict must stand. 

Upon the trial defendants called as a witness John Dun- 
can, who testified that he resided in Madison county ; that 
be was acquainted with John Bell in his lifetime, and re- 
sided about eighty rods distant from him ; that he knew 
of Bell's having had in possession a brown mare colt two 
years old at that time; that he first saw the colt in the 
spring of 1885, about the time it was foaled ; that he was 
sure it was foaled about that time ; its color was brown ; 
that he saw the same mare last spring, and then called her 
dark gray, or brownish gray, and saw her during the year 
1886, and would then call her a brown with gray hairs 
around her eyes. Defendants' counsel put the following 
question: "State how this colt was generally described." 
Plaintiff's attorney objected to the question, as incomiie- 
tent; that the mortgage was the best evidence of the de- 
scription and color of the animal, and no foundation laid 
for the inquiry. The objection being overruled, exception 
was taken. The witness answered: "Well, the brown 
colt." The overruling of this objection and the witness's 
answer are assigned for error, and the assignment is well 



Vol. 30] JANUARY TERM, 1890. 37 

Farmen' Lomi A Trust Go. t. Montgomery. 

taken. The witness had already stated what he had called 
tlie color of the colt to be. The inquiry was evidently 
intended to call ont from him what others, the commnnity, 
called the color of the animal ; in other words, to prove the 
general reputation as to her color. This could only be 
done by calling persons of the community at large and 
interrogating them, and a large number was called for that 
purpose. The testimony of each was proper evidence to 
the jury for what it was worth, but it was contrary to the 
rules of evidence to question either one as to what the 
others, or the community, said of the disputed color of the 
mare outside of the court. By its ruling the court per- 
mitted hearsay evidence to go to the jury, which it is not 
necessary to characterize as unjustified and injudicious. 

The defense called Simon Montgomery as a witness. It 
appears from the bill of exceptions that the defendant 
Montgomery was a constable and had taken the animal in 
controversy in foreclosing the Moore mortgage, then owned 
by the defendant Maxwell, and had the mare in possession 
at the commencement of this suit, and hence was made 
joint defendant. The witness testified in reply to the 
question, "State whether, at a short time after the taking 
of the mare in controversy, you had a talk with Thomas 
Bell in which he acknowledged to you that the mare was 
the one described as the small brown mare in the Moore 
mortgage." The question was objected to by pinintiff, as 
incompetent and no foundation laid. And the objection 
being overruled by the court, the witness answered: "I 
had such conversation." 

Q. State what was said ; did he say, at that time, that 
the mare was the one described in the Moore mortgage as 
the small brown mare? 

The last objection was again made by the plaintiff and 
overruled by the court. 

A. Yes, he did. 

Q. State whether or not, a short time prior to this suit, 



38 NEBRASKA REPORTS. [Vol. 30 

Farmers' Loan & Trust Co. t. Montgomery* 

or to the trial, you had a oonversatioii with Thomas Bell 
in which he asked you to release the little brown mare from 
the Moore mortgage, or to have Maxwell release it, and 
that he would supply you with another, a sorrel mare? 

Objection made by plaintiff, as before, and overruled by 
the court. 

A. I had that conversation with Bell; he asked me if 
I could have Maxwell release the mare, and he could get 
another sorrel mare that was described in the same Moore 
mortgage, and which we never got; that if we would re- 
lease this mare that he would go with me where we could 
find that mare. 

The plaintiff moved to strike out and exclude from the 
jury the last answer of the witness, as incompetent, not re- 
sponsive, and improper mode of impeaching a witness, 
which was overruled. 

This evidence was introduced ostensibly to contradict 
the witness, Thomas Bell, who had been called in rebuttal 
and examined by the plaintiff. On his cross-examination 
defendant's counsel asked, " Q^ Did you not tell Simon 
Montgomery, shortly after he took the mare in controversy 
from yourself, that the mare that he took was the one de- 
scribed by John Bell, and known as the small brown 
mare?'' To which was answered, "I did not.'' And the 
following, "Q. Within a month or so prior to the trial, 
did you not have a conversation with Robert Maxwell and 
Simon Montgomery, in which you acknowledged that 
the same mare here in controversy was the one that 
is described in the mortgage of Mrs. Moore as the small 
brown mare?" To which was answered, "No, sir." And 
the following, "Q. Did you not go to Maxwell and Mont- 
gomery and tell them that if they would release this mare 
from the Emma Moore mortgage that you would go and 
get another horse equally as good ? " To which was an- 
swei'ed, "I did not make any such statement." 

Attention is called to the fact that it appears from the 



Vol. 30] JANUARY TERM, 1890. 39 

Farmers' Loan it Trust Cd. v. Montgomery. 

bill of exceptions that the Emma Moore mortgage was, 
executed by John Bell in his lifetime; that he afterwards 
executed a bill of sale to the animal in question, with other 
property, to Thomas Bell, who afterwards executed the 
mortgage under which the plaintiff claims title and pos- 
session ; that, subsequently, during a period of sickness of 
Thomas Bell the property, including the animal in con- 
troversy, was taken from the Bell premises by Mont- 
gomery upon the Emma Moore mortgage, which had pre- 
previously been assigned to Maxwell. 

Had the supposed conversation between the witness 
Bell and Montgomery occurred while Bell was in posses- 
sion of the mortgaged property it is probable that any 
statement made by him as to the identity of the mare in 
question would have been admissible as evidence against 
his mortgagee, the plaintiff. But I deem it clear that any 
statement made by him afler the pro])erty passed from his 
possession was inadmissible, immaterial, and not binding 
as against the plaintiff. Such being the case, while prob- 
ably the defendant might be allowed to ask the questions of 
the witness, he was bound by his answer, and had not the 
right to call another witness to contradict his testimony. 
This point has been often decided in this court, following 
the law as laid down by Greenleaf, sec. 462, p. 561, espe- 
cially in Hooper v. Brovming, 19 Neb., 428; R. V. R. Co. 
V. Linn, 15 Id., 234; George v. State, 16 Id., 321 ; Fred- 
erick V. BaUardy 16 Id., 565, cited by counsel for plaintiff 
in error. The court, therefore, erred in overruling the 
objection of plaintiff to the questions put to the witness 
Montgomery for the purpose of contradicting the witness 
Bell. 

Again, the defendant Maxwell being on the witness 
stand, on behalf of the defense, his counsel put to him 
questions in all respects similar to those put to his co- 
defendant Montgomery, as to the statements of the witness 
Bell. The same objection was made by the plaintiff as 



40 NEBRASKA REPORTS. [Vol. 30 

Ftumen* Loan A Trust Go. t. Montgomoiy. 

made to Montgomery's answers, with the lame ruling by 
the court, and a like answer by the witness as that, of 
Montgomery. This^ as we have seen, was cumulative 
error on the part of the court. 

The plaintiff also assigns for error the giving by the 
court, of its own motion, tlie 6th and 7th paragraphs of 
instructions to the jury. 

'^6. If you find that the property in dispute is the 
same referred to and included in defendant Maxwell's 
mortgage, and the same was in said mortgage described 
sufficiently to enable a person to identify the property from 
such description, or from inquiry to be satisfied by such 
description, or, if you find that the plaintiff knew at the 
time of taking his mortgage that said property was included 
in defendant's mortgage, then you should find for the de- 
fendant. 

'*7. But if you believe from the evidence that said mare 
is not the one described and included in the defendant 
Maxwell's mortgage, or if you find that said property was 
so included but was not sufficiently described to enable 
the plaintiff at the time of taking his said mortgage to 
identify the property from the description of it contained 
in the mortgage, or from inquiries reasonably and naturally 
suggested by such description or mortgage, and that the 
plaintiff, at the time of taking his mortgage on said prop- 
erty, had no knowledge of the fact that defendants' mort- 
gage included said property, then you should find for the 
plaintiff, provided you also find that said property was also 
included in the plaintiff's mortgage." 

The objection by plaintiff to these instructions is that 
they submit the question to the jury whether the plaintiff 
had any actual knowledge, at the time of taking its mort- 
gage on the mare in controversy, that she was included in 
the defendants' (or the Emma Moore) mortgage, and the 
jury were told that if the plaintiff had such knowledge 
they should find for the defendant. There certainly was 



Vol. 30] JANUARY TERM, 1890. 41 

Farmert' Loan & Tnut Co. v. Montgomeiy. 

no evidence before the jury tending, in the least, to prove 
that the plaintiff, or any of its agents, had any personal 
knowledge on the subject 

On the trial the plaintiff called J. E. Simpson, who tes- 
tified that he had transacted the entire business between the 
Farmers' Loan & Trust Company and Thomas Bell, in 
r^ard to the mare in controversy, and that no other agent 
of the company had anything to do with it. 

" Q. State whether you had any knowledge or informa- 
tion that the mare in controversy was included in any 
other mortgage except the Hughes' mortgage." This 
question was objected to by defendants, as incompetent, 
irrelevant, and immaterial, and the objection was sustained 
by the court. The following question was then put to the 
witness: ^^Q. Was there anything ever said in your hear- 
ing about said animal being* included in the Emma Moore 
mortgage, at any time?" This question was also objected 
to by defendants, as before, and the objection sustained 
by the court. 

The objections to this testimony were doubtless sustained 
upon the ground that it was immaterial and unnecessary 
for the plaintiff to disprove knowledge on its' part of the 
facts involved in the question, for the reason that there was 
no evidence tending to prove such knowledge, and upon 
this ground the evidence was rightly rejected. But I think 
it was error on the part of the court, after excluding the 
testimony, to submit to the jury the identical proposition to 
which the overruled evidence was applicable. 

It has been held by this court in the cases cited by coun- 
sel for plaintiff in error, OUy of Crete v. Childa, 11 Neb., 
253; Bowie v. Spaids, 26 Id. 635; Sloan v. Cobum, Id., 
607; also in Dunbier v. Day, 12 Neb., 596; Bradahaw 
V. State^ 17 Id., 147; Railroad Co. v. Fink, 18 Id., 89; 
Ballard v. Statt, 19 Id., 609, and Marion v. State, 20 Id., 
246, that instructions to the jury must be based upon the 
evidence, and that if an instruction assumes the possible 



42 NEBRASKA REPORTS. [Vol. 30 



30 


42 


41 


811 


41 


57a 


ao 


42 


fi2 


319 


&4 


409 



Hale T. Hess. 



existence of a state of facts which the jury have no riglit 
to find, there being no evidence, it is error. I see no escape 
from the application of this rule, so often laid down, to 
the case at bar. 

It is not deemed important to further consider the assign- 
ments of error in the case. 

The judgment of the district court is reversed, and the 
cause remanded for further proceedings. 

Kevebsed and demanded. 

The other judges concur. 



A, J. Hale v. George H. Hess & Co. 
[Filed July 2, 1890.] 

1. Contract: Rrscission: Mbasubs of Damaobb. O. H. H. ft 

Co. contracted to fnrniBh the heating apparatus in complete 
working order, to a specified degree of temperature, for the 
newly erected bailding of A. J. H., for the sum of $450. The 
owner terminated the contract, and refnaed to allow the con- 
tractor to proceed when the furnace and fixtures were ready to 
be put in place. Held, That, under the evidence, the measure of 
damages to the contractor was the profits under the contract 
only. 

2. : Either Party May Rescind: Damages. A party to 

an executory contract has the right to rescind the contract, 
and terminate it whoUy, without the consent of the other party, 
who is in no fault; the first party becoming liable to the other 
in any damages he may have sustained, or any compensation he 
may have earned, by reason of the rescission. 

3. : : : Probable Profits. If a contract for 

particular work is partly performed, and the employer puts an 
end to it without fault of the contracting party, he is liable for 
the profits to be made under the contract as well as for compen- 
sation for work already done. 



Vol. 30] JANUARY TERM, 1890. 43 



Hale T. Hefli. 



Error to the district court for Gage county. Tried 
below before Broady, J. 

A. Hardyy and R. 8. Bibb, for plaintiff in error: 

The contract was executory. (Fletcher v. Peck, 6 Cranch 
[U. S.], 136.) One party to such a contract may rescind 
it without the consent of the other. (Bishop, Contracts [2d 
Ed.], sec. 837; Clark v. Marsiglia, 1 Denio [N. Y.], 317.) 
The latter cannot sue as on a completed contract; his rem- 
edy is in damages for what he has suffered in not being 
permitted to jierform. {BuHer v. Bailer, 77 N. Y., 472.) 
After rescission and notice, the party not in fault must not 
proceed further and cause needless expense. (Bishop, Con- 
tracts, sec. .841 ; DUlon v. Anderson, 43 N. Y., 231 ; 
Strau88 V. Meertief, 64 Ala., 299-307; Chamberlain r. 
Morgan, 68 Pa. St., 168; Addison, Contracts, sees. 588, 
593.) 

TT. 8, 8ummer8, contra: 

The contract was not executory, as the furnace was 
shipped subject to Hale's order, and the title had passed., 
It is certainly the prevailing doctrine that it requires both 
parties to rescind a contract. {Davidson v. Keep, 61 la., 
218; Nebraska City v. Gas Co., 9 Neb., 339; Derkson v. 
Knox, 30 N. W. Rep., 49.) Where it is vendor's inten- 
tion to pass title, and vendee's to accept, the sale is com- 
plete. {SeweU V. Eaton, 6 Wis., 479.) Where vendor takes 
necessary steps to pass title, he may recover contract price. 
{Ganson v. Madigan, 13 Wis., 75; Webber t?. Roddis, 22 
Id., 61 ; Cain v. Weston, 26 Id., 100.) Hess & Co., as 
they were ready to perform, were entitled to recover the 
whole amount agreed upon. (Benjamin, Sales, sec. 784; 
Thompson v. Alger, 12 Met. [Mass.], 428; Thorndike v. 
Locke, 98 Mass., 340; Pearson v. Mason, 120 Id., 53; 
Shawhan v. Van Vest, 15 Am. Law Reg. [N. S.], 153, 160 
and note.) 



44 NEBRASKA REPORTS. [Vol. 30 



Hale V. Heaa. 



Cobb, Ch. J. 

George H. Hess & Co. sued A. J. Hale in the district 
court of Grage county. They alleged in their petition that 
the defendant was indebted to them in the sum of $450, 
with interest at seven per cent per annum from January 1, 
1887, due upon a certain contract attached to their petition 
as an exhibit ; that the plaintiffs shipped the furnace, de- 
scribed in the contract, to the defendant ; that the same was 
delivered in accordance with the terms of the contract, and 
that in all respects the plaintiffs have complied, and are 
ready and willing to comply, with the terms of said con- 
tract ; that the defendant refused to receive the furnace and 
fixtures ^nd refused to allow the plaintiffs to place the same 
in his building according to the terms of the contract; that 
plaintiffs now are, and at all times have been, ready and 
willing to comply with and complete said contract and put 
in and set up said furnace in accordance with the terms of 
the same ; that the defendant refuses to receive said furnace 
and denies these plaintiffs access to his pren^ises, and re- 
fuses to permit them to fulfill their contract in any manner 
whatever ; that by the refusal of defendant to comply with 
the terms of the contract to be by him performed, and to 
permit the plaintiffs to fulfill the terms of the contract to 
be by them performed, they, the plaintiffs, have been dam- 
aged in the sum of $450, no part of which has been paid . 
and they pray judgment in said sum, etc. 

CONTRACT REFERRED TO AS AN EXHIBIT TO PLAINTIFFS' 
PETITION. 

"Beatrice, Neb., August 14, 1886. 
"-4. /. Hale, Esq., Beatrice, Neb,: We will furnish and 
place in your new store building one No. 80 Hess pure air 
steel furnace, together with five best- black Japan registers, 
four conuectings, with partition stacks and connecting pipes 
through the furnace, according to the plans and specifica- 



Vol. 30] JANUARY TERM, 1890. 45 



Hale T. Hen. 



tions of your architect, for the sum of four hundred and 
fifty dollars. The owner to furnish foundation and the 
necessary carpenter and brick work and provide a chimney 
with a good draft and proper ventilation for the building ; 
we to supply such register faces for ventilation as are 
needed. The storeroom to have one large 30x30 register 
&ce and frame placed directly above furnace in floor, and 
each pipe to have damper, each pipe connected with regis- 
ter, and partition stacks to be of sufficient size to thoroughly 
warm rooms needed by same in most severe winter weather. 
It is understood that the work shall be of the best ma- 
terial and workmanship and fully up to our standard 
of custom jobs. As the success of heating depends so 
much upon the proper size and location of registers, pipes, 
furnaces, etc., it is understood that we are to have full 
direction and control of the work to be done in connection 
with our contract, and to have the right to supply another 
furnace of our own make, or one of larger size, at our 
own expense, or to make other changes as shall ensure suc- 
cessful heating. We therefore agree to heat the rooms 
connected with the furnace from 65^ to 70^ above in ten 
below zero weather when, the house is finished and made 
reasonably tight. Complaints, if any, to be made within 
one year. It is understood that the furnace shall be 
operated and managed according to our printed directions. 

"Geo. H. Hess & Co., 
^ Per I. F. Searls. 

" I hereby accept the above proposition and agree to 
pay for the same when the work is completed according to 
contract. A. J. Halb.^' 

The defendant answered, denying that he was indebted 
to the plaintiffs as alleged in their said petition, in the sum 
of $450, or to any amount whatever. He also denied 
that plaintiffs delivered to him the furnace described in the 
petition, or that he, the defendant, ever accepted said fur- 



46 NEBRASKA REPORTS. [Vol. 30 



Hale T. Hess. 



nacc The defendant admitted that he signed the contract 
set up in the petition, but for a second defense he avers 
that the plaintiffs, contrary to the agreement and the con- 
tract, shipped said furnace direct to the said defendant, and 
defendant refused to take the same from the depot, or to 
become liable for the same, for that he was not to accept 
nor become liable for th6 same until he should have suita- 
ble opportunity to try the same, and ascertain whether or 
not it was as represented to be by the plaintiffs. And for 
a third defense the defendant averred that the plaintiffs 
have failed and neglected to perform the conditions of said 
contract by them to be kept and performed, and the de- 
fendant further denied each and every allegation of said 
petition not in said answer admitted. 

The plaintiffs' reply was a general denial of every 
allegation of new matter conUiined in the answer. 

There was a trial to a jury, with a verdict for the plaint- 
iffs in the sum of $440. The defendant's motion for a 
new trial being overruled, judgment was rendered for the 
plaintiffs, and the cause is brought to this court on error. 
So many of the assignments of error as are deemed im- 
portant will be examined in their order. 

At the term of court at which the cause was tried, and 
before the same was called for trial, defendant's counsel 
applied to the court for a continuance of the cause to the 
next term, on the ground of the absence of the defendant 
from the state. Said application was based upon the affi- 
davit of R. S. Bibb, one of the attorneys for the defend- 
ant, the substance of which affidavit was that before the 
commencement of said term W. S. Summers, one of the 
attorneys for the plaintiffs, came to said affiant and asked 
him if he would agree to continue the cause over said term 
of court; that affiant stated that he would; whereupon Mr. 
Summers stated that he would write to his clients ; that 
thereupon affiant stated to A. J. Hale, defendant, that he 
had made said arrangement, and upon such statement Mr. 



Vol. 30] JANUARY TERM, 1890. 47 



Hftle T. HcsB. 



Hale left Gage county to go to Michigan upon a visit with 
his wife. That it was affiant's understanding that said 
cause would not be tried at said term of court, and that he 
was so led to believe from the statement of Mr. Summers, 
who came to affiant's office in regard to the matter; that it 
would be unsafe to proceed to trial without the attendance 
of the defendant, etc. The application was denied, which 
is assigned for error. 

• In the case of Ingalls v. Nobles, 14 Neb., 272, the court 
laid down the law of continuance as follows. I quote 
from the syllabus^ 

^' Ordinarily, the decision of motions to continue causes 
is left to the discretion of the particular court to which 
they are addressed. It is only where such discretion has 
evidently been exercised unwisely or abused, to the preju- 
dice of a party, that a reviewing court will interfere. 

^'2. The statement of facts in an affidavit for a contin- 
uance should be specific of acts done, or of excuses for 
not doing them, and given with such particularity that an 
indictment for perjury would lie in case of its being false." 

Measured by the rule laid down in the second clause 
of the syllabus, the affidavit falls far short, but were the 
facts stated with never so great particularity it would have 
presented a case for the discretionary actions of the court. 
Moreover, it is apparent that, taking the most favorable 
view of the facts stated in the affidavit, they did not 
amount to more than a verbal stipulation made by counsel 
out of court; and I do not remember a case in which a 
reviewing court has held it error in a trial court to refuse 
to enforce a verbal stipulation made out of court. 

Upon the trial the plaintiffs offered in evidence the con- 
tract or proposal and acceptance, attached as an exhibit to the 
petition. They introduced John A. Forbes as a witness, 
who testified that he was acquainted with the parties ; that 
he was present at the signing of the contract; that he was 
acquainted with the building '^ into which the furnace and 



48 NEBRASKA REPORTS. [Vol. 30 



Hale T. Heat. 



fixtures were to go;" that he knew Mr. Colby, who was 
superintendent of the building, and who had '^ notified us 
that the building was ready, and to hurry up ; or, rather, 
that they were anxious for us to have the furnace here; '* 
that Armaeost and witness were, at that time, agents for 
the plaintiils ; that defendant had told the witness at differ- 
ent times that to do anything that Colby ordered would be 
satisfactory, that he had left everything with Colby as to 
the building and furnace. Colby told witness that he was 
ready for the furnace, and was anxious to have it here and 
put in; that was some time before October 1, 1886, be- 
tween the date of the contract and October following. It 
was before the furnace was received here, but witness did 
not know how long the furnace was on the road. 

Plaintiffs here offered in evidence a letter, which was re- 
ceived and marked Exhibit B. 

" Beatrice, Neb., Oct. 20, 1886. 
"G^o. H. Hess & Co. : Dear Sir — The furnace has ar- 
rived at Beatrice for A. J. Hale's building. Send on your 
man to put it in as agreed. 

" Y's respectf^y, J. S. Colby, . 



The witness Forbes, continuing his testimony, stated 
that soon after the date of the letter he had a conversation 
with Mr. Hale about the furnace, and about putting it in ; 
that Hale stated that he bought the furnace and presumed 
it was all right ; that he would admit that Gibbs was here 
as an expert to put it in, but inasmuch as they had sent 
him a bill of the furnace, which he construed to be a dun 
for the price of it, and had asked him to pay the freight on 
it, he would not receive it, and would not have it put up 
in his building; that he was aware that he was good for 
it, but he would not pay it until they got a judgment. 
This was in the presence of Gibbs, the expert, who had 
been sent on to put up the furnace. 

It further appears from the testimony of the witness, 



Vol. 30] JANUARY TERM, 1890. 49 



Hale V. Hest. 



that the plaintiffs did not finally insist upon his paying 
the freight, but claim that that demand was originally , 
made merely as a business memorandum. Witness further 
stated that the furnace was offered to be put up in defend- 
ant's building, but that he objected, and would not have it. 

Plaintiffs also called F. M. Gibbs as a witness, who 
testified that he was a salesman and furnace setter in the 
employ of plaintiffs; that plaintiffs shipped the furnace of 
the size and number called for in the contract, marked Ex- 
hibit A, to Mr. Hale, the defendant, at Beatrice, Nebraska. 
It arrived in this depot, here, some few days before No- 
vember 5, 1886 ; that witness was there in the employ of 
plaintiffs for the purpose of putting up the furnace ; that 
he hired a dray, took the furnace up to the building, and 
defendant refused to have it put in. Witness inquired his 
reason for refusing ; if the contract was not straight, and 
if he had not contracted for it, and he said he had, and that 
it was his signature shown him on the contract, which wit- 
ness had, but that he was indignant over the matter of 
sending out the bill and charges for freight, and would not 
pay for the furnace nor allow it to be put up in his build- 
ing. Witness told him it was customary, to a great ex- 
tent, when shipping goods, to send the party consigned to, 
the bill of freight, to be deducted from the price. He 
replied " that might be our way and everybody else's, but 
he wouldn't do it." Witness told him that plaintiffs had 
already paid the freight, and that the statement might be 
torn up if he was not pleased with it ; that there was no 
money to be paid until the furnace was placed, according 
to contract; that the plaintiff did not exi^ect a dollar from 
it ; that it was customary, if he paid the freight, to deduct 
it from the bill, as we had done with many customers. 

The witness was asked what expense the plaintiffs were 

put to and answered, there is cartage of No. 80 casting, 

on boai"d the cars; No. 80 furnace, $125; one register-face 

border, $5; four 10x14 registers and borders, |9; one 

4 



50 NEBRASKA REPORTS. [Vou 30 



Hale V. HeBi. 



6x14 face, four 4| face, $1 ; paid Searles the cost of sell- 
ing, $45 ; freight to Beatrice, $28.65 ; two cartages, $4 ; 
that had witness set the furnace up, would have cost $50 
more. 

The witness Forbes was recalled by plaintiffs and testi- 
fied that it was the understanding between Searles and 
Hale that the furnace should be shipped directly to Hale. 
He also stated that ^Hhat was the agreement/' but did not 
state when, or by whom, the agreement was made. 

The plaintiffs also introduced the deposition of John F. 
Searles, from which it appeared that he was agent for the 
plaintiffs from March 1, 1885, to February 1, 1887, and 
that on August 14, 1886, the deponent sold a furnace for 
the plaintiffs to the defendant, to be used in a new store 
building to be erected, not then completed ; that the price 
agreed upon was $450, as per copy of the contract attached 
to the deposition, and the same as the original herein 
set forth. The deponent stated that the furnace was at 
Beatrice as soon as the defendant was ready for it ; that 
deponent sent a man from Lincoln to put it up, and he 
telegraphed back that the defendant would not receive it ; 
the man was F. M. Gibbs. On receipt of the telegram 
deponent went to Beatrice and found the building not com- 
pleted, only the first rough flooring being laid on the ground 
floor ; that deponent took the furnace and fixtures to the 
building and left them on the back porch, except the regis- 
ters, which he placed on the inside of the building; that he 
went to the house of defendant to find out if he would 
allow him to put the furnace in, and asked the defendant if 
he had changed his mind as to having the furnace put in? 
He replied that he had not, and that the furnace was never 
going in there. 

The court, of its own motion, instructed the jury as fol- 
lows, which is assigned for error : 

"I. The plaintiffs bring their action on the contract 
offered in evidence^ and allege that they complied with their 



Vol. 30] JANUARY TERM, 1890. 61 



Hale T. Hen. 



part of the contract until defendant refused to permit them 
to furtlier comply tlierewith, and that they were ready and 
willing to proceed in compliance with the contract to its 
completion^ but that defendant wrongfully prevented their 
further compliance with the contract; that defendant re- 
fused to comply with his i)art of the contract; that plaint- 
iffs are damaged by defendant's breach of the contract. The 
defendant in his answer denies all the averments of plaint- 
iffs' })etition, except the making of the contract attached 
thereto. 

"II. The burden of the proof is upon the plaintiffs by 
a pi-eponderance of the evidence. If they have proved the 
material averments of their petition by a preponderance of 
the evidence, they are entitled to recover, but unless they 
have done so, the defendant is entitled to a verdict. 

'^.III. If the plaintiffs demanded of defendant payment 
of the freight on the furnace, that was something defend- 
ant was not obliged, by the contract, to do, and he had a 
right to refuse to do so, but that would not give him the 
right to refuse to permit the plaintiffs to proceed with a 
compliance 6n their part of the contract, nor would it give 
him a right to refuse to comply with his part of the con- 
tract. 

" IV. The contract provided that the plaintiffs should 
place the furnace in defendant's storeroom. If defend- 
ant wrongfully prevented plaintiffs from putting the furnace 
in defendant's storeroom, and plaintiffs' men trying to do 
so, and actually did, except as wrongfully prevented by 
the defendant, comply with the contract, plaintiff had the 
right to take the furnace as near to the place as defendant 
would permit, in which case the defendant would not have 
the right to object because it was not taken nearer, nor be- 
cause the plaintiffs did not take it anywhere else, provided 
the plaintiffs exercised such care and diligence in the hand- 
ling and leaving of the property, for its preservation, as a 
person of ordinary care and prudence would do under like 



52 NEBRASKA REPORTS. [Vol. 30 



Hale ▼. Hess. 



circumstances. It is proper, however, to call your attention 
to tlie fact that the answer malvcs no claim of set-off or 
counter-claim on account of plaintiffs' negligence or mis 
conduct in handling the furnace. This matter then arises 
only so far as it is involved in the question as to whether 
plaintiffs are guilty of any breach of their contract. 

"V. If the plaintiffs recover, they should recover the 
amount of the contract price less the reasonable cost of 
doing the part unperformed by them at the time they were 
prevented from proceeding further under the contract, with 
interest from that time at seven per cent per annum. 

" VI. There is no question of rescission of contract raised 
in the pleadings. A contract cannot be rescinded by one 
party only. It takes two to make a contract, and two to 
rescind the same. A rescinder amounts to a new contract, 
that the former oontraot shall no longer be in force. One 
can make a breach of contract, but it takes both the parties 
to make a rescission of the contract. Neither the petition nor 
the answer alleges the rescission of the contract. The lead- 
ing questions involved are whether the plaintiffs have com- 
plied with the obligations of the contract on their part to 
be performed, so far as the defendant would permit, and 
whether the defendant has made any breach of the contract 
on his part to be performed/' 

The following instructions were asked by the defendant 
and refused by the court, which is also assigned for error: 

"I. The court instructs the jury that, if they believe 
from the evidence that any witness has willfully sworn 
falsely respecting any material matter in the case, then the 
jury may disregard the testimony of such witness, except 
as to matters wherein he is corroborated by other witnesses 
or testimony. 

" II. That under the proofs and pleadings of this action 
the plaintiffs cannot recover, and that consequently you 
most find for the defendant. 

"III. That when notice of the rescinding of a contract 



Vol. 30] JANUARY TERM, 1890. 63 



Hale T. Hess. 



18 given to siicli an agent or employe of one of the parties 
as 18 authorized to stand in his place and represent him in 
his business^ or in the- particular branch of it connected 
with the subject-matter of the contract, it is sufficient, 
though such notice is not brought home to the party him- 
self 

" IV. That after a contract has been entered into between 
two parties, and notice is given by one of them that the 
contract is rescinded on his part, he is liable for such dam- 
ages and loss only as the other party has suffered by reason 
of such rescinding of the contract, and it is the duty of such 
other party, upon receiving such notice, to save the former, 
so far as it is in his power, all further damages, though the 
performance of this duty may call for affirmative action on 
his part. 

"V. That if they believe that if the defendant noti- 
fied the plaintiffs, or their authorized agents, before any at- 
tempt to deliver the furnace in question, or, at such attempt, 
that the defendant would not take and receive such furnace, 
and the plaintiffs thereafter, and without any acceptance of 
said furnace by defendant, left the same in the alley and 
allowed it to be injured by exposure, and its value dete- 
riorated or destroyed, then the plaintiffs cannot recover for 
tiie contract price. 

"VI. That notwithstanding they may believe that the 
plaintiffs ship{)ed the furnace in question, under the con- 
tract, in evidence, in good faith, to perform their part, and 
still if they further find from the tOv«liniony that the de- 
fendant refused to take and accept the furnace, and re- 
fused to allow it to be placed in his building, and notified 
plaintiffs that he would not pay for it until the plaintiffs 
got a judgment therefor, this conduct on the part of the 
defendant was a breach of his contract, and notwithstand- 
ing this the plaintiffs could not then dump said furnace in 
the alley and allow the same to become worthless and then 
sue for the contract price thereof. They should have 



54 NEBRASKA REPORTS. [Vol. 30 



Hale T. Hesa. 



stopped at once when notified, and they canViot recover for 
any expenses incurred or damages sustained after such 
notice. 

"VII. That if they find from the evidenqe that the de- 
fendant committed a breach of the contract by refusing to 
accept the property, then the defendant is not liable for the 
contract price of the furnace in this action. 

"VIII. If the defendant refused to comply with his 
contract, by refusing to let the plaintiffs put the furnace in 
his building, and by refusing to go on further with his 
contract, and this while the furnace was in plaintiffs' pos- 
session, then it was the duty of the plaintiffs to take care 
of the furnace and not suffer it to be lost or to become 
worthless through their acts, and if they did allow it to 
become of little or no value of their own accord, then they 
cannot recover the purchase price thereof in this action." 

There are several important questions presented by this 
record. The case is not, as I understand it, an action for 
the sale and delivery of goods; neither is it for the manu - 
facture of machinery by the plaintiffs for the defendant^ 
but is rather upon a special contract to furnish and set up, 
in the building of the defendant, a furnace, with registers 
and fixtures for the purpose of heating the store-room and 
building. 

It does not appear from the terms of the contract, or 
from the evidence, that this furnace and its fixtures were 
agreed to be, or were, in fact, manufactured by the plaint- 
iffs specially for the defendant, but rather that the articles 
were on hand, in store, and in possession of plaintiffs at 
Chicago, and were agreed to be transported by them to de- 
fendant's building at Beatrice, Neb., there to be set up in 
the building, put in successful o))eration and made to heat 
the building, under certain conditions, to a stated degree of 
atmosphere. It is agreed that the plaintiffs performed 
their part of the contract up to a certain point, that they 
had the component parts of a furnace and heating appara- 



Vol. 30] JANUARY TERM, 1890. 55 



Hale T. Hess. 



tus, answering the general description of that they con- 
tracted to furnish, at tlie railroad depot at Beatrice, when 
the defendant sought to put an end to the contract and its 
further performance by peremptorily refusing to accept 
the furnace or to allow the plaintiffs to set it up in his 
building. 

The questions upon which the case, as now presented, 
turns, as I view it, are: What were the rights of both 
parties under the circumstances? Could the defendant re- 
scind the contract, refuse to go further under it, and, if so, 
what was the remedy and measure of damages to the 
plaintiffs on that account? Could they treat the furnace 
and fixtures as the property of defendant, and recover of 
him the contract price, less the cost of setting the same up, 
or must they recover, if at all, upon the breach of con- 
tract? 

The court, in the instructions complained of as error, 
took the former views. It charged the jury in the sixth 
instruction that there was no question of the rescission of 
the contract raised in the pleadings, and stated to the jury 
" that a contract cannot be rescinded by one party only ; 
that it takes two to make a contract, and two to rescind a 
contract; that a rescinder amounts to a new contract that 
the former shall no longer be enforced ; that one can make 
a breach of a contract, but it takes both the contracting 
parties to make a rescission of the contract.^' 

While there can be no doubt that the doctrine of this 
instruction is supported by many authorities and decisions, 
upon a careful review of all the authorities cited I am not 
able to agree with the court in its application to the case at 
bar. It is true that the defendant in his answer does not, 
in terms, allege that he rescinded the contract, but he does 
allege that the plaintiffs, contrary to the agreement of the 
parties, shipped the furnace direct to defendant, and that 
defendant refused to take the same from the depot, and be- 
came liable for it until he should have an opportunity to 



56 NEBRASKA REPORTS. [Vot,. 30 



Hale y. Hesa. 



tr}' it and see that it-was suitable as agreed upon by the 
plaintiffs. The plaintiffs in their evidence proved that 
while the furnace and fixtures were at the railroad depot 
defendant declared to their agents that, for the reasons im- 
perfectly set out in his answer, he would not accept the 
furnace, nor permit it to be set up in his building. This, 
I hold, in law, amounted to a rescission of the contract, if 
it be competent, as it appears to be, for one party alone to 
rescind a contract. 

Bishop, in his commentary on the law of contracts, sec. 
837, says that '^ the proposition is sound in principle and 
sufficiently supported by authority, though more or less 
may be found in the books against it^ that one party alone, 
with no consent from the other, who is in no fault, has, at 
law, the power — not to be exercised without liability for 
damages, but still the power — to rescind any executory con- 
tract. If this were not so, one might be ruined by an 
undertaking the carrying out of which a change in cir- 
cumstances rendered highly inexpedient or practically im- 
possible." This authority is cited by plaintiff iu error. 
It commends itself to my judgment, is supported by the 
reasoning of the author, which follows the text cited, with 
the reference to many authorities, and is believed to be the 
true doctrine of the modern cases. 

If the power to rescind exists in a party to a contract as 
a matter of law — bearing in mind that no rescission is 
claimed to be effectual to deprive another party to the con- 
tract of any right or compeii.sation he may have earned by 
virtue of it, or of any damages to which he may be en- 
titled by reason of the breach of the contract by the 
rescinder, if this right is one of law — then it would not be 
incumbent on the party exercising it to give any reason or 
excuse therefor. But, were reasons to be given, it does 
not appear that the defendant was entirely without one. 
The plaintiffs, as we have seen, had agreed, for a consider- 
ation in money, to furnish and place in successful opera- 



Vou 30] JANUARY TERM, 1890. 57 



Hale T. Hen. 



tion the furnace and heating apparatus for defendant's 
buifding, reserving to themselves the right to supply an- 
other of their own make, or one of larger size, at their own 
expense, or to make other changes to insure successful 
heating, agreeing to heat the rooms in connection with the 
furnace from sixty-five to seventy degrees above in an 
atmosphere of ten degrees below zero. As appears from 
the bill of exceptions, after entering into this contract, and 
probably a half month before the arrival of the furnace 
at Beatrice, tlie plaiutilTs) sent to the defendant the follow- 
ing bill payable: 

"Chicago, October 14, 1886. 
« Bought of Geo, H. Hess & Co. 

" Mr. a. J. Hale, Beatrice, Neb. 

" 1 No. 80 Furnace, with Reg. and connections, as per 
contract, $400. 

"All goods are shipped at * Released rates of freight' at 
owner's risk of breakage, unless otherwise ordered. 

" Terms. — All accounts subject to sight draft at matu- 
rity." 

The furnace and fixtures were shipped to the defendant 
at his expense for freiglit luid railroad charges. This was 
at least an apparent departure from ordinary fair dealing 
by the plaintiffs, which challenged the suspicions of the de- 
fendant, as it was well calculated to do, that the plaintiffs 
were seeking an advantage over him. And where no legal 
justification is required, it would seem to have been a moral 
justification of the defendant in entering upon a prompt 
rescission of the contract, as he did, in such manner that 
while he subjected himself to compensation and damages 
to the plaintiffs for all that they had performed under their 
contract, he was rid of all further dealings and complica- 
tions with them. 

By the fifth instruction the court charged the jury that 
if the plaintiffs recover, they should recover the amount 



58 NEBRASKA REPORTS. [Vol. 30 



Hale y. Hess. 



of the contract price, less the reasonable costs of doing the 
part unperformed, at the time they were i)reventcd from 
proceeding further under the contract, with interest from 
that time at seven per cent. 

I take occasion to remark that the law of tla mages has 
been for a considerable period in the course of growth 
and expansion ; its earlier rules of application have been 
subjected to frequent judicial review with the advantage of 
the experience of the past, and the suggestive aid of new 
interests demanding consideration, and new forms of injury 
seeking remedy and redress. Sutherland in a late work on 
Damages, vol. 1, page 132, thus states the condition of the 
law in such cases : 

" If a contract for particular work is partly performed 
and the employer then puts an end to the undertaking, re- 
covery may be had against him, not only for the profits 
the contractor could have made by performing the contract, 
but compensation also for so much as he has done towards 
performance. Preparations for performance, which were 
a necessary preliminary to performance, or within the con- 
templation of the parties as necessary, in the particular 
case, rest upon the same principle." 

To this principle the author cites numerous cases, and 
among others, that of Derby v, Johnsony 21 Vt, 17. Ac- 
cording to the syllabus in the case the parties entenxl into 
a contract in writing, by which the plaintiffs engaged 
to do all the stone work, blasting, and masonry upon 
three miles of railroad at certain specified prices by the 
cubic yard. The plaintiffs entered upon the perform- 
ance of the contract, and, while so engaged, the defendants 
gave them an unconditional direction to leave the work, 
and to do nothing more under the contract; and the plaint* 
iffs left immediately. It was held that this could not be 
treated as a mutual relinquishment of the contract, but as 
an exercise of a right, which by law belonged to the defend- 
ants, to put an end to the contract, leaving themselves 



Vol. 30] JANUARY TERM, 1890. 59 



Hale T. Hen. 



liable, of course, for all oonsequences resalting from such 
breach of the contract upon their part. 

In such cases the plaintiffs may elect to treat the con- 
tract as still existing and binding upon the defendants, and 
may recover for the work performed at the contract prices, 
and for all damages incurred in consequence of the discon- 
tinuance of the contract by the defendants. 

Also the case of Banforth v. Walker, 37 Vt., 239, 
where the plaintiffs contracted to deliver the defendant a 
quantity of potatoes during the winter, as called for by 
defendant. Before they were all purchased by plaintiffs 
the defendant notified them by letter not to purchase any 
more until they should hear from him, which order was 
not subsequently countermanded ; and it was held that the 
letter was not a rescinding of the contract, but a refusal to 
receive any more potatoes upon it than the plaintiffs liad on 
hand, or had already purchased. It was also held that in 
executory contracts a party has the power to stop the per- 
formance on the other side, by an e>:plicit order to that 
effect, by subjecting himself to such damages as will com- 
pensate the other party for being stopped in the perform- 
ance on his part, at that point or stage in the execution of 
the contract. 

And in Friedlander v. Pugh, 43 Miss., Ill, the court, 
in the syllabus, state that it i» by no means a sound doc- 
trine of law, or of morals, that when one party to a con- 
tract is hindered from full performance by the other, the 
one obstructing can, in all cases, be held liable in damages 
to the extent of the entire price agreed upon for full per- 
formance. In such case the true rule, resting upon the 
best authority and the soundest reasoning, is that the just 
claims of the party so hindered are satisfied when he is 
r€com|x^nsed for the part performed, and for his actual loss 
as to the part unperformed. 

Also in the case of Pohley r. Anderson^ 7 W. Va., 
202, a case of interest to lawyers, as it concerns attor- 



60 jS'ElillASKA REPOraS, [Voi- 30 



Hale V. lies*. 



neys' fees. Polsloy & Son entered into a contract with 
Anderson tliat they, Avith W. H. Tomlinson, Esq., all at- 
torneys at law, would prosecute a certain suit in chancery 
pending in the circuit court, wherein defendant was com- 
plainant and the heirs at law of John Andei'son, deceased, 
were defendants, for the enforcement of specific performance 
of a contract for the conveyance of land between John 
Anderson, in his lifetime, and the defendant. The defend- 
ant agreed that the plaintiff's and Tomlinson should be paid 
for their legal services JlOO each, and if the result was in 
favor of defendant, $300 each ; in al I $600. The plaintiffs 
and Tomlinson prosecuted the suit and fulfilled their part 
of the contract in good faith. The defendant, of his own 
motion, caused the suit to be dismissed, without the consent 
of his counsel, and thereby hindered and prevented the 
further prosecution of it. The court charged the jury, 
in effect, that if they were satisfied, from the evidence, that 
the facts were as stated in the plaintiffs' declaration they 
should find for the plaintiffs in the sum of $300, the 
amount of the contract. The supreme court, by a lengthy 
opinion referring to many of the cases cited by our author 
Sutherland, reached the conclusion that there had been a 
misdirection of the jury in the court below, and reversed 
the judgment. 

We have seen that, in our view, the defendant had the 
right to rescind, or to stop the further performance of the 
contract, and that he did so while the material of the fur- 
nace and accessories were still at the railroad depot, and 
that he refused to accept any part of the same. And while 
it will not be denied that the plaintiffs did what they could 
to deliver it, yet, as he refused to receive it, and so notified 
the plaintiffs before it was taken from the depot, he never 
did receive it, in law or in fact. As has been stated, the 
defendant, by pursuing this course, assumed the burden of 
paying all such sums as the plaintiffs had earned, and all 
damages which they had sustained in the execution of the 
contract, and consequent of its rescission. 



Vou 30] JANUARY TERM, 1890. 61 



Hale y. Hen. 



We have also stated that in such a case the party hin- 
dered from going on with the contract was entitled to the 
profits which he would have realized had he been suiTered 
to complete it. That is an important element in this in- 
stanoe, as it appears from the bill of exceptions that the 
profits under the plaintiffs' proposal were as more than two 
to one to the value of the articles to be furnished, or of the 
services to be rendered. The plaintiffs' witnesses testified 
that the furnace and all the accessories placed upon the cars 
at Chicago were worth, according to the plaintiffs' bill of 
prices, $140. The contract price for the furnace complete 
and in successful operation, was $450. Fifty dollars was 
the amount testified toby the plaintiffs' witness Gibbs as the 
pay he was to have received for setting up the furnace. 
Four hundred dollars may be then assumed as the price of 
the furnace aud fixtures at the railroad depot. From this 
deduct the cost on cars at Chicago, $140, and $260 is the 
remainder, which, taking the furnace at Beatrice, where it 
was to be delivered, and accounting nothing '^ for released 
rates of freight on it from Chicago," is wholly profits on 
the contract. This, I think, is all that the plaintiffs are 
entitled to recover of the defendant in the transaction ; and 
while their petition but imperfectly states such cause of 
action, yet, as the defendant's answer is likewise inexact, I 
think the plaintiffs are entitled to their option to accept 
that amount to avoid further litigation. 

The 1st and 2d instructions asked by defendant were, I 
think, properly refused; the evidence not justifying the 
conrt in giving them. The other instructions asked for by 
defendant fairly present the law, as I understand it^ and 
should have been given by the court. 

The judgment of the district court will be reversed, and 
the cause remanded for further proceedings, unless the de- 
fendants in error shall, within sixty days from the date of 
the entry of this opinion, file in this court a remittitur in 
the sum of $180, as of the date of the judgment of the 



62 NEBRASKA REPORTS. [Vol. 30 



McPhee v. Kay. 



district court, but in case such remittitur be filed within 
the time stated, the judgment will stand 

Affirmed. 



The other judges concur. 



McPhee & McGinty, appellants, v. Z. L. Kay, 
appellee. 

[Filed July 2, 1890.] 

1. Mechanics' Liens: Failubb to File Account. In prooeed- 

iDgs to enforce a mechanic's lien by plaintiffs, aa sabcon tractors, 
for material famished to the contractor witbont authoritj of 
defendant, as the owner, no accoant of which under oath was 
made and filed with the register of deeds, under sec. 3, art. 2, 
of chap. 54, Comp. Stits., witbin sixty days after famishing 
tbe material, heldy not good. 

2. : Discharge: The Evidence examined, and hdd^ auffi- 

cient to sustain the judgment below- discharging tbe lien. 

Appeal from the district court for Red Willow county. 
Heard below before Cochran J. 

Hv^h W. Cole, for appellants. 

W. S. Morlan, contrcu 

Cobb, Ch. J. 

This action was brought in the district court of Red 
Willow county by McPhee & McGinty, plaintiffs, against 
Z. L. Kay, defendant. The cause of action, as tet out in 
the petition, is, that on or about the 18th day of October, 
1886, the plaintiffs entered into an oral contract with the 
defendant, by and through the defendant's agent, William 



Vol. 30] JANUARY TERM, 1890. 63 



McPhee ▼. Kay. 



Lang, to furnish the defendant certain building and finish- 
ing material^ therein particularly set out and described, at 
the agreed price of $195, for and in the construction of a 
dwelling house on lots 7 and 8, in block 2, in the original 
town of McCook, Red Willow county, in this state. 

2. That in pursuance of said contract the plaintiffs fur- 
nished said material to the defendant for the erection of 
said house on the 18th day of October, 1886, for the said 
sum of $195. 

3. That the defendant, at the time when, etc., was the 
owner of said lots 7 and 8 by virtue of a contract of pur- 
chase, etc. 

4. That on the Ist day of February, 1887, and within 
four months of the time of furnishing said material, the 
plaintiffs made an account in writing, of the items of such 
material furnished defendant under said contract, and, after 
making oath thereto as required by law, filed the same in 
the office of the clerk of Red Willow county, Nebraska, 
on the 7th day of February, 1887, and within four months 
of the time of furnishing said materials, claiming a me- 
chanic's lien therefor upon said lots and the building 
thereon. 

5. That the su m of $1 95 and interest from the 1 8th day of 
October, 1886, now remains due and unpaid on said ac- 
count, with prayer for a judgment for said sum and inter- 
est, together with costs of suit, and that said premises may 
be sold and the proceeds of such sale applied to the pay- 
ment of such judgment, interest, and costs, and for general 
relief. 

The answer of the defendant consisted of a general 
denial. 

There was a trial to the court, a jury being waived, with 
a finding and judgment for the defendant. 

The plaintiff's motion for a new trial was overruled and 
the cause brought to this court on appeal by the plaintiffs. 

It appears from the evidence, as contained in the bill of 



64 NEBRASKA REPORTS. [Vol. 30 



McPbee t. Kay. 



exoeptions^ that the plaintiffs reside in the city of Denver, 
Colorado, and were dealers in lumber and manufacturers 
and dealers in building material; the defendant resides 
at McCook, Red Willow county, in this state ; also, that 
William Lang resides at Denver and is an architect. It 
further appears that in the summer and fall of 1886 the 
defendant erected a dwelling house at McCook ; that pre- 
paratory to building, he, through correspondence, employed 
said William Lang as an architect to draw an elevation and 
prepare a plan and specifications of his said building; 
that pursuant to such employment Lang drew such eleva- 
tion and prepared such plans and specifications, which 
were sent to defendant, at McCook, for his inspection, and 
finally approved and pjiid for by him. It also appears 
that the defendant employed and entered into a con- 
tract with one John F, Collins, of McCook, a carpenter 
and contractor, to furnish all materials and construct the 
said house complete, according to the plans and specifica- 
tions furnished by the said architect. Collins entered upon 
the oonstrnction of the house, and pursued it to some state 
of completion, but to what extent does not appear, when 
he abandoned it, and the defendant purchased some mate- 
rials for its completion and finished it himself. This ap- 
pears from the testimony of the defendant, and, although 
he was cross-examined by plaintiffs' counsel, he was not 
examined, nor did he state, nor does it otherwise appear, 
what material he purchased, nor of whom. I quote his 
entire cross-examination : 

Q. This woodwork and materials furnished went into 
the bnildiug, didn't they ? 

A. I suppose they did. 

It also appears that the defendant overpaid Collins, the 

contractor, for the material furnished and work done by 

him, to a considerable amount. 

•The deposition of William Lang, the architect above 

' referred to, taken at Denver, was offered by the plaintiff, 



Vol. 30] JANUARY TERM, 1890. 66 



McPhee v. Kay, 



and read on the trial. After stating his residence and 
business, he stated that he was acquainted with tlie plaint- 
iffs, and also acquainted with the defendant through cor- 
respondence with him. I quote: 

Q. Have you had any business transactions in the past 
three years with the defendant, and, if so, what was the 
nature of that transaction? 

A. I have ; he employed me to make plans for a dwell- 
ing house he was building in McCook, Nebraska. 

Q,. Who hired you and paid you for your services in 
that transaction ? 

A. Z. L. Kay, the defendant in this case. 

Q. During the time of that transacting of said business 
did you have any dealings with the plaintifis with respect 
to the same, and, if so, state what you did in that r^ard 
and for whom? 

A. I did ; the defendant in this case wrote me request- 
ing that I should get him prices on certain woodwork to 
be u^ed in the construction of his house, such as glass, 
brackets for gables, porches, etc. I submitted the list sent 
me to Billings & Stewart and plaintiffs in this case, and 
received bids from them, which I sent to the defendant. 
Shortly after that — probably a week or ten days — I re- 
ceived a letter from them, saying, we want you to ship us 
those goods. I went to Mr. McPhee, who refused to ship 
the goods to Collins, but did ship them to Dr. Kay, the 
defendant, npou the strength of the letter which I had 
received from Kay, showing my authority to act in the 
premises. 

Q. I will ask yon whether or not these are the letters- 
referi-ed to? (Showing witness two letters.) 

A.' Yes, sir ; except the Collins letter, which I cannot 
find. 

Q. Did you receive these letters during the time referred 
to? 

A. Yes, sir* 
5 



66 NEBRASKA REPORTS. [Vol. 30 



MoPbeo T. Kay. 



(Letters attached to deposition, marked Exhibits A and 

B.) 

Q. Did you, at any time during the transaction before 
referred to, act or pretend to represent any other person 
than the defendant in respect thereto? 

A. I did not, 

Q. What, if any, Instructions were given to McPhee & 
McGinty by you, referring to the shipping of the material 
so ordered by you ? 

A. I ordered them to ship the goods to Dr. Z. L. Kay, 
in care of John Collins. 

The first of the above letters is dated McCook, Neb., 
August 14, 1886, and is entirely devoted to the sketch of 
the building which Lang had sent to Kay and certain pro- 
posed changes therein. The date of the second letter is 
torn off. It is also chiefly devoted to proposed changes in 
the plan, but closes with the following paragraph : " I ex- 
pect I shall ask you to assist me in getting mantel, stained 
glass, brackets for gable, porch railing, etc. 

The deposition of Charles D. McPhee, also taken at 
Denver, was offered in evidence by the plaintiffs and read 
at the trial. He stated that he was one of the plaintiffs 
and was not acquainted with the defendant. In answer to 
a question by plaintiffs' counsel he stated: " We were re- 
quested to make an estimate on a bill of materials by one 
William Lang, an architect, for a house that the defendant 
was building in McCook, Neb. We made the estimate 
and gave it to Mr. Lang, who said he was transacting this 
business for the defendant as his architect. In the course 
of eight of ten days Lang came back and wanted us to go 
on with the work as we were the lowest bidders; at the 
same time he showed us lettera from Dr. Kay, the defend- 
ant, authorizing him to procure this material, and at the 
same time representing to me that Dr. Kay was a man 
of means and that he would pay the bill. That, upon the 
strength of such representations and the letters, they pre- 



Vol. 30] JANUARY TERM, 1890. 67 



McPbee t. Kay. 



pared all the material according to the plans and details 
given us by said Lang, and on the completion of the 
-work Mr. Lang examined the work and ordered the same 
shipped to Dr. Z. L. Kay, in care of John Collins at 
McCook, Nebraska, and at the same time ordered us to 
send a detailed statement of the items of the account to Dr. 
Kay, the defendant, which we did." He also stated that 
the letters referred to as having been shown to him by Mr. 
Lang are the same letters which are attached to his depo- 
sition in this case and marked Exiiibits A and B ; that 
said piaterial was charged to Z. L. Kay, as appears from 
plaintiffs' books ; that the contract price of said goods was 
one hundred and ninety-five dollars; that they had never 
received said amount, or any part thereof, from the defend- 
ant or from any other person in payment for the same ; that 
they had sent monthly statements of said account to Z. L. 
Kay, McCook, Neb. ; that the reason why the said goods 
were shipped in care of J. F. Collins was that Mr. Lang 
instructed them to ship in that way for the reason that 
the defendant was out of town a good deal of the time and 
he wanted his builders to be able to receipt for goods 
and to receive the same in case of the defendant's absence; 
and that plaintiffs never, directly nor indirectly, had any 
contract, agreement, or understanding with said Collins with 
reference to said transaction. 

H. W. Cole was sworn as a witness for the plaintiff 
upon the trial and testified that he received the claim sued 
on from the plaintiffs for presentation to the defendant ; 
that he presented it to Dr. Kay, ^'and he said these lum- 
ber and materials went into the house and should be paid 
by Collins. He said that he was not to pay for the lum- 
ber," etc. 

A copy of a lien, as filed in the office of the county clerk, 
ap})ears in the bill of exceptions. It appears by the writ- 
ing on the face, over the signature of C. D. McPhee, to 
have been filed February 1, 1887, but it does not officially 
appear when it was filed. 



68 NEBRASKA REPORTS. [Vol. 30 



McPhee v. Kay. 



It is the theory of the plaintiffs' case that the building 
material^ for which their lien was filed and the action 
brought, was furnished directly to the defendant, and not 
to the contractor, nor through him. Indeed, their case 
ignores the existence of a contractor for furnishing the 
material and erecting the house. Had it been sought to 
establish a lien upon the house for material furnished 
for its construction through a contractor, the sworn state- 
ment of the material furnished by the plaintiff and the 
amount due them therefor from the contractor, must have 
been presented and filed in the office of the register of deeds 
of the county within sixty days from the date of the fur- 
nishing of the same. It is not claimed that such statement 
was presented or filed in this case until long subsequent to 
the expiration of that period. 

. As hereinbefore stated, the defendant employed and con- 
tracted with John F. Collins to furnish all material and to 
build the house, and it is apparent from the testimony on 
the part of the plaintiffs that, at the time of furnishing the 
material, this contractor was engaged in the ei*ection of the 
house, so that the independent fact, if the same is proven or 
admitted, that the material furnished by the plaintiffs en- 
tered into the construction of the house, does not, of itself, 
establish the right of the plaintiffs to a lien upon the 
building or to a recovery against the defendant. Never- 
theless, were it proved that the defendant ordered the 
material, and that it was delivered to him, or by his direc-^ 
tion to the contractor, he would be liable, and this is what 
was evidently the intention and the efforts of the plaintiffs 
to prove. It is not claimed that he did this personally or 
directly, but that he did it through William Lang, the 
arcliitect. 

To establish the authority of Lang to order this mate- 
rial, two letters written by defendant are given in evidence, 
but these letters fall far short of establishing such authority, 
and the only clause in either of them which refers in a re- 



Vol. 30] JANUARY TERM, 1890. 69 



McPhe« T. Kay. 



mote degree to any material for the construction or finish- 
ing of the building is that hereinbefore quoted, in which 
the defendant says : " I exj>ect I shall ask you to assist 
me in getting mantel, stained glass, bracket for gable, 
porch railing," etc. It need scarcely be said that these 
words fall far short of evidencing an agency on the part 
of Lang to contract for the plaintiff in the })urchase of the 
articles therein named, to say notliing of the articles for 
which the lien is filed. 

The witness Lang mentioned another letter which he 
says had been lost, but its loss was not established so as to 
admit of its contents being proved as evidence to the jury, 
and indeed there is no attempt to prove its contents ; nor 
indeed does it appear that such letter was written by the 
defendant. In one instance the witness speaks of this lost 
letter as "the Collins letter." From the entire evidence 
it is apparent that the letter referi-ed to as lost was written 
by Collins, and that upon his suggestion the material was 
purchased and shipped to McCook in such a way that he 
could receive it without the knowledge of defendant, and 
work it into the building as material furnished by him. 

It ap]>ears as welffrom the testimony of I^angas of the 
plaintiff McPhee, and a copy of the bill of lading which 
was introduced in evidence and attached to the bill of ex- 
ceptions, that the material was shipped to Z. L. Kay in 
the care of J. F. Collins, and this, according to the testi- 
mony of Lang, was that inasmuch as the defendant was 
absent from home a great portion of the time it was desir- 
able that Collins could receive the material from the rail- 
road company in his absence. There is therefore a failure 
to prove the furnishing of said material to defendant or 
that it entered into the construction of his building in such 
manner as to hold him chargeable to the plaintiffs there- 
for or to entitle the plaintiffs to a lien upon the building. 

The judgment of the district court is 

Affirmed. 

The other judges concur. 



70 NEBRASKA REPORTS. [Vol. 30 



f48 


70 
6&5 


ao 

53 


TO 
714 
844 


80 
61 


70 
&4 



F., EL A K. v. R. Go. y. Gram. 



Fkemont, E. & M. V. R. Co. v. Margabet Crum. 

[Filed July 2, 1890.] 

. Bailroads : Fibbs: Destruction of Timber: Msasure or 
Damages. In an action by M. C, owner of premiaee adjacent 
to the right of way and track of a railroad, against the company 
for negligently permitting the fire, set out to clear its right of 
way of dry weeds and bmsh, to ran over and beyond its right 
of way to adjacent premises^ and to bnm, injare, and destroy 
the natural growth of yonng trees and timber; and for negli- 
gently permitting the fires from its locomotives opemtiDg its 
railway to be oommnnicated to adjacent premises and to bnm, 
injure, and destroy the natural growth of young trees and tim- 
ber, heldy that the measure of danmgcs is the amount of damage 
the trees and timber suflered by reason of the fire, and not the 
difference in the value of the laud with the standing treos aod 
timber before the fires and afterwards. 



3. ; : : . In determining the amount of 

damages, held^ that the inquiry should be as tb the value of the 
trees burned as standing timl>er, and not the market price for 
transplantation as shade or ornamental trees. 

Error to the district court for Antelope oountj. Tried 
below before Norris, J. 

John B. Ilawlei/y for plaintiff in error, cited, on the con- 
tention that the measure of daiuuges wiis tiie difference iu 
value of land before and after fire: B. & iL R. Co. v. 
Beebe, 14 Neb., 46:5 ; Drake v. R. Co,, 63 la., 310 ; Brooks 
V. R. Co., 34 N. W.Rep. [In.], 805; Wallace v. Goodal, 18 
N. H., 456; Lonf/fcllmo r. Qahnby, 33 Me., 457; Chip- 
man V. Hibberd, 6 Cal., 162; Van Densen v. Younr/, 29 
Barb. [N. Y.], 9; U. S. v. Tai/lor, 35 Fed. Rep., -488; 
Chase V. R. Co., 24 Barb. [N. Y.], 273-5; Blakeley v. /?. 
Co., 25 Neb., 207 ; F., E. & M, \\ R. Co. v. Marley, Id., 
138; Rhodes v. Baird, 16 O. St., 573. 

Thos. O'Day, contra, cited, in reply to the contention : 



Vol. 30] JANUARY TERM, 1890. 71 



F., E. & M. V. R. Ca T. Cram. 



Kolb V. Bankhead, 18 Tex., 229; 3 Sutherland, Damages, 
pp. 375, 881 ; Foote v. Merrill, 54 N. H., 490; Wingaie v. 
Smith, 20 Me., 287; Wetherbee v. Green, 22 Mich., 311; 
Grant v. Smith, 26 Id., 201 ; Davis v. Easley, 13 111., 192; 
R. Cb. V. Maley, 40 N. W. R, 948; Whitbeck v. R. Co,, 36 
Barb. [N. Y.], 644; Stockbridge Iron Co. v.Cone Iron Wks,, 
102 Mass., 80; Fm-^th v. Welh, 41 Pa. St., 291 ; Maye v. 
Yappen, 23 Cal., 306; Roba-tson v. Jones, 71 111., 405; 
McLean Coal Co. v. Long, 81 Id., 359 ; Adams v. Blodgett, 
47 N. H., 219; Goller r. Fell, 30 Cal., 481 ; Longfellow 
V. Quimby, 33 Me., 457; Herman, Executions, pp. 160, 
235-6, 524; Whipple v. Foote, 2 Johns. [N.Y.], 418; 
Lanning v. R. Co., 27 N.W. Rep., 478; Campbell v. Crone, 
10 Neb., 571; Goodman v. Kennedy, Id,, 275. 

Cobb, Ch. J. 

The plaintiff below alleged "that the defendant is an 
incorporated railroad company, owning and ()])erating its 
line in said county near the plaintiff's land, described in 
her j)etition as amended by leave of the court ns the north 
half of the north half of section 9, township 25, range 7 
west. 

"I. That on April 6, 1887, the defendant carelessly and 
n^ligently omitted to keep its right of way free and dear 
of dry and combustible materials, but permitted a large 
quantity of dry grass and weeds to accumulate upon its 
track near the premises of plaintiff, and tliat the agents and 
servants of defendants entered thereon, and uj)pn tlie plaint- 
iff's premises adjacent thereto, and set out a fire which de- 
stroyed 2,431 trees living and growing upon her land, to her 
damage $729.30. 

"11. That on April 7, 1887, tlie defendant carelessly 
and negligently omitted to keep its right of way free and 
dear of dry and combustible materials, and the agents and 
servants of defendant, in running its engine over its line 



72 NEBRASKA REPORTS. [Vol. 80 



F., K & M. V. R. Co. T. Crum. 



of road at and near plaintiff's premises, n^ligently per- 
mitted the engine to cast out sparks and coals of fire into 
the dry grass and other combustible material on the de- 
fendant's right of way, and on the plaintiff's premises 
adjacent thereto, which caused a fire that spread to and 
over the plaintiff's premises and land^ described in her 
amendeil petition as the east half of the southwest quar- 
ter of section four, township twenty-five, range seven west, 
and there burned up and destroyed 9,709 trees, living and 
growing upon her land, without any fault or negligence on 
her part, to her damage $2,912.70. 

" III. That on October 6, 1887, the defendant carelessly 
and negligently omitted to keep its right of way free and 
clear of dry and combustible material, but permitted large 
quantities of dry grass and weeds to accumulate upon its 
track and right of way near the premises of plaintiff, and 
permitted its servants and agents to enter thereon and upon 
the premises of plaintiff, described in her amended petition 
as the southeast quarter of the southeast quarter of section 
four, township twenty-five, range seven west, in said county, 
and set out a fire that burned and destroyed 7,278 trees, 
living and growing on her said land and premises, without 
any fault on her part, to her damage $2,183.40." 

The defendant's answer admitted that it was a corpora- 
tion and denied all other allegations in the premises. 

There was a trial to a jury, with verdict and judgment 
for the plaintiff for $2,761.30. 

The defendant brings the ease to this court on numer- 
ous errors, the first three against the verdict and judgment, 
fourteen as to instructions of the court either given to the 
jury or refused, one to allowance of evidence over defend- 
ant's objections, one to allowance by the court to plaintiff 
to reopen the case and introduce evidence after argument 
had been entered upon, one to allowance by the court to 
plaintiff to amend petition after argument had been entered 
upon, one to refusal by the court of defendant's motion for 



Vol. 30] JANUARY TERM, 1890. 73 



F., E. & M. V. R, Co. T. Cruni. 



continuance subsequent to the plaintiff's amendment, and 
one to the overruling of defendant's motion for a new trial. 

There was evidence of damage to the growing trees of 
the plaintiff caused by three separate fires : the first, on 
April 6, 1887, by fire set out by section men in the em- 
ploy of defendant engaged in burning off the right of way 
of defendant's track, escaping to and running over the 
plaintiff's timber land; the second, on April 7, 1887, was 
set out by sparks and coals escaping from one of defcnd- 
ant's engines, igniting the grass, weeds, and other combus- 
tible matter upon such right of way and track, running 
thence into plaintiff's timber land; and the third fire, on 
October 6, 1887, set out by si)arks and coals escaping from 
one of defendant's engines, in like manner as tlie second, 
and running upon and burning the plaintiff's timber lands. 

There was evidence that the first fire burned over and 
through and partially destroyed about forty acres of tim- 
ber; that the second burned over and tiirongh and par- 
tially destroyed from thirty-five to forty acres of timber 
land, and that the third fire burned over and partially de- 
stroyed about ten acres. 

A great deal of evidence is scattered through the 225 
pages of the bill of exceptions, as to the quality and value 
of the timber destroyed by these fires. The plaintiff's 
husband testified, as to the first fire, that the trees were 
principally oak and white ash, in a good condition; that 
most of them had been trimmed up, the oak trees over 
twelve feet in height and of an average diameter of three 
to four inches. Upon cross-examination, the witness stated 
that of this timl)er there were some cottonwood, willow, 
and box-elder, but that the "principal hefl of it" was 
white ash, and that portions of the ash trees grew in clus- 
ters, about half of them, some covering a rod and others 
five or six feet. 

The plaintiff's son, D. C. McCartney, testified that the 
timber destroyed was ash, some few box-elder, and some 



74 NEBRASKA REPORTS. [Vol. 30 



F., R (b M. V. R. Ca ▼. Cram. 



few of oak; that the oak did DOt amount to much, was 
mere bur-oak, such as we have in this county; that situ- 
ate on the south side of the land they had trimmed, but 
did not know as to the north side. In answer to the 
"Q, State how the timber stood as to clusters/' the wit- 
ness answered: "I have counted some clusters with four- 
teen trees in them, and the biggest part of them were in 
clusters." 

A. Bare testified that part of the ash trees grew single, 
and others in clusters of four to six feet in space. 

The trees killed by the fires were examined and counted 
by the witnesses Bare, Yates, and Cooley, whose testimony 
was given. Yates testified that he counted 3,589 trees 
killed by the third fire; that he counted none under an 
inch in diameter, as instructed; that they were mostly ash, 
some oak, and would average three inches in thickness. 
Bare had counted 865 trees killed by the second fire, and 
4,494 by the third, and 3,589 by the first, in all 8,948. 
George W. Cooley testified that he had examined and 
counted 490 of the trees killed by the first fire, and 5,215 
by the second, and had counted none, thougfit to be killed, 
less than one inch in size, making a total of trees killed, as 
counted, of 18,242. These witnesses testified that each 
examined and counted the trees on ground separate from 
the others, and that neither went over the other's count. 

The principal question of difiiculty in the case arises 
from the application of the rule for the estimation of the 
plaintiff's damages. The plaintiff in error contends that 
the growing trees could only be regarded as a part of the 
realty, and that the measure of damages was the difference 
in the value of the land with the standing timber before 
the fire and afterwards. Were this rule conceded to be 
the true measure of damages, it is apparent that the plaintiff 
in error, having tried its case, submitted evidence, and pro- 
cured the court to charge the jury upon a different princi- 
plcy cannot now obtain a reversal for error of the court in 



Vol. 30] JANUARY TERM, 1890. 75 



F.. K <& M. V. R. Co. ▼. Cram. 



trying the case upoa such other theory. But I think that 
the true measure of damages must be held to be the 
amount of damage the trees suffered by reason of the fire. 
The principal e(Fort, by the plaintiff, seems to have been 
to establish the value of the trees as living timber, and for 
this purpose several witnesses were sworn as to the value 
and price of shade trees in the town of Neligh, if sold 
singly, or in very small quantities. I am not prepared to 
say that this evidence was entirely inadmissible. It may 
be gathered from the testimony that some of the trees 
killed wei*e susceptible of being taken up, carried to a dis- 
tance, and transplanted for shade or ornamental trees. 

J. F. Merritt, one of the most intelligent of the plaintiff 's 
witnesses, having testified as to the sale of shade and orna- 
mental trees in the market of Neligh, and having testified 
as to his knowledge of, and familiarity with, the plaintiff's 
premises, and the timber destroyed, stated, in answer to 
the " Q. What were the prices of such trees in the year 
1887 ? A. I would explain that the most of those trees 
are larger than those generally sold on the market, but the 
smaller ones would be worth from $5 to $6 per dozen ; a 
great many of the trees were large and it would be im- 
practicable to set them out." They would therefore have 
a value in whatever market they might reach in a live and 
growing condition. But it is obvious that such testimony, 
without evidence of the cost and expenses of removing 
and transporting the trees, would be insufficient for th^ 
jury to fix their value growing in the forest on the banks 
of the Elkhorn. Even were this not so, it is established 
by evidence that a comparatively small and indefinite 
number of the trees, accounted killed, were susceptible of 
being taken up and transplanted, or were of the quality and 
growth required for transplanting. So that the jury would 
still be without accurate information for their verdict. 

Again, while it is in evidence that there was some de- 
mand for shade and ornamental trees in that county, and 



76 NEBRASKA REPORTS. [Vol. 30 



F., E. & M. V. R. Co. V. Crum. 



that such were being brought from a distance and sold 
there, yet the number of trees, such as those killed by the 
fires in question, throughout that and the adjoining coun- 
ties was so great as to forbid the possibility of the plaint- 
itf 's finding a market for these trees at the retail prices tes- 
tified to by her witnesses. It is to be regretted that none 
of them were examined, or testified, with a view of estab- 
lishing the damage to the trees, as timber, by the fire, nor 
with a recognition of the fact that any of them possessed 
any value whatever after the fire had gone through the tim- 
ber. But the jury were not left entirely without evidence 
as to their value for purposes to which they might be 
practically and conveniently applied, either before or after 
being damaged by fire. 

James H. Smith, witness for defendant, testified that he 
is a farmer and land owner , resides in the same county 
with the plaintiff; is familiar with the land, timber, and 
trees in this suit, and owns eighty acres of similar land, 
covered with a similar growth of ash, oak, cotton wood, 
willow, and alder; had sold such trees for posts, ax 
handles, crutches, and the like, and that such were seldom 
sold for fuel, if alive ; that, when dead, they were sold for 
fire-wood, and brought from one to two dollars per wagon 
load ; that he had not used ash trees for posts when from 
four to five inches in size, but that they are so used from 
three to four inches ; that dead ash, from two to three 
inches, is sometimes used for stays between posts in wii-e 
fence; that such timber for fire- wood is desired immedi- 
ately afler being killed, and of equal value after as before. 
This witness testified that some of the ash trees, four 
inches through, might make two fence posts, and such had 
been generally sold at fifteen cents each, but the cost to cut 
and sell them the witness could not say. 

George H. McGee, witness for defendant, testified that for 
the last five or six years he had resided witliin three or four 
miles of the plaintiff, and is engaged in farming, survey- 



Vol. 30] JANUARY TERM, 1890, 77 



F., B. <b M. V. R. Co. T. Crum. 



ing, and milling ; that he once owned the plaintiff's tim- 
ber land, on which the fires occurred, and is acquainted 
with it, and with the timber on the Elkhorn throughout 
Antelope county; that the growth of timber such as that 
of the plaintiff's before the fire, of ash trees averaging 
from one to two inches thick, are worth from one to one 
and a half cents each ; and young trees, from two to four 
inches, are worth five cents each, and willows two-thirds 
of that value, but larger ones about the same as ash. 

Q. State, if you can, the difference in value of the trees 
in this burnt district just before and after the fire, classify- 
ing them as you have stated. 

A. The smaller sizes, from one to two inches, would be 
almost wholly destroyed by the fire, the larger ones would 
be reduced in value not quite one-half. By the larger size 
I mean from two to four inches; if larger than four inches, 
the damage would be less. 

M. A. DeCamp, witness for defendant, resided in Ante- 
lope county for seventeen years; engaged in farming and 
stock raising; is acquainted with the plaintiff's land and 
timber damaged by fire; owns a quarter section of similar 
land adjoining plaintiffs; that an ash stick, such as the 
body of the ash trees of plaintiff's before the fire, four 
inches thick, is worth fifteen cents, if an inch less, ten 
cents; that for stove wood, such trees, after the fire, would 
not be much different in value; they could be used for 
posts and stays without much loss for those purposes. 

Considering' the value of this evidence, and estimating 
one-half of the number of trees, accounted as damaged, to 
be three inches in thickness and over, and so worth fifteen 
cents each, and that one-half of their value was destroyed 

by fire, the damage to that number would be $684 07 

Estimating the other half at one and a half cents 

and their destruction complete, the damage 

would be 273 63 



Total loss on 18,242 trees of all sizes is... $957 70 



78 NEBRASKA REPORTS. [Vou 30 



F., E. <Se M. V. R. Co. T, Crum. 



It is not deemed necessary to set out the instructions of 
the court of its own motion, or on motion of the defend- 
ant. I will be content with remarking that a careful ex- 
amination of the instructions to the jury fails to suggest 
any serious error, and that the rule of damages set out In 
the ninth paragraph, '^ that the measure of damages is the 
actual value of such trees as you find from the evidence 
were injured or destroyed by the fire; and in making up 
your verdict you will deduct from the value of such, when 
standing and alone just previous to the fire, their value, if 
any, in a charred and burnt condition after the fire, and 
the remainder will be the amount of damage which the 
plaintifi^ is entitled to recover^'' is the proper rule, and 
meets my approval. 

It is here to be remarked that in the fourteenth para- 
gi*aph of instructions, asked by defendant, the court again 
instrircted the jury substantially as in that of the ninth, 
of which the })laintifi* in error complains. 

It appears from the bill of exceptions that after the 
closing of the evidence, and the counsel on either side had 
addressed the jury, the counsel for defendant asked the 
court to instruct the jury to find for the defendant, on the 
ground that the plaintifi* had not shown by the evidence 
that any one of the three fires alleged were upon the land 
described in the petition. Thereupon counsel for the 
plaintifi^ moved to reopen the case, to which defendant ob- 
jected, and counsel stated that he would be unable to pro- 
ceed with the trial if the case was then opened ; which 
objection was overruled, the case was reopened and thef 
plaintiff allowed to re-examine witnesses as to the locality 
of the railroad and that of the burned premises. To this 
ruling of the court, assigned as error, we see no reversible 
error in the action of the court; but it is not doubtful that 
it was within the discretion of the court, and tended to 
the impartial administration of justice and to the economy 
of litigation. 



Vol. 30] JANUARY TERM, 1890. 79 



F.. E. & M. V. K. Co. V. Crum. 



It also a|>pears from the bill of exceptions that after the 
closing of the evidence the plaintiff moved to amend her 
petition 80 as to conform to the proof, in showing that the 
first fire occurred on the north half of section 9, instead of 
section 4, and that the second and third fires occurred on 
section 4 instead of section 9, in the same township and 
range; to which the defendant objected and moved that, in 
consideration that the plaintiff had been allowed to reopen 
her case, and to introduce new and impoi*tant evidence, and 
also to amend her petition to conform to the proof, the jury 
be discharged and the cause continued; which motion of 
defendant was overruled. 

The plaintiff also moved for leave to amend the first 
paragraph of her petition, the first cause of action, by in- 
serting on the margin of the original, made so to read, 
the north half of the north half of section No. 9 ; to which 
the defendant objected, for the reason that tlie trial had been 
closed on both sides, and the arguments addressed to jury 
by each ; which objection was overruled and the motion to 
amend the petition allowed. 

By the same motion the plaintiff asked leave to amend 
the second paragraph of her petition, the second cause of 
action by inserting on the margin of the original, made so 
to read, the east half of southwest quarter of section 4 ; 
to which defendant objected for the reason that the amend- 
ment changes the nature of the cause of action and sets up 
a new cause of action after the evidence is closed and both 
parties rested, and the defendant prevented from meeting 
any new claims contained in the plaintiff's petition; which 
objection was overruled and the plaintiff's amendment was 
allowed. 

On the same motion the plaintiff was allowed by the 
court to amend the third cause of action by inserting on 
the margin of her petition, so as to read, the southeast 
quarter of the southeast quarter of section 4, over the 
defendant's objections as before stated; which several ml- 



80 NEBRASKA KEPOllTS. [Vol. 30 



First NalL Bank t. Turner. 



ings of the court are assigned as errors to be reviewed. 
There is no reversible error in the court allowing these 
several amendments to the plaintiff^s petition in the man- 
ner stated and excepted to^ but the same was within its 
discretion as provided by the statute. 

The errors assigned, (1) that the verdict is contrary to 
the evidence and is not sustained, (2) that it is contrary to 
law, and (3) that it is excessive, appearing to have been 
given under the influence of passion and prejudice so far 
as they relate to the amount of the verdict, are well taken. 
As has been shown, there was evidence before the jury to 
sustain a recovery for $957.70, and no more. For the 
reason of the excessive amount of the verdict the judgment 
will be reversed and the cause remanded for further pro- 
ceedings unless the plaintiff shall, within sixty days from 
the filing of this opinion, enter a remittitur in this court, 
as of the date of the original judgment herein, for the sum 
of $1,793.60, but upon the entry of such remittitur within 
the time limited the judgment is affirmed. 

Judgment accordingly. 
The other judges concur. 



First National Bank op Blue Hill v. Margaret 
M. Turner. 

[Filed July 2, 1890.] 

1. Gtamishment : Banks: Service on Book-kbbpeb. Id gar- 
nisbmeDt prooeedings against a bank, where the president and 
cashier are abeentf notice and a copy of the order of attachment 
■erred upon the book-keeper thereof daring basiness honxs i« 
snfficient. 



: Delivsbt by Garnishee to Defendant. A gar- 
nishee duly served with notice and a copy of the order of at- 



Vol. 30] JANUARY TERM, 1890. 81 



First Nail. Bauk v. Turuer. 



tachtnent against a defendant, who, arter such service, delivers 
xnonej or property then in his possession to the dtfeudant, Trill 
not thereby be released from liability to the plaintiff in the at- 
tachment. 

Error to the district court for Webster county. Tried 
below before Gaslin, J. 

Hastings & MeOirUie, for plaintiff in error, 

A, if. Walters, corUra, cited, as to the service on the 
book-keeper: Code, sec. 73; Mathews v. SmiUi, 13 Neb., 
190; Porter V. B. Cb., 1 Id., 16. 

Maxwell, J. 

The cause of action in this case is stated as follows: 
''The plaintiff complains of the defendant and says that 
on the 30th day of September, 1886, she recovered a judg- 
ment against one M. H. King for $150 debt, and $9.65 
costs, before H. D. Ranney, a justice of the peace of Web- 
ster county, Nebraska; that the suit against said King, in 
which the said judgment was obtained, was aided by an 
order of attachment, by virtue of which the defendant in 
this cause, viz., The First National Bank of Blue Hill, 
was summoned as garnishee to appear before the said H. 
D. Ranney, justice of the peace, and answer such interro- 
gations as might be propounded to it touching their in- 
debtedness to the said M. A. King, and any proi)erty, 
rights, or credits in its hands and belonging to him ; that 
the said garnishee summons required the said First Na- 
tional Bank to appear before said Ranney, justice, on the 
30th day of August, 1886; that the said First National 
Bank failed, neglected, and refused to appear before the 
said Ranney, justice, on the 80th day of August, 1886, as 
required by the said garnishee summons, and failed, neg- 
lected, and refused to appear before said Ranney and make 
answer as such garnishee at any time. 
6 



82 NEBRASKA REPORTS. [Vol. 30 



Firat Natl. Bank v. Turner. 



'* Plaintiff alleges that at the time the summons in gar> 
nishmentwas served upon the First National Bank, to-wit, 
on the 24th day of August, 1886, it had in its possession 
money, property, rights, and credits of the said M. H. 
King of the value of several thousand dollars; that not- 
withstanding the service of the garnishment summons as 
aforesaid upon it, the said First National Bank, in viola- 
tion of the law, and this plaintiff's rights, paid money to 
said King, and turned over to him property in its posses- 
sion belonging to him, made a final settlement of its deal- 
ings with him, all of which was done subsequent to the 
time the garnishment summons was served upon it, the 
said bank, and subsequent to the time the said bank was 
required to . appear before the said Ranney, and subse- 
quent to the time when the said bank failed, neglected, and 
refused to appear before said Ranney and answer as such 
garnishee as aforesaid; that at the time plaintiff recovered 
her judgment against said King, and caused the said bank 
to be garnished, he, the said King, was insolvent and a 
non-resident of the said state of Nebraska; that the said 
King has at all times since the 24th day of August, 1886, 
down to the present time been a non-resident of the state 
of Nebraska, and has had no property in the state subject 
to execution or attachment except that in the possession of 
the said bank ; that defendant is a corporation organized 
under the laws of the United States, and its only place of 
business is in Blue Hill, Webster county, Nebraska; that 
no part of the plaintiff's judgment against said King has 
ever been paid; that the said First National Bank has never 
in any manner been released or discharged as garnishee; 
that said bank has at all times since the 24th of August, 
1886, down to the month of January, 1887, had funds of 
the said King with which to pay plaintiff's judgment 
against him, and have been authorized by said King to pay 
said judgment provided a discount of the said judgment 
could be obtained ; that the said bank and the said King 



Vol. 30] JANUARY TERM, 1890. 83 



First Natl. Bank v. Turner. 



have colluded to delay the plaintiff in the collection of her 
judgment against the said King; that the defendant is 
justly indebted to the plaintiff in the sum of $159.55, with 
interest thereon from the 30th day of September, 1886, at 
the rate of seven per cent per annum, no part of which has 
been paid.'* 

To this petition the bank filed an answer as follows: 

^^Now comes said defendant and wholly denies the 
iseuance of order of attachment and service of notice of 
garnishment thereon upon this defendant in any action 
between said plaintiff and any party ; and this defendant 
further denies that there was any lawful action pending 
before H. D. Ranney, justice of the peace in and for Web- 
ster county, Nebraska, x>n August 30, 1886, wherein said 
plaintiff was plaintiff, and defendant wholly denies that 
it ever received any notice of garnishment in any such 
action; and defendant, further answering, denies that it, 
the said defendant, was, on the 24th day of August, A. D. 
1886, or ever thereafter, indebted to one M. H. King in 
any sum, nor did this defendant have, on said 24th day of 
August, or ever thereafter, any property, rights, or credits 
of said M. H. King in its possession or under its control. 

''2d. This defendant, further answering, says, that any 
pretended proceedings and judgment had before said jus- 
tice of the peace in a certain pretended action wherein said 
plaintiff M. H. King was sought to be made defendant, 
and said plaintiff was sought to be made plaintiff, were 
wholly void and without any jurisdiction on the part of 
said justice of the peace in the matter of issuing said pre- 
tended attachment, and without any jurisdiction over the 
person of any defendant in said action. 

''3d. That as to the matters and things in plaintiff's 
petition not hereinbefore specifically denied, this defend- 
ant has no knowledge as to the truth thereof, and therefore 
denies and demands proof thereof." 

On the trial of the cause the jury returned a verdict for 



84 NEBRASKA REPORTS. [Vol. 30 



First Natl. Bank v. Turner. 



the plaintiff below for the sum of $183.44, upon which 
judgment was rendered. 

The testimony shows that in the action against King he 
was personally served with summons and also with a copy 
of the writ of attachment; that no property was found 
whereon to levy the attachment^ whereupon an affidavit 
for garnishment was duly made and filed, the docket entry 
being : 

^' Plaintiff filed affidavit that she has reason to believe, 
and does believe^ that the First National Bank of Blue Hill 
has property of and is indebted to the defendant in an 
amount to her unknown. 

'^ Issued order and notice to garnishee to appear on the 
30th day of August, 1886, at 1 o'clock P. M. and answer 
as to property of the defendant under his control and as 
to his indebtedness to the defendant M. H. King. 

'' Garnishee entered indorsed as follows: 

" ^I hereby certify that I served on the First National 
Bank a true copy of the within garnishee notice. 

" * (Signed) A. Sheets, OonstaAle.* 

'' Order for attachment returned indorsed as follows : 

"'August 24, 1886, received this writ, and not being able 
to come at the property of M. H. King, claimed to be 
in the possession of First National Bank of Blue Hill, 
Nebraska, I on the same day at 3 o'clock P. M. served on 
Edward Morse, book-keeper of said First National Bank, 
there being no other officer of the bank pi*esent, a copy of 
this order and also a written notice to appear and answer 
as therein required. A copy of which notice is hereunto 
attached. 

" ' (Signed) A. Sheets, Constable.^ '* 

The garnishee did not appear aud answer, and it is 
claimed that the service was insufficient. 

Sec. 935 of the Code provides that "The copy of the 
order and the notice shall be served upon the garnishee as 



Vol. 30] JANUARY TERM, 1890. 85 



First Natl. Bank t. Turner. 



follows: If he be a person, they shall be served upon him 
personally, or left at his usual place of residence ; if a cor- 
poration, they shall be left with the president or other 
head of the same, or the secretary, cashier, or managing 
agent thereof." Tiie book-keeper of the bank, as far as 
appears, was the managing agent thereof. He was the 
only person that the officer found in the bank upon whom 
service could be made, and service upon him during busi- 
ness hours at the place of doing business was sufficient. 

Sec. 936 of the Code provides that "The garnishee shall 
appear before the justice in accordance with the command 
of the notice, and shall answer, under oath, all questions 
put to him touching the property of every description and 
credits of the defendant in his possession or nnder his con- 
trol, and he shall disclose truly the amount owing by him to 
the defendant, whether due or nof, and, in case of a corpo- 
ration, any stock therein held by or for the benefit of the 
defendant, at or after the service of the notice." It thus 
became the duty of the garnishee to appear and answer all 
questions in relation to the property of King in its posses- 
sion or under its control, and as it is evident that it had 
more or less of such property after the notice of garnish- 
ment was served, it has no cause of complaint ; in other 
words, it failed to answer at its peril, and as it made no 
attempt in the garnishee proceeilings to exonerate itself 
from the charge that it was in possession of property of 
King, the presumption is that the affidavit of garnishment 
is true, and as the amount of such property seems to have 
exceeded the judgment in this case, the judgment is right 
and ifi 

Affirmed. 



The other judges concur. 



86 NEBRASKA REPORTS. [Vol. 30 



Beatrice Sewer Pipe Co. v. Erwln. 



Beatrice Sewer Pipe Co. v. Thomas Ebwin. 

[Filed July 2, 1890.] 

Continuance: Absbnge of Witness: Dilioencb. An action 
was brought November 10, 1887, and on the 5th of the follow- 
ing March a demarrer to the petition was overruled, and on the 
12th of that month an answer was filed, and seven days there- 
after the cause was continued. At the June term, following, a 
motion for a continuance was filed because of the absence of a 
material witness, and this was supported bj an affidavit show- 
ing the materiality of the testimony and the diligence used. 
Heldf That the June term was the first at which the case was 
ready for trial, and that a continuance should have been granted. 

Error to the district court for Gage county. . Tried 
below before Broady, J, 

E, 8, Bibby and Ortega & RinaheVy for plaintiff in error, 
cited^as to the motion for a continuance: Williams r. State, 
6 Neb., 334; Johnson v, Dinsmore, 11 Id., 394; -Hair v. 
State, 14 Id., 603; Newman v. State, 22 Id., 356; Parks 
V. OouneU Bluffs Ins. Cb., 28 N. W. Rep., 424. 

Pemberton & Bicsh, contra, cited on the same point: 
Stevenson v. Sherwood, 22 111., 238 [annotated, 74 Aui. 
Dec., 140]. 

Maxwell, J. 

This action was brought in the district court of Gage 
county by the defendant in error against the plaintiff in 
error to recover $5,000 damages for an injury which it is 
claimed Thomas Erwin sustained to his right hand while 
feeding one of the plaintiff in error's presses for the man- 
ufacture of tile. The alleged negligence consists in the 
neglect of one Charles Huggins, the pressman, who, at the 
time of the accident, was in charge of the press and work- 



Vol. 30] JANUARY TERM, 1890. 

Beatrice S.-wer Pipe CJo. v. Erwin. 



ing with the defendant in error, in failing to instruct the 
latter as to the danger in clearing clay from the steam pis- 
ton used to press the tile, etc. 

On the trial of the cause the jury returned a verdict for 
$2,500, in favor of the defendant in error, upon which 
judgment was rendered. 

Immediately preceding the trial the plaintiff in error 
.-ought to continue the case to the next term of the court, 
and in support of such motion filed the following affidavit : 
'^ R. S. Bibb, being first duly sworn, on oath states that he 
is the attorney for the defendant above nameil. Affiant 
further states that said defendant is a corporation organ- 
ized under the laws of the state of Nebraska, and doing 
business in the city of Beatrice, Gage county, in said state, 
said business being the manufacturing of tiling, sewer pipes, 
brick, etc; that said defendant cannot safely proceed to 
trial in the above entitled cause at the present term of court 
on account of the absence of one Charles Huggins, a mate- 
rial *and important lYitness on the part of the said defendant, 
and that said witness is now a resident of the state of Cali- 
fornia, the exact place in California wliere said witness is 
residing being unknown to affiant, although he has made 
diligent inquiries in the endeavor to find out the postoffice 
address of said Charles Huggins, as have also the officers 
of said defendant; that said Charles Huggins formerly re- 
sided in the city of Beatrice, Gage county, Nebraska, but 
lefl for California before the commencement of this action. 
That the said defendant expects to prove by the said 
Charles Huggins (who is the pressman referred to in 
plaintiff's petition) that on or about the 5th day of Sep- 
tember, 1887, he, the said Charles Huggins, was in the 
employment of defendant, engaged in the running of the 
press mentioned in said petition ; that when the said plaint- 
iff commenced to work upon said press, in company with 
said Charles Huggins, the said plaintiff was fully and com- 
pletely and properly instructed as to the proper manner of 



«8 NEBRASKA REPORTS. [Vol. 80 



BcAirice Sewer Pipe Co. t. EiwId. 



performing the duties of his position, and avoiding the 
dangers of his said occupation, and that plaintiff wasfuUj 
advised in the premises ; that plaintiff was injured by his 
own gross carelessness and fault, and not through the fault, 
carelessness, or neglect of him, the said Charles Huggins, 
the defendant, or any of the other of its employes; that 
said plaintiff was injured by carelessly thrusting his hand 
into the cylinder mentioned, when and while the piston 
therein was rising, notwithstanding the fad; that said 
plaintiff had been instructed and warned to keep his hands 
out of said cylinder when said piston was rising, and that 
immediately upon the hapi)ening of the injury complained 
of the said plaintiff stated, in the presence of the said 
Charles Huggins, ''that it was his (plaintiff's) own fault 
that he had been injured." That he knows of no other 
person or persons by whom the above stated facts can be 
proven ; and affiant further states that when he was em> 
ployed as attorney for the defendant, he supposed that the 
present pressman at defendant's works was the one who 
was working there when plaintiff was injured, and that it 
was only a short time ago, and since the commencement of 
this term of court, or immediately prior thereto, that he 
discovered otherwise; that this affiant and the officers of 
said defendant have used due diligence, by making every 
inquiry possible to find the whereabouts of said Charles 
Huggins, and have asked all of those who would be likely 
to know here what his postoffice address is, but could get 
no further information than that he was in California. 

"Affiant further says that he expects to procure the testi- 
mony of said Charles Huggins at the next term of this 
court; that it would be dangerous for defendant to proceed 
to trial in said action without the testimony of said witness, 
and affiant further says that this application for continu- 
ance is not made for delay, but that justice may be done." 

This motion was overruled, and this ruling of the court 
is the first error assigned. 



Voi>. 30] JANUARY TERM, 1890, 89 



Champion Machine Co. ▼. Gorder. 



On the part of the defendant in error it is contended, as 
a justification for the ruling of the ^urt, that there had 
been a continuance of the case at the former term, and that 
the second continuance was for delay. An examination of 
the record shows that the petition was filed November 10, 
1887 ; that on March 12, 1888, an answer was filed, and 
that on June 29, 1888, a reply was filed, a slight amend- 
ment by interlineation having on that day been made to 
the answer. • 

The record shows that on the 5th of March, 1888, a 
demurrer to the petition was overruled, and that on the 
19th of that month, seven days after the answer was filed, 
the cause was continued. The case was not at issue and 
ready for trial, therefore, at the March, 1888, term of the 
coart, and the June term of that year was the first term at 
which, under the statute, the cause, except by consent of 
both parties, could have been tried. 

That the testimony of Huggins is material in this case 
is unquestioned, and sufficient diligence was shown to 
authorize the continuance of the case. 

It is unnecessary to consider the other errors assigned. 

The judgment of the district court is reversed and the 
cause remanded for further proceedings. 

Reversed and remanded. 
The other judges concur. 



Champion Machine Co. v. Fred. Gorder. 

[Filed July 2, 1890.] 

Instructions as applied to the facts of the case, held, to state the 
law correctly. 

Error to the district court for Cass county. Tried 
below before Chapman, J. 



90 NEBRASKA REPORTS. [Vol. 30 



Champion Machine Co. t. Gorder. 



Geo. W. Covell, and Allen Beeson, for plaiatiff iu error. 
J". B, Strode, and Byron Clark, contra. 
Maxwell, J. 

This action was brought by the plaintiff in error against 
the defendent in error to recover a balance of $314.8o, with 
intei'est thereon, due on account for farm machinery sold by 
plaintiff to the defendant. 

The defendant by his answer admits the indebtedness of 
said amount for said machinery, but by way of counter- 
claim alleges "that on the 27th of September, 1885, 
plaintiff and defendant entered into a written contract, by 
which plaintiff delivered to defendant fourteen light har- 
vesters.and binders of six-foot cut and that defendant paid 
plaintiff therefor. The plaintiff represented and waiTanted 
each of said machines to be made of superior material and 
superior workmanship to any other harvester and binder 
in the market, and to do as good work under all circum- 
stances as any other harvester and binder in the market, 
and agreed if any of said machines were not as represented 
and warranted, or could not be made to work as repre- 
resented and warranted, then the defendant could return 
said machines to plaintiff and his payments made therefor 
would be refunded to him by plaintiff, together with all 
freight charges upon such machines, paid by defendant. 

"That two of the machines delivered under said con- 
tract failed to comply with the terms of the warranty and 
were utterly worthless; that defendant duly notified plaint- 
iff of such failure, and offered to return said two machines 
and that plaintiff refused to receive them. The defendant 
had previously paid plaintiff for said two machines, and 
had also paid $20 freight on each one; that defendant paid 
plaintiff the purchase price of said two machines and the 
freight paid thereon, amounting to the sum of $282.50 ; 



Vol. oO] JANUARY TERM, 1890. 91 



Champion Machine Co. v. Gorder. 



that he was unable to sell, during the season of 1886, all 
of the said fourteen machines and was compelled to carry 
eight of them over to next season, upon which he claims a 
rebate, under said contract, of $150 on account of a reduc- 
tion in prices made by plaintiff on said machines.'* 

The plaintiff filed reply denying the breach of warranty 
as alleged by defendant, and denies that plaintiff was ever 
notified of any such failure of warranty, or that defendant 
ever offered to return said machines to plaintiff. 

That by the terms of the written contract it was agreed 
by the defendant that said machines were to be sold by de- 
fendant upon written orders from the purchasers, and to 
be warranted to the purchasers as per plaintiff's printed 
warranty furnished to the defendant, but that the defendant 
sold said two machines without taking any written order 
therefor and without giving the printed warranty of plaint- 
iff, but that he sold them on his own verbal warranty. 

Plaintiff further alleges that if said machines had been 
properly set up and operated they would have fulfilled the 
warranty ; that said machines were never returned or tend- 
ered to plaintiff. 

Plaintiff also avers that the eight machines carried over 
by defendant were worth as much during the year 1887 as 
they were during 1886. 

The jury returned a verdict in favor of the defendant 
for the sum of $97.15, upon which judgment was rendered. 

The principal error complained of is in the giving of 
certain instructions. The instructions are very long and 
but'few of the paragraphs were excepted to. 

The court, after stating the issues, gave the following: 
^'Defendant alleges that the plaintiff represented and war- 
ranted said machines to be made of superior material and 
workmanship to any other harvester and binder in the 
market, and warranted them to do as good work under all 
circumstanoes as any other machine in the market, and 
agreed if any of the machines^o sold failed to comply with 



92 NEBRASKA REPORTS. [Vol. 30 



Champion Machine Co. v. Gorder. 



said warranty, the plaintiff would refund the money paid, 
with freight paid by defendant ; that two of said machines 
failed to comply with the representations and plaintiff was 
notified of said facts, and defendant offered to return said 
machines, which plaintiff refused to accept. Defendant asks 
to be allowed upon his counter-claim the sum of $282.50, 
the price paid for said machines and freight. Defendant 
further says that he is entitled to a credit of $150 for 
eight machines defendant was obliged to carry over to the 
season of 1887 by reason of the reduction of the price of 
like machines for the season of 1887. Defendant asks to 
be allowed upon his counter-claim $262.50 for the two 
machines, $20 for freight paid, and $150 for rebate, as 
above set forth. 

*' Third — For a reply to the answer of the defendant 
the plaintiff denies that the two machines were not made 
of superior material and workmanship ; denies that said 
machines would not do as good work as represented and 
warranted ; denies that defendant notified plaintiff of the 
failure to work of said two machines ; denies that defend- 
ant offered to return said machines or that plaintiff refused 
to allow defendant to return the same. 

" Plaintiff further says that by the contract with defend- 
ant all machines were to be sold upon a printed warranty 
as furnished by plaintiff; that the two machines were sold 
without such written warranty, but upon the verbal war- 
ranty of the defendant that the machines would work to 
the satisfaction of the purchasers; that the two machines 
sold and referred to in the defendant's answer if properly 
put up and operated would have fully complied with the 
terms of the written warranty ; that the purchaser refused 
to allow the agent of plaintiff to adjust said machines so 
as to operate; that the defendant nor any other persons for 
him ever offered to or did return the machines to plaintiff 
or its agents. Upon which plaintiff denies that defend- 
ant is entitled to any credit for said two machines. 



Vol. 30] JANUARY TERM, 1890. 93 



Champion Mftchine Co. v. Gordsr. 



" Plaintiff further says that by agreement between the 
parties hereto said defendant was not to sell any other ma- 
chines in Cass county ; that in violation of this agreement 
defendant did sell other machines and so could not sell the 
eight machines bought of plaintiff; that the eight machines 
carried over were worth as much during the year 1887 as 
' in 1886 and defendant is entitled to no credit therefor by 
the terms of the contract 

"Fourth — Your verdict in this action will be somewhat 
out of the ordinary form, and by it you will first find how 
much there is due the plaintiff upon the cause of action, 
and state in your verdict the amount. Then you will de- 
termine if any is due to the defendant upou^the counter- 
claim or set-off, and state the amount in your verdict. 
Then you will find for the plaintiff or defendant, accord- 
ing as your finding for one exceeds the other, and for such 
excess. 

"Fifth — As to your finding upon the amount due the 
plaintiff upon its cause of action, you are instructed that 
the amount is agreed to be $314.85, with interest at seven 
per cent, from September 7, 1887, which you will compute 
and find as the amount due upon the plaintiff's claim. 

"Sixth — You are instructed that upon the counter- 
claim of the defendant the burden of proof is upon the 
defendant to establish by a preponderance of the evidence 
every material allegation of his answer concerning such 
counter-claim or set-off. 

" Seventh — To entitle the defendant to recover for the 
two machines sold and allied to have failed to work, as 
represented, you are instructed that the burden is upon de- 
fendant to establish by a preponderance of the evidence : 

" 1st. That the warranty was such as is authorized by 
the contract between plaintiff and defendant. 

" 2d. That defendant notified plaintiff or its agents of 
the failure of said machines to work as represented. 

" 3d. That plaintiff, by its agent or agents, was given 



94 NEBRASKA REPORTS. [Vol. 30 



Champlou Machine Co. t. Gorder. 



a fuir opportunity to adjust and operate said alleged defect- 
ive macliines, as provided for by the terms of the warranty 
authorized by plaintiff. 

" 4th. That upon such trial by the plaintiff's agent the 
said machines, or either of them, failed to work as rep- 
resented and warranted^ and as set forth in said written 
warranty. 

" 5th. That thereafter the defendant returned, or offered 
to the plaintiff to return^ such machines, and plaintiff re- 
fused to accept the same. 

''If defendant has failed to establish any one of the 
above propositions by a preponderance of the evidence, he 
cannot recovier for said machines or either of them. If, 
on the other hand, defendant has established each of said 
propositions as to either or both of said machines, you 
should allow him in your verdict for the amount paid, in- 
cluding freight for such machine or machines. 

"Eighth — Upon the second claim of defendant for a 
rebate or credit because of the reduction of the price of 
machines for the season of 1887 by the plaintiff you are 
instructed that the burden of proof is upon the defendant 
to establish his claim by a preponderance of the evidence. 
The contract, offered in evidence, between plaintiff and the 
defendant provides if the defendant, after making faithful 
effort to sell the machines included in the contract during the 
season of 1886, the plaintiff would carry said machines left 
unsold over, and extend time of payment until the follow- 
ing year. The contract further provides if any change is 
made by us for the season of 1887, advancing or reducing 
the list prfce of any of the differerent kinds of Champion 
machines enumerated in our current price list (No. 23) 
herein referred to, the aggregate difference in the list price 
of the machines for which payment may be extended in 
accordance with the provisions of this agreement, less the 
discount herein named, shall be credited or charged to 
the party of the second part, and settled in connection 



Vol. 30] JANUARY TERM, 1890. 95 



Champion Machine Go. y. Gorder. 



with the business of the succeeded year on the basis of 
cash September 1, 1887. The evidence shows that the 
eight machines upon which defendant asks a rebate were 
included in the list prices (No. 23), and tiie evidence also 
shows that no list price was ever issued afterwards upon 
these machines^ and that plaintiff ceased to manufacture 
said machines after 1886. The evidence further shows 
that for the year 1887 the plaintiff did manufacture an- 
other machine with iron frame instead of wood, otherwise 
different from the machine of 1886. 

"You are instructed if you find from the evidence that 
the machine, manufactured by the plaintiff for the season of 
1887 were in fact the same machines with slight improve- 
ments only upon the machines of 1886, and intended £br 
the same trade as were the machines manufactured for the 
year 1886, and were in fact listed at a lower price, then 
defendant would be entitled to credit for the difference in 
the list prices. On the other hand, if you find from the 
evidence that the plaintiff abandoned the manufacture of 
the kind of machines sold to the defendant after the season 
of 1887 and entered upon the manufacture of a new and 
different machine from the machine manufactured for 1886, 
then defendant would not be entitled to any credit, even 
though the new machine may have been listed at a lower 
price than the old one.'' 

A number of instructions were asked and refused upon 
which no point seems to be made and they need not be 
noticed here. The instructions seem to state the law 
correctly as applied to the facts of this case, and there is 
no material error in the record. 

The judgment is therei'ore 



Affirmed. 



The other judges concur. 



96 NEBRASKA REPORTS. [Vol. 30 



Bradford t. Peteiion. 



jj6_j4o Louis Bradford, appellant, v. Emily C. Peter- 

son, APPELLEE. 

[Filed July 2, 1890.] 

Mechanios' Liens: Wife's Peopbrty: Agency of Husband. 
Where a hasband erects a dwelling on land the title of which 
is in the name of his wife, and she is aware that such baildiog 
is being erected and in some cases gives directions to the work- 
men, the agency of the hasband will be presamed and the 
property will be subject to a mechanic's lien. 

Appeal from the district court for Douglas county. 
Heard below before Wakeley, J. 

Omgdoriy Clarkson & Hunty for appellant, cited : Collins 
V, Megraw, 47 Mo., 497; Andeison v, Ai^jnatead, 69 111., 
453; Jones v. Potkastj 72 Ind., 158; McCormick v. Law- 
ton, 3 Neb., 452. 

Albert Swartzlander, contra, cited : DoolitUe v. Goodrich^ 
13 Neb., 296; Willard v. Magoon, 30 Mich., 273; Neic- 
oomb V. Andrews, 41 Id., 518; Laur v. Bandow, 43 Wis., 
568; Flannery v. Rohrmayer, 46 Conn., 558; Wendt v, 
Martin, 89 III, 139; Priae v. Seydel, 46 la., 696; Jojies 
V. Walker, 63 N. Y., 612; Spinning v. Blackbum, 13 O. 
St., 131 ; Winghi v. Hood, 49 Wis., 236. 

Maxwell, J. 

In May, 1887, Edward T. Peterson and Emily C. Nel- 
son were engaged to be married. Peterson caused plans to 
be prepared for the construction of a dwelling house in 
which they would live when married, and submitted the 
same to Miss Nelson. When the plans were submitted, it 
had not been determined on what particular lot the house 
should be erected, but it was Peterson's intention to secure 



Vol. 30] JANUARY TERM, 1890. 97 



Bradford v. Peterson. 



a lot for the purpose, which, by virtue of its location or 
otherwise, after the erection of the house, he could easily 
dispose of. Peterson was a real estate dealer, and had in 
his hands for sale, as the agent for one Hobbie, lot 17, in 
block 16, in Hanscom Place, an addition to the city of 
Omaha. After consulting with Miss Nelson, he, for her, 
on June 2, 1887, purchased the lot in question, the consid- 
eration being the sum of $2,500. This deed was drawn by 
Peterson and executed by Hobbie. The grantee named in 
the deed was Miss Nelson. About $800 in cash was paid 
down. Of this amount, something like $300 was contrib- 
uted by Miss Nelson, and the remainder of the cash pay- 
ment, $500, by Peterson. Miss Nelson assumed the pay- 
ment of a mortgage made by Hobbie to one Palmer, and 
gave to Hobbie notes secured by a second mortgage for the 
balance of the consideration. Four days aft^r the pur- 
chase of the lot, and on June 6, 1887, Petei*son contracted 
in his own name with Nielson & Baxter for the erection of 
a house upon the lot in accordance with the plans sub- 
mitted to Miss Nelson. Immediately thereafter Nielson & 
Baxter undertook the erection of the house. Both Peter- 
son and Miss Nelson visited the house while in course of 
construction. Prior to its completion, and on August 10, 
1887, Peterson and Miss Nelson were married. Aft^r 
their marriage their visits to the house were repeated, and 
on one occasion Mrs. Peterson inquired of a workman con- 
cerning the construction of the pantries. In the early part 
of September, 1887, the house was completed, and Mr. and 
Mrs. Peterson moved into the same. Nielson & Baxter 
were not paid by Peterson ; and learning that the title to 
the lot stood in the name of Mrs. Peterson, on the 5th day 
of October, 1887, they filed their lien, setting forth that 
they constructed the house under and by virtue of a con- 
tract made with Peterson as the agent of Mrs. Peterson, 
and with her knowledge and consent. Nielson & Baxter 
purchased the lumber that was used in the construction of 
7 




98 NEBRASKA REPORTS. [Vol. 30 



Bradford t. Peteraon. 



the house from Louis Bradford^ and on the 8th day of 
November, 1887^ as security for Bradford's daim against 
them, assigned the lien to him. 

While the Petersons were living in the house, Mrs. 
Peterson and her husband joined in a deed of conveyance 
of the property to Peterson's father as security for money 
advanced by him for Mrs. Peterson by way of payment of 
one of the notes which was assumed or made by Mrs. 
Peterson, and for money advanced to Peterson. This deed 
was never recorded. Pending this action Mrs. Peterson 
died and left, surviving her, an infant daughter. 

The court below held that in the construction of the 
house Peterson was not his wife's agent and that Bradford 
was not entitled to a lien upon the premises. Bradford 
appeals. 

In a number of cases this court has held that where a 
husband constructs a house on the land of his wife, of 
which fact she has full knowledge, the agency of the 
husband will be presumed ; in other words, the wife, by 
her silence where she should speak, in effect admits that 
the work is being done for her benefit. (McCormick v. 
Lawton, 3 Neb., 449; Scales v. Paine, 13 Id., 521; Houh- 
ell V. Hathaway, 28 Id., 807.) The wife must be aware 
while a building is being erected upon her land that it is 
being erected for her benefit, and that mechanics and mate- 
terial men who contribute to the erection of the building 
are entitled to compensation for such labor and material, 
and honesty and fair dealing require that, as she know- 
ingly receives the benefit, she shall take the burden with it. 
The property in question is subject to the mechanic's lien. 

The judgment of the district court is reversed and a de- 
cree will be entered in this court for the plaintiff. 

Judgment ACXX)RDiNaLT. 
Th£ other judges concur. 



Vol. 30] JANUARY TERM, 1890. 99 



Hall T. Bank. 




R3 96 



Henrt Hall v. First National Bank op Fair- 
field. 

[Filed July 2, 1890.] 

ao w 

1. National Banks: Usury. Wliere a national bank loans money 51 909 

at a usurions rate, which is included in the note, in an action to 
enforce that contract the interest is iorfeited. Where illegal 
interest has been charged, but not paid, an action cannot be 
maintained to recover it back. 

2. : : Paymsntb APPLIED ON Principal. Wher* 

iwjments are made, generally to a national bank, on a promis- 
sory note which indades unlawful interest, they will be applied 
on the principal. 

3. Trial: Practtcx. If there is no oTidenoe in a case presenting 

questions of fact, it is not error for the trial court to take it from 
the jury. 

Error to the district coart for Clay county. Tried 
below before Morris, J. 

J. It, Epperson, and Robert Ryan, for plaintiff in error, 
cited: Sohiiyler Nat. Bank v. BoUong, 24 Neb., 828; Jfo- 
nmgahela Nat. Bank v. Overholt, 96 Pa. St., 327. 

Geo. W. Bemia, and E. E. Hairgrove, contra, cited: 
Broum v. Bank, 72 Pa. St., 209; F. & if. Bank v. Bear- 
ing, 91 U. S., 29; BamM v. Bank, 98 Id., 655; Fence v. 
Uhl, 11 Neb., 322. 

NORVAL, J. 

The plaintiff in error brought this action against the 
defendant in error to recover the penalty under section 
5198 of the Revised Statutes of the United States, for 
knowingly receiving usurious interest. The answer denies 
all charges of usury. Upon the trial the court directed a 
verdict for the defendant 



^ 



100 NEBRASKA REPORTS. [Vol. 30 



Hall T. Bank. 



A statement of the facts, as shown by the record, will l)e 
necessary to a correct understanding of the case. On June 
1, 1886, the defendant bank commenced business, being 
the successor of the Fairfield Bank. The defendant pur- 
chased from the Fairfield Bank notes of the plaintiff aggre- 
gating $3,300. On the 17th day of June, 1886, the 
plaintiff, being indebted to the defendant on said notes, and 
having made a sale of cattle to one John Lansing, drew 
two drafts on him, one for $1,500 and the other for $23.50, 
which were deposited in the defendant's bank, to be ap- 
plied, when paid, on his indebtedness. On July 3, 1886, 
these drafls were paid, and the whole amount was applied 
on plaintiff's notes. On August 3 the bank held, among 
others, the following notes against the plaintiff: one for 
$32.75, dated January 28, 1886, due in sixty days, with 
ten per cent after maturity; one for $1,000, dated January 
28, 1886, due in ninety days, bearing ten per cent from 
maturity, with an indorsement June 7 for $480.25 and 
interest paid to June 15, and another for $1,167 dated Jan- 
uary 28, 1886, due June 12, with interest from maturity 
at ten per cent. 

The plaintiff testifies, on direct examination, that he 
paid on the notes, in addition to the drafts, $519.75, on 
July 3, and that on August 3 he gave to the defendant 
his note for $730.66, and took up his three notes. The 
amount due July 3, 1886, on the three notes, including 
interest from maturity at ten per cent, was as follows : 
On the $32.75 note, $33.46 ; on the $1,000 note (after de- 
ducting the credit of $480.25), the sum of $532.62, and 
on the note for $1,167, the sum of $1,173.62, making, in 
the aggregate, $1,739.70. The cash payment of $519.75, 
which plaintiff claims to have made, the amount of the two 
drafts, and a note of $730.66, make a total of $2,773.91, 
or $1,034.21 more than the total balance due upon the 
three notes taken up. 

Counsel claim in the brief that this excess was usurious 



Vol. 30] JANUARY TERM, 1890. 101 



HaII t. Bank. 



interest There is in the bill of exceptions absolutely no 
testimony tending to show that when the notes were given 
that the plaintiff contracted to pay usurious interest. Nor 
does the testimony disclose that the question of interest ^ 
was ever mentioned by the parties. It does not appear 
that the plaintiff made any claim to the bank, before the 
bringing of this suit, that he had been charged more than 
the le;;al rate. It is, indeed, strange that the plaintiff 
should have paid over $1,000 as usurious interest, as he 
contend.s, without making complaint at the time. If this 
sum was paid as interest on these throe notes, as the plaint- 
iff claims, it makes the rate charged more than one hundred 
and fifly per cent ]^r annum. But counsel have over- 
looked the plaintiff's testimony on cross examination. 
After considerable of an effort the plaintiff was forced to 
admit that when he gave the^efendant his note of $730.66 
in settlement, the bank surrendered to him two oth^r 
notes — one for $71, the other for $250. We are unable 
to compute the exact amount that was then due on these 
notes because tlicir dates and the rate of interest they bore 
arc not in the record. Their amount without interest, 
$321, which sum added to the amount of the tliree notes 
liefore referred to and surrendered at the same time, make 
§2,060.70, or $7.45 more than the aggregate amount of the 
drafts, and the alleged payment of $519.75. The defendant 
insists that there was also another note of $75 taken up at 
the same time. 

It also appears from the testimony of the plaintiff on 
cross-examination that shortly after the settlement of 
August 3d the plaintiff went to the bank and informed 
Mr. Joslin, the cashier, that a mistake had been made in 
the amount of the note given in settlement and that Mr. 
Joslin also denied that the plaintiff had nuule the cash pay- 
ment of $519.75. The testimony shows that this item 
was the real controversy between the parties and is the 
cause of this litigation. It cannot be doubted that if by 



102 NEBRASKA REPORTS. [Vol. 30 



Hall T. Bank. 



mistake a sum in excess of the legal rate is collected by a 
national bank, it does not taint the transaction with usiirjr. 
It is only where such a bank knowingly charges unlawful 
interest that it is liable for the penalties provided for in 
the act of congress. We are unable to discover any testi- 
mony which would have authorized a finding that the de- 
fendant had knowingly taken or received interest in excess 
of the legal rate. If this disputed item, $619.75, was 
paid as the plaintiff insists, then the note he gave the bank 
in settlement was for a sum greatly in excess of the amount 
due. If there is any usury in the transaction between the 
parties it is in this note which the defendant yet holds. 
The plaintiff, however, insists that if the notes were not 
wholly paid by the drafts and cash payments, that these 
payments should have been applied to extinguish usurious 
interest, and that double the amount thereof would be re- 
coverable. The case of Davis v. Nellgh, 7 Neb., 78, is 
cited to sustain this position. That ease holds that in th^ 
computation of interest where partial payments are made, 
the payment is applied first to discharge the interest, and 
the surplus, if any, goes to reduce the principal. A dif- 
ferent rule, however, obtains where a payment is made on a 
usurious loan. The law is not so inconsistent as to apply 
a payment on such a loan to the discharge of usurious in- 
terest and at the same time exact as a penalty the forfeiture 
of double the amount. This indeed would be a reproach 
upon the law. 

If it be conceded that the note given to the bank by the 
plaintiff at the time of settlement includes unlawful in- 
terest, can it be recovered, the entire note being unpaid? 
Section 5198 of the Revised Statutes of the United 
Stj^tes provides "That the taking, receiving, or reserving or 
charging a rate of interest greater than is allowed by the 
preceding section, when knowingly done, shall be deemed 
a forfeiture of the entire interest, which the note, bill, or 
other evidence of debt carries with it, or which has been 



Vol. 30] JANUARY TERM, 1890. 103 



Hall y. Bank. 



agreed to be paid thereon. In case the greater rate of in- 
terest has been paid, the person by whom it has been paid, 
or his legal representative, may recover back, in an action 
in the nature of an action of debt, twice the amount of the 
interest thus paid, from the association taking or receiving 
the same, provided such action is commenced within two 
years from the time the usurious transaction occurred.'^ 

It is apparent that this section covers two classes of 
cases. The last clause provides that when illegal interest 
has been paid to a national bank, double the amount so 
paid may be recovered back, while, under the first clause 
of the section, if usurious interest has been knowingly 
charged but not paid, a recovery can only be had for the 
amount borrowed; in other words, where illegal interest 
has been added into the note but not paid, it cannot be re- 
covered in an action brought for that purpose. {Brown v. 
Second National Bank, 72 Pa. St., 209.) 

We have considered the case solely upon the plaintiffs 
own testimony, without taking into consideration the testi* 
mony of defense, which very much tended to explain the 
transaction of the parties. As there was no evidence in 
the case upon which the jury could have found for the 
plaintiff, it was not error for the trial court to take it from 
the jury. 

The first and second assignments in the {)etition in error 
relate to the exclusion of certain testimony, but as these 
errors are not referred to in the brief filed, they must be 
considered waived. 

The judgment of the district court is 

Affirmed. 
The other judges concur. 



104 NEBRASKA REPORTS. [Vol. 30 



First Natl. Bank t. Canon. 



First National Bank op Madison v. H. H. Carson. 

[Filed July 2, 1890.] 

1. Burden of Proof: Action on Pkomissory Note. In an action 
on a promissory note, where the answer is a general denial, the 
bnrden of proof is upon the plaintiff to show that the defendant 
executed the note. This burden does not shift to the defendant 
after the note is introduced in eridence, bat remains with Um 
plaintiff through the entire trial. 

49 4381 % New Trial: Ibrelevant Testimony. The admiasion of irrel- 

,S ' evant testimony on a jury trial, to the prejudice of the adyene 

^ ^ party, is good ground for a new trial. 

3. Evidence: Specific Objections. Objection to testimony on 

the ground that it is '* incompetent, irrelevant, and immaterial," 
is specific enouish to apprise the trial court of the real grounds 
of objection to the testimony. 

4. Appeal: County to District Court: New Issues Raised: 

Waiver. Where a cause is appealed from the county court, 
the case should be tried in the district court upon the same 
issues that were presented to the lower court. If the appellee 
goes to trial in the appellate court without objection, upon new 
issues, it is a wairer of the error. 

6. : : . An action was brought in the county 

court upon a promissory note for less than $200. No affidavit 
was filed in said court denying that the note was made, given, 
or subscribed by the defendant, as required by section 1100a of 
the Code. On appeal to the district court, the answer of the 
defendant was a general denial, and a specific plea of forgery. 
Heldj That the answer tendered a difierent issue in the appel- 
late court from that presented in the court of original jurisdic- 
tion. 

6. Instructions. The fourth instruction given at the request of 

the defendant, Ttddf to be based upon the testimony, and rightly 
given. 

7. . Held, Error to refuse ao instruction warranted by the 

testimony and which contains a correct statement of the law of 
the case, if the principles of which have not been covered by the 
charge of the court 



Voi^ 30] JANUARY TERM, 1890. 105 



First Nail. Bank t. Carsiou. 



Error to the district court for Madison county. Tried 
below before Powers, J. 

S. 0. CampbeUy and John B. BarneSy for plaintiff in 
error : 

The execution of the note was not an issue before the 
county judge, and, therefore, could not be made one in the 
district court. {^(yLeary v. Iskey, 12 Xcb., 137; Bnicr v. 
Hmnpall, 16 Id., 128; Fnfler v. Sdworder, 20 Id., G06 ; 
Riiddick V. Vail, 7 la., 44.) As to the fourtli instruction 
asked by defendant: Newton Wagon Co. v. Deirs, 10 Neb., 
292; Turner v. O'Brien, 11 Id., 108; U. P. R. Go. v. 
Ogilvy, 18 Id., 639. As to the testimony of Wohlfonl: 
Dunbier v. Day, 12 Neb., 600; Oropsey v. Aver ill, 8 Id., 
158; High v. Bank, 6 Id., 157. 

Allen, Robinson & Reed, contra: 

An objection to evidence as " immaterial, irrelevant, and 
incompetent,'^ is not specific enough to warrant an appel- 
late court in reviewing a ruling adverse thereto. (Byard v. 
Harkrider, 9 N. E. Rep., 294 ; MoKinsey v. McKee, Id., 
772 ; R. Co. v. Falvey, 3 Id., 392 ; Davis v. R. Co., 2 S. 
E. Rep., 555.) The burden was on plaintiff to establish 
the genuineness of the note (Donovan v. Fowler^ 17 Neb., 
247); and so continued throughout the case (2 Am. & 
Eng. Encyc. of Law, 650, and note). 

NORVAI., J. 

This action was commenced in the county court of 
Madison county, upon a promissory note, of which the fol- 
lowing is a copy : 

"$150. Madison, Neb., Nov. 12, 1887. 

"On the first day of June, 1888,1 promise to pay 
Thos. E. Hall, or order, one hundred and fifty dollars, for 



106 NEBRASKA REPORTS. [Vol. 30 



Fint Nail. Bank t. Caraon. 



value received, negotiable and payable without defalcation 
or discount, wilh 8 per cent interest Yrom date. 

"(Signed) H. H. Carson.'' 

Indorsed on the back: "Thos. E. Hall, E. B. Place.'' 

While both plaintiff and defendant appeared before the 
county court at the trial, the defendant offered no testi- 
mony. A judgment was entered against the defendant for 
$159.80 debt, and costs taxed at |3.55. The defendant 
thereupon removed the cause to the district court by appeal, 
' where the plaintiff filed a petition founded upon the note 
in question. The defendant answered denying the allega- 
tions of the petition, and further answering alleged "that 
the instrument sued on in this case is a forgery, and not 
the genuine promissory note or obligation of the defend- 
ant." The plaintiff presented a motion to strike from the 
answer the specific plea of forgery, which motion was 
overruled by the court. A reply was filed and a trial had 
to a jury, which resulted in a verdict for the defendant 

The first error is assigned upon the ruling of the court 
upon the plaintiff's motion to strike from the answer the 
allegation of forgery. It is claimed that this motion 
should have been sustained, because that part of the an- 
swer presented a new and different issue from that on which 
the case was tried in the county court. The defendant 
made no defense in that court, nor did he file an affidavit 
denying the genuineness of the note. 

Sec. 1100a of the Code provides: "That in all actions 
before justices of the peace, in which the defendant has 
been served with summons in this state, it shall not be 
necessary to prove the execution of any bond, promissory 
note, bill of exchange, or other written instrument, or any 
indorsement thereon, upon which the action is brought, or 
set-off or counter-claim is based, unless the party sought 
to be charged as the maker, acceptor, or indorser of such 
bond, promissory note, or bill of exchange, or other writ- 
ten instrument, shall make and file with the justice of the 



Vol. 30] JANUARY TERM, 1890. 107 



First Natl. Bank t. Garson. 



peace before whom the suit is pending an affidavit that 
such instrument was not made, given, subscribed, accepted, 
or indorsed by him." 

The provisions of this section apply to causes bropght 
in a county court, upon any instrument referred to in the 
section, and which are cognizable before a justice of the 
peace. It is obvious that the genuineness of the note was 
not in issue before the county court In order to have put 
in issue before that court the execution of tlie note, it was 
necessary for the defendant to have filed an affidavit, stating 
therein that it was not subscribed by him. The answer filed 
in the district court, therefore, raised an i&sue of fact that 
was not presented in the court from which the appeal was 
taken. When an appeal is taken to the district court from 
a county court the case should be tried upon the same issues 
that were presented in the lower court. The motion to 
strike from the answer the allegations of forgery was well 
taken, and should have been sustained. (jyLeai^ v. Iskei/, 
12 Neb., 137 ; Fuller et al. v. Schroeder, 20 Id., 636.) Had 
the motion been sustained it would have been no advan- 
tage to the plaintiff^ for the obvious reason that under the 
general denial contained in the answer, the execution of the 
note was put in issue. The plaintiff^ made no objection to 
the general denial, but went to trial on the issue thus tend- 
ered. It thereby waived the error committed in trying the 
cause upon a different issue from that on which the case 
was heard in the county court. 

Upon the trial the defendant testified that he did not 
sign the note, but that the same was a forgery. The 
plaintiff's testimony tended to show that the defendant's 
genuine signature was appended to the instrument. At 
the dose of the testimony the court on its own motion in- 
structed the jury as follows: 

" 1. The plaintiff's action is based upon a certain prom- 
issory note, with the name of the defendant signed to the 
same as maker, of the date November 12th, IS-'^, for the 



108 NEBRASKA REPORTS. [Vol. 30 



First NatL Bank v. Canon. 



sum of $150 and interest; payable to the order of one 
Thomas E. Hall^ and indorsed to the plaintiff. 

'^2. Defendant denies the execution of said note. 

'^ 3. And under the issues as joined it is incumbent upon 
the plaintiff to prove by a preponderance of the evidence 
that the note in suit was executed by the defendant as al- 
leged, that the plaintiff is the owner of same, and that 
said note is now due and unpaid. 

''4. If you believe from the evidence that the note in 
controversy was not executed by the defendant — ^that is, 
that he never signed the same^ or authorized his name 
to be placed thereto by any one, but that his signature was 
placed to said note without his knowledge or consent, then 
you should find for the defendant, although such note may 
have passed into the hands of a bona fide holder before 
maturity. 

"5. The note sued upon is in the form of a negotiable 
instrument, and a holder of negotiable paper who takes it 
before maturity, for a valuable consideration, in the usual 
course of business, without knowledge of facts which im- 
peach its validity as between antecedent parties, is deemed 
a bona fide holder. 

" 6 J. In order to defeat a promissory note in the hands 
of a bona fide holder it is not enough to show that sucli 
note was without consideration, nor is it sufficient to show 
that such purchaser took it under circumstances calculated 
to excite suspicion. To defeat such note in the hands of a 
bona fide holder it must appear, by a preponderance of the 
evidence, that such purchaser was guilty of a want of honesty, 
or of bad faith, in acquiring it. A party purchasing a 
promissory note is under no obligation to call upon the 
maker and make inquiry as to possible defenses which he 
may have, but of which the purchaser had no notice, either 
from something appearing on the face of the paper or 
from facts communicated to him at tlie time, nor to make 
inquiry as to the identity of the indorser, in order to re- 
cover from the maker of such note. 



Vol. 30] JANUARY TERM, 1890. 109 



Jlnt Natl. Bank t. Canon. 



" 6. If you believe from the evidence that the defendant 
executed and delivered the note in question as alleged^ and 
you further find from the evidence that the plaintiff pur- 
chased the same before maturity in the usual course of 
business, and for a valuable consideration, without knowl- 
edge of any facts which might impeach its validity, as 
between the said Carson and the person to whom the note 
was given, then the plaintiff is entitled to recover, although 
you may believe from the evidence that said Carson never 
received any consideration for said note. 

** ?• If you find from the evidence that defendant exe- 
cuted and delivered the note in suit, and that the plaintiff 
purchased the same before maturity for a valuable con- 
sideration, and without a knowledge of facts whicli might 
impeach its validity, as between Carson and the person 
to whom the note was 'given, the plaintiff is entitled to 
recover in this suit, although you may believe from the 
evidence that (he defendant was swindled in the transact 
tion, and received no consideration for said note. And 
the plaintiff, if it purchased the note as aforesaid, was not 
required in law to call upon and inquire of the defendant 
if he had a defense to said note, but might rely upon the 
genuineneas of the maker^s signature to the note as a right 
to recover thereon. 

'^ 8. If you find that he did so execute said note as 
aforesaid, he must suffer the loss, if any, he has sus- 
tained thereby, because it is a maxim of the law, that 
where one of two persons must be made to suffer from the 
fraud or misconduct of another, the one who placed within 
the power of such person to perpetrate the fraud or to do 
the wrong must bear such loss. 

'^ 9. The credibility of witnesses that have been examined 
in your hearing is for you to determine, and where wit- 
nesses have testified directly the opposite to each other, it 
is your duty to say, from the appearance of such witness 
while so testifying, their manner of testifying, their appar- 



no NEBRASKA REPORTS. [Vol. 30 



First Natl. Bank v. Carson. 



ont candor and fairness, their apparent intelligence, or 
want of candor, intelligence, and fairness, their interest or 
want of interest in the result of the litigation, and from 
these and all the other surrounding circumstances appearing 
on the trial, which of such witnesses are the more wortliy 
of credit, and to give credit accordingly. 

" 10. If you find for the defendant, you will so state in 
your verdict. 

"11. If you find for the plaintiff, the measure of its 
damage will be the amount of said note and interest, as 
shown thereon. 

" 12. When you have retired to your jury room, you 
will select one of your number foreman, who will, when 
you have agreed upon * a verdict, sign the same, and you 
will then return into court with such verdict.'^ 

No complaint is made to the giving of any of these in- 
instructions. Objection is made to the fourth instruction 
given at the request of the defendant, which is as follows : 

"As applied to this case, forgery would consist in the 
false making of the instrument sued on, with intent to dam- 
age and defraud any person or persons, body politic or 
corporate, and if you find from the evidence that the in- 
strument sued on was not executed by the defendant, or by 
any other authorized person in his name, but was executed 
in the name of the defendant by Thomas E. Hall, or any 
other person having no authority to so execute it^ with 
intent to negotiate it and defraud thereby some other per- 
son, it would be forgery, and the plaintiff cannot recover/* 

The criticism made to this instruction is, that no testi- 
mony was given on the trial which tended to show that 
Thomas E. Hall signed the defendant's name to the note. 
The testimony discloses that the defendant and Hall, at 
about the date of the note, entered into a contract whereby 
Hall undertook to furnish the defendant a patent stove 
burner to sell on commission. Soon after the note turns 
up in E. P. Place's hands, containing Hall's indorsement 



Vol.30] JANUARY TERM, 1890. Ill 



First NaiL Bank t. Canon. 



If^ as the defendaDt testified^ he did not execute the in- 
strumenty it must have been forged. We find sufficient 
evidence in the bill of exceptions to warrant the jury in 
finding that the note "was executed in the name of the 
defendant by Thomas E. Hiall^ or some other person hav. 
iug no authority to do so." 

The plaintiff asked the court to instruct the jury that 
" If you find from the evidence that the defendant signed 
the note sued upon in this action^ and that the plaintiff 
purchased it, you will find for the plaintiff.'' The refusal 
to give this request is assigned as error. The only issue 
made by the pleadings was. Did the defendant sign the 
note and did the plaintiff purchase it? If the jury found 
both in favor of the plaintiff, as they could have done 
under the evidence, then the plaintiff was entitled to a ver- 
dict. That this request stated the law correctly cannot be 
questioned. The defendant insists that the doctrine of the 
request is contained in the general charge of the court, and 
for that reason no error was sustained. The sixth and 
seventh paragraphs of the court's charge were not so favor- 
able to the plaintiff. In those instructions the jury were 
told, that before they could find for the plaintiff they must 
find not only that the note was genuine, but that the plaint- 
iff purchased it, "without knowledge of facts that might 
impeach its validity as between Carson and the person to 
whom the note was given.'' The want of consideration, 
or whether the bank was an innocent purchaser, were not 
in issue in the case. The sixth and seventh paragraphs of 
the instructions were therefore too favorable to the defendant 
and should not have been given and the plaintiff's prayer 
■hoald have been granted. 

The plaintiff in error also makes the point, that the 
oourt erred in refusing to give its third request, as follows: 

" 3. After the note was admitted in evidence, the burden 
of proof was upon the defendant to establish forgery, and 
it must be established by a preponderance of the evidence." 



^ 



112 NEBRASKA REPORTS. [Vol. 30 



First NatL Bank t. Canon. 



This instruction was properly refused. The burden was 
upon the plaintiff to establish the genuineness of the note 
by the preponderance of the evidence. This burden did 
not shifl to the defendant after the note was introduced in 
evidence, but remained with the plaintiff through the en- 
tire trial. (Donovan v. Fowler, 17 Neb.i247; Holmes v. 
Riley, 14 Kan., 131.) 

The plaintiff called as a witness A. W. Whulford, the 
president of the plaintiff bank, who testified on direct ex- 
amination, that he purchased the note for the plaintiff from 
a Mr. Place, and that he was acquainted with the defend- 
ant's handwriting, had^seen him frequently write his name, 
and that the signature to the note was that of the defend- 
ant Carson. On cross-examination the witness Whulford 
testified in answer to questions as follows: 

Q. Did you take the precaution to see Mr. Carson and 
inquire of him before buying the note? 

A. I did not before buying the note. 

Q. Had Mr. Place been introduced to you by any repu- 
table business man? 

A. No, sir. 

Q. Did you make any inquiry outside of Place himself 
as to who he was and what he was doing? 

A. I cannot say. 

Q. What is your best recollection about it? 

A. I don't think that I made any inquiry about it. I 
compared the signature on the note with signatures on other 
notes. 

The plaintiff objected to each question, as incompetent, 
irrelevant, and immaterial, and took an exception to the 
ruling of the court. 

This testimony did not in any manner tend to throw any 
light upon the issue the jury were catled upon to try. 
Whether or no the bank was an innocent holder of the note 
was immaterial. The evidence bearing upon the genuine- 
ness of the note was very conflicting, and the testimony 



Vol. 30] JANUARY TERM, 1890. 



113 



Hoack V. Que. 



objected to Iiad a tegidency to prejudice tlie jury against the 
plaintifT. Doubtless the jury were led by this testimony 
to believe that the bank was negligent in purchasing the 
paj>er, without making inquiry of the defendant if he had 
a defense to the note. 

It is claimed on behalf of the defendant^ that the objec- 
tion to the testimony on the ground that it is "incompetent, 
irrelevant, and immaterial/' is not specific enough to pre- 
sent any question for review* A number of decisions are 
cited from the supreme court of Indiana sustaining this 
position. While we entertain a high opinion for the decis- 
ions of that court, we cannot follow them on this question 
of practice. The objection was specific enough to apprise 
the trial court of the plaintiff's real ground of complaint. 

As there must be a new trial we will not express an opin- 
ion on the sufficiency of the evidence to sustain the ver- 
dict. • 

The judgment of the district court is reversed and the 
cause remanded for further proceedings. 



B£V£RSED AND BEMANDED. 



Th£ other judges concur. 



DoRSEY B. HoucK V. Joseph H. Gub. 
Same v. Daniel C. Hubley. 



30 
86 


^ 


43 


■to' 

272 


47 


118 



[Filed July 2, 1890.] 

1. Trial : Directing Yebdiot. If a triftl oonrt directs a rerdiot 
for either party, in a case where the testimony is conflicting 
upon a material fact, it is error. 

3. : Bight of Abgumbnt. In a case tried to a jary, where 

a material £^1 is in dispate, either party has an absolate right 
« to have his counsel argue the question of fact to the jury. 
8 



114 NEBRASKA REPORTS. [Vol. 30 



Houck ▼. Gne. 



3. The instructioilB reqaested bj the deltudant were properly 
refused. 

Error to the district court for Douglas count/. Tried 
below before Grofp, J. 

JohnL, Webster, for plaintiff in error, cited, as to direct- 
ing tlie verdict: Hilliard v. Goold, 34 N. H., 230 ; Iiiloes 
V. Bank, 11 Md., 173 ; Way v. R. Co., 35 la., 587 ; EUis 
V. Ins. Co., 4 O. St., 628 ; Johnson v. R. Co., 18 Neb., 696; • 
Aidlman v. Stout, 15 Id., 586 ; A. & N. R. Co. v. Baily, 
n Id., 332; Deitrich v. Hutchinson, 20 Id., 52. As to 
the right of argument: Code, sec 283; Douglass v. Hill, 
29 Kan., 527. 

Estabrookj Irvine & Clapp, contra. 
NORVAL, J. 

These causes being alike in the facts, by consent were 
tried together. The defendant in error Gue sued the 
plaintiff in error Houck and one Alexander Benham in 
the district court to recover the sum of J274 and interest, 
claimed to be due him for keeping and boarding eight 
head of horses. The cause was tried to a jury, with a ver- 
dict and judgment in favor of Gue and against both 
Houck and Benham. In the second case Hurley sued 
Houck and Benham to recover $240 and interest for care 
and board of seven* horses. The verdict and judgment in 
the case were against both defendants. In each case 
Houck prosecutes a petition in error. 

In May, 1887, the plaintiff in error, Dorsey B. Honck, 
was a constable of the city of Omaha, and in his official 
capacity executed a writ of replevin placed in his hands, 
commanding him to take and deliver to one J. H. Mc- 
Shane a certain building then occupied by Alexander Ben- 
ham as a livery stable. In executing the writ the ooq- 



Vol. 30] JANUARY TERM, 1890. 115 



Houck ▼. Gue. 



Stable removed from the building several horses owned by 
Benham, and tied them in the street near the stable^ where 
they remained several hours without water or food. Ben- 
bam having refused to take possession of the horses, 
Houck took eight of them to the stables of Gue and seven 
to the stables of Hurley. Gue and Hurley both testify 
that they were not aware when they received the horses that 
they belonged to Benham, or that they had been aban- 
doned by the owner. Shortly afterwards they learned 
that the horses belonged to Ben ham, who called frequently 
to see them, but did not offer to take them away. There 
is no dispute as to the value of the care and feed bestowed 
by the plaintiffs. 

The plaintiffs called as a witness the defendant Dorsey B. 
Houck, who testified that when he took the horses to the 
plaintiffs, he informed them that he had replevied Ben- 
ham's barn, and that the horses belonged to him; that 
they had been taken out of the barn and tied in the street 
The witness further testified that he told the plaintiffs that 
he had no interest in the horses, but desired to put them 
in some place, to get them out of the street. 

The defendants introduced no testimony. Houck's at- 
torney attempted to argue the case to the jury, when he was 
stopped by the court, and instructed the jury to find for 
the plaintiffs. 

The most of the brief of counsel on either side is de- 
voted to the discussion of the liability of a constable for 
feed and care bestowed by a third party at his request, 
upon property received by him in his official capacity. 
We do not think that question is presented by the record 
before us. Houck had no writ for these horses and he did 
not have charge of them as an officer. He had a writ of 
replevin for the barn, but that did not authorize the officer, 
in executing the process, to engage food and care for the 
stock he removed from the building. Whether Houck 
was personally liable for the attention bestowed by* the 



116 NEBRASKA REPOHTS. [Vol. 30 



Houck y. Gae. 



plaintifTs was a question of fact to be determined by the 
jury from all the evidence. 

If it be true, as the plainliflTs testify, that Houck did not 
disclose who was the owner of the stock when it was com- 
mitted to their care, and that the plaintiffs did not know 
whose pro[>erty it was, then doubtless Houck would be 
liable in his action. But, on the other hand, if Houck at 
the time informed the plaintiffs the circumstances under 
which lie received the horses and that he had no interest in 
them, but that they belonged to Benham, and to let him 
have them when called for, then there was testimony from 
which the jury could have found that Houck was not 
liable. The evidence is conflicting, and certainly does not 
conclusively show that there was an implied contract that 
the feed bill should be charged to Houck. As there was 
testimony before the jury tending to establish the nonlia- 
bility of the defendant, he was entitled to have it sub- 
mitted to and weighed by the jury. The court, therefore, 
erred in directing the jury to find for the plaintiffs. {Hall 
V. Vamier, 6 Neb., 85; Orant v. Cropaey, 8 Id., 205.) 

The learned district judge who presided at the trial doubt- 
less overlooked the testimony of Dorsey B. Houck, or the, 
jury would not have been instructed to find for the plaintifls. 

The defendant Houck requested the following instruc- 
tions, which were refused : 

''1. The defendant, Dorsey B. Houck, cannot be held 
liable in these cases unless the jury find from the evidence 
that there was a present understanding between the plaintiffs 
and defendant Houck, at the time the plaintiffs received the 
horses, that Houck should be held liable for the keeping of 
the same. 

"2. If the jury find from the evidence that the plaint- 
iffs received the horses from defendant Houck in his 
official capacity as constable, then the plaintifis are not 
entitled to recover in this action against Dorsey B. Houck, 
as he is sued as an individual and not as such officer." 



Vol. 30] JANUARY TERM, 1890. 117 



Alexander t. Plattsmouth. 



The court did not err in refusing these requests. It is 
not claimed that there was an express agreement that 
Houck should pay for the keeping of the stock, but the 
contention of the plaintiffs is that the facts were such that 
the law would imply an obligation to pay. The first re- 
quest was therefore misleading. The second request was 
objectionable on the same ground. Houck in taking the 
stock to the plaintiffs was performing no oBBcial act. It 
would have been error to have granted either of the de- 
fendant's requests. 

The court refused to permit the counsel for the defend- 
ant to argue the facts to the jury. This ruling, we presume, 
was made upon the theory that there was no evidence upon 
which a verdict for Houck could have been sustained. Had 
such been the case, the refusal to allow any argument would 
have been proper. But as the testimony was conflicting 
upon a material matter in issue, the defendant had an abso- 
lute right to have his counsel argue the facts to the jury. 
{Douglass v. Hilly 29 Kan., 527, and cases there cited.) 

The judgment of the district court will be reversed and 
the cause remanded for further proceedings in accordance 
with the views herein expressed. 

Revebsed and remanded. 

The other judges concur. 



A. E. Alexander v. City of Pj.attsmouth. 

[Filed July 2, 1890.] 

Tax-Liens: Eminent Domain: Damages: Limit attoks. In 
September. 1871, M. parchas^d certain lots sitnnted in the city 
of Plattemontn, at treasurer's tax sale. On September 5, 1873, he 
surrendered to the conntj treasurer the oertificatee of purchase 



118 NEBRASKA KEPORTS. [A^ol. 30 



Alexander ▼. FlatUmonth. 



and reoeired a tax deed for tfae lots. The deed failed to oonyej 
the title by reason of the treasurer omitting to attach bis oflBcial 
seal. M. sabseqnently oonvejed the lots to the plaintiff. In 
1872, the authorities of the city of Plattsmonth located and 
opened a street diagonally across the lots, leaving undisturbed 
a portion of each. The damages sustained on account of the 
location and opening of the street was appraised and paid to 
the respective lot owners in 1872. Neither M. nor the plaintiff 
was notified of the appraisement proceeding!. In 1888 this 
action was brought to recover damages for lessening of plain t< 
iff's security. HM, (1) That as the value of the parts of the 
lots not taken by the city exceeded the amount of the tax Hen, 
the action could not be maintained ; (2) That the suit is barred 
by the statute of limitations* 

Error to the district court for Cass county. Tried 
below before Chapman, J. 

8. P. & E. G. Vanatta, for plaintiff in error, cited : Jones, 
Mortgages, sec. 710; Otoe County v. Mathewa, 18 Neb., 
466; Forgyv. ilen-yman, 14 Id., 513. 

Byron Clark^ contra, cited: Mills, Eminent Domain, 
sees. 65, 74; Desty, Taxation, j)p. 1, 2, 6, 7; Sevenn r. Cole, 
38 la., 463; Jones, Mortgages [2d Ed.], sees. 708, 1625.31 ; 
Oraham v. Flynn, 21 Neb., 232, and cases; Meiriam v. 
Cofee, 16 Id., 451. 

NORVAL, J. 

On the 4th day of September, 1871, S. N. Merriam pur- 
chased at tax sale certain lots situated in the city of Phitts- 
mouth, for the taxes of 1870. Subsequently he paid the 
taxes on the lots for the years 1871, 1872, 1873, and 1874., 
The lots not having been redeemed on September 5, 1873, 
Merriam surrendered to the county treasurer the certificates 
of purchase, and the ti*easurer executed and delivered a 
tax deed for the lots to Merriam, who afterwards conveyed 
to the plaintiff. 

The deed issued by the treasurer failed to convey the 



Vol. 30] JANUARY TERM, 1890. 119 



Alexander y. Plaitsmouih. 



title to the lots^ by reason of the treasurer failing to attach 
his official seal thereto. 

On the 2l8t day of February, 1872, the mayor and city 
oouncil of the city of Piattsinouth passed an ordinance cre- 
ating Chicago and Washington avenues, and the city con- 
demned and appropriated a part of eacli lot purchased at 
the tax sale by Merriam, for the purpose of opening these 
avenues. The damages sustained by reason of the location 
and opening of these avenues were appraised, as required by 
law, on March 28, 1872, and notice was given to the lot 
owners, but not to Merriam or the plaintiff. The damages 
awarded were paid to the respective lot owners. The 
avenues were located diagonally across the lots, and a large 
portion of each lot was left undisturbed. The fractional 
lots left are of sufficient value to satisfy the plaintiff's 
claim. The city authorities, in 1872, took possession of 
that part of the lots taken for street purposes, and the 
same has ever since been used by the public. 

On February 14, 1888, this action at law was com- 
menced to recover damages the plaintiff claims to have 
sustained by reason of the defendant appropriating a por- 
tion of each of said lots for public streets. The cause was 
tried to the court, who entered judgment for the defendant. 

It will be observed that this is not an action to foreclose 
a tax lien, but one to recover damages for lessening plaint- 
iff's security. Unless the plaintiff has been injured by rea- 
son of the opening of these streets for public use, it would 
seem clear that the plaintiff has no just cause for complaint. 
The undisputed testimony is, that the value of the portion 
of each lot nat condemned by the city, is much greater 
than the amount of the tax lien claimed by the phiintiff. 
That being true, the plaintiff has not been damaged. No 
suit has been brought by the plaintiff to enforce his lien 
against that part of the lots not condemned. The defend- 
ant in any event would only be liable for any deficiency 
remaining after the plaintiff had exhausted the other seeu- 



120 NEBRASKA REPORTS. [Vol. 30 



I 86 8891 



Walker y. HAggtrtj, 



rity. Had the lot owners sold to an individual that portion 
of the lots appropriated by the city, the plaintiff would 
have been compelled to exhaust the part unsold before he 
could enforce the lien against the portion sold. That the 
defendant acquired the property under the law of eminent 
domain does not change the rule. (Severin v. Cole, 38 Ll, 
463.) 

Again, this action is barred by statute of limitations. 
If the plaintiff's security has been diminished, by the ap- 
propriation of a part of the lots for public use, the injury 
occurred in 1872, or more than fifteen years before this suit 
was instituted. If a cause of action ever existed, it ac- 
crued at the time the streets were located and opened. 

The judgment of the district court was right and is 

Affium£D. 
The other judges concur. 



Samuel Walker v. Patrick Haogerty. 

[Filed July 2, 1890.] 

Promissory Kote : Ck)N8iDBBiiTiON : Parol Evidenoe Re- 
OAEDING. While parol testimony mmj not be receiyed to 
contradict or vary the terms of a promissory note, yet the con- 
sideration for which it was given may be established by parol 
testimony. 

Instructions: Objections to the giving of instructions will 
not be considered by the supreme court unless assigned in the 
motion for a new trial. 

. It is error to give an instruction not warranted by the 



pleadings and evidence. 



: False Tkstimony. The jury was instructed " that if 

any witness has willfully testified falsely as to any material fact 
in the case, you are at liberty to disregard the entire testimony 



Vol. 30] JANUARY TERM, 1890. 121 



Walker t. Hagg«rty. 



of incfa witness anl«s8 his tcstimonj be corroborated by other 
evidence.'' Held, Correct as an abstract proposition of law, and 
that it was justified by the evidence- 

Error to the district court for Cuming county. Tried 
below before Norris, J. 

Tho8. CyDay, and Lancaster^ Hall & Pike, for plaintiff in 
error, cited, as to the admission of testimony regarding the 
consideration : Ervin v. Saunders, 1 Cow. [N. Y.], 249 [13 
Am. Dec., 620]; Thompson v. Ketcham, 8 Johns. [N, Y.], 
190 [6 Am. Dec., 330]; StackpoU v. Arnold, 11 Mass., 27 
[6 Am. Dec., 150]; Harrison v. Moi^ison, 40 N. W. Rep. 
[Minn.], 66 ; Curtice v, Hokanson, 38 N. W. Rep. [Minn.], 
694; Miller v. Edgertm, 15 Pac. Rep. [Kan.], 894; Parkei- 
V. itorriU, 3 S. E. Rep. [N. C], 511 ; Dolsen v. DeGanaM, 
8 8. W. Rep. [Tez.], 321 ; Armstrong v. Scott, 36 Fed. 
R6p., 63; Gallery v. Bank 2 N. W. Rep. [Mich.], 193; 
2 Parsons, Notes and Bills, p. 501; Gridley t?. Dole, 4 
Comst. [N. Y.], 486 ; Hunt v. Adams, 7 Mass., 518 ; PHt r. 
Ins. Co., 100 Mass., 500; Jones v. Jeffries, 17 Mo., 577; 
Hoare v. Graham, 3 Camp. [Eng.], 67 ; Anspach v. Bast, 
62 Pa. St., 356 ; Harris v. GMraith, 43 III., 309; Benja- 
min, Sales, [4th Ed.], sec. 452 ; Campbell v. Flemming, 1 Ad. 
& E. [Eng.], 40; Parsons, Contracts, [7th Ed.] p. 208; 
Shields V, Petlee, 2 Sandf. [N. Y]., 262; 3 Randolph, Com. 
Paper, sec. 1899; St. Louis Ins. Co. v. Homer, 9 Mete. 
[Mass.], 39; Eaves v. Henderson, 17 Wend. [N. Y.]. 190; 
Clark V. Halt, 49 Ala., 86 ; Featherston v. Wilson, 4 Ark., 
164; 2 Phil, Evid., 673, n. 495. 

Hall & McCuMoch, cotUra. 

NORVAL, J, 

This suit is upon a promissory note for $5,800 with ten 
per cent interest, bearing date May 15, 1883, given by the 
ilefendant to A. N. Schuster & Co., and by them indorsed 



n 



122 NEBRASKA REPORTS. [Voi. 30 



Walker y. Haggerty. 



after maturity to the plaintiff. The defendant has made 
the following payments upon the note : 

June 23, 1883, $500; July 12, 1883, $800; September 
1, 1883, $500; October 16, 18S3, $500; May 31, 1884, 
$400; June 21, 1884, $25; making a total of $2,725. 

The answer admits the execution of the note, the mak- 
ing of the above payments, and pleads that the note was 
given to close up an unsettled account between the defend- 
ant and A. N. Schuster & Co. ; that at the time the note 
was given, the payees promised to forward to the defendant 
goods to the full amount of the difference in the account, 
amounting to the sum of $3,075, which the payees have 
wholly failed and refused to do, and that said note was 
given for no other or greater consideration than the sum 
of $2,725, which sum has been fully paid to the said A. 
N. Schuster & Co. The answer allies that the plaintiff 
received the note after maturity. The reply was a general 
denial. 

A jury was impaneled to try the cause, who, after hear- 
ing the evidence, the argument of counsel, and instructions 
of the court, returned a verdict for the defendant, where- 
upon the plaintiff presented a motion for a new trial, 
which was overruled, and a judgment was rendered for the 
defendant. The plaintiff brings the case here for review, 
assigning the following errors : 

1. The court erred in allowing any evidence on the part 
of the defendant to be introduced at the trial of this cause, 
because the answer fails to state facts suiGcient to consti- 
tute a defense. 

2. The court erred in allowing the defendant over the 
objection of the plaintiff, to introduce parol evidence to con- 
tradict or change the terms of the note. 

3. The court erred in giving paragraph sixth of the in- 
structions given by the court on its own motion. 

4. The court erred in giving paragraphs 3, 4, 5, and 6 
of the instructions asked by the defendant. 



•Vol. 301 JANUARY TERM, 1890. 123 



Walker y. Haggerty. 



5. The verdict is not sustained by sufficient evidence. 

6. The court erred in overruling the motfon of plaintiff 
for a new trial. 

Prior to the examination of the witnesses for thedefense, 
the plaintiflF objected to the introduction of any testimony 
on the part of the defendant for the alleged reason that the 
answer fails to state a defense. While the answer does not 
contain a full statement of the facts, yet sufficient facts are 
pleaded to constitute a defense against the note. The an- 
swer charges that the only consideration the defendant ever 
received for the note was the sum of $2,725, and which 
amount it allies has since been fully paid. For the bal- 
ance of the amount expressed on the face of the note, to* 
wit, $3,075, it is averred that A. N. Schuster & Co. agreed 
to send to the defendant goods for that amount and that 
they had failed and neglected to do so. If the allegations 
of the answer are true, it is clear that there is not due the 
plaintiff the amount claimed in his petition. 

The testimony of the defendant tends to show that he 
• was engaged in the mercantile business and had from time to 
time purchased on credit from the payees of the note goods 
to the amount of several thousand dollars. This note was 
given in settlement of the account. The defendant further 
testifies that when the note was executed, he claimed a 
credit on the account for $2,900 or $3,000 for goods that 
had been sent contrary to orders and that were unsalable, 
and that the agent of A. N. Schuster & Co. at the time 
agreed to credit the note for the amount claimed. The 
plaintiff objected to the receiving of this testimony on the 
ground that it contradicted the terms of the note. The 
testimony was not offered for that purpose, nor did it have 
that effect. The object of this testimony was to show the 
real consideration for the note sued upon. If the defend- 
ant was entitled to a credit upon the account for the amount 
claimed by him, then he was not indebted to the plaintiff in 
the sum of $5,800, and the note did not truly expi'ess the 



124 KEBRASKA REPORTS. [Vol.30 



Walker y. Haggerty. 



amount of the defendant's indebtedness to the payees. While 
parol testimony cannot be received to contradict the terms 
of the note, it was clearly admissible to show the true con- 
sideration for which it was given. 

Charles M. Edwards testifies that he was the person who 
took die note from the defendant ; that at that time there was 
a balance of $5,879.75 due from defendant to A. N. Schus- 
ter & Co. on an account for goods sold and delivered ; that 
the defendant made no claim at the time the note was given 
for any damages, or that the goods had not been received, but 
on the contrary admitted the goods had been received in 
goo<l condition; that the only thing that he mentioned was 
that some frock suits sent to the Rose Bud Agency could 
not be sold to the Indians. The witness further states that 
he and the defendant cheeked the account over with the 
defendant's books, and found that there was due from him 
the sum of $5,879.57 ; that the defendant paid in cash 
$69.30, and that the witness made him a credit of $10.27 in 
full for all claims made by him, and, to close up the bal- 
ance of the account, the defendant gave the note in suit 

The bill of exceptions contains other testimony which 
tends to corrol)orate the witness Edwards. 

As we view the case, it will not be necessary for us to 
determine which side has the preponderance of the evidence, 
for it is apparent that the testimony produced on behalf of 
the defendant fails to support the verdict returned by the 
jury. If, as the defendant claims, he was entitled to a 
credit ior $3,000, then at the date of the giving of the 
note he was indebted to A. X. Schuster & Co. in the sum 
of $2,800. At various times during the thirteen months 
following the execution of the note the defendant paid 
thereon sums aggregating $2,725. Thus, according to 
the defendant's own testimony, there was due the plaintiff 
at least $75 and interest. Yet the jury found for the de- 
fendant. 

True, something is said in brief of counsel for the de- 



Vol. 30] JANUARY TERM, 1890. 126 



Walker v. Haggerty. 



feudant about too much interest being charged on the 
account and included in the note. The statement of the 
account in evidence shows $491.25 was allowed as interest. 
No complaint is made in the answer in r^ard to the item 
of interest^ nor does the defendant in his testimony claim 
that the proper amount of interest was not charged. The 
larger part of the account had been due nearly a year before 
the giving of the note and the payees were entitled to re* 
ceive interest thereon. 

The third assignment in the petition in error is based 
upon the sixth paragraph of the instruction given by the 
court on its own motion^ which reads: 

'^ You are instructed that if at the time the note in suit 
was given Charles M. Edwards^ the agent of A. N. 
Schuster & Co., the payees of said note agreed with defend- 
ant that said A. N. Schuster & Co. would make to defend- 
ant the allowance as claimed by defendant, on account of 
unsalable goods, and goods not ordered by defendant, 
charged against defendant by said A. N. Schuster & Co. in 
the account for which said note was given and thereby ob- 
tained said note from defendant, such agreement is valid 
and binding against said A. N. Schuster & Co., and de- 
fendant is entitled to set-off any amount the evidence may 
show to be due from A. N. Schuster & Co. to defendant on 
account thereof against the amount due upon the note sued 
on in this action.'' 

While the defendant took an exception to this instruc- 
tion when given, yet having made no complaint in his 
motion for a new trial of the giving of the instruction, we 
cannot now consider it here. Errors in giving or refusing 
of instructions must be pointed out in the motion for a 
new trial. (Schreckengast r. JSb/y, 16 Neb., 514; Nyce v. 
Shaffer, 20 Id., 509; Shoirin v. (yOwinor, 24 Id., 605.) 

The court, at the request of defendant, told the jury : 

''That a principal cannot accept such parts of an agent's 
contract as are beneficial to him and disclaim such as are 



'^ 



126 NEBRASKA REPORTS. [Vol. 30 



Walker ▼. Haggerty. 



to his disadvantage^ but must accept or reject ail. And 
if he retains the benefits of the agent's bargain he must 
complete the contract on his part." 

This request contains a fair statement of the law upon 
that subject and was based upon the testimony in the case. 
The rule undoubtedly is tliat a principal cannot accept 
a part of the acts of his agent and reject the balance. 
Edwards settled with the defendant and took his note and 
turned it over to the payees therein named^ A. N. Schuster 
& Co., who accepted and retained it. The payees there- 
fore were bound by the agreement of Edwards made when 
the note was taken. 

fiy the fourth request given on behalf of the defendant 
the jury were instructed : 

"That if A. N. Schuster & Co.'s agent procured the 
note on Patrick Hagerty for $5,800 upon an agreement to 
allow a credit for unsalable goods, and not ordered, or to 
send new goods of equal value, that they cannot retain the 
note and refuse to carry out the agreement upon which it 
was obtained." 

There is not a scintilla of testimony in the record tending 
to show that the note was procured upon any agreement 
that the payees should send to the defendant new goods in 
the place of unsalable goods or goods not ordered. While 
that issue was presented by the answer, there was no proof 
to sustain it. The instruction was therefore misleading 
and assumed a fact not proven. 

Exception is taken to the fifth instruction given on the 
defendant's motion, which informed the jury "that if any 
witness has willfully testified falsely as to any material 
fact in the case, you are at liberty to disregard the entire 
testimony of such witness unless his testimony be corrob- 
orated by other evidence." It is not claimed that this is 
not a correct statement of the meixim falaus in uno, falmut 
in omnibuSy but it is urged that there was no evidence be- 
fore the jury to which it could apply. It is conceded that 



Vol. 30] JANUARY TERM, 1890. 127 



Walker y. Haggerty. 



the maxim caunot be applied to immaterial testimony. The 
witness Edwards and the defendant Haggerty contradict 
each other in almost every particular, as to the conversa- 
tion that occurred between them when the note was given. 
The plaintiff insists that this testimony was immaterial. 
As stated elsewhere in this opinion, the testimony relating 
to the agreement of the parties at the time of the execu- 
tion of the note was material, and therefore the above in- 
struction was applicable. It would have been error to have 
refused it for another reason. Plaintiff's witness Edwards 
testifies that the defendant made a claim for offsets in the 
sum' of (10.27 for some unsalable frock coats and that he 
gave the defendant credit for that amount on the account. 
The plaintiff read the deposition of one Johnson, the book- 
keeper of A. N. Schuster & Co., who stated that the account 
attached to his deposition was a true account between the 
defendant and A. N. Schuster & Co. While the account 
balances, it contains no credit for $10.27. This evidence 
before the jury made the instruction proper. 

At the request of the defendant, the jury were instructed 
''that the legal rate of interest on the accounts, as shown 
in the evidence and under the proof, is seven per cent, and 
the plaintiffs, A. N. Schuster & Co., could not charge de- 
fendant more than that upon their account up to the time 
the note was given.'' The question of interest upon the 
account was not put in issue by the pleadings, and the 
court erred in submitting it to the jury. 

The larger part of plaintiff's brief is devoted to the rul- 
ings of the district court upon the admission of testimony, 
but as not a single error in that respect is assigned in the peti- 
tion in error, we are precluded from considering the same. 

It follows from what has been said that the judgment of 
the district court must be reversed and the cause will be 
remanded for a new trial, 

Reyebsed and bemanded. 

The other judges concur. 



1 



128 NEBRASKA REPORTS. [Vou 30 



Banks y. Omaha Barb Wire Co. 



SO 128 

^ »* George E. Banks, Assignee, v. Omaha Barb 

30 128 -riT ^ 

97 650 Wire Co. 

[Filed July 2, 1890.] 

Assignment for Creditors: Pbiob Pbefbbences. If an in- 
aolyent debtor, within thirty days before the making of a general 
assignment for the benefit of his creditors, with a view to give a 
preference to a creditor, gives a real estate mortgage and collat- 
eral notes to secure an indebtedness created more than nine 
months before, and the creditor has at the time a reasonable 
cause to believe that the debtor is insolvent, held^ that stich se- 
curity was given in fraud of the assignment laws of this state, 
and is void. 

Appeal from the district court for Hitchcock county. 
Heard below before Cochran, J. 

Tho8. Golfer, and Bartlett, Baldrige, Ledwich & Q-ane, 
for appellant 

jEf. W. Cole, and W. 8. Morlan, contra. 

Citations of counsel are, in the main, referred to in 
opinion. 

NORVAL, J. 

This action was brought by the plaintiflF, George E. 
Banks, as assignee of Mrs. E. H. Richardson, an insolvent 
debtor, to set aside a real estate mortgage alleged to have 
been given by said Richardson to the defendant in prefer- 
ence to her other creditors, and in fraud of the insolvency 
laws of this state, and also to recover certain collateral 
notes allied to have been delivered by Richardson to the 
defendant for the same purpose. A decree was entered in 
the district court in favor of the plaintiff, and the defend- 
ant appeals. 



Vol.. 30] JANUARY TERM, 1890. 129 



Bauks V. Oniuba Barb Wire Ck>. 



For more than a year prior to the 4th day of September, 
1886, Mrs. E. H. Richardson was engaged in the hard- 
ware business in the town of Stratton, in Hitchcock 
county, and on that day she made a general assignment to 
the sheriff of said county, of all her property for the benefit 
of all of her creditors, which assignment was duly recorded 
on the day of its date. The sheriff took immediate posses- 
sion of the assigned property. The plaintiff, being elected 
as assignee of the assigned estate, accepted the trust, gave 
the required bond, and entered upon his duties as assignee. 
On the Ist day of October, 1885, Mrs. Richardson became 
indebted to the Omaha Barb Wire Co. in the sum of (905, 
for goods purchased of it at that time. To secure this in- 
debtedness, Mrs. Richardson, on the 25th day of August, 
1886, executed and delivered to the defendant a mortgage 
on lot 7, block 9, in the town of Stratton, and also de- 
livered to the defendant, as collateral security to said in- 
debtedness, several promissory notes owned by her, and 
amounting to several hundred dollars. The collateral 
notes and the real estate were included in the deed of 
assignment. The defendant has since collected on these 
collaterals (251.82. At the time of the execution of the 
mortgage Mrs. Richardson was insolvent and contem- 
plated making an assignment for the benefit of her cred- 
itors, in case she was pressed by them to make payment. 
The above facts are undisputed. 

The plaintiff introduced testimony tending to show that 
the defendant, when it received the mortgage and collateral 
notes, had a reasonable cause to believe that Mrs. Richard- 
son was insolvent and that it accepted the security in fraud 
of the law relating to assignments. The plaintiff called 
as a witness C. W. Shurtleff, who testified that in 1886 
he was engaged in the banking business at Stratton ; that 
prior to the execution of the mortgage the defendant sent 
to the witness for collection its claim against Mrs. Richard- 
son, and being unable to collect the same, it was returned 
9 



130 NEBRASKA REPORTS. [Vou 30 



Bank! r. Omaha Barb Wirt Co. 



to the defendant; that shortly before the mortgage was 
given^ Mr. Sherlock, as agent of the defendant, called upon 
Mr. Shurtleff at his place of business in Stratton and in- 
quired as to Mrs. Richardson's circumstances, who was 
then informed that she was in close financial circumstances; 
that the bank had a good many accounts against her which 
she was unable to pay, and that there was no immediate 
prospect of her paying the defendant's claim. 

Mrs. Richardson testified that she gave the notes and 
mortgage because the agent and attorney of the defendant 
said they would make trouble by closing up the business 
at once if she did not secure the claim, but if she would 
give the security, the mortgage should not be placed upon 
record, and that they promised to keep the matter quiet so 
as to prevent any one else from making her trouble. This 
witness further testified that she owed on August 25, 1886, 
between $4,000 and (5,000, and knew she was then in- 
solvent and unable to pay her debts; that she stated the 
condition of her afikirs to Sherlock and Cordeal, who rep- 
resented the defendant. 

George H. Sherlock and Joseph A. Cordeal each in their 
testimony expressly deny having auy conversation with 
Mrs. Richardson; that they had conversation only with 
her husband out of her presence. Mr. Sherlock denies 
having the conversation testified to by ShurtlefiP. It is im- 
possible to reconcile the testimony of the witnesses. If the 
testimony of Mrs. Richardson and ShurtlefiP is true, there 
can be no doubt that the agent of the defendant was aware 
of tlie insolvency of Mrs. Richardson when the security 
was taken. The district court found this point against the 
defendant, and we are not prepared to say that it was not 
justified in so finding. 

It is claimed that under the repeated decisions of this 
court, a debtor in failing circumstances has a right to secure, 
by mortgage or otherwise, a part of his creditors to the 
exclusion of others, and that such preference will not in- 



Vol. 30] JANUARY TERM, 1890. 131 



Banks r. Omaha Barb Wlra Oa 



validate the security. The following cases are cited by the 
appellant to sustain that position : Nelson v, Qareyy 15 Neb., 
531 ; Lininger v, Raymond^ 12 Id., 19; Bierbower v. Polk, 
17 Id., 268; Griiiies v. Farringtony 19 Id., 48; Dietrich v. 
Hutchinson, 20 Id., 52. While these cases recognize the 
general rule to be that an insolvent debtor may prefer one or 
more of his creditors, they do not decide the point herein 
involved. It is not disputed that a creditor, having no 
knowledge at the time of the insolvency of the debtor, may 
accept security for his debt. The question, however, pre- 
sented by this record is this, Is a mortgage valid given by 
an insolvent debtor within thirty days prior to his making 
of a general assignment, with a view of giving a prefer- 
ence to the creditor, when the latter had reasonable ground 
to believe that his debtor was insolvent? The determina- 
tion of this point involves the construction of the law relat- 
ing to assignments. 

Sections 42, 43, and 44 of chapter 8 of the Compiled 
Statutes are as follows : 

''Sec. 42. If a person, being insolvent, or in contempla- 
tion of insolvency, within thirty days I)efore the making 
of any assignment, makes a sale, assignment, transfer, or 
other conveyance of any description, of any part of his 
property to a person who then has reasonable cause to be- 
lieve him to be insolvent, or in contemplation of insolv- 
ency, and that such sale, assignment, transfer, or other 
conveyance is made with a view to prevent the proi>erty 
from coming to his assignee in insolvency, or to prevent ' 
the same from being distributed under the laws relating to 
insolvency, or to defeat the object of, or in any way to im- 
pair, hinder, impede, or delay the operation and effect of, 
or to evade any of said provisions, the sale, assignment, 
transfer, or conveyance shall be void, and the assignee may 
recover the property, or the assets, of the insolvent. And if 
such sale, assignment, transfer, or conveyance is not made 
in the usual and ordinary course of business of the debtor. 



^ 



]32 NEBRASKA REPORTS. [Vou 30 



BaXLkfl V. Omaha Barb Wire Ca 



that fact shall be prima facie evidence of such cause of 
belief. 

"Sea 43. If a person, being insolvent, or in contempla- 
tion of insolvency, within thirty days before the making of 
the assignment, with a view to give a preference to a cred- 
itor or person who has a claim against him, procures any 
part of his property to be attached, sequestered, or seized 
on execution, or makes any payment, pledge, assignment, 
transfer, or conveyance of any part of his property, either 
directly or indirectly, absolutely or conditionally, the \yer- 
son receiving such payment, pledge, assignment, transfer, 
or conveyance, or to be benefited thereby, having reasonable 
cause to believe such person is insolvent, or in contempla- 
tion of insolvency, and that such payment, pledge, assign- 
ment, or conveyance is made in fraud of the laws relating 
to insolvency, the same shall be void, and the assignee may 
recover the property, or the value of it, from the person so 
receiving it or so to be benefited. 

"Sec. 44. Nothing in this act contained shall be con- 
strued so as to prevent any debtor from paying, or secur- 
ing to be paid, any debt, not exceeding the sum of one 
hundred dollars, for clerks' or servants' wages, or from 
paying or securing any debt which shall have been created 
within nine months prior to the dat« of such payment, or 
securing or to affect any mortgage or security made in good 
faith to secure any debt or liability created simultaneously 
with such mortgage or security, provided any such mort- 
gage shall be filed for record in the proper office within 
thirty days from its date." 

The evident pur[>ose of the legislature, in enacting these 
provisions, was to prevent an insolvent debtor from dispos- 
ing of his property in favor of some of his creditors to the ex- 
clusion of others and to secure an equal and just distribution 
of his property among all his creditors. Many of the provi- 
sions of sections 42 and 43 are alike. They differ mostly as 
to the purpose for which the sale or transfer is made. To 



Vol. 30] JANUARY TERM, 1890. 133 

Banks ▼. Omaba Barb Wire Co. 

render a conveyance void under section 42 it must appear^ 
tliAt it was made to prevent the property from going into 
the hands of the assignee, or to prevent the same from be- 
ing distributed under the assignment laws, or to evade the 
provisions of such laws. It is apparent that the security 
in this case was not taken for any of the purposes specified 
in this section, but falls under and is governed by the pro- 
visions of section 43. In terms, that section controls cases 
where a transfer or conveyance of property is made with a 
view of giving a preference to a creditor. Under either 
section the creditor, at the time of making the sale or giv- 
ing of the security, must be insolvent or in contemplation 
of insolvency, and the person receiving the conveyance or 
.•security must have reasonable cause to believe that the 
debtor is insolvent or is in contemplation thereof, in oi^der 
to render such sale or security void. The prohibited acts 
must have taken place within thirty days before making of 
an assignment. If no general assignment follows, the 
transfer is valid, or if the transaction falls under any of 
the exceptions contained in the above quoted section, 44, it 
will be u])held. But, on the other hand, if it does not 
come within any exception recognized by this section and 
all the requisites of section 43 are found to exist, then the 
conveyance is conclusively presumed to have been made in 
fraud of the assignment law, and is void. There is no 
claim that the facts in the case we are considering, bring it 
within the provisions of section 44, as the mortgage and 
collateral notes were taken to secure a debt which was in- 
curred more than nine months prior to the giving of the 
security, and the assignment was made within thirty days 
after the mortgage was executed. The mortgage and col- 
laterals operate to give the defendants a preference over the 
other creditors of Mrs. Richardson. Such a preference 
would have been valid, however, had not the insolvent, 
within thirty days, made an assignment for the benefit of 
creditors. 



n 



134 NEBRASKA REPORTS. [Voi„ 30 



Bank! y. Omaha Barb Wire Co. 



, Section 1693a of the Revised Statutes of Wisconsin is 
almost identical with section 43 above quoted. The su- 
preme court of that state has frequently had that section of 
the Wisconsin statute under consideration, and has invari- 
ably adopted the same construction that we now give to 
our statute. {Anatedl v. BmUey, 21 N. W. Rep., 807 ; Bat- 
im V. SmUh, 22 Id., 342.) 

In Abbott J Assignee, v. Shepard, 6 N. E. Rep., 826, 
the supreme court of Massachusetts had under considera- 
tion a case similar in its facts to the one at the bar. The 
statute of that state is like our assignment law. That 
action was brought by an assignee of an insolvent debtor, 
to recover certain notes transferred by the assignor to the 
defendant as an alleged preference. The court instructed 
the jury that the plaintiff must prove: " First, that, at the 
time of the payment or transfer in question, Abbott was 
insolvent) or in contemplation of insolvency; second, that 
the payment or transfer in question was made with a view 
to give a preference to the defendants over other creditors ; 
third, that, at the time of the payment or transfer in question, 
the defendants had reasonable grounds to believe that Ab- 
'bott was then insolvent, or in contemplation of insolvency ; 
and, fourth, that the transfer of the notes in questiou was 
made in fraud of the laws relating to insolvency; and that 
if the jury found the first, second, and third pro|)osition8, 
above stated, affirmatively established, that would autlior- 
]£e the finding 'that the transfer was in fraud of the in- 
solvent laws.''' The court held that this instruction was 
correct. 

Both upon principle and authority, the decree of the 
district coui*t canceling the mortgage, and rendering judg- 
ment for the amount collected by the defendant on the 
collateral notes, was right and is therefore 

Affjrmed. 

The other judges concur. 



Vol. 30] JANUARY TERM, 1890. 135 



Hartford Fire lui. Co. v. Meyer. 



» 13ft 
^ 709 

Hartford Fire Ins. Co., appellant, v. Meyer et fS m 

30 135 
47 61 
47 119 



AL., APPELLEES. 
[Filed July 8, 1890.] 

1. Judgment: Suit to Enjoin. In an action to enjoin a judg- 

ment npon the grounds that the plaintifif has a valid defense 
to the same, and that it was rendered through a breach of dnty 
of his attorney, the facts constituting the alleged defense must 
be pleaded so that it may appear that on a re-examination of 
the case the resnlt wonid probably be different. 

2. Insuranoe: Proof of Loss : Objections to proof of loss on a 

policy of insurance must be specific and not general — as the 
proof or any part thereof may be waived. 

3. Review. Upon the pleadings and proof, held, that the judgment 

was right 

Appeal from the district court for Cass county. Heard 
below before Chapman, J. 

/. R Webider, E. P. Holmei^, and 8. P. Vanatta, for 
appellant. 

J. JB. Strode^ and Byron Clark, contra. 
Maxwell, J. 

This is an action to enjoin a judgment rendered in the 
district court of Cass county. It appears from the record 
that in 1883 one Wm. R. Carter was engaged in the mer- 
cantile business in Cass and had his stock insured in the 
Hartford company for the sum of $650; that during the 
spring of that yelir, and while said policy was in full force, 
the goods were greatly injured or destroyed by fire ; that 
the firm of Cook, Phillips & Wells had a chattel mortgage 
on said stock for the sum of $228, and after the loss they 
filed a petition in equity enjoining the plaintiff from ad- 
justing the loss and paying tlie same to Carter or the 



136 NEBRASKA REPORTS. [Vol. 30 



Hartford Fire Ins. Oo. r. Meytr. 



defendants, and praying in effect that a sufficient amount 
of the insurance be assigned to them to satisfy their claim. 
The defendants employed a firm of attorneys to defend 
their rights in the premises, and the plaintiff employed the 
senior member of said firm to protect its rights. The 
attorneys named procured a dissolution of the temporary 
injunction and on the trial of the main issue amended the 
defendant's answer, which was in the nature of a cross-bill, 
by adding ^'and thereupon, as by said policy of insurance 
required, within the time file fully verified proofs of his 
loss, amounting to about (650, with their agent, D. H. 
Wheeler, and that he complied in all respects with the con- 
ditions of said policy of insurance,'' and also amended the 
prayer, and in the answer to the petition for the injunction 
took judgment against the plaintiff and in favor of the 
defendant, as assignee of the policy, for the sum of $300. 
This is the judgment which is now sought to be enjoined. 
The grounds upon which this relief is sought, as set forth 
in the petition, are as follows : 

^' Plaintiff further avers that it had a full and complete 
defense to said action as against said policy of insurance 
and was under no obligations to repay the same; that the 
said Carter had obtained said policy by fraud and misrep- 
resentations, and that said loss was not a bona fide loss, of 
all which facts they informed their said attorneys (giving 
names) and instructed and directed them to plead and so 
make appearance in said cause; that said Carter failed to fur- 
nish to said company proper proofs of said loss as requii-ed 
by the rules of said company and by the terms and condi- 
tions of said policy of insurance; that said insurance com- 
pany was fully prepared to successfully defend said claim 
of said Carter of said loss and fully intended to do so, and 
so instructed their said attorneys." 

It will be observed that there is no statement of facts 
showing the nature of the defense of the plaintiff against 
the payment of the loss. This was necessary in order to 



Vol,. 30] JANUARY TERM, 1890. 137 



Hartford Fire Ins. 0«. ▼. Meyer. 



entitle the plaintiff to relief. Where a court of equity pro- 
cccils to set aside a judgment at law, it proceeds upon equi- 
table considerations only. If the judgment rendered is not 
inequitable as between the parties, no matter how irregular 
the proceedings may be, a court of equity will not interfere. 
(10 Am. & Eng. Ency. of Law, 898.) 

It must appear that on a re-examination and retrial of the 
cause the result would probably be different. (3 Pom., Eq., 
sec. 1364; Bradley v. Riehardaoiiy 23 Vt., 720; Tomkins 
V, Tomkins, 3 Stock t. [N. J.], 512, 514; Reeves v. Cooper, 1 
Beasl, [N. J. Eq.], 223 ; Dawson v. Mercli., etc., Bk, 30 Ga., 
664 ; Saunders r. Albritton, 37 Ala., 716 ; Way v. Lamb, 15 
Ia.,79, 83 ; Stokes r. Knarr, 11 Wis., 389 ; Bayne v. Dudley, 
1 Wash. [Va.], 196; \Sauer v, Kansas, 69 Mo., 46 ; Lemon 
V. Sweeney, 6 111. App., 507.) 

Neither the statement of facts in the petition nor the 
proof is sufficient to show that the judgment is unjust or 
that the plaintiff had any defense to the action. So in re- 
gard to the proofs of loss. It is not stated wherein they are 
defective; nor that the plaintiff has not waived the defect. 

There is testimony in the record tending to show that 
the plaintiff had no defense to the action and simply em- 
ployed attorneys to secure a dissolution of the injunction, 
and that the contest was really between creditors of Carter. 
These were disputed questions of fact which were submit- 
ted to the trial court, and the evidence being nearly equally 
balanced, the judgment must be sustained. 

We desire to say, however, that if the plaintiff had a 
defense to the action on the policy, the attorneys for the 
defendant, nor either of them, could consistently appear 
for the plaintiff and sliould not have done so, but in the 
condition of the record this fact cannot be determined. 

The judgment of the district court is 

Affirmed. 



The other judges concur. 



138 NEBRASKA REPORTS. [Vol. 30 





Mi^r Y. Bristol. 




130 138 
30 436 


B. F. MizEB V. C, N. Bristol. 
[Filed July 8, 1890.] 




30 188 
85 874 


30 138 
56 863 





1. Bvidenoe examined, and AeZ<f, to aastain the verdict. 

2. Trial: Right to Open and Clo8E. Where upon the iasaes 

joined the plaintiff is required to introduce any evidenoe in 
support of his case, he will be entitled to open and close. 

Error to the district court for Wel)ster county. Tried 
Wow before Gaslin, J. 

•71 iV. Rickar^, for plaintiff in error. 

Case & McNeny^ contra* 

MAXWEIiL, J. 

This action was brought by the defendant against the 
plaintiff to recover the sum of $500 for money had and 
received, and on the trial of the cause the jury returned a 
verdict in his favor for the sum of $225^ upon which judg- 
ment was rendered. The plaintiff in error in his answer 
alleges that *Hhe money mentioned and described in plaint- 
iff's petition was received by defendant from plaintiff under 
the following state of facts, to-wit: 

"On the 2d day of December, 1886, plaintiff and de- 
fendant entered into a certain written agreement, by the 
terms of which this plaintiff was to purchase of defendant 
and defendant was to sell to plaintiff his entire stock of 
queensware, groceries, provisions, and fixtures, and further, 
the said plaintiff was to rent of said defendant the store- 
room and cellar situate on lot nine of block five, Bed Cloud, 
Nebraska, at an annual rent of (800 per year, payable in 
monthly installments of $66.67 per month. A true copy 
of said written agreement is hei*ewith filed attached to this 
(answer) and made a part hereof. 



Vol. 30] JANUARY TERM, 1890. 139 



Mixer y. Bristol. 



''That in pursuance of said agreement the plaintiff, at the 
completion of said agreement, paid to defendant the $500 
as a part payment of said stock of goods, and in no other 
manner, and thereafter and on or about the — day of De- 
cember, and about the time the invoice mentioned in said 
cofitract was nearly completed, the plaintiff, without any 
just cause and without any fault on the part of this defend- 
ant, voluntarily abandoned said agreement and refused to 
further proceed under the same and refused to accept said 
goods and pay the balance due therefor as per the terms of 
said agreement. 

"This defendant did and performed all die terms and con- 
ditions to be done and performed by him under said agree- 
ment, and at the time of the breach aforesaid was ready 
and willing to fully perform his part of said agreement. 

"This defendant, by. reason of the plaintiff's failure, neg- 
lect, and refusal to perform said agreement, has sustained 
damages in the sum of $1,000 over and above the amount 
80 received. The same is now due and wholly unpaid/' 

The reply need not be noticed. 

The contract I'eferred to is as follows : 

"This agreement, entered into by and between Benjamin 
F. Mizer, of the first part, and Charles N. Bristol, of the 
second part, both of Red Cloud, Nebraska, witnesseth : 
The said Mizer agrees on his part to sell and convey to said 
Bristol, free and clear of incumbrance, his entire stock of 
groceries, queens ware, produce, and fixtures now owned by 
him and kept in storeroom and cellars situate on lot nine 
of block five of Red Cloud, Nebraska. 

"The said Bristol, agrees on bis part, to purchase said 
goods and take same as follows : Queensware and groceries 
to be taken at invoice and to be invoiced at first cost thereof, 
and in addition thereto said Bristol is to pay an amount 
• ipial to twelve and one-half per cent of said invoice to 
cover freight, drayage, and other expenses. Fixtures to 
be agreed upon by the parties hereto. The price of all 



140 KEBRASKA REPORTS, [Vol. 30 



Miser y. Briatol. 



home produce to be first cost thereof. Said Bristol agrees 
on his part to pay cash the sum of $500 upon the comple- 
tion of this agreement, $1,000 upon completion of invoice 
herein mentioned, $500 to be paid in thirty days after pos- 
session is given under this agreement, and $500 each and 
every thirty days till said stock is fully paid for. The 
invoice above mentioned is to be made between the 15th 
and the 20th of December, 1886, and possession to be given 
as soon as invoice is completed and the payment above 
mentioned made. It is understood and agreed that all 
deferred payments above mentioned shall draw ten per 
cent from date of delivery of possession. 

" When possession is delivered as above specified said 
Mizer agrees on his part to execute and deliver to said 
Bristol a written lease for said premises for three years 
(giving said Bristol the option to hold said premises there- 
under for two additional years) for the annual rental of 
$800, payable in monthly installments of $66.67 per 
month. 

" In witness whereof, we have hereunto set our hands, 
this second day of December, 1886. 

"Witness: B. F. Mizer. 

" J. N. Rick ARDS. C. N. Bristol." 

The testimony tends to show that at the date of the 
contract the plaintiff in error was conducting a grocery in 
Red Cloud and that the defendant in error had made a 
proposition to purchase the same. The testimony also 
tends to show that when the defendant in error inquired of 
the plaintiff in error as to the value of his stock of goods 
he stated that it was about $5,000. 

The defendant in error testifies that he thereuf)on in- 
formed him that the stock was of greater value than he 
was able to purchase ; that soon afterwards the plaintiff in 
error stated to him tliat he had examined his invoices and 
looked over his stock and that it would not exceed in value 
$3,800 to $4,000, and that with that understanding he 



VoT,. 30] JANUARY TERM, 1800. 141 



Mizcr V. Bristol. 



entered into the contract above set forth, and that upon the 
signing of the contract he paid the plaintiff in error $500; 
that thereupon they procecfled to invoice the stock and it 
was found to amount to $5,000 or more, and that there- 
upon he declined to complete the contract. 

The plaintiff in error denies that he stated to the defend- 
ant in error that the stock was of less value than $5,000. 

There are a number of •matters, however, testified to by 
the defendant in error and his witnesses which he fails to 
explain, and it is evident that he did make representations 
of the kind charged. The clear weight of testimony also 
shows that after it was found that the goods invoiced were 
of the value of $5,000 or more, and more than the defend- 
ant in error felt able to pay for, the plaintiff in error prom- 
ised to refund the $500 which he had received. This was 
coupled with a proviso, "as soon as I hear from my 
brother-in-law/' This was a recognization of the debt and 
obligation to pay the same; but without such recognization 
the defendant in error under the proof would be entitled to 
recover. It is apparent that the defendant in error is en- 
titled to the whole $500 with interest thereon, but as he 
is not complaining that matter cannot be considered. 

The plaintiff in error complains that he was entitled to 
open and close on the trial of the cause. In this, however, 
he is mistaken, as it was necessary for the plaintiff below to 
offer proof to sustain his action. The rule is that if any- 
thing remains for the plaintiff to prove affirmatively, he is 
entitled to open and close. {Lexington Ins. Co. v. Paver, 
16 Ohio, 324; Vifquain v. Finch, 15 Neb., 505.) 

There is no error in the record by which the plaintiff in 
error has been prejudiced. The judgment is therefore 

Affirmed. 
The other judges concur* 



142 NEBRASKA REPORTS. [Vol. 30 



ao 

80 
S4 


14S 
884 
142 
887 


80 
42 


142ii 
551 



Donisthorpe t. F., K & li. Y. R. Co. 



F. B. Donisthorpe et al., appellants, v. Fremont, 
E. & M. V. R. Co., appellee, 

[Filed July 9, 1890.] 

1. Bight of Way : Representations of Intended Use : Pa- 
rol Evidence. Where the agent of a railway company nego- 
tiating for the right of way for the proposed road across certain 
lots on which the plaintiff resided, stated to him that the prop- 
erty sought for right of way was designed for the main line and 
not for side tracks, and thereupon the plainti£Ed executed a deed 
for such right of way. Afterwards three side tracks were laid 
along said line past the plaintiff's residence. Heldf That the 
purpose for which the deed was executed might be shown* 



2. : : Damages. That if the plaintiffs sustained spe- 
cial damages by reason of the construction and operation of 
the side tracks near their house, they may recover for any excess 
of damages over those which would arise from the operation 
of the main line. 

Appeal from the district court for Fillmore oountjr. 
Heard below before Morris, J. 

F. B. Donisthoiye, and Robert Ryan^ for appellants, cited 
as to fraudulent representations of intended use of land: 
Barber v. Lyon^ 16 la., 37; Richardson v. Blcight, 8 B. 
Mod. [Ky.], 684; Rumph v, Abererombie, 12 Ala., 64; 
Wyche v. Greene^ 16 Ga., 49; Walker v. Hunter , 27 Id., 
331; Hileman v. WriglU, 9 Ind., 126; Woodruff v. Water 
Power Co., 10 N. J. Eq., 489 ; AbboU v. AbboU, 18 Neb., 
505; Bishop, Contracts, sec. 665 ; Clark v. Tennant, 5 Neb., 
566; CarpoUer v. R. Co., 9 C. E. Green Ch. [N. J.], 249. 

John B. Hawley, and J". Jensen, contra, contending that 
the deed embodied all agreements between the parties, and 
that their rights could not rest partly in writing and partly 
in parol, cited : McClure v. Campbell, 25 Neb., 58-9; Mar- 



Vol. 30] JANUARY TERM, 1890. 143 



Donisthorpe y. F., B. * M. V. R. Ca 



shall V. Gridley, 46 111., 250; Purinton v. R. Co., Id., 297, 
299, 300; Waldron v. R. Co., 56 Mich., 420; Druse v. 
Wheder, 22 Mich , 442, 443; Cedar Rapids, ete., R. Co. v. 
Boone Co., 43 la., 45 ; Conwellv. R. Co., 81 111., 232; Pierce 
on Railroads, p. 133, n. 2 ; 520.) 

Maxwell, J. 

This action was brought by the plaintiffs against the 
defendant to abate certain stock yard& near their residence 
as a nuisance and to enjoin the defendant from using cer- 
tain side tracks near their residence for the same cause; or, 
in case an injunction would not be granted, then to recover 
damages. 

On the trial of the cause the court below granted an in- 
junction in effect abating the stock yards, but found for 
the defendant as to the side tracks, and rendered judgment 
accordingly. Other matters were presented to the court 
below which do not seem to be involved in the issues before 
OS and therefore will not be considered. No appeal has 
been taken from the judgment abating the stock yards, so 
that the only question presented for consideration is the 
oorrectness of the judgment as to the right of way. 

It appears from the record that in the spring of 1887 
the defendant was anxious to extend its road to Geneva 
and beyond, and after various conferences with the citizens 
of Geneva they entered into a written guaranty that the 
right of way from '^ the east line of the northeast quarter 
of section 36, township 7 north, of range 3 west, of 
the sixth principal meridian, and for station grounds at 
Geneva certain lots and alleys, and a portion of Lincoln 
street in said Geneva" should not cost to exceed (13,500; 
that one Stanley was the riglit of way agent of the defend- 
ant and he exhibited to the plaintiffs a map purporting to 
show the line of the road through the town of Greneva and 
across their lots. He stated in effect that the side tracks 
would not extend to the plaintiff's place, and evidently 



144 NEBRASKA REPORTS. [Vol. 30 



I>oni8thorpe t. F., B. & M. V. R. Ck>. 



relying upon this assurance the citizens of the town made 
similar statements. The B. & M. R. R. runs south through 
the tier of blocks next west of the plaintiff's residence, 
the side tracks, however, being some distance away. The 
testimony shows that the wife of F. B. Donisthorpe, one 
of the plaintiffs, stated that if she could be assured that 
the side tracks of the defendant would also be placed 
away from near their residence, she would execute the 
deed as desired. Upon securing such assurance she there- 
upon with her husband executed a deed as follows ; 

"This indenture, made this 8th day of April, A. D. 
1887, between Frederick B. Donisthorpe and Laura V. 
Donisthotpe (his wife), in her own right, of the county of 
Fillmore, in the state of Nebraska, party of the first part, 
and the Fremont, Elkhorn & Missouri Valley Railroad 
Company, a corporation duly organized under the laws of 
the state of Nebraska, party of the second part, witnesseth : 

" That whereas the said Fremont, Elkhorn & Missouri 
Valley Railroad Company, party of the second part, is 
now constructing a railroad, which said railroad is to pass 
through the county of Fillmore, in said state of Nebraska, • 
and the said party of the firet part, being desirous of the 
construction of said railroad and to aid the same by the 
grant herein made, in consideration of the premises and the 
sum of $750 to them in hand paid, the receipt whereof is 
hereby acknowledged, have given, granted, bai^ained, sold, 
conveyed, and confirmed, and by these presents do give, 
grant, bargain, sell, convey, and confirm, to the said jmrty 
of the second part, and to its successors and assigns, for- 
ever, for the purpose of constructing a railroad thereon^ 
and for all uses and purposes connected with the construction 
and use of said railroad, a strip of land fifty feet in width, 
being fifty feet in width on west side of the center line of 
said railroad where the same has been definitely located 
over and across lots 15, 16, and 17, in W. J. Tate's first 
addition to the village of Geneva, Fillmore county, Ne- 



Vol. 30] JANUARY TERM, 1890. 145 



DoniAtliorpe y. F., £. «fc M. V. R. Co. 



braska, of the sixth P. M., and the said party of the first 
part, for the consideration aforesaid, do hereby release and 
discharge the said party of the second part, its successors 
and assigns, from all costs, expenses, and damages which 
the said party of the first part has now sustained, or shall 
at any time hereafter sustain, in any way by reason of the 
construction, building, or use of the said railroad; to 
have, hold, and enjoy the lands above conveyed, with the 
appurtenances and privileges thereto pertaining, and the 
right to use the said land and material of whatsoever kind 
within the limits of the said fifty feet above conveyed, unto 
the said party of the second part, the Fremont, Elkhorn 
& Missouri Valley Railroad Company, and to its suc- 
cessors and assigns, forever, for any and all uses and 
purposes connected with the construction, preservation, 
occupation, and enjoyment of said railroad; Provided, That 
if said railroad shall not be located and graded within ten 
years from the date hereof, or if, at any time after said rail- 
road shall have been constructed, the said party of iJie 
second part, its successors or assigns, shall abandon said 
road, or the route thereof shall be changed so as not to be 
continued over said premises, the land hereby conveyed and 
all rights in and to the same shall revert to the said party 
of the first part, their heirs and assigns. 

''And the said party of the first part do for themselves, 
their heirs, executors, administrators, and assigns, covenant 
and agree to and with the said party of the second part, its 
successors, and assigns, that they are the true, lawful, and 
rightful owners of all and singular the above granted and 
described premises, and every part and parcel thereof, with 
the appurtenances, and are now lawfully seiised and pos- 
sessed of the same as a good, perfect, and absolute estate of 
inheritance in fee simple; and that the same or any part 
thereof at the time of signing and delivery of these pres- 
ents are not in any manner incumliered; and also that the 
said party of the first part and their heirs will and shall 
10 



n 



146 NEBRASKA REPORTS. [Vol. 30 



Donlhthorpe t. F., S. A M. V. R. Go. 



warrant and forever defend all and singular the lands and 
premises hereby conveyed unto the said Fremont, Elkhorn 
& Missouri Valley Railroad Company, the said party of 
the second part, its successors and assigns, forever, against 
the lawful claims and demands of all and every person 
and persons, free and discharged of and from all manner 
of incumbrances whatsoever. 

" In testimony whereof, the said party of the first part 
have hereunto set their hand the day and year first written 
above. F. B. Donisthorpb. 

" Laura V. Donibthoepe. 
^'Signed and delivered in presence of 
" Jno. D. Carson." 

Upon the construction of the line, three side tracks were 
built by the defendant, which extend beyond the plaintiff's 
residence, and such residence being so near the side tracks 
is greatly affected by the switching of cars thereon. 
As there must be a new trial to ascertain the amount of 
damages which the plaintiff has sustained, and as no ques- 
tion is involved as to the rule for estimating the damages, 
we will not discuss that branch of the case. 

The attorneys for the defendant insist that the deed 
merged all prior conversations and statements of the par- 
ties and therefore the plaintiffs cannot now complain, as 
there is no reservation in the deed. This is true, but not- 
withstanding the rule, the purpose for which the deed was 
made may be shown. (CoUingwood v. Merchants Bank, 15 
Neb., 121.) This rule is constantly applied where an ab- 
solute conveyance is made as security for a debt. In such 
and like cases the entire transaction may be shown in order 
to determine the effect of the conveyance. So in the case 
at bar. Here the professed purpose of the agent was to 
obtain a conveyance of the right of way for the line of the 
road — not for depot grounds and side t;*acks. It is well 
known, too, that the grounds required for a station and the 
consequent side tracks are usually much wider than along 



Vol. 30] JANUARY TERM, 1890. 147 



DoDisthorpe y. F., E. & M. V. B. Go. 



the line of the road away from the station. This, how- 
ever, is a mere circumstance, which to have any weight 
must be supported by other circumstances showing that the 
company usually required more than 100 feet in width for 
side tracks at its stations. While every reasonable facility 
should be given a railway company organized under the 
laws of the state to acquire the right of way, and to con- 
struct its road, yet the land and lot owners over which its 
line is located have rights in the premises which must be 
considered and protected, and the damages which they each 
sustain by reason of the location, proper construction, and 
careful operation of the road must be paid or deposited 
with the county judge. Justice and fair dealing require 
that a fair compensation be paid, and that there shall be no 
secret reserve in favor of the party acquiring the right of 
way. The side tracks having been constructed, an injunc- 
tion will not be granted, but the plaintiffs will be entitled ' 
to recover damages for the injury sustained in excess of 
those which arise from the proper use of the principal line 
of the road. 

The judgment is therefore reversed and the cause re- 
manded for further proceedings. 

Reversed and bemanded. 

The other judges concur. 



OASES 

ARGUED AND DETERMINED 

IN THE 

SUPREME COURT OF NEBRASRi 

SEPTEMBER TERM, A. D. 189a 



PRESENT: 
Hon. am ASA COBB, Chikf Justioi. 
" SAMUEL MAXWELL, { t^«.. 
- T.L.NOUVAL. H^"*- 



WlTJJAM HaWKE, APPELLANT, V. LOGAN EuYABT, 
APPELLEE. 

[FiLSD Septgmbbb 16, 1890.] 

Wills : Rkpublicatiox : A Codicil ratifying and confirming a 
will, in whole or in part, will amount to a republication of the 
will, bringing down it« words and causing it to speak as of tbo 
date of the codicil. 

fL : Ck)NDiTioN8: Rkforhation of Dkvi»eb. a devise in a 

father's will in favor of a son addicted to the intemperate use of 
intoxicating liquors, and who had intermarried with one Mis. 
G. against his father's will, made in form to the executors of the 
will, directing them at the end of ten years from his death, in 
ease the son and legatee should have, in their judgment, thor- 
oughly reformed of his intemperate habits, of his immoral con- 
sortings, and eyil associations, and should then be living, with 
(149) 



150 NEBRASKA REPORTS. [Vol. 30 



Hawke y. Euyart 



evident promise so to continae dnriDg life, a virtaons, temperate 
and commendable life, to convey the lands and trnst fands 
devised, to the son and legatee. HM^ That in so far as the devise 
was conditional on the reformation of the son and dovisee the 
same would be apheld. 



3. : Restraint of MABRiAaE. But a subsequent provision 

that such trust property and funds should not be transferred 
until the executors should have satisfactory proof that the devisee 
** has permanently freed himself from all influence, connections, 
associations, cohabitations, and relations of every name, character, 
and description of and with Mrs. G.,and her relatives, friends 
and intimates,'' held, to be a condition against public policy, and 
void ; and that upon the first condition, exempt from the second, 
the devisee will be entitled to the transfer and conveyance of 
the land and trust funds of the legacy. 

Appeal from the district court for Otoe county. Heard 
below before Field, J. 

John C. Watson^ Frank P. Ireland, and i. W, Billings* 
ley, for appellant : 

A condition annexed to a devise which discourages or 
interferes with the marriage r^elation is void. {Potter v. 
McAlpine, 3 Demarest [N. Y. Sur. Rep.], 108 ; Ckmrad v. 
Long, 33 Mich., 78 ; Wrm v. Bradley', 2 De Gex & Sni. 
[Eng.], 49 ; Brown v. Peck, 1 Eden [Eng.], 140 ; Tennant 
V, Braie, Tothill [Eng.], 241 ; 1 Story, Eq. Jur., sec. 291, and 
note ; Keily v. Monck, 3 Ridgw., Pari. [Ir.], 205, 244, 247, 
261 ; Moidey v. Rennaldson, 2 Hare [Eng.], 570 ; Orawjord 
V. Thompson, 91 Ind., 266 ; Wilkinson v, Wilkinson, L. R.. 
12 Eq. [Eng.], 191 ; 2 Redfield, Wills, sec. 285; 2 Jarman, 
Wills, 57, 58; Schouler, Wills, sec. 604.) An illegal condi- 
tion precedent defeats the devise, while an illegal condition 
subsequent is void and the devise stands. (Williams, Exrs. 
[6 Am. Ed.], 1372 ; 2 Redfield, Wills, p. 285 ; 20 Am. L. 
Rev., p. 510, sec. 10, and note; 1 Roper, Legacies, ch. 13, 
sec. 11 ; Randall v. Marble, 69 Me., 310 ; Parker v. Parker, 
123 Mass., 585 ; Men^ill v. Emei-y, 10 Pick. [Mass.], 597 ; 
4 Kent, Com., 130.) The condition in this case is an 



Vol. 30] SEFrEMBER TERM, 1890. 151 



Uawke t. Euyart, 



evasion of, and fraud upon, the law. (Scott v, Tyler, 2 
Dick [Eng. Ch.], 720; Harvey v. Aston, 1 Atk. [Eng.], 
379 ; Rkluirdson v. Baker, 2 Id., 321 ; Marples v. Bain- 
. bridge, 1 Madd. [Eng.], 590.) 

M, L. Hayward, contra: 

The condition is one preceilent and not impossible 
(2. Jar., Wills, pp. 520-1); and until it has been per- 
formed no estate can vest ( Van Horne v, Dorrance, 2 
Dall. [U. S.], 317; FinUy v. King, 3 Pet. [U. S.], 375). 
A condition that a legatee must first learn to live and con- 
duct himself properly is valid (Den v. Messenger, 4Vroom 
[N. J.], 499; West v. Moore, 37 Miss., 114); likewise one 
that no estate shall pass until legatee's debts are paid 
(Redfield, Wills, vol. 2, 300; vol. 3, 496 ; Lewin, Trusts, 
135; 2 Jarpian, Wills, pp. 548-9; Nichols v. Levy, 5 Wall. 
[U. S.], 441 ; Bramhall v. Ferris, 14 N. Y., 41 ; 1 Otto 
[U. S.], 16). While it is true that a condition in general 
restraint of marriage is void, a si)ecial restraint as to mar- 
riage with a particular person, imposed for the welfare 
of the legatee, is valid. (Story, Eq. Jur., sees. 274, 277, 
281, 285; 2 Redfield, Wills, sec. 30, ch. 11; Cotliei' v. 
SUiughler, 20 Ala., 263 ; Finlay v. King, 3 Pet. [U. S.], 
346; 2 Jarman, Wills, 513, 564-6, and notes 28-31 ; Gar- 
rett V. Scoxden, 3 Denio [N. Y,], 334; Luigarl v. liiplcy, 
19 O.St., 24; PringU v. Danpley, 53 Am. Dec, 110; 
Snider v. Newsoin, 24 Ga., 139; Coopei' v. Iteinsen, 5 Jolin.s. 
Ch. [N. Y.], 459; Boslick v. Blades, 59 Md., 231; Gray- 
dan V. Graydon, 23 N. J. Eq., 230.) Where the condi- 
tion becomes impossible, no estate will vest. (Coke, I^itt., 
206 a, I 376, 206 b; Jarman, Wills, vol. 1, pp. 575, 677, 
796, 805; vol. 2, p. 520; 4 Kent [5th Ed.], 125; Moank- ' 
ley V. Riggs, 19 Johns. [N. Y.], 14; Taylor r. Ballen, 6 
Cow. [N. Y.], 627 ; WeUs v. Smith, 2 Edw. Ch. [N. Y.], 
78; Davis v. Angel, 8 Jur. [N. S.], 1024.) If tiic con- 
dition is void, it will not benefit the devisee. (Taylor v. 



n 



lo2 NEBRASKA REPORTS. [Vol. 30 



Hawke v. Euyart. 



Mason, 9 Wheat. [U. S.], 350.) A* legacy whose condi- 
tions have not been comph'ed with, does not vest because 
of the absence of a revei*sionaiy clause. (Parsons v. Wins- 
low, 6 Mass., 180.) 

Cobb, Ch. J. 

The appeUant alleged in his petition to the county court 
of Otoe county tliat he was the son and heir at law of 
Hubert Hawke, late of said county, deceased, whose last 
will was offered for probate by Logan Euyart and George 
W. Hawke, executors named therein, and that he appeared 
and objected to the probate of said will for the reasons : 

I. That no citation of notice was issued or served upon 
him. 

II. That the papier purporting to be the last will and 
testament of deceased was not his will, but was obtained 
and procured by circumvention and by ruse on the part of 
Logan Euyart, one of the executors; that the will is void 
so far as appellant is concerned, as in absolute restraint of 
marriage and against public policy, and that deceased was 
not, at the time of making it, of sufficient testamentary ca- 
pacity to make a will, and that the contingency upon which 
its bequest to appellant was to take effect was too remote. 

The appellant asked that if the will be admitted to pro- 
bate, the estate de{)ending upon the marriage condition 
of appellant be ordered to immediately take effect, absolved 
from the condition imposed, and that he be entitled to the 
property willed to him. 

Notice having been given by publication of the motion 
to admit the will to probate, there was a hearing in the 
county court on June 20, 1887. Nathaniel Adams and 
William F. N, Houser were sworn and examined as wit- 
nesses to the will, and the court found that the will and 
the several codicils thereto were duly executed by Robert 
Hawu., who was, at the time of executing the same, of full 
age, of sound mind and memory, and not under restraint 



Vol.. 30] SEPTEMBER TERM, 1890. 15.3 



Hawke'T. Euy&rt. 



or under influenoe of any kind, and was competent in all 
respects to devise real and personal estate ; that said in- 
strument 18 the last will and testament of said deceased and 
ought to be allowed as such, aqd that the persons therein 
named as executors are appointed as such upon giving 
bond in the sum of $30,000, with sufficient sureties in ac- 
cordance with the statute. 

To all of which the appellant objected and took his ap- 
peal to the district court. 

There was a stipulation by the pai*ties, proponents and 
contestant, that the appeal should apply and extend only 
to the matter of the bequest to William Hawke, and should 
not in any way affect the other devisees and l^atees of the 
estate, the contestant asking no greater amount than is 
given him in the will, and he appeals only from the condi- 
tions and restrictions attached to such bequest. 

There was a trial in the district court, July 10, 1888, in 
which the proceedings of the county court were affirmed, 
and the petition of the appellant was dismissed, to which 
exceptions were taken, and the appeal brought into this 
court. 

The bequest to appellant under the will dated February 
16, 1884, is as follows: 

" Item Third. I give devise and bequeath to the exec- 
utors of this my will, hereafter nominated and appointed, 
and to the survivors or survivor of them, all that certain 
piece orj)arcel of land situate in the county of Otoe, and 
state of Nebraska, known and describetl as the northwest 
quarter of section six, township eight north, of range four- 
teen enst, of the sixth principal meridian, containing one 
hundred and seventy-four and one- half acres, more or less, 
together with the tenements, hereditaments, and appurte- 
nances to the same belonging, or in anywise appertaining, 
and the sum of ten thousand dollars in money in trust, 
nevertheless, and to and for the uses, interests, ai.^ pur- 
poses hereinafter limiteil, described, and declare(l; that ib 



'n 



154 NEBRASKA REPORTS. [Vou 30 



Hawke t. Euyart. 



to say, upon the trust that my said executors, the surviv- 
ors or survivor of them, shall, within six months after my 
decease, enter into and upon the above mentioned and last 
described lands and tenements, and lease and to farm let 
the same to a good, careful, capable, honest, and industri- 
ous tenant or tenants, on such terras and conditions as mjr 
said executors, or the survivors or survivor of them, shall 
deem meet and just, and out of the rents and profits arising 
from said lands, first, pay and discharge all taxes, revenue, 
duties, and assessments of every name and nature legally 
imposed, levied, and assessed thereon. 

'^ Second. !&Iake all nece-sary and proper repairs to the 
buildings, fences, and enclosures, including painting of 
buildings and pruning of all orchards, trees, and shrubs 
growing on said premises, and embracing the replanting of 
fruit trees if destroyed by the elements, to the extent of 
preventing the premises deteriorating in value or going to 
waste ; and any balance of such rents, issues, and profits 
remaining to invest in some good six per cent interest 
bearing security issued by Otoe county, in the state of 
Nebraska, or in securities issued by said county legally 
bearing a greater rate of interest than six per cent per 
annum ; and in like securities my said executors, or the sur- 
vivors or survivor of them, are hereby directed to invest 
the said sum of $10,000 and the income thereupon, less 
such sum or sums as shall be required to pay the taxes and 
assessments levied and assessed on the trust funds so held 
by them as aforesaid, to be in like manner invested from 
time to time for the period of ten years from the time of 
my decease. In the event my executors shall not be able 
to procure the class of securities above mentioned for the 
investment of such trust funds, then they, or the survivors 
or survivor of them, may invest such trust funds and the 
accumulations therefrom in bonds or other securities legally 
issued by the state of Nebraska, bearing at least six per cent 
per annum interest, or in bonds or promissory notes secured 



Vol. 30] SEPTEMBER TERM, 1890. 155 



Hawke v. Euyart. 



by a first mortgage on lands situate in Otoe county, under im- 
provement, as farms, of at least double the value of the 
amount of the mortgage, exclusive of the buildings, fences, 
and enclosures, bearing interest at not less than seven per cent 
per annum, payable annually. And in case, at the end often 
years from my decease, my son William Hawke shall have 
become, in the judgment of my said executors, the sur- 
vivors or survivor of them, permanently and thoroughly 
reformed of his intemperate habits, of his immoral con- 
sortings and evil associations, and shall then be living with 
evident promise to continue so to live, during the remaindep 
of his life, a virtuous, industrious, temperate and commend- 
able life, then and thereupon, within twelve months after 
the expiration of ten years from my decease, my said exec- 
utors, the survivors or survivor of them, are hereby directed 
and required to convey the lands and premises hereinabove 
last mentioned in item third of this my last will and testa- 
ment, with the tenements and appurtenances, to my said 
son William Hawke, and pay over, assign, transfer, set 
over, and deliver to him, my said son William Hawke, the 
securities held by them, or by either of them, together with 
all moneys, i*ents, interest, and profits, representing the 
said sum of $10,000 held in trust as aforesaid, and the 
unexpended income arising therefrom, and the net rents, 
issues, and profits of said real estate during said period; 
Provided^ nevei^thelet^, furthei', That such trust property and 
funds shall not be transferred by my said executoi-s, or by 
the survivors or survivor of them, until my said executors, 
or the survivors or survivor of them, shall have satisfac- 
tory proof and evidence that my said son William Hawke 
has permanently freed himself from all influence, connec- 
tions, associations, cohabitations, and relations of every 
name, character, and description of and with a certain noto- 
rious and disreputable woman known by the name of Mrs. 
Sadie Gladstone, and with all relatives, friends, and inti- 
mates of that woman. It being my imperative command 



156 NEBRASKA REPORTS. . {Vol. 30 



Hawke ▼. Euyart. 



tliatiio part, parcel or portion of such trust funds, or of anv 
other part or portion of my worldly goods or estate, shall 
come to the hands of, or be used, or applied for the use or 
1)euefit of said woman Sadie Gladstone under any circam- 
stances or conditions whatsoever. 

" ' And provided furtliery That in the event my said son 
William Hawke should, at any time before the expiration 
often years from my death, througli- illness or otherwise, 
become so impoverished as to be liable to become a public 
charge, then my executors, or the survivors or survivor of 
them, are authorized and empowered out of the rents, issues, 
and profits, and the income of said trust pro])erty and trust 
funds, from time to time to aiford and provide him such 
reasonable, necessary support and raiment as they shall 
deem just and proper under the circumstances, but they 
are not to furnish any money or other means to gratify the 
cravings for intoxicating liquors or for immoral associa- 
tions. * * * 

^' But in the event of my said son William Hawke shall 
leave issue of his body him surviving, born of a respectable 
maternal parent in lawful wedlock, and not born of the 
said Mrs. Sadie Gladstone, then I order, direct, and require 
my said executors, thesurvivora or survivor of them, to use, 
from time to time as they may deem proper, out of tlie 
rents, issues, and profits and income of said trust property 
and trust funds, to aiford a comfortable support, including 
raiment and education for such child or children of my said 
son William Hawke, until such child or children shall 
attain the age respectively of twenty-one yeai-s, and upon 
reaching that age, or marrying, if a female or females, my 
executors are authorized and empowered to make such 
reasonable advancement, in their discretion, as the circum- 
stances and position in life of such child or children of my 
said son William Hawke shall seem to justify out of the 
profits and income which have arisen from such trust prop- 
erty and trust funds, and upon attaining the age of thirty- 



Vol. 30] SEPTEMBER TERM, 1800. 157 



Hawke ▼. Euyart. 



three years respectively, said real estate and funds so held 
in trust as aforesaid to be divided, share and share alike, 
less any advancement made, from each share respectively, 
between such children of my said son, and their heirs by 
representation; Provided, always, That my executors, or 
any of them, shall not, with any funds, money, or property 
coming from my estate, aid, maintain, or support, or assist 
therein, directly or indirectly, any child or children by my 
son b^otton on the body of the said notorious and dis- 
reputable woman Mrs. Sadie Gladstone, whetlier born in 
lawful wedlock or not 

" And if the heirs of his body surviving my son William 
Hawke shall be born of the body of the said Sadie Glad- 
stone, then said trust property and trust funds .shall be 
distributed and disposed of by my said executors, as herein- 
above directed, the same as if my said son William Hawke 
had died without issue, him surviving. 

" In the event my son William Hawke should fail to 
reform his intemperate habits, and from his immoral con- 
sortings and evil associations, or otherwise refuse to comply 
with the conditions upon whicl\ my executors are author- 
ized and required to convey the real estate described and 
the $10,000, with the net rents^ issues, profits, and income 
thereof mentioned in this item third of my last will and 
testament, then and in that case it is my will and I order 
and direct my said executors to hold said premises and trust 
funds with the net accumulation therefrom invested and 
rented as aforessaid, and out of the proceeds thereof, from 
time to time as required, use sufficient, if my said son's 
circumstances shall require it, to pay and discharge the 
expenses for a comfortable maintenance and support during 
his natural life, or until he shall have complied with all the 
conditions and furnished the evidence to entitle him to a 
conveyance and assignment from my said executors to said 
trust property and trust funds with the accumulation 
thereof, as is hereinabove provided and directed, when. 



158 NEBRASKA REPORTS. [Vol. 30 



Hawke t. Eayart. 



altlioiigh raore than ten years shall have passed since my 
decease before the conditions aforesaid have been complied 
with by my said son William Hawke, my said executors, 
the survivors or survivor of them, will and shall convey 
and assign said trust property and trust funds and the 
accumulations therefrom upon the express condition, how- 
ever, that such conveyance and assignment of said property 
and trust funds and the accumulations therefrom shall be 
void, and the property thereby conveyed and assigned shall 
revert to my said executors, the survivors or survivor of 
them, or to my said wife and daughter, if all my executors 
shall than be dead, they thereupon shall be repossessed 
thereof, the same as if said conveyance and assignments 
had never been made, if my said son William Hawke shall, 
at any time afler the execution and delivery of said con- 
veyance and assignment, marry or cohabit with the said 
notorious and disreputable woman Mrs. Sadie Gladstone, 
and he, my said son William Hawke, having failed or 
refused to comply with such conditions, and failed to receive 
a conveyance and assignment of such trust property and 
trust funds, afler the deatbof my said son William Hawke, 
my said executors, the survivors or survivor of them, are 
directed and required to distribute such trust property and 
trust funds, with their accumulations, to my wife, Elizabeth 
A. Hawke, and daughters, Ella Spencer, Lulu Hawke 
Rector and Minnie Hawke, and to their heirs by repre- 
sentation, share and share alike, at the time and in the 
manner hereinabove directed; Provided, No part thereof 
shall descend to the heir or heirs of my son William 
Hawke begotten on the body of the said Sadie Gladstone.'' 
The first codicil to the will of Robert Hawke was exe- 
cuted on. July 29, 1885, and the second and last codicil is 
dated March 8, 1887, so that the last date is the comple- 
tion and publication of the will. It will be observed that 
the devises to, and provisions in favor of, the appellant arc 
made to depend upon certain conditions. These are, first^ 



Vol. 30] SEPTEMBER TERM, 1890. 159 



Hawke t. Euyart 



that at the expiration of ten years from the death of the 
testator the appellant should have become, in the opinion 
and judgment of the executors, permanently and thor- 
oughly reformed of intemperate and evil habits, his im- 
moral consortings and associations, and should then be 
living with evident promise to continue to live, for the 
remainder of his life, a virtuous, temperate, and commend- 
able life. 

Second, that the executors should have satisfactory proof 
and evidence that the appellant had permanently freed 
himself of all influences, connections, associations, cohab- 
tiations, and relations of every name, character, and de- 
scription with Mrs. Sadie Gladstone. 

After the argument of this case, and at the consultation 
of tlie court, we were all of the opinion that the first condi- 
tions imposed in the testator^s will were valid and bind- 
ing on the executors and on the legatee; but that those of 
the second class, in view .of the facts and circumstances 
given in evidence, were void as against the public policy 
of the state and could not be sanctioned. 

While the will itself was executed and bears date of 
February 16, 1884, there is a codicil to it, which, to all 
intents and legal purposes, republished and executed the 
will on the 29th day of July, 1885. 

It appears from the bill of exceptions, and is not dis- 
puted, that the appellant was married to Mrs. Sadie Glad- 
stone on the 16th of September, 1884. It is to be men- 
tioned, not as a controlling fact, that while there is an 
entire absence of direct evidence on the subject, yet from 
all the evidence, and from the legal inferences to be drawn, 
there is a strong presumption that the marriage of the 
appellant with Mrs. Gladstone was known to the testator 
at the time of the last publication of his will. That con- 
dition had taken its place for two years and six months 
prior to the last fact. As to the rule in this instance, see 
Van CorOandi v. Kip, 1 Hill, 590: '' Where a codicil is so 



n 



IGO NEBRASKA REPOllTS. [Vol. nO 



Hawke t. Euyart. 



executed as to operate a republication of the will, both 
should be read and construed together as one entire in- 
trunieut." See, also, Brimmer v, Soihier, 1 Gushing, 118; 
Xcf'a Appeal, 48 Pa; St., 501 ; SnowhiU v. Snowhill, 3 
Zabriskie, 447. 

The question then is not wholly whether the exactions 
of the will that the appellant shall have freed himself of 
all the influences and associations of Mi^. Gladstone, but 
are in restraint and in the continuation of the marriage rela- 
tion, the same having been entered into as stated. 

I think there can be no doubt, either as a question of 
re&son from moral premises, or of legal authority, not only 
that such condition is void, but having been declared void 
it leaves the bequest of the testator operative the same as 
though the condition had not been sought to be made by 
will. (See Roper on Legacies, 757, and cases cited ; Con- 
rad V, Long, 33 Mich., 78 ; Wrek v. Bradley, 2 De Gox 
& Smales, 49; Brovm v. Peck, I Eden, 140; Tennant r. 
Braie, Tothill [Ed. 1820], 77.) 

These authorities, cited by counsel for appellant, are di- 
rectly to the point stated and seem to be conclusive of it. 
Had the devisee not been lawfully married at the date o{ 
the last publication of the will of the testator, I should Iw 
of the opinion that, under the arguments and authorities of 
the counsel for appellees, the ])eculiar conditions of tlio 
will here considered would be ujjheld; but wholly other- 
wise when the.marringe had been solemnized before the 
publication of the will. 

The decree of the district court is reversed and the cause 
is remanded with a direction to that court to enter a decree 
in accordance with this opinion. 

Judgment accordingly. 
The other judges concur. 



Vol. 30] SEPTEMBER TERM, 1890. 161 



Blerbower v. Miller. 



Ellis L. Bierbower v. John F. Miller. 

[Filed Ssptbmbrb 16, 1890.] 

BomovGd of Causes : Local Fbejudicb: Amount in Contbo- 
VEUSY. The right of a non-resident defendant to remove a suit 
from any state ooart to the circait court of the United States, 
upon the ground that from prejudice or local influence he will 
not be able to obtain justice in such state court, etc., is confined 
to cases in which the matter in dispute exceeds, exclusive of in- 
terest and costs, the sum or value of two thousand dollars. 

Error to the district court for Lancaster county. Tried 
below before Chapman, J. 

Montgomery & J^ey, for plaintiffs in error: 

The application for removal was properly made to the 
federal court. (Fisk v. Henarie, 32 Fed. Rep., 422 ; Ma- 
Ime V. R Co., 36 Id., 628; Kaitel v. Wylie, 38 Id., 865.) 
The right to remove accrues to any non-resident defendant, 
when there is a controversy between him and a citizen of a 
state where suit is brought {Fisk v. Henarie, 8uprd)\ and 
the right is not confined to cases whepe the controversy is 
separable {Whelan v. R. Co., 35 Fed. Rep., 849.) 

O. M. Lambertson, contra: 

The cause was not removable under the act of 1887, be- 
cause (1) intervenors cannot remove when the state court 
alone had jurisdiction at the commencement of the action 
(Ohiquist V. Farwdl, 13 Fed. Rep., 305 ; AUin v. Robinson, 
1 Dill. [U.S. C. C], 119, and citations; Houston, etc., R. 
Co. V.Shirley, 111 U.S.,358; Cable v. Ellis, llO Id., S96 ; 
Thorn, etc, Co. v. FuUer, 122 Id., 635; Phelps v. Oaks, 117 
Id., 236; Stewart v, DunJiam, 115 Id., 64; Bron^on v. 
Lumber Co., 36 Fed. Rep., 634); (2) not all defendants 
are non-residents, nor did all join in the application for 
11 



n 



162 NEBRASKA REPORTS. [Vol. 30 



Blarbower t. Miller. 



removal (Sewing Machine Cases, 18 Wall. [U. S.], 553; 
Vannevar t. Bryanty 21 Id., 41 ; Hancock v. Holbrook, 119 
U. S., 686);. (3) it could not have been commenced origi- 
nally in the circuit court (McNeil Co. v. Howland, 99 N. 
Car., 202 [6 Am. St. Rep., 513]; King v. ComeU, 106 U. 
S., 395; Smith v. Lyon, 133 Id., 315; Malone v. R. Co., 35 
Fed. Rep., 625) ; (4) the amount is less than $2,000 (Ma- 
lone V. H, Co., supra). The interests of defendants in such 
actions are not severable (LouismUe 22. Co. v. Ids, 114 U. 
S., 52; Pvinam v. Ingraham, Id., 57; Pirie v. Tvedt, 116 
U. 8., 41; Shane v. Anderson, 117 Id., 275; Thorn, etc., 
Co. V. FuUer, 122 Id., 535.) 

Cobb, Ch. J. 

The plaintiff in the court below alleged that on Novem- 
ber 11, 1886, he was the owner and in possession of a gen- 
eral stock of goods and merchandise in Deloit, Holt county, 
consisting of dry goods, clothing, hats and caps, boots and 
shoes, hardware, groceries, fruits and candies, powder and 
shot, paints and varnishes, trunks, and such other goods 
as are kept in a country store, also counters, show cases, 
lamps, and other fixtures, with books and book accounts, 
in all of the value of $3,200, as per schedule attached, 
Exhibit A; that on said day Ellis L. Bierbower, who is 
made defendant, wrongfully, forcibly, and unlawfully took 
said goods from the possession of the plaintiff and con- 
verted them to his own use, to the plaiutiff^s damage 
$3,250. 

II. And for a second cause of action alleged that on said 
day he was engaged in a large and profitable retail business 
of buying and selling general merchandise at Deloit, Holt 
county, and was the owner and in possession of the goods 
and stock of merchandise hereinbefore mentioned. 

That on said day the defendant forcibly, wrongfully, and 
unlawfully took possession of all of said goods and chat- 
tels, and converted them to his own use. 



Vol. 30] SEPTEMBER TERM, 1890. 1G3 



Blerbowor t. Millar. 



III. That prior to said day the plaintiflP had borne a 
good character as a merchant, and was in good financial 
credit and standing. 

IV. That by the wrongful acts of the defendant in tak- 
ing possession of said goods and converting them to his 
own use the plaintiff has been greatly injured in his good 
name, credit, and business standing insomuch that various 
merchants and persons who formerly dealt with him have 
ceased to do so, and he is no longer able to buy goods on 
credit of foreign merchants as he was formerly accustomed 
to do, whereby he has lost gains which otherwise would 
have accrued in his business; that by said wrongful acts 
his business has been broken up and destroyed by the de- 
fendant, to the damage of the plaintiff $3,250, of which 
there has been paid $1,287, leaving a balance due of 
$1,963, with interest at seven per cent per annum from 
November II, 1886, for which he asks judgment. 

The defendant made his special appearance in the suit 
for the purpose of objecting to the sufficiency of the serv- 
ice of the summons, and to the jurisdiction of the court 
over his person, for the reason : 

'* That he is a resident of Douglas county, and was at 
the time of the service of the summons, and now is, and 
long had been marshal of the United States circuit and 
district courts for this state, and as such was under an 
order in pursuance of the dulies of his office, and was re- 
quired to be in attendance upon the sessions of the January 
term, 1888, of said circuit and district courts, by law held 
at Lincoln, in Lancaster county, at the time of the service 
of the summons upon him, and that the pretended service 
of the same ujion him was while he was so in the discharge 
of his official duties at and in Lancaster county, in attend- 
ance upon said courts as required by law, and is wholly 
void, and he should not be further required to answer or 
obey said summons." 

On April 20, 1888, at the February term of the court 



n 



164 NEBRASKA REPORTS. [Vol. 30 



Bierbower t. Miller. 



below, the motion to quash the service of summons on 
defendant was heard and argued and was overruled, to 
which the defendant excepted on the record. 

On June 9, 1888, at the May term of the court below, 
the motion of William Groneweg and John Schocntgen 
for leave to intervene as parties defendant was heard and 
argued and was sustained ; and for answer to the plaintiff's 
petition they state: 

"That they deny each and every allegation in the peti- 
tion contained. 

"Count II. They admit that on November 11,1886, 
they directed the United States marshal to levy upon a 
certain stock of merchandise in the town of Deloit, Ne- 
braska, the taking of which is the seizure complained of, 
but whether Exhibit A is a correct list of the property 
taken defendants are unable to say, but deny the same and 
leave plaintiflF to his proof. They allege that plaintiff's 
claim to the property is based upon a pretended purchase 
made from D. L. Cramer and D. V. Coe, or one of them, 
without consideration and with the purpose and intent on 
the part of all of them to hinder, delay, and defraud these 
defendants and other creditors of Cramer and Coe, who 
were at the time of said pretended sale greatly embarrassed 
financially, and unable to meet their obligations, and were 
insolvent, all of which was then well known to the plaint- 
iff, by reason of which defendants allege the plaintiff's 
claim is fraudulent and he cannot recover. 

" Count III. For further answer defendants aver that on 
November — , 1886, they commenced their action in the cir- 
cuit court of the United States for the district of Nebraska, 
claiming of D. L. Cramer and D. V. Coe $1,800, upon 
certain promissory notes of theirs, in pursuance of which 
a writ of attachment was issued and levied upon the prop- 
erty as stated in count II of this answer; that on Decem- 
ber 4, 1886, the plaintiff herein filed in said cause in said 
circuit court his petition as follows: 



Vol. 30] SEPTEMBER TERM, 1890. 165 



Bierbower t. Miller. 



"* Comes now John F. Miller, as intervenor, and informs 
this court and avers that the property attached herein be- 
longs to him, and so belonged at the time it was seized and 
levied upon by virtue of the order of attachment herein, 
and at the time of making said levy said property was in 
the possession of said intervenor in the county of Holt, in 
this state, and was wrongfully, unlawfully, and forcibly 
taken from his possession without his consent. 

" ' II. Since the taking of said property from his pos- 
session he has demanded of the marshal a return of the 
same, and said marshal has refused to return or in any 
manner account for the same. He prays that said attached 
property be returned to him and that he have judgment 
for his costs.' 

"That on February 23, 1887, at a term of the United 
States circuit court, then being held at Lincoln, the plaint- 
iff's claim was tried and submitted to a jury, upon which 
was the following verdict: 

"*Groneweq and Schoentqen, 
V. 
D. L. Cramer et al., defendants, 
John F. Miller, intervenor. 

"'We, the jury, find that at the time of the taking of 
the property herein attached, the title to the property, and 
the possession of the same was in the intervenor, John F. 
ililler, and was then of the value of $2,800, and the price 
at which the same was sold by the marshal was $1,260.* 

''The plaintiff thereupon elected to take, and did take 
and receive from the United States marshal the amount in 
his hands realized by the sale of said attached property, 
which is the sum of $1,287, mentioned in the second count 
of plaintiff's petition.* 

*'And defendants allege that all the claim of the plaint- 
iff against them, arising out of said attachment, was fully 
adjudicated and settled in said intervening proceedings, and 
plaintiff cannot now relitigate the same." 



166 NEBRASKA REPORTS. [Vol-. 30 



Blerbower t. Miller. 



On June 29, 1888, at said May term of the court below, 
leave was given defendant Bierbower to answer instanter 
and answer was filed as follows: 

"The said defendant says that in whatever he did in the 
premises he did in his capacity of United States marshal, 
under the direction of Groneweg and Schoentgen, and has 
no interest in the controversy; that said defendants are 
wholly responsible, if anybody, for whatever damage, if 
any, was sustained by plaintiff on account of said levy and 
seizure and attachment complained of. Defendant denies 
each and every allegation in said petition contained/' 

The plaintiff replied to the respective answers of de- 
fendants, denying each and every allegation therein con- 
tained not expressly admitted. 

" II. He admits that he purchased the property levied 
on by defendant Bierbower at the instance of the other 
defendants, but denies that the same was made with any 
fraudulent intent, or with intent to defraud Groneweg or 
Schoentgen, or any of the creditors of the vendor. On the 
other hand, such purchase was bona fide and for a valua- 
ble consideration. He denies that Cramer and Coe were 
financially embarrassed and that he had full knowledge of 
that fact at the time he made the purchase. 

"III. He admits the allegations in the third count of 
the answer respecting the intervention of the plaintiff in a 
suit in the circuit court of the United States by Groenweg 
and Schoentgen against Cramer and Coe, being that in 
which the attachment was issued, except the plaintiff's 
rights were absolutely concluded in that proceeding, and 
by the decree of tliat court they were barred from prose- 
cuting this action. Plaintiff denies that his intervention 
in this action and the proceedings and judgment that fol- 
lowed are a bar to the proceedings of this action. On the 
other hand plaintiff avers that by the verdict and judg- 
ment of the circuit court, the title and ownership of tlic 
property in question were conclusively found to be in him, 



r 



Vol. 30] SEPTEMBER TERM, 1890. 167 



Blerbower v. Miller. 



and the defendants are thereby barred and estopped from 
setting up the defense and claim that the plaintiff is not the 
owner of the property in question, or that the sale to him 
was a fraudulent one, as all those matters were put in issue 
by the answer of the defendants filed therein in reply to 
intervenor's petition as follows: 

"'Groneweg and Schoentgen, plaintiffs,^ 

V. 

Cramer and Coe, defendants, and 
John F. Miller, intervenor. 

"^They admit that at the time of the levy, said inter- 
venor was in the possession of the property attached, and 
that the marshal refused to return to him the property 
taken, and they deny every other allegation in his petition 
contained. 

" * II. Plaintiffs allege that they are informed and believe 
and charge that the intervenor claims the title to said prop- 
erty by virtue of a pretended sale thereof, made by D. V. 
Coe, and plaintiffs allege that said pretended sale is void for 
the reason that the same was without consideration ; that at 
the time said Coe was largely indebted to plaintiffs and other 
creditors, of which the intervenor had notice ; that said 
pretended sale was made with the fraudulent purpose and 
intent to hinder, delay, and defraud the creditors of said 
Coe, in collecting their claims against him, and sitid con- 
veyance was received by the said intervenor with the 
fraudulent intent and purpose to assist Coe in hindering, 
delaying, and defrauding his creditors. 

"'III. Plaintiffs further say that they are informed and 
believe and charge that atthe time of the said pretended sale 
of the said property there was no delivery thereof, nor did 
said intervenor take possession until a long time thereafter, 
nor was any instrument conveying said proi>erty, nor copy 
thereof, filed in the office of the county clerk of O^Neill 
Goanty, whercsaid Coe then resided, and by reason of such 
ftct the pretended conveyance is absolutely void by force 



1G8 NEBRASKA REPORTS. [Vol.30 



Bierbower t. Miller. 



of the statute in such cases^ and no rights in or to said 
attached property accrued to said lutervenor thereunder/ 

"The plaintiflFs aver that while the title to the property 
in question was adjudged in that proceeding to be in the 
plaintiffs, yet the court by its final judgment simply ordered 
the payment of the amount realized at the marshal's sale, 
instead of the full value of the goods found by the jury, and 
expressly reserveil to these plaintiffs in said judgment the 
right to prosecute this action against the defendant for the 
full damages occiisioned by the levy of the attachment, as 
appears by the judgment of the circuit court of the United 
States for tlie district of Ncbrasiia as follows : 



iNTS, AXD j 



"^Gronew^eq and Schoentgen 

V. 

Cramer AND CoE,DEFE^'DA^xo,A^^l^ I 
John F. Miller, intervenor. J 

" ' This cause wan heard on the motion for a now trial 
and in arrest of judgment, and the motion of the intervenor 
to correct tlie judgment entered in this action, and it is 
ordered and adjudged that the marshal and clerk pay over 
to tlie intervener the amount of money now in their hands 
realized upon the sale of the goods and property claimed 
by the said intervenor, to-wit, the sum of §1,289.34, and 
seized by the marshal by virUie of a writ of attachment 
issued in this cause. 

" * This order to be without prejudice to the rights of 
John F. Miller to bring suit against the marshal or the 
plaintiffs for the recovery of damages caused by the illegal 
seizure and detention of the goods and property seized 
under said writ of attachment, and for the recovery of the 
full value of the same. 

" * It is further adjudged that the intervenor recover the 
costs of his intervention herein, and that the plaintiffs pay 
all costs of the seizure and sale of the goods and property 
levied upon by the marshal under the writ of attachment 
and now adjudged to be the property of the intervenor. 



Vol. 30] SEPTEMBER TERM, 1890. 169 



Bierbower t. Miller. 



It is ordered that the motion for a new trial and arrest of 
judgment be overruled.' 

" Wherefore plaintiflF asks that the prayer of the petition 
be granted, and judgment be allowed for tlie amount prayed 
for therein. 

"Stipulation of the Parties in the Court Below. 
Filed November 22, 1888. 

**It is hereby stipulated that this case shall not be tried 
before December 15, 1888, and not llicn except by agree- 
ment of parties, and in consideration the defendants agree 
that they will make no application to remove the cause to 
the federal court^ but that the same shall be tried in this 
court. 

" It is further stipulated tliat the original files marked 
by the clerk of the circuit court of the United States, in 
the cause of Groneweg and Schoentgen against Cramer et 
al., including the petition of intervention of John F. Mil- 
ler, and the answer thereto, and the reply to the answer, 
may be used and treated on the trial of the cause the same 
as copies duly certified by the clerk of the circuit court. 

"At a session of the circuit court of the United States 
at Onmha, on May 13, 1889, before Hon. Elmer S. Dundy,* 
U. S. district judge, the cause of John F. Miller, plaintiff, 
against William Groneweg and John Schoentgen, defend- 
ants, was heard upon the defendants' petition for the 
removal of the cause from the district court of the state 
of Nebraska, for Lancaster county, to the circuit court of 
the United States for the district of Nebraska, and upon 
the proofs offered in support thereof, and it having been 
made to appear that from prejudice and local influence the 
said defendants will not be able to obtain justice in the 
court in which this action is pending, or in any other state 
court to which said defendants may on account of such 
prejudice or local influence have a right under the laws of 
the state of Nebraska to remove this cause, and it further 
appearing that this suit is one properly removable under 



170 NEBRASKA REPORTS. [Vol. 30 



Bierbower 7. Miller. 



the acts of the congress of the United States to the said 
circuit court^ it is hereby ordered that the said suit be^ and 
the same hereby is, removed from the said state district 
court of Nebraska within and for the county of Lancaster 
into tlie circuit court of the United States for the district of 
Nebiuska/* 

On May 22, 1889, there was a trial in the court below 
to a jury and verdict for the plaintiff for $1,780, with 
judgment for that sum and costs, $41.15. 

Subsequently the defendants filed their motion to vacate 
the judgment, set aside the verdict, and grant a new trial 
for the reasons : 

I. Because the verdict is not sustained by the evidence 
and the law in the case, and was rendered by the jury 
without authority to render it, because the court was with- 
out jurisdiction to try the cause at the time it was tried. 

II. Because the verdict is contrary to law, the court and 
jury being without jurisdiction to try the cause and render 
the verdict. 

III. Because of error at law occurring at the trial $md 
excepted to by defendants, and especially because the court 
had no jurisdiction of the cause or right to try it at the 
time of trial, which motion was heard and overruled. 

The plaintiffs in error assign the following causes for 
review : 

I. The district court was without jurisdiction to try the 
cause. 

II. The court erred in overruling defendants' objection 
to the trial of the cause prior to the trial and to the impan- 
eling of the jury. 

III. The court erred in overruling defendants' objection 
to the introduction of evidence. 

IV. In rendering final judgment in favor of the plaint- 
iff below. 

V. In overruling defendants' motion for a new trial. 
The above assignments all resolve themselves into a 



Vol. 30] SEPTEMBER TERM, 1890. 171 



Bierbower t. Miller. 



single proposition of law, to-wit, that the cause having 
been removed from the district court of the state of Ne- 
braska to the circuit court of the United States, the former 
tribunal was, at the date of the trial and judgment com- 
plained of, without jurisdiction to hear or determine the 
cause, and therefore said judgment is erroneous. Doubtless 
if the premises be true both in fact and in law, the conclu- 
sion follows. If* the action had been, pursuant to the law 
of the land, removed from the district court, then its judg • 
ment is void and should be reversed. But it is quite 
conceivable that certain forms of law may have been gone 
through with for the purpose of removing said cause, and 
the circuit court may have assumed jurisdiction of it when 
in law the case remained with the district court, and this 
is the case whatever steps were taken, if the cause is not 
one of those of which the circuit court of the United States 
has jurisdiction under the law, and the removal of which 
from the state to the federal courts has been provided for 
by law, and that it is not, is the contention of the defendants 
in error. 

In disposing of the case I will give the act of congress 
of March 3, 18S7, such examination as is deemed necessary 
in order to express my views of its application to the case 
at bar, but will make no attempt to reconcile the conflict- 
ing opinions of the courts in respect thereto. The title of 
the act is ^^An act to amend the act of congress approved 
March 3, 1875, entitled 'An act to determine the jurisdic- 
tion of the circuit courts of the United States and to r^- 
nlate the removal of causes from state courts and for other 
purposes, and to further r^ulate the jurisdiction of circuit 
courts of the United States and for other purposes.'" 
By the act of which this is amendatory it was provided 
that the circuit courts off the United States should have 
original cognizance, concurrent with the courts of the sev- 
eral states, of all suits of a civil nature, at common law or in 
equity, where the matter in dispute exceeded, exclusive of 



172 NEBRASKA REPORTa [Vol. 30 



Bierbower v. Miller. 



costs, the sum or value of five hundred dollars and arising 
under the constitution or laws of the United States, or trea- 
ties made or which should be made under their authority, 
or in which the United States were plaintiffs or petitioners, 
or in which there should be a controversy between citizens 
of different states. By the amendatory act it is provided 
that the circuit courts of the United States shall have orig- 
inal cognizance, concurrent with the courts of the several 
states, of all suits of a civil nature, at common law or in 
equity, where the matter in dispute exceeds, exclusive of 
interest and costs, the sum or value of two thousand dol- 
lars, and arising under their authority, or in which contro- 
versy the United States are plaintiffs or petitioners, or in 
which there shall be a controversy between citizens of 
different states, in which the matter in dispute exceeds, 
exclusive of interest and costs, the sum or value aforesaid. 
It clearly appears from the language of the first section 
of the amendatory act that where there is a controversy 
between citizens of different states, the circuit court of the 
United States has jurisdiction, provided the matter in dis- 
pute exceeds, exclusive of interest and costs, the sum or 
value of two thousand dollars, and it is as certain, although 
not expressed in words, that such court has not jurisdiction 
if the matter in controversy, exclusive of costs, does not 
exceed the sum or value of two thousand dollars. It is 
equally certain from the reading of the firet section that 
the matter in controversy shall exceed, exclusive of inter- 
est and costs, the sum or value of two thousand dollars, 
as it is that .the controversy must be between citizens of 
different states. .The jurisdiction of the federal court is 
as much dependent upon one of the facts as it is upon 
the other; in the absence of either that court has not 
jurisdiction of the cases mentionecb in the third provision 
of the first section of the amendatory act. In the enact- 
ment of the amendatory law the intent of congress was 
to raise the minimum sum or value of the matter in dis- 



Vol. 30] SEPTEMBER TERM, 1890. 173 



Bierbower v. Miller. 



pute from five hundred dollars, exclusive of costs^ to two 
thousand dollars, exclusive of interest and costs. 
The second section of the amendatory act provides : 
" That amy suit of a civil nature, at law or in equity, 
arising under the constitution or laws of the United States, 
or treaties made, or which shall be made under their au- 
thority, of which the circuit courts of the United States are 
given original jurisdiction by the preceding section, whicli 
may now be pending, or which may hereafter be brought 
in any state court, may be removed by the defendant or de- 
fendants therein to the circuit court of the United States 
for the proper district. Any other suit of a civil nature, 
at law or in equity, of which the circuit courts of the 
United States are given jurisdiction by the preceding sec- 
tion, and which are now pending, or which may hereafter 
be, brought in any state court, may be removed into the cir- 
cuit court of the United States for the proper district by 
the defendant or defendants therein, being non-residents 
of that state. And when in any suit mentioned in this 
section there shall be a controversy which is wholly be- 
tween citizens of different states, and which can be fully 
determined as between them, then either one or more of the 
defendants actually interested in such controversy may re- 
move said suit into the circuit court of the United States 
for the proper district. And where a suit i^ now pending, or 
may be hereafter brought in any state court in which there 
is a controversy between a citizen of the state in which the 
suit is brought, and a citizen of another state, any defend- 
ant, being such citizen of another state, may remove such 
suit into the circuit court of the United States for the 
proper district at any time before the trial thereof, when it 
shall be made to appear to said circuit court that from prej- 
udice or local influence he will not be able to obtain justice 
in such state court, or in any other state court to which 
said defendant may under the laws of the state have the 
right, on account of such prejudice or local influence, to re- 
move said cause." 



174 NEBRASKA REPORTS. [Vol. 30 



Bierbowcr v. Miller. 



Under this section it is claimed that a defendant may, 
where there is a controversy between citizens of different 
states, remove a pending cause into the circuit court of the 
United States for the proper district, regardless of the sum 
or value of the matter in dispute. That no application 
for a removal need be made to the state court, and that no 
petition for a removal need be filed in the state court, and 
that no bond is required of the party removing. 

It is clear that under section 2 of the amendatory act 
only those suits are removable to the federal court ot 
which that court was given jurisdiction by the preceding 
section (section 1 of the amendatory act). In other 
words, only such suits can be removed into the circuit 
courts as could originally have been commenced there. 
The clause of section 2, which authorizes a defendant to 
remove a suit into the circuit court on account of prejudice 
or local influence, simply gives the right of removal at any 
time before the trial and dis})enses with petition and bond, 
while in other cases of removal the petition or application 
therefor must be filed in the state court at or before the 
time that the defendant is by the state law or rule of the 
state court required to answer or plead. But this clause 
of the second section is to be construed with the preceding 
clause of the same section, which requires, as a prerequisite 
to removal, that the matter in dispute shall exceed the 
specified amount. 

In the enactment of this amendatory act congress evi- 
dently had in view the fact that if a party desired to re- 
move a case on the ground of citizenship alone he could 
as well make his application therefor on or before the 
answer day as thereafter, but that he might not be aware 
of the existence of prejudice or local influence which would 
prevent his obtaining justice in the state courts, until after 
issues were joined, and hence a party who might be willing 
to litigate in the state courts provided he could obtain jus- 
tice therein, if he afterwards and before the trial was able 



Vol. 30] SEPTEMBER TERM, 1890. 175 



Bierbower v. Miller. 



to make it appear that on account of jjiejudice or local in- 
fluence he could not obtain justice in any state court^ should 
have tlie right to remove the case into the federal court at 
any time befoi'c the trial; but a reasonable interpretation 
of the statute does not lead to the conclusion that a de- 
fendant could remove a <»se where the amount in contro- 
versy did not exceed two thousand dollars; and hence of 
a class of cases of which jurisdiction had not been con- 
ferred upon the federal courts. It is the first section alone 
of the amendatory act which gives the federal court juris- 
diction ; the second and third sections simply provide the 
manner in which causes shall be brouglit within that juris- 
diction. Had it been the intent of congress to authorize 
a defendant to remove a suit in which was involved less 
than- the prescribed amount, the first section of the act, the 
section giving jurisdiction, would have conferred upon the 
circuit courts of the United States jurisdiction, concurrent 
with the courts of the several states, of all suits of a civil 
nature, at common law or in equity, in which there was a 
controversy between a citizen of the state in which the 
suit was brought and a citizen of another state, without 
regard to the sum or value of the matter in controversy, 
whenever it should be made to appear to said circuit court 
that the defendant in such suit, not being a citizen of the 
state where the suit is brought, could not^ on account of 
prejudice or local influence, obtain justice in any state court. 
That congress did not, in terms, confer such jurisdiction 
regardless of the amount involved argues strongly against 
the contention that a defendant may under the last clause 
of the second section remove a suit into the federal court 
regardless of the amount involved. 

The position that the last clause of section 2 relates 
merely to the time when the defendant may make his ap- 
plication for removal, and dispenses with the petition or 
bond, is strengthened by the first part of section 3, which 
reads as follows : " Sec. 3. That whenever any party entitled 



176 NEBRASKA REPORTS. [You 30 



Bierbower y. Miller. 



to remove any suit mentioned in the next preceding section, 
except in such cases as are provided for in the last clause 
of said section, may desire to remove such suit from a state 
court to the circuit court of the United States, he may 
make and file a petition in such state court at the time^ or 
any time before the defendant is required by the laws of 
the state or the rule of the state court in which such suit 
is brought to answer or plead to the declaration or com- 
plaint of the plaintiff, for the removal of such suit into 
the circuit court to be held in the district where such suit 
is pending, and shall make and file therewith a bond, with 
good and sufficient surety for his or their entering in such 
circuit court on the first day of its then next session a copy 
of the record in such suit, and for paying all costs that 
may be awarded by the said circuit court if said court shall 
lioKl that such suit was wrongfully or improperly removed 
thereto, and also for their appearing and entering special 
bail, if special bail was originally requisite therein." 

It thus appears from the third section that in all cases, 
except those mentioned in the last clause of section 2, viz., 
"those where the defendant may remove on the ground of 
prejudice or local influence, the party entitled to remove 
must file his petition on or before the answer day, and must 
file therewith the prescribed bond; while in the cases men- 
tioned in the last clause of the second section the applica- 
tion for removal may be made at any time, and the cause 
may be removed at any time before trial, provided it be 
made to appear to the circuit court that by reason of prej- 
udice or local influence the defendant will not be able to 
obtain justice in the state courts. Before it can be held 
that the purpose of congress was to confer upon the federal 
courts jurisdiction of suits between citizens of different 
states, regardless of the sum or amount in controversy, 
under a statute the first section of which confers such 
jurisdiction, there must be something in the section which 
confers jurisdiction showing that intent. There being, as 



Vol. 301 SEPTEMBER TERM, 1890. 177 



Bicrbower v. Miller. 



I conceive, notliing either in the letter or spirit of the 
statute^ I conclude that no such jurisdiction was conferred. 

The act of September 24, 1787, conferred jurisdiction 
"of all suits of a civil nature, at common law or in equity, 
where the matter in dispute, exclusive of costs, exceeds the 
sum or value of five hundred dollars, and an alien is a 
party, or the suit is between a citizen of the state where the 
suit is brought and a citizen of another state." This pro- 
vision remained undisturbed until the passage of the act 
approved March 8, 1875, in which act jurisdictional lan- 
guage somewhat different is used, but so far as the limita- 
tion of iiuch jurisdiction to suits where the matter in dis- 
pute exceeds, exclusive of costs, the sum or value of five 
hundred dollars is concerned, it is substantially the same. 
And the act of 1875 contains a repealing clause by which 
all acts and parts of acts in confiict with the provisions of 
said act are thereby repealed. The act of March 3, 1887, 
is, as we have seen, amendatory of the act of 1875, and its 
provisions, including the jurisdictional clause, are made 
expressly to take the place of the provisions of said act. 
So that, as I conclude, there is no act of congress now 
in force conferring jurisdiction upon the circuit court un- 
accompanied by the limitation of two thousand dollars. 

It is probably unnecessary here to meet the possible ob- 
jection that the judicial power of the United States, having 
been declared by the Ist clause, 2d section, of 3d article of 
the constitution of the United States, to " extend to * * 
controversies ♦ * * between citizens of different states," 
that jurisdiction exists in the circuit court by virtue of that 
instrument. This question was before the supreme court 
of the United States in the case of Sheldon r. Sill, 49 
U. S., 440, where it was expressly held that (I quote the 
syllabus): "Courts created by statute can have no jurisdic- 
tion but such as the statute confers." The circuit court of 
the United States, thus having been created by act of con- 
gress, received and retains its jurisdiction in such terms and 
12 



178 



NEBRASKA REPORTS. [Vol. 30 



Bierbower y. Miller. 



with limitations as congress has expressed and imposed. 
The circuit court therefore being without jurisdiction to 
order the removal of the cause from the district court of 
this state to the circuit court of the United States for flie 
district of Nebraska, for the reason that the matter in dis- 
pute did not exceed, exclusive of interest and costs, the 
sum or value of two thousand dollars, the district court of 
this state was not div&sted of jurisdiction to hear and de- 
termine said cause, notwithstanding the record presented 
in the case. 

The judgment of th^ district court is 

Affirmed. 
NoRVAL, J., concurs. 

Maxwell, J., dissenting. 

I concur in the opinion of Judge Cobb so far as the 
points stated in the syllabus are involved. I am unable, 
however, to agree with him that the petition for removal 
on the ground of bias or prejudice is to be filed in tiie fed- 
eral court. We must remember that the state and federal 
courts are of concurrent jurisdiction in cases where the de- 
fendant is a non-resident of the state and the amount in- 
volved, exclusive of interest and costs, exceeds the sum of 
$2,000. In such case the defendant may remove the case 
into the federal court. Ordinarily his petition must be 
filed before the time to answer. In case of allied bias or 
])rejudice, however, he may file the petition at any time 
before trial. And this in my view is the exception in 
the third section of the act — that is, that in all cases ex- 
cept tiiose where bias or prejudice are shown the petition 
must be filed before the answer day, while in cases of 
alleged bias or prejudice it may be filed at any time before 
the trial. If the petition shows a prima facie case for re- 
moval, the state court should, and, so far as I amadvised, 
invariably has ordered the cause removed. 



Vol. 30] SEPTEMBER TERM, 1890. 179 



Bierbower v. Mlllor. 



If the plaintiff disputes the charge of bias or prejudice 
he may theu appear in the federal court and contest the 
charge. In this respect the act of 1887 differs from that 
of 1867. Under the former act, upon the proper affidavit 
being filed in the state court, although false in fact, the case 
was ordere<l removed. Under the present statute, however, 
it requires more than a prima facie case to justify the re- 
tention of the case by the federal court. There must in 
fact be bias or prejudice shown so that it would prevent a 
fair trial. 

The mere fact of a petition being filed in the state court 
and the cause ordered removed, will not j)revent the plaint- 
iff from appearing in the federal court and contesting tlie 
truth of the charge. The language of the statute is some- 
what vague, but this is the evident purpose. The object 
of the statute was to restrict the right of removal, not to 
extend it, and this fact must be kept in view. In other 
words, the act is not remedial in the sense of extending 
the jurisdiction of the federal courts, but was intended to 
curtail such jurisdiction. It does not create a new mode 
of removal, but in many respects limits the old. 

Section 61 of the Code of Civil Procedure provides : 
^'That in all cases in which it shall be made to appear to 
the court that a fair and impartial trial cannot be had in 
the county where the suit is pending, or where the judge is 
interested or has been of counsel in the case or subject- 
matter thereof, or is related to either of the parties, or is 
otherwise disqualified to sit, the court may, on application 
of either party, change the place of trial to some adjoin- 
ing county wherein such impartial trial can be had; but if 
the objection be against all the counties of the district, then 
to the nearest county in the adjoining district'^ In order 
to show cause for removal it must \e alleged in the peti- 
tion, and, if denied, proved, that a fair and impartial trial 
cannot be had in the county where the suit is pending or 
idher counties in the district; or, if the objection applies to 



180. 



NEBRASKA REPORTS. [Vol. 30 



«1 



Bierbower ▼. Miller. 



all of the counties of the district, then to the nearest county 
in an adjoining district to which the objection does not 
apply. 

It is of the utmost importance that there should be no 
clashing of jurisdiction between the state and federal courts. 
From the necessity of the case the supreme court of the 
United States is the ultimate arbiter in all cases of doubt, 
and in its decision the state courts cheerfully acquiesce. It 
would be a sad spectacle, however, to witness a race be- 
tween the state and federal courts for the commencement 
or retention of business in either of said courts. This, no 
doubt, has been felt by both courts and every effort made 
to avoid a conflict; and on the part of the state court of 
this state at least many cases have been surrendered, or 
rather permitted to be removed, while the papers on their 
face did not show the right of removal. This, in my view, 
should not be permitted, as the court should not surrender 
its jurisdiction except upon a showing that another court 
is entitled to exercise it. In many cases an improper re- 
moval operates as a great wrong upon the party against 
whom it is made, by subjecting him to great and unneces- 
sary costs. 

This is not a question of courtesy between courts, but 
must be determined by the law as it exists. The prejudice 
act of 1867 arose out of matters connected with the war; 
it has never had any solid foundation in this state. 

There are twenty-one judges of the district courts of 
this state. Many of these judges had held important 
oflBces of trust and profit for many years before being called 
to the bench. They are capable lawyers whose integrity 
is unquestioned. In an equity case how can an afiiant 
swear that these twenty-one judges are biased or prejudiced 
against him^ They are men of whom be has no personal 
knowledge in all probability, and they probably liave no 
knowledge of him whatever. 

It is very plain that an oath that they are all biased or 




Vol. 30] SEPTEMBER TERM, 1890. 181 



Blerbower ▼. lilUer. 



prejudiced against him, borders very closely upon perjury; 
and even where the oath is predicated upon the prejudice 
or bias of the people of a particular county, no one can 
truthfully assert that the people in the more than ninety 
counties of this state are prejudiced against the afBant. 

There are many reasons why the district court should 
not surrender its jurisdiction until a proper showing is 
made in that court. Suppose an action is brought for less 
tiian $2,000 and the case is removed into the federal court, 
and judgment or a decree of foreclosure rendered for a 
sum less than that fixed by statute authorizing the removal 
of the cause, how can the validity of such judgment be 
upheld? Not by the statute, certainly, for that only au- 
thorizes a removal where the amount claimed exceeds 
$2,000, exclusive, etc. The effect would seem to be that 
the decree of foreclosure, or judgment and all the proceed- 
ings thereunder, would be null and void. 

The supreme court of the United States has held that 
the circuit court was a court of limited jurisdiction and 
had cognizance only of a few cases specially circumstanced, 
and that the fair presumption was that the cause was with- 
out its jurisdiction till the contrary appeared. {Turner v. 
Bank of North Americay 4 Dallas, 8 ; Turner v, Enritte, 
Id., 7; Bingham v. Cabot, 3 Id., 381.) Being a court 
of limited jurisdiction as to })arties and amounts, like any 
other court of that kind, it must act within its powers. I 
do not care to make a comparison with other courts of 
limited jurisdiction where judgments in excess of their 
powers, as to amounts, have been held to be void ; but it 
is well known that such is the law. It is necessary, there- 
fore, to set forth in the record the facts and circumstances 
which give jurisdiction. The importance of taking the 
necessary steps to oust the state court of jurisdiction, there- 
fore, plainly appear, and until such stops are taken by 
filing a proper petition and other papers in the state court, 
it should proceed with the case. 

In Boyden v, Burke^ 55 U. S., 576, it was held by the 



]82 



NEBRASKA REPORTS. [Vol. 30 



Bierbower t. Miller. 



supreme court of the United States that a lawful demand 
must be made in a respectful manner. Surely the same 
rule will be applied where it is sought to oust a court 
having lawful jurisdiction of an action. 

More than one hundred years ago the original act for the 
removal of cause was passed, one of the requisites of 
which was that a petition showing the necessary facts to 
entitle the petitioner to remove the cause, together with a 
bond, should be filed in the state court. This law is still 
in full force and applies to all cases. 

In Trafton v, Nougues^ 4 Central Law Journal, 230, in 
a case before the United States circuit court of California, 
Judge Sawyer says : 

"I think it is of the highest importance to the rights of 
honest litigants, and to the due and speedy administration 
of justice, that a petition for transfer should state the exact 
facts and distinctly point out what the question is and how 
and where it will arise which gives jurisdiction to the court 
so that the court can determine for itself from the facts 
whether the suit does really and substantially involve a 
dispute or controversy properly within its jurisdiction. 
Whenever, therefore, the record fails to distinctly show 
such facts in a case transferred to this court it will be re- 
turned to the state court.'' 

I fully concur in all that is said above, but unless a 
prima facie case is made for removal, it is the duty of the 
state court to proceed with the trial, and it should not sur- 
render its jurisdiction unless a proper application is made 
to it showing the necessary facts for that purpose, while, 
if a prima facie case is made for removal, the cause should 
be ordered removed. 

If upon such petition being filed the state courts refused 
to transfer the case, there might be a just cause of com- 
plaint, but no such case has occurred in this state, so far as 
this court is advised, and the respect due to the state no 
less than the federal court requires that the proceedings be 
conducted in an orderly manner and in conformity to law. 



Vol. 30] " SEPTEMBER TERM, 1890. 183 



Gaudy v. Early. 



M. E. Gandy et al. v. J. M. Early. 

[FiLKD Septembbb 16, 1890.] 

• 

Trial : Order of Proof : Variation. The statnte prescribes the 
order of proof on the trial of a canse. Thia, however, may be 
varied by the court where it will work no iujustice to the parties. 
If a plaintiff fail to introduce all his evidence in chief in open- 
ing his case and afterwards, when off^sring evidence to rebnt the 
defendant's proof, introduces evidence in chief, the defendant 
has a right to offer proof to deny, modify, or explain such new 
evidence. 

Error to the district court for Richardson county. 
Tried blow before Appelget, J. 

E, W, Thomas, for plaintiffs in error. 

jP. Martin, and E. A. Tucker, contra. 

Maxwell, J. 

This action was brought in the district court of Rich- 
ardson county by the defendant in error against the 
plaintiffs in error to recover the possession of certain per- 
sonal property, or, in case the same could not be recovered, 
of the value thereof, which is to be alleged to be the sum 
of $350. The answer is a general denial. 

The property was not taken under the order of replevin 
and the action proceeded as one for damages. 

On the trial of the cause the jury rendered a verdict in 
favor of the defendant in error and against the plaintiffs in 
error for the sum of $350, for which judgment was ren- 
dered. 

The plaintiff in error in support of the motion for a new 
trial filed the following affidavit : 

" I, E. W. Thomas, being duly sworn, say I am attorney 
for defendant in the above action and was so when the 



184 



KEBRASKA REPORTS. [Vol. 30 



Gandy v. Early. 



same was tried March 8th and 9th last week. On the trial 
of said cause, after plaintiff had introduced his evidence 
tending to prove that one of the notes offered in evidence 
by plaintiff (to-wit, the note for $95.50) had been paid by 
plaintiff and his brother turning over end giving to de- 
fendant two timber claims. I called James L. Gandy and 
attempted to prove by him that said note had never been 
paid either in whole or in part, and I then asked said 
Gandy a question to that effect, but the court refused to 
allow said question to be asked and, as I undei'stood the 
matter, the court ordered that said question should not be 
taken down by the reporter, with my exceptions to the 
rulings of said court about the same. Tiiereupon I pre- 
sented to the court the following offer of proof in writing, 
to-wit : 

" 'Defendant now offers to prove by the testimony of 
James L. Gandy and others that the promissory note, 
which is in evidence, dated May 27, 1886, for $95.90 signed 
by James M. Early and W. D. Early in favor of M. E. 
Gandy, or order, has never been paid either in whole or in 
part.' 

" The court, however, refused to allow me to put in the 
said proof, or to examine the witnesses thereon. To all which 
ruling I at the time excepted. Thereupon the court stated 
j)ositively that if I should ask any more questions of my 
witnesses on any other point than on the question whether 
the said larger chattel mortgage had been changed since it 
was executed and delivered I must retire from the case, or 
the court would fine me for contempt. I at the same time 
asked of witness E. D. W. Sheckell, whom I then had on 
the stand, whether or not he had heard James W. Early, 
on December 1, 1887, at a certain restaurant nearly oppo- 
site the Filson house in Humboldt, Nebraska, say that he 
(Early) was then justly indebted to M. E. Gandy in the 
sura of $150. 

"In asking the said question I attempted to put to the 




Vol. 30] SEPTEMBER TERM, 1890. 185 



Oandy y. Early. 



witness the same question I had asked, and about the same 
matter on which I had cross-examined plaintiff when upon 
the stand as a witness for himself. The court refused to 
permit said question to be asked^ to which ruling I then 
excepted. The court, as I understood the matter, ordered 
that my objections and exceptions do not appear upon the 
reporter's record. To all of which I at the time excepted. 
The court ordered positively, and under a threat of fine 
for disobedience, that I should not ask any questions what- 
ever, except such as might tend to prove that said chattel 
mortgage had not been altered since it was made. By the 
said order of the court I was prevented from contradicting 
by my witnesses statements which had been made by 
plaintiff and his witnesses when presenting their case. 

"The said testimony was rejected and said procedings 
took place while defendant was offering his testimony after 
plaintiff had last examined his witnesses. I make this affi- 
davit for the purpose of 'getting the al)ove facts upon the 
record, and with all due respect for the court. I obeyed 
the order of the court, and thereupon asked no further 
questions than concerning the alleged change of the chattel 
mortgage. E. W. Thomas." 

On pages 98-99 of the record J. L. Gandy, being called 
as a witness, testified as follows : 

Q. Where was that mortgage made? 

A. At my office. 

Q. At what place? 

A. At my office in Humljoldt, Nebraska. After I 
made the mortgage I read it over carefully to Mr. Early, 
and he took the mortgage himsejlf and read it; then after 
reading it he said, "It is all right, but I want it under- 
stood that I can sell the stock and you will take the notes 
to })ay on the mortgage;" and I told him it would be all 
right. 

Q. I believe Mr. Early stated yesterday that all he got 
for that was $30. What about that? (Objected to, as im- 



186 



NEBRASKA REPORTS. [Vol. 30 



I 



M 



Gandj ▼. Earlj. 



material and not proper redirect examination. Sustained. 
Defendants except.) 

Q. Was the consideration for which the note was given 
only $30, as stated by Mr. Early? 

A. It was not. 

Q. What was the consideration then? (The court here 
objected to going into this case in chief and orders tliat no 
questions shall be asked witnesses on any subject but as to 
the alteration of the mortgage. Defendants except.) 

Q. Was the note dated May 27, 1886, for $95.90, signed 
by James M. Early and W. D. Early, paid? (The court 
rules the question inadmissible. Defendants except.) 

Q. Defendants offer to prove by the testimony of J. L. 
Gandy and others that the note in evidence dated May 27, 
1886, for $95.90, signed by James M. Early and W. D. 
Early in favor of M. E. Gandy, or order, has never been 
paid, either in whole or in part. (The court rules the 
question inadmissible and orders that the only thing the 
witness can be questioned about is, whether the mortgage 
of October 29, 1886, was ever changed. To which ruling 
and order the defendants except.) 

The action was brought by Early against the Gandys 
to recover certain personal property mortgaged by him to 
them, or in case the property could not be found, then to 
recover the value thereof. His right to recover depended 
on the fact that he had paid the debt. In his proof in re- 
buttal he introduced evidence which should have been given 
in chief, and this is the evidence which the plaintiffs in 
error sought to deny or explain. The statute provides the 
order of proof on the trial of a case but gives the court a 
discretion in admitting evidence out of its proper order. 
If, therefore, the court permits a party to introduce ma- 
terial evidence out of the proper order, the adverse party 
must be permitted if he so desire to introduce proof on 
that matter. The law gives to both parties the right to be 
heard — that is, each party may present his proof and sub- 



Vol. 30] SEPTEMBER TERM, 1890. 187 



Vallindingham ▼. Scott. 



mit it to the court and jury — have his day in court so to 
speak, and submit his own side of the controversy, and he 
cannot be deprived of this right by the faihire of the 
plaintiff to introduce all the evidence on which he relies on 
the opening of the case. The law favors a full inquiry 
into the merits of a controversy so that justice may be done 
in the case. Both parties, therefore, must have a fair op- 
portunity to offer their proof. This seems to have been 
denied in the case at bar. 

The judgment of the district court is reversed and the 
cause remanded for further proceedings. 

Reversed and kemanded. 

The other judges concur. 



G. L. Vallindingham et al. v. W. G. Scott. 
[Filed Ssptbmbeb 16, 1890.] 

1. Bill of Exceptions: Affidavits used on the hearing of a 

motion for a new trial mnst be preseryed in the bill of excep- 
tions to be available in the snpreme conrt, and cannot be at- 
tached as an exhibit to an assignment of error in the motion for 
a new trial. 

2. Evidence held to sustain the verdict. 

Error to the district court for Richardson county. 
Tried below before Broady, J. 

E, W. ThoniaSy for plaintiffs in error. 

Frank Martin, and E. A. Tucker, contra. 

Maxwell, J. 

This action was brougplit in the district court of Rich- 
ardson county to recover the possession of three mules. 



90 1^ 

32 2W 

30 187 

40 825 

30 187 

40 515 

50 154 



188 



NEBRASKA REPORTS. [Vol. 30 



Valiindingham v. Scott 



Tlie property not being taken on the writ, the action pro- 
ceeded as one for damages, and on the trial of the cause 
a verdict was rendered in favor of the defendant in error 
for the sum of $305. A motion for a new trial having 
been overruled, judgment was entered on the verdict 

The first error assigned in this court is the order com- 
pelling the plaintiff in error to proceed with the trial of 
the cause in the absence of their attorney. To this assign- 
ment there is an affidavit of their attorney attached to the 
motion for a new trial as an exhibit, but is not certified by 
the judge before whom the trial was had nor included in 
the bill of exceptions. Under these circumstances the affi- 
davit cannot be considered, and there being no evidence in 
support of the assignment it must be overruled. 

Second — There are a number of assignments of error in 
the petition in error which may be grouped together as 
containing but one proposition, viz. : That the verdict is 
against the weight of evidence. 

The defendant in error is a son of Wm. F. Scott, and 
claims to be the owner of the property in dispute. His 
testimony upon the question of ownership is clear, direct, 
and explicit, and he is corroborated by a number of wit- 
nesses and not directly contradicted by any. 

The father, Wm. F. Scott, who, it is claimed, executed 
a chattel mortgage to Gandy, denies that he ever executed 
such mortgage. The only evidence in support of the 
mortgage is that of Gandy him.self. There is no proof 
whatever that Wm. F. Scott owned the mules in contro- 
versy at the time the mortgage in question was executed, 
while, personally, he denies such ownership. 

It is difficult to perceive, therefore, how the jury could 
have rendered a different verdict in the case. There is no 
material error in the record, and the judgment is 



Affirmed. 



The other judges concur. 



Vol. 30] SEPTEMBER TERM, 1890. 189 



Uppfalt y. Woermann. 



Gust. Uppfalt, appellee, v. August Woermann et 



[Filed Septbmbss 16, 1890.] 

^ectment: A Counteb-Claim based on a contract of pnrcbaae, 
being in tbe natnre of a cross* action, tbe defendant is not com- 
pelled to interpose it in an action of ejectment as a defense. If 
be so elect he may bring a separate action to enforce the con- 
tract, subject, howeyer, to a liabilitj to pay the costs in the sec- 
ond case. 

Appeal from the district court for Cuming county. 
Heaitl below before Poweeis, J. 

T, if, Franae^ for appellants, cited, on the point that ap- 
pellee was estopped from asserting an equitable title, since 
in the ejectment suit he had remained silent in reference 
thereto: Niven r. Belbiap, 2 Johns. [N. Y.], 573; Hall 
V. Fisher, 9 Barb. [N. Y.], 17; Bank v. Bank, 60 N. Y., 
575; Blair r. Waitj 69 Id., 113; ChouUau v. Goddin, 39 
Mo., 229; Dickerson v. Oolgrove, 100 U. S., 578; Jamison 
r. Miller, 64 la., 402; Tiffany v. Anda'son, 55 Id., 405; 
Beebe v. Wilkinson, 30 Minn., 548 ; Pitcher v. Dove, 99 
lud., 175. The subject matter is res adjudicala: Fiscldi 
V. Fiscldi, 1 Blackf. [Ind.], 360; Stockton v. Ford, 18 
How. [U. S.], 418; Doty v. Brown, 4 Comst. [N. Y.], 
71; Babcock v. Camp, 12 O. ISt., 11; Cromwell v. Sac 
County, 94 U. S., 351; Case v. Beauregard, 101 Id., 
688. 

Bruner & Lewis, in reply to the latter contention, cited: 
Cromwell v. Sac County, supra; Witch v. Phelps, 16 Neb., 
515; Briyham v. McDowAl, 19 Id., 407 ; Russell v. Place, 
4 Otto [U. S.], 606; Nims v. Vaughn, 40 Mich., 356, 



190 



NEBRASKA REPORTS. [Vojj. 30 



Uppfalt T. Woennann. 



Maxwell, J. 

This is an action to enforce specific performance of a 
contract. The petition is very long and need not be spe- 
cially referred to. The principal defense relied upon is a 
prior adjudication, which is set forth in the answer as fol- 
lows: 

*^The defendants further allege that on or about the 29th 
day of September, 1883, the defendant John Nelson com- 
menced in the district court in and for Cuming oounty, 
Nebraska, a court having jurisdiction of the parties and of 
the subject-matter of the action, a suit in ejectment against 
the plaintiff Gust. Uppfalt to recover possession of the land 
described in plaintiff's petition herein, and that said, suit 
was based upon the same title and claim of title set forth 
in the petition herein as existing in the defendants Scran- 
ton, Olson, and Nelson; that said Uppfalt appeared in said 
action and based his defense upon the same contract and 
equitable rights thereunder set up by him as the basis of 
this action; that such proceedings were had in that case, 
that final judgment was in due time, and before the oom- 
mencement of this action, rendered therein, awarding the 
possession of said premises to defendant Nelson, plaintiff 
in said action; and defendants allege and ask this court to 
adjudge that said judgment so rendered is and constitutes 
a bar to this action, and that all the questions involved 
herein are res adjudicata in the suit so prosecuted to final 
judgment. 

"That in said suit in ejectment the defendant therein, 
plaintiff in this action, on or about May 25, 1886, made 
application to the said district court to be compensated for 
the same improvements and upon the same premises as are 
set forth in the petition in this suit, and that said applica- 
tion was heard by said court, and on the 27th of July, 
1886, final judgment rendered thereon, denying said ap- 
plication; that said application was based upon the same 



Vol. 30] SEPTEMBER TERM, 1890. 191 



Uppfalt y. Woennann. 



equities as are set forth in the petition herein and made the 
basis of this action, and defendants allege and ask this 
court to decree that said judgment rendered upon said ap- 
plication estops plaintiff from prosecuting this action and 
is in law a bar thereto. 

'^Tbat defendant Olson held a contract of purchase of 
the premises in question prior to the contract of plaintiff; 
that said contract of purchase was from defendant Scran- 
ton and was a legal and valid contract, and was duly filed 
for record in the clerk's office of Cumuig county, Nebraska, 
on the 23d day of November, 1881, prior to the contract 
of plaintiff, which was made December 22, 1882, and that 
plaintiff had notice of the same when he took his said con- 
tract, and at all times after February 12, 1883, had notice 
that the defendant Olson held a warranty deed of said 
premises. 

" That the defendant Scranton is amply responsible finan- 
cially and that if plaintiff has any claim or right under 
his contract with said Scranton said plaintiff has an ample 
and adequate remedy at law to enforce the same." 

On the trial of the cause the court found as follows : 

" 1st That plaintiff on the 7th day of December, 1880, 
bought of Wm. W. Scranton, executor of the last will of 
Joseph H. Scranton, deceased, the owner thereof, the fol- 
lowing property to-wit : the N. J of the S. W. J of sec- 
tion 23, township 22, range 7 east, in Cuming Co., Neb., 
the premises in controversy in this action, for the agreed 
price of four hundred and eighty dollars ($480) by an 
agreement in writing of that date duly executed by the 
said Wm. W. Scranton and said plaintiff. 

" 2d. That plaintiff paid to said Scranton on said con- 
tract the sum of eighty dollars ($80) on December 1, 1880, 
and twenty-four dollars (|24) on Deceml^er 1, 1881, and 
on December 1, 1882, the sum of one hundred and twenty- 
four dollars (|124), and also the taxes assessed on said 
land for the years , amounting to eleven dollars 



192 



NEBRASKA REPORTS. [Vol. 30 



^^^M 



Uppfalt V. WoermaDQ. 



($ 1 1), and took possession of the same lu June, 1 882, under 
said contract and retained such possession until June, 1886. 

" 3d, That plaintiflFhas made improvements on the land 
since the execution of the contract, of the value of two 
hundred and fifty dollars ($250). 

"4th. That said premises were unoccupied and unim- 
proved at the time of such purchase by plaintiiB: 

"5th. That on the 22d day of December, 1882, the 
plaintiff had his said contract duly acknowletlged and re- 
corded in the numerical index of lands in said county, 

"6th. That at the time of making the contract the 
plaintiff had no notice of any claim or interest in said 
premises by the said defendants, or any of them, and knew 
nothing of such claim or interest until some time in June, 
1882. 

" 7th. That plaintiff tendered the balance due on said 
contract at the time and in the manner therein provided, and 
that plaintiff has complied or offered to comply with the 
the terras of said contract. 

" 8th, That defendant Niels M. Olson entered into an 
agreement for the purchase of said lands, together with 
other lands, with the said Wm. W. Scranton on the 23d 
day of October, 1880. 

" 9th. That said contract of Olson was not ackowledged 
or proven, but that on the 23d day of November, 1881, 
was spread upon the miscellaneous record of said county 
and w^as entered upon the numerical index of lands therein. 

"10th. That on January 30, 1883, said Olson paid 
for said land in full under his said contract to said Scran- 
ton and obtained a deed in fee for said premises, which deed 
was placed upon record February 12, 1883. 

"11th. That said Olson conveyed the premises by deed 
to defendant Nelson on February 9, 1883, who, in turn, 
sold and conveyed to defendant Woermann June 23, 1886, 
and on May 10, 1886, defendant Nelson mortgaged the 
same to defendant Benard, and on June 26, 1886, defend- 



w 



Vol. 30] SEPTEMBER TERM, 1890. 193 



Uppfall V. Wocrmann. 



ant Woermann mortgaged the premises to bis grantor^ 
Nelson. 

"12th. That on June, 18SG, the phiintiff w;is ousted 
from the possession of said premises by the defendant 
Nelson, and as a conclusion of law, that the plaintiff, by 
virtue of his contract as aforesaid, had an equity or inter- 
est in said premises superior to that held by defendant 
Olson, under his contract, and that, at the time of making 
final payment for said premises and accepting a deed there- 
for, the said Olson had notice of plaintiff's interest in said 
premises, and took title thereto subject to such interest; 
that the said defendants Nelson, Woermann, and Renard 
acquired their several interests in said land with at least 
constructive notice of plaintiff's rights in such premises, 
and that the conveyances of the same from said Scranton 
to said Olson, and from Olson to Nelson, and from said 
Nelson to defendant Woermann were in effect an assign- 
ment of said Scranton's interest under said contract with 
plaintiff to said parties, and that said defendant Woer- 
mann took and now holds the legal title to said premises in 
trust for said plaintiff, and it is therefore considered and 
adjudged that, upon payment, or tender of payment, to the 
said Woermann of the balance due and to be paid by the 
said plaintiff to said Scranton, under said contract, together 
with interest thereon, as provided in said contract, and all 
taxes paid on said land by the said defendants, or either of 
them, and interest on said amounts then paid, amounting, 
in the aggregate, to five hundred and -^^ dollars ($530.30), 
the said AVoermann is to execute a conveyance of said 
premises to the said plaintiff, and upon his failure or refusal 
so to do for the spaoe of twenty (20) days after such pay- 
ment or tender of payment, then this decree to stand as 
and for such conveyances, and that the said mortgage deeds 
from the said Woerman to said Nelson, and from said 
Nelson to said Benard, be canceled and held for naught to 
the extent that they cover said premises and that the plaint- 
13 



194 



NEBRASKA REPORTS. [Vol. 30 



Uppfalt Y. Woermann. 



iff have and recover his costs from defendants^ taxed at 
$45.48," 

The principal question in this caseis^ whether or not the 
former action in ejectment is a bar to the prosecution of 
this action. 

The case of TJppfalt v. Nelson, 18 Neb., 533, was brought 
by Nelson against Uppfalt to recover the possession of the 
land in controversy. The answer in that case was a gen- 
eral denial and thejudgment was in favor of .Nelson. The 
question of the equitable rights of Uppfalt under his con- 
tract was not pleaded in that action, although proof tending 
to show such rights was admitted. The proof, however, in 
that case, so far as the conclusiveness of thejudgment is 
concerned, could go no farther than the pleadings, and the 
pleadings not being amended to conform to the proof, it 
was unavailing. The rule is well established ^' that the 
judgment of a court of concurrent jurisdiction directly 
upon the point is, as a plea, a bar ; or as evidence, con- 
clusive between the same parties, upon the same matter 
directly in question in another court; second, that the 
judgment of a court of exclusive jurisdiction, directly upon 
the point, is, in like manner, conclusive upon the same 
matter between the same parties, coming incidentally in 
question in another court for a different purpose. But 
neither thejudgment of a concurrent or exclusive jurisdic- 
tion is evidence of any matter which came collaterally in 
question though within their jurisdiction, nor of any mat- 
ter incidently cognizable, nor of any matter to be inferred 
by argument from the judgment." This pule was adopted 
and approved by Story, J., in Harvey v, Riehard8,2 Gall., 
229, and by Chief Justice Gibson in Hibshman v. DuUe- 
6an,4 Watts [Pa.], 191. 

The question arose in this court in Gayer v. Parker, 24 
Neb., 643. It was held that a former verdict and judg- 
ment are conclusive only as to all the facts directly in the 
issue, and do not extend to facts which may be in contro- 



Vol. 30] SEPTEMBER TERM, 1890. 195 



Uppfalt T. Woennann. 



versy and which rest upon evidence and are merely collat- 
eral. That case was carefully examined and it is believed 
that the decision is right. In ejectment under the statute 
the defendant under a general denial may prove an equity 
which negatives the plaintiff's right to the possession (Dale 
V. Hunneman, 12 Neb., 221); but can obtain no affirmative 
relief {The Duchess of Kingston's Case, 20 Howell's State 
Trials, 538). 

Where he seeks affirmative relief by setting up a con- 
tract which will give him the right to demand specific per- 
formance, this must be done by answer in the nature of a 
counter-claim. In such case he becomes an actor in fact, 
and plaintiff, in the matter therein set forth, and such 
counter-claim does not come under the term defense. In 
effect, it is a cross-action in which the defendant seeks af- 
firmative relief. He is not compelled to seek this relief in 
an action of ejectment any more than he is required to set 
up a set-off or counter-claim in other cases. The failure to 
set up the counter-claim may be ground upon which the 
court may tax the plaintiff with the costs of the second 
action, upon the principle that had the matter been sub- 
mitted in the first action the extra cost would have been 
avoided. 

There is no claim or pretense that the matter now in 
controversy was in issue in the former case and no case 
has been cited under a statute like our own holding that a 
defendant must set up his counter-claim in an action against 
him to recover the possession of land or be barred of the 
right to recover, and we cannot so hold. The other points 
in the case are not seriously urged and there is no error in 
the record. The judgment is therefore 

Affirmed. 
The other judges concor. 



196 



NEBRASKA REPORTS. [Vol. 30 



Tliigley V. Gregory. 



R. R. TI^GLEY ET AL., APPELLEES, V. J. S, GREGORY 
ET AL., APPELLANTS. 

[Filed September 16, 1890.] 

Homestead: Value Exceeding Statutory Limit: Liens. In 
an uclioii in the nature of a creditor's bill to collect a judgment 
on premises held as a homestead the value of which exceeded 
$2,000 subject to certain Hens, held^ that a decree applying the 
excess over $2,000 subject to the liens existing against the home- 
stead prior to the commencement of the action was supported 
by the weight of testimony. 

Appeal from the district court of Lancaster county. 
Heard below before Chapman, J. 

George E, Hibner, and J. 8. Gregory, for appellants. 

Robert Ryan and Tliomas jRyan, for appellee Tingley. 

Maxwell, J. 

This is an action in the nature of a creditor's bill brought 
by the plaintiffs against John S. Gregory and E. Mary 
Gregory to subject certain real estate in the city of Lin- 
coln, which is occupied as a homestead by said Gregory 
and wife, to the payment of a judgment The petition is 
in the usual form 'and alleges the recovery of the judg- 
ment for deficiency after the sale of certain mortgaged 
premises, the issue of an execution thereon returned 
unsatisfied, and that the property in controversy belongs 
to J. S. Gregory and wife and exceeds in value $2^000. 

W, W. Gregory is a son of J. S. Gregory and wife and 
purchased the property while this action was pending. In 
what way a deficiency judgment came to be rendered against 
the wife does not appear. The only question as to her lia- 
bility raised by the answer is in connection with her hus- 



Vol. 30] SEPTEMBER TERM, 1890. 197 



BUu!k T. C, B. & Q. R. Go. 



band. If she was simply surety for him, the right to 
render a deficiency judgment against her is very doubtful. 
As the question is not raised by the pleadings it is proba- 
ble that the debt was incurred in relation to her own sep- 
arate estate, and that, therefore, she is liable as principal. 
On the trial of the cause in the court below the issues 
were found in favor of the plaintiff and a decree rendered 
accordingly. A pretty careful reading of the testimony 
convinces us that the decree is the only one that should 
have been rendered, as it is in accord with the clear weight 
of testimony. The excess in value of the homestead over 
$2,000 is subject to valid liens which existed against it at 
the commencement of this action. Such liens will be paid 
in the order of their priority. 

Judgment affibmed. 
The other judges concur. 



Black et al. v. Chicago, B. & Q. R. Co. 

[Filed Septembbb 16, 1890.] "aonwl 

• 61 610l 

1. Common Carriers: Live Stock: Act of God. A oommon 

carrier of live stock is not an insurer ogainst injaries nnayoid- 
ahly resnltinis from the inherent nature or propensitiee of the 
animaH, or against lo.^ caused by the act of God. While acar^ 
rier,\?hen overtaken by uu occurrence known as the act of Grod, 
is not bound to the highest degree of dilip:ence to preserve the 
property from injury, yet, in. such an emergency, he is required 
to bestow such care as an ordinarily prudent person or carrier 
would use under like circumstances, and if he fail to do so and 
loss results therefrom, he is liable. 

2. : : . A snow storm of such violence aa to 

prevent the moving of 'trains is an act of God. 

3. The instructions given and refused considered, and hddy prop- 

erly given and refused. 



198 



NEBRASKA REPORTS. [Vol. 30 



Blackv. C. B. <bQ.R.Co. 



Error to the district court for Kearney county, 
below before Gaslin, J. 



Tried 



L, W, Hagv^y and Stewart & Rose, for plaintiffs in error, 
cited: A.&N. R. Co. v. Washburny 5 Neb., 122; Kinnick 
V. R. Co,, 29 N. W. Rep. [la.], 772; Lindaley v. R. Cb., 
33 N. W. R^p. [Minn.], 7; Wilson v. Hamilton, 4 O. St., 
722; K. P. R. Co. V. Nichols, 9 Kan., 235; St. L. & S. R. 
Co. V. Dormon, 72 III., 504 ; Agnew v. Costa, 27 Cal., 425 ; 
Clark V. R. Co., 4 Kernan [N. Y.], 570; Maslin v. R. Co., 
14 W. Va., 180; Angell, Carriers [5th Ed.], sec 214; 
Lawson, Contracts of Carriers, sec. 16. 

Marquett & Deweese, and J. L. McPhedy, eonti'a, cited : 
Parrish v. Stale, 14 Neb., 60; 1 Am. and Eng. Ency. of 
I^aw, 174, 177; Phil., etc., R. Co. v. Anderson, [6 Am. & 
Eng. R. Cases, 407] 94 Pa. St., 351 ; R. V. R. Co. v. Fhk, 
18 Neb., 93; Gleeson v. Va. M. R. Co., 28 Am. and En^. 
R. Cases, 202 ; Bolt., etc., R. Co. v. Sulphur Springs, etc., 
Dist., 96 Pa. St., 65 ; Nugeid v. SmUh, L. R. 1 C. P. D. 19, 
423. 

NORVAL, J, 

On the 16th day of November, 1886, the plaintiffs de- 
livered to' the defendant at Minden, in this state, 136 hogs 
to transport to Omaha. On account of a severe wind 
and snow storm, tlie train on which the hogs were being 
shipped^ was blockaded at Hastings for more than a day. 
When the cars arrived in Omaha, sixteen of the hogs were 
dead. Plaintiffs brought suit to recover the sum of 
$126.62 as their damages sustained. The defendant, in its 
answer, admits the receipt of the hogs, the loss of sixteen, 
and the value thereof as claimed by the plaintiffs. The an- 
swer also alleges " that after said hogs were received for 
shipment, and while in transit, there occurred a very severe, 



Vol. 30] SEPTEMBER TERM, 1890. 199 



Black V. C, B. & Q. R. Co. 



iinusunl, and eictraordinary snow storm, on account of 
which it was impossible for the defendant to move its cars, 
and niilke said shipment as promptly as it ordinarily 
would, and said hogs were conveyed to Omaha in the 
shortest possible time ; that whatever damage the plaint- 
iffs sustained, on account of the injury to the said hogs, 
and the death of the same, was caused on account of said 
storm and extreme cold weather.^' The answer also denies 
that the defendant was guilty of any negligence in the 
matter. The trial was had to a jury, resulting in a ver- 
dict for the company. The case is now before us on error. 

The testimony discloses that it was storming when the 
hogs were started from Minden on the morning of the 16th 
of November, that they arrived in Hastings between ten 
or eleven o'clock the same forenoon, and at that time the 
snow was drifting, and the wind blowing a gale. The 
train was immediately made up to go east, when advices 
were received that the road was blockaded, and the train 
was abandoned. The hogs remained in the cars until the 
next forenoon, when they were unloaded, and it was dis- 
covered that eleven were dead and six crippled. 

The principal question presented by the record for our 
consideration is, Did the defendant's em |)loyes exercise such 
diligence as to relieve the company from liability for dam- 
ages as a common carrier? There is no conflict in tlie tes- 
timony as to the character and severity of the storm, or as 
to the efforts that were made to protect the hogs from the 
effects of the storm. J. K. Painter, who was agent of the 
company at Hastings, testified that the train carrying 
plaintiffs hogs arrived at Hastings during a blizzard, the 
wind was blowing a gale and the snow was falling ; that 
the train was made up to go east, and waited for advices 
as to how the storm was along the road. The train was 
then reorganized with a less numl)er of cars, when orders 
were received to wait until afternoon. Then they got ad- 
vices not to start a train out that day. The train was aban- 



200 



NEBRASKA REPORTS. [Vol. 30 



Black V. C, B. & Q. R. Co. 



doned on account of the severity of the storm, the road 
east of Hastings being blockaded. The yards in Hastings 
at that time were impassable on account of the depth of 
the snow, and the high wind. Drifts had formed that 
were difficult for a man to pass through, some as tall as an 
ordinary sized man. After the train was abandoned, an ef- 
fort was made to get the cars to the stock yards. The yards 
being full of snow, an attempt was then made to put grain 
doors up to the sides of the cars ; that was a failure on 
account of the wind. The next morning the yards were 
shoveled out, and as soon as possible the cars were taken 
to the yards and the hogs unloaded, fed, and given bed- 
ding. They were kept until the morning of the 18th, 
when they were forwarded on the first train leaving for 
the east, after the storm. On the evening of the 16th the 
stock yards were filled with snow, the fence on the north 
side was covered up, and the wind was blowing very hard. 
On the morning of the 17th the yards were in such condi- 
tion that the switch engine could not reach the cars until 
they were shoveled out. The witness testified further, on 
cross-examination, that it began snowing early on the 
morning of the 16th and continued into the night ; that it 
was very cold ; that an eflbrt was made to get the hogs 
to the stock yards on the 16th; that the switch engine 
stuck in the yards and remained out all night ; that the 
storm was the most severe the witness had seen during 
four years he had been with the road. 

G. H. Hartsajugh testified that at noon of the 16th 
there was a *' blizzard," and that it continued during the 
afternoon and evening. It was a very severe storm, snow- 
ing very hard, wind from the north and cold towards even- 
ing; that he had seen one or two storms in tiie course of a 
number of years, just as bad, but had never seen a worse 
one. It was growing worse all the time. 

Albert Gains testified that his business was checking 
cars and taking care of the stock yards at Hastings; that 



Vou 30] SEPTEMBER TERM, 1890. 201 



Black r. C, B. & Q. R. Co. 



he remembers the cars containing plaintiff's hogs; that 
wlien they arrived it was snowing, blowing, and getting 
colder; that they were put into a train made up to go east^ 
and it was abandoned on account of the severity of the storm. 
Nothing was done with the cars containing the hogs that 
afternoon, for the reason that the snow had drifted too bad. 
By three o'clock in the afternoon it had drift;ed under- 
neath the cars solid. He tried to put up grain doors on 
the north side to keep the wind off, but the wind blew so 
hard that be failed in the attempt. He says, '^ the one I 
had the wind blew it away from me, then I helped another 
man with his; we got about ten feet further and had to 
stop; there were four of us trying with the doors." 
The weather was cold and getting colder. The cars quit 
moving through the yards and switches about noon of the 
16th. 

John Glennan testified that it was snowing and blowing 
hard on the 16th ; that the hogs were unloaded on the 
forenoon of the 17th, and were watered and fed. Before 
unloading it was necessary to g^ them out of the drift. 
Some of the cars were nearly covered, and the stock yards 
were pretty nearly covered up. 

G. M. Rogers testified that the storm was severe and 
cold ; that he tried to carry grain doors and tack them on 
north side of the cars, but could not possibly do so as the 
wind was so strong ; that at noon the snow in the yards 
was deep and getting deeper. 

George Jacobs testified that on the 16th it was impos- 
sible to see a house an either side of the street on account 
of the snow and wind. Witness states that he saw four 
persons trying to carry the grain doors to the cars, and 
that they got a few feet with them but could not get any 
further.* 

W. G. Melson, called as a witness for the plaintiff, testi- 
fied that in cold, stormy weather, hogs once put in motion 
in cars, at the first delay will begin to "pile up" away from 



202 NEBRASKA REPORTS. [Vol. 30 



Black V. C. B. A Q. R. Oo. 



the doors, and are likely to smother those underneath ; 
that the proper thing to do when they cannot be unloaded 
is to put a man there to keep tliem from piling up; that 
while the cars are in motion there is no such danger. The 
witness was then asked this question upon cross-examina- 
tion: "You would probably* been standing there frozen 
to death covered with snow in the morning, with a stick in 
your hands?'' The witness answered, " I guess so." 

The plaintiff Jeppa Jorgenson testified that the hogs 
were in good condition when delivered to the defendant. 
The remainder of his testimony was the same as the wit- 
ness Melson's, except that he did not think he would have 
been frozen to death had he remained with the hogs and 
given them the proper care. 

That the storm which overtook the train containing 
plaintiff's hogs was unprecedented cannot be doubted. On 
account of the drifting snow it was impossible for the 
train to leave Hastings for Omaha on the afternoon of 
November 16; that the snow had so drifted as to block- 
ade the cars in the yards at Hastings, and filled the stock 
l>ens with snow so that the hogs could not he unloaded. 
All reasonable efforts were put forth by the employes of 
the defendant to nail grain doocs on the north side of the 
cars containing the hogs, for the purpose of protecting 
them from the storm. 

It is contended by the plaintiffs that some one should 
have remained with the hogs and prevented them fi*om 
smothering each other. It was for the jury to say whether 
in view of the severity of the storm such care should have 
been given. Afler a careful reading of the testimony we 
are satisfied that there was suflBcient evidence to warrant 
the jury in finding that the defendant was not guilty of 
negligence in that respect. • 

Objections are made to certain instructions given by the 
court on its own motion, and to the refusal to give the in- 
structions requested by the plaintiffs. 




Vol. 30] SEPTEMBER TERM, 1890. 203 



Black ▼. C, B. & Q. R. Co. 



The fourth, fifth, and sixth of the instructions given are 
as follows : 

"Fourth — If you find the loss of the sixteen hogs and 
damage was . occasioned by the snow storm and said cold 
weather and the elements, the defendant using the ordinary 
care in protecting and caring for said hogs and shipped 
them as soon as practicable, under all circumstances you 
will find for the defendant. 

"Fifth — If you find the defendant did not use ordinary 
care in protecting, caring for, and transporting the said 
hogs, under the circumstances you will find for the plaint- 
iffs, assessing their damages at such sum as you think the 
evidence warrants, not exceeding the amount sued for in 
the petition. 

"Sixth — Unless you find from the evidence the loss and 
damage complained of was occasioned by the act of God, 
or, in other words, the severe storm and cold, which could 
not have been prevented by use of ordinary care, under the 
circumstances you will find for the plaintiffs, bearing in 
mind the burden is upon the defendant to show the loss 
was occasioned by the storm and cold which ordinary care 
could not prevent, and it would require a greater degree 
of care; or, in other words, greater care and caution in car- 
ing for the hogs would be required in a snow storm than 
in ordinary fair weather." 

The plaintiffs requested the following instructions, which 
were denied : 

"First — In transporting the hogs in question the de- 
fendant, being a common carrier, was an insurer of the safe 
delivery of the property and was bound to use all care and 
precaution for their safety while in transit, so far as human 
vigilance and foresight and care would go. The defendant 
would be absolutely liable to plaintiffs for all injuries sus- 
tained by the hogs in question while in their possession 
from the time they were received at Minden, Nebraska, 
until they were delivered to the consignee at Omaha, Ne- 



204 NEBRASKA REPORTS. [Vol. 30 



Black T. C, B. £ Q. B. Co. 



I 

,i V 



braska, except only for such injuries as may have been 
'unavoidable' from the essential nature of the property 
itself, the nature and propensity of the hogs, and except 
further such injuries as may have resulted from the act of 
God or the public enemy, 

''Second — To excuse the defendant from liability on the 
ground that the injury to the hogs in question was caused 
by the act of God, the burden of j)roof is upon the defend- 
ant to prove to you by a preponderance of evidence that 
the act of God was the immediate cause of the injury. By 
the term 'act of God' is meant superhuman, or something 
beyond the power of man to foresee or guard against/' 

"Third — If you l)elieve from the evidence that the loss 
of the hogs in question was caused by the 'piling up' and 
thus suflFocating or being otherwise injured while the cars 
were standing in the yards at Hastings, Nebraska, and if 
you further believe from the evidence that such loss could 
have been prevented by the defendant unloading them into 
the stock pens, and while in such pens given them good 
bedding, care, and personal attention, or if you believe from 
the evidence that the defendant could have prevented the 
hogs in question from piling up in the cars while standing 
in the yards at Hastings, by vigilant watching, and thus 
prevented the loss, and that the defendant negligently failed 
to do cither, then you will find for the plaintiffs, for under 
such circumstances the act of God was not the cause of the 
loss, in such sense as to exempt the defendant from the 
liability." 

In passing upon the rulings of the district court on the 
giving and refusing of these instructions, we must neces- 
sarily determine the extent of the defendant's liability as a 
common carrier. The rule seems to be that a carrier of 
live stock is an insurer of the safety of the property while 
it is in his custody, subject to certain well defined excep- 
tions. He is not liable for injuries resulting unavoidably 
from the nature and propensities of the property, nor for 



Vol. 30] SEPTEMBER TERM, 1890. 203 



Black T. C, B. & Q. R. Co. 



damages resulting from the act of God, or the public en- 
emy. The evidence brings this case within the exception 
to the general rule. An unprecedented snow storm of such 
violence as to obstruct the moving of trains falls within 
the term act of God. {Ballentine v. K 31. R. Co., 40 Mo., 
491; PruiU v. H. & St. J. R. Co,, 62 Id., 527.) While 
carriers are not insurers against loss occasioned by the act 
of God, they cannot, on the happening of such an event, 
abandon the property. What degree of care and diligence 
at such a time is required in caring for and protecting the 
property from injury and loss? The plaintiffs insist that 
the carrier is required to bestow the highest degree of care, 
and if he fails to exercise all possible diligence, and injury 
occurs by reason thereof, he is liable. 

In GiUegpie v. St. X., K. C. & N. R. Co., 6 Mo. App., 
564, the court, in considering the degree of diligence re- 
quired of a common carrier as against an act of God, say : 
*'By these instructions the difference between the re- 
sponsibility of the carrier as against the act of God, and as 
against these perils which the carrier is answerable for, is 
ignored. The carrier is held by the instructions to the 
highest degree of foresight and care as against an act of 
God. But the law imposes on him no such liabilty. It 
has been truly said there is hardly any act of God, in a 
l^al sense, which an exhaustive circumspection might not 
anticipate, and supposable diligence not avert the conse- 
quence of. So that the doctrine would end in making the 
carrier responsible for acts of God, when by law the pass- 
enger and not the carrier assumed the risk. It has been 
said that to make the rule a working rule, and give to the 
carrier the practical benefit of the exemption which the 
law allows him, he must be held, in preventing or averting 
the effect of the act of God, only to such foresight and 
care as an ordinarily prudent person, or company in the 
same business^ would use under all the circumstances of the 



206 NEBRASKA REPORTS. [\^o^ 30 



Black T. C, B. & Q. R. Co. 



We have carefully examined the numerous authorities 
bearing upon the question, and the rule established by the 
adjudicated cases is that the carrier is required to exercise 
ordinary or reasonable care and diligence to secure the 
property committed to his custody from loss or damage in 
order to protect himself from injury arising from the act 
of God. If his negligence contributes to the injury, he 
cannot claim exemption from liability. {Morrison v. Dams, 
20 Pa. St., 171 ; Railroad v. Reeves, 10 Wall., 176 ; Nash- 
ville, etc., R, R. V. David, 6 Heisk., 261 ; Denny v. N. Y. 
Gent R. Co., 13 Gray, 481 ; SweeUand v. R. Co., 102 
Mass., 276 ; R. Co. v. Anderson, 6 Am. & Eug. R. Cases, 
407; Gleeson v. V. M. R. Co., 28 Id., 202; Ballmtme r. 
N. 31. R. Co., 40 Mo., 491 ; PruUt v. H. &. St. J. R. Co., 
62 Id., 527; Hutch., Carr., sees. 201, 202.) 

In the instructions given tiie rule is stated that if the 
defendant did not use ordinary care in protecting, caring 
for, and transporting the hogs, it was liable. We were at 
first inclined to believe that the instructions were faulty, 
on account of the using of the word ordinary; but afler fur- 
ther consideration we are satisfied that there is no substantial 
diflTerence between ordinary care and reasonable care. It 
seems that the words are interchangeably used. {Kendall 
V. Brown, 74 111., 232; Fallon v. Gty of Boston, 3 Allen, 
38; Nealv. Oilldl et al, 23 Conn., 43lJ.) 

Under the testimony, there was but one controverted 
fact to submit to the jury, and Ihat was whether the de- 
fendant was guilty of negligence. The instructions taken 
as a whole, stated the law applicable to the case, and fairly 
submitted to the jury the question of negligence. The 
only conclusion that could have been drawn from the testi- 
mony was that the storm was extraordinary and unprece- 
dented for that season of the year. While the charge of 
the court did not state, in so many words, that the act of 
God must have been the immediate or proximate cause of 
the loss, in order to excuse the company from liability, yet 




Vol. 30] SEPTEMBER TERM, 1890. 207 

BUck y. C.p B. & Q. R. Go. 

that was the plain purport of the language used in the 
fifth paragraph. The jury could not fail to understand 
from that instruction that if the defendant did not use 
ordinary care, the negligence of the defendant was the proxi- 
mate cause of the loss, and that the plaintiffs were entitled 
to damages. 

The plaintiffs in error further contend that '^ there was no 
evidence to justify the submission to the jury by instruc- 
tions the question as to whether the loss was occasioned by 
the act of God." True the loss occurred by the hogs " piling 
up," and thereby smothering those underneath, yet the 
propensity to do this was only while the cars were stand- 
ing. If it were not possible to unload the hogs on account 
of the drifting snow, as the testimony tends to show, and 
if the defendant's employes omitted nothing that a prudent 
person or carrier would have done under the circumstances 
to avert the loss, then the loss must be attributed to the 
storm. 

By the first instruction requested by the plaintiffs the 
defendant was held responsible if it failed ^'to use all 
care and precaution for the safety of the hogs while in 
transit, so far as human vigilance, foresight, and care 
would go." This was a higher degree of diligence than 
the law demanded of the defendant. The second request 
was substantially covered by the sixth instruction given. 
By it the jury were told that the burden was upon the 
defendant to establish that the loss was occasioned by the 
storm, and it also stated, in language easily understood, that 
the severe storm and cold was an occurrence known as the 
act of God. 

The third request held the defendant liable, if, by vig- 
ilant watciiing, the hogs could have been prevented from 
smothering in the cars. It was not to be expected that 
any one would remain in such a storm and care for the 
stock. 

The plaintiffs allege error on the part of the court in 



208 



NEBRASKA^REPORTS. [Vol. 30 



Black y. C, B. & Q. R. Co. 



making certain remarks in the presence of the jury. The 
judge, in ruling upon an objection made to the testimony, 
stated: "I shall instruct the juiy that the defendant, to 
avoid liability, must show that it used all reasonable means 
to care for this stock/^ Subsequently, the jury were so 
instructed. We do not see how the language of the court 
could have been prejudicial to the plaintiffs. 

The plaintiff, Jeppa Jorgenson, was asked this question : 
"You may state, from your experience in handling hogs 
and shipping them, if there is any danger, while a car is 
standing still, of their piling up." Counsel for the de- 
fendant objected, as improper, incompetent, and no foun- 
dation laid. The attorney for the plaintiffs then stated 
what he considered proper testimony, and the court, in 
reply, said: "I will allow the gentleman to prove any- 
thing he wants. I will instruct the jury what the law is 
when we get to that." The objection was sustained and 
exceptions were taken to the ruling, and to the language of 
judge. By sustaining the defendant's objections to the suc- 
ceeding questions propounded to this witness, and to the 
plaintiffs' offer of testimony subsequently made, the jury 
could not have understood that the court intended to per- 
mit immaterial or improper testimony to be received, if 
offered by the plaintiffs. Better, it would have been, had 
the remarks not been made, yet we have no doubt that 
they did not influence the verdict. 

The remaining assignment of error consists in sustain- 
ing the defendant's objection to this question asked by 
plaintiffs of the witness Melson : "State whether, from 
your experience, fat hogs, when in cars, would freeze to 
death when the thermometer was at zero or a few degrees 
above." The error, if any, in sustaining the objection 
was subsequently cured by allowing plaintiffs to fully 
prove the fact sought to be elicited by the question, which 
testimony was not controverted by the defendant. 



Vol. 30] SEPTEMBER TERM, 1890. 209 



DaviBV. Giddinga. 



Tliere is no reversible error in the record, and the judg- 
ment is 



Affikmed. 



The other judges concur. 



Edward F. Davis v. H. W. Giddings et al. 

[Filed Septembsb 16, 1890.] 

U Conditional Sale. The eyidenoe •xamined, and held, not to 
establish a coDditional sale. 

2. The instructions requested by the defendant, not being based 
upon the testimony, were properly refused. 

Error to the district court for Gage county. Tried 
below before Broady, J. 

R. W. Sabhif for plaintiff in error, cited: MoCormick v. 
Stevenson, 13 Neb., 72 ; Romberg v, H^ighes, 18 Id., 581 ; 
Rawmn Mfg. Co. v. Richards, 35 N.W. Rep. [Wis.], 40; 
Thomas v. Richards^ Id., 42; Hoagland v. Van EUen, 
22 Neb., 681. 

R. 8, Bibb, contra. 

Norval, J. 

This was an action of replevin, brought by the defend- 
ants in error to recover the possession of a bay mare which 
the plaintiff in error, as sheriff of Grage county had taken 
under a writ of attachment issued out of the county court 
of said county, in an action wherein one I. L. Curley was 
plaintiff and A. N. Wilcox was defendant. The case was 
tried before a jury, who found the right of property and 
right of possession to be in the plaintiffs below. 
14 



210 NEBRASKA REPORTS. [Vol. 30 



DATigy. Giddingi. 



The first assignment of error is that the verdict is not 
sustained by tlie evidence. It is claimed by the plaintiff 
in error that in May, 1886, the mare was sold by one of 
the defendants in error, H. W. Giddings, to Wilcox upon 
certain conditions, and that neither the judgment creditor, 
Curley, nor the sheriff, at the time the mare was attached, 
had any notice of the conditions of such sale. On the part 
of the defendants in error it is urged that the mare was 
ovned by them, and that Wilcox never bought or owned 
her. The only testimony bearing upon the question of 
ownership was given by H. W. Giddings. He testified 
that the mare was the property of the defendants in error. 
His explanation of how the mare came into the possession 
of Wilcox is as follows: 

"About the 20th of May, 1886, Wilcox came to me and 
wanted to buy a team ; I could not spare a team ; I told 
him if he could get along a week or teh days I could spare 
one critter; in a few days he came back, and he had lost 
one horse and he said he wanted one horse badly to work 
oil his mill that he ground mortar for brick. I told him 
I had one, if it suitetl, I could spare after the 1st of May, 
but I did not know whether it would suit him ; it was rather 
an inferior critter about some business, work well some 
places, and some it would not; I told him I would let him 
try it and if it suited him he might have it for so much; 
he appointed a day I should bring it over, which I did; 
we hitched it up and put it on the sweep and I told him I 
thougiit it would work all right; I think it was about nine 
o'clock we hitched on, and I staid until about eleven; he 
seemed to be satisfied it was all right, and in case it was 
all right he said he would give mc $90 for it and give 
E. C. Saulsbury for security for sixty days; he rather pay 
the money, he had it earned but could not get it then, 
and if I would get along with that he would take it Well, 
about the time we got ready to leave, Saulsbury came in a 
buggy — this was on the 10th day of June, but we had 



r 



Vol, 30] SEPTEMBER TERM, 1890. 211 



DavIs y. Glddiaga. 



talked about the way it should be paid in case the critter 
suited him, before that several days. Saulshury was called 
to sign the note, and he had quite a long talk with this 
gentleman, and he refused to sign it; the man saict he didn't 
know what he was going to do, he wanted a horse and I 
wanted my pay, and he proposed to give me a mortgage on 
the horse for that amount and wait on him sixty days; I 
told him I could not do that, that he owed me then consid- 
erable money and I wanted it, and if I couldn't get any 
money on the horse I proposed to keep the horse; he said 
he didn't know«but he might pay me some the next week, 
I think this was Tuesday or Wednesday, and he said by 
Saturday I will let you know what I can do; I leil with 
this understanding if he paid me what he owed me and 
made enough more to make fifty dollars — he finally agreed 
to pay me $25 on this mare and give me a note for the bal- 
ance back. 

Q. What was he to do in the meantime? 

A. In case he did do that he was to pay me twenty-five 
cents a day for the use of this horse, and if he did I was 
not to receive anything from this time until he did that 
business. 

Q. State whether or not he ever paid any money. 

A. On this horse? No, sir. 

Q. Did he ever give that note and mortgage? 

A. No, sir. 

Cross-examination : 
Q. You and Wilcox agreed on the price? 
A. Yes, we didn't disagree on anything. 
Q. Wiiat was the price? 
A. Ninety dollars. 

Q. Under that agreement you left the horse in his pos- 
session ? 

A. That is the price named. 



212 



NEBRASKA REPORTS. [Vol. 30 



Davis V. Giddings. 



Q. Under the agreement that he should give you a^note 
in the future, you left the horse with him? 

A. No; the agreement was he was to pay me $90; 
twenty-fit'c dollars in cash and tiie balance a note to make 
it up to 590. 

Q. You said that he was to give you a note with Sauls- 
bury on it? 

A. He was to give me $90 for the mare. 

Q. He was to give you a note of $90 on Saulsbury? 

A. That was the first contract. 

Q. And under that you left the horse iij his possession ? 

A. No, sir. 

Q. Do you mean to say Saulsbury was there the day 
you took the horse over? 

A. Yes, he was there and failed to sign the note. 

Q. Then you made anotlier agreement with him? 

A. I was going to take the mare home. 

Q. Then you left it there under the agreement that he 
was to pay yon $25 and give a mortgage on the mare for 
the difference? 

A. Here is what I done. When he failed to give that 
note with the man as security, I asked if he could pay some 
money, and I would sell the mare on time if he paid 
enough money, and he said he couldn't do it, lie hadn't 
enough money. I said, " Won't Saulsbury get the money 
and let you have $24?" He says, "I don't know just 
how I stand with Saulsbury ; we are in rather a muss about 
brick and I don't know what damage he is going to call 
on me for;" he says, "I will tell you what I will do, I 
will pay you what I can.'^ Wliat he would do he said he 
would do by the first of July. I says, " If you can pay 
me enough money now so I am sure of the balance you 
and I can trade yet." He asked what I would do. I says, 
"Pay what you owe me now, about $18 or $19, and enough 
to make it $50, or $25 on the mare, and then I will take 
a note and your brother-in-law for security." 



r 



s 



Vol. 30] SEPTEMBER TERM, 1890. 213 



Davli y. Giddlngi. 



Q. Was there any time fixed? 

A. He was to do th^t by the first day of July. 

Q. And if he didn't it was to be your mare? 

A. If he didn't do it^ it was to be my marc and he was 
to pay for the use of it. 

* Q. Well, under that agreement you left the mare in his 
possession? 

A. I left the mare in his possession. 

Q. As I understand, if he came up to the agreement it 
was a trade, and if he did not it was not a trade? 

A. If he filled that agreement it was a trade, if he 
didn't it was not a trade, the horse was mine; that was my 
understanding and I know it was his. 

The testimony also shows that Wilcox absconded about 
the 23d or 24th day of June, leaving the mare in contro- 
versy on the place where he had resided, and that she was 
immediately attached to pay a claim against Wilcox. The 
testimony falls very far short of establishing a conditional 
sale. There was but an offer to sell, and Wilcox had until 
July 1 to comply with the terms of the proposition by 
paying $25 in cash and giving a secured note for the bal- 
ance of the agreed price. Wilcox having never accepted 
the offer, no title to the mare ever passed to him. She was 
therefore not subject to attachment for tlic debts of Wilcox. 

Complaint is made of the refusal of the court to give 
certain instructions requested by the plaintiff in error. The 
first request was as follows : 

"The court instructs the jury that if they believe from 
the evidence that the plaintiffs made a coiulitional sale of 
said horse in controversy to the attaclimeiit deotor, A. N. 
Wilcox — that is, in the fore part of June, 1886, made a con- 
tract of sale to said Wilcox of said horse upon condition 
that he (Wilcox) would on the first diiy of July following 
pay plaintiffs twenty-five dollars and give plaintiffs his 
secured note for the difference between that and ninety 



214 



NEBRASKA REPORTS. [Vol. oO 



Davis T. Glddiugs. 



dollars in payment of said horse, but with the further 
agreement between them that the ownership of the horse 
should remain in plaintiffs until said Wilcox should pay 
said money and give said note, and in case he should do so 
by the first of July, as above stated, the horse should be his 
property, but if he did not, to pay twenty-five cents a day 
for the use of her while he had her, and that thereupon th6 
plaintiffs delivered the possession of said horse under said 
agreement to said Wilcox — the court instructs you that if 
you find these facts to exist from the evidence, that this 
was a conditional sale of said horse from plaintiffs to said 
Wilcox ; and the court further instructs you that if you 
find from the evidence said conditional sale to exist as 
above set forth, and find from the evidence that the de- 
fendant, as sheriff, levied the attachment in evidence on 
said horse on the 28th day of June, 1885, while the said 
property was still in the possession of said Wilcox under 
said agreement, without notice on the part of the sheriff 
or I. L. Curley, the attachment creditor, of any claim of 
ownership to the horse by plaintiffs, then you should bring 
in a verdict for the defendant." 

It is apparent that it would have been error to have 
given this request. It, in effect, held that the evideuce es- 
tablished a conditional sale and that Wilcox had posscijsion 
of the mare under such an agreement. As has alreiuiy 
been stated no such an inference could properly be drawn 
from the testimony. 

The plaintiff in error's second request was an instruction 
to find for tfie defendant. Under the testimony the de- 
fendant was not entitled to have the jury so instructed. 
Instead of the evidence being all on the side of the defend- 
ant, it fully sustained the position of the plaintiffs below. 

The third request of the plaintiff in error, which was 
denied, was in language as follows: 

"The court instructs the jury that actions must be pros- 
ecuted in the name of the parties in interest, and the evi- 



w 



Vol. 30] SEPTEMBER TERM, 1890. 



215 



C„ B. & Q. R. Co. V. Krlskl. 



(lence in this case having disclosed the fact that the phiint- 
iflF Harvey Giddings, at the commencement of this suit, had 
no interest in the property in controversy more than being 
the husband of the real party in interest, the court in- 
structs you the plaintiffs were improperly joined, and must 
fail. You are therefore directed to bring in a verdict for 
the defendant.^^ 

There is in the bill of exceptions testimony tending to 
show that the mare was owned jointly by both of tiie plaint- 
iffs, and there is likewise testimony from which the infer- 
ence could be drawn that Mrs. Giddings was the sole owner. 
In view of this conflict in the testimony the court had no 
right to assume in an instruction that one of the plaintiffs, 
Harvey Giddings, had no interest iu the property. It was 
for the jury to say, under all the testimony, who owned the 
property at the commencement of the action. 

Finally, it is urged that the court erred in refusing to 
submit special findings to the jury. It nowhere appears 
in the record before us that the defendant made a request 
for special findings. This point, therefore, cannot be con- 
sidered. The judgment is 

Affirmed. 



The other judges concur. 



Chicago, B. & Q. R. Co. v. Paul Kriski. 



80 2I5| 
48 137 



[Filed September 17, 1H90.] 



Malicious Prosecution: Pkobable Cause. In an action of 
P. K. against the C, B. & Q. K. Co. for malicious prosecution 
in the arrest and trial of the plaint ilT for the larceny of railroad 
ties, on the oath and eTidence of B. F. P., the agent of defend- 
ant, held, that if, from the evidence, the agent had reasonable 
ground for suspicion, supported by circumstauces safficiently 
strong in themselves to warrant a cautious man in the belief 



216 NEBRASKA REPORTS. . [Vol. 30 



P\ 




C, B. A Q. R. Co. V. KrUikl. 



that the accased was guilty of the oflfense, and thnt the agent 
believed that he was gniltj, then there was probable cause Tor 
the prosecution of the accused, and therefore malice was not to 
be presumed on the part of defendant or its agent. 

: : Nkw Trial. The court below having so in- 



structed the jury upon the trial, and the evidence clearly war- 
ranting the instructions given, and the jury having returned » 
verdict for the plnintiiT, held^ error in overruling the defcmlant^s 
motion for a new trial. 

Error to the district court for Platte county. Tried 
below before Post, J. 

/. jB. Strode, Marqueit & Detoeese, and M. Whitmoyerj for 
plaintiff in error, cited: Dvnbier v. Bay, 12 Neb., b9B; 
Meyer v. R. Co. 2 Id., 342 ; Tm^er v. O'Brien, 5 Id., 543; 
Cooley, Torts, 210, 21 1,213; Rossv. Langwor(hy,13 NeK, 
495; 1 Addison, Torts [6th Ed.], 225 and cases cited. 

George G. Bowman, and Sullivan & Reedei', contra, cited : 
Johnson v. Miller, 29 N. W. Rep. [la,], 743 ; Rons v. 
Langworthyy 13 Neb., 492; Chapman v, Dunn, 56 Mich., 
31 ; A. & N. R. Co. V. Bailey, 11 Neb., 333; Mol/er v. 
Moller, 22 N. E. Rep. [N. Y.], 169. 

Cobb, Ch. J. 

This action is brought on error to the district court of 
Platte county. 

The plaintiff alleged in the court below that the de- 
fendant falsely and maliciously, and without reasonable or 
probable canse therefor, caused the plaintiff to be chargetl 
before a justice of the peace of Platte county, with iiaving 
on the 20th day of May, 1887, unlawfully and feloniously 
stolen and carried away twenty-five railroad ties, of the 
value of $5, the property of defendant ; that said charge 
was raluced to writing and sworn to by Benjamin Piiineo, 
an employe of defendant who at the time was in the service 
of defendant, and in making said charge was acting within 



Vol. 30] SEPTEMBER TERM, 1890. 217 



C, B. <b Q. R. Co. V. Krifcki. 



the scope of his employment and authority; that the 
defendant, through said employe, on the 23d day of May, 
1887, caused said justice to make out a warrant for the 
apprehension of plaintiff, and falsely and maliciously, and 
without reasonable and probable cause therefor, caused 
plaintiff to be arrested on said charge, and to be impris- 
oned against bis will in the common jail of said county; 
that a trial was had and that plaintiff in this action was ac- 
quitted and discharged; that he was innocent of the charge 
so made against him; that by reason of the premises, 
plaintiff was greatly injured in his credit and reputation, 
and brought into public soindal, infamy, and disgrace, and 
has suffered great anxiety and pain of body and mind, and 
has been damaged in the sum of $1,900, for which said 
sum he asks judgment. 

Defendant in its answer in the lower court alleged that 
on or about the 20th day of May, 1887, railroad ties be- 
longing to it, of the value of $6, had been stolen, taken, 
and carried away from it, in said Platte county; that two 
persons, believed to be Peter Kriski and Paul Kriski, 
father and son, the latter the plaintiff in this action, were 
seen at said date loading, taking, and carrying away from 
defendant's track in said county said railroad ties, and 
hauling and taking them to the residence of the said Peter 
Kriski ; that Benjamin Pinneo, having good and probable 
cause to suspect and believe that said Peter and Paul 
Kriski committed said offense, made complaint before J. 
C. Cowdry, a justice of the peace in and for said county, 
charging them jointly with stealing said ties, upon which 
charge said Peter and Paul were arrested as alleged, held 
in custody for trial, and on the 25th day of May, 1887, 
tried, and said Peter was found guilty by a jury, and Paul 
was found not guilty; that the said complaint was made 
without malice and upon reasonable and probable can-e for 
believing that the plaintiff, Paul Kriski, was guilty as 
charged. 



218 NEBRASKA REPORTS. [Vol. 3( 



C, B. & Q. R. Co. V. Kriski. 



The plaintiff replied denying each and every allegatior 
of new matter contained therein. 

There was a trial to a jury March 29, 1889, with a ver- 
dict for the plaintiff for J250. 

The defendant's motion for a new trial was overruled^ 
and judgment entered upon the verdict, and upon which 
the plaintiff in error assigns errors for rehearing: 

" 1. Tlie court erred in admittin;^ the testimony offered 
by the defendant herein, which was objected to by the 
plaintiff herein, as shown by the record and the rulings oi 
the court excepted to at the time. 

" 2d. The court erred in rejecting testimony offered by 
the plaintiff herein, which error the plaintiff herein ex- 
cepted to at the time. 

" 3d. For errors of law occurring at the trial and duly 
excepted to by the plaintiff herein. 

*• 4th. The court erred in overruling the motion of the 
j)laintiff herein to set aside the verdict of the jury and for 
a new trial. 

"5tii. The court erred in giving the 9th paragraph of 
its instructions to the jury. 

"6th. The court erred in giving the 10th paragniph of 
its instructions to the jury, as not applicable to the issues, 
and misleading." 

On the trial the plaintiff called B. F. Pinneo who testi- 
fied that he resided in Lincoln, Nebraska, in May, 1887, 
and that he then was, and still is, in the eriiploy of defend- 
ant ; that it was in the line of his duty to protect the com- 
pany from thefts and to prosecute thieves and like characters; 
that he had been in the employ of the company since June, 
1881, and that he made the complaint against the defend- 
ant in error before J. C. Cowdry, justice of the peace of 
Platte county, in May, 1887. This witness was after- 
wards recalled by defendants, in the district court, and tes- 
tified that he was the same who signed the complaint 
against Peter and Paul Kriski, charging them with steal- 



Vol. 30] SEPTEMBER TERM, 1890. 



219 



C, B. & Q. R. Co. V. Krlskl. 



iDg railroad ties from the defendant; that at the time 
stated he received a letter from the company's superintend- 
ent, McConniff, of the B. & M. division, written by the 
section foreman, David McDnffy, giving information of 
the loss of ties, with directions for witness to pay attention 
to the business. Witness went with the letter to Cohmi- 
bus, and there saw McDufTy, and his son John, and John 
Mitoek, who informed witness of the stealing of railroad 
ties from the line of the road ; that they had seen two 
persons loading ties on a wagon, start and drive on north 
from the line of the road; that John McDuffy had been 
sent to observe where and by whom the ties were taken, 
and had followed the parties up to the house of Peter 
and Paul Kriski, who were in the yard unhitching their 
team from the wagon on which the ties were then loaded. 
On hearing this circumstantial account of the apparent 
theft of the ties, the witness procured Geo. Harmon, a 
deputy sheriflF, to accompany him to Peter Kriski's house; 
that coming within a short distance of the place they saw 
a son of Peter Kriski herding cattle, who told them, in 
answer to inquiries, that his father and older brother had 
hauled some railroad ties, and pointed in the direction of 
both the lines of the B. & M. and U. P. roads. The wit- 
ness asked where his elder brother was, and the boy said 
he was up at the house, about the horses. Witness and 
the deputy sheriff- then went to where Paul, the plaintiff, 
was engnged with the horses, near the house, and asked 
him about the ties; he said "they had got some ties and 
flood- wood about the bridge," pointing the same way, to 
the lines of both roads mentioned ; that the boy, Paul, told 
conflicting stories as to where the ties came from ; they 
then went to the house and had quite a talk with Peter 
Kriski, who said he got the ties on the railroad ; there 
were from seven to fifteen ties on the wagon, and ties 
were scattered all around the yard. Witness asked Peter 
Kriski if he wanted to buy the ties, and he replied with 



220 NEBRASKA REPORTS. [Vol. 30 



a, a A Q. R. Oo. T. KrUkl. 



««' 



the inquiry what was wanted for them, and was told 
thirty cents each. Kriski said they were old and rotten and 
not worth that ; there was no one present except deputy 
sheriff, Peter Kriski, and witness. 

It appears that at this time neither the witness nor the 
deputy sheriff could converse in German or Polish, nor 
could Kriski speak or understand English but imperfectly ; 
that Pinneo and Harmon returned to the town of Colum- 
bus and, procuring an interpreter, went again to Kriski's 
and told him, through the interpreter, that he would have 
to pay thirty cents each for the ties, which he refused. 
After returning to town and procuring a warrant the dep- 
uty sheriff arrested Peter Kriski and his son Paul and 
brought them before J. C. Cowdry, a justice of the peace. 
Witness had no other conversation or intercourse with the 
parties arrested than that stated, and had never before seen 
or heard of either one of them ; that he had no ill feeling 
towards either, and his only motive in causing their arrest 
was the same as in all other cases of punishment for crime, 
and was a matter of duty only with him. 

By counsel for defendant : 

Q. State whether you believed they were the parties who 
had taken the railroad ties. 

A. I did fully believe it, or would not have made the 
complaint. I was acting in good faith in the prosecution 
of the complaint. 

Returning to the evidence of the plaintiff, Charles 
Schroeder testified that he knew Benjamin Pinneo, by sight, 
and knew Peter Kriski, knew of his arrest for stealing 
railroad ties ; that he speaks the German tongue as also 
does witness ; that witness interpreted between Pinneo and 
Kriski shortly before the latter was arrested and tried. 

By counsel for plaintiff: 

Q. Was there anything said in that conversation as to 
where Kriski got the ties found at his place? 

A. (Over the objections of defendant.) Yes, sir; Kriski 



Vol. 30] SEPTEMBER TERM, 1890. 



221 



a, B. & Q. R. Co. Y. Kriski. 



stated that he had not stolen them, and that they had not 
been stolen from the B. & M. railroad at all ; that he had 
received them from the U. P. Co.'s section boss ; that a 
young fellow had been working under the boss and brought 
them there ; that his name was Peters, and that one Barn- 
ish had taken the ties from the river. 

John Herbert, a witness for the plaintiff, testified that 
he lived at Benton in the year 1887 ; that he was em- 
ployed as section foreman on the Union Pacific railroad ; 
that L. Peters worked for the company, under him, at sev- 
eral different times, and nearly every season part of the 
time; that he lived at different places while working under 
witness, and that for the last two years with his father-in- 
law, Peter Kriski, prior to May, 1887, and for a short time 
on the Bowman farm ; that Kriski's was two miles west 
and a little north from Benton ; remembers that in May, 
1887, it was alleged that railroad ties were stolen from the 
B. & M. railroad. Witness cannot say if Petera worked 
with him just at that time, but he did shortly afterwards, 
and during the time that he worked and lived at his father- 
in-law's, Kriski's, witness let him have some ties from time 
to time; that witness saw Pinneo, at Benton, a year and a 
half ago when he was down to see us for a witness, claim- 
ing that ties had been stolen from the B. & M. road. It 
was the case before J. C. Cowdry at Columbus; that Pinneo 
had some conversation with Peters and witness and asked 
witness if he had given Peters any railroad ties, and wit- 
ness told him that he had, and there was something said 
about new ties, and witness told him that he had given 
Peters a new tie that was broken which he took away; 
didn't remember that he told Pinneo at the time that the old 
and new ties he had seen at Kriski's had come from the U. 
P. Co.'s roa(J ; this was the forenoon of the day of the trial 
which was heard after noon. 

George Hoagland, a witness for plaintiff, testified that 
he lived in Colfax county, distant two and a half miles 



222 



NEBRASKA KEPORTS. [Vol, 30 



C, B. & Q. K- Co. ▼. Kritkl. 



H 




west and a little north of Benton, on the farm adjoining to 
Kriski's; reracnibers that it was said there had been rail- 
road ties stolen from the B. & M. road in May, 1887; that 
during that morning he saw Peter Kriski (but did not see 
Paul) planting corn, with a planter, a little eastward of 
his house, sometime towards noon-day, at which time young 
McDuiTy came to his house and made inquiries as to who 
lived at the house below, their names and appearance, etc. 
Witness hesitated to reply, and asked him his business, 
etc.; he said they had l)een stealing ties from the B. & M. 
road; that he had followed them up, and described their 
team ; witness told him he was mistaken, that he had just 
come up from there, and saw the old man planting corn that 
forenoon. 

Peter Kriski was sworn and examined for the plaintiff 
and testified through an interpreter; that he lived in Colfax 
county in May, 1887; that he knows B. F. Pinneo, who 
visited him in that month and year, at his farm; that he 
could not talk with him, and had an interpreter brought 
by Pinneo, who told him he should pay $40. 

Q. For what? 

A. For railroad ties. 

Q. What ties ? 

A. Old ties. 

Q. Where were they? 

A. In my yard. 

Q. Did he say what he would do with you if you did 
not pay the forty dollars ? 

A. He would arrest me ; and wanted to get me arrested. 

Q. Did you pay him, and why not? 

A. No. Should I pay him any money, if I was inno- 
cent? 

Q. Did he make any charges or accusations against you 
there? 

A. He accused me of having me arrested if I did not 
want to pay. 



Vol. 30] SEFfEMBER TERM, 1890. 



223 



C, B. & Q. R. Co. T. Kriskl. 



Q. Did he accuse you of any crime? 

A. He charged me with being a thief, that I had stolen 
ties. 

Q. What did you tell him? 

A. That the ties were from my son-in-law, L. Peters ; 
that was when I refused to pay the $40. Pinneo went 
away and afterwards the same sheriff who was with Pinneo 
returned and arrested him and his son Paul, bringing them 
to Columbus before the justice of the peace late in the 
evening. 

The testimony of the witness as to what occurred in and 
about the justice's court, and especially as to what was said 
and done by Schroeder, the interpreter, is not important 
to report, but he stated that while he told his story to the 
interpreter, the interpreter did not talk with Pinneo at 
all. The witness knew the young man McDuffy, saw him 
in May, 1887, but did not talk to him ; that he, McDuffy, 
talked to witness in regard to the Barnishes, father and son, 
who were there, "and came there to his yard " with a wagon 
and team; witness was planting corn when be saw them, 
on Friday; on Tuesday following witness was arrested; 
bad not been to the river that day, nor had his son Paul; 
that his son-in-law, Peters, had hauled ties from the Bow- 
man farm with a mule team. 

It appeared from his cross-examination that the interpre- 
ter mentioned as accompanying Pinneo and the deputy 
sheriff to his bouse was a shoemaker from Columbus, 
named (Jarbert, whose whereabouts were unknown at the 
time of the trial. 

The plaintiff was sworn in bis own behalf and testified, 
that be remembered the day that McDuffy came to his 
father's house, in May, 1887, about noon; that on that 
morning he had been hauling wood for his brother-in-law, 
L. Peters, and helping him move from the Bowman place 
to his father's; that they had a mule team, and had some 
railroad ties in their wagon brought away from the Bow- 



224 NEBRASKA REPORTS. [Vol. 30 



C, B. A Q. R- Co^ T. KrisU. 



I« 



man place to "our place"; that when they got to his 
father's house Theo. Barnish and Steve Barnish, his son, 
came along there, after witness, from the direction of the 
river ; they had a wagon and team ; witness's father had 
been planting corn that morning ; the Barnishes had an 
iron gray and bay horse in their team ; his father had a 
white mare and dark brown horse, not resembling the 
other team much ; saw young McDuffy come up thereafter 
the Barnishes came, from the same direction, on foot; he 
went down to Barnish's wagon, and showed something, 
and said something ; Barnish and his son were in their 
wagon ; McDuffy talked to them, but not to witness or to 
his father; he saw witness unhitching the team but said 
nothing to him; that Barnish does not look like the wit- 
ness's father, nor does witness look like Barnish's son ; 
lliat Pinneo asked him where they got the ties, and he 
told him they were not their ties but belonged to Peters; 
that Joe Garbert was sitting in the buggy, but witness 
talked to Pinneo and not with Garbert. Witness was 
arrested, taken to Columbus, at 9 P, M. and put in jail. 

L. Peters, a witness for the plaintiff, testified that he 
resides in Colfax county ; that his business is working on 
the U. P. railroad as section hand under one Herbert as 
his boss ; that he lived with his father-in-law, Peter Kriski ; 
had every year got section ties from his railroad boss, and 
while living at the Bowman place, when he moved from 
there he moved the ties to Kriski's. Herbert gave him the 
ties. In May witness moved to Richland ; had ties at that 
time, and left them at Kriski's. The day it was claimed 
that somebody had stolen ties witness was moving from 
the Bowman place. Paul Kriski was with him, and they 
had a mule team, a cross between bay and yellow ; remained 
at Kriski's until noon; when unhitching the team, Barnish 
and his son Steve came up; we had some float -wood on 
the wagon; their team was an iron gray and bright bay; 
old man Kriski was planting corn, his team was a white 



Vol. 30] SEPTEMBER TERM, 1890. 



225 



C, B. & Q. R. Co. V. Krlfcki. 



mare and dark brown horse; witness was talking to Bar- 
nish wlien young McDuffy came up from the south, the 
same direction that Barnishes came ; Paul Kriski was then 
unhitching the team in the yard; McDuflFy did not talk 
with either of the Kriskis; neither one resembles the Bar- 
nishes; Burnish has gray whiskers, a bald head, and is 
nearly fifty years old; witness knew Pinneo, saw him first 
when he came to subpoena witness on the Kriski trial ; he 
told witness and Herbert that Kriski had stolen the ties; 
witness said not ; that the ties were his, that he left them 
there; and he said these are new ties, bu£ there were but 
two new ties, split and broken, and were given to witness 
by the section boss, who was present and told him so; this 
talk with Pinneo was the same day before the trial. 

Upon the trial, one David McDuffy testified on behalf 
of the defendant, in the court below, that he was a section 
foreman in the service of defendant at the time of tlie prose- 
cution complained of; that be as such section foreman had 
charge of the railroad ties belonging to the defendant and 
on his section of defendant's road; that a short time prior 
to the arrest and prosecution of plaintiff and his father, he 
had piled two pilesof railroad ties belonging to the defend- 
ant on the right of way, ready for loading onto cars, and 
that all in one of the piles, containing more than 200 ties, 
were stolen ; that about the 20th day of May, 1887, he saw 
two men witli a team loading some of these ties a few rods 
west of the railroad bridge across the Platte river; that 
the men would load on a few ties and then get up on the 
road-bed and look around as if watching to see if any one 
saw them ; that they loaded on ties and drove away ; that 
he sent one of his section men, John McDuffy, his son, 
to follow the team and see wliere they were going with the 
ties; that he got on top of the hand car and watched the 
team closely, and saw it plainly, and that it was driven 
into the grove at Peter Kriski's place, that being the homo 
also of Paul Kriski, a son of Peter Kriski ; that John 
16 



226 



NEBRASKA REPORTS. [Vol. 30 



C, a J: Q R. Cj. v. KrUki. 



4 

J 

I 

il 



McDiiflfy reported to him and told him it was Peter aud 
Paul Kriski who loaded and hauled the ties; that he re- 
ported to defendant's superintendent at Lincoln tliat ties 
and bridge timber belonging to defendant were being 
stolen; that the superintendent sent Mr. Pinneo to look 
after the matter ; that he saw Pinneo within a very few 
days; that they were on the defendant's railroad track, 
near where the ties had been taken from^ and that he 
pointed out to Pinneo the place to which the ties had been 
taken; that he told Pinneo all he had seen himself and 
also what John McDufly, who followed the wagon, had re- 
ported to him; that he told Pinneo that it was Peter and 
Paul Kriski who had stolen the ties. 

John McDuiFy testified that he was employed as a sec- 
tion hand upon defendant's railroad, and was working on 
the section with his father, David McDuffy, who was sec- 
tion foreman; that the section hands had been missing 
ties, and one day while at work on the road, at some dis- 
tance from the bridge, they noticed a team and two men 
near the bridge at the place where the ties were piled up; 
that the men would load on ties a short time, and then get 
on the track and look about them, and go back and load 
on more ties; that when they got loaded they started off, 
and at his father's request he followed them to Kriski's 
house; that while following them he could see that the 
wagon was loaded with ties ; that at Kriski's house he saw 
Peter and Paul Kriski unhitching the team from a wagon 
on which twenty or thirty ties were loaded, and that there 
were ties scattered around the yard; that after he left 
Kriski's house we went to a neighbor of the Kriskis and 
described the two men who were unhitching the team at 
Kriski's house, and that the neighbor said it was Peter 
Kriski and his son; that he then reported to his father 
what he had seen, and that he afterward told Pinneo all 
he had observed; that he did all this before the commence- 
ment of the criminal prosecution against the Kriskis; that 



Vol. 30] SEPTEMBER TERM, 1890. 



227 



C, B. & Q. R. Co. ▼. KriskL 



he told Piiineo that Peter and Paul Kriski had stolen the 
ties of the defontlant. 

John Mitccky a witness on behalf of the defendant, tes- 
tified that he was employed by the defendant and was 
working under section foreman David McDuffy, and was 
with him at the time the two men were seen loading ties on 
defendant's right of way, in May, 1887 ; that the team was 
driven in the direction of Kriski's grove, and that John 
McDuffy followed it; that ties were missing from the 
place where they had been piled; that they were stolen that 
day or the day before. On cross-examination he said these 
men with the team stood right where the ties were and 
that he saw them put some of them on the wagon. 

Benjamin Pinneo, upon whose action in prosecuting 
plaintiff this action is based, testified that he received a 
letter from defendant's superintendent (which had been 
written by Mr. McDuffy to the said superintendent) with 
directions to attend to the matter; that within a few days 
he went to Columbus and there saw David McDuffy, John 
McDuffy, and John Mitoek, the witnesses whose testimony 
is hereinbefore abstracted; that David McDuffy told him 
that there had been a lot of defendant's railroad ties stolen, 
and told him the direction they went, and pointed out the 
place they had been taken to; told him that his son, John 
McDuffy, had followed them to the house. He further 
testified that John McDuffy also told him that "he was 
down there with his father working on the section, and 
they saw somebody loading ties down the track, and his 
father started him cornerways, and gave him instructions 
to follow them if it took a week, and he told me he fol- 
lowed that team up the road to that house in- the grove, and 
that Paul Kriski and Peter Kriski were there in the yard ; 
I think he said they were unhitching the team from the 
wagon; I asked him very particular about it; I didn't 
want to make any mistake;" that he then went and got 
the deputy sheriff to go with him to Kriski's place; that 



228 NEBRASKA REPORTS. [Vol. 30 



C, B. & Q. R. Co. T. EriskL 



before they reached the house they saw a son of Peter 
Kriski^s herding cattle near the road; that this boy told 
him and the deputy sheriff that his fiither and older brother 
liad hauled some ties, and pointed in the direction from 
whence the defendant's ties were taken when asked where 
they got them ; that he and the deputy sheriff then went 
to where Paul, the plaintiff, was engaged, near the liouse, 
and asked him about the ties ; that " he said they had gotten 
some ties and flood-wooil at the bridge, and I asked him 
where, and he pointed the same way;" that the boy Paul 
told different stories in trying to tell them where the ties 
came from ; that he then went to the house and that he 
and the deputy sheriff had a talk with Peter Kriski ; that 
they asked him where he got the ties, and he said he got 
them on the railroad; that he then asked Kriski if he 
Avanted to buy them, and that Kriski asked the price; that 
when he was told the price was thirty cents a tie, he said 
they were not worth that; that he (Pinneo) then went back 
to town (Columbus) and got an interpreter and took him 
out to Kriski's house and told him that he wanted thirty 
cents apiece for the ties, and that Kriski said he wouldn't 
pay for them ; that Peter Kriski told several different sto- 
ries about the ties, and that his last story was that he 
bought them from the U. P. foreman ; that he then went 
back to town and made complaint before the justice of the 
peace, charging the said Peter and Paul with the larceny 
of said ties. The witness further testified that he had 
never seen or heard of the plaintiff or his father before he 
went to look after this matter; that he had no ill feeling 
toward them ; that he believed these parties were the par- 
ties who had taken the ties; that his only motive was to 
punish them for the crime charged. In rebuttal to the 
testimony of plaintiff's witness, Schroeder, Pinneo said he 
had never spoken to Schroeder nor had Schroeder spoken 
to him, and that Schroeder had not told him anything 
about the old man Kriski having said he received the ties 
from the U. P. R. R. 



Vol. 30] SEPTEMBER TERM, 1890. 229 



C, B. <b Q. R. Co. Y. Kriski. 



Geo. Harmon, a witness on behalf of the defense, testified 
that he was deputy sheriff of Platte county at the time of 
the arrest of the Kriskis, and that he made the arrests ; 
that before any complaint was made or warrant issued, he 
went with Pinneo to Kriski's house; that before they 
reached the house they talked with one of Kriski's boys, who 
said his father and a brother had hauled the ties; that he 
and Pinneo then went to where the plaintiff was and talked 
with him, and that he, plaintiff, said they got the ties 
over at the bridge ; that they then went to and talked with 
Peter Kriski about Whei'e he got the ties, and that he told 
two or three different stories about the matter. "I think 
he said some one gave them to him the first time, and then 
he said he had bought them of the U. P. section foreman." 

The defendant also called J. C. Cowdry, Esq., as witness, 
who testified that he was the justice of the peace of Platte 
county in May, 1887, before whom Peter and Paul Kriski 
were charged with stealing railroad ties, and were tried by 
a jury ; that the entries of that trial were on pp. 8, 9, of 
his docket of that yeai*, which he had with him, and by 
which proof was offered of the conviction of Peter Kriski 
of the offense charged, which, being objected to by plaint- 
iff's counsel, was sustained by the court, and the offer of 
evidence overruled. 

The giving of the paragraphs 9 and 10 of the court's 
instructions to the jury is assigned as error : 

" 9. The mevfi belief of Pinneo in the guilt of the plaint- 
iff will not of itself justify the prosecution complained of. 
He could not close his eyes to facts within his knowledge 
which tended to prove plaintiff's innocence. On the other 
hand, he was not required, at his ])eril, to accej)t as true 
the denial of defendant or other parties. If all the known 
facts in the case, including such denial, were sufficient to 
induce a reasonable ground of suspicion of plaintiff's guilt, 
then you could not find that the prosecution was without 
probable cause. 






230 NEBRASKA REPORTS. [Vol. 30 






1 



C, B. & Q. R. Co. V. Kiiskl. 




** 10. Should you find that the witness Pinneo demanded 
$40, or any other sum of money, from the plaintiff', or liis 
father, for which sum he agreed to not prosecute said wit- 
ness, or the plaintiff*, such fact may be considered by you 
in determining whether or not said Pinneo acted mali- 
ciously ; but such demand, if made, would be no evidence 
of want of probable cause, and should not be considered 
for that purpose/' 

The first three errors assigned are neither of them pre- 
sented in the brief of counsel, and it is not, therefore, 
deemed of importance to further consfder them here. 

The cogent argument of the brief is directed to the as- 
sumption that the verdict was contrary to the instructions 
to the jury, and is not sustained by the evidence. This 
proposition is somewhat embarraSvSed by the unusual cir- 
cumstance that it is not directly presented in an assignment 
of error, but may be. entitled to be considered under the 
fourth error, that the court erred in overruling the defend- 
ant's motion for ft new trial. Its application will be seen in 
the following instructions of the court: 

"4. If the preponderance is with the defendant, or if the 
testimony is evenly balanced upon any one or more of the 
material questions in this case, you will have to find for 
the defendant. 

"5. The material allegations which are put in issue by 
the pleadings herein, and which the plaintiff* is required to 
establish by a preponderance of testimony are: 

"First — That the witness Pinneo, in instituting the pros- 
ecution complained of, was acting as the agent of the 
defendant and within the scope of his authority as such 
agent. 

"Second — That said Pinneo had no just or reasonable 
cause for such prosecution, or for believing the plaintiff^ 
guilty of the crime of larceny. 

"Third — That said Pinneo in the said prosecution acted 
maliciously; that is, was actuated by motives of malice 
toward the plaintiff*. 



Vol. 30] SEPTEMBER TERM, 1890. 



231 



C, B. & Q- R. Co. V. Kriskl. 



"6. That Pinnco was acting for the defendant in some 
capacity appears to be undisj)uted from the testimony; 
hence, oq that branch of the case you will confine your 
inquiry to the question whether or not he was acting 
within the scope or line of his employment or agency. If 
you find from the testimony that Mr. Pinneo was author- 
ized by the defendant company to institute the prosecution 
against the plaintiff for stealing its ties, then it would 
appear that he was acting within the scope of his authority. 

" 7. Probable cause for criminal prosecution is defined to 
be a reasonable ground for suspicion supported by circum^ 
stances sufficiently strong in themselves to warrant a cau- 
tious man in the belief that the person accused is guilty 
of the offense charged. 

"8. If the plaintiff has satisfied you that the defendant's 
agent had no such reasonable ground for suspicion of j>laint- 
iff's guilt, as explained in this charge, you will be justified 
in finding that no probable cause existed for the prosecu- 
tion cx)mplained of. The question of probable cause in 
this case does not) however, dei)end upon whether or not 
the plaintiff actually stole ties from the defendant; neither 
does the question of probable cause depend upon the ques- 
tion of malice of defendant's agent; but the question is: 
Were the facts and circumstances within the knowledge 
of such agent, and upon which he acted, sufficient in 
themselves to raise a reasonable ground of suspicion in 
the mind of an ordinarily cautious man, and did such 
agent believe plaintiff guilty of stealing said ties? If such 
reasonable ground of suspicion existed within the knowl- 
edge of defendant's agent who instituted the prosecution, 
and if he actually believed plaintiff guilty, then he had 
probable cause therefor, and you should find for the defend- 
ant, even if you should find also that plaintiff did not in 
fact steal said ties. 

** 9. The mere belief of Pinneo in the guilt of the plaint- 
iff will not of itelf justify the prosecution complaineil of. 



232 NEBRASKA REPORTS. [Vol. 30 



a, B. & Q. R. Co. T. ErtekL 






He could not close his eyes to facts within his knowledge 
which tended to prove plaintiff's innocence. On the other 
handy he was not required, at his peril, to accept as true 
the denial of defendant or other parties. If all the known 
facts in the case, including such denial, were sufficient to 
induce a reasonable ground of suspicion of plaintiff's 
guilt, then you could not find that the prosecution was 
without probable cause." 

Does the evidence, viewed in the light of these instruc- 
tions, sustain the verdict? If this can be so considered, the 
court was justified in overruling the motion for a new trial, 
but, if otherwise, it was the duty of the court to have set 
aside the verdict. 

Pinneo, as the agent of defendant, was acting in an 
useful and necessary capacity under the general instructions 
of the sui>erintendent of the railroad company, and was 
located at a point nearly 100 miles distant from the 
plaintiff, who was an utter stranger to him. The witness 
McDuffy was a local section foreman of the company, near to 
the residence of the plaintiff and to the scene of the transac- 
tions testified to by all the witnesses. McDuffy informed 
McConniff, the suj^erintendent and immediate superior 
of Pinneo, that railroad ties, the property of the defend- 
ant, had been recently stolen from the line of the road, and 
directed Pinneo to investigate the depredation, ascertain 
the guilty parties, and, if possible, bring them to justice, 
with such reparation to the company as his general instruc- 
tions implied. Under these orders he proceeded to Platte 
county to the section of the road under McDuffy's charge, 
and was informed by that official " that there had been 
a lot of rairoad ties stolen, and pointed out the direction 
and place to which the property had been taken, and that 
his son, John McDuffy, had followed the property and 
the parties to the house ; " and was further informed by 
John McDuffy "that he and his father, while working on 
the section under their charge, saw somebody loading ties 



Vol. 30] SEPTEMBER TERM, 1890. 



233 



0., B. & Q. R. Co. T. KriBkl. 



down on the track; that bis father directed him to follow 
them, and that he did follow the team up the road to the 
house in the grove, and discovered that Paul Kriski, the 
plaintiff, and Peter Kriski, his father, were there in posses- 
sion and were then unhitching the team from the wagon 
loaded with ties/' The agent testifies that he questioned 
these informants narrowly as to circumstances detailed in 
order that he should make no mistake as to his own action. 
He then, accompanied by the deputy sheriff, went to Kriski's 
place, and, before coming to the house, saw the younger 
brother of the plaintiff herding cattle near the road, who 
told them, in answer to inquiries, ''that his father and 
older brother had hauled some railroad ties," and when 
asked where from, pointed to the direction whence the de- 
fendant's ties had been taken. The plaintiff also said to 
the deputy sheriff that " they had got some ties and flood- 
wood at the bridge," and when asked where from, pointed 
out the same direction that the younger brother had, and 
upon further inquiry told conflicting stories about the ties. 
The father, Peter Kriski, l)eing asked where he got the ties, 
said that he got them on the railroad, and upon an offer to 
sell them to him at thirty cents each, refused to buy them 
at that price, but gave dift'erent accounts as to their pos- 
session. The last one was that he had bought them of the 
U. P. Company's foreman. 

At the Kriski place there was found- a large amount of 
said railroad ties of the kind and quality of those stolen 
from defendant according to the information received by 
the agent, and in possession of them tlie iigent found the 
Kri.sk is, both father and son. Upon these apparent facts 
Peter Kriski and his son Paul were charged by the agent 
Pinneo with the larceny of the tics. The agent testified 
that they were total strangers to him, and that he was free 
of any malice or ill-will in their prosecution. 

In rebuttal of the testimony of Schroeder for the plaint- 
iff, the agent testified that he had never spoken to that 



234 NEBRASKA REPORTS. [Vol. 30 



C, B. & Q. R. Co. ▼. Kriski. 



witness^ and had not told him anything about old man 
Kriski having gotten the ties of the U. P. Railroad Com- 
pany. This evidence is corroborated by Kriski, who stated 
that he talked with Schroeder only, and that Schroeder did 
not talk with Pinneo for him at the time stated by that 
witness. • 

From the commencement of the prosecution forward, 
the testimony is conflicting. Pinneo heard statements 
from the elder Kriski, from the son-in-law, and prolwibly 
others, in explanation of the possession of the proi>erty 
and casting doubt as to the accuracy of the information 
previously given as to the guilt of the parties. 

The court charged the jury in the 9th instruction that the 
agent " was not required, at. his peril, to accept the denial of 
tlie defendant or other parties; that if all the known facts 
in the case, including such denial, were suflScient to induce 
a reasonable ground of suspicion of plaintiff's guilt, it 
could not be found that the prosecution was without rea- 
sonable cause." 

It is undoubtedly one of the most usual circumstances 
attending accusations of crime that the accused should 
deny their guilt and endeavor to explain away any suspi- 
cious facts leading to their arrest. And notwithstanding 
the small confidence placed in such assertions, the absence 
of such denial or explanation is liable to be regarded as 
tending to a confession. Can it be said that the agent 
Pinneo, with a due regard to his duty to his em}>loyer, 
could have, after receiving the information from the 
McDuffys, seemingly confirmed by the possession of the 
property by the Kriskis, part of it upon the wagon as if 
lately hauled upon the premises, accepted, as conclusive and 
sufficient to turn him back from the pursuit of the prop- 
erty, the denial of these persons as to their guilt or their 
conflicting explanations of their possession of it? But we 
may not be put to this inquiry, but rather rest upon the 
fact that the court in its charge held that no such duty was 
incumbent upon him. 



Vol. 30] SEPTEMBER TERM, 1890. 



23/i 



C, B. & Q. R. Co. ▼. Kriski 



The question then recurs whether the court was bound 
to enforce the law thus laid down, but this depends upon 
the conclusion of that court, and of this, as 'to the suffi- 
ciency of the facts communicated to the agent, and within 
his knowledge, to establish the existence, or the absence 
of probable cause for the arrest and prosecution of the 
plaintiff. 

The court in its seventh instruction correctly charged the 
jury that probable cause for criminal prosecution is a rea- 
sonable ground for suspicion supported by circumstances 
sufficiently strong in themselves to warrant a cautious man 
in the belief that the accused is guilty of the offisnse 
charged. 

From the information, circumstances and facts presented 
to the agent Pinneo by the McDuffys, and his own ocu- 
lar demonstration of the property in the possession of the 
Kriskis, can it be said that he was not warranted, as a 
cautious man, in the belief tliat larceny had been commit- 
ted, and that those in possession of the property, and not 
accounting for it, were the guilty parties? If this ques- 
tion be answered in the negative, the justification of the de- 
fendant is clear, because the agent, who alone could testify 
as to his belief, testified that he believed the plaintiff to be 
guilty, and the court instructed the jury, and we believe 
properly, that the agent was not bound to accept, at his 
peril, the denials of the accused, or of* other parties, and 
such denials were the only circumstances in evidence which 
tended in any degree to disprove or contradict the strong 
presumption of guilt under the criminating circumstances 
of the case. 

The legal and logical reasons, therefore, seem to me to 
be unquestionable that a verdict for the plaintiff upon such 
grounds and evidence, and under such instructions as the 
jury were charged with, should have been set aside on mo- 
tion, and that the court erred in overruling the defendant's 
motion for a new trial. Having reached this conclusion the 



236 



NEBRASKA REPORTS. [Vol. 30 







Brown y. Rice. 



fifth and sixth as-signments of the plaintiff in error will not 
be further considered in this opinion. The judgment of 
the district cx)urt is reversed and this cause is remanded for 
a new trial. 

Reversed and remanded. 



The other judges concur. 



Henry M. Brown v. Samuel H. Rice et au 
[Filed September 17, 1890.] 

1. Jurisdiction: Special Appearance to Challenor. In an 

action under sections 61 and 77 of the Code of Civil Procedure 
where service was bj publication, and the plaintiff's affidavit 
omitted to state that the defendants, or some of them, resided 
out of the state, J^eld^ that it was competent for the defendant 
to appear specially in support of a motion challenging the juris- 
diction of the court, or to quash a juridical paper without fur- 
ther appearing as a defendant in the case. (Porter v, Chicago 
A N. W. R. Co., 1 Neb., 14; Cleghom v. Waterman, 16 Id., 226.) 

2. Final Order. A ruling of the court sustaining the defend- 

ant's motion to quash the service against him hj publication, 
without a judgment of record, is not such a final order deter- 
mining the plaintiff's rights of action as will be reviewed on 
error. {Brown v. Edgerlon, 14 Neb., 453.) 



Error to the district court for Madison county, 
below before Crawford, J. 



Tried 



William V, Allen, for plaintiff in error: 

All objections to jurisdiction must be made by the party 
in person and cannot be raised by counsel. (I Bouvier, 
L. D., title "Appearances;" 1 Chitty, Pleadings [lOth Am. 
Ed.], 428 ; Knox v. Summers, 3 Cranch [U. S.], 496.) The 
tendency of this court^s holdings has been against special ap- 



J 



Vol. 30] SEPTEMBER TERM, 1890. 



237 



Brown v. Rice. 



pearances. (Maxwell, Just. Pr., 90.) The motion sought to 
call into exercise the power of the court to reconsider its 
judgment as to the service, and this made the api>earance 
a general one. [Cropsey v, Wiggenhoniy 3 Neb., 108; 
Q^owell V. Galloway, Id., 220; Porter v, R. Co., 1 Id., 14; 
Johnson v. Jonesy 2 Id., 136; Kane v. People, 4 Id., 512; 
Newlovev, Woodward, 9 Id., 504; White v. Merriam, 16 
Id., 96; Warren v. Dick, 17 Id., 246; Maraden v. Soper, 
no. St., 503.) The affidavit, while perhaps incomplete, 
is not void. (Fulton v. Levy, 21 Neb., 4S1 ; Britton v, Lar- 
son, 23 Id., 806.)" 

Wigton & Whitham, contra: 

An appearance for the purpose of objecting to jurisdic- 
tion is not a general one. {Cleghoim v. Waterman^ 16 Neb., 
226; Crowell v. Galloway, 3 Id., 220.) The affidavit is 
defective in not alleging that defendant is a non-resident. 
{Atkins V. Atkins, 9 Neb., 200 ; Fulton v. Levy, 21 Id., 482 ; 
BrlUon v. Larson, 23 Id., 806.) 



Cobb, Ch. J. 

The plaintiff in error exhibited his petition in the dis- 
trict court of said county against the defendants Rice and 
his wife, and Mary J. Brown, the petitioner's wife, setting 
up that on September 30, 1875, he purchased the west 
half of the southeast quarter of section 30, township 22, 
range 4 west, in said county, for $400, the fee simple title 
to which, "to pacify his wife," was conveyed to her, in 
trusty for his use and benefit; that on April 16, 1878, she 
mortgaged the land to defendant Bice to secure her note 
of that date to him for $79, due in sixty days, bearing 
twelve per cent interest; that on January 20, 1879, the 
mortgage was foreclosed against her in said court and the 
land sold to the mortgagee and judgment creditor, and 
sheriff's deed made to him June 7, 1889, and that he had 



ta 




238 NEBRASKA REPORTS. [Vol. 30 



Brown T. Rloe. 



since paid taxes thereon of $58.42. The plaintiff seeks 
to redeem the land of the mortgage, interest, and oosts, 
and the subsequent taxes, and to quiet his title. 

Mesne process was not served on the parties, but on 
November 25, 1885, the plaintiff's attorney filed his affi- 
davit for service by publication, stating **that service of 
the summons in this case cannot be made within the state 
on the said defendants or either of them, and that this is 
one of the cases mentioned in section 77 of the Code of 
Civil Procedure." Accordingly it was ordered " that service 
upon the defendants be made by publication in the manner 
required by law." Notice to the defendants by publica- 
tion was given, dated November 27, 1885, and proof of 
publication in the ^fadison Chronicle^ a weekly newspaper 
printed and published in said county, and of general 
circulation therein, for four consecutive weeks, was made 
March 9, 1886, and on the same day default was taken and 
entered in open court against the defendants. 

On March 25, and subsequently on November 28, 1887, 
the defendants being still in default, it was ordered that 
the petition betaken as confessed; that the sale of the land 
to defendant Rice, and the sheriff's deed to him, be set 
aside and canceled ; that the petitioner's title to the land 
he restored and quieted, and he be permitted to redeem 
the same from the foreclosure and sale, and for that pur- 
pose a referee was appointed to ascertain what mortgage 
and tax liens existed against the land, from which the 
plaintiff should be required to redeem, and the case was 
continued for furtlier hearing on the referee's report. 

On October 8, 1888, the defendant Rice appeared, by 
his attorneys, specially for the purposes of his motion only, 
and moved to quash the service by publication on him for 
the reasons: 

First — That the affidavit for service by publication is 
not sufficient in law to authorize such service, in that it 
fails to state that this defendant is, or was at the makinjir 



Vol. 30] SEPTEMBER TERM, 1890. 



239 



Browu T. Rice. 



or filing of the affidavit, a non-resident of the state of 
Nebraska. 

Second — That this defendant is, and ever since the com- 
mencement of this action, and the filing of tiie petition, 
has been, a resident of this state, and service of summons 
could at any time have been liad upon liim in this state, as 
shown by the affidavit of defendant in support of the mo- 
tion, and which motion upon hearing was sustained by the 
court, and to which the plaintiff excepted. 

On October 11, 1888, the plaintiflF filed a motion for a 
new trial: 

First — Because the decision is contrary to law. 

Second — Because of error of law occurring at the trial. 

Third — Because the court erred in sustaining the special 
appearance, and in setting aside the judgment, entered in 
this case. 

Fourth — Because the question raised by the special ap- 
pearance adheres and passed into the judgment, and the 
defendant's remedy was a motion or petition for a new 
trial. 

This motion for a new trial was overruled, to which the 
plaintiff excepted. 

The plaintiff in error assigns in his petition as causes 
for review : 

First — That the court erred in sustaining the special 
appearance of defendant Rice, and in setting aside the serv- 
ice and judgments made and entered in the cause. 

Second — That the court erred in making a final order 
setting aside, for want of jurisdiction, the judgment, entered 
in the cause. 

The first question presented on the record, is that of the 
sufficiency of service on the defendant Rice by publica- 
tion of notice. The action was brought under the fii*st 
clause of section 51 of the Code, *' for the recovery of real 
property, or of an estate, or interest therein." Constructive 
service is provided for by publication in actions brought 



f 



240 NEBRASKA REPORTS. |>ol. 30 



Brown v. Rice. 



under section 51, by the first clause of section 77, "where 
any or all of the defendants reside out of tlie state," 

The affidavit required to be made under section 78, be- 
fore service can be had by publication, stating tliat service of 
a summons cannot be made within this state on tiic defend- 
ants, and that they, or some of them, reside out of this 
state, omitted the last material fact, and its sufficiency was 
travei^sed by the defendant Rice, without denial by the 
plaintiff. On the special appearance and motion of the 
defendant, for that purpose only, the service by priblicatiou 
was set aside. That it was competent for tlic defendant tu 
appear specially at any stage of the proceed ing?=i, in open 
court, in support of a motion which directly challenged the 
jurisdiction of the court, or quashed a juridical paper, with- 
out making any further appearance as a defendnnt, is not 
doubted. It was so held in the case of Porter v. Chicago 
tt- Northwestern liailroad, 1 Neb., 14, and in C^cf/horn r. 
Waterman, 16 Neb., 226, which have not been overruled oi" 
modified, and which are adhered to. 

The second error assigned, that the court erred in mak- 
ing a final order setting aside the judgment, for tlie waui 
of jurisdiction, does not api^ear, in fact, in tlie record. No 
judgment in form, or final order, is to be found in the 
record before us affecting the plaintiff's rightj^ or determin- 
ing the action in the court below, not even a judgment for 
the defendant's costs which may be supposed to have fol- 
lowed the motions to quash the service, and for a new 
trial. (See Brown v. EdgeitoUy 14 Neb., 454.) Both the 
plaintiff and his petition, so far as the record shows, are 
recti in cwia, where the case may be still pending. 

There seems to be nothing in second error to be reviewed, 
reversed, or affirmed, and the petition in error will be 

Dismissed. 
The other judges concur. 



Vol. 30] SEPTEMBER TERM, 1890. 



241 



U. p. B. Co. T. Marstoii. 



Union P. E. Co. v. Ira D. Marston. 

[FlLBD SEPTEMBER 17, 1890.] 

Common Carriers: Iir juries to Goods: Verbal Aoree- 
ment: Bill of Lading: Variance. M. applied to an agent 
of the Kock Island <& Peoria R. Co., at one of ita stations in 
the state of Illinois, to ship certain office furniture, including a 
stove, to Kearney on the line of defendant's road in this state. 
The agent informed M. that the cnstom was for shippers to i*e- 
lea<«e stoves, bat advised him not to do it for reasons given, bnt 
to paj the additional expense of sending it at carrier's risk. To 
this M. assented, and offered to pay the frei;^ht to said agent, 
who informed him that he could as well pay it at the end of the 
route. The agent placed the goods into a car of a freight train 
which proceeded on its way. Four or five hours afterwards the 
agent handed him a paper, saying that it was a receipt for the 
goods shipped. This paper M. put in his pocket without exam- 
ining it, and which proved to be a bill of lading of llu goods, 
containing, inter alia j the condition, ''stoves at owner's risk of 
breakage." The goods were received at C. B. from the R. I. R. 
Co., by defendant and carried to E. Upon arrival the stove was 
found to have been broken en route. In an action by Bl against 
the U. P. Railway Company for damages for injury to stove, 
held, that, as between M. and the R. I. & P. R. Co., the stove 
was carried at carrier's risk. 

Certain instructions given as requested, and others modified 
and given as moilified, set out with such modifications in the 
opinion, A^^d, rightly given, and rightly given as modified. 

Trial: View: The Evidence held to sustain the verdict, espe- 
cially in view of the fact that npon the trial the jury were 
ordered and permitted by the court, at the request of the de- 
fendant, to go out in charge of a bailiff and examine the stove 
in its broken and damaged condition. 




Error to the district court for Buffalo county, 
below before Hamer^ J, 



Tried 



J. M. ThurstoUy W. R. Kdley, and J". 8. Shropshire, for 
plaintiff in error: 

Defendant in error, having accepted the shipping receipt 
16 




242 



NEBRASKA REPORTS. [Vol. 30 



U. p. R. Co. V. Maralon. 



and brought suit upon it, was bound by its terms. ( Whit- 
worth V. li. Co,y 87 N. Y., 413; Carsure v. Harris, 4 G. 
Greene [la.], 616; •Hutchinson, Carriers, sees. 240, 241, 
243, 248, 265.) As the testimou^r shows that the loss did 
not occur on defendant in error's line, it is not liable. (Jen- 
neson v. jR. Co,, 5 Pa. L. J. Rep., 409; Morse v. Brainerd, 
41 Vt., 550; Burroughs v. R. Co., 100 Mass., 26.) De- 
fendant in error, as a connecting line, had a right to rely 
upon the bill of lading exempting the carrier from liabil- 
ity. {St Louis Ins. Co. v. R. Co., 3 Am. & Eng. R. R. 
Cases, 271 ; Kiff v. R. Co., 18 Id., 618; Hot Springs R. 
Co. V. Tiippe, Id., 562 [42 Ark., 465] ; L., etc., R. Co. v. 
Corcoran, Id., 602 [40 Ark., 375].) Reduced cost of 
transportation is a good consideration for a clause in a bill 
of lading, limiting liability. {Sprague v. R. Co., 23 Am. 
& Eng. R. R. Cases, 685; Grogan v. Exp. Co., 30 Id., 9.) 

Ira D, Marston, oontra : 

A bill of lading given subsequently to a verbal agree- 
ment with less stringent terms, does not bind the shipper 
unless known to and approved by him. (2 Rorer, Rail- 
roads, p. 1320 ; Bostwick v. R. Co., 45 N. Y., 712 ; Comp. 
Stats., 1887, p. 558, sec. 5 ; Const., art. 11, sec. 4.) The 
legislature carrying out the constitutional provision cited, 
has provided for just such cases as the one at bar. (Comp. 
Stats., ch. 16, sec. Ill; A. & N. R. Co. v. Wasliburn, 6 
Neb., 120-1.) 



Cobb, Ch. J. 

The plaintiff below alleged that the defendant is a rail- 
way corporation under the laws of the United States, doing 
business in this state as a common carrier of freight and 
passengers; that on December 30, 1885, by itself and its 
duly authorized agent, it received at Cambridge, Illinois, for 
transportation to Kearney, Nebraska, one hard coal base 



Vol. 30] SEPTEMIiEll TERM, 1890. 



243 



U. p. R. Co. T. M antOD. 



burner stove of the value of $40, and thereby agreed, in 
consideration of $1.52 per hundred weight, to safely trans- 
port and deliver the same to the plaintiff at Kearney. 
That no part of said agreement was in writing, but that 
the defendant, by its said agent, delivered to the plaintiff a 
certain receipt or bill of lading, a true copy of which is 
attached hereto, but that its conditions were not brought to 
the plaintiff's notice or accepted by him ; on the contrary, 
it was expressly agreed that said goods should be ship|)ed 
at the carrier's risk, and the rate of freight demanded for 
transportation at carrier's risk was paid to the ageut 

It is alleged that the weight of the stove was 340 pounds ; 
that he paid the defendant for transportation to Kearney, 
one and fiAy-two hundredths dollars per 100 pounds ; that 
the defendant did not safely transport the stove, but negli- 
gently and carelessly broke and destroyed the same while 
in its possession as such common carrier, and has not de- 
livered it as it was bound to do, to the damage of the plaint- 
iff of $40, with interest from January 12, 1886, and asks 
judgment therefor, and costs of suit. 
Exhibit D. 

"Rock Island & Peoria Railway Company, 

"Cambridge, III., Jany. 1, 1886. 

" Received of Ira. D. Marston, by the Rock Island & 
Peoria Railway Co., the following property in apparent 
good order (except as noted), marked and consigned as in 
the margin, which they agree to deliver, with as reasonable 
dispatch as their general business will permit, subject to 
the conditions mentioned below, in like good order (the 
dangers incident to railroad transportation, loss or damage 
by fire while at depots or stations, loss or damage of com- 
bustible articles by fire while in transit, and unavoidable 
accidents excepted) at Rock Island station, upon the pay- 
ment of charges. The company further agrees to forward 
the property to the place of destination, as per margin, but 
mre not to be held liable on account thereof after the same 




244 



NEBRASKA REPORTS. [Vol. 30 



W 



,.-L 



U. P. R. Co. T. MarsloD. 



shall be delivered as above. The company, however, 
guarantee the through rate of freight, as designated below. 

** Conditions : The company do not agree to carry the 
property by any particular train, nor in time for any par- 
ticnlar mai ket. Oils and all other liquids at owner's risk. 
Liquids in glass or earthen, drugs and medicines in boxes, 
glass and glassware in boxes, looking glasses, marbles, 
stoves, stove plates, and light castings, earthen or queens- 
ware, at owner's risk of breakage. 

"Agricultural imj)lements, cabinetware and furniture 
not boxed, and carriages at owner's risk of breakage or 
damage by chafing. Oysters, poultry, dressed hogs, fresh 
meat, and provisions of all kinds, trees, shrubbery, fruits, 
and all perishable property at owner's risk of frost and 
decay, 

" It is a part of this agreement that all other carriers trans- 
porting the property herein receipted for, as a part of the 
through line, shall be entitled to the benefit of all the ex- 
ceptions and conditions above mentioned ; and if carried 
by water, he is entitled to the further benefit of exception 
from loss or damage arising from collision, and all other 
damages incident to lake and water navigation. All freight 
not taken away on arrival will be stored free for twenty- 
four hours, after which regular storage rates will be 
charged. 

" Marks and Consignees : Ira D. Marston, Kearney, 
Neb. 

"Agents will sign this form of shipping receipt, and no 
other, unless authority is given by the general freight 
agent. Agents will be particular to number both receipt 
and shipping bill, which must be alike. 

" Rate : 162 per cent from Cambridge, 111., to Kearney, 
Neb. 

"Articles : 5 bx. books; one desk, boxed; 1 blank 
case bks; 1 office chair, 1 stove; 1940 weight (subject to 
correction). G. A. Cooper, AytnL 



Vol. 30] SEPTEMBER TERM, 1890. 



245 



U. p. R. Go. T. MaritoQ. 



" State op Illinois, 1 
Henry County. / ' 

*'On this twelfth day of August, 1886, |)ersonally ap- 
peared before me, G. A. Cooper, the signer of a copy of 
the bill of lading on the reverse side hereof, and, being duly 
sworn, says that the said copy is a true copy of the origi- 
nal bill of lading as shown by the books of the Rock Island 
& Peoria Railroad Co. at their station. 

'* Cambridge, 111., August 13, 1886. 

" G. A. Cooper. 

"Subscribed and sworn to before me, this 13th day of 
August, 1886. W. H. Shepard, 

'' Notary Public,'' 

The defendant answered that it is a railway corporation 
organized under the laws of the United States and that it 
has a defense to this action arising under said laws. De- 
nying generally the allegations of the plaintiff, it says 
" that the plaintiff entered into a contract with the Rock 
Island & Peoria Railway Company, for a certain price, 
whereby the said company agreed to transport the said 
stove; that neither the said railway company nor the Rock 
Island & Pacific Railroad Company, or either of tliem, 
were the agents of defendant at Cambri<lge, Illinois, or 
that they acted as its agents in receiving and delivering the 
said stove; that the defendant herein has no line of road 
in the state of Illinois, and did not receive the stove, as 
alleged, from the plaintiff at Cambridge, and made no con- 
tract or agreement of any kind in respect to transporting 
and delivering said stove. It has no knowledge other than 
that derived from the plaintiff's petition that the 'Exhibit 
D ' attached thereto is a true and accnrntc copy of the bill 
of lading or agreement between the plaintiff and the Rock 
Island & Peoria Railway Company, and therefore denies 
the same. 

" Defendant says that the said stove was not injured, 



246 



NEBRASKA REPORTS. [Vol. 30 



U. p. R. Co. V. Manton. 



broken, or destroyed on its line of road, and was not dam- 
aged in any way while the same was in its possession." 

The plaintiff replied denying each and every all^ation 
in the answer contained. 

There was a trial to a jury, with findings for the plaint- 
iff and damages assessed at $40. 

At the request of the defendant the jury returned special 
findings as follows: "That the stove was broken between 
Cambridge and Kearney on the Union Pacific railroad, in 
the defendant's possession^ by reason of the negligence of 
the defendant." 

The defendant's motion for a new trial being overruled, 
judgment was entered upon the verdict, to which the de- 
fendant excepted on the record and brings it to this court 
on the assignments of error as follows: 

"1. That the verdict is contrary to law and is not sus- 
tained by the evidence. 

*' 2. That it is excessive, appearing to have been rendereil 
under the influence of passion and prejudice. 

" S. For errors of law occurring at the trial and duly 
excepted to by the defendant. 

"4. In modifying instructions Nos. 1, 2, 3, and 4, offered 
by defendant, and which should have been given without 
modification. 

"5. In refusing instructions Nos. 6 and 7 asked by de- 
fendant. 

"6. In giving plaintiff's instructions Nos. 3 and 5. 

"7. Because each of the special findings of the jury is 
not supported by suflBcient evidence, and is contrary- 
thereto. 

"8. Because the plaintiff was permitted to amend his 
petition by striking out the words * as per usual bill of 
lading.' 

"9. In overruling the defendant's motion for a new trial." 

It is clearly established by the pleadings and evidence 
that the defendant in error, being about to remove from 



X 



Vol. 30] SEPTEMBER TERM, 1890. 



247 



U. p. R. Co. T. MaratoD. 



Cambridge, in the state of Illinois, to the city of Keiuiic)-, 
in this state, went to the office of the Rock Islnnd & 
Peoria Railroad Company, at Cambridge, taking witii liim 
certain office furniture, including a hard coal basel)uruer 
stove, and procured the same to be shipped over the said 
railroad and its connections to Kearney ; that the station 
agent, in charge of said station, through and by whom said 
goods were received and shipped, then and there, and as a 
part of the res gestce, informed the defendant in error that 
the custom was for shippers to release stoves when they 
shipped them, but advised him not to do it, as his goods 
were going a long distance, he had better pay the additional 
expense of sending it at carrier's risk ; whereupon dcfond- 
ant in error replied that that was just what he proposed to 
do, etc., and asked the agent what would be the extra 
charge on the stove at carrier's risk ; the agent figured it 
up and replied, "seventy-five cents;" defendant in error 
replied "Very well, I shall pay you ;" the agent said" No, 
you can pay at the end of the line," and also explained to 
defendant in error the arrangement of paying the freight 
on the goods over the roads over which it should go; that 
at or about the time this conversation occurred the stove 
had been received by the said agent and pronounced to be 
in perfect condition for shipment; and very shortly after- 
wards the car in which the goods, including the stove, were 
placed proceeded on its way as a part of the west bound 
freight train. Some five or six hours afterwards, as de- 
fendant in error was taking the passenger train, for Kear- 
ney, the said agent came out of the station house and 
handed him a paper saying, "Here, Marston, here is your 
receipt for your goods." This paper Marston put into his 
pocket and never looked at it until some time after his ar- 
rival at Kearney, when . he received notice that the stove 
had arrived there in a broken condition. 

It appears that the paper handed to Marston by said 
station agent was a receipt for the goods shipped by Mars- 



248 



NEBRASKA REPOllTS. [Vol. 30 



U. p. R. Co. V. Marbtou. 



ton including "1 stove, 1940," and contained the follow- 
ing, amongst other conditions: "Liquids in glass, * * 
stoves, * * * at owner's risk of breakage." The ques- 
tion here arises, and it is the leading one in the case, Was 
the shipper, the defendant in error, under tlic facts and cir- 
cumstances above stated, bound by the above condition of 
the receipt or bill of lading as it is usually called? To this 
defendant in error cites section 5 of chapter 72, Compiled 
Statutes. I here copy the section : "No notice, either ex- 
])r&ss or implied, shall be held to limit the liabilities of 
any railroad company as common carriers unless they shall 
make it appear that such limitation was actually brought 
to the knowledge of the opposite party and assented to by 
him, or them, in express terms before such limitation shall 
take effect." He also cites 2 Rorer on Railroads, 1320, and 
BosUi'ick V. B. & 0. R. Co., 45 N. Y., 712. Upon a c nsid- 
eration of these authorities it seems very clear to me that, as 
between Mai"ston and the Rock Island & Peoria R. Co., 
the stove was carried at the carrier's risk. But whether 
the contract of shipment between said railroad coraj>any 
and the shipper was binding upon the defendant, as the 
owner of the connecting line of railroad that received the 
stove at Council Bluffs, and carried it from thence to 
Kearney, I do not deem it necessary to decide in the case 
under consideration. 

This brings me to the consideration of the instructions. 
Those given at the request of the plaintiff, defendant in 
error, are as follows : 

"3. That if you lielieve from the evidence that the 
stove in question was damaged, and that such damage oc- 
curred on the line of the defendant and through the negli- 
gence or carelessness of its agents or employes, and while 
the goods were in defendant's possession, you will find for 
the plaintiff, and assess his damages at such sum as the evi- 
dence shows him entitled to, not, however, exceeding forty 
dollars. 



Vol. 30] SEPTEMBER TERM, 1890. 



240 



U. p. R. Co. V. Marston. 



"5. That when it is proven that the goods in question 
were in the possession of the defendant and were damaged 
at some place on the route, then the burden of proof is 
upon the defendant to show tliat the damage occurred on 
some other than its line, and unless you believe from the 
evidence that the goods, if damaged, were damaged on some 
other line than that of the defendant, you will find for the 
plaintiff." 

The defendant, plaintiff in error, then asked seven in- 
structions. The fifth was given as asked, as follows : 

''If you shall find that the rate as fixed in the shipping 
receipt, and as paid by the plaintiff, for the transportation 
of this stove, was what is designated as * owner's risk' rate, 
and that this defendant received the stove from the con- 
necting line with that understanding, and carried it at that 
rate, then the plaintiff cannot recover, unless you shall find 
that the stove was broken through the negligence of the 
defendant on its line of road." 

The instruction numbered 1, asked by the defendant^ was 
as follows: 

"The jury are instructed that if you find that the agent 
at Cambridge, Illinois, issued and delivered to the plaintiff 
a bill of lading or shipping receipt for the goods in con- 
troversy, and that he accepted the same without any objec- 
tion, that, so far as this defendant is concerned, it became 
and was the only contract of shipment, and by the accept- 
ance thereof the plaintiff became bound by the terms and 
conditions therein contained. (Modified thus:) Except so far 
as such conditions by their terms may have undertaken to 
release the railroad from the consequences of n^ligence 
and carelessness. Any arrangement or agreement entered 
into by the plaintiff and said agent before the delivery of 
said bill of lading to said plai-ntiff cannot be binding upon 
this defendant, so far as such agreement contradicted the 
terms of, or was at variance with, said bill of lading or 
shipping receipt. (Modified thus :) If the agent at Cam- 




250 NEBRASKA REPORTS. [Vol. 3C 



U. p. R. Go. V. MarstOD. 



bridge called the attention of the plaintiff to the conditions 
of the receipt, or otherwise notified the plaintiff that the 
paper he gave him contained the contract of shipment. 

" II. The jury are instructed that the mere fact that the 
plaintiff's stove was delivered in a broken condition does 
not establish the plaintiff's right to recover from the de- 
fendant, but in order to entitle the plaintiff to recover, it 
must appear that the stove was broken iCnd damaged while 
in the hands of the defendant, and by its negligence, so 
that, unless you shall find that the stove was broken on the 
defendant's line of road and through its negligence, your 
verdict must be for the defendant. (Modified thus:) If 
the stove was damaged because of the negligence or care- 
lessness of the carrier when it arrived at Kearney, the bur- 
den of proof is upon the defendant to show that the dam- 
age did not occur upon its line. 

*^III. You are instructed that where a carrier receiver 
and carries goods at a reduced rate, it is a sufficient consid- 
eration for limiting its liability, so that if you shall find 
that the rate i^aid by the plaintiff for the shipment of the 
stove was a reduced rate made for the purpose of limiting 
the liability of the carrier for damage for breakage, then 
the plaintiff, under the terms of his shipping receipt, cannot 
recover, unless you shall further find that the stove was 
broken while in the possession of this defendant, and that 
it was so broken by means of some actual negligence of 
this defendant. To hold the defendant guilty of negli- 
gence it must appear to your satisfaction that it faile<l to 
exercise ordinary care in the handling of the stove. (Mod- 
ified thus :) Yet if the stove was broken when it reached 
Kearney because of the negligence and carelessness of the 
carrier, the burden of proof is upon the defendant to show 
that the damage occurred on another line than defendant's. 

"IV. You are instructed that if you shall find that the 
plaintiff's stove was received from the connecting line by 
the defendant at Council Bluffs in the broken condition in 



r 



Vol. 30] SEPTEMBER TERM, 1890. 



251 



U. p. R. Co. T. Maraton. 



which it was when delivered at destination, then for any 
damage resulting to the plaintiff by reason of the breaking 
of said stove, this defendant would not be liable. (Modi- 
fied thus:) If, however, the stove was damaged when it 
arrived at Kearney because of the negligence and careless- 
ness of the carrier, then the burden of proof is upon the 
defendant to show that the damage did not occur upon its 
line.'' 

It does not appear from the record whether the sixth and 
seventh instructions asked were given or not, and no ex- 
ception being noted thereon, they will not be considered. 

At the request of the defendant, plaintiff Jn error, the 
court submitted to the jury the following questions for 
special findings pf fact : 

"1. On what part of the route between Cambridge and 
Kearney was the stove broken ? 

"2. Was the stove broken in any manner while in this 
defendant's jwssession? 

"3. Was the stove broken by reason of any negligence 
of the defendant?" 

With a general verdict for the plaintiff and assessing his 
damages at $40, the jury returned special findings as fol- 
lows: 

"1. On what part of the route between Cambridge and 
Kearney was the stove broken ? Answer. Broken on the 
U. P. R. R. 

*'2. Was the stove broken in any manner while in this 
defendant's possession? Answer. Yes. 

" 3. Was the stove broken by reason of any negligence 
of the defendant? Answer. Yes." 

It appears from the bill of exceptions that the stove, al- 
though one that had been used two winters, was, at the 
time it was shipped at Cambridge, Illinois, in good condi- 
tion; that there was evidence tending to prove that at the 
time it arrived at Council Bluffs, the end of the Chicago, 
Rock Island & Pacific R. R. line, it was broken or 



252 NEBRASKA REPORTS. [Vol. 30 



U. p. R. Co. T. MaFBton. 



cracked at the base, and in this condition received by the 
defendant, and tliat when it arrived at Kearney, the place 
of destination, it was also broken at the top, was rusty, 

I and covered with snow. It does not appear from the evi- 

dence, to which one of these breaks the damage to the stove, 
which destroyed its value, should have been attributed ; 
but this question is set at rest by the fact which appears of 

\ record, that upon the trial, at the request of the defendant 

and the order of the court, the jury, under the charge of a 
special bailiff, proceeded to the place where the stove was and 
viewed the same. The jury, after this view of the prop- 
erty, were, also at the request of the defendant, instructed 
to find, specially as we have seen, whether the stove was 
broken upon the line of the defendant while in its posses- 
sion and through the negligence of its servants. The 
breaking here spoken of was doubtless intended by the 
^ court and understood by the jury to be that which, under 

the evidence, caused the damage to the stove for which the 
suit was brought, and there is nothing in the case to show 
that any other breaking was considered by them in making 
up the verdict. 

Under the instruction, number 5, given at the request of 
the defendant, independent of those given at the request of 
the plaintiff, or the modifications of the others requested 
by the defendant and given as modified, I think the jury 
were justified in finding for the plaintiff, if such finding, 
as must be presumed, was confined to such damage to the 
stove as was caused after it was transferred to the defend- 
ant's cars at Council Bluffs. This, it is true, depends upon 
the correctness of the proposition contained in the fifth in- 
struction given at the request of the plaintiff: "That when 
it is proven that the goods in question were in the posses- 
sion of the defendant, and were damaged at some place on 
the route, then the burden of proof is upon the defendant 
to show that the damage occurred on some other than its 
line./' This is admitted to be the law at p. 10 of the brief 
of plaintiff in error. 



Vol. 30] SEPTEMBER TERM, 1890. 



253 



Asbby T. Greenslate. 



The question of excessive damages is not discussed for 
the reasons : (1) That the evidence on that subject is con- 
flicting ; the evidence of the plaintiflF and one other witness 
sustaining the verdict as to the amount of damages, and 
that of some of the witnesses for defendant fixing the 
damages at a much lower sum.; and (2), for the reason that 
by procuring the court to order the jury to go out under 
the charge of a bailiff and examine the stove, the defend- 
ant introduced into the case an element of evidence which 
was not, and could not be, presented to this court by bill of 
exceptions, and without which any analysis of tJie testi- 
mony as to the extent of the damage to the property must 
be incomplete. 

The questions whether the defendant company was 
bound to carry the plaintiff^s goods under the terms of the 
oral contract made between plaintiff and the agent of the 
Rock Island & Peoria R. R. at Cambridge, or whether, 
having carried them in ignorance of such oral contract, it 
was not upon notice thereof, and that plaintiff claimed that 
the goods were ship}>ed at carrier's risk, entitled to charge 
its schedule rate for such carriage over its portion of the 
route, for goods of that class carried at carrier's risk, do 
not arise in the case, and are not considered. 

The judgment of the district court is 

Affirmed. 

The other judges concur. 




W. H. ASHBY ET AL. V. DaVID GrEENSLATE ET AL. 

[Filed Sbptembbb 17, 1890.] 

Beplevin: Wife's Peopkbty: Incttmbbange by Husband. In 
an action of replevin based on an agreement of the bosband for the 
sale or incnmbering of personal property, the testimony showed 
that the wife was the owner of the property and that the bus- 




254 NEBRASKA REPORTS. [Vol. 30 



Ashby T. Greenslate. 



band had no aathority to sell or iDcamber the same. Hdd, That 
a verdict in favor of the wife for the valae of the property was 
right and should be sustained. 

Error to the district court for Gage county. Tried 
below before Broady, J. 

Griggs & Binaker, for plaintiffs in error. 

i. Jf. Pemberton, conircL 

Maxwell, J. 

This is an action of replevin brought by the plaintiflfe 
against the defendants to recover the possession of the fol- 
lowing described property, to-wit: ''Seventeen bedsteads, 
seventeen bed-springs, seventeen wool mattresses, two husk 
mattresses, seventeen washstands, twelve wooden chairs, 
and one Charter Oak range cooking stove with all its fur- 
niture, also one Mosler, Boh man & Co. fire proof safe." 

The answer is a general denial. 

On the trial of the cause the jury returned a verdict as 
follows : 

"We, the jury duly impaneled and sworn in the above 
entitled case, find the right of property and the right of 
possession at the commencement of the action of a part of 
the said property, consisti-ng of all but the safe, to be in the 
said defendants, and assess the value of the goods at $375, 
and assess defendant's damages at $10, and we, the jury, 
further find the right of property and right of possession 
of the safe in the plaintiffs." 

A motion for a new trial having been overruled, judg- 
ment was entered on the verdict. 

The plaintiffs' right to recover is based on the following 
agreement : 

"This agreement, made this January 31st, 1882, between 
David Greenslate, of the first part, and W. H. Ashby and 
Samuel Wymore, of the second part, witnesseth: That for 




Vol. 30] SEPTEMBER TERM, 1890. 255 

Ashby T. Greenslate. 

the consideration of the covenants of the said Asliby and 
said Wymore, liereinafter contained, the said Greenslate 
sells and conveys to the said Ashby and said Wymore lots 
11 and 12, in block 28, in the town of Wymore, Gage 
connty, Nebraska; and he hereby assigns the lease of the 
said premises to S. W. Jacobs to the said Ashby and 
Wymore; and said Greenslate also sells to the said Ashby 
and Wymore all the p4tf*sonal property, goods, and chattels, 
furnitures and fixtures nowjn said hotel on said premises, 
except such as belong to S. W. Jacobs, and warrants the 
title to the same; and the said Ashby and Wymore agree, 
in consideration of the performing of the foregoing agree- 
ments on the part of said Greenslate, or to his order, at 
any time after April 10, 1882, to convey lots 4, 5, 6, 7, 8, 
and 9, in block 15, in Ashby 's addition to the town of 
Wymore, Gage county, Nebraska, and also to convey to 
said Greenslate, or order, on demand, the north one-lialt 
of lot 5, in block 26, in Wymore's addition to the town 
of Wymore, Gage county, Nebraska; and said Ashby 
and Wymore are to assume the payment of the claim of 
Jones & Magee against the conveyed premises for $235, 
and the said Ashby and Wymore are to pay said Green- 
slate, on demand, at any time after ten days, $500 ; and said 
Greenslate covenants and agrees that there are no claims 
against said property except the lien of Jones & Magee 
aforesaid, and agrees that if there shall turn out to be any 
claims against said property not now mentioned, that said 
Ashby and Wymore shall pay the same out of the said 
$500 to secure themselves, and that shall be held to be the 
payment for that amount oi; said $500. 
" Witness, this 31st day of January, 1882. 

• "David Giieenslate. 



"W. H. Ashby. 
"Samuel Wymobe. 



''In presence of 

"Daniel McGuire.*' 





256 NEBRASKA REPORTS. [Vol. 30 



Curry ▼. Melcalf. 



The testimony shows bejond question that t!ie property 
in contr|)versy, although included in the above agreement, 
which was signed by David Greenslate, the huiabandj was 
nevertheless the property of his wife, and that he had no 
authority to sell or incumber the same. This Ixiing tlie 
state of the proof, no other verdict than one in favor of 
the wife could be sustained. 

It is unnecessary to examine at length the variou.s errors 
assigned. There is no materi^J error in tlie record and tiie 
judgment is 

Affirmed. 



The other judges concur. 



G. W. Curry v. H. C. Metcalf, 

[Filed Septembeb 17, 1890.] 

Heview : Evidence. Where the only error ai^aiirned is that tbe 
▼erdict and jadgment are against the weight of evideu&ef and 
the witnesses on each side having equal meaaa of knuwled^t; 
testify to a contradictory state of facts, a new trial will oot bo 
granted. 

Error to the district court for Hamilton county. Tried 
below before Norval, J, 

Agee & Sievenaoriy for plaintiff in error, 

Hainer & Kellogg, contra. 

Maxwell, J. 

This action was brought by the plaintiff xigainst tlie de- 
fendant in the district court of Hamilton county. The 
cause of action is stated in the amended petition as foUuwa; 



I 



Vol. 30] SEPTEMBER TERM, 1890. 



257 



Curry v. Metcalf. 



"The plaintiff complains of the dcfentl-antand for cause 
of action alleges, that on the 20th day of July, 1885, there 
was at the village of Hampton, Hamilton county, Ne- 
braska, an association of persons formed for the purpose of 
carrying on, and engaging in the business of operating a 
steam flouring mill at said village^ in said state, under the 
firm name of Metcalf & Grafe, and not incorporated; that 
while said association was so engaged in carrying on busi- 
ness under said firm name of Metcalf & Grafe, the said 
, plaintiff, at the instance and request of said firm of Met- 
calf & Grafe, sold and delivered to said Metcalf & Grafe 
637 bushels of wheat at the agreed price of sixty-eight cents 
per bushel^ and for which the said Metcalf & Grafe prom- 
ised to pay the plaintiff the sum of $43'M6 on the 20th day 
of August, 1885. Said plaintiff says that Metcalf & Grafe 
never paid the said sum of money, nor any part thereof. 
The plaintiff further alleges, that after said sum of money 
becan\e due and payable and. while the same was due and 

payable, to-wit, on or alx)ut the — day of , 1886, the 

said firm of Metcalf & Grafe was indebted to divers other 
persons in various sums of money, the amounts of which 
are to the plaintiff unknown; that on or about the — day 

of , 1886, and while said firm of Metcalf & Grafe 

was so indebted to the plaintiff and to various other per- 
sons, the said firm of Metcalf & Grafe sold and delivered 
all their interest in the said flouring mill, including all the 
stock on hand, goods, chattels, merchandise, notes, accounts, 
rights, and credits of every nature belonging to said Met- 
calf & Grafe, of great value, to-wit, of the value of more 
than J2,000, to the defendant, Horace C. Metcalf, who 
then and there took possession of the same, and every part 
thereof, and converted the same to his own use and bene- 
fit. And said plaintiff says that in consideration of the 
sale and delivery of said goods, chattels, wares, and mer- 
chandise, stock on hand, notes, accounts, rights, and cred- 
its as aforesaid, the said defendant promised, undertook, 
17 



258 NEBRASKA REPORTS. [Vol. 30 



Curry v. Metcalfe 



I 



and agreed to pay all the then outstanding indebto<hi<^s of 
said firm of Metcalf & Grafe, including the amount so, as 
aforesaid, due the plaintiff; but plaintiff says said defend* 
ant, notwithstanding the promises, failed and refuses to pay 
the amount so as aforesaid due the plaintiff, and has con- 
verted all of said property, riglits, and credits to his own 
use without paying the consideration tlicrcfor as Ije liad 
agreed to do, and that there is now due the plaintiff from 
said defendant the sum of $433.1 G, with interest thereon 
from the 20th day of August, 18 85." 

There is a general denial and a number of defenses set 
forth in the answer which need not \ye noticed. On tbe 
trial of the cause the court found the issues in favor of the 
defendant and dismissed the action. The sole ground of 
error in this court is that the finding and judgment are 
against the weight of evidence. 

The testimony shows that in the year 1884 H. C. Met- 
calf sold to A. J. Metcalf, E. R Grafe, S:nuuel Gnife, 
and David Grafe a grist mill for the sum of $G,000, wliicli 
mill was to be removed to Hamitton, in Hiuniiton county, 
and there erected and put in running order; tliat H, C. 
Metcalf was to and did furnish a large amount of money 
which was expended on the mill. On the 5Lh of Fehrn- 
ary, 1886, the amount owing H.C. Metcalf by A.J. Metcalf 
and the Grafes for the original price of tlic mill and 
money furnished by him and interest thereon was alxjnt 
$31,000, and the proof shows that tlie mill property at 
that time was worth only about $20,000. 

On the 5th day of February, 188(>, A, J. Metcalf and 
the Grafes sold their intercept in the mill to IL C Mctcjilf 
and he assumed certain specified debts owing by the mill to 
various customers thereof, but he denie.s thiit he assume*! 
the debt due to the plaintiff in this case, and in this he is cor- 
roborated by two witnesses who were present wlien the eon- 
tract was made. 

The plaintiff's claim is supported by the testimony of 



Vol. 30] SEPTEMBER TERM, 1890. 



259 



RIckardt t. Hene. 



two witnesses, who testify in a general manner that H. C. 
Metcalf did assume the plaintiff ^s debt. Their testimony^ 
however, is exceedingly vague and indefinite and does not 
seem to be of equal weight with that of the defendant. 

The judgment, therefore, is not against the weight of 
evidence and is 

Affirmed. 



Cobb, Ch., J., concurs. 
NoRVAL, J., did not sit. 



W. H. RicKARDS V. Simon Henb. 
[Filed Septembbb 17, 1890.] 

1. Partnership. In an action on an acooant for goodB sold and 

delivered to R. & Co., one W. If. R., before the delivery of part 
of the goodA, purchased the interest of R. in the firm bnsineas and 
aasn med his share of the debts. As testified to by one of the wit- 
nesses, '* he stepped into the shoes " of R. BM^ That the testi- 
mony shows that W. H. R., as a member of the new firm, as- 
sumed the debts of R. in the firm of R. & Co. 

2. Variance. That there wns no material variance therein as be- 

tween the case brought in the justice court and that tried in the 
district court. 

3. The evidence held to sustain the verdict 



Error to the district court for Lancaster county. Tried 
below before Field, J. 

Pound & Burr, for plaintiffs in error. 

Cornish & Tibbetta, contra, cited : Humphries v. Spaf- 
ford, 14 Neb., 488; Homan v. Steele, 18 Id., 652; Jfc- 
Keighan v. Hopkins, 19 Id., 33; Carmichael v. Dolan, 25 
Id., 335; Code, sees. 144, 145. 



260 NEBRASKA REPORTS. [Vol. 30 






Rickards t. HeDe. 



Maxwell, J. 

This action was brought by Hene against Rickards & 
Co. to recover for goods sold and delivered. 
The bill of particulars is as follows : 

"Simon Hene 

V. 

Rickards & Co., a partnershipdoing 

business under firm name in Lan- 

ca^^ter county, Neb.; William H. 

Rickards and L. C. Rickards. 

*'The plaintiff for cause of action states that plaintiff 
sold and delivered to defendant at defendant's request 
goods and merchandise in description, amount, and value 
a^ follows, to- wit: 

April 28, 1887, cigars $165 00 

June 14, 1887, cigars .' 30 00 



$195 00 
which defendants agreed to pay ; that said account has not 
been paid, nor any part thereof, and there is now due and 
payable from defendants to plaintiff upon said account the 
8um of $195 and interest thereon from the 28th day of 
June, 1887, for which amount plaintiff asks judgment, 
together with costs of action.'' 

On the trial before the justice judgment was rendered 
against L. C. Rickards and F. W. Kenzie for the sum of 
SI 95 and costs, and the action was dismissed as to W. H. 
Rickards. The cause was then taken to the district court, 
where the following amended petition was filed: 

''The plaintiff for cause of action states that Wm. H. 
Rickards and F. W. Kenzie were copartners, doing busi- 
ness in Lancaster county, state of Nebraska, under firm 
name and style of Rickards & Co., and that said co{)art- 
neiahip was so formed on or about the Ist day of July, 
1887; that prior to said time, to-wit, July 1, 1887, the said 



Vol. 30] SEPTEMBER TERM, 1890. 



261 



Rickardi v.. Hene. 



firm was composed of defendants L. C. Riekards and F. 
W. Kenzie; that on or about the dates hereafter men- 
tioned the plaintiff in this action sold and delivered to 
Riekards & Co. goods and merchandise as follows, to-wit : 

April 28, 1887, cigars $165 00 

June 14, 1887, cigars 30 00 

$196 00 
**For which said defendants agreed to pay; the said 
goods were worth the sum of $105 ; that thereafter the de- 
fendants F. W. Kenzie and W. H. Riekards succeeded to 
the business of L. C. Riekards and W. H. Riekards, and 
F. W. Kenzie assumed and agreed to pay said account for 
a valuable consideration to them in hand paid. That 
plaintiff agreed to take said defendants for said account; 
that said account has not been paid, nor any part thereof, 
and there is now due and payable from said defendants to 
plaintiff upon said account the sum of $195. and interest 
thereon from July 1, 1887, for which amount plaintiff 
&sks judgment, with costs of action.'^ 

Issues joined thereon and on the trial of the cause judg- 
ment was rendered in favor of Hene against W. H. Riek- 
ards and F. W. Kenzie for the sum of $195, and in favor 
of L. C. Riekards. 

The plaintiff in error now insists, first, that the action 
brought in the district court was not the same as that 
brought before the justice. 

There is testimony tending to show that L. C. Riekards 
and F. W. Kenzie were in partnership in business in a 
restaurant in Lincoln; that about July 1, 1887, W. H. 
Riekards purchased the interest of L. C. Riekards in the 
business, and assumed the liabilities of L. C. Riekards in 
said firm and received the credits due L. G. Riekards, a 
member of said firm. In the language of one of the wit- 
nesses, W. H. Riekards "stepped into the shoes'' of L. C, 
Riekards in the firm business. 



h^ 



!■ 




3;^ M 




30 2&: 
43 rvir, 




3ti 2ft2 
40 81W 






30 tHjti 
58 :*ia 









262 



NEBKASKA EEP0KT8. [Vol. 30 



Cheney t. Wagner. 



It is clearly shown that a part of the piirclia.se price of 
the business was the assumption by W. H* R., as a member 
of the new firm, of the debts of L. C. Rickarda. It h al^ 
shown that a part of the goods purchased from the dcfciid- 
ant in error were not delivered until after plaintiff in error 
became a member of the firm. 

There is no such variance between the case as brought 
before the justice and that brought in the district court as 
to defeat the plaintiff's right to recover. While the gooils 
were* not sold directly to the plaintiff in error, yet he as- 
sumed the payment of the same as a member of the new 
firm. The plaintiff in error assumed these debts as a piirt 
consideration for the restaurant and its business. He lia^ 
not paid the debt and therefore is liable thereon. 

Second — The evidence fully sustains the judgment of 
the district court, and there is no material error in the 
record. 

The judgment of the district court is 



Affirmed, 



The other judges concur. 



Prentiss D. Cheney v. Williasi Waqner, ■ * 

[Filed Septkmbeb 17,1890.] 

1. Error Proceedings: Motion foe New Trial: The Faii.- 

URE TO File a motion for a Dew trial in th« court b«low. wht1« 
it will prevent a review of the errors occurring at the trial, is 
no cause for striking the petition in error and tranBcript from 
the files. 

2. : No Exception is necessary to a final jndgmeiiL 

3. : Petition in Ebrob and Tbanscbipt filed within one 



year from the date of the trial will be retained aa an error cade. 



J 



Vol. 30] SEPTEMBER TERM, 1890. 



262 



Cheney t. Wagner. 



Motion to strike transcript and petition in error from 
files. 

S. P. Davidson, for the motion. 

Charles E. Magoon, contra^ 

Maxwell, J. 

Tliis is a motion to strike the petition in error and tran- 
script from the files: first, because no motion for a new- 
trial was filed in the court below ; second, no exceptions 
taken to the final judgment, and, third, because the tran- 
script was not filed " withiu the time allowed by law for 
taking and docketing appeals." 

The failure to file a motion for a new trial, while it will 
preventan examination of the proceedings occurring on the 
trial, is no ground for dismissing a case filed in tliis court, 
as the errors complained of may be apparent from the 
pleadings and judgment. Neither is the second ground of 
the motion well taken. No exception is necessary to a final 
judgment. (Mon^ow v, Srillender, 4 Neb., 375; Black v. 
Winierstein, 6 Id., 224; ParraJt v. Nellgh, 7 Id., 459; 
Jones V. Null, 9 Id., 256 ; WeUon v. Beltezore, 17 Id., 
401.) 

The third objection is unavailing. Final judgment was 
rendered on the 24th of December, 1887, and the tran- 
script and petition in error filed in this court December 13, 
1888, being within one year from the rendition of the 
judgment. As an error case it was filed in time. The 
motion is 

Overruled. 

The other judges concur. 



264 NEBRASKA REPORTS. [Vol. 30 



Wataon t. Roode. 



30 264 

i! IS Joseph Watson v. Orange A* Roob^ 



&5 463 



[Filed September 17, 1890.] 

Warranty: Pleading: PBEsuaiPTioN. Whert tm action is 
brougbt on a contract of warranty, and the petition ia silent as 
to whether the contract is in writing, there \h no presumption that 
it exists in parol, and the written warranty is admisaihle in 
eridenca at the trial. 

: Purchaser Must Rely Upon. The purchaser of per- 
sonal property must have relied npon the st^teiuent^ made bj 
the seller, as to the quality of the article sold, in order to mAln- 
tain an action for a breach of the warranty, 

: May Include Patent Defects. The Tender is liable 



for patent defects in the property sold, if it is ao stipulated in 
the warranty. 

4. : Parol Variation: Evidence. In an action for a feil- 

nre of a written warranty given on the sale of Br borse^ which 
guaranteed that the horse was registered iu the ^tud Book of 
England, heldy incompetent for the seller to prove by parol te^ti* 
mony that prior to the sale he informed the parcbaaer that the 
horse was not registered. 

6. Evidence. Plaintiflf's Exhibit B, copied into the opinion, JWd, 
not proper rebntting testimony, but should have been iDtro- 
dnced in chief. 



6. : Substitution. Before a copy of a letter can be received 

in evidence over the objection of the opposite party, it should 
be made to appear that the original is lost or destroyed. 

7. Instructions: Error: Waiver. Where no exception is take a 

to the giving of an instruction until after verdict, it la a waiver 
of the error, if any, in giving such instructioii. 

8. Witnesses : Testimony Disregarded. When the general repu- 

tation of a witness for truth and veracity in the neighborhood 
where he resides is proven bad, the jury may entirely disre^dsrd 
the testimony of such witness, except in so far as be is corrobo* 
rated by other credible testimony. 

Error to the district court for Gage county. Tried 
below before Morris, J, 



Vol. 30] SEPTEMBER TERM, 1890. 



263 



Watson T. Roode. 



R. S. Bibb, and J". JE. Bush, for plaintiff in error: 

A contract not alleged to be written will be presumed 
to be verbal. (CaiT v. Hays, 110 Ind., 408; Burrow v. 
Terre HautCy etc., Co,, 107 Id., 432; Langford v. Freeman^ 
60 Id., 46 ; Goodrich v. Johnson, 66 Id., 258 ; DoiiringUm 
V. Meyer, 8 Neb., 215; B, & M. R, Co. v, Kearney County, 
17 Id., 511, and cases cited.) A written warranty does 
not extend to defects which are visible or known to the 
vendee. (Long v. Hicks, 2 Humph. [Tenn.], 395 [41 
Am. Dec., 214]; Benjamin, Sales, 616.) As to the extent 
of warranties in cases similar to this: Richardson v. 
Broum, 1 Bing. [Eng.], 344; Biidd v, Fairmaner, 8 Id., 
48, and citations; Ardhony v. Hoisted, 37 L. T. [N. S.], 
433; Benjamin, Sales [1889 Ed.], 815, sec. 935. A 
false statement in good faith and believed to be true is not 
actionable. (8 Wait's Act. & Def, 273; Taylor v. Leith, 
26 O. St., 428.) An actionable warranty must have 
been relied upon. (Hcdliday v. Briggs, 15 Neb., 219, and 
cases; Prodcyr v. McCoid, 14 N. W. Rep. [la.], 208; Ab- 
bott, Tr. Ev., p. 349, sec. 87; Schuyler v. Russ, 2 Caines 
[N. Y.], 202; Chandler V. Lopus, 1 Smith L. C, 299- 
320 ; Nye v, Alcohol Woi'ks, 51 la., 129 ; Bennett v. Buchan, 
76 N.^Y., 386; Leland v. Stone, 10 Mass., 459; McCor- 
mick V. Kelley, 9 N. W. Rep. [Minn.], 675; Marshall v. 
Drawhorn, 27 Ga., 275») As to the instructions requested : 
the first, Greenleaf, Ev., sec. 461; Bowers v. People, 74 
111., 418 ; Gill V. Crosby, 63 Id., 190 ; Goit ieb v, Hartman, 
3 Colo., 60; the fifth; Halliday v. Briggs, 15 Neb., 219; 
McCormick v. Kelley, 9 N. W. Rep., 675, and cases; the 
ninth, Benjamin, Sales, [1889 Ed.], 817, sec. 938; Brovm 
V. Bigelow, 10 Allen [Mass.], 242 ; Mid cany v. Rosen-- 
berger, 18 Pa. St., 203; Vandewalker v. Osmer, 65 Barb. 
[N. Y.], 556. 




266 



NEBRASKA REPORTS. [Vol. 30 



Watson T. Roode. 



Griggs & Rinaker, and Hazlett & BcUea, contra: 

A .written warranty is to be construed most strongly 
against the maker of it. (Benjamin, Sales, p. 611.) The 
instrument in this case, fairly interpreted, insures the horse 
as valuable for the stud. (Benjamin, Sales, sec. 613, note; 
Little V. Woodworth, 8 Neb., 283; Patrick v. Leach, Id,, 
536.) The injury was one whose effect was internal and 
hidden, and plaintiff is not chargeable with notice thei-eof, 
{^hewalter v. Ford, 34 Miss., 417; Fislier v. PoUard, 2 
Head [Tenn.], 314; Thompson v. Boils, 8 Mo., 710; Cal- 
laioay r. Jones, 19 Ga., 277; Benjamin, Sales, p. 611.) A 
warrantor may bind himself against visible and kuosvti de- 
fects. (Pinney r. AndruSy 41 Vt, 631 ; First National Bank 
V. Grindsiaff, 46 lud., 158 ; Fletclier v. Young, 69 Ga,, 591.1 

NORVAL, J. 

This action was commenced by Orange A. Roode to re- 
cover damages for an alleged breach of warranty given by 
Joseph Watson on the sale by him to Roode of a stiillion* 
The amended petition alleges *'that on the 18th day of 
November, 1884, the defendant, as an inducement to 
plaintiff to purchase from him a certain imported black 
stallion called "Knight of the Shires," for the sum of 
$2,000, wan anted the said horse to be a foal-getter, and 
sound in every respect except an enlargement of said 
horse's bag, which was caused by a kick, and represented 
the said horse as being then and there sound; tlnit the 
title to the same was clear, and that the 'said horse wa§ 
registered in the Stud Book of England, as well as his 
sire and dam, and would furnish the secretary's receipt for 
such pedigree; and plaintiff, relying upon said warranty 
and statements, purchased said horse from the defendant 
for the sum of $2,000, then duly paid. 

"Plaintiff avers that said horse at tlie time of said sale 



X 



Vol. 30] SEPTEMBER TERM, 1890. 



267 



Watson T. Roode. 



was unsound in this: that the enlargement of said horse's 
bag was hernia at the time of said sale, and in no way was 
he free from difiiculty or trouble, and was of no value 
whatever; that one testicle of said horse was mashed and 
completely ruined, and was of no benefit to the said horse, 
and on account of said hernia, mashed testicle, and ure- 
thral gleet, all of which the said horse had at the time of the 
purchase, combined to cause the death of said horse, to- 
wit, on the 16th day of June, 1886. 

" Plaintiff avers that the pedigree of said horse was not 
as warranted by the defendant, and that the said defendant 
never has furnished the secretary's receipt for such pedi- 
gree, as agreed to have been done on the part of the de- 
fendant. 

''Plaintiff avers that said horse was not a good foal- 
getter, and by reason of above premises plaintiff has sus- 
tained damages in the sum of $5,000." 

The answer of the defendant admits the sale of the 
horse to the plaintiff, and denies all the other allegations 
of the amended petition. 

On the trial of the case to a jury a verdict was returned 
for the plaintiff, assessing his damages at $1,476.60. The 
defendant filed a motion for a new trial, containing thirty- 
two assignments of error, which motion being overruled, 
judgment was rendered upon the verdict. Eight of the 
assignments are based upon the rulings of the trial court 
upon the admission and exclusion of testimony. The 
plaintiff upon the trial offered in evidence the following 
instrument : 

" DiLLER, Neb., Nov., 1884. 

"In consideration of $2,000, receipt whereof is hereby 
acknowledged, I have this day sold my imported black Eng- 
lish draft horse, * Knight of the Shires,' to O. A. Roode, 
and hereby agree to warrant and defend the title to said 
horse from all claims whatsoever, and I also guarantee 
said horse to be a foal-getter ; and I further state that the 



268 



NEBRASKA REPORTS. [Vol. 30 



Watson T. Roode. 



enlargement of said horse's bag was caused by a kick and 
in no way troubles him; and I further guarantee the said 
horse to be registered in the Stud Book of England, v^^o 
his dam as well as his sire, and will furntsli tlie feeeretary's 
receipt for such pedigree. It is further agreed that if said 
O. A. Roode is unable to pay a note bearing even date 
with this agreement, from the proceeds of the finst yesxv's 
services of said horse, he shall have the privlloge of an- 
other year's time on $200. Joseph Watson." 

The defendant objected to the receiving in evidence of 
this paper, as incompetent, irrelevant, immaterial, and in- 
admissible under the pleadings, which objections wore 
overruled, and the defendant took an exception. It will 
be observed that it is nowhere alleged in the amended pe- 
tition, that the warranty upon which the action is foimded 
was in writing, nor is a copy of the instrument attached 
to the pleading. 

Jt is claimed by the plaintiff in error that, as the plead- 
ing does not aver that the warranty was in writing, the 
presumption is that it existed in parol, and tJiat it was 
incompetent to prove a written warrantJ^ The Indiana 
cases cited by counsel sustain that view, but they are be* 
lieved to be contrary to the weight of authoiiLy. Tiie rule 
as laid down in the decisions and in the works on pleadings 
is, that in an action upon a written contract it is not 
absolutely necessary that the plaintiff should allege In liis 
pleading that the contract is in writing, and that un the 
trial under such a pleading the writing is liilnussibJe in 
evidence. (Maxwell, Pleading and Practice, 91>; iStepheu, 
Pleading, 33 ; Abbott's Trial Ev., 522; Tntiie v. Hanm- 
gan, 4 Daly, 92 ; TutUe v, Hannegan, 54 N. Y., OSd; 
Marston v. Swett, 66 Id., 206.) 

Where the contract is one that the law requires to be in 
writing, and the pleading based thereon is silent as to 
whether it is in writing or not, the law presumis t!mt a 
written contract was intended; but where the uuntmct Im 




Vol. 30] SEPTEMBER TERM, 1890. 



209 



Watsou V. Roode. 



valid, whether it be in writing or in parol, there is no sucli 
presumption. Under the allegations of the petition in 
this case the written warranty was competent evidence. 
The defendant had an undoubted right, had he moved at 
the proper time, to have required the plaintiff to make his 
petition more certain and specific by stating that the war- 
i*anty was a written one^ and by attaching a copy thereof 
to the petition. 

The plaintiff on rebuttal introduced in evidence the fol- 
lowing paper, signed by the defendant, and marked " Ex- 
hibit B:" 

"Beatrice, Neb., April 24, 1885. 
"To whom it may concern: 

I, Joseph Watson, upon honor state that I have known 
the imported horse * Knight of the Shires' since he was 
imported in 1882, by Mr. B. Holmes, of Moline, 111., and 
know him to be a good and sure foal-getter, as compared 
with the best of horses, and any reports to the contrary are 
without foundation, and malicious. His colt owned by 
Mr. Thomas McLaughlin, Moline, 111., took first pre- 
mium at the Fairbury, 111., fair, and I will deposit ten 
dollars with any man that he can show at the Gage county 
fair five of best colts sired by any horse in the county. 

"Joseph Watson.'* 

The defendant objected to the receiving of this paper in 
evidence, as being immaterial, irrelevant, and not proper 
rebutting testimony. This objection was overruled. No 
testimony had been introduced by the defendant that made 
this paper competent rebutting testimony. It is urged by 
the defendant that as the writing was made by the de- 
fendant and delivered to the plaintiff several months after 
the purchase of the horse, it therefore could not be relied 
upon by the plaintiff as a warranty of the horse, for the 
obvious reason that no new consideration passed for the 
giving •of this writing. Had this paper been made the 
basis or foundation of the suit, the position of the de- 








270 NEBRASKA REPORTS. [Vol. 30 



Watson V. Boode. 



fendant woiild be well taken, for the rule niidoiibte<!!y is 
that where the warranty of an article is given after the 
sale has boon fully made and the ])roperty delivered to the 
purchaser, it must be based upon a new consideration. 
(Benjamin on Sales, sec. 930; Morehouse v, Cornslock^ 42 
Wis., 626.) But this paper was not claimed by the plaint- 
iff to be the warranty declared upon, nor was it rci*i%"ed 
in evidence for that purpose. 

It was contended by tiie defendant on the trial in the 
lower court that the meaning of the term ^^ foal -getter,'^ as 
used by the defendant in the written warranty ^iven at the 
time of the sale, was, that the horse was capable of pro* 
ducing a foal, and did not mean, and was not so iimlerstood 
by the parties at the time, that the horse was a sure foal- 
getter. The sole purpose and object in iiitrodmiiig this 
paper in evidence waff to show what the defendant meant 
by the term *' foal-getter,^' and to show what const met ion 
the defendant had given the term used in the warranty. It 
should have been given in evidence in chief and not on 
rebuttal. The horse was purchased for the stud, as the 
defendant at the time fully understood, and it is not rea- 
sonable to suppose that either party to the agreement at the 
time expected that the purchaser was paying $2,000 for a 
horse that was totally unfit for the purpose for which he 
was bought. The horse, prior to the sale, had receive*! a 
kick, which caused an enlargement of the bag. The de- 
fendant by his warranty guaranteed that this injury in no 
way troubled him. In other words, that it did not injure 
him as a " foal -getter." The warranty, when read in the 
light of the construction subsequently placed thereon by 
the defendant, and in view of the purpose for which the 
horse was purchased, and the price paid, is in effect a 
guaranty that the injury caused by the kick did not unfit 
the horse for the stud and that he was capable of produc- 
ing the usual percentage of foals. The testimon^* fully 
establishes that the injury unfitted the horse for breeiling 



Vol. 30] SEPTEMBER TERM, 1890. 



271 



Wataon t. Roode. 



purposes, and that he siibseqiu?ntly died on the 16th day of 
June, 1886, from the effects of the injury he had received 
prior to the sale to the plaintiff. During the season of 
1885 the horse was bred to some eighty mares, and out of 
the numl)er only fifteen marcs were with foal, and but nine 
of these had living colts. The testimony likewise shows 
that the usual percentage of foals is two-thirds of the 
number of mnros covered. 

The defendant insists that 'the defect in the horse was 
plain and noticeable at the time of the sale; that it was of 
such a character as to require the plaintiff to take notice of 
its extent and eflFect, and thatthe injury being plain and visi- 
ble to the buyer, the warranty did not cover such defect. It 
is true that the evidence discloses that the blemish on 
the horse was apparent, and was observed by the plaintiff 
prior to the sale, yet it was impossible for him to tell 
whether the defect was of such a character as to injure the 
horse as a foal-getter. The defendant by his contract war- 
ranted against this hidden imperfection, and he cannot 
escape liability because the injury was one that lefl an ex- 
ternal blemish, plainly visible. While a general war- 
ranty does not extend to imperfections known to both 
parties, yet it is equally well settled that the seller may 
bind himself as against patent defects, if the warranty is 
so worded. {Pinney v. AndruSy 41 Vt, 631 ; Bank v, 
Grindstaffy 45 Ind., 158.) The contract of warranty in the 
case at bar expressly stipulate that ''the enlargement of 
the horse's bag in no way troubled him," and is a guaranty 
against the e^ctent of the injury. The defendant having by 
his contract expressly warranted against the defects of the 
horse, he cannot relieve himself of liability by showing 
that the plaintiff was aware at the time of the sale that 
the horse was injured. 

It was admitted by the defendant on the trial that the 
horse was not registered in the Stud Book of England. 
That the horse was warranted to be so registered is not de- 



272 NEBRASKA REPORTS. [Vol. 30 



Walsoa V. Roode. 



nied. The defendant on tl^e trial sought to escape the 
force and effect of this clause of his written warranty, by at- 
tempting to show that at the time of the sale be iuforoied 
the plaintiff that the horse was not registered, Upou the 
cross-examination of the plaintiff Roode, he was asked by 
the defendant's counsel this question. "At the time tlie 
writing was made (being the warranty in question) I 
will ask you to state to the jury whether or not Watson 
didn^t tell you that the horse was not registered in the Stud 
Book of England?" The plaintiff's objection to the 
witness answering the question was sustained and the 
answer was not taken. This ruling of the court is now 
assigned for error. The testimony sought to be elicitedj had 
it been received, would have contradicted and varied the 
written agreement of the parties. It is too well estab- 
lished to require the citation of authorities, that p;irol testi* 
mony cannot be received to contradict or vary a written 
contract. It is claimed by the defendant that the purpose 
of this testimony was to show that the defendant had 
knowledge that the horse was not registeretlj and that the 
defendant could not have relied upon the statement in tiie 
warranty that the horse was registered, and therefore no 
claim for damages can be based upon the fact that the 
horse was unregistered. While it is true that in a suit on 
a breach of warranty against defects in the article sold the 
seller may prove that the defects were of such a character 
that the purchaser must have known of their existence, or 
that the buyer knew of them prior to the ^ale, for the pur- 
pose of showing that the plaintiff did not I'ely upon the 
warranty, yet it does not follow that it is eomi>eteiit to 
prove that the seller, during the negotiations leading up to 
the sale, madie representations to the purchaser directly 
contradictory of his written warranty subsequently made. 
No case has been cited by counsel for plaintiff in error 
holding the doctrine contended for by him in this case, nor 
have we been able to find such a case reported in the books. 



'k 



Vol. 30] SEPTEMBER TERM, 1890. 



273 



Waison v. Roode. 



To permit such testimony to be received would violate the 
familiar rule of evidence above referred to. There was, 
therefore, no error in sustaining the plaintiff's objection to 
the question propounded. 

After the defendant had closed his case the plaintiff put 
in evidence, over the objection of the defendant, what pur- 
ported to be a copy of a letter written by the plaintiff to 
the defendant on the 24th day of February, 1886. Among 
the objections made by the defendant at the time, were 
that no foundation had been laid for its introduction, and 
that no notice was served upon the defendant or his attor- 
neys to produce the original. No foundation was laid for 
the introduction of the copy. It does not appear that the 
original could not have been produced at the trial, nor was 
it shown that the paper offered was a correct copy of the 
original. 

Numerous other errors are assigned in the brief of coun- 
sel for the plaintiff in error, based upon the rulings of the 
trial court upon the admission of testimony, which we 
will not take the time to notice, as many of them are dis- 
posed of by what we h|ive said in this opinion, and the 
other errors are not likely to occur upon a retrial of the 
case. 

Nine assignments in the petition in error are predicated 
upon the giving of certain instructions to the jury, but as 
they are not referred to in the brief of plaintiff in error, 
these assignments are abandoned. The record, however, 
discloses that no exception was taken to any paragraph of 
the charge of the court until after the verdict was re- 
turned into court. A party cannot wait until after he 
learns that an unfavorable verdict has been received, and 
then except to the charge of the court, and assign for error 
the giving of such instructions. An exception must be 
taken when the instructions are given, in order to have 
the same considered by the reviewing court. 

The defendant requested twelve instructions to be given 
18 



r 



3r 



274 NEBRASKA REPORTS. [Voi,. 30 



Watson V. Roode. 



to the jury, all of which were refused, Tiiese requests 
are quite lengthy and it is not deemed importunt that thej 
should all be copied into the opinion. The fi rst and twelfUi 
requests correctly stated the rule, that the burden of proof 
was upon the plaintiff. The substance of th^se requests 
is contained in the third paragraph of the charge given 
by the court on it« own motion, and no error was cgmoiit- 
ted in refusing them. 

The second request is as follows : 

"The court instructs the jury that if they believe from the 
evidence, that the plaintiff Orange A. Ruode is a person of 
bad reputation for truth and veracity in the neighborhood 
where he resides, then, as a matter of law^ this fact tends to 
discredit his testimony, and the jury may entirely disregard 
it, except in so far as he is corroborated by other cretiible 
testimony, or by facts and circumstances proved ou the 
trial." 

The defendant introduced several witnesses who testified 
that the plaintiff's reputation for truth and veracity in the 
neighborhood where he -lived was bad* In view of this 
testimony the jury should have been told what weight 
should be given to the plaintiff's testimony* The requ^t 
contained a correct statement of the law, and as it was not 
coyered by the instructions given it was error to refuse it 

The substance of the third request is that the warranty 
made by the defendant on the 27th day of April, 1885, 
afler the contract of sale was concluded, hem^ without con- 
sideration, is not binding on the defendant. There is in 
the record no testimony tending to show that a warranty 
was made on that date. Doubtless the defendant meant 
Exhibit B, that was made on April 24. As lieretofore 
stated, this exhibit was in no way relied upon as a warranty^ 
or made the foundation of the action, and the request wa^ 
not applicable to the testimony. 

Request No. 4 was rightly refused. It, in effect, stated 
that if the horse was capable of producing a single foal, 



Vol. 30] SEPTEMBER TERM, 1890. 



275 



Watson T. Roode. 



then there was no breach of the warranty upon that point. 
The defendant was not entitled to so favorable an instruc- 
tion. 

The defendant's fifth prayer reads "That although the 
defendant warranted in writing the stallion ^Knight of the 
Shires' to be registered in the Stud Book of England, also 
his dam as well as sire, and that defendant would furnish 
the secretary's receipt for such pedigree, still if the jury 
further believe from the evidence that at said time the de- 
fendant informed plaintiff that said horse was not registered, 
but simply eligible to registry, and that said plaintiff knew 
that said horse was not registered and did not rely on said 
warranty in making his purchase of the said horse, the 
plaintiff could not recover for a breach of said warranty, 
as in law it would be no warranty unless the plaintiff 
relied upon it in making the purchase." No testimony was 
given that the defendant informed the plaintiff that the 
horse was not registered. Such testimony was excluded, 
and, we think, rightly so. 

The sixth and ninth instructions refused stated, in sub- 
stance, that defects or blemishes which are known to the 
purchaser must be exprc-sly warranted against to make 
the seller liable for such defects. . We find no fault with 
the statement of the law in these instructions. The plaint- 
iff did not seek to recover for defects that were visible at 
the time of the purchase, and that were not expressly cov- 
ered by the terms of the warranty. The plaintiff claimed 
damages because the horse was unregistered, and on account 
of the injury which the horse had received prior to the 
sale. Both of these matters were expressly covered by the 
warranty. The eleventh request covers the question of 
reliance by the purchaser upon the warranty. It is as 
follows: 

**11. The court further instructs the jury, to entitle the 
plaintiff to recover in the suit, it is not only necessary for 
the jury to find from the evidence that the plaintiff war- 



r 



276 



NEBRASKA REPORTS. [Voi>. 30 



O. & N. P. R. Co. T. Janecek, 



ranted the animal in question, as allegal in ihe jictition, 
but it must further appear from the evidence tiiat the 
plaintiff relied upon said warranty in making the purt*lia>e 
of the horse, and was induced to make said piircliasc hy 
said warranty; and it must also appear from the evidence 
that the horse was not as warranted at the time of the 
sale; and unless all of these facts appear from the evidence, 
the jury should find for the defendant.'' 

The law undoubtedly is, and has so been declared by this 
court, that the purchaser of personal proi:>erty must ha%*e 
relied upon the statements of the seller as to the quality of 
the article sold in order to make the representatiotis a 
warranty. {Little v. Woodworth, 8 Neb., 281 ; HaUiduy v, 
BriggSy 15 Id., 219.) This instruction stated the law cor- 
rectly, and not being covered by any of the instructions 
given should not have been refused. 

For the errors pointed out the judgment of the district 
court is reversed and the cause remanded for further pro* 
ceedings. 

Reversed and remanded. 



The other judges concur. 



I 3Q trre 



ao 27t5 

53 H&t! 

i so arfll 

58 24} 



Omaha & N. P. R. Co. v. John Janecek, 

[Filed Septembbb 17, 1890.] 

Railroads: Abutting Property: Special Damages. Wli^^ » 
railroad company constructs its road in front of n person's traet 
of land, and in close proximity to bis reaidence, hcid, in an ac- 
tion to recover damages by tbe owner against tbe railroad cotn^ 
pany, that be can recover for any damages he may have sasUined 
in respect to bis property not suffered in comnsoti by the public 
generally. Injuries resulting from smoke, soot, and ciuders 
from pasbing engines are proper elements ol' damage^ 



Vol. 30] SEPTEMBER TERM, 1890. 



277 



O. & N. 1*. R. Co. V. Janccek. 



Error to the district court for Colfax county, 
below before Marshall, J. 



Tried 



W. S. Russell, and Marquett & Deweeae, for plaintiff in 
error. 

Phelps & Sabiriy contra. 

Cases cited by counsel are in the main referred to in 
opinion. 

NORVAL, J. 

The defendant in error brought this action in the district 
court of Colfax county to recover damages for the depre- 
ciation in value of his property, caused by the construction 
and operation of the Omaha & North Platte railroad in 
front of his premises. The case was tried to the court, 
who rendered a judgment for the plaintiff for the sum of 
$1,500. 

It is fully established by the testimony, that the railroad 
company purchased blocks 2 and 15 in the town of Schuy- 
ler, and constructed its main track and switches thereon ; 
that on the east part of block 15 it erected an engine 
house, a turntable, and a coal shed. At the time of the 
location of defendant's road the plaintiff was the owner of 
block 16, w-hich is immediately east of block 15, being 
separated by Atlantic street. The plaintiff also owns between 
three and four acres of land adjoining said block 16 on the 
south. The plaintiff's residence is located on the west 
part of said block 16, and within eighty feet of the engine 
house. No part of Atlantic street was taken by the rail- 
road company for any purpose. All the evidence shows 
that in moving trains over the main and side tracks, and 
at the roundiioiise, noises are made by the ringing of the 
bells, and sounding of the whistles; that the engines of the 
defendant throw soot, smoke, and cinders upon plaintiff's 



278 NEBRASKA REPORXa [Vol. 30 



0. <k N. p. R. Co. V. Jonecek. 



property, and that the passing of trains sh:ik€?3 phnntiO's 
house, which damaged and depreciated the value of his 
property. The evidence establishes that t lie property lias 
been depreciated in value in the sum of $1,500, by rea- 
son of the construction and operation of the railroud in 
such close proximity to plaintiflF's premises. 

The plaintiff's right to recover is based upon section 21, 
article 1, constitution of this state, which provides tliat 
"The property of no person shall be taken or damage<1 
for public use without just compensation therefor/' It lias 
become the settled law of this state, that under this provi- 
sion of our constitution it is not necessary that any part of 
an individual's property should be actually taken for pub- 
lic use in order to entitle him to compensation* If the 
property has been depreciated in value by reason of the 
public improvement, which the owner has sjiecially sus- 
tained, and which is not common to the public at large, a 
recovery may be had. In the case at bar the plainiifi's 
property is depreciated in value by the noise caused by the 
operation of the defendant's engines and cars in front of 
his premises and in close proximity to his house^ by the 
casting of soot, smoke, and cinders upon his property, and 
by the vibration of his house. The plaintitY lias sustiiined 
special damages by the construction and operation of the 
railroad near his premises, in excess of that sustained by 
the community at large. Smoke, soot, and ciudurs are 
not thrown upon property situate a few blocks from 
the road, nor does the moving of trains jar buildings that 
are distant from the track. The fact that the property of 
a dozen or more owners in the town is materially injured 
by the location of the defendant's roads, does not affect tJie 
plaintiff's right to compensation for the depreciation in 
value of his property. If, in consequence of the building 
of a railroad into a town, new towns spring up which di- 
vert trade from the old town, and property therein dcjire- 
ciates in value, for such depreciation no recovery cau be 



Vol. 30] SEPTEMBER TERM, 1890. 



279 



O. & N. P. R. Co. V. Janecek. 



had. It is an injury or damage each property holder has 
sustained in common with the public generally. 

It is claimed that the district court allowed this kind of 
damages in this case, and none other. True, there is testi- 
mony in the record before us tending to show that prop- 
erty generally in the town of Schuyler, since the construc- 
tion of the road, has depreciated in value, but this falling 
off in value was not taken into consideration by the court 
in assessing damages in this case* The evidence fails to 
disclose that any such general depreciation had taken place 
immediately after the construction of the defendant's road, 
and that is the date the witness estimates the value of the 
property, and not at the date of the trial. Had the value 
of plaintiff's property at the time of the trial been given, 
then there would have been just grounds for complaint. 

A similar question was considered in the case of Blakeley 
V. C, K. & N. R, Co., 25 Neb., 207, where it was held 
that it was competent to take into consideration noise 
and confusion incident to the operation of trains, in esti- 
mating the value of real estate after the construction of the 
road. 

The a, K. & N. R. Co. v. Hazels, 26 Neb., 364, was 
an action to recover damages alleged to have been sus- 
tained by Hazels by the reason of the construction of a 
railroad in close proximity to his property. Smoke, dust, 
and soot from engines, the ringing of bells, sounding of 
whistles, and noise of the trains depreciated the value of 
his property. It was held in that case that all elements 
caused by the construction of the road which tend to di- 
minish the value of property could be taken into consid- 
eration. 

This view is supported by Railroad Co, v. Combs, 10 
Bush., 382; Railway Co, v, Fddins, 60 Tex., 656; Lahr 
V. Railway Co., 104 N. Y., 268; Baltimore & P. R, Co. v. 
Fifth Baptist ChurcJi, 108 U. S., 317 ; Cogswell v. N. F., 
iV; B; <fr S i2. i2. Cb., 8 N. E. Rep., 537; iT. a *£. i?. Co. r. 






r 




280 



NEBRASKA REPORTS. [Vol. 30 



Myers v. Bealor. 



KregclOy 6 Pac. Rep., 15; Drucker v. Manhattan E. Co,, 12 
N. E. Rep., 668; C. <t W. I. B. Co. v. Ape^, 106 III., 51 L 

In Columbus, H. V. & T. R. Co. v. Gardner, 45 O. St,, 
316, the supreme court of Oliio, in considering tlie question 
involved in the case at bar, says: '*WhiIt^ it njiiy be con- 
ceded that in estimating the plaintiflF's damages tlje jury 
would not be permitted to take into account the cunse- 
quences of the operation of the railroad which were com- 
mon to the community at large, no sound reason ejtbt^ for 
excluding from their consideration such elements of incon- 
venience, annoyance, danger, and loss as result to the prop* 
erty, its use and enjoyment, from the smoke, noises, and 
sparks of fire occasioned by running of locomotives and 
cars along the track in front of the same, if it be shown 
that these caused special injury and depreuiatioii to the 
property." 

The rule established by the decisions of tliis coiirtj and 
by the recent adjudicated cases of most of tlie otlier states, is 
to the effect that if the property of an individual has been 
depreciated in value by reason of smoke, soot, and cinilers 
being thrown upon his property by passing engiuc^, he may 
recover the damages thus sustained. 

The judgment of the district court ia 



The other judges concur. 



, 30 2ao\ 

I 34 600 



James Myers v. John Beaier- 

[Filed September 17, 1890 J 

1. Pleading. When the facts coDBtitnting a ca^se of action or de* 
fense are stated in a pleading as a matt-er of infortniitLoti and 
belief, and not positively, an objection to this mode of stntt^meut 
cannot be raised by demnrrer, nor by objecting to tbe introduc- 



Vol. 30] SEPTEMBER TERM, 1890. 



281 



Myert r. Bealer. 



tion of testimony at the trial. The objection can only be taken 
• by motion. (Sloutenburg v. Lyhrand et ai.^ 13 O. St., 228.) 

2. Negotiable Instruments: Equitable Defense: Notice. 

Where a purchaser of negotiable paper, before maturity, takes it 
with knowledge of lacts which impeach its validity between 
antecedent parties, or with a belief based upon circumstances 
brought to his knowledge before the purchase that the maker 
had a defense to the note, such purchaser is not an innocent 
holder, and the p.iper is subject to the defenses existing between 
the maker and payee. 

3. Evidence : Substitution. Before the contents of a written in- 

strniuentcan be establislied by oral testimony, the loss of the 
instrument must be accounted for. 



Error to the district court for Gage county. Tried 
below before Broady, J. 

R. W. Sabiriy for plaintiff in error, cited : Maxwell, PL & 
Pr. [2d Ed.], 71 ; Harden v. R. Co., 4 Neb., 523 ; Hanson v. 
Lehmany 18 Id., 564; Sch. Dist, v. Shoemaker , 5 Id., 36; 
Dillon V, Russell y Id., 484; Smith v. Columbus State Bank, 
9 Id., 31; Dobbins v.Obeitnanj 17 Id., 163; Johnson v. 
Way, 27 O. St., 374; SmUh v. Livingston^ 111 Mass., 345 ; 
Murray v. Lardner, 2 Wall. [U. S.], 110; KnowUon v. 
Parsons, 10 Neb., 502 ; Organ Co. v. Boyle, Id., 409. 

Penibe)'ton & Bush, contra, cited: Stovtenburg v. I/y- 
brand, 13 O. St., 228 ; Bennett v. Leeds Mfg. Co., 110 N. 
Y., 150 ; Maxwell, PI. & Pr. [2d Ed.], 355 ; Pom., Rem- 
edies, sec. 552 and note ; Treadwell v. Comers, 1 1 O. St., 
187; Tod V. Wick, 36 Id., 370; Lay v. Wissman, 36 la., 
305; Murray V. Beckwilh, 48 111., 391; Dobbins v. Ober^ 
man, 17 Neb., 163, 

NORVAL, J. 

This action was brought upon a promissory note of $164, 
given by John Bealer, payable to the order of the Stand- 
ard Machine Company and by it indorsed to the plaintiff. 



St: 



282 



NEBRASKA REPORTS. [Vor„ 30 



Myers v. Bealer. 



I 

I 



The answer filed by the defendaDt in tlie lower court tulmiU 
the execution of the note, and alleges that it \\iu given for 
the purchase price of a mill and grinder of tlic Stimdani 
Machine Company's manufacture; that at the timo of the 
purchase, and before the execution of the note^ tlie company 
warranted the said mill and grinder ; that the same vrns 
durable and would do the best of work ; tijutthc defendant, 
relying upon said representation, puiohiiseil said mill and 
grinder of said machine company, and made and delivt^red 
the note in question upon the sole coa^jderatioti of said 
warranty. 

The defendant further alleges that the said mill and 
grinder was not durable and would not do tlio best kind of 
work, which the said machine company well knew at the 
time of the sale of the same ; that the said mill and grinder 
was of no value whatever, and the defendant ha^ received 
no consideration for said note. 

The defendant further answering said petition a11eg€8| 
upon information and belief, that the pkiintlt!' purchased 
said note after the same had become due, ami with full 
knowledge of defendant's rights in said matter, and witli 
full knowledge of the warranty and the breach of the 
same. All the allegations of the answer were denied by 
the reply. Upon a trial of the issues joined, to a jury^n 
verdict was returned for the defendant. 

At the commencement of the trial the plaintiff objected 
to the defendant introducing any te^ltmony because the 
answer did not state suflBcient facts to cx^)nstilute a defense. 
The objection being overruled, an exception was noted and 
the testimony was received. The ruling is made tlje basis 
of the seventh assignment in the petition in error, but be- 
ing the first error in point of time of occur reuce, it will be 
first noticed. The point is made, that the ailegntlons of 
the answer relating to the purchase of the note by the 
plaintiff are stated as from information and belief and not 
positively. This objection goes to the form of the answer 



w 



Vol. 30] SEPTEMBER TERM, 1890. 283 



Myers v. Bealer. 



and not to the substance and can be reached only by motion. 
Doubtless the plaintiff upon motion might have had 
stricken from the answer, as redundant, the words " upon 
information and belief." Had the objectionable words 
been omitted, the allegations of the answer would have 
been complete. The usual and proper mode is for the 
party pleading to state the facts constituting his cause of 
action or* defense positively, yet if the pleading should 
state that the allegations are made from belief, it will not 
be sufficient grounds for demurrer or the exclusion of evi- 
dence at the trial. (Stoufenburg v, Lybrand et al.y 13 O. St., 
228; Treadwdlv, Commissioners^ 11 Id., 183.) 

The next point discussed in the brief is, that the verdict 
is not sustained by sufficient evidence and is contrary to 
law. It is fully established by the testimony that the note 
sued upon was given for a corn sheller and grinder bought 
of the payee named in the note, and that the machine was 
warranted to the defendant. There is evidence tending to 
show that the warranty has failed. The material question 
is, Did the plaintiff purchase the note before maturity in 
the usual course of business, without notice of the equities 
of the defendant? The note was given September the 2d, 
1884, and payable eight months after date. The plaintiff 
testified that he bought the note of the Standard Machine 
Company on the 20th day of October, 1884, paying there- 
for $130. He claims to have made the payment by a draft; 
drawn by himself as cashier of the First Commercial 
Bank of Odell, Nebraska, on the First National Bank of 
New York city. The draft was put in evidence at the trial. 
A copy is in the bill of exceptions, containing the indorse- 
ment of the Standard Machine Company and the Cleveland 
National Bank of Cleveland, Ohio. The plaintiff further 
testified that when he bought the note he did not know 
what it was given for, or that there was any defense to 
the note. 

The defendant testified that he had a conversation with 



^r: 




284 



NEBRASKA REPORTS. [Vol. 3C 



Myen t. !l«al€r. 



the plaintiff in February, after the note was given^ while 
the note was in the plaintiff ^s possession^ and thfit he totd 
Myers that the machine was worth la'^s, mid that the plaint- 
iff replied, "he hadn't a dolhir in the note^ that it was 
there for collection." The defendant further testified that 
he called upon the plaintiff about the note sliortly after it 
fell due, and in the conversation Rfyers said he didn't own 
it ; only had it for collection. 

Q. Do you know what he done with the note then, with 
reference to whether he retained it there or sent it back to 
the machine company? 

A. The next I heard of it when I went into the office 
and asked about it about the time it was due, he said 
" the company ordered it out of his hands," and Sahin no- 
tified me he had it for colled ion. i carae to Beatrice t€ 
see him. 

J. K. Langdon testified that in the fall of 1884, or early 
in 1885, the plaintiff gave him the note to sell, and told 
him that the Standard Mad line Com|mny was the owner 
of the note; that while the witoess liad the note in his pos- 
session, he learned that Bealer was not satisfied with the 
working of the machine, which iuformation he states he 
conveyed to the plaintiff. 

James Myers, the plaintiff, admitted, when upon the wit- 
ness stand, that the defendant, after the maturity of the 
note, called at the bank, of wfuch the pliaintiff was cashier, 
and that plaintiff told the di^teiulant that when he gave 
Langdon the note, it belonge<l to the St^indaixl Maeliiue 
Company, and that he bongiit the note wliile it was yet in 
Langdon's hands. The plaintiff denies that he told the 
defendant that he did not own the note. 

If it be true that the plaijitiff informed the defendant 
in February, before the maturity ol" the note, that he held 
it for collection and did not own it^ and that the defendant 
then informed the plaintiff that the note was given for a 
grinder and mill and that it was worthless, then if the 



Vol. 30] SEPTEMBER TERM, 1890. 



285 



Mycn ▼. Bealer. 



plaintiff ever purchased the note, he did so with knowledge 
of the defense existing against it. The testimony justified 
the jury in finding that the plaintiff was not an innocent 
holder for value, and that the machine was worthless. If 
the plaintiff actually purchased the note in October, before 
it fell due, as he contends, he was very unfortunate in 
stating to the defendant afterwards that '4ie did not have 
a dollar in the note ; that it was there for collection." 

It is claimed that the court erred in giving paragraphs 1 
and 2 of the instructions requested by the defendant. They 
are as follows : 

" 1. If the jury believe from the evidence that the plaint- 
iff, before he purchased the note sued on in this action, 
knew, or, as an ordinarily prudent man, had reason to be- 
lieve from circumstances brought to his knowledge before 
he purchased it, that the defendant had, or claimed to have, 
a defense to the note, or to some part of it, then the plaint- 
iff is not an innocent holder of said note. 

"2. The jury are further instructed, that if they believe 
from the evidence that the plaintiff is not an innocent 
holder of the note sued on in this action, as explained in 
these instructions, then the defendant is entitled to set up 
the same defense to it that he could have set up if suit had 
been brought by the payee of said note." 

It is claimed by the plaintiff in error that the first in- 
struction in effect informed the jury that if the plaintiff 
purchased the note under circumstances which would excite 
suspicion in the mind of a prudent man, he was not an in- 
nocent holder. If the language of the instruction is capable 
of such a construction, it should not have been given, for, 
as said by the court in Murray v. Lardner, 2 Wall., 110 : 
" Suspicion of defect of title, or the knowledge of circum- 
stances which would excite such suspicion in the mind of a 
prudent man, or gross neglect on the part of the taker at 
the time of the transfer, will not defeat his title. That re- 
sult can be produced only by bad faith on his part." It 



286 NEBRASKA REPORTS. [Vol. 30 



Myers v. Bealer. 



may be observed that the element of suspicion is not in- 
cluded in the instruction. On the other haud^ the jury 
were told, in eflfect, that to impeach the plaintiff's title the 
circumstances brought to the plaintiff's kno\vle<lge before 
he purchased the note must have been of such a character 
as to cause a prudent man to believe that the defendant had 
or claimed a defense to the note. The law is when a pur- 
chaser of negotiable paper takes it under cireu instances 
showing bad faith, or without knowledge that the maker 
has or claims a defense to the paper, the holder is not an 
innocent purchaser. {Dobbins v. Oberman^ 17 Neb*, 163 j 
Johnson v. Way, 27 O. St., 374.) 

It is contended that there is no evidence in the record 
tending to show that the plaintiff had any knowledge, or 
reason to believe from circumstances brought to his knowl- 
edge before he purchased the note, of any warranty, or of 
any breach of the same. Counsel for plaintiff in error 
assume that it is conclusively proven that the note was 
purchased October 20, 1884. While the plaintiff so testifiea, 
he is contradicted, as we have already shown by the testi- 
mony of the defendant. Besides, the plaintiff's testimony 
as to the date of the purchase is very much weakened by 
his admission made to the defendant afler the maturity of 
the note, that he then held it for collection. The plaintiff 
admits that at that time he knew that the defendant claimed 
to have a defense against the note. We find sufficient 
testimony in the bill of exceptions upon which to base the 
first instruction. The second instruction was properly 
given. The rule undoubtedly is that when a suit is brought 
upon a note by one not an innocent holder, the maker can 
urge the same defense thereto that he could have made if 
the suit had been brought by the payee. This proposi- 
tion is so firmly settled as not to require the citation of 
authorities. 

It is conceded that the warranty made upon the machine, 
for which the note in suit was given, was in writing. The 




Vol. 30] SEPTEMBER TERM, 1890. 



287 



Myen v. Bealer. 



defendant was permitted to testify as to the contents of this 
writing. This is made the basis of the 8th assignment of 
error. The question is, Was the loss of the instrument 
properly accounted for, so as to make competent oral testi- 
mony of its contents? Tlie record shows that on the trial of 
the canse in the county court the warranty was introduced 
in evidence, and after the trial it was left in the custody of 
the county judge. To account for the loss of the papers 
J. N. Bush was called and sworn, and testified as follows: 
" In regard to the warranty, I would state that it was in- 
troduced in evidence as an exhibit there on the other trial, 
and I have been unable, since the trial of the case in the 
county, to find any exhibits in the case — I mean the papers 
in the lower court; had the county judge search for them ; 
I have been through all the papers there and have been 
unable to find any papers or exhibits we had. The other 
papers I found in Sabin's office ; our exhibits I have been 
unable to find." 

The foregoing is all the testimony in the case explaining 
the failure to produce the original warranty. It does not 
appear that the paper is not in existence. It was left with 
the county judge and he was not called to testify what 
search, if any, he had made for the missing paper. 

For all that api)ears from this record, it is where the 
county judge can place his hands upon it at any time. 
The person in whose custody the paper was left should 
have been called to establish that it was lost, before receiv- 
ing oral testimony of its contents. For this error the judg- 
ment of the district court is reversed and the cause re- 
manded for a new trial. 



Reversed and bemanded. 



The other Judges concur. 



288 



NEBRASKA REPORTS. [Vol. 30 



German Ins. Co. ▼. Heidiik. 



30 288 

40 62y 

■ 41 29 , 

30 288] 

42 214! 



d44 


390 


30 


288 


50 


387 


54 


«25 


55 


151 


56 


264 



2. 



German Ins. Co. v. Heiduk & Skiboivski. 

[Filed Septbmbeb 17, 1890.] 

Insurance: Additional Policies: CoNiiiTTONs Fokbiddixq: 
Agent Not Authobizbd to Waivk. Tb© policy in «oit pro- 
Tides that the insured most obtain the writt«ti consent of th» 
company for all additional insurance on the property iusnred, 
or he shall not recover in case of loss; and further provides thai 
" the nse of general terms, or anything lem than a diistinet epeeific 
agreement, clearly expressed and indor^f^d on the polic^t And 
signed by a duly authorized agent of the eonipLiuy, should not 
be construed as a waiver of any printed condition of the policy, 
and no notice to, and no consent or agreement by any locfll 
agent should affect any condition of the policy, nnUl such con- 
sent or agreement is indorsed thereon/' Tlie injured snbse^ 
quently procured further insurance, of which the local agent 
was notified, and orally consented thereto, but such agi eeinent 
was not indorsed ou the policy. The property was destroyed hy 
fire. Held, That the notice to, and the ora^ consent of, the IocaI 
agent did not bind the company, and that the additional insur- 
ance obtained without the written consent alipulated in the pol- 
icy rendered the policy void. 

: : Loss: Measube of Daaiaoes. In an action on 

a policy containing a provision that in cAse of other policies the 
insured shall recover no greater proportion of the los^ than tlif- 
sum insured by the policy bears to whole nmonnt of the poli- 
cies, it was admitted that there was other insurance on the prop- 
erty amounting to $906,^ and there was before the jury testitnony 
tending to show that the entire loss wa^ less than the whole 
amount of insurance. Held^ That it w^is error to initrtict the 
jury that the measure of damages was the market value of the 
goods destroyed. 



Error to the district court for Cuming couuty. 
below before Norris, J. 



Trial 



Dickey & Heiskellf Uriah B'runer^ and J, C Orawford, 
for plaintiff in error: 

The insured were bound to know that additional in- 
surance in violation of the terms of the contract would 



Vol.. 30] SEPTEMBER TERM, 1890. 



289 



German Ins. Co. v. Hciduk. 



prevent a recovery. (Havens v. Ins. Co,, 111 Ind., 90; 
Clec/ivcr V. Ins. Co., 32 N. W. Eep. [Mich.], 660; Cook v. 
Auawo<;a, G6 la., 427; Russell v. Ins. Co., 42 N. W. 
Rep. [la.], 654; Clarke v. R. Co., 5 Neb., 314.) Any vio- 
lation of lawful conditions imposed by the insurer, releases 
him from liability. (Wood v. Ins. Co., 13 Conn., 533; 
Worcester V, Ins. Co., 11 Cush. [Mass.], 265.) The powers 
of an agent may be limited, and those who deal with him, 
knowing of such limitations, must observe them. (Thomas 
V. Osboi-a, 19 How. [U. S.], 22 ; Payne v. Potter, 9 la., 549; 
Baxter v. Lamont, 60 111., 237; Morris v. Watson, 15 
Minn., 212*; A^. E. Mige. Co. v. Hendrickson, 13 Neb., 165; 
Hankins v. Ins. Co., 70 Wis., 1; Engebreison v. Ins. Co., 
58 Id., 301; Knndson v. Ins. Co., 43 N. W. Rep. [Wis.], 
951; Hartford Ins. Co. v. Wilcox, 57 111., 182; Martin v. 
Famswortli, 49 N. Y., 555; Wilson v. Wilson, 26 Pa. St , 
393.) Agent and insured are bound by the terms of the pol- 
icy and the former can waive them only in the mode pro- 
vided. (Enos V. Ins. Co., 67 Cal, 621 ; Ins. Co. v. Wilk- 
inson, 13 Wall. [U. S.], 222; Boer v. Ins. Co., 4 Bush. 
[Ky.], 242; Stevenson v. Ins. Co., 14 Ins. Law Journal, 
65; Phoenix Ins. Co. v. 8teve)ison, 78 Ky., 150; Shuggart 
V. Ins. Co., 55 Cal , 408; Silverberg v. Ins. Co., 67 Cal, 
36; Story, Agency [7th Ed.], sec. 76.) Notice to an agent 
without authority to waive conditions, is not notice to the 
company. (Russell v. Ins. Co., 42 N. W. Rep. [la.], 665.) 
A modification of a policy, to be binding, must be supported 
by a new consideration. (Bishop v. Busse, 69 III., 403; 
Hewitt V. Brown, 21 Minn., 163; McOrann v. R. Co., 
29 Pa. St., 82; Titiis v. R. Co., 8 Vroom [N. J.], 98; 
Low V. Forbes, 18 111., 568 ; Haynes v. Fuller, 40 Me., 161.) 
Additional insurance increases the risk (Hutchinson v. Ins. 
Co., 21 Mo., 97; Obermeyer v. Ins. Co., 43 Id., 573); even 
if no loss results (Gardiner v. Ins. Co., 38 Me., 439; J/e/*- 
riam v. Ins. Co., 21 Pick. [Mass.], 162; Lyman v. Ins. 
Co., 14 Allen [Mass.], 329; Mead v. Ins. Co., 7 N. Y., 
19 



290 NEBRASKA REPORTS. [Vol. 30 



German Ins. Co. y. Heiduk. 



1^ 



530; Glm V. Lei-rs, 8 W. H. & G. [Eng.], 607). la 
Westchester Lis. Co. v. Earle, cited by clei^iHlant in error, 
the policy made no such limitation upon the agent^d author- 
ity as in this case. 

T. 31. Franse, E. It, Valentiney and M. McLaughlin, 
contra : 

The agent had authority to waive omlly the a)iiditions 
as to further insurance. ( Westchester Im, Co. t\ Eark^ 33 
Mich., 143 ; Kitclim v. Ins. Co., 23 N. W. Rep. [Midi.], 616 ; 
Silverberg v. Ins. Co., 67 Cal., 36 ; Schoencf* v. Im. Co., 7 
N. W. Rep., 544; American Cent. Lis, Co, v. McLana- 
Hian, 11 Kan., 533; Can^oU v. Ins. Co,, 40 Barb. [N. Y,], 
292.) Notice to the agent was notice to the comjiany, 
{Brandup v. Ins. Co., 7 N. W. Rep. [Minn.], 735, and ci- 
tations ; Westchester Ins. Co. v. Earle^ mpra ; Havens v. 
Lis. Co. J 111 Ind., 90, and citations; Indiana Inn. fb. v. 
Capeharty 108 Id., 270; Bartlett v. ImJ'o.^AX N, W. Rep, 
[la.], 601.) An insurance agent, as 4llstiiigui:slial from 
an insurance broker, is the general agent of the coin|>aiiy, 
and may waive conditions, notwithstaiHJiiig a provision 
in the policy to the contrary. (Mechem, Agency, sec, 93L 
and numerous authorities there cited.) If tiie coni[>tuiy or 
its agent had actual knowledge of additional insurance aod 
made no objection, it cannot afterward.^ be insitiitad that 
such notice and assent thereto should have been in writing. 
{Thompson v. Ins. Co., 52 Mo., 469; Haijward t?. Ins, Ck, 
Id., 181; Vkle v. Ins. Co., 26 la,, 9; Van Borks tr. Im. 
Co., 8 Bush. [Ky.], 133; Peck v. Ins. Co., 22 Conn., 584; 
Ilalton V. Ins. Co., 16 Up. Can., 316; N<dlonal Ins. (h. 
V. Crane, 16 Md., 260; Warner v. Ins. Co., 14 Wis., 345; 
3Iin€r v. Ins. Co., 27 Id., 693; KUlips v. Ins. Co., 28 Id., 
472; Bochen v. Ins. Co., 35 N. Y., 131, and dtutions; 
Cobb V. Ins, Co., 11 Kan., 93; Can-ugi m Ins. Co., 40 
Ga., 135.) 




Vol. 30] SEPTEMBER TERM, 1890. 291 



German Ids. Co. v. Heiduk. 



' NORVAL J. 

This is an action upon a policy of insurance issued by 
the defendant June 1, 1887, for one year. The insurance 
was for $i,500 upon the plaintiffs' stock of clothing and 
gents' furnishing goods, situated at West Point, Nebraska. 
On the 26th day of November, 1887, while said policy 
was in full force, the property was totally destroyed by 
fire. The petition is in the usual form. The policy sued 
on is attached to the petition and contains this written 
clause: "$400, other insurance concurrent herewith only 
permitted." The defendant by its answer admits the exe- 
cution and delivery of the policy, and denies all other alle- 
gations of the petition. The defendant, as a second defense^ 
alleges "that said policy of insurance, described in the peti- 
tion, is in the regular form of policies issued by this de- 
fendant, and that the plaintiiFs accepted and received said 
policy with a full knowledge of the contents thereof. 

"•Defendant further avers that said policy contains a 
certain provision in the following words and figures, 
to-wit: '$400, other insurance concurrent herewith only 
permitted;' and defendant further avers that on or about 
the 1st day of June, A. D. 1887, these plaintiffs placed 
the full amount of said concurrent insurance allowed by 
the terms of the policy issued by this defendant, with the 
Germania Insurance Company, which company issued to 
these plaintiffs their certain policy of insurance for the sum 
of $400 on said stock, and $100 on fixtures in said store, 
which said policy was in full force and effect from the date 
thereof to the time and date of said loss by said fire. 

"Defendant further avers that said policy of insurance 
issued by this defendant contains a certain clause in the 
following words, to-wit : * The insured, under this policy, 
must obtain consent of this company for all additional 
insurance or policies, valid or invalid, made or taken 
before or after the issue of this policy, on the property 



292 



NEBRASKA REPORTS. [Vol. 30 



fl' 






German lus*. Co. r. Heiduk. 



hereby in.surcd, and for all changes that may l>c tiunlojii 
such additional insurance, and have such consrnt indorsed 
on this policy, otherwise the insured shall not rrtx>ver m 
case of loss. 

"Defendant further avers that said plaintiffs, with full 
knowledge of the said printed terms, and also uf clje.<[K'cific 
written terms of said policy, purposely and knowingly, and 
without the knowledge or consent of this dt'ferKlant com- 
pany, and in violation of said express terms antl proviMons, 
did, on the 25th day of October, A. D. 1887, make fippli- 
cation to the Orient Insurance Company, of Harttonl, 
Conn., for a policy of insurance for the sum of §500 on the 
stock of goods insured by the policy issued by tliis defend- 
ant, and described in the petition, and that on said 2ath 
day of October, A. D. 1887, said Orient Insurance Com- 
pany issued and delivered to said plaintiffs their certain 
policy, No. 302,988, for the sum of $500, insuring their 
stock of goods mentioned in defendant's policy, and de- 
scribed in the petition, against loss or damage hy fire, for 
one year from the date thereof. Said policy so i^^iicd by 
the Orient Insurance Company was in full force and etrcct 
at the time said fire occurred, to- wit, on the 2Gih day of 
November, A. D. 1887. 

"Defendant further avers that the said plaint itTs, by 
virtue of the foregoing allegations and averments, released 
this defendant from all obligations and liability under the 
terms of said policy, No. 528, and the same was void from 
and after October 25, A. D. 1887." 

The plaintiffs filed the following reply: 

" 1. The plaintiffs, for reply to defendant's answer in the 
above action, deny each and every allegation of new matter 
contained therein. 

"2. The plaintiffs allege that the defendant had notice 
of the additional insurance complained of in its said 
answer, immediately prior to the issuing of said additional 
policy of insurance, and the defendant, with full knowledge 



Vol. 80] SEPTEMBER TERM, 1890. 293 



Gcnnan Ins. Co. t. Heiduk. 



of all the facts, gave to the plaintiffs its unqualified con- 
sent. 

'' 3. That immediately after said policy was issued and 
delivered to the plaintiffs, they applied to defendant's agent, 
who issued, signed, and delivered the policy upon which 
this suit was brought, and requested him to indorse the 
amount of said additional insurance upon said policy, and 
said agent then and there assured the plaintiffs that such in-* 
dorsement was not necessary, and that the policy was all 
right, and as binding upon the defendant company as 
though the additional insurance were indorsed thereon. 

,"4. The defendant is estopped to dispute its liability 
upon said policy of insurance, or to claim a forfeiture of 
said policy because of the facts set out in paragraphs 2 
and 3 of this reply. '^ 

To the new matter stated in the reply the defendant 
interposed a general demurrer, which was overruled by the 
court. Upon a jury trial the plaintiffs recovered a judg- 
ment for $1,596.26. 

The record discloses that the policy in suit was issued 
by one D. J. Drebert, the local agent of the defendant at 
West Point, and that at the same time the plaintiffs took 
out a policy in the Germania Insurance Company for $400 
on the same property, and that subsequently, on the 25th 
day of October, 1887, the Orient Insurance Company, of 
Hartford, Conn., at the plaintiffs' request, issued its policy 
for the sum of $500 on the stock of goods insured by the 
policy in suit. The plaintiffs, over the defendant's objec- 
tions, introduced testimony tending to prove that prior to 
the issuing of the policy by the Orient company, Drebert, 
the local agent of the defendant, verbally consented to such 
additional insurance, and that after said last policy was 
written, the plaintiffs exhibited the policy issued by the 
defendant, to Drebert, and requested him to indorse the 
amount of the additional insurance thereon, and that 
Drebert replied that *'that makes no difference; the policy 
is good, it need not be changed." 



294 



NEBRASKA KEPORTS. fVoL. 30 



German Ins. Co. v. Heiduk. 




The testimony introduced by the derjiidant tends to 
establish that neither the defendant mw Drebert had any 
knowledge that such additional insnranfje liud been wntteii 
until after the fire, and did not verbally or otherwise con- 
sent to such insurance. 

On the question of waiver by the defendant of the con- 
ditions of the policy relating to additional iiisunmcc^ the 
court on its own motion gave the follow! iii^ inslriictKms ; 

"7. In the policy sued on is a provision pi^nulttiiig 
$400 other concurrent insurance, and the conditiau tluii 
the insurer must obtain the consent of the company for all 
additional insurance taken before or after the issue of said 
policy, on the property thereby insuipd, and have such 
consent indorsed on the policy, otherwise the insured ^Imll 
not recover in case of loss. The court iuHtnicts you that 
if you find from the evidence that tlie jvlniiititt':^, fifter 
receiving the policy from the defendant, and bei'ore the 
loss in question occurred, obtained other insurance" in addi- 
tion to the $400 concurrent insurance permitted by said 
policy upon the property, which had not expired at the 
time of the fire, and that no notice thereof was given 
defendant, its agents or oflRcers, before tlie fi re, or to which 
the company did not consent, then plaint iflV policy would 
be void, and he cannot recover in this suit, and your 
verdict must be for the defendant. 

"8. If you believe from the evidence that Daniel Dr<^ 
bert was the agent of the defendant at West Poiut, for 
taking applications for insurance and for writing, is^suing, 
and delivering policies for the defeudant company^ and 
that he was notified by the plaintiffs of the additional in- 
surance placed on plaintiff's' property, and that he did not 
object to the same, or suggest any breach of the condition 
of the original policy in consequence thereof, then the de- 
fendant is estopped from now setting up such additional 
insurance in avoidance of its policy. 

"9. If you believe from the evidence that prior to the 



Vol.. 30] SEPTEMBER TERM, 18D0. 295 



German Tiis. Co. t. Ileir'.uk. 



time of taking of the additional insurance the plaintill* no- 
tifie<l the said Daniel Drobertof his intention to take addi- 
tional insurance, and the said Daniel Drebert made no 
objections thereto, but on the contrary told him it was all 
right, and gave his consent thereto; and if you find from 
the testimony that immediately after the plaintiff had pro- 
cured the additional insurance, he went to the said Daniel 
Drebert and informe<l him that lie had taken such addi- 
tional insurance and requested the said Daniel Drebert to 
indorse the amount of the same on the defendant's policy, 
and that the said Daniel Drebert thereupon told the plaint- 
iffs that it was unnecessary to indorse the amount of said 
additional insurance on said policy, that it was all right 
without said indoi'sement, or words to that effect, and that 
neither the said agent nor any one else on behalf of tlie de- 
fendant objecteil to said additional insurance, or notified 
the plaintiffs that such additional insurance, without the 
consent of the company being indorsed on the i)oIicy, 
would render or had rendered the policy void, then the de- 
fendant must be deemed to have waived the condition in 
the policy regarding such additional insurance." 

To the giving of each of these instructions the defend- 
ant took an exception. The main points in this case are 
those raised by the demurrer to the reply, the admission 
of testimony to establish a waiver of the terms of the pol- 
icy by the defendant, and the instructions given by the 
trial court on that branch of the case. The questions thus 
presented are : Did Drebert, the local agent of the defend- 
ant, have any authority to verbally waive the provisions 
of the policy relating to additional insurance, and did tke 
notice to such agent estop the defendant after the loss 
from setting up as a defense the taking of additional insur- 
ance? 

This court has frequently decided that the conditions 
inserted for the benefit of the company in a policy of in- 
surance may be waived by it. {Ins. Co. v, Lcinsing, 15 



206 NEBRASKA REPORTS. [Vol. 30 



German lus. Co. v. Heiduk. 



Neb., 494; Schoneman v, Ins. Q)., 16 Id., 404; Nebraska 
& Iowa Ins. Co. v. Christiensen, 29 Neb., 572.) We 
adhere to these decisions. In each of those cases, how- 
evier, the waiver of the terms of the policy was made by 
an agent who had authority to so bind the company. 
In this case it is contended that the policy in express 
terms limits and restricts the authority of the local agent 
in waiving the conditions of the policy. In addition to 
the provisions of the policy set out in the defendant's answer, 
it contains this clause : *' The use of general terms or any- 
thing less than a distinct specific agreement, clearly ex- 
pressed and indorsed on this policy and signed by a duly 
authorized agent of this company, shall not be construed as 
a waiver of any printed condition or restriction herein, and 
no notice to, and no consent or agreement by, any local 
agent shall affect any condition of this policy until such 
consent or agreement is indorsed hereon in writing." 

It is insisted by the plaintiffs that, notwithstanding the 
express terms of the policy, Drebert had power to consent 
by parol to the subsequent insurance. Such authority is 
not to be found in the printed conditions of the policy. 
On the contrary, the parties expressly stipulate that " no 
notice to, and consent or agreement by, any local ageiU shall 
affect any condition of the policy until such consent or 
agreement is indorsed hereon in writing." This lan- 
guage is clearly a direct limitation upon the power of the 
local agent to bind the company after the delivering of the 
policy. He was only authorized to waive, change, or mod- 
ify tlie policy in a specified manner. The parties agreed 
that no notice to the local agent should affect the conditions 
of the policy. The notice given to the agent of the pro- 
curing of other insurance did not therefore bind the com- 
pany. To hold that it did would be to ignore the plain 
contract of the parties. Had the local agent conveyed the 
information to the managing officer of the company, doubt- 
less the defendant would have been bound, for unqnestion- 



Vol. 30] SEPTEMBER TERM, 1890. 297 



German Ins. Co. v. Heiduk. 



ably an oflScer or agent of the defendant whose powers are 
not limited can waive the terms of the policy without in- 
dorsing the same thereon in writing. It cannot be ques- 
tioned^ however, that an insurance company, as well as an 
individual, may limit or restrict the powers of its agent, and 
when such restrictions are known to the person dealing 
with the agent, the company is only bound by the acts of 
the agent performed within the scope of the authority con- 
ferred. (Havens v. Home Ins. Co., Ill Ind., 90; Cleaver 
V. Traders Ins. Co., 32 N. W. Rep. [Mich.], 660; Rus- 
sell V. Cedar Rapids Ins. Co., 42 Id. [la.], 654; Hartford 
Ins. Co. V. WUoox, 57 111., 182; Hankins v. Ins. Co., 70 
Wis., 1 ; Knudson v. Hekla Ins. Co., 43 N. W. Rep., 954 ; 
Cleaver v. Traders Ins. Co., 39 Id., 571; Merserau v. 
Phosnix Mut. Life Ins. Co., 66 N. Y., 274 ; Oladding et al. v. 
Ins. Co., 4 Pac. Rep., 764; Enos v. Sun Ins. Co., 8 Id., 379.) 
In Cleaver v. Traders Ins. Co., 32 N. W. Rep., 660, 
the policy provided that '* if the insured should procure 
any other or further insurance upon the property insured 
without the consent of the comi)any written upon the pol- 
icy, the policy shall become void." The policy also con- 
tained this provision: "It is further understood, and 
made a part of the contract, that the agent of this company 
lias no authority to waive, modify, or strike from the policy 
any of its printed conditions; * * * nor, in case this policy 
shall become void by reason of the violation of any of its 
conditions, * * * has the agent power to revive the 
same." After the delivery of the policy, on representation 
of the agent issuing the same that it would be all right, 
additional insurance was placed on the property. The con- 
sent of the company to the taking of the additional insur- 
ance was not indorsed on the policy. The supreme court 
of Michigan held that the defendant was not estopped to 
deny its liability. It is stated in the opinion of Mr. Jus- 
tice Morse that "When the policy of insurance, as in this 
case, contains an express limitation upon the power of the 



298 NEBRASKA EEPORTS. fV^OL. 30 



German Ins. Co. v. Heiduk. 

__t 



agent, such agent has no legal right to contract as agent of ■ 
the company with the insured, so as to change the condi- 
tions of the policy, or dispense with the performance of 
any essential requisite contained therein, either by parol 
or writing, and the holder of the policy is estopped, by ac- 
cepting the policy, from setting up or relying upon powers 
of tlie agent in opposition to limitations and restrictions in 
the policy." 

In Knudson v. Hekla Fire Ins. Co., 43 N. W. Rep., 
954, the policy contained the usual stipulation found in 
insurance policies, requiring the assured, in case of loss, 
to render to the company proofs of loss within thirty days. 
No proofs of loss were ever furnished the company, the 
insured claiming that the same were waived by parol. The 
policy also provided that "Agents have no authority to 
make any verbal agreement whatever for or on behalf of 
this company, and this company will not be liable for any 
such agreement except such as sliall be indorsed, signed; 
and dated in writing on this policy.'* Tlie court held that 
the verbal waiver of a condition in the policy, by the local 
agent, who issued the same, is void. 

A policy of insurance contained a provision that the 
property insured should not be incumbered without the 
written consent of the secretary of the insurance conjpany. 
Afterwards the insured mortgaged the property, the local 
agent agreeing to waive the conditions of the policy pro- 
hibiting such mortgage. Suit was brought upon the policy, 
and the supreme court of Wisconsin held that the attempted 
waiver by the local agent did not bind the company. 
{Hankins v. Rockford Ins. Co.y supra.) 

We have carefully examined the cases cited by the de- 
fendants in error, and find that while many of theui are 
based upon policies containing some of the provisions found 
in the policy in this case, yet the policies in none of the 
cases cited in brief of counsel contain an express stipula- 
tion limiting the legal effect of a notice given by the 



Vol. 30] SEPTEMBER TERM, 1890. 299 



Germiin Ins. Ck>. v. Ileiduk. 



iasured to the local agent. One of the strongest cases 
cited by plaintiffs is Gans v, St, Paul. F, & M. Ins, Co., 
43 Wis., 108. That policy contained a stipulation that it 
should be void if the building should become unoccupied 
without the consent of the company indorsed on the policy. 
The agent who issued the policy was informed before the 
fire that the building was unoccupied, and knew that it 
remained so until it burned. The company refused to pay 
the loss, because no consent was indorsed on the policy. 
The policy also contained these conditions : 

"The use of general terms, or anything less than a dis- 
tinct specific agreement, clearly expres^sed and indorsed on 
this policy, shall not be construed as a waiver of any 
printed or written condition or restriction therein. 

" It is further understood, and made a part of this con- 
tract, that the agent of this company has no authority to 
waive, modify, or strike from this policy any of its printed 
conditions, nor is his assent to an increase of risk binding 
upon the company until the same is indorsed in writing on 
the policy, and the increase premium paid." 

The court held that notice to the agent was notice to the 
company. The court in the opinion says : 

"We find no stipulation in the contract limiting or 
attempting to limit the legal effect of noticB to the agent. 
The limitations therein contained go only to the acts of 
the agent. He may not vary, modify, or strike out the 
printed conditions of the policy, nor assent to an increase 
of the risk, unless the same is indorsed on the policy and 
the increased premium paid. * * * But there is no 
stipulation that notice to the agent of a fact relating to the 
policy shall not operate as notice to the company. What 
would be the legal effect of such a stipulation we are not 
called upon to determine, and do not determine." 

The difference betv;ecn the provisions of the policy in 
the Wisconsin case and those in the case before us is ap- 
parent. In our case it is expressly provided that no notice 



n 



300 NEBRASKA REPORTS. [Vol. 30 

German Ins. Co. ▼. Heiduk. 

to, and no consent or agreement of any local agent should 
affect any condition in the policy until such consent or 
agreement is indorsed thereon. This language limits the 
effect of a notice given to the local agen^, and of his au- 
thority to waive any of the terms of the policy. 

In this case it is not shown that the company had any 
notice that the local agent had been notified of the addi- 
tional insurance. The testimony offered by plaintiffs to 
prove that Drebert, the local agent^ consented by parol to 
the additional insurance before it was written, and was no- 
tified afterwards that it had been written, was insufficient 
to bind the defendant without showing that such facts were 
brought to the knowledge of the company. It follows, 
from the views already expressed, that instructions 7, 8, 
and 9, given by the court on its own motion^ should not 
have been given. 

It is believed that the second paragraph of the reply, 
though not a model pleading, alleges sufficient facts to 
avoid the defense stated in the answer. The substance of 
that part of the reply is, that prior to the taking out of the 
additional insurance the defendant had notice thereof and 
consented thereto, with a full knowledge of all the facts. 
The language used does not suggest that the local agent 
gave such cons^t. The fair construction of the all^ation 
is, that the proper officer or agent of the defendant was no- 
tified. The evidence, however, fails to sustain the allega- 
tion. The other averments of the reply, as to what was- 
said by Drebert after the additional insurance was written, 
do not state suflRcient facts to constitute a waiver of the 
conditions of the policy. 

It is urged that the reply states facts inconsistent with 
the averments of the petition. The answer pleaded a 
breach on the part of the plaintiffs of certain stipulations 
contained in the policy. The reply alleged matters show- 
ing a waiver of these conditions by the company. The 
plaintiffs' pleadings are consistent. 



Vol. 30] SEPTEMBER TERM, 1890. 301 

Oerman Ins. Co. v. Hciduk. 

The plaintiffs, upon the trial, introduced testimony to 
show that tlic value of the property insured at the time of 
the fire was at least $3,000. To show that the vahie at 
the time was not so large the defendant put in evidence 
the proofs of loss made by the plaintiffs to the Orient In- 
surance Company, in which they placed the total value of 
the property insured at the time of the fire at $1,664.78. 

The court in the 13th paragraph of the charge instructed 
the jury that "the measure of damages is the fair market 
value of the goods destroyed at the time and place of the 
fire." This is the correct rule where the loss equals or ex- 
ceeds the total amount of insurance upon the property de- 
stroyed. The insurance on the property in all three of the 
companies amounted to $2,400. The policy in suit pro- 
vides that "in case of any other policies, whether made 
prior or subsequent to the date of this policy, the insured 
shall be entitled to recover of this company no greater 
proportion of the loss sustained than the sum hereby bears 
to the whole amount of the policies thereon." Under the 
evidence, the jury could have found that the total value 
of the property destroyed was only $1,564.78, which was 
much less than the entire insurance. The jury should 
therefore have been instructed that if they found that the 
loss was less than the whole insurance, the plaintiffs were 
not entitled to recover a greater part of the loss than the 
sum covered by the policy in suit bears to the total amount 
of insurance. 

A point was made on the trial in the lower court that 
the plaintiffs were not the owners of the policy at the com- 
mencement of the suit. On the question of the assign- 
ment of the policy the evidence was conflicting. The 
instructions given at the defendant's request fairly sub- 
mitted this branch of the case to the jury. 

The other errors complained of are either disposed of 
by the views herein stated, or are such as will not be likely 
to arise on a new trial of the case, and therefore will not be 
noticed in this opinion. 



^ 



302 NEBEASKA REPORTS. [\'ol. 30 



Normaa v. Waite. 



Tlie judgment of the district court is reversed and the 
case I'euianded for further proceedings. 

REVEr^SED AND REMANDED. 

The other judges concur. 




F. R. Norman, appellee, v. Daniel M. Waite et al., 

APPELLANTS. 
[Filed Skptemdeb 18, 1890.] 

1. Negotiable Instruments: Tbaksfer: Defenses: Notice. 

Where, in an action upon a proiiiiasury note bought bj an in- 
dorsee, the defendant in tiie answer alleged that the note was 
made and delivered to the payee to be held by him as security 
and guaranty Hint one W., ^vliom the payee had agreed, for the 
consideraliuu of $1,500, to take into equal partnership in his 
business, the same to be paid out of W.'s share of the net pro- 
ceeds of the business, would remain in said partnership and faith- 
lully perform his duly as such partner until said sum of $1,500 
should be fully paid by the application of W.'s share of the net 
proceeds, and that said W. had faithfully performed, etc.. and 
alleging notice of such defense to the plaintiff at the time of 
the purchase of said note ; upon the pleadings and evidence, 
hddy that the plaintiff could not recover without proof that he 
both bought and paid for the note before the receipt by him of 
notice of such defense. 

2. Conveyance. The paper writing, purporting to be an article of 

agreement, set out in the opinion, held, not to convey title to 
the land described. 



: Written Contract: Novation. The existence of a 

written contract or instrument, duly executed between the par- 
ties to an action and delivered, does not prevent the party appar- 
ently bound thereby from pleading and proving that contem- 
poraneously with the execution and delivery of such contract or 
instmment the parties had entered into a distinct oral agreement 
which constitutes a condition on which the performance of the 
written contract or agreement is to depend. 



r 



Vol. 30] SEPTEMBER TERM, 1890. 303 



Norman v. Waite. 



Appkal from the district court for Hamilton county. 
Heard below before NoRVAL, J. 

J. H, Smithy and Agee & Slevenson, for appellants, cited : 
Jjitnk V. LuckoWy 36 N. W. Rep., 434 ; Whiting v. Steci', 
16 Pac. Rep. [Cal.], 134; Thudium v.Yost, 11 Atl. Rep. 
[Pa.], 436 ; Wolff v. Malliews, 12 S. W. Rep. [Mo.], 211 ; 
CoUingwood v. Merchants Bank, 15 Neb., 121; Howard 
V. StraUon, 64 Cal., 487; Dorringtonv. Mhimck, 15 Xeb., 
403; Austin v. Pickler, 4 S. E. Rep., 35 ; Michela v. Olm- 
stead, 14 Fed. Rep., 219 ; Skaaraas v. Finnegan, 16 N. W. 
Rep.,^456; Westenian v. Krumwelde, 15 Id., 255; Cull- 
inans o. Lindsay, 6 Atl. Rep., 332; Callender v. Drabelle, 
36 N. \V. Rep. [la.], 240 ; Hooker v. HanimlU, 7 Xeb., 
235; Williams v. Towasend, 31 N. Y., 416; Dakinv. Will- 
iamut, 17 Wend. [N. Y.], 447; Fletcher v. Dauglierty, 13 
Xeb., 2J4; Lowenstein v. Fhelan, 17 Id., 430; Harper v. 
Fly, 56 III., 179; Palmer v. Pafmei' 36 Mich., 487; Pope 
V. Hooper, 6 Xeb., 178; Bank v. Peck, 8 Kan., 660; 
Round V, Donnd, 5 Id., 56; Stanclifi v. Norton, 11 Id., 
218; Bennett v. Stevenson, 63 N. Y., 508 ; Ellwood v. Wol- 
coU, 4 Pac. Rep., 1066; 2 Jones, Mortgages, sees., 1181, 
1186 ; Dart v. Sherwood, 7 Wis., 446; Daniel, Xeg. Inst., 
166, 789, 795, 835; Stoi-y v. Lamb, 52 Mich., 525; Smitii 
V. Blarcom, 45 Id., 371 ; Brooks v, Hargreaves, 21 Id., 
254; Fralich v. Norton, 2 Id., 130; Edwards, Bills, 141 ; 
Lincoln NuVl Bank v. Davis, 25 Neb., 376 ; Warner v, 
WhiUaker, 6 Mich., 133; Dixon v. Hill, 5 Id., 404; Fox 
V. Bank, 30 Kan., 446; Thompson v. Kellogg, 23 Mo., 
285; Tyler v. Safford, 24 Kan., 580; Merchants Nafl 
Bank V. Hanson, 21 N. W. Rep. [Minn.], 849. 

Hainer & Kellogg, oontra, cited : Brown v. Wiley, 20 
Howard [U. S.], 412; Brown v. Spofford, 95 U. S.,474; 
Dickson V. Hariis, 13 N. W. Rep. [la.], 335; Linderman 
V. Disbrow, 31 Wis., 465; T<ymlinson v. Nelson, 6 N. W, 



304 NEBRASKA REPORTS. [Vol.30 



Normrnn v* Wiiite. 



Rep., 366; Dobbins v. Obtrmany 17 Neb.j 163; Johnson r. 
Way, 27 O. St., 374; Kelley ih Wkitneij, 45 \\h., 110; 
Fox V, Bank, 1 Pac. Eep.^ 78^; Loivcnsteln t% Fhclan^ 17 
Neb.> 429 ; Long v. AUen^ 2 Fla., 403; Carman p. f*W(r, 
21 N. Y., 547; Traak v^Vimon, 20 Pick. [Mass.], 105; 
Chapman %\ Eddy, 13 Vt., 205; Bank t\ Caldwdf^ 16 
Iiul., 469; 1 Dan., Neg» lust.j sea 187; Adarns v, Sauk^ 
' 33 Vt., 538. 

Cobb, Ch, J. 

This action was brought in the Harailton oonnty tlii?trict 
court by F. R. Norman, pkirititf, agiiiiist Daniel M. Wait€, 
Mira A. Woods, and Austin J, Ritteiihonae, defendants, 
for the purpose of foreclosing a mortgage of real proj.>erty 
made by said Mira A, Woods far the security of two pmmij^ 
sory notes executed and delivered by the said Daniel M. 
Waite and Mira A. Woodsj to said Austin J, Rit ten house, 
and by him indorsed to the piaintlff. The petition is iji 
the usual form, with the all^^^^ttlon that the siiid notes wens, 
before the same became due by the indorsement of the 
said defendant Austin J. Rittcnliouse^ for a valuable con- 
sideration, "indorsed, asslj2:tied, transferred, and delivered 
to the plaintiflF, who is now the lawful owner and holder 
thereof; that no part of the print/ipal or interest of said 
notes has been collected or paid, although the $1,000 note 
has long since become due and payable ; " also, that the 
said Mira A. Woods did not keep the said premises in- 
sured as required by the covenants of said mortgage, but 
wholly failed to do so; that tlie said Mira A. Woods also 
wholly failed to pay the taxes due on said premises for the 
year 1885, amounting to S9.l5j as required by the c^venanlB 
of said mortgage, but made default therein, and on Octo- 
ber 29, 1886, the plaintiff, to protect his security and to 
prevent a sale of said premises for said taxes, paid tlie same, 
amounting, with interest, to the sum of $9.15, no part of 
which has been paid to the plaintiff. 



r 



Vol. SO] SEPTEMBER TEEM, 1890. 305 



Norman v. Waiie. 



The defendant Mira A. Woods by her answer admittc<l 
that she executed and delivered the notes and mortgage in 
plaintiff's petition described, and that said mortgage was 
recorded as therein alleged. She further alleged that her 
co-defendant, Daniel M. Waite, is her son and had just prior 
to the execution and delivery of said notes and mortgage 
been admitted to practice as an attorney and counselor at 
law of said court; that at said time Austin J. Bitten, 
house, the payee of said notes, had for more than seven 
years been an attorney and counselor at law of said court 
and for two years then last past had been the tutor of 
said Daniel M, Waite; that prior to the execution and de- 
livery of said notes and mortgage said Austin J. Hitten- 
house proposed to her, the said defendant and her said son^ 
to take him, the said Daniel M. Waite, into a copartner- 
ship with him, the said Austin J. Bittenhouse, in the busi- 
ness of the practice of law and buying and selling real 
estate on commission, making collections, loaning money, 
and doing such other business as said Rittenhouse had 
theretofore been doing at Aurora, Nebraska, as an equal 
partner, provided said Waite would pay him, the said 
Bittenhouse, the sum of $1,500 for a half interest in said 
business and in the office furniture and library which he, 
the said Bittenhouse, then owned ; that said Bittenhouse, in 
order to induce said defendant to execute and deliver said 
notes and mortgage, fraudulently and falsely represented to 
her that the firm of Bittenhouse & Chambers, in which he 
was then a copartner with one Walter Chambers in the 
business aforesaid, was doing a business which paid them 
$3,000 over and above all expenses, and that said Waite's 
share of the net proceeds of the business of said Bitten- 
house & Waite, in case such partnership should be formed, 
would in one year be more than sufficient to pay him, the 
said Bittenhouse, the said sum of $1,500, and that at the 
time said Bittenhouse made such representations he well 
knew the same to be false, and well knew that the net. 
20 



n 



306 NEBRASKA EEPOKTS. [Vol. 30 



Norman v. Waitu* 



proceeds of the business of said firm of Rittenhouse & 
Ohambersdid not exceed the sum of §1,500^ and said rep- 
resentations were made for the purpose of iudiiciug said 
defendant to execute and deliver said notes and mortgage. 
She further alleged that it was expressly agreed between 
her and the said Rittenhouse, wliicli said agreeement was 
by parol, that in case he and said Waite should enter into 
said copartnership, then upon the execution and delivery 
of said notes and mortgage by defendant the same should 
be held by said Rittenhouse as security that the said Waite 
would remain in copartnership with him, the said Ritten- 
house, and perform his part of the duties of said copart- 
nership and permit his share of ihe net proceeds of the 
business thereof to be applied to the payment of said 
sum of $1,600, to be paid to the saitl Rittenhouse until 
the same should be fully paid, and that it was expressly 
agreed that said answering defendant should not be called 
upon to pay any portion of said sura of ?1,500, but that 
the same should be paid out of said Waiters share of the 
proceeds of the business of said copartnership, and that 
said Rittenhouse should hold said notes and mortgage for 
security merely, that said Waite would not abandon said 
copartnership and that said notes and mortgage would not 
be transferred to any other person or pei-sons- And de* 
fendant alleged that she relied upon the representations of 
the said Rittenhouse, and, belie veil them to be true wheu 
in fact they were false, and, being desirous of assisting her 
said son, she made, executed, and delivered the notes and 
mortgage aforesaid as a guaranty that said Waite would 
not abandon said copartnership witluTUt cau,se, betbre said 
sum of $1,500 should be paid to said Ritteuhouse, and that 
said Waite would perform, to the liest of his ability, his 
duties as a member of said copartnership, and would per- 
mit his share of the net proceeds-of the business thereof 
to be applied to the payment of s>aid sum to said Kitten- 
l\ouse until the same should be paid, and for no other pur- 



Vol. 30] SEPTEMBER TERM, 1890. 307 



Norman.r. Waita. 



pose whatever. She further alleged that her said son and 
Rittcii house entered into said copartnership on or about the 
1st day of April, 1886, and that her said son has duly 
performed each and every agreement on his part and each 
and every duty as a member of said copartnership, but 
that on or about the 15th day of June, 1886, the said 
Kitten house abandoned the business of said copartnership 
and left the city of Aurora, Nebraska, where said business 
was to be carried on, went to the city of McCook and 
formed a copartnership for the practice of law with one 
J. S. LeHew and has wholly abandoned and neglected the 
business of the firm of Bittenhouse & Waite, and fraudu- 
lently, and for the express purpose of cheating and de- 
frauding defendant, transferred said notes and mortgage 
to said plaintiff, contrary to his said agreement with de- 
fendant. 

She further alleged that by the terms of said notes and 
mortgage the same became due on the first day of May, 
1886, and had long been due when transferred to said 
plaintiff, and that at the time the said plaintiff purchased 
the same he well knew that the defendant had a good and 
valid defense to the same and that the same had been ob- 
tained by fraud, and defendant denied that said plaintiff 
received said notes and mortgage in good faith before ma- 
turity and for value, and denied every allegation contained 
in said petition and not in said answer admitted. 

The defendant Daniel M. Waite, by his separate answer, 
admitted the execution and delivery of the notes sued on 
in the said case, but denied that the plaintiff received the 
same before due, and alleged that the said plaintiff was not 
an innocent holder of said notes, but that he took the same 
with information and knowledge that the same had been 
obtained through fraud, and with information and knowl- 
edge of the defense of him, the said defendant, hereinafter 
set out, to the payment of said notes; that on the 19th day 
of February, 1886, said defendant entered into an agree- 



308 NEBRASKA REPOIITS. [Vol. 30 



Norman y, ^V&lie, 



ment with the payee of said note*? to enter into a copart- 
nership with said Rittenhoiisej iii the practice of law, and 
the doing of a general loan, collceting, insurance, and real 
estate business; that just prior to tlie time of the execution 
and delivery of said notes he, the sakl defendantj iiad beea 
admitted to practice at the bar of said district court as an 
attorney and counselor at law ; that the payee of said notr?, 
Austin J. Rittenhouse, in order to induce said defendant 
to enter into a copartnership with him, represented and 
stated to him, said defendant, that the firm of Eittenljon^e 
& Chambers, a copartnership composed of said Aui^tin J, 
Rittenhouse and one Walter Chambers, then doing liusi- 
ness at Aurora, Nebraska, in the pmctice of law, and buy- 
ing and selling real estate on commission, and as loan, 
insurance, and collecting agents, had, during the year then 
last past, made in their said business, over and above all 
expenses, $3,000, when in truth and in fact^ as said Rit- 
tenhouse well knew, said firm had not, during *^id year, 
made to exceed $1,500 over and above all expenses; that 
said Rittenhouse proposed to dissolve the copartnership ex- 
isting between him and said Chambers, and to buy the in- 
terest of said Chambers in the business of said firm, and 
to then take defendant into copartnership with him as an 
equal partner, defendant to have one-half interest in all of- 
fice furniture and library then in the office, or belonging 
to the said firm of Rittenhouse & Chambers, provided this 
defendant would pay him, the siiid Rittenhouse, out of his, 
this defendant's, share of the tiet proceeds of the firm, which 
was to be known as the firm of Rittenhouse & Waile, as 
the same should be receivedj the sum of 91,500, witli in- 
terest at ten per cent until paid, and in order to induce 
the defendant to enter into sucli copartnership and agree to 
pay him said sum, made the fraudulent and false repr^en* 
tations aforesaid. This defendant, relying on said represen- 
tations and believing them to be true, was indueed to enter 
into a copartnership with said Rittenhouse for the practice 



Vol. 30] SEPTEMBER TERM, 1890. 309 



Norman t. Waite. 



of law, and in doing a general loan, collection, and insur- 
ance business, and in buying and selling real estate on 
commission, said business to be carried on in Aurora, 
Hamilton county, Nebraska, and to begin on the 1st day 
of April, 1886; and it was expressly agreed and under- 
stood that said copartnership was to continue until said 
sum of $1,500, and the interest thereon, should be paid out 
of this defendant's share of the net proceeds of the business 
of said firm, and that the said notes should be held by said 
Eittenhouse merely as a guaranty that said defendant 
would not abandon said copartnership without cause be- 
fore said sum of $1,500 should be paid as aforesaid, and 
that defendant should perform his part of said agreement. 
And defendant further alleged that it was agreed and 
understood that each of said parties should devote all his 
time, energy, skill, and ability to the prosecution of said 
business; that said Rittenhouse and defendant, in pursu- 
ance of said agreement, did enter into said copartnership 
on the 1st day of April, 1886, and that defendant has 
ever since duly performed on his part every condition 
and agreement in said contract, and has fully complied 
with all of his agreements in said contract, but that said 
Kittenhouse has wholly neglected and refused to comply 
with said agreement on his part, and on or about the 
15th day of June, 1886, wholly abandoned said copart- 
nership, and removed from said city of Aurora and formed 
a copartnership with one J. S. Le Hew, at MeCook, Ne- 
braska, for the practice of law at said place, which said 
place is more than one hundred and fifty miles from said 
city of Aurora, and has neglected and refused to perform 
any service as a member of said firm of Rittenhouse & 
Waite, and has wholly neglected the business of said firm, 
and thereby caused persons who had employed said firm 
of Ritteniiouse & Waite to refuse to continue said em- 
ployment, and to employ other counsel in such cases. And 
defendant alleged that he had received no consideration for 



310 NEBRASKA REPOKTS. [Vol. 30 



Norman ▼. Waite, 



said notes except the half interest in the librarj and officje 
furniture aforesaid, which did nut exceed in value the sum 
of $350. And defendant alleged that the phiintiff had 
information of the fact and well knew before he purchased 
said notes what said notes wei-e given for, and that said 
Rittenhouse had abandoned his conlract with defendant, 
and that the consideration therefor had failed, and before 
said plaintiff had paid anything for said notea defendant 
notified him of the facts hereinbefore stated, and warned 
him, the said plaintiff, not to buy said notes of said Rit- 
tenhouse. And defendant furtlier alleged that it was 
agreed that his share of the net proceeds of the bijsiness of 
said firm of Rittenhouse & Waite f^hould be appHed to the 
payment of said $1,600, and that said Ililtenhoufie had 
received large sums of money, the exact amount of which 
is to defendant unknown, which belonged to said firm, and 
in excess of the expenses of said lirm, which should be 
applied to the'payment of any amount which may be found 
due on account of defendant's ])urcliase of an interest in 
said library and furniture as aforesaid, and that there has 
never been any settlement of the accounts or business 
of said copartnership; with prayer tliat said Austin J. 
Rittenhouse be made a party to said action, that an ac- 
counting be had touching all of said copartnership busi- 
ness, and that any money received by said Rittenhouse 
belonging to the firm of Ritteiiiiouse & Waite, in excess 
of the amount to which said Rittcnhouee h entitled, as hia 
share of the net proceeds of said business, may be applied 
to the payment of any amount due on account of his inter- 
est received by defendant in said library and office furni- 
ture, and for general relief. 

The replies of the plaintiff to the separate answers of 
the defendants are, substantially, general denials* 

There was a trial to the court, with general findings for 
the plaintiff as to the execution and delivery by the defend* 
ant Mira A. Woods to Austin J, Rittenhouse of the mort- 



I 



Vol. 30] SEPTEMBER TERM, 1890. • 311 



Norman y. Waite. 



gage deed set forth in the petition, the making and delivery 
by the defendants to the said Ritten house of the notes 
described in the petition; that the notes were due; tliat 
there was then due thereon $1,764.50 with ten per cent 
interest from date ; that said Austin J. Rittenhouse sold, 
transferred, and assigned said mortgage and notes to the 
plaintiff, who was then the holder and owner thereof; also 
that the plaintiff, in order to protect his security, paid the 
taxes levied and due on the mortgaged premises, amounting 
to $9.15; that no part thereof had been repaid and that the 
plaintiff was entitled to a foreclosure of said mortgage as 
prayed for. There was the usual judgment of foreclosure 
and sale, and the cause appealed to this court by the de- 
fendants Mira A. Woods and Daniel M. Waite. 

There are two principal questions presented by the 
record : 

1. Is the plaintiff such an indorsee, owner, and holder 
of the notes secured by the mortgage and declared on in 
the i>etition as entitles him to recover the contents thereof 
from the makers, although they have a defense thereto as 
against the payee? and, 

2. Under the pleadings and upon the evidence, were the 
action between the payee and the makers of the notes, 
could the former recover ? 

Appellants, in the brief of counsel, present two grounds 
upon both of which they claim that the plaintiff is not an 
innocent holder of the notes, so as to cut off a defense 
thereto existing against the payee. 

1. That the notes and mortgage were due when the plaint- 
iff obtained them. This proposition is claimed to be based 
upon a clause of the mortgage which reads as follows : " It 
is further agreed that if said mortgagor shall fail to pay 
such taxes or procure such insurance, the said mortagee 
may pay such taxes and procure such insurance, and the sum 
so advanced, with interest at ten per cent, shall be repaid by 
the said mortgagor, and this mortgage shall stand as security 



312 • NEBRASKA REPORTS. [Voi.. 30 



Korman t, WaJte. 



for the same; that a faDure to pay any of said luoneT, 
either principal or interest, nlien the mme l>ecomes diiejOr 
a failure to comply witli auy of the foregoing agreements, 
shall cause the whole sum of money herein secui-ed to be- 
come due and collectible at once.*' 

It appears, both from the petition and bill of exceptions^ 
that the defendant, Mira A. Woods failed to pay the taxes 
of 1885, which became delinquent May 1, 1886, iiixm the 
mortgaged property. Ujion these premises counsel for 
appellants contend thut the notes were due and dishonored 
at the time of their transfer by Eittenhouse totlie plaintiffj 
so as to charge the latter with notice of all infirmities 
and defenses. I am inclined to difler with counsel upon ihis 
point, especially in its tijipIicaEion to the evidence in the 
case at bar, but will refrain ironi a discussion of the author- 
ities cited to sustain it, in view of the second ground, which 
i-5, that the plaintiff receiveti notice of defendant'i^ defense lo 
the notes before he parted with the conskleration which lie 
paid therefor. It appears from the bill of exceptions that 
the consideration which the plninliflTpiiid for the f-aid notes 
and mortgage consisted of a IriKt of land in B ami Item 
county, which plaintiff held and was in ]><»ssr^&ion of by 
virtue of two certain contuicts of sale cxcoutGd und issued 
by the Union Pacific EaihvEiy Cumpany; that the ctnitmct 
between plaintiff and Rittenhoupc was made on the ISlhday 
of iScptember, 1886 ; that the ,^aid ron tracts were then in the 
possession of plaintiff^s ialher, in the state of Ohio, and 
were not delivered to the ^[ul] Ritteiihouse until nlx^nt ten 
days thereafter. But on the day of the trade platuiiff ex* 
ecuted to Mrs. Riltenhoti.se, wife of Austin J. Kittrnlioiise, 
doubtless at the request of >aid Anstin J. Rittenhuuse, and 
as a part of the transaction between Eittenhouse and 
Norman for the transfer of the said notes and mortgage, 
an instrument in writing, which was put in evidence upon 
the trial and which I here copy ; 



Vol. 30] SEPTEMBER TERM, 1890. 31.3 



Norman t. Waite. 



"ARTICLES OP AGREEMENT. 

" I, F. R. Korman, party of the first part, have this day 
assigned and transferred all my right, title, and interest 
in and to the west one-half of the northwest one-fourth 
of section No. 11, township No. 9 N., of range No. 6 
west, in Hamilton county, Nebraska, to Louisa J. Ritten- 
house party of the second part for and in consideration of 
the sum of fifteen hundred dollars, the receipt whereof is 
hereby acknowledged, and I do hereby sell, assign, and 
transfer to her all my right, title, and interest in the two 
Union Pacific Railway Company's contracts of sale Nos. 
40140 and 40141, which I now own and hold for said 
land, and I represent that I am the owner of said contracts 
by assignment from J. H. Stokcsbury, and that I will de- 
liver said Louisa J. Rittenhouse said contracts, numbered 
as aforesaid, with the assignments of said J. H. Stokcs- 
bury to said contracts thereon, written in due form ; that 
I will deliver said contracts within ten days from this 
date. I, Maiy E. Norman, wife of F. R. Norman, do 
hereby relinquish all my right of dower in the above de- 
scribed land." Signed by F. R. Norman, and Mary E. 
Norman, witnessed and acknowledged before a notary 
public. 

The acknowledgment is dated the 18th day of Septem- 
ber, 1886, which is the only date the paper contains. 

It api^ears from the evidence that the transfer of the 
notes by Rittenhouse to Norman, and the execution and 
delivery of the above paper by Norman and wife to Rit- 
tenhouse, occurred on Saturday, after or shortly before the 
close of business hours, and there were circumstances of 
haste and precipitation connected with the transaction, as 
detailed by the plaintiff when on the stand, and by Rit- 
tenhouse in his deposition, which were calculated to have 
put the plaintiff on his guard in trading for the notes. 
But there is no direct evidence of the plaintiff having had 
actual notice of defendant's defense to the notes and mort- 



314 NEBRASKA REPORTS. [Vol. 30 



Norman y. Waite. 



gage until the Monday following, when the defendants, 
Mrs. Woods and AVaite, together with their counsel, went 
to the ofiBce of the plaintiff and informed him of their de- 
fense and requested him to retain matters in statu quo. 
The Union Pacific railroad certificates were then still in 
Ohio, and, so far as Rittenhouse was concerned, still under 
the control of the plaintiff. No legal title to the land 
ever having been in the plaintiff, of course none passed 
from him to Mrs, Louisa J. Rittenhouse by virtue of the 
paper above copied, and whatever equities passeil to her 
were burdened with the superior equity of Mrs. Woods, 
if her theory of the transaction between her and Ritten- 
house is sustained by the evidence. The plaintiff, a busi- 
ness man, knew that he could not convey title to the land, 
at all events he made no attempt to do so ; but entered 
into an agreement to deliver the certificates with the as- 
signment of the original holder thereon and thus enable 
Mi^. Rittenhouse or her husband to obtain title to the 
land from the railroad company where it still remained. 
It is not deemed of importance that the writing contains 
some words of grant. It is headed "Articles of Agree- 
ment" and even had the title to the land been in the 
plaintiff, which it was not, this paper would occupy no 
higher grade than that of an agreement to convey. (See 
Jaclcson v. Myers, 3 Johnson's R., 387.) Granted that the 
plaintiff was an innocent purchaser of the notes and mort^ 
gage so far as such purchase had proceedied up to Monday, 
the 20th day of September, when he received the notice 
above stated, he had then not parted with the considera- 
tion, which was the delivery of .the Union Pacific railroad 
certificates "with the assignments of J. H. Stokesbur}" 
to said contracts thereon." It has been often held in 
cases of the transfer by indorsement of commercial paper 
to which there was a defense while in the hands of the 
payee, but not as against a bonajixle holder for value with- 
out notice, that in order to make a reply to the defense to 



Vol. 30] SEPTEMBER TERM, 1890. 315 



Norman v. Waita 



such note setting up the bona fide purchase of such note by 
the plain ti if and its indorsement to him for vahie before 
maturity and without notice^ such plaintiff must allege and 
prove that he not only bought, but also paid for, the note 
before notice of fraud or other defense. (See Daniel on 
Negotiable Instruments, sec. 789a, and case there cited; 
see also, 35 cases cited in note 2, Devlin on Deeds, sec. 
736.) 

The plaintiff had bought, but had not paid for the notes 
and mortgage, when he received actual notice from the 
makers, of the facts which they then and now claim con- 
stitute a defense thereto. By reference to the several an- 
swers of the defendants, Mrs. Woods and Waite, as set out 
in the statement, it will be seen that the defense to the 
notes and mortgage consisted in the allegation that, contem- 
poraneous with the execution and delivery of the notes and 
mortgage, and as the true and only consideration for the 
execution and giving thereof, the said AVaite and Kitten- 
house entered into a copartnership for the practice of law 
and collecting agency, etc., and that as a consideration and 
compensation to Rittenhouse, who was already established 
in said business, Waite, who had just finished his course of 
study in the oflHce of Rittenhouse, and had then lately been 
admitted to practice as an attorney at law, was to pay to 
Rittenhouse out of his share of the net earnings of the 
firm, as fast as the same should be realized, the sum of 
fifteen hundred dollars, and that the said notes were exe- 
cuted by Waite and his mother, Mrs. Woods, and delivered 
to Rittenhouse, and the mortgage executed by the latter 
upon her house and lot to secure said notes, the whole to 
be a guaranty or security to Rittenhouse for the faithful 
performance by Waite of his part of said contract, to the 
extent that he would continue and act as a member of said 
partnership until his half of the net proceeds of the earnings 
thereof should be sufficient to pay the said sum of fifteen 
hundred dollars, and pay the same to said Rittenhouse, 



316 NEBRASKA KEPOETS. [Vol.30 



Normmn v. W&lte, 



or allow him to draw and appropriate the same. Also^ 
that shortly after the formation of said copartnership and 
the giving of said notes and mortgage, the said Rittenhouie 
abandoned the said partnership and business, left the city 
of Aurora, and county of Hamilton, where the same had 
been and was to be carrietl on, enteird into partnership 
with another party, and coinoipnced and thereafter prac- 
ticed law and carried on business in another and distant 
part of the state. In support of the position that the 
above facts constitute a defense to the action, or would, had 
the same been instituted by Ilitteuhaiisej ajtpellants cite the 
cases of: Austin v. Pickler (a Nortli Carolina case)^ 4 So. 
Eep., 36; Micheh v. Olmstead, 14 Fed. itep., 219; Bank 
V. Luckow, 3 N. W. Rep., 4:14; Skaaraas v. Finnefjfan^ 1§ 
Id., 456; Westeman v. Kitimiccidey 15 Id., 255; Culhnans 
V. Lindaay^ 6 Atl. Rep., 332; DorrmgtQn v, Mlnnickj 15 
Neb., 403; Hooker v. HammRl, 7 Id,, 235. Th^e cases 
are mostly in point and tenrl to estiiblisJi the proposition as 
above stated. They are not met by citations of cases, or au- 
thorities to the contrary. I cite the following cases to the 
same point: Thudium v. Yod^ 11 AtL Rep., 436; Wt^od 
V, Matthews, 73 Mo., 477 ; HowaM v, Stration^ 64 Cal, 4S7 ; 
Whiting v. Steer , 16 Reporter, 134. 

I do not remember to have seen the law on this subject 
so clearly stated elsewhere as by Judge Krekelj United 
States district judge of the we^itern district of Missouri, 
in his charge to the jury in the case of MivJiiU v* Olm- 
stead, supra, in the following words: "When partif^, 
without any fraud or mistake, have deliltenitely put their 
engagements in writing, the Jaw declares the writing to be 
not only the best, but the miltf evidence of the agreement; 
but this does not prevent j>arties to a written agreement 
from proving that, either contemporaneously or as a pre- 
liminary measure, they had entered into a disthiet oral 
agreement on some collateral matter, or an oral agreement 
which constitutes a condition on which the performance of 
the written agreement is to de]>end." 



Vol. 30] SEPTEMBER TERM, 1890. 317 



Norman r. Waite. 



The making of the oral agreement substantially as set 
out in the answers was sworn to by Mrs. Woods and Waite 
as witnesses on the tria]^ and although it is denied by Kit- 
tenhouse in his deposition, it cannot be denied or doubted 
that the weight of evidence is very largely in favor of the 
truth of the answers. But even if there had been no oral 
agreement as set up in the answer, and testified to by the 
litigating defendants, could Mr. Kittenhouse or his in- 
dorsee, with notice, have enforced the collection of these 
notes either in a court of law or equity? I think not. 
Viewed in the light most favorable to the plaintiff in that 
event, the consideration for the notes was the taking by 
Bittenhouse, a lawyer of many years' practice, of Waite, a 
young man just admitted to practice, into partnership with 
him in the practice of law and its kindred pursuits. This 
clearly implied the continuation of such relationship and 
its advantages to Waite for a series of years, unless sooner 
terminated by the death of one of the partners, or the for- 
feiture by Waite of his right to such relationship by mis- 
conduct; and it appears from the whole case, and is 
undisputed, that within less than three months after enter- 
ing into such relationship, and without any disclosed cause 
or reason, Mr. Bittenhouse abandoned the city, county, 
and judicial district in which the business of such partner- 
ship was, and was to be carried on, and withdrawing him- 
self to a distant part of the state, entered into business 
relations inconsistent with the further relation of partner- 
ship with Waite, which relationship, as is contended, con- 
stituted the consideration for which the notes were given. 
This is not met by the possible suggestion that it was to 
Waiters advantage that the entire business was abandoned 
to him. The purchase or sale of the entire business and 
practice of Bittenhouse was not contemplated by either 
party when the notes were given, and the withdrawal of 
Bittenhouse was as much a violation of the contract of 
partnership as would have been the forcible exclusion of 



318 NEBRASKA REPORTS. I>'ol. 30 



i 



0. & R, V, EL OQp t. StiYeriQ* 



Watte tlicrpfmni. In either case the result would lie a 
failure of the cQUsiderntitiii for the notoB, if, as conleuiletl 
by plaintiffj sueli conj^icleratiuu was the takin*^ of Waite 
into purtuorship by Kitteniious*e. 

I thereftsre reach the conclusion that the findings and 
jmlgnient of the district court are neither of tht?in iius* 
tflitied by tlie case or the law applicable thereto. 

The judgment and decree of the district court is 

Reversed, axd cause DiSMrssEB, 

Maxwelt., J., concurs* 

NonvAi., J,, having tried the case in the court beloW| 
did injt sit. 



Omaha & R. Y, R, Co, v. John H, SEVE'^nf. 

1 ^^ ibH [Filed Si^^tkmbkr IS, 1890.] 

1* Bailroads: FAun CEoasmos: STATtms Const&ued. SecUoo 
lufi of cbiip. ]G, Comix Htitts,^ cim»trn«>df and AWrf» that tb« 
** cause wa J or other adeqimt© meaB^ of croaaing/^ whtcti lail* 
Tond cor[>oratiai]» ar« req aired lo make and keep id repairp whfn 
ftsj perfiOQ owua latid oti Imth sicle^ of any railroad* si}d when 
requested lao to do^ is an iidequate meftua of cr<»aing such mtU 
road track and right of way bj Buch owner on foot or bon^biLck, 
with wBi^on or corriag*. or with domeatic aoiujAls under bk con* 
troll bob ia not required to be adequate to Ibe free pniBa^e of 
unberded cattle or other donicBtic auiinalet wjittdering nurr^ 
atramed from one side of the railroad to the other. 

% — : : — — . Bet^lion 1 of chapter 73 constniedt and 

held^ that the railroad a>rporntint]9 to which the provlsiooi of 
said section apply are required, under (he penalty of the liabili- 
ties therein siteui^ed, io erect and main tain fenoes on hoth aidei 
of their rallrtuKt ^^ suitably and amply euQicieut to present c%i' 
tie, horses, eheep, and hogs from gelting on the said mdmad.ex* 



Vol. 30] SEPTEMBER TERM, 1890. 319 



O. A B. V. B. Go. ▼. Severin. 



cept at the crossings of public roads and highways, and within 
the limits of towns, cities, and Tillages;" that this includes the 
space on either side opposite to private or farm crossings of the 
railroad, at which points such corporations are required to make 
or leave openings in such fence with gates or bars to close and 
secure such openings ; but are not required to put in cattle 
guards at such private or farm crossings. 

Error to the district court for Lancaster county. Tried 
below before Field, J. 

John M. Thurston, and W. B. Kelley, for plaintiflF in 
error. 

W. M. Woodward, contra. 

Cases cited by counsel are referred to in opinion. 

Cobb, Ch. J. 

The plaintiff was the owner of a farm consisting of a 
square tract of 160 acres of land according to the govern- 
ment surveys. 

The defendant, being engaged in constructing a line of 
railroad, and having the right to apply for an exercise ot 
the power to condemn and use the right of way over and 
upon the plaintiff's land, upon fche refusal of the owner of 
such real estate to grant the same for a price stipulated by 
the parties, applied to the plaintiff to purchase the real estate 
necessary for its right of way, and by mutual agreement 
and contract the defendant purchased of the plaintiff, and 
the plaintiff conveyed by deed to the defendant, in consid- 
eration of $240, '^a strip of land through the southeast 
quarter of section 26, township 7, range 6 east, one hun- 
dred feet in width, being fifty feet on either side of the 
center line of the road of said company as located or to be 
located by the engineer of the said railroad company for 
the construction of the same," with a proviso for the rever- 



i 



320 



NEBRASKA REPORTS. 



[Vol. 30 



O. & R. V. R. Co. T. Sererln. 



sion of the land to the grantor, and his hcirs^ hi case of 
the abandonment of the route by the railroad company. 

Afterwards the defendant located its line and constructed 
its railway on and across the said tract, in a direction 
nearly north and south and nearly equally biisocting the 
same, leaving the dwelling house, barn, oorm],and pastnre 
and other outbuildings and well on tlie east half Aa 
understood from the evidence, only fields and a calf pasture, 
and that uncertain, are on the west side of the railroad, 
A public road leading to the village of Firth forms the 
south boundary of plaintiff's land; also a public road on 
the east side about ten rods from the plaii>tiff'g dwelling 
house. Before the conveyance of said right of way and 
the location of the railroad plaintiff had niaile and used a 
private road running east and west acroi^s liis farm, and 
crossing the line afterwards occupied, by tlie milroad, some 
three or four rods south of the center of the quarter sec- 
tion tract; to use plaintiff's language, in crossing his farm 
from east to west on this particular track, " because be had 
to put in a culvert over a little draw." 

Some time after defendant had oonstructeil and operatal 
its railroad line, the plaintiff served a notice requiring it to 
fence its track and right of way, "and put in the necessary 
cattle guards.'' The defendant thereupon erected fences on 
each side of its right of way, and at the poi nt where the 
railroad crosses the private farm road, that being, as tes- 
tified to by plaintiff, the most convenient place for a 
crossing, and doubtless pointed out by liim to defendant 
as the point where he desired the crossing to be placed, 
made openings in the fence on either side, with gates, bat 
placed no wing fences, nor constructed any cattle guards 
in its track. The defendant also planked the space between 
the rails so as to provide for its being crosi^ed with wagons. 
The plaintiff brought his action in the nature Qt man- 
damus to compel the defendant railroad company to \niX in 
cattle guards, including wing fences, so that gates might 



■'^ 



Vol. CO] SEPTEMBER TERM, 1890. 821 



O. A R. V. R. Co. ▼. Severin. 



be left open or removed and cattle allowed to pass from 
that part of the farm on one side of the railroad track and 
right of way to the other side of the same unattended and 
unwatched, without danger of their going upon the rail- 
road track off of the said crossing directly, or of their first 
wandering off said crossing along the right of way, and 
thence getting upon the railroad track. Upon the trial 
there was evidence that one way from said crossing, about 
forty rods distant, there is a cut made by the railroad some 
seven or eight feet deep, and the other way the plaintiff 
had set out trees for a windbreak, near the railroad, which 
prevented trains approaching from either way being seen in 
time to enable the plaintiff to drive his cattle from one 
part of his farm across the railroad track to the other. 
The court found for the plaintiff, that the defendant is 
bound by law to maintain an adequate crossing at the 
point designated by plaintiff; that what is an adequate 
crossing is to be determined by the facts of the case; that 
in this case an adequate crossing is not provided without 
cattle guards to complete it; and there was a judgment that 
the defendant construct and put in place at the crossing in 
question, within thirty days fromthedateof the judgment, 
a good and sufficient cattle guard on both sides of the 
crossing, said cattle guards to be of the kind usually built by 
defendant at such points, etc., with judgment for costs. 

The cause being brought to this court on error by the 
defendant, fairly presents the question whether any law or 
statute is in force in this state which makes it the duty of 
railroad companies to construct cattle guards at private or 
farm crossings. But one section of statute is cited by defend- 
ant in error, sec. 106, chap. 16, Comp. Stats, of Nebraska, 
as follows : " When any person owns land on both sides of 
any railroad, the corporation owning such railroad shall, 
when required so to do, make and keep in good repair one 
causeway or other adequate means of crossing the same.'' 
This chapter of the statutes is entitled *' Corporations,'' 
21 



522 



NEBEASKA REPORTS. [Vol. 30 



■ 



r 



O. <b R. v. R. Co. T. Se?eria, 



and is divided into twenty-one subdivisions. The eighth, in 
numerical sequence, is entitled "Railroad Companies," 
The fifty sections composing it, including sec, 106, above 
<juoted, were taken by the compiler from an act of the ter- 
ritorial legislature of Nebraska, entitled *'An act to create 
and regulate railroad companies," approvetl February 8, 
1864. 

We are cited to no case wh^re the language of section 
106 has been construed, nor do I know of any. There h 
nothing in the context, or in any otJier Beetion of the act* 
tending to indicate the sense or meaninpc in wliicli the won! 
*" causeway " is there used; nor does tlie ilefinitioii of it from 
dictionaries and cyclopedias give much fissistance, Web* 
ster defines it: "A way raised above tiie natural level of 
the ground by stones, earth, timber iuscluei^, etc., serving 
as a dry passage over wet or marshy grouudj or as a mole 
to confine water to a pond or restrain it from overflc^wing 
lower ground," and such is substantially the definition of 
the Century dictionary, and of the cyclopedias* The words 
of the statute, " one causeway, or other atlcqiiate means of 
crossing the same," indicate the legislative judgment that 
a causeway, whatever it may be, when applied to a railroad, 
is an adequate means of crossing its track. If the section 
only applied to such a part of a railroad as is known as a 
fill, where the road-bed is raised by an embankment above 
the natural level of the land, it would be rcasouablv clear 
that the causeway intended was a raising of the cross- 
road adjacent to the railroad track with gradients on either 
side for the convenience of crossing with carriages, wagons, 
and by horsemen. And I can conceive of no other sense 
in which the language could have been used in tlie present 
instance. Surely the word is not to be confounded with 
viaduct or bridge^ as that means of crossing a railroad 
could only be cheaply or economically used where there is 
a very deep cut, which is not common to railroads in this 
state. This section applies as well to uncultivated as to cul- 



Vol. 30] SEPTEMBER TERM, 1890. 323 



O. dk R. v. R. Co. y. SeyeriD. 



tivated land, and to that uninclosed as well as to.that which 
is fenced. The ownership of land, on both sides of the 
railroad, gives the right to the causeway, or other adequate 
means of crossing, and not the o«vnership or possession of 
live stock by the land-owner. The right of an owner of 
land on both sides of a railroad to an adequate means of 
crossing from one part of the land to the other, doubtless 
within the meaning of the statute, implies the right of such 
owner to such means of crossing, with any domestic animals 
under his control. But a careful reading of the fifty sec- 
tions of the sub-chapter, fails to indicate that it was in the 
l^islative mind to provide for unherded animals wandering 
from one side of a railroad to the other. Neither cattle nor 
animals are mentioned in the statute, and, as we have seen, 
the ownership nor possession of cattle adds to the right of 
an owner of lands to adequate means of crossing; the con- 
clusion is therefore not only logical ^ut irresistible that a 
means of crossing that is adequate for one owner of land 
on both sides of a railroad is, in contemplation of the stat- 
ute, adequate for all such owners. If not, then such ade- 
quacy depends upon the character of the railroad track and 
right of way between the lands of such owners, whether 
level, cut, or fill, not upon the use of the land on either 
side of the railroad, nor upon the possession of cattle by 
such owner. 

There is one other provision of the statute applicable to 
this question : ^'An act to define the duties and liabilities 
of railroad companies,'' approved June 22, 1867. This 
act has been several times amended, but in so far as its 
provisions are involved in the present question they remain 
unchanged, and the act now constitutes the first article of 
chap. 72 of the Compiled Statutes of 1889. The object of 
this act was to compel railroad companies to fence their 
lines, defining their duties in that respect, and their liabili- 
ties in case of failure to perform them. By its provisions 
every railroad company whose lines, or any part thereof, 



324 



NEBRASKA REPORTS. [Vol. 30 



O. & R. V. R. Co. V. Severin. 



were then oijen for use, was required, within six months 
after the passage of the act, and every one formed, or to be 
formed, whose lines were not then open for use, within six 
months after the lines of 'such railroad should be open, to 
erect, and thereafter to maintain, fences on the sides of 
their said railroad, or the part thereof so open for use, suit- 
ably and amply sufficient to prevent cattle, horses, sheep, 
and hogs from getting on the said railroad, except at the 
crossings of public roads and highways, and within the 
limits of towns, cities, and villages, with opens or gates or 
bars at all the farm crossings of such railroads for the use 
of the proprietors of the lands adjoining such railroad, and 
that they should also construct, where the same had not 
already been done, and thereafter maintain, at all road 
crossings then existing, or thereafter established, cattle 
guards suitable and sufficient to prevent cattle, horses, 
sheep, and hogs from getting on to such railroad. The 
section further provides that so long as such fences and 
cattle guards shall be made, after the time therein pre- 
scribed therefor shall have elapsed, and when such fences 
and cattle guards, or any part thereof, are not in suffi- 
ciently good repair to accomplish the object for which the 
same was therein prescribed and intended, such railroad 
corporation and its agents, should be liable for any and all 
damages which should be done by the agents, engines, or 
trains of any such corporation to any cattle, horses, sheep, 
or hogs thereon; and also, that when such fences and 
guards shall have been fully and duly made and shall be 
kept in good and sufficient repair, such railroad corpora- 
tion should not be liable for any such damages unless 
negligently or willfully done. 

By the above provisions. railroad companies are required, 
under the penalty of certain liabilities, to erect and main- 
tain, on the sides of their respective railroads, fences suit- 
ably and amply sufficient to prevent live stock, of the kind 
therein specified, " from getting on the said railroad except 



Vol. 30] SEPTEMBER TERM, 1890. 325 



O. <b R. y. R. Co. y. Severin. 



at the crossings of public roads and highways and within 
the limits of towns, cities, and villages.^' It cannot be 
claimed that this language will bear the construction that 
private or farm crossings might be left unfenced, and cattle 
guards or pits dug in the bed of the railroad on each side 
of such crossing substituted for a fence. The sole object 
of the required fence is to prevent cattle, horses, sheep, and 
hogs from getting on the railroad; but the necessities of 
travel required that an exception should be made as to 
public roads and highways. No such necessity was recog- 
nized by the framers of the statute in regard to private or 
farm crossings ; so that by the letter of the law such fence 
was required to be erected " suitable and sufficient to pre- 
vent cattle, horses, sheep, and hogs from getting on the 
said railroad'^ at private or farm crossings. In other 
words, the entire railroad is required to be fenced with the 
exception of certain places; private or farm crossings not 
being within such exception, the general requirement to 
fence applying to them. 

But the words of the statute, immediately following those 
last above quoted, must be considered in connection there- 
with. They are, "with opens, or gates, or bars, at all the 
farm crossings of such railroads for the use of the proprie- 
tors of the lands adjoining such railroads, and shall also 
construct, where the same hjis not already been done, and 
hereafter maintain, at all railroad crossings now existing, or 
hereafter established, cattle guards suitable and suificient to 
prevent cattle, horses, sheep, and hogs from getting to such 
railroad." That part of the sentence quoted, consisting of the 
first twenty-six words, and which should be followed by a 
semi-colon, but is not, if taken literally would be satisfied 
by the erection of a fence with either an open or opening 
without either gate or bars, or a gate or bars without an 
opening at the farm crossings. But when these words are 
considered in connection with the remainder of the section, 
and especially the purpose and object of the statute requir- 



326 NEBRASKA REPORTS. [Vol. 30 



O. & R. V. R. Co. V. Seyerln. 



iug railroads to be fenced, and also in view of the purpose 
and object of requiring either opens, gates, or bars at farm 
crossings, it seems clear to my mind that the statute re- 
quires an opening in the fence, and such opening to be 
secured by agate, or bars, at all farm crossings. Were there 
any ground for doubt as to the above construction, such 
doubt must, I think, be satisfied by the consideration of 
the residue of the section preceding the proviso. This 
part of the section requires all railroad corporations, when 
the same had not already been done, to construct, and there- 
after to maintain, at all road crossings, cattle guards suit- 
able and sufficient to prevent cattle, horses, sheep, and 
hogs from getting on to such railroad. Thus the statute 
recognizes a clear distinction between " road crossings," 
which words are evidently here used as the equivalent of 
" public roads and highways," as designated in the fore- 
part of the section, and farm crossings. In the one case it 
requires the construction of cattle guards, and in the other 
opens, gates, or bars, or, as we have seen, openings in the 
fence secured by gates or bars. 

Neither the time nor space at my disposal will admit of an 
exhaustive review of the cases decided under statutes similar 
to that of ours. Some reference to them, however, is deemed 
necessary. A statute of the state of New York was en- 
acted in 1850, entitled "An act to authorize the formation 
of railroad coporations and to regulate the same," a part of 
one section of which I quote: 

" Sec. 44. Every corporation formed under this act shall 
erect and maintain fences on the sides of their road, of the 
height and strength of a division fence required by law, 
with openings, or gates, or bars therein, and farm crossings 
of the road for the use of the proprietors of lands ad- 
joining such railroad ; and also construct and maintain cat- 
tle guards at all road crossings suitable and sufficient to 
prevent cattle and animals from getting on to the railroad." 

Under this statute the case of Brooks v. N. Y. & Erie R. 



Vol. 30] SEPTEMBER TERM, 1890. 327 



O. & R. V. R. Co. V. Severin. 



Co., 13 Barb., 594, arose, which was an action to recover 
for the killing of two cows of the plaintiff by the engine 
and cars of the company upon the railroad track. The 
cattle had entered upon the right of way and track of the 
railroad through a gate in the fisnce, between the right of 
way and the grounds of a third person, which gate had 
been habitually left open. The plaintiff claimed to re- 
cover on the grounds of the absence of fences and of cattle 
guards at said point, which was a private or farm crossings 
The opinion of the supreme court, not a court of last re- 
sort, was delivered by Mr. Justice Shankland. After dis- 
cussing two points, not necessary to be noticed here, the 
opinion proceeds : 

" I am also of the opinion that the true reading of the 
section does not require the company to construct and 
maintain cattle guards at farm crossings of the road, but 
only at road crossings. The first clause of the section be- 
fore the period (semicolon, in fact) relates to farm cross- 
ings only ; and the last clause relates to public crossings 
only. 

" The cattle guard was thought not necessary at farm 
crossings where fences, gates, or bars would be sufficient to 
keep cattle within the adjoining fields, except when driven 
across by the owners; but road crossings, where cattle run- 
ning at large in pursuance of town regulations, or other law- 
ful cause, were liable to pass in and upon the track of the 
railroad, required the additional protection afforded by the 
cattle guards mentioned in the statute.'' • 

The judgment for the plaintiff in the lower court was 
reversed. 

The above act was amended in 1854, by which sec. 44 
of the original act was substantially re-enacted as sec. 8 of 
the amendatory act. The language of the two sections 
is so nearly identical as to render the reproduction of 
the second as quite superfluous. Under the amendatory 
act the case of Jones v. Seligman,, 81 N. Y., 190, was 



328 



NEBRASKA REPORTS. [Vol. 30 



O. & K. y. B. Co. T. Seyerin. 



lirouglit to the court of appeals. .This was a bill in equity 
against the defendants as acting trustees of the bond- 
holders of a railroad company^ asking that the defendants 
be adjudged to specifically perform the duties imposed 
upon them by law, in respect to the matters set forth, and 
that they be required to build and maintain fences on each 
side of the lands taken by them from the plaintiflF for rail- 
road purposes, and described in the complaint, on which 
their railway is constructed through the plaintiff's farm, 
in the manner required by law,- and also a farm crossing 
under said railroad. 

After the above statement of the case, the opinion of the 
court by Mr. Justice Miller continues: "Section 8 of the 
general railroad act [chapter 282, Laws of 1854] requires 
that every railroad corporation * * * shall, before 
the lines of such railroad are opened, erect, and thereafter 
maintain, fences on the sides of their roads, of the height 
and strength of a division fence, as required by law, with 
openings, or gates, or bars for the use of the proprietors of 
the land adjoining such railroad, and to construct and 
maintain cattle guards at all said crossings, and declares 
that so long as such fences and cattle guards shall not be 
made, and when not in good repair, the corporation and its 
agents shall be liable for all damages ; and when such fences 
and cattle guards shall have been made and kept in good 
repair, such corporation shall not be liable for any such 
damages, unless negligently and willfully done." The 
learned judge then goes on to construe the statute, holding 
that it imposes upon railroad corporations the duty of put- 
ting in cattle guards at all farm crossings, and that in the 
case before him the plaintiff was entitled to a crossing 
under the railroad. 

It will be observed that the opinion only quotes a part 
of the first sentence of the section. The quotation stops at 
a comma, and that which follows is only a construction 
placed upon the balance of the sentence, and with all due 



Vol. 30] SEPTEMBER TERM, 1890. 329 



O. & R. V. R. Co. V. Severln. 



respect to the judge who wrote, and the court which adopted, 
the opinion, I must say that such construction was not 
justified by the language of the sentence. The succeeding 
words are, to continue the quotation where it stops in the 
opinion, '^ and shall also construct, where the same has not 
already been done, and hereafter maintain, cattle guards at 
all road crossings suitable and sufficient to prevent cattle, 
horses, sheep, and hogs from getting on to such railroad." 

This opinion, being thus so manifestly based upon a mis- 
conception of the statute, thus construed, cannot be received 
as an authority by this court. 

The Compiled Statutes of the state of Missouri (1879) 
article 2, section 809, provide that "every railroad cor- 
poration * * * shall erect and maintain lawful fences 
on the sides of the road where the same passes through, 
along, or adjoining inclosed or cultivated fields, or unin- 
closed lands with openings and gates therein, to be hung 
and have latches or hooks, so that they may be easily opened 
and shut at all necessary farm crossings of the road, for 
the use of the proprietors or owners of the land adjoining 
such railroad, and also to construct and maintain cattle 
guards, where fences are required, sufficient to prevent 
horses, cattle, mules, and all other animals from getting on 
the railroad ; and until fences, openings, gates, and farm 
crossings and cattle guards, as aforesaid, shall be made 
and maintained, such corporations shall be liable in double 
the amount of all damages which shall be done by its 
agents, engines, or cars to horses, cattle, mules, or other 
animals on said road, or by reason of any horses, cattle, 
mules, or other animals escaping from or coming upon said 
lands, fields, or inclosures, occasioned in either case by the 
failure to construct or maintain such fences, or cattle 
guards," etc. Under this statute arose the case of Dent 
V. The SL Louis & Iron Mountain Railway Company, 83 
Mo., 496. This was an action for the recovery of double 
damages for stock killed by a train of cars in consequence 



n 



330 NEBRASKA REPORTS. [Vol. 30 



11 

* ^^H O. & R. y. R. Co. y. Sjverin. 



of tlie alleged failure of the road to construct cattle guards 
at plaintiff's farm crossing. From a judgment of the 
circuit court for the plaintiff the cause was taken to the 
supreme court, on appeal, and reversed. The opinion, by 
Chief Justice Henry, held that the statute did not require 
the coastruction of cattle guards at farm crossings, citing 
with approval the decision in Brooks v. N. Y, & E, R. 
Company f supra. 

The Revised Statutes of the state of Illinois (1875) con- 
tained the provision as a part of chap. 114, sec. 37, * * * 
"That every railroad corporation shall * * * ei^ect, 
and thereafter maintain, fences on both sides of its road, 
or so much thereof as is open for use, suitable and suffi- 
cient to prevent cattle, horses, sheep, hogs, or other stock 
from getting on such railroad (except at the crossings of 
public roads and highways, and within the limits of cities 
and incorporated towns and villages), with gates or bars at 
the farm crossings of such railroad, which farm crossings 
shall be constructed by such corporation when and where 
the same may become necessary for the use of the proprie- 
tors of the lands adjoining such railroads; and shall also 
construct, where the same has not already been done, and 
thereafter maintain, at all road crossings now existing, or 
hereafter establislied, cattle guards suitable and sufficient to 
prevent cattle, horses, sheep, hogs, and other stock from 
getting on such railroad," etc. Under this statute, the case 
of P. P. & J. R. Co. V. Barton, 80 111., 72, arose. In the 
court below. Barton sued the railrway company for the 
value of stock belonging to him that had been killed by 
the engine and cars of the defendant at two different times 
and places. One of the animals for which the plaintiff re- 
covered was killed in the town of lower Peoria, at a point 
where it was not the duty of the railroad company to have 
fenced its track. I quote from the opinion of the supreme 
court by Chief Justice Scott, that "the other stock was 
killed on the defendant's road where it passes through a 



-Vol. 30], SEPTEMBER TERM, 1890. 



331 



O. & R. V. R. Co. V. Sjveria. 



common field, consisting of several square miles, owned by 
different persons, some of whom resided therein, and was 
fenced only on the outside. The railway company, al- 
though its road had been open for use more than six 
months, had not fenced its track entirely through the in- 
closure. Within the limits of this common field, and near 
where the stock was killed, there was a crossing which de- 
fendant insists was a 'public road crossing/ and that the 
company could not lawfully fence across it. It was used 
principally by parties residing within the inclosure, and 
was not a public road in any just sense; but if it was, it 
would not release defendant from liability for the stock 
killed near that point. The stock was not killed exactly 
on the crossing. Had it been a public crossing, it would 
have been the duty of the company to have placed 'cattle 
guards' there to prevent stock from getting upon the track ; 
and if a private* farm crossing/ as it really was, it was the 
duty of the comi>any to place tliere bars, or gates, for the 
protection of stock that might lawfully run at large within 
the common field. The company had erected neither 'cat- 
tle guards' nor ' bars or gates,' and it was therefore clearly 
liable for the stock killed." The judgment was reversed 
l)ecause the plaintiff had been allowed ^o recover also for 
one animal killed when, under the declaration and proof in 
the case, there was no liability on the defendant; otherwise 
it would have been affirmed. 

The General Statutes of the state of Minnesota (1878), at 
chap. 34, sees. 54 5, provide that "all railroad companies 
in this state shall, within six months from and afler the 
passage of this act, build, or cause to be built, good and suf- 
ficient cattle guards at all wagon crossings, and good and 
substantial fences on each side of such road. 

'* Sec. 55. All railroad companies shall be liable for 
domestic animals killed or injured by the negligence of 
such companies ; and a failure to build and maintain cattle 
guards and fences, as above provided, shall be deemed an 
act of negligence on the part of such companies/' 



332 



NEBRASKA REPORTS. ,[Vol. 30 



O. & R. V. R. Co. V. Severln. 



In the case of Sathcr v. Chicago, JFtlwaukee & SL Paul 
R. Co., 40 Minn., 91, in the opinion of the court, by Judge 
Vanderburgh, this statute is construed that wagon crossings 
" means established wagon roads intersecting railroads. The 
statute does not name or include ' private ways,' or ' farm 
crossings, so called. The former are to remain open and 
are protected by cattle guards and wing fences, while the 
adjacent farms or lands are required to be separated 
from the right of way by fences on each side of said road; 
and if farm crossings are reserved or secured by adja- 
cent land-owners for private convenience, the gates and 
bars for the oi>enings are understood to be a part of the 
fence, and hence sufficient to protect stock and keep it from 
going upon the track, except when taken across the same 
by or under the authority and direction of the owner; and 
the provisions of the statute as made do not reach such 
cases. In other words, the statute requires railroad com- 
panies to fence along their right of way where it can do so, 
but it cannot fence rcross highways, the protection there 
required, in order to keep cattle off the track, is the main- 
tenance of cattle guards ; and, in the absence of special or 
other statutory provisions than is provided in the chapter 
referred to, we think the road is fenced, as respects the farm 
crossings, where safe and proper gates are erected and main- 
tained." The court cites the cases of Brook v. N. Y. & E. 
R. Co., supra, and Cook v, Milwaukee & St. Paid R. Co., 
36 Wis., 45. The judgment for the plaintiff in the lower 
court was reversed. 

An act of the legislature of the state of Wisconsin, en- 
titled "An act in relation to railroads and the organization 
of railroad companies," approved March 22, 1872, provided 
sec. 30, that " every railroad company or other party having 
the control or management of a railroad, the whole or any 
pai*t of which shall be located in this state, shall and is 
hereby required to erect and maintain good and sufficient 
fences on both sides of such road (depot grounds excepted) 



Vol. 30] SEPTEMBER TERM, 1890. 



333 



O. & R. V. R. Co. V. Severln. 



of the height of four and a half feet, with openings, or 
gates, or bars therein, and suitable and sufficient farm 
crossings of the road for the use of the proprietors of 
the lands adjoining such railroad; and also construct and 
maintain cattle guards at all highway crossings to prevent 
cattle and other animals from getting on to such railroad." 
It is further provided that until such fences and cattle 
guards shall be constructed, such railroad company, or 
other party, should be liable for all damages done by the 
agents or engines to cattle, horses, or other animals 
thereon ; and it was further provided that when such 
fences should be duly made and maintained the railroad 
company should not be liable for any such damages unless 
willfully or negligently done. 

In the case of Cook v. 31. & St P. R, Co., supra, the 
supreme court in the opinion by Judge Lyon construes the 
said statute, from which opinion I quote: "The only neg- 
ligence which the complainant imputes to the defendant is 
the failure to put in the additional cattle guard; and the 
loss of or injury to the horses of the plaintiflF is attributed 
solely to the absence thereof. The action is predicated 
upon the hypothesis that the defendant was under a legal 
obligation to put in the cattle guard, and hence is liable for 
all damages suffered by the plaintiff in consequence of its 
neglect to do so. Unless this hypothesis is correct, the 
complaint fails to show a cause of action against the de- 
fendant. The controlling question is, therefore, was the 
defendant under a legal obligation to put in such cattle 
guard? The complainant does not allege that the defend- 
ant ever agreed to do so, but it is argued that this is a publio ^ 
duty,, the performance of which is obligatory upon the de- 
fendant without any such agreement. It is quite true (and 
the court has so held) that the defendant, as lessee in pos- 
session of the railroad, holds it subject to all duties im- 
posed on its lessor for the benefit and protection of the 
publia {McCall v. Chamberlain, 13 Wis., 637.) But the 



334 



NEBRASKA REPORTS. [Vol. 30 



O. & R. V. R. Ck>. y. Seyerin. 



extent of such public duty in respect to cattle guards is 
fixed and determined by the statute on that subject, which 
does not require railway companies to construct cattle 
guards at farm crossings, but only highway crossings" — 
citing the statute as above. The judgment of the lower 
court overruling a demurrer to the complaint was reversed. 

The Indiana decisions, while in line with the cases cited, 
are not considered as authority in this state ; the statute of 
that state in regard to the duty of railroads to fence their 
lines being so different from our own. 

The only cases cited by either party in the briefs of 
counsel, in the case at bar, are Bogga v. C, B. & Q, R. Cb., 
6 N. W. Rep,, 744, and Gray v. Burlington & Mo. R. 
Co,y 37 la., 119. The decisions and opinions in these 
cases are founded upon sec. 1936 of the Code of Iowa, 
that " when any person owns land on both sides of any 
railway the corporation owning the same shall, when re- 
quested so to do, make and keep in good repair one cattle 
guard and one causeway or other adequate means of cross- 
ing the same, at such reasonable, place as may be designated 
by the owner." (Iowa Code, vol. 1, p. 490.) 

The cases cited, as well as others of the supreme court 
of Iowa, decided under the above law, hold that it is the 
duty of railroad companies, under the circumstances con- 
templated by the language of the section, to put in cattle 
guards when requested so to do by the owner of lands sit- 
uated on both sides of the railroad. I do not doubt the 
correctness of such holdings, but the statute under which 
they were made is so radically different from our own that 
they cannot be followed here. 

I therefore reach the conclusion that the provisions of 
our statute above quoted, either by their language analyzed 
and fairly construed, or in the light of the construction 
placed upon similar statutes by the courts of other states, 
did not impose upon the defendants the duty of putting in 
cattle guards at the private or farm crossings on the plaint- 



Vol. 30] SEPTEMBER TERM, 1890. 



335 



O. & R, V. R. Co. V. Ssverin. 



iff 's land ; aud that the findings and decree of the district 
court are unsnstained by the law and the facts of the case. 
The judgment of the district court is reversed and the 
cause is dismissed. 



Reversed and dismissed. 



NoRVAL, J., concurs. 



Maxwell, J.^ dissenting. 

Being unable to concur in the decision of the majority of 
the court, I deem it my duty to state the reasons for such 
non -concurrence. The plaintiff's railway runs between 
the defendant in error's residence and the public road, and 
he has applied under the statute to require the company to 
leave an open way between his residence and the public 
road. On the trial of the cause in the court below judg- 
ment was rendered in his favor, from which the railway 
company brings the cause into this court. 

Sec. 106, chap. 16, Compiled Statutes, provides: "When 

'any person owns land on both sides of any railroad the 

corporation owning such railroad shall, when required so 

to do, make and keep in good repair one causeway or other 

adequate means of crossing the same." 

Sec. l,art. l,chap. 72, Compiled Statutes, provides: "That 
every railroad corporation whose lines of road or any part 
thereof is open for use, shall, within six months after the 
passage of this act, and every railroad company formed or to 
be formed, but whose lines are not now open for use, shall, 
within six months after the lines of such railroad or any 
part thereof are open, erect, and thereafter maintain, fences 
on the sides of their said railroad, or the part thereof so 
open for use, suitably and amply sufficient to prevent cat- 
tle, horses, sheep, and hogs from getting on the said rail- 
road, except at the crossings of public roads and highways, 
and within the limits of towns, cities, and villages^ with 



336 NEBRASKA REPORTS. [Vol. 30 



O. & R. V. R. Co. V. Severin.' 



OPENS, or gates, or bars at all the farm crossings of such 
railroads for the use of the proprietors of the lands adjoin- 
ing such railroad." 

These statutes are in pari materia and are to be con- 
strued together. It will be observed that, under sec. 106, 
chap. 16, the railway company is required, when requested 
so to do, to make and keep in good repair one causeway or 
other adequate means of crossing the railway. The com- 
pound word "causeway" appears to be derived from ^he 
Latin words via calciata — a way paved with limestone. The 
present meaning of the word is a way raised above the 
natural level of the ground by earth, stones, etc., and when 
applied to a railway crossing it evidently means a suitable 
passage way across the track and right of way. If it would 
be inconvenient to construct a causeway, then the railway 
company must provide other adequate means of crossing 
the track and right of way. Sec. 1 of chap. 72 requires 
farm crossings of railroads to be with opens, gates, or bare. 
There are three classes of cases therefore provided for by 
statute and the question of what is an adequate crossing is 
a question of fact, considering all the circumstances of each 
case. If a crossing is but little used, then bars may be 
sufficient and would be an adequate provision. If the 
crossing is used to a greater extent, then gates may be suf- 
ficient, but if the crossing is in constant use— as where the 
railway intervenes between the public road and the resi- 
dence of the land-owner, then an adequate crossing would 
be an open way. The words " with o|>ens" are evidently 
designed to apply to cases of that kind, otherwise they 
have no meaning whatever. 

Railways have become a matter of public necessity, and 
under the statutes of this state there is but little restriction 
upon the right of a railway corporation to construct roads 
wherever its inclination may suggest. From the necessity 
of the case the property of private individuals must sus- 
tain injury by the running of such roads. This, however, 



Vol. 30] SEPTEMBER TERM, 1890. 337 



O. & R. V. R. Co. V. Siveiin. 



is borne by the land-owners because of tlje public necessity 
for railways. In many cases it is unavoidable in construct- 
ing the roads to cut off access from the higliway to the 
residence of the land-owners. The law, therefore, has 
provided a safeguard in the land-owner's favor and re- 
duces his inconvenience and damage to his property to the 
minimum by requiring the company to furnish adequate 
means of crossing the railway and access to the public 
road. And where gates or bars would not furnish the 
adequate conveniences, then the company must leave an 
open way so that the owner of the land may pass and re- 
pass without the delay and danger incident to taking down 
and putting up bars or opening or shutting gates. The 
trifling cost to the company of putting in a crossing of 
that kind is as nothing compared to the benefit derived by 
the occupier of the land. It would be intolerable to re- 
quire a land-owner, whose land was cut off from communi- 
cation with the public road and who had occasion to cross 
the railway many times each day, to open and shut gates 
each time that he crossed lihe same. His rights should 
be considered as well as those of the railway company. 
No person would desire to purchase a farm on which to 
reside where it was necessary to open and shut two gates 
and cross a railway track in order to reach the dwelling 
house; and such a farm would be practically unsalable at 
the price of lands adjoining not intersected by a railway. 
Compared to the loss of the land-owner the expense of the 
company in maintaining an open way for his convenience 
is but a trifle, and it is but reasonable to suppose that such 
crossing was within the contemplation of the parties when 
the right of way was acquired. 

The court below found that the open way was the only 
adequate means of cros-ing, and this court cannot say, as a 
matter of law, that such way is not required. The words 
"with opens" are entirely ignored in the majority opin- 
ion, although they evidently refer to a class of cases not 
22 



338 NEBRASKA REPORTS. [Vol. 30 



Detwiler v. Deiwiler. 



provided for where gates or bars would be a sufficient 
means for a farm crossing. 

The judgment of the court below in my view is right 
and should be affirmed. 



William L. Detwiler et al., appellees, v. Matilda 
Detwiler et al., appellants. 

[Filed Septehbeb 18, 1890.] 

Besulting Trusts : Fraudulent Conveyances. J. B. D. bought 
certain city lots, paying for them with his own means, and by 
his direction the deed therefor was made by the vendor and 
grantors to M. A. D., mother of J. B. D. Held, That a trust 
in said lots resulted in favor of J. B. D. But if the title was 
thas directed to be made to M. A. D. for the purpose and inten- 
tion of defrauding the creditors of J. B. D., he, being insolvent 
and contemplating bankrupted, could not enforce such trust by 
action, but the legal title afterwards acquired by him was re- 
ceived free of any equitable claim of other heirs of M. A. D., she 
being deceased. 

Appeal from the district court for Douglas county. 
Heard below before Wakeley, J. 

BarUeit & Cornish, and Savage, Morris & Davis, for ap- 
pellants, cited: Pom., Eq. Jur., vol. I, sees. 401-4, vol. 
II, sees. 19, 418, 419, 609, 610, 649, 664, 687, 818 ; Bleak- 
ley's App., 66 Pa. St., 187; Van CoU v. Prentice, 10 N. E. 
Rep. [N. Y.], 257; Rapalje & Lawrence's Law Die, 268 ; 
Herman, Estoppel, 121 6, sec. 1085; Goodspeed v. Fullei-^ 46 
Me., 141 ; Draper v. Shoot, 25 Mo., 197 [69 Am. Dec., 46 2] ; 
Hammond v. Woodman, 41 Me., 177 [66 Am. Dec., 219]; 
Bobb v. Bobb, 4 S. W. Rep. [Mo.], 511 ; Parker v. Kuhn, 
21 Neb., 425-26; 1 Washburn, R.P.[4th Ed.], ch. 2; 3 



Vol. 30] SEPTEMBER TERM, 1890. 339 



Deiwiler v. Detwiler. 



Wait's Act. & Def., sees. 99, 102 ; 6 Id., sees. 2, 10; Tama* 
V. Hall, 60 Mo., 271 ; Putnam Free 8ch. v. Fiahei*, 34 Me., 
172; 6'cA. Dial. v. BenaoUy 31 Me., 381 [52 Am. Dec., 218] ; 
Brandt v. Ogden, 1 Johns. [N. Y.], 156 ; Jackson v. Parker y 
9 Cow. [N. Y.,] 74; Kirke v. Smith, 9 Wheat. [U. S.], 
241; Fugat v. Pia^ce, 49 Mo., 441 ; Ewing v. Buj-nett, 11 
Peters [U. S.], 41. 

George W. Covell, and E. H, Wooleifj contra, cited : 
CSUler 17. TuMe, 4 C. E. Gr. [N. J.], 549 ; Shroser v. Isaacs, 
1 Stew. [N. J. Eq.], 320 ; Slocum v. Marshall, 2 Wash. 
C. C, 397; Newton v. Preston, Pr. Ch. [Eng.], 103 ; Wright 
V. King, Harr. Ch. [Del.], 12; Enos v. Hunter, 4 Gilm. 
[111.], 211; O'Hara v. a Neil, 2 Eq. Cos., Ab. [Eng.], 
745; CoUington v. Fletcher, 2 Atk. [Eng.], 155; Ambrose 
V. Ambrose, 1 Cox P. Wm. [Eng.], 321 ; BoU v. Rogers, 
3 Paige [N. Y.], 156; Starkes v. LUtlepage, 4 Rand. 
[Va.], 372; Hershey v. WeUing, 14 Wright [Pa. St.], 244 ; 
Freeman v. Sedwick, 6 Gill [Md.], 28, 39 ; Stewart v. Igle- 
hart, 7 Gill & J. [Id.], 132; Rapalje & Lawrence, Law 
Die., 96-7; HaU v. Sawyer, 47 Barb. [N. Y.], 119; Story, 
Agency, sees. 3, 25, 126 (and note 3), 133 (and notes 1 
and 2); Perry, Trusts, sees. 1, 783; Dupont v. Wei^the- 
man, 10 Cal., 354 ; Mott v. SmiUi, 16 Id., 536-557; Blum v. 
Bobertson, 24 Id., 140; Mch. Bk, v. Bk. of Columbia 18 
U. S., 326; Beals v. Allen, 18 Johns. [N.YJ, 363; Hub- 
bard v. Elm^, 7 Wend. [N. Y.], 446 ; Rossiter v. Ros- 
siter, 8 Id., 494; North River Bank v. Aymar, 3 Hill 
[N. Y.], 263 ; Cox v. Robinson, 2 Stew. & Porter [Ala.], 
91 ; Slow V. Wyse, 7 Conn., 214 ; Ins. Co. v. Poe, 53 Md., 
28 [13 Am. Law Reg., 663]; Mechanics Bk. v. Schaum- 
burg, 38 Mo. 228; Nesbitt v. Helser, 49 Id,, 3^3; Sanford 
V. Handy, 23 Wend. [N. Y.], 260 ; BranUy v. S. Life 
Ins. Co., 53 Ala., 554; Wickham v. Knox, 33 Pa. St., 71 ; 
Waison v. Hopkins, 27 Tex., 637; Thurman v. WeUs-Fargo 
Ex. Co., 18 Barb. [N. Y.], 500; HoUsinger v. Com Ex. 



340 NEBRASKA. REPORTS. [Voi-. r,0 



Detwiler t. Detwiler. 



Bh, 6 Abb. Pr. [N. S.], 292 ; Spadone v. Manvd, 2 Daly 
[N. Y.], 263; Clark v. ileigs, 10 Bosw. [N. Y.], 337; 
Munn V, Com. Co., 15 Johns. [N. Y.], 44; Davmpnrt v. 
Buckland, Hill & D. [N. Y.], 75; FeUoiva v. Northrup, 
39 N. Y, 117; Ciiyler v. Merrijicld, 5 Hun [N. Y.], 559; 
Hetzelv, Barhci^ 69 Barb. [N.Y.], 1 ; Hoyt v. Hoyt, 17 Hun. 
[N. Y.], 192; Nixon v, Hyserott, 5 Johns. [N. Y], 58; 
AUm V, DeWitf, 3 N. Y., 276; Dunshen v, Goldbncher, 
56 Barb. [N. Y.], 579; Haywood v, Thomas, 17 Neb., 
237, 241; G ailing v. Lane, 17 Id., 77; Jackson v. Wood- 
ruff, 1 Cowen [N. Y.], 276; Jackson v. Luquere, 5 Id., 
221; HuU V. a, B. & Q. R. Co,, 21 Neb., 373; Bailey 
V. Irby, 2 Nott & McCord [S. Car.], 343 ; Union Canal 
Co. V. Young, 1 Whart. [Pa.], 426; Parker v. Kuhn, 21 
Neb., 413. 

Cobb, Ch. J. 

The plaintiffs and appellees in this cause exhibited their 
bill, in the court below, against the appellants, for the pur- 
pose of setting aside a deed executed by William H. Det- 
wiler, as attorney in fact of plaintiffs, to John B. Det- 
wiler, of lots 3 and 4 of block 256, in the city of Omaha, 
on the ground of fraud, and to establish the plaintiffs' 
rights as heirs of Mary A. Detwiler, deceased, to said lots. 

The plaintiffs set up that William L. Detwiler, Mary 
Jane Parkins, and Josephine Clinton were the children 
and heirs of Mary A. Detwiler, deceased ; that Joseph F. 
Parkins was the husband of Mary Jane; that Fred. Clin- 
ton was the husband of Josephine, and that they were the 
only heirs of said Mary A. Detwiler, except Emma De- 
Lora Gallagher and John B. Detwiler, deceased ; that said 
Emma and her husband, John Gallagher, were made de- 
fendants to the suit because they refused to join as plaint- 
iffs ; that Matilda A. Detwiler was the widow of John B., 
deceased, and that Augustus K., Caroline, and Grace Det- 



Vol. 30] SEPTEMBER TERM, 1890. 



341 



]>etwiler y. Detwller. 



wiler were his children and only heirs at law. The rela- 
tionship of the parties ^to the suit appears in the following 
table : 



Parents: 



{William H. Detwiler 
and 
Mary A. Detwiler. 
John B. Detwiler, deceased. 
William L. Detwiler, plaintiff. 
Children :-( Mary Jane Parkins, plaintiff. 
Josephine Clinton, plaintitV. 
Emma DeLora Gallagher, defendant. 

{John B. Detwiler, deceased, 
and 
Matilda A. Detwiler, defendant. 
{Augustus K. Detwiler, defendant. 
Caroline Detwiler, defendant. 
Grace Detwiler, defendant. 
Joseph F. Parkins, plaintiff, 

and 
Fred. Clinton, plaintiff. 



Parents 



Husbands 

OP 

Plaintiffs 



{; 



The plaintiffs set up that Mary A. Detwiler died in- 
testate in the year 1874, seized in fee simple of said lots; 
that in said year John B. Detwiler procured the title by 
fraud ; that his deed was executed by William H. Det- 
wiler without authority of the plaintiffs or any of them ; 
that they never discovered that fact until within the year 
prior to the commencement of this suit ; that no consider- 
ation was paid by said John B. to William H. Detwiler, 
or to any of the plaintiffs, or to the grantors in said deed, 
and that said William H. had no knowledge that he was 
signing a deed to said lots; that his signature was pro- 
cured by said John B. by false and fraudulent representa- 
tions that the said instrument was a power of attorney or 
other instrument necessary in some business transaction, 
and which the said William H. supposed he was signing 
as an instrument other than and different from a warranty 
deed of said premises ; that he did not discover that he 



342 NEBRASKA REPORTS. [Vol. 30 



Dctwiler v. Detwiler. 



P-^ 



had made said deed until within the year prior to the 
commencement of this suit, and that he signed the same 
relying upon the representations of said John B. Detwiler ; 
and praying that the court decree the plaintiffs each one- 
fifth interest in said real estate. 

The defendants answered, denying that Mary A. Det- 
wiler owned said real estate, and setting up that the same 
was purchased by JohnB. Detwiler, in his lifetime, and con- 
veyed to said Mary A. in trust for the benefit of said John 
B. and his heirs, all of which was known to the plaintiffs 
at the time of said Mary A.'s death, and alleging that said 
Mary A. held the title to said lots in trust for the use and 
benefit of John B. Detwiler and his heirs, and that Mary 
A., after receiving said conveyance, agreed to execute the 
trust by reconveying the lots to John B. and his heirs, and 
before the execution thereof, in the year 1874, the said 
Mary A. died suddenly, leaving the legal title in her, and 
that, for the purpose of executing said trust, the plaintiffs, 
in 1874, executed to said William H. Detwiler, their father, 
the husband of Mary A., deceased, a power of attorney, 
authorizing him to make the conveyance, which is claimed 
by them to have been procured by fraud ; that by virtue 
of said power of attorney, and witli their full knowledge, 
the property was conveyed to John B. Detwiler by Will- 
iam H. Detwiler on October 7, 1874. 

The answer further sets up that the claim of the plaint- 
iffs is for the purpose of defrauding the said Matilda A. 
Detwiler and her children out of their title to said real 
estate; and further interposes the statute of limitations. 

The plaintiffs replied, alleging that the said property was 
purchased by said John B. Detwiler, as agent of said Mary 
A. Detwiler. 

Upon the argument and hearing of this cause it was re- 
► ferred by the court to A. N. Ferguson, Esq., to take testi- 
mony and report what sums have been paid by J. B. 
Detwiler in his lifetime, or by his heirs or legal represen- 



Vol. SO] SEPTEMBER TERM, 1890. 343 



Dclwiler v. Dctwiler. 



tatives since his death, for taxes or assessments on lots S 
and 4, in block 256, in Omaha, or improvements thereon, 
or pertaining thereto, and the amount, with legal interest; 
by which it was found that the sum of $717.84 had beeu 
so taxed, assessed, and paid. 

Subsequently, on March 28, 1888, the cause which wa» 
tried to the court at the September term, 1887, and taken 
under advisement, came on to be decided and was found 
generally, upon pleadings and evidence, in favor of the 
plaintiffs; and it was further specially found that Mary 
A. Dctwiler, the mother of William L. Detwiler, Mary 
H. Parkins, Josephine Clinton, Emma DeL. Gallagher, and 
John B. Detwiler, died seized of the legal and equitable 
title of lots 3 and 4, in block 256, in the city of Omaha, as 
designated and described on the surveyed plat of said city, 
and that said lots descended to her. said children and heirs 
at law, subject to the curtesy right of her husband, William 
H. Detwiler. That each of her said children inherited 
from her the undivided one-fifth of said lots subject to the 
life estate, or tenancy by the curtesy, of the said William 
H. Detwiler, and that her said children were tenants in 
common of said real estate. 

And it was further found that in May, 1874, shortly 
after the death of Mary A. Detwiler, her said children and 
heirs at law, made, executed, and delivered to William H. 
Detwiler, their father, a joint power of attorney, dated 
May 29, 1874, recorded October 8, 1874, in book 17 of 
deeds of the records of said county, on pages 5, 6, and 7, em- 
powering him "to bargain, sell, and convey" the said real 
estate for them and in their names; that said power of 
attorney was not obtained by fraud, and was a valid in- 
strument in all respects; that under this power of attorney, 
William H. Detwiler, as attorney in fact of the heirs of 
Mary A. Detwiler, and in the names of four of them, on 
October 7, 1874, made, executed, and delivered to one of 
his sons, John B. Detwiler, and one of said heirs, a vol- 



344 



NEBRASKA REPORTS. [Vol. 30 



Detwiler y. Detwiler. 



iintary conveyance of said real estate, without considera- 
tion, which was recorded October 8, 1874, in book 17 of 
deeds of the records of said county, on page 7 ; that said at- 
torney in fact had no authority to make such conveyance 
without consideration, under the power granted to him; 
that the grantors of the power were tenants in common of 
the property, and the attorney undertook to convey to one 
of them, without consideration, the undivided interest of 
the others, which was in violation of his authority and was 
voidable. 

And was further found that the obtaining of the said 
conveyance was, in contemplation of law, a fraud and cloud 
upon the title of the plaintiffs and heirs at law of Mary 
A. Detwiler, deceased, and that they are entitled to the de- 
cree of this court adjudging it void. 

And was also further found that none of the plaintiffs 
had actual knowledge of the conveyance having been made 
by their attorney in fact to their co-tenant until shortly 
before bringing this suit, and that they are not shown to 
have come to the knowledge of any facts indicative thereof, 
until recently, within less than four years before bringing 
this action, and that the statutes of limitation have not 
barred the same. 

And was also further found that John B. Detwiler in 
his lifetime, and his estate since his death, have paid taxes 
and special assessments for improvements pertaining to 
said real estate, amounting with interest to $717.84, as re- 
ported by the referee, and that the plaintiffs should pay to 
the estate of John B. Detwiler, deceased, the undivided 
three-fifths thereof, amounting to $430.71, which sum is 
made a perpetual lien on the interests of the plaintiffs in 
said real estate, with interest thereon until paid by them ; 
and that the said Emma DeL. Gallagher should pay to 
said estate the undivided one-fifth thereof, amounting to 
$143.57. 

It was decreed that the conveyance to John B. Detwiler, 



V 



Vol. 30] SEPTEMBER TERM, 1890. 845 



Detwiler y. Detwiler. 



of said lots in the name of the heirs of Mary A. Detwiler, 
deceased, by their attorney in fact William H. Detwiler, 
l)e set aside and canceled, and that on the payment by the 
plaintiffs to the legal representatives of John B. Detwiler, 
deceased, of the undivided three-fifths of said sum so paid 
for the special assessments and taxes on said real estate, 
being $430.71, with interest, the perpetual lien therefor be 
canceled. 

It was also decreed that the cloud upon the title of the 
plaintiffs, by said conveyance, be removed on the condition 
stated, and the deed canceled, and the plaintiffs recover the 
costs. 

To all of which the defendants excepted on the record, 
and appealed to this court. 

From an examination of the pleadings, and the bill of 
exceptions, and the points of decision attached to the record 
of the district court, the case turns upon two propositions 
of law and evidence. 

The lots in controversy were owned by Andrew B. 
Moore. He testified upon the trial, on part of defendants, 
that he sold the lots to John B. Detwiler; that he received 
the entire consideration from him, and that by his direction 
he executed the deed of conveyance to Mary A. Detwiler, 
a copy of which was put in evidence, and is exemplified in 
the bill of exceptions, from which it appears to have been 
executed by Andrew B. Moore and Mary A., his wife, to 
Mary A. Detwiler, dated and acknowledged April 22, 
1867, with covenants of general warranty and considera- 
tion of $257, for lots Nos. 3 and 4, in block '256, in the 
city of Omaha. 

There is a large amount of testimony on the part of 
plaintiffs to the effect that Mary A. Detwiler placed the 
sum of $300 in the hands of John B. Detwiler at or about 
the time of the execution of this deed for the purpose of 
being invested by him, for her, in lots in Omaha. But it 
does not seem that this testimony was sufficient to satisfy 




346 NEBRASKA REPORTS. [Vol. 30 



Delwiler v. Detwiler. 



tlie trial court to adopt the theory that the purchase of 
these lots was made pursuant to that investment, but 
rather that the lots were purchased by John B. Detwiler for 
himself, and the title placed in Mary A. Detwiler for the 
purpose of defrauding his creditors in contemplation of 
bankruptcy. A careful examination of all the testimony 
at the last term of the court, by each member then present, 
failed to convince either of us of the fallacy of this theory 
so far as it concerned the purchase of the lots by John B. 
Detwiler for himself, and the placing of the title in the 
name of his mother Mary A. Detwiler for his own con- 
venience and purposes. 

The honorable judge in the points of decision says, re- 
garding the resulting trust claimed by the defendants in 
favor of John B. Detwiler, by reason of his having paid 
the consideration to Andrew B. Moore, "that, upon all the 
authorities, the evidence of such payment must be clear, 
definite, and satisfactory, although it seems probable that 
the iramcdinle consideration to Moore was the cancellation 
of his indebtedness to the Bracken firm," etc. While we 
agree with this proposition that, in order to establish a re- 
sulting trust, the evidence of the payment of the consid- 
eration by the person claimed to be the cestui que trust 
must be clear and definite, we are all of the opinion, from 
the evidence before us, that the full and entire consider- 
ation for the purchase of the lots in question was made 
with the means of John B. Detwiler. Moore himself is 
the only witness to this point, and his evidence to that ef- 
fect appears* to be clear and definite, and we think it satis- 
factory. In saying this we do not seek to ignore the fact 
that, as above stated, there is a large amount of conflicting 
testimony as to whether or not the alleged trustee, Mary 
A. Detwiler, placed in the hands of her son John B., at or 
about the time of this transaction, a sum of money to be 
invested in town lots in Omaha. But this conflicting tes- 
timony, in our view, fails to reach the point and to render 



Vol. 30] SEPTEMBER TERM, 1890. 347 



Delwilery. D.lwiler. 



less certain and naore indefinite the testimony of Moore 
that the consideration for the deed to Mary A. Detwiler 
was actually paid and delivered to him by John B Det- 
wiler; and there is no evidence whatever to connect any 
moneys delivered, or claimed to have been delivered, to 
John B. Detwiler by his mother with the bill for groceries 
which Moore swears was the consideration for the deed. 
But we were, and still are, unable to follow the trial court 
in its conclusion, that such placing of the title in the name 
of Mary A. Detwiler was for the purpose of defrauding 
the creditors of John B. Detwiler in contemplation of 
bankruptcy, or that such intent and purpose on his part 
is proved with that clearness and certainty required in tiie 
present action, where advantage is sought to be taken of 
such circumstance by parties not creditors of John B. 
Detwiler, and where the effect would be to work a forfeit- 
ure in favor of parties not interested in the bankrupt's 
estate. 

But if it he conceded that the purpose of John B. Det- 
wiler, in having the deed to the lots made to his mother, 
Mary A. Detwiler, was in contemplation of his taking the 
benefit of the bankrupt law, and to prevent the property 
from passing to his assignee in bankruptcy, and thereby 
tending to defraud his creditors, this, as I understand the 
law, did not prevent the creation of a resulting trust 
arising upon such conveyance; did not prevent Mary A. 
Detwiler taking and holding the lots as a trustee, and not 
as an absolute owner. Granted that it would create an 
impassable barrier to either John B. Detwiler or his heirs 
prosecuting an action for the enforcement of such trust, 
this would not prevent the trustee, Mary A. Detwiler, 
or her heirs at her decease, from divesting themselves of 
such trust, and thereby allowing the title to pass to John 
B. Detwiler or his heirs. 

It appears from the bill of exceptions that John B. 
Detwiler filed a petition in bankruptcy on May 30, 1868. 



348 NEBRASKA REPORTS. [Vol. SO 



De'.wiler v. Detwller. 




There is no evidence that he contemplated this proceeling 
at the date of the deed. The law is stated by Perry on 
Trusts, sec. 126: "Where, upon a purchase of property, 
the conveyance of the legal title is taken in the name of 
one person, while the consideration is given or paid by 
another, the parties being strangers to each other, a result- 
ing trust immediately arises from the transaction and the 
person named in the conveyance will be a trustee for the 
party from whom the consideration proceeds." By refer- 
ring to sec. 144, following, it will be seen that the word 
"strangers,'' as used in the section quoted, embraces llie 
mother of the cestui que trust In sec. 165, following, the 
author says: "If the voluntary conveyance is made for 
some illegal or fraudulent purpose, whether it is a com- 
mon law or modern conveyance, no trust will result to the 
grantor; as, if the voluntary conveyance is made to delay, 
hinder, and defeat creditors.'' 

Of the fifteen examples cited in support of this authority 
not one of them comes up to the proposition involved in 
this case. It will be admitted, nevertheless, that, were it 
established that the title to the property was placed in 
Mary A. Detwiler by John B. Detwiler for the purpose of 
defrauding his creditors, or for any unlawful purpose, and 
such title remained in her and her hefrs, an •action by him 
or his heirs could not be maintained against her or them 
therefor. 

The learned judge, in his points of decision, says : 
"Detwiler's repeated statements on oath in his bankruptcy 
proceedings are in direct conflict with the theory of the 
alleged trust; the failure to request or demand a convey- 
ance from his mother in his lifetime is strongly against it- 
Whatever may seem to be the probability, the evidence is 
not sufficiently strong and decisive to warrant the holding 
that there was a resulting trust, but it is not deemed necessary 
to determine whether there was or not." This point is 
quoted for the purpose of showing that the court below did 



Vol. 30] SEPTEMBER TERM, 1800. 



34D 



Batwller t, D.awUi^i. 



not decide that there was no resulting trust, and did no"^ 
decide against tiie evidence iiitrocUioeLl by defend^jntn ibr 
the purpose of e^iitabliijhing snch trust. We are therefore 
relieved of the embarra^i^ment of deciding adverse to the 
finding of t lie trial court upon a question of fact, wheu we 
express the opinion that the evidence establishes the pur- 
c.'liase ofj and payment for, tlie lots by John B. Detweiler 
for himself, and with bis owu means. The oonrt In its 
points of decisiDD continues; ** The only reason suggested 
by the proofs for putting the title fu bis raother^^ name is 
that lie contemplated bankruptcy proceeding.^ and wished to 
conceal his ownership. No court could aid him in enforcing 
a trust originating in such a motive ; the heirs miglit volun- 
tarily execute it* The question remains whether they did 
so.*' 

It is not necessary to defendants' case that any reasoQ 
should be suggested or indicated for John B, Detwiler 
putting the title in his mother's name; nor do I tliink that 
aaytbing is suggested or indicated by the proofs to that 
effect worthy of serious consideration. This brings us to 
the consideration of the second point which is indicated by 
the clause of the points of decision last quoted, that, although 
it were conceded that *^no court could aid him in enforcing 
a trust originating in ench a motive," the heirs of Mary A, 
Detwiler having conveyed the title to Jolm B. Detwiler, in 
recognizing this fact a court of equity does not enforce the 
trust but simply recognizes its enforcement by the parties 
upon whom the trust title was cast by descent. 

But it is contended tliat, as the power of attorney by 
virtue of which the deed of the plaintiffs and Mr. and Mrs, 
Gallagher to John B. Detwiler of these lots did not in 
terms empower the attorney therein name<l to convey land, 
except iij>on bargain and sale, no title whatever passed 
by such deed J that such deed is absolutely voidj and there- 
fore the case stands as though no such conveyance hail been 
made. We caunot agree to this proposition. The power 



350 



KEBRASKA REPORTS. [Vol. 30 



Beiwller V. Dctwiler. 



of attorney^ executed by all of the original parties^ em- 
powered their attonieVj William H. Detwiler, for and in 
the unmOj place, and stead of the persons executing it, to 
biirgiiiii, sell, and convey to such j>erson or persons, aud for 
stjdi price or prieei^, on siieh terms of credit as he might 
see fit J all or any portion of the real estate, lands, teneiUL^nt~'*j 
ami heroditiiments of wliich the said Mary A. Detwiler died 
seized^ and i^ituate in the county of Cass, in this stale, or 
elsewhere, and in their names make, execute, and deliver 
such deed or deeds as might be necessary to convey their 
respective interests in and to said lands. 

Before entering upon the inquiry whether, in legal strict- 
ness, tills power of attorney, upon its face, erapowereil Will- 
iam H. Detwiler, the attorney therein named, to convey 
the lots in question without bargaining for the sale thereof^ 
and receiving a eonsidcratioii therefor in money, I will briefly 
examine into the facts and circumstance of the execution and 
delivery of the inatrtnnent as shown by the evidence. It ap- 
pears from the testimony of William H. Detwiler, and in- 
fercntiidly tliat of the otlier witnesses than Mrs. Matilda A* 
Detwiler, that at the time of the death of Mary A. Detwiler 
the home.stead property of the family at Weeping Water 
stood in her name, and that all of the sous and daughter's 
and daughters' husbands were willing to execute a quit- 
claim deed of tlie same to their father, William H. Det- 
wiler; also to turn over to him all the personal property 
and effects of the deceased which had not been divldetl up 
amongst themselves, Mrs. Matilda A. Detwiler testified 
that she was present at the funeral of Mary A. Detwiler at 
Weeping Water, tor^ether with her husband, John 11 Det- 
wiler, and that a day or two after the funeral, as witness 
and her husband were about going to the depot to return 
home, the jjlaiutiff, Mrs, Josephine Clinton, her husband 
and William L, Detwiler, all stood at the wagon which 
was to take them to the depot, when it was mentioned and 
acquiesced in by all present that pa{)ers were to be made out 



Vol. 30] SEPTEMBER TERM, 1890. 351 



Detwiler y. Detwiler. 



by which the said property was to go into the hands, pos- 
session, and control of Wilh'am H. Detwiler; that there 
had previously been a general talk, after the funeral, in re- 
gard to fixing up those matters; that her husband, John B. 
Detwiler, said to his father as they stood around the wagon, 
** Father, come up, and we will attend to those papers.'' 

It api)ears that subsequent to this William H. Detwiler 
went to Omaha, and returned to Weeping Water with the 
power of attorney drawn up and signed by John B. Det- 
wiler and Matilda A. Detwiler; that it was afterwards exe- 
cuted by the other parties to it. There is a large amount of 
confusing testimony introduced for the purpose of showing 
that the power of attorney, as drawn up, was not under- 
stood by the parties who executed it, especially as to the 
clause embracing other property of the deceased than, that 
in Cass county. But we agree with the trial court that 
the evidence does not establish fraud on the part of Will- 
iam H. Detwiler in obtaining the power of attorney, that 
he made no effort to conceal the terms of the instrument, 
and that all the signers had ample opportunity to know 
them and shpuld be held to them. 

It is very clear from the whole case that this power of 
attorney, was not executed by any of the parties in the view 
or for the purpose of making William H. Detwiler their 
attorney to bargain and sell the property described, or any 
part of it, and account to them for the proceeds, but was 
intended as a method of placing the Cass county property 
in his hands, under his control, for the purposes of his sup- 
port and maintenance; and, as William H. Detwiler testified 
on the trial, it may be reasonably inferred that this was in- 
tended to apply also to any other property which it might be 
found the deceased owned, or, as he expressed it, " that might 
be found to come under her jurisdiction." This being the 
intent and purpose of the power of attorney, was it a fraud 
on the part of William H. Detwiler to make the convey- 
ance of the lots in question to his son John B. Detwiler, 



352 



NEBRASKA REPORTS. [Vol. 30 



Manger v. Shipman. 



under whose roof he expected to live the remaiinlor of his 
life — such a fraud as would render the conveyance abso- 
lutely void? We think not. 

As to the consideration, I do not doubt that Imd this 
deed been executed by the parties, without the inlervention 
of an attorney in fact, in the terms in which it ivas Dxe- 
cuted, although no consideration was received, it would 
have conveyed the legal title. 

From these considerations I come to the concln^rion that 
although executed by an attorney under a povvtr to bar- 
gain, sell, and convey, it did carry the legal title to the 
property conveyed. 

It will not be overlooked that the defendants did not 
come into court asking relief, but only when brought by 
the plaintiffs to defend their title. 

The decree of the district court is 

Reversed and the bill dismissed. 
The other judges concur. 



Manger Bros. v. Milton Shipman, 



[Filed September 18, 1890.] 

fteview. Heldj That thci*e is sufficient testimoDy to anstaia the 
▼erdict. 

Error to the district court for Lancaster county, Trietl 
below before Field, J. 

/. L. Oaldtcell {J, R. Websto^ and E. P. Ehlmes with 
him), for plaintiffs in error, cited : Jennings r. Sunpson^ 12 
Neb., 664; Cooper v. Marshall,! Burr. [Eng.], 259; Ba- 
con's Abr., "Game''; Bowlston v. Hardy, 5 Cro, Elias,, 



Vol. 30] SEPTEMBER TERM, 1890. 353 



M luger V. 3 lipmau. 



547; 1 Chitty, Pleading, 94; Hardy v. Keene, 62 N. H., 
378; Bakei* v. Kinaey, 38 CaL, 634; Dickson v. McCoy ^ 
39 N. Y., 400; Hewes v. McNamara, 106 Mass., 281; 
Benndt v. Ford, 47 Ind., 264; Tiipper v. Clark, 43 Vt., 
200; Cooley, Torts, 349; Park v. Obrion, 23 Coim., 339. 

W. Henry Smith, contra, cited: McKone v. Wood, 5 
C. & P. [Eng.], 1; 1 Hale P. C, 430; May v. BurdeU, 
16 L. J. N. S. [Eng.], 64 ; Pollock, Torts, 317, 406 ; Wilk- 
inson v. Pai-roU, 32 Cal., 102, 103; Cummings v. Riley, 
52 N. H., 369; Cook v. Pickrel, 20 Neb., 433; Frammellv. 
Little, 16 Ind., 251 ; Cooley, Torts, 410-12. 

Maxwell, J. 

This action was brought in the district court of Lan- 
caster county to recover damages caased by the bite of a 
wolf, which the defendant in error alleges was harbored 
and retained by the plaintiffs in error. He alleges in the 
petition that "the above named plaintiff, Milton Shipman, 
who sues in this action by his next friend, John Shipman, 
and states to the court: That this action is begun for the 
sole benefit of the above named plaintiff, Milton Shipman; 
that the defendants Manger Bros, are partners doing busi- 
ness in the city of Lincoln, Lancaster county, Nebraska; 
that the defendants August Manger, Wm. Manger, and 
P. Manger, whose first full name is unknown, are the 
members and the only members of said partnership of 
Manger Bros.; that on the 4th day of March, 1888, and 
for a long time prior thereto, the said defendants were the 
owners of and in charge of, and were wrongfully, willfully, 
and injuriously keeping and harboring a vicious, wild 
animal, to-wit : A wild wolf in the city of Lincoln, Lan- 
caster county, Nebraska; and that on the said 4th day of 
March, 1888, in the city of Lincoln aforesaid, the said de- 
fendants did so wrongfully and injuriously and negligently 
keep said wild and vicious wolf, knowing the nature of 
23 



354 



NEBRASKA REPORTS. [Vol. 30 



.-t 



MaDger y. Sbipman. 



said wild and vicious animal ; that the said wolf was run- 
ning at large on the streets in the city of Lincoln aforesaid; 
that on the said 4th day of March, 1888, while this ijlaint- 
iff was walking on the streets of the city of Lincoln afore- 
said, the said wolf did, while so running at large as afore- 
said, attack this plaintiff with his teeth and claws, and did 
there and then bite, claw, wound, and lacerate this plaint- 
iff on or about the legs and arms, and did greatly injure 
this plaintiff on or about the body as aforesaid, because of 
which this plaintiff became sick, sore, and lame, and so re- 
mained and continued for a long period of time, to-wit, for 
the space of six weeks, during which time he, the said plniut- 
iff, suffered great bodily pain and suffering and anguish of 
mind and mental suffering, and that during. all of the 
time from said injury up to the beginning of this suit, this 
plaintiff, because of such injury and laceration as aforo.^aid, 
has and still is suffering great anguish of mind and mental 
pain ; that this plaintiff has sustained damages by reason 
of the aforesaid biting, wounding, and lacerating and the 
bodily pain and suffering and the mental anguish caused 
thereby, in the sum of $3,000, no part of which has beeo 



Service was had upon the plaintiff in error, who appeared 
and answered by a general denial. On the trial of the 
cause the jury returned a verdict in favor of the defendant 
in error for the sum of $660, and a motion for a new trial 
having been overruled, judgment was entered, on the ver- 
dict. 

The principal error relied upon in this court is that the 
verdict is not sustained by sufficient evidence. 

The testimony shows that there are five of the Manger 
Bros., and that Austin and Philip were in business in 
Lincoln during the years 1887 and 1888. There is a claim 
that Philip was not a partner during the winter and spring 
of 1888. The testimony upon this point is very unsalia- 
factory, and in view of the circumstances a jury would be 



Vol. 30] SEPTEMBER TERM, 1890. 



355 



Manger y. Shlpman. 



warranted in disregarding it. During the year 1887 a 
young brother of the Mangers obtained a pet wolf or coyote. 
This he kept for some months, when he removed to Indi- 
ana, and being unable to take the wolf with him lefl it in 
the care of his brothers, and it was tied in the back yard 
adjoining their place of business in Lincoln. In a few in- 
stances it seems to have been tied in front of their place of 
business, and was known to have bitten at least one person 
before the plaintiff, and seems to have been regarded as 
dangerous. The plaintiffs in error were notified by the city 
marshal that the animal was dangerous and that they must 
kill it. They disclaimed ownership and»^iade«no effort 
apparently to have the animal destroyed. August Manger 
testifies th^t he gave the animal to one 'Beha, an employe, 
and that he knew nothing of it thereafter, ^he testimone^ 
however, shows that the animal was kept on the groulKis 
back of their place of business and fed with scraps from^ 
the butcher shop. There was in fact, therefore, no chan^ 
in the persons who cared for the wolf. It is true the 
Mangers testify that they had no knowledge that the^wolf 
was kept in the back yard, but the outsbibn of their Wedi- 
bility was one for the jury, and the jury seeqK'to tiave 
regarded that testimony as unreliable.^ >* ' ^ 

That the injuries inflicted on thed^mdant in ^roVAffere 
of a very serious character is shown by all the testimo.rfy, 
and that tliese were inflicted by the wolf in question,,and it 
is clearly shown that this wolf was kept on the premises of 
the Manger Bros, and fed with meat from the shop. ji^Rfeae 
were circumstances which it was the duty of tho^ jtffy to 
weigh with the testimony of the Manger Bro^lT*^ shfcwing 
what was actually done by them-^in the premi^^ either 
personally or by their employes. The dams^e^are not 
excessive and there is sufficient testimony to sustain the 
verdict. The judgment is 

AfIIrhed. 

The other judges concur. 



V/ 



>r 



856 



NEBRASKA REPORTS. [Vol. 30 



Natl. Lumber Co. v. Wymore. 



National Lumber Co. v. City of Wymore. 



[Filed Septembeb 18, 1890.] 

1. The instructions must be predicated upon tbe testtmonj in 

the cause, and if not based thereon, although correct ahstracC; 
propositions of law, the error may be sufficient to caoie a rever- 
sal of the case. 

2. Cities: Claims Against: Conditional Alt^wance. Tbe 

allowance of a claim by the city council with the eotidiiion on- 
nezed to it "to be paid when there is money in the treasury to 
pay with '' is binding on the city, and the condition will not de« 
feat an action to recover a judgment thereon. 

Error to the district court for Gage county. Tried 
below before Appelget, J. 

A. Hardy f for plaintiff in error, cited : Bellows t?. Wed 
Fork, 30 N. W. Rep. [la.], 582; Skinner t?. Dayton, 19 
Johns. [N. Y.], 673* ; Gaines v. MiUer, 111 U, S., 395; 
Com. Bank of Buffalo v. Warren^ 16 N. Y., 577; H^r* 
mans v. Clarkson, 64 Id., 171; 1 Dillon, JSIim. Corp., 
sec. 463; Hoytv. TAompson, 19 N.Y., 207; Olcotlv. Tioga 
R. Co., 27 N. Y., 546; Medomak Bank v. CSirih, 24 Me., 
38; Whitnel v. Warner, 20 Vt., 425; Essea^ Turnpike v. 
Collins, 8 Mass., 292; Lyndeborough Glass Co. v. Mass. 
Glass Co., Ill .Id., 315; Sandwich Mfg. Co, v. Shiley, 15 
Neb., 109. 

T. D. Copbey, contra, cited : Fulton v. Lincoln, 9 Neb., 
363; Wheeler v. Plattsmouth, 7 Id., 279; MetTiam v. Otoe 
Co., 15 Id., 413; Omaha Nafl Bank v. Omaha, Id., 334, 

Maxwell, J. 

This action was brought by the plaintiff against the de- 
fendant to recover for building material used in the ereo- 



Vol. 30] SEPTEMBER TERM, 1890. 



357 



NiitL Lumber Co. t. Wymore. 



tion of a calaboose in that city. The defendant filed an 
answer as follows : 

"The defendant, in answer to the petition of the plaint- 
iff, admits that the plaintiff is a corporation doing business 
in said county, and that the defendant is a municipal cor- 
poration in the said county, but denies each and every 
other material allegation in the plaintiff^s petition set 
forth ; that this action is brought to recover for a certain 
bill of lumber furnished by the plaintiff to one Peter S. 
Darling, a builder and contractor, with whom the defend- 
ant, the then village of Wymore, by its chairman and 
boai-d of trustees, through a committee, consisting of two 
members of said board of trustees, had made a verbal con- 
tract for the erection of a calaboose; that the said contract 
was for the building complete and the turning over to the 
then village of Wymore, in a finished condition, the said cal- 
aboose building at a stipulated contract price — the said con- 
tractor Darling to purch&se material and hire labor in his 
own discretion and on his own responsibility; that pur- 
suant to said contract, the said builder. Darling, proceeded 
to erect the said calaboose, hired his own help, purchased 
lumber and hardware in his own discretion without any 
interference or control on the part of the defendant; that 
said building was never completed, nor turned over to the 
defendant, nor accepted by the defendant, but was burned 
Ixjfore completion and before acceptance by the defendant, 
and defendant has never had any use or benefit thereof, nor 
control or dominion over it, nor any connection whatever 
therewith, and therefore denies any and all responsibility 
therewith or therefor, and prays for judgment for costs 
against the plaintiff herein." 

The reply is a general denial. 

On the trial of the cause one J. R. Boggs testified that 
in 1883 he was a member of the board of trustees, and 
that he was a member of the building committee (to erect 
a calaboose); "that they built one while I was a member of 



358 



NEBRASKA REPORTS. [Voi>. SO 



Natl. Lumber Co. v. Wymore. 



the board. The contract was let to a man by the name of 
Darling/' 

Q. What arrangement, if any, was made about the city 
paying the National Lumber Company for its material fur- 
nished to build the calaboose? 

A. The contmct was let by taking sealed bidij^. The 
contract of Mr. Darling being considerably lower tlian 
any of the others, he was given the contract, and when he 
went to. make arrangements with the National Jjumber 
Company they would not let him have the lumber unles,^ 
the city would guarantee or stand good for its payment. 
He reported to the board, and they, at a regular meeting, 
voted to guarantee that the National Lumber Company 
should receive their pay ; in other words, that the city 
would stand good for the payment of the money. They 
also authorized the chairman of the board, Mr. A. J. Dnle.?, 
and myself to go and inform the National Lumber Goai* 
pany of the action of the board, which we did. 

Q, Who made the arrangements, and what position did 
they hold? 

A. The chairman of the board, Mr. A. J. Dates, onrl 
myself; I was one of the building committee. 

Q. State fully all you know about this, and who was tt> 
pay the company for the materials. 

A. I have stated as fully as I now remember it. The 
city of Wymore was to pay the company for the material?. 

The court instructs the jury "that the defendant, being 
a municipal corporation, can do no act or make any con* 
tract except by ordinance or resolution passed by the vil- 
lage board or council of such village or city. 

'^The court further instructs you that, as a matter of 
law, any committee or sub-committee, appointed by the city 
board or council of a municipal corporation, can only ex- 
ercise such powers as are delegated to it by the board or 
council that creates it. 

" The court further instructs you that if you find from 



Vol. 30] SEPTEMBER TERM, 1890. 359 



Natl. Luml>Gr Co. t. Wymore. 



the evidence that the building commiltee did, prior to the 
delivery of the lumber by the plaintiff, guarantee the 
payment of said lumber, and that the plaintiff, relying 
upon said guarantee, did deliver said lumber to said city or 
to some other person under direction of said committee, 
then you will find for the plaintiff and assess its damages 
at the amount you shall find from the evidence to be the 
value of the lumber so sold and delivered, with interest at 
seven per cent, unless you shall further find from the evi- 
dence that said committee had not been authorized by the 
city l)oard to make such guarantee. 

"The court further instructs you that if you shall find 
from the evidence that said building committee did not 
guarantee the payment of the lumber, as claimed in the 
plaintiff's petition, before the delivery of the same, or if you 
shall further find from the evidence that the said building 
committee has not been authorized by the city board to 
make such guarantee, then you will find for the defendant." 

The testimony shows that the city council allowed one of 
the bills for the labor in building the calaboose. They 
also allowed all or nearly all of the bill for hardware used 
in the building, the entry being as follows: " The calaboose 
bill was then taken up, and upon motion of trustee Snuffin, 
seconded byBoggs, it was moved that the sum of $61.27 
of said bill, being the work and labor upon said building, 
be allowed, and a warrant ordered drawn upon the general 
fund for the same. Upon roll call, trustees Boggs, McGuire, 
and Snuffin voted in favor of said motion, and the chair- 
man pro tern, declared the same carried. It was also rec- 
ommended that the balance, viz., $128.73, the material 
used in said building, be paid when there is money in the 
treasury to pay with." 

It will be seen that the plaintiff's bill for material was 
recommended to be allowed. It is true the council attached 
a condition to the recommendation of allowance, viz., 
" when there is money in the treasury to pay with." The 



360 NEBRASKA REPORTS. [Vol. 30 



Frans t. Young. 



action of the council, however, will not prevent the plaint- 
iff from recovering a judgment for the debt. The instruc- 
tions of the court, therefore, although correct as abstract 
propositions of law, perhaps, are not predicated upon the 
testimony and therefore are erroneous. 

Certain questions were raised in this court as to the 
power of the city to contract for the construction of the 
calaboose, also to incur an indebtedness for the game, it 
being alleged that there were no estimates made to incur 
such indebtedness. It will be observed, however, that 
those questions are not raised in the trial court, and, there- 
fore, will not be considered. 

The judgment of the district court is reversed and the 
cause remanded for further proceedings. 

Judgment accordijnui^y. 

The other judges concur. 



^^ B. F. Frans v. F. M. Young. 

3j mi 

[Filed September 18, 1890.] 

1. Schools: A MoDEBATOB of a school district is not required to 

take an oatb of office. 

2. : Officers De Facto. When a person elected to the office 

of moderator of a school district fails to file with the directoT of 
the district his written acceptance of the office, but imme- 
diately after his election enters upon the discharge of hm official 
duties, by presiding at school district meetings, cou [it eloign- 
ing school orders, and performing all other duties required by 
law of such officer, without objection from any one, for more 
than a year, heldj that the failure to file a written acceptance 
did not lui leit his title to the office. 

Error to the district court for Cass county* Tried 
below before Chapman, J. 



Vol. 30] SEPTEMBER TERM, 1890. 361 



FniDS T. Young. 



Beeson & Root, for plaintiff in error, cited : May v, 
Sck Dial, 22 Neb., 206; B. & M. R. v. Lancmter Co,, 4 
Id., 293; Oreighton v. Commonwealth, S3 Ky.,142; Ham- 
lin V. Kassafer, 15 Or., 466; Rapalje <fe Lawrence, Law, 
Die., 84o. 

B. S. Ram^sey, and Polk Bros,, contra, cited : Beach t\ 
Leahy, 11 Kan., 23; Angell and Ames, Cor. [9th K<l,],f4ec. 
24 ; Dial. No, S v. Malcolm, 4 Wis., 79* ; Basseti i% Fish, 75 
N. Y., 312; People v. Bennett, 54 Barb. [N. Y.], 4S0; SeJi. 
DisL V. Cowee, 9 Neb., 53 ; State v. Stone, 40 la., 547 -, State 
V. Bates, 23 la., 96 ; Barret v. Reed, 2 O., 409; Afiy, GenL 
V. Churchill, 41 Mo., 41; Wescott v. Holly, 12 Wend. [N, 
Y.], 481 ; Blenkenship v. Co. Court, 44 Mo., 230; Metz v. 
Ander8on,2S 111., 63. 

NORVAL, J. 

On the 18th day of September, 1889, the county attor- 
ney of Cass county having consented thereto, tlie relator 
filed in the district court of said county an information io 
the nature of a quo warranto, to try the right of the re- 
spondent to the office of moderator of school district No. 
6 of Cass* county. 

It is alleged in the petition that on the 4th day of April^ 
1887, the relator possessed all the qualifications required 
by law to entitle him to hold the office of moderator for 
said school district; that at the annual school elet^tion, lield 
on said day in said school district, the relator w^s elected 
to the office of moderator for said school district for tlie 
term of three years from said date; that immediately 
thereafter he entered upon the discharge of the duties of 
said office as moderator, and continued to discharge the du- 
ties thereof, by presiding at school district meetings oi said 
district, countersigning warrants and orders on the county 
and school district treasurers for moneys belonging to said 



362 NEBRASKA REPORTS. [Vol. 30 



Frans v. Youug. 



district, and performing all and singular the duties inipu!*eil 
by law on moderators of school districts; that the relator 
continued to discharge the duties of moderator of said dis- 
trict for the period of two years, and has one year of his ^uitl 
term of office to serve from and after the second Monday 
of July, 1889, and that he has not removed from said dis- 
trict, nor has he resigned said office of moderator. 

The petition further alleges that the respondent, Binija- 
min F. Frans, on or about the second Monday of Jiily^ 
1889, and from thence continually hitherto, without any 
legal warrant, claim, or right, has used and exercised, and 
still does unlawfully use and exercise, and pretends to dis- 
charge the duties of the office of moderator in said school 
district No. 6 for the aforesaid term of office of the relaloFj 
and claims to be the moderator of said district in pla^^ of 
the relator. The relator prays judgment that the res [k in- 
dent be ousted from said office and that the relator be de- 
clared entitled to the same. 

For answer to the petition the respondent "denies that 
the relator was elected to the office of moderator of said 
school district in the year 1887, but alleges the truth to be 
that at the annual meeting of said district, in April, A. D, 
1888, the relator was elected to the office of moderator of 
said district, but that he failed to qualify or to file*hi.s writ- 
ten acceptance of said office in the timie required, or at any 
other time, and so respondent charges tliat relator never 
was moderator dejure of said district, but that he assumed 
to act and did act as moderator of said district from said 
meeting in April until the regular annual meeting of said 
district in June, 1889, nt which time the respondent was 
duly elected to the office of moderator of said district for 
two years, and that he duly qualified as such moderator and 
entered upon the discharge of the duties of said office, and 
that he now holds such o^ce by virtue of such election and 
qualification.*' 

A general demurrer was filed to the answer, which was 



Vol. 30] SEPTEMBER TERM, 1890. 



363 



Frans v. Young. 



sustained, and a judgment of ouster was entered against the 
respondent. That decision is assigned for error. 

It is insisted by the respondent that the relator was not 
an officer de jurCy because he never took the usual oath of 
office, and failed to file with the director of the school dis- 
trict his written acceptance of the office of moderator. 

It is conceded by the respondent that the school law con- 
tains no provision requiring a person elected to the office of 
moderator of a school district to take an oath of office. 
But it is claimed that section 1 of chapter 10 of the Com- 
piled Statutes requires school district officers to take the 
usual oath of office. That section provides that ''all state, 
district, county, precinct, township, municipal, and especially 
appointed officers, except those mentioned in section 1, arti- 
cle 14, of the constitution, shall, before entering upon their 
res[>ective duties, take and subscribe the following oath> 
which will l>e indorsed upon their respective bonds," etc. 
The word "district," as used in this section, refers solely 
to judicial district officers, and unless school district officers 
are municipal officers, it is apparent that they are not con- 
trolled by the provisions of said section. While the law 
makes every organized school district in this state a body 
corporate, with power to sue and be sued, yet they are 
merely ywa^i- corporations, created for the purpose of educa- 
tion, and are not, strictly speaking, municipal corporations. 
The officers of all incorporated villages, towns, and cities 
are municipal officers and it is to these officers that the 
word ** municipal" refers. (1 Dillon's Municipal Corp., 
sec. 10 ; Beach v. Leahy, 11 Kan., 23.) We are clearly of 
the opinion that school district officers are not required to 
take an oath of office. 

Did the failure of the relator to file his written accept- 
ance of the office within ten days, create a vacancy in the 
office? Section 3 of subdivision 3 of the school law reads as 
follows: "Within ten days after the election, these several 
officers shall file with the director a written acceptance of 



364 



NEBRASKA REPORTS. [Vol. 30 



Frans v. Young. 



the office to which they shall have been respectively olec^tetl, 
which sh*all be recorded by said director." The section con- 
tains no provision that the office shall become vacant if 
the acceptance is not filed. In this respect it differs from 
section 5 of subdivision 14 of the same act, relating to the 
qualification of the members of the boaixJ of education in 
cities. Said section 5 provides that the failure to take and 
subscribe the usual oath of office creates a vacancy. Section 
15 of chapter 10 of the Compiled Statutes declares that if 
any person elected to office shall fail to execute and file his 
bond within the. time fixed by law, his office thereupon ipm 
facto becomes vacant. It is evident that it was not the in- 
tention of the legislature that the failure of a school distiict 
officer to file his acceptance, should create a vacancy. 

The object and purpose of the law requiring school dis- 
trict officers to file written acceptance was to apprise the 
public that the person elected intended to discharge the 
duties of the office. The pleadings show that the relator^ 
immediately after his election, entered upon the perform- 
ance of the duties of moderator, by presiding at school dis- 
trict meetings, countersigning orders on the county aud 
school district treasurer for moneys belonging to his district, 
and discharging all other duties required of him by law for 
more than one year, without objection from any one* This 
was as much an acceptance of the trust as would have bt?eu 
the filing of a written acceptance. The relator therefore 
was a dejure officer and no vacancy existed at the time the 
respondent was elected. The judgment of the distriot court 
was right and is 

Affirmed. 



The other judges concur. 



Vol. 30] SEPTEMBER TERM, 1890. 365 



Fitzgerald v. Richardson. 



Fitzgerald et al. v. A. A. Richardson. 

[Filed September 18, 1890.] 

1. Evidence: The PsEPONDERANCEof evidence is Dot determiDed 
alone by the number of witnesses testifying to a particular fact. 
In determining upon which side the evidence preponderates, the 
credibility of the witnesses, their sitaatiou, interest, means of 
knowledge, and manner of testifying, should be considered. 

2. . Held^ That the verdict, to the extent of $361.75, is unsup- 
ported by the evidence, and contrary to the instructions given. ^ 

Error to the district court for Lancaster county. Tried 
below before Field, J. 

Marqueitf Deweese & Hall, for plaintiffs in error. 

Billingaley & Woodward, contra. 

NORVAL, J, 

The plaintiff in the court below alleged that on April 1, 
1886, he entered into the service of the defendants, at their 
request, as agent, to find purchasers of brick, at a commis- 
sion of fifty cents per thousand for the brick so purchased; 
that plaintiff found purchasers for 1,248,000 brick, under 
said contract, and there is due him therefor as commissions^ 
at said rate, $624, with legal interest from April 1, 1886, 
no part of which has been paid. 

The defendants answered by a general denial. 

There was a trial to a jury, with finding and verdict for 
the plaintiff for $530.58. 

The defendants' motion for a new trial was overruled ■ ■ 

and judgment entered on the verdict. The cause is i||| 

brought to this court on the following assignments of error : 

" I. The verdict was given under the influence of pas- 
sion or prejudice, and is contrary to law. 




366 



NEBRASKA REPORTS. [Vol. 30 



Fitzgerald v. Richardson. 



"II. Errors of law excepted to at the trial. 

"III. The verdict is contrary to instructions numbers 
1, 2, and 6, requested by plaintiffs in error. 

"IV. In refusing to give instructions Nos. 3, 4, and 6 
requested by plaintiffs in error. 

"V. In giving instructions Nos. 3, 4, 6, and 8 requested 
by the defendants in error. 

"VI. In giving instructions Nos. 2, 3, and 4 of the 
court's own motion. 

" VII. The verdict is not sustained by sufficient evi- 
dence." 

But three of these assignments are relied on in the brief 
of plaintiffs in error, which are I, III, and VII, and none 
others will be considered by us in this opinion. 

It appears in evidence that the plaintiffs in error were 
engaged in the manufacture of brick at West Lincoln, and 
that the defendant in error was an hydraulic engineer, en- 
gaged in drawing plans and specifications for water works 
for several cities and towns in this state. Richardson con- 
tends that he was employed by the plaintiffs in error to 
find purchasers of brick, and was to receive a commission 
of fifty cents per thousand on all brick sold. Early in the 
year 1886, and at the time it is alleged that the contract 
was entered into, Richardson was preparing plans, or had 
just completed the same, for a system of water works at 
Hastings. It is admitted that Christianson, one of the 
plaintiffs in error, had a conversation with Richardson on 
the subject of the sale of tlieir brick, and agreed to pay him 
a commission of twenty-five cents per thousand on all their 
brick he could sell or caused to be used, in the construc- 
tion of the Hastings water works. Richardson insists that 
there was no limitation as to the place of sale. 

A. A. iRichardson, the plaintiff below, testified that he 
met Mr. Christianson on the train from Lincoln to Omaha 
and the latter showed some samples of brick he had with 
him. Christianson stated " If you will get customers for 



Vol. 30] SEPTEMBER TERM, 1890. 



36^ 



Fitzgerald v. Richardson. 



US we will allow you fifty cents a thousand." This is the 
first time he made a bargain. Before, he said he would 
allow a good thing, and now he said "we will allow you 
fifty cents a thousand if you will get us customers." He 
showed witness the brick he had. Witness criticised them 
because they were checked. Christianson stated that they 
had some samples in the yard that were better and he 
would send them to Ricluirdson's office. Christianson 
asked how many brick it would take to do the Hastincrs 
work. Richardson replied that he could not tell ho\v 
many, but thought six hundred or seven hundred thousand ; 
that it wanted hard brick for the wells, the balance of the 
brick for the house and stacks it did not matter whether 
they were burned so hard. 

Q. When he said they would give you fifty cents a 
thousand, what did you say to that? 

A. I told him " all right. I would do what I could for 
them — sell brick for them." 

Q. Did he know then you were doing work at Hast- 
ings? 

A. Yes, I told him right then and there about it. He 
asked me if I could not put them in the specifications — put 
in the specifications for their brick. I told him I would 
not do it, it would gjve them a leverage and there would 
be no use for any other bidders — it would not be fair; I 
could not put them in, but if they would make good brick 
I would take them down there and show them to the coun* 
cil and do all I could to sell them. He said, all right, we 
will give you fifty cents a thousand for all the customers 
you can get. 

Mr. Richardson further testified, that he afterwards went 
to Mr. Christianson and told him that a large number of 
brick would be used in the construction of the court house 
at York, suggesting that the West Lincoln brick might l>e 
worked in, and inquired the price they would furnish them 
at. An approximate price was given and samples of the 



368 



NEBRASKA REPORTS. [Vol. 30 



Fitzgerald ▼. RlchardsoDH 



brick furnished Richardson, which he took to York and 
exhibited to the county commissioners. 

John Christianson testified that he was one of the firm of 
Fitzgerald, Christianson & Co., and that tlie only conver- 
sation he had with Richardson was on the train going to 
Omaha. The witness states: "I was sitting in llie car, 
when Richardson came in and commenced talking with mc. 
He was at that time making plans for the Hastings water 
works, he had plans and specifications with him, and was 
going to Omaha, and he was telling me about his plans 
and about the work to be carried on at Hastings, and in 
the general conversation he said a good many brick would 
be used or wanted there at Hastings, and I took occsision 
to ask him if he could not do anything for us to di*jpos€ of 
our brick for that work. He said that some 600,000 would 
be wanted there for some large proposed deep well, which ^ 
however, afterwards was not put in, but that was at that 
time the plan, which would take a large amount of brick, 
and then I showed him the samples which I liad with me 
and asked him if such brick would answer liis purpose; he 
said yes, they would. And I asked htm if he could not 
ask if there were any good brick made there in Hastint3;sj 
and he said he thought not; the brick wore soft, mud brick, 
unsuitable for hydraulic work. And I asked him there- 
upon whether or not he could not specify onr brick in his 
specifications. He said he could not do so. The conversa- 
tion was short; before dropping it I told him if he could 
sell or cause our brick to be used there, tliat we would pay 
him twenty-five cents a thousand commission." 

The testimony fully establishes a contract of agency, and 
that Richardson was to receive a commission on all brick 
manufactured by the defendants that he should sell or be 
instrumental in selling. The parties disagree as to the 
amount of compensation. That material point in the case 
was settled by the verdict of the jury in favor of the 
plaintifiF below. 



Vol. 30] SEPTEMBER TERM, 1890. 369 



Fitzgerald v. Richardson. 



It is insisted that Richardson has not shown by a pre- 
ponderance of the evidence that he was to receive a com- 
mission of fifty cents a thousand, for the reason tliat only 
one witness testified that the compensation agreed upon was 
fifty cents a thousand and another witness testified that it 
was twenty-five cents a thousand. The preponderance of the 
evidence is not determined alone by the number of witnesses 
testifying to a particular fact. In determining upon which 
side the evidence preponderates the jury had a right to take 
into consideration the credibility of the witnesses, their 
situation, interest, means of knowledge, and their manner 
of testifying. This conflict in the evidence was intriisted 
to the jury to settle, and when they have done so without 
passion or prejudice, a reviewing court will not interfere. 
{Cook V. Powell, 7 Neb., 284; A. & N. R. Cb. v. Jones, 9 
Id., 71 ; Gibsmi v. Cleveland Paper Co., 13 Id., 277 ; Pot- 
tin V. Carran, 13 Id., 303 ; Converse v. Meyer, 14 Id., 191 ; 
Murphy v. State, 15 Id., 385 ; Butcher v. State, 16 Id., 31 ; 
Sycamore v. Grundrab, 16 Id., 537 ; 0. & R. V. R. Co. r. 
Brovm, 29 Id., 492.) 

It is fully established by the evidence that the A. L. 
Strang Co. was awarded the contract for. the construction 
of the water works at Hastings, and that Richardson and 
one E, H. Calloway, then a member of the firm of Fitz- 
gerald, Christianson & Calloway, went" to Hastings in the 
spring of 1886, for the purpose of selling the brick man- 
ufactured by the plaintiffs in error, taking with them 
samples of the brick. Mr. Calloway was introduced by 
Richardson to a Mr. McConnell, the secretary of the A, L. 
Strang Co., and Calloway, in behalf of his firm, put in a 
bid to furnish all the brick for the Hastings job. Subse- 
quently the contract was awarded to the plaintiffs in error, 
and they furnished under the contract 280,432 brick of 
their own manufacture. Richardson was instrumental in 
obtaining the contract and is entitled to receive the stipu- 
lated commissions thereon. 
24 



370 NEBRASKA EEPORTS. [Vol. 30 



Fitzgerald y. Richardson. 



The principal controversy in the case is over a claim for 
commissions on the alleged sale by Kichardsou of 1 ,248, WO 
brick to be used in the construction of a court liouse in 
York county. The contract for the erection of this build- 
ing was let to D. B. Howard. Richardson went to Howni'd 
and informed him that he was representing the plaintiffs in 
error in the sale of their brick, and tried to sell liioi the 
brick for the building. Not succeeding, he gave Howard 
a letter of introduction to the plaintiffs in error, which was 
afterwards presented. Finally the plaintiffs in error took 
the contract from Howard to furnish the brick and lay 
tliem in the wall, and desired to have their West Lincoln 
brick specified in the agreement. Howard would not con- 
sent to this, as is disclosed by the following admissioa 
ndade by the defendant in error on the trial in the lower 
court: ''It is admitted on the part of the plaintiff^ that at 
the time D. B. Howard let the contract to these defendants, 
(being now plaintiffs in error) for doing the brick work 
and setting the stone in connection with the building of the 
York court house, that the defendants desired to specify 
in the contract that the brick manufactured in West 
Lincoln should be used in connection with said work, but 
that the contractor, D. B. Howard, refused to Lave any 
specification put in .the contract." 

It is in evidence that before the contract was signed Mr. 
Calloway went to York and made arrangements for tlie 
purchase of brick there. The contract with Howard was 
then entered into, and at the time it was definitely under- 
stood that the brick used should be of the York manufac- 
ture and the contract was made with that view. There 
were some 800,000 of the York brick used and only one 
car load, or 7,000, of the West Lincoln brick. Richaril:5t>n 
contends that he is entitled to commission on the Yark 
brick and that it is immaterial where the brick that went 
into the York court house came from. That, doubtless, 
would be true, had Richardson found a purchaser for the 



Vol. 30] SEPTEMBER TERM, 1890. 



371 



Fitzgerald y. Richardson. 



West Lincx)ln brick, and the York brick had afterwards 
been substituted. Howard, how^ever, never contracted 
for the West Lincoln brick — in fact he refused to contract 
for them. The agreement between the plaintiff and defend- 
ants had reference to the handling of the brick manufac- 
tured at West Lincoln by the plaintiffs in error and none 
others. This is admitted by Mr. Richardson on his cross- 
examination, and there is no evidence in the record to the 
contrary. Under the proof the defendant in error was not 
entitled to a commission on the brick purchased by the 
plaintiffs in error at York, and used by them in the erection 
of a court house at that place. The court on this branch 
of the case instructed the jury as follows: 

"1. If the jury find from the evidence that there was 
a conversation between the plaintiff and the defendants 
concerning the sale of brick by the plaintiff for the defend- 
ants, and the jury further find that the said conversation 
resulted in a contract or an agreement by which the plaint- 
iff was to sell brick for the defendant at a stipulated price 
per thousand, and you further find from the evidence that 
the parties, at the time of the making of the contract or 
agreement, had reference to the sale of the brick manu- 
factured or to be manufactured by the defendants' own 
brick works at West Lincoln, and you further find that 
the defendants were not engaged in handling or selling 
any other brick than those of their own make, then, 
before the plaintiff is entitled to recover in this action, 
it is incumbent upon him to show that he sold or found 
a purchaser for the brick of the defendants, manufactured 
by them at their yards in West Lincoln. And in deter- 
mining the fact as to what brick the plaintiff was em- 
ployed to sell, if any, it is competent for you to take into 
consideration the fact that these defendants were engaged 
in the manufacture of brick at West Lincoln ; that they 
were handling no other brick; that they never furnished to 



372 



NEBRASKA REPORTS. [Vol. 30 



Fitzgerald ▼. Richardson. 



the plaintiff samples of any other brick than those manu- 
factured by them at their yards in West Lincoln. 

"2. If the jury find from the evidence that D. B, How- 
ard, the contractor of the York county court housCj entered 
into a contract with these defendants, subletting to them 
all of the brick work and the setting of the stone in llie 
York county court house, and that at the time said con- 
tract was entered into these defendants had made anarige- 
ments to use York brick in connection with the ciecttou 
and construction of said York county court house, and 
that said York brick were used by these defendants, then 
the plaintiff is not entitled to recover commission on said 
brick used by defendants. 

" 6. If the jury believe from the evidence that the plaint- 
iff and defendants made a contract whereby the plaintiff 
was to sell brick for the defendants, and you believe from 
all the evidence, by the term 'brick,' was meant the brick 
manufactured by the defendants, then, before the plaiuliff 
can recover, he must show that he sold, or causes! to be 
sold, for the defendants, their brick manufactured at West 
Lincoln." 

Had the jury followed these instructions, whicli it was 
their duty to do, a verdict would not have been retrjrned 
for commissions on the York brick. There were IfiOO 
West Lincoln brick used in the York court house, and 
280,432 brick at Hastings, making in all 287,432 brick, 
on which the defendant in error was entitled to a coramia* 
sion of fifty cents a thousand, or $143.7L To this amount 
should be added $25.12 for interest thereon until the date 
of the verdict. 

The amount found due the plaintiff by the jury^ to tlie 
extent of $361.75, is not sustained by the evidence, and 
is contrary to the instructions. Unless the defendant ia 
error shall file a remittitur with the clerk of this court 
within thirty days from the filing of this opinion, as of 
date of the judgment entered in the lower court, for the 



Vol. 30] SEPTEMBER TERM, 1890. 373 



Petersen y. Townsend. 



sum of $361.75, the judgment of the district court will be 
reversed and the cause remanded for further proceedings ; 
but if such remittitur shall be filed within the time named, 
the judgment will be a£Brmed for the sum of $168.83, and 
the costs in this court will be taxed to the defendant in 
error. 

Judgment accordingly. 



The other judges concur. 



J. C. Petersen et al., appellees, v. Alfred Town- 
send ET AL., APPELLANTS. 

[Filed September 18, 1890.] 

1. Adverse Possession. The plaintiffs having been in the open, 

notorioas, exclusive, contiuaoos, adverse possession of the real 
estate in controversy for more than ten years as owners, they 
thereby became vested of the absolute title to the premises. 

2. : The Evidence examined, and held, to sastain the deciee 

of the district court 

Appeal from the district court for Cass county. Heard 
below before Chapman, J. 

8.P.& E. G. Vanatia, for appellants, cited: Liggett v, 
Morgan, 11 S. W. Rep. [Mo.], 241. 

W, L, Browne, contra, cited : Horbach v. Miller, 4 Neb., 
32; Galling v. Lane, 17 Id., 83; Haywood v, Thomas, Id., 
240; Mayberry v. Willoughby, 5 Id., 368; Campau v. Du- 
bois, 39 Mich., 274; Tex v. Pflug, 24 Neb., 667; Levy v. 
Yerga, 25 Id., 766 ; Middlesex v. Lane, 21 N. E. Rep., 228 ; 
Frick V, Sinon, 17 Pac. Rep., 439; Biggs v. Riley, 15 N. 
E. Rep., 253; Byers v. Slieplar, 7 Atl. Rep., 182. 






374 



NEBRASKA REPORTS. [Vol. 30 



Petersen v. Townsend. 



NORVAL, J. 

On the 17th day of September, 1888, this suit was 
commenced in the district court of Cass county, by John 
C. Petersen d al,^ to quiet the title to lots 1, 2, 3, and 4, in 
block 21, Duke's addition to the city of Plattsmouth. The 
plaintiffs claim that they and their grantors have been in 
the actual, open, continuous, adverse ]K)ssession of said lots 
for more than ten years prior to the commencement of the 
action. The defendant Bennett denies that the plaintiffs 
have held adversely for the statutory period. The case was 
tried to the court, and a decree was rendered quieting the 
title to all the lots in the plaintiffs, and from the decree, 
so far as it relates to lots 3 and 4, the defendant Bennett 
appeals. 

The testimony shows that Alfred Townsend owned the 
land before it was laid out into lots, and that he conveyed 
it to one J. S. Duke, who laid it out and platted it, as 
Duke's aiddition to Plattsmouth. Duke died in 1872, and 
the appellant, as administrator of his estate, claims to have 
procured a license from the district court of Douglas 
county to sell said real estate. Said lots 3 and 4 were sold 
by the administrator to one E. B. Lewis on the 20th day 
of October, 1874, and a deed was subsequently executed to 
said Lewis by said administrator. On the 18th day of 
June, 1885, Lewis and wife conveyed, by deed of quit- 
claim, the lots to appellant Bennett. 

It appears in testimony that one Arthur Robinson in 
September, 1875, purchased an outstanding certificate of tax 
sale against the lots; that about the 1st of April, 187G, he 
went into possession of the property claiming it as his own, 
and lived in the house on lot 2, and made the property his 
home until sold by him to plaintiffs on the 11th day of 
August, 1888, when the plaintiffs took possession as own- 
ers and have ever since occupied the property. When 
Kobinson went into possession there were no improvements 



Vol. 30] SEPTEMBER TERM, 1890. 



375 



Pelerseu v. Towascnd. 



on lots 3 and 4, but in June, 1876, he enclosed tliera with 
a fence. Subsequently he plowed and cultivated the lots, 
and planted them to crops. During all the time both Lewis 
and Bennett resided in Plattsmouth and asserted no right 
to the property, nor were the plaintiffs or their grantor 
Robinson disturbed in their possession. The plaintiffs 
and their grantor Robinson have paid the taxes levied upon 
the property for more than ten years. 

It is conceded by the appellant that the plaintiffs, and 
their immediate grantor, have been in tlie exclusive pos- 
session of the property for more than twelve years prior 
to the bringing of this suit, but it is urged that they did not 
hold adversely, but recognized the appellant as holding the 
legal title. This contention is based upon the fact that at 
one time Robinson had in view a sale of the premises to 
one Taylor, and in order to satisfy the contemplated pur- 
chaser, Robinson offv.Ted Bennett $50 to make him a quit- 
claim deed to the lots. Bennett having demanded $75, the 
negotiations ended. This, according to the testitnony of 
both Bennett and Robinson, occurred about two years be- 
fore the 29th day of March, 1889, the date of the trial in 
the lower court. Robinson's possession of the property 
dates from April 1, 1876, or thirteen years before the trial. 
The statute of limitations had therefore run at the time 
the proposition was made to Bennett. It is true that 
Bennett testifies that he had another conversation with 
Robinson some five years before the trial, about the lots, in 
which the latter expressed a desire to purciiase his title. 
This was before Bennett had purchased from Lewis. Rob- 
inson denies under oath having had any such conversa- 
tion and the findings of the trial court settle all conflict 
in the testimony in favor of the appellees. 

Again, the evidence does not show that the appellant ever 
had any valid title to the lots. He claims through an ad- 
ministrator's deed to Lewis. There is an entire lack of 
proof showing that the estate of Duke was administered 



I 



376 



NEBRASKA REPORTS. [Vol. .30 



Ward V. Parlin. 



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upon in Douglas county, so as to give the district court of 
that county jurisdiction to grant a license to the adminis- 
trator to sell the real estate. Neither the papers upon 
which the license was granted, nor the decree authorizing 
the administrator to make the sale, are in the bill of excep- 
tions. 

It is fully established, by the testimony, that the appel- 
lees and their grantor have been in the actual, open, noto- 
rious, exclusive, adverse possession of the lots for more than 
ten years, claiming to be the owners thereof; whatever 
rights the appellant may have had are barred. The decree 
of the district court quieting the title to the lots in the 
plaintiffs was right and is therefore 

Affirmed. 

The other judges concur. 



Clark Ward et al. v. Parlin et al. 

[Filed September 18, 1890.] 

Evidence : Trial to Court : Immaterial Testimony. Fol- 
lowing the cases of Willard v. Foaterj 24 Neb., 213, and Richard- 
son V, Doty, 25 Id., 424, /te/d, tlmt a cause tried to the court with- 
out a jury will not be reversed for the admission of immaterial 
testimony. 

Pleading: Amendment, ffeld^ That the i>ermitting of the 
plaintiff) to amend their petition on the trial was not an abuse 
of discretion. 

Husband and Wife ; Conveyances Between. A husband 
may lawfully give liis wife a deed or mortgage to secure a pre- 
existing bona fide debt owing to her, and such conyeyance is not 
fraudulent as to his other creditors, if taken in good faith, and 
without any fraudulent purpose. 

: : Failure to Record. The failure of the wife 

to immediately record her conveyances does not estop her from 
claiming under them, when it appears that the plaintiffs were 
not misled, or in any manner prejudiced by her neglect. 



Vol.. 30] SEPTEMBER TERM, 1890. 377 



Ward V. Parlin. 



Error to the district court for Red Willow county- 
Tried below before Cochran, J. 

S, R. Smith, for plaintiffs in error, cited: Fh'st Nafl 
Bank of Omaha v. Bartlett, 8 Neb., 31 9 ; Van Deuzer v. Pea- 
cock, 11 Id., 245; Dice v. Irwin, 11 N. E. Rep. [Ind.], 
488 ; Chapman v. Summerfield, 14 Pac. Rep. [Kan.], 235 ; 
Gerald v. Gerald, 6 S. E. Rep. [S. Car.], 290 ; Hoes v. Boyer, 
9 N. E. Rep. [Ind.], 427 ; Kennedy v, PoweU, 34 Kan., 
22 ; Rudevshausen v. Aiwood, 1 9 111. App., 58 ; Payne t. 
Wilson, 41 N. \V. Rep. [la.], 45; Popendickv. Frobenius, 
33 N. W. Rep. [Mich.], 887 ; DuU v. MeriU, 36 Id., 677 ; 
jRockford Boot & JShoe Co. v. Mastin, 39 N. W. Rep. [la.], 
219 ; Buhl V. Peck, 37 N. W. Rep. [Mich.], 876 ; MUler 
V, Krueger, 13 Pac. Rep. [Kan.J, 641 ; Bailey v. Kan. 
Mfg. Co., 32 Kan., 73 ; CUmena v. Brillhart, 17 Neb., 
336 ; Hedge v. Glenny, 39 N. W. Rep. [la.], 818 ; Citizens 
Nat' I Bank v. Webster, 41 Id., 47 ; Wooden v. Wooden, 40 
N. W. Rep. [Midi.], 460; Moortnan v. Gibbs, 39 N. W. 
Rep. [la.], 832 ; Cornel v. Gibson, 16 N. E. Rep. [Ind.], 
130; Tomlinson v. Mathews, 98 111., 178. 

RiUenhouse & Starr, contra, cited : WUlard v. Foster, 24 
Neb., 213; Ricluirdson v. Doty, 25 Id., 424; Hedges v. 
Rooch, 16 Id., 674; Brown v. Rodgers, 20 Id., 547 
Grimes v. Shei*man, 25 Id., 843. 

NORVAL, J. 

This action was brought in the court below to set aside, 
as fraudulent, deeds of transfer from Clark Ward to Sarah 
J. Ward, his wifo, of lots Nos. 23 and 24, in block 38, of 
the town of Indianola, and lots Nos. 2 and 3 of block 8 
of Springdale addition to the town of Bartley. 

The plaintiffs alleged that on September 5, 1888, they 
had judgment in the county court of Red Willow county, 



378 



NEBRASKA REPORTS. [Vol. 30 



Ward V. Parlin. 



against Clark Ward, for the sum of $986.60, and $6.35 
costs of suit; that a transcript of said jndgment was filed 
with the clerk of the district court of said county, upon 
which execution was issued September 5, 1888, to the 
sheriflF of said county, and duly served and returned 
^^ Nulla hona^^ but which was levied upon the real estate 
above described, which, on the 13th day of August, 1888, 
prior to plaintiffs' judgment, had been conveyed by the 
judgment debtor to his wife without consideration, and for 
the purpose of hindering and defrauding the plaintiffs and 
other creditors of Glark Ward ; that the deed therefor was 
filed for record on September 6, following, and subsequent 
to the date of the filing of the transcript of plaintiffs' judg- 
ment and issuing the writ of execution; that at the same 
time the defendant Clark Ward filed instruments of con- 
veyance to all his personal property, dated back at various 
times prior to the rendition of the judgment, which prop- 
erty, if free from incumbrance, is worth about $1,500, but 
by reason of said fraudulent conveyance from Clark Ward 
to his wife rendering the title acquired by the purchaser at 
a sale under the execution uncertain, and prevents it being 
sold at a fair price. 

The prayer is for the cancellation of the conveyance 
from Clark Ward to his wife, that the lots be sold and the 
proceeds applied to the satisfaction of plaintiffs* judgment. 

The defendants answered, admitting the judgment, the 
filing of the transcript in the office of the clerk of the 
district court, and the making of the conveyances to the 
real estate. The defendants for further answer deny that 
the conveyances described in the petition were given with- 
out consideration, but were given for a good, valid, and sub- 
sisting consideration, were made in good faith and without 
any intention of hindering, delaying, or defrauding the 
plaintiffs or any other creditors; deny that Clark Ward is 
insolvent, and that the conveyances of personal property 
named in the petition were dated back, but aver that they 



Vol. 30] SEPTEMBER TERM, 1890. 



379 



Ward V. I-ailln. 



were made at the time they bear date. The iinswcr fur- 
ther states that part of the property mentioned in the pe- 
tition was purchased with the sole and separate money of 
the defendant Sarah J. Ward; that the conveyance was 
made to Clark Ward through a mistake, and thiit all the 
property transferred from said Clark Ward to hts wife, 
was in payment for money previously loaned by Saiah J, 
Ward to Clark Ward^ and prior to the cont rat ting of the 
debt on which plaintiffs' judgment was rendered. 

The reply was a general denial. 

A trial was had to the court, with a decree for the 
plaintiffs, setting aside the conveyance, and gulyeeting the 
real estate, set forth in the petition, to the pnyment of 
plaintiffs' judgment. 

The defendants' motion for a new trial was overruled 
and the case was brought to this court for review on eifrht 
assignments of error. The first, second, third, and fifth 
errors are based upon the rulings of the court in admitttug 
evidence claimed to be incompetent and immaterial. 

The rule is established in this state, that when a <^iisc is 
tried to a court without a jury, the admission of incompe- 
tent evidence on the trial will not be sufficient grounds for 
reversing the case. (Willard v. Foakr, 24 Neb., 213; Rich- 
ardson V, Doty, 25 Id., 424.) We have, howcverj exum- 
ined each of the rulings complained of, and find tlie evi- 
dence material and competent. 

The fourth assignment of error is that the court erred in 
allowing the plaintiffs to amend their petition. Upon the 
trial the plaintiffs offered in evidence the deed from Clark 
Ward to Sarah J. Ward, for lots 23 and 24, in bl.xk 38, in 
the town of Indlanola. The defendants objected to its in- 
troduction, as not covering, the property in cnnttxjversy. 
The lots were described in the petition as being in block 
28, and the court permitted the petition to be amenile(J, by 
interlineation, by changing from block 28 to bl<xk 38. 
The amendment was in furtherance of justice, aud there 



380 



NEBRASKA REPORTS. 



rA'-oL. 30 



Ward ▼. Parlin. 



was no abuse of discretion in permitting the pleading to 
be changed. {Hedges v. Roach, 16 Neb., 674 ; Broxcn v. 
Rogers, 20 Id., 647.) 

The remaining errors assigned are that the judgement is 
not sustained by sufiBcient evidence, the judgment is con- 
trary to law, and error in overruling the plaintiffs' motion 
for a new trial. 

The defendant Clark Ward was a dealer in agricultural 
implements at Indianola, and on the 29th day of October, 

1887, gave to the plaintiffs his promissory note for $951.30, 
on which judgment was rendered in the county court of 
Eed Willow county, on September 6, 1888, for $986.60. 
A transcript of the judgment was filed on the follow- 
ing day in the district court of that county, an execution 
was issued thereon and placed in the hands of the sheriff, 
who indorsed the same " no goods," and levied the writ 
upon lots 23 and 24, in block 38, in the town of Indianola, 
and on the south half of lot 2 and the north half of lot 3, 
in block 8, Spring Dale addition to the town of Hartley. 
On the 13th day of August, 1888, Clark Ward conveyed 
by warranty deed the Indianola lots to Sarah J. Ward, 
the consideration expressed therein being $800, and on 
the same day Ward made a quitclaim deed to the lots in 
the town of Bartley to his wife. Those deeds were filed 
for record September 6th, 1888. The following instru- 
ments were put in evidence by the plaintiffs: A bill of 
sale from Clark Ward to Sarah J. Ward, dated January 7, 

1888, for thirty-four horses and twenty yearlings -and colts; 
a chattel mortgage from Clark Ward to his wife, dated 
May 9, 1888, on certain farm machinery, to secure $340; 
a chattel mortgage from Clark Ward to the First National 
bank of Indianola, dated September 6, 1888, on his en- 
tire stock of agricultural implements, to secure the sum of 
$2,829.20; a chattel mortgage from Clark Ward to M. D. 
Welch, dated September 6, 1888, on three hundred head 
of cattle and his stock of agricultural implements, to secure 



Vol. 30]' SEPTEMBER TERM, 1890. 



381 



Ward V. Parliu. 



a note of $1,255, and also a bill of sale from Clark Ward 
to Ins wife, dated October 20, 1888, on a jack, subject to 
two other mortgages. All of these instruments were filed 
September 6, 1888, except the last bill of sale, which was 
filed October 20, 1888. 

Leander Starbuck testified that while the execution was 
in his hands for service, he asked Clark Ward if he had 
any property to turn out on the note; he replied that there 
was i^ersonal property on his place, but it was in such 
shape that the officer could not get it, and that he had no 
reid estate that could be levied on, 

W. S. Starr testified, in substance, that he had for collec- 
tion the claim, on which the judgment was afterwards 
rendered, and about August 20, 1888, before bringing suit 
for the plaintiflFs in the county court, he had a oonver- 
.«ation with Mr. Ward in which Ward proposed to secure 
the claim by a mortgage on the lots in Bartley and Indi- 
anola, stating that they belonged to him individually, were 
free from incumbrance, and he had no other property which 
he could turn out to secure the claim. Starr replied that 
he would not take mortgages without consulting with the 
plaintiffs, and tliat he wrote them and they replied not to 
accept the proposed security. Mr. Starr further testified 
that Mr. Ward told him that the claim was secured by 
collateral notes amounting to $1,300, and that if the 
plaintiffs would accept a mortgage and extend the time for 
six monthg he thought he would be able to collect the col- 
laterals and pay by that time. But a small amount of the 
collateral notes have been paid and the bulk of them are 
worthless. 

Harlow W. Keyes testified that about August the Ist, 
1888, Mr. Ward stated to him that he had plenty of prop- 
erty and of ample value to pay all his indebtedness ; that 
about the 14th or 16th of the same month, in another 
conversation, Mr. Ward said to him : " There is another 
matter that I desire to counsel with you in regard to. I 



( 



382 



NEBRASKA REPORTS. [Vol. 30 



Ward V. Parlin. 



am owing one large note to a firm, and it is quite probable 
that you will receive it for collection. I would like your 
advice a little on the matter/' My recollection is that I 
asked Mr. Ward what firm it was, or if it was one I had 
been doing business for, and he said it was Parlin, Oren- 
dorff & Martin Co. "I am owing something between 
$900 and $1,000^ and I presume the note will be sent to 
you or some other attorney for collection." I then said, 
" Mr. Ward, if that note comes to me for collection of 
course I would be their attorney and not yours; I presume 
it will come to me, and if they order it sued I will 
be obliged to sue it." I asked him if he was having any 
trouble about any goods that he had bought^ and he said 
"No, that it was a just indebtedness, but I have got col- 
lateral notes to secure it.'' He said there might be some 
way that I could prevent them suing with the collateral 
security — having the collateral security. I says, "I am 
quite positive that they could do that." He said that he 
didn't want to be sued, and that he desired to put the pay- 
ment off as long as possible, until he could get his business 
matters straightened up ; timt he had ample property to 
pay all his indebtedness, but wanted time to straighten up 
his business. He said he was willing to secure the claim 
to get an extension of the time of payment. 

Clark Ward, one of the defendants, being examined as a 
witness by the plaintiffs, testified that Sarah J. Ward was 
his wife, and that they were married in 1861. . 

We have given substantially all the testimony intro- 
duced by the plaintiffs. Both of the defendants were 
called and sworn as witnesses in their own behalf. It ap- 
pears from their testimony, that Mrs. Ward has, ever since 
their marriage^ had money and property in her own right, 
and frequently Mr. Ward borrowed money from her, some 
of ^hich he had repaid. It is undisputed that she in- 
herited from her mother's estate some land in Illinois, 
which was sold and the money loaned to her husband. 




Vol. 30] SEPTEMBER TERM, 1890. 



383 



Ward V. Parlin. 



She sold some property in Canada in 1885, the proceeds 
of which, amounting to $1 ,200, were borrowed by Mr. Ward 
and used in his business. Wlien Mrs. Ward came west she 
brought $5,000 in cash, which she deposited in the bank in 
her own name. Mr. Ward, in 1883, owned a ranch and 
dealt in stock. About this time he invested some $3,400 
for his wife in horses, and put them on his ranch with 
nearly the same number he bought for himself. The Wards 
had separate brands and her stock were marked with her 
own brand. The proceeds arising from the sale of his 
wife's stock were paid to her. In 1884, all the horses pur- 
chased for Mrs. Ward the year before, were sold, excepting 
some twenty-three, and she received the money. Mrs. 
Ward owned stock to the amount of $500 in a mill, which 
was disposed of in 1886, and Mr. Ward used the money. 
She also owned in her own right a farm of 160 acres, on 
which she obtained a loan of $1,200 for her husband, he 
using the money in his business. The testimony discloses 
that he frequently borrowed money of her and did not 
always pay it back. 

Each of the defendants testified that the bill of sale 
given in January, 1888, was to close up the horse deal, to 
settle for the twenty-three liead of horses and increase, and 
that the chattel mortgages, and the deed to the Indianola 
property, were given as security for money borrowed by 
Mr. Ward from his wife. 

In r^ard to the lots in Bartley, the undisputed evidence 
is that they were bought for her and paid for with her 
money, but through mistake the deed was made to her 
husband. The quitclaim deed from Mr. Ward to his 
wife was made to correct tliis mistake. There is no dis- 
pute but what the mortgages given by Ward to the First 
National Bank of Indianola, and to M. D. Welch, were 
given in good faith to secure actual bona fide debts. The 
plaintiffs offered no testimony in rebuttal. If the defend- 



384 



NEBEASKA REPORTS. [Vol. 30 



Ward V. Parlln. 



ants did not testify to the truth, there should not have been 
any difficulty in proving it. 

We have read and scrutinized the evidence in this rec- 
ord with care, and it appears to us that the defendants' 
testimony is consistent and reasonable. We are convinced 
that Mrs. Ward acted in perfect good faith. True, she 
knew that her husband was being pressed by his creditors, 
and asked him to secure her. She had a perfect right to 
make good her claim, notwitlistanding she knew she was 
being preferred to other creditors of her husband, if the 
security was accepted in good faith, and without any fraud- 
ulent purpose on her part. (Hill v. Bowman, 35 Mich., 
191; Jordan v. White, S8 Id., 253; Dice v.Irvin, 11 X. E. 
Rep., 488 ; Rockford Boot & Shoe Mfg. Co, et a/., v, Maatiny 
39 N. W. Rep., 219; Miller v, Kruegei^, 13 Pac. Rep., 641 ; 
(Jlmpman v, Summerfield, 14 Id., 235 ; CoineU v. Gibson, 
16N.E. Rep., 130.) 

It is insisted that the conveyances were concealed by 
Mrs. Ward and kept from the records of the county until 
after the plaintiffs obtained their judgment, and for that 
reason they were fraudulent and void; there is no proof 
that they were purpos,ely withheld from record. Besides 
the note, on which the plaintiffs took judgment, was given 
in October, 1888, long before any of the conveyances com- 
plained of were made. It does not appear that the plaint- 
iffs extended credit to Mr. Ward on the faith that he was 
the owner of the Bartley property. In fact, there is no 
proof that this property was conveyed to Mr. Ward prior 
to his becoming the debtor of the plaintiffs. Parlin, Oren- 
dorff & Martin Co. therefore were not induced to become 
creditors by withholding the conveyance from record, nor 
were they in any manner prejudiced by the failure to re- 
cord sooner. To create an estoppel the plaintiffs must 
have been misled by the conduct of Mrs. Ward. {Payne v. 
Wilson, 41 N. W. Rep. [la.], 45; CUizais NatH Bk. v. 
Webster, Id., 47.) 



Vol. 30] SEPTEMBER TERM, 1890. 



385 



Aiusflold V. More. 



The decree of the district court is reversed and the caus^ 
is remanded for further proceediugs. 



Judgment aocordinqly. 



The other judges concur. 



John Ainsfield et al., appellees, v. Andrew B, 
More, appellant. 

[Filed September 23, 1890.] 

1« Beview. The pleadings and evidence examined, and hetd, to 
sastain the jadgment. 

2. Deeds : Correction: Limitations: When the Statute Begins 
TO Run. Id a suit where the relief demanded consists in the cor* 
rection of a mistake in the drafting or recording of a deed con- 
Teying lands thirty years before the commencement of snch snit, 
and the correcting of the mistake involves no change of actual 
possession or disturbance of investments made by the party 
against whom the correction is sought, and leaves the enjoyment 
of the property to go on in harmony with the prior acts of the 
parties in interest, the statute of limitation being pleaded, 
heldy that the statute began to run upon the discovery of the 
mistake, or of such fact or facts as would put a person of ordi- 
nary intelligence and prudence on an inquiry which, if pursued, 
would lead to such discovery. {Ormaby v, Longtoorth, 11 O. St^ 
653.) 

Appeal from the district court for Douglas county. 
Heard below before Groff, J, 

Gregory, Day & Day, and George 8. Smith, for appellant^ 
cited: MoCleliand v. Sanford^ 26 Wis., 595; Miner t?, 
He88, 47 111., 170; Barter v. Chriatoph, 32 Wis., 247; 
McTueker v. Taggart, 29 la., 479 ; Strayer v. Stone, il Id., 
336; Imnson v. Hutton,S Ott. [U. S.], 79; Story, Eq. Juris., 
26 



3D 90» 
im 611 



386 



NEBRASKA REPORTS. [Vol. 30 



Alnsfield v. Mora. 



«cc. 164 ; McGoren v. Avery, 37 Mich., 120 ; Else v. Ken- 
nedy, 67 la., 376; Wellon v. Merrich Co., 16 Neb., 83; 
Hill, Trasts, 265*; Burke v. Smith, 16 Wallace [U. S.], 
390; Godden r. Klmmell, 99 U. S., 201 ; Ware v. Galveston, 
111 Id., 170 ; Bank U. S. v. Daniel, 12 Peters [U. S.], 52*; 
Lewis V. Marshall, 5 Peters [U. S.], 470*. 

W. J. Connell, for appellee Ainsfield. 

JE. W, Simeral, for appellees Rosewater et ai. 

Cobb, Ch. J. 

John Ainsfield, Marcus Rosenwaser, and Andrew Rose- 
water exhibited their petition in the district court of said 
county allying that they and their grantees are in the ac- 
tual possession of the following described real estate in 
said county, to-wit: Beginning at the southwest corner of 
the soutiieast quarter of the southwest quarter of section 
26, township 15 north, of range 13 east, of 6th P. M., 
thence north 6 chains, thence east 8 91 chains, thence south 
lOJ degrees east 4.39 chains, thence south 1.44 chains to 
the south line of section 26, thence west 9.33 chains to the 
place of beginning, containing 6J acres, more or less. 

The plaintiffs allege that Andrew B. More, defendant, 
claims an interest and estate in said premises adverse to 
them ; that on December 24, 1 857, he, for a valuable con- 
sideration, by deed in due form, conveyed said real estate, 
with other land, to Lucy A. Goodwill, under whom plaint- 
iffs derive title, but that by mistake in recoixling said deed; 
or in writing the description of the land intended to be 
conveyed, the word east, after the words " thence north 72J 
degrees,'^ was inserted in place of the word west, by reason 
of which the defendant is wrongfully and unlawfully 
claiming title to said land, to the injury and prejudice of 
plaintirts. That the correct description of the land in- 
tended to be conveyed by defendant to Goodwill, and which 



Vol. 30] SEPTEMBER TERM, 1890. 387 



Ainsfield y. More. 



includes the real estate now owned by plaintiffs, is as fol- 
lows: Beginning at a point 2.72 chains north 71 degrees 
west from the quarter section corner between sections 2Q 
and 35 (magnetic variation 11 J degrees east), thence south 
17 degrees east 10.15 chains to a black oak, thence* nortli 
60 degrees west 1.33 chains, thence north 72J degrees 
west 1.83 chains, thence north 57 degrees we^it 6.20 
chains, thence north 75 degrees west 5.65 chains, thenee 
north 82 .degrees west 6.64 chains, thence north 2L22 
chains, thence east 7.80 chains, thence south 10 degre&i 
west 4 20 chains, thence south lOJ degrees east 14.70 
chains, thence south 86J degrees east 7.90 chains to the 
place of beginning, containing 23.65 acres, in sections 26 
and 35, in township 16 north, of range 13 east. Tlmt the 
plaintiffs and their grantees have been in the actual, con- 
tinuous, notorious, and adverse possessson of said land for 
more than fifteen years last past, paying all taxes levied or 
assessed against it and claiming to be the owners thereof. 
Plaintiffs pray to be declared to be the owners in fee simple 
of said land, that their title thereto may be quieted, and 
that the deed of defendant to Goodwill, and the record 
thereof, be corrected and reformed by inserting the word 
west in place of said word east, and that said defendant be 
forever enjoined from interfering with the possession of 
said land, or making claim of title thereto, and be forever 
barred of all right, title, interest or claim in said land and 
be required to pay the costs of this action, and for furtlier 
relief. 

On motion to the court, and for cause shown, the de- 
fendant wa9 allowed to file a cross-bill herein and make C. 
E. Hawver, Harriet L. Hawver, and Frank J, Kasper 
additional parties defendant to this action, as follows : 
** That he admits that he is the owner of the lands men- 
tioned and has asserted ownership thereof ; butex[}re^ly 
denies each and every other allegation in the petition con- 
tained, and expressly denies that any mistake was at any 



388 



NEBRASKA REPOETS. [Vol. 30 



Ainsfljld V. More. 



time made, either in writing or recording of the deed re- 
ferred to, or that the plaintiffs, their grantees or grantors, 
have been in actual, notorioiis, and adverse possession of 
said lands or any part thereof for the fifteen years last past, 
and further denies that plaintiffs have had or been in pos- 
session in any manner whatever except by willful and 
wrongful entry thereon within the past five years from this 
date and not prior thereto. 

" 5. The defendant further alleges that he was and is, 
and during all the time mentioned has been, the absolute, 
owner of land lying and situate upon the west side of the 
southeast quarter of the southwest quarter of section 26 
and in the northern portion of the northeast quarter of the 
northwest quarter of section 35, all in township 16 north, 
of range 13 east, of 6th P. M., as covered by the claim 
under the pretended mistake in deed, holding the same by 
good, perfect and indefeasible title from the United States. 

"6. On August 24, 1874, Lucy A. Goodwill, without 
claim or color of title, but to the injury and wrong of 
defendant, made a pretended conveyance of the same to 
George G. Earle. 

"7. On March 22, 1878, George G. Earle and wife 
made a pretended conveyance of the same to C. E. Hawver. 

"8. On October 14,1885, C. E. Hawver and wife made 
a pretended conveyance to Frank J. Kasper and Andrew 
Rosewater of the special portion set up and claimed by 
plaintiffs, and on June 15, 1886, Hawver and wife made 
another pretended conveyance to plaintiffs. 

" 9. Defendant alleges that each and all of said pretended 
conveyances were made without color of ownership in said 
pretended grantors; that defendant at no time parted with 
his title or interests^ either equitable or legal, in said lands. 

"10. That said pretended conveyances create a cloud 
upon plaintiffs' title and estate therein ; that they be held 
for naught and the parties be forever barred from setting 
up any claim of title thereto and the defendant have com- 
plete relief/' etc. 



\ 



Vol. 30] SEPTEMBER TERM, 1890. 



389 



Ainsfleld T. More. 



On the 29th of June, 1887, Frank J. Kas|)er was 
allowed to answer instanter, and Frank Shoull was made 
defendant, and answered denying that said More is the 
owner of the property, denying that the conveyance by 
Lucy A. Goodwill to George G. Earle was made without 
claim or color of title, and denying that the other convey- 
ances referred to in the cross-petition were without claim 
or color of title, but alleging that on December 24, 1857, 
said More was the owner of the followiug land: Begin- 
ning at a point 2.72 chains north 71 west from the quarter 
section corner between sections 26 and 35 (magnetic varia- 
tion 11^ east), thence south 17 east 10.15 chains to a 
black oak, thence north 60 west 1.33 chains, thence north 
72J west 1.83 cliains, thence north 57 west 6.20 chains, 
thence north 75 west 5.65 chains, thence north 82 west 
G.64 chains, thence north 21.22 chains, thence east 7.80 
chains, thence south 10 west 4.20 chains, thence south 10} 
east 14.70 chains, thence south 86} east 7.90 chains to 
the beginning, containing 23.65 acres, in sections 26 and 35, 
township 15 north, range 13 east, of 6th P. M., in said 
county. That on said day he conveyed the same to Lucy 
A. Goodwill, but either in the deed itself, or the record 
of it, there was a mistake in the description of the land 
in the words "thence north 72} west 1.83 chains." The 
word east was inserted instead of west, as the direction of 
variation, the description reading "thence north 72} east 
1.83 chains.'* Defendant alleges that it was the intention 
of the grantor to convey the said land described, and that 
the insertion of the word " east " in place of west in the 
third course of description was a clerical error and mistake 
in drawing the deed ; that on August 24, 1874, Goodwill 
conveyed by warranty deed to George G. Earle the follow- 
ing: Beginning at a point 2.72 chains north 71 west 
from quarter section corner between sections 26 and 35^ 
thence south 17 east 40 chains, thence west 17.55 chains to 
a point 50 linktf north of southeast corner of southwest of 



390. NEBRASKA REPORTS. [Vol. 30 



Alnsfield t. More. 



southwest section 26, thence north 19.50 chains to north- 
east corner of said southwest of southwest section 26, thence 
east 7.80 chains, thence south 10 west 4.20 chains, tlienoe 
south lOJ east 14.77 chains, thence south 86} east 7.70 
chains to the point of beginning; that on March 22, 1878, 
said Earle conveyed by warranty deed said last described 
tract to Carrie E. Hawver ; that in the year 1878 she died, 
having devised to her husband, Samuel Hawver, said prop- 
erty ; that on October 14, 1885, Samuel Hawver and his 
then living wife (he having remarried) conveyed by war- 
ranty deed to Andrew Rose water, pkintiff, and to this 
defendant the following: Beginning at northwest corner 
of southeast southwest section 26, township 15, range 13, 
thence south 14 chains, thence east 4.18 chains, thence 
north 14 chains, thence west 4.18 to the beginning, being 
5.85 acres; that afterwards Rosewater conveyed his interest 
in said land to Frank Shoull, who, being a party defendant, 
makes this his answer to the cross-petition as well as the 
answer of Kasper. They allege that they are the ownei-s 
in fee simple of said last described land, and with their 

grantors have been in actual possession for years last 

past, and are now in peaceable possession, having large 
improvements thereon. 

The defendants pray that the description in the deed 
from More and wife to Goodwill may be reformed and 
corrected, according to the facts, to express the intention 
of the parties thereto, and that it may be adjudged and 
decreed that they are the owners in fee simple of the last 
described tract of land; that said More has no interest, 
title, or claim thereto, and that the title thereto be quieted 
in these defendants, and that A. B. More pay the costs of 
this action, etc. 

On March 5, 1888, More made an amendment to his 
original answer and cross-bill, and further setting up as 
additional grounds of defense that the deed which he made 
to Lucy A. Goodwill, referred to, was made and delivered 



Vol. 30] SEPTEMBER TERM, 1890. 391 



Ainsfield t. More. 



in the year 1857, and that any alleged mistake in the deed, 
or the recording of it, arose more than ten years prior to 
the bringing of this action and is barred by the statute of 
limitations, and that each and all of the pretended claims 
of plaintiff, and of the other defendants hereto, are with- 
out any color of right. 

On March 5, 1888, defendants Ejisper and Shoull re- 
plied to the answer of More, and denied each and every 
allegation therein, except the date of the Goodwill deed, and 
allt^ed that they had no knowledge of any claim to said 
property by More, and had no knowledge that there was 
any error in the Goodwill deed until the year 1886, when 
More first claimed the ownership of the same, and these 
defendants first learned of the mistake in said description. 

The plaintiffs replied to the answer of More, denying 
that their cause of action arose more than ten yeai*s prior 
to the commencement of this suit, and denying that their 
action is barred by the statute of limilations. They allege 
that neither they nor their grantees had any knowledge of 
the mistake in description set forth in said petition, or had 
any knowledge that More claimed any adverse title or 
interest in the lands in controversy, until within two years 
next before the commencement of this action; they further 
deny every allegation contained in said answer, except that 
certain deeds were executed, but deny that the deed exe- 
cuted by Hawver to Kasper and Rosewater covered the 
special portion set up and claimed by plaintiffs herein. 

The defendant More replied to the answer and cross- 
bill of Kasper and Shoull denying each and every affirma- 
tive allegation therein not admitted or set forth in his 
answer and cross-bill herein, and says that the deed made 
by him to Lucy A. Goodwill was made and delivered in 
the year 1857, and more than ten years have elapsed since 
the alleged mistake, as the grounds of defense and cause of 
action in said cross-bill, arose, and that the same is barred 
by the statute of limitations, and that plaintiffs are guilty 
of laches herein. 



392 



NEBRASKA REPORTS. [Vol. 30 



AlDsfleld V. More. 



The defendant also moved the court for leave to correct 
his testimony heretofore given in his own behalf, on the 
ground that at the time of so testifying he was laboring 
under great physical pain and suffering, affecting for the 
time being his memory, and preventing him from recalling 
the facts as clearly as he otherwise might have done; that 
he now recollects of executing a deed to Lucy A. Goodwill 
which was presented to him by one Byers; that he objected 
to the deed as not properly describing the land theretofore 
claimed by Goodwill, under the claim club law, and the 
deed was then and there altered by changes and erasures in 
red ink by Byers, who claimed it reduced the quantity of 
land to fourteen or fifteen acres, the amount claimed by 
Goodwill, and the deed did not include, nor was it intended 
to include, the land in controversy, or any portion thereof; 
and he would say that if there was any mistake in the 
deed, it was that it did in fact contain a greater number of 
acres than was represented to him by Byers at the time he 
signed the same; which motion was overruled by the court 
and exceptions were taken. 

On April 20, 1888, there was a final decree in the court 
l>elow, finding that the several allegations in the plaintiflfe' 
petition were true, as therein alleged, and that the plaint- 
iffs were entitled to the relief in their petition prayed, and 
that the several allegations in the answer of Kasper and 
Shoull are true, and that at the time of the execution of 
the deed by Andrew B. More to Lucy A. Goodwill, on 
December 24, 1857, said More was the owner in fee 
simple of the land hereinafter described, and that it was 
the intention of said More to convey to said Goodwill the 
said land as described herein, but by mistake in writing 
the description of said land in said deed, or by mistake 
in recording said deed, the word "east,** after the words 
and figures " thence north 72J degrees,'^ was inserted in 
place of the word *' west," and that the correct descrip- 
tion of said land is as follows : Beginning at a point 2.72 



Vol. 30] SEPTEMBER TERM, 1890. 



393 



Aitisileld y. More. 



chains north 71 degrees west from the quarter section 
corner between sections 26 and 35 (magnetic variation 1 1 1 
degrees east), thence south 17 degrees east 10.15 chains to 
a black oak, thence north 60 degrees west 1.33 chains;, 
thence north 72 J degrees west 1.83 chains, thence north 57 
degrees west 6.20 chains, thence north 75 degrees west 5.i>5 
chains, thence north 82 degrees west 6.64 chains, thence 
north 21.22 chains, thence east 7.80 chains, thence south 
10 d^rees west 4.20 cliains, thence south lOJ degrees east 
14.70 chains, thence south 86 J degrees east 7.90 cliaias to 
the place of beginning, containing 23.65 acres, in section;? 
26 and 35, in township 15 north, of range 13 east, in said 
county. It is therefore ordered and decreed that tlie 
plaintiffs and their grantees, to whom tliey may have exe- 
cuted deeds in due form, are the owners of said land, in 
their petition first described, beginning at the southwest 
corner of the southeast one-fourth (S. E. J) of southwest 
one-fourth (S. W. J) of section twenty-six (26), township 
fifteen (15) north^ of range thirteen east, of sixth principal 
meridian, thence north six (6) chains, thence east eight and 
ninety one-hundred ths (S-^j^) chains, thence south ten and 
one-half (lOJ) degrees east four and thirty-nine hundrethB 
(4^^) chains, thence south one and forty-four one-hun- 
dreths (l^VV) ch^'^s to the south line of section twenty- six 
(26), thence west nine and thirty-three one hundredths 
(9^^^) chains to the place of beginning, containing five and 
one-half (5 J) acres, more or less. 

"That said plaintiffs are the owners in fee simple of 
such portion of said land as they have not already lawfully 
conveyed, and that the grantees of said plaintiffs are the 
owners in fee simple of such portions of such land, re- 
spectively, as may have been duly conveyed to him, and 
the title of said plaintiffs and their said grantees is hereby 
quieted and confirmed. 

"It is further ordered and decreed that the defendants 
Frank J. Kasper and Frank Shoull are the owners in fee 



I 

'1 

'! 394 NEBRASKA REPORTS. [Vol. 30 



Ainsfleld v. More. 



simple of the following described portion of the land here- 
inbefore described, and the title thereto is hereby quieted 
and confirmed in them: Beginning at the northwest corner 
of the southeast quarter of the southwest quarter of section 
26y township 15 north, of range 13 east, thence south 14 
chains, thence east 4.18 chains, thence north 14 chaias, 
thence west 4.18 chains to the place of beginning, being 
5.85 acres in said county. 

"It is further ordered and decreed that the defendantj 
Andrew B. More, has no interest, right, title, or equity in 
or to said lands herein described, or to any part or portion 
thereof, and that he be and hereby is forever enjoined and 
estopped from making any claim to said land or any por 
tion thereof, and that he pay the costs of this action ; to 
which findings and decree the defendant excepts and ap- 
pealed his cause to the supreme court." 

I find considerable difficulty in presenting, to my own 
satisfaction, the questions involved in this case. This Jif- 
ficulty, if not caused by, is greatly augmented in, the fact 
that the original deed from Andrew B. More to Lucy A. 
Goodwill is not set out in the record, nor does it apjiear 
that the deed, or the record of it, was produced at the trial. 
The original deed appears to have been lost. It is not 
believed that, as a question of law, the production of the 
record was indispensably necessary upon the trial, for the 
reason that the exc(5Ution and recording of the deed, aB 
alleged in the petition, are admitted in the amended answer 
of the defendant More. There were probably important 
legal advantages obtained by the plaintiffs, or, at IciiBt, 
perplexing ditKculties obviated, by refraining from oder- 
ing the record of the deed in evidence, and probably, as 
it was uncertain whether the mistake or error, sought 
to be corrected by these proceedings, was a mistake or 
error in the draughting of the deed, or in the recording of 
it, it was deemed expedient to withhold the record fmtn 
the evidence; yet certain it is, that its production would 



Vol. 30] SEPTEMBER TERM, 1890. 



395 



Aiusfield y. More. 



have assisted the inquiries of the court and insured an ear- 
lier disposal of the case. It is in evidence that this docd 
was executed and acknowledged on December 2-5, 1857. 
There was introduced in evidence a deed from A ml row B, 
More and wife to Moses F. Shinn, executed July o, IHoT, 
This deed described the land lying easterly of, or fnim tlie 
easterly boundary of, a portion of the land claimed by the 
plaintiffs. This line commencing at the point A on the 
plat of the lands introduced in evidence as Exhibit A, run- 
ning S. 17° E. 10.15 chains to a black oak, marked B on 
the plat, which point is testifieil to by witnes.ses on the 
trial, and upon whose testimony we must rely for ov [tlciicre 
as to the contents of the deed sought to be correcte<], as the 
first boundary line set out in said deed. Accord in^r to the 
same witnesses' testimony the next course of the siime de- 
scription is N. 60° W. 1.33 chains. This course h clatmed 
to be correct, but at that point the difficulty as ti.> the 
description begins, in the deed to Mrs. Goodwill, us testi- 
fied to. The next course is thence N. 72J° E. 1.8 1 cliafns. 
This would extend diagonally across the first course of 
the description, and a little more than 90 chains into and 
upon the land formerly deeded to Shinn, whereas the cor- 
rect description, as claimed and satisfactorily shown, would 
be thence N. 72J° W. 1.83 chains to the point D nu said 
line, thence N. 57° W. 6.20 chains to the point E, ihent^ 
N. 75° W. 5.65 chains to the point F, thence N. 82° W. 
6.64 chains to the point G, thence N. 21 chaiii.< to the 
point H, thence E. 7.80 chains to the point I, thence S. 
10° W. 4.20 chains to the point J, thence S. 10i° E. 
14.70 chains to black letter K, thence S. 86^ E. 7.90 
chains to the place of beginning. To follow further the 
description, as contained in the Goodwill deed, we go back 
to the erroneous course before described, and conimfncing 
at the point marked with a red letter D on the plat, thence 
N. 57° W. 6.20 chains to red E, thence N. 75° W. 5.66 
chains to red F, thence N. 82° W. 6.64 chains to red G* 



396 



NEBEASKA REPORTS. [Vol. 30 



Ainsfield v. More. 



i 



At this point the line turns due north^ falling short of the 
point in the true description, marked black G, a distance 
corresponding exactly with the sum of the two distances 
from the black oak to the point C and from the point C to 
either point D. Taking up the description in the Good- 
will deed at the point marked with a red G, it runs due 
north 22 chains, striking the north boundary of the track as 
claimed by the plaintiffs, at red H on the plat, thence E. 
7.80 chains to the point marked red I, thence S. 10*^ W. 
4.20 chains to the point marked red J, thence S. lOJ*^ E. 
14.70 chains to the point marked with a red K, thence S. 
86J° E. 7.90 chains. 

It will thus be seen that the north boundary is the same 
in both descriptions, except as to the limits east and west, 
and that the east boundaries of the northern, or what we 
we will term the upright portion of ther tract, are identi- 
cal in the two descriptions, except that the south point of 
the line of the Goodwill deed is substantially the same dis- 
tance east of the corresponding point in that which is 
claimed as the true description, as is the distance between 
the red G and the black G on the plat, and the last course 
carries us the same distance past and east of the place of 
beginning. 

It appears from the record that on January 25, 1866, A. 
B. More and wife deeded to John H. Green twenty-three 
acres of land immediately east of what is designated the 
northern or upright portion of the land in controversy. 
The description of this land as contained in the deed of 
Green commences " at N. E. corner of the S. E. quarter of 
the S. W. quarter of section 26, township 15, thence W. 
12.20 chains, thence S. 10° W. 4.20 chains, thence S. 10J° 
E. 14.70 chains, thence S. 86 J° E. 10.30 chains, thence N. 
19.26 chains to the place of beginning.'* In the convey- 
ance from More to Green there is also another tract con- 
veyed, described as "beginning at the S. W. corner of the 
N. E. J of the N. W. J of sec. 35, in the same township 



Vol. 30] SEPTEMBER TERM, 1890. 



397 



Ainsfleld v. More. 



and range, thence N. 18 chains 78 links, thence S. 82° E. 
6 chains 64 links, thence S. 15° W. 18 chains 35 links, 
thence W. 1 chain 75 links to the place of beginning, con- 
taining six acres, more or less.'^ 

It will be observed that the north line or boundary of 
this piece, or the second course of the description, is iden- 
tical with that part of the line of the tract in controversy 
as claimed by the plaintiffs and marked by the black line 
between the black letters F and G, leaving a narrow strip 
between the north boundary of this tract conveyed to 
Green and the west end of the south boundary of the tract 
described in the deed from More to Goodwill. 

By reference to the plat it will be seen that if the north- 
west corner of the north or upright plat of the land is at 
the point marked by a red H, as claimed by defendant 
More, and not at the point of black H, as claimed by 
plaintiffs, then the land conveyed to Green would fall short 
in quantity about one-third, as the west boundary of it, as 
marked by the red line of the plat, would be about four 
chains further east than the west line called for in the 
description. 

The defendant More, having been examined on the trial 
as a witness, testified upon cross-examination that he was 
the owner of the southeast quarter of the southwest quar- 
ter of section 20, township 15, range 13, at the time of 
the making of the deed to Mrs. Goodwill ; and in refer- 
ence to the deed which he had subsequently made to Green, 
stated that he did not intentionally or knowingly convey 
to him any land which he had previously conveyed ; that 
he probably made two deeds to Green, but recollected of 
making one to him, and probably deeded to him fifty -eight 
or sixty acres, *'hedidn^t recollect, the deeds would show;'' 
that he intended to sell him what was in the deeds, no 
more and no less ; that the same was also true in regard to 
Shinn, he intended to sell him whatever was covered by 
the deed, no more and no less; that in no case had he in- 



'^ 



398 



NEBRASKA REPORTS. ' [Vol. 30 



Aiusfield 7. More. 



tended to sell or to deed anything which he had previously 
conveyed; that he did not know, as a matter of fact, that 
what was to be conveyed to Mrs. Goodwill runs over into 
the ground subsequently conveyed to Greeu ; that he did 
not know that he claimed that it is correctly surveyed at 
all; that when he made the conveyance to Mrs. Goodwill 
he did not intend that the east line should ruu over some- 
thing like 200 feet into the tract sold to Green. 

Q.' You intended, when you made your conveyance to 
Mrs. Goodwill, that the east line should come square up to 
the west line of the tract you subsequently sold to John 
Green, didn't you ? 

A. I think that is correct. 

Q. And when you sold to John Green you intended his 
west line to come square down and touch the east line of 
the tract that you had previously sold to Mrs. Goodwill, 
didn't you? 

A. Well, I believe that was the intention. 

Q. And the west line of the tract you sold to John 
Green would come about to where John Green subse- 
quently put up the fence, wouldn't it? 

A. I don't know where his fence is ; the description in 
the deed will show. 

Q. The west line of the piece you sold to John Green 
would be about the place you pointed out to him where 
the line would be, wouldn't it? 

A. Yes, I suppose it would. 

He was also asked : 

Q. In describing the Goodwill tract was there any in- 
tention on your part to jog back to the east ? 

A. No, sir. 

Q. Over the tract previously sold to Shinn ? 

A. No, sir. 

Q. There was no intention of throwing a little wedge 
piece in the Shinn tract? 

A. No, sir. 



\ 



Vol. 30] SEPTEMBER TERM, 1890. 



399 



Ainsfield t. More. 



Q. If you owned that, and claimed to own it, why did 
you leave it in that kind of shape? 

A. I never put it in that shape. 

Q. Well, who did? 

A. I don't know; somebody who didn't know much 
about surveying. My impression is that that is the true 
line; this line here (indicating, while examining the plat, 
the black line) ; and there is a stake which should be some- 
where near Goodwill's G. That is the only surveying I 
ever did. We started there, at that time; I lived here 
somewhere ; started over to the spotted tree, and then we 
came down to another spotted tree (B) and went to several 
other lines (E and F) ; we didn't know where the govern- 
ment lines were. This deed was made by claim club lines, 
and didn't have any reference to the section lines whatever. 

Q. Your idea is that the true south line of the Good- 
will tract is the black dotted line, and not the red line 
which would jog back over in here ? 

A. Didn't jog nothing about it. That dog's head of a 
thing, there, has no business there ; there is a point, I am 
not positive, but I think tliat is the point (designating it on 
the plat). 

Q. You claim the true south line should be the dotted 
black line running due west, and not jogging back at any 
time towards the east ? 

A. Running due west, or northwest. 

Q. Due west, and not jogging back at any time towards 
the northeast ? 

A. No, sir ; and there should be a stake running down 
here somewhere to an oak tree, and then across, perhaps, 
here, I don't know, to another oak tree down here, and 
there, to the place of mine. This is what Mrs. Gx)odwill 
claims; I want you to understand that 

This evidence sufficiently establishes the all^ation of 
the petition that by a mistake in recoi*ding the deed, or in 
writing the description of the land intended to be conveyed. 



400 NEBRASKA REPORTS. [Vol. 30 



Aini^field 7. More. 



the word east, after the words and figures "thence north 
72J degrees/' was inserted in place of the word west, and 
that the true intent arid purpose of the deed of Moore to 
Goodwill was to convey the land as hereinbefore stated and 
described: "Beginning at a point 2.72 chains north 71 
degrees west from the quarter section corner, between sec- 
tion 26 and 35 (magnetic variation 11 J degrees east), 
thence south 17 degrees east 10.15 chains to a black oak, 
thence north 60 degrees west 1.33 chains, thence north 72J 
degrees west 1.83 chains, thence north 57 degrees west 6.20 
chains, thence north 75 degrees west 5.65 chains, thence 
north 82 degrees west 6.64 chains, thence north 21.22 
chains, thence east 7.80 chains, thence south 10 degrees 
west 4.20 chains, thence lOJ degrees east 14.70 chains, 
thence south 86 J degrees east 7.90 chains to the place of 
beginning, containing 23.65 acres, in sections 26 and 35, in 
township 15 north, of range 13 east." 

The plaintiffs also introduced a deed from Lucy A. 
Goodwill to George G. Earle, executed August 24, 1874, 
conveying what has been designated as the north or upper 
portion of the land in controversy. Also a deed from 
Earle and wife to C. E. Hawver executed March 22, 1878, 
which, with the other lands, conveyed the same tract con- 
veyed by Mrs. Goodwill to Earle. Also the record of tlie 
probate court of Douglas county, Nebraska, showing the 
probate of the last will and testament of Lucy A. Goodwill, 
deceased, with a copy of the will, from which it ap|)ears 
that Carrie E. Goodwill was made the sole l^atee of the 
real and personal property of which her mother, Lucy A. 
Goodwill, died seized. Also a record of the same court 
showing the probate and record of the last will and testa- 
ment of Carrie E. Hawver, late of said county, deceased, 
by which, afler various specific bequests, she bequeathed to 
her husband, Samuel Hawver, all of her property of every 
kind whatsoever. 

The record of the court below also contains the deed of 



Vol. 30] SEPTEMBER TERM, 1890. 



401 



Ainsfleld v. More. 



Samuel Hawver and Harriet L., his wife, to John Ainsfieltl 
and Marcus Rosen waser and Andrew Rose water, executed 
June 15, 1886, conveying the following described land: 
Beginning at the S. W. corner of the S. E. quarter of the 
S. W. quarter of section 26, township 15, rangq 13 east, 
thence north 6 chains, thence east 8.90 chains, thence south 
lOJ degrees east 4.39 chains, thence south 1.44 chains to 
the south line of section 26, thence west 9.33 chains to the 
place of beginning, containing five and one-half acres, 
more or less. Also a deed from Andrew Rosewater and 
wife to Frank ShouU executed January 13, 1887, describing 
the same lands as that last mentioned. 

Neither of the parties, nor either of the grantors of the 
appellees, direct or remote, appear to have l)eeu in the 
actual physical possession of the land which ought to have 
been described, but was not, in the deed from More to 
Goodwill. 

According to the bill of exceptions, this land consisted 
of brush and timber; that from a date shortly after the 
execution of the deed from More to Goodwill, the latter 
during her lifetime, and, after her death, her daughter and 
devisee Mrs. Hawver during her lifetime, and, upon her 
death, her devisee Hawver, up to a late period, occasionally 
sent persons in their employment to cut and haul wood 
from said land, and who did, as so employed, cut trees and 
timber for firewood and other purposes. There is no evi- 
dence that any portion of said land was ever enclosed, cul- 
tivated, or occupied otherwise than as above stated by Mrs. 
Goodwill and the Hawvers cutting trees and brush thereon. 
No act of ownership was exercised over any part of the 
land in controversy by the appellant since the fall of 1867, 
or the spring of 1868, and the evidence that any act of 
ownership was exercised by him after the date of the 
Goodwill deed is vague, indefinite, and unsatisfactory. 

Counsel for appellants assume, and apparently take it as 
granted, that the deed from More to Goodwill was a quit- 
26 



1 



404 NEBRASKA REPORTS. [Vol. 30 



Ainsfield y. More. 



elder states. I state from the syllabus : " In a case purely 
equitable, and not cognizable in a court of law, where, in 
an otherwise proper case, it is sought, on the ground of 
mistake, to reform and enforce an agreement for the con- 
veyance of real estate, and the correcting of the mistake 
involves no change of possession, no disturbance of invest- 
ments made by the party against whom the correction is 
sought, and leaves the enjoyment of the property to go on 
in harmony with the prior acts of the parties in interest, 
the lapse of time applied by courts of equity, in analogy 
to the statute of limitations, will be reckoned only from 
the time of the discovery of the mistake/^ 

In the case of Mcintosh v. Saunders, 68 111., 128, the 
court in the syllabus says : " In case of fraud or mistake, 
in equity, the statute of limitations will begin to run from 
the time of discovery of the fraud or mistake, and not 
before.'' 

In Orane v. Praiher et al,, 4 J. J. Marshall, 75, the 
premises were significant with those in the case at bar. 
There the chief justice, in the opinion delivered, after 
commenting upon the relation of courts of equity to the 
statute of limitations, stating views of the law in that 
behalf, generally entertained a half century ago, but which 
are not entertained by the courts of the present day, said : 
"Supineness and negligence will not receive countenance 
in a court of equity. But if a complainant shall have 
filed his bill within a saving time after his discovery of his 
claim to relief, and shall have made the discovery as soon 
as a man of ordinary diligence could have been expected, 
by the use of reasonable means, to have made it, he will 
not be barred merely because it might have been possible 
to have detected the cause for complaint sooner than it was 
ascertained. One of the most fatal effects of fraud is, that 
it conceals itself from its victims. If it should succeed in 
doing so until remedy for its perpetration should be banned 
by time, this alone being one of the injurious consequences, 



Vol. 30] SEPTEMBER TERM, 1890. 405 



Ainsfleld t. More. 



and perliaps one of the aims of the fraud, should give the 
chancellor jurisdiction of the case, for the purpose of re- 
lieving from the effects of the delusion. 

" The same reason does not apply with equal force to 
mistake. And it may be, and generally must be, difficult to 
prove, satisfactorily, when the mistake was discovered, and 
when it might have been ascertained by the exercise of 
ordinary vigilance. And hence, the equitable qualification 
of the legal limitation has not been applied as frequently 
to cases of mistake as to those of fraud. But it will apply 
in a proper case.'* 

The rule was applied to that case and controlled it; and 
that case was followed by that of Grundy* 8 Heirs v, Grundy 
etal.y 12 B. Mon., 269 ; Adams v, Guerard, 29 Ga., 651; 
Smith V. Fly, 24 Tex., 345 ; Andrews et al. v. Gillespie, 47 
N. Y., 487; Brooks et al. v. Harris, 12 Ala., 557; Ferris 
V, Henderson et al., 12 Pa. St., 49 ; Emerson v. Navan^o, 31 
Tex., 334. 

Tn the case of Parker v. Kuhn, 21 Neb., 413, which was 
one ol alleged fraud, and not of accident or mistake, 
this court held that ^'An action for relief on the ground 
of fraud may be commenced at any time within four years 
after a discovery of the facts constituting the fraud, or of 
facts sufficient to put a person of ordinary intelligence and 
prudence on an inquiry, which, if pursued, would lead to 
such discovery." 

A full consideration of the cases cited leads me to the 
conclusion that a case of relief from the effect of accident 
or mistake, like that at bar, comes within the same rule of 
limitation. It appears from the record that there has 
been no actual, physical occupation of the land in contro- 
versy by either of the parties to this action .since the exe- 
cution of the deed, the mistake in which is the foundation 
of this suit, occurred, until within a recent period, and at 
no time by the appellant ; that, therefore, there is no pos- 
session to be changed by a rectification of the mistake, nor 



406 NEBRASKA REPORTS. [Vol. 30 



Brufirman t. Burr. 



does a correction of the mistake involve any disturbance 
of investments made by the party against whom the cor- 
rection is sought ; but such correction will leave the prop- 
erty to go on in harmony with the prior acts of all the 
parties in interest. The case is therefore within the prin- 
ples and equities of the decision in Ormsby v. Longworth, 
supra. The judgment of the district court is 

Affibmed. 
The other judges concur. 



90 400 
ho 189 



Henry Brugman v. C. C. Burr. 

[Filed September 23, 1890.] 

Counter-claim: Distinct Causes of Action: Landtx>kd 
AND Tenant. The plaiDtiff was owuer of a storehouse iu L., 
of which defendant was tenant under a written lease, the rent 
payable monthly. The rent being in arrears about lour months^ 
the defendant gave plaintiff three short time, interest bearing, 
negotiable notes therefor. Afterwards, the plaintiff desiring to 
•nlarge his storehouse, the parties entered into a new agreement 
which w IS indorsed on the lease, and by which defendant relin- 
quished all his right, title,and interest in said lease, reservin«; the 
right to remove his stock within fifty days from the date thereof; 
Burr to have the right to go on with improvements. Within 
the fifty days the plaintiff pulled down the rear wall, removed 
a part of the roof, took up the sidewalk, and made excavation 
for an area in the front. The notes having become due, suit 
was brought thereon. The defendant set up a counterclaim: 1. 
Damage to his stock of hardware, kept in the store, by plaintiff's 
removing the roof and allowing the rain to enter and flood the 
storeroom. 2. Damage to his business by reason of taking up the 
sidewalk and excavating in front of the store. Jffeldy That such 
damages were not the subject of counter-claim, not arising out 
of the contract or transaction set forth in the petition as the 
foundation of the plaintiff 's claim, nor connected with the sub- 
ject of the plaintiff 's action. 



Vol.. 30] SEPTEMBER TERM, 1890. 407 



Bnigman t. Burr. 



2. : Pleadimo. Before replying to the answer plaintiff moved 

to strike out the words of the second clause of the counter- 
claim as inadvertent and irrelevant, which motion was sustained. 
Helt/f Mot reversible error. 

3. : : The Objection that a counter-claim fails to state 

I'ucts sufficient to constitute a cause of action, or defense to the 
uction, may be taken at any stage of proceedings, or upon error» 
or appeal. 

Maxwell, J., dissents upon the first point 

Error to the district court for Lancaster county. Tried 
below before Field, J. 

J. C. Johnisforiy and J. E. Philpott, for plaintiff in error. 

SamtLclJ. Tuttle, contray cited: Code, sees. 1011, 1012; 
Baggren v. R. Co., 23 Neb., 620. 

Cobb, Ch. J. 

This cause comes to this court on error from the district 
court of Lancaster county. The plaintiff in that court in 
and by his petition alleged the making, execution, and de- 
livery to him, by the defendant, of three, several promis- 
sory notes, two for $200 each, and onfe for $210, dated 
February 8, 1886, and due, respectively, April 8, May 8, 
and June 8, 1886, and demaiuling judgment in the sum of 
$576, with interest. 

The defendant, in and by his amended answer, paying 
no attention to the allegations of the petition, nor troub- 
ling himself as to any distinction between defense, set-off, 
and counter-claim, alleged that on the 28th day of Decem- 
ber, 1883, the plaintiff, by his deed, duly executed and de- 
livered, leased to the defendant lot 14, in block 42, in Lin- 
coln, for a term commencing the 1st day of January, 1884, 
and ending December 31, 1889, for the considci.ition of 
$8,100, to be paid by the defendant to the plaintiff in in- 
stallments of $135 on the first business day of each and 



408 NEBRASKA REPORTS. [Vol. 30 



Brugmsn v. Burr. 



every month thereafter ; that the consideration for the said 
notes sued on is for a part of the said installments so to be 
paid for, and on said rent and no other; that on the 30th 
day of April, 1886^ the defendant then being in the qaiet 
and peaceable possession and enjoyment of the said lot, 
and the tenements thereon, under the covenants of said 
lease^ and then and there being engaged in the carrying on 
a general retail business in hanlware, woodenware, tin- 
ware, and cutlery, and the plaintiff then and there desir- 
ing and intending to build an addition to the rear east end 
of the building on said lot^ the building so occupied by 
the defendant, the defendant, at the instance and request of 
the plaintiff, executed and delivered, by his certain writing 
on the back of said lease, his certain deed of release, as 
follows, to-wit: 

" For value received, I hereby relinquish to C. C. Burr 
all my right, title, and interest in the within lease, reserv- 
ing right to remove stock within fifty days from date 
hereof. Burr to have right to go on with improvement in 
meantime. April 30, 1886." 

That the word "improvement" used in said release 
means the taking out of the rear end of said building and 
t lie construction to said building of the said addition and no 
other matter or thing; that the word "stock" used in said 
release means the defendant's said goods and chattels, then 
used and employed by him in his said retail business; that 
on or about the 4th day of May, 1886, and while the de- 
fendant was occupying tlie said lot and tenements thereon, 
and so engaged in his said business, and thereafter up to 
the 14th day of June, 1886, the said plaintiff, in violation 
of the defendant's right to the peaceable possession and 
quiet enjoyment of the said premises, so to occupy the 
same, and in disregard of the covenants of said assign- 
ment, did wrongftilly, against the protest of the defendant, 
enter upon said promises and remove the roof on said 
building, and wrongfully, and against the protest of the de- 



Vol. 30] SEPTEMBER TERM, 1890. 409 



Brogman t. Burr. 



fenclant, tore to pieces and carried away the sidewalk of 
the immediate front of said building on the West side 
thereof, and did then and there dig an excavation twenty- 
five feet by sixteen feet, and seven feet deep, and then and 
there wrongfully and negligently did leave the defend- 
ant's said stock of goods exposed to the elements and ex- 
posed and subject to be stolen and carried away, and then 
and there for twenty days, by reason of said excavation, 
the defendant and his servants and the public were wholly 
prevented from going in and out of the front entrance and 
door of said building; that the defendant had a stock of 
goods in said building during the time of the committing 
of said grievances by the plaintiff, of the value of $3,000; 
that by reason of the said wrongful acts of the plaintiff, 
in sp removing the said roof and so exposing the said 
goods to the elements, the said goods were rained upon and 
damaged in the sum of $600; that by reason of the said 
wrongful acts of the plaintiff in so exposing said goods to 
be feloniously stolen, without fault or negligence of the de- 
fendant, there were feloniously stolen and carried away of 
defendant's said stock, goods of the value of $100, no part 
of which the defendant has ever since recovered or received, 
to his damage in the sum of $100; that by reason of the 
])laintiff 's so wrongfully removing the said sidewalk, and the 
huid excavation, and so preventing said ^rcss and ingress 
to the said building, through said front door, to himself, 
his servants, and the general public, he was, for said twenty 
days, wholly prevented from carrying on his said business, 
to his damage in the sum of $500; with prayer for judg- 
ment for his said damages afler the taking out thereof of 
the amount which may be found due the plaintiff on the 
said notes. 

The plaintiff replied to the above answer of the defend- 
ant, in which he denied that the plaintiff on the 30th day 
of April, or at any other time, desired or intended to build 
an addition to the storeroom mentioned in said counter- 



410 NEBRASKA REPORTS. [Vol. 30 



Brugman y. Burr. 



claim and to the rear east end thereof only, but alleged 
that at that time he intended and desired to repair the said 
storeroom in the manner in which he did so repair the 
same, and that it was on that account he procured the re- 
lease mentioned by paying to the said defendant a full and 
complete consideration therefor. He denied that the new 
improvements mentioned in the counter-claim meant only 
the taking out of the east end of the building and the con- 
struction of the addition to the east end of said building 
as alleged ; but that it was used in its ordinary sense and 
included all the improvements made upon said store build- 
ing, or to the same as actually done and performed there- 
after, as in the summer of 1886. He further denied that 
the said plaintiff removed the roof from said building be- 
tween the 4th day of May and the 17th day of June, 1886, 
but alleges the fact to be that said roof was removed long 
aft;erthe elapsing of the fifty days mentioned in said release 
and not before. He admitted that before the elapsing of 
the said period of fifty days he did remove the said walk 
in front of the said store building and dug the excavation 
mentioned in said counter-claim, but said plaintiff further 
alleges that he caused said excavation to be covered with 
plauk at his own expense, so that neither the said defend- 
ant, nor his servants, nor the public were in any manner 
deprived of free ingress into or egress from said store 
building. And the plaintiff denies each and every allega- 
tion in said counter-claim contained as to the fact and 
amount of damages claimed by said defendant, and alleges 
that if he suffered any damages whatsoever it was occa- 
sioned by his own fault and negligence, and not by the fault 
or wrong of the plaintiff. 

There was a trial to a jury, with a verdict and judgment 
for the plaintiff. After unsuccessful motion for a new trial, 
the defendant brings the cause up on error. 

Before filing his reply, the plaintiff moved the court for 
an order striking from the defendant's answer and counter- 



Vol.30] SEPTEMBER TERM, 1890. 411 



Biugman V. Burr. 



claim the following words: "And wrongfully and against 
the protest of the defendant tore to pieces and carried away 
the sidewalk in the immediate front of said building on the 
west side thereof, and did then and there dig an excavation 
twenty-five feet by sixteen feet, and seven feet deep." 
Also the following : "That by reason of the plaintiff so 
wrongfuTly removing the said sidewalk and making the 
said excavation, and so preventing said egress and ingress 
to the said building through said door to himself, his serv- 
ants, and the general public, he was for said twenty days 
wholly i>revent€d from carrying on his said business, to his 
damage in the sum of $500." And also the following: 
"And then and there for twenty days, by reason of said 
excavation, the defendant, and his servants, and the public 
were wholly prevented from going in and out of the front 
entrance and door of said building." Which motion was 
upon argument sustained and the said order passed. This 
order and judgment of the court constitute the first error 
assigned. 

This assignment involves the entire answer and counter- 
claim of the defendant. Section 100 of the Code pro- 
vides that "The defendant may set forth in his answer 
as many grounds of defense, counter-claim, and set-off as 
he may have. Each must be separately stated and num- 
bered, and they must refer in an intelligible manner to the 
cause of action which thoy are intended to answer;" and 
section 101, as follows: "The counter-claim mentional in 
the last section must be one existing in favor of a defend- 
ant, and against a plaintiff, l)etween whom a several judg- 
ment might be had in the action, and arising out of the 
contract or transaction set forth in the petition as the foun- 
dation of the plaintiff's claim, or connected with the sub- 
ject of the action." 

It will be remembered that "the contract or transaction, 
set forth in the petition as the foundation of the j^laintiff's 
claim," was the giving of three several promissory notes 



412 NEBEASKA REPORTS. [Vol. 30 



Brugman t. Burr. 



by the defendant to the plaintiff, and while it is alleged in 
the said answer or counter-claim that the consideration of 
the notes sued on was for a part of the installments of rent 
agreed to be paid by the defendant to the plaintiff upon 
the store house or building, yet, taking the whole answer 
or counter-claim together and in connection with the dates 
of said notes, it is apparent that the notes were given for 
installments of rent which had been earned and were past 
due before the execution of the release set out in the 
counter-claim. It is, moreover, quite apparent that all of 
the grievances or causes of action, set out in the said answer 
or counter-claim, transpired after said notes had been given 
as for money due and payable, and after the said lease had 
become released. While it is admitted for the purposes of 
the argument of the point now being considered, that the 
defendant had a cause of action against the plaintiff for 
tearing off and removing the roof of the storeroom occu- 
pied by the defendant, and thereby allowing the rain to 
enter, and wet and damage defendant's stock of hardware, 
and another'different and distinct cause of action for tear- 
ing up the sidewalk and digging an excavation in front 
of said storeroom, and thereby injuring defendant's trade 
and business, for which defendant could have maintained 
one or more suits against the plaintiff, yet it does not fol- 
low that either or both of these causes of action could be 
pleaded and maintained as a counter-claim against the action 
of the plaintiff. These causes of action were, as described 
in the pleading, one of them a trespass, and the other, if 
not a trespass, was a tort of the nature of a trespass. 
Neither of them arose out of the contract or transaction 
in the petition as the foundation of the plaintiff\s claim, 
nor were they connected with the subject of the action. 

The language of the corresponding section of the Code 
of New York is identical with that of our own, and those 
of most of the Code states, and, without citing the cases, I 
assume that, under the construction given the Code by the 



Vol, 30] SEPTEMBER TERM, 1890. 413 



Brugman v. Burr. 



courts of New York, the counter-claim now under consid- 
eration would not be sustained. And I admit that many 
able courts and text-writers give the provision a broader 
and more liberal construction, yet I am unable to find any 
case that goes far enough to cover the one at bar. 

The principle decided in the case of Loomia, Campbell 
& Co. V. The Eagle Bank of Rochester^ 10 O. St., 327, ap- 
pears to me quite applicable to the case at bar. In that case, 
to state it shortly, E. Gilbert & Co., of Rochester, in May, 
1855, sold to Loomis, Campbell & Co., of Cincinnati, one 
thousand kegs of blasting powder, at $3.20 per keg deliv- 
ered on board at Rochester. Five hundred kegs were de- 
livered on board as contracted, and Loomis, Campbell & 
Co., being advised fort ii with, returned a negotiable note at 
six months from date of shipment, for the contract price of 
the 500 kegs, but the other 500 kegs were never shipped. 
In August, following, the note was discounted by the bank 
for G. & Co., one of the discount committee being aware of 
the terms of the sale and of the fact that the last lot of 500 
kegs had not been shipped. The note was not paid and 
snit was brought thereon by the bank against L., C. & Co., 
who set up, by way of counter-claim, damages for the non- 
delivery of the 500 kegs of powder. The bank having 
obtained judgment in the trial court, upon an error in the 
snpreme court, it was held, (1) That the stipulations as to the 
two lots of powder are to be treated as distinct and several 
agreements, and not as one entire contract; (2) that a claim 
for damages for the non-delivery of the last lot, cannot be 
set up as a counter-claim to an action on the note given for 
the first lot, brought by the indorsee for value and before 
maturity, even though he had notice of the breach of the 
second contract at the time of his purchase. This case was 
followed by the same court in the late case of Myers c. 
Oroswell, 45 O. St., 543. 

Upon looking into the record before us, it appears that 
upon the 8th day of February, 1886, the defendant was 



414 NEBRASKA REPORTS. [Vol. 30 



Brugman ▼. Burr. 



indebted to the plaintiff in the sum of six hundred and ten 
dollai*s for rent money due under the lease held by the 
said defendant for the store house in question. For this 
rent money, then in arrear, the three promissory notes sued 
on were given. These notes were n^otiable and to draw 
interest at ten per cent from date. On the 30th day of 
April following, nearly three months after the giving, of 
these notes, the parties entered into the contract expressed in 
the release, indorsed on the lease, under which the defend- 
ant held the said store building. By the terms of this 
contract the defendant relinquished and surrendered all of 
his right, title, and interest under the lease, with the single 
reservation of the right to remove his stock of goods there- 
from within fifty days from the said date. The taking 
up of the sidewalk, and the making of the excavation in 
- front of the store, and the removal of the roof of the store 
occurred some length of time after this. No rent was ac- 
cruing at the time of the commission of these acts, and so 
the entire subject of rent, and more especially the rent that 
had accrued by monthly installments and been settled and 
capitalized and notes given for, months before, had been, and 
was entirely segregated from the relations and transactions 
between the parties subsequent thereto. The tortious acts 
of the plaintiff, set out in the counter-claim, are therefore 
not connected with the subject of the action within the 
meaning of the Code. 

The question then arises. In what manner ought the 
plaintiff to have taken advantage of the want of a sufficient 
defense, counter-claim, or set-off to the cause of action set up 
in his petition? The usual course in such cases has doubt- 
less been to demur to defendant's pleading, but I have 
made a long and fruitless search, in the wilderness of cases 
and text-books, for satisfactory reasoning or authority on 
that point, as applicable to our Code. Section 109 of the 
Code provides that '^the plaintiff may demur to one or 
more of the defenses set up in the answer, stating in his 



Vol. 30] SEPTEMBER TERM, 1890. 415 



Brugman v. Burr. 



deraurrer the grounds thereof; and where the answer con- 
tains new matter, the plaintiff may reply to such new mat- 
ter denying, generally or specially, each allegation contro- 
verted by him; and he may allege, in ordinary and concise 
language, and without repetition, any new matter not in- 
consistent with the petition constituting a defense to such 
new matter in the answer/^ A counter-claim is, in one 
sense, a defense ; yet in most cases, as in the one at bar, 
it leaves the cause of action set up in the petition un- 
scathed, but seeks to set up a more or less independent 
cause of action to meet, and, in whole or in part, overbal- 
ance it. The Code provides, at section 94, specifically upon 
what grounds a defendant may demur to a petition, but 
does not specify or limit, in terms, the grounds upon which 
a plaintiff may demur to the defenses set up in the answer. 
The reason for this distinction probably is, that it was the 
intention of the framers of the Code to confine the opera- 
tion of that part of section 109, which provides for a 
demurrer, to such answers as are technical defenses, and 
hence demurrable on any ground in which they fail to con- 
stitute a defense to the cause of action set up in the petition 
to which they are applicable, and that a counter-claim or 
set-off is, for the purposes of demurrer, regarded as a peti- 
tion. 

In this view of the law it may well be doubted that 
demurrer would have lain to the counter-claim in the 
case at bar. Under neither of the six specific grounds of 
demurrer set out in the 94th section, would demurrer lie to 
this counter-claim, considered as an inde}>endent petition. 
It does state facts suflScient to constitute not one only but 
two causes of action; my objection to it being that such 
causes of action are not '^arising out of the contract or 
transaction set forth in the petition as the foundation of 
the plaintiff's claim, or connected with the subject of the 
action." 

Under the practice formerly prevailing in equity, where 



1 



416 NEBRASKA REPORTS. [Vol. 30 



Brugman t. Burr. 



the answer contained no defense to the plaintiff's bill, the 
plaintiff might have the cause heard on bill and answered, 
and, unless the defendant applied for leave to amend, 
obtain the relief prayed for in his bill. Somewhat similar 
is the present practice in New York ; or, in that state where 
the complaint does not state facts sufficient to constitute a 
cause of action, the objection is available on trial upon 
motion to dismiss the complaint. {Tooker v. AmouXf 76 
N. y., 397.) 

The case of Kurtz v. McGuire, 5 Duer, 660, was, in 
some of its features, much like the ease at bar. The com- 
plaint stated a sale and delivery by the plaintiff to the 
defendant of liquors at an agreed price of $290.20, and 
claimed a balance of $208.06. The answer denied that he 
had received the quantity of liquors state<l, or that they 
were worth, or that he agreed to pay the price named, and 
averred that they were worth about $200 and no more. 
It then proceeded thus : "And this defendant further says 
that on or about the 20th of October, 1856, the said plaint- 
iff, without the knowledge or consent of the defendant, 
took and appropriated to his own use 87J gallons of 
whisky belonging to this defendant, of the value of $2.75 
per gallon, which this defendant claims to set off against 
the plaintiff's claim herein, and also five gallons of gin 
worth the sum of $1.50 per gallon, and this defendant 
denies that he is indebted to the plaintiff in any sum or 
amount; wherefore he demands that the complaint be dis- 
missed. The plaintiff moved to strike out this part of the 
answer as "irrelevant and redundant," because it is not 
matter constituting a counter-claim or a defense, either tolal 
or partial. The geneml term held that the matter moved 
to be stricken out did not give a right of^ set-off, not being 
a demand arising on contract; and that it did not con- 
stitute a counter-claim, because it does not arise out of 
contract nor out of the transaction set forth in the com- 
plaint as the foundation of the plaintiff's claim, nor is it 



Vol. 30] SEPTEMBER TERM, 1890. 417 



Brugman v. Burr. 



connected with the subject of the action. The motion was 
allowed. 

It must be admitted that in the cose at bar the matter 
stricken from the answer is no more irrelevant nor imma- 
terial than that which is left; but this objection could 
scarcely be urged by the defendant; nor does the Code 
(sec. 125), which provides that redundant, scandalous, or 
irrelevant matter^ when inserted in any pleading, may be 
stricken out on motion, require that all matter of that char- 
acter he included in the motion. 

I conclude, therefore, that there is not sufficient reason, 
nor is there any authority which I am able to find which 
would justify us in holding that the court erred in sustain- 
ing the motion to strike the matter from the answer. The 
action originated in the county court and was thence ap- 
pealed to the district court by the defendant, which facts, not 
appearing from the pleading, or briefs of counsel, were not 
referred to in the statement. It also appears that after the 
appeal was perfected, the defendant, in the absence of the 
plaintiff and without notice, moved the district court to 
dismiss the appeal, which motion was allowed and the ap- 
peal dismissed at the cost of the defendant, and the cause 
remanded to the county court for further proceedings, as 
though no appeal had been taken. And then two days 
thereafter, and at the same term, the plaintiff filed his mo- 
tion in said court for an order reinstating said appeal there- 
in for the reason that the same was so dismissed without 
the plaintiff^s consent, and contrary to law ; which motion 
was allowed, the said first order was set aside and vacated, 
and the appeal reinstated. Which said last order and 
judgment of the court is the ground of the second error 
assigned. 

The Code, at sections 1011 to 1015, makes ample pro- 
visions applicable to cases where the appellants or both 
parties fail, or neglect, to perfect the appeal, but there is no 
provision for the voluntary dismissal of an appeal by the 
27 



418 NEBRASKA REPORTS. [Vol. 30 



Bragman v. Burr. 



appellant, after the same is perfected, nor in any case with- 
out the consent of the appellee. Even were there such a 
provision it would be within the power of the court at the 
same term to set aside an order allowing such dismissal, 
upon being satisfied that it had been unlawfully or improv- 
idently made. 

The brief of counsel on the part of the plaintiff in 
error, in so far As it is not devoted to the points above con- 
sidered, is confined to the discussion of the verdict, its in- 
suflSciency under the evidence, and its illegality. Neither 
the assignment of error involving one of the instructions of 
the court, nor the one alleging that the verdict is contrary 
to the sixth paragraph of the instructions, is discussed or 
presented in the brief; neither is the one of errors of law 
occurring at the trial. I here copy the verdict : 

•' We, the jury, * * * do find that there is due 
from the defendant to the plaintiff upon the cause of action 
set forth in his petition the sum of $671/25, and we further 
find that there is due from the plaintiff to the defendant 
upon his cause of action and defense the sum of $200. 
We therefore find that there is due from the defendant to 
the plaintiff a balance amounting to the sum of $471.25, 
which we assess as the amount of his recovery.'^ 

This was evidently a compromise verdict. 

There was a great deal of sharply conflicting testimony. 
The defendant himself testified that he was absent from 
the city Monday, June 14, 1886; that returning Tuesday 
morning following he found the tin roofing torn off of the 
store, and it having rained the night before, the two stories 
and the basement of the store were flooded with water and 
the goods damaged, in his opinion, to the amount of five 
or six hundred dollars. He also testified that it continued 
to rain more or less during the entire day of the 15th. 
He also testified that his stock of goods shortly before this 
date was of the value of six thousand dollars. He was 
subjected to a cross-examination, in which his replies to 



Vol. 30] SEPTEMBER TERM, 1890 419 



Bnigman ▼. Burr. 



qaestions could not have failed to convince the jury that 
his estimate of the damage was but a guess. Palmer Way^ 
a fellow hardware dealer^ who was acquainted with the 
stock, and was called in to examine it after the rain, agreed 
with defendant in his estimate of damage, but fixed the 
value of the stock before the damage at just half the sum 
fixed by him, F. E. Newton, who had formerly been in 
the hardware business, and who had been in defendant's 
store quite often, for a long time before the damage, a wit- 
ness for defendant, estimated the value of the goods before 
the damage at from ^Hwo to three thousand dollars; twenty- 
five hundred, possibly.'' As to the amount of damage to 
the goods he agreed substantially with the other two. 
Neither of these witnesses gave such reasons, as the bases 
of their judgment, as would probably be satisfactory or 
convincing to the jury. There was no evidence as to the 
kind, number, or value of the different articles damaged, 
except as to a few stoves and packages of grass and garden 
seeds, in the testimony of the defendant. 

On the part of the plaintiff, James Tyler testified that 
he was the superintendent in charge of the work of making 
the improvements upon the store in question; that the 
main roof of the old building was removed some time 
after the 21st day of June, 1886'; that the part of the roof 
just over the elevator was removed prior to that time; 
that the shaft of the elevator was built of four corner 
posts and was enclosed with | flooring and had sliding 
doors. On cross-examination he testified that he was on 
the building once or twice every day during the week 
commencing Monday, the 14th day of June; that during 
that week none of the roof was or had been removed, ex- 
cept the roof immediately over the elevator, and that the 
roof was broken in the back part where the rear wall had 
been taken down; that he saw the workmen commence 
taking oflF the roof on Tuesday, the 22d day of June. 
The theory upon which this evidence was introduced, 



^ 



420 NEBRASKA REPORTS. [Vol. 30 



BrugmaQ v. Burr. 



doubtless, was that the rain which did the damage, entered 
the building by the elevator and the rear of the building 
where the wall had been removed, and the roof broken 
in by such removal. What effect it may have had upon 
the jury can only be surmised from the verdict. 

At the trial, and before any witness was sworn, the 
plaintiflF objected to the introduction of any evidence on 
the part of the defendant in su{)port of his answer, for the 
reason that it did not contain facts sufficient to constitute a 
set-off, coun ter-clai m, or any other defense. We often see this 
proceeding in bills of exceptions, but I do not remember 
any case where effect was given it. Where a petition, and 
so, also, doubtless, a cross-petition, setting up a counter- 
claim, fails to state facts sufficient to constitute a cause of 
action, the defendant in the one case and the plaintiff in 
the other, waives nothing by failing to make objection 
either by answer or demurrer, but this objection, as well as 
that the court has no jurisdiction of the action, may be 
taken at any stage of proceeding. (See Code, sec. 96.) 

By taking the verdict of a jury, the admitted claim of 
the plaintiff was cut down from $671.25 to $471.26 by a 
cross-bill which contained no legal counter-claim. The de- 
fendant now asks for a new trial on the ground that 
plaintiff's claim was not cut down enough. I think that 
it would be both illogical and idle to grant it. 

The judgment of the district court is 

Affirmed. 
NoRVAL, J., concurs. 

Maxwell^ J.^ dissents as to first point of syllabus. 



Vol. 30] SEPTEMBER TERM, 1890. 421 



Martia y. State. 



George Martin v. State or Nebraska, J? ^| 

[Filed Septembeb 23, 1890.] 

Liquors : Unlawful Sale: In an Infokhation for the sale of 
intoxicating liqaora, the names of the persons to whom liquors 
were sold, if known, should be alleged, or the fact of their being 
unknown be averred in excuse. 

Error to the district coart for Lancaster county. Tried 
below before Field, J. 

Chas. E, MagooUy and J. E. Philpott^ for plaintiff in error, 
cited, on the contention that the complaint was defective : 
SlaU V. Pischd, 16 Neb., 490, 608; State v. Doyle, 11 R. 
I., 574; Bishop, Statutory Crimes, sec. 1037, and cases 
cited in note 2. 

Wm. Leese, Attorney General, G. M. Lamberison, and 
H,J. Whitmore, contra: 

The same strictness is not required of a complaint as of 
an indictment. (Bayard v. Baker, 76 la., 220; Kingman 
V. Berry, 40 Kan., 626; Ec parte Mauk, 19 Neb., 273; Ex 
parte Eads, 17 Id., 145 ; Parker v. Slate, 4 O. St., 565; 
Bishop, Crim. Pro., sec. 230.) The objection is to the 
form of the complaint, which can only be made by a 
motion to quash. (Crim. Code, sec. 440 ; State v, Piachel, 
and Parker v, State, supra; Brown r. State, \Q Neb., 660.) 
Failing to do so, plaintiff in error waived defects. (Crim. 
Code, 444.) Even had the objection been in the proper 
form in the district court, it was too late ; the police court 
was the proper place. {Dist v. Ruber t, 17 Wash. L. Eep., 
361 ; 4 Gen. Dig., 494, sec. 88.) 

Maxwell, J. 

The plaintiff in error was convicted in the police court 
of the city of Lincoln of the offense of selling intoxicat- 



422 NEBRASKA REPORTS. [Vol. 30 



Martin ▼. State. 



ing liquor on Sunday. The case was taken on error to 
the district court, where the judgment of the police court 
was affirmed. The first objection is that the complaint is 
defective in failing to state to whom the liquor was sold or 
that the party was unknown. 

The complaint is as follows: 
"In the police court of the city of Lincoln^ Lancaster 

county, Nebraska. 
"The State op Nebraska^ 

^- r 

George Martin. J 

"The State of Nebraska, ) 
Lancaster County. j ' 

" The complaint and information of Lena Grant, of the 
county of Lancaster, made before me, A. F. Parsons, judge 
of the police court within and for the city of Lincoln, 
Lancaster county, Nebraska, on this 13th day of June, A, D. 
1887, who being duly sworn, on her oath says that George 
Martin, of said last named county and city, on or about 
the 12th day of June, A. D. 1887, in the county last 
named, and within the corporate limits of the city of Lin- 
coln, then and there being a person licensed to sell malt, 
spirituous, and vinous liquors under the ordinance of said 
city of Lincoln, did unlawfully, by himself or clerk, sell 
or give away intoxicating liquors, to-wit, several glasses of 
beer and whisky on said 12th day of June, it being the 
Sabbath day, commonly called Sunday, contrary to the 
ordinance in that behalf provided, and against the peace 
and dignity of the state of Nebraska. 

" Mrs. Lena Grant. 

"Subscribed in my presence, and sworn to before me, 
this 13th day of June, A. D. 1887. 

"A. F. Parsons, 
^^ Police Jiidge of the City of Lincoln.^' 

In State V. Pischely 16 Neb., 608, this court held that 
the names of the persons to whom liquor was sold, if 



Vol. 30] SEPTEMBER TERM, 1890. 423 



Martin v. State. 



known, should be alleged, or the fact of their being un- 
known should be averred in excuse. (Bishop on Statutory 
Crimes, see. 1037; State v. Steedman, 8 Rich. [S. Car.], 
312; Capritz v. State, 1 Md., 569; State v. Faucett, 4 Dev. 
& Bat, 107; Dorman v. State, 34 Ala., 216; State v. 
Walker, 3 Harr. [Del], 547; State v. Jackson, 4 Blackf., 
49; State v. Allen, 32 la., 491-493; Wilson v. Common- 
weaWi, 14 Bush, 159; State v. Schmail, 25 Minn., 368- 
369; State v. Doyle, supra; Wreidt v. State, 48 Ind., 579; 
and e&e Commonwealth v. Cook, 13 B. Mon., 149; State v. 
Carter, 7 Humph., 158; Commonwealth v. Smith, 1 Gratt., 
553; Commonwealth v. Taggarty 8 Id., 697; Hulstead v. 
Commonwealtli, 5 Leigh, 724; State v. Siinson, 17 Maine, 
164; Commonwealth v. Blood, 4 Gray, 31 ; State v. Nutwell, 
1 Gill, 64; State t?. Cox, 29 Mo., 475; Commonwealth r. 
Trainor, 123 Mass., 414; Commonwealth v.Cratcford, 9 
Gray, 129; Commonwealth v. Remby, 2 Gray, 508; State 
V. Wentworth, 35 N. H., 442.) 

The decision in Pischel v. Slate in our view is correct and 
will be adhered to. A party accused of violating the law 
by selling or giving away intoxicating liquors %>n Sunday, 
and thereby subjecting himself to the penalties of the law 
and his license to forfeiture, has a right to insist upon a 
reasonable degree of certainty in the charge as to the per- 
sons, if known, to whom the sale was made, so that he 
may defend against the charge. If, however, such persons 
are unknown, then, from tlie necessity of the case, the 
charge must conform to the fact, and this excuse should be 
alleged. The information, therefore, is defective in the re- 
spect named. 

The judgment of the district court is reversed and the 
cause remanded for further proceedings. 

Reversed and remanded. 

The other judges concur. 



424 



NEBRASKA REPORXa [Vol, 30 



Seebrock t. Fedawa. 



1 



I 30 424| 

I 88 8 g2| 

» 424 

I 43 413 



' 45 


881 


■^ 




3U 


424 


f48 


611 






30 


424 


49 


752 


66 


138 


I? 


424] 


' 62 


283, 



LoRiNDA Seebrock et al., appellants, v. Margaret 
A. Fedawa, appellee, 

[Filed Sbptbmbeb 23, 1890.] 

1. Wills: Probate: Testameittary Capacits': The Burden is 

apon the proponent of a will, both in the coanty oonrt and in the 
district court on appeal, to prove, not only the execntion of the 
will, bat the capacity of the testator. 

2. : : Right to Open and Close. The proponent is 

entitled to open and close the argument to the jnry. 

— : Undue Influence: Burden op Proof. Where it ia 



3. 



alleged that the execntion of a will was procured by undue in- 
fluence, the burden is upon the party alleging it to establish 
that the testator was induced by improper means to dispose of 
bis property differently from what he intended. 

4. Instructions : Reiteration. The supreme court will not re- 
verse a case on the ground that the trial court repeated in the 
instructions the same j^roposition of law, where it does not ap- 
pear that the purpose was to mystify and confuse the jury, and 
that the jury was misled by reason thereof. 

6. Evidenoe, hddf to sustain the yerdict and judgment. 

Appeal from the district court for Lancaster coaDtj. 
Heard below before Field, J. 

Lamb, Ricketts & TTi&on, for appellants : 

Sanity of a testator is presumed. (1 Jarman, Wills, 
104; Schouler, Wills, sec. 174; 1 Redfield, Wills, 32; 
Mush V, Megee, 36 Ind., 69; Moore v. Allen, 6 Id., 521 ; 
Herbert v. B&'rier, 81 Id., 1 ; Sloan r. MaxweU, 2 Green, 
Ch. [N. J.], 563; Chandler v. Ferris, 1 Harr. [Del.], 
454, 460; Thompson v. Kpier, 65 Pa. St., 368; Egbert 
V. Egbert, 78 Id., 326 ; Baxter v. Abbott, 7 Gray [Mass.], 
71; Banker v. Banker, 63 N. Y., 40d; Chrisman t?. 
Chrisman, 18 Pac. Rep. [Ore.], 6; Elkinton v. Brick, 15 
Atl. Rep. [N. J.], 391; Cotton r. Ulmer, 45 Ala., 378; 
Meekei^ v. Meeker^ 75 111., 266; 1 Williams, Exrs., 20; 



Vol. 30] SEPTEMBER TERM, 1890. 425 



Beebrock y. Fedawa. 



Gro(ym v. Thomas, 2 Hagg, [Eng.], 433.) Hence contest- 
ants were entitled to open and close. {Bates v. Bates, 27 
la., 110; Moore v. Allen, supra; Ihirner v. Cook, 36 Ind., 
129; Herbert v. Bereier, 81 Id., 1; 1 Thompson, Trials, 
sees. 237, 239; Rogers v. Diamond, 13 Ark,, 475'; Mo- 
Daniel V. Orosby, 19 Id., 633; Tobin v. Jenkins, 29 Id., 
161 ; Fdeleji v. Edelen, 6 Md., 288; Brooke v. Townshend, 
7 Gill [Md.], 10; Higgins v. Carlton, 28 Md., 116; Mar- 
shall V, Dames, 78 N. Y., 414.) Most of the cases cited 
on this question by appellee present different issues from 
this case, or were rendered under statutes arbitrarily 
fixing the procedure. The instructions as to the wife's 
right to influence a testator should have emphasized the 
fact that the will must represent his wishes at the time 
when it was made. (Schouler, Wills, 227, 228, 236; 
Tamer v. Cheesman, 15 N. J. Eq., 243, 264; Gardiner v. 
Gardiner, 34 N. Y., 155; Dean v. Negley, 41 Pa. St., 312; 
Hay dock v. Hay dock, 33 N. J. Eq., 494; Marx v. Mo- 
Glynn, 88 N. Y., 357; Baldwin v. Parker, 99 Mass., 79, 
84; Rollwagen v. RoUwagen, 63 N. Y., 504.) Especially 
should the conduct of a second wife, charged with unduly 
influencing a testator, be scrutinized. (Cases last cited, and 
Mullen V. Helderman, 87 N. Car., 471; Schouler, Wills, 
sec. 236.) The instructions are vicious because of reitera- 
tions. (Olive V. State, 11 Neb., 30, 31 ; Patrish r. State, 14 
Id., 60; Kerkow v, Bauer, 15 Id., 150; Kopplekom v. 
Hufman, 12 Id., 95; Mainon v. State, 16 Id., 349.) As 
to the refusal of the twelfth and thirteenth instructions 
asked: Schouler, Wills, 226, 236; 1 Redfield, Wills, 510; 
Hay dock v. Hay dock, supra; Griffith v, Diffenderffer, 50 
Md., 466; Mooney v. Olsen, 22 Kan., 69; Bates v. Bates, 
supra; Lyndi v. Clements, 24 N. J. Eq., 431-5; J?oH- 
wagen v. RoUwagen, 63 X. Y., 504; Gay t\ Gillilan, 5 S. 
W. Rep., 7; Harvey v. Sullens, 46 Mo., 147; Reynolds v. 
Adams, 90 111., 134. As to the exclusion of the expert 
testimony : In re Norman's Will, 33 N.W. Rep. [la.], 374; 



426 NEBRASKA REPORTS. [Vol. 30 



Seebrock v. Fedawa. 



Schneider v. Manning, 12 N. E. Rep. [111.], 267; Kcmpsey 
V. McGinniBs, 21 Mich., 123. 

Pound & Burr, BiUlngsley & Woodard, attorneys for ap- 
pellees, and if.C. Abbott, guardian ad litem: 

Under a statute like ours, the executor must prove capac- 
ity of testator. {^Vaff i\ Hosmer, 14 Mich., 309, 3J8; Kemp- 
aey v. McGinyiiss, 21 Id., 123; Aikin vAVecke:iiy, 19 Id., 
482 ; Williams v. Robinson, 42 Vt., 663 ; Roberts v, Welch, 
46 Id., 164; Conistock v. Hadlyme, 8 Conn., 254; Knox's 
Appeal., 26 Id., 22; Robinson v. Adams, 62 Me., 369 ; Sut- 
ton V. Saddler, 3 C. B. N. S. [Eng.], 87; Brooks v. Bar- 
rdt, 7 Pick. [Mass.], 96; Orowninshield v. Q^owninshidd, 
2 Gray [Mass.], 524 ; Baxter v. Abbott, 7 Id., 83 ; Sym^ v. 
Boughton, 85 N. Car., 367; Delafield v. Parish, 25 N. Y., 
9, 29, 34; Boardman t\ Woodman, 47 N. H., 120; Beazley 
V. Benson, 40 Tex., 425; Evans v, Arnold, 52 Ga., 169, 
182; Schouler, Wills, sees. 170, 184; Will of Silver- 
thorn, 68 Wis., 372; 1 Whart, Ev., sec. 530; 1 Green- 
leaf, Ev., sec. 77 ; 1 Jarman, Wills, notes by R. & T., 105; 
Schouler, Exrs. & Admrs., sec. 73; McMechm v. He- 
Mechen, 17 W. Va., 683; Gerrish v. Nason, 22 Me., 438; 
Hardy v. Men^ill, 56 N. H., 227 ; Carpenter v. Galcefi, 83 
111., 63, 71; Baldvnn v. Parker, 99 Mass., 79; Kerr v. 
Umsford, 31 W. Va., 679; Haihaway's Appeal, 46 Mich., 
327.) As to the effect of drunkenness on testamentary 
capacity : Peck v. Gary, 27 N. Y., 9 ; Pierce v. Pierce, 
38 Mich., 412; Estate of Gharky, 57 CaL, 274; Estate 
of Johnson, Id., 530; Schramm v. (7 Connor, 98 lii., 
541 ; Van Wyck v. Brashei^ 81 N. Y., 262. As to what 
constitutes testamentary capacity : Will of SUverthom, 68 
Wis., 372; Meeker v. Meeker, 75 III., 266; Rutherford v. 
Morris, 77 Id., 410; Trish v, Newell, 62 Id., 197; Car- 
penter V. Calvert, 83 Id., 63, 71; Chafin's WiU, 32 Wis., 
557; Lewis's WiU, 51 Id., 101; Jackman's Will, 26 Id., 
104; Will of Sarah Blakely 48 Id., 300; Kempsey r. Mo 



Vol. 30] SEPTEMBER TERM, 1890. 427 



Seebrock v. Fcdawa. 



Ginniss, 21 Mich., 140; Higg'tng v, Carlton, 28 Md., 115 
1 Jarman, Wills, 112; Thompson v. Kymer, 65 Pa. St. 
368; Harvey v. Sullens, 46 Mo., 247; Bundij v. Mc 
Knight, 48 Ind., 502; Aikin t?. Weckerhj, 19 Mich., 482 
Horn V. Pullman, 72 N. Y., 269. As to tlie value of ex- 
pert testimony on testamentary capacity : Will of Sarah 
Blakely, 48 Wis., 305 ; Fraser v. Jmnison, 3 N. W. Rep., 
882; Kempsey v. McGinniaa, 21 Mich., 139; Pieixe v. 
Pierce, 38 Id., 417; Parish Will Case, 29 Barb. [N. Y.], 
627 ; Carpenter v. Calvert, 83 111., 62. Bequest of an- 
other's property is not positive evidence of incapacity. 
(1 Jarman, Wills, 11*^; Schneider v. Koesier, 54 Mo., 500; 
Snow V. Benton, 28 111., *^06.) Nor is an unequal division 
of the property. (I Jarman, Wills, 112; Coleman v. Rob- 
ertson, 17 Ala., 8 1 ; GanMe v. Gamble, 39 Barb, [N, Y.], 
373 ; D'umbrUl r. Gibbons, 2 Zab. [N. J.], 117 ; Rutherford 
V. Morris, n 111., 307.) The instructions are well sup- 
porte<l by authority. (Piei-ce v. Pierce, 38 Mich., 412; 
Latlinm v. Udell, 38 Id., 238 ; Wallace v, Harris, 32 Id., 
380; Marring v. Allen, 25 Id., 505; Brick v. Brick, 66 N. 
Y., 145 ; Children's Aid Society v. Loveridge, 70 Id., 387, 
394 ; Gardiner n. Gardiner, 34 Id., 155 ; Monroe v. Bar- 
clay, 17 O. St., 302; Rabb v. Graham, 43 Ind., 1 ; Car- 
penter V, Calvert, 83 111., 62; Roe v. Taylor, 45 Id., 485; 
Pingree v. Jones, 80 Id., 177; Yoe v. McCord, 74 Id., 
33; Tawney^v. Ijong,ie Pa. St., 106; Jackman's WiU, 
26 Wis., 104; Mekeone v. Baimes, 108 Mass., 344; 1 
Jarman, Wills, 36, 131, 144 ; Mclntire v. McConn, 28 la., 
480 ; Rankin v, Rankin, 6 1 Mo., 295 ; Latham v. Schaal, 
25 Neb., 535; Brad ford v. Vinian, 26 N. W. Rep. [Mich.], 
401 ; Rutherjordv. Morris, 77 111., 410. 



NORVAL, J. 

In 1888, Margaret A. Fedawa presented to the county 
court of Lancaster county, for probate, the last will and 



428 



NEBRASKA REPORTS. [Vol 30. 



fa 



Seebrock v. Feclawji. 



testament of John A. Fedawa, deceased. Due notice was 
given, as required by law, to all persona Lnt<?reJ5ted. J- A- 
M. Fedawa, Milton Fedawa, and Lorinda Seebrock, chil- 
dren of the deceased, contested the will, N. C* Abbott, 
Esq., was appointed by the county court the gnanlian ad 
litem of Tilly May Fedawa, Flora Belle Fedawa, Florence 
Dale Fedawa, and Jay Gould Fedawa, minor clifldren and 
heirs of the deceased. Upon the heiiring, the county court 
admitted the will to probate and record. The contestants 
appealed from this order and judgment to the district court, 
where issues were formed. The contef^tants, in their an- 
swer, admit the execution of the will, but allege that it is 
invalid, for two reasons: First, because the testator, at the 
time of its execution, was incompetent to make a valid will, 
caused by long, continued, and exiessive use of iutoxicat* 
ing liquors. Second, because its execution was procured 
by fraud and undue influence. At the May, 1889, term 
of the district court, the case was triefl to a jniy. A ver- 
dict was returned that the paper produf.*e<l was the last will 
and testament of John A. Fedawa, dtKoased. The contest- 
ants filed a motion for a new trial, which was overruled, 
and a judgment was entered authorizin;^ the prolKite of the 
will, and awarding costs against tlie c??tate. The contestants 
prosecute a petition in error to this t ourt 

The testator, John A. Fedawa, died about the 1st day 
of February, 1888, leaving a widow, the progouent of the 
will, and seven children, three by his first wife^ the contest- 
ants, and four by the proponent. In 18GI the mother of 
the contestants procured a divorce from tlie deceasetl^ in 
the state of Michigan. The contestants remained with 
their mother, and the deceased subsequently went into the 
army. He came to Lincoln, Nebraska, in 1867 or 1869, 
where he resided imtil his deatlu Iii September, 1873, he 
was married to the proponent in tlie <Mty of Lmcoln. He 
then had but little proi)erty. At tfie time of his marriage 
to the proponent, Mrs. Fedawa had |500, which shortly 




Vol. 30] SEPTEMBER TERM, 1890. 429 



Seebrock v. Fedawa. 



afterwards she gave to her husband. Subsequently he 
purchased the National hotel, situated on P street, in the 
city of Lincoln, for the stipulated price of $6,000, paying 
down $500, and gave a mortgage on the property for the 
balance. He moved into the hotel with his family, made 
it his home, and carried on the hotel business there until 
his death. He also invested in other city property, im- 
proving the same, which rapidly increased in value. Mrs. 
Fedawa, being industrious and economical, his accumula- 
tion of property was, in part, due to her eflTorts. The 
deceased, for several years prior to December, 1886, was a 
hard drinker; at times he was so dissipated that he neg- 
lected his business. When intoxicated he was ill-tempered 
and quarrelsome, making it necessary at times to call the 
[wlice officers to care for him. In 1883 Mr. Fedawa gave 
a mortgage to pay for some improvements upon the prop- 
erty, To induce his wife to execute the mortgage he gave 
her a bill of sale of some furniture, and an assignment of the 
rents of certain other property. In March, 1 886, he gave 
another mortgage, and to induce his wife to join with him 
in its execution, he assigned her the rentals on the restau- 
rant and the barber sfcop for a period of five years. Mr. 
Fedawa then had left as income the rentals of a lunch 
stand and part of the moneys from the hotel. In 1883 he 
made a will giving all of his property to his wife, of which 
fact she was afterwards informed. In January, 1887, 
Mr. Fedawa went to the Hot Springs, Arkansas. Before 
going he made another will, the one oflFered for probate, 
which bears date December 29, 1886. By this will he 
gave his wife, the proponent, his personal estate, also the 
real estate, during her widowhood, or until his son Jay 
Gould reaches his majority, then the real estate was to be 
divided equally between the four children by his last wife. 
It also gave $25 to each of the contestants, the children 
by his first wife. 

After the jury was selected and sworn, and before the 



430 NEBRASKA REPORTS. [Vol. 30 



Seebrook y. Fedawa. 



introduction of any testimony^ the contestants requested 
that they be allowed to open the case to the jury, and to 
first introduce their testimony, also to open and close the 
argument on the issues joined. The court denied the ap- 
plication and the contestants excepted. 

The proponent called A. F. Parsons and P. C. Harrison, 
the subscribing witnesses^ who testified to the execution of 
the will and the mental capacity of the testator. The 
proponent then rested her case. The contestants thereupon 
asked that she be required to put in all her testimony, as 
to the testamentary capacity of the testator, before the con- 
testants introduce any testimony. The order asked for 
being refused, the contestants took an exception, and then 
put in their testimony, which tended to show the incapacity 
of the testator when the will was executed, and that the 
wife procured its execution by undue influence. After the 
contestants rested, the proponent, over their objection. and 
exception, oflTered general evidence to sustain the will. 
These rulings of the court are assigned for error. 

Whether the order of proof adopted by the trial court 
was the proper one, depends upon the correct answer to the 
question. Was the burden upon the proponent to prove the 
execution of the will and the sanity of the testator? 

Sec. 123 of chapter 23 of the Compiled Statutes of 1889 
provides: "Every person of full age and sound mind, 
being seized in his own right of any lands, or any right 
thereto, or entitled to any interest therein descendable to 
his heirs, may devise and dispose of the same by his last 
will and testament, in writing; and all such estate not dis- 
po-^ed of by will shall descend as the estate of an intestate, 
being chargeable in both cases with the payment of all 
debts." 

It cannot be doubted from the reading of this section 
that to entitle a person to dispose of his property by will, 
it is essential that at the time he should be of sound 
mind. It is urged by the contestants that as the law pre- 



Vol. 30] SEPTEMBEE TERM, 1890. 431 



Beebrock v. Fedawa. 



sumes sanity until the contrary is established, the propo- 
nent was not required to offer any testimony until after 
this presumption was overcome by competent evidence. 
In otlier words, had no testimony been offered by either 
party, the will was entitled to probate. In determining 
this question, it is necessary to consider the provisions of 
the statute governing the probate of wills. 

Section 140 makes it the duty of the county court 
having jurisdiction of the same, to fix a time and place for 
the proving a will and to cause public notice thereof to be 
given. 

Section 141 provides: "If no person shall appear to 
contest the probate of a will at the time appointed for that 
purpose, the court may, in its discretion, grant probate 
thereof on the testimony of one of the subscribing wit- 
nesses only, if such a witness shall testify that such will 
was executed in all the particulars as required in this 
chapter, and that the testator was of a sound mind at the 
time of the execution thereof." 

Section 142 : " If none of the subscribing witnesses shall 
reside in this state at the time appointed for proving the 
will, the court may, in its discretion, admit the testimony 
of other witnesses to prove the sanity of the testator and 
the execution of the will, and, as evidence of the execution 
of the will, may admit proof of the handwriting of the 
testator, and of the subscribing witness." 

Thus it will be seen that, under the provisions of the 
sections above quoted, a will cannot be admitted to p/o- 
bate, even when no contest is entered, until it is established 
by the testimony that at the time of its execution the tes- 
tator was of sound mind. The fact that the will is con- 
tested certainly does not change the burden, and require a 
contestant to first offer testimony as to the insanity of the 
testator. It is the duty of the proponent in the first in- 
stance to offer sufficient testimony of the capacity of the 
testator to make out a prima fcude case. The. contestant 



432 NEBRASKA REPORTS. [Vol. 30 



Seebrock v. Fedawa. 



will then introduce his proof to show the invalidity of the 
will; after which the proponent may introduce further 
testimony to sustain the will, as well as rebutting testi- 
mony. During the entire trial the burden of proof remains 
with the proponent. Unless the sanity of the testator be 
established by a preponderance of the testimony, the will 
cannot be admitted to probate and record. 

The order of proof in this kind of a case is not differ- 
ent from that in an action upon a promissory note, when 
its execution is denied. The plaintiff, when the execution 
of the note is contested, is only required in the first place 
to make a prima facie case, prove the formal execution. 
He is not compelled to produce in the opening all of his 
testimony in support of his case, but after the defendant 
has put in all his evidence tending to show that he did not 
execute the note, the plaintiff may go fully into the ques- 
tion with his evidence, and the defendant may then reply 
by rebutting testimony. The burden, however, is upon the 
plaintiff to establish the making of the note. (Donovan 
V, Fowler y 17 Neb., 247; First Nat? I Bank v, Caraon, avte, 
104.) 

The rule undoubtedly is that, in actions upon contracts, 
the law presumes the sanity of the parties, and no proof of 
sanity is required until evidence of unsoundness of mind has 
been given, and the same rule would obtain in this class of 
cases, were it not for the express provisions of the statute. 
The legislature regarded this legal presumption alone in- 
sufficient to admit a will to probate. Counsel contend that 
the same rule does not obtain on appeal to the district 
court as exists at the hearing in the county court. We do 
not consent to this. The appeal vacates the judgment of 
the county court, the case is tried in the district court de 
novOf and if no proof is offered by the proponent, she must 
fail. Before the close of the trial, the contestants evidently 
became convinced of the unsoundness of their position, for 
they asked the court by their third request, to instruct the 



Vol. 30] SEPTEMBEE TERM, 1890. 433 



Seebrock y. Fedawa. 



jury that the burden of proving tlie sanity of the testator 
was upon the proponent. This instruction was given as 
requested.- 

A similar question arose in the case of Kerr v, Lans- 
ford, 31 W. Va., 679. The court in the opinion says: 
''But inasmuch as in issues deviaavU vd non the burden of 
proving the sanity of the testator is on the proponent of the 
will, and the issue being * whether the paper writing is the 
last will and testament of the testator/ and as the will may 
be assailed on any and all the grounds, which would show 
it invalid, it would not promote justice to apply the rule 
applicable to ordinary law issues. How are the propo- 
nents to know what kind of testimony, and how much, 
the contestants have to prove their general charges of want 
of capacity and undue influence? What particular objec- 
tions and evidence may be oficred to sustain such general 
charges can only be known as the evidence is developed. 
* * * In the trial of an issue devisavit vd non, it is the 
proper course to pursue for the proponents to ofi^er the will 
and the evidence of its due execution, and the competency 
of the testator at the time it was executed, and then, hav- 
ing made e^ prima facie case, to rest; and after the contest- 
ants have offered their evidence against the validity of the 
will, it IS proper to permit the proponents to offer other 
evidence to sustain the will, as well as evidence in rebuttal 
of the evidence of the contestants." 

Wiliiama v. Robinson, 42 Vt., 658, was an appeal from 
the decree of the probate court, admitting to probate an in- 
strument purporting to be the last will and testament of 
one John Robinson, deceased. The contestants claimed 
that the testator was of unsound mind. On the trial in 
the a])pellate court the jury was instructed that the burden 
of proof as to the incompetency of the testator was upon 
the contestant. This instruction was held by the supreme 
court to be erroneous. 

The supreme court of Michigan, in Toff v. Hosmer, 14 
28 



434 NEBRASKA REPORTS. [Vol. 30 



Sjebrock t. Fedawa. 



Mich., 309, Aiken v. Weckerly, 19 Id., 482, and Kempsey 
V. McGinniss, 21 Id., 123, saactioned the rule adopted by 
the trial court in this case. 

The statutes of wills in Massachusetts declare that a 
person must be of sound mind in order to make a valid 
will. In Orowninshieldv, Orovminshieldy 2 Gray, 527, the 
supreme court of that state had under consideration the 
question upon whom was the burden of proof, and in the 
opinion says : " When therefore a will is offered for probate, 
to establish it, to entitle it to such probate, it must be shown 
that the supposed testator had the requisite legal capacities 
to make the will, to-wit, that he was of full age and of 
sound mind, and that in the making of it the requisite for- 
malities have been observed. The heirs at law rest securely 
upon the statutes of descents and distribution, until some 
l^al act has been done by which their rights under the 
statutes have been lost or impaired. Upon whom then is 
the affirmative? The party offering the will for probate 
says in effect: ^This instrument was executed with the 
requisite formalities by one of full age and of sound mind, 
and he must prove it; and this is to be done, not by show- 
ing merely that the instrument was in writing, that it bears 
the signature of the deceased, and that it was attested in 
his presence by three witnesses, but also that it was signed 
by one capable of being a testator, one to whom the law 
had given the power of making disposition of his property 
by will.' '' 

Beazley v. Demon, 40 Tex., 416, was a contested will 
case. The trial court charge the jury that "every man is 
presumed by law to possess a sound mind until the con- 
trary be shown by evidence.^' This instruction was held 
erroneous. Mr. Justice McAdoo, in delivering the opinion 
of the court, observes : " In matters of probate, under our 
law, no such presumption is indulged. On the contrary, in 
order to establish any will it must affirmatively appear that 
the deceased was of sound mind when he signed the will. 



ToL. 30] SEPTEMBER TERM, 1890. 435 



Seebrock y. Fedawa. 



This affirmative testimony would be necessary if there were 
no contest, and the law does not justify the imposition of 
a new rule when by a contest the soundness of the testator's 
mind is in issue/' 

In Potts et al. v. House, 6 Ga., 324, the court says : "The 
real question to be decided in both courts in this case was, 
whether there was a valid will. The executor and those 
who claim under it, hold the affirmative. They must not 
only prove, therefore, that the instrument purporting to 
be a testamentary paper was formally executed, but, also 
that the testator was of sound and disposing mind and 
memory. The necessity for this proof imposes the bur- 
den on the propounder to begin and close; and when the 
<ase is carried up to the superior court by appeal it is to 
he proceeded with in the same manner as though it had 
been brought there directly without having been before 
any inferior tribunal. The executor and those who claim 
under the will, are as much bound to establish it in the 
superior court, after the appeal, as they were before the 
appeal in the court of ordinary. In both they take the 
affirmative.'' 

That the burden is upon the proponent of a will to 
prove the sanity of a testator is fully sustained by the fol- 
lowing authorities : Knox^s Appeal, 26 Conn., 20 ; Ger- 
risk V. Nason, 23 Me., 438 ; Robinson v. Adams, 62 Id., 
369; Evans v, Aymolcl et al., 62 Ga., 163; Delafield v. 
Parish, 25 N. Y., 9 ; Perkins v. Perkins, 39 N. H., 163; 
Syme v, Broughton, 85 N. Car., 367 ; Renn v. Samos, 33 
Tex., 760; Williams, Executor, v. Robinson, 42 Vt, 658; 
Runyan v. Price, 15 0. St., 6. 

We concede that the numerous authorities cited in the brief 
of the plaintiffs in error, hold that the burden is upon the 
contestant to establish the insanity of the testator. An 
examination, however, of the cases disclose that many of 
them are from states having no statutory provisions like 
ours, while others were actions brought to set aside a will 



436 NEBRASKA REPORTS. [Vol. 30 



Seebrock ▼. Fedawa. 



after it had been admitted to probate. They are, therefore, 
not applicable to the case we are considering. 

It is insisted by the plaintiffs in error, that, as the peti- 
tion fails to allege the competency of the testator at 
the time the will was executed, the proponent was not 
called upon in the first instance to offer proof that the de- 
ceased was of sound mind. It was not necessary that the 
petition should allege specifically that the testator possessed 
the testamentary capacity to make a will. That is covered 
by the allegation in the petition " that said instrument is the 
last will and testament of said John A. Fedawa, deceased, 
and that the same was duly executed,*' etc. Unless Fedawa 
was of sound mind, the instrument was not his will. 
{Hathaway* s Appeal^ 46 Mich., 327.) 

Again, the record discloses that there are three minor 
heirs of the deceased who appear by guardian ad litem. 
They did not, nor could they, waive proof of the execution 
of the will and the sanity of the testator. This is an ad- 
ditional reason why the proponent was required in this 
case to make the statutory proof. 

Having reached the conclusion that the affirmative was 
upon the proponent to prove the sanity of the testator, 
then it follows that she was entitled to open and close the 
argument to the jury. (Code, sec. 1010a ; Vifquain v. Finch, 
15 Neb., 507; Osborne v. Kline, 18 Id., 351; Brookg v. 
IhUcher, 22 Id., 655; Olds Wagon Co, v. Benedict, 26 
Id., 375 ; Mizer p. Brisioly ante, 138.) 

The giving of the proponent's 14th request is assigned 
for error. By it the jury were told " that the fact that the 
testator, Fedawa, devised property which he did not own 
should not prevail as positive evidence showing incompe- 
tency." It was admitted upon the trial that Fedawa never 
owned lot 4, described in the will, but did own lot 3 in the 
same block which was not included in the will. The criti- 
cism offered upon the instruction consists in the using of the 
word positive. That the will describes lot 4 which tiie tee- 



Vol. 30] SEPTEMBER TERM, 1890. 437 



Seebrook y. Fedawa. 



tator did not own, and omitted lot 3 which he did owni 
was not a very strong circumstance, if any, supporting 
the theory of the incompetency of testator. Mistakes in 
drawing contracts and papers are of frequent occurrence 
among the shrewdest of business men. The fact that the 
will contained a misdescription of the lot is certainly not 
conclusive evidence x>f the insanity of the testator. By in- 
struction No. 11^, given at the request of the contestants, 
the jury were informed that they could take into consid- 
eration the fact that the testator did not own lot 4 men- 
tioned in the will, in determining his capacity to make a 
valid will. Taking the two instructions together we do 
not see how the jury could have been misled by the use of 
the word " positive," in the instruction complained of. 

No other particular instruction is objected to. Some 
criticisms are made upon the charge as a whole. It is 
claimed by the contestants that none of the instructions 
stated what would constitute undue influence. A very 
good definition of the term is to be found in paragraph 6 
of the instructions, given by the trial court on its own mo- 
tion. It states that '' undue influence is that which com- 
pels or induces the testator to do that which is against his 
will, from fear, the desire of peaoe, or some feeling which 
he is unable to control. The influence which will vitiate 
a yfiU on the ground of undue influence, must amount to 
such a degree of restraint and coercion as to destroy the 
testator's free agency." This was in substance repeated in 
the fifth, ninth, tenth, and twelfth requests of tlie propo- 
nent. Besides, the contestants' ninth request specifically 
mentioned some of the acts relied uyKyn in this case to show 
undue influence, and it informed the jury that if such acts 
were established by the testimony tlie will should be re- 
jected. The jury were fully informed what would and 
what would not constitute undue influence. It runs 
through the instructions that, if the proposed will did not 
represent the free and voluntary wishes of the testator, but 



438 NEBRASKA REPORTS. [Vol. 3a 



Sccbrock v. Fedawa. 



those of some other person, it was inoperative and void. 
To vitiate a will on the ground of undue influence, it must 
appear that such influence forced the testator to make a 
different disposition of his property from what he intended, 
and that such influence was exercised for that purpose. 
{Latham et oZ. v, Schaal, 25 Neb., 535 ; Bradford v. Vinton,. 
26 N. W. Rep., 401 ; Jackman's Will, 26 Wis., 104; M(m^ 
roe V. Barclay, 17 O. St., 302; Oar diner v. Gardiner, 34 
N. Y., 155; Pieree v. Pierce, 38 Mich., 412.) The in- 
structions fully and fairly submitted to the jury the ques- 
tion of undue influence, and the contestants have no just 
cause of complaint in that respect. 

In some of the instructions it was stated, in substance, 
that influence acquired over the testator by kindness and 
wifely attention, will not vitiate the will. It is insisted 
that there is no evidence in the record on which to base 
such an instruction. True, there is a great mass of testi- 
mony conducing to show that at times the domestic rela- 
tions of Fedawa and his wife were not of the most pleas- 
ant character; that they sometimes quarreled, and that the 
police had to be called to quell the disturbance. It also 
appears that these difiiculties generally occurred when 
Fedawa was under the influence of liquor. When sober, the 
family relations were peaceable and pleasant, and the pro- 
ponent treated him with kindness and affection. That {he 
testator and his wife had a strong attachment for each other, 
clearly appears from the letters in the record written by 
him to her from the Hot Springs, shortly after the making 
of the will. They are full of expressions of love and 
affection for the proponent and her children. There was 
ample testimony before the jury making the instructions 
criticised, pertinent and proper. 

We are asked to reverse the case because the same propo- 
sition of law was more than once stated in the court'* 
charge to the jury. While the instructions contain some 
repetitions, it does not appear that the purpose was to mys- 



Vol. 30] SEPTEMBER TERM, 1890. 439 



Seebrock v. Fedawa. 



tify and confuse the jury, or that the jury could have been 
misled by reason thereof. 

The contestants claim that the district court erred in 
refusing to give to the jury their twelfth and thirteenth 
requests, which are as follows : 

"12. The jury are iustructed that undue influence is a 
variable term. What would be undue influence, where 
the testator's mind was impaired, might not be undue in- 
fluence if the testator possessed the full vigor of mind and 
body. It depends upon the power of the testator to re- 
sist. To be undue it requires greater or less influence in 
each particular case, according to the condition of the tes- 
tator, or his power to resist. In case the testator's mind is 
seriously impaired from any cause, slight influence, if sin- 
ister or selfish, would be undue. If the provisions of the 
will are found to be unnatural or unusual, this should be 
taken into consideration in determining whether or not it 
is the product of undue influence, and if the party or par- 
ties, in whose interest the alleged undue influence was 
exerted, are found to be liberally provided for, to the exclu- 
sion of others who were the natural objects of the testator's 
bounty, this would be one indication of the presence of 
undue influence, and jf followed up by evidence tending 
to show that advantage was taken or improper influence 
brought to bear upon the testator at and prior to the time 
of making the alleged will, this would justify you in find- 
ing that it was not his will. 

"13. A proposed will which is partial and unjust in its 
provisions and devoid of natural duty and affection towards 
natural objects of the testator's bounty is by the law re- 
garded with jealousy and suspicion, even though the testa- 
tor may possess suflBcient capacity to make a valid will, if 
left to himself." 

The substance of the first part of the twelfth request 
was incor|)orated in the seventh instruction given on the 
court's own motion, which directed the jury, in determin- 



410 NEBRASKA REPORTS. [Vol.30 



Seebrook y. Fedawa. 



ing whether or not the will was obtained by undue means, 
to consider all the testimony bearing upon the mental and 
physical condition of Fedawa when he executed the instru- 
ment, and all the circumstances surrounding him at that 
time. The last part of the twelfth, as well as the thirteiendi 
requests were fully covered by the contestants' eighth in- 
struction. It stated that the second wife and her children 
having been provided for in the will, and the children of 
the former wife being n^lected, was strong evidenoe of 
undue influence. W'e do not desire to be understood as 
indorsing the proposition^ that where a testator has liberally 
provided for some of his children by his will, to the exclu- 
sion of others, it is an indication that the will was the result 
of undue influence. A testator has a perfect l^al right 
to dispose of his property as he sees fit. It is for him 
alone to determine who shall be the recipient of his bounty. 
As the twelfth and thirteenth requests were no more favor- 
able to the contestants than the instructions given, it is 
unnecessary to determine whether the fact that the contest- 
ants were practically disinherited, and the proponent and 
her children get the bulk of the property, is any evidence 
that the testator was unduly influenced. 

It is insisted that the court erred in sustaining the propo- 
nent's objections to the hypothetical questions propounded 
to Dr. Lane, calling for his opinion as to the mental capac- 
ity of Fedawa on the facts assumed by the interrogatories. 
When the objections were sustained, the contestants should 
have stated to the trial court what facts the witness, if 
permitted, would testify to, and preserved the same in the 
record. Not having done so, we are unable to determine 
whether any error was made in not permitting the witness 
to answer the interrogatories propounded. 

It is finally insisted that the verdict is not sustained by 
the evidence. The testimony in the record before us, 
bearing upon the incapacity of the testator and the charge 
of undue influence, is very voluminous, consisting of sev- 



Vol. 30] SEPTEMBER TERM, 1890. 441 



Seebrook y. Fedawa. 



eral hundred type-written pages. To give a synopsis of 
the entire testimony, or to discuss it in detail, would greatly 
extend this opinion beyond its now unreasonable length. 
It must suffice to briefly refer to some of the material 
parts of the testimony as indicative of the nature of the 
testimony that was before the jury. 

The will bears date December 29, 1886. Prior to that 
time Fedawa drank to excess, and when intoxicated was 
incapable of transacting his ordinary business. It is 
claimed by the contestants that the will was executed on 
the day it bears date, which is denied by the proponent. 
Considerable testimony was introduced by the contestants 
tending to show that on the 29th day of December, 1886, 
Fedawa was arrested for an alleged assault, and was taken 
before the police judge at 2 o'clock P. M. that day ; that 
being too drunk to be tried, he was committed to jail until 
the following day, and that at no time on that day, nor 
for some time prior thereto, was he capable of transacting 
business, on account of his drunken condition. It is pretty 
clear that if the will was executed on the day that it bears 
date, it is invalid. The proof offered by the proponent, 
tends to establish that the will was executed after Deoem 
ber 29 ; that when Fedawa signed the will he was sober 
though weak and nervous, had perfect possession of his 
mental faculties, and understood the nature of the business 
he was transacting. 

A. F. Parsons, one of the subscribing witnesses, testi- 
fied that he was present when the instrument was signed ; 
that Fedawa was very nervous, his hands trembled while 
signing his name ; that he conversed as a person of sound 
mind and understanding, as intelligently as any one; that 
his mind was perfectly clear; that he was not intoxicated, 
and understood what he was doing. The witness further 
states that Fedawa was brought before him as police judge 
on December 30, and pleiid guilty to an assault, and that 
the will was signed two or three days afterwards. 



442 NEBRASKA REPORTS. [Vol. 30 



Seebrock v. Fedawa. 



The testimony of F. C. Harrison, the other subscribing 
witness, fully corroborates the testimony of the witness 
Parsons. There appears in the bill of exceptions, the tes- 
timony of Mrs. Fedawa and numerous other witnesses, sus- 
taining the capacity of the testator to make a valid will. 
The testimony fully justifies the conclusion that the will 
was executed after the day it bears date, and afl:er Fedawa 
was discharged from jail. There was likewise before the 
jury testimony given by credible disinterested witnesses, 
sufficient to authorize the jury in finding that when the 
will was executed the testator was sober, comprehended 
what he was doing, and was capable of making a valid 
will. 

The only remaining question is. Did the proponent in- 
duce her husband by undue influence to dispose of his 
property contrary to his wishes and desires? It devolved 
upon the contestants to establish, by a preponderance of the 
evidence, their charge of undue influence. (Baldwin et al. 
V. Parker et aL, 99 Mass., 79 ; Hardy v. ileiTiU, 56 N. H., 
227; Tyler v. Gardinei^, 35 N. Y., 559; Mcifechm v. 
McMechen, 17 W. Va., 683.) 

It appears from the testimony that sliortly prior to the 
execution of the will, Fedawa expressed a desire to go to 
the Hot Springs for treatment, he being at. that time al- 
most a physical wreck. He did not Imve the money to 
pay the expenses of the trip, his creditors were pressing 
him, his property was incumbered, and most of his income 
had been assigned to his wife. She had then nearly 
$3,000 in the bank. After the will was executed, the 
proponent furnished Fedawa $550 with which to pay the 
expenses of the trip, and to lift some claims against him 
that were being pressed for payment. There is considera- 
ble testimony tending to show that she refused to funiish 
the money unless he willed his property to her and her 
children, and that the disposition made of the property by 
this will was contrary to the previously expressed wishes 



Vol. 30] SEPTEMBER TERM, 1890. 443 



Seebrock v. Fedawa. 



of the testator. Numerous witnesses were called by the 
proponent, who testified that they had frequently heard 
the testator say that his wife had helped earn the property; 
that he wanted it to go to the proponent and her children, 
and that he would not give the contestants any part of his 
estate. It is undisputed that Fedawa in 1882 or 1883 
made a will by which he gave all his property to the pro- 
ponent. This will was left with C. C. Burr for safe keep- 
ing. At that time it is certain that Fedawa was of sound 
mind, and it was not the result of any improper influence. 
A year or two after its execution, Mr. Burr informed the 
proponent that her husband had willed lier all of his prop- 
erty. The proponent denies under oath that she asked 
him to make the will, or that she refused to let him have 
the money if he did not give her and the children his prop- 
erty. While her testimony is contradicted by some of the 
contestants' witnesses, she is corroborated by many circum- 
stances disclosed by the testimony. 

Prior to the making of the instrument offered for pro- 
bate, the first will had not been revoked or destroyed. It 
was far more favorable to the projwnent than the last one. 
It is not likely that she coerced Fedawa to make one less 
favorable to her. Again, if the last will did not truly ex- 
press his wishes, why did he not make another? He 
lived several months after it was executed, and had ample 
opportunity to revoke or change it. lie could have done 
so while at the Hot Springs, away from the influence of his 
wife. Not having revoked it, is a strong circumstance in 
favor of the validity of the will. The testimony is very 
conflicting. The testimony offered by the proponent was 
sufficient to warrant the jury in finding that the testator 
was of sound and disposing mind when he made the will, 
and that the making of it was not brought about by any 
undue influence. There was sufficient testimony offered 
by the contestants, if believed, to have sustained a verdict 
in their favor, had one been returned. The jury having 



1 



444 NEBRASKA REPORTS. [Vol, 30 



South Omaha Natl. Bank v. Chase. 



given credit to the testimony of the proponent and her 
witnesses^ and the judge who presided at the trial having 
indorsed the finding of the jury, by refusing to set the ver- 
dict aside, we are not justified under the evidence in dis- 
turbing it. The judgment is 

Affirmed. 



The other judges concur. 



South Omaha National Bank, appellee, v. J. 0. 
Chase et al., appellants. 

[Filed September 24, 1890.] 

1. Supreme Court: Objections Not Raised Below. The ob- 

jection that the plaintiff, which sought to establish a lien upon 
certain personal property in the hands of D. as the property of 
C, a judgment debtor of the plaintiff, was, as to the property, 
only a general creditor of C, it not having attached the same, 
the qaestion not having been raised in the trial coart; hdd, that 
it wonld not be heard when raised for the first time, in this court 
on appeal. 

2. Chattel Mortgages: Fraud. In view of the finding and 

judgment of the trial court, the evidence of the defendant D. 
held to be insufficient to remove the presumption of fraud cast 
upon the chattel mortgage executed by C. to D., by the provis- 
ions of section 11 of chapter 32, Com p. .Stats. 

3. Construction : The Stipulatiok between the parties, set out 

at length in the opinion, held to recognize the right of D. to bid 
off any property at the sale the same as any bidder, and that it 
was the money represented by such bid, and not the property 
sold, that he was required to hold upon the same terms that the 
proceeds of the sale were to be held by the bank. 

4. The decree modified accordingly. 

Appeal from the district court for Fillmore county. 
Heard below before Morris, J. 



Vol. 30] SEPTEMBER TERM, 1890. 445 



South Omaha Naa Bank y. Chase. 



MauU & Sloan, and Harwood, Ames & Kelly, for ap- 
pellants, cited: TooUe v, Dunn, 6 Neb., 93; Parmer v. 
Keith, 16 Id., 91 ; Hinders Leasees v. Longworth, 11 Wheat. 
[U. S.], 213*; /Sott t;. Gregg, 23 Neb., 231 ; Stoddard v. 
MoLane, 56 Mich., 11; Newman v. Willetts, 52 111., 98; 
MoKibben v. Barton, 1 Mich., 213 ; Jones v. Green, 1 Wall. 
[U. S.], 331 ; Weil v. Lankins, 3 Neb., 385; McElwain v. 
waits, 9 Wend. [N. Y.], 549; Chicago Dock Co, v. i/b- 
Kenzie,4d 111., 289; Eiseleyv.Malchow,9 Neb., 174; Rich- 
ards V. Cunningham, 10 Id., 417; CahiU v. Bigelow, 18 
Pick. [Mass.], 369; HaU v. iSouU, 11 Mich., 494; Bohan- 
nonv.Pace, 6 Dana [Ky.], 194; Garrett v. Garrett, 27 Ala., 
687 ; Huffman v. Acldey, 34 Mo., 277 ; Houser v, Lamont, 
55 Pa. St., 311; Beat v. Brovm, 13 Allen [Mass.], 114; 
Standley v. Miles, 36 Miss., 434; Harden v. Babcock,2 
Met [Mass.], 99; Emason v. Slater, 22 How. [U. S.], 28; 
Clapper v. Poland, 12 Neb., 69 ; Nelson v. Boynton, 3 Met. 
[Mass.], 896; Fitzgerald v. Morrissey, 14 Neb., 199 ; Mills 
V. Brown, 11 la., 814; Mallory v. GUlett, 21 N. Y., 412. 

Charles Offutt, contra, cited : Dovonie v. Ladd, 22 Neb., 
534; Maxwell, PI. & Prac. [4th Ed.], 607; Lounsbury v. 
Catron, 8 Neb., 477; Bumham v. Doolittle, 14 Id., 217; 
Carty v, Fenstemaker, 14 O. St., 461 ; Brashear v. West, 
7 Pet. [U. S.], 608; Drake, Attachment [4th Ed.], 453; 
Burlingame v. Bell, 16 Mass., 318 ; Swett v. Brown, 5 Pick. 
[Mass.], 178; 2 Wade, Attachments, 331, 333; Smith v. 
Sands, 17 Neb., 498 ; 2 Pomeroy, Eq. Juris., 745, 785; 
Wharton, Ev. [3d Ed.], 1014; Qopper v. Poland, 12 Neb., 
70 ; Nelson v. Boynton, 3 Met. [Mass.], 396 ; Fish v. 
Hutchinson, 2 Wils. [Eng.], 94 ; Jackson v. Rayner, 12 
Johns. [N. Y.], 291; Robison v. Uhl, 6 Neb., 328; Uhl 
V. Robison, 8 Id., 272; Eiseley v. Malchow, 9 Id., 180; 
Hoyd V, Strobridge^ 10 Chicago L^. News, 1; Ely v. 
Chmsby, 12 Barb. [N.Y.], 571 ; Davis v. Caverly, 1 20 Mass., 
415; Mallory v. GiUett, 21 N. Y., 412; Farley v. Cleve- 



1 



446 NEBRASKA REPORTS. [Vol. .30 



South Omaha NatL Bank v. Chase. 



land, 4 Cow. [N. Y.], 432; With v. Brown, 118 Mass., 
138; Case v. Cdizeyts Bank, 2 Woods [U. S.], 23; Gatdi 
V. Fiteh, 34 Fe<l. Rep. [U. S.], 666-70; Irons v. Nai'l 
Bank, t) Bissell [U. S.], 301 ; U. S. v. Knox, 102 U.S. S. 
C. Rep., 422 ; Ball, NatM Bks., 231 ; Kennedy v. Gibson, 
8 Wall. [U. S.], 606; Hooker v, HanimiU, 7 Neb., 235; 
Wait, Fraud. Con., 223; Seymour v, Wilson, 19 N. Y., 418; 
Oira^ V. Moore, 23 O.^ St., 479 ; Starr v. Starr, 1 O., 321 ; 
Blimp, Fraud. Con., 76-100; Gregory v. Whedon, 8 Neb., 
377. 

Cobb, Ch. J. 

1. The South Omaha National Bank was a creditor of 
Julius O. Chase and J. W. Walters, and obtained a judg- 
ment against them, in the district court of Douglas county, 
for the sum of $2,967.48, with costs. On the 3<1 day of 
November, 1888, an execution was issuwi upon said judg- 
ment to the srheriif of said county, which was on the 26th 
day of said month returned by said sheriff wholly unsatis- 
fied, for the want of property whereon to levy the same. 

2. On the 6th day of November, 1888, a transcript of 
said judgment was filed in the office of the clerk of tbe 
district court within and for the county of Fillmore, and 
docketed and indexed, that being the county in which the 
said Cliase and Walters resided and still have their resi- 
dences. On the last named date an execution was issued 
thereon to the sheriff of said county of Fillmore, and the 
same was by said sheriff afterwards, and before the return 
day thereof, by the said sheriff returued "No property 
found;" no part of said judgment having been paid, except 
the sum of $186.90, as of November J, 1888, and the 
further sum of $300.16 as of January, 1889, and the costs 
and increased costs on said judgment have amounted to 
$76, and the remainder of said judgment remained wholly 
due and unpaid. 



Vol. ;30] SEPTEMBER TERM, 1890. 447 



South Omaha Natl. Bank v. Chase. 



3. On the 2l8t day of March, 1889, the plaintiff caused 
another alias execution to issue on said judgment, directed 
to the sheriff of Fillmore county, and the same was by 
said sheriff, before the return day thereof, returned " No 
property found/' 

4. On the 16th day of March, 1889, the plaintiff caused 
a precept to be issued by the clerk of the district court of 
Fillmore county, under the seal thereof, directed to the 
sheriff of said county, commanding him to notify William 
H. Cooksey, Julius O. Chase, William S. Hogaboom, 
Hattie E. Chase, O. M. Druse, and J. W. Walters, defend- 
ants, that they have been sued by the South Omaha National 
Bank, plaintiff, in the district court of the fifth judicial 
district in and for said county of Fillmore, and that unless 
they answer on or before the 1 6th day of April, 1889, the . 
petition of said South Omaha National Bank, filed against 
them in the clerk^s office of said court, such petition will 
be taken as true and judgment rendered accordingly. Said 
sheriff was ordered to make due return of said summons 
on or before the 26th day of March, 1>89. Said precept 
was indorsed as follows: "The relief sought is equitable, 
and on attachment by garnishment after judgment, and 
return of no property on execution, in the event of failure 
to answer, the plaintiff will take judgment for $2,967.48, 
with 10 per cent interest from Septeml)er 17, 1888, until 
paid, credited by $186.90 paid November 2, 1888, and 
$300.16 paid January 12, 1889, and, in addition, for 
$63.73, increased cost and the costs of this action,^' and was 
returned by the said sheriff personally served on the said 
William S. Hogaboom, Harriet E. Chase, O. M. Druse, 
J. W. Walters, William H. Cooksey, and the said Julius 
O. Chase, by leaving a certified copy at his usual place of 
residence. And on the 26th day of March, 1889, the said 
bank also caused another precept to be issued by the clerk 
of said court, and under the seal thereof, directed to the 
sheriff of said county, in and by which said sheriff was 



448 NEBRASKA REPORTS. [Vol. 30 



South Omaha Natl. Bank v. Chase. 



commanded to notify O. M. Druse, Harriet E. Chase, and 
William S. Hogaboom to appear in the district court of 
Fillmore county on the 28th day of May, 1889, to answer 
under oath questions touching the goods and chattels, rights 
and credits of Julius O. Chase in their possession or under 
their control, which precept was indorsed the same as the 
one hereinbefore set out, and was returned by the sheriff of 
said county as personally served by copy on each of O. M, 
Druse, William S. Hogaboom, and Harriet E. Chase, and 
also that he served upon each of said persons a written 
notice to appear on the 28th day of May, 1889, and answer 
as in said precept required. 

On the 28th day of May, 1889, the said plaintift filed 
its amended petition in the said district court of Fillmore 
• county, in and by which it set out and stated the several 
facts and matters and things which are stated in the three 
first paragraphs of this opinion, and in addition thereto the 
following, in substance : That the defendants Julius O. Chase 
and J. W. Walters, and each of them, are wholly insolv- 
ent and have no property whatever liable to execution to 
satisfy the same; but, as plaintiff believes, they have mon- 
eys, rights, credits, and equitable interests in property, 
both real and personal, and which they, and each of them, 
unjustly refuse to apply in satisfaction of plaintiff's judg- 
ment. 

That on the 11th day of September, 1888, the defend- 
ant Julius O. Chase made a certain chattel mortgage of 
that date, which, on the 12th day of the same month, was 
filed in the office of the clerk of Fillmore county, in and 
by which he undertook to mortgage to his co-defendant, 
O. M. Druse, in order to secure an alleged indebtedness of 
$3,600, payable on September 11, 1889, the following de- 
scribed personal property, to-wit: Sixty-five thoroughbred 
Hereford cows, bulls, and calves; twenty colts; one-half 
interest in one Cleveland bay stallion. Coachman 2d; one 
black stallion named Bertie McGr^or; one sorrel gelding, 
Charlie. 



Vol. 30] SEPTEMBER TERM, 1890. 449 



Soaih Omaha Natl. Bank y. Chase. 



That on the 6th day of December, 1888, the defendant 
Julius O. Chase made a certain chattel mortgage of that 
date, which was, on the 7th day of the same month, filed 
in the county clerk's office of said county, in and by which 
he undertook to mortgage to his co-defendant O. M. 
Druse, aforesaid, in order to secure an allied indebtedness 
of $1,500, payable December 6, 1889, the following de- 
scribed property, to- wit: One black stallion named "Ber- 
tie McGregor;" one sorrel trotting horse named "Charlie;'' 
one light bay mare; one black mare; twenty sucking colts; 
one-half interest in one Cleveland bay stallion, "Coachman 
2d;'' one Hereford bull, "Grove 4th A. 13733; sixteen 
head of Hereford calves; one top buggy; seven sets har- 
ness; one economizer, ten-horse power engine and boiler. 

That the two above described mortgages, and each of 
them, wjere made without valuable consideration, and the 
defendant Julius O. Chase was not then indebted to the 
defendant Druse in the sum of $3,600 and $1,500, or any 
part of either of said sums; that said mortgages, and each 
of them, were made with the fraudulent intent to cheat, 
hinder, and delay the creditors of the said Julius O. Chase, 
and especially the plaintiff, and were absolutely null and 
void, and the defendant O. M. Druse did not, on the execu- 
tion of said mortgage or any time thereafler, take possession 
of said mortgaged property, or any part thereof, until a few 
days next before the date of the presentation of said peti- 
tion, when the said Druse fraudulently and unlawfully 
took forcible possession of said property. 

(Several paragraphs in said amended petition are devoted 
to all^ations involving charges against one Edmund Mo- 
Intire, in connection with said Druse, but, as these allega- 
tions and claims and charges against the said Mclntire 
were withdrawn and dismissed upon the trial, said para- 
graphs are omitted here.) 

That said O. M. Druse has the property as above de- 
scribed in his possession, and claims the same as his own, 
29 



1 



450 NEBRASKA REPORTS. [Vol. 30 



South OmahH Natl. Bank ▼. Chase. 



and refuses to permit the plaintiff to subject any part 
thereof to the satisfaction of its said judgment; that the 
same in fact and in equity belongs to the defendant Julius 
O. Chase, but cannot be sold under execution^ because no 
one will bid for or buy the same, on account of the claim 
and possession of the defendant O. M. Druse thereof; 
that the plaintiff has good reason to and does believe that 
the said defendants, and each of them have property and 
are indebted to the judgment debtors, Julius O. Chase 
and J. W. Walters, in addition to the property in said 
petition before described, but that plaintiff is unable to 
give a more accurate description thereof; with prayer ths\i 
the defendants O. M. Druse, Julius O. Chase, and J. W. 
Walters, and each of them, be required to answer, and dis- 
close upon their several corporal oaths, what money, prop- 
erty, rights, credits, chattels, or other equitable interests, 
they, or either of them, have in their possession or under 
their control, belonging to the defendants Julius O. Chase 
and J. W. Walters, or either of them, or in which they, or 
either of them, have any right, title, or interest, legal or 
equitable, and that the same may by proper orders be sub- 
jected to the payment and satisfaction of the plaintiff's 
judgment aforesaid ; that the said mortgages to the de- 
fendant, Druse, described in said petition, one dated Sep- 
tember 11, 1888, and the other dated December 6, 1888, 
may be, each of them, held fraudulent, null, and void, and 
be canceled, set aside, and held for naught, and the prop- 
erty described and included in said mortgages as therein be- 
fore named might be, each and every part thereof, adjudjjed 
the property of the defendant, Julius O. Chase, and liable 
for the satisfaction of the plaintiff's said judgment ; that 
the defendants, and each of them, might be charged with 
whatever property, or legal or equitable interests in prop- 
erty, which they may have in their possession or under 
their control, in which the defendants, Julius O. Chase and 
J. W. Walters, or either of them, have any interest or 
claim, and for costs. 



Vol. 30] SEPTEMBER TERM, 1890. 461 



South Omaha Natl. Bank y. Chase. 



This petition was sworn to in positive form, by Cbas. 
Offiitt, as attorney for the plaintiff. 

The defendant O. M. Druse made and filed his sepa- 
rate answer to said petition, in which he denied all of the 
allegations therein contained, except as to the corporate 
character of the plaintiff, and such allegations thereof as 
might be in his said answer thereafter admitted to be true. 
He alleged that the said Julius O. Chase was justly in- 
debted to him in the sum of $3,500, and to secure said in- 
debtedness, executed the mortgages mentioned in para- 
graphs four and five of the plaintiff's petition; that said 
mortgages were given in good faith and to secure a bona 
fide indebtedness; and that both of said moitgages were, 
immediately upon the execution thereof, filed in the office 
of the county clerk of Fillmore county; that there was 
then due the said defendant, from the said Julius O. Chase, 
on said indebtedness, the sum of $3,000; with prayer for 
judgment and costs. 

The plaintiff replied to the answer of the defendant O. 
M. Druse, in which it denied that the defendant Julius O. 
Cliase was justly or in anywise indebted to the defendant 
O. M. Druse in the sum of $3,500, or any other sum. It 
denied that, to secure said indebtedness, or any otiier in- 
debtedness of the said Chase to the said Druse, the mort- 
gages, or either of them, described in paragraphs four and 
five of the petition, were executed. It denied that said 
mortgages, or either of them, were given in good faith, or 
that they, or either of them, were given to secure. 6ona^c?e 
existing indebtedness, and denied the answer generally. 

On the 3d day of June, 1889, the plaintiff filed a sup- 
plemental petition, in which it alleged that after filing the 
original petition, to-wit, on the 16th day of March, 1889, 
the defendant O. M. Druse was about to sell a large por- 
tion of the chattels described in the original petition in 
foreclosure of said mortgages, dated September 11 and De- 
cember 6, 1888, made by the defendant Julius O. Chase 



1 



452 NEBRASKA REPORTS. [Vol. 30 



South Omaha Natl. Bank ▼. Chase. 



to the defendant O. M. Druse, and had advertised the said 
property as provided by law, and the sheriff of Fillmore 
county, pending said chattel mortgage sale, had levied upon 
certain of said property, in satisfaction of state and county 
taxes; tliat then and there the plaintiff, being present by 
its attorney, made protest and objection to the said sale, or 
any part thereof taking place, whereupon the defendant O. 
M. Druse executed and deliverod to the plaintiff a writ- 
ing in words and figures as follows: ''It is agreed that 
the property advertised for sale this day under chattel 
mortgage shall be sold as advertised by O. M. Druse and 
an account of each sale accurately kept, and that the pro- 
ceeds, noteS) and cash shall be deposited in the Capital 
National Bank at Lincoln, to remain there until the rights 
of the Omaha National Bank and O. M. Druse to each 
and every part thereof are finally determined and settled 
in suits in the Fillmore district court, which the undersigned 
agree to try at the coming May term of court. Said bank 
is not to pay out or dispose of any portion oi said money 
or notes without the consent of all the undersigned. Out 
of the proceeds the actual expenses of this sale shall be at 
once paid by O. M. Druse before deposit. M either party 
concedes or waives any right by this agreement. Any 
property bid off by O. M. Druse shall be held by him iij 
the same terms with the notes and cash aforesaid in bank." 
Signed by the South Omaha National Bank, by its attor- 
ney, and by O. M, Druse, and dated March 16, 1889. 
That thereupon the said defendant preceded with the said 
sale, and the following of said property was sold for the 
prices hereinafter named: (Here follows an itemized list of 
live stock and other chattels, together with the price at 
which each article was sold, followed by the allegation that 
shortly thereafter, to-wit, on the 26th day of April, 1889, 
the defendant O. M. Druse rendered to the plaintiff the 
following itemized statement of expenses incident to said 
sale, to-wit, tax, $151.39; constable's fee and expenses. 



Vol. 30] SEPTEMBER TERM, 1890. 453 



South Omaha Natl. Bank v. Chan. 



(24.80; printing, $15; metx {sicjj (10; Druse for feed, 
$16 ; men for driving cattle in, $4. 

That the defendant O. M. Druse received into his 
possession all the money aforesaid, amounting to the total 
sum of (130.75; that the said Druse received into his 
possession the joint note of the aforesaid * * * and 
♦ * * for (385; that the said Druse also bid off and 
took into his possession, of the aforesaid property, the fol- 
lowing, that is to say: One bay mare; one horse, Charlie; 
one horse called Bertie McGregor ; twelve colts, and four 
Hereford bulls, all of which he received, together with said 
cash and note, by virtue of the agreement thereinbefore set 
out (see copy) ; that since receiving the aforesaid property, 
the defendant Druse has retained the possession of all the 
said cash and the said note, except so much thereof as was 
used in paying the expenses and taxes aforesaid, and the 
defendant Druse, since said time, has sold and disposed of 
certain of the personal property so bid off by him, that is 
to say, the horse Bertie McGregor, for the sum of (600; 
whether any more, plaintiff is unable to state; that the 
defendant Druse acquired the possession of said property 
under and by virtue of the said written agreement, dated 
March 16, and that the same was included within the 
chattel mortgage made by defendant Cliase to defendant 
Druse, as stated in the petition ; that said mortgages, and 
each of them, were without any consideration made by the 
defendant Chase when he was insolvent, and when Druse 
knew him to be insolvent, and made by Chase with the 
intent to cheat, hinder, and defraud his creditors, and in 
fraud of their rights, and especially were they made to 
cheat and defraud the plaintiff, and which was well known 
to defendant Druse; with prayer for the relief prayed in 
the original petition, and that the defendant Druse may be 
compelled to account for all property bid in by him at the 
chattel mortgage sale, as stated, and to turn over to the 
plaintiff the amount of the consideration received by him 



454 NEBRASKA REPORTS. [Vol. 30 



South Oaiaha Natl Bank v. Cha&e. 



for any of said property which he may have sold since 
the 16th of March, 1889 ; that Druse in like manner may 
be charged with the amount of cash and notes received 
by him, as the proceeds of the chattel mortgage salo, and 
that an account may be taken between the plaintiff and 
the defendant Druse, under the agreement of March 16, 
1889, as entered into, and for general relief. 

The defendant Druse, in answer to the supplemental 
petition, admitted the first, second, and fourth paragraphs 
thereof, and in answer to the fifth paragraph stated that 
he sold the horse Bertie McGregor for $600, on time, and 
took a note or notes secured by mortgage. 

There was a trial to the court, with findings that the 
judgment note of Hodges and Blanchard for $385, on de - 
posit in the Capital National Bank at Lincoln, be deliv- 
ered to the plaintiff to pass as a credit of that amount on 
its judgment debt of March 16, 1889, and that the re- 
mainder of the property enumerated, twelve colts, one bay 
mare, and four Hereford bulls, are the pro[>erty of defend- 
ant J. O. Chase; and that the plaintiff has a lien thereon 
for the amount of its judgment debt, and that the smne 
is liable to the satisfaction thereof; that the sheriff is 
ordered to sell said property, as upon executions at law, 
and bring the proceeds thereof into this court subject to 
the further order of the court, and a judgment for the 
plaintiff for the sum of $791.56, which was appealed to 
this court by the defendant Druse. 

The third paragraph of appellant^s brief is devoted to the 
proposition that neither the facts of the petition and supple- 
mental petition, nor those proved on the trial, are sufficient 
to support the judgments, or, in the words of counsel, 
"support a creditor's bill." The ground of objection is 
two-fold: That the plaintiff made no levy of its writs of 
execution, or either of them, upon the chattels, the title to 
which it questions and seeks to have settled by its bill; 
that, in respect to such property, it is only a general cred- 



Vol. 30] SEPTEMBER TERM, 1890. 455 



Sjulb Omaha Nat]. Bank v. Chase. 



itor of the defendant Chase, and that, under the adjudica- 
tions of this court, and other courts, which it has followed, 
a plaintiff who is only a general creditor cannot maintain 
a creditor's suit. That this was the law, was well under- 
stood by the bank and its attorney, and for tliat reason it 
sought to give itself the character of an attachment creditor; 
but it is doubted that it carried its proceedings sufficiently 
far to avail itself of any resultant advantage, as it does not 
appear from the record that the defendant Druse, or any of 
the defendants, were ever called before the district court to 
make disclosures as garnishees; nor does it appear that 
the affidavit required as the foundation of proceedings 
in garnislmient, either before or after execution, was made 
on behalf of the plaintiff. However, these observations 
are only made preliminary to the fact that the defendant 
Druse, whose rights only are involved in this appeal, seems 
to have waived all objection to the form of this action, and 
to all insufficiency in its inception, the nature of the remedy 
chosen by the plaintiff, indeed, everything, so far as the 
district court was concerned, and raises such objection only 
in the n])pellate court. 

While it is not conceded that in a cause where the peti- 
tion faiis to stiite a cause of action the answer and de- 
fense of a party would waive such objection, yet that 
objection is not made here, much less in the court below, 
and especially as the point is not raised we will consider 
the petition as stating a cause of action; and therein will 
observe that in what respect these ancillary proceedings can 
be considered as helping it out is not perceived; but in 
view of the failure of defendant to make objection, or take 
any step in the trial court to test the sufficiency of plaint- 
iff's proceedings, it will in this court, where the question 
is presented for the first time, be held that the point that 
the plaintiff was but a general creditor, and had obtained 
no special lien upon the cliattels of J. O. Chase, does not 
arise. 



456 NEBRASKA REPORTS. [Vol. 30 



South Omaha Natl. Bank ▼. Chase. 



In the case of Shellenhargei' v, Biser, 5 Neb., 195, there 
was a principle involved akin to the present question, as to 
which this court, in the opinion by Mr. Justice Maxwell, 
held that "a person claiming adversely to the title of the 
mortgagor, and prior to the execution of the mortgage, 
cannot properly be made a party, for the purpose of trying 
the validity of such adverse claim of title. But this rule 
does not exclude one who claims title, and, also, claims to 
hold a mortgage on the same premises, who submits his 
claims to the adjudication of the court, and asks that in 
case the court finds his title to the premises invalid, that 
he may have a decree for the amount due on the mortgage. 
These defenses are inconsistent, and, had a motion been 
made at the proi)er time, the defendant would have been 
compelled to elect on which he would rely. But the 
plaintiff joined issue with the defendant, denying the facts 
stated in his answer ; and testimony has been taken by 
both parties, to establish the truth or falsity of the issues 
raised. It is therefore the duty of the court to consider 
all the questions at issue.'^ This example was followed by 
Lounnbury v. Oatrorty 8 Neb., 469, and that of Downey v. 
Laddf 22 Neb., 531, and is adhered to. 

The following facts from the testimony of O. M. Druse 
appear from the bill of exceptions : In the year 1 888, and 
for some time prior to that, J. O. Chase resided in Fair- 
mont, Fillmore county, engaged in banking and breeding 
live stock. O. M. Druse resided in Lincoln, engaged in 
dealing in live stock, and was a shareholder in, and secretary 
of, the Lincoln Driving Park Association. They had been 
acquainted for five or six years, or longer. At this time 
Chase was the president, manager, and owner of a majority 
of the stock of the First National Bank at Fairmont. I 
quote directly from the testimony of Druse, as the shortest 
method of stating what is regarded as the facts in the case : 

Q. Will you tell the arrangement and what occurred 
between you and Chase in regard to this land? 



Vol. 30] SEPTEMBER TERM, 1890. 457 



South Omaha Natl. Bank ▼. Chase. 



A. I was at Chase's plaoe in June^ 1886, and he told me 
he had a very fine piece of land, 240 acres, adjoining Fair- 
mont on the southeast, and had been thinking of starting 
a horse ranch, but feared he liad so much to handle that 
it was going to be a burden to undertake it, although he 
had an idea of running it if he could get some good man 
to take hold of it, and should like to have me. I remarked 
at the time that if I was able I w.ould buy the place. He 
said that he would trade me the place if I had anything to 
trade for it. I said, "All I have is a little place here; my 
home, and my stock in the Driving Park." He asked 
what my home was worth, and I said, "I think about 
$3,000;" and he asked what the driving stock was worth, 
and I said from four to five thousand dollars. He 
said he would make a little inquiry about it and let me 
know. He went out and came back in a little while and 
said: "I will trade the farm for the stock in the Driving 
Park, and your home in South Lincoln ; you can make the 
deed to the place out there, and you come to Fairmont and 
we will close the trade." 

Q. What was said by him previously in regard to the 
deferred payment on the land? 

A. That he would make the payment of that himself. 

Q. Now at any of these conversations did he say any- 
thing about the bank? 

A. No, sir, he never mentioned it; I made out the deed 
for the house and lot in South Lincoln ; my wife had to 
sign the deed ; I made the deed to J. O. Chase ; I took it 
and went up to Fairmont, and he said, " We will fake the 
deed and go up to Sloan's office and make out the papers." 
We went to Sloan's office, and Chase and I repeated 
the contract in agreement as near as we could to Sloan, and 
he drew up this contract (referring to defendant's Exhibit 
D) ; when I handed Chase the deed to the property in 
South Lincoln he looked at it and said, "I want you to 
make that deed to the bank;" so I put the deed in my 



458 NEBRASKA REPORTS. fVoi.. 30 



South Omaha Natl. Bank v. Chase. 



pocket and said I would make it to the bank when I got 
home, which I did, and sent it up there, 

Q. Go right on, and tell what occurred in Sloan's office 
in regard to this contract. 

A. When he mentioned bank, wanting the contract made 
to the bank, I said, Chase, this is a deal of ours, and not 
of the bank ; I don't know anything about the bank ; you 
are the man I had this deal with; he said, ^^I want to 
make this contract in the name of the bank.'' He agreed 
there that he owned pretty near all the stock in the bank, 
and that he had put some of the stock in the name of some 
parties to make them directors. He said that was all 
right, " I will see that these payments are made myself," 
and then I followed up by making the remark that ''this 
is a deal l)etween you and me," 

Q. You signed this contract? 

A. Yes, sir. 

The contract referred to by the witness is as follows : 

"This agreement, made this 6th day of July, 1886, by 
and between Marcella Druse and Otis M. Druse, her hus- 
band, of Lancjister county, Nebraska, parties of the first 
part, and The First National Bank of Fairmont, party of 
the second part, witnesseth : That for and in consideration 
of the mutual covenants and agreements hereinafter con- 
tained, The First National Bank agrees to assign, and by 
these presents does assign, to the said first parties a contract 
for the sale of the following described real estate, situate in 
Fillmore county, Nebraska, to-wit : The N. W. J of sec. 
32, Tp. 8, range 2 W. of the 6th P. M.; and also the N. 
J of the S. W. ^ of said section, township, and range. 
The said contract of* sale being described as follows: A 
contract from H. G. Bliss and M. E. Bliss, his wife, of 
Fillmore county, Nebraska, to Charles Warner, dated De- 
cember '.0, 1884, by which the said H. G. Bliss and wife 
agree to sell and convey the above described lands to 
Charles Warner, and which said contract was duly assigned 



Vol. 30] SEPTEMBER TERM, 1890. 459 



South Omaha Natl. B.iiik v. Chase. 



to The First National Bank of Fairmont by the said 
Charles Warner. And the said First National Bankciive- 
nants and agrees that at the time mentioned in said c-on- 
tract for the last payment on the same, to wit, January 1, 
1888, that the said bank will make, execute, and deliver 
to the said first parties a good and sufficient warranty deed 
to the real estate hereinbefore described. And the said 
first parties, in consideration of the assignment of said 
contract of sale, agree to make, execute, and deliver to 
the said bank a good and sufficient warranty deed to the 
following real estate, to-wit : Lot number 5, in block 27, 
in South Lincoln, according to the plat on file in the clerk's 
office of Lancaster county, Nebraska, together with all the 
improvements thereon; and the said first parties agree to 
assign, and .by these presents do assign, to the said bank one 
share, to-wit, No. 9 of the Lincoln Driving Park Company 
of Lincoln, Nebraska, said park contiiining 53 acres, more 
or less, the title to seventeen acres and a fractional i)art 
of an acre off the west side of said park being now in litiga- 
tion. The said fii*st parties agree that said litigation shall 
be conducted without expense to the said second party. It 
is further agreed that if the title to said seventeen acres 
and fractional part of an acre shall fail, then and in that 
case the said first parties simll pay the said second party 
the sum of |( 1,800; and it is furtlfer agreed that if the 
litigation concerning the title to said part of the said park 
is not determined at the time a deed should be made mider 
this agreement, then the first parties agree to make, execute, 
and deliver to the said second party a mortgage on the said 
real estate conveyed by the said party of the second part 
to the said first parties for the sum of |(1,800, said mort- 
gage to be void if the title to said lands now in litigation 
shall be adjudged on final hearing to be in the said com- 
pany; or if the said first parties or the said company shall 
perfect the title in said company without exjiense to the 
said bank, it is further agreed that the said second party is 



460 NEBRASKA REPORTS. [Vol. 30 



South Omaha Natl. Bank v. Chase. 



to make the payments provided for in the said contract of 
sale hereinbefore described. That the said first {larties are 
to have immediate possession of said land therein described, 
and the said first party is to pay the taxes which shall 
accrue after the year 1885, and that the said first party shall 
make, execute, and deliver the deed hereinbefore described 
to said lot number 5 upon the signing of this agreement. 

** In witness whereof, the parties hereto have signed the 
same, this 13th day of July, 1886." 

Signed by Marcella Druse and Otis M. Druse, and J. O. 
Chase, president, and witnessed by W. C. Sloan. 

The witness Druse further stated that he never had any 
conversation with any other person connected with the 
bank, in regard to the trade, or as to making back pay- 
ments on the farm. There occurs then a portion of his 
testimony which either by the witness is indefinitely stated, 
or is unintelligently reported, but so far as understood the 
circumstances mentioned occurred about tlje date of the first 
mortgage of Chase to Druse. Tlie witness states that 
Chase had been to Omnha and returned to Lincoln and in- 
formed witness that Irwin had been up to some bad busi- 
ness, had given note against notes against the bank, bond- 
ing the bank, and that he knew nothing about it, and had 
to take that up; that after meeting this unexpected matter, 
he would like to get some paper discounted, and advised 
with witness as to where he could probably get that 
done. Witness suggesttvl to him to apply to the Capital 
National Bank, and accoin|)anic(l him there. After some 
negotiation. Chase succeeded in making a loan. Witness 
then said to Chase : "J. O., you understand, of course, all 
I have got to raise money on is my home, and I dread to 
give that up, and I always trusted you, and have con- 
fidence in your integrity, and I want you to make me 
whole in this matter." He further stated that previ- 
ously he had heard through one of the banks that the 
Chases were getting in rather bad shape, and their paper 



Vol. SO] SEPTEMBER TERM, 1890. 461 



South Omaha Nail. Bank y. Chase. 



was being hawked about at less than its value; that wit- 
ness told Chase wliat he had heard, deeming it a friendly 
act, and believing that there was no truth in the report; 
that he believed Chase was worth a hundred thousand dol- 
lars over his liabilities; and thereupon asked Chase to 
secure him, telling him, "\{ this thing went on, he didn't 
know where it would go to, and wanted him to secure wit- 
ness in some way." Witness went out to Fairmont and to 
Chase's house, in a few days, and Chase there said to 
him, " Druse, I will make a mortgage that will make it 
all right, so you will be in no danger. I don't want you 
to put it on record," and would have Uncle John Burnett 
come and take possession of the mortgaged property. 
The Uncle John Burnett referred to was the hired super- 
intendent of Chase's farm. So far as I understand the 
witness, he means to say that the chattel mortgage for con- 
sideration of $5,500, securing two notes, one for $2,500, 
due July 1, 1889, and the other for $3,000, due July 15, 
1889, both dated June 18, 1888, witnessed by John Bur- 
nett, was, at this point of time, executed and delivered to 
witness, and that the mortgage and the property therein 
described were placed in Burnett's possession as custo- 
dian. Druse stated that he looked over the property, and 
while he did not find all of it on hand, he saw the princi- 
pal part, and told Burnett that he would hold him res- 
ponsible for the property when he should call for it. 
He also stated that that mortgage was given " to secure the 
payment due on the contract for a loan due, or to become 
due, for the deferred payments of the contract." The 
witness is here supposed to refer to the chattel mortgage 
mentioned as executed by J. O. Chase to O. M. Druse, 
June 18, 1888, by which was mortgaged thirty-five head 
of thoroughbred calves, Hereford and Holstein ; two head 
of thoroughbred Hereford bulls ; twelve head of colts from 
one to four months old ; one hundred bead of bogs and 
pigs; one-half interest in the Cleveland bay stallion, 



462 NEBRA.SKA REPORTS. [Vol. 30 



South Omaha Natl. Bank y. Chase. 



Coachman 2d; one black horse, *^ Bertie McGregor"; all 
the farm machinery in use on said farm, with wagons and 
harness, and hay and grain growing on certain land ; one 
gelding, "Charley;" two top buggies; one two-seated 
bu^y ; one set double harness; one Holstein bull, " Nep- 
tune;" four brood mares, and other live stock illegibly 
described. This mor^ge purports to have been given to 
secure the payment of one note for $2,500, due July 1, 
1889, and one for $3,000, due July 15, 1889. No notes 
are attached to the mortgage, and it is accompanied by the 
receipt of John Burnett, of the possession and control of 
the property described as inventoried for Druse from June 
27, 1888. 

Hereupon the witness was shown by his counsel, and told 
to examine, a mortgage which appears in the bill of excep- 
tions as defendant's Exiiibit E; also a note attached to the 
same, and was asked to state the facts under which the note 
and mortgage were given, to which he answered, that " dur- 
ing the state fair in September last Chase came to him with 
that mortgage, and said ^ he had changed the security some- 
what to make it better for me, and wanted to give liie this 
note and mortgage for security.' I was then very busy 
taking care of the stuff on the grounds, and said I will 
look it over and let you know. He said * he was going 
back on the train,' and I did not see him again for a few 
days. After the fair I went up to the farm and saw him, 
and it having become evident to me that he would not pay 
the deferred payment on the contract, I said, 'J. O., I 
cannot raise that money except to borrow it on the farm, or 
sell my home, and the way matters are I could not sell 
my home, and if I borrowed money I would have to 
pay interest for five years, and it would amount to more 
than $3,000, and that I wanted him to put this thing in 
shape so there would be no trouble; that it ought to have 
been straightened up before, but now I wanted it fixed.' 
He then said that 'he would make another mortgage as 
additional security.' " k 



Vol. 30] SEPTEMBER TERM, 1890. 463 



South Omaha NalL Bank v. Chase. 



The Exhibit E, is a chattel mortgage bj J. O. Chase to 
O. M. Druse^ dated September 11, 1888, describing as 
property mortgaged, sixty-five head of thoroughbred Here- 
ford cattle, copsisting of bulls, cows, and calves; twenty 
head of colts from four months to three years old ; one-half 
interest iu Cleveland bay stallion, '^Coachman 2d/' one 
trotting bred stallion, "Bertie McGregor"; one sorrel 
gelding, " Charley ;'' one buggy; seven sets of harness. 
The cattle and colts subject to a mortgage to the Omaha 
National Bank. This exhibit was given to secure a note 
of |3,600, due September 11, 1889, and is accompanied by 
the same, made by J. O. Chase to O. M. Druse, or order. 

The witness was shown Exhibits G and H, and was 
asked the following : 

Q. Are all these notes and mortgages given to secure the 
same indebtedness? 

A. Yes, sir. 

Q. Did you finally take possession of the property that 
was leil? 

A. I took possession of what was left. 

Q. Is this a correct description of what was left? 

A. Yes, sir. 

Q. And is this the note and mortgage you proceeded to 
sell under? 

A. Yes, sir. 

The mortgage referred to, as nearly as can be ascertained, 
is a chattel mortgage by J. O. Chase to O. M. Druse, of 
December 6, 1888, and the property described is one econ- 
omizer, ten horse power boiler engine; seventeen Hereford 
calves from two weeks to six months old ; one Hereford 
bull, Grove IV a 13733; one light bay mare, "Polly"; 
one black mare, " Dolly"; all on the farm of W. S. Hoga- 
boom, in Fairmont township, to secure a note of $1,500, 
dated December 6, 1888, payable September 11, 1889, and 
is accompanied by the note described. 

The witness was asked to state the fair and reasonable 



464 



NEBRASKA REPORTS. [Vol. 30 



South Omaha Natl. Bank v. Cha.^e. 



value of the house and lot he deeded to Chase and the 
bank, which was objected to, and the objection sustained. 
Yet the witness answered the question, and the same is in 
the bill of exceptions as follows : 

At the time we made the trade I considered the property 
well worth $3,000. I would not have taken any less in 
money at that time, and I think, from the property around 
there, it would be shown that vacant lots brought from 
$1,600 to $1,800. 

Q. Was a sale of the Driving Park stock finally con- 
summated? 

A. Yes, sir. 

Q. Did he get the money? 

A. Yes, sir, he got $5,000. 

Q. What was the actual cash value of that Driving Park 
stock? 

A. At that time I considered the stock cheap at $4,500. 
I could have sold it for that at any time. 

It appears from the further exam i i in t ion of this witness 
that, being secretary of the Driving Park Association, 
which required that the officers should be stockholders, and 
several stockholders, as well as Chase^ insisting that wit- 
ness should continue a nominal stoeklioldcr in order to act 
as secretary, he did not transfer the stocky but retained it 
in his own name, to remain competent as a director, which 
was the reason the stock remained in his name, but the 
certificate of stock was assigned by witness and delivered 
to Chase. 

It further appears from the testimony of the witness, 
and from that of John H. McClay, that his stock was sub- 
sequently bought by J. J. Imhoff, and $5,000 paid there* 
for by checks to J. O. Chase, which were paid, and the 
stock transferred to Imhoff. 

The second and principal point in the case arises on this 
evidence, together with the evidence that the First Natioiial 
Bank of Fairmont became bankrupt and absolut^rly with- 




Vol. 30] SEPTEMBER TERM, 1890. 465 



Sautli Omaha Natl. Bank y. Chase. 



out assets or means, leaving the title in the northwest 
quarter, section 32, township 8, range 2, and the north 
half southwest quarter of same section, in H. G. Bliss, or 
the B. & M. Railroad Company, to which does not definitely 
appear, and leaving the last payment due thereon still 
unpaid. 

The contention of the defendant Druse is that the mort- 
gages and notes were executed to him by J. O. Chase, in 
consideration of the prospective and ultimate failure of 
the bank to make the payments and carry out the contract 
with him, to make a good title to the land. The conten- 
tion of the plaintiff is that the contract between Druse 
and the bank, having been reduced to writing by Druse 
and his wife, the title to the lot being probably in her 
uame, and by J. O. Chase as president on behalf of the 
bauk, that the subject-matter of the contract could not af- 
terwards constitute a lawful consideration for anotlier con- 
tract between Druse and Chase, in his pei^sonal capacity, and 
that such would be the law of the case, especially under the 
statute of frauds, even were the evidence of the making of 
the contract in fact between Druse and Chase, as evidenced 
by one or all of the chattel mortgages or notes, ever so 
dear and satisfactory. It is not necessary to enter upon a 
discussion of the law of the case, as it would be held to 
apply, had J. O. Chase, at the time of the making of the 
contract by the bank, or at a later date, have entered into 
a single, plain, and definite contract with Druse to indem- 
nify him against any failure which might be made by the 
bank to carry out its part of the contract with him, ex- 
pressing the consideration therefor plainly upon the face 
of the contract of indemnification. I am not prepared to 
say that in such case the relationship of Chase to the bank 
as its president and principal owner, together with the in- 
ducements which he had held out to Druse to give the 
credit which he did to the bank, especially if we may fully 
credit the evidence of Druse as to the conversations between 
30 



466 NEBRASKA REPORTS. [Vol. 30 



South Omaha Natl. Bank y. Cbaae. 



them, about the time of making the trade between Druse 
and the bank, would not constitute a valid consideration 
for a promise on the part of Chase for such indemnity. 
But I am now considering the case on appeal. The dis- 
trict court has found that the chattel mortgage of Chase 
to Druse, dated September 11, 1888, and recorded Septem- 
ber 12, following, and that dated September 6, 1888, and 
recorded December 7, following, being ,two of the chattel 
mortgages described by Druse in his testimony, were each 
without consideration, were fraudulent, and void as to the 
creditors of J. O. Chase, 

It may be mentioned here that the mortgage of June 8, 
1888, appears not to have been filed for record. Why it 
should have been preserved in the bill of exceptions is not 
apparent, but there can be no question, under the statute, 
of its being absblutely void. 

As to the other two mortgages, these findings of the 
district court must stand, unless this court, from an exami- 
nation of the evidence, shall find that it is by such evidence 
^^ made to appear on the part of such persons claiming 
under said mortgages that the same were made in good faith 
and without any intent to defraud any creditor" of Julius 
O. Chase. (See sec. 11, ch. 32, Comp. Stats.) 

There having been no immediate delivery, followed by 
an actual and continuous change of possession of the chat- 
tel property described in the mortgages, the presumption 
of law is against their validity. This rule has often been 
applied by this and other courts. It would serve no 
necessary purpose (o comment on the facts as devdoped by 
the testimony of Druse or as set forth in the pleadings, 
but it will l)e deemed sufficient to say that the transactions 
surrounding the mortgages are not of that plain, ingenuouH 
character, which would be considered sufficient to remove 
the presumption of fraud from mortgages of pei^sonal 
property, without change of possession contemplated by 
the statute. 



Vol. 30] SEPTEMBER TERM, 1890. 467 



South Omaha NatL Bank v. Chaae. 



It appears from the pleadings and evidence that at the 
sale of the chattels which were the subject of this litiga- 
tion upon two of the mortgages hereinbefore considered, 
and which sale was agreed to beforehand, by stipulation 
by the parties, one horse, " Bertie McGregor," was sold to 
defendant Druse at $160, and one horse, " Charlie,*' at 
$80. There was evidence by Druse, and witness in his 
own behalf, that he subsequently sold the horse ^^ Bertie 
McGregor *' for $600, taking a note with mortgage security 
for payment; and also had sold the horse ^'Charlie,'' for 
$275. 

By the stipulation it will be seen that it was provided 
that any property bid off by Druse should be held by him 
on the same terms and condition as the notes and cash pro- 
ceeds deposited in the bank. It is probable that the dis- 
trict court construed this provision to mean that in case 
Druse bid off the whole or any portion of the property, 
he should bid off the same in trust for the successful party 
in these proceedings whichsoever it might be. But if this 
was the construction to be placed on the stipulation, it will 
be observed that the court does not treat him as a trustee 
in the judgment, but as a debtor, for it will be remembered 
that from the evidence Druse Iiad not converted the prop*- 
erty into money but had sold it on credit, and taken a 
chattel mortgage as security. If treated as a trustee, he 
would have been required to turn over this security that 
it might have been placed with other notes for chattels 
sold on credit. But I do not agree to the construction 
supposed to have been placed upon the stipulation by the 
district court. I think the agreement recognizing the 
right of Druse to bid off the property at the sale, made 
any bid by him a purchase of the property, and that it 
was the amount of his bid for the property struck off to 
him that was to be held by him upon the same terms 
as that of the cash and notes in the bank. 

The account of O. M. Druse, growing out of said sale, 



468 NEBRASKA REPORTS. [Vol. 30 

South Omaha Natl. Bank y. Gbase. 

upon the facts as stated in the petition will stand as fol- 
lows: 

DEBIT. 

To proceeds of sale as per statement in petition: 
Articles of property sold for cash, as therein 

stated J136 75 

Bay mare, to O. M. Druse 100 00 

Horse '* Charlie," to O. M. Druse' 80 00 

Twelve colts, to O. M. Druse 312 00 

Four Hereford bulls, to O. M. Druse 72 00 

Horse " Bertie McGregor," to O. M. Druse 160 00 

J860 75 

CREDIT. 

By cash paid, taxes and expenses of sale 220 19 

• ^^^»^_^_^^ 

$640 56 
The judgment will therefore be modified, by changing 
the sum of $791.56, representing the judgment of the court 
below, for the plaintiff against the defendant Druse, re> 
ducing it to the sum of 1(640.56, as above stated, and so 
much of the said judgment as finds that the remainder of 
•aid property, twelve colts, one bay mare, and four Here- 
ford bulls, are the property of Julius O. Chase, and orders 
the same to be sold by the sheriff of Fillmore county, is 
reversed, but, with the exceptions stated, the judgment of 
the district court is afiSrmed. 

Judgment AOOORDiNaLY. 

The other judges concur. 



Vol. 30] SEPTEMBER TERM, 1890. 469 



Hant T. Lippu 



Gary M. Hunt et al., appellee, v. Valentine g^ ^^, 
Lipp et al., appellants. J^^9' 

[Filed September 30, 1890.] 

1. The evidence examined, and heldj to sustain the findings and 

judgmeat of the district coart. 

2. Beal Estate: Contract for Sale: Occupation: Statute op 

Frauds. The deposit of bnilding material, of from ten to fifty 
wagon loads of sand, from 2,000 to 10,000 feet of lumber, and 
from 2,000 to 10,000 bricks, with a tool and lime hoase, or box 
ten feet square, npon an otherwise unoccupied and vacant town 
lot, from which portions of such material were from time to time 
hauled away and used by the owner in buildings then being 
built or repaired by him on other lots, the balance remaining 
on the lot, all with the knowledge and implied consent of the 
owner of the title to the lot, held, not to point unmistakably to 
a contract between the owner of the lot and the owner of the 
building material, niid tool box, for the sale of the lot, nor to 
constitute such a possession of the lot by the owner of the build- 
ing material as amounted to a part performance of a verbal con- 
tract for the sale of the lot by the former to the latter, nor such 
as would take it out of the operation of the statute of frauds. 



3. : : Purchaser: Notice: The same ft«/(2, not to con- 
stitute notice to a subsequent purchaser of the lot. 

Appeal from the district court for Douglas county. 
Heard below before Wakeley, J. 

B, O. Burbank, John L. Webster, and Winfield S, Sirawn, 
for a[)pellants, cited, as to possession and notice : Giles v, Ort" 
man, 11 Kan., 63; CcirtwrigJU v. McFadden, 24 Id., 662; 
(yCallaghan r. Booth, 6 Cal., 63 ; Brumac/im v, Bradshaw, 
89 Id., 24; Kerr v. Hitt, 75 111., 60; McLean v. Farden, 
61 Id., 108-9; Brooks v. Bruyn, 18 Id., 542; Webbs v. 
Hijnes, 9 B. Mon. [Ky.], 388; Bartlett v. Draper, 23 Mo., 
407; Miller v. Northup, 49 Id., 397; King v. St. Louis Oas 
Co., 34 Id., 34; Morrison v. KeUy, 22 111., 610 [74 Am. 



470 NEBRASKA REPORTS. [Vol. 30 



Hunt y. Lipp. 



Dec., 169]; ScoU v. Ddany, 87 Id., 146 ; Copeland p. Jfur- 
phey, 2 Coldwell [Tenn.], 64; Kirder v. Laffa^ty, 1 Wliart. 
[Pa.], b02; Swing v. Burnet, 11 Pet. [U. S.], 41 ; GUI v. 
Newell, 18 Minn., 4^.0; Machin v. GoertneVf 14 Wend- 
[N. Y.], 2o9; Booth v. Small , 25 la., 181; Clement v. 
Perry, 34 Id., 564 ; SpiUer v. Scofidd, 43 Id., 572 ; Nolan 
V, Grants 51 Id., 519; Colvin v. McCane, 39 Id., 502; 
Langworth v. Myers, 4 Id., 18; Barreft v. Love, 48 Id., 
103; EllicoUv. Pearl, 10 Pet. [U. S.], 442; Moss v. ScoU, 
2 Dana [Ky.], 275 ; Close v. Samm, 27 la., 510; Fletcher v. 
Fuller, 120 U. S., 553; Watkins v. Holman, 16 Pet. [U. S.], 
54 ; Jackson v. Stoetzd, 87 Pa. St., 302. As to part perform- 
ance: Johnson V. Gresham, 5 Dana [Ky.], 542; Caldwell 
V, Carrington^s Heirs, 9 Pet. [U. S.], 103 ; Jones v. Pease^ 
21 Wis., 644; Smith v. Finch, 8 Id., 99; Baldwin v. Thomp- 
son, 15 la., 504; Green v. Jones, 76 Me., 563; Lester r. 
Foxcroft, 1 Coil's Pari. Cas. [Eng.], 108 ; MorpheU r. JoneSy 
1 Swanst. [Eng.], 1%1 \Bassler v. Niesly, 1 S. & R. [Pa.], 
431*, 472*; Ayer v. Hawkes, 11 N. H., 148; Harris v. 
Knickerbacker, 5 Wend. [N. Y.], 638 ; Tilton v. Tilton, 9 
N. H., 385; Brewer v. Brewer, 19 Ala., 488; Cumming 
V. GiU, 6 Id., 562 ; Johnston v. Glancy, 4 Blackf. [Ind.], 
98; Eaion v. Whitaker, 18 Conn., 222; Wilbur v. Pain^, 
1 O., 251; Fitzsimmons v. Attends Admrs., 39 111., 440; 
Ijelcher v. Cosby, 2 A. K. Marsh. [Ky.], 106; Abbott v. 
Draper, 4 Denio [N. Y.], 51 ; Underhill v. Williams, 7 
Blackf. [Ind.], 125 ; Tibbs v. Barker, 1 Id., 58 ; Wharton v. 
Stoutenburgh, 35 N. J. Eq., 266 ; Sterling v. KlepsaUle, 24 
Ind., 94; Bechtel v. Cone, 52 Md., 707; Dugan v. Git- 
tings, 3 Gill [Md.], 157; Beardsley v. DunUy, 69 N. Y., 
577; Danforth v. Laney, 28 Ala., 276 ; Green v. Finin, 
35 Conn., 181; Gi^een v, Richards, 23 N. J. Eq., 32; 
Schenck v. OuttreU, 1 Zab. [N. J.], 7; Ashm^re v. Evans, 3 
Stock. [N. J.], 151 ; Stark v. Wilder, 36 Vt., 752 ; Lipp v. 
Hunt, 25 Neb., 91; Jamison v. Dimock, 95 Pa. St., 52; 
Pugh V. Good, 3 Watts & Serg. 56; Bigelow v. Armes, 108 



Vol. 30] SEPTEMBER TERM, 1890. 471 



Hunt V. Ltpp. 



U. S., 10; Hillard, Vendors [2d Ed.], pp. 140-1 ; Brown, 
Statute of Frauds, sees., 465, 467, 469 ; Bigelow, Fraud, p. 
386; Kerr, Fraud and Mistake, p. 135; 4 Kent [1 2th 
E(l]. p. 451; 1 Story, Eq. Jur. [12th Ed.], sees. 761, 763; 3 
Parsons, Contracts [6tb Ed.], p. 395 ; 2 Chitty, Contracts 
[nth Am. Ed.], .1451. 

Charles OffuU, for appellant Hunt, cited, as to part per- 
formance: Morgan v. Bergen, S Neb., 209; Poland ». 
(yConnory 1 Id., 50; Baker v. WiaweU, 17 Id., 52; 3 
Waslib., Real Prop. [5th Ed.], 248; Hill v. Meyers, 43 
Pa. St., 170-3; Moyer^a Appeal, 105 Pa. St., 432; Glass 
V. Hulbei% 102 Mass., 33-4; Ash v, Daggyy 6 Porter 
[Ind.], 259; Waok v. Soi^ber, 2 Whart. [Pa.], 387. 

G, W, Ambrose, for appellees Rocheford and Gould. 
Cobb, Ch. J. 

This action was brought by the plaintiffs and api)e1Iees 
to quiet their title to the original lot No. 7, of block No. 
77, in the town of South Omaha, against the claim of the 
defendants and appellants. 

The plaintiffs allied, in the court below, "that on April 
2, 1886, Alexander H. Swan and his associates, as trustees 
of the town of South Oraaha^ being seized in fee simple of 
said original lot No. 7, deeded the same to the plaintiff; 
Cary M. Hunt, by deed of general warranty, duly recorded 
April 3, 1886. 

"II. That on September 24, 1887, the plaintiff Hunt, 
having become possessed of the fee of the adjoining lot, 
No. 6 of said block No. 77, subdivided the lots Nos. 6 and 
7 as a subdivision of said block, by the name of C. M. 
Hunt's Subdivision, into lots numbered from one to seven, 
inclusive, a plat of which was placed of record September 
27; 1887, and is referred to as Exhibit A. 

"III. That on February 1, 1887, lot No. 6 of the sub- 



472 NEBRASKA REPORTS. [Vol. 30 



Hunt y. Llpp. 



division was conveyed by plaintiff Hunt to plaintiffs Will- 
iam Rocheford and Frank P. Gould, of record March 8, 
1888; and on September 24, 1«87, lot No. 7 of the subdi- 
vision was conveyed to plaintiff Math. Evetz, of record 
October 11, 1887. 

"IV. That the plaintiffs claim title to, and are in open 
and notorious possession of, all of said original lot 7 of 
block 77, in South Omaha, under the conveyances men- 
tioned, specifically as follows: The plaintiff Hunt, of the 
cast 103 feet, being the south GO feet of lots 1, 2, 3, 4, and 
6, of said subdivision; the plaintiffs Rocheford and Gould, 
of the east half of the west 44 feet of the original lot 7, 
being the south 60 feet of lot 6 of the subdivision; and 
the plaintiff Evetz, the west 22 feet of the original lot 7, 
being the south 60 feet of lot No. 7 of the subdivision; 
that by reason of the respective and contiguous holdings 
of the plaintiffs in the original lot No. 7, they have a com- 
mon interest in this action and are equally affected by the 
acts of the defendants hereinafter complained of. 

" V. That the defendants Charles Corbett and Valen- 
tine Lipp claim to be, and pretend that they are, the 
owners and are entitled to the possession of the original 
lot 7 by a contract of Lipp with one Pivonka, under an 
alleged contract for the purchase of said lot by the trustees 
of South Omaha with Pivonka, and by him alleged to 
have been assigned to Lipp; and that Corbett claims 
under a deed from Lipp to him, as trustee, of record Janu- 
ary 6, 1888; that defendants Holmes and Smith claim an 
interest or title to the original lot 7 under a mechanic's lien 
for material and labor supplied on the premises, of record 
October 23, 1886. 

" VL That the alleged claims of defendants are entirely 
false ; that the contract of the trustees of South Omaha to 
Pivonka was never assigned to Lipp, and that at the date 
of Lipp's conveyance to Corbett he had no interest, riglit, 
or title in the contract or to the premises, and that any ma- 



Vol. 30] SEPTEMBER TERM, 1890. 



473 



Hunt T. lilppi. 



terial used by him upon the premises was wrongfully used, 
and without the consent or knowledge of the plaintiffs, or 
either of them; but that said contract with Pivonka was 
duly assigned, transferred, and delivered to the plaintiff 
Hunt, and in compliance with its terms the trustees made 
to him the deed heretofore described for said lot 7, in block 
77, of the town of South Omaha. 

**The plaintiffs allege that they are the absolute owners 
of said lot, but that the defendants' pretended claim casts 
a cloud upon their title, and ask that the defendants, and 
each of them, be enjoined from asserting or clairtiing any 
interest or title in or to the said premises, or any part thereof, 
and pray for general relief." 

Exhibit A. 

C if. Hun^a Subdivision of Lots 6 and 7 of Block 77 y of 

South Omaha, 

IG-n. Alley. 



i 
1 

1 




6 


• 






7 


6 


6 


4 

7 


8 


2 


1 


Kocheford 

Hitd 

Gould. 


Evets. 


Hunt 


Hunt. 


Hunt. 


Huut^ 


Hunt. 


26 


22 


22 


22 


15 


22 


22 



CO 



N Street. 



The defendants Lipp and Corbett answered, admitting 
" the title to the premises, lot 7, in block 77, in the trustees 
of South Omaha, and their deed to Hunt, but denied that 
it conveyed in law the premises te Hunt, or that he had 



474 NEBRASKA REPORTS. [Vol. 30 



Hunt y. Llpp. 



^ any interest or title in and to the premises; they admit 
that he pretended to subdivide lots 6 and 7 into C. M. 
Hunt's subdivision^ but deny that he had any right or 
authority so to do. 

^'3. They admit the conveyances of Hunt to Rocheford 
and Gould, of lot No. 6 of Hunt's sul>division, but deny 
that it conveyed the absolute fee simple title to any portion 
of lot No. 7 of block 77, of South Omaha, and admit 
the conveyance to Evetz, but deny that it conveyed the ab- 
solute fee simple title to any portion of lot No. 7 of block 
77, of South Omaha. 

"4. They deny that the plaintiffs hold any title to or in 
said premises, or that they are in open and notorious pos- 
session of said original lot No. 7 of block 77, except that, 
claiming to be the owner of said lot on May 26, 1886, 
the plaintiff Hunt commenced an action of forcible entry 
and detainer before a justice of the peace of Douglas 
county, and upon an appeal from the judgment of such 
justice he obtained a judgment for the possession of the 
premises, and by a writ of restitution was put in posses- 
sion, but that the defe^ndant Lipp subsequently appealed 
said cause to the supreme court of this state, and that the 
same is now pending and undetermined ; that the plaintiflb 
have no other or different possession than that stated, and 
that the grantees of Hunt took said conveyances and took 
possession of the premises with full knowledge of the 
appeal taken to the supreme court, and are charged with 
full knowledge of tlie claims of defendants, and purchased 
and took possession of the premises at their own risk. 

"6. They claim to be tlie owners and entitlied to the 
possession of the original lot 7, in block 77, and they deny 
that the plaintiffs, or either of them, are seized of said lot, 
or any part thereof, or have any title or interest therein, 
and deny all knowledge of the mechanic's lien of Holmes 
and Smith. 

"6. They all^e that on May 6, 1884, Alexander H. 



Vol. 30] SEPTEMBER TERM, 1890. 476 



Hunt ▼. Llpp. 



Swan and his associates, as trustees of South Omaha, ^vere 
the owners of the premises in dispute and on that day sold 
the same to T. S. Lewis for the sum of $300, by the execu- 
tion and delivery of a land contract signed by the parties; 
that by the subsequent assignments the equitable title to the 
premises vested in Lewis was transferred to and became 
vested in Frank Piyonka, and that afterwards, about Jan- 
uary 15, 1885, Pivonka and defendant Lipp entered into 
a verbal contract for the sale of the premises to Lipp, who 
agreed to pay $125 for Pivonka's equitable interest, upon 
the payment of which Lipp was to have received a formal 
assignment of the land contract, and such conveyance of 
the premises. 

"7. They allege that Lipp fully paid Pivonka $125 for 
his equitable interest, and $81.25 additional for the pay- 
ment due on the contract May 6, 1885, according to its 
terms, as will be seen by the defendant's Exhibit A; that 
about February 1, 1885, under this contract and sale, Lipp 
took peaceable possession of the premises with the knowl- 
edge and consent of Pivonka, and has ever since retained 
possession and control up to the time when Hunt was 
placed in possession as stated. 

"8. That Pivonka, in violation of his contract and in 
fraud of the rights of Lipp, on October 23, 1885, pre- 
tended to sell the premises in controversy to Hunt by an 
assignment of the land contract purporting to convey the 
equitable title to Hunt, without having any right, title, or 
interest to or in said premises. 

"9. And that Hunt had notice and full knowledge of 
Lipp's rights and interest in the premises prior to his al- 
lied purchase. 

'^10. And the defendants all^e that ailer Hunt had be- 
come so possessed of the contract of sale of the trustees of 
South Omaha to Lewis, he surrendered the same and re- 
ceived a warranty deed for the premises, but it is denied 
that such deed conveyed any interest, right, or title whatso- 
ever in said premises to Hunt. 



476 NEBRASKA REPORTS. [Vou 30 



Hant y. Lipp. 



"11. The defendants tender into court the sum of $150^ 
with interest and taxes, as in said land contract provided, 
and set up that the interest of defendant Corbett in the 
premises is that of a trustee for defendant Lipp, the cestui 
que trust The defendants ask that the deed from Swan 
and his associates, as trustees, to Hunt, and the deeds from 
Hunt to Rocheford and Gould, and the deed ft-om Hunt to 
Evetz be annulled and set aside, and that the mechanic's 
lien of Holmes and Smith be set aside, and that the title 
to tiie premises be declared to be forever quieted in the 
defendant Charles Corbett as trustee." 

The defendants' Exhibit A is the original land contract, 
dated May 6, 1884, "between Alexander H. Swan, Will- 
iam A. Paxton, Thomas Swobe, Frank Murphy, Charles 
W. Hamilton, Peter E. Her, and James M. Woolworth, 
trustees, of the first part, and T. S. Lewis, of Omaha, 
Nebraska, of the second part, for the sale to the party of 
the second part, of lot 7, in block 77, in South Omaha, 
Douglas county, Nebraska, for the sum of $300, on which 
the second party has paid the sum of $75, and agrees to 
pay to the party of the first part the following sums of 
principal and interest at the several times named below : 

"First payment, 6th May, 1885, $75; interest, $5.25; 
amount, $80.25; taxes, $1, paid 5-12-'84. 

"Second payment, 6th May, 1886, $75; interest, $10.50. 

"Third payment, 6th May, 1887, $75; interest, $15.75.'' 

With various provisions and stipulations, by M. A, 
Upton, assistant secretary ; countersigned, Fi*ank Murphy, 
treasurer; T. S. Lewis, purchaser. 

UNDERWRITTEN. 

"Omaha, Neb., November 24, 1884. 

"For value received, I hereby assign, transfer, and set 
over unto Frank Pivonka all my right, title, and interest 
in and to lot 7, block 77, South Omaha, Neb., as described 
in within contract. 

"Witness: . . 



Vol. 30] SEPTEMBER TERM, 1890. 477 



Hant Y. Llpp. 



"Omaha, Neb., October 23, 1885. 

"For value received, I hereby assign, transfer, and set 
over unto C. M. Hunt all my right, title, and interest in 
and to lot 7, block 77, South Omaha, Neb., as described 
in within contract F, PivONKA. 

"Witness: P. J. TiMMONS.'' 

INDORSEMENT. 

"South Omaha, contract No. 38, lot 7, block 77, to T. 
S. Lewis. 

"Assigned to R. Allen, 5-23-'84. 

" S. J. Howell, 6-20-'84. 
" " R. Allen. 
" " F. Pivonka, 12-l-'84. 
" " C. M. Hunt, 10-23-^86. 
"Deed issued Gary M. Hunt, 4-3-^86. 
"Omaha, Oct. 2<, 1885. Consent is hereby given for 
above transfer, and same entered of record. 

" M. A. Upton, 
'' A88t. Secty." 

The reply of the plaintiffs admits the execution and the 
correctness of the land contract set out as Exhibit A to 
the defendants' answer, but denies all other allegations of 
defendants' setting up title or equitable interest in the 
premises under said contract. 

There was a trial to the court, a jury being waived, on 
the 11th day of May, 1889, in which it was first found 
that the parties hereto agree that the west twenty-five feet 
of lot seven, in block seventy-seven, in South Omaha, and 
the same portion of said lot which was, on September 24, 
1887, conveyed to the plaintiff Math. Evetz by the plaintiff 
Gary M. Hunt, has been duly conveyed by all parties 
hereto, and that the South Omaha National Bank is now 
invested with all the right and title of all the parties hereto, 
to the west twenty-five feet of said lot seven, in block 
seventy-seven, in the city of South Omaha ; and the cause 



478 NEBRASKA REPORTS. [Vol. 30 



Hant Y. Llpp. 



coming on further to be heard on the mothon of the 
plaintiffs Rocheford and Gould to dismiss the action with- 
out prejudice as to them, and the court being sufiSciently 
advised thereon^ it is ordered and adjudged that the motion 
be sustained, and that the action be dismissed without 
prejudice so far as the same affects their rights and interests, 
or those of either of them ; to which the defendants ex- 
cepted. 

On final hearing, upon the petition, answer, reply, and 
the evidence, the court found that at the commencement of 
this suit the plaintiff Hunt was in the possession of the 
disputed premises, and had a legal estate therein, and was 
entitled to the possession tliereof, to-wit: of lots 1, 2, 3, 4, 
and 5 of C. M. Hunt^s subdivision of lots 6 and 7 of 
block 77, of South Omaha, Nebraska ; and that the de- 
fendants Lipp and Corbett, and Holmes and Smith, neither 
of them have any estate or interest in said premises, or 
any part thereof, and are not entitled to the possession of 
the same ; to which the defendants excepted. 

The arguments of counsel in this case are voluminous 
and exhaustive, and the points presented are numerous, 
some of which it will not be deemed necessary to discuss. 
Our opinion will be confined chiefly to the questions con- 
sidered in the findings of the court below. Upon the trial 
the court ruled that the burden of proof was upon the de- 
fendants. 

The defendant Lipp testified, substantially, that he was 
a builder and contractor, residing in South Omaha for a 
period of over four years ; that he became acquainted with 
Frank Pivonka in May, 1884, and " was acquainted with 
the lot in question all the while he was there; " that about 
the time of Christmas and New Year's, in 1884 and 1885, 
he asked Pivonka, in his saloon in South Omaha, 'Svhere 
he could find the party, Lewis, who owned the lot, and was 
told by Pivonka that the man had gone off, and Pivonka 
went down to Omaha on the next train and hunted up the 



Vol. 30] SEPTEMBER TERM, 1890. 479 



Hant Y. Lipp. 



man^ and bought the lot;'' that Pivonka returned and on 
the next day said to witness, " Now I have bought tliat 
lot, and can sell it to you, if you want it;'' that witness 
replied, "Yes, I want to buy that lot." This the witness 
thinks took place the second day after Christmas, 1884; 
that witness asked him what he would take for the lot, and 
he replied that he would take $125 for his interest in it, 
and that he had paid $100 for it yesterday. 

It should be stated that it was not claimed that the pur- 
chase of Pivonka was that of the legal title to the lot, 
which was in the trustees of the South Omaha Company, 
which throughout the litigation is called the syndicate. 
These trustees had, on May 6, 1884, sold the lot to T. S. 
Lewis, as appears from defendants' Exhibit A, set forth, 
for $300, of which $76 was paid down, and an equal 
amount, with interest and taxes, was to be paid in three 
annual installments, and had delivered a land contract, 
only assignable by the written authority of the trustees, of 
which time was made the essence of the contract and 
prompt payment required. 

The witness Lipp further testified that, subsequent to 
the conversation mentioned, Pivonka -wanted a well dug 
upon the hill, and witness offered to sink the well as con- 
sideration for the lot, or as a payment on it, and they 
finally agreed that witness should have ninety cents per foot 
for digging and bricking up the well ; that the same should 
be applied to the payment of the $125 on the lot, and that, 
when the well was completed, if it did not amount to the 
full sum, witness was to pay the balance, and if to more, 
Pivonka was to pay him the balance, in cash, and that 
Pivonka was to assign the land contract to witness as soon 
as he had finished the well ; that the well was not finished 
till June, 1885, and that its depth was within a few inches 
of ninety feet ; that at about the time the well was finished, 
the witness contracted with Pivonka to build his brick house 
according to his plans and specifications, the material to be 



480 NEBRASKA REPORTS. [Vol. 3» 



Hunt y. Llpp. 



furnished by witness, for the sum of $1,^00; that witness 
built the house accordingly, and that at the time of tiie com- 
pletion of the well, in June, 1885, Pivonka was indebted to 
the witness on the building contract six or seven hundred 
dollars ; that afterwards witness entered into another con- 
tract with Pivonka to erect a second building, for a barbei 
shop, for the sum of $300, in June, 1885, which was com- 
pleted according to contract. He further testified that at 
the time the well was finished and the house under roof, 
some of his laborers had threatened to file their mechanics' 
liens against the house, and the witness having asked Pi- 
vonka about the promised assignment, he replied, " Wait till 
you get squared up with these carpenters and it will be all 
right,^' and that was all that was then said about it ; that 
later, in August, Pivonka called the witness's attention "to 
come up and settle with him,'' and that they had a count of 
tidcets and orders and so on, and Pivonka said then that 
there had been a lien filed by the carpenters for about 
$500, or something like it, and if witness would see that 
paid and get it straightened out he would assign the con- 
tract to witness, and not till then ; that there was nothing 
more said between them, and the next thing witness heard 
about the contract was that Pivonka had sold the lot and 
assigned the contract to Hunt. 

With the remark that this testimony of Lipp is to some 
extent corroborated by that of other witnesses, I turn to 
the testimony of Frank Pivonka, a witness for the plaint- 
iffs. The witness testified that in 1884 he learned that the 
lot in controversy was for sale, it taking him two or three 
days to find out the owner, and then bought the lot ; that 
three or four days afterwards Lipp said to witness that if he 
could buy that lot he would go ahead and build a three- 
story brick house and basement, and commence from 
Twenty-fifth street and build all over; that witness replied 
to him, " that is all right ; if you will do that, I will sell it 
to you.'' That the next day Lipp brought to witness a 



Vol. 30] SEPTEMBER TERM, 1890. 481 



Hunt y. Lippu 



plan for a house he proposed to build on the lot, and wit- 
ness said to him, if he would put up such a building that 
he would let him have the lot for $25 in addition to the 
$325 witness had paid for it; that he would not sell it to 
him for speculative purposes, because he could hold it him- 
self. That subsequently he inquired of Lipp how much 
he would charge to dig and brick up a well on Twenty- 
fourth street, and that Lipp replied that in the winter 
season he had nothing to do, and would charge him ninety 
cents per foot, and witness replied, " Go ahead and dig the 
well, and when you get through, if you buy the lot you 
may pay the balance, or I will pay you the balance, either 
way, because (said the witness) he was owing me" Lipp 
then dug the well, and when dug he got tliat much money 
out, and went on and built the brick house. Witness gave 
him money to buy the lumber, and witness bought the 
brick and paid the men employed, except those two men, 
and there was nothing said about the lot ; neitlier of us said 
anything about the lot at that time; witness made the May 
payment, 1885, on the lot; that he knew that Lipp had no 
money. 

Upon this evidence, and that corroborating defendants' 
evidence, as stated, the trial court found that it did not 
establish the sale of the lot by Pivonka to Lipp, at most, 
with that degree of certainty and clearness necessary to the 
foundation of an action to compel specific performance, or 
to enforce a parol agreement for the conveyance of real 
estate. 

In reviewing that finding I am not prepared to say that 
it is error, for the evidence affirmative of and adverse 
to the contract is sharply conflicting; and, as has been 
often decided by all the courts, in cases of conflicting evi- 
dence, except where the preponderance is greatly against it, 
the findings of a trial court on a question of fact will be 
sustained in a court of review; and, although the trial 
court admitted the probability of Lipp's version of tho 
31 



482 NEBRASKA REPORTS. [Vol. 30 



Hunt Y. LIpp. 



controversy as more nearly the truth than that of Pi vonka's, 
yet it is with the findings of the court we have to do rather 
than with its reasons therefor. But in justice to that 
court it is to be said that its findings on the proof of con- 
tract were based more upon the lack of evidence of pay- 
ment than of the dontract itself^ and its reasoning being 
satisfactory, its line of argument is adopted. 

The well dug and completed for Pivonka was under- 
taken in the winter season and completed in the following 
June. According to Lipp's testimony it was ninety feet 
deep, and at ninety cents per foot amounted to $81, and ac- 
cording to his evidence he was to pay in cash the difference 
between that sum and $126 due on the lot. If the well 
came to more than $125 Pivonka was to pay that differ- 
ence to him in cash. Before the well was completed, and 
before the cost could be known, Lipp contracted with Pi- 
vonka to erect a brick house, and made a second contract 
to erect a barber shop. At least one of these was in pro- 
cess of construction before the completion of the well. 
In the meantime, before the completion of the well, the 
payment of $75 principal and $6 of interest and taxes be- 
came due to the trustees of South Omaha on the lot; that 
was shortly before the completion of the well. Lipp tes- 
tified that Pivonka called his attention to that fact, and 
asked him what he was going to do about it; to which he 
replied, " Well, you owe me money; I am putting up this 
building for you ; you pay that and charge it to me." Lipp 
further says that Pivonka paid it, and included it in a cer- 
tain receipt taken by him for two hundred and*more dollars. 
This fact Pivonka denies, and Lipp is not directly sup- 
ported by any corroborative evidence. I agree with the 
district court in the opinion that this may or may not have 
been so. We have Lipp's oath in the affirmative and Pi- 
vonka's in the negative, and no corroboration of either. 
It will be seen, in review of Lipp's evidence, that at one 
time he asked Pivonka to assign the contract of purchase 



Vol. 30] SEPTEMBER TERM, 1890. " 483 



Hont Y. LIpp. 



of the lot to him, and that Pivonka replied, ''That some 
fellows had filed liens on my property and I won't do 
anything about it till you get rid of these liens, and when 
you do I will assign you the contract." This fact is denied 
by Pivonka in express terms, and lacks corroboration from 
other sources. Pivonka denies that the well was ninety 
feet deep, but admits that it was seventy-six feet deep only. 
But upon the theory of Lipp's statement, the amount of the 
work on the well was $44 less than that he says he was to 
pay for the lot, and if the deficiency either way was to be 
paid in cash by the party owing the other, there is no evi- 
dence that he paid the balance due. I agree with the dis- 
trict court that if Lipp's testimony be accepted, it fails to 
prove the payment of the full consideration for the lot, or 
for the contract therefor. And this is true, even if it be 
admitted that there was then and is money still due from 
Pivonka to Lipp on one or both of the building contracts, 
as the evidence fails to prove an agreement of the parties 
that the difference in the sum due Lipp for the well and 
that due Pivonka for the lot should be taken out of the 
building contracts or either of them. 

I have considered the evidence and the arguments of 
counsel carefully, with a view of determining whether at the 
close of these transactions there was money due from Pi- 
vonka to Lipp which might be presumed to have been 
retained by the former as covering this balance, without 
being able to reach such conclusion. 

As to the possession by Lipp of the lot in controversy, 
he testified that in February, or between February and 
March, 1885, he established the lot for mortar yards and 
deposited sixty or seventy- five loads of sand there, "at 
once during the winter;" that a month or two later he 
hauled 2,000 feet of lumber there, and in June or July 
had 2,000 brick deposited there, and on August 1 he 
moved a lime house from Pivonka's brick building down 
to and upon the lot ; that the house was originally fourteen 



484 NEBRASKA REPORTS. [Vol. 30 



Hant 7. Llpp. 



feet square, and was rebuilt on the lot ten feet square, and 
was used to keep tools and lime protected and dry. He 
testified, in answer to question by his counsel, that at and 
prior to October 23, 1885, the date of sale to Hunt, there 
was remaining on the lot the sand, the lime house, 12,000 
brick, and 5,000 feet of lumber deposited there; "that he 
moved this property there upder the consideration that it 
was his lot, and his own place of doing business/' The 
testimony of Lipp as to the sand, brick, lumber, and lime, 
and the tool house upon the lot, and the times the same 
were placed there is, to some extent, corroborated by that 
of other witnesses, and is also in material respects con- 
tradicted by witnesses, especially by that of Pivonka on 
cross-examination by defendants' attorney, in bis deposi- 
tion put in evidence on the trial. Taking it. altogether, it 
appears substantially proven that upon the completion of 
Pivonka's house, in the latter part of the summer or early- 
fall, there were several thousand brick, and a quantity of 
sand and lumber, left over from the building, which were 
hauled to and deposited on the lot in question. It also ap- 
pears that the tool and lime house, having been used for stor- 
age at the site of Pi vonka's brick house, remained there until 
objected to by the occupants of the house as an unsightly 
incumbrance, and was then removed to the lot in litigation, 
where it was set up in its original shape, reduced to ten 
feet proportions. When this was done is left in doubt, 
from the testimony, but I think it may be admitted to 
have taken place before October 23, 1885. 

Sections 3 and 6 of chapter 32, Compiled Statutes, usu- 
ally called the statute of frauds, provides that "No estate 
or interest in land other than leases for a term not exceed- 
ing one year * * * shall hereafter be created, granted, 
assigned, or surrendered, or declared unless by act or 
operation of law, or by a deed or conveyance in writing, 
subscribed by the party creating, granting, assigning, 
surrendering or declaring the same. 



Vol. 30] SEPTEMBER TERM, 1890. 485 



Hnnt Y. Llpp. 



'^Sec. 6. Nothing in this chapter contained shall becon- 
stnied to abridge the powers of the court of chancery to 
compel the specific performance of agreements in cases of 
part performance." 

Mr. Pomeroy, in his work on Contracts, at section 107, 
says: "In a suit to enforce the specific performance of a 
verbal contract embraced within the statute of frauds, two 
distinct facts are established by parol evidence — tiie acts of 
part ])erformance, and the terms of the agreement itself. 
According to the theory upon which equity proceeds, in 
such cases, the part performance must be first proved, in 
order to fulfill the condition precedent for letting in parol 
evidence of the agreement; and this is not a mere question 
of the order of proofs — it involves the very principle of the 
jurisiliction. As soon as a sufficient part performance is 
made out, the plaintiff may go on and show the terms of 
the verbal contract There are, therefore, two distinct 
branches of parol evidence, with a distinct fact to be es- 
tablished by each, but proceeding in a fixed order of time, 
and of antecedent and consequent; not, however, exactly in 
the order of cause and effect. * * * The true rule is, 
that the acts of part performance must be. such as show 
tliat some contract exists between the parties; that they 
were done in pursuance thereof, and that it is not incon- 
sistent with the one alleged in the pleading. Whenever 
acts of .part performance are made out, which thus point 
to a contract, the door is opened, and the plaintiff may in- 
troduce additional parol evidence directed immediately to 
the terms of the contract relied upon." 

The defendant Lipp, doubtless, sought to prove his 
possession of the lot for two distinct purposes : first, as a 
part performance of the contract for its purchase, as set out 
in the |ietition ; and, second, such contract of purchase and 
its part performance, being proved, as notice to the plaintiff 
of his rights under such contract. Was his proof sufficient 
for both or either of these purposes? And, first, if the 



486 NEBRASKA REPORTS. [Vol. 30 



Hunt Y. Lipp. 



action were between Lipp and Pivonka would it be suffi- 
cient? This possession (or the evidence of it), as we have 
seen, consisted in the deposit of building material and tools 
thereon. This material was not intended to be used in the 
construction of a building on the lot, but to betaken away, 
and was, in fact, most or all of it taken away to other 
parts of the town where defendant had use for it, and used 
in the construction or reparation of buildings on other 
lots. Doubtless its position on the lot indicated the true 
purpose for which it was deposited there. 

The author above cited, in the next succeeding section, 
says: '^He [the defendant] must first prove acts done by 
himself, or on his behalf, which point unmistakably to a 
contract between himself and the defendant [Pivonka] 
which cannot, in the ordinary course of human conduct, 
be accounted for in any other manner than as having been 
donie in pursuance of a contract, and which would not have 
been done without an existing contract.'^ 

It cannot be said that the placing, or storing, of these 
building materials and tools upon this lot by Lipp pointed 
unmistakably, or at all, to a contract by the owner for the 
sale of the lot to Lipp. On the contrary, it pointed as 
well to that permissive use of the lot for temporary and 
convenient purposes, not amounting to permanent im- 
provement or use, which the owners of unused lots or 
parcels of land in this country generally allow to their 
neighbors. But afler all, this branch of the discussion 
leads us to this : Did the placing of these things on the lot 
amount to the taking of the exclusive possession of the lot 
by Lipp ? and this I think is the true test. It is worthy 
of note that there is no evidence that Lipp himself was 
ever actually on the lot, except, possibly, at one time when, 
as claimed by Lipp, and denied by Pivonka, they two, 
with three other men, walked out from Pivonka^s saloon 
and looked at the lot. There was nothing to indicate to 
whom the building material, or tool house^ or box belonged ; 



Vol. 30] SEPTEMBER TERM, 1890. 487 



Hunt Y. LIpp. 



and as none of the material ever was^ or was designed to 
be, built into permanent improvements, it is presumable 
that there was nothing in their position, or appearance, as 
placed and situated upon the lot, to indicate the intention 
of anybody so to use them ; and hence I conclude that the 
mere ownership of these materials deposited upon the lot 
did not amount to the exclusive possession of the lot, 
within the meaning of the law. But if it be granted, for 
the sake of the brgument, that Lipp was in the possession 
of the lot, what follows? First, according to the rule laid 
down by Pomeroy, in the section above cited, the proof of 
possession or other act of part performance of the contract 
is necessary as a condition precedent to let in evidence of 
a verbal contract under and in pursuance of which such 
part performance was made, and to whicii it must be ex- 
clusively referable. And, as between the original parties 
to the contract, that is, I think, the sole office of the proof 
of possession. But, as between a party claiming land 
under a verbal contract of sale and a subsequent purchaser, 
the possession of the land by such claimant, at the time of 
such subsequent purcliase, is notice to such subsequent 
purch&ser of the verbal contract. In order to perform 
this latter office such possession must be visible, open, and 
exclusive. 

I know of no case, nor has any been cited, in which the 
mere deposit* of building material or other chattels upon 
land has been held to be |)OSsession, or evidence of posses- 
sion, or of part performance of a verbal contract for the 
sale of land, in view of the statute of frauds. In our 
early case, Poland v, (7 Connor, 1 Neb., 50, it- is said: 
"To take such a case out of the statute, the po&session of 
the vendee must be by acts clear, certain, and definite in 
their object, and having reference to the contract. * * * 
Using a lot otherwise vacant and adjoining the Vendee's 
warehouse for storing lumber, wagons, and like articles for 
himself, i)is firm, and others who have placed the same in 
his hands for sale on commission, is not such possession as 



488 NEBRASKA REPORTS. [Vol. 30 



Hunt Y. Lipp. 



will take the case out of the statute/' In the later case of 
of Baker r. WisweU, 17 Id., 52, it is said : "The acts of part 
j>erforiTiance that take the case out of the statute are actual 
possession and the construction of valuable improvements, 
or perhaps, in some cases, as where tlie land was wild, cul- 
tivation," These cases, so far as they were intended to go, 
doubtless, correctly express the law. 

It is not deemed necessary to discuss the question as to 
whether the payment of a part or the \^hole of the pur- 
chase price is suflScient to take a verbal contract for the 
sale of land out of the opemtion of the statute of frauds. 
As we have seen, there is no sufficient evidence of payment 
in the case before us. Lipp claims that he paid the agreed 
• price for the lot, partly by digging and bricking up a well 
for Pivonka, and partly by the application of money due 
him from Pivonka for the erection of a brick dwelling 
house. This payment and application of money is denied 
by Pivonka. Upon this evidence the trial court found 
against Lipp, and I am unable to say that such finding 
was wrong. Upon the whole case, there is a lack of clear, 
satisfactory evidence of the fact and terms of the verbal 
conti^r^, as set out in the petition, as well as of its part 
perlbruiance, either by the taking of the possession of the 
lot by Lipp pursuant to such contract, or of either whole 
or part payment of the contract price. It is therefore 
deemed unnecessary to discuss the questions presented as to 
the etfect of proof of possession, or of payment in whole 
or in part when relied on as part performance of a verbal 
contract of sale; nor that of the right of the holder of 
one of two equitable titles to buy in the outstanding legal 
title and thereby cut off the equity of his opponent. 

I have examined the cases of Lipp v. Himty 25 Neb,, 91, 
and of Same v. Same, 29 Neb., 256, and find nothing in 
either inconsistent with the above. 

The judgment of the district court is 

AfFIRM£D. 

The other judges concur. 



Vol. 30] SEPTEMBER TERM, 1890. J ^9 



Thompson v. T i«iinpM»ii. 



John Thompson, appellant, v. James Thompson, [g ^ 

APPELLEE. 30 4891 

53 491 1 

[Filed SEPTEaiBBB 30, 1890.] 

1. ConditioiialDeed: Agreement to RBcoNYBr: Disability. 

One T., a man Dearly eighty years of age, was desirons of ob- 
taining a loan of money on a qnarter section of land, bnt the 
loan agent objected on the ground that the company he repre- 
sented would not make a loan to a person of great age. The 
loan agent thereupon sngKested that the land be conveyed to J., 
a son of T., a man aboat forty years of age, who would pro- 
cure the loan and give the security. This course was pursued 
and the loau obtained. Ifeld^ That a preponderance of the testi- 
mony established the fact that the conveyance to J. was not 
intended to be absolute, but to enable him to effect the loan; 
and, in an action by the father thereafter brought, J. would be 
compelled to recouvey, subject to the security for the loan. 

2. Wills : Admissibility in Evidence. Before the death of the 

testator, his will is not admissible in evidence to show title in 
a devisee. 

3. Supreme Court : Death of Pabty Afteb Sxtbmission. The 

plaintiff, having died after the cause was submitted to the court, 
but before judgment, and it being apparent that the defendant 
had rights in the premises, the cause is remanded to the district 
court, with leave to the parties to file supplemental pleatiings 
and take further testimony, and for the court to settle the ulti- 
mate rights of the parties. 

Appeal from the district court for Lancaster county. 
Heard below before Field, J. 

Saivyer & Sndly for appellants, cited : 2 Pomeroy, Eq. 
Juris., sees. 943, note 1 ; 928, note 1 ; 955, 956, 957 ; 
WMan V. Whelan, 3 Cow. [N. Y.], 537 ; Tracy v. Socket, 
1 O.St., 54; WUaon v. 5<u6«, Hob. [Eng.], 330a / Stebbing 
f). Spicer, 8 M., G. & S. [Eng.], 827; State v. ViUum, 9 
N. H., 519; ilulock v. Mulock, 31 N. J. Eq., 594; Thorn- 
ton V. Ogden, 32 Id., 723; Ford v. Harrington, 16 N. Y., 
285; Nichols v. McCarthy, 3 N. E. Kep., 658 ; Lavettc v. 



490 NEBRASKA REPORTS. [Vol. 30 



Thompson y. Thompson. 



Sage, 29 Conn., 589 ; Woodbury v. Woodbury, 2 N. E. Rep., 
90 ; 1 Story, Eq. Juris. [10th Ed.], 194, 195, 197, 307, 310, 
311 ; Bamea v. Brovm^ 32 Mich., 146 ; Seeley v. Price, 14 
Id., 541 ; Rak^s AdmW v. Pope, 7 Ala., 161 ; Hidden v. 
Jordan, 21 Cal., 96 ; Bryant v, Hendrioka, 5 la., 256 ; Judd 
V. Mosley, 30 Id., 425; Laing v. McKee, 13 Mich., 124; 

2 Reed, Stat. Frauds, 542, 555, 582, 596, 643; Ryan v. 
Dox, 34 N. Y.,307; Clark v. Clark, 21 Neb., 402; Han- 
sen V. Berthelsen, 19 Id., 434; Redfidd v. Holland Pur- 
chase Ins. Co,, 56 N. Y., 354. 

Samud J, TutOe, contra, cited: Freeman, Judgments, 
sees. 56, 57, 60, 67; Van Santvoord, Eq. PI., 100; Hen- 
drix V, Rieman, 6 Neb., 523; Anderson v, Anderson, 20 
Wend. [N. Y.], 585 ; Taylor v. Elliott, 53 Ind., 442; 8t<me 
V, Ringer, 4 Heisk. [Tenn.]^ 265; Gallagher v. Mars, 50 
Cal., 23; O'Brien v. Gaslin, 20 Neb., 351; Callanan v. 
Judd, 23 Wis., 343 ; Perkins v. Lougee, 6 Neb., 223 ; 
Pomeroy, Eq. Juris., sec. 1035; GovMe v, Lynde, 114 
Mass., 366 ; Osbom v. Osbom, 29 N. J. Eq., 385 ; Russ 
V. Mebius, 16 Cal,, 350; Perry, Trusts, sec. 164; Stewards 
Exrs. V. Lispenard, 26 Wend. [N. Y.], 303 ; Harmon v. 
Mammon, 47 la., 121; Mulloy v, IngaOs, 4 Neb., 115; 
Cole V. Cole, 21 Id., 112 ; MiUer v. Finn, 1 Id., 288 ; Clark 
V. Tennant, 5 Id., 557; Mo. Valley Land Co, v. Bushnell, 
11 Id., 197; Western Ins. Co. v. Putnam, 20 Id., 331 ; 
Ahlman v. Meyer, 19 Id., 66; Courvoirsier v. Bouvier, 

3 Id., 61; Oresswell v. McCaig, 11 Id., 227; Roddy v. 
Roddy, 3 Id., 96 ; Hansen v. Berthelsen, 19 Id., 433 ; 
AdaTns v. Adams, 79 111., 517 ; Hasshagen v. Hasshagen, 
80 Cal., 514 ; Admrs. of Rasdall v. Rasdall, 9 Wis., 850 ; 
Arnold v. Baker, 6 Neb., 136. 

Maxwell, J. 

This action was brought by John Thompson, Sr., against 
his son, the defendant James Thompson, to obtain a decree 



Vol. 30] SEPTEMBER TERM, 1890. 491 



Thompson y. Thompson. 



that the defendant had no estate or interest in a quarter 
section of land described in the ))etitiony and for such other 
and different relief as to the court might seem proper. 

On the trial of the cause the court below found the 
issues in favor of the defendant and dismissed the action. 

The testimony tends to show that in the year 1881 John 
Thompson purchased a quarter section of land from the 
B. & M. Railway Company. The purchase was made by 
John Thompson, Jr., and for his father, John Thompson, 
Sr.^ the agreement being taken in the name of John Thomp- 
son. Payments were made upon the land as they accrued, 
and no difficulty occurred between the father and son until 
the year 1886. In the year 1885 the defendant cultivated 
a portion of the land, and some difficulty seems to have 
occurred between him and his brother John. This cul- 
minated in the year 1887, when it was agreed that John 
should receive $500 for money that he had paid on the 
contract and that thereupon he was to surrender his claim 
to said land. In order to obtain the money to pay the 
balance due to the railway company on the land and to 
John the $500, it was necessary to effect a loan of $1,250. 
Thereupon, John, Sr., his sons John and James, applied 
to Louis Helmer, of Lincoln, for the proposed loan. It 
was stated to Mf. Helmer that the plaintiff, John, Sr., was 
nearly eighty years of age, and he (Helmer) said that his 
company would not make a loan to a person of that age. 
He testifies that he suggested that the land be conveyed to 
James, who was to execute a note and mortgage for the sum 
borrowed. This course was pursued and $1,250 was 
borrowed from Helmer. The B. & M Company was paid 
the balance due on tlie land contract, and $500 to John, Jr. 
In this testimony Helmer is corroborated by John, Jr. 

The defendant contends that the conveyance to him was 
absolute, but fails to deny the material facts testified to by 
Mr. Helmer in regard to the necessity of placing the title 
in his name. Mr. Helmer also testifies that at the time he 



492 NEBRASKA REPORTS. [Vol. 30 

Thompson y. Thompson. 

made the suggestion of a conveyance to James, he also sug- 
gested that James, afler the loan was cfTected, should I'e- 
convey to his father. He is a disinterested witness and a 
business man, and in a case of this kind his testimony is 
entitled to great weight. 

The clear weight of testimony sustains the grounds of the 
petition, that the conveyance to James was not absolute, but 
for the purpose of obtaining a loan, and that there was no in- 
tention to make an absolute conveyance to the defendant The 
judgment of the district court therefore must be reversed. 

On the trial of the cause tlie will of the plaintiff John, 
Sr., was introduced in evidence, showing that the father in- 
tended to leave this land to the defendant. The father was 
living at this time, and the will was clearly inadmissible. 

After the testimony was taken in the case, and ailer the 
case was submitted to the court, but before a decision was 
rendered — the case apparently having been talcen under 
advisement — the father died. The survivors, however, stip- 
ulated that judgment might be rendered as of the day of 
trial. The judgment was so rendered. 

It is suggested that the father left a will disposing of 
his estate. If so, the law has provided a tribunal to de- 
termine the validity of such will, and until so determined, 
it cannot be considered by this court. It is apparent, how- 
ever, that the defendant has some interest in the land in 
controversy, but just what that interest is we have no 
means of determining. It is probable, too, that third par- 
ties have an interest in the land, as the defendant seems to 
have erected a dwelling house thereon. 

The judgment of the district court is reversed, and the 
cause remanded to the district court with leave to the par- 
ties to file supplemental pleadings ; and the court may take 
further testimony and make further findings thereon aud 
decide the ultimate rights of the parties. 

Judgment accordingly. 

The other judges concur. 



Vol. 30] SEPTEMBER TERM, 1890. 493 



State, ex rel. Pennell, y. Armstrong. 



State, ex rel. Edson Pennell, v. C. D. Armstrong, 

[FiLSD Septembsb 30, 1890.]* 

1. New Counties : Formation: CoNFLic?riNG Propositions. A 

ooonty board cannot lawfVilly submit, to be voted npon at the 
same election, two propositions to erect from a ooantj two 
new coanties, when the territory described in one proposition 
embraces a part of that included in the other. When conflict- 
ing petitions for the submission of the question of creating new 
counties are presented, it is the duty of the county board to 
grant the petition that is first filed, provided it meets all the re- 
quirements of the law, and refuse to submit the others. 

2. : : Area. New counties cannot be formed so as to 

reduce the county from which they are created to a less area than 
the constitutional limit 

Original application for mandamus. 

J. C. Crawfordy for relator, cited : StaJte v. Newman, 24 
Neb., 40; People v. Auditors, 41 Mich., 223 ; Dillon Mun. 
Corp. [3d Ed.], sees. 825, 830, 845-6. 

E. F. Oray, contra. 

NORVAL, J. 

This is an application for a writ of mxmdamus to re- 
quire the board of supervisors of Knox county to submit 
to the electors of said county the proposition to erect the 
county of Union out of the territory now within the 
boundaries of the county of Knox. On the 9th day of 
July, 1890, a petition, signed by the relator and 606 other 
legal voters of Knox county, was filed with the county 
clerk of that county, and on July 15, 1890, another peti- 
tion, signed by thirty-one electors of said county, was filed 
with said clerk, which petition prayed that the respond- 
ents, the board of supervisors, submit to the electors of 



494 NEBRASKA REPORTS. [Vol. 30 



Sutle, ex rel. Penpell, t. Arms^roug. 



said county at the next general election a proposition to 
erect the county of Union out of the two southern tiers of 
government townships of Knox county. All of said pe- 
titioners were residents and legal voters of the territory 
out of which it is proposed to erect the new county, and it is 
alleged that they constitute a majority of the electors resid- 
ing in said territory. It also appears that the proposed 
Union county comprises the extent of territory required by 
the constitution and laws, and the remainder of Knox 
county has more territory than is required by the constitu- 
tion and laws. • 

On July 14 thirty of the persons who signed the above 
petitions filed with the county clerk a remonstrance, and 
requested that their names be erased from said petitions. 
On July 1 5 these petitions were presented to the board of 
supervisors while in regular session, and were by said 
boaixl referred to a committee appointCvl from the member- 
ship of the board, to ascertain and report to the full board 
whether said petitions contained the names of a majority of 
the electors residing in the proposed Union county. On 
the next day the committee reported to the board that said 
petitions contained the names of a majority of the legal 
voters residing in the territory proposed to be stricken from 
Knox county, after deducting the names of the thirty peti- 
tioners who asked to have their names strickep from the 
petitions. The respondents refused to grant the prayer of 
said petitions. 

On July 14, 1890, a petition was filed with the county 
clerk signed by 259 electors of Knox county, and on July 

15 there was filed with said clerk another petition signed 
by thirty-seven legal voters of said county praying for the 
erection of Alliance county out of three of the eastern 
tiers of government townships of Knox county. On July 

16 the respondents ordered submitted to a vote of the peo- 
ple at the next general election the proposition to create 
Alliance county, which county includes in its boundaries a 



Vol. 30] SEPTEMBER TERM, 1890. 495 



Stale, ex rel. Pennell, t. Armstrong. 



portion of the territory proposed to be included in the 
county of Union. The relator prays for a mandamus to 
require the respondents to submit to a vote^ the proposition 
to create Union county^ and compel them to recall tho 
proposition to erect Alliance county. 

Sections 1^ 2^ and 3 of article 10 of the constitution are ai 
follows: 

"Section 1. No new county shall be formed or estab* 
lished by the legislature which will reduce the county, or 
counties, or either of them, to a less area than four hun- 
dred square miles, nor shall any county be formed of a less 
area. 

"Sec. 2. No county shall be divided, or have any part 
stricken therefrom, without first submitting the qiiestion 
to a vote of the people of the county, nor unless a majority 
of all the legal voters of the county voting on the question 
shall vote for the same. 

" Sec. 3. There shall be no territory stricken from any 
organized county unless a majority of the voters living in 
such territory shall petition for such division, and no terri- 
tory shall be added to any organized county without the 
consent of the majority of the voters of the county to 
which it is proposed to be added.'^ ♦ * ♦ 

Section 10 of article 1, chapter 18, of the Compiled 
Statutes of 1889 provides that, "Whenever it is desired to 
form a new county out of one or more of the then existing 
counties, and a petition praying for the erection of such 
new county, stating and describing the territory proposed 
to be taken for such new county, together with the name 
of such proposed new county, signed by a majority of the 
legal voters residing in the territory to be stricken from 
each county or counties, shall be presented to the county 
board of each county to be affected by such division, and 
it appearing that such new county can be constitutionally 
formed, it shall be the duty of such county board, or county 
boards, to make an order providing for the submission of 



496 NEBRASKA REPORTS. [Vol. 30 



State, ex rel. Pennell, v. Armstrong. 



the question of the erection of such new county to a vote of 
the people of the counties to be affected, at the next suc- 
ceeding general election, of which the notice shall be given, 
the votes canvassed, and the returns made as in case of 
election of county ofiBcers, and the form of the ballot to 
be used in the determination of such question shall be as 
follows: 'For new county,' and ^Against new county/" 

It is conceded by the respondents that the petitions pre- 
sented to the county board for the creation of Union 
county meet all the requirements of the above quoted sec- 
tions of the constitution and the statutes excepting one. 
It is insisted by the respondents that it does not appear 
that these petitions contain the signatures of a majority of 
the qualified voters residing in the territory out of which 
it is proposed to erect the new county. If this be tnie, it 
is an insurmountable objection to the granting of the relief 
demanded by the relator, for, without the requisite number 
of petitioners, the county board would be without juris- 
diction to. act. 

The relator, in his petition for mandamus, alleges that 
the petitions submitted to the county board, asking for the 
creation of Union county, contained the signatures of a 
majority of the l^al voters residing in the proposed county, 
and that there are not more than 1,000 legal voters in said 
territory. 

The respondents in their answer "deny that the two pe- 
titions for the creation of Union county contained any 
greater number than 607 names after deducting the names 
of those who asked to have their names stricken therefrom 
in their said remonstrance, and deny that said number was, 
at the time of their action thereon aforesaid, or now is, a 
majority of the legal voters residing in the territory com- 
prising the said proposed Union county ; deny that the 
proposed Union county did not, at the time of filing said 
petitions, or does not now, contain more than 1,000 legal 
voters." If there were before us nothing but the petition 



Vol. 30] SEPTEMBER TERM, 1890. 497 



State, ex rel. Penaell, v. Armstrong. 



and answer, the denials in the answer would compel the 
dismissal of the action. Does the proof show that the 
petitions for the creation of Union county were signed by 
a majority of the legal voters residing therein? It is al- 
leged in the petition, and not controverted by the answer, 
that the proposed Union county comprises the townships 
of Walnut Grove, Logan, Verdigris, JeflFerson, Miller, 
Creighton, Valley, Central, Cleveland, Lincoln, and the 
south thirty-six square miles of Dolphin and the south 
eighteen square miles of Washington and Morton. There 
are attached to both the petition and the answer certified 
copies of the abstracts of the total votes cast in said town- 
ships at the general election held in November, 1889, for 
the office of judge of the supreme court, and for and 
against township organization, from which abstracts it ap- 
pears that the total vote cast in said townships for judge 
of the supreme court was 1,019, and 909 votes were cast 
therein on the question of township organization. These 
abstractis include the votes cast in Dolphin, Washington, 
and Morton townships by those residing in said township 
north of the north line of the proposed Union county. 
There is also attached to the answer a certified copy of the 
abstract of the vote cast in said townships at a special elec- 
tion held therein on August 13, 1887, which shows the 
total vote cast at that election to be 1,334. It appears from 
this abstract that one-third of Central township and two- 
thirds of two other townships as then constitut^id are not 
included in the territory comprising the proposed Union 
county. Deducting from the total vote cast at that election 
fifty votes, being one-third of the votes cast in Central 
township, and ninety-four, being two-thirds of the votes 
cast in the two other townships, would leave 1,190 votes 
cast in 1887 in the territory comprising the proposed new 
county of Union. All of these abstracts of votes were 
before the board of supervisors, at the time they declined 
to submit to the voters the question of creating Union 
32 



498 NEBRASKA REPORTS. [Vol. 30 

Stale, ez rel. Pen Dell, v. Arxnstronj:. 

county. But that is not all. There were likewise pre- 
sented to the board of supervisors before they took action 
upon the petitions, the affidavits of five residents of 
Creighton township in Knox county, wherein each deposed 
that all the names signed to the petition praying for the 
erection of Union county are of legal voters residing in 
said territory, and constitute a majority of all the legal 
voters residing therein, and that there is not to exceed 
1,000 legal voters residing in the proposed county. The 
abstracts of votes and these affidavits constituted the en- 
tire testimony before the county board, and on the hearing 
in this court. Without any showing to the contrary, this 
testimony was sufficient to establish that the proposed 
Union county did not contain more than 1,000 legal voters. 
In addition to this, we have the report of the committee to 
whom the board of supervisors referred the Union county 
petitions. This report finds that the petitions were signed 
by a majority of the electors residing in the territory com- 
prising the proposed new county. The two Unioii county 
petitions contained the names of 607 l^al voters after de- 
ducting the thirty signers who subsequently requested that 
their names be stricken from the petitions. This is a ma- 
jority of all the legal voters residing in the territory com- 
prising the proposed county. 

It is urged that it was not for the best interests of the 
citizens of Knox county that the proposed Union county 
should be created, and that the petitions for the creation 
of that county conflict with those granted by the respond- 
ents for the erection of Alliance county, in that part of 
the same territory is included in both sets of petitions. 
The law is mandatory. When a petition is presented to a 
county board asking for the creation of a new county 
which in all respects complies with the law, and contains 
the requisite number of petitioners, it is the duty of tlie 
county board to submit the question to a vote of the peo- 
ple of the county. The law confers no discretion in the 
matter upon the county board. 



Vol. 30] SEPTEMBER TERM, 1890. 499 



Bute, ex rel. Pennell, v. Armstroii^. 



Was it the duty of the respondents to submit to a vote 
the proposition to create Union county after having or- 
dered the submission of the proposition to create Alliance 
county? The authority of the county board to submit at 
the same election more than one proposition to create new 
<x>unties was sustained by this court in the case of State v. 
Newman^ 24 Neb.^ 40. It appears from the statement of 
facts in that case that the county board of Cheyenne 
county had submitted to the voters of that county the 
proposition to create the,counties of Kimball, Deuel, Banner, 
and Scott's Bluff out of the territory embraced in Chey- 
enne county. Before the general election was held, at 
which said questions could be voted upon, a proper peti- 
tion was presented to the county board of Cheyenne county 
praying that the proposition to establish the county of 
Potter be submitted to a vote at the same election. The 
oounty board refused to permit a vote to be taken thereon. 
On application to this court a mandamvs was issued 
requiring the county board to submit the question of the 
proposed new county of Potter to a vote of the electors of 
Cheyenne county. It is stated in the syllabus in that case 
that *^ When it is sought to erect from a county more than 
one new county, and petitions for the submission of the 
proposition to erect such new counties are severally pre- 
sented, they may be separately submitted at the same eleo- 
tion, without reference to the number of propositions to 
be voted upon thereat." We adhere to that decision. 
But the facts in that case are so different from those pre- 
sented by the record before us, that that decision does not 
afford us any assistance in determining whether the propo- 
sitions to create Union and Alliance counties could both 
be lawfully submitted to a vote at the same election. It 
will be noticed that each of the proposed new counties 
<x>ntains territory embraced in the other. To be effective, 
it is clear but one of the propositions can be adopted. The 
questions are independent, and we are not aware of any 



500 NEBRASKA REPORTS. [Vol. .30 



\ 



\ 



Btate, ex rel. Pennell. ▼. AnnstroDg. 



law or statute that would prevent an elector from voting 
for both propositions. If each should receive the requisite 
vote, being irreconcilable and conflicting, both would be 
defeated. The legislature never intended that such con- 
flicting propositions should be submitted to a vote at the 
same election. It is certain that a fair construction of the 
language used in section 10 of the statute, above quoted, 
will not sanction the submission of such conflicting peti- 
tions. 

There is another very good reason why both propositions 

could not legally be submitted at the same election. The 

::* *^Z: territory embraced in the proposed new counties of Union 

and Alliance would reduce the area of the county of Knox 
below that required by the constitution. The constitution 
provides that no new county shall be formed which will 
■ • ^ reduce the county to a less area than four hundred 

[^•t«^ square miles, nor shall a county be formed of a less area- 

■j«» It logfcally follows that the petitions to create new counties 

cannot be submitted when the territory included therein 
will leave the original with an area less than the constitu- 
tional limit. 
Zmt^ Having reached the conclusion that the county board 

^iZ^ had no authority to require a vote to be taken on both 

^JJJ propositions, the question arises, Which one should have 

^J been submitted to a vote? It is conceded that the peti- 

5* tions for the creation of Alliance county were signed by 

a majority of all the legal voters residing in the terri- 
tory embraced in the petitions; that such territory has 
over four hundred square miles, and that the remainder 
of Knox county was more than the constitutional require- 
ments. The question of creating Alliance county could, 
therefore, have lawfully been submitted had not the peti- 
tions praying for the formation of Union county been 
presented. The record shows that the Union county peti- 
tion, containing 607 names, was filed with the county clerk 
of Knox county on July 9, and after deducting the names 



Vol. 30] SEPTEMBER TERM, 1890. 501 



state, ex rel. Hull, v. Walker. 



of those who signed a remonstrance contained a majority 
of the voters residing within the proposed Union connty. 
The first Alliance county petition was not filed until July 
14, and it did not contain sufficient signers. On the day 
following a second Union county petition was filed, also 
another petition for the creation of Alliance county. Thus 
it will be seen that those who petitioned for the erection of 
Union county would have been entitled to have had that 
question submitted had the board been in session before the 
petitions for the creation of Alliance county were filed. 
It makes no difierence that the petitions last filed were first 
circulated and signed, as no duty rested upon the respond- 
ents until filed. The fact that the board of supervisors 
have submitted the Alliance county proposition does not 
relieve them of the obligation to submit the proposition 
first presented to the board. The respondents had no au- 
thority to submit the question of creating Alliance county. 
A peremptory writ of mandamus will issue as prayed. 

Writ allowed. 

The other judges concur. 



State, ex rel. L. O. Hull, v. George Walker. 

[Filed Septembkb 30, 1890.] 

Ctounty Attorney: Appointment: Validity. Section 25 of 
chapter 7, Compiled Statutes, 1889, aathorizes the county board 
to fill a yacancy in the office of county attorney by appoint- 
ment. Held^ That an appointment made by entering the fact 
upon the records of the proceedings of the county board is suf- 
ficient. 

Original information in nature of qtu) warranto. 



so 5011 
33 269 



500 NEBRASKA REPORTS. [Vol. 30 



State, ex rel, Pennell, v. ArmstroDg. 



law or statute that would prevent an elector from voting 
for both propositions. If each should receive the requisite 
vote, being irreconcilable and conflicting, both would be 
defeated. The legislature never intended that such con- 
flicting propositions should be submitted to a vote at the 
same election. It is certain that a fair construction of the 
language used in section 10 of the statute, above quoted, 
will not sanction the submission of such conflicting peti- 
tions. 

There is another very good reason why both propositions 
could not legally be submitted at the same election. The 
territory embraced in the proposed new counties of Union 
and Alliance would reduce the area of the county of Knox 
below that required by the constitution. The constitution 
provides that no new county shall be formed which will 
reduce the county to a less area than four hundred 
square miles, nor shall a county be formed of a less area- 
It logfcally follows that the petitions to create new counties 
cannot be submitted when the territory included therein 
will leave the original with an area less than the constitu- 
tional limit. 

Having reached the conclusion that the county board 
had no authority to require a vote to be taken on botli 
propositions, the question arises. Which one should have 
been submitted to a vote? It is conceded that the peti- 
tions for the creation of Alliance county were signed by 
a majority of all the legal voters residing in the terri- 
tory embraced in the petitions; that such territory has 
over four hundred square miles, and that the remainder 
of Knox county was more than the constitutional require- 
ments. The question of creating Alliance county could, 
therefore, have lawfully been submitted had not the peti- 
tions praying for the formation of Union county been 
presented. The record shows that the Union county peti- 
tion, containing 607 names, was filed with the county clerk 
of Knox county on July 9, and after deducting the names 



Vol. 30] SEPTEMBER TERM, 1890. 501 



state, ex rel. Hull, v. Walker. 



of those who signed a remonstrance contained a majority 
of the voters residing within the proposed Union county. 
The first Alliance county petition was not filed until July 
14, and it did not contain sufficient signers. On the day 
following a second Union county petition was filed, also 
another petition for the creation of Alliance county. Thus 
it will be seen that those who petitioned for the erection of 
Union county would have been entitled to have had that 
question submitted had the board been in session before the 
petitions for the creation of Alliance county were filed. 
It makes no difference that the petitions last filed were first 
circulated and signed, as no duty rested upon the respond- 
ents until filed. The fact that the board of supervisors 
have submitted the Alliance county proposition does not 
relieve them of the obligation to submit the proposition 
first presented to the board. The respondents had no au- 
thority to submit the question of creating Alliance county. 
A peremptory writ of mandamus will issue as prayed. 

Writ allowed. 

The other judges concur. 



State, ex rel. L. O. Hull, v. George Walker. 

[Filed September 30, 1890.] 

Ooimty Attorney: Appointment: VALiorrY. Section 25 of 
chapter 7, Compiled Statutes, 1889, aathorizes the county board 
to fill a vacancy in the office of county attorney by appoint- 
ment. Heldy That an appointment made by entering the fact 
upon the records of the proceedings of the county board is suf- 
ficient 

Original information in nature of quo warranio. 



90 501 

S3 209 



602 NEBRASKA REPORTS. [Vol. 30 



state, ex rel. Hull, t. Walker. 



Albert W. OriteSy for relator, cited: Ottenstein v. Air 
paugh, 9 Neb., 240; Ba^szo v. Wallace, 16 Id., 293; Ma- 
lick V. McDermots, 25 Id., 267; State v, Buffalo Co., 6 Id., 
460; Kemerer v. State, 7 Id., 132; Slate v. Harrison, 113 
Ind., 434; Johnston v. Wilson, 2 N. H., 202; Slate v. 
Sheldon, 10 Neb., 452; Thomas v. Burrus, 23 Miss., 550; 
People V. Woodinxff, 32 N. Y., 355; People v. Benfield, 46 
N. W. Rep. [Mich.], 135;. McGregor v, Saperuisors, 37 
Mich., 388; Mechein, Pub. Officers, sec. 266; People v. 
VanSlyck, 4 Cow. [N. Y.], 324; People r. FUzsimmons, 
68 N. Y., 514; Hoke v. Field, 10 Bush [Ky.], 144; 
8au:\ders v. Owen, 12 Mod. [Eng.], 199*. 

Alfred Bartow, for respondent, cited : People v. Westonj 
3 Neb., 322; Whiie v. Blum, 4 Id., 561 ; Stale v. Palmer, 
10 Id., 205 ; White v. Lincoln, 6 Id., 514 ; Sexson v. Kelley, 
3 Id., 107. 

NOEVAL, J. 

This is an action of quo wa7Tanto, brought in this court 
in the exercise of its original jurisdiction, to oust the re- 
spondent from the office of county attorney of Sioux 
county, and to install the relator therein. Both relator 
and respondent claim under appointment made by the 
board of county commissioners of the county, to fill a va- 
cancy caused by the resignation of the previous incumbent. 

It is established by the agreed statement of facts that 
E. D. Satterlee, the county attorney of Sioux county, tend- 
ered his resignation to the board of county commissioners 
of said county, which resignation was accepted by the 
board on the 16th day of December, 1889. On the 7th 
day of January, 1890, the board of county commissioners, 
consisting of A. McGinley, James Burke, and Don Mc- 
Weir, met in r^ular session and took the following action, 
■ which was entered upon the commissioners' record, to- wit: 



Vol. 30] SEPTEMBER TERM, 1890. 503 



SUte, ex rel. Hull, r. Walker. 



"Lorenzo O. Hull was appointed county attorney, to fill 
the vacancy caused by the resignation of E. D. Satterlee. 
The clerk was instructed to notify Mr. Hull." 

Pursuant to the instructions of the board, the county 
clerk wrote and delivered to the relator the following 
notice : 

" Harrison, Nebraska, January 7, 1890. 
"Hon. L. O. Hull: You are hereby appointed county 
attorney for Sioux county, Nebraska, to fill vacancy caused 
by the resignation of E. D. Satterlee. 

" By order of the board of county commissioners. 
''Charles C. Jamesow, 

"County Clerk. 
"By R. W.Windsor, 

Dq>uty.'' 

On the same 7th day of January, 1890, the relator took 
the oath of office, which was attached to his official bond, 
and filed the same, with his bond, with the county clerk of 
said county. The same day the board of county commis- 
sioners approved the bond of the relator, and entered a 
minute of such approval upon the record of their proceed- 
ings, and indorsed in writing the following upon the back 
of said bond : 

"Approved by A. McGinly, Don. M. Weir, J. B. Burke, 
county commissioners." 

The. relator at once entered upon the actual performance 
of the duties of the office. On the day that the relator 
received his appointment, the following communication 
was sent to him at the request of the county board : 

"Harrison, Neb., January 7, 1890. 

" Hon. L. O. Hull, County Attorney : You are hereby 
ordered to give your written opinion regarding the bond 
of Conrad Lindeman for county clerk, touching its l^ality 
r^rding its reconsideration and approval. 

" By order of the county commissioners. 



604 NEBRASKA REPORTS. [Vol. 30 



state, ex ral. Hull, t. Walker. 



"A reply is requested by noon January 8, 1890. 

" Chab. C. Jameson, 

*'Qmnb/ Olerk. 
« By R. W.Windsor, 
''Deputy," 

On January 8 the relator delivered to the board an 
opinion, in writing, as requested. On January 9 the term 
of office of Commissioner McGinly expired, who was suc- 
ceeded by John A. Green; and January 11 the tprm of 
office of Commissioner Burke expii'ed, and he was succeeded 
by Charles U. Grove. 

The respondent claims title to the office of county attor- 
ney by virtue of an appointment made by the board of 
county commissioners at a regular meeting held on Janu- 
ary 16, 1890. The record of the said commissioners' pro- 
ceedings in relation to the appointment of the respondent 
is as follows : 
" Harrison, Sioux County, Neb., January 16, 1890. 

" Whereas, On examination of records and papers on file 
it was found that there was no legal appointment of county 
attorney, and therefore the office was considered vacant: 
Motion made by Commissioner Green to proceed to appoint 
a county attorney to fill vacancy. Motion carried. Green 
and Grove voting affirmative. Weir, no. 

" Objection made by Weir to motion on account of having 
an attorney. Motion made by Commissioner Green to ap- 
point George Walker as county attorney. Motion carried. 
Green and Grove voting affirmative. Weir, no. 

" Motion made by Commissioner Green that the appoint- 
ment of George Walker be embodied in the minutes of this 
meeting. M otion carried. Green and Grove voting affirm- 
ative. Weir, no. 

" GEORGE walker's APPOINTMENT. 

" State op Nebraska, 1 
Sioux County." j 
" Whereas, E. D. Satterlee, the duly elected county 



Vol.. 30] SEPTEMBER TERM, 1890. 605 



State, ez rel. Hull, t. Walker. 



attorney of Sioux county, at an election held on the 6th 
day of November, 1888, has tendered his resignation, and 
the same being accepted, by reason of which the office of 
county attorney has become vacant : Now, therefore, we 
hereby appoint Greorge Walker, Esq., county attorney of 
said county, to hold said office until a successor is elected 
and qualified. 

''(Signed) J. A. Green, 

"(Signed) Chas. U. Grove, 

" County Board of Sioux County. 

"Dated this 16th day of January, 1890." 

The forgoing appointment was made in writing, and 
filed in the office of the county clerk of Sioux county. 
The respondent immediately qualified, gave bond, and has 
ever since been exercising the duties of the office, against 
the protest of the relator. 

The main question presented by the record for our de- 
termination is. Was the appointment of the relator to the 
office of county attorney a valid one? 

Sec. 25 of chapter 7, Compiled Statutes, 1889, provides 
that " In case of vacancy in the office of county attorney 
by death, resignation, or otherwise, the county board shall 
appoint a county attorney, who shall give bond,* and take 
the same oath and perform the same duties as the regular 
county attorney, and shall hold said office until his suc- 
cessor shall be elected and qualified." 

The legislature, in 1885, created the office of county 
attorney, and in the same act adopted the alx)ve section, 
providing for the filling of vacancies in that office. The 
power to till such a vacancy is vested in the county board. 
While the section referred to does not prescribe the man- 
ner in which the board shall make the appointment, un- 
doubtedly its action in that regard, like all other proceedings 
of the board, must be recorded by the county clerk in the 
book containing its proceedings^ (Chapter 18, Compiled 
Statutes, 1889, sees. 73, 74; Ollenstein v. Alpaugh, 9 Neb., 



506 NEBRASKA REPORTS. [Vol. 30 



state, ex reL Hull, v. Walker. 



240.) The action of the board of county commissioners 
in appointing the relator, and the approval of his bond, 
was entered upon the official records. 

It is claimed by the respondent that the appointment of 
the relator is invalid, because the members of the county 
board did not make, sign, and file with the county clerk a 
written appointment, separate and distinct from the record 
of their proceedings. This contention of the respondent 
is based upon the provisions of chapter 26 of Compiled 
Statutes, entitled "Elections." Sec. 103 of that cliapter 
provides that vacancies in county and precinct offices shall 
be filled by the county board. This is in harmony with 
the language used in sec. 25, quoted above. Section 105 
of the chapter on elections reads : "Appointments under 
the provisions of this chapter shall be in writing, and con- 
tinue until the next election, at which the vacancy can be 
filled, and until a successor is elected and qualified, and be 
filed with the secretary of state, or proper township clerk, 
or proper county clerk, respectively." 

The chapter on elections became a law in 1879, and at 
that time there was no such an office in this state known 
as county attorney, nor did the legislature provide in that 
chapter {<fr the election of such an officer. Sec. 105 is 
limited in its application to the filling of vacancies in the 
offices mentioned in said chapter 26, and does not in any 
way control the manner of filling vacancies in the office of 
county attorney. The legislature having, by a separate 
act, expressly provided for the filling of vacancies in the 
office of county attorney, the general law on the subject of 
vacancies does not apply to that officer. It is, however, 
believed that the appointment of the relator was made 
within the spirit of section 105. His appointment was in 
writing, and the entering of the fact upon the records of 
the county board was, in effect, a filing of the same with 
the county clerk. , 

We are very clear in the opinion that the relator's ap- 



Vol. 30] SEPTEMBER TERM, 1890, 507 



Martin v. Siatc- 



pointment was legal and valid^ and, having qualified and 
entered upon the performance of the functions of the office, 
no vacancy existed on January 16, 1890, and the appoint- 
ment of the respondent was without authority of law 
The relator is entitled to the office of county attorney ol 
Sioux county, and a judgment of ouster will be rendered 
against the defendant. 

Judgment of ousteb. 

The other judges concur. 



ao M7l 

George Martin v. State of Nebraska. $ ^JSj 

[Filed October 1, 1890.] 

Indiotment. Where the foreman of a grand jnrj indoxaed on 
the indictment the words "True bill/' omitting the letter '*A,'' 
heldy Bnfficient. 

Offevses: Joindbb. In cmo of misdemeanor, several 



distinct offenses of the same kind may be joined in the same 
indictment 

'3. Instruotions are to be construed together, and if, taken as a 
whole, they state the law correctly, they are sofficient. 

4. liiquors: Unlawful Sale bt Aoent. Where intoxicating 
liquors have been sold on Snnday, the principal, althongh not 
personally presout, will be liable, if' his agents, or any one nn- 
thorized by him to sell or give away intoxicating liquor in his 
place of business, violates the law byseliing or giving away snch 
liquors in his place of business on Sunday. 

Error to the district court for Lancaster county. Tried 
below before Chapman, J. 

Chaa. E. Mdgoon^ for plaintiff in error, cited, contend- 
ing that a principal is not criminally liable for sale of 
liquor by an agent, unless express or implied consent is 



508 NEBRASKA REPORTS. [Vol. 30 



Martin t. State. 



shown: 1 Bishop, Cr. Law, sees. 40^-5; 2 Id., sec. 1155; 
Lathrope v. StaUy 51 Ind., 192; 0*Leai*y v. State, 44 Id., 
91 ; Wreidt v. Stat^, 48 Id., 579; Hipp v. State, 5 Blackf. 
[Id.], 149; Com. v. Briant, 142 Mass., 463 ; Com. v. Ste- 
renaon, Id., 466; Com. v. Nichols, 10 Met. [Mass.], 259; 
Anderson v. State, 22 O. St., 305; Mullinix v. People, 
76 III, 215; Keedy v. Howe, 72 Id., 135; Pennybaker 
V. State, 2 Blackf. [Ind.], 484; Parker v. State, 4 O. St, 
564; Seibert v. State, 40 Ala., 60; Barnes v. Stale, 19 
Conn., 398; Etoing v. Thompson, 13 Mo., 132; State v. 
Borgman, 2 Nott. & McCord [S. Car.], 34; Stale v. 
Bohles, 1 Rice [S. Car.], 145; Martin v. McKnigkt, 1 
Overt. [Tenn.], 330; Caldwell v. Sacra, Litt. Select. Cas. 
[Ky.], lis ;Staie v. Mahoney, 23 Minn., 181; 4 Erskine's 
Speeches, 137; Coke, Litt, 152a, 389a; 3 Coke, Inst, 
138. 

Wm. Leese, Attorney Oeneral, contra, cited, contending 
that ignorance on the part of the accused, of sale by bis 
agent, was a mistake of fact which would not excuse a 
violation of the statute : State v. Denoon, 5 S. E. Rep. 
[W. Va.], 315; 1 Whart., Cr. Law, sec. 247; PeopUv. 
Blake, 52 Mich., 566; Pecypk v. Roby, 18 N.W. Rep. 
[Mich.], 360; Biley v. State, 43 Miss , 397; Com. v. Kd- 
ley, 140 Mass., 441; Dudley v. Sautbine, 49 la., 650; 
Fairchth v. State, 73 Ga., 426 ; Com. v. Emmons, 98 Mass., 
6; Halstead v. Stale, 41 N. J. L., 552; StaU v. Harifiel, 
24 Wis., 60. 

Maxwell, J. 

The plaintiff in error was indicted for selling liquor on 
Sunday, the 9th day of October, 1887. There are five 
counts in the indictment 

On the trial of the cause Martin was found guilty on 
the first count and not guilty on the others. 

In the court below Martin moved to quash the indict- 



Vol. 30] SEPTEMBER TERM, 1890. 609 

Martin y. SUte. 

ment because the foreman of the grand jury did not indorse 
thereon the words "A true bill." An examination of the 
indictment, however, shows the words "True bill" to have 
been indorsed thereon and duly signed by the foreman of 
the grand jury. This was sufficient and the omission of 
the letter "A" before the words "True bill" was not a ma- 
terial defect. The motion was properly overruled, there- 
fore. Martin thereupon filed a motion to require the state 
to elect upon which count of the indictment it would rely. 

In Buirell v. State, 25 Neb., 581, it was held that in 
case of misdemeanor several distinct offenses of the same 
kind may be joined in the same indictment. That decis- 
ion was rendered afler a careful examination of the au- 
thorities on the subject, and we believe the decision is correct. 

The offense, as charged in the case at bar, was for selling 
or giving away intoxicating drinks to five different persons 
on the 9th day of October, 1887. The offenses, therefore, 
are of the same kind and were properly joined. The first 
count in the indictment is as follows: 

"The State of Nebraska, 1 
Lancaster County. / 
" Of the October term of the district court of the second 
judicial district of the state of Nebraska within and for 
Lancaster county, in said state, in the year of our Lord 
one thousand eight huudred and eighty-seven, the grand 
jurors, chosen, selected, and sworn, in and for the county of 
Lancaster, in the name and by the authority of the state 
of Nebraska, upon their oaths present that Greo. Martin, 
Mrs. Kate Martin, and Fred Chapman, late of the county 
aforesaid, on the 9th day of Octol)er, in the year of our 
Lord one thousand eight hundred and eighty -seven, in the 
county of Lancaster, and state of Nebraska aforesaid, then 
and there being, did unlawfully and willfully sell and give 
away malt liquors and intoxicating drinks to one J. A. 
Wolf, said 9th day of October, 1887, being the first day of 
the week, commonly called Sunday, without having any 



510 



NEBRASKA REPORTS. [Vol. 30 



Martin v. Slate. 



authority therefor, and contrary to the form of the statute 
in such cases made and provided." 

Tliere is testimony in the record tending to show that, at 
the time stated in the indictment, George Martin was ab- 
sent from the state and therefore, personally, could not 
have furnished the liquor in question. There is also testi- 
mony tending to show that Mrs. Kate Martin, his wife, 
and Fred Chapman, the bar tender, were intrusted by 
him with the sale of intoxicating liquors. 

The court instructed the jury as follows: 

"The defendants, George Martin, Kate Martin, and 
Fred Chapman, are charged in the indictment in this cause 
with unlawfully selling and giving away intoxicating liq- 
uor on the 9th day of October, 1887, said 9th day of Oc- 
tober being the first day of the week, commonly called 
Sunday, contrary to the laws of the state of Nebraska. 

" 2d. The section of the statute upon which this indict- 
ment is founded against defendants reads as follows: 
'Every person who shall sell or give away any malt, spir- 
ituous, and vinous liquors on the day of any general elec- 
tion, or at any time during the first day of the week, 
commonly called Sunday, shall forfeit and pay for every 
such offense the sum of one hundred dollars/ 

"3d. You are instructed that if you find from the evi- 
dence that the defendant, George Martin, or his agent and 
bar keeper, Fied Chapman, or his wif