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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<e,
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 8g2|
» 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 wife, Kate Martin, sold
or gave away intoxicating liquors to any person or per-
sons on the 9th day of October, 18^7, as charged in the
indictment, your verdict should be guilty as to the defend-
ant or defiendants so giving away or selling such intoxi-
cating liquors on said 9th day of October, 1887.
"4th. You are further instructed that under the law in
force in this state it makes no difference whether the de-
fendant, George Martin, was personally present in his
place of business when intoxicating liquors were sold con-
trary to law. If you find from the evidence that his
Vol. 30] SEPTEMBER TERM, 1890. 511
Martin y. State.
agents, or any one authorized by him to sell or give away
intoxicating liquors in his place of business, did violate the
law by selling intoxicating liquors, beer or whisky, in his
plaoe of business on the Sabbath day, as charged in the in-
dictmenty said George Martin, defendant, would be liable
for such violation of the law, and, upon conviction thereof,
would be subject to the penalty imposed by the statute.
^^5th. In order to find the defendant or defendants
guilty, it is only necessary that you believe from the evi-
dence, beyond a reasonable doubt, that the defendant, or any
one of the defendants, sold or gave away intoxicating liq-
uors on the 9th day of October, 1887, as charged in the
indictment.
"6th. You are instructed that the law presumes the
defendants innocent until proven guilty, and it is incumbent
upon the state to prove, beyond a reasonable doubt, that the
defendant, or his agents or servants, or any one authorized
by him, did sell or give away intoxicating liquors as
charged in the indictment; and you are instructed that the
state must establish by a preponderance of the evidence
each particular averment contained in the indictment, be-
yond a reasonable doubt, and that unless each material
averment of fact contained in the indictment is established
beyond a reasonable doubt, the defendants are entitled to
an acquittal at your hands.
" 7th. Yon are the sole judges of the evidence submitted
for your consideration, and if, after carefully considering the
same, you find the defendant or defendants guilty, as charged
in the indictment, your verdict should be guilty as to such
defendant; or if any one of them have not violated the law,
as charged in the indictment, it is your duty to acquit."
Objections are made to the fifth paragraph ; but the
instructions are to be construed together as a whole, and,
when so construed, it is apparent that the question of
agency was properly submitted to the jury. It was not
necessary for Mr. Martin to be personally present in his
512 NEBRASKA REPORTS. [Vol. 30
Lindsay v. Omaha.
place of business when intoxicating liquors were sold con-
trary to the law. If, from the evidence, the jury should
find that his agents, or any one authorized by him to sell
or give away intoxicating drinks in his place of busi-
ness, did violate the law by selling or giving away intoxi-
cating drinks in his place of business on Sunday, the law
will hold him responsible, and the penalty wall fall upon
him as well as those who were acting under him. The
question of such authority was fully submitted to the jury,
and the judgment is sustained by the evidence, and is
Affirmed.
The other judges concur.
M. S. Lindsay, appellant, v. City of Omaha,
APPELLEE,
[Filed Octobee 7, 1890.]
1. Municipal Corporations: Vacated Streets: Title. L.
was the owner of and resided in his dwelling house apon two ad-
joining lots of McCormick's addition to the city of O., bounded
north by Harney street, east by Twenty-ninth (Twenty-
eighth) street, and'sonth by Half Howard street. The streets
and blocks of the addition, as laid out and platted, did not oor-
• respond with those of the adjacent portions of the city pre-
vioasly laid out and platted. In order to correct and remedy
this irregularity and inconyenience, tBe city, by ordinance,
closed Twenty-eighth street and opened Twenty-ninth avenne
through said addition west of the two lots and dwelling of L.
in such manner as left a strip eight feet wide between the west
one of the two lots and Twenty-ninth avenue; whereupon the
city caused the damages to abutting property owners on Twenty-
eighth street, including L., to be appraised, and was about to offer
the Tacated ground of said street at public sale, when L. com-
menced his suit for injunction as to the whole proceedings.
Held J That the fee simple title to the vacated street is in the city
of O.
Vol. 30] SEPTEMBER TERM, 1890. 613
Lindsay t. Omaha.
2. : . The city poeseflsed the power to vacate the street.
3. : . Upon its vacation no title therein passed or re-
verted to L. as the owner of abutting property.
4. : : Damages. As the owner of snch abntting prop-
erty, li. was entitled to damages, in addition to any suffered, as
one of the community at large.
Remedy: Prbsumptiok. The provision by ap-
pnii.^'ement of damages, made by the city, presumed to be ade-
quate for that purpose.
6. The pleadings and fe^tB in evidence fail to present a case for
injunction against the city authorities.
Appeal from the district court for Douglas county.
Heard below before Doane, J.
•
Wm. E. Healey, and M. S. Lindsay^ for appellant, cited :
JSate V. Cincinnati Gas Light Co., 18 O. St., 292 ; 2 Washb.,
Real Prop. [3d Ed.], 2, 3, 20, 445, 458; I Id., 66; 2
Chit. Blackstone, 151; 1 Cruise's Digest, 45; 2 Id., 3;
Cooley, Con. Lira., 531, 555, 556, 658, 867 and note 3 ; State
V. Broton, 3 Dutch. [N. J ], 13 ; McKehcdy v. SeytnouVy 5
Id., 321; Hooker v. Utica Co., 12 Wend. [N.Y.], 371;
Stuyoesant v. Mayor, 11 Paige [N. Y.], 425; Dunham r.
WUIiams, 36 Barb. [N. Y.], 136,163 ; People v. Kerr, 27
N. Y., 196; Heytcard v. Mayor, 3 Seld. [N. Y.], 314;
Kane v. Mayor, 15 Md., 240; People v. White, 11 Barb.
[N. Y.], 26 ; U. 8. V. Harris, 1 Sumner [U. S.], 21 ; 1 Red-
field, Railways [6th Ed.], sees. 12, and 69, subds. 7, 12, 13 ;
Hill V. R. Co., 32 Vt., 73 ; Heynaman v. Blake, 19 Cal., 579 ;
Crawford v. Del., 7 O. St., 459, 469; B. & M. R. Co, v.
Reinhackle, 15 Neb., 279; St. Ry. v. Cumminsville, 14 O.
St., 546, 549 ; 2 Dillon, Mun. Cor. [3d Ed.], 47 and citations,
570 and citations, 587, 650, 675, 683, 712; Sedgwick,
Stat, and Const. Law., 533,534 ; Cam. v. Rush, 14 Pa. St.,
186 ; Com. v. Alburger, 1 Whart. [Pa.], 469 ; Board v.
Edson, 18 O. St., 221 ; Pres. v. Indianapolis, 12 Ind.,620;
Tamer v. Althaus,e Neb., 54; Bartei- v. Cam., 3 Pa., 253;
33
514
NEBRASKA REPORTS. [Vol. 30
Lindsay t. Omaha.
Com. V. R, Co., 27 Pa. St., 339 ; Alleghany v. R Co., 26 Id.,
355 ; Quincij v. Jones, 76 111., 231, 244 ; MUhan v. Sharp,
27 N. Y., 622 ; MaUev of N. Y, Cent R. Co., 77 Id., 255 ;
State V. Mayor, 6 Port. [Ala.], 279 ; C, R. I. & P. R. Cb.
v.'Joliet, 79 111., 34; Sims v. Chattanooga, 2 Lea [Tenn.],
694; Com. v. McDonald, 16 Serg. & R. [Pa.], 390; Rung v.
Shonebi^^ger, 2 Watts [Pa.], 23 ; Penny Lot Landing Case,
16 Pa. St., 79, 94; PhU. v. R. Cb., 58 Id., 253; Burbank
V. Fay, 65 N. Y., 57, 71 ; Jersey City v. Canal Co., 1 Beasl.
[N. J.], 547, 561 ; Simons v. ComeU, 1 R. L, 519; L P.
& C. R. Co. V. Ross, 47 Ind., 25 ; Hoadley v. San Fran-
cisco, 50 Cal., 265; Harmon v. Omaha, 17 Neb., 551;
Denver Circle R. Co. v. Nestor, 15 Pae. Rep., 723; R. Co. v.
Schiumeir, 7 Wall. [U. S.], 272 ; State v. Laverack, 34 N.
J., 201 ; Wood V. San Francisco, 4 Cal., 191 ; Minor v,
San Francisco, 9 Id., 45 ; Fairfield v. Williams^ 4 Mass.,
427 ; U. S, V. Hams, 1 Sumuer [U. S.], 21 ; Leonard t;.
Adams, 119 Mass., 366; A., T. & S. F. R. Co. v. Patch,
28 Kan., 470 ; Hicks v. Ward, 69 Me , 436 ; NewvilU
Road Case, 8 Watts [Pa.], 172; Barclay v. Howell, 6
Pet. [U. S.], 498 ; Davies v. Huebner, 45 la., 574 ; State v.
Culver, 65 Mo., 607; Stout v. R. Co., 83 Ind., 4' 6 ; 2 Kent,
Com., 257, 339 ; West River Bridge Co. v, Dix, 6 How.
[U. S.], 507; Beelcman «;. R. Co., 3 Paige [N. Y.], 73;
Varlck V. Smith, 5 Id., 137; Chas. Riv. Bridge v. M a/ren
Bridge, 11 Pet. [U. S.], 420; Bloodgf.od v. R. Co., 18
Wend. [N. Y.], 56 ; Wilkinson v. Leland, 2 Pet. [U. S.],
627; L. & O. R. Co. v. App/egate, 8 Dana [Ky.], 301 ; Al-
bany St., 11 'Wend. [N. Y.], 151 ; John and Cherry Sts., 19
Id., 676; Taylor v. Porter, 4 Hill [N. Y.], 140; Hey-
ward V. Mayor, 3 Seld. [N. Y.], 314 ; Einlmry v. Conner,
3 N. Y., 511; B. & P. R. Co. v. McComb, 00 Me, 294,
296; Lance's App., 55 Pa. St., 16; Potter's Dwarris Stat-
utes, 371,375; Weepinr/ Water v. Reed, ^"^ Neb., 271, 272;
Day V. Schroeder, 46 la., 546 ; Des Moines v. Hall, 24
Id., 244, 246, 248; Dempsey v. Burlington, 66 Id,, 688;
Vol. 30] SEPTEMBER TERM, 1890. 515
Lindsay y. Omaha.
Jfarshalltoum v, Forney^ 61 Id., 578; Williams v. Carey ^
34 X. W. Rep., 814; Clinton v. R. Co., 24 Id., 476; State
V, £raum, 3 Dutch. [N. J.], 13; McKdway r. Seymour y 5
Id., 321 ; Hooker v Utica Co., 12 Wend. [N. Y.], 371;
Stuyvesant v. Mayor, 11 Paige [N, Y.], 426; Dunham v.
Williams, 36 Barb. [N. Y.], 136, 163; Atchison & K R.
Co. V. Garside, 10 Kan., 564 ; Augusta v. Perkins, 3 B.
Mon. [Ky.], 437; Colchester v. Lowten, 1 Vesey & B.
[Eng.],226; Ahez v. Henderson, 10 B. Mon. [Ky.], 131,
168 ; Bowlin v. Furman, 28 Mo., 427; Angell & A., Corp.,
sec. 187; StiU v. Lansingburgh, 16 Barb. [N. Y.]. 107;
Holladay v, Finsbie, 15 Cal., 630; Shannon v. O* Boyle,
51 Ind.,565 ; MaJthews v. Alexandria,QS Mo., 115; Kreigh
o. Chicago, 86 III., 407; Buckner v, Augusta, 1 A. K.
Marsh. [Ky.], 9; Toicnsend v. Oreeley, 5 Wall. [U. 8.],
326 ; Rutherford v. Baker, 38 Mo., 315 ; Price v. Thomp-
son, 48 Id., 363 ; Alton v. Trans. Co., 12 111., 60.
Jno. L, Webster, contra, cited: O. & R. V. R. Co. r.
Rogers, 16 Neb., 119; Paul v. Carver, 24 Pa. St, 207;
Gray v. Land Co., 26 la., 387; Polack v. Asylum, 48 Cal.,
490; Fearing v. B'win, 55 N. Y., 4K6; Des Moines v.
Hall, 24 la., 234; Pettengill v. Devin, 35 Id., 344; Day
V. Schroeder, 46 Id., 546 ; Williams o. Carey, 73 Id., 194;
Marshalltown v. Forney , 61 Id., 578 ; Dempseyv. Burlington,
66 Id., 688 ; D. & S. F. R. Co. v. Demke, 11 Col., 247;
Denver R. Co. v. Nestor, 10 Id., 416; Wayne Co. v. Miller,
31 Mich., 447; Bay Co, r. Bradley, 39 Id., 163; Hunter v.
Middleston, 13 III., 50; Stetson v. R. Co., 75 Id., 74; Zinc
Co. V. La Salle, 117 Id., 411; Gebhart v. Reeves, 75 Id.,
301; Chicago v. Bldg. Assn., 102 Id., 379; Kimball v.
Kenosha, 4 Wis., 336; Weisbrod v. R. Co., 18 Id., 40;
Miwaukee v. R. Co., 7 Id., 85 ; Mariner v. Shulte, 13 Id.,
775; Price v. Thompson, 48 Mo., 361; Rutherford v.
Taylor, 38 Id., 315; Bd. of Education v. Edson, 18 O.
St, 221; Knox Co. v. McComb, 19 Id., 320; Malone v.
Toledo, 34 Id., 541, 545-6.
51 G NEBRASKA REPORTS. [Vt.i,. 30
Lindsay v. Omaha.
Cobb, Ch. J.
The appellant alleges that on June 25, 1885, he was the
owner in fee of lots 1 and 2 of block 11, of McCormick's
addition to the city of Omaha; that on February 8, 1887,
the appellee, without legal authority, vacated the public
street No. 29, in said addition, between blocks 9, 10, 11,
and 12, and offered the same for sale ; to enjoin which the
appellant brought this suit in the district court of Douglas
county against the city of Omaha, which, upon final hear-
ing and trial, was dissolved and the })etition dismissed.
The answer of the defendant sets up that on February 8,
1887, the mayor and council duly passed an ordinance de-
claring that part of Twenty-ninth street between Farnam
and Howard streets, in McCormick's addition, vacated ;
that prior thereto three disinterested freeholders of the
city were duly appointed to assess the damages to the
respective property holders abutting and adjacent to the
street so vacated, and such appraisers duly assessed such
damages, and the respective amounts were duly tendered to
the respective property holders so damaged; that prior
to vacating said part of said street defendant extended
Twenty-ninth avenue in a straight line from Howard to
Farnam street, and through said McCormick's addition,
and as so extended lies a short distance west of the prop-
erty in the plaintiff's petition described, and is one of the
main thoroughfares of the* city, and that the extension
furnished a safe and convenient way of travel for the
plaintiff, and for the public, in place of that part of the
street vacated and as a substitute therefor; that prior to the
vacation thereof defendant duly extended Twenty-eighth
street in a straight line from Howard street to Farnam
street through said addition, which extension lies a short
distance east of the property of the plaintiff described, and
is one of the main thoroughfares of the city, and that the
extension furnished a safe and convenient way of travel
Vol.. 30] SEPTEMBER TERM, 1890. 617
Lindsay y. Omaha.
for the plaintiff, and for the public, in place of that part of
Twenty-ninth street vacated and as a substitute therefor;
that the vacating of said part of Twenty-ninth street and
the extending of Twenty-ninth avenue and said Twenty-
eighth street were acts for the use and benefit of the plaint-
iff, and were for the public good.
The plaintiff's reply denies the allegations of the answer.
The cause was submitted to the court on the pleadings
and evidence. The court found for the defendant, dismiss-
ing the petition, from which the plaintiff appealed to this
court.
Sections 104 and 105 of chapter 14, Compiled Statutes,
provide for the laying out of cities, villages, and addi-
tions thereto, into lots, streets, alleys, and squares, by the
owners or proprietors of land, the platting of the same,
and the acknowledging and recording of the plats thereof;
and section 106 provides that "The acknowledgment .and
recording of such plat is equivalent to a deed in fee simple
of such portion of the premises platted as is on such plat
set apart for streets or other public use, or as is thereon
dedicated to charitable, religious, or educational purposes.^'
Some years ago, in writing the opinion in the case of
0. d' It r. E, Co. V. Rogers, 16 Neb., 117, I made a
thorough examination of the adjudicated cases of the
.states having statutory provisions similar, or nearly so, to
our own above cited, and came to the conclusion that
the fee simple title to the streets oC cities or villages,
which passes by virtue of the acknowledgment and re-
cording of the plats, passes to and vests in the city or vil-
lage.
Section 66 of chapter. r2aof the Compiled Statutes pro-
vides as follows: '*The mayor and council shall have
.power * * * to proviile for the oj)ening, vacating,
widening, and narrowing of streets, avenues, and alleys
within the city, under such restrictions and regulations as
may be provided by law." This provision relates to cities
618 NEBRASKA REPORTS. [Vol. 30
Lindsay v. Omaha.
of the metropolitan class, but there is also a similar pro-
vision relating to cities of the first class.
The provision of statute first above quoted is identical
with that of a statute of Iowa. That state also has a pro-
vision of statute nearly identical with that last above cited.
Under these statutes questions nearly similar to the one at
bar have been several times before the supreme court of
that state. The case of Dempaey et aL v. City of Burling-
ton d al,y 61 la., 688^ I am unable to distinguish in prin-
ciple from the case at bar. It is true the case appears to
have been contested, not so much uj>on the want of power
on the part of the city to vacate the alley in question and
convey the land thus vacated, as the form in which it was
sought to be done. Yet the court squarely decided the
question of power to grant the vacated ground to a private
person, as well as to vacate the alley.
The case of Marshalltovm v. Forney^ 51 Id., 578, in-
volves the same principle as the above, and was decidetl
the same way. While I am inclined to follow these cases;
as far as is necessary to a decision of the case at bar, yet, in
so far as it was the purpose and object of the city author-
ities of Des Moines and Marshalltown, res|)ectively, in
vacating the alley involved, to enable themselves to grant
away the vacated ground, I would not follow them, as I
think that the sale or granting of such ground by the city,
could only be done as an incident to the power to open and
vacate.
In the case of WiUiariis et al. v. Carey, Mayor, et aL, 73
Id., 194, the court in the opinion says, after speaking of
the several cases above cited, and others : "While in none
of these cases, heretofore determined by this court, are the
facts similar to those in the case at bar, yet the power of
the city, in a proper case, to vacate a street, has been several
times affirmed. Such power is clearly conferred by statute.
Under it the power to narrow, widen, or vacate a street is
practically unlimited, when it is exercised for the public
Vol. 30] SEPTEMBER TERM, 1890. 519
Linda&y y. Omaba.
good, and yet it cannot be arbitrarily exercised under the
pretense that tlie public good requires it. While this is true,
it is subject to equitable control, and, therefore, to a large
extent, each case must be determined in accordance with its
own particular facts. An abutting lot-owner cannot arbi-
trarily object to the vacation of a street, or a part of a
street, nor can he, upon slight grounds, prevent the aooom-
pl shment of that which is a material benefit to the general
public; and the conclusion of the city council will, ordina-
rily at least, be conclusive as to the question whether the
vacation of a particular street is for the public good.
This being so, the question is whether the plaintiffs will be
materially damaged. That they will be damaged to some
extent will be conceded; but no tangible property belong-
ing to them will he taken or appropriated for the public
benefit. In a city or other community, at least some rights
of an individual* must be subordinate to the general good.''
In the case at bar the action is an equitable one, and the
remedy sought is a perpetual injunction to prevent a sale
of the vacated ground by the city, or its interference with
the plaintiff in his enjoyment of the same as an open street.
Plaintiff does not question the method by which the city
has sought to vacate the street, or to sell the ground, but
attacks its power to do either, and proceeds upon the theory
tiiat it not having the power to vacate, the street remains
open, notwithstanding the vacating ordinance and the as-
sessment and tender of damages to the abutting property
holders. The question as presented by the pleadings, ad-
missions, and evidence is, I think, fully answered by the
statute which confers upon the city the power to vacate
streets.
Doubtless residence property in a city may be, and often
is, so situated in respect to other streets that to vacate a
certain street immediately fronting thereon would inflict
an irreparable injury, and, as such, might be enjoined. But
such case is not presented here. At the same time it must
ao
84
680
so
44
620
490
90
40
520
309
520 NEBRASKA REPORTS. [Vol. 30
SUte, ex reL Chem. Nat Bank, v. School District.
be conceded that the vacation of Twenty-ninth street, as the
parties call it, or Twenty-eighth street, as it is marked on
the exhibit, would be an especial damage to the property
of the plaintiff, not shared in by the property of the city,
or of McCormick's addition genemlly. The city con-
cedes tliis by providing for the appraisement and tender of
such damages, and the appraisement of the damages sus-
tained by some fair and adequate method, and its payment
by the city to the plaintiff is doubtless the relief to which
the plaintiff was entitled. This relief he was entitled to
upon the vacating of the street, which right is inconsistent
with any on his part that the title to half of the street re-
verted to him upon its vacation, as well as any right to use
the va(3ated ground as a street. So that it all depends upon
the right of the city to vacate the street, a right given by
the letter of the statute; and I know of no reason through
which it should not be made continuous and effective.
The judgment of the district court is
Affirmed.
The other judges concur.
State, ex rrl. Chemical National Bank, v. School
DibTRicT No. 9, Sherman County, et al.
[Filed Octobeu 7, 1690.]
1. Limitation of Actions: A Proceeding by Mandamus, not
being otherwise provided for in the statute of limitntiuns, hetd^
to fall under the 16th section of the Code, and is barred at the
end of four years.
2. . That the statute of limitations, although confined in
terms, applies to all claims that may be made the ground of
action at law, in whatever form they may be presented.
Original application for mandamus.
Vol. 30] SEFIEMBER TERM, 1890. 521
Slate, ex leL Cbem. Nat. Bank, v. School D.8trict.
Diuces & Fo8Sy for relator.
G. J/. LamberUon, contra.
Cases cited by couusel are in the main referred to in
opinion.
Cobb, Ch. J.
The Chemical National Bank of New York city, as
relator, filed its petition August 31, 1888, for a peremptory
writ of vmndamns to compel the school board of district
No. 9, of Sherman county, to report the indebtedness of
said district, and the rate and amount of taxes required to
pay the same, to the county clerk, and the county commis-
sioners, commanding them to levy a tax upon all the tax-
able property of the citizens of said district to pay such
indebtedness, or to pay one-third thereof the first year en-
suing, and an equal amount annually until the whole be
paid, and commanding the county treasurer to collect and
retain the same in special fund, and as often as $100 should
be collected, to pay over the same to the clerk of the su-
preme court, to be by him paid to the relator, on account of
two certain school district bonds, lawfully issued by said
district and held by the relator, numbered 5 and 8, respect-
ively, for $500 each, dated July 1, 1874, payable in six
years from date, with interest at ten per cent per annum,
amounting in all to $2,105, for the assessment, collection,
and payment of which demand had been duly made, which
demand has been neglected and rei'used by said district
board and said county officers^ and no part thereof has
been paid except such interest coupons as became due prior
to January 1, 1879, which were paid.
The defendants appeared and demurred to the petition.
I. That it fails to state a cause of action.
II. That the cause of action is barred by the statute of
522 NEBRASKA REPORTS. [Vol. 30
state, ex rel. Chem. Nat Bank, y. School Bistriot.
limitations, or did not accrue within five years next pre-
ceding the filing of the petition.
The relator claims that the defendants admit, by de-
murrer, the facts set up in the petition ; that district No. 9
is a duly organized school district; that it borrowed, by
legal methods, the money represented by the bonds Nos. 5
and 8, used it for school purposes within and for the dis-
trict, and paid the interest due prior to January 1, 1889.
It contends that the demurrer should be overruled, be-
cause "there is no doubtful question of the statute of
limitations not running against this cause of action, in any
former decisions of this court, as claimed by defendants."
That the distinction between a school district warrant, for
money due, and a school district bond negotiated for the
loan of money, is plain and evident, and ought not to be
subject to tlie operation of the statute of limitations, for
the reason that the warrant can only be drawn upon funds
already provided and remaining in the treasury, and the
bonds are issued as the obligation of the district to pay
that amount, at a future day, on the public faith of tlie
officers, and upon the presumption that they will do their
duty in levying and collecting taxes in order to pay the
bonds according to their legal purport. It contends tliat,
under sees. 645-46-47-48 of the Code, mandamus should
always issue where the right to require performance of the
act is clear, and where no other s|)ecific remedy is provided ;
and contends further that it is an established doctrine in the
construction of statutes of limitation that cases within the
reason and not within the words of the statute, as in this
instance, are not barred, but may be considered as omitted
cases in the act, the legislature not deeming it proper to
limit them.
In support of the application, the relator's counsel cites
the decisions of the supreme courts in several states. In
Smith, Admt\y etc,, v, Loekwood, Exr,, etc,, 7 Wendell, 241,
it was held, in the state of New York, in the year 1831,
Vol. 30] SEPTEMBER TERM, 1890. 623
Bute, ex ref. ChenL Nat. Bank, v. School District.
"That the statute of limitation is not a bar to every
action of debt, but only to those brought for arrearages of
rent, or founded upon any contract without specialty; and
that the settled construction of tiic statute is, that it applies
solely t-o actions of debt founde<l upon contracts in fact, as
distinguished from those arising from construction of law."
In Bass v. Bass, 6 Pickering, 362, it was held, in Massa-
chusetts, in 1828, in an action between merchants, on an
account for goods sold and delivered, that, although in a
case in New York [5 Johns. Ch. Rep., 522] Chancellor
Kent had reviewed the authorities, and had come to the.
conclusion that merchants' accounts are within the statute,
where there is no item within six years, yet in a case re-
ported 5 Cranch, 15, the court maintained the contrary
doctrine; and, &s the language of the Massachusetts statute
is clear, the court will ground its decision upon it. The
words of the statute are: "All actions of account, and upon
the case, other than such accounts as concern the trade
of merchandise between merchants, their factors or serv-
ants, shall be commenced within the time limited. Such
accounts are not within the statute. This is the most
natural construction, and the only one the words of the
statute will allow.'*
In Jordan v. Robinson, 15 Me., 167, the suit was an
action of debt on a judgment of the supreme court of New
Brunswick, British Province, rendered in 1818, to which
was pleaded the general issue and the statute of limitations.
The court held, " That the obligation is not a debt grounde<l
upon any lending or contract within the meaning of the
statute, but looking to the consideration of the judgment
we find it founded upon an express contract, but one ex-
cepted from the operation of the statute, being rendereil
upon a note in writing for the payment of money, attested
by a witness.*' Judgment was for the plaintiff in the year
1838.
In Keith v. Estill, 9 Ala., 669, the action was brought on
524 NEBRASKA REPORTS. [Vol. 30
state, ex rel. Chem. Nat Bank, v. School District.
a judgment of the county court of Franklin county, Ten-
nes-see, rendered in 1820. The statute of limitations was
pleaded, the plaintiff demurred, and the court overruled the
demurrer. The supreme court, in 1 840, Ormond, J., said :
'^I should be willing to rest the decision on the construc-
tion of our statute, that the framers of the act by the word
^contract' did not contemplate judgments, and that it is a
casm omissus. The contrary opinion has only been sup-
ported on the ground that a foreign judgment is merely
prima facie evidence of a debt ; but the judgments of our
oo-states, rendered on se^'vice of process, are conclusive
evidence of the debt when sought to l)e enforced in any
other state." From this opinion, Goldthwaite, one of the
justices, dissented, and said, in his judgment, the plea inter-
posed was a complete bar to the action.
In Bedell v. Janney, 4 Gilman, 193, the supreme court
of Illinois, in the year 1847, held that it was then a well
established doctrine that cases within the reason but not
within the words of the statute of limitation, are not barred,
but may be considered as omitted cases which the legisla-
ture had not deemed proper to limit."
In the case of Garland v, Scott, 15 La., 143, it was held
by the supreme court of that state, in 1860, that *' stat-
utes of prescription and limitation could, not be extended
from one action to another, nor to analogous cases, beyond
the strict letter of tlie law."
It will not be disputed that anciently from 1550 to
1800, and subsequently, the views and arguments offered
by the relator's counsel in tiiis case, and the precedents
cited by him, in their own day, were the accepted rule and
authority as to the significance and force of the writ of
mandamiLs. But those days are past, and the economy of
the law has enlarged the rule. It has been extended in
this instance, as in many other remedies, and mandamus
from a prerogative writ of the crown, or the state, to en-
force an official duty, has modernly come to be an action at
Vol. 30] SEPTEMBER TERM, 1890. 525
State, ex rel. Chem. NaC Bank, y. Scbool District.
law involving all the merits of the inquiry. Hence de-
murrer is entertained to the relator's information.
The important question raised by the demurrer is that
of the statute of limitations applicable to the cause of ac-
tion described by the relator.
It was given out from this court, as early as 1870, in
the case of Brewei* v. Otoe County y 1 Neb., 382, that ^' the
section of the Code of Civil Procedure providing that *an
action upon a specialty, or any agreement, contract, or
promise in writing, or foreign judgment, can only be
brought within five years after the cause of action shall
have accrued,' applies as well to actions where counties,
or other municipal corporations, are parties as between pri-
vate persons, the law recognizing no distinction in suitors,
but applying the same rule to all." The relator's cause of
action would seem to be within this rule under four of the
conditions mentioned.
In the case of May v. The School District No. 22 of Casa
County, 22 Neb., 205, this rule was maintained. The
plaintiff sued on a warrant for $75, dated September 9,
1879, payable eighteen months after date. More than five
years had elapsed after the maturity of the warrant before
suit was commenced. The statute of limitations was ap-
plied, and it was held that '' the maxim, lapse of time is
no bar to the rights of the sovereign, applies only to a sov-
ereign state, and not to municipal corporations deriving
their powers from the state, although their powers, in a
limited sense, are governmental ; and thus it appears that
the statute runs for and against cities, towns, and school
districts in the same manner that it does for and against
individuals."
Arguments need not be prolonged in support of this
proposition. It has been considered and settled. {The City
of Oinoinnati v. Evans, 5 O. St., 594 ; Same v. Church, 8
Id., 298; Lane v, Kennedy, 13 Id., 42; School Directors
r. Oeai^ges, 50 Mo., 194; Kennebunhport v. Smith, 22
526 NEBRASKA REPORTS. [Vol. 30
state, ex r^L Gbem. Nat. Bank, y. School District.
Me., 445 ; Clements v. Anderson, 46 Miss., 581 ; Evans v,
Erie County, QQ Pa. St., 225; St. Cliarles County r. Potoell,
22 Id., 522 ; Callaway County r. NoUey, 31 Id., 393 ; -46-
emathy v. Dennis, 49 Id., 469 ; Peirenthxd r. San Fran-
cisco, 21 Cal., 351 ; Clark v. Iowa City, 20 Wall. [U. S.],
583; De Cordova v. Galveston, 4 Tex., 470; UnderhiUv.
Trustees, etc,, 17 Cal , 172; Baker v. Johnson Co., 33 la.,
151; 2 Dillon on Munic. Corp., sec. 668.)
The question of the statute of limitations to be applied
to municipal corporations, was again considered in this
court, in July, 1888, in the case of the Village of Arapa-
hoe V. Albee, 24 Neb., 2-12, and it was held that " the statute
will run against a warrant issued by the proper authorities
of a village, and the warrant will be barred in five years
from the time it becomes due,'' citing the decision in the
case of Brewer v. Otoe County, supra.
And again in the case of The School District No. 4£ of
Paumee County v. The First National Bank of Xenia, Ohio,
19 Neb., 89, the district bonds of the plaintiff in error, the
cause of action sued upon, were signed by the moderator,
director, and treasurer of the school district, dated October
16, 1873, registered the 23d following, and issued by the
district after the latter date. To one of the bonds for
$200, due October 1, 1875, there was pleaded the statute
of limitations, the action having been commenced July 26
1882, and there being evidence and indorsements on the
bond, of the payment by the county treasurer, of interest
thereon, March 22, 1878, $25; April 30, 1878, $60.25;
June 15, 1878, $54, it was held that such evidence was
competent to take the bond out of the operation of the stat-
ute of limitations, which otherwise would have barml the
action.
If it be insisted that limitation is not to be applied to
mandamus, as to the duties of municipal officers, it is
answered that sec. 2 of title 1 of the form of civil actions
of the Code of Civil Procedure declares that *Hhe distino-
Vol. 30] SEPTEMBER TERM, 1890. 627
8t«te» ex reL Chem. N*t. Bank, y. School DiBtrlct.
tion l)etween actions at law and suits in equity, and tiie
forms of all such actions and suits heretofore existing, are
abolished, and in their place there shall be hereafter hut
one form of action, which shall be called a civil action/'
the complainant to be known as the plaintiff, and the ad-
versary as the defendant in the case.
In consonance with this provision it was held, in the
case of The State, ex rel. of J. G, Miller y v. The County oj
Lancaster y 13 Neb., 223, that "a mandamus^ under our
practice, is an action at law, and is reviewable only on
error and not by appeal." This decision would appear to
settle all the important questions contended for by the
i*ounsel for the relator, against his expressed views. Nor
is the decision inconsistent with the modern rule of man--
damns in this country.
In the case of The Commonwealth of Kerdnehy v. The
Governor of the State of Ohio, 24 Howard, 66, as early as
1860, the chief justice of the United States, after remark-
ing that '^the court is sensible of the importance of this
case, and of the great interest and gravity of the questions
involved in it which have been raised and fully argued at
the bar," held '^ that a writ of mandamiis does not issue
in virtue of any prerogative power, and in modern prac-
tice is nothing more than an ordinary action at law in cases
where it is the appropriate remedy." This application was
for a writ of mandamus to compel the defendant to deliver
up to the custody of the plaintiff the body and person of
one Willis Sago, indicted of the offense of seducing and
enticing Charlotte, a slave of C. W. Nuckols, to leave her
master and escape into Ohio. The cause of action was
fully inquired into, and the writ denied. {Kendall v, U. S.,
12 Peters, 615.)
This now view, if it may be called so, has been so well
settled, and so apparently proper, that our Brother Max<
well in his work has adopted it, and said that 'Mn modern
practice mandamtis is nothing more than an action at law
528 NEBRASKA REPORTS, [Vol, 30
Slate, ex rel. Chem. Nat. Bank, v. School District
between the parties." (Maxwell, PI. & Pr., 729.) And
while this principle cannot be misunderstood in this state,
it does not seem to be less common to others. In the case
of Dement v. i?oMe?-, ] 26 111., 189, it was held "that man-
damus was an action at law, to be governed by the same
rules of pleading as in other actions, and was within the
limitation act which provided that ^all actions founded
upon any judgment shall be commenced within sixteen years
after the cause of action accrued, and not thereafter.' " The
supreme court of Illinois held further that the defense of
this statute was good, and said that "obviously this pro-
ceeding was comprehended within the term * action' used
in the statute." (Peoria County v. Gordon, 82 111., 437.)
Mr. J. L. High, in his important work on Extraordinary
Remedies, sec. 355, lays it down that, in cases where the
aid of mandamys is sought to compel public ofiQcers to
draw their warrant for the payment of money " the right
to relief, in this class of cases, may be barred by the statute
of limitations." That we believe to be this case, and we
hold broadly that our statute of limitations, although con*
fined in terms, applies to all claims that may be made the
ground of action at law in whatever form they may be
presented ; the same falling within the meaning and pur-
port of section 16 of the Code, when not falling within
any other.
It does not seem doubtful, from the precedents and au-
thorities cited, that the demurrer in this case is well taken,
and that the statute of limitations is a bar to the writ,
which is denied at the costs of the relator.
Wkit denied.
The other judges concur.
Vol. 30] SEFTEMBEE TERM, 1890. 629
Pefley y. JohDaon.
Isaac Pefley v. Leonora Z. Johnson.
[FiLKD OCTOBEB 7, 1890. ]
1. Pleadings : Libbbal Ck>N8TBUCTiON. Under the Code, plead-
ings are to be liberally oonatraed, and if with soch constraction
a petition states a cause of action against a defendant and in
favor of the plaintiff, ademarrer thereto shoald be overruled*.
% Petition: Exhibit Made Pabt Of. The facta on whicli a
plaintiff bases his right to recover should be stated in a system-
atic and orderly manner, and not by malting a mere exhibit a
part of the petition^ An exhibit, however, if made a part of- a
petition, is to be considered, and if the fhcts therein stated, in
connection with those in the petition proper, show a liability of
the defendant to the plaintiff, a demurrer that the facts stated
therein are not sufficient, cannot be sustained o
Error to the district ooart for Douglas county. Tried
below before Doane, J.
J, W. Wed, for plaintiff ia error, cited : Rathbun v, R.
Co., 16 Neb., 442.
Holmes J WharUmy & Baird, oarUra, cited : LaHmore v.
Wdla, 29 O. St., 13; MoOormick Machine Co. v. Glidden,
94 Ind., 447 ; Mo Campbell v. Vadine, 10 la., 538 ; Q-aw-
ford V. Satterfield, 27 O. St., 421 ; Boone, Code Pleading,
sec. 27.
Maxwell, J.
A demurrer to the petition was sustained in the court
below and the action dismissed. The question presented
to this court is, ^^Does the petition, when construed liberally
as required by the Code, state a cause of action ? '' The
petition, and exhibit which is made a part of it, is as fol-
lows:
'' Plaintiff lor cause of action states that on or about
34
530 NEBRASKA REPORTa [Vol. 30
Pefley v. Johnaon.
the 2d day of April, 1888, plaintiff entered into a con-
tract in writing with defendant, Leonora Z. Johnson, a copy
of which contract is hereto attached marked ' Exhibit A,'
and made a part hereof; that by the terms of said contract
there was due from defendant to plaintiff on the 2d day
of February, 1889, the one certain payment in the sum of
$410, with interest at the rate of eight per cent on the sum
of $2,950 from the 2d day of April, 1888, and interest
thereon to date, all of wlii&h is now due and unpaid.
"Exhibit A.
"This agreement, made the 2d day of April, A. D. one
thousand eight hundred and eighty-eight, between Isaac
Pefley and J. K. Reid, the party of the first part, and
Leonora Johnson, party of the second part, witnesseth:
Tliat said party of the first part agrees to sell to said party
of the second part, and the said party of the second part
agrees to purchase of the said party of the first part, on
the terms hereinafter mentioned, the following real estate,
situate in the county of Sarpy, and state of Nebraska,
known and described as lots 1 and 28, in block 3, in Union
Pacific subdivision of blocks 6, 7, 8, and 9, in Albright's
Choice Addition to South Omaha, as surveyed, platted, and
recorded. The said party of the second part agrees to pay
to the said Isaac Pefley for said land the sum of $5,000
in payments as follows: $2,950 upon the delivery of this
contract and $410 September 2, 1888, $410 February 2,
1889, $410 Septeml)er 2, 1«89, $410 February 2, 1890,
and $410 September 2, 1890. All of said payments bear-
ing interest from date until paid at the rate of eight per
cent per annum, interest payable semi-annually. So soon
as said purchase money and interest shall be fully paid
(time being the essence of this contract), the said party of
the first part agrees to make to said party of the second
part, his heirs and legal representatives, a valid title in fee
simple to said land, and for that purpose shall execute and
Vol. 30] SEPTEMBER TERM, 1890. 531
Pefley y. Johnson.
deliver to him a good and sufficient warranty deed for the
same, subject, however, to the taxes for A. D. 1888, and
subsequent taxes, which said party of the second part agrees
to pay when the same become due aifd payable.
'^ In case said party of the second part shall refuse or
n^lect to pay said purchase money and interest as agreed
herein, he shall forfeit any rights he may have to said land,
and also shall forfeit any money paid by him to said party
of the first part to purchase the same, unless the said party
of the first part shall elect otherwise.
" The parties respectively bind their heirs and legal rep-
resentatives to the faithful performance of the terms of
this agreement.
''The said party of the second part shall be entitled to
the possession of said land so long as he shall comply with
the forgoing terms of sale ; but upon a failure to comply
with the same his right to the possession shall terminate,
and he shall surrender the possession of said land and the
improvements thereon, if any, to the said party of the first
part.
'' In witness whereof, the said parties have hereunto set
their handsj the day and year first above written.
"Isaac Pefley.
"J. K. Reid.
"Leonoka Z. Johnson."
We do not approve of the practice of making a mere
exhibit a part of a petition. It is better to make a di-
rect statement of the facts in the order in which they
occur. This is the direct and orderly method which a
good pleader will observe. Where, however, an exhibit is
made a part of a petition, and there are allegations therein
tending to show a liability of the defendant to the plaint-
iff, such allegations cannot be disregarded. For the pur-
poses of the demurrer they must be taken as true. It is
therefore admitted that there was due from the defendant
to the plaintiff the sum of |410, with interest.
632 NEBRASKA REPORTS. [Vol. 30
Cdlland ▼. NlcboK
We place no stress upon the provision in contract that
time shall be the essence thereof.
By bringing an action to recover the money the plaintiff
has waived his right to declare a forfeiture, if, indeed, such
right ever existed. The defendant evidently has made a
large payment on the land and has a strong equity therein.
He is still indebted, however, for the unpaid purchase
money and plaintiff has a right to recover the same. The
judgment of the district court is reversed and the cause re-
manded for further proceedings.
Reversed and Remanded.
The other judges concur.
HoRTON S. Calland v. Martin V. Nichols et al.
[Filed October 7, 1890.]
1. Agistment : Nboligencb: Burden of Proof. Where there is
no express contract as to the kind of feed and degree of care to
be given by one who takes cattle to keep through the winter, he
is bound to provide reasonable and ordinary feed for such stock,
and to ase reasonable and ordinary care to protect them from
injarj; bat where a namber of snch cattle die while in charge
of the bailee, the bailee npon stating that fact to the owner — in
other words, accounts for the cattle — the burden of proof of neg-
ligence is upon the owner.
2. : Evidence. Heldy That a clear preponderance of the evt>
dence showed the want of reasonable and ordinary care in feed-
ing and caring for the stock in controversy.
Error to the district court for Gage county. Tried
below before Appelget, J.
Pemberton & Buah^ for plaintiff in error, cited : Ransom
V. Getty, 14 Pac. Rep. [Kan.], 487 ; Teal v. Bifby, 123 U.
Vol. 30] SEPTEMBER TERM, 1890. 538
GAlland t. Nichols.
S., 572; Mansfield v. Dole, 61 111., 191 ; Rey v. Toney, 24
Mo., 600 [69 Am. Dec., 444] ; Wood v. Remiek, 9 N. E.
Rep. [Mass.], 831 ; Malaney v, Taft, 15 Atl. Rep. [Vt],
327; MUIb v. OilbreUi, 74 Am. Dec., 487.
A, H. Babcock {Griggs & Rinaker with him), contra,
cited: Maynard v. Buck, 100 Mass., 40, 49 ; Best v. Yales,
1 Vent. [Eng.], 268 ; Leek v. Maestaer, 1 Camp. [N. P.],
138 ; Schouier, Bailment [2d Ed.], seos. 23, 101 ; Edwards,
Bailment, 236 ; Story, Bailment, sea 443; 2 Parsons, Con-
tract, 131.
Maxwell, J.
This action was brought in the district court of Gage
county by the plaintiff against the defendant to recover
for feeding and caring for certain cattle of the defendant.
On the trial of the cause the jury returned a verdict for
the defendant, upon which judgment was rendered.
The plaintiff alleges in his petition that'^n the month
of August, 1887, he made and entered into a contract with
defendants to furnish feed for and take care of not to ex-
ceed 200 head of cattle for said defendants, jointly, which
cattle were to be furnished to plaintiff for that purpose by
said defendants. * * * 'Qy g^id contract plaintiff was
to be paid the sum of $4.50 per head from defendants, for
feeding and taking care of said cattle. That pursuant to
said contract defendants furnished plaintiff 123 head of
cattle, which plaintiff received and took charge of under
^aid contract, and fed and cared for as provided in said
contract; that plaintiff has fully and faithfully performed
all the conditions of said contract by him to be done and
performed; that defendants have paid plaintiff therefor
only the sum of $150, and there is now due and owing
from defendants to plaintiff on said contract the sum of
$403.50, which defendants refuse and neglect to pay."
To this the defendants answered as follows :
534 NEBBASKA REPORTS. [Vol.. 30
CallaDd y. Nlohols.
" The defendants, for answer to plaintiff's petition, say
they admit that on the 10th day of August, 1887, the
plaintiff made and entered into a contract with defend-
ants to take 100 head of cattle or more, not to exceed 200
head, and keep them in good shape, give them good wire
and plenty of food, and to deliver the same to defendants,
or order, in the spring of 1888, and at a time when they
can liv€ well on grass, and in good condition, f6r the sum
of $4.50 each, to be paid for in full by the defendants, on
the delivery of the cattle in good condition, in the spring.
"That on the 7th day of September, 1887, the de-
fendants delivered and the plaintiffs received from the
defendants 123 head of cattle, in good and healthy condi-
tion, to be cared for in good shape, properly fed, kept,
cared for, and to be redelivered to defendants in good
condition, in the spring of 1888, according to the term?^
and provisions of said contract.
;|c « ;|c 4e * * «
" The plaintiff then received said 123 head of cattle u|)on
the above conditions, and undertook to use due and proper
care in the management of said cattle, to properly feed,
water, and shelter the same, and redeliver the said 123
head of cattle in the spring of 1888, in good condition, to
the defendants. But the said plaintiff, not r^arding his
said promise and undertaking, did not, nor would take due
and proper care of said cattle, and did not properly feed,
water, and shelter the same, and when he was requested to
redeliver the said 123 head of cattle at the time mentioned
in said agreement, he redelivered only seventy-four head
of said cattle, and he has failed and neglected to deliver
forty-nine head, the balance thereof, or any part thereof,
nor paid the value thereof, amounting to the sum of $980,
though often requested so to do, but, on the contrary
thereof, the plaintiff so negligently and carelessly con-
ducted himself with respect to the said cattle, and took so
little care of them, and failed to j>roperly feed, water, and
Vol. 30] SEPTEMBER TERM, 1890. 636
Callatid y. Nicholi.
shelter them, and that by and through mere carelessness,
n^Iigenoe, and improper conduct of the said plaintiff and
his servants in that behalf, the said 123 head of cattle all
became poor, thin in flesh, and in a weak condition, and
forty-nine head of said number died from the want of
proper food, shelter, care, and attention on the part of the
plaintiff, and while the same were in his custody, to the
defendants' damage in the sum of $980.
**The defendants further allege that in order to prevent
the whole number of said cattle from dying of starvation
and exposure, they were compelled to and did incur great
expense, to-wit, the sum of $199, in furnishing said cattle
with proper food, care, and attention while the same were
in plaintiff's possession under the contract aforesaid, and
he was under obligation to furnish the same, but failed,
neglected, and refused to do so, to defendant's damage
$199.
The reply need not be noticed.
The clear weight of testimony tends to sustain the alle-
gations of the answer as to the n^ligence of the plaintiff
in feeding and caring for the cattle. The fact that so large
a number of them died while under his care is itself a
strong circumstance tending to show negligence. There is
some testimony in the record tending to show that the cat-
tle were in a poor condition when received by the plaintiff.
There is considerable more testimony, however, tending to
show that they were in ordinary condition when received.
There is no testimony whatever that the plaintiff made any
objection to the condition of the cattle when he received
them, and he seems to have been satisfied therewith. They
were young cattle which had been raised in Iowa and
shipped into tliis state.
Where there is no express contract as to the kind of
feed and d^ree of care to be given by one who talces cattle
to keep through the winter, he is bound to provide reason-
able and ordinary feed for such stock, and to use reason-
^
49 207|
536 NEBRASKA REPORTS. [Vol. 30
Schleldfl T. Horbach.
able and ordinary care to protect them from injury ; but
where a number of such cattle die while in charge of the
bailee^ the bailee upon stating that fact to the owner — ^in
other words, accounts for the cattle — the burden of proof
of negligence is upon the owner.
The burden of proof to show n^ligence where the stock
has been accounted for, is upon the owner of the stock.
In our view the defendant has clearly established such
negligence.
Objections were made to certain instructions whicii re-
lated more particularly to the counter-claim of thedefend-
ant. As the defendant was allowed nothing on this coun-
ter-claim, no error can be predicated on the instructions.
There is no material error in the record and the judg-
ment is
Affirmed.
Thk other judges concur.
30 536
I 40 8»j
so &36: Louis Schields, appellant, v. John A. Horbach
ET AL., APPELLEES.
[Filed October 7, 1890.]
1. Real Estate : Option: Condition Pbeoedent. The defendant
gave the plaintiff a written proposition to sell certain real estate
in the city of Omaha, for a specified price, conditioned that the
plaintiff shoald pay within six months his note given to the
defendant for merchandise, and pay the one-half of the price
named dnring 1873 and the balance in 1874. Held^ That the pay-
ment of the note within the time limited was a condition pre-
cedent to the plaintiff's right to accept the offer.
2. : : Acceptance. Snch proposition, to be binding,
mast be accepted on the conditions proposed within the speci-
fied time, unless the party making the offer continues it to the
time of acceptance.
Vol. 30] SEPTEMBER TERM, 1890. 637
SchieldB T. Horbach.
3. ; ^: Specific Pebfobmance Denied. Under the
evidence it was held, that the plaintiff is not entitled to a spe-
cific perfbrmanoe of the agreement
On rehearing.
John W. Lytle, and Pat. 0. Hawes, for appellant.
Oeorge B, Lake, A. N. Ferguson, and Ambrose & Duf-
fiCf contra, cited : Delaney v. Linder, 22 Neb., 280; Coon
V. Knap, 8 N. Y., 402 ; Eliason v. Henshaw, 4 Wheat. [U.
8.], 225; Smith V. Gibson, 25 Neb., 511; Pomeroy, Spe-
cific Performances, 334, 335, 387, 388 ; Mason r. Payne,
47 Mo., 517; Pott v. WhUehead, 6 C. E. Green [N. J.],
55 ; Kerr v. Purdy, 51 N. Y., 629 ; Maughlin v. Perry,
35 Md., 352-360 ; J(mes v. Nobk, 3 Bush [Ky.], 694 ;
Brooks V. Grarrod, 3 K. & J. [Eng.], 608 ; Hancock v.
Charlton, 6 Gray [Mass.], 39 ; Jones v. RobbinSy 29 Me.,
351 ; HaU v. Delaplaine, 5 Wis., 206 ; Pritchard v. Todd,
38 Conn., 413; Decamp v. Feay, 5 S. & R. [Pa.], 325;
Shortall V. Mitchell, 57 111., 161; Young v. Daniels, 2
Clarke [la.], 126; Taylor v. Longxowth, 14 Pet. [U. S.],
172; GodJbold v. Lambert, 8 Rich. Eq. [S. Car.], 155-
164 ; Lott. V DeGrafftnried, 10 Id., 346 ; Wright v. Davis,
28 Neb., 479 ; Waterman, Spec. Perf., 90, 1 96, 198, 434, 460,
470, 471, 475, 490, 493; Little v. Thurston, 58 Me., 86;
Warren v. Richmond^ 53 111., 52; Ewald v, Lyons, 29
Cal., 550 ; Holland v. Hensley, 4 la., 225 ; Minium v. Sey-
mour, 4 Johns. Ch. [N. Y.], 498* ; Mclntire r. Hughes, 4
Bibb [Ky.], 186; Dawson v. Dawson^ 1 Dev. Eq. [N.
Car.], 93, 99 ; Banks v. May's Heirs, 3 A. K. Marsh.
[Ky.], 436* ; Bibb v. Smith, 1 Dana [Ky.], 580 ; Tucker
V. Woods, 12 Johns. [N. Y.], 190 ; Meynell v. SurUes, 1 Jur.
(N. S.) [Eng.], 737; Williams v. WUliams, 17 Beavan
[Eng.], 213; Tucker v. Clarke, 2 Sandf. Ch. [N. Y],
96* ; Cutter v. Pmcell, 6 T. R. [Eng.], 320 ; Evans v. U.
8. Life Ins. Co., 64 N. Y., 304 ; Boston & M. R. Co. v.
638 NEBRASKA REPORTS. [Vol, 30
Schieldi ▼. Bovbaeh..
Bartlett, 3 Cttsh, [Mass.], 224 ; Atke v. Bartholomeie, 6*
Wis., 43; McCulloch v. Eagle Ins. Co., 1 Pick. [Mass.],
278 ; Lamon v. Jordan, 56 111., 204 ; Adams v. Linikli,
1 B. & Aid. [Eng.], 681 ; Warren v. Bean, 6 Wis., 120 ;
Marsh v. C, R. I. & P. R. Co., 76 la., 361 ; Low v. Tread-
well, 12 Me., 441 ; McClintock v. Lang, 22 Mich., 212;
Tieman v. Roland, 15 Pa. St., 429 ; Porter v. Dougherty,
25 Id., 405 ; Davis v. Hone, 2 Sch. & Lef. [Ir.j, 341 ;
Brashier v. Gratz, 6 Wheat. [U. S.], 528 ; Roby v. Cos-
siU, 78 111., 638 ; Cooper v. Brown, 2 McLean [U. S.],
495 ; Redish v. Miller, 27 N. J. Eq., 514 ; Delevan v.
Duncan, 49 N. Y., 485 ; Lauer v. Lee, 42 Pa. St., 165 ;
Washington v. McGee, 7 T. B. Mon. [Ky.], 131 ; Hyff-
man v. Hummer, 18 N. J. Eq., 83 ; Rogers v. Saunders,
16 Me., 92 ; HuU v. Noble, 40 Id., 459 ; Higby v. WhU-
taker, 8 O., 201 ; Remington v. Kelly, 7 Id., 432 ; Oalky
V. GaUey, 14 Neb., 176 ; Doolittle v. Wliedei^, 18 Id., 136 ;
Hutchinson v. State, 19 Id., 263 ; Dodge v. Ruels, 20 Id.,
35 ; Wither v. Hoover, 24 Id., 605 ; Traphagen v. Shel-
don, 19 Id., 76 ; Seymour v. Street, 5 Id., 86; Callahan
V. Callahan, 7 Id , 41 ; ^c« v. Sherer, 12 Id., 412 ; New-
man V. Muller, 16 Id., 523; Sang v. Beas, 20 Id., 372 ;
Charles v. Ashby, 14 Id., 261.
NORVAL, J.
After the filing of the decision (28 Neb., 359), a re-
argument was allowed upon the application of the defend-
ant. Upon the second hearing the case was ably presented
by learned counsel on both sides, by printed brie& and by
oral argument. We have fully examined and reconsidered
the testimony contained in the bill of exceptions, and have
reached a conclusion different from that er pressed in the
former opinion.
It appears from the testimony that on January 1, 1864«
the defendant leased to the plaintiff the real estate in con-
J
Vol. 30] SEPTEMBER TERM, 1890. 539
Schields ▼. Horbach.
troversy, situated in the city of Omaha, consisting of three
and one-fiflh acres, at an annual rental of $35, the
plaintiff to pay all taxes assessed on the premises during
the lease. The following May the defendant contracted to
sell the plaintiff the leased premises for (1,600, of which
$700 was to be paid by October 1, by doing the brick and
stone work, and the pl&stering on a dwelling house for the
defendant. The balance Shields was to settle for with his
note, payable October 1, 1865. It is not claimed that this
note was .ever executed by the plaintiff. Upon the trial
be testified that the $700 was paid in work, as agreed.
This was, however, denied under oath by the defendant.
While it is true that the plaintiff did considerable work
upou the defendant's house, the clear preponderance of the
evidence shows that the plaintiff was fully paid therefor in
cash, and by orders given by Schields, which were accepted
and paid by the defendant. Horbach testified upon the
trial, that nothing was ever paid by Schields upon the
agreement of 1864. In this the defendant is corroborated
by the memorandum of settlement, made between the par-
ties on January 14, 1873, as well as by the fact that the
plaintiff, on the same day, accepted a new lease of the
premises. There can be no doubt that the agreement to
convey was mutually canceled by the parties. It is so
conceded by the plaintiff.
It also appears from the testimony that the plaintiff,
from 1864 to 1873, paid neither rent nor taxes. When the
settlement was made on January 14, 1S73, the plaintiff
was indebted to the defendant for merchandise in the sum
of $383.05, for which the plaintiff gave his note, bearing
12 per cent interest. At the same time the defendant, in
writing, leaserl the premises to the plaintiff for one year,
for a rental of $50, the plaintiff also agreeing to pay the
taxes for 1873. On the same day this lease was entered
into, or the day following, the defendant made to the
plaintiff the following proposition in writing :
540 NEBRASKA REPORTS. [Vol. 30
8chields V. Horbach.
"Omaha, Jan. 15, 1873.
"Having settled up all claims with Lew Schields to
date, I now make him this proposition to purchase said
premises of 3^ acres. If said Schields will pay up his
note of Jan'y 14th, for $383.05, and interest on same, in
full within six months from date, I will sell him the
premises leased to him Jan. 14, 1873, for (1,946, with 12
per cent interest from this date, and the additional price
or sum of what may be found due me for taxes paid by
me for 1864, '65, '66, '67, '68, '69, '70, '71, and 1872, and
interest at 12 per cent on such amounts from date tiiey
were paid by me.
" This proposition is made to enable Schields to acquire
title to said premises as a homestead, and his option to
purchase shall continue during the lease he now holds,
provided one-half of the same shall be paid up during the
year 1873, and the balance during 1874, with interest
"J. A. Horbach."
This was simply a proposition to sell the premises, and
required the acceptance of the plaintiff to make it binding
on either party. And it must have been accepted within
the time named, and on the conditions proposed, to be of
any validity, unless the offer was continued until it was
accepted. {Boston <k Maine Ry. Co. v, Barrett^ 3 Gush.,
224; Larmon v. Joi'don, 56 III., 204; Eliasonv, Henahatc,
4 Wheat. [U. S.], 225; FoUs v. WhUdiead, 20 N. J. Eq.,
65; Waterman on Specific Performance, sec. 434.)
Was this proposition accepted by Schields? It will be
observed that the option to purchase was in the first place
conditional that Schields should pay his note of $383.05
within six months from the date of the proposition. There
is no claim that any part of the note was paid within the
time specified. But a very small portion was paid within
a year, and the balance during the year 1875. Consider-
able importance was attached in the former opinion to the
fact that the defendant accepted the money on the note
Vol.. 30] SEPTEMBER TERM, 1890. 641
Scblelda t. Horbacb.
after the time limited in the option for its payment. As
we view the transaction^ the receipt of the money after the
time named for its payment, was not a recognition of the
option. The note was not given as a part of the purchase
price of the land, bnt in settlement for merchandise previ-
ously sold by the defendant to the plaintiff. Had the note
been given as a payment on the premises, then the accept-
ing of the money would have constituted a waiver of the
forfeiture. But the accepting by Horbach of the money
due him on another transaction, certainly did not have the
effect to revive the option given to the plaintiff to purchase
the property. The payment of the note within six months
was a condition precedent to the plaintiff's right to pur-
chase tlie land. It is clear that the plaintiff acquired no
interest in the property prior to 1876, for the note was not
at that time fully paid.
The option given Schields to purchase, was also condi-
tioned that he should pay one-half of the purchase money
daring 1873, and the balance in 1874. The total pay-
ments made by the plaintiff prior to February, 1876, as
testified to by Horbach, were only $222.26, which was less
than one-half of the principal and interest due on the note.
No part of the purchase money was paid daring the years
1873 and 1874.
The defendant testified that after February 1, 1875, the
plaintiff made numerous payments aggregating $1,029.68,
which were applied in payment of the balance due on the
plaintiff's note, and for rents and taxes ; that nothing was
ever paid on the land, and that plaintiff owed a balance on
rent and taxes of $97.64 on January 14, 1878.
The plaintiff testified that he made other payments in
addition to those testified to by Horbach, and that ail pay-
ments were made upon the purchase of the land. The
plaintiff put in evidence, Exhibit C, being a receipt signed
by Horbach for various items, inclading certain notes and
claims which were to be collected by the defendant. It
542 NEBRASKA REPORTS. [Vol. 30
Schields ▼. Horbaoh.
appears from the testimony that this receipt was given for
the purpose of preventing the creditors of Schields from
subjecting the claims to the payment of his debts. Several
of the notes included in the receipt were not at the time in
Horbach's hands, but some of them were afterwards turned
over to the defendant and were collected by him, and are
included in the aggregate amount testified to by Horbach.
Of the mechanic's lien on the Union brewery of $400, and
interest included in the receipt, the amount of $206.10
only was collected, for which Horbach gives credit. The
balance of this daira was uncollectible. The receipt recites
that <' the sum of $123.20 to his credit.'' The plaintiff
claims this shows that the note was at that time fully paid^
and that the sum of $123.20 was credited as a payment on
the land^ and that the amounts subsequently collected by
Horbach should be applied for the same purpose. The de-
fendant contends that the item of $123.20 was a claim
against James Yandanaker. It appears from the defend-
ant's testimony that this claim was never collected ; thai
one Collins gave his note in settlement of the matter, and
at Schields's request it was put into judgment, but was never
paid. While the testimony is somewhat conflicting on the
matter of payments, we fail to discover anything in the
record that would justify us in disturbing the finding made
thereon in favor of the defendant, by the di8trict court
The entire conduct of the parties, as disclosed by the
testimony, shows that none of the conditions of the option,
either precedent or subsequent, were waived. The lease
entered into in 1873 was, by agreement of the parties in-
dorsed thereon, extended to December 31, 1876, Schields
agreeing to pay as rent, in addition, to the $60 and taxes
stipulated for in the lease, thirty cents for each 1,000 brick
made and burned by the plaintiff on the premises during
the year 1876. The taking of an exten>ion of the lease,
and agreeing to pay an increased rent, is indicative that
Schields at that time did not consider that he had acquired
Vol. 30] SEPTEMBER TERM, 1890. 543
Sohleldi T. HorbAoh.
any rights under the option of January 16, 1873. It also
appears that the defendant, in 1876, conveyed the lands in
question to his father, A. Horbach. On January 14, 1878,
a new lease was entered into between the plaintiff and the
defendant^ as executor of the estate of A. Horbach, de-
ceased, for the period of three years. No objection was
made by the plaintiff to the taking of a new lease from a
different landlord, nor does it appear that the plaintiff at
that time made any claim that he had an interest in the
property. The plaintiff subsequently paid rents under
this lease, the receipts therefor specifying that the money
was received on ground rent. It is also established be-
yond question that at about the time the 1878 lease ex-
pired, the defendant leased two-thirds of the identical same
property now claimed by Schields to one H. M. Hurl but,
for a term of four years, who took possession, planted two
crops, and farmed the same during the entire term. The
plaintiff, having full knowledge thereof, made no claim
upon either the defendant or Hurlbut for the land. In the
fall of 1879 the plaintiff moved his house near the south
line of the tract in controversy. Schields claims that he
did this of his own accord, to get his house away from an
excavation at the brick yard. The defendant swears that
the building was moved by his orders; that he told Schields
if he would pay the balance due on rent, and the amount
Schields bad collected on the Creighton claim, and move
his house to the south line, when the defendant came to
lay out the tract into lots, that he would deed a lot to his
wife. Horbach says that the plaintiff agreed to this and
moved the house in accordance with that arrangement. The
building not being moved far enough to suit the defend-
ant, on his orders it was moved the second time. The
whole circumstances appearing in evidence are inconsistent
with the position now contended for by Schields that he had
any interest in the premises. It is clear to our mind that
Bcliields never accepted the proposition made by Horbach
544 NEBRASKA REPORTS. [Vol. 30
Steyens v. Canon.
in 1 873. Until that proposition was accepted, the plaintiff
was not bound thereby. Horbach could not have enforced
the payment against Schields. The plaintiff not being
bound, he was not entitled to a specific performance.
(Waterman on Specific Performance, sec. 196.)
The decree of the district court dismissing the plaintiff's
bill was right and is
Affirmed.
The other judges concur.
Cassie a. Stevens v. Washington I. Cabson.
[Filed Octobks 7, 1890.]
1. Husband and Wife: Conveyances Between: Burden or
Proof. In a contest between a wife and a creditor of her hus-
band, over property transferred to her by him, after the debt is
contracted, she most establish that she is a htma flde pnrcfaaser,
by a preponderance of the evidence.
2. ; : . The fact that the wife had posaeasion of
the property, claiming ownership, when it was attached by tiie
creditor of the husband, does not relieve her of the burden of
proving that the transfer was not made to her for the purpoee of
hindering, delaying, and defrauding such creditor.
Error to the district court for Fillmore county. Tried
below before Morris, J.
F, B, Doniathorpey for plaintiff in error.
J. D, Carson, W. C. Sloan y and W. V. Fifield, contra:
Cases cited by counsel are, in the main, referred to in
opinion.
^
Vol. 30] SE1*TEMBER TERM, 1890. 646
Stevens v. Carson.
NORVAL, J.
The plaintiff in error sned out a writ of replevin in the
court below, against the sheriff of Fillmore county, to re-
cover possession of a general stock of goods and merchan-
dise, taken by defendant in error under several writs of
attachment issued against Garrett Stevens, )ier husband ;
she claiming title to the goods under an allied bill of sale
from her husband to her. She failed to give the replevin ^
bond to the coroner, required by law, and the suit was
prosecuted against the sheriff for the conversion of the
property, praying for the restoration of the goods, or judg-
ment for their value.
The defendant answered admitting that he was sheriff of
the county, and denying that the plaintiff was the owner
of the goods. That orders of attachment were isued
against Garrett Stevens and the goods seized by the de-
fendants to satisfy the following claims:
January 22, 1889. Donald Bros |208 43
" 24, " S. A. Blasland & Co 570 95
24, " J. P. Robinson Notion Co.... 141 06
(€
Total $920 44
- The only right and title of the plaintiff to the property,
was by a pretended bill of sale made by Garrett Stevens to
her on the 15th of January^ 1889, at which time said
Stevens was wholly insolvent, of which the plaintiff had
full knowledge and notice. That no consideration was
paid by her on said pretended sale, which was entered into
by the plaintiff and her husband with the intent and sole
purpose of hindering and delaying the creditors of her
husband, and was not a bona fide sale. That plaintiff knew
at the time the pretended sale was made that it was for the
purpose and intent aforesaid ; that no change of possession
took place, and that at the time defendant levied on said
35
546 NEBRASKA REPORTS. [Vol. 30
8 evens t. Canon.
goods and chattels they were the property of said Garrett
Stevens.
The plaintiff replied by a general denial.
There was a trial to a jury, with a verdict, finding that^
at the commencement of the action, the right to the pos-
session of the property was in the defendant, with dam-
ages assessed at five cents. The plaintiff's motion for a
new trial was overruled and the cause brought up to this
court on the following assignments of error:
"I. The verdict is against the weight of evidence, is
contrary to law, and the court erred in not granting a new
trial.
" II. In refusing to give the first, second, third, fourth,
fiflh, sixth, seventh, and eighth instructions asked for by
plaintiff.
"III. In giving the third and fourth instructions asked
for by defendant.^'
On the 15th day of January, 1889, Garrett Stevens, the
husband of the plaintiff, was engaged in the dry goods
and grocery business at Strang, Nebraska, and on that day
he exet uted and delivered to the plaintiff a bill of sale of
his entire stock of goods, worth from $1,800 to $2,000.
The consideration specified in the bill of sale was $1,150.
At the time of the alleged sale, Garrett Stevens was in-
debted in about the sum of $1,400, besides an alleged in-
debtedness of $1,150 to his wife. He was the head of a
family, and owned no projicrty other than that covered by
the bill of sale. The plaintiff was engaged in the milli-
nery business at Strang at the time of the transfer. Her
stock was of the value of shout $300. At the time the
bill of sale was made, Mr. Stevens was being pressed by
his creditors for money, of which fact the plaintiff had
knowledge. The plaintiff* claims, and she and her husl)and
both so testified on the trial, that she let her husliand have
money and properly from time to time after their marriage,
for which he agreed to account; that on the 30ih day of
Vol. 30] SEPTEMBER TERM, 1890. 647
StevexiB y. Carson.
Jane, 1886, they had a settlement, bj which it was found
that he was indebted to her in the sum of $1,000; that on
that daj he gave her, in settlement, his promissory note
for $1,000, due in three years, drawing six per cent inter-
est ; that when the bill of sale was made there was due
upon the note $1,150; that part of the property was
transferred to her in payment of this note, and that he, at
the same time, gave her goods to the amount of $500,
claiming that the same was exempt property. The stock
covered by the bill of sale was levied upon by the sheriff
to satisfy the several writs of attachment sued out against
Garrett Stevens.
It was the theory pf the defendant in the court below
that the transfer of the property from Garrett Stevens to
his wife was fraudulent, and was made for the sole purpose
of hindering and delaying his creditors in the collection of
their debts. The plaintiff testified, among other things,
upon cross-examination, in answer to questions, as follows :
Q. How did it come that he paid this (referring to the
note) before it was due?
A. Because his creditors were pressing him, and if I got
the goods I could satisfy his creditors, whereas if they got
it there would be only one or two that would get anything,
and the rest would have to go without.
Q. Were you not afraid that about the time you made
this transfer that the creditors would come in and take the
goods by attachment?
A. There were two houses that had written threatening
letters.
Q, You knew of that?
A. Yes, sir.
Q. And then you and he came to Geneva and had these
matters drawn up?
A. Yes, sir.
Q. Mr. Stevens came with yoa •
A, Yes, sir.
548 NEBEASKA REPORTS. [V<>i>. .JO
Stevens y. Carsoa.
Q. That was after the houses had made threats and were
about to push their claims and collect their debts?
A. Yes, sir.
Q. Wasn't this transfer from Mr. Stevens for the pur-
pose of placing the property where these other creditors
could not reach it?
A. No, sir ; it was not.
Q. Didn't you state a while ago that you knew that
they were going to push their claims?
A. I knew that, but I wanted it where Mr. Stevens's
creditors could not get it all, but each get his share.
Q. One did get it all.
A. I wanted to loan him the money if he would leave
the goods with me, and pay the debts, with interest.
Q. Why didn't you turn the goods over to them?
A. They wouldn't get that much out of them.
Q. It was to pay your debts?
A. It was to get the goods and pay it out to Mr. Ste-
vens' creditors.
Q. That was the only object you had in making that
transfer?
A. I knew there were sufficient goods to settle my own
indebtedness and all his creditors, if I could keep them.
Q. You say that he owed other creditora about |1,300?
A. Yes, sir.
Q. And you Jl,100?
A. Yes, sir.
Q. Could that pay it out?
A. If I had continued in business I could have made it
out of the goods, with what goods I have there in the store
of my own.
Q. Would you have made the transfer at the time if it
had not been for the fact that these creditors were crowding
your husband?
A. I should not have molested Mr. Stevens till the not«
was due if it had not been for that.
Voi^ 30] SEPTEMBER TERM, 1890. 549
Stevens y. Carson.
Q. You told him that the creditors were coming on and
YOU wanted to fix the matter up so as to put them off?
A. No^ sir; I did not tell him so.
Q. It was the mutual understanding between you and
Mr. Stevens that this should be done for that purpose?
A. For the purpose that I should pay myself first and
ailerwards pay off the other creditors.
It appears from the testimony contained in the bill of
exceptions that Garrett Stevens on December 29, 1888, for
the purpose of obtaining goods on credit, made a written
statement to Donald Bros, of his liabilities as follows
"S. A. Blailand, Quincy, Illinois, due March 1, $402.50
due January 1, $242.43; iii small amounts, about $400
confidential, and all other debts not included above, not
any.'' It will be observed that the alleged indebtedness
of Mr. Steveas to the plaintiff was not included in the
above statement. It does not appear from the evidence in
the record that the goods transferred to the plaintiff were
invoiced. The property was turned over to her in the
bulk without any separation from the stock, that part
claimed as exempt from that claimed to have been pur-
chased.
The bona fides of the transaction were directly in issue
iipon the trial in the district court. Upon this question
the court instructed the jury, at the request of the defend-
ant in error, as follows :
"3. The jury are instructed that in a contest between
the wife and the creditors of her husband, in regard to
property transferred to her by liira, there is a presumption
against her which she must overcome bv affirmative proof
and prove beyond question.
"4. The jury are instructed that in a contest between
the wife and the creditors of her husband, in regard to
property transferred to her by him, there is a presumption
against her which she must overcome by affirmative proof
and prove beyond question the bona fides of said sale."
o60 NEBRASKA REPORTS. [Vol. 3i>
Stevens ▼. Quson.
The giving of these instructions is made the basis of the
tliird assignment in the petition in error. These instruc'
tions appear to have been copied either from the syllabus in
AuUtman, Taylor & Co, v. Obei^meycr^ 6 Neb., 260, or from
the instructions copied in the opinions in the c*a.sos of
Lipscomb v, Lyon, 19 Id., 511, and Woodruff r. Whife,
25 Id., 745. It is claimed that these instructions held the
plaintiff to a greater degree of proof than is required in
civil cases. They requii'ed the plaintiff, in order to recover,
to establish the good faith pf the transfer of the proijerty
beyond question. The word "question" is synonymous
with "doubt." The plaintiff, by the charge of the court,
was therefore held to as high degree of proof as is required
of the state in a criminal prosecution. It has been repeat-
edly held by this court in civil cases, that the party hold-
ing the affirmative of an issue, is only required to estn!)Iish
it by a preponderance of the evidence. (Patrick v. Leach,
8 Neb., 538; Search v. Miller, 9 Id., 27; Kopplekom et
a/, t;. Huffman, 12 Id., 95; Altschxder v, Algaza, 16 Id.,
631; Dunbar v. Briggs, 18 Id., 97.)
Where a debtor transfers properly to his wife, and such
transfer is contested by the creditors of the husband, the
presumption is against the boi\a fides of the transaction,
and the law places the bunlen upon the wife to show that
the sale was not made to defraud the creditors of the hus-
band. But she is not required to satisfy the jury in sueh
a case beyond question that the sale was an honest one. A
preponderance of the evidence is all that is required. This
view is in direct line with the decision of this court in
the case of Thompson v. Loenig, 13 Neb., 386. We quote
from the syllabus : " When property is transferi-ed by hus-
band to his wife after a debt is contracted, as against that
debt she must show by a preponderance of the proof that
she is a bona fide purchaser."
The third and fourth instructions stated the rule too
strongly against the wife, and should not have l)een given
Vol. 30] SEFIEMBER TERM, 1890. 551
SieTens v. Canon.
to the jury. It follows that AtUtmany Taylor & Co. v. Ober-
meyevy Lipscomb v. Lyon, and Woodruff r. White, are over-
ruled, in 8o far as those cases hold that the good faith of
transactions between husband and wife in relation to the
transfer of property from the one to the other, by which
creditors are affected, must be established beyond question.
Eight instructions requested by the plaintiff in error
were refused. It is conceded in the brief of the plaintiff
that no error was committed in not giving the first, second^
third, fifth, and eighth, as they were substantially given by
the court in his own instructions.
Complaint is made of the refusal to give the plaintiff's
seventh request, which reads :
**If you shall believe from the evidence that the prop-
erty in controversy was in the possession of the plaintiff,
she claiming to be the owner thereof, at the time it was
taken under the attachment, this is prima facie evidence
of ownership in her; and if you further believe, from the
evidence, that while the plaintiff was so in possession the
defendant took the same from her, then you should find the
right of property in the plaintiff, unless you further find,
from the evidence, that the plaintiff did not own the prop-
erty, or that the sale thereof from Garrett Stevens to the
plaintiff was without sufficient consideration."
This request does not contain a correct statement of the
law applicable to the case. The fact that the plaintiff had
possession of the property when taken under the writs of
attachment, was not prima facie evidence against the attach-
ing creditors that she was the owner. In a contest l)etween
her and the creditors of her husband, the burden was upon
her to satisfy the jury, by a preponderance of the testi-
mony^ that the property was not transferred to her to hin-
der, delay, and defraud such creditors. The instruction
entirely ignored the question of bona fides of the trans-
action, and required the defendant to prove that the
plaintiff did not own the property. The fourth and sixth
552 NEBRASKA REPORTS. [Vol. 30
McCara v. Cooley.
requests were not based upon the evidence in the case, and
were properly refused.
It is insisted that the court erred in sustaining the de-
fendant's objections to certain questions propounded to the
plaintiff by her attorney, when on the witness stand. It
may be observed that such errors are not assigned in the
petition in error, and will not be considered by this court
As there must be a new trial, we refrain from express-
ing an opinion upon the sufficiency of the testimony to
sustain the verdict. The judgment of the district court
is reversed and the cause remanded for further proceedings.
Bevebsed aud remanded.
The other judges concur.
A. J. McCarn, Administrator, etc., et al., appel-
lees, V. Eben Cooley et al., appellants.
[Filed Octobkb 14, 1890.]
1. Boviow: Bill OF Exceptions Essential. Alleged errors and
matters of exception which are not properly snbjects of record,
must be preserved in writing and certified as required by statute,
in order to be considered by the supreme court; and affidavits in
support of, or in opposition to, any proceeding in the court below,
must be embodied in a bill of exceptions.
5^ : Stipulation Insufficient. A stipulation of the attor-
neys in a cause stating that the record is a correct transcript of
the proceedings, or that the files annexed are the original files,
and that the transcript may be accepted as the bill of exceptions,
may be sufficient to justify the judge in the court below in 8i;>Q-
ing the same as a bill of exceptions, but forms no sufficient basis
for the supreme court to consider the same as a bill of exceptions,
without having been settled and signed as such. (See Credit
Fonder v. Rogers^ 8 Neb., 34.)
J
You 30] SEPTEMBER TERM, 1890. 553
McCarn y. Cooley.
Appeal from the district court for Knox county. Heard
below before Powers, J.
J. H. Mcintosh, and John L. Webster {Ambrose &
StricUer, being also of counsel), for apj>cllants, cited, as to
the notice of sale: Freeman, Executions, sec. 285; Mur-
free, SheriiFs, sec., 676; Farr v. a9/wm, Rich. Eq. Cas.
[S. Car.^, 122, [24 Am. Dec., 396].
/. H. Berrymauy and Holmes & Hays, co7itra, cited, on
the same point: Code, sec. 497; Perkins v. Spaxdding, 2
Mich., 167.
Cobb, Ch. J.
On the 28th day of March, 1887, the appellees and
plaintiffs filed their petition in the district court of said
county, to foreclose a mortgage given by the appellants and
defendants, Eben Cooley and Pluebe, his wife, on a certain
tract of laud situate in said county, to- wit : Tlie east half
of the northeast quarter, and the east half of the southeast
quarter of section 32; the west half of the northwest
quarter, the west half of the southwest quarter, tlie east
half of the southwest quarter, the southeast quarter of the
northeast quarter, and the southeast quarter of section 33 ;
the southwest quarter of the northwest quarter, the west
half of the southwest quarter, and the southeast quarter of
the southwest quarter of section 34, township 30, range 6
west, aggregating seven hundred and sixty acres, to secure
to the plaintiffs the payment of $2,700, according to the
terms of certain notes and bonds therein described. The
mortgagors were personally served by summons on April
4, 1887.
The Dakota Mortgage Loan Corporation, of Boston,
Mass., made defendant by publication, answered on May
19, 1887, that there was then due from the mortgagors
564 NEBRASKA REPORTS. [Vol. 30
McCarzi y. Ciooley.
$950 on a subsequent mortgage, and a lien junior to that
of the plaintiiTs, for whicii judgment was asked and distri-
bution of the proceeds of the mortgaged premises accord*
ing to priority of liens.
On the same day a decree was taken by the plaintiffs
foreclosing their mortgage and directing the premises to be
sold by the sheriff of the county as upon executions at law
and the proceeds brought into court to be applied to the
satisfaction of the sum of $3,1 15 as found due with costs
and accruing costs. On the same day a decree was entered
in favor of the defendant, The Dakota Mortgage Loan Cor-
poration, as a junior lien to that of the plaintiffs on the mort-
gaged premises, for the sum of J850 to be satisfied accord-
ingly and. to have execution therefor. On March 1, 1888,
an order of sale was issued to the sheriff, the lands were
appraised, aggregating the value of $4,880, and on April 13,
1888, were sold to Eugene A. Crum for $3,325. A mo-
tion to set aside the sale, supported by affidavits, upon the
following grounds, was overruled, and the sale was con-
firmed :
" I. That the files of the cause were lost from the clerk's
office and could not be found at the time of the order of
sale or the day of sale.
'^ II. That the notice of sale does not state tlie terms of
sale.
" III, On the day of sale there was no copy of the ap-
praisal or of the clerk's and treasurer's certificate on file in
the clerk's office, and the appraisment was not its true
value.
"IV. The appraisers fixed a lower estimate than tbey
thought the lands were worth, at the instance of the plaint-
iffs.
"'^ V. That one of the appraisers estimated it at $18 per
acre.
'^ VI. That they did not view the land in making their
appraisement. At the commencement of this action th«
Vol. 30] SEPTEMBER TERM, 1890. 566
MoCam t. Cooley.
prior mortgage of the Phoanix Insnranoe Company was
unpaid y and was not made a party to the proceedings of
foredofiure, by reason of which the lands did not bring as
mach as they otherwise would have brought.
"VII. That said prior mortgagee has brought an action
in the United States court for foreclosure, in which all
parties interested are included, that the court may find the
amount due to each lien holder.
"VIII. That the plaintiffs agreed, prior to the bringing
of this action, to take $2,500 and release their claim, and
at their request the mortage for $6,350 to the Dakota
Mortgage Lioan Corporation, to pay the claims of plaint-
iff and others, was made and placed of record ; after which
the plaiutifis refused to accept the amount, and the Da-
kota Mortgage Company refused to release its mortgage,
defeating the proposition, and obstructing defendants from
procuring it elsewhere, and causing the lands to be sold for
less than their true value.
"IX. Tliat the lands should not have been sold in the
parcels as returned.
"X. That the lands did not bring two-thirds of the ap-
praised value, but sold for less than their value in cash.
"XI. That the mortgagors are in a position not to re-
deem on account of the lien of the Dakota Mortgage
Loan Company, which is in collusion with the plaintiffs;
and after paying the commission to that com{)any there is
due from it sufBcient to discharge the prior liens against
the lands.
It appears from the record, that the sale of the mortgaged
premises, in this action, was duly confirmed by r^ular
proceedings in open court on the 24th day of May, 1888.
On the 14th day of June, 1888, the Hon. Isaac Powers,
Jr., judge of said <x>urt, by an order at chambers, after
reciting that it had been made to appear on behalf of said
defendants that they had been unable, without fault on
their part, to secure the settlement of a bill of exceptions
666 NEBRASKA REPORTS. [Vol. 30
McCitrn y. Cooley.
in said cause, within the time allowed by law, extended
such time and allowed them forty days from said date in
which to prepare such bill of exceptions, and submit the
same to the adverse party, or his attorney, for examination
and amendment. This order was made upon the affidavit
of Phoebe Cooley, one of the defendants in the case, which
affidavit is in the files. Besides these two papers, there is
nothing in the case in any manner referring to a bill of
exceptions; but there is a stipulation which was probably
intended by the parties to supersede and take the place of
a bill of exceptions. This it cannot do. In the case of
Ray V. MasoUy 6 Neb., 101, this court held, as appears
from the syllabus, '^ when evidence has been introduced in
the court below, which is not properly a matter of record,
a party who desires to avail himself of it in the supreme
court, must preserve the same by a bill of exceptions."
This case was followed by that of the Q^edit Fonder of
Ameinca v. Rogers^ 8 Id,, 34. In that case, like the one
at bar, the parties had entered into a stipulation as to the
facts and evidence upon which the judgment of the trial
court was based. I copy the syllabus entire:
"1. Exceptions which are not properly a matter of rec-
ord must be preserved in writing, and properly certified
by the presiding judge in order to be considered by tlie
supreme court; and affidavits in support of, or in oppo-
sition to, any proceeding in the court below, must be em-
bodied in a bill of exceptions.
"2. A stipulation of the attorneys in the cause, stating
that the record is a correct transcript of the proceedings,
may be sufficient to justify the judge in the court below in
signing the bill as presented, but forms no basis for the
supreme court to consider the matters embodied in the bill
of exceptions." This case was followed in the subsequent
ones of State, ex rel, Stratton, v. Knapp, 8 Id., 436; Atdt-
man v. Howe, 10 Id., 8; Eaton v. Caiiruih, 11 Id., 231;
WaUcer v. iMz, 14 Id., 274; Kyle v. Chase, Id., 528;
r
Vol. 30] SEPTEMBER TERM, 1890. 557
McCarn v. Cooley.
Dolen V. State, 15 Id., 405; Tessiet- v. Q^owley, 16 Id.,
369; McMuriry v. State, 19 Id., 147.
Of the four points presented by the plaintiffs in error,
three are based exclusively upon matters falling within the
rule of the above cases, and not being presented by a bill
of exceptions, cannot be considered by this court.
Objection is made to the notice of sale. A copy of the
notice of sale, with an affidavit of the publication thereof,
is attached to the sheriff's return, and will be deemed and
taken as a part of such return, and accordingly as a part
of the record proper. There are two objections made to
the notice. First, that it does not contain the title of the
cause; and, second, that it does not state the terms of sale.
As to the first objection, the title of the cause as contained
in the caption of the petition is: "A. J. McCarn, Admin-
istrator for the Heirs of Susan K. Peterson, Decease<l,
Alex. K. Peterson, and Jerome Dickson, Plaintiffs, vs.
Eben Cooley and Phoebe Cooley, Dakota Mortgage Loan
Corporation, and J. H. Yates, Defendants." The words
"for the heirs" in the above are clearly surplusage, and
were so considered by the parties, as they are dropped
out of the title in the subsequent papers. With the ex-
ception that these surplus wonls are omitted in the notice,
the title of the case is the same, and their omission is
proper, if at all material. While there is no provision of^
statute requiring the notice of sale to contain the title of
the cause, it has always been customary, and as a mark of
identification the notice should contain substantially the title
of the cause. But the retention of useless and meaning-
less words that may have crept into the title, as used in
other papers in the case, will not vitiate the notice.
As to the second objection, the notice contains the words
''sell said real estate at public auction to the highest and
best bidder for coda to satisfy said two orders of sale."
The word costs is so obviously a typographical error, the
word cash being intended, that no one could have failed to
568 NEBRASKA REPORTS. [Vol. 30
Horst T. HcCorniick Co.
undei*staiid it. The statute does not provide that notices
of sale contain the terms of sale; nor does it, that I can
find, in terms prescribe or fix such terms; but as the object
and pur})ose of foreclosure proceeding is to reduce the claim
of the plaintiff to cash, and as there is no provision for
making such sales upon credit, or for receiving anything
else in payment for mortgaged premises but current money,
all persons must and do presume that sudi sales will be
made for cash alone, yet it is a custom to be approved and
encouraged, that such notices contain the terms — cash, as a
matter of form. But unless the language of the notice is
calculated to mislead to the belief that the terms of sale
are to be other than for cash, it must not be held sufficient.
The order of the district court is
Affirmed.
The other judges concur.
George Horst et at., v. McCormick Harvester
Machine Co.
[Filed October 14, 1890.1
. Decedents' Sstates: Claims Against: Jueisdiction. An
action ugainst hfirs, devi>ee8, or legatees to recover real or per-
sonal estate which htus been received by them as distributees, of
any estate whit h is liable for any debts under the tenth sabdi-
TiHion, or division o( contingent claims, of sec. k67, chapter 23,
Comp. Stats., is not an oriKinal action, but a special prticeed-
for the enforcement and collection of a claim allowed or estab-
lished in the county court. The district court of the proper
county has jurisdiction of such proceedings.
I. — — : : Limitations. In a case where a claim against a
decedent's estate was allowed in the county court, an appeal
upon such alhiwance taken to the district court, by the admin-
iBtrator, the claim again allowed in the district oourt and oerti-
Vol. 30] SEPTEMBER TERM, 1890. 659
Hor8t y. McCormlck Co.
fied back to the county coart, hMj that the one year's time
limited for bringing an action or proceeding thereon under sec-
tion 266 of chapter 23, Comp. Stats., commenced to ran npou
the entry of snch certification in the county court.
Error to the district court for Polk county. Tried
below before Norval, J,
A. C, Montgomery, for plaintiffs in error, cited : BaU v.
La Clair, 17 Neb., 39.
R, Wheeler J contra.
Cobb, Ch. J.
This action was brought in the district court of Polk
county for the purpose of establishing the lien of the plaint-
iff upon certain real estate, the property of W. B. Dayde-
mude, deceased, which had been by the county court of
said county distributed to and received by the heirs of said
deceased and by them conveyed to other persons who were
also made defendants.
The plaintiff's claim against the deceased, which was for
agricultural machinery sold to him in his lifetime, was
presented to the county court and by it allowed, whereupon
the administratrix of the estate appealed the said case to
the district court. Here the judgment of the county court
was affirmed. The judgment was afterwards, on the 16th
day of June, 1888, duly certified by the said district court,
to the said county court, and the administratrix of said
estate was thereupon by the said county court ordered to pay
thesameoutof any personal property or moneys belonging
to said estate and in her hands. There was no money or
other i)ersonal property belonging to said estate, and in the
meantime, on the 30th day of March, 1886, upon hearing
in the said district court for a partition of said estate
amongst the heirs at law of said deceased, it was finally
decreed that said defendants, Laura Labbart and Alice
560 NEBRASKA REPORTS. [Voi. 36
Hont ▼. McCormlck Go.
Hanson, have as their share of said estate the south half
of the southeast quarter of section 24, in township 1 5, of
range 8 west, in Polk county, and that they, the said
Laura Labbart and Alice Hanson, pay all just claims
against said estate..
The foregoing is the cause of action as set out in the
amended petition. There had been a petition which was
demurred to, and the demurrer sustained. There was
neither demurrer nor answer to the amended petition, whicli
was taken as confessed by default, and upon evidence,
judgment was rendered for the plaintiff for the sum ot
$144.07 and oosts, which was made a lien upon the real
estate above described.
The cause was brought to this court upon error. The
following are the errors assigned :
^'I. The cause of action is against heirs and their as-
signees, to recover under section 266, chapter 23, Compiled
Statutes, and was not brought within one year from the
time said action accrued.
"II. The court had no jurisdiction of the cause of
action.
"III. The court erred in overruling the demurrer.
"IV. The court erred in entering judgment on the
amended petition.
"V. The defendant in error had obtained judgment
against Cornelia Daydemude, who is one of the plaintiffs in
error, for this same cause of action, which said judgment
is a bar to any further cause of action.
"VI. The amended petition of the plaintiff was not
filed within thirty days from the 22d day of May, 1888,
and the plaintiffs herein had no knowledge of the filing of
said petition until after judgment was rendered thereon.
"VII. For errors of law api)oaring in this case."
There was no motion for a new trial, nor i.s there any
bill of exceptions in the case. All of defendants Itcing in
default of an answer, we can only look to the amended
Vol. 30] SEPTEMBER TERM, 1890. 561
Hont ▼. McCormick Co.
petition for the facts of the case. If they are sufficient to
constitute a cause of action^ the judgment must be affirmed.
Plaintiff in error, in the brief of counsel, presents five
points: First, that the county court, as a court of probate,
having exclusive original jurisdiction of all matters of
probate, settlements of estates of deceased persons, etc., the
district court has no jurisdiction of this case. The pre-
mises are true, but the conclusion is false. This action is
not an original one, as between the plaintiff and the estate
of the deceased or his administrator, but is founded upon
the judgment of the county court in the original proceed-
ing therein, which, however, was for a time suspended by
the appeal to the district court.
Section 266 of chapter 23 of Compiled Statutes pro-
vides that, "When the heirs, devisees, or legatees shall
have received real or personal estate, and shall be liable
for any debts, as mentioned in this subdivision, they shall
be liable in proportion to the estate they may have respect-
ively received; and the creditor may have any proper
action or suit in law or equity, and shall have a right to
recover his claim against a part or all of such heirs, devisees,
or l^atees to the amount of the estate they may have re-
spectively received; but no such action shall be maintained
unless commjenced within one year from the time the claim
shall be allowed or established." In the case at bar, while
the claim was, in. one sense, ''allowed or established'' by
the judgment of the county court, yet, as we have seen ,
such allowance or establishment was suspended by the ap-
peal to the district court, and it only became operative
upon being affirmed in the latter court, and certified back.
This appears by the record to have been done on or before
the 25th day of June, 1888, but it does not definitely ap-
pear when the same was done. From the amended petition
it appears that the claim was allowed in the county court
on the 24th day of May, 1886. That the case was appealed
to the district court, where it was heard on the 11th day
36
n
562 NEBRASKA REPORTS. [Vol. 30
Horst y. McCormiok Ck>.
of March, 18^5, but it does not appear when the decision
or judgment of said court was rendered thereon. But it
does appear that the administratrix gave notice of appeal
to tiie supreme court, but that no sucli appeal was ever
perfected. It also appears from the amended petition that
tiie said judgment was certified back to the county court
on the 16th day of June, 1888. The summons in the case
at bar was issued and bears date pn the 14th day of March,
1888, so that if it appeared that judgment was rendered
in the case on the same day that the hearing was had in
the district court, and it were held that the one year limi-
tation of the statute above cited commenced to run at the
date of the judgment, it would have expired the day be-
fore the one upon which the suit was commenced. But it
does not appear, nor is there any presumption, that the
judgment was rendered on the same day of the hearing in
the district court ; nor do I think that the one year limita-
tion commences to run from the date of the judgment in
that court, but from the time when the record of the case
in the county court would prove the fact that the claim was
allowed or established.
The point that the action was prematurely brought is
not made. Had it been, it would hav« been an embar-
rassing one.
The only judgment which appears to have been rendered
in favor of the plaintiff against Cornelia Daydemude was the
order of the county court made upon the certificate of the
allowance or establishment of the said claim by tlie district
court. This was no bar to the suit now being considered;
on the contrary, it is the foundation and cause of action
upon which this suit is based. It does not appear that auy
demurrer to the amended petition was overruled, or even
presented. It does not appear that the plaintiff was lim-
ited to thirty days in which to file an amended petition.
The same must therefore be presumed to have been filed in
time.
Vol. 30] SEPTEMBER TERM, 1890. 663
Goldsmith ▼. Fuller.
There being no bill of exceptions^ of course no errors of
law occurring at the trial appear in the case. The judgment
of the district court is
Affirmed.
Maxwell, J., concurs.
NoRYAL, J., having tried the cause in the district court,
did not sit
[Filed Occobbb 14, 1890.]
1. Husband and Wife: CasDrroB's Bill. In a creditor's bill
broagbt to subject certain real eBtate oooTeyed by a husband to
his wife, the proof clearly established the fact that the cooHid-
eratlon which paid for the real estate was deriTed from the sep-
arate estate of the wife, but that the title was taken in the
name of the bnsbaod under a parol agreement to conTey to her
on demand. The court below having found in favor of the wife,
hddf that the judgment was supported by the clear weight of
evidence.
2. : . AeW, That the proof &Ued to show that the
creditor had relied upon the husband being the owner of the
property in extending certain credit
Error to the district court for Valley county. Tried
below before Tiffany, J.
Nightingale Bros., for plaintiffs in error.
Wall & Bradley, contra.
Maxwell, J.
This is an action in the nature of a creditor's • bill
brought by the plaintiffs against the defendants, to subject
I so fies
41 no
Samuel Goldsmith et al. v. W. A. Fuller et ux. ^ ^1
» 203
564 NEBRASKA REPORTS. [Vol. 30
Goldemith t. Fuller.
oertain real estate held by Eliza Fuller to the payment of
the plaintiffs' judgments. The defendants are husband and
wife, and the conveyance was made directly by the hus-
band to his wife. There is a stipulation of facts in the
record as follows :
''And now come the plaintiffs by Nightingale Bros.,
their attorneys, and the defendant Eliza Fuller by her at-
torneys, Wall & Long, and stipulate and agree that the
following facts are true and shall be received in evidence
in said cause, to^wit:
''1. That said plaintiffs are partners doing business un-
der the firm name of Groldsmith, Stein & Co.
"2. That at the February term of the county court of
said county, on, to-wit, the — day of February, 1887, said
plaintiffs recovered a judgment against Josephine R. Ful-
ler, E. S. Fuller, and the defendant W. A. Fuller in the
sum of $339.59 and |5.60 costs, and that said judgment
is still in full force and wholly unpaid.
'' 3. That a certified transcript of said judgment was on
February 11, 1887, duly filed and docketed in the district
court of Valley county, Nebraska, and that on February
12, 1887, plaintiffs caused an execution to be issued ou
said judgment, which was delivered to the sheriff of said
county, to-wit, W. B. Johnson.
'' 4. That said sheriff, for want of goods and chattels
p{ Josephine E. Fuller, E. S. Fuller, and the defendant
W. A. Fuller whereon to levy, levied said execution, by
instructions of plaintiffs, upon the real estate described in
said petition as the property of said W. A. Fuller, defend-
ant, on February 14, 1887, and on February 17, 1887,
duly advertised said property to be sold under said execu-
tion upon the 19th day of March, 1887, ab one o'clock P.
M.; that said real estate was not sold by said sheriff on said
day for the reason that the legal title to said premises ap-
peared of record in the defendant Eliza Fuller.
" 5. That said defendant Eliza Fuller is the wife of the
Vol. 30] SEPTEMBER TERM, 1890. 565
Goldimith ▼. Fuller.
defendant W. A. Fuller, and the said E. S. Fuller is the son
of the defendant W. A. Fuller, and the said Josephine R.
Fuller is the daughter- in-law of the defendant W. A. Ful-
ler and the wife of E. S. Fuller ; and each of said co-
judgment debtors, to- wit, Josephine R. Fuller, E.S. Fuller,
and W. A. Fuller, is insolvent, and said W. A. Fuller is
unable to pay said judgment debt unless the real property
so levied upon is applied to the payment of the same;
" 6. That on December 1*8, 1886, the defendant W. A.
Fuller made and delivered a deed of conveyance of the
real estate, in plaintiff's petition described, to the defend-
ant Eliza Fuller by deed of general warranty. * * *
That though said deed recites a consideration of $2,000, no
consideration actually passed or moved from said Eliza
Fuller, to her husband, the said W. A. Fuller at the time
of said transfer, nor subsequent thereto.
** 7. That on August 4, 1886, defendant W. A. Fuller
signed, executed, and delivered to plaintiffs' three notes
as follows, to-wit : one for $318.32, due November 1,
1886; one for $318.32, due January 1, 1887 ; and one for
$318.32, due March 1, 1887; each drawing interest at ten
per cent per annum from March 24, 1886 ; that said notes
were signed by said Josephine R. Fuller and E. S. Fuller
as principal makers, and by said W. A. Fuller as surety,
and were given to secure an extension upon indebtedness
then due these plaintiffs.
'' 8. That at the time said notes were signed by defendant
W. A. Fuller, and said extension of time so given to the
i<md Josephine R. Fuller and the said E. S. Fuller, the
said Josephine R. Fuller was conducting a general retail
mercantile business in the town of Arcadia, Valley county,
Nebraska, and was the owner and in possession of a store
and stock of goods..
"9. That on November 15, 1886„the first of said above
mentioned notes was paid in full. That prior to the ma-
turity of the second note, all of the property of the said
566 NEBRASKA REPORTS. [Vol. 30
Goldimltli y. FtiUer.
Josephine R. Fuller was seized under writs of attachment
4t the suit of divers creditors of said Josephine R. Fuller,
and was ultimately sold to satisfy the judgments obtained
by said creditors.
^'10. TLat prior to these transactions^ on, to-wit, the
25th di^y.of November, 1881, while the defendants were
residing in the state of Iowa, the defendant Eliza Fuller
conveyed to her husband, the defendant W. A. Fuller, by
deed of general warranty, certain real property situated in
the town of Eldora, Hardin county, and state of Iowa, of
the value of $2,500. * * *
^^11. That the said real property situate in Eldora, Har-
din county, state of Iowa, was on January 27, 1886, ex-
changed for the real property in plaintiffs' petition de-
scribed, situated in North Loup, Valley county, Nebraska,
and a deed of general warranty was made and delivered by
J. G. Corey and wife, of North Loup, property in which
the defendant W. A. Fuller is named as grantee. * * *
That said deed from said Corey to said W. A. Fuller was
entered in the numerical index of Valley county, Nebraska^
and filed for record on February 26, 1886, and was re-
corded in book 5, at page 616, of deed record of said
county. That the title to the property in plaintiffs' peti-
tion described was placed and vested in defendant W. A.
Fuller, with the knowledge and consent of the defendant
Eliza Fuller.
"12. That defendant Eliza Fuller was, prior to Novem-
ber 25, 1884, possessed of a separate estiite, and is pos-
sessed of a separate estate at the present time, and is now
conducting a business in her own name in Arcadia, Valley
county, Nebraska, as a married woman trader.
" 13. That there was no instrument of record in Valley
county, Nebraska, showing that defendant Eliza Fuller
had any interest in the real pro})erty described in plaint-
iff's petition, other than that of wife of said W. A. Fuller,
until the recording of the deed from said W. A. Fuller to
Vol. 30] SEPTEMBER TERM, 1890. 567
Goldsmith y. Fuller.
said Eliza Fuller of the said premises, on December 24,
1886.
'^ 14. That on May 3, 1887, plaintiffs recovered a judg-
ment, as in plaintiffs' supplemental petition alleged, against
defendant W. A. Fuller, and Josephine R. Fuller, and E.
S. Fuller in the sum of |353.67, and $5.85 costs, in county
court of said county, and that the same was duly filed and
docketed in the district court of said county on May 26,
1887.
''15. That said last mentioned judgment was obtained
upon the third note described in paragraph 7 of this stip-
ulation, for the sum of $318.32 and interest at 10 per cent
per annum from March 24, 1886, and that the same is still
in full force and unpaid.
" NlOHTINQALE BbOS.,
^^Attoi-neya far Plaintiffs.
" Wall & Long,
^'Attorneys for Defendants.^'
In addition, the testimony of a number of witnesses is
preserved in the record. This testimony will be referred
to when discussing the correctness of the judgment.
The court made special findings in the case and rendered
judgment as follows :
" Now on this 23d day of May, A. D. 1888, this cause
coming on to be heard on the petition and supplemental
petition of the plaintiffs, and upon the separate answer of
Eliza Fuller and the reply of the plaintiffs thereto, plaintiffs
appearing by their attorneys. Nightingale Bros., and the
defendant herself and by her attorneys. Wall & Long, and
after hearing the testimony of both the plaintiffs and the
defendant, and the stipulation of facts filed herein, as a
finding of facts in said cause, the court finds specially as
follows, to-wit:
"First. That the real property mentioned in plaintiffs'
petition was deeded by direct conveyance from her husband
W. A. Fuller to the defendant Eliza Fuller.
668 NEBRASKA REPORTS. [Vol. 30
GoldBmith v. Fuller.
"Second. That said transfer was so made without aiiv
actual consideration moving from the said Eliza Fuller to
her husband at that time or subsequent thereto.
"Third. That the notes, which were the foundation of
judgments, were signed and delivered prior to the convey-
ance of said real estate to said Eliza Fuller by W. A. Fuller,
but that the judgments thereon were obtained subsequent
to said conveyance.
" Fourth. That no instrument or agreement in writing
was ever made between Eliza Fuller and W. A. Fuller
creating or declaring a trust except the deeds in evi-
dence. * * *
"Fifth. That the signature of W. A. Fuller to said
notes was obtained as additional security to the notes of
E. S. Fuller and Josephine R. Fuller, the consideration
therefor being an extension of time on said notes. At the
time of granting such extension of time the plaintiffs bad
examined the records of Valley county, Nebraska, and
knew that the legal title to said property was in the de-
fendant W. A. Fuller, and relied upon such knowledge in
accepting W. A. Fuller as security.
" Sixth. That W. A. Fuller did not represent to plaint-
iffs that he was the owner of said real estate.
"As a conclusion of law the court finds :
"First. That the property in controversy was never the
property of defendant W. A. Fuller; that he held it simply
in trust for the defendant Eliza Fuller and her heirs. * *
"Second. That having declared the trust prior to the
attaching of any specific lien of plaintiffs, her equities
were superior to those of plaintiffs. * * * It is there-
fore ordered, considered, and adjudged that the action of the
said plaintiffs be dismissed, and that the defendant Eliza
Fuller go hence without day and recover her costs."
One of the attorneys for the plaintiffs testifies that before
an extension of time was granted to the defendant's, sou,
for which W, A. Fuller became surety, he inquired of
r
Vol. 30] SEPTEMBER TERM, 1890. 569
Goldsmith t. Fuller.
W. A. Fuller if he was the owner of the real estate in
controversy^ and that he (Fuller) assured him that he was;
and that, relying upon such assurance, he had consented to
an extension of the time of payment. W. A. Fuller, in his
testimony, denies that the attorney in question ever made
any inquiry of him as to the ownership of the property.
All the testimony tends to show that the property in
controversy was purchased and paid for out of the wife's
separate estate, and there is no doubt that the title was
taken in the name of the husband under an agreement
with his wife that he would reoonvey to her upon demand.
Considerable stress is laid by the plaintiffs upon this being
an oral agreement and hence could not be enforced.
Whether such would be the case between the parties or
not we need not now stop to inquire, as a deed has been
made in pursuance of the alleged contract. No doubt if a
wife places her property in the hands of her husband, and
permits him to deal with it as his own and to exercise acts
of ownership over the same, as by the sale or exchange of
portions thereof, and he is' permitted to use the same as a
basis for credit, and contract debts upon the faith of his
ownership thereof, the equity of the creditors will be su-
perior to that of the wife. This was the rule established
in Hoy v. McPhersoUj 11 Neb., 197, and McGovem v.
Knox, 21 O. St., 547 : "That he who, having a right or an
interest, by his conduct influences another to act on the faith
of its non-existence, or that it will not be asserted, shall
not be allowed to afterwards maintain it to his prejudice.''
The proof upon the point that the plaintiffs relied upon
the ownership of the property by the defendant is denied
by other testimony, and is not established; but even if it
was, it is doubtful if the proof shows that W. A. Fuller
was authorized or did deal with the property as his own.
There is no error in the record and the judgment is
Affirmed.
The other judges concur.
670 NEBRASKA REPORTS. [Vol. 3»
Crowell ▼. HarFey.
Frank M. Cbowell v. Robert Harvey.
[Filed Octobbb 14, 1800.]
1. Petition : Definitbnbss. In an action for breach of warraotj
io the Bale of certain abstract books, and also for rescission of the
contract and retorn of the money paid for the same, a motion
to make the petition definite and certain by pointing out the
alleged errors in sach books was held properly overroled.
2. New Trial: Grounds Insufficient. Mere forgetfalness, or
the overlooking of material testimony by an attorney or his
client, is not safficient ground on which to base a motion for a
new trial.
Error to the district coui*t for Howard county. Tried
below before Harrison, J.
Thompson Bros,, for plaintiff in error, cited^ as to the
motion to make more definite: LouisviUe, do,. Canal Co. v.
Murphy, 9 Bush [Ky.], 622; Pomeroy, Remedies, sees.
529-31 ; Maxwell, PI. & Pr., pp. 73, 85, 203.
Damall & Babcock, and PatU & Templin, oorUra, cited,
as to the affidavit for new trial : Goraoke v. Hintz, 13
Neb., 397, and citations; Maxwell, PI. & Pr., 440; Hill-
iard. New Trials, sec. 88.
Maxwell, J.
This action was brought in the district court of Howard
county by the defendant in error against the plaintiff in
error. Issue was joined in 1887, and a jury impaneled
and sworn in that year to try the cause. The probability
of a protracted and expensive trial seems to have induced
the parties to consent to the withdrawal of a juror and
continuance of the case. . Afterwards the parties, by agree-
ment, referred the matter in controversy to J. A. Haggart
Vol. 30] SEPTEMBER TERM, 1890. 571
Ciowell V. Harrej.
to examine the abstract books and report to the coart; the
entry being ''and this cause was continued to the 9th day
of January, 1888, to be then tried to the court, and by con-
sent of all parties J. A. Haggart was appointed referee to
examine the abstract books in question in this case, and re-
port thereon as to the correctness or incorrectness of the
said books, on the said 9th day of January, 1888." The
referee took the oath required by law, and notified the
parties of the time and place for the examination of the
books, and at the time and place stated examined the same
and made a report in favor of the plaintiff below.
No exceptions were filed to this report, nor does there
seem to have been any formal confirmation thereof, but the
court apparently accepted the finding of facts therein as
correct, and based its judgment thereon. The referee re-
ported the errors in the abstract books in detail^ and no
attempt seems to have been made by the plaintiff in ^rror
to dispute the correctness of his findings. If we accept
these findings as correct, it is evident that the abstract
books contained many errors, and therefore were of but
little value.
There is no complaint that the judgment of the court is
not sustained by suflScient evidence; but reliance is placed
upon two points for the reversal of the judgment, viz.
The overruling of a motion to make the petition more
definite and certain, and in not granting a new trial based
upon the affidavit of the plaintiff in error and his attor-
ney. The petition is as follows :
''That on or about March 7, 1887, the defendant, as
an inducement to plaintiff to purchase from him a one-half
interest in a set of abstract books of real pro|>erty in
Howard county, Nebraska, consisting of one tract index^
one book of abstracts of deeds, one book of abstracts of
mortgages, one book of abstracts of judgment record, for
the sum of five hundred dollars, warranted the same to be
absolutely correct in every respect, and to be a compbte
572 NEBRASKA REPORTS. [Vol. 30
Crowell V. Harvey.
and correct abstract of all transfers, mortgages, judgments,
and liens of all kinds affecting the real property in How-
ard county, Nebraska, to the date March 7, 1887, and
plaintiff, relying on said warranty, purchased one-half in-
terest in said abstract books and records from the defend-
ant for the sum of five hundred dollars, then paying the
defendant on said purchase the sum of four hundred and
fifty-five dollars.
''Plaintiff avers that said set of abstract books, as
aforesaid, was not correct in every respect, and was not a
complete or correct abstract nor index of transfers, mort-
gages, judgments, and liens affecting the lands and real
property in Howard county, Nebraska, to the date Mardi
7, 1887, but that said set of abstract books are full of
errors and mistakes, so much so that they are of no value
whatever for the purpose for which they were intended^
and for which plaintiff received them.
''The plaintiff further alleges that when by examination
and comparing the entries in said abstract records and
books with each other and with the county records, and
finding them so defective, as aforesaid, that on the 13th
day of May, 1887, plaintiff herein returned to him, the
defendant, the one-half interest in said books and de-
manded of him, the said defendant, the sum of four hun-
dred and fifty-five dollars, the same being the amount
already paid by him to defendant as part payment for the
one-half interest in said books as aforesaid. The defend-
ant refused to pay the same, to thfe plaintiff's damage in
the sum of four hundred and fifty-five dollars and interest
thereon from March 7, 1887."
And the following is the motion to make the petition
definite and certain: "To require the said plaintiff to
make his petition in said cause more specific in this, that
he be required to state more fully in what respect tlie said
books were 'not correct in every respect,' and why and in
what way they were not a complete or correct abstract or
Vol, 30] SEPTEMBER TERM, 1890. 573
Crowell V. Hairey.
index of transfers^ etc., affecting the lands and real prop-
erty in Howard county, and in what the errors and mis-
takes consist of, and in what way they differ with the
county records, all of which should be specifically and par-
ticularly set forth in the said {petition.''
In our view the motion was properly overruled.
The plaintiff below alleges, in substance, that the defend-
ant below warranted the books to be absolutely correct in
every respect, and also that they were full of errors and
mistakes. It would be impossible in an action of this
kind to point out the many errors and mistakes relied
upon for a breach of the warranty. To sustain the action,
however, it must appear that the mistakes are of so serious
a nature as to greatly impair the value of the books.
Slight or trivial mistakes which could readily be corrected,
would not, in all probability, constitute such a breach of
the warranty as to entitle the plaintiff to recover more
than nominal damages. It will also be observed that the
plaintiff below alleges that the defenilant below repre-
sented the books to be correct, and that, relying upon such
statements, he was induced to purchase the same, but that
he found them full of errors and mistakes, so much so
that they were of no value whatever for the purpose for
which they were intended, and that he returned the same
to the defendant below and demanded a return of the
money paid for said books, which was refused. This, in
effect, is a rescission of the contract, and we think the proof
is of such a character as to justify the plaintiff below in re-
scinding.
2d. We have the aflSdavit of the plaintiff in error and
also of his attorney, in support of the motion for a new
trial, in which they swear, in substance, that they were mis-
led by the adverse attorney and supposed that all the rec-
ords had been introduced in evidence when in fact some of
such records had not been. It is difficult to perceive what
relevancy the affidavits in question have to the case under
674 NEBRASKA REPORTS. • [Vol. 30
30 6741
61 780
Stale, ex rel. Frontier Co., ▼. Kellf.
consideration. It is no ground for a new trial that an at-
torney, or his client, forgets a material fact in the case. If
new trials could be had for such reason, it would offer a
premium for forgetfulness and dereliction of duty. Upon
the whole case it is apparent that there is no material error
in the record and the judgment is
Affirmed.
The other judges concur.
30 ^4 State, ex rel. Frontier County, v. George J.
iLJ?i Kelly.
[Piled October 14, 1890.]
1. Ck>iint7 Clerk: Fees: Sbbvicbs as Notary PuBLia When
a coaoty clerk, who is also a notary public, takes acknowledg-
ments of deeds and morts^ages, and takes affidayits and deposi-
tions as a notary public, it is bis daty to enter upon his fee book
as connty clerk and report to the coonty board every item of
fees received by him for snch services.
% : : Sebvigbb as Abstraotbb. The county clerk of
a connty containing less than 1R,003 inhabitants is required to
report to the county hoard all fees received by him for makiog
and certifying to abstracts of title, although he may be a bonded
abstracter, and performed the services as such abstracter.
3. : : Surplus: Dispusal. It is only the fees received
by a connty clerk which are in excess of the salary fixed by
law that he is reqnired to pay into the county treasury.
Original application for mandamus.
Oeorge H. Stewart, County Attorney , and W. 8. Morlan,
for relator:
The clerk cannot evade his liability to the connty by
qualifying as a notary public and abstracter^ and perform-
Vol. 30] SEPTEMBER TERM, 1890. 575
State, ex reL Frontier Go., ▼. Kelly.
ing as such work whicli he is authorized by law to do as
clerk. {StcUe v. Sovereign, 17 Neb., 175.) He must report
all iees whether official and fixed by law or not {StcUe v.
Leidtkey 12 Neb., 171; StcUe v. Allm, 23 Id., 454; State
V. Sovereign, supra.) The evident intention of the legisla-
ture in repealing, in 1887 sec. 13, cb. 28, Comp. Stats.,
was to take from the clerk the business of abstracting, as
the offices of clerk and abstracter are incompatible. (Paine,
Elections, p. 131, sec. 1^7.)
0. P. Mason, and Chas. E. Magoon, contra:
The term fees, as used in sees. 42, 44, chap. 28, Comp.
Stats., signifies a compensation allowed by law for official
services. {Harbor Mader v. Southerfand, 47 Ala., 517;
Williams v. Stale, 2 Sneed [Tenn.], 162; Camp v. Mates,
13 Conn., 9 ; Bouvier, L. D., *' Fee.") As abstracting is not
now an official duty, compensation therefor does not consti-
tute a fee; and as the occupation of an abstracter is not an
office, there can be no official incompatibility between it
and the clerkship. Stale v. Sovereign rests upon the statute
as it existed before the repeal of 1887, when abstracting
was otUcial. In Stale v. Allen the service rendered was
specially enjoined upon the county treasurer. The county
board alone is the proper party to make this application.
(State V. Sovereign, 17 Neb., 176.)
NORVAL, J.
This is an original application for a writ of mandamus,
to n^quire the res|)ondent to account and report to the com-
minsioners of Frontier county, all fees collected and received
by him, during his term of office as county clerk, for taking
acknowledgments of deeds, taking affidavits and deposi-
tions, for making and certifying to al)stracts of title, and
to compel the respondent to pay such fees into the treasury
of said county.
576 NEBRASKA REPORTS. [Vol. 30
State, ex rcl. Frontier Co., y. Kelly.
The answer alleges that the respondent, while holding
the office of county clerk, held the position of notary pub-
lic, and acted as such; that, as notary public, he took
acknowledgments of deeds, took affidavits and depositions,
and has received compensation therefor aggregating from
$50 to $100, which he has not reported to the county
board, because he is advised by counsel that he ought not
to do so. The respondent, for further answer, says that on
the 10th day of June, 1887, he filed his bond and qualified
as an abstracter of title in said Frontier coupty, and that
while holding the office of county clerk he made and cer-
tified to some abstracts of title, and charged and received
fees therefor not exceeding the sum of $60, which he has
not reported.
The relator filed a general demurrer to the answer.
Three questions are presented for our determination :
First — Is the respondent required to account for the fees
received by him for taking acknowledgments of deeds, ami
for taking affidayits and depositions?
Second — Is he required to report the fees received for
making and certifying abstracts of title?
Third — Is the respondent required to pay such moneys
into the treasury of the county?
Sec. 90a of chap. 18 of the Compiled Statutes, 1889,
provides that: ''All county clerks and their deputies within
the state of [N^ebraska shall have authority to administer
oaths and affirmations in all cases where oaths and affirma-
tions are required, and to take acknowledgments of deeds,
mortgages, and all other instruments in writing, and shall
attest the same with the county seal."
It will be seen that the above provision of the statute
expressly authorized the respondent to take acknowledg-
ments of deeds, mortgages, and other written instruments,
and to administer oaths. The law having made it the duty
of the respondent to perform these acts as county clerk, he
is not relieved of entering the amount of money collected
Vol. 30] SEPTEMBER TERM, 1890. 577
State, ex rel. Frontier Co., v. Kelly.
for such services on his fee book, and reporting the same to
the county board, on the ground that the acts were |)€r-
formed as notary public. (State v. Sovet-eigriy 17 Neb., 175.)
It appears that the respondent, while holding the office
of county clerk, qualified under the law as an abstracter
of title, and as such abstracter made and certified to ab-
stracts of title, and received compensation therefor, whicii
he refuses to enter upon his fee book and report to the
county board. Does the law make it his duty to account
for these fees? If he was required by law to perform
such services as county clerk, then unquestionably it was
his duty to report the compensation received therefor, not-
withstanding he did the work as an abstracter. It was
held in the case of State v. Sovereign, supray that where a
county clerk makes abstracts of title, and certifies to the
.same as notary public, he must report the fees received for
making the same to the county board. It is ui^ed that
the cited case is not decisive of the point we are now con-
considering. When that decision was rendered section 13,
chapter 28, Compiled Statutes, 1885, was in force. That
section fixed the fees of county clerks for '^ making abstracts
of title, for the first deed or transfer one dollar, and for
each additional deed or transfer ten cents.''
The legislature in 1887, having repealed the above
quoted provision of section 13, there is now no law on the
statute books fixing the compensation of county clerks for
the making of abstracts of title. It is urged by the re-
spondent that by the repeal of said proviso clause, county
clerks are no longer under obligations to make abstracts
of title. We do not agree to this proposition. The duty
of a public officer to perform a particular act does not de-
pend upon whether the legislature has prescribed the remu-
neration he shall charge therefor, but rather whether the
law, in express terms or by implication, makes it his official
duty to render such service. A similar question was before
this court in State v. Allen, 23 Neb., 451. That was an
37
678 NEBRASKA REPORTS. [Vou 30
State p «x reL Frontier Go., y. Kelly.
application for mandamus against Allen, the county treas-
urer of Buffalo wunty, to n-quire him to enter upon his fee
book and report to the county board, all fees received by
him for abstracts of searchers of delinquent taxes, tax
sales, redemptions, and incumbrances, as shown by the
records in his office. The statute prescribed no fee for
such services. Nevertheless it was held that it was bis
official duty to furnish such certificate when demanded, and
to collect a reasonable fee for the same.
Sec. 85 of chap. 18, Comp. Stats., provides that " It
shall be the duty of the register of deeds on receiving any
conveyance or instrument affecting realty, including me-
chanics' liens, to cause such conveyance, instrument or
mechanic's lien to be entered upon the numerical index im-
mediately after filing the same."
Sec 77c provides that in counties having less than 18,-
003 inhabitants, the county clerk shall be ex-qfficio register
of deeds and perform the duties enjoined by law upon such
offic»er.
In SUUe V. Sovereign^ supra, it was held that an abstract
of the title is but a copy of what appears on the numeri-
cal index, and that a county clerk is required to make a
certified copy of the entries appearing on such re<*ord, when
requested to do so, and to report the fees received therefor,
notwithstanding the services were rendered by the clerk as
a notary public. Upon the authority of the above case
and that of State v, Allen, supra, it was the duty of re-
spondent to perform the work as county clerk and report
the moneys received by him therefor to the county board.
Is he required to pay to the treasurer of his county the
compensation received for the taking of acknowledgments,
affidavits, and depositions, and for making abstracts of
title ? Sec. 42 of chap. 28, Comp. Stats., requires county
clerks whose fees in the aggregate exceed the sum of
$1,500 per annum to pay the ex(^ess into the treasury of
his county. It does not appi ar, either from the petition or
Vol. 30] SEPTEMBER TERM, 1890. 579
Greenwood ▼. Cobbej.
answer, that the total amount of fees received by the re-
spondent exceeds the salary fixed by law and he cannot on
this application be required to pay any of the fees collected
by him over to the county treasurer.
Finally, it is insisted that this application is made by
the wrong party, that the board of county commissioners
is the proper party to require the defendant to account for
these moneys. Without question the application could
have been made in the name of the board, but that does
not prevent the relator from asking the writ
The county of Frontier is the real party interested in
the accounting. The commissioners are merely represen-
tatives of the county and it is to them that the defendant
is asked to render an account of the fees received. The
demurrer to the answer will be sustained and a peremp-
tory writ of mandamus will be issued.
Wbit allowed.
The other judges concur.
• Horace A. Greenwood v. Thomas D. Cobbby.
[FiLKD OCTOBBB 14, 1890.]
1. Pleading. Eddy That the third oonnt of the petition does not
state a canse of action.
%, . A lEOod connt in a petition wiH not sastain a yerdict ren-
dered npon a coant that fails to state sufficient £Mt8 to oonstitate
a canse of action.
On rehearing.
L. W. Oolbyy and Mason & WhedoUy for plaintiff in error.
J, E. B-iUih^ and /. E. Cdbbej/y contra^ cited^ as to the
flufiicieucy of the third count : If kite v. NichoUs, 3 How.
680 NEBRASKA REPORTS. [Vol. 30
Greenwood v. Cobbey.
[U. S.], 284; King v. Root, 4 Wend. [N. Y.], 136 ; O'Daa-
aghue v. Mc Govern, 23 Id., 26; People v. HaUy, 12 N.
W. Rep. [Mich.], 671 ; Eviaton v. Oramer, 47 Wis., 659.
As to the construction of words, and slander pa* se: Van
AHn V. Oder, 48 Barb, [N. Y.], 58; Maybee v. Fkh, 42
Barb. [N. Y.], 330; Saunderson v. Caldwell, 45 N. Y.,
399; Buscher v. Scully, 5 N. E. Rep., 738; Beneway v.
Thorp, 43 N. W. Rep. [Mich.], 863; SmiUi v. Smith, 41
N. W. Rep. [Mich.], 499; Mmer v. Allbaugh, 42 N. W.
Rep. [la.], 587; Chaplin v. Lee, 18 Neb., 441; Bourres-
seau V. Detroit, 3 N. W. Rep., 376, and cases cited. As
to privileged communications : Sunderlin v, Bradstreet, 46
N. Y., 193; Hamilton v. Eno, 81 Id., 117; Byam v. Col-
Una, 111 N. Y., 148; McAllider v. DetroU, 43 N. W. Rep.
[Mich.], 435; Lowrey v. Vedder, 42 N. W. Rep. [Minn.],
542; 2 Add., Torts [Wood's Ed.], 316; FUroev, Oard,
23 Neb., 828; Briggs v. GarreU, 2 Atl. Rep. [Pa.], 513;
Maehean v. Soinppa, 18 N. W., Rep. 209.
NORVAL, J.
This is an action to recover damages for slander. At
the January, 1889, term, a decision was entered reversing
the judgment of the district court, on the ground that Uie
third «;uut of the petition did not state a cause of action.
(26 Neb., 449.) After the filing of that decision, a rehear-
ing was ordered, upon the application of the defendant in
error. On a reargument and examination of the numer-
ous authorities cited, we are all satisfied with the views ex-
pressed by Judge Maxwell in the former opinion. We
deem it unnecessary to enter upon a discussion of the
points covered by the former decision.
It is insisted, however, by the defendant in error, that
as the petition contains one good count, the failure of the
third count to state a cause of action is no ground for re-
versing the judgment. We do not yield assent to that
proposition. The slaudcit^us words charged in the third
Vol. 30] SEPTEMBER TERM, 1890. 581
Oberne v. Bark«.
count are entirely different from those alleged in the other
causes of action. The jury, in addition to the general ver<
diet, returned special findings, that the plaintiff had proved
each count by a preponderance of the evidence. It is obvi-
ous that when a petition contains several causes of action,
one good count will not sustain a verdict rendered upon a
count that fisiils to state a cause of action.
The judgment of the district court will stand
Bevebsed.
The other judges concur.
Oeoroe Oberne et al. y. William Burke et al.
[Filed Octobsb 21, 1890.]
1. Agency. A principal is bound eqaally by tbe aatbority which
be actually giTes, and by that which, by his own act, he appears
to give. {Webnter v. Wray, 17 Neb., 579.)
2. The apparent authority of an agent which will bind a princi-
pal is such authority as an agent appears to have by reason of
the actual authority which he has or which he exercises with
the knowledge and ratification of tbe principal.
3. An authority to an agent to buy and ship specified commodities
and to make cash advances on the same to be delivered, hdd^ not
to be authority, nor to give semblance of authority, togaarantee
in the name of the principal an obligation of K., as purchaser,
to pay B. & Co., vendors, for cattle sold on thirty days' time.
Error to the district court for Douglas county. Tried
below before Hopewell, J.
Montgomery & Jeffrey, for plaintiffs in error, cited :
Story, Agency, sees. 58, 69, 70, 71; Webster v. Wray^ 17
Neb., 580; Bohart v. Oberne, 13 Pac. Rep. [Kan.], 389;
582 NEBRASKA REPORTS. [Vol, 30
OberneT. Burke.
Hakes v. Myrick, 69 la., 189; Voorkees v. R. Co., 71 Id.,
735; Stevenson v. Hoy, 43 Pa. St, 191-6; Anderson iv
Bttchancm^ 20 Neb., 272.
HaU, McOulloch & English, contra, cited : Bohart v.
Obeme, 13 Pac. Rep. [Kan.], 389; Rogers v. Hardware
Co., 24 Neb., 653; WAster v. Wray, 17 Id., 579; IVhUe
Lake Lam. Co. v. Stone, 19 Id., 406 ; ScaUs v. Paine, 13
Id., 522; Jackson v. Emmens, 13 Atl. Rep., 210; Farrar
V. Duncan, 29 La. Ann., 126; Butler v. Maples, 9 Wall.
[U. S.], 774; Oruzan v. Smith, 41 Ind., 288; Palmer v.
Cheney, 35 la., 281,
Cobb, Ch. J,
This action was brought by the plaintiffii in the court
below for the recovery of $791.28, with interest, due from
the defendants upon an alleged written guaranty as follows :
"South Omaha, Neb., Apr. 26, 1887.
''M. Burke & Sons, U. S. Yds., iVe6.— Deab Sirs:
We hereby guararitee the payment by R. Kunath in thirty
(30) days the sum of seven hundred ninety-one and ^^
dollars for 17 head of cattle.
"Oberne, Hosick & Co.,
'*Pr. Harman."
The answer of the defendants was a general denial'
There was a trial to a jury, with verdict for the plaintiffs
for $863.87 damages.
The defendants' motion for a new trial was overruled,
and judgment entered on the verdict.
The plaintiffs in error bring the cause for review on the
following errors :
" 1. The court erred in admitting in evidence the * Ex-
hibit A' in bill of exceptions, the guaranty sued upon.
'^2. In admitting the testimony of F, W. Gasman, ob-
jected to.
Vol. 30] SEPTEMBER TERM, 1890. 583
Oberne ▼. Burke.
^^3. In admitting in evidence the 'Exhibit B' in bill of
exceptions.
"4. In admitting the teBtimon7 of George Burko, ob-
jected to,
^'5. In admitting the testimony of Robert Eunath, ob-
jected to.
"6. In admitting the testimony of Wm. W. Keysor,
objected to,
^'7. In overruling the defendants' motion for nonsuit.
'^8. In sustaining the plaintiffs' objections to questions
proposed by defendants and stated in bill of exceptions.
'^9. In sustaining the plaintiffs' objections to evidence
proffered by defendants and stated in bill of exceptions.
'* 10. In sustaining objections to defendants' questions,
stated on pages 71 and 72 of bill of exceptions.
"11. In giving instruction to the jury No. 4, of the
court's own motion.
"12. In refusing to give No. 1 asked by defendants,
"13. In refusing to give No. 2 asked by defendants.
"14. In refusing to give No. 8 asked by defendants.
" 15. The verdict is not sustained by sufficient evidence.
"16. In overruling the motion for new trial."
It appears by the bill of exceptions that for a period of
ten years prior to the date of the written guaranty sued
upon the plaintiffs in error were dealers in hides, wool,
tallow, grease, furs, and pelts in Chicago, their place of
residence, witir various branches in other localities in the
charge of agents and clerks for the sole purpose of pur-
chasing and shipping to Chicago those commodities. Their
Omaha branch was conducted by F. S. Bush, assisted by
J, S. Harman as traveling purchaser. It was testified to,
at the trial, that in some instances Bush had loaned sums
of money to butchers to aid them in purchasing cattle to
be slaughtered, the hides and tallow to be taken by Bush
on account of the business he was in charge of. Tiiat on
other occasions verbal assent by telephone at the office in
684 NEBRASKA REPORTS. [Vol. 30
Obeme ▼. Burke.
Omaha, from Bush, had been given to defendants in error
for the security of sums on short credit for the purchase
of cattle by third persons, and that in three or four instances
Bush had paid the amount when the purchaser had failed
to do so. It was also in evidence that on September 29,
1886, he had given a written order, in the name of bis
principal, for the delivery to one Hickstein of twenty-one
head of cattle, which had been weighed, to one McComey
and not taken. The cattle were delivered on the order
and paid for by Bush, while the principal was unknown to
the transaction. Subsequently, in April, 1887, Bush being
absent during the month, Harman gave the written guaranty
upon which this suit was brought. There is no evidence
tending to show that the plaintiffs in error had knowledge
of or acquiesced in any of the transactions mentioned, or
that they indirectly authorized either agent, in any manner,
to assume the debts or assure the credit, or to give a guar-
anty for third parties in their name, or on account of theur
business.
H. M. Hosick, of the firm of Oberne, Hosick & Co.,
testified that the authority of their agents was confined to
the buying and shipping of articles in their line of trade,
and that they never had authorized J. S. Harman to guar-
antee any note or notes to M. Burke & Sons, or to any
other persons, at Omaha or elsewhere.
F. S. Bush testified that he was, and had been, the busi-
ness manager of the firm at Omaha for ten years ; that
J. S. Harman is employed as traveling agent for the firm,
and resides in Omaha when not out on the road ; that be
and all other agents for the firm traveling out from Omaha
were under the supervision and direction of the witness,
and took their orders from him; that he was absent from
Omaha in April, 1887, and left Harman in charge of tlie
firm's business there. The witness was asked: Q. W'liat
directions and instructions were given Harman when you
left Omaha to go away at that time; which was objected to,
Vol. 30] SEPTEMBER TERM, 1890. 585
Oberne ▼. Burke.
as incompetent, immaterial, and irrelevant, and the objec-
tion was sustained by the court, and exceptions taken to this
ruling.
Q. Had you written instructions from the firm at this
time limiting your authority?
A. No.
Q. Was it any part of the business of the firm at Omaha
to go security for anybody who was doing business with
them ? Objection was made as incompetent, and as asking
for a legal conclusion of the witness, and objection sus-
tained by the court, to which exception was taken.
Q. You did at times assist persons in the purchase of
cattle when they bought of Burke & Sons, and others?
A. Yes.
Q. In certain instanceSj when they telephoned, you
agreed they should draw on you for the amount of the
purchase of cattle ?
A. Yes.
Q. And also in one or two instances you agreed to pay
if the purchaser did not pay at a certain time?
A. Yes.
Q, State whether or not the firm had knowledge of your
having done these things. (Objected to, as irrelevant, and
objection sustained.)
The plaintiffs in error offered to prove by the witness, in
his reply to this question, that he had verbally, in the
name of the firm, guaranteed the indebtedness of other
parties; that he did so upon his own responsibility, and
without the knowledge or authority of the firm, and that
he was not authorissed by them to go security for any one
in the course of the business he was conducting for them,
and offered to prove these facts by the last question, and
by those which are to follow. Objected to, as incompetent,
and for the reason that the witness had shown that he was
the general managing agent for all the business of the firm
in Omaha, and that he carried it on at times by advancing
686 NEBRASKA REPORTS. [Vol. 30
Oberae v. Barke.
money and guaranteeing payments. The objection was
sustained.
Q. What authority^ if any, did you ever receive from
the firm to guarantee the payment of third persons^ indebt-
edness?
Q. Did the business of the firm, where you represented
it as agent, inchide the guaranteeing of sales, or the sign-
ing of such guarantees as that in this action, or going
security for third persons in any way whatever?
Q. Did the firm know that you had at any time, or in
any instance, agreed, in their name, to become security for
a third person, either by a guaranty such as in this action
or otherwise?
Q. What knowledge, if any, did the firm have of your
ever having agreed to become security for the purchases of
a third person, or of your having agreed to guarantee the
payment of the purchases or indebtedness of any third
person?
Q. What greater authority, if any, did you have from
the firm than that for the purchase of the articles of their
trade?
Q. How far did your authority extend, and what were
you employed to do for the firm here in Omaha? State
fully.
Objections were made and sustained to all the foregoing
questions, and exceptions taken to the ruling of the court.
Q. When did you first learn that this alleged guaranty
had been made? Objected to by the plaintiff, on the trial,
and objection overruled by the court.
A. About ten days after I got home, the 17th of May.
On the trial in the court below, after overruling the tes-
timony offered under the forgoing questions, the court
charged the jury, among other instructions, that *^ it further
appears that the man Harman was in the employ of the
defendants as traveling purchasing agent, with authority
similar to that of Busli; that during a thirty days' absence
Vol. 30] SEPTEMBER TERM, 1890. 687
Oberne ▼. Barke.
of Bush from the branch house at South Omaha^ he left
HarmaD in charge of the same, which was known to de-
fendants. It was during the time that Harman was thus
in charge that the guaranty sued on was executed and de-
livered to the plaintiffs ; there being no dispute as to the
facts recited [the facts recited throughout the instructions],
the liability of the defendants is a question of law for the
court to decide, and the court instructs you that the defend-
ants are liable, and that your verdict must be for the
plaintiffs/'
It is not believed from the testimony before the jury,
pi-eserved in the bill of exceptions, that the imi)ortant
''facts recited by the courf were not so strongly disputed
as to render the court's construction of the law and in-
struction to the jury inapplicable and partial. The testi-
mony offered, in the form shown by the defendants, and
repeatedly overruled on the trial, as to the character of the
authority of the agent, does not seem to have been incom-
petent, immaterial, or irrelevant, but was competent as
tending to show the exact and important limitations of the
agent's general and implied authority ; and we hold that it
might have properly gone to the jury and that it was error
to overrule it.
The important question involved in this case is, Was
the execution of the guaranty sued on an act within the
scope of the business in which Harman was employed by
the defendants? As to what that business was, the only
evidence before the court is that offered by defendants to
the effect that it consisted in the purchase of hides and tal-
low and the commodities stated. It is true there was
evidence on the part of the plaintiffs tending to prove that
Bush, the general agent of defendants, had at various
times in their name guaranteed the obligations of certain
butchers to the vendors of cattle, but there is no evidence,
even on the part of plaintiffs, that the acts of Bush were
authorized or ratified by the defendants, nor that they were
588 NEBRASKA REPORTS. [Vol, 30
Oberue V. Buike.
comprehended within the scope of his employment. What
the scope of his employment strictly was would be gatli-
ered, primarily, from the letter of his empl >yment or ap-
pointment as agent, and, secondarily, from the nature of
the business in which he was employed, and again from
such acts of his within the general scope of his employ-
ment as were known to and ratified by his employers, the
defendants. But no act of his, extending the scope of his
employment, however extensive or often repeated, which did
not come to the knowledge of defendants, would enlarge
his authority to bind them.
In the cases decided by this court, as well as those cited
by the plaintiffs' counsel in the brief, we have gone as far
as the farthest in holding that a principal is bound by the
acts of his agent within the apparent scope of his author-
ity as agent; and that a party dealing with such agent is
not bound by secret instructions or limitations upon the
authority of the agent, unknown to such party, so long as
the act of the agent to which it is sought to hold the prin-
cipal is within the general scope of such authority, real or
apparent. But we have not gone the length of holding
that a principal is bound by the unauthorized acts of his
agent, not within the scope of his employment, real or
apparent, because of former similar acts of the agent, ex-
cept where such former acts have been brought to the
knowledge of the principal and ratified by him, enlarging
the apparent scope of authority covering the acts in con-
troversy.
In the case of Webster v. Wray, 17 Neb., 679, Webster
purchased a herd of cattle, placing them on his ranch, the
whole in charge of Thomas D. Webster, his son, giving
him one-fifth interest in the profits of the herd; the agent
to have the care and management of the herd, and the
principal to pay the expenses of the whole. The agent
contracted debts, which the principal, in full knowledge of
the facts, paid off. Subsequently the principal, being dis-
Vol. 30] SEPTEMBER TERM, 1890. 589
Obeme v, Burke.
satisfied with his agent's conduct of the business, took a
bill of sale of the agent's interest in the herd, but allowed
him to remain in the apparent charge of it, while the prin-
cipal^ as is claimed, forbade the agent contracting any fur-
ther debts in his name, but gave no notice to the public, to
Wray, or other creditors, so far as appears, of any change
in the relationship between himself and the former agent.
Under these conditions the agent borrowed money, and
contracted other obligations in the name of his principal,
apparently, and in fact, so far as sliown, for the benefit of
the range and herd of cattle under his charge, and upon
such facts the court held that the principal was bound
thereby, in the following language: "A principal is bound
equally by the authority which he actually gives, and by
that which, by his own act, he appears to give. In our
view, the plaintiff in error is bound both by the authority
which he gave his son, and that which, by his own acts, he
appeared to give.''
In the case of the White Lake Lumber Co. v. Stone, 19
Neb., 402, the plaintiff owned and carried on a lumber
yard at Crab Orchard, in this state. J. H. Hanna was the
agent in the exclusive charge and control of the property
and business, with authority to sell lumber for cash, or on
credit, to receive and receipt for money, and to maintain
suits, to make affidavits to accounts for collection, and
secure mechanic's liens, or not, as he saw fit, and upon
payments to satisfy and discharge liens so secured, and
do all necessary to carry out these general duties. One
Janousky had erected a dwelling house on his own land,
for which he had purchased lumber from the plaintiff, and
on account of which the plaintiff was entitled to a lien on
the house. The defendant, being about to purchase the
house and land, applied to the agent Hanna to ascertain if
the plaintiff claimed a lien on the property, and Was in-
formed by the agent that the plaintiff had no lien or claim
upon the premises, nor any against Janousky which should
690 NEBRASKA REPOET& {You 30
Oberii« ▼. Burke.
become a lien tbereon. The defendant bought the land
and house. The action was by the Lumber Company
against Janousky and Stone, seeking to establish its lien.
The court held that the company was bound by the decla-
ration of Hanna as being within the apparent scope of his
authority, although it was in evidence that he had no ex-
press authority from the company to waive its right to a
lien.
The case of BxMer v. Maples^ 9 Wall., 766, arose from
a cotton purchase, during the late rebellion, by one Shep-
herd as agent for Bridge & Co., of Memphis, Tennessee, of
which firm Butler was a partner, the cotton having been
bought of the defendant Maples in the state of Arkansas.
Tlie facts, so far as necessary to illustrate the issues at bar,
were that Bridge & Co. had furnished to Shepherd $4,000,
stipulating to luruish the necessary amount from time to
time to purchase the required cotton. His instructions, in
writing, were to the eflfect that Shepherd's agency was for
the purchase of B. C. Stone's and such other cotton as he
might be able to purchase in Desha county, Arkansas, and
in that vicinity, under the conditions and restrictions set
forth. It was further agreed that the agent should bay
the cotton if it could be bought at the price stated, and as
much more as he could, on the be^t terms, not to exceed
an average of ihiriy cents per pound for middling cotton,
and lower in proportion to the grade, to be delivered at
such times and places of shipment as might be agreed upon;
that Shepherd should pay as little as possible on the cot-
ton until it should be delivered within the protection of a
guul)oat, and when thus delivered and paid for, the owner-
ship should be exclusively in Bridge & Co., except as the
instructions provided for Shepherd's share of 'the profits.
The cotton, for the price of which suit was brought, was
purchased by Shepherd, as it lay, he agreeing to pay for it
forty cenfs a pound as soon as it could be weighed, and be-
ing weighed he removed fifly-four bales of it^ but ninety
r
Vol. 30] SEPTEMBER TERM, 1890. 691
OberxM y. Burke.
bales were burned before the7 could be shipped up the
river to Memphis. The fifty-four bales were shipped and
received by Bridge & Co., who denied Shepherd's agency.
Maples, the vendor of the cotton, brought suit and ob-
tained service on Butler and Hicox. It was proved on the
trial by one Martin, a witness for defendants, that he was
sent by them to Arkansas with money and instructions for
Shepherd to purchase cotton for the firm, but was not to
agree to pay more than thirty to thirty-five cents per
pound for it, with authority to make small advances, but
not to pay the balance, or to make it payable, until the
firm should be able to send a boat up the Arkansas river
for the cotton, or until it was in their possession, weighed,
and placed on the boat. He was instructed to take no
risks, for the firm, of the destruction of the cotton by
incendiaries, or otherwise, except to the extent of the
money advanced. On a judgment for the plaintiff in the
circuit court of the western district of Tenneesee the cause
was taken to the supreme court of the United States on
error, the principal error assigned being that of certain in-
structions to the jury, in reviewing which the supreme
court says: ^'That the reasons urged by the plaintiffs in
error in support of their denial of liability for the engage-
ments made by Shepherd are, that he agreed to pay forty
cents per pound for the plaintiff's cotton ; that he bought
it where it lay, instead of requiring delivery on board a
steamboat, or within the protection of a gunboat; and
that he did not obtain a permit from the government to make
the purchase. The argument is, that in the first two in-
stances be transcended his powers, and that his authority
to buy at all was conditioned upon his obtaining a permit
firom the government. All this, however, was immate-
rial, if it was within the scope of his authority that he
acted. The mode of buying, the price agreed to be paid,
and the antecedent qualifications required of him, were
matters between him and his principals. They are not
592 NEBRASKA REPORTS. [Vol, 30
Obeme y. Barke.
matters in regard to which one dealing with him was
bound to inquire."
In each of these cases^ as well as in the others cited by
counsel for defendants in error^ the principle decided is
that while the agent continues to act within the general
scope of his authority, although he may violate the private
instructions of his employer, and go beyond the restric-
tions contemplated by his employment, if such private in-
structions and limitations are unknown to the peraons with
whom he deals, his principal will be bound; but none of
them go to the extent of holding that the principal is
l)ound by the act, contract, or obligation of the agent,
though made in the name of the principal, in a transac-
tion independent of and not within the general scope of
his authority or apparent authority.
By the words "apparent authority" is meant the au-
thority which the agent appears to have from that which
he actually does have, and not from that which he may
pretend to have, or from his actions on occasions which
were unknown to and unratified by his principals.
To return to the present case, the authority of the agents
Bush and Harman to bind the defendants in the purchase
of commodities for which they were authorized to deal, did
not include within its most general scope the authority to
execute the guaranty sued on ; and no proper or legitimate
exercise of the powers or authority which they really had
were such as would give it the appearance of embracing or
comprehending the authority to make such contract
As there must be a new trial, I deem it not out of place
to say that the evidence, from the bill of exceptions, so far
as it relates to the chattel mortgage executed by R. Kunath
to the defendants below on the sliop and fixtures, and its
settlement, and the several transactions connected there-
with, was clearly inadmissible under the pleadings, and
would have necessarily misled the jury had they been per-
mitted to consider the evidence in rendering their verdict
Vol. 30] SEPTEMBER TERM, 1890. 593
Ediing y. Bradford.
The judgment is reversed and the cause remanded for
further proceedings.
Keyebsed and remanded.
The other judges concur.
Carl O. Edling, appellee, v. Louis Bradford^
appellant.
[FIL15D October 21, 1890.]
Written Instruments : Constbuction. A chattel mortgage
on certain baildingp in coarse of erection and upon a leasehold
interest, an assignment of the lease, and a contract between the
parties in relation to the snbject-matter were execnted on the
same day. Held, That in determining the rights of parties
thereunder they would be constmed together.
: : Contract: Mobtoage. Certain bnildingps sitr
nated upon leased land were mortgaged to one R. and an as-
signment of the lease execnted to him and a contract entered into
between the parties which proTided ^ that he (R.) shall haye and
take immediate possession of the property this day mortgaged
to him by Anderson and wife, and Edling and wife, being the
bnilding and improYcments on lot 8, in block 56, in the city of
Omaha, Nebraska, inclnding the lot. Rat the said Rradford,
when he shall have been paid in fall the amonnt dne him npon
said mortgage, is to surrender possession of said property to
Anderson and Edling, and he hereby agrees with them to reas-
sign to them the lease this date by them assigned to him. " The
mortgage also contains a provision that said Bradford shall have
the right to collect all rents, issues, and profits thereof as further
security for the notes below described, and said rents are hereby
assigned to him for that pnrpose, the same to be credited upon
said uotes as fast as the same are collected, save and except so
much thereof as may be necessary shall be applied in the payment
of the ground rent and insurance and such taxes as these mort-
gagors are bound to pay on said property. '' Held, That it was
the duty of Bradford to apply the rents in payment of insur-
ance, taxes, ground rent, and interest on the notes, and that he
38
694 NEBRASKA REPORTS. [Vol. 30
Edlinir V. Bradford.
coald DOt declare a forfeitaFe and sell the property under the
mortgage before the first note became dae.
: : : : Accounting. Plaintiff is entitled
to an accounting and to redeem the property.
Appeal from the district court for Douglas county.
Heard below before Wakeley, J.
Charles OgdeUy and Congdon & Hunt, for appellant,
cited: Salisbury v. AndrewSy 19 Pick. [Mass,], 250, 252;
Wardev. Warde, 16 Beav. [Eng.], 10 5; Raiidelv. Canal
Co,y 1 Harr. [Del.], 154; Hookes v, Swain^ 1 Lev. [Eng.],
102; Gifford v. First Pres. Soc, 56 Barb. [N..Y.]. 114;
Shoenberger v. Hay^ 40 Pa. St., 132 ; Watchman v. Crook,
5 Gill & J. [Md.], 239; Ludlow v. McCrea, 1 Wend. [N.
Y.], 228; Marvin v. Stone, 2 Cow. [N. Y.], 781 ; Burk v.
Burky 64 Ga., 632 ; Wadlingtonv. HiU, 10 8 & M. [Miss.],
560,562; Ridiardson v. Palmer, 38 N. H., 218; Jacksm
V. Myers, Z Johns. [N. Y.], 388; Kewleanv. 01 on, 22
Neb., 719; Winnipisseogef, etc., Co. v. Perley^ 46 N. H.,
83; Youngs v. Ht&ow, 27 N. Y., 361 ; Stanley v. Oreen,
12 Cal., 148; Connery v. Brooke, 73 Pa. St., 80; Hamm
V. San Francisco, 17 Fed. Rep. [Cal.], 119; Stone v. Clark,
I Mete. [Mass.], 37S; Pike v. Munroe,S6 Me., 309; Means
V. Pres. Ch., 3 Watts & S. [Pa], 303 ; 3Ioore v. Origin, 22
Me., 350 ; Mills v. CcUin, 22 Vt., 98 ; Benedict v. Oayford,
II Conn., 332; Chouteau v. Suydam, 21 N. Y., 179 ; Wolf v.
Scarborough, 2 O. St., 361 ; Houston v. Nord, 40 N. W.
Rep. [Minn.], 568; Waker v. Cockey, 38 Md., 75; In re
Bogart, 28 Hun [N. Y.], 466; Valentine v. Van Wagner,
37 Barb. [N. Y.], 60 ; Ferris v. Ferris, 28 Id., 29 ; Crane v.
Ward, 1 Clark Ch. [N. Y.], 393; Hale v. Oouvemeur, 4
Edw. Ch. [N. Y.], 207* ; Noyes v. Clark, 7 Paige Ch. [N.
Y.], 1 79 ; O* Cmnor v. Shipman, 48 How. Pr. [N. Y.], 126 ;
Ottawa R, Co. v. Murray. 1 5 III , 337 ; Stanclifi v. Norton,
11 Kan., 218/222; RicJiards v. Holmes, 6d U. S. [18 How.],
143 ; Johnson v. Payne, 11 Neb., 269 ; GuOirie v. Jones, 108
Vol. 30] SEPTEMBER TERM, 1890. 596
Edllnsr ▼. Bradford
Mass., 191; KuUer v. Smilli, 2 Wall. [U. S.], 491; Van
Ness V. Pacard, 2 Pet. [U. S.], 137 ; Dabell v. Lynch, 4
W. & S. [Pa.], 255 ; MnshaU v. Uoyd, 2 M. & W. [Eng.],
450 ; BrewsUr v. Hill, 1 N. H., 350 ; Gay's Case, 5 Mass.;
419; Duchanev. Goodiitle, 1 Blackf. [Ind.], 117; Fleet-
tcood's Case, 8 Coke [Eng.], 171 ; Vredenbergh v. Morris, 1
Johns. Cas. [N. Y.], 224; Burden v. Kennedy, 3 Atk.
[Eng.], 739; 3 Am. & Eng. Ency. Law, 164; Winsiow v.
Tarbox„6 Shcp. [Me.], 132 ; Ban- v. Doe, 6 Blackf. [Ind.],
335; Cade v, Broto^nlee, 15 Ind., 369; Scheev, Wiseman^ 79
Id., 389 ; MoCarty v. Burnet, 84 Id., 23, 26 ; Buhl v. Ken-
yon, 11 Mich., 249; Hutchinson v. Bramhall, 42 N. J. Eq.,
373; Freeman v. Dawson, 110 U. S., 264; HyaU v. Vin-
cennes Bank, 113 Id., 408; Loring v. Melendy, 11 O., 365;
Northern Bank v. Roosa, 14 Id., 335; Freeman, Execu-
tions, sec. 119 and citations; People v. Wesla-vell, 17 Wend.
[N. Y.], 674; Chapman v. Gray, 15 Mass., 445; Nesder
V. Neher, 18 Neb., 649; Harrison v. JUcWhiiier, 12 Id.,
152; Green V. Gross, Id., 123; Burbank v. Ellis, 7 Id.,
163; Weaver v. Coumbe, 15 Id., 170; Kittle v. 8t John,
10 Id., 605; McHugh v. Smiley, 17 Id., 623; Bridges v.
BidtoeU, 20 Id., 195; Galvoay v. Malchow, 7 Id., 287;
IGnney v. Watts, 14 Wend. [N. Y.], 38 ; Tone v. Brace, 8
Paige Ch. [N. Y.], 596; 11 Id., 666; Mayor v. Mabie, 3
Kern. [N. Y.], 159; Vemam v. Smith, 1 Smith [N. Y.],
333; Doupe v. Genin, 1 Sweeny [N..Y.], 26; Sandford ©.
Tracers, 40 N. Y., 144; Mack v. Patchin, 42 Id., 174;
Wilson V. Brannan, 27 Cal., 258; Hurt v. Kelly, 43 Mo.,
238 ; Dyer v. ShurOef, 112 Mass., 165; Prinoeton*L. & T
Co. V, Munson, 60 111., 371 ; Davey v. Durrant, 1 De G.
A J. [Eng.]. 535; Howry v. Sanborn, 68 N. Y., 153, 160;
Martin v. Paxson, 66 Mo., 260, 266; Norton v. Ohrns, 36
N. W. Rep. [Mich.], 175; Woodward v. Wi/cox, 27 Ind.,
207; Dikeman v. Puclhafer, 1 Abb. Pr. [N. Y.], 32;
Howland v. WilleU, 3 Sandf. [N. Y.], 607 ; FarreU v.
Bean, 10 Md., 217; SauUiwick v. Hapgood, 10 Cush.
596 NEBRASKA REPORTS. [Vol. 30
Edling T. Bradford.
[Mass.], 119; Ooodinch v. WUlard, 2 Gray [Mass.], 203;
By ram v. GordoUy 11 Mich., 531; Brock v. Headen^ 13
Ala., 370; Lanphei^e v, Lowe^ 3 Neb., 131 ; HoU Co. Bk,
V. TooUe, 25 Id., 408; Lowenburg v. Bemd, 47 Mo., 297;
Walker v. Shei-man, 20 Wend. [N. Y.], 636; Teaff v.
Hewitty 1 O. St., 511; Fisher v. Safer, 1 E. D. Smith
[N. Y.], 612; Ford v. abb, 20 N. Y., 344; Myiickv.
Bill, 17 N. W. Rep. [Dak.], 268; Corcoran v. Webster, 6
Id. [Wis.], 513; Raymond v. Morrison, 13 Id., 332;
Wightman v. Spofford, 8 Id., 680.
Howard B. Smith, and Shaw & Kuehnle, e(yivb*a, cited :
Greenleaf, Ev. [Redfield Ed.], 297; Palmer v. Atbee, 50
la., 429 ; Andei'son ©. Weiser, 24 Id., 428 ; MeCkUand r.
Jawieg, 33 Id., 571 ; Taylor v. Trulock, 55 Id., 448 ; Pad-
dock V. BartleU, 68 Id., 19; Davis v. Batrick, Id., 98;
Sweney v, Davidson, Id., 391; Davis v. Robinson, 67
Id., :i61; Gibson V. Jones, 5 Leigh [Va.], 370; Wilkins
V. Gordon, 11 Id., 547; Bookna/n v. Burnett, 49 la., 303;
Sb^omberg v. Lindberg, 25 Miun., 513; Alger r, Farlee,
19 la., 520; Hill, Trustees, 175, 279, 734; Perry, Trusts,
499 ; Doe v. Robinson, 24 Miss., 688 ; Powell v. TiUOe, 3
Comst. [N. Y.], 396 ; Waldron v. Chasiency, 2 Blatehf.
[U. S.], 62; Crosby r. Huston, 1 Tex., 225; Smith v. Sub-
lett, 28 Id., 169; Taylor v. Horde, 1 Burr. [Eng.], 60;
Gunter v. Fanes, 9 Cal., 645 ; Hawkins v, Kemp, 3 East
[Eng.], 410; BiUer v. Calhoun, 8 S. W. Rep., 524; Jone?,
Chat. Mtgs., 280, 797, 801 ; Lee v. Fox, 14 N. E. Rep.,
892; Herman, Chat. Mtg., 514; Mappsv. Sharpc, 32 III.,
13; Hunt v. Bass, 2 Dev. Eq. [N. Car.], 292; Fletcher
V. 3IcGiU, 10 N. E. Rep. [Ind.], 651 ; Ikerd v. Beaven,
106 Ind., 483; Kloepping v. Siellmacher, 21 N. J. Eq.,
328; Ord v. Noel, 5 Mad. [Eng.], 440; Booth r. Kehoe,
71 N. Y., 341 ; Breese v. Bange, 2 E. D. Smith [N. Y.]»
474; Nessler v. Neher, 18 Neb., 649; Rosenfield r. Chada,
12 Id., 25; Wheeler v. Sexton, 34 Fed. Rep., 154; Doo-
Vol. 30] SEPTEMBER TERM, 1890. 697
Edling Y. Bradford.
laOe V. Lewis, 7 Johus. Ch. [N. Y.], 48 ; Ewell, Fixtures,
275, 290, 293; Orem v. Armstrong, 1 Denio [N. Y.], 554 ;
Fechet V. Drake, 12 Pac. Rep., 694; Lyle v. Palmer, 3
N. W. Rep. [Mich.], 921; McNally v. ConnoUy, 11 Pac.
Rep., 320; Hyatt v. Vincennes Bank, 113 U. 8., 408.
Maxwell, J.
This is an action for an accounting and to redeem cer-
tain real estate, brought in the district court of Douglas
county by Edling against Bradford.
It ap})ears from the record that on the 5th day of Octo-
ber, 1882, Edling and one Anderson leased for ten years
lot 8 and the east six feet of lot 7, in block 56, in the city
of Omaha. The lessees proposed to erect certain store
buildings on these lots. Anderson was a carpenter and
builder and resided in Omaha. Edling was a resident
of Iowa and advanced $5,000 in the enterprise. Ander-
son seems to have claimed that he advanced a like sum,
but whether he did so or not is left in doubt. After the
building was partially completed, and Edling and his asso-
ciate heavily indebted for material furnished in the con-
struction of the building, an arrangement was made with
Bradford to furnish $7,500 to complete the building, and
Anderson and wife and Edling executed a chattel mortgage
to Bradford as follows :
**For the consideration of $7,500 in hand paid, and for
the purpose of securing the notes hereinafter described,
we, John N. Anderson and Tena Anderson, his wife, C. O,
Eilling and Charlotte Edling, his wife, do hereby give,
grant, sell, and convey and mojtgage unto Louis Bradford,
of Omaha, the following described goods, chattels, and
property, to-wit: All buildings, structures, and improve-
ments on lot 8, in block oQ, in the city of Omaha, Ne-
braska, together with all of our right, title, and interest
in or to said lot, being a leasehold. And we do covenant
598 NEBRASKA REPORTS. [Vol. 30
SdllngY. Bradford.
that all claims or liens against or on account of said im-
provements shall be paid off out of said amount^ and the
remainder thereof shall be expended in completing said
buildings and improvements; that when said buildings
and improvements shall be completed^ said Bradford shall
have the right to collect all rents, issues, and profits thereof
as further security for the notes below described^ and said
rents are hereby assigned to him for that purpose, the same
to be credited upon said notes as fast as the same are col-
lected, save and except so much thereof as may be neces-
sary shall be applied in the payment of the ground rent
and insurance, and such taxes as these mortgagors are
bound to pay on said property.
"This sale is made to secure the payment of two certain
promissory notes for the sum of $7,500 total; one being
for $2,500, of this date, payable in one year; one being
for $5,000, of this date, payable in two years; both signed
by said mortgagors, payable to order of said Bradford,
with interest from date at ten per cent per annum, payable
annually.
"Now, if the said Anderson and his wife, and the said
C. O. Edling and his wife, shall well and truly pay, or
cause to be paid, the said sum of money in said notes men-
tioned, with the interest thereon, according to the tenor
and effect of said notes, and shall keep and perform all the
other covenants and agreements aforesaid, then these pres-
ents shall be null and void. But if said sum of money,
or any part thereof, or any interest thereon, is not paid
when the same becomes due, then in that case, or in case
any of said covenants and agreements are not kept and
performed, the whole of said sum and interest shall, and
by this indenture does, immediately become due and pay-
able, and the said Bradford shall have the right to take
immediate possession of said property, and on default
herein, to sell the same at public auction, in the manner
provided by law, and out of the proceeds of said sale pay
Vol. 30] SEPTEMBER TERM, 1890. 599
Edling T. Bradford.
said Dotes and interest, and the costs of such proceed ings,
and the balance, if any there be, pay over to said Ander-
son and his wife, and Edling and his wife.
"And it is further agreed and understood that the said
Bradford shall have the right at any time to take posses-
sion of the above described property and hold the same.
"Signed this 21st day of April, A. D. 1883.
" John N. Anderson.
"Tena Anderson.
"CO. Edulng.
"In presence of
"Charles Ogden."
This mortgage was duly acknowledged and filed for
record.
On the same day on which the mortgage was executed,
Bradford, Anderson and wife, and Edling entered into a
contract as follows:
"It is understood and agreed hereby that Louis Brad-
ford shall have and take immediate possession of the prop-
erty this day mortgaged to him by Anderson and wife and
Edling and wife, being the building and improvements on
lot 8, in block 56, in the city of Omaha, Nebraska, includ-
ing the lot. But the said Bradford, when he shall have
been paid in full the amount due him upon said mortgage,
is to surrender possession of said property to said Ander-
son and Edling, and he hereby agrees with them to reassign
to them the lease this date by them assigned to him, being
a lease of said lot from H. H. Visscher to them for the
term of ten years, which was recorded on the 7th day of
October, 1882, in book I, at page 270, Miscellaneous Rec-
coFds of Douglas County, Nebraska. Nothing herein
contained shall be taken to prevent said Anderson and
Edling from going on to complete said building and im-
provements on 8$iid lot.
"It is further agreed by said Anderson and wife, and
Edling and wife, and said Bradford that if, in the event of
600 NEBRASKA REPORTS. [Vol. 30
Edling V. Bradford.
the foreclosure of the mortgage by sale of the buildings
and improvements, sufficient shall be realized to pay the
said mortgage, costs, and expenses, that then said Bradford
shall reassign to said mortgagors said lease ; in the event that
sach sale shall not realize sufficient to pay said mortgage,
costs, and expenses, then said Bradford shall sell said lease-
hold interest at public sale upon the same advertisement
required by law for the foreclosure of chattel mor^ages,
and out of the proceeds thereof pay the balance due upon
such mortgage, costs, and expenses, and pay the remainder
to said Anderson and Edling ; and in the event of such
sale of said lease, said Bradford shall be and is authorized
to transfer said lease to the purchaser, and his transfer
shall have the same force and effect as if the same were
made and executed by said Anderson and said Edling and
wives, and thereupon turn over the possession of the lotto
such purchaser. Louis Bradford.
"John N. Anderson.
«C. O. Edling.
"Tena Anderson.
**In presence of
"Charles Ogden.*'
On the same day Bradford obtained from Anderson and
wife and Edling an assignment of the lease.
As part consideration for the $7,600, the unsecured note
of Anderson to Bradford for $700 was taken as part pay-
ment. Edling and Anderson were indebted to Bradford
in the sum of $3,700. The remainder, viz., $3,077.30,
was paid out by the attorney of Bradford upon the orders
of Anderson, as Edling nor Bradford seem neither to have
bad implicit confidence in Anderson. The amount of this
loan failed to complete the building, and Bradford, to pro-
tect himself, was compelled to pay the further sum of more
than $2,000. In 1883 Anderson conveyed all his interest
in the premises to Edling. On November 14, 1883, Brad-
ford advertised the property for sale under his cbattd
mortgage. The notice is as follows :
Vol. 30] SEPTEMBER TERM, 1890. 601
Edling v. Bradford.
''Notice is hereby given, that on the 21st day of April,
1883, John N. Anderson and Tena Anderson, his wife,
and Charles O. Edling and Charlotte Edling, his wife,
made their chattel mortgage to Lonis Bradford to secure
two promissory notes, both dated Omaha, April 21, 1883,
one for $2,600 and payable one year after the date thereof,
and the other for $5,000, payable in two years after date
to the order of said Louis Bradford, said notes drawing
interest at the rate of ten per cent per annum from date;
that said mortgage was on the 23d day of April, 1883,
duly filed and recorded in the office of the county clerk for
Douglas county, Nebraska, that being the county in which
the mortgaged chattel was situated; that by the terms of
said mortgage thesaid mortgagors covenanted that all claims
or liens against or on account of the improvements on said
mortgaged chattel should be paid off out of the amount
above named herein, and that the remainder thereof should
be expended in completing said mortgaged chattel and the
improvements thereon ; that default has been made in the
above covenant, in that said mortgagors, or any of them,
have never performed or kept said covenants, or any part
thereof; that the condition of said mortgage was to the
effect that if said mortgagors failed to keep and perform
all the covenants and agreements by them to be kept and
performed, provided for in said chattel mortgage, then and
in that case the whole of said sum and interest should im-
mediately become due and payable, and the mortgagee was
authorized to sell said chattel and apply the proceeds in
paying said notes, interest, and the costs of such proceed-
ings. No suit or proceeding has been instituted at law to
recover the debt secured by said mortgage, or any part
thereof. The amount due at the date of this notice is
$8,231.25. The property covered and conveyed by said
mortgage is described therein as follows: 'All buildings,
structures, and improvements on lot 8, in block 56, in the
city of Omaha, Nebraska, together with all of our right,
602 NEBRASKA REPORTS. [V^ol.30
Bdllng T. Bradford.
title, and interest in or to said lot, being a leasehoUI.' On
the 6th day of December, A. D. 1883, at 10 o'clock in the
forenoon, at the Anderson and Edling building, in Omaha,
to-wit, at the northwest corner of Sixteenth and Daven-
port streets, the undersigned will, under the power con-
tained in said mortgage, sell all and singular the above
described building and leasehold interest of said mortgagors
in lot 8^ block 56, city of Omaha, Douglas county, Ne-
braska, at public auction, to the highest bidder, for cash.
"Louis Bradford."
Under this notice one Charles W. Edgerton, a constable,
sold, first, the building to Bradford for the sum of $3,200,
and closed the sale thereof at 10:30 A. M., and next sold
the leasehold to Bradford for $1,000, and closed the sale
thereof at 11 o'clock. Bradford was not present in person
at the sale, but was represented by a friend who purchased
the property in his name. On the trial of the cause an
account was ordered of the amount received by Bradford
for rents of said premises, etc., and the amount necessarily
expended by him, and he was allowed $1,390 as compen-
sation for the care of the property, the same being five per
cent of the total amount of money which he had received.
The court also ordered Bradford to surrender the premises
to Edling on the payment of $248.89.
The three instruments, viz., the chattel mortgage, as-
signment of the lease, and contract heretofore set forth,
executed on the same day — apparently at the same time,
are to be construed together. Construing them togetiier,
Bradford was created a trustee and placed in possession of
the property, with authority to collect the rents and apply
them to certain purposes. That he did collect rcnt^ is
clearly shown by the testimony. While the mortgage con-
tains a condition of forfeiture in case Edling and Anderson
failed to make certain payments, yet, from other provisions
of the several instruments, it is evident that those pay-
ments were to be made by Bradford from the rents of the
Vol. 30] SEPTEMBER TERM, 1890. 603
Edling ▼. Bradford.
premises. The DOte for $2,500 was payable one year from
date, while the second note of $5,000 was not payable until
two years from date ; that is, one note was payable on the
24th day of April, 1884, adding days of grace, and the
second on the 24th day of April, 1885. Yet in seven
months and a half from the date of the instruments the
mortgagee and trustee, who had received the rents and
profits of the premises, advertised the property for sale
under an alleged clause of forfeiture and purchased the
property for an inconsiderable sum, considering its value
as shown by the evidence. This cannot be permitted.
Bradford took the property as security for his debt. He is
entitled to repayment of the sums loaned by him, with
interest thereon, but he has no right to more than this.
In a case of this kind, where accounts are to be ad-
justed between the parties, and a default declared as the
result of the forfeiture, the proper tribunal to determine
the rights of the parties is a court of equity. Such a
court will construe the contract of the parties and, as far as
possible, protect the rights of the mortgagor and the mort-
gagee, and its decree, unless appealed from, will be conclu-
sive. If, however, a party does not invoke the aid of the
court, but proceeds to advertise and sell mortgaged prop-
erty upon an allied default and forfeiture, he does so at
his peril. The mortgagor has rights in the premises which
must be considered, as well as those of the mortgagee. It
seems to be assumed in many cases that the mortgagee is
the only party entitled to consideration in the premises.
He is entitled to the repayment of his loan with lawful
interest thereon and no more, but he must, as far as possi-
ble, protect the rights of the mortgagor ; in other words, he
must act in good faith with him.
In the case at bar there was no default of Edling and
Anderson, and the advertisement and sale were premature,
and the plaintiff is entitled to redeem.
Second — It will \ye observed that in the contract accom-
604 NEBRASKA REPORTS. [Vol. 30
EdliDg y. Bradford.
panying the mortgage it is provided that in case it is nec-
oessary to sell the leasehold interest, then Bradford should
sell the same at public sale. Substantially the same pro-
vision is contained in the chattel mortgage. And in the
notice of sale it is stated that " the undersigned [Louis Brad-
ford] will, under the power contained in said mortgage,
sell all and singular the above described building/' etc.
It is contended on behalf of Ediing that this being a
trust to be exercised by an individual named, it must be
exercised by him and not by another; and that unless
the sale is made in conformity to the power, it will be
void. There is much force in the argument. A party
may have the utmost confidence in the fairness and int^«
rity of the trustee or mortgagee and believe that in case of
a forced sale he will conduct the same in such a manner as
to obtain the best price possible for the property. This is
an important matter. Every person of observation and
experience knows that a public sale conducted by a disin-
terested person, who is anxious to sell the property for the
highest price possible, is more' likely to effect that object '
than an indifferent salesman, or one whose interest it is
to have the property sold for a low price. It is not the
policy of the law to permit the mortgagee to disregard the
person agreed upon and named in the mortgage, select an
auctioneer to his own liking, and become the chief bidder
at the sale. In view of the fact, however, that Ediing has
a right to redeem, we will not make a formal decision on
this point without further argument. The amount. al-
lowed Bradford being but five per cent of the entii'e sum,
shows that the property is v^ery valuable, and that it is his
duty to account to Ediing. The judgment of the district
court is
Aefiumed.
The other judges concur.
Vol. 30] SEPTEMBER TERM, 1890. 605
Kinney v. Tekamah.
Michael T. Kinney v. City of Tekamah. i"»~«»
I 48 788
[Filed Octobbb 21, 1890.]
1. Instructions must be based upon, and applicable to, the teeti-
mony.
2. Municipal Corporations: Unsafe Sidewalks. Where a
sidewalk was extended by private parties in front of their store
to the edge of a deep creek, so* that a stranger, in passing along
snch sidewalk and continuation thereof, in the dark, and using
dae care and caution, was precipitated down the bank and
injured, held, that it was the duty of the dty to cause a barrier
or obstruction to be erected to apprise travelers of the termina-
tion of the walk.
Error to the district court for Bart countj. Tried
below before Doane^ J.
E, W, Peteraojiy for plaintiff in error, cited : 2 Dillon,
Mun. Corp., sec. 1018; Higert v. Gfreeiicastle, 43 Ind., 574;
Jajnea v. Portage, 5 N. W. Rep. [Wis.], 31; JEstelle v.
Lake Crystal, 6 Id. [Minn.], 775; PkUtmiouth v. MUcheU,
20 Neb., 228, and case^ cited; Gregory v. lAnooln, 13 Id.,
356; Pay V.St. Paul, 42 N. W. Kep. [Minn.], 297; Fox-
worthy v. Hastings, 25 Neb., 133; Lincoln v. Beckman, 23
Id., 683; Ireland v. Plank Road Co., 13 N. Y., 526;
Wood, Nuisances, [2d Ed.], sec. 327, note 1 ; Johnson v»
MUwaukee, 1 N. W. Rep. [Wis.], 189; 2 Thompson, Trials,
sec. 1766 ; IWfe v. Kansas, 84 Mo., 632, 643.
JV. J. Sheckell, contra, cited : 2 Dillon, Mun. Corp., sees.
1003, 1005, 1008, 1010, 1011, 1015, 1016, 1019, and
1024, and citations ; Cartwright v. Belmont, 17 N. W. Rep.,
237 ; FuMam v. Muscatine, 30 Id., 861 ; York v. Spell-
man, 19 Neb., 357; Kennon v. Gilmer, 4 Mont., 433;
Brown v. Elliott, 45 How. Pr. [N. Y.], 102.
606 NEBRASKA REPORTS. [Vou 30
Kinney y. Tekamab.
Maxwell, J.
This action was brought in the district court of Burt
county by the plaintiff against the defendant for injuries
sustained by him in being precipitated from the end of a
sidewalk in said city into Tekamah creek.
It is alleged in the petition that '' upon the said 28th day
of October, 1886, and for a long time prior thereto,
said Thirteenth street,- on the east side tliereof, between L
and K streets, in front of lot 4, block 118, was out of
repair and in a dangerous condition, in this, to-wit: Said
Thirteenth street intersects Tekamah creek at this point,
and the traveled sidewalk in front of said lot along the
east side of said street, at that time, was not extended
across the creek, but only built up to the bank or edge of
said creek, and that from the end of said walk on the bank
of said creek there is an abrupt fall of from eight to ten
feet to the bed of said creek, tlie bank at that point being
nearly perpendicular, and there being no railing or guards
at the end of said walk, and no light or signal to indicate
such dangerous condition ; that at about 8 o'clock in the
evening of the 28th day of October, 1886, it being quite
dark, the plaintiff, lawfully traveling on said street and
upon said sidewalk, and unaware of the dangerous condi-
tion, and without his negligence, was precipitated into said
creek, from the end of said sidewalk, and received great
bodily injury, by which he has been kept in bed and de-
tained from business about two weeks, since which time
he has suffered great bodily pain, he receiving serious
injury in and about the nei?k, and otherwise, and has spent
$177 for medical attendance and nursing, and has been
permanently crippled, to his damage in the sum of
♦5,000."
The answer is a general denial.
On the trial of the cause the jury returned a verdict for
the defendant, and the action was dismissed.
Vol. 30] SEPTEMBER TERM, 1890. 607
Kinney y. TekamAh.
The testimoDj shows that Thirteenth street is the prin-
cipal street in Tekamah; that this street extends across
Tekamah creek; that there is a bridge on \he street across
the creek, the exact width of which does not appear, but
apparently less than twenty feet. There is a sidewalk on
the east side of the street which, as it approaches the bridge,
angles to the southwest to the bridge. The main sidewalk,
however, is continued on past the store of Bardwell &
Beed to the bank of the creek. The testimony shows
that the plaintiff, at the time in question, in passing along
the sidewalk in the night continued on that portion of the
walk in front of Bardwell & Reed's store, and stepped off
the south end of such walk and was precipitated into the
creek and sustained severe injuries. No barriers were
erected at the south end of the sidewalk, nor any obstruc-
tion to prevent a person unacquainted with the same and
passing along that walk in the night season from falling
into the creek. The principal defense is that the sidewalk
in front of Bardwell & Heed's store was the private prop-
erty of that firm and not constructed by the city. So far
as appears, however, it was a continuation of the sidewalk
passing along the east side of that street.
The court instructed the jury as follows : **It is the duty
of the city to keep its streets, including sidewalks which
are in general use, or over which the city has assumed ju-
risdiction, in safe condition for the use of the public, but
this duty does not require the city to keep all of its streets
for the full width of them in good condition for travel.
If the city has provided a bridge in a public street where
it is intersected by a stream, safe and sufficient for all pur-
poses of public travel, with reasonably safe and sufficient
walks leading thereto in continuation of the sidewalks
which are constructed along such street, it has performed
its duty with reference to providing means for the crossing
of such stream, notwithstanding such bridge may not be
constructed the full width of such street, and if a person
608 NEBRASKA REPORTS. [Vol. 30
Kinney y. TekamalL
in traveling along such street voluntarily leaves the usually
traveled way, which is safe and in good condition, and by
reason thereof Veceives an injury in a part of the street
unfrequented by the public, and where the city has never
exercised jurisdiction or done anything towards improving
the street or constructing sidewalks, or inviting travel, the
city is not liable in damages for such injury.'^
This instruction was misleading and not based upon the
testimony. So far as appears, a traveler, in passing along
the sidewalk in the night, and having no knowledge of the
locality, might be expected to pass along that portion in
front of Bardwell & Reed's store without fault on his part.
This element is entirely lefl out in the instruction. The
fact that the sidewalk at that point had been constructed
by Bardwell & Beed as a continuation of the city sidewalk
would not prevent the city from being liable when a per-
son traveling along the same, and having reason to believe
that it was a continuation of the sidewalk, and therefore
in a safe condition, was injured by the failure of the city
to cause a proper barrier to be erected to prevent persons
by mistake from passing along said ^idewalk in the night
and falling into the creek. The judgment of the district
court is reversed and the cause remanded for further pro-
ceedings.
Reversed and kemanded.
The other judges concur.
Vol, 30] SEPTEMBER TERM, 1890. 609
Weston V. Brown.
J. B. Weston v. C. H. Brown. | » Jgj
80 609
[Filed Octobke 21, 1890.] ^ ^\
1. Witnesses: Refbeshing Memoby. A witness should not be
permitted to use memoranda to refresh his memory unless such
memoranda were made at or near the time the transactions oc-
cnrred.
2. Interest : Unsbttlbd Aooounts do not bear interest until six
months after the date of the last item therein.
3. Instruotions. The fourth and fifth paraiijaphs of the instruc-
tions given by the trial jndge to the jury, heldj erroneous.
Error to the district court for Gage county. Tried
below before Broady, J.
Origgs & Rinaker^ for plaintiff in error.
E. 0. Kretmiger^ contra^ cited : 8. C. & P. R, Co. r.
Brown, 13 Neb., 317 ; B. & M. R. Co. v. SchliuUz, 14 Id.,
426; R. Co. v. Finlai/son, 16 Id., 581; R. V. R. Co. v.
Fink, 18 Id., 93 ; Schuyler Na£l Bk. v. Bollong, 24 Id., 825.
NORVAL, J.
About the first of October, 1884, the plaintiff in error,
who then resided in Lincoln, employed the defendant in
error to su})erintend the construction of a dwelling house
in the city of Beatrice, for the agreed price of $3.50 per
day. Brown entered upon his duties, having entire charge
of the construction of the building, employing the men
under him, and the keeping of their time. He claims to
have put in 358 days' regular time of ten hours per day,
180 hours' overtime as superintendent, in addition to other
labor, and to have paid out moneys at various times for
Weston. Brown made no demand for payment of the
39
610 NEBRASKA REPORTS. [Vou 30
Weston Y. BrowQ.
alleged balance until more than a year after the house was
<*ompleted^ when he presented to Weston the following bill :
Beatrice, Neb., May 1, 1887.
J. B. Weston, in account with C. H. Brown.
Nov. 1, '84, to making estimates on house and
barn |6 00
Jan. 1, '85, staking out foundation and putting
in stonework 10 00
Jan. 1, '85, making out bills and correspondence. 7 00
April 17, '86, to time on house, barn, etc., as
superintendent and builder, 358 days, at $3.50
per day 1253 00
April 17, '86, to overtime, 180 hours, or 18
days, at $:?.50 per day 63 00
April 17, '86, to money paid out at sundry times
for dray age, etc 116 75
April 17, '86, to balance on house and barn, as
per detailed bill 44 00
Total $1498 75
Cr.
By cash at various times $950 00
By balance on benches, trestles, etc 50 00
Total $1000 00
Balance 498 75
This action was brought to recover the balance claimed
to be due the plaintiff on this account.
The defendant, for answer, interposed a denial of all
indebtedness, and pleaded a set-off and counter-claim. The
Bet-off is as follows :
C. H. Brown to J. B. Weston, Dr.
To cash at sundry times, as per bill $1093 00
To merchandise, brushes, etc 42 16
To merchandise, benches, etc 75 00
To office rent 32 00
To work by George Stump 6 00
Total $1248 16
Vol. 30] SEPTEMBER TERM, 1890. 611
Wetton Y. Brown.
The counter-claim set up in the answer is for damages
claimed to have been sustained by the defendant, by reason
of the plaintiff unnecessarily impeding and delaying the
work in the construction of the defendant's house.
The reply was by a general denial. The cause was tried
to a jury, with verdict and judgment for the plaintiff for
$204.
Upon the trial the plaintiff Brown testified, in chief, to
the correctness of his account. His cross-examination dis-
closed that the defendant Weston was present during the
progress of the work but a small portion of the time; that
the plaintiff had entire charge of the work, employed the
men under him, who drew their pay each week, the plaintiff
keeping their time, and that the plaintiff each Saturday
night received usually the sum of $20. The plaintiff
further testified that he put in 354 days' r^ular time be-
tween February 28, 1886, and April 17, 1886, or worked
every week day and holiday between those dates, and put
in 180 hours' overtime. It also appears from the testi-
mony that between those dates the plaintiff worked for one
Van Buskirk from twenty to thirty days.
The defendant introduced testimony tending to show that
the plaintiff did not expedite the work, but n^ligently
prolonged it, and that he did not put in full time. There
also appear in evidence vouchers signed by the plaintiff
for moneys received by him, aggregating $1,093. The
entire carpenter work on the job amounted to $3,500.
The defendant called as witnesses several carpenters and
builders, some of whom worked on the house, who testified
that the carpenter work, allowing the superintendant $3.50
per day, should not have cost to exceed $2,500.
The rebutting testimony was to the effect that the plaintiff
was a competent and faithful superintendent.
It is impossible for any one to read the testimony in
this case without reaching the conclusion that the account
stated by the plaintiff in his petition is incorrect. In that
612 NEBRASKA REPORTS. [Vol. 30
Weston Y. Brown.
acoouDt he gives the defendant credit with cash payments
aggregating $950. On the trial he is confronted with
vouchers signed by himself^ amounting to $1,093. He
charges in his account for every week day from February
28, 1885, to April 17, 1886, including holidays. He ad-
mitted, upon cross-examination, that between these dates
he worked on the house of one Van Buskirk thirty-two
days. In addition, the plaintiff charges for 180 hours for
working overtime. There is no testimony in the bill of
exceptions that entitles him to chaige for extra time.
There is no pretense that the parties ever agreed to such a
thing, or that the defendant had any knowledge that the
plaintiff was working more than ten hours a day. The
first intimation that Weston had that Brown claimed pay
for extra time put in wrs more than a year after the house
was completed. Besides there is in the record testimony
showing that it is customary for the one who superintends
the construction of a building to work more than ten hours
a day without charging for overtime.
The charge in plaintiff's account of $116.75 is made up
of over eighty small payments of money, which plaintiff
claims to have made for the defendant from December 1,
1884, to April 17, 1886. The plaintiff was permitted to
testify as to these items over the defendant's objection and
exception, by refreshing his memory from a paper held by
the witness, which was made out after the building was
completed, from a memorandum kept by the plaintiff at
the time the transactions occurred. This ruling of the
court was clearly erroneous. The paper was not made at
or recently aft^er the transactions took place, but months
afterwards. {Schuyler Na^l Bank v, BolUmgy 24 Neb., 825.)
It is urged that the court erred in giving the fourth and
fifth instructions.
"4. As to amounts, if any, which you allow on any
of the claims alleged in the petition or answer, you should
allow and include interest thereon at seven per cent per
annum from the time the same became payable.
Vol. 30] SEPTEMBER TERM, 1890. 613
Weiton ▼. Brown.
" 6. Expeit testimony is the opinions of witnesses on
special subjects in which they are presumed to have special
or unusual knowledge. In general^ testimony is to facts
only, but one exception to the genera] rule is expert testi-
mony, which is as to the opinions of the experts. Such
testimony must receive just so much weight and credit as
the jury deem it entitled to when viewed in connection
with all the evidence, and no more. Upon the jury rests
the responsibility of rendering a correct verdict, and if the
testimony of experts is opposed to the jury's conviction
of truth, it is their duty to disregard it. Such evidence,
as all evidence of opinions, ought to be considered with
careful scrutiny and with much caution."
This suit is upon an unsettled account covering transac-
tions between the parties for a period of more than a year.
Unsettled accounts do not draw interest until the expira-
tion of six months after the date of the last item. (Comp.
Stats., ch. 44, sec. 4.) The fourth instruction was there-
fore erroneous.
The fifth instruction was given with especial reference
to the testimony of the mechanics, introduced by the de-
fendant, to show what the carpenter work on the li u c
and barn should have cost. The object of this testimony
was to show, not only that the plaintiff did not work the
time claimed by him, but to establish that he did not ex-
pedite the work but purposely prolonged it to further his
own interests. While the testimony of these witnesses as
to how much the house should have cost was, in a certain
sense, expert, the jury should not have l>een told what
weight should be given it. The witnesses being expe-
rienced mechanics who had seen the house — some of them
aiding in its construction — could tell with considerable
certainty what it was worth to do the work.
The court, afl^r cautioning the jury that the responsi-
bility of rendering a correct verdict rested upon them,
fo]lo\v.s it with the statement in substance that it was their
614 NEBRASKA REPORTa [Vol. 30
Alexander v. Tbacker.
duty to consider the testimony of these witnesses with
much caution. Their testimony was so discredited by the
charge of the court that the jury might well have under-
stood that it was their duty to entirely disregard it. The
judgment of the district court is reversed and the cause is
remanded for further proceedings.
Reversed and remanded.
The other judges concur.
[43 4P6 A. E. Alexander v. D. T. Thackeb.
[FiLBD OCTOBKR 21, 1890.]
1. Tax Liens: Forbclosube Iq an action to foreclose a tax Uen.
the owner of the equity of redemption is a necessary party.
2. Parties : Non-joindeb. Where a demurrer is sustained on the
ground of non-joinder of parties defendant, the court should not
dismiss the action without giving the plaintiff an opportunity
to bring in the absent party.
3. Pleading: Misjoindebof Causes When there is a misjoinder
of causes of action, the plaintiff should be required either to
elect upon which cause of action he will proceed, or file a sepa-
rate* petition for each cause of action. When such petitions are
filed, an action should be docketed for each petition.
4. : Petitjon: General Demurrer to Whole. Where a
petition contains more than one count, and a general demurrer
is directed against the entire pleading, and is not limited to a
particular cause of action, if either count is sufficient the de>
murrer must be OYerruled.
Error to the district court for Cass county. Tried
below before Chapman, J.
8. P. & E, O. Vanattay for plaintiflF in error, cited : Code,
sees. 30, 41 ; Maxwell, PI. & Pr. [;^d Ed.], 20, 35.
Vol. 30] SEPTEMBER TERM, 1890. 615
Alexander t. Thaoker.
Tho8. B. Stevenson^ contra^ cited : Tiedeman, Real Prop-
erty, sees. 321, 464; Lyneh v. Pfieffer, 17 N. E. Rep.
[N. Y.], 402; BM v. Sha-er, 12 Neb., 409; Kash, PL
[4th Ed.], 160-1.
NORVAL, J.
This is a suit to foreclose a tax lien, and to quiet title.
D. T. Thacker and Towle & Farleigh were made defend-
ants. The plaintiff in the amended petition alleges that
on the 4th day of September, 1871, one S. N. Merriam
purchased from the treasurer of Cass county, Nebraska, the
northeast quarter of the southeast quarter of section 5,
township 10, range 14, in said county, for taxes before that
time levied and assessed thereon for the year 1870, then
due and delinquent; that Merriam paid to the said treas-
urer at said sale $2.76, and received a certificate of pur-
chase of said land; and that he paid the subsequent taxes
on the land, amounting to $52.37.
The petition further avers that on September 5, 1873,
Merriam presented s^id certificate of purchase to the treas-
urer of Cass county, who then executed and delivered to
him a treasurer's tax deed for said land, which was duly
recorded, and that afterwards said Merriam sold, assigned,
and transferred all his interest in said land, and the taxes
so paid, to the plaintiff, who is still the owner thereof.
The plaintiff, for a second cause of action, says that on
November 3, 1884, one J. P. Mathis purchased from the
treasurer of Cass county, the above described real estate for
$4.87, for the taxes of 1883, then unpaid, and received a
certificate of purchase; that Mathis h&s paid the subse-
quent taxes levied on said real estate, amounting to $11.15 ;
that afterwards, on December 27, 1886, Mathis returned
said certificate of purchase to the treasurer of the county,
who executed and delivered to him a tax deed for the land
above described ; that on the 10th day of January, 1887,
616 NEBRASKA REPORTS. [Vol. 30
Alexander y. Thacker.
Mathis conveyed all his interest in the land to one W. D.
Merriam, and afterwards, on the 25th day of July, 1888,
said Merriam and his wife, Ruth, sold and transferred the
lands to the plaintiff, who is now the l^al owner of said
lands.
The petition also alleges ^Hhat the defendant Thaoker
claims to own an undivided interest in said lands by virtue
of a deed executed and delivered to him by C. and E.
Towle, and is in [>ossession of said land jointly with the
plaintiff. But plaintiff avers that the said deed so exe-
cuted to defendant is fraudulent and void for the reason
that the grantors in said deed had no right or title to said
lands and could not convey any right or title to said
defendant.
'^And plaintiff further avers that the deed so executed
by the treasurer of Cass county, Nebraska, to S. N. Mer-
riam failed to convey the title in and to said lands to the
said S. N. Merriam, by reason of the treasurer's failure to
attach his seal to said deed, and by reason of other de-
ficiencies in the execution of said deed ; that said Merriam
only obtained a tax lien on said land by virtue of his par-
chase thereof, and by virtue of the payment of said taxes,
which lien he transferred to plaintiff, who now owns the
same.
*'The plaintiff further alleges that the defendants Towle
& Farleigh claim to own some interest in said land, the
exact nature and extent of which plaintiff is unable to
discover.
" Plaintiff further avers that the deed executed and de-
livered to plaintiff by said J. P. Mathis conveyed a com-
plete and indefeasible title to said land to plaintiff, and
gave plaintiff the right to possession thereof."
The defendant Thacker demurred to the amended peti*
tion, alleging that there is a defect of parties plaintiff and
a defect of parties defendant; that several causes of action
are improperly joined, and that the petition does not state
Vol. 30] SEPTEMBER TERM, 1890. 617
Alexander y. Thaoker.
facte sufficient to constitute a cause of action. The de-
murrer was sustained and the action dismissed as to
Thacker.
The plaintiff's causes of action are based upon two tax
deeds issued by the treasurer of Cass county. The one
dated September 5, 1873, which is the foundation of the
plaintiff's first cause of action, failed to convey any title
on account of the omission of the treasurer to attach to the
deed his official seal. The plaintiff's title having failed,
he acquired a lien upon the land for the moneys paid out
for taxes. The evident purpose of the first cause of action
wag to foreclose such lien. In a suit to foreclose a lien for
taxes, all parties having an interest in the real estate are
proper parties, and the person holding the equity of re-
demption is an indispensable party. The petition alleges
that the defendants claim to own some interest in the
property. It is not alleged that either of the defendants
owns the equity of redemption. There was, therefore, a
non-joinder of parties defendant. Such defect, however,
was not sufficient grounds for dismissing the suit without
giving an opportunity to bring in the holder of the legal
title. The plaintiff should have been ordered to bring in
the absent party within a time to be named by the court,
and in default thereof the suit be dismissed.
The cause of action set up in the second count of the peti-
tion is one to quiet title. It is founded upon the tax deed
issued December 7, 1886, to one J. P. Mathis, upon the same
land covered by the tax deed referred to in the first count
of the petition. The pleading does not charge, nor does
it set up facts which make it appear that the second tax
deed failed to convey the title, but on the other hand, it
does allege that Matins, the grantee in the tax deed, "con-
veyed a complete and indefeasible title to said land to the
plaintiff." The facts charged in the second cause of action
are sufficient to resist a general demurrer. It is unneces-
sary to determine whether the first count states a cause of
618 NEBRASKA EEPORTS. [Vol. 30
30 618!
6g 781|
Kitchen Hotel Co. t. Hammond.
action or not; for when a petition contains more than one
count, and a general demurrer is directed against the entire
pleading, and is not limited to a particular count, if any
count states a cause of action, such demurrer must be over-
ruled. The plaintiff, however, could not properly join in
the same petition a cause of action to foreclose a tax lien
with one to quiet title. If it be true that the second tax
deed is valid and conveyed the legal title, as alleged, then
it is obvioQs that the lien acquired by the first tax deed be*
came merged in the title and there could be no foreclos-
ure of the lien. He could not foreclose a tax lien on land
of which he owns the entire fee.
There being a misjoinder of causes of action, instead of
dismissing the suit, the plaintiff should have been required
either to elect upon which cause of action he would go to
trial or file a separate |)etition for each cause of action, and,
when filed, an action should be docketed for each petition.
(Code, sec. 97.) The judgment of the district court is re-
versed and the cause remanded for further proceedings.
Reversed and remanded.
The other judges concur.
80 018
40 282
^^ _ »3 Kitchen Bros. Hotel Co. v. John S. Hammond.
,30 "618
1(59 758,
[Filed Octobbb -28, 1890.]
Findings : Must Confobm to Issues. The findings of fiicts and
the judgments mast conform to, and be supported by, the alle-
gations of the pleadings on which thej are based. (Lipp v. If or-
ftacA, 12 Neb., 371.)
Error to the district court for Douglas county. Tried
below before Wakeley, J.
Vol. 30] SEPTEMBER TEEM, 1890. 619
Kitchen Hotel Co. y. Hammond.
Charles Ogden, for plaintiff in error.
EstcArook, Irvine & Clapp, contra,
Cobb, Ch, J.
The plaintiff, in the court below, alleged ^^that the de-
fendant is a corporation duly organized and existing under
the laws of this state, and is indebted to him in the sum
of $52 for work and labor done and for material furnished
at defendant's special instance and request, no part of which
has been paid. To which the defendant answered, admitting
it is a corporation and denying every other allegation of
the plaintiff.
'' II. The defendant says that the plaintiff has been
paid in full for any amount which may have been due him,
and that there was, at the commencement of this suit, no
sum whatever due him from defendant.''
There was a trial to the court, a jury being waived, with
finding and judgment for the plaintiff for $49 and costs.
The defendant's motion for a new trial being overruled,
exceptions were taken on the record, and the cause brought
to this court for review, on account of the court below ad-
mitting certain testimony of the plaintiff excepted to by
defendant, and because the finding and judgment of the
court should have been for the defendant.
The cause of action, as set forth, was sufficiently proved
by the evidence of the plaintiff; that he did the work
charged for, and that it was reasonably worth the amount
claimed, was admitted by counsel for the defendant in open
court. The plaintiff testified that the bill had not been
paid, and that he had received nothing on account of it.
From the bill of exceptions it does not appear that there
was any evidence offered on the trial proving, or tending
to prove, payment There was testimony offered and re-
ceived by the court, subject to exception, which tended to
620 NEBRASKA REPORTS. [Vol. 30
Mace V. Heath.
prove that in a former action between the parties, wherein
the plaintiff in error was plaintiff, and the defendant in
error was defendant, in which the plaintiff had judgment
by default, on an ex parte hearing, the items of charges
constituting the cause of action in this case were credited
to the defendant and deducted from the amount of recovery.
Whether these facts, as proved, would have constituted a
defense to this action had they been properly pleaded, need
not be now considered, as they were not pleaded in this
action; and while such evidence was before the court, it
could not, under well known principles of law, have been,
considered in deciding the case. In no event, without an
amendment of the answer, or a formal offer to amend,
could such defense have been considered. The judgment
of the district court is
Affirmed.
The other judges concur.
W. W. Mace et al. v. J. B. Heath.
[Filed Octobee 28, 1890.]
1. Negotiable Instruments: Alteration: Assent by Pabt-
NEB. Two persons jointly purchased the fixtures, furniture
stock, and lease of a feed store in the city of O. for the sum of
$1,008, and paid thereon the sum of $400 cash, and gave their
notes, due in three and six months, for $304 each. The noteo
were drawn on printed forms, and contained the words, ** Paya-
ble at the Merchants National Bank of Omaha, Nebraska."
These words were erased before the notes were signed, but the
word ** maturity," indicating the time when the interest would
commence, was not erased. A short time aA«rwards the payee
called the attention of one of the makers to the omission to erase
the word, and it was thereupon erased, and thereby the notes
drew interest from date. Held, That, as there was testimony
Vol. 30] SEPTEMBER TERM, 1890. 621
Mace Y. Heath.
tending to show that the notes were to draw interest from date,
and that the makers were partners, the erasure therefore bound
the firm.
2. Statute of Frauds. A y^rbal contract to engage in the busi-
ness of purchasing five car loads of baled hay, and diriding the
same with the defendants, the value being in excess of $50, no
part of the hay being delivered, nor any portion of the consid-
eration paid, is within the statute of frauds, and void.
Error to the district court for Douglas county. Tried
below before Doanb, J.
Breen & Duffie, for plaintifis in error, cited, as to the
alteration: Savings Bank v, Shaffer, 9 Neb., 4; 1 Bates,
Partnership, sees. 462-3a; Daniel, Neg* Inst., sec. 1401 ;
KUkeUy v. Martin, 34 Wis., 625; Booth v. Powers, 56 N.
Y., 22-31 ; as to the contract for purchasing the five car
loads of hay: Green leaf, Ev., sec. 481; York v. Clemen n
41 la., 96; Dodge v, Chjde, 7 Rob. [N. Y.], 410 ; Baldwin
9. Bwrows, 47 N. Y., 199.
Gregory, Day & Day, contray cited, as to the contract
for purchasing the hay : Jiussell v, JR. Co., 39 N. W. Rep.,
302; Waterman v. Meigs, 4 Cush. [Mass.], 497 ; Gardner
V. Joy, 9 Met. [Mass.], 177.
Maxwbix, J.
The defendant in error brought an action in the district
court of Douglas county on two promissory notes, as fol-
lows:
"$304. Omaha, Neb., May 3, 1887.
" Three months after date we promise to pay John B.
Heath, or order, three hundred and four dollars, for value
received, with interest at the rate of eight per cent per
annum from until paid.
" Due August 3, 1887. W. W. Mace.
"C.A.Clement."
622 ' NEBRASKA REPORTS. [Vol. 30
Maoe T. HMith.
$304. Omaha, Neb., May 8, 1887.
"Six months after date we promise to pay to John B.
Heath, or order, three hundred and four dollars, for value
received, with interest at the rate of ten per cent per
annum from until paid.
"Due Nov. 3, 1887. W. W. Mace.
"C. A. Clement."
There is also a count in the petition for goods, wares,
merchandise, etc, sold and delivered to the defendants
below.
The prayer is for $558, with interest from May 3, 1887.
Tlie defendants below, in their answer, allege that the
notes were to draw interest from maturity, but that the
plaintiff erased the word "maturity."
"2d. They allege that the second cause of action set
forth in the petition is the same as that for which the notes
were given.
" 3d. They plead a counter-claim in the sum of $250,
for a violation by the defendant in error of a contract that
he would not open another feed store in the vicinity of the
place of business of the plaintiffs in error.
" 4th. That the defendant in error entered into a con-
tract with them to deliver five car loads of hay, which was
to be purchased by him and shipped in his name, which
. contract he refused to perform."
The fifth ground is that they purchased a claim of
$139.60 against the defendant in error prior to the bringing
of this action.
On the trial of the cause, the defendants below filed a
motion to require the plaintiff to elect upon which count of
the petition he would proceed. This motion was overruled,
and no point is made upon it, so that it need not be further
noticed.
The court found in favor of the defendant in error and
rendered judgment for $500.39.
The testimony shows that prior to May 3, 1887, the
Vol. 30] SEPTEMBER TERM, 1890. 623
Maoe V. Heath.
plaintiff below had been engaged in the feed business in
the city of Omaha. On that day the defendants below
pnrchased the business, furniture, and fixtures, and lease
of the premises of the plaintiff below. The price was
$1,008. Of this amount the defendants below paid $400
in cash, and executed the two notes sued on. The notes
were made out on printed forms and the words ''Payable
at the Merchants National Bank, of Omaha, Nebraska,"
were in the form, but Mr. Clement testifies that he filled
the notes out and erased those words before the notes were
signed. The word "maturity," which seems to have been
in the printed form, was not erased at that time. This is
claimed to have been done afler the notes were executed
and delivered. There is testimony tending to show that
the notes should draw interest from date, and a day or two
afler the making of the notes, the plaintiff below seems to
have called the attention of Mr. Clement to the fact that
the notes were made not to draw interest until maturity.
The word "maturity" was thereupon, by agreement,
erased, and this, it is claimed, discharges Mr. Mace. We
think differently, however. Mr. Mace and Mr. Clement are
shown to have purchased the stock in partnership and con-
tinued to be partners for some considerable time after-
wards. The change in question was simply making the
notes conform to the contract, and was within the scope of
the partnership business.
Second — The court below seems to have found that the
contract in relation to the five car loads of hay was within
the statute of frauds, and void. The amount of the prop-
erty involved exceeded $50 in value, and no note or mem-
orandum of the contract was made in writing, subscribed
by the parties, to be charged thereby, nor were any portion
of the goods accepted or received, or any part of the pur-
chase money paid.
There was no error, therefore, in rejecting the claim. The
plaintiffs in error have received the defendant in error's
624 NEBRASKA REPORTS. [Vol. 30
Giles T. GUes.
property and are still indebted for the same in the amount
found due by the district court. This should be paid.
The judgment of the district court is
Affibbced.
The other judges concur.
I 37 l»76|
|f4l 747
lILJ^ William Giles, appellant, v. Maby Giles,
APPELLEE.
[Filed October 28, 1890.]
Divoroe : Custody of Minob Child: Considebations in Award-
ing. A husband and wife living in Aurora, Illinois, having a
child which* was a minor, were divorced, there being no pro-
vision in the decree for the custody of such child. Afterwards
the parties agreed that the mother should retain the custody of
such infant, the father to pay five dollars per week for its sup-
port. This he did for some time, when the mother removed to
Omaha, bringing the infant with her. In a proceeding on habeas
eorpu$ by the father to obtain the custody of the child, held,
that he had no absolute vested right in the custody of such in-
fant, and that the paramount consideration is, what is really
demanded by the child's best interests, and the court, in award-
ing the custody to the father, mother, or other person, will be
guided by what may seem best for the child.
Appeal from the district court for Douglas county.
Heard below before Clarkson, J.
Fawcdt & Sturdevant, and John P. Davis, for appellant,
cited : Rex v. Isley, 5 Ad. & Ell. [Eng.], 441 ; Toringion v.
Norwich, 21 Conn., 543; People v. Mercein, 3 Hill [N. Y.],
408 ; Johnson v. Terry, 34 Conn., 259 ; In re Scaritt, 76
Mo., 565; Clark v. Bayer, 32 O. St., 310; Miner v.
Miner, 11 111., 43; In re Goodenough, 19 Wis., 296.
Vol. 30] SEPTEMBER TERM, 1890. 625
Giles V. 6ilc9.
C. p. Halligan, contra, cited : King v. Greenhill, 4 Ad.
& Ell. [Eng.], 624; Mei^cein v. People, 25 Wend. [N. Y.],
98, 101 ; Clark v. Baijei-, 32 O. St., 299 ; Htwitt r. Long,
76 111., 409; Miner v, Miner, 11 Id., 43; Cowls v. Cowls,
3 Gilm. [III.], 435; StaU v. BarreU,4b N. H., 15; State
i\ Smith, 6 Me., 462; Gishwiler^v. Dodez, 4 O. St., 615;
In re Waldron, 13 Johns. [N. Y.], 417 ; U. 8. v. Green, 3
Mason [U. S.], 484, 485 ; Marine Ins. Co. v. Hodgson, 6
Crunch [U. S.], 206 ; Schouler, Domestic Relations [2d
Ed.], 338-9 ; Hnrd, Habeas Corpus, 528 ; 2 Story, Eq.
Jur., 1341 ; State v. Bratton, 15 Am. Law Reg. [N. 8.],
359; Dunmain v, Guynne, 10 Allen [Mass.], 272 ; Lyons
V. Blenkin, Jac. [Eng. Ch.], 245.
Maxwell, J.
The plaintiff instituted a proceeding by habeas coiyus
in the district court of Douglas county to recover the pos-
session of his infant son, Haeckel Humboldt Giles. A
large amount of testimony was taken before the district
court, and judgment was rendered by it, that the defendant
retain the custody of the child. From that judgment the
cause is brought into this court by petition in error.
It appears from the record that in October, 1865, Wm.
Giles and Mary A. Giles were married in the state of Illi-
nois, and resided in that state as husband and wife uutil
July, 1889 ; that four children were born to them, of which
the two oldest are of age; that the third child was about
twenty years of age; and that the youngest son, the sub-
ject of this controversy, is about ten years of age. The
testimony also shows that the plaintiff, for many years
prior to 1889, had been the traveling agent of a firm in
Chicago engaged in the sewing machine business. His
territory seems to have covered a considerable part or all
of Wisconsin, Minnesota, etc., so that he was absent from
Jiome nearly all the time. As testified to by his daughter^
40
626 NEBRASKA REPORTS. [Vol. 30
Giles Y. GileiL
his abseDoes were prolonged from two to five months^ and it
is claimed^ and there is some testimony tending to show,
that from 1887 to July, 1889, he did not provide full sup-
port for his family. He explains this, however, to some
extent in his testimony, by saying that two of his children
were absent from home at an educational institution, and
he necessarily had to provide the means for their support.
The defendant also was engaged in business on her own
account, and had been for many years prior to July, 1889.
For many years prior to the date last named the family had
resided in Aurora, Illinois.
On the 11th of July, 1889, the defendant was granted
an absolute decree of divorce from the plaintiff in error,
her husband, by one of the courts in the state of Illinois,
on the alleged ground of desertion and failure to support
From the evidence in the record before us, it may be
questioned whether a divorce should have been granted.
So far as we can judge there was no such desertion and
failure to support as are contemplated by the statute. Bat
that question is not before the court.
In the decree there is no provision for the care of* the
minor children. There is some testimony tending to show
that, afler the divorce was obtained, the defendant- said to
the plaintiff that she was willing that he should take their
youngest son and care for him, but that he objected on the
ground that he had no home to place him in, and said if
she would care for him he would pay her five dollars per
week. This sum he seems to have paid up to December
6, 1889, when the defendant removed to Omaha, bringing
the child with her, and the plaintiff now brings this action
to obtain the custody of the child. The testimony shows
that he has no home of his own ; that he proposes to place
the child in the family of a friend in Aurora, Illinois.
We have no means of knowing the qualifications of this
family to care for and train a child of tender years;
nor, indeed, is there any evidence of a valid contract
Vol. 30] SEPTEMBER TERM, 1890. 627
Giles V. G les.
for the support of the child. For aught that appears,
they might at any time — in a day, a week, or a month-
abandon the care of the child, without bad faith or a viola-
tion of the agreement. But, suppose it did appear that the
family named was unobjectionable, and that the father had
entered into a valid contract with such family to care for
and furnish a home for his child, still it would not fol-
low that the father would be given the custody of such
child.
Under the stern rules of the common law, when the wife
and mother was but little better than a slave, the father
was given the custody of his children, without question.
This rule of the common law has not generally prevailed
in this country.
In United Stales v, Oreen, 3 Mason, 482, Judge Story
says it is an entire mistake to suppose that the ** father
has an absolute vested right in the custody of an infant.^'
In Corie v, Oorie; 42 Mich., 509, it is said '* In contests
of this kind the opinion is now nearly universal that
neither of the parties has any rights that can be allowed to
seriously militate against the welfare of the child. The
paramount consideration is what is really demanded by its
best interests.'^
In SturdevarU v. StatCy 15 Neb., 459, this court held that
in a controversy for the custody of a child the order of the
court should be made with a single reference to the best
interests of such child. This rule, we believe, has l)een
adopted generally by the courts of this country. (Schouler
on Domestic Relations, sec. 248, and cases cited.)
The testimony of the father tends to show that the
mother is an industrious woman and of good character.
He, at least, has been willing to trust the child in her
custody, and the principal objection made, by him at this
time is that she has removed i'rom the state of Illinois.
This removal was occasioned by lier entering into the em-
ployment of a company at a good salary so that she might
628 NEBRASKA REPORTS. [Vol. 30
Oakley ▼. Pegler.
be able to support herself and child^ and not from any
desire to exclude the plaiutiif from seeing it when lie so
desired. He has a right to call upon and see his child at
reasonable times, and should this privilege be denied^ it
might require the interposition of the court.
Where there are minor children, the separation of the
parents by divorce almost necessarily will cause more or
less pain to one or both of the parties. This is almost
unavoidable^ and is a matter for the serious consideration
of those who, through real or fancied grievances, seek relief
in the divorce courts, but neither parent has an absolute
right to the custody of the minor children, but the court
will consider their best interest and make such orders in
the premises as seem to be just and proper. The judg-
ment of the court below is right and is
Affirmed.
The other judges concur.
so 6281
47 «oi| O. R. Oakley v. G. H. Pegler.
I 30 6*48
, 67 647
[Filed Octobek 28, 1890. J
1. Karnes: Initials Instead of: Pleading. At common law
a declaration describing a party by the initials of his Christian
name is not sufficient on special demurrer. It should appear^
« however, that the initial used is not the Christian name.
3. : : Judgment. Where a party whose Christian
name was Oscar R. wai< in the habit of signing checks and doing
business at banks and at other places by the initials of his
Christian name, these initials will •be treated as his business
name, and a jndgment recovered against him by that name is
not subject to collateral attack.
Error to the district court for Lancaster county.
Tried below before Field, J.
Vol. 30] SEPTEMBER TERM, 1890. 629
Oakley y. Pegler.
J, B. Archibald, for plaintifiF in error, cited on the ques-
tion as to the name: Scott v. Ely, 4 Wend. [N. Y.], 555;
Miller v. Foley, 28 Barb. [N. Y.], 630, and cases; Mead
v/ifoiM, 7 Cow. [N. Y.], 332; Oriawald v. Sedgicick, 6
Id., 456 ; Ournsey v. LoveU, 9 Wend. [N. Y.], 319 ; Fam-
ham V. Hildrefh, 32 Barb. [N. Y.],.277; People v. Fergu-
soriy 8 Cow. [N. Y.], 102 ; People v. Smith, 45 N. Y., 772,
784 ; Waterbury v. MaJther, 16 Wend. [N. Y.], 613; Oran-
daU V. Beach, 7 How. Prac. [N. Y.], 271 ; Osbom v. Mc-
Closkey, 55 Id., 345; Hancock v. Bank, 93 N. Y., 85;
Frank v. Levi, 5 Rob. [N. Y.], 599; Bank v. Magee, 20
N. Y., 363; Gardner v. Kraft, 52 How. Pr. [N. Y.],499.
Harwood, Ames & Kelly, contra, cited on the same ques-
tion : Eggledon v. Son, 5 Rob. [N. Y.], 640 ; Cooper v.
Burr, 45 Barb. [N. Y.], 9 ; England v. N. Y. Pub. Co.,
8 Daly [N. Y.], 375 ; Linto7i v. First Nafl Bk., 10 Fed.
Rep., 897; Pancho v. Texas, 8 S. W. Rep., 476.
Maxwell, J.
This action was brought in the district court of Lancas*
ter county on a judgment recovered in the state of New
York by Pegler against O. R. Oakley.
The answer of the defendant is as follows :
" First answer to the plaintifiF's petition says, that his
true name is Oscar R. Oakley, and not O. R. Oakley, as
set forth in said action, petition, and proceedings.
" Second — That he has no knowledge whether the above
named (Jeorge H. Pegler obtained the pretended judgment
mentioned in said petition, or that the same is a true copy
of a pretended judgment obtained against one O. R. Oak-
ley in the supreme court of the state of New York, there-
fore he denies the same.
"Third — That at the time said pretended judgment
was claimed to have been obtained, this defendant Oscar R.
630 NEBRASKA REPORTS. [Vol. 30
Oaklej V. Pegler.
Oakley was and still is a resident of the state of Nebraska
and not a resident of the state of New York, and this de-
fendant did not appear in said pretended action, either
personally or by an attorney or other wise^ and said action
was not commenced nor judgment obtained in due form of
law in such case made and provided, and that said pre-
tended copy is not a copy of the judgment and judgment
roll in said action.
"Fourth — That the said pretended judgment is based
upon a fraudulent claim as against this defendant; that this
defendant denies that he is or was indebted to said plaintiff
in any sum whatsoever, and that said pretended claim is a
fraud in each apd all respects as against this defendant;
that said plaintiff is a non-resident of the state of Ne-
braska and resides in the county of Chautauqua, state of
New York."
On the trial of the cause judgment was rendered in favor
of Pegler. It appears from the transcript before us that
the action was brought in Chautauqua county. New York;
that service of summons was made upon Oakley in that
county, the return being as follows :
"State of New York, 1
County of Chautauqua, j '
"I certify that I served the summons and complaint
hereto annexed upon O. R. Oakley, the defendant therein
named, on the 23d day of March, 1887, at the town of
Dunkirk, Chautauqua county, New Yorlr, by delivering
to and leaving with him personally a copy thereof, at that
time and place.
"C. H. Lake, Sher^.
"By S. M. Mattison, Deputy,
"Fees, $4.13."
Oakley made default and judgment was rendered against
him.
It is apparent that that court had jurisdiction of the
person and also of the subject-matter of the action, and
V OL. 30] SEPTEMBER TERM, 1890. 631
On k Icy v. PeRlcr.
any errors whicli may have been committed by it cannot
be corrected in this action. Tlie principal error relied
upon is that tiie plaintiff in error was sued by the initial
letters of his Christian name and not by his surname.
Mr. Oakley was called as a witne.-s on the trial of tlic
case and testified as follows:
Q. Will you give your full Christian^ baptismal name
and surname?
A. Oscar Rodman Oakley.
Q. This is the name by which you go and the name by
wliich you are known?
A. It is.
Q. What is your business?
A. Dry goods business.
Q. Where do you reside?
A. Lincoln, Nebraska.
Q. How long have you resided in Lincoln^ Nebraska?
A. Since September 1, 1886.
Q, Did you move out here then with your family?
A. I moved my family about that time — August or Sep-
teml^er — I don't remember.
Q. In September, 1886, were you in any manner or
form indebted to this plaintiff?
Cross-examination :
Q. What do you say your name is ?
A. Oscar Rodman Oakley is my name.
Q. By what name were you known in the business
world ?
A. Well^ a business man oflen uses his initials, and I
very frequently do that of course.
Q. Is it not a fact you use your initials almost entirely ?
A. I use my initials in signing checks, I don't know as
I do entirely, but I do sometimes.
Q. Is it not a fact that your business signature to your
checks is in the form of O. R. Oakley ?
632 NEBRASKA REPOllTS. [Vou 30
Oakley t. Pegrler.
A. They are ?
Q. I will ask yoa if it is not a fact that the signature
you leave at bank, prepared for that purpose — ^the bank at
which you do business — at the First National Bank, is not
O. R. Oakley ?
A. Yes, all business men use their initials.
It will be seen from his own testimony that his habit
has been and is when signing ^checks, doing business at
banks and other places, to use the initial letters of his
Christian name. At common law a declaration describ-
ing a party by the initial of his Christian name is bad on
special demurrer. {I^Diier v, Fiit, 3 M., G. & S., 701;
Bliss on Code Pleading, sec. 146a.) It should be made
to appear, however, that the letter used is but an initial
and not the true name. (Tweedy v. Jarms, 27 Conn., 42.)
Whether an apparently initial letter will be treated as a
name must depend upon the manner in which the ques-
tion is .raised.
In the absence of a motion to the contrary, or a plead-
ing calling attention to the fact that it is not the name of
the party, the court will be warranted in treating it as his
name. If the defendant objects on the ground of misnomer,
he must give his true name. (Bliss on Code Finding, sec.
146a.) A judgment against a party sued by the initials
of his Christian name is not void. At the most it is void-
able for error of the court in the proceedings. Where,
before judgment, the attention of the trial court is called
to the fact that the defendant has been sued by the initials
of his Christian name, the court may permit an amend-
ment instantef' by inserting the full Christian name. If no
objection is made on that ground, the defendant will be
concluded by the judgment.
In the case at bar the plaintiff in error did business as
O. R. Oakley, and although his Christian name is Osaiv
R. Oakley, the name by which he does business in sign-
ing checks and at the banks and at other places in O. R.
Vou 30] SEPTEMBER TERM, 1890. 638
Omaba ▼. Howell Lamber Oo.
Oakley. This may be called his business name, and a
judgment recovered against him by that name cannot be
attacked collaterally.
There is no error in the record and the judgment is
Affirmed.
The other judges concur.
City op Omaha, v. Howell Lumber Co.
[Filed Octobkb 28, 1890.]
Mimioipal CorporationB : Eminent Dohainc Damaobs:
Special Benefits Not Deducted. Where land is oondemued
for pnblio use, as for opening a street, the owner is entitled to
the fair market valne of the land actnally taken, and special
benefits to the residue of the tract cannot be set ofi* against snch
Talne, bat may be against incidental damages to the residae of
the tract
Error to the district court for Douglas county. Tried
below before Doane, J.
A, X Poppleton, for plaintiff in error, after contending
that the doctrine of Wagner v, Oage County and Schallei-
V. Ofiiaha was intended to establish a rule of practice, and
not a principle of the law of property, cited : C<ym. v.
Middlesex, 9 Mass., 388 ; Livermore v. Janiakay 23 Vt.,
361 ; Harmy v. R. Co., 47 Pa. St., 428 ; Troy & B. R. Co.
V. Lee, IS Barb. [N. Y.J, 169; In re Furman St., 17
Wend. [N. Y.], 649; Giesy v. R. Co., 4 O. St., 330; Sy-
inonds v. Cincinnati, 14 O., 147 ; Cooley, Const. Lim. [5th
Ed.], 520, 700, 704; 3 Sutherland, Damages, 432-3; 2
Dillon, Mun. Corp. [3d E<1.], 625; Brovm v. Cincinnati,
14 O., 541; Com'rs v. & Sullivan, 17 Kan., 58; A., T. &
I 30 638
I 30 698
80 6.^1
44 7%2l
634 NEBRASKA REPORTS. [Vol. 30
Omaha t. Howell Lumber Go.
8. R B. Co. v.^Blackshire, 10 Id., 477; Win(ma R. Go.
V. Waldron, 11 Minn., 392; Nicholson v. R. Cb., 22 Conn.,
74; Nichols v. Bridgeport, Id., 189; WyayidoUe, etc., R
Co. V. Waldo, 70 Mo., 629; Pacific R. Co. v. Chrystal, 25
Id., 544; Newby v. PlaUe Co., Id., 258; Lee v. R. Co., 55
Id., 178; Quinoy, M. & P. R. Co. v. Ridge, 57 Id., 600;
Meacham v. R. Co., 4 Gush. [Mass.], 293; Park v. Hamp-
den, 120 Mass., 395; DwighJt v. Cb. Com'rs, 11 Cush.
[Mass.], 201 ; Whitman v. R. Co., 3 Allen [Mass.], 133;
Upton V. R. Co,, 8 Cush. [Mass.], 600 ; Green v. Fall
River, 113 Mass., 262; Allen v. CharUstown, 109 Id., 243;
Pitts. R. Co. V. Bentley, 88 Pa. St., 178; Oummings p.
Williamsport, 84 Id., 472; East Brandywine & W. R. v.
Ranch, 78 Id., 454; Shenango, etc., R. Co. v. Braham, 79
Id., 447; SchuylkiU Nav. Co. v. Tliobnm, 7 S. & R. [Pa.],
411 ; Pean. R, Co. v. Heistei\ 8 Pa. St., 450 ; SearU v. R.
Co., 9 Casey [Pa.], 57; PaUen v. R. Co., Id., 426; Wat-
son V. R. Co., 1 Wright [Pa.], 469; E. Penn. R. Co. v.
Hottensteine, 11 Id., 28; Homstein v. R. Co,, 1 Smith
[Pa.]. 87; S. F. A. & 8. R. Co. v. Caldwell, 31 Cal., 367;
Holton V. Milwaukee, 31 Wis., 27 ; Bigelow v. R. Co., 27
Id., 478; TtHnity Col. v. Hartford, 32 Conn., 452.
Congdon & Hunt, contra, cited : F., E. & M. V. R. Co.
V. Whaien, 11 Neb., 585; SchaUerv. Omaha, 23 Id., 325;
Blakeley v. R. Co. 25 Id., 207; Com. v. R. Co., 58 Pa. St.,
26 ; Isom v. R. Co., 36 Miss., 300; Woodfolk v. R. Co., 2
Swan [Tenn.], 422; Penn. R. Co. v. B. & 0. R. Co., 60
Md.,26:J; Memphis v. Bolton, 9 Heisk. [Tenn.], 508; P. &
M. R. Co. V. Stovall, 12 Id., 1; Brown v. Beatty, 34 Miss.,
227 ; Comers v. Harkelroads, 62 Id., 807 ; Jacob v. Louis-
ville, 9 Dana [Ky.], 81 ; H. & N. R. Co. v. DicJcerson, 17
B. Mon. [Ky.], 173; L. & N. R. Co. v. Thompson, 18 Id.,
735; L. & N. R. Co. v. Olazebrook, 1 Bush [Ky.], 325;
Tide Water Canal Co. v. Archer, 9 G. & J. [Md,], 479;
Shipley v. R. Co., 34 Md., 336 ; R. Co. v. Tyree, 7 W. Va.,
Vol. 30] SEPTEMBER TERM, 1890. . 636
Omaha t. Howell Lumber Co.
693; R. Co. v. Lagarde, 10 La. Ann., 150; R. Oo. v. Col-
denoood, 15 Id., 481; R. Co. v. Gay, 31 Id., 430; R. Oo.
V. Dillard, 35 Id., 1045; R. Oo. v. Ferris, 26 Tex., 588;
Tate V. Malhews, 16 Id., 112; Paris v. Mason, 37 Id., 447 ;
T. & St. L. R. Oo. V. Mathews, 60 Id., 215 ; Jones v. R. Oo.,
30 Ga., 43 ; Savannah v. Hartridge, 37 Id., 113; Augusta
V. Marks, 50 Id., 612 ; West Shore R. Oo. v. BeU, 24 Hun
[N. Y.], 427; State v. Beackmo, 8 Blackf. [Ind.], 246;
Butler V. Sewei' Oom., 39 N. J. Ekj., 665; Carpenter v. Jen--
rdngs, 77 III., 250; Todd v. R. Co., 78 Id., 5 iO ; Hifslop
V. Finch, 99 Id., 171; SooU v. Toledo, 36 Fed. Rep., 885;
A. & F. R. Oo. V. BurkeU, 42 Ala., 83.
Maxwell, J.
#
The city of Omaha extended Leavenworth street from
block 187 to the Missouri river, and in doing so con-
demned a portion of the defendant in error's land. Ap-
praisers were duly appointed, who estimated the damages
and made an award. An appeal was taken to the district
court, where the jury returned a verdict as follows :
" We, the jury duly impaneled and sworn to try the
issues in the above entitled case, do find that the market
value of the strip in controversy, at the time of the con-
demnation proceedings, was $8,625.
^^ We do further find that the special benefits to the re-
maining land of 'the Howell Lumlier Company, through
the opening of Leavenworth street, amounted to the sum
of $5,000."
A motion for a new trial having been overruled, judgment
was entered on the verdict excluding the special benefits.
The sole question presented is. Can special benefits be
set off against the value of the land actually taken?
This question was carefully considered in Wagner v. Oage
County 3 Neb., 237. In that case about six and three-
fourths acres of plaintiff's land were taken for a public
636 NEBRASKA REPORTS. [Vol. 30
Omaha t. Howell Lumber Oo.
road. The case was tried before Judge Gantt, who, in
effect, instructed the jury that they might set off special
benefits against the value of the land actually taken. The
jury thereupon returned a verdict finding that there were
no damages to the land-owner.
This court, after a very careful consideration of the de-
cisions and the rule which should be adopted in such cases,
held that the value of the land taken must, in all cases, be
paid in money, but that special benefits may be set off
against incidental damages to the residue of the tract.
That case was followed in the jF., E. & M. V. R. Oo. r.
Whalen, 11 Neb., 585. In the latter case. Judge Lake,
who wrote the opinion, and prepared the syllabus, says:
''.Where land is condemned for railroad purposes, the owner
is entitled to have as one item of damage, in all cases, the
fair market value of the part actually taken." This case
was followed in Schaller v. City of Omahay 23 Neb., 325.
In that case, after referring to Wagner v. Gage County, it
is said in the published opinion, 'Hhat decision has become
the rule of practice in this state." The word "practice"
was originally written "property," but by mistake was
changed to " practice " and the change overlooked.
In Bldkdey v. C, K. & N. Ry,y 25 Neb., 207, the rule of
Wagner v. Gage County was adhered to and must be re-
garded as the settled law of this state.
It is true there are many decisions holding that special
benefits may be set off against the value of the property
taken. Almost invariably, such benefits are largely spec-
ulative and are such as are shared by the public at lai^e.
We must remember that it is not the property owner who
is desiring the improvement. It is sought to be made on
behalf of the public, and it would seem but justice that the
party at whose instance, and for whose benefit the improve-
ment was made, should bear the burden. The property
owner may well say: "I do not desire the improvement
made, as it will interfere materially with tlie business that
Vol. 30] SEPTEMBER TERM, 1890. 637
Omaha ▼. Cochrkn.
I am carrying on there, or will cause me great expense to
adapt the property to the changed condition/' The prop-
erty owner may be indebted thereon, and finds that he can-
not apply special benefits in the payment -of the debt.
No doubt there are cases where the property owner is
benefited very greatly by the public improvement, and
this, perhaps, may be one of that kind. No general law
can be so applied as to do exact justice in every case, but
the rule that property actually taken for public use simll
be paid for in money, is based upon justice, and is less lia-
ble to abuse, wrong, and oppression than the one that
makes speculative or imaginary benefits a legal tender for
property which a party has been forced to convey or is
taken under the forms of law.
The judgment of the district court is
Affirmed.
The other judges concur.
City of Omaha v. Warren Cochrak.
Same v. August Ddll.
Same y. Chris. Basmussen.
[Filed October 28, 1890.]
Municipal Corporations : Eminent Domain: Damages: Spe-
cial Benefits Not Deducted. Where land is taken by a
municipality for the opening of a street, the owner is entitled to
the Talae of the land taken, without deduction for benefits.
Error to the district court for Douglas county. Tried
below before Doane, J.
A. J. Poppleton, and John L. Webber, for plaintiff in
error.
Estabi'ook, Irvine & Clajtp, contra.
638 NEBRASKA REPORTS. [Vol. 30
Eldiidge y. Httrgreaves.
Maxwell, J.
The question involved in the cases is precisely the same
as in the City of Omaha v. The Howell Lumber Co., just
decided {ante, p« 633). The reasons for adhering to our
former decisions, that the owner of the land in all cases is
entitled to the value of the portion taken, are stated in that
case. That rule we deem in accordauce with justice and as
a check upon the abuse of corporate power. It is simply
applying the rule that where the proj>erty of an individual
is taken from him he shall receive an equivalent that is
available in satisfaction of his debts, or, if he so desire, in
the purchase of other property. The judgments in each
of the above cases are
Affirmed.
The other judges concur.
aO 088
47 641
30 638 J. N. Eldridge £t al. y. A. E. Hargreayes et al.
59 755
65 89g
[Filed Octobbb 28, 1890.]
1. Pleading: Refebencb to Facts Pbeviously Stated. While
the facts constitutiDg separate and distinct caosesof action or
defense are required to be separately stated, so that each coant
is distinct from every other and complete in itself, yet, where a
fact has been stated once in a pleading in a canse, it may be re-
ferred to in anysnlwequent pleading, or sabseqnent coant of the
same pleading, and, by proper reference, be made a part thereoC
3. : The Answer construed, and held, to state aU the es-
sential facts necessary to constitute a counter-claim for a breach
of warranty.
8. Warranty: Statements of Partner. In an action against a
partnership for a breach of warranty, it is competent to prove
that one member of the partnership made the representations
Vol. 30] SEPTEMBER TERM, 1890. 639
EUridge ▼. Hargreavea.
and warranty for tho firm that indaoed the sale, althoagh the
pleading alleges that the warranty was made hy the firm. A
partnership is bound by the representations and warranties
made in the sale of its troods by a member thereof.
Evidencb: PLKADiKa. In such an action , it is
not necessary to prove each representation set op in the plead-
ing, bat it is sufficient if any one of the material representa-
tions averred is established which induced the parchase.
: : . The testimony offered by the plain tiffis to
establish propositions of compromise made by the delendants,
was rightly ezciaded.
In a suit for a breach of warranty brought
by A against B, it is not competent to prove the representa-
tions made by C to D in the sale of the same kind of goods.
Jm Instmctiozis. Hdd^ That the instructions correctly embodied
the law applicable to the case.
Error to the district court for Lancaster county. Tried
below before Field, J.
Chas. 0. WhedoTiy for plaintiffs in error, cited: DaJe v.
Hunneman, 12 Neb., 225; Peek v. Trumbull, Id., 136;
Stewart v. Balderaton, 10 Kan., 144-6; Vassear v, Liv^
ingston, 13 N. Y., 249; Bliss, Code Pi., sees. 367, 431;
Swan V. StoaUj 16 Neb., 453.
Cornish & Tibbda, contra, cited : Maxwell, PI. & Prac,
393 ; 1 Sutherland, Damages, 277 ; Brizsee v. JUaybee^ 21
Wend. [N. Y.], 144; Masierson v. Mayer, 7 Hill [N. Y.],
61; Marsh v. Webber, 13 Minn., 99; Young v. FiUey, 19
Neb., 643.
NORVAL, J.
This suit was brought by the plaintiffs in error to re-
cover the sum of (1,203.90, with interest thereon, for
360 cases, and fifty k^s of orange cider, sold and deliv-
ered to the defendants. The defendants filed the follow-
ing answer :
640 NEBRASKA REPORTS. [Vol. 30
Eldrldge t. Hargreaves.
" For answer to plaintiffs' petition herein, defendants
admit that on or before the 12th day of July, 1887, he
entered into oon tract with plaintiffs for the purchase of
goods mentioned in plaintiffs' petition, and that he agreed
to })ay for the same the sum of $1,203.90 on the 11th day
of October, 1887; that said goods were delivered, and that
the same are not paid for, as alleged in plaintiffs' petition.
" 2. For a further defense, and by way of counter-claim,
defendants allege that the said plaintiffs, as an inducement
to the defendants to purchase from them said goods men-
tioned, falsely and fraudulently represented and warranted
to the defendants that the said gocxls, consisting of orange
cider, were of a good merchantable quality, and valuable
for the wholesale trade; that the said orange cider was
manufactured from orange juice and lime juice, from Cali-
fornia fruit ; that it was properly named orange cider, and
that the defendants, relying upon said representations and
warrants, purchased from the plaintiffs the said goods, as
above stated; that at the time of said representations and
purchase the defendants were engaged in the business of
wholesale grocers, and purchased said goods for the pur-
pose of selling in the ordinary course of trade to retail
dealers, all of which at the time was well known to the
plaintiffs, and plaintiffs sold said goods for said purpose.
" 3. Defendants aver that said orangre cider was not as
represented and warranted, but, on the contrary, it was
manufactured entirely from harmful and inexpensive drugs
and water, and is of no marketable value and not fit for
the purpose of the wholesale trade, all of which plaintiffs,
at the time, well knew.
"4. By reason of the false representations and warrants
as aforesaid, by which plaintiffs (defendants) were deoei veil
and indueed to make siiid purciias^i, and of the above
premises defendants have sustained damages in the sum of
$1,500, for which sum defendants ask judgment, together
with costs of suit."
Vol. 30] SEPTEMBER TERM, 1890. 641
Eldr.d^e v. UarKreaves.
The plaintififs replied, denying every allegation of the
answer. The case was tried to a jury, who found that
there was due the plaintiffs upon the cause of action set
forth in their petition (1,321; that there was due the
defendants ujion their counter-claim the sum of $1,075,
and assessed the plaintiffs' recovery at $246. The defend-
ants filed a remittitur of $9 from the amount found due on
their counterclaim, and a judgment was rendered in favor
of the plaintiffs for $255.
Upon the trial, the plaintiffs objected to the defendants
introducing any testimony for the reason that the facts
stated in the answer are insufScient to constitute a defense
to the plaintiffs' cause of action, or to establish a counter-
claim in favor of the defendants. The objection was over-
ruled, and the ruling is aasigned as error.
While the answer is divided into four distinct para-
graphs, it is clear that the pleader only attempted to state
a single cause of action against the plaintiffs, and in de-
termining the sufficiency of the pleading it must be con-
strued as an entirety. The first paragraph of the answer
makes reference to the contract declared upon in the peti-
tion, admits that the defendants entered into the same,
received the goods in the petition mentioned, and agreed to
pay therefor the amount herein stated. The remainder of
the answer consists of a plain statement of the facts consti-
tuting the defendants' counter-claim. It is urged by
counsel for plaintiffs that in construing that part of the
answer setting up a counter-claim, we must not consider
the* first paragraph of the answer nor any allegation of the
petition which is referred to in the answer. While it is
true, as a general rule, that each count in a petition or
answer should be separate and distinct from every other
count and be complete in itself, it does not follow, when a
fiict has been once stated in a pleading, that it is necessary
to state it again in the same case. An allegation in one
count may be referred to in any subsequent count and
41
642 NEBRASKA REPORTa [Vol. 30
Bidridge y. HargreaTes.
made a part tiiereof by reference, and the allegation re-
ferred to will be considered in construing such subsequent
count. So an answer may refer to an allegation of the
petition and by such reference make it a part of the an-
swer. Any other rule would require unnecessary repeti-
tions. The facts set up in the petition, which are admitted
by the answer, must be considered in construing the
answer. The defendants having alleged that they were
damaged by reason of the breach of warranty in the sum
of $1,500, it was not necessary that they should have plead
in the answer what would have been the value of the
goods if they had been as warranted, or their value as they
actually were when received. The answer states all the
essential facts necessary to constitute a counter-claim for a
breach of warranty. It is substantially the same as the
form given in Maxwell's Pleading and Practice, for a
counter-claim for a breach of warranty.
The testimony shows that A. E. Hargreaves, one of the
defendants, met in the city of Omaha, in July, ISSb, C.
O. Higgins, one of the plaintiffs, who, at that time, sold to
the defendants a large quantity of an article called orange
cider, which was to be thereafter delivered to the defend-
ants in the city of Lincoln, for which they agreed to pay
$1,357.50, and that Higgin-t exhibited to Hargreavt^s sev-
eral bottles of the drink, which were labeled as follows :
CALIFORNIA
ORANGE GlDEa
The Pare Jaioe of the Ripe Fruit Clarified*
Nature's Most Healthful BeveraKe. Su-
perior to Lime Juice or Lemonade
as a Refreshing Drink. Etpe-
cially recommended as a
Fruit Alterative, to
be taken at lunch
or meal time.
The testimony introduced by the defendants tends to
prove that Higgins, to induce the sale, represented to Har-
Vol. 30] SEPTEMBER TERM, 1890. 643
Eldrldge T. Uargreaves.
greaves that the article was orange cider, manufactured in
California from orange juices, and that it was a good sala-
ble article.
Charles C. Higgins, one of the plaintiffs, testified that
he made no false representations to Hargreaves, but that
at the time of the sale he truthfully informed Hargreaves
of all the facts regarding the cider. Higgins, in his testi-
mony, admitted that he knew when he made the sale to
the defendants that the beverage was not made of orange
juice, and that it was put up in Columbus.
But three of the persons who were present at the time
of the sale and heard the conversation, were witnesses upon
the trial. Tliey were A. E. Hargreaves, C. C. Higgins,
and Herbert C. Bowman. The testimony of the interested
witnesses — Hargreaves and Higgins — is conflicting. What
one avers as true, the other denies. Hargreaves was cor-
roborated by the testimony of Bowman, a disinterested
witness, who was present when the order for the goods was
given, and heard the entire conversation. We quote from
his testimony :
Q. State what was said at the conversation.
A. Well, Mr. Higgins took us upstairs and he said he
had this orange cider there, and sent down for some sam-
ples— sent for ice water, and he poured it out, and we all
tasted the orange. He said a couple of young fellows had
gone to California and had seen these oranges going to
waste off the trees, and not used, and they conceived the idea
of making this cider of it. They had furnished money to
these young fellows to make cider of these oranges, and
Mr. Hargreaves asked him if it was put up in Columbus.
He said yes, it was put up in bottles there — made in Cali-
fornia and bottled in Columbus. He asked him why he
had it put up in Columbus. He said it would cost more
in bottles — they would have to ship them back, and pay
double first class freight — the bottles would cost him double
than putting it up in Columbus. We talked the thing
644 NEBRASKA REPORTS. [Vol. 30
Eld ridge v. Hargrcavea.
over — talked about the labels, one thing and anotlier — why
they did not put their name on the labels, it being a Cali-
fornia product, and having it put up in Columbus, the
trade would not understand why it was not put up in Cal-
ifornia, and they could not do that. We talked it over a
while, and Mr. Hargreaves bought some of the goods.
Q. Do yon remember of anything being said about the
firm of W. T. Coleman ?
A. Yes; he said \V. T. Coleman wanted the agency for
the west; further than that I don't remember about W.
T, Coleman, only his saying he wanted the agency of it.
Q. Did Mr. Higgins say anything about this being
good for the trade, selling in temperance states?
A. Yes; Mr. Hargreaves asked him why he did not
put it up as orange wine. He said a good many people
made objcn^tions to it in temperance states, and temperance
people would not buy it unless it was put up under the
brand of cider.
Q. Did he state how it sold ?
A. Yes; he claimed it was selling best where they had
sold it, and it was a good salable article, if I remember.
The defendants had never had any experience in orange
cider, and in making the purchase, the testimony tends to
show, that they relied upon the representations made by
Higgins. It is conclusively shown that the cider was not
made from the juice of the orange, but that it was manu-
factured by two firms at Columbas, Ohio, from the follow-
ing formula: Granulated sugar, 15 parts; citric acid, -j^
of a part; tartaric acid, ^^^ of a part; alcohol, ^ of a
part; oil of orange, ^ of a part; water, to make the re-
mainder of the 100 hundred parts, and colored with burnt
sugar.
The testimony introduced by the defendants further shows
that the cider soon fermented and leaked out of the k^
and bottles in which it was shippnl, was unsalable, and of
but little, if any, value. If il. uaLlinuny introt.uctxl by
Vol. 30] SEPTEMBER TERM, 1890. 645
Eidridge y. HHrgre<iyes.
the defendants is true, then Higgins knowingly misrepre-
sented and warranted the goods and perpetrated a fraud
upon the defendants. It is manif&st that the verdict should
not be set aside as being against the evidence.
Several of the rulings of the trial judge, made on the
admission of testimony, are complained of by the plaintiffs
in error. We will notice such of these as seem to us to
require attention. The defendant A. E. Hargreaves was,
against the plaintiffs' objection, permitted to testify that
he had never had any experience in orange cider, and that
he relied upon the representations made by Higgins. The
objection urged against this testimony is, that there is no
allegation in the answer that the defendants relied upon
the representations made by one of the plaintiffs. The
answer alleges that the plaintiffs made the representations
and that the defendants relied thereon. Under this aver-
ment it was competent to prove that one member of the
plaintiffs' firm made the statements that induced the de-
fendants to make the purchase. The plaintiffs were bound
by the acts of Higgins and by the statement made by him.
They could not accept part of his acts without adopting all.
There was no reversible error committed in allowing
Hargreaves to testify that orange cider was a new article
to the trade, and that the cider bought by the defendants
soon fermented and escaped from the kegs and bottles. If
it be conceded that the witness had not shown himself
competent to testify whether orange cider was a new or old
article, yet the error, if any was made in allowing the
witness to testify upon that subject, was cured when the
plaintiffs proved by the depositions of Wm. I. Newlove,
one of the manufacturers, that they commenced its manu-
facture in the latter part of December, 1886, and ceased
making it in July, 1887. The plaintiffs' own testimony
shows that it could not have been known very long to the
trade. Although the answer contains no allegation in re-
gard to orange cider keeping, the testimony offered by the
646 NEBRASKA REPORTS. [Vol. 30
Eldridge ▼. Hargreavefl.
defendants, to the effect that it would not keep, was admis-
sible under the allegation of the answer that " it is of no
marketable value and not fit for the purpose of the whole-
sale trade." If the cider soon fermented and leaked out
of the casks, it was not a valuable article for wholesalers
to handle.
It appears in testimony that a day or two after the order
was given for the goods, the defendants concluded to coun-
termand the same. Hargreaves having known for some
years W. G. Higgins, a brother of one of the plaintiffs^
and not remembering the correct address of plaintiffs' firm,
.sent the following telegram to W. G. Higgins:
"July 9, 1887.
"To W. O, Higgins y care JShuviaii^ Mann <& Higgins^
Chicago J Illinois: Have your brother cancel our order, if
not already shipped. Will write giving reasons.
"Hargreaves Bros."
The objection as made to the admission of this telegram
was because it was not addressed to or received by any
party to the suit, and as being incompetent and immaterial.
The testimony shows that thi?? message was received by C.
C. Higgins, one of the plaintiffs, and was answered by him,
the answer being preserved in the record. It is quite im-
material that the telegram was addressed to one not a party
to the suit, so long as it is shown that it came into the pos-
session of the plaintiffs and that they recognized it by send-
ing a reply. We fail to see the relevancy of this message
to the issues that were being tried. It was not claimed that
the order given for the goods was rescinded. The answer
admits the receipt of the goods, and it was incompetent for
the defendants to prove that an attempt was made by them
to cancel the order. But as numerous other letters and tele-
grams, in substance the same as this one, were introduced
without objection, the plaintiffs were not prejudiced by the
admission of the message complained of.
Vol. 30] SEPTEMBER TERM, 1890. 647
Eldridge y. Hargictives.
Tlie answer alleges that the plaintiffs represented " that
the said orange cider was manufactured from orange juice
and lime juice from California fruit." The testimony intro-
duced by the defendants tends to show that the cider was rep-
resented to be made from pure orange juice, and that noth-
ing was said at the time about lime juice entering into its
manufacture. It was not necessary that the defendants
should prove that each representation set up in their answer
was made, but it was sufficient if they established any one
of the material representations therein contained, that the
same was untrue, and that the defendants were induced
thereby to make the purchase. '
The plaintiffs on the trial in the district court offered to
prove by the witness C. C. Higgrns that one of the defend-
ants in October, 1887, offered to pay $900 in settlement of
plaintiffs' claim, and that at the same time the plaintiffs
ofl'ereil to daluct from their claim $100. The proposed
tesstimony was rightly rejected, for the obvious reason that
a proposition of compromise made by a party whicii is not
aece{>ted by the other is not competent evidence. The de-
fendants had a perfect right to buy their peace, and that
they made the plaintiffs an offer for the purpose of settle-
ment, is no evidence that the defendants did not have a
valid counter-claim against the plaintiffs' cause of action.
Counsel for the plaintiffs in error say : "If the answer had
denied the defendants' liability, the offered testimony would
not have been admissible, but when they admitted their
liability and sought to recover a sum greater than their
admitted indebtedness to plaintiffs, any testimony which
tended to show want of good faith in their claim was ad-
missible as a defense to that claim." It certainly is quite
immaterial that the defendants in their answer admit enter-
ing into the contract declared upon in the petition. If the
defendants had brought a separate suit against the plaint-
iflfe for a breach of warranty in the sale of goods sued for
in this action, the offer of compromise would not have l^een
648 NEBRASKA REPORTS. [Vol. 30
Eld ridge y. Hanrreaves.
competent evidence on the trial of that suit. That the same
matters are set up by way of counter-claim does not change
the rule as to the admission of such testimony.
The defendants called as a witness O. J. King, who tes-
tified that he purchased from Sprague, Warner & Co., of
Chicago, a quantity of the same kind of beverage as that
purchased by the defendants. The court permitted the
witness, over the plaintiffs' objection, to answer this ques-
tion:
Q. What inducements were held out to you by Sprague,
Warner & Co, to purchase their goods?
A. They represented them to me as being the pure juice
of the orange, and a new thing in the market.
In this ruling of the court we think there was error
prejudicial to tiie plaintiffs. It was not competent to prove
the representations that were made that induced King to
make the purchase. The testimony objected to did not in
the least tend to show that these plaintiffs made any rep-
resentations to the defendants to induce the sale. The only
effect of this testimony was to mislead the jury, and to
cause them to believe that if the goods were warranted to
King, they were likewise warranted to the defendants.
The remaining errors assigned upon the rulings of the
trial court, upon the introduction of testimony, will not be
noticed, as they are not likely to occur upon a retrial of
the cause.
We will next consider some of the objections urgetl
against the charge of the court. The jury ware told by the
second instruction to ascertain the amount due the plaint-
iffs on their cause of action, then find how much, if any-
thing, was due the defendants upon their counter-claim,
and to return a verdict in favor of the party entitled to the
larger amount for the difference between the two sums.
It is urged that the answer fails to state a cause of action
against the plaintiffs, and for that reason this instruction
was wrong in directing the jury to ascertain the amount
f
Vol. 30] SEPTEMBER TERM, 1«90. 649
Bldiidgc y. HargrearM.
dae the defendants upon their counter-claim. We held in
the first part of this opinion that the answer was snfRcient,
and what we there said disposes of the criticism made upon
this instruction.
The fourth instruction is as follows:
^'Ypu are instructed that^ upon the counter-claim of the
defendants, the burden of proof is upon the defendants
to establish by a preponderance of evidence every material
allegation of the counter-claim as set forth in defendants'
answer.
** The material allegations of the answer are:
''^ First — That the plaintiffs at the time of the sale
falsely and fraudulently represented that the goods in ques-
tion, consisting of orange cider, were of a good and mer-
chantable quality and valuable for the wholesale trade, and
that the said orange cider was manufactured from orange
juice and lime juice from California fruit.
''' Second — ^That in making said purchase of goods the
defendants relied upon the said representations of the
plaintiffs.
"* Third — ^That the goods were not as represented and
warranted, but were a manufactured article.
"'Fourth — ^That the goods were of no marketable value,
and not fit for the purpose of the wholesale trade.
" 'Fiflh — That the defendants have sustained damages,
by reason of the failure of the plaintiffs to comply with
their representations concerning the goods in question.'"
It is urged that this instruction is erroneous, because it
told the jury that the answer alleged that the representa-
tions were made at the time of the sale, and that it also
omitted to state one of the material averments of the an-
swer, to-wit, that the plaintiffs warranted the goods sold.
The answer alleges that "the plaintiffs, as an inducement
to the defendants to purchase from them said goods men-
tioned, falsely and fraudulently represented and warranted
to the defendants that said goods, consisting of orange cider.
650 NEBRASKA REPORTS. [Vol. 30
Eldridge v. Haiyreaves.
were of a good and merchantable quality, and valuable for
the wholesale trade; that the said cider was manufactured
from California fruit, and that it was properly named
orange cider ; and that the defendants, relying upon said
representations and warrants, purchased from the plaintifTs
tlie said goods." The only reasonable construction which
can be placed upon this language is, that tlie representa-
tions were made at or prior to the time the goods were pur-
chased by the defendants. It is true the fourth instruc-
tion omitted to inform the jury that one of the material
averments of the answer was that the plaintiffs warranted
the goods. This omission was, however, fully covered by
the fifth, sixth, and seventh of the instructions given. It
is a rule of universal application that instructions must be
considered as a whole.
The point is also made that this instruction is erroneous,
because it states that the allegation in the answer, that the
orange cider was of a good, merchantable quality, and
valuable for the wholesale trade, was a material averment.
There was no error in this.
The article was entirely new to the defendants. They
knew nothing of its selling qualities. It was purcliaj<«d
for their wholesale trade, which the plaintiffs, at the time,
well knew. The representation, if made, was a part of
the description of the quality of the cider, and was a
material issue in the case.
It is urged that, under the third paragraph of the fourth
instruction, the defendants could have recovered if the cider
had l)een made of pure orange juice, because it would
then have been a manufactured article. The jury could
not have understood the words '' manufactured article,'^
as used by the court in the instruction, to mean cider
made of orange juice, but the article put up according
to the formula, proved on the trial. By the eighth in-
struction, the jury was told, in effect, that if the plaintiffs
represented that the cider was a manufaetui*ed article, and
J
Vol. 30] SEPTEMBER TERM, 1800. 651
State, ez lel. Dunterman, ▼. Qaslin.
not the real juice of the orange, the defendants could not
recover. In view of this instruction the jury could not
have been misled by the language of the third paragraph
of the fourth instruction.
By the ninth instruction, it was stated that the measure
of the defendant's damages was the difference between tiie
value of the cider at the time of the sale, and what it
would have been worth had it been as warranted. It is
claimed that there was no evidence uj)on which to ba?e
this instruction. The testimony introduced by the de-
fendants was to the effect that the cider, as received, was of
but little value, and that it was sold to the defendants for
$1,203.90. This was sufficient proof of its value as war-
ranted, when no other testimony was introduced by either
party on that branch of the case. For the error pointed
out the judgment is reversed and the cause remanded for
further proceedings.
Reversed and remanded.
The other judges concur.
State, ex rel. J. H. Dunterman, v. William
Gaslin.
[Filed Octobbb 28, 1890.]
Beferee: Should Sign Bill of £xobption& In a case tried
before a referee, it is his duty to sign any trae exceptions taken
to any order or decision made by him in the case. Snch biU of
exceptions is not to be signed by the judge. (Light v, Konnatd^
10 Neb., 330; Tamer v. Turner, 12 Id., 161.)
Original application for mandamua*
Bofwen Jt Hoeppna', for relator.
lao «i{
I 42 664
80 0611
62 811
652 NEBRASKA REPORTS. [Vol. 30
State, ex rel. Duntennan, v. Gaslin.
CappSy McGi^eary & SteoenSy contra,
NORVAL, J.
This is an application for a writ of mandamus to com-
pel the respondent^ as judge of the eighth judicial district^
to sign a bill of exceptions in a cause tried in the district
court of Adams county before a referee.
It appears from the record before us that on the 20th
day of May, 1889, there was pending in the district court
of Adams county the case of Joseph Story v, John H.
l}unterman, and on said date, by the agreement of the
parties, tbe court appointed W. L. Marshall, Esq., sole
referee to take the testimony in said cause and report his
findings of facts and conclusions of law thereon. The
cause was tried before said referee, who, on the 26th day of
November, 1889, reported to said court his findings of law
and fact Exceptions to the report of the referee were
filed^ and on November 30, 1889, the same were by the
court overruled and judgment was rendered in favor of
said Joseph Story, and against the relator for $621.36.
The relator's motion for a new trial was, on the last
named date, overruled, an exception was taken to the rul-
ing of the court thereon, and forty days were given to
settle a bill of exceptions. The Noveml)er, 1889, term of
the district court adjourned sine die on the 28th day of
December, 1889. On the 16th day of January, 1890, the
relator presented to the attorneys of said Joseph Story his
proposed bill of exceptions, containing all of the testimony
taken on the trial before the referee, and said attorneys re-
fused to accept for examination said draft of the bill of
exceptions, and declined to state the reason or grounds for
such refusal. On the 17th day of January, 1890, the re- .
lator served notice upon Joseph Story that he would pre-
sent said proposed bill of exceptions on January 23, 1890,
to said referee for allowance. The proposed bill was on
Vol. 30] SEPTEMBEJi TERM, 1890. 653
State, ex reL Duntennan, ▼. GasllD.
that day pi-esented to the referee for settlement, who re-
fused to sign the same on the ground that it was not pre-
sented within proper time.
The relator on the 29th day of January, 1890, applied
to the respondent for a peremptory writ of mandamus to
Gomi)el the referee to sign, settle, and allow said bill, which
application was denied. On the Ist day of March, 1890,
the relator presented the proposed bill of exceptions to the
respondent for settlement and allowance, who refused to
sign the same.
The sole question presented for our consideration is, Has
a judge of the district court any po^er or authority to
settle and allow a bill of exceptions in a cause triced before
a referee? Section 303 of the Code provides that " it shall
be the duty of Uie referee to sign any true exceptions taken
to any order or decision by them made in the case, and
return the same with their report to the court making the
reference.^^ This section confers ample authority upon a
referee to sign a bill of exceptions. It makes it his duty
to sign any true bill. There is no law or statute in this
state making it the dutyof the judge making the reference
to settle a bill of exceptions in a cause tried before a ref-
eree. The judge cannot know what exceptions were taken
to the rulings made by the referee, or what testimony was
introduced on the trial.
Section 311 of the Code does not govern the settlement
of the bill of exceptions in cases tried before a referee,
either as to the person who shall sign the same or the time
in which it shall be allowed.
A similar question to that involved in this action arose
in the case of Light v. Kennavd, 10 Neb., 330. In that
case the referee signed a bill of exceptions and returned
the same with his report to the district court making the
reference. The report was confirmed and the cause was
brought to this court on error. The defendant in error
moved to quash the bill of exceptions on the ground that
654 NEBRASKA REPORTS. [Vol. 30
30 654
41 701
Oppenhelmer v. Met lay.
the same was not signed by the district judge. This court
held that the bill should be signed by the referee and not
by the judge. The question was again before the court in
Ihimei' v. Turner, 12 Neb., 161, in which it was held that
in a case tried before a referee, the bill of exc^eptious is not
to be signed by the judge of the district court but by the
referee. The writ therefore must be
Denied.
The other judges concur.
Isaac OppENHFi^rER et al. v. Samuel McClay,
Administrator, etc.
[Filed Octobbb 28, 1890.]
1. Appeal: County Junoc: Fatlurb to Filb TRAKScntTpT. A
judgment was i^ndered ajoiinat the plaintifls io error in the
oonnty court of Lanca-iter comity. Within ten days thereafter
an appeal bond was filed ami a transcript of the proceeding was
ordered. The judge thereupon piomis^ed to make out a tran-
script and file the same in the district court within the statu-
tory time, but tailed to do so. The transcript was filed more
thiin thirty days after the rendition of the judgment. Held,
That the neglect of the judge to file the transcript in time is
the neglect of the appellants.
a. : : : Dismkssal. iTipM, That it was not error
to sustain the appellee's motion to dismlu the appeal.
Error to the district court for Lancaster county. Tried
below before Field, J.
Pound & Burr, for plaintiffs in error, cited: Dobwn v,
Dobson, 7 Neb., 206; U. V. E. Co. v. IlcPliersou, 12 Id.,
480.
Chas. E. Magnon, contra^ cited : Nuckofh v. Irwin, 2
Neb., 65; Verges v. liotmh, 1 Id., 113; Oiore v. Mare, 4
Vol. 30] SEFTEMBER TERM, 1890. 655
Opp"nheim<rr y. UcClay.
Id., 131 ; Horn v. Milter, 20 Id., 104; U. P. R. Co. v.
JUarstoriy 22 Id., 7 J2; Gifford v. B. Co., 20 Id., 538.
NORVAL, J.
The defendant in error recovered a judgment against
the plaintiffs in error, in tlie county court of Lancaster
county on the 10th day of December, 1887. The defend-
ants below gave an appeal bond and filed a transcript of
the judgment in the office of the clerk of the district
court of the county on the 7th day of February, 1888.
Malone filed in that court a motion to dismiss the appeal^
on the ground that the transcript was not filed within
thirty days from the rendition of the judgment. The
motion was sustained and the appeal dismissed.
The transcript was not filed within the time limited by
the statute for the taking of appeals. It is claimed that
the failure to perfect the appeal sooner is not attributable
to the fault or neglect of the plaintiffs in error, but to that
of the county juilge.
It apfiears that Isaac Op|)enheimer, one of the defend-
ants lielow, within ten days after the entry of the judg-
ment in the county court, and at the time of filing the ap-
peal undertaking, applied to the judge of that court for a
transcript of the proceedings, and was informed by the
judge that he could not prepare the transcript just then,
but he would make out and file the same with the clerk of
tlie district court within the time required by law. Ilelying
u|H>n this ])romise, 0]>penheimer the next day lefl the
state on business and did not return for more than a month
afterwanls. The judge neglected to make out and file the
transcri])t as he agreed. When Oppeuheimer returned be
proiruretl and fileil one.
The proofs otiered in resistance of the motion to dismiss
the apiieal fail to show that the appellants were diligent in
perfecting their appeal. The neglect of the county judge
to deliver the transcript to the clerk of the district court
656 NEBRASKA REPORTS. [Vol. 30
Oppenheimer t. McClay.
was not an omission of any official duty he owed the ap-
pellants. It was their duty, under the law, to have their
appeal docketed in the district court, and a failure of the
county judge to do so is attributable to them. It can
make no diiFerenoe that the judge of his own accord vol-
unteered to perform the services for the appellants. They
could not, by relying upon his promises to j^)erform for them
an unofficial act, escape the consequences of his neglect.
It is quite immaterial that the offices of the county judge
and clerk of the district court were at the time in the same
building. The facts in this case bring it within the decis-
ions of Gifford V. B. V. & K. B. B. Co., 20 Neb., 538,
and U. P. B. B, Co. v. Marston, 22 Id., 722. In the
former case the appellant, by letter, ordered the transcript
and requested the county judge to deliver or send it to the
clerk of the district court. The court in the opinion says :
"This was not a service which in any event or upon any
ddmand and tender of fees would become due to the plaint-
iff or to any party from the county judge. It was not
demanded as a matter of law or of right, but requested
doubtless as a matter of favor or courtesy. Had this service
been performed by the county judge as requested, so far as
delivering or sending the transcript to the clerk of the dis-
trict court was concerned, he would have done it only as
the friend or agent of the plaintiff or of his attorney, and
not in his official capacity as county judge; and so his
failure or neglect in that regard is the failure or negligence
of the plaintiff.'*
In the second case, the appellant's attorney made an
arrangement with the justice of the peace before whom
the cause was tried, to file the transcript in time. The
justice failed to do so. It was held that the n^lcct of the
justice did not relieve the appellants of the consequences of
such neglect.
The plaintiffs in error not having shown sufficient ex-
cuse fur the iailure to file the transcript within thirty days
Vol. 30] SEPTEMBER Ti:ilM, 18aO. 667
Dorsey v. Mc'Gce.
after tlie rendition of the jndgmcnt, the district court did
not err in dismissing tlie appeal. The judgment is
Affirmed.
The other judges concur.
C. G. DORSEY ET AL. V. J. L. McGeB.
[Filed Novbmbbb 5, 1890.]
1. Building Contract : Modifications: Action on Boxd: Eyi-
DKNCK. Specificutions accompany iriic plaiw (or n dweUing house
provided for two contR of plaslering; S. and W. contracted with
M. to fnrDiflh all material and Ialx>r, and to hniM and conMtract a
honne according to Bnch plana and specificiitinnR, with oertaia
exceptions. In an action by M againnt the contractors, and
D. and W., their snreties, on a bond by the contractors to M.
for the due and faithful performance of the contract, the speci-
fications were introduced in evidence by M., and it appeifring
that a change had been made in the 8)>ecif]<-iitifins by wiiich the
requirement of two coats of plastering wu8 made to read three
coats of plastering, and two wilne^ies testifying that such
change was made at the time of the signing of the contract^
and two alM that the change was made by M ten days subse-
quent to the execution of the contract, and withtiut the knowl-
edge or consent of the sureties of ^he o«mtnictors and the Jury
having fonnd for the plaintiff, against the sureties as well as the
contractors, upon error, heht^ that the SfteH Heat inns, as intro-
duced in evidence, must l)e taken and considereil as the original
Specifications under which the contract was executed.
S. : : . The plans and speci locations referred to
were drawn in yiew of a building fronting north and east.
The locality of the building having been chai ge<i by M. to that
of a sttuthwest corner lot, the contractors had lull knowledge
and consented to the new location; the sureties afteiwarUd
signed the bond without knowledge either of the original de-
sign or of any change as to the location or frontage of the
building. By direction of M. the contractors built the house
fn>nting south and west. Held, Not to be such a change of plans,
sptciflcations, or contract as would release the sureties.
42
668 NEBRASKA REPORTS. [Vol. 30
Doraey t. MoQee.
8L : : : The specificatioDS contained a claoM^
that "It is understood that the owner of this building and tlia
architect shall have the right and power to make anj altera-
tions, additions, or omissions of work or materials herein speci-
fied, or shown on the drawings, that they maj find necessary,
during the progress of the building, and the same shall be and
hereby is made obligatory upon and must be acceded to by the
contractor and carried into effect without in any way violating or
Titiating the contract; and the Talueof all such alterations, addi-
tions, or omissions shall be in proportion to the cost of other simi-
lar work to be done under the contract.' ' The evidence shows the
construction of a stairway from the kitchen to a bedroom to be
one not specified, as well as the use of bronae hardware in the
place of No. 1 hardware specified, and a change in the location
of the cistern. Held, that this addition and these changes weie
proTided for in the clause set forth.
4. The findings of ftLOt and the judgment must conform to and
be supported by the allegations of the pleadings on which they
are based. (Lipp v. Horbach, 12 Neb., 371; Kiiehen Brog. e. Ham-
inond,anU, 618.)
6. Instniotions to a Jury must be based upon and applicable to
the pleadings and evidence. {Hemm v. Cole Bros,, 26 Neb., 692;
Bunge v. Brown, 23 Neb., 817.)
6. Evidence: Records. A person not a stranger to a judicial
proceeding is bound thereby, and the record of such proceeding
is admissible In evidence against him. (1 Greenleaf [14th Ed.],
sec 522.)
7. A motion for a new trial is indivisible, and when uade
jointly by two or more parties, if it cannot be allowed as to all,
must be overruled as to all. {Duteher o. State, 16 Neb., 30; Zeaf
A Smiihv. Clapp, 15 Id., 417; Real v. HollUter, 17 Id., 661;
Boldt V. Budwig, 19 Id., 739; Dunn v. Oiboon, 9 Id., 513.)
Error to the district court for Gage county. Tried
below before Broady, J.
Hadett A Bates, for plaintiflFs in error, cited, contending
that the sureties were released by variations in the plans :
Miller v. Stewart, 9 Wheat. [U. S.], 680; Polak v. EvereU^
L. R. 1 Q. B. D. [Eng.], 669 ; U. S. v. Hillegas, 3 Wash.
C. C. [U. 8.], 75; Tayl(»^ v. Johnson, 17 Ga. 521 ; Orant v.
Vol. 30] SEPTEMBER TERM, 1890. 669
Doney t. HcQee.
Smith, 46 N. Y., 93; Brigham v. WerUworth, 11 Cush.
[Mass.], 123; SZ. Albans Bank v. Dillon, 30 Vt., 122 ; Zim-
inennan v, JudaJi, 13 Ind., 286 ; Judah v. Zimmei^man, 22
Id., 388 ; Bacon v. Chesney, 1 Stark. [Eng.], 192; Dobbin
V. Bradley, 17 Wend. [N. Y.], 425 ; Walrath v. Thomp-
son, 6 Hill [N. Y.], 540; Fowler v. Brooks, 13 N. H.,
240 ; Brandt, Suretyship, sees. 338, 387 ; Bethune v. Dozier,
10 Ga., 235; Rowan v. Mfg. Co., 33 Conn., 1; Chitty,
Contracts [11th Ed.], 776, 777; Ind. Dist. of Mason City
V. lieichard, 50 la., 99 ; Cunningliam v. Wrenn, 23 111., 64;
Simonson v. Grant, 36 Minn., 439; DeColyar, Guaran-
ties, P. & S., 389 ; Id., 394-96, 96, and cases cited : Leeds
r. Dunn, 10 N. Y., 469; Gardiner v. Harback, 21 111., 129;
Barker v. Soudder, 66 Mo., 272 ; Whitcher v. Hall, 5 B. &
C. [Eng.], 269 ; Theobold, Prin. & Sur., 119 ; Weir Plow
Co. V. Walmsley, 11 N. E. Rep., 232, and cases cited in
note; Lucas Co. v. Roberts, 49 la., 159; Taylor v. Jeter,
23 Mo., 244. Also by changes in regard to terms of pay-
ment: GenH Steam Nav. Co. v. Rolt, 6 C. B. [Eng.], 550 ;
Calvert v. London Dock Co., 2 Keene [Eng,], 638; Bragg
V. Shain, 49 Cal., 131 ; Bacon v. Chesney, 1 Stark. [Eng.],
152; Benjamin v. HUlard, 23 How. [U. S.], 149; Brandt
Suretyship, sec. 345, i^nd cases cited: Farmers Bank v.
Evans, 4 Barb. [N. Y.], 490 ; Birkhead v. Brown, 6 Hill
[N. Y.], 634. As to the sufficiency of the answer : Bur7*
V. Boyer, 2 Neb., 267 ; Rathbum v. R. Co., 16 Id., 443;
Herdman v. Marshall, 17 Id., 257; OlcoU v. Carroll, 39 N.
Y., 436; Humphries v. Spafford, 14 Neb., 488; Mills v.
Miller, 3 Id., 96 ; Wilson v. Macklin, 7 Id., 50 ; Catron v.
Shepherd, 8 Id., 318; Singer Mfg. Co. v. Doggett, 16 Id.,
611; Evarts v. Smucker, 19 Id., 43; Brown v. Rogers, 20
Id., 648; Klosterman v. Olcott, 25 Id., 382; Homan v.
Steele, 18 Id., 659; Hale v. Wigton, 20 Id., 83; Curtis v.
Cutler, 7 Id., 817. As to the instructions: Simonson t\
Thori, 31 N. W. Rep., 861 ; Bacon v. Chesney, supra.
660 NEBRASKA REPORTS. [Vol. .30
Dorscy v. McGec.
Pemberion & JSush, c(y»itra, cited, as to variation of
plans and terms of payment : Ifwin v. Opp, 3 N. E, Rep.
[Ind.], 650; Lloyd, Buildings, sec. 54; titrawbridgev. R,
Co,f 74 Am. Dec., 545, and note ; Hanauer v. Gray, 99
Id., 220, and note; 3IcKecknie v. Wmd, 17 Am. Rep., 281 ;
Bevjamin v. IMard, 23 How. [U. 8.], 165, 166; Brandt,
Suretyship and Guaranty, 467. As to the pleadings:
Curtis ». Cutler, 7 Neb., 317. As to the instructions:
RuHxell V. liosenbaum, 24 Neb., 769, 772 ; Weir v. B. Co,,
19 Id., 212; /Smith v. Brady, 72 Am. Dec, 442.
Cobb, Ch. J.
This action was brought in the district court of (Sago
county by the defendant in error against Sweet & Wilson,
as ])iincipnls, and the plaintiffs in error, as sureties, on a
bond given for the faithful performance of a certain con-
tract for the erection of a dwelling house and barn in the
city of B(»jitrice, entered into between J. L. McGee and
Swei't & Wilson, who were contractors and builders, at
Beatrice, as follows:
"Know all men by those presents, that Messrs. Sweet
& Wilson, of Beatrice, Nebraska, principals, and C. G.
Doi-soy and J. B. Weston, as sureties, are held and firmly
bound unto J. L. McGee, of same residence, in the penal
simi of two thousand dollars, lawful money of the United
States, for the payment of which sum well and truly to
be made, we hereby bind ourselves, our heirs, executors, and
administrators, firmly by these presents.
"Signt^l by us and dated this 6th day of April, 1887.
^'The condition of the above obligation is such, that
whereas the above named Sweet & Wilson have been
awarded the contract of building a frame residence and
stable and furnishing all materials, situated in lot No. 7
and south half ot lot No. 8, in block No. 20, in Fairview
addition to the city of Beatricei Nebraska, aooordiug to
Vol. 30] SEPTEMBER TERM, 1890. 661
Dorsey v. McGce.
the contract entered into this 29th day of March, 1887,
between them and said J. L. McGee, and according to the
plans and specifications accompanying said contract and
referred to therein :
"Now if the said Sweet & Wilson shall perform their
part of said contract with the true intent and meaning and
conditions of the same, then the foregoing obligations sliall
be null and void, otherwise the same shall remain in full
force and effect.
"Witness our hands this 6th day of April, 1887.
"(Signed) Sweet & Wiijson.
"C. G. DoitSEY.
"J. B. Weston/'
The amended petition alleged a number of breaches of
the condition of said bond, by reason of which plaintiff
was damaged in the sum of $2,350, and asked judgment
against Sweet & Wilson and C. 6. Dorsey and J. B.
Weston in the sum of $2,000.
To the amended petition, the plaintiffs in error, Dorsey
and Weston, filed an answer admitting the execution of the
bond as sureties, but allege as a defense thereto that after
the execution and delivery of said bond the defendants
Sweet & Wilson and the plaintiffs, without the knowledge
or consent of these defendants, changed the contract plans
and specifications' referred to in said bond, in material parts
thereof, and erected said buildings mentioned in said con-
tract in a different manner than that mentioned and agreed
to be built in said original contract, and changed the plans
and specifications for the erection of said buildings from
the original contract plans and specifications as referred to
in said bond, all of which was done by plaintiff and de-
fendants Sweet & Wilson after the execution and delivery
of said bond, without the knowledge or consent of the
defendants Dorsey and Weston.
To this answer a reply consisting of a general denial
was filed by plaintiff. A trial was had by a jury, who
662 NEBRASKA REPORTS. [Vol. 30
Dorsey v. McGee.
found in favor of plaintiff and against all of the defend-
ants in the sum of $1,551.16.
Separate motions for a new trial were filed bjr the de-
fendants Sweet & Wilson and the defendants Dorsey and
Weston, which were overruled by the court and judg-
ment rendered against the defendants Sweet & Wilson as
principals and the defendants Dorsey and Weston as sure-
ties, to reverse which ruling and judgment, and for a new
trial, the defendants Dorsey and Weston prosecute a writ
of error to this court.
Counsel for plaintiffs in error, in the brief, do not pre-
sent the errors upon which they rely, in the order in which
they arc slated in the petition in error, nor is it easy, in
all cases, in following the argument, to apply it to the spe-
cific error intended. But I will take up the points as they
are presented in the brief, and as no point is argued which
18 not stated in the petition in error, with more or less ac-
curacy, I will spend but little time in endeavoring to point
out their special application.
The first point of the argument is directed to the insuffi-
ciency of the evidence to sustain the verdict and judgment.
In support of this proposition evidence is cited from the
bill of exceptions tending to prove that after the execution
and delivery of the bond upon which the plaintiffs in
error were sued, the plaintiff, and Sweet & Wilson, his
contractors, changed the contract plans and specifications
referred to, and mentioned in the l)ond, in material points,
without the knowledge or consent of the sureties, plaint-
iffs in error, and thereby released them from the obliga-
tion of the said bond. The first alteration to which atten-
tion is called is in the specifications for the plastering,
where the figure "3*' was substituted for the figure "2," as
fixing the number of coats of plastei4tig for the building.
The two defendants, C. A. Sweet and C. S. Wilson, testi-
fied that this alteration, which is plain and palpable upon
the fieice of the specifications, was made by the plaintiff
Vol. 30] SEPTEMBER TERM, 1890. 6G3
Dorsey v. McGee.
some week or ten days after the execution and delivery of
the bond by plaintiffs in error, while the plaintiff and his
daughter. Miss Minnie McGee, testified that the altenition
was made at the time of the execution of the contract be-
tween the plaintiff and the defendants Sweet & Wilson ;
and as the verdict was for the plaintiff, we must, for the
purposes of this review, consider the specifications as intro-
duced in evidence, as the original specifications.
The next change in the plans and specifications to
which attention is called is that the plans were drawn
for a building facing north and east, and that by direc-
tion of the plaintiff the house was actually built facing
south and west. That this change was made is clearly
shown by the evidence, but it does not appear that any
change was made on the face of the plans or specifications,
nor does it appear that any change in the drawings or
written specifications was necessary for that pur|>ose. The
logic of the position of the plaintiffs in error on this \yo\nt
is, that whereas Sweet & Wilson entered into a contract
with the plaintiff to build a certain house according to
plans and specifications, drawn by Mendelssohn and Fisher,
of Omaha, and the plaintiffs in error entered into a penal
bond conditioned.that they would build that identical house,
and, by direction of the plaintiff, they did not build that
identical house, plaintiffs in error were thereby released
from the obligation of their bond, and cannot be held
for the failure of said Sweet & Wilson to build another
and different house. The turning point is, Did the con-
templated building, by reason of the premises, lose its
identity? This question must be answered in the negative.
The other changes complained of, are, ^^An extra flight
of stairs from kitchen to bedroom; inside finish of house
was changed from white pine to yellow pine finish ; change
from No. 1 hardware to solid bronze hardware, and change
of location of cistern.'^ The first 'was not a change merely,
bat an ^'addition,'' and as such is amply provided for in
664 NEBRASKA REPORTS. [Vol. 30
Doraey V. McUee.
tlie first clause of the sjiecMfications. It was, moreover, the
purpose and olject of this clause of the specifications to
provide for alterations and omissions in the work of the
construction and finishing of the building. Doubtless this
clause of the specifications was designed to meet and ob-
viate the hardship of the decisions releasing sureties on
account of small changes and alterations in the plans and
specifications of buildings and other works. To give the
language of the provi-ion that eflfect when used in instru-
ments such as that we are now considering, will work no
injustice, but, on the contrary, conduce to a fair and equi-
table administration of justice. A careful examination of
the specifications fails to show that they call for an inside
finish of white pine, so that it reqires no change to make
the finish of yellow southern pine, but simply an addition;
and so also of bronze hardware.
We now come to the consideration of the matter of pay-
ments. The contract betwten the plaintiff and Sweet &
Wilson provides for the payment by the former to the said
contractors for the materials and work contracted for, of
$300 for the barn when the same should be completed and
finished; for the house, when the foundation is in and the
frame erected, $1,000; when ready for plastering, $1,000;
when finished woodwork is on, $1,000, and $500 when
contract is completed and accepted by owner. The contract
provided that the said house should be completed and fin-
ished by July 1, 1887, and the barn to be finished by April
15, 1887.
At the trial, upon his cross-examination as a witness,
sworn and examined on his own behalf, the plaintiff testi-
fied that the first payment he made to Sweet & Wilson
was $300, April 16, 1887; that he also paid tliem $15,
April 25; $700, May 7; $300, May 16 ; $1,000, May 29;
$35, May 29; $22, June 18; $295, June 18; $3, at the
same date, and on the same date, $500; June 25, $300;
$7.40 about the same date. He also testified that the barn
Vol. 30] SEPTEMBER TERM, 1890. 665
Doraey v. McGee.
wa*^ completed and finished about the 1st of July; that it
was not completed on the 16th day of April ; that he paid
the $300 at that date because Mr. Sweet claimed he
neeiled the money and asked it as a favor^ and that he did
not consult the plaintiffs in error in regard to clianging
the times of payment to the contractors. Thereupon coun-
sel for the defendants (plaintiflfe in error) asked the witness
the following question : Q. Don't you know when the
foundation of the house was put in and the frame erected ?
To which question the plaintiff objected, as irrelevant and
and not proper cross-examination, which objection was
sustained.
C S, Wilson, one of the contractors, sworn as a witness
on the part of the defendants^ testified that the foundation
was put in and the frame-work erected for the house about
May the 1st, according to his recollection. He was asked
the following question, by counsel for defendants: Q.
When was the second money you received from McGee on
this contract? Which question was objected to by plaint-
iff, and the objection sustained ; no ground of objection
was stated.
This witness had previously testified as follows:
Q. When was this barn completed?
A. Along about — the barn was completed as well as I
can recollect shortly after . W^e had received the
three hundred dollars a little before the barn was com-
pleted.
Q. When did you receive the three hundred dollars?
A. April 16.
Q. The barn was not completed entirely till about the
21st, was it? (Objected to, as leading; sustained.)
Q. When was the barn finished ? (Objected to, as ir-
relevant apd immaterial^ and as repetition ; sustained.)
Q. When was the foundation completed and the frame-
work erected for this house? (Objected to, as irrelevant.
666 NEBRASKA REPORTS. [Vol. 30
Donej T. McGee.
immaterial^and inadmissible uuder the pleadings, as far as
the bondsmen are concerned ; sustained.)
Q. When was the second money you received from Mr.
McGee under this contract? (Objected to (no ground
stated); sustained.)
By the Court: This comes in as rebuttal testi-
mony for Mr. McGee.
Q. By Mr. Bates : When was the foundation com-
pleted and the frame- work erected for this house ? (Ob-
jected to, as irrelevant, immaterial, and inadmissible under
the pleadings; overruled.)
A. About May the 1st, is my recollection.
It is to be regretted that the defendant Wilson was not
allowed to testify fully as to the times when the barn was
finished and when the foundation of the house was com-
pleted and the frame-work erected for the house; also,
when the payment for the barn and the first payment of
$1,000 on the house were made. As the evidence stands,
it is proven that the first payment under the contract, to-
wit, the $300 for the barn, was made before the barn was
finished, and hence before the money was due under the
terms of the contract. No advantage could be taken of this
fact by the contractors themselves, but I think that it is
otherwise in so far as the plainlifTs in error are concerned.
All of the cases cited, r all that I have been able to find,
follow the principle of law as stated by Brandt in his work
on Suretyship and Guaranty, sec. #345: '^Any dealings
with the principal by the creditor, which amount to a depart-
ure from the contract by which the surety is bound, and
which by possibility might materially vary or enlarge the
latter's liability without his consent, generally operate to
discharge the surety." To apply this principle to the
case at bar, the plaintiffs in error were bound to the per-
formance by Sweet & Wilson of the entire contract, as well
for the completion of the barn as for the completion of the
lM>use, and any act of McGee that would release them from
Vol. 30] SEPTEMBER TERM, 1890. 667
IX>rBey y. McGee.
a part of their contract or binding obligation of the bond,
would release them from the whole. While the payment of
the $300 for the barn remained in prospect, it was an in-
ducement and stimulant to Sweet & Wilson to keep their
contract inviolate and complete the barn according to its
terms. It was the right of the plaintiffs in error that this
stimulant and inducement should not be removed by the
act of McGee, and their removal by him without their con-
sent or approval before the completion of the barn released
them from the obligation of the bond so far as it bound
them for its completion. And although the barn and
the house were separate buildings, the bond and its penalty
is an entirety, and I understand it to be of the very nature
of security that when, by the independent act of the cred-
itor, a surety is released in part he is released in whole.
But the fact stares us in the face that there are no allega-
tions of pleading in the answer under which evidence of
the payment above referred to was admissible or a verdict
or a judgment following which could find, or adjudge, that
the sureties were released thereby ; and it has often been
held in this as well as other courts that no finding or judg-
ment will stand unless supported by a pleading.
At the close of the trial counsel for the defendants
(plaintiffs in error), as appears by the record, applied to the
court for "leave to ameAd their answer, alleging that
plaintiff did not pay Sweet & Wilson at the time named
in the contract," which was refused. This refusal of the
court to permit i)laintiffs in error to amend their answer in
accordance with the evidence is assigned for error. Had
application been made at the proper time to amend the an-
swer so as to set up the payment by the plaintiff of the
$300 for the stable before the stable was completed, and so
before said money was due under the terms of the contract,
the application should have been granted, as such amend-
ment would make the answer appKcable to and in accord*
ance with evidence, which had been in part given by the
668 NEBRASKA REPORTS. [Vol. 30
Dorsey v. McGee.
plaintiiT himself while on the stand as a. witness in his
own behalf, and in part given by the defendant Wilson,
without objection. But there was no evidence which would
be applicable to an amendment such as was indicated hy
the application.
, As to the question of the inadmissibility of evidence to
prove the dates of the payments actually made on the
work by the plaintiff under the pleadings as they stand,
tliere can be no doubt, either upon the theory that such
payments, or some of them, were made before they were
due under the terms of the contract, or that they were de-
layed and withheld for an unreasonable time after they
became due respectively.
Tiie instructions 2 and 5 asked for by defendants
(plaintiffs in error) and refused by the court, state the law
correctly, abstractly considered, but were properly refused
for the reason that there was no evidence before the court
and jury, under the pleadings in the case, to which the
same were applicable.
In addition to that which has already been said upon
the point of the admitting and refusing to admit testimony
there remains the consideration of the admitting in evi-
dence of the records of the district court in the case of
Henry & Coatswoi^th v. Sweet & Wilson et al.; also the an-
swers and cross-petitions of the defendants in the case,
together with the decree, and also the testimony of the
clerk of said court as to who paid the judgment of Henry
4^ Ooatsworth.
It appears from the record, which was offered and re-
ceived in evidence upon the trial, and is preserved in the
bill of exceptions, that some time in the month of Septem-
ber, 1887, the Henry & Ooatsworth Company, a corpora-
tion, filed its petition and commenced an action in the said
district court of Gage county against C. G. Dorsey, Crump
& Nicholson, Aimacost & Co., Charles A. Sweet and
Charles S. Wilson, partners as Sweet & Wilson, J. L.
Vol. 30] SEPTEMBER TERM, 1890. 669
Dorsey t. McGee.
McGee, E. G. Drake & Co., Frank Hall, and the Demp-
ster Mill Manufacturing Company, defendants; the pur-
pose and object of which action was to establish and
foreclose a lien upon the said house and barn and the lots
upon which they were situated^ for certain building mate-
rials^ set out in a schedule attached to said petition, furnished
by the said Henry & Coatsworth Company to the said
Sweet & Wilson, contractors, for the erection of said house
and barn for the said J, L. McGee, under the contract
therein referred to; that the defendants to said last men-
tioned action and petition, other than the said Sweet &
Wilson and J. L. McGee, were made such for the reason
that they and each of them had or claimed to have liens
upon the said buildings and lots for material by them sev-
erally furnished to the said Swoct & Wilson, contractors
as aforesaid, and by them used in the construction of said
buildings; also, that on the 17th day of November, 1887,
the said C. G. Dorsey ap[)eared in said court by his attor-
neys and presented and filed his answer and cross-bill in
said action, in which he alleged by way of admission the
entering into the said contract by the said Sweet & Wilson
with the said J. L. McGee for the erection of said house
and bam, being the same buildings described in the peti-
tion of said Henry & Coatsworth Company, and for the
furnishing of all the materials therefor; that in pursuance
of said contract, and for the purpose of carrying it into
effect, said defendants Sweet & Wilson purchased of the
defendant Dorsey certain building materials, set out in the
schedule attached to said answer and cross-bill; that said
materials were furnished and were of the value therein
named; with other allegations apt and pertinent to the
claim of said Dorsey for the establishment and foreclosure
of his lien upon the said buildings and lots for the amount
and value of said materials.
It further appears from the said record, that on the 9th
day of December, 1887, the said cause came on for a hear-
670 NEBRASKA REPORTS. [Vol. 30
Dorsey y, McGee.
ing in the said court upon the petition of the said Henry
& Coats worth Company, plaintiff lierein, the answer of
tlefendant therein, J. L. MoGce, the cross-petitions of de-
fendants, the Dempster Mill Manufacturing Company,
E. G. Drake & Co., C. G. Dorsey, Crump & Nicholson,
and Armacost & Co., and the answers of the defendant
J. L. McGee to said cross-petitions, and the evidence; the
defendants Sweet & Wilson and Frank Hall, having failed
to answer or demur to said petition and cross-petitions,
the Fame were taken as confessed as to them ; that there was
a trial to the court upon the merits and final judgment ren-
dered, etc.
The introduction of this record in evidence was objecttnl
to by the defendants (plain tiifs in error) as immaterial, in-
competent, and irrelevant, which objection was overruled
and the evidence admitted.
There were three motions for a new trial, one by all the
defendants together, one by the defendants Sweet & Wilson,
and one by the defendants Dorsey and Weston, plaintiffs
in error, separately. Neither one of them contains as
ground for a new trial the admission in evidence of the
said record specifically. The one made by Dorsey and
Weston contains, among other grounds, ^^ errors of law
occurring at the trial.'^ Possibly under this head the ques-
tion whether the court erred in overruling the objections
to the admission of the said reconl in evidence might be
inquired into. I find no reason for the exclusion of the
record from the evidence, in so far as the defendant C. G.
Dorsey is concerned. He is a party to the record; was
in court when it was made up; he is therefore not a
stranger to the proceedings of which said record is evidence
and he is bound thereby. (See Greenleaf on Evidence,
vol. 1, sec. 622.) But Weston was a stranger to the said
record, and by the same authority it was inadmissible as
evidence against him. But to render the error of the ad-
mission of this record in evidence against him available, be
Vol. 30] SEPTEMBER TERM, 1890. 671
Doisey v. McGee.
mii8t have moved for a new trial separate from and dis-
conijocted with Dorsey or any party to the said record.
This he did not do. The reason for this is^ that^ to make
a ruling, judgment^ and decision of a trial court overruling
an<l denying a motion a ground of reversal on error, the
motion must be presented to the court in the very terms
in which it ought to be sustained and allowed. This is
not the case wliere a motion is made jointly by two parties,
one of whom is not entitled to a favorable ruling thereon,
although the other one is entitled to such ruling.
It does not follow from the above rule that a trial court
may not, where a motion is divisible, in its discretion,
allow it in part and overrule it in part. But a failure or
i^i'usal to do so is not reversible error.
Coimsel for plaintiffs in error filed a supplemental brief,
in which they take the ground that it was the duty of the
plaintiff to retain the money, which, by the terms of his con-
tract with Sweet & Wilson, he was to pay them in the sev-
eral installments therein expressed, as the work progressed,
until the ex})i ration of sixty days afler the same became
due, by reiison of the completion of so much of the work
of the buildings, and that by making these payments sooner
the plaintiffs deprived the plaintiffs in error of an indem-
nity for their obligation upon their bond, and thereby re-
leased them, citing the case of Taylor v. Jdei% 23 Mo., 244.
Counsel, by this supplemental brief, but restate the position
already disposed of with but a slight variation in its ap-
plication. There was evidence before the court, of the date
of the payments by the plaintiff to Sweet & Wilson, of the
sum of )^300 for the barn, and that the same was not then
due, for the reason that the barn was not then completed ;
and, as we have already seen, this evidence was unavail-
able to the plaintiffs in error for the want of allegations of
pleading, to which it was applicable. We have already
seen that the several amounts paid by the plaintiff to Sweet
& Wilson, together with the dates of such payments, re-
672 NEBRASKA REPORTS. [Vol. 30
I 81 666
30 672|
45 590
Kaufman v. Cobum.
spectively, were testified to by the plaintiff, and that, upon
the theory that such payments, or some of them, were de-
layed and not made at the time named in the contract,
plaintiffs in error applied to the court for leave to amend
their answer by iaserting the allegation that plaintiff did
not pay Sweet & Wilson at the time named in the contract ;
but no application was made to so amend the answer as to
let in evidence of premature payments, either for the pur-
pose of sustaining the theory contended for by counsel in
the brief, or the supplemental brief. I am, upon the whole
case, unable to find reversible error in the record. The
judgment of the district court is therefore
Affirmed.
The other judges concur.
Levi'Kaupman et al. v. William Coburk et al,
[Filed Noybmbeb 6, 1890.]
1. Insolvency : Subbtiks: Tbansfeb of Pbopebty to. A firm
engaged in the mercantile business, being indebted in ^bont the
snm of $18,000, for which A, B, and C were separately liable as
sureties for aboat equal portions of said debt, sold their stock
of goods, inclading real estate and other property, to said snretiesi
who jointly assamed all the debts for which they were severally
liable, ffeldy That this was a sale and not an assignment, and
if made in good faith would be sustained.
S. — : : Liability. The sureties, so far as appears, did
not take the property for the benefit of one or more creditors of
the debtor other than themselves, but they became absolutely
liable for the debts which they had assumed, whether the prop-
erty received was of sufficient value to pay said debts or not
BonH8 V, Carter, 20 Neb., 566, distinguished.
Error to the district court for Douglas county. Tried
below before Doane, J.
Voi>. no] SEPTEMBER TERM, 1890. C73
KaufmAn v. Cobuni.
R, S. Ervin, and Ballet, Ervin & Points^ for plaintiffs in
error, cited : Davis v, ScoU, 27 Neb., 642 ; Schara v. Baimd,
Id., 94; Harkrader v, Leiby, 4 O. St., 602; Carson r.
ByerSy 67 la., 606-11; Lininger v, Raymond j 12 Neb.,
19-25; Kieth ». Heffelfinger, Id., 497; Swlfz v. Bruce, 16
Id., 466; Whitfield v. StiUs, 24 N. W. Rep. [Mich.], 119;
Gr ivies v. Farrington, 19 Neb., 44; Deitrich v, Hutchinson,
20 Id., 52 ; MerrUl v. Wedgwood, 41 N. W. Rep., 149 ; ISloan
V. (Mum, 26 Neb., 607; York Bank v. Carter, 38 Pa. St.,
446; Chase v. Walters, 28 la,, 460; Dart v. Farmers
Bank, 27 Barb. [N. Y.], 337; Funk v. Stoats, 24 111.,
632.
John L. Wd)stery A, C. Troup, Chas. Ogden, Cavanaugh,
Crane & Atwell, and W. 0. Bartliolomew, contra, cited :
Bonns v. Carter, 20 Neb., 566; WaJlace v. Wainwright, 87
Pa. St., 263 ; Harkrader v. Leiby, 4 O. St., 602 ; Kerbs v^
Swing, 22 Fed. Rep., 69 \ ; Freund o. Yuegerman, 26 Id.^
812; Kellog v. Richardson, 19 Id., 70 ; White v. Cotzhausen^
129 U. 8., 829; Winner v. Hoyt, 66 Wis., 227; Chase
V. Walters, 28 la., 460; McKinnon v. Lumber Cb.,63 Tex.,
31 ; Bridge v. Eggleston, 14 Mass., 250; Groves v. Steel, 2
La. Ann., 480; Chase v. Chase, 10) Mass., 388; Lan^
decker v, Houghtaling, 7 Cal., 392 ; McLane r. Johnson, 4S
Vt, 48 ; Wyckoffv. Carr, 8 Mich., 44 ; Taylor v. Robinson,,
2 Allen [Mass.], 562; Dickson v. Rawson, 6 O. St., 218;
Loudenl)ack v. Foster, 39 Id., 203 ; Grimes v. Grimes, 6 S»
W. Rep. [Kj.], 333; Willis v. YaJtes, 12 Id. [Tex.], 232;
Winner v. Hoyt, 66 Wis., 2^7 ; Bmroios v. Lehndorff, 8
la., 96; Bank v. Crittenden, 23 N. W. Rep. [la.], 646;
Straw V. Jenks, 43 Id. [Dak.], 911; HoU v. Bancroft, 30
Ala., 193; Palmour t?. Johnson, 10 8. E. Rep. [Ga.], 600;
Preston v. Spauldiiig, 120 111., 208; Martin v. Hausman,
14 Fed. Rep., 60; Ferry v. Corby, 21 Id., 737; Pyle v.
Warren, 2 Neb, 241; Ransom v. Schmela, 13 Id., 73;
Jamison v. JUcNally, 21 O. St., 295; Aultinan v. Heiney,,
' 43
674 NEBRASKA REPORTS. [Vol. 30
Kaufman y. Coburn.
59 la., 654 ; James v. Hethermgion, 45 Id., 681 ; Wait,
Fraudulent Couv. [2d Ed.], sec. 379.
Maxwell, J.
This is an action of replevin brought in the district
court of Douglas county, and as the })etition and answer
purport to set out the facts as claimed by each party, they
are hereby given. The amended petition is as follows:
"The plaintiffs complain of the defendant and allege for
cause of action that they are the absolute and unqualified
owners of the goods, wares, and merchandise described as
follows, to-wit: AH the goods, chattels, wares, and mer-
chandise, consisting of the stock of tobacco, pipes, cigar-
holders, cigars, fancy articles, cigarettes, including all the
stock of goods, chattels, wares, and merchandise contained
in the building and place of business No. 207 South Fif-
teenth street, Omaha, Nebraska, including all the fixtures,
show cases, counters, and shelving, and including all the
articles, goods, and chattels contained in the basement and
storeroom of said building, No. 207 South Fifteenth
street. All of the goods, chattels, wares, and merchan-
dise, consisting of tobacco, pipes, canes, cigars, cigar-
holders, fancy articles, cigarettes ; also all. fixtures, includ- \
ing counters, shelving, show cases, and including all '
articles, goods, and chattels contained in the storeroom
and basement in the building. No. 216 South Thirteenth
street, Omaha, Nebraska. All of the stock of goods, i
wares, and merchandise, consisting of tobacco, pipes, fancy
articles, cigars, cigar-holders, cigarettes, and cigarette-hold- |
ers; also the fixtures, including counters, shelving, show
cases, including all the goods, chattels, wares, and
merchandise contained in the storeroom of No. 1009 Far- i
nam street, Omaha, Nebraska; all the said goods above
described being in the city of Omaha, Douglas county,
Nebraska.
Vol. 30] SEPTEMBER TERM, 1890. 675
Kanfmaa t. Cobum.
"Second — Plaintiffs allege that said goods, wares^ and
merchandise, above described, are of the value of $10,000.
" Third — That the defendant wrongfully and unlawfully
detains said goods, wares, and merchandise from the pos-
session of plaintiffs, and has wrongfully detained the same
for days, to the plaintiffs^ damage in the sum of
110,000."
Afterwards the Bank of Commerce was admitted as a
defendant with Coburn, and they filed a joint answer as
follows:
*'Now come said defendants and for answer to plaintiff's
petition filed herein deny each and every allegation therein
contained.
"Second — That on or about the 20th day of February,
1888, David Kaufman and Isaac Kaufman, copartners in
trade and doing business in the city of Omaha, Nebraska,
under the firm name and style of Kaufman Brothers, were
indebted to the said Bank of Commerce in the sum of
f 6,600 in two causes of action arising upon two certain
promissory notes, one for the sum of $3,000 and interest
thereon, and the other for $4,000 and interest, on which
there was a credit of $400, and on said day the said Bank
of Commerce commenced two actions by attachment against
the said Kaufman Brothers in the district court in and for
Douglas county, and caused an order of attachment to be
issued in each of said cases, one for the sum of $3,000 and
interest, and the other for $3,600 and interest, and deliv-
ered the same to the defendant Wm. Coburn, who was at
that time, and all the time hereinafter mentioned has been
and now is the sheriff of said Douglas county, Nebraska;
that under and by virtue of said orders and in pursuance
of the command thereof the said defendant, Wm. Coburn,
sheriff, levied upon the goods, wares, and merchandise,
and took the same into his custody; that said goods and
chattels were at the time of said levy the goods and chat-
tels of said Kaufman Brothers and were liable to be ley-
n
676 NEBRASKA REPORTS. [Vol. 30
Kaufman v. Oobnrn.
ied ii|Km for the satisfaction of said debts and taken under
said orders of attachment for the satisfaction of the same.
"Third— That on the 11th day of February, 1888, one
Darwin H. Hull commenced an action by attacliment
against siu'd Kaufman Brothers in the county court ofsaid
Douglas a)unty, and caused an order of attachment for the
sum of $367.50 to be issued in said cause and delivered to
the defendant William Coburii, sheriff; that under and
by virtue of said order, and in pursuance of the command
thereof, said defendant Wm. Coburn, sheriff, levied upon
the goods al)ove described, subject to the levy of the at-
tachment first above descril)eil, and took the same into his
cu8t<Nly; that said goods were at the time of said levy the
goods and chattels of the said Kaufman Brothers, David
Kaufman and Isaac Kaufman, and were liable to be levied
U))on for the satir^faclion of said last named debt, and
taken under said order of attachment for the satisfaction
of the same; that afterwards and on the 19th day of
March, 1888, a judgment was rendered in^said county
oourt in said casein iavor of the plaintiff and against said
KMufmnn Brothers for the sum of $367.50 and costs in
the sum of $6.10. Since the issuing of said attachments
afon^said, and, to-wit, on or about the 8th day of January,
1889, there has been paid on the note for $4,000 to the
Bank of Commerce, above rcierretl to, the sum of $1,000."
The above amended answer was filed at the close of the
trial The anise having l>cen trial on a general denial,
the (*ourt instructed the jury as follows:
**This is an action brought by the plaintifls to reoover
from the defendant Coburn, as sheriff of this county, the
p<xsse<sion of certain gooils, wares, and merchandise, to
which the plaintiffs claim they were entitled, and which
had been taken by the sheriff un.ler ortlers of attachment
sued out of this court in actions commence<l by creditors
of Kaufman Bros, ag^iinst thorn. The plaintiffs base their
right of recovery henin upon tlie in i.i.iivnts w'l.i. .i nave
Vol. 30] SEPTEMBER TERM, 1890. 677
Kaufman ▼. Oobutn.
been introduoed in evidence, purporting to be a bill of sale
of the property in coniroverrfy, to them. You are in-
structed :
"I. That the written instruments referred to, which
were introduoed in evidence by the plaintiffs as evidence of
their title to the projjerty in controversy, was, in effect, as
shown by the testimony, an assignment for the benefit of
creditors^ and as such is void under our statute^ and con-
veyed no title to the plaintiffs in this action as against
other creditors. It is your duty, therefore, to return a ver-
dict for the defendants, and I hand you a verdict, which you
will sign by your foreman and return the same into court."
The jury returned a verdict as follows:
"We, the jury duly impaneled and sworn to try the
issue joined between the said parties, do find for the said
defendants, and do find that defendants had a special in-
terest in and were entitled to the possession of the prop-
erty at the time of the commencement of this suit, and we
find the interest of the Bank of Commerce to be $5,055^
and of Wm. Coburn, sheriff, $909.83; total, $5,964.83."
A motion for a new trial was thereupon filed, one of the
grounds «of which was that the damages were expessive;
the bank thereupon remitted from the verdict the sum of
$205, whereupon the motion for a new trial was overruled
xind judgment entered on the verdict.
The testimony tends to show that prior to the 8th day
of February, 1888, David Kaufman and Isaac Kaufman
were engaged in business in the city of Omaha under the
name of "Kaufman Bros." It also appears that they
were largely indebted, and that Edgar P. Davis, Samuel
Rees, and Levi Kaufman had each become security for
Kaufman Bros, in a very large amount. These parties, to
save themselves from loa?, claimed to have purchased the
stock of goods and other property of Kaufman Bros., who
thereupon executed the following instruments :
"This agreement, made and entered into this 8th day of
n
678 NEBRASKA REPORTS. [Vol. 30
I^auAnan y. Cobum.
February, A. D. 1888, by and between Kaufman Bros.,
consisting of David Kaufman and Isaac Kaufman, of the
first part, and Levi Kaufman, f^gar P. Davis, and Sam*
uel Rees, parties of the second part, witnesseth :
^'That the said Kaufman Bros., David and Isaac Kauf-
man as aforesaid, are to transfer, sell, and set over unto
Levi Kaufman, Edgar P. Davis, and Samuel Rees all of our
personal property, consisting of all of the stock of goods,
wares and merchandise, chattels of every kind and nature
contained in the three storerooms and basements of the
store buildings No. 207 South Fifteenth street, No. 216
South Thirteenth street, and 1009 Farnam street, Omaha,
Nebraska, also all of our real estate situated in Douglas
county and Sarpy county, Nebraska, and Monona county,
Iowa, except the homestead of David Kaufman, said real
estate being in the name of David Kaufman.
"In consideration and in full payment of the indebted-
ness due from us, the said Kaufman Bros., to the said Levi
Kaufman, Edgar P. Davis, and Samuel Rees, of |3,0OQ
■ cash in hand, the receipt whereof is hereby acknowledged,
and we, the said Levi Kaufman, Edgar P. Davis, and
Samuel, Rees, do hereby bind ourselves, our heiss, execu-
tors, and administrators, to hold the said Kaufman Bros.
harmless from all liability on notes which we have either
indorsed for them, or signed with them, or put up collat-
eral security for, and of which we, before the execution
of this agreement, guaranteed the payment.
" Witness our hands this 8th day of February, A, D»
1888. Kaufman Bnas.,
"By David Kaufman.
"David Kaufman.
" Isaac Kaufman.
"Edgar P. Davis,
"Samuel Rees,
"By E. P. Davis.
"Levi Kaufman^
"By R. S. Ervin.
Vol. 30] SEPTEMBER TERM, 1890. 679
Kaufknan t. Oobiirn.
"We, Levi Kaufman and Samuel Rees, liereby acc^ept,
affirm, and ratify the above and foregoing agreement.
"Samuel Rers.
"Levi Kaufman.
"Tills indenture made this 8th day of Fehruary, A. D.
1888, between Kaufman Bros., consisting of David Kauf-
man and Isaac Kaufman, doing business under the firm
name of Kaufman Bros., of Douglas county, Nebraska,
parties of the first part, and Levi Kaufman, £<lgar P.
Davis, and Samuel Rees, of the second part, witnessetli :
" That the said parties of the first part, in consideration
of the sum of $20,000, in hand paid by the parties of the
second part, have bargained and sold, and by these presents
do grant and convey unto the parties of the second part,
their executors, administrators, and assigns, the following
described goods and chattels, to-wit, the said personal
property hereby sold as aforesaid being now owned, kept,
and used by the parties of the first part at the buih1ing.s
and places of business known as Kaufman Bros.' cigar
store, and located at Nos. 207 South Fifteenth street, 216
South Thirteenth street, and 1009 Farnam street, in the
city of Omaha, Nebraska, and consisting of all and singular
the personal property of the party of the first part now in
and belonging to said places of business respectively, and
consisting principally of
" First — All the goods, chattels, wares, and merchandise,
consisting of the stock of tobacco, pipes, cigar-holders,
fancy articles, cigars, cigarettes, and all of the stock of
goods, chattels, wares, and merchandise owned by us and
kept by us in the building and place of business Xo. 207
South Fifteenth street, Omaha, Nebraska; also all the
fixtures, show cases, counters, shelving, including all arti-
cles, goods, and chattels owned by us and used in running
the business add contained in the store and basement No.
207 South Thirteenth street.
"Second — All the stock of goods, chattels, wares, and
merchandise, consisting of tobacco, pipes, cigar-holders,
680 NEBRASKA REPORTa [Vol. 30
KaufmaD ▼. Cobarn.
fancy articles, cig irs, cigarettes ; also all fixtures, including
counters, shelving, show cases, including all articles, goods,
and chattels owned by us and contained in the storerooms
and basement No. 216 South Thirteenth street^ Omaha,
Nebraska.
"Third — All of the stock of goods, wares, merchandise,
consisting of tobacco, pipes, fancy articles, cigars, dgar^
ettes, cigar-holders; also the fixtures, including counters,
shelving, show cases, including all the goods and chattels
owned by us and kept in the storerooms No. 1009 Far-
nam street, Omaha, Nebraska.
"The intention being to sell and convey to the said Levi
Kaufman, Edgar P. Davis, and Samuel Bees all of our
personal property of every kind and nature in the prem-
ises hereinbefore described.
"Fourth — All the interest of the said parties of the
first part as seised in the premises above described, to-wit:
No. 207 South Fifteenth street, No. 216 South Thirteenth
street, Omaha, Nebraska, and No. 1009 Famara streets
Omaha, Nebraska, and all of the estate, title, and interest
of the said parties of the first part in and to said premises.
"The condition of the above sale is such, that whereas,
the said Levi Kaufman stands and is security for )^6,000
on the notes of the said Kaufman Bros., due the Bank of
Commerce, also one note of $1,600 and a note of $500 to
U. S. National Bank, all drawing interest at the rate of
ten per cent — the date when said notes were given and
the date upon which they fall due cannot now be given by
the parties of the first part, and also cash loaned tlie said
Kaufman Bros, in the sum of $300 by the said Levi Kauf-
man; and
" Whereas, the said Edgar P. Davis indorsed and stands
security for the said Kaufman Bros, for two notes for the
sum of $750 each, one note for $1,074.62, also three notes,
$2,100, $1,000, $1,000 respectively, and cash loaned in
the sum of $250, for which the said Davis stands security
and indorsed for the said Kaufman Bros. : and
Vou30] SEPTEMBER TERM, 1890. 681
KauftnaD t. Cobura.
"Whereas, the said Samuel Rees stands security and in-
dorsed notes for the said Kaufman Bros, as follows, to-wit :
one note for $2,100; two notes, one for $1,247 and one
for $1,000; also the said Rees has loaned Kaufman Bros,
cash in the sum of $666 :
"Now, whereas, the said Kaufman Bros, have failed to
pay said notes and cannot meet the payment of said notes,
now, therefore, the said Kaufman Bros, do hereby sell and
transfer the above described property to the second parties
herein for the payment of said notes and indebtedness of
the said Kaufman Bros, to the said Levi Kaufman, Edgar
P. Davis, and Samuel Rees:
"It is expressly agreed that the said second parties may '
take possession of said goods, chattels, and wares and mer-
chandise, and their possession is their authority.
"In witness whereof, we have hereunto set our hands and
seals this 8th day of February, A. D. 1888.
"Kaufman Bros.
" By David Kaufman.
** David Kaufman.
"Isaac Kaufman.
"Witness: R. 8. Ervin."
"State of Xkbuaska, 1
Douglas County, j '
" Be it remembered that on this 9th day of February,
A. D. 1888, before me, G. H. Payne, a notary public in
and for said county, personally came David Kaufman and
Isaac Kaufman, and to me known to be the identical per-
sons described in and who executed the above and forego-
ing instrument as grantors, and acknowledged said instru-
ment to be the voluntary act and deed of Kaufman Bros.,
and to be their voluntary act and deed.
"Witness my hand and seal this 9th day of February,
A. D. 1888. '
[seal.] G. H. Payne,
"j4 Notary PuMic in and for Douglas Countyy Nd>J^
682 NEBRASKA REPORTS. [Vol. 30
Kaaftnan ▼. Coburn.
The debts owing by Kaufman Bros., for which tliese
parties were security^ so far as appears^ were Aona^/ide^aad
the plaiiitiiTs in error agreed to assume the same upon tlie
oonsideratiou that they were to receive the property de-
scribed in the foregoing agreement. It is not a case of a
trust wliere the parties agreed to sell the pro})erty and |>ay
the debts ; but they assumed the debts for which they were
security. They did not receive the property for the benefit
of one or more of the creditors of Kaufman Bros, other
than themselves but personally assumed the burden. Id
all probability they saw that Kaufman Bros, would be un-
able to pay the debts for which they were security unless
an arrangement of that kind was made, and hence that
they would be called upon each for himself to pay the
debts for which he was security. There is testimony in
the record tending to show that Kaufman Bros, were {pop-
ular salesmen^ and that after the transfer of the places of
business to the plaintifis in error the business fell off con-
siderably, and in order to retain the business the plaintiffs
again employed the Kaufman Bras, as salesmen. Whether
or not this testimony is true is a question for the jury, but
if true it would afford a satisfactory i*easou for the reten-
tion of the Kaufman Bros, to assist in conducting the
business.
The stock is shown to have been worth about $12,000,
and the real estate and other property conveyed less than
$8,000— probably not to exceed $6,000, so that if that tes-
timony is true the property conveyed was not in excess of
the amount of the consideration. The obligations assumed
evidently were not before the parties when the bill of sale
and contract were drawn and the debts assumed probably
are only estimated as to amounts and dates. A mistake in
this regard, however, whereby the consideration would be
less than stated, is a matter of defense.
The case differs materially from that of Banns v. Carter,
20 Neb., 566, where a transfer was made to a creditor for
Voi. 30] SEPTEMBER TERM, 1890. 683
Bnberts v. Moudy.
the payment of creditors other than himself, and the trans-
fer was held to be in trust and fraudulent as to creditors.
The court erred in the instruction given to the jury, as the
questions of fact should have been submitted to them.
The judgment of the district court is therefore reversed
and the cause remanded for further proceedings.
Reversed and remanded.
The other judges concur.
Stephen Roberts v. M. V. Moudy.
[Filed Novembeb 5, 1890.]
Exemptions: Head of Family: Divorced Husband Is.
The wife of oneM. removed to Wyoming, taking her children, a
boy and a girl, with her, and there obtained a diToroe from M.,
her basband, and was awarded the custody of the children.
The testimony tended to show that M., notwithstanding the di-
vorce, con tinned to ftirnish support for his children. Held,
That he was the head of a family and entitled to the benefit of
the exemption law.
S. . The library and implements of a professional man, a resi-
dent of the state, are exempt under sec. 530 of the Code, whether
he is the head of a family or not
Error to the district court for Nance county. Tried
below before Post, J.
-E F. C larky and Sullivan & Reeder, for plaintiff in
error:
The district court of Wyoming, where the wife and
children were domiciled, awarded the custody of the latter
to Uie wife, and that decree is still in force* (Cooley, Const.
Lim., 404; KUne v. Kline, 10 N. W. Rep., 825.) De-
684 NEBRASKA REPORTS. [Vol. 30
Roberts v. Moady.
fendant in error is not the liead of the family because he
has formed no part th?roof since the divorce. (Rock v,
Haas, 110 III., 528; Tyson v. Reynolds, 3 N. W. Rep.,
469.)
W. F. CrUchfidd, and M, V. Moody, contra:
The property should have beeu appraised and the ex-
empt portion selected. {Mdz v, Cunningham, 6 Neb., 90;
Chesney V. Francisco, 12 Id., 627; Cunningham v. Coii-
way, 25 Id., 617.) Infants are legally incapable of choos-
ing a domicile. (5 Am. & Eug. Encyc, 861 [N. 3],
862-6.) Even had the district court of Wyoming author-
ity to grant the divorce, the children are not bound by
its decree. (In re Bort, 25 Kan., 308 ; People v, Allen, 40
Hun [N. Y.], 611 ; 6 Am. & Eng. Encyc, 836-7.) Aban-
donment of the husband by wife and children does not take
away his exemption right. (Dorringion v. Meyers, 11 Neb.,
391.) This right belongs to him because of his own resi-
dence, and not that of his family. (Dobson v. McClay^ 2
Neb., 8 ; Chesney v. Francisco, supi-a.)
Maxwell, J.
On September 14, 1886, the plaintiflF in error was the
sheriff of Nance county, and had for collection an execu-
tion issued out of the district court of Buffalo county
against M. V. Moudy, the defendant in error. Moudy
was a practicing lawyer of Nance county, and the execu-
tion was levied upon his law library and other property
used by him in the practice of his profession. Moudy
gave a redelivery bond to the sheriff and retained posses-
sion of the property levied upon.
In April, 1887, the plaintiff in error sought to sell the
property upon which the levy had previously been made
when Moudy alleged that he was the head. of a family,
and filed an inventory of his assets with the sheriff, who
Vol. 30] SEPTEMBER TERM, 1890. 685
Roberts ▼. Moudy.
refused to recognize his right to the benefit of the exemp-
tion law. Moiuly thereupon commenoed an action to en-
join the sale, and also one to cause the sheriff to appraise
and set aside the property as exempt. Both actions were
commenced March 30^ 1888^ and were, on the motion of
defendant in error, subsequently consolidated. A tempo-
rary injunction was granted^ which, on final hearing, was
made perpetual, and at the same time a peremptory writ
of mandamus was awarded against Roberts and the prop
erty appraised and awarded to Moudy.
The testimony tends to show that in the year 1875
Moudy was married in Wyoming territory; that two chil-
dren were the fruit ol this marriage. In the year 1878
or 1879 his wife returned to her father's home in Wyo-
ming, taking the children with her, and in 1880 she pro-
cured a divorce from her husband, and in the decree was
awarded the custody of the children. Moudy testifies,
however, that he has continued to furnish means for the
support of his children. Tliere is no denial of this testi-
mony in the record, except such as may be inferred from
the decree of divorce. There is testimony, therefore, tend-
ing to show that he is the head of a family and entitled
to exemption under the statute.
Under section 530 of the Code " the library and imple-
ments of any professional man '^ are exempt whether he is
the head of a family or not.
Nearly all the property levied upon in this case was
such as pertained to Moudy's law office, and was exempt
under the statute.
The judgment of the court below is right and is
Affibmed.
The other judges concur.
686 NEBRASKA REPORTS. [Vol. 30
G, B. & Q. B. Go, T. Bogui.
ISO titw
«43 753 Chicago, B. & Q. R. Co. v. Maby HoaAK,
[Filed Novbmbjeb 6, 1890.]
Railroads: Fencing in City Limits. A railroad oompaaj ii
not reqaired to fence its right of way within the limitB of a
city, town, or village. And where the larger portion of its da-
pot and station grounds are within such limits, the company is
not required to fence that part of such grounds extending oat-
side of the city limits, and upon which abuts a platted addition
to such ci1<y, when it appears that such grounds are constantly
used, and are necessary for the proper transaction of its bnsinesi
as a common carrier.
Reheabing of case reported 27 Neb., 801. For con-
tentions of counsel, see former report
Marqaett & Deweese, for plaintiff in error.
Sawyer & Snell, contra.
NORVAL, J.
This case was reversed on a former hearing and a re-
hearing granted. We have again considered the questions
involved and found no reason to change the views
expressed in the former opinion prepared by Judge Max-
well, that, under the agreed statement .of facts, the rail-
road company was not required to fence its right of way at
the point where the plaintiff's horse was killed, and, as the
animal was killed without the fault or negligence of the
company's employes, the defendant was not liable for the
loss. The greater portion of the defendant's depot and
station grounds at the city of Lincoln are within the
corporate limits; the remainder of such grounds, while
not within the corporate limits, extends along a laid oat
and platted addition to Lincoln, known as ** West Side
Vol. 30] SEPTEMBER TERM, 1890. 687
a, B. A Q. R. Co. ▼• Hogan.
Addition." This addition had several houses thereon,
wliich were occupied by owners and tenants. Numerous
tracks had been constructed through said depot grounds,
which had been used by the company for many years, and
which tracks and depot grounds were necessary for the
proper transaction of its business as a common carrier.
The horse entered upon the defendant's right of way and
was killed at a point within that part of its depot or sta-
tion grounds which extend outside of the city limits. No
fence bad been erected on either side of the defendant's
tracks at that point.
Sec, 1, art. 1, ch. 72, Conip. Stats., expressly exempts a
railroad company from fencing its right of way within the
limits of a city, town, or village. To have fenced that
part of the depot grounds not within the city limits,
would have required the construction of cattle guards and
wing fences across these grounds. It is stipulated by the
parties that it would be inconvenient and unsafe to em-
ployes of the road if cattle guards and fences were erected
there. Such guards within station grounds could not be
otherwise than exceedingly dangerous to those whose duty
it is to attend to tlie switching of cars. This work of
necessity is done at stations, and freight cars must be
coupled and uncoupled by a person standing on the ground.
To perform such labor with cattle guards constructed
across the tracks, within station grounds, would not only
be perilous to the life and limb of the employes, but
would greatly interfere with the proper discharge of its
duties as a carrier. It is not believed that the legislature
contemplated or intended that a railroad company should
fence that part of its station grounds extending outside of
the limits of a city, town, or village, when such grounds
are necessary for the proper transaction of its business as
a common carrier. The conclusion we have reached is
sustained by the following authorities : Davis v. B. & M.
R. Co., 26 la., 553; Darand v. C. & N. W. R. R., Id.,
688 NEBRASKA REPORTS. [Vol. 30
Burr y. Lamaster.
559 )L.&L R. Co. v. Shnner, 6 Ind., 141 ; J. * C. G R.
Co. V. Oestel, 20 Id., 231 ; Railroad Co. v. Rowland, 50 Id.,
349; a R. & Ft. Wayne R. Co. v. Wood, 82 Id., 598; /.
R. Cq. v. Christy, 43 Id., 143; G. & C. R. Co. v^ Griffin,
31 III., 303; Flint & P. M. R. Co. v. Lull, 28 Mich., 510;
McGralh V. D. M. & 31. R. Co., 24 N. W. Rep. [Mich.],
854; Lloyd v. Pac. R. Co., 49 Mo., 199; I. B. & W. R.
Co. V. Quick, 9 N. E. Rep., 789; C. & G. T. R. Co. v.
Campbell, 11 N. W. Rep., 152. As there can be no re-
covery in this case, the judgment of the district court is
reversed and the action
Dismissed.
TuE other judges concur.
ao 688
83 440
|S S C. C. Burr et al. v. M. F. Lamaster.
[Filed Novembkr 5, 1890.]
1. Party Walls: Incumbrances. Where a person pnrchases a
▼acant lot which sapports the half of the wall of the bailding
erected on the adjoinin>; lot, and such purchaser is, by the terms
of a previous wall ajcreeinent entered into by his grantor,
obliged to pay a part of the costs of the wall in order to use it,
sach agreement and wall constitate an incumbrance.
2. A covenant against incumbrances covers incumbrances
unknown to the purchaser, as well as those known.
Error to the district court for Lancaster county. Tried
. below before Chapman, J.
Pound & Burr, for plaintiffs in error, cited : Chapman v.
Kimball, 7 Neb., 399 ; Post v. Campau, 42 Mich., 90; Friiz
V. Pusey, 31 Minn., 368; Prescott v. Trueman, 4 Maas.^
630 ; Mitchell v. Waiter, 5 Conn., 527; Carter r. Dev^
m r 3 7ah fX, T] -273; Bromoa v. Coffin, 108 Mass.,
Vol. 30] SEPTEMBER TERM, 1890. 689
Burr ▼. Lamaster.
175; Caryv. DanieU^ 8 Met. [Mass.], 482; Huyck v. An-
drews, 113 N. Y., 85; Roche v. Vllmann, 104 111., 1;
Sharp V. Checdhamy 88 Mo., 498 ; Richardson v, Tobey^
121 Mass., 457; Bowling v. Henning, 20 Md., 179; Eno
V. Vecchio, 4 Duer [N. Y.], 53 ; Bhch v. Isham, 28 Ind.,
37; Ingalls v. Plamondon, 75 111., 123; Piatt v. Fggles-
ton, 20 O. St., 414; Ketdtas v. Penfidd, 4 E. D. Smith
[N. Y.], 134 ; Savage v. Mason, 3 Gush. [Mass.], 500 ;
Andrea v, Haseltinc, 58 Wis., 395 ; Haslett v, Sinclair, 76
Ind., 488; Maine v. Cumston, 98 Mass., 317; Brown v.
McKee, 57 N. Y., 684 ; Sjmrr v. Andrew, 6 Allen [Mass.],
420 ; Lamb v. DanfoHh, 59 Me., 322 ; Russ v. Steele, 40
Vt, 310; Wils(m v. Cochran, 46 Pa. St., 233; Bank v.
Hill, 48 Ind., 52; Beach v. Miller, 51 III., 206 ; Kellogg
V. Malin, 50 Mo., 496; Haynes v. Young, 36 Me., 557;
Kelljogg v. Ingersoll, 2 Mass., 101 ; Butler o. Gale, 27 Vt.,
• 739 ; Hubbard v. Norton, 10 Conn., 422; Rawle, Gov. for
Title [5th Ed.], 79, 81-2; Clark v. Conroe, 38 Vt., 469;
Gerald v. EUey, 45 la., 322 ; BuU v. Riffe, 78 Ky., 352 ;
McGowen v. Myers, 60 la., 256; Blake v, Everett, I AlleD
[Mass.], 248; Cathcart v. Bowman, 5 Pa. St., 819; Mor-
gan V. Smith, 11 111., 199; Ginn v. Hancock, SI Me., 42;
Rosenberger v. KeUar, 33 Gratt. [Va.], 489 ; Mackey v.
Harmon, 34 Minn., 168; Giles v. Dugro, 1 Duer [N»
Y.], 331;. Mohr v. Parmelee, 43 N. Y., 320; 2 Washb.,
R. P. [4th Ed.], 300, 363; 8 Id., 468, 470, 474; Mitchdl
r. Stanley, 44 Gonn., 312; Roberts v. Levy, 3 Abb. Pr.,
(N. S.) [N. Y.], 311 ; Bertram v. CuHis, 31 la., 46 ; Cole
V. Hughes, 54 N. Y., 444; Hendricks v. Storks, 37 N. Y.,
106.
0. P. Mason, contra, cited : Rawle, Covenants for Title,
79, 80 ; WhUbeck v. Cook, 15 Johns. [N .Y.], 483 ; Vaughn
V. Stuzaker, 16 Ind., 340; GoodtiUe r. Aiker, 1 Burr.
[Eng.], 133; Ooretyou v. Van Brandt, 2 Johns. [N. Y.],
357 ; Lewis v, Jones, 1 Pa., 336 j Peck v. Smith, 1 Gonn.,
44
690 NEBRASKA REPORTS. [Vol. 30
Borr y. Lamaster.
10:^, 147 ; HendrieJcs v. Stark, 37 N. Y., 106 ; Waterman
V, Van Eceiy, 3 Alb. L. J., 304 ; Ogden v. Jones^ 2 Bosw.
[N. Y.], 685 ; Ingalla v. Plamondon, 75 III, 118 ; 2 Washb.,
R. P. [3d Ed.], 275 ; Bouvier's Die, "Party Wall/' and
authorities cited ; Walters v, Pfeily 1 Mood. & M. [Eng.],
362 ; 3 Kent's Com., 437 ; Partridge v. Gilbert, 15 N. Y.,
601 ; Andrae v. Haseltine, 68 Wis., 895; Sanders v. Martin,
2 I^ea [Tenn.], 218; Brooks v. Ourtis, 50 N. Y., 639 j Mo-
GUttigan v. Evans, 8 Phila.^ 264.
NORVAL, J.
On the 8th day of May, 1886, the defendant, Milton F.
Lamaster, was the owner of lots 7 and 8, in block 40, in
the city of Lincoln, and E. W. Baldwin and G. S. Bald-
win were the owners of lot 9, in said block. On said
day the said Lamaster and the Baldwins entered into the
following contract for a party wall between said lots 8
and 9:
"Articles of agreement made and concluded this eighth
day of May, 1886, by and between E. W. Baldwin and
G. S. Baldwin, party of the first part, and Milton P. La-
master, party of the second part, witnesseth :
"That whereas, said parties of the first part are the
owners of lot 9, block 40, in the city of Lincoln, in the
county of Lancaster, and state of Nebraska; and whereas,
said party of the second part, is the owner of lot 8, block
40, in the said city of Lincoln, which lot joins said lot 9^
belonging to said first parties, on the west side; and
" Whereas, said first parties contemplate building upon
their said lot nine a three-story brick store building, and
one wall of which would lie along the west of said lot,
adjacent to said lot eight, belonging to the party of the
second part:
" Now, therefore, it is hereby mutually covenanted and
agreed by and between the parties hereunto, that said first
Vol. 30] SEPTEMBER TERM, 1890. 691
Barr y. Lamaster.
parties shall build said wall so that the center of the same
shall be upon the dividing line between said lots eight and
nine, in said block forty, in the city of Lincoln, Lancaster
county, Nebraska, and that the same shall be and remain
a party wall for the common use of the parties hereunto.
'* And it is further agreed that said parties shall con-
struct said wall in a good, durable, and sufficient manner^
the wall of basement being one foot ten inches in thick-
ness, with a footing of concrete one foot thick by three
feet wide, and a footing of large stone upon this; that the
wall of the first story shall be four bricks, or sixteen inches
in thickness, and that the remainder of wall shall be three
bricks, or thirteen inches in thickness; that said wall shall
contain flues properly built and arranged for the accom-
modation and use of the party of the second part; that
there shall be at the height of each story proper joist
holes left in said wall and in the west side thereof, for the
accommodation of the party of the second part, and that
said holes shall be filled with brick set on end so they can
be taken out when required, and that said holes shall be
made directly opposite to the ends of the joists of said
building to be erected by the parties of the first part. It
is also further agreed that in case said first parties do not
build on the whole of said lot 9, and that their wall does
not extend to the full depth of lot 9, and that their wall
does not extend to the full depth of said lot, and if at any
time either of the parties hereunto desires to extend said
party wall, they shall be at liberty to do the same subject
to all the terms and conditions of this contract as to thick-
ness and character of wall, and as to the rights and privi*
leges of both parties hereunto.
''It is also mutually agreed that when the party of the
second part shall join to or make use of said party wall
he shall pay to said first parties for the same a sum not
exceeding the first cost thereof, or the portion thereof so
used, to be determined at that time by two disinterested
692 NEBRASKA REPORTS. [Vol. 30
Burr v. Lamaster.
persons or arbitrators, one to be chosen by the party of the
first part and one by the party of the second part, and in
case of disagreement these two arbitrators shall choose a
third person as referee, and the decision of these three
persons as to the value of said wall shall be final.
"And in case of the extension of said party wall by
either of the parties hereunto, then the other party shall,
upon his joining to or using said wall, pay to the party
building the same one-half the value thereof, the same to
be determined as hereinbefore provided.
"It is further agreed by and between the parties here-
unto that the several covenants and agreements herein
contained shall extend to and be binding upon their several
heirs, executors, and administrators and assigns.
" In witness whereof, we have set our hands this seventh
day of May, 1886.
"In presence of
"Party of the first part:
"G. S. Baldwin.
"E. W. Baldwin.
"Party of the second part:
" M. F. Lamaster."
The above contract was duly acknowledged and on the
19th day of May, 1886, was recorded in the county clerk's
office of Lancaster county. During the year 1886 the
Baldwins erected a brick building on lot 9, and in pursu-
ance of the above agreement constructed a party wall on
the line between lots 8 and 9, one-half of the wall resting
on each of said lots.
On February 19, 1887, Lamaster sold and conveyed to
Carlos C. Burr and Lionel C. Burr said lots 7 and 8. The
deed contains the following covenants:
" The said Milton F. Lamaster does hereby covenant
with said Carlos C. Burr and Lionel C. Burr, and their heirs
and assigns, that he is lawfully seized of said premises ;
that they are free from incumbrance; that he has good
Vol. 30] SEPTEMBER TERM, 1890. 693
Burr T. Lamaster.
right and lawful authority to sell the same; and said M.
F. Liaiuaster does hereby covenant to warrant and defend
the title to said premises against the lawful claims of all
persons whomsoever/'
Afterwards the Burrs erected a siz-story stone building
on the lots purchased by them, but did not use said party
wall. The plaintiffs brought this suit for damages, claim-
ing that the party wall agreement and the party wall con-
structed by the Baldwins constituted a breach of the cove-
nants in the deed. The judgment of the district court
was for the defendant.
The main question presented by the record is, whether
the party wall agreement and the party wall erected in
pursuance thereof constituted a breach of the covenants of
the deed against incumbrances.
An incumbrance is defined to be any right to or interest
in laud which may subsist in third persons to the diminu-
tion of the value of the land and not inconsistent with
the passing of the fee in it by the deed of conveyance. (1
Bouv. Law Die, 784; 2 Greenleaf, Ev., sec. 242 ; jR-ite r.
Pusey, 31 Minn., 368; PrescoU v. Trueman, 4 Mass., 630.)
By the contract entered into between Lamaster and the
Baldwins the latter were authorized to construct one-half
of the party wall on the vacant lot owned by Lamaster,
and he covenanted for himself, his heirs and assigns, to
pay the Baldwins the one-half of the cost of the wall when-
ever he should make use of the {>ame. This agreement gave
the Baldwins an interest in the nature of an easement in the
Lamaster lot, and constituted an incumbrance. The obli-
gation to pay a portion of the cost of the wall was not
merely a personal covenant binding upon Lamaster, but
was a burden which ran with the land and bound his
grantees to pay for one-half of the wall if they used the
same. It was a charge upon the lot conveyed to the Burrs,
and until it w&s used by them the Baldwins had a right of
property in the wall.
694 NEBRASKA REPORTS. [Vol. 30
Burr y. Lamaster.
In Savage v, MasoUy 3 Cush., 500, the action was
brought for a breach of covenants against incumbrances.
In an agreement of partition of real estate between the
owners, it was stipulated that the center of the party walls
of each brick or stone building might be placed upon the
lines dividing the lots from a contiguous lot, and that the
owner of such contiguous lot should pay for one-half of
the wall so used by him, whenever he should make use of
the same. A lot set off to Benjamin Joy, one of the par-
ties to the agreement, was conveyed by his heirs to John
F. Loring and Henry Arews, and subsequently it was by
them conveyed to Ezekiel W. Pike, who erected his brick
dwelling house on the lot, placing the center of one of the
walls upon the line dividing his lot from the contiguous
lot. Subsequently rPike conveyed his lot to Luther S.
Gushing and wife, who in turn conveyed to the plaintiffs.
The contiguous lot by Jonathan Mason was, upon his
death, set off to the defendant, who erected thereon a brick
dwelling, in which the party wall was used. The plaintiff
sued upon the covenant for one-half of the value of the
party wall. The court, in the opinion, says : "A covenant
is said to run with the land when either the liability to
perform it, or the right to take advantage of it, passes to
the assignee of the land. The liability to perform, and the
right to take advantage of, this covenant both pass to the
heir or assignee of the land, to which the covenant is at-
tached. This covenant can, by no means, be considered as
merely personal or collateral, and detached from the land.
There was a privity of estate between the covenanting
parties in the land to which the covenant was annexed.
The covenant is in terms between the parties and their re-
spective heirs and assigns; it has direct and immediate
reference to the land; it relates to the mode of occupying
and enjoying the land; it is beneficial to the owner as
owner, and to no other person; it is in truth inherent and
attached to the land, and necessarily goes with the land
Vol.30] SEPTEMBER TERM, 1890. 695
Burr ▼. Lamaster.
iDto the hands of the heir or assigDee.'^ Among the
many decisions sustaining the same proposition^ we cite
Roche V. UUmaUy 104 111., 1 ; Shaty v. Cheatham^ 88 Mo.,
498; Richardson v. Tobey, 121 Mass., 467; Bronson t?.
Coffin et ai., 108 Id., 175; PlaU v. Eggledon, 20 O. St.,
414.
In the case of Sharp v. Cheatham^ supra. Roach & Stitt
and Austin Elliott being the owners respectively of ad-
joining lots in the town of Warrensburg, Mo., on July 7,
1868, entered into a written agreement by which Roach <&
Stitt agreed to erect a party wall on the line between
the two lots, and Elliott agreed that when he should use
said wall he would pay to the other parties one-half of so
much of the wall as he should join to. Subsequently
Roach & Stitt erected a wall along the line between the lots
and six inches on Elliott's lot for ninety feet in length.
Afterwards Elliott erected a building on his lot, using the
party wall. Subsequently Roach & Stitt conveyed their lot
to one Sharp, and shortly thereafter Elliott conveyed his
lot to Cheatham, wtio erected thereon a brick extension of
the building previously erected by Elliott, and joined the
same with the party wall, using thirty feet in length and
sixteen feet in height. Suit was brought to recover from
Cheatham the costs of one-half of the wall used by him.
It was held that the effect of such an agreement was to
create cross-easements as to each owner, and that the one
who purchased the lot with notice would be bound by his
grantor's agreement to pay one-half the cost of the party
wall upon using it.
The question was again before the same court in March,
1886, in the case of Keating v, Kor/hage et a/., reported in
4 Western Rep., 669. It was a suit to enforce the provis-
ions of a party wall agreement, similar to the one in the
case at bar. We quote from the syllabus of that case : "An
agreement made between adjoining owners in relation to a
party wall erected on the division line of their lots is bind-
696 NEBRASKA REPORTS. [Vol. 30
Barr ▼. Lamaster.
ing on the parties and creates an equitable charge, easement,
and servitude upon the lots built upon/^
There are cases holding that a party wall agreement like
the one before us is merely personal, binding alone upon
the parties to it, and does not attach to the land, but the
weight of the decisions in this country is to the effect that
it attaches to and is a charge upon the land.
A case similar in its facts to the one at bar is Maekeg
et al. V. Harmon et cU., 34 Minn., 168. One Hurl hurt
and the defendant Harmon, owning adjoining-lots in Min-
neapolis, entered into a written agreement that Hurlburt
might erect a party wall on the dividing line between the
lots, so that one-half of the wall should stand on each lot,
and that Harmon should have the right to join to and use
the wall by paying one-half of the value of so much
thereof as he should use. The agreement was acknowl-
edged and recorded. Hurlburt erected the party wall ac-
cording to the agreement, and afterwards Harmon conveyed
his lot to the plaintiff Mackey, by a deed containing cove-
nants against incumbrances, and Mackey conveyed one-
half the lot to his co-plaintiff I^egg, which deed contained
like covenants. The plaintiffs in order to use the wall,
paid to Hurlburt $850, being one-half of the value of the
wall used by them. Suit was brought against Harmon on
his covenants against incumbrances. The trial court held
that the party wall agreement did not constitute a 1^1
incumbrance. The case was reversed by the supreme
court. Berry, J., in delivering the opinion of the court,
says: " The easement in the plaintiff's lands in favor of
and appurtenant to Hurlburt's is a right or interest in a
third person in the former to the diminution of its value,
and therefore an incumbrance within the authoritative defi-
nition before given. The existence of the incumbrance
does not depend upon the extent or amount of the dimi-
nution in value. If the right or interest of the third per-
son is such that the owner of the servient estate has not
Vol. 30] SEPTEMBER TERM, 1890. 697
Burr T. Lamaster.
SO complete and absolute an ownership and property in bis
land as be would have if the right or interest spoken of
did not exist, his land is in law diminished in value and
incumbered. It follows that in the case at bar the exist-
ence of the right in plaintiff's land conferred upon and as
appurtenant to Hurlburt's land was an incumbrance, and
that therefore the covenant against incumbrances in Har-
mon's deed to plaintiff Mackey is broken."
The supreme court of Iowa, in Bertram v, Curtis, 31
la., 46, held that where the owner of a vacant lot, on
which rests one-half of a neighbor's wall, conveys the
same with a covenant of warranty against incumbrances,
the existence of such wall is not a breach of the covenant.
This case is not an authority in point. An examination
of the reported case shows that it is based upon a statute
of that state which confers the right to one who is about
to erect a building contiguous to the lot of another, to con-
struct one-half of the wall on his neighbor's lot, and gives
the latter the right to make use of the wall as a party wall
by paying one-half of the expense of constructing the
same. Under such a statute the existence of a party wall
would not be an incumbrance. The covenant is presumed
to have been made with reference to the provisions of the
statute. As we have no law in this state r^ulating party
walls, it is obvious that the decision in Bertram v. Curtis^
is not applicable.
In Mohr v. Parmelee, 43 N. Y. Super. Ct., 320, it was
held that a party wall resting upon the land of adjoining
owners is not an incumbrance. In that case it appears
that the party wall was constructed wholly on one of the
two adjoining lots, with the right granted to the owner of
the other contiguous lot to use the same &s a party wall.
It was held, both in the opinion and syllabus, that such
right constituted an incumbrance upon the lot on which the
wall stood. It is obvious that what is said by the court
about a party wall constructed upon the lots of adjacent
698 NEBRASKA REPORTS. [Vol. 30
Burr T. Lamaster.
owners not being an incumbrauoe, is mere obiter dict<i, and
was not pertinent to any question necessary to be decided
in the proper determination of the case.
In Hendricks v. Starka, 37 N. Y., 106, it was held that
'^a party wall creating a community of interest between
adjoining proprietors is in no just sense to be deemed a
legal incumbrance." That was an action to enforce the
specific performance of a contract for the sale of real
estate. Stark refused to complete his purchase on the
ground that two of the walls of the building on the prem-
ises were party walls, which supported the buildings on
adjoining lots. These walls stood part on the premises
purchased and part on the adjoining lots. It is doubtless
true that a party wall between two buildings owned by
different persons would not constitute a breach of a cove-
nant against incumbrances, for the owners have a com-
munity of interest in the wall, each having the right to
support his building by that part of the wall owned by
the other. It is difficult to see how a purchaser of one of
the buildings and the lot on which it stands could be
damaged by the existence of the party wall, as the ea.se-
ment of support is mutual and reciprocal. But where one
purchases a vacant lot which supports the half of the wall
of the building erected on the adjoining lot, and such
purchaser is, by the terms of a previous party wall agree-
ment, obliged to pay part of the costs of the wall in order
to use it, such agreement and wall is an incumbrance.
The plaintiffs offered to prove at the trial that they did
not know that the wall rested upon any part of lot 8.
This testimony was excluded, and we think properly so.
Whether or not the plaintiffs had such knowledge is imma-
terial to their right of action. A covenant against incum-
brances covers those unknown as well as those known at
the time of the purchase. {Barlow v. McKinley^ 24 la.,
69; McOowea f>. Myers, 60 Id., 256; Bank r. fliff, 48
Ind., 52; Huyok v. Andrews, 113 N. Y., 81 ; Herrick v.
Vol. 30] SEPTEMBER TERM, 1890. 699
Omaha t. Randolph.
Moiyrcy 19 Me., 313; Pridiard v. Atkinson, 3 N. H., 335 ;
Clark V. Estate of Conroe, 38 Vt., 469 ; Kellogg v. Maetiuy
50 Mo., 496 ; Hubbard v. Norton, 10 Conn., 422 ; Parish
V. Whitney, 3 Gray, 51Q; Long v. Moler, 6 O. St., 271.)
The judgment of the district court is reversed and the
cause remanded for further proceedings.
Eeyebsed and bemanded.
The other judges concur.
City op Omaha v. D. F. Randolph.
[Filed Novehbeb 6, 1890.]
Municipal Corporations : Unsafe Streets. The plaintiff,
in driving into the city of Omaha after dark, followed from
Twenty-eighth to Twenty -seventh street a public way that had
been used by the public for years, although it had never been
laid out as a road. The city was at the time grading Twenty-
seventh street and had excavated the same perpendicularly to a
depth of three feet at the intersection of this road, but placed no
barri ers or lights at or near the same. It being dark the plain tiff
was unable to see the condition of the street and his team was
precipitated into the excavation, causing the plaintiff to receive
permanent iiguries. Hetd^ That the city was guilty of negli-
gence.
Error to the district court for Douglas county. Tried
below before Doane, J.
A. J. Poppleton, for plaintiff in error, cited : Ooodwin v
Des Moines, 7 N. W. Rep., 411 ; Beardsley v. Hartford,
50 Conn., 529; Sparhawk v, Salem, 1 Allen [Mass.],
30; Tisdale v. Norton, 8 Met. [Mass.], 388; Zettler v. At-
lanta, 66 Ga., 195; Stark r. Lancaster, 57 N. H., 88;
Cobb V. Standish, 14 Me., 198; 0. <fc iJ. V. E. Co. v. Mar-
tin, 14 Neb., 296.
I 30 099'
I 39 309!
700 NEBRASKA REPORTS. [Voi* 30
Omaha ▼. Randolph.
John W. Lyile, contra^ cited : Palmer v. LincolUy 5 Neb.,
136; 2 Thompson, Negligence, 745, 746, 762, 787; Oant-
well V. Applelon, 37 N. W. Rep., 813; Bumham v. Bog-
ton, 10 Allen [Mass.], 290 ; Goodunn v, Des Moines, 7 N,
W. Rep., 411; Gliddm v. Moore, 14 Neb., 90; WUlard
V. Newberry, 22 Vt, 458 ; BaUy v. Duxbury, 24 Vt,
156 ; Ray v. St. Paul, 42 N. W. Rep. [Minn.], 297 ; Fox-
worthy V. Hastings, 23 Neb., 772 ; Warner v. Holyoke, 112
Mass., 362.
NORVAL, J.
This suit was brought by the defendant in error against
the city of Omaha, in the district court of Douglas county,
to recover for personal injuries. The plaintiiF below ob-
tained a verdict for $1,000.
The defendant in error resides on a farm west of Omaha.
On the evening of October 27, 1886, he drove into the
city with a load of hay, passing down Leavenworth street
to Twenty-eighth street, thence north on Twenty-eighth
street a short distance, where he followed a public road
which angles across a block of ground belonging to the
Catholic society, to Twenty-seventh street In attempting
to reach the latter street from this road, the load of hay
overturned, the wagon was broken, and Randolph received
serious permanent injuries. At the point where the acci-
dent occurred the city was grading Twenty-seventh street,
having excavated the same to the depth of three feet below
the natural surface of the ground. No barricade or signal
lights were placed by the city at or near the junction of this
road with Twenty-seventh street.
The testimony shows that for many years the public had
used this road across the private property, although it had
never been laid out as a street or highway. There is
in the bill of exceptions testimony tending to show that
tliis roadway at its intersection with Twenty-seventh street
Vol. 30] SEPTEMBER TERM, 1890. 701
Omaha v. Randolph.
was not graded down to the street level, but that the street
at that point was excavated perpendicularly to the depth of
at least three feet; that on account of the darkness of the
night Randolph was unable to see the condition of Twenty-
seventh street, and that when his horses reached it they were
precipitated down into the excavation. It also appears that
the plaintiff passed safely over the same road on Friday
prior to the accident with a load of hay. The plaintiff
called several witnesses, who testified that this road was
usually traveled by the public; that Twenty-seventh street
was at the time being excavated by the city, and at the
place the accident occurred it was graded to the depth of
three feet, and that Leavenworth street between Twenty-
seventh and Twenty -eighth streets, on account of its being
graded, was not in a safe condition for travel.
The testimony of a number of defendant's witnesses is to
the effect that this roadway, at the point of intersection with
Twenty-seventh street, had been graded or sloped back from
the street, making a fall of three or four feet in a distance of
twenty-five feet; that this was done by L. J. Leming, who
was then excavating for a cellar for a school house on this
block of ground, in order that his loaded wagons could pass
from this road to the street, and that it was then in such
condition that a team could haul a thousand brick or a yard
of sand or gravel up the embankment. The record discloses
that at the time of the trial the road at the 'point where
the accident occurred was in the same condition as on the
night of October 27, and that the jury viewed the prem-
ises. The verdict of the jury settled the controverted facts
in favor of the plaintiff below, and must be accepted by
us as final.
The defendant city requested the court to give the fol-
lowing instructions :
"First — The jury are instructed that the plaintiff can-
not recover unless the testimony satisfies you that the
plaintiff was free from contributory negligence, and the
702 NEBRASKA REPORTS. [Vou 30
Omaha y. Randolph.
burden of proof is upon the plaintiff to show that he was
free from contributory negligence.
"Third — The city is not bound to maintain approaches
to the streets to or from private property, and when per-
sons seek to enter upon the streets from private property
they take upon themselves the responsibility of knowing
that the entrance way is safe and not dangerous.
"Fourth — If the jury find that Mr. Kandolph was at-
tempting to enter Twenty-seventh street from a roadway
which was upon and across private property, and which
roadway was not one of the public streets of the city of
Omaha, and that Mr. Randolph met with the accident
while so passing over said private roadway, and not while
traveling in and upon a public street of the city, then the
city is not liable in damages and your verdict should be
for the defendant.
" Fifth — The obligation upon the city to keep the streets
in a good condition for travelers passing along the streets,
applies only to the public streets of the city, and does not
apply to approaches to the public street from private road-
ways which are across private property, even though such
private roadways may be used more or less by the public,
and if the jury find that the roadway over which the
plaintiff was passing was such private roadway as distin-.
guished from a public street of the city, and that the plaint-
iff was injured in driving over an embankment into the
street at the side of the street and not from any imperfec-
tion in the street itself, then the city is not liable and your
verdict should be for the defendant."
Each of these requests were refused, and the oourt^
among other things, charged the jury as follows:
"Third — If you believe from the evidence that a road-
way had existed for many years over and across the block
of private ground, which had been much used by the pub-
lic in general as a highway to reach Twenty-seveoth street
from Leavenworth street so that it became known and was
Vol. 30] SEPTEMBER TERM, 1890. 703
Omaha y. Randolph.
used as a common way for travel by those who had occa-
sion to pass between Leavenworth street and Twenty-
seventh street in going to and returning from the business
part of the city, and so as to render it necessary for the city,
in the exercise of due and reasonable care, to provide bar-
riers or signals at the terminus of such roadway at Twenty-
seventh street, where the accident to plaintiff occurred, as
a warning to persons coming or going over said roadway
and to prevent such persons in the exercise of due reason-
able care from falling or driving over the bank made by
excavating Twenty-seventh street in the process of grad-
ing the same, and if you find the city unreasonably and
negligently failed to erect such barrier or to place such sig-
nals, the jury would be justified in finding the city guilty
of negligence, and unless the plaintiff was guilty of some
act of negligence contributing to his injury he would be
entitled to your verdict.
"Fourth — If you find from the evidence that the city
was guilty of negligence under the last instruction, you will
then inquire whether the plaintiff was guilty of any negli-
gence on his part which contributed substantially to pro-
duce the injury complained of. If you find he was guilty
of such contributory negligence, your verdict should be for
the defendant,"
It is urged by the plaintiff in error that the third para-
graph of the charge given by the court does not correctly
state the law of the case and that the requests asked by the
city should have been given. The question raised by the
instructions given and refused is, whether the city was
. guilty of negligence in not placing barriers or danger sig-
nals to prevent persons entering Twenty-seventh street
from this roadway traveled by Randolph. Had the road
in question been a private way, not traveled by the public
generally, then the law expressed in the defendant's re-
quests would have been applicable. The testimony clearly
shows that the road traveled by Randolph was not a pri-
704 NEBRASKA REPORTS, [Vol. 30
Omaha t. Randolph.
vate way, but a highway that had been generally used by
the public for more than ten years. The question is there-
fore fairly presented, whether the city was under any legal
obligation to erect railings^ or to place lights where its
streets are excavated perpendicular, at the intersections of
public traveled roadways, several feet below such roadway.
While a municipal corporation is not required to erect bar-
riers or place danger signals to prevent persons from re-
ceiving injuries in entering its streets by private ways,
yet it is bound to provide such guards or signal lights in
the street at dangerous places to prevent travelers from re-
ceiving injuries in entering such street by a usually trav-
eled public road, although such road was never laid out as
a highway or street. The plaintiff, and others traveling
the road in question, had a right to expect that Twenty-
seventh street was in a safe condition for travel. We are
of the opinion that the city authorities were guilty of neg-
ligence in not placing barriers or lights at or near where
the accident occurred.
The authorities cited in the brief of the plaintiff in error
do not sustain a contrary doctrine. The principal case is
Croodmn v. Des MoineSj 7 N. W., Rep., 411. There the
plaintiff, in following a private way across a vacant lot, fell
down an embankment into the street and was injured. It
was held that the city was not liable.
The case of Omaha & Republican Valley M. Co. e.
Martin, 14 Neb., 296, is not in point. Martin, in follow-
ing an old abandoned road, fell into an excavation made
by the railway company within its right of way and re-
ceived personal injuries. The company had neither
erected barriers to prevent persons from falling into the
excavation, nor constructed a crossing where the railroad
crossed the abandoned track. It was held that the com-
pany was not guilty of n^ligence.
Both of these cases are clearly distinguishable from the
one at bar. The facts are entirely different. In the Iowa
Vol. 30] SEI>TEMBER TERM, 1890. 705
Oberlies v. Willis,
case the plaintiff entered the street by a private way, and
in the Nebraska case the injury was received while follow-
ing an old road that had been abandoned for months.
This case was submitted to the jury upon proper in-
tructious and the judgment of the district court is
Affirmed.
The other judges concur.
George Obbrues v. J. H. Willis,
[Filed Noybmbbb 11, 1890.]
Iieaae: Crop Rent: Sale of Lessee's Shabb. One M. leased
ninety-two acres of land of O. to farm the same on shares, each
to hnve one-half of the crop. M. sowed twenty-two acres in
oats, and ngreed that O. should have eleven acres of com in lien
of one-half of the oats. Seventy acres of the Uind were planted
to com. In May, M. niortga;;ed the oats and left the state.
Boon afterwards O. requested W. to purchase the interest of
Mrs. M. in the com, and cultivate and care for the same, and a
bill of sale was thereupon executed by Mrs. M. to W., which
was witnessed by O., whereby W. purchased the interest of M.
in the com free from the claim of the oats contract, ffdd, Thai
O. had no claim upon W. for eleyen acres of com in lieu of one-
half of the oats.
Error to the district court for Saline county. Tried
below before Morris^ J.
Abbott & Abbott, for plaintiff in error,
Hastings & McOintiej cofnJbrcu
Maxwell, J.
In the spring of 1887 the plaintiff leased to one T. D.
Matthews about 125 acres of land to farm on shares for
45
706 NEBRASKA REPORTS, [Vou 30
Oberlies y. Willis.
that season. Matthews subsequently relinquished a part of
the land^ some thirty acres or more. Matthews wished to
put a part of the land in oats, while Oberlies wanted it
all planted in corn. It was thereupon agreed that plaintiff
should have one-half as many acres of com as there were
acres of oats in lieu of his share of the oats. Matthews
sowed twenty-two acres of oats, and executed a mortgage
thereon, and planted the remainder of the land to corn,
then abandoned the whole and left the state. The testi-
mony shows that the defendant purchased the corn in
question from Mrs. Matthews^ and received from her the
following bill of sale :
''Know all men by these presents, that I, Mary J.
Matthews, of Dorchester, Saline county, Nebraska, party
of the first part, do, for and in consideration of one dollar
an acre bargain, sell, and convey unto John H. Willis, of
the same place, party of the second part, thirty-five acres
of farm land now planted in corn on the following de-
scribed land, on S. E. ^ section 21, town 8, range 3 east, in
Saline county, Nebraska.
" The said Mary J. Matthews, of the first part, hereby
releases all her right, title, and interest in and to the above
described land, subject, nevertheless, to all the conditions
of the contract between George A. Oberlies, the owner of
said land, and T. D. Matthews, the lessee of said land,
(except twenty acres of oats) mentioned in said contract.
"Mary J. Matthews.
"Signed in our presence this 23d day of May, 1887.
"Layton Butin.
" George A. Oberlies."
The testimony clearly shows that after Mr. Matthews
left the state the plaintiff went to the defendant and urged
him to purchase the corn in question from Mrs. Matthews,
and that the twenty acres of oats were excepted. This
contract the plaintiff not only induced the defendant to
enter into, but appeared before the scrivener^ and at the
Vol. 30] SEFIEMBER TERM, 1890. 707
Hilton T. Crooker.
time the bill of sale was drawn and signed, was one of the
witnesses to the same. He no doubt had a motive in this.
It was necessary that the corn should be cultivated and
kept free from weeds in order that the crop might be
raised. The defendant seems to have possessed plenty of
horses and was able to care for and cultivate the com.
This, no doubt, was the motive which induced the plaintiff
to desire him to purchase the interest of Mr. Matthews
from Mrs. Matthews. He did not purchase the same,
however, subject to the contract for the oats; that contract
was specially excepted.
The judgment of the district court is right and is
Affirmed.
The other judges concur.
6. H. Hilton et al., appellants, v. J. C. Crooker
[Filed November 11, 1890.]
1. Deeds : Reformation. On the testimony before the oonrt, held^
that ft deed set forth in the record wonld be reformed so as to
exclnde forty acres of land described in the opinion.
2. Assignment: A Contract for Professional Services— as
that of an attorney — is personal and confidential and cannot be
assigned to another without the assent of the client and in case
of such assignment without assent, the client may; declare the
contract at an end and recover certain lands conveyed as a con-
ditional fee, for the proeecntion of the action — money expended
in the proaecation of the action, however, to be refunded.
Appeal from the district court for Lancaster county.
Heard below before Field, J.
80 707]
48 480
708 NEBRASKA REPORTS. [Vol. 30
Hilton Y. Crooker.
William Leese, and Geoi^ge H, Hilton^ for appellanU,
cited on the point that the contract was personal and could
not be assigned :• Rapalje & Lawrence^ L. D., p. 282;
Chitty, Contracts, 671.
John 8, Gregory, contra.
Maxwell, J.
This action is brought to obtain the following relief:
''And upon final hearing of this case, the plaintiffs may
be granted the following relief, to-wit : That the agreement
aforesaid between plaintiffs and defendants Crooker and
Gregory may be declared a personal and binding agree-
ment, as before stated, between all the parties thereto, and
the obligations and deeds made under it not assignable or
transferable, but a breach of the same, and that the breach
as stated herein may be so declared, as also the neglect and
abandonment of the .prosecution of the suits by thom, and
failure of consideration for both deeds and agreement, and
that the agreeement and deeds made by plaintiffs tuider it
may be declared conditional, inoperative, null, and void^aln)
the deed made to M cMurtry may be so declared and decreed,
and a decree entered accordingly, or if the above relief is
not granted, that the deeds made to Crooker and also the
deed made by him to McMurtry may be so reformed as to
correct the mistake or error in including therein the whole
of the south half of section 11, town 9 north, range 6 east,
and that the northeast quarter of the southeast quarter of
said section 11, town 9 north, range 6 east, and undivided
one-third of south half northwest quarter of section 14,
and southeast quarter of northeast quarter of section 15,
both in town 10, range 6, may be excluded from said deeds
as included by mistake, and the title declared to be in each
of the plaintiffs as to the first tract, each holding an undi-
vided one-third of said land, and a decree made accord-
Vol. 30] SEPTEMBER TERM, 1890. 709
Hilton v. Crooker.
ingly, and such other and different relief as equity may
require, and judgment rendered against defendants in favor
of plaintiffs for costs of suit."
On the trial of the cause the court found the issues in
favor of the defendants and dismissed the action.
The following agreement and conveyances are set forth
in the record. "Exhibit A" is as follows:
"Agreement made this 10th day of January, A. D. 1885
between Jabez C. Crooker, of the first part, John S. Gr^-
ory, attorney, of the second part, and George H. Hilton,
James F. Hilton, and Joseph B. Hilton, of the third part,
as follows: That for and in consideration of certain deeds
of conveyance to be executed by James F. Hilton, Joseph
B. Hilton, Alice Duchanne, Nora M. Lincoln, Augusta
Hilton, and George H. Hilton, and delivered unto Jabez
C. Crooker, within twenty days from the date hereof, the
said Jabez C. Crooker agrees to advance the necessary
money required in the prosecution of the suits hereinafter
mentioned, and furnish good and satisfactory bond and se-
curity for costs, and said Jabez C. Crooker will pay the
required attorney fees to the party of the second part, in
addition to the purchase price paid and stipulated in said
deeds.
" In consideration whereof the party of the second part
agree to accept said party of the first part in payment of
all his fees and perquisites; and further agrees to and
with the party of the third part that he will carry on to a
final determination, both in the circuit court of the United
States for the district of Nebraska and in the supreme
court of the United States, if the same shall become nec-
essary in the actions of the said parties of the third part,
or each, or any of them for the purpose of recovering title
and possession to the lands in the said deed described, and
quieting the title thereto unto the said party of the third
part in all respects, except for tax liens (it being under-
stood that all parties hereto shall be severally liable for
710 NEBRASKA REPORTS. [Vol. 30
Hilton ▼. Crooker.
the tax or tax liens therefor in proportion to their several
interests in said lands), and said party of the second part
shall have and take full and entire control and manage-
ment of said causes, and shall give his full and careful at-
tention personally thereunto, until the final determination
of said causes, and without any other or further considera-
tion than that hereinbefore stated.
"In case of the death, sickness, or inability of the party
of the second part at any time during the progress of the
proceedings brought and carried on as herein mentioned,
so that he shall be unable to personally attend at the courts
in said cause or causes when at all times the same shall be
necessary, then and in that case said party of the first part
agrees to employ a competent and sufficient satisfactory at-
torney as his substitute, and in his stead, and shall be at the
expense of payment of such services. It is further mutu-
ally agreed that the consideration for which this contract is
made is the deeds herein mentioned conveying said land to
said Jabez C. Crooker in the proportion stated in said
deeds, which are hereby taken and receipted as the full
payment for the fulfillment of this contract upon their
part. It is mutually agreed that no compromise of the
controversies in question shall be made, except upon the
agreement of all the parties in interest herein.
"If the costs paid and advanced by the party of the
first part shall be recovered from the defendants in said
actions, said party of the first part shall be entitled to re-
cover the amount he may have advanced. And if a com-
promise is made on all or any of the property herein con-
veyed before the decree of the courts therein upon the
merits of the case, then and in that case the party of the
first part agrees to accept one-sixth of the land or of the
sum obtained in such compromise which shall be taken
and accepted as his share of the proceeds thereof upon
deed executed to the proper one. Also that the said attor-
neys are to prosecute the suits with all necessary dispatch
and no unnecessary delay.
Vol. 30] SEPTEMBER TERM, 1890. 711
Hilton T. Crooker.
"In witness whereof, the parties to this agreement set
their hands this day above written.
"John 8. Gregory.
"J. C. Crooker."
Exhibit D is as follows:
"To J. S. Gregory and J. C. Crooker, attorneys for J.
F. and J. B. Hilton in their ease against J. E. Jones ei
ai,y in circuit court United States, district Nebra.ska : I am
authorized by the above complainants to give you notice
that they hereby require you to proceed to have the record
made in the above case, and have the appeal granted in
their said cause, now nearly two months ago, to be duly
filed in the supreme court United States, without any
further or unnecessary delay, as you are bound to do by
written agreement, so that said case may be docketed in
said supreme court by the rules, in order that the case may
be ready for hearing at the next term of said court, if
agreed to, or as soon thereafter as possible.
"Lincoln, Neb., 9 August, 1887.
"J. F. AND J. B. Hilton,
"ByG. H.Hilton.*'
"Exhibit C" is as follows:
"Know all men by these presents, that James F. Hilton
and Joseph B. Hilton, of Cook county, Illinois, for and in
consideration of one dollar in hand paid by Jabez C.
Crooker, and the further consideration of an agreement
made and executed by Jabez C. Crooker and John S. Gr^-
ory, bearing date the 10th day of January, 1885, they do
hereby sell and convey and quitclaim unto Jabez C.
Crooker, of Lincoln, Nebraska, and to his heirs and as-
signs, forever, the following described real estate, to-wit:
"The undivided ^ part, title^ and interest in and to the
S. i of N. W. i of sec. 14 and 8. E. \ of N. E. \ of sec.
15, all in town 10, range 6 and S. \ sec. 2, and S. i of sec
11, and W. i of N. E. \ sec. 11, and 8. W. \ of N. W. \
and N. W. i of 8. W. J sec. 14, and N. E. \ of 8. E. J
712 NEBRASKA REPORTS. [Vol. 30
Hilton T. Crooker.
sec. 15, all in town 9, range 6; and N. E. J of see. 6, and
E. i of N. W. i and N. E. J of S. W. i sec. 6, and N.
W. i sec. 18, and S. E. i of N. W. i of E, J S. W. J
and S. W. i of S. E. i sec. 19, and W. J of N. E. J and
S. E. i of N. E. i sec. 29, and W. J of S. E. J and S.
W. i of N. E. i sec. 80, and S. E. i of S. E. J sec. 33,
and S. W. J of S. W. i sec. 34, all in town 8, range 7 ;
and N. W. i of N. W. i sec. 3, and N. E. } sec. 4, all in
town 7, range 7; all in Lancaster county, Nebraska.
Subject to said agreement above referred to.
"Signed this 2l8t day of January, A. D. 1885.
"Joseph B. Hilton.
"Clara J. Hiltojt.
"James F. Hilton.
" In presence of
"S. W. King."
" Exhibit B" is as follows : \
"quitclaim deed. I
"George H. Hilton to Jabez C. (looker. \
" Recorded Jau'y 23, 1888, at 9 A. M. j
" Jno. D. Knight,
"Register of Deeds.
" Fees, $1 . T. M, Cook, Dep.
"Know all men by these presents, that Greorge H.
Hilton of Hamilton Co., and state of Ohio, for and in
consideration of five dollars to him in hand paid by Jabes
C. C'rooker and the further consideration of an agreement '
made and executed by Jabez C. Crooker and John 8.
Gregory, bearing date the 10th day of January, 1885, does
hereliy sell, convey, and quitclaim unto Jabez C. Crooker
and to his heirs and assigns, forever, the following de-
scribed real estate situate, in Lancaster county, Nebraska,
and described as follows, to-wit:
"One undivided ^ part, title, and interest in and to the
S. i of N. W. i sec. 14, and S. E. J of N. E. J sec, 15,
Vol. 30] SEPTEMBER TERM, 1890. 713
Hilton T. Crooker.
all in town 10, range 6; and S. i of sec 2, and S. ^ of
and W. J of N. E. i of sec. 11, and S. W. i of N. W. i
and N. W. i of S. W. J of sec. 14, and N. E. i of S. E.
^ of sec. 15, all in town 9, range 6 ; and N. E. ^ sec. 6,
and E. ^ of N. W. J and N. E. i of 8. W. J sec. 6, and
N. W. i of 8. E. i of sec. 19, and W. J of N. E. i and
8. E. J of N. E. i of sec. 29, and W. J of 8. E. J and
8. W. J of N. E. J sec. 30, and 8. E. J of 8. E. J of sec.
33, and 8. W. J of 8. W. i sec. 34, all in town 8, range 7 ;
and N. W. i of N. W. i sec. 3, and N. E. i of N. E. J
of sec 4, all in town 7, range 7, in said Lancaster county,
Nebraska. Subject to above contract.
"Signed this 13th day of January, 1885.
"George H. Hilton.
"In presence of witness:
"W.W.Dunham.
" The State op Nebraska, 1
Lancaster County. j *
"On this 13th day of January, 1885, before me, W.
W. Dunham, a justice of the peace duly appointed and
qualified for and residing in said county, personally came
George H. Hilton, to me known to be the identical person
described in and who executed the forgoing conveyance
as grantor, and he acknowledged the said instrument to be
his voluntary act and deed.
"Witness my hand and notarial seal the day and year
above written. W. W. Dunham,
" Justice of the Pe<ice,"
Also the following:
"Know all men by these presents, that Jabez C. Crooker
and 8arah B., his wife, of Lancaster county, Nebraska, for
and in consideration of one dollar, and other good and
valid consideration, in hand paid by James H. McMurtry,
of Lancaster county, Nebraska, the receipt whereof is
hereby acknowledged and confessed, they do hereby sell,
convey, and transfer unto oaid James H. McMurtry, and
714 NEBRASKA REPORTS. [Vol. 30
Hilton T. Crooker.
to his heirs and assigns^ forever, the following described
real estate, to-wit:
''All their right, title, and interest in and to the undi-
vided ^ part of the S. J of N. W. J of see. 14, town 10,
range 6; and S. £. i of N. E. ^ sec 16, town 10, range
6; also S. } of sec. 2, and S. ^ of sec. 11, and W. i of N.
E. J of sec. 11, and S. W. i of N. W. i and N. W. i of
S. W. J of sec. 14, and N. E. J of S. E. J of sec. 15, all
in town 9, range 6 ; and N. E. J sec. 6, and E. J of N.
W. i, and N. E. i of S. W. i sec. 6, and N. W. i sec. 18,
and S. E. J of N. W. i, and E. J of S. W. J, and S.
W. i of S. E. t sec. 19, and west half of N. E. i, and S.
E. J of N. E. i of sec. 29, and W. J of S. E. i of S. W.
J of N. E. J sec. 30, and S. E. J of S. E. i sec. 33, and
S. W. i of S. W. J sec. 34, all in town 8, range 7; and
N. W. i of N. W. i of sec. 3, and N. E. i of sec. 4, all
in town 7, range 7; all in Lancaster county, and state of 1
Nebraska; meaning and intending by this indenture to
convey to said James H. McMurtry all our right and title
to the above described premises under and by virtue of all
deeds and conveyances to Jabez C. Crooker, by Joseph H.
Hilton, Clara J. Hilton, James F. Hilton, George H. Hil-
ton, Augusta Hilton, John Hilton, and Alice B. Duchanne
or others.
''And the said Crooker covenants to warrant and de-
fend the aforesaid covenants by him made against any and
all acts heretofore made by him. And the said Sarah B.
Crooker hereby relinquishes her right of dower in and to
the foregoing described lands.
"Signed this 27th day of September, 1887.
"Jabez C. Crooker.
"Sarah B. Crooker.
"In presence of
"John S. Gregory.
"J. H. Brown."
"The condition of the following obligation is such, that
Vol. 30] SEPTEMBER TERM, 1890. 715
Hilton T. Crooker.
whereas, J. C, Crooker, of the city of Lincoln, in the
county of Lancaster, and state of Nebraska, has this day
sold, transferred, and conveyed by deed to the full satis-
faction of James H. McMurtry, of the city of Lincoln, in
the county of Lancaster, and state of Nebraska, all his
right, title, and interest in and to certain lands claimed by
George H. Hilton and others, for the recovery of which
suits have been brought or are now pending in the United
States circuit court, and in the state courts of Nebraska,
wherein the said Jabez C. Crooker became surety for costs;
and whereas, a certain contract was made and entered
into by the said Jabez C. Crooker, and all and each of the
Hiltons in said contract mentioned, to prosecute said suits
to final determination in the courts for a contingent fee, as
in the said mentioned contract of the value of all property
recovered in said suits and prosecutions as is fully stated in
said contract referred to with said Hiltons as aforesaid;
and whereas, the said Jabez C. Crooker, in consideration
of the sum of $100 to him in hand paid by the said James
H. McMurtry to his full satisfaction, has conveyed by quit-
claim deed to the aforesaid lands by an assignment of the
contract aforesaid, with the said Hiltons, unto the said
James H. McMurtry :
"Now, therefore, in consideration of the assignment of
said contract, and the quitclaim deed of his interest in the
Hilton lands by the said Jabez C. Crooker to the said
James H. McMurtry, hereby binds and obligates his heirs,
executors, and administrators, each and all of them, in the
penal sum of $3,000, well and truly to be paid unto the
said Jabez C. Crooker, his heirs, executors, and assigns,
that he, the said James H. McMurtry, will save the said
Jabez C. Crooker harmless, as aforesaid, from all costs that
have heretofore accrued in the suits and proceedings here-
inbefore referred to, and all damages and expenses that he,
the said Jabez C. Crooker, may be liable for by reason of
his having given his personal security in the suits and pro-
716 NEBRASKA REPORTS. [Vol. 30
Hilton y. Crooker.
ceedings as required by the orders of the courts wherein
the same are pending and brought^ in the name of the said
Hiltons^ or tliat may hereafter arise in the prosecution of
said suits and causes of action. The meaning and intent
of this obligation is such, that if the said James H. Mc-
Murtry, his executors, administrators, or heirs, shall save
and indemnify the said Jabez C. Crooker, his heirs, execu-
tors, or administrators, from any and all costs in any way
that have arisen or may arise from the litigation above
referred to, then this obligation to be and become null and
void, otherwise to be and remain in full force and virtue.
** Witness my hand this 27th day of September, A. D.
1887. "J. H. McMuRTEY.
"Witness: •
"J. S. Gregory.
It is admitted that the northeast quarter of the south-
east quarter of section 11, town 9 north, range 6 east, was
included by mistake in the deeds from the Hiltons. This
being the case the deed conveying said land will be re-
formed so as to exclude it.
The second objection is, that the contract between Hil-
ton et al. and Gregory and Crooker was personal in its
nature, requiring the service of those parties, and therefore
was not assignable. We are of the opinion that the con-
tracts set forth in the record were of a confidential nature,
the services to be performed by the parties who had
undertaken to perform them, and said contract was not
assignable. A party selects a lawyer, doctor, or member
of one of the other professions, because he has confidence in
his skill and ability to perform the duties which he under-
takes. These duties imply trust and confidence, and the
employe cannot shift the duties onto another person with-
out the consent of the employer. The proof in this case
wholly fails to show such assent. The rule in such case
is stated in Pomeroy's Equity Jurisprudence as follows :
*^ Where a person has entered into a contract involving a
Vol. 30] SEPTEMBER TERM, 1890. 717
Hilton V. Crooker.
personal trust or confidence in himself, and stipulating to
use his own personal skilly knowledge^ etc., he cannot,
while the agreement is still executory, by assignment sub-
stitute another in his place in order to perform the service
without the consent of the other contracting party." After
th^ contract has been executed by himself he can assign
the right to recover compensation. {Flanders v. Lam-
phear, 9 N. H., 201 ; Bethlehem v. Annia, 40 Id., 34, 40 ;
Burger V, Rice, 3 Ind., 125; Landsen v, McCarthy, 45
Mo., 106 ; iSlevena v. Benning, 6 De G., M. & G., 223.)
The contract is joint on the part of the defendants, and
there has been a practical abandonment thereof. The
plaintiffs, therefore, are entitled to a reconveyance of the
property upon refunding the amount which these parties
and McMurtry have paid as costs in the federal courts.
This amount they are equitably entitled to receive, and as
we cannot determine from the record the amount due, a
reference will be ordered to take testimony and find and
state the amount of legitimate costs paid by any of the
parties in the case.
There is some claim that the plaintiff was exceedingly
officious in the case, and there is scrme testimony tend-
ing to show that such was the fiict. It must not be for-
gotten, however, that he deemed his interests of vital
importance, and in his anxiety to protect them perhaps
rendered more service than the necessity of the case re-
quired. We are not called upon to determine this matter,
but it seems to be stated as a palliation or justification of
the defendants.
The judgment of the district court is reversed, the deed
including the forty acres of land, described in the opinion,
will be reformed so as to exclude said land. The case will
be referred to Samuel J. Tultle, Esq., to take testimony
and find the facts as above required, and report the same
to this court within thirty days from this date, and upon
the payment of the sum so found due, with interest thereon^
718 NEBRASKA REPORTS. [Vol. 30
DickexBon v. Mecbling.
within a reasonable time, to be fixed by the court, said land
will be reconveyed to plaintiffs by a deed of the same
nature as that by which the land was conveyed to them.
Decbee agoobpinqlt.
The otlier judges concur.
E. J. Dickerson v. Mabia MECHUifro.
[Filed Noyembeb 11, 1690.]
Appeal : District Goubt: Dismissal. Jadgment was rendered
by a joatioe of the peace on the 7th day of Aogusti 1889, from
which the plaintiff, on the same day, appealed to the district
court and filed a transcript therein. On the 19th of that month
the plaintiff filed a petition. No pleadings were filed by the
defendant, and on the 17th of October, 1889, the eanse was con-
tinued. Afterwards, on the same day, the oontinuaDce was
set aside and the appeal dismissed on the motion of the defend-
ant—the defendant at the time being in default of an answer.
ffeld. That the appeal was properly taken, and the court erred
in dismissing it.
I
I
Errob to the district court for Gage county. Tried |
below before Appelget, J, !
i
Winter & Kauffman, for plaintiff in error,
y. D. Cobbey, contra.
Maxwell, J.
This action was originally brought before a justice of the
peace, and judgment rendered on the 7th day of August,
1889. The plaintiff appealed from the judgment, and on
the 7th day of August, 1889, filed his transcript in tlie
district court.
Vou 30] SEPTEMBER TERM, 1890.
719
Bohn Uig. Go. t. Kountze.
On the 19th day of August, 1889, the plaintiff filed a
petition in the case. No answer was filed by the defend-
ant, and on the 17th of October, 1889, the cause was con-
tinued. Afterwards, and on the same day, the court set
aside the continuance and dismissed the appeal on the
motion of the defendant A motion was afterwards filed
to reinstate the appeal, which motion was overruled.
The question presented to this court is. Did the court err
in dismissing the appeal? The undertaking seems to have
been filed within the statutory period, and the transcript
and petition properly filed in tiie district court, and the
case, so far as this record discloses, was properly in that
court. No written motion was filed in the'case; at least
none is preserved in the record assigning any reason
why the appeal should be dismissed. So far as appears it
was an arbitrary exercise of power by the court, which we
cannot approve.
The judgment of the district court is reversed, the ap-
peal reinstated, and the cause remanded for further pro-
ceedings.
Revebsed and remanded.
The other judges concur.
Bohn Manufacturing Co. et al., appetxants, v.
Herman Kountze et al., appellees.
[Filed November 11, 1890.]
Mechanic's Lien: Supebiob to That of Vsndob. In a con-
tract for the sale of land, it was stipulated that the purchaser
should erect a dwelling upon the premises within a stated time.
The building was erected, but the labor performed and material
furnished were not fully paid for. Held, In an action to fore-
30
m^
TT
-TIP
srr
30
710
38
607
38
6M>
88
003
39
411
3d
497
80
710
40
581
30
719
40
489
40
686
53
474
720 NEBRASKA REPORTS. [Vol. 30
Bobn Mfg. Co. v. Kountze.
close a mechanic's lien, that the liens of the mechanic and ma-
terial-man have priority over the lien of the vendor for unpaid
purchase monej.
Appeal from the district court for Douglas coHuty,
Heard below before Doane, J.
B. G. Burbanky and A. C, Troup, for appellants, cited :
Henderson V. ConneUy, 123 111., 98; HiU v. GiU, 42 K W.
JElep. [Minn.], 294; Hilton v. MerriU, 106 Mass., 528, and
cases cited, Pauken v. Manske,. IS N. E. Rep., 276 ; Savoy
V. Jonesy 2 Rawle [Pa.], 343; Biekel v. James, 7 Watts
[Pa.], 9; Woodward v. Leiby, 36 Pa. St., 437; RoUin v.
Gross, 45 K Y., 768; HaokeU v. Badeau, 63 Id., 476;
Justice V. Parker, 12 N. W. Rep., 553; Keller v. Denmead,
68 Pa, St., 449; Botsford v. R. Co., 41 Conn., 464; Seitz
V. R. Co,, 16 Kan., 133; Atkins v. lAtOe, 17 Minn., 320 ;
Hunt V. Jolinson, 19 N. Y., 279; Parkist v. Alexander,
1 Johns. Ch. [N. Y.], 394; N. 8. Ins. Co. v. Shriver, 3
Md. Ch. Dec., 381; 2 White & Tudor, Lead. Cas. Eq.
[4th Am. Ed.], part 1, 204 ; Bank of Greensboro v. Clapp,
76 N. Car., 482 ; Monroe v. West, 12 la., 121 ; Jones, Mort.,
sees. 364, 375, 469, 576; Piatt v. Griffith, 27 N. J. Eq.,
207; Moroney's App., 24 Pa. St., 372; Taylor v. La Bar,
26 N. J. Eq., 222 ; Macintosh v. Thurston, Id., 242.
Oongdon, Clarkson & Hunt, contra, cited : Neil v. Mc-
Kinney, 11 O. St., 58; Logan v. Taylor, 20 la., 297;
Cochran v. Wimberly, 44 Mi.ss., «503; Zeigler^s Ap., 69 Pa.
St., 471 ; Hickox v. Greenwood, 94 111., 266 ; Milh r. J///-
bum, 7 Md., 315; Kiiiie v. Lexcis, 1 Ashm. [Pa.], 31;
Brooks V. Lester, 36 Md., 65; Walker v. Burt, 57 Ga., 20;
Holmes v. Fei^guson, 1 Or., 220 ; Gillespie v. Bradford, 7
Yerger [Tenn.], 1 68 ; Scales v. Griffin, 2 Doug. [Mich.], 54 ;
Burbridge v. Marcy, 54 How. Pr. [N. Y.], 446; Knapp
V, Brown, 45 N. Y., 207 ; Pliillips, Mechanics' Liens, t^ecs.
71, 73, 88, 89, 243, 244, 245, 246, pp. 130, 131; Oliver
Vol. 30] SEPTEMBER TERM, 1890. 721
Bobn Mfg. Co. y. Kountze.
V. Daoijy 34 Minn.y 292; Orr v. BaUer^son^ 14 B. Mom
[Ky.], 100 ; Millard v. West, 50 la., 616 ; Thaxta^ v. WiU-
iams, 14 Pick. [Mass.], 53; Rees v. Ludington, 13 Wis.^
308; Jessup v. Stone, Id., 521; Perkins v. Davis, 120
Mass., 408; Guy v. Carriere, 5 Cal., 511 ; Campbells App,,
36 Pa. St., 247; Stoner v. Neff, 50 Id., 258; Ansley v.
Pasahro, 22 Neb., 962 ; McOinniss r. Purrington, 43 Conn.,
143; Callaway V. Freeman, 29 Ga., 408; Seitz v. R. Co.,
16 Kan., 133; Trustees v. Young, 2 Duv. [Ky.], 582;
Francis v. Sayles, 101 Mass., 435; Conant v. Brackett, 112
Id., 18; McCarty v. Carter, 49 111., 53; Leissmann v.
Lovely, 45 Wis., 420; Lauer r, Bandow, 43 Id., 556;
Dutro V, Wilson, 4 O. St., 101 ; Johnson v, Dewey, b6 Cal.,
623; ilcClintock v. Orisirell, 67 Pa., 183; Hervcy v. Gay,
42 N, J., 168; Oraig v. Smnnerton, 8 Hun [N. Y.], 144;
Nat' I Bk. Metropolis v. Sprague, 20 N. J. Eq., 13; Wilk-
ersoh v. Rust, 57 Ind., 172; Muldoon v. PiU, 54 N. Y.,
269.
NORVAL, J.
The Bohn Manufacturing Company brought suit in the
district court of Douglas county to foreclose a mechanic's
lien upon certain premises in the city of Omaha. Herman
Kountze, the owner of the fee, Z. B. Berlin, the equitable
owner in possession under a contract of purchase with
Kountze, and various mechanic lien holders were made
defendants. Afterwards Kobert G. King was made a
party defendant.
On the 7th day of September, 1887, the defendant Her-
man Kountze, being the owner of lot 4, block 15, Kountze
Place, city of Omaha, contracted in writing to convey by
warranty deed said lot to the defendant Z. B. Berlin, in
case Berlin should perform his part of the contract. The
contract price was $2,500. The purchaser paid $100 cash
down, and agreed to pay $100 January 7, 1888; $50 Sep-
46
722 NEBRASKA REPORTS. [Vol. 30
Bohn U^, Co. y. Kountse.
tember 7^ 1888, and $50 on the first day of each month
thereafter, until the whole sum was paid. All deferred
payments were to bear eight per cent interest from date of
«ale. The contract contained among others this provision:
''And it is hereby expressly understood and agreed, and is
a part of the consideration for the sale of said lot to said
Z, B. Berlin, that the said Z. B. Berlin agrees and binds
himself, his heirs, executors, or assigns, to build, or cause
to be built, on said lot a good substantial new dwelling
house, costing not less than twenty -five hundred dollars,
and if more than one dwelling is erected on said lot, then
-each such dwelling shall cost not less than twenty-five
hundred dollars, exclusive of all the other improvements
that may be put on said lot, such house or houses to be
built on good substantial brick or stone foundations. The
«aid dwelling shall be commenced within eight months
from the date hereof, and be fully completed within twelve
months from the date hereof, time being of the essence of
this contract, and the improvements provided for being a
part of the consideration to be paid for said lot. There-
fore, should said Z. B. Berlin for any reason fail or neglect
to build such building as herein provided for, and within
the time specified, then, at the option of said first party,
and for the reason that said improvements have not been
made as stipulated, this contract may be declared forfeited
by said first party, with all the penalties herein provided
for."
The contract also contained this stipulation: '^And said
party of the first part shall have the right, immediately
upon the failure on the part of the second party to comply
with the stipulations of the contract, or any part thereof,
to enter upon the land aforesaid, and take immediate pos-
■session thereof without process of law, together with the
improvements and appurtenances thereunto belonging."
Upon the back of the contract was indorsed this memo-
i*andum, which was duly signed and witnessed :
Vol. 30] SEPTEMBER TERM, 1890. 723
Bohn Ufg. Go. v. Konntze.
'' It is hereby understood and agreed that, if so requested
by the within named Z. B. Berlin, the within named H.
Kountze shall advance to the within named Z. B. Berlin
any sum of money desired, not exceeding twenty-two
hundred dollars, said money so advanced to be used in
paying for workmanship and material for building the
house within required to be built. Said money so to be
advan<^ shall be placed in the First National Bank of
Omaha, subject to check at the date when said Kountze is
notified that work will commence on said building. But
nothing herein shall be construed to mean that any money
shall be advanced unless work is commenced on said build-
ing within the time fixed by the within agreement for the
commencement of work on said building.
''And the money so deposited shall be paid on checks of
the said Z. B. Berlin, accompanied by the estimates of the
architect actually in charge of said building, and not to
exceed 80 per cent of the amount due for work done and ma-
terial actually furnished shall be paid on any estimate, and
the remaining 20 per cent shall not be paid until the
building is fully completed, and not then until ninety days
have first elapsed and proper proof is furnished that the
building is clear of mechanic and other liens.
''All checks for the payment of money must bear the
countersign of Herman Kountze before the same shall be
paid by said bank, and duplicates of all contracts, bonds,
and vouchers shall be filed with the said Herman Kountze.
"No contract for work shall be let to irresponsible par-
ties, and all contractors shall furnish good and sufficient
security, in adequate amounts, for the faithful performance
of their contracts, and that no mec^hanic or other liens will
be allowed to go on said property, and that said property
shall be clear of all liens or claims by reason of improve-
ments put upon the same.
"At the option of said Kountze, party of the first part,
this contract shall be surrendered to him when the money
724 NEBRASKA REPORTS. [Vol. 30
Bohn Mfg. Co. t. Kountze.
for the building is advanced, and a new contract entered
into, and the consideration therein named to be the amount
of money advanced by him and the balance then unpaid
on the lot herein referred to; and if no new contract is
executed, then all money advanced by said Kountze on
this contract, to be used in building, shall be considered as
part of the purchase money for said property."
On April 24, 1888, Kountze placed with the First Na-
tional Bjnk of Omaha, to the credit of Berlin, $2,200 to
be used in building the house provided for in the contract,
and on June 7, 1888, for a like purpose, the further sum
of $225 was deposited by him in said bank. Peterson &
Co. contracted with Berlin to put up the building for
$2,944. The house was erected, the extras on the job
amounting to $249. The other lien holders were sub-
contractors. The moneys placed in the bank were paid
out for labor and materials on the architect's estimates by * i
the checks of Berlin, countersigned by Kountze. '
The decree of the district court gave Kountze a first
lien for $5,009.72, the same being the unpaid purchase |
price, and the $2,200 first advanced for the construction |
of the house, with interest on the amounts. The mechanic !
lien holders were given liens for the amounts due them
respectively, but junior to the above Hen of Kounize for
$5,009.72. Kountze was also given a lien for the amount |
of his second advancement, which was made junior to all |
other liens. I
The case is here on appeal from that part of the decree j
giving Kountze the prior lien.
• Section 1 of the mechanic's lien law provides that "Any
persons who shall perform any labor or furnish any mate-
rial or machinery or fixtures for the erection, reparation,
or removal of any house, mill, manufactory, or building
or appurtenance by virtue of a contract or agreement, ex-
pressed or implied, with the owner thereof or his agents,
shall have a lien to secure the payment of the same n|K)n
Vol. 30] SEPTEMBER TERM, 1890. 725
Bobn Utjg, Co. y. Koantze.
such hoiise^ mill, manufactory^ building, or appurtenance^
and the lot of land upon which the same shall stand/'
The word ''owner/' as used in this section, is not limited
in its meaning to the one who holds the legal title, but em-
braces the equitable owner as well. Ordinarily the lien of
the mechanic attaches only to the interest of the one who
causes the improvement to be made. The correct rule,
doubtless, is where one holding land under a contract of
])urchase causes a building to be erected thereon, and the
contract of sale contains no provision for the erection of a
building, that the mechanic's lien is confined to the inter-
est of the purchaser in the premises^ and is subordinate to
that of the vendor of the land for unpaid purchase money.
It is insisted by the ap])ellants that when the contract of
sale of real estate stipulates that the purchaser shall erect
on the land a building within a specified time, the me-
chanic who performs the labor or furnishes the material
for the making of the improvement is entitled to a lien
against the interest of the vendor in the premises as well
as that of the vendee.
The contract of sale in the case at bar not only author-
ized but made it obligatory upon the purchaser to erect a
dwelling on the premises, of a certain value, within a fixed
time. Further than that^ Kountze stipulated to furnish
not to exceed $2,200 towards the erection of the building.
The proof shows that Kountze advanced that amount, and
more, and that he approved theex|)enditure of the money.
This is additional proof of the authority of the vendee to
contract for the erection of the house. Kountze having in
the contract of sale authorized his vendee to make the im-
provements, and in pursuance of that authority Berlin
procured the labor to be performed and the materials to be
furnished, the vendor thereby subjected his lien for the
unpaid purchase money to the liens that might be acquired
by the laborer and material-man for making the improve-
ment. Where a vendee, owning tlie equitable title, con-
726 NEBRASKA REPORTS. [Vol. 30
Bohn Mig. Co. v. Koantao.
tracts for the erection of a building upon the express
authority of the owner of the legal title, it is but just that
the lien of the meclianic should attach to the interest of
both vendor and vendee in the premises, and be paramount
to the lien of the vendor. And this rule does not in any
manner contravene any statutory provision.
If any authority is necessary to support this construc-
tion it is not wanting. The case of Henderson v. Connelly^
123 111., 98, is similar in its facts to the one at bar. C»
M. & W, S. Henderson sold certain real estate to one
Sharp for $2,150. Part of the consideration was paid
down and the balance was to be paid in monthly payments.
The contract of sale contained this clause: "And said Hen-
derson agrees that when said Sharp shall have expended
$326 in the erection of a suitable dwelling house upon
said premises, they will advance liim, as the progreas of
the building justifies, in their opinion, the further sum of
$875, to aid in the completion thereof." J. G. Sharp, the
vendee, subsequently employed Connelly to do the exca-
vating, stone, and brick work and plastering for a house
he proposed to erect on the premises. Connelly performed
the labor and furnished the materials according to his con-
tract, amounting to $465.58, and filed his lien for the
same. The Hendersons, during the progress of the work,
advanced Sharp $700. Sharp having failed to make his
payments to the Hendersons, the latter took possession of
the property and completed the house. Connelly brought
suit to enforce a lien for labor and materials furnished
under the contract with Sharp. Mr. Justice Craig, in de-
livering the opinion of the court, says: "The only reason-
able and fair construction to be placed on this clause of the
contract is, that the purchaser was authorized and empow-
ered by the vendors to enter into contracts with builders
to furnish material and erect a building on the premises to
which they held the l^al title. If, thei'efore, the Hender-
sons authorized and empowered Sharp, the purchaser, to
Vol. 30] SEPTEMBER TERM, 1890. 727
Bohn Mfg. Co. y. Kountze.
cause a building to be erected on the property while the
legal title was in them, upon what ground can they now,
after the labor has been expended and materials furnished,
claim that the mechanic who furnished the labor and ma-
terials which they, by contract, authorized, shall look alone
to the title held by the purchaser? Certainly no princi-
ple of equity qr fair dealing would sanction a precedent of
that character. * * * The vendors, by their contract,
have subjected their title to the property to the lien of the
petitioner, and the decree properly, in our opinion, au-
thorized a sale of the l^al title, and a priority of payment
to the petitioner." This case was afterwards approved by
the same court in Paulsen v. Mariske et aL, 18 N. E. Rep.,
275.
In May, 1889, the supreme court of Minnesota in HiU
et al, V. Gillet a/., 42 N. W. Rep., 294, upon similar facts,
held that the lien of the mechanic attached to the interest
of the vendor. The statutory provisions in Illinois and
Minnesota, relating to mechanic's liens, are substantially
the same as those in this state, and the decisions from those
states are entitled to much weight.
There are cases holding a contrary doctrine, some of
which are cited in the brief of appellee; but as they are
contrary to the liberal rule of construction that has always
prevailed in this state in construing the mechanic's lien
law, we do not follow them. The rule we adopt is the
most just and equitable.
The decree of the district court, in so far as it awarded
the appellee Kountze the paramount lien on the premises,
is reversed, and the decree will be modified in this court,
making his lien junior to that of the mechanic lien holders.
In all other respects the decree is affirmed.
Decree accordingly.
The other judges concur.
728 NEBRASKA REPORTS. [Vol. 30
49 480
Mfllwp V. BalL
ffl 694j A. MiLLSAP ET AL., APPELLEES, V. JOHN BaLL ET AL.,
<'30 728 APPELLEES, IMPLEADED WITH H. K. GaLBRAITH
40 fi81
!^ °1 1 ET AL., APPELLANTS.
30 728 '
[Filed Noyembeb 11, 1890.]
1. Mechanic's Lien : Paramount to That of Ykndob. Where
a vendee of real estate, ander a contract of sale, containii^ a
stipulation that the purchaser shall construct a building upon
the premises, erects a building thereon, the laborer or material-
man is entitled to a lien against the property paramount to the
lien of the Tender.
% : Filing Claim. Under section 2 of the mechanic's lien
law a subcontractor, to obtain a lien, must make out and file
with the recorder of deeds of the county where the building is
erected a sworn statement of the amount due from the oon>
tractor for labor and materials, within sixty days from the per-
foiming of the labor and furnishing of the materials.
8. : Limitations. The contractor cannot maintain a suit
against the owner until after the expiration of that time.
Sbt-Off. If a building is not constructed according to
contract) the owner is entitled to offoet any damages he may
haye sustained thereby, and the lien attaches for the amount
actually due after deducting such damages.
Appeal from the district court for Douglas county.
Tried below before Groff, J.
ft'cott & ScoUy for api^ellant Omaha Lumber Co., cited :
Bigelow, Estoppel, 547, 565-6, and citations; Dodge r.
Fope, 93 Ind., 480, 487; Gregg v. Wells, 10 Ad. & E
[Eng.], 90 ; Slocumb v. R. Co., 57 la., 675 ; Patterson r.
Baumer, 43 la., 477, and citations; Chapman v. Chapman,
59 Pa. St., 214 ; CampbeU y. NesbiU, 7 Neb., 303, and
citations; Gillespie v. Sawyer, 15 Id., 641; Buchstqff r.
Dunbar, Id., 116, and citations ; Lessee v. Coats, 1 O., 246 ;
3Iorrvingstar v. Selby, 15 Id., 345; Lamb v. Lane, 4 O.
St., 178; Scovern.v. State, 6 Id., 291; Rogers v. Hotel Co.,
4 Neb., 58-9 ; Edminsier v. Biggins, 6 Id., 270 ; Rhea v.
Vol. 30] SEPTEMBER TERM, 1890. 729
Millsap ▼. Ball.
Beynolds, 12 Id., 133; Andey v, Pasahro, 22 Id., 662 ; Ault-
man it Miller v. Mallory, 6 Id., 180; 9 Id., 144; McCoi-mick
V. Steoenscmy 13 Id., 70 ; McCormick v, Laidon, 3 Id., 452 ^
Rollin V. Oo98, 46 N. Y., 768 ; HackeU r. Badeau, 63 N. Y.,
476 ; 2 Jones, Liens, sec. 1254, and citations ; Smith v. Nor-
rw, 120 Mass., 68 ; Davis v. Humphrey, 1 12 Id., 309 ; Pea-
body V, Easi^n Soc, 6 Allen [Mass.], 540; Hayes v. Fessen-
den, 106 Mass., 228 ; HUion v. Merrill, Id., 628 ; Parker v.
BeU, 7 Gray [Mass.], 429; Weeks v, WalcoU;\b Id., 64;
Mulrey r. Barrow, 11 Allen [Mass.], 162; Clark v. King-
sley, 8 Id., 643; Tanner v. Bell, 61 Ga., 684; Weber v
Weatherby, 34 Md., 656; Walker v. Burt, 67 Ga., 20;
Henderson t?, Connelly, 123 111., 98 ; Hiekox v. Greenwood,
94 Id., 266; Paulsen v. Manske, 18 N. E. Rep. [111.], 276;
Story, Ag., sec. 476; White'ock v. Hicks, 75 111., 460; Letois
V. Rose, 82 Id., 674; ffNeil v. School, 26 Minn., 331 ; Meyer
V. Berlandi, 40 N. W. Rep., 613; Laird v. Moonan, 32
Minn., 368.
McCoy & Olmstead, for appellants Deiss et al., cited :
Edminster v. Higgins, 6 Neb., 266, 270, 299 ; Rhea v. Reyn-
olds, 12 Id., 128, 133; Ansley v. Pasahro, 22 Id., 663;
Westheimer v. Reed, 16 Id., 663; H. & G. I. R. Co. v.
Ingalls, Id., 128; Fremont F. & B. Co. v. Dodge County,
6 Id., 26 ; Bradford v. Peterson, ante, p. 96 ; Henderson
V. Connetty, 123 111., 98; Hill v. Gill, 42 N. W. Rep.
[Minn.], 294; Paulsen v. Manske, 18 N. E. Rep. [111.],
275; Bright v. Boyd, 1 Story [U. S. C. C ],478, 491-2-
3-4 ; HeMng v. Pollard, 4 Humph. [Tenn.], 362 ; Math-
ews V. Davis, 6 Id., 327 ; Rhea v. Allison, 3 Head [Tenn.],
180; Humphreys v. Holtsinger, 3 Sneed [Tenn.], 229;
Rainer v. Huddlestm, 4 Heisk. [Tenn.], 226.
H. B. Holsman, for api>ellant Groves.
W. J. Cojinell, and W. C. Ives, for appellees Boggs &
Hill, cited: Lendei^king v. Rosenthal, 63 Md.,2S; Phillips,
730 NEBRASKA REPORTS. [Vol. 30
Millsap v. BalL
Mech. Liens, sees. 128, 131, 244, 245, and cases; DenUan
V. Shider, 47 Mich., 598; Gillispie v, Bradford, 7 Yerg,
[Tenn.], 168; Neil v. Kinney, 11 O. St., 58 ; 1 Add., Contr.
[Am. Ed.], sec. 30 ; BolUn v. Oroas, 45 N. Y., 768 ; 1 Par-
sons, Contr. [7th Ed.], p. 8*; DooliMe v. Goodrich, U
Neb., 279; Rhea v. Reynolds, 12 Id., 128; Robinson v.
AppleUm, 15 N. E. Rep.^ 763 ; Kline v. Lewis, 1 Ashm.
[Pa.], 31.
NORVAL, J.
The record shows that on the 26th day of September,
1887, lots 6 and 7, block 5, Omaha View, were owned by
Bo^gs & Hill, and on that day they sold the lots to the de-
fendant A. F. Groves, for the sum of $2,600. The sum of
$115 was paid in cash and time was given for the balance.
Boggs & Hill delivered to Groves the following receipt and
memorandum of the terms of sale :
"September 26, 1887.
"Received of A. F. Groves one hundred and fifteen
($115) dollars to apply on lots six and seven, block five,
Omaha View, price of lots to be $2,600. Contract to be
given for same when the foundations for buildings on said
lots are commenced. Payable as follows : In five equal
payments, on or before, at 8 per cent. Houses to cost at
least $600 to $700 each. Boggs & Hill."
At the time of the sale the lots were vacant and unim-
proved. Groves went into possession and contracted with
the defendant Ball to erect four cottages on the lots. The
buildings were constructed and the plaintiff Milisap and
several of the subcontractors, who are defendants, filed
their liens for materials furnished and labor performed for
the construction of the buildings. This action was brought
by A. Milisap against John Ball, the contractor, Boggs &
Hill, the vendors, A. F. Groves, the vendee, and the sev-
eral lien-holders, to foreclose his lien. Each lien-holder
Vol. 30] SEPTEMBER Ti^RM, 1890. 731
MillsapT.BaU.
filed a cross-petition setting up his lien upon the premises
and buildings.
The defendants Boggs & Hill deny in their answer the
claims of the mechanics and material-men, and admit that
they made the agreement in writing with the defendant
Groves (copied above) by which they agreed to sell to him
the lots in controversy, and that the defendant Groves
agreed to pay them therefor the sum of $2,600 in the
manner following, to-wit: Cash, $115, and the balance in
five equal payments.
The answer further states that it was agreed that, upon
the payment in full of said sums of money, and certain
taxes and interest, Boggs & Hill were to make to Groves a
warranty deed for said premises; that Groves went into
possession under said contract, and paid the cash payment
of $115, and that said contract is in full force. Boggs &
Hill claim a vendor's lien on the lots and the building
thereon superior to the liens of the mechanics and material-
men.
The defendant Groves, for answer, denies that either of
the parties to the action has any valid lien or interest in
said property. He further sets up that he contracted with
Ball to furnish all labor and materials, and erect four
houses on the lots for the sum of $700; that about Jan-
uary 4, 1888, after partly completing the buildings, Ball
abandoned, refused, and neglected to carry out the terms
of the contract, and that neither Ball nor any one of the
subcontractors have carried out the agreement; that the de-
fendant Groves, on the 15th day of May, 1888, completed
said buildings so far as practicable, considering the un-
workmanlike manner in which the work was performed,
and the inferiority of the materials furnished by Ball, and
that all the mechanics* liens were prematurely filed before
the completion of the buildings. There are other allega-
tions in the answer of Groves to which it is not necessary
to refer.
732 NEBRASKA REPORTS. [Vol. 30
Millsap V. Ball.
The court found that there was due from Groves to
Boggs & Hill $2,485 as balance of purchase money, to-
gether with 8 per cent interest thereon from Septeml)er 26,
1887. The court also found the amount due the various
lien holders. A decree of foreclosure was rendered, which
gave Boggs & Hill a paramount lien for the purchase
money, and the premises were ordered sold and the pro-
ceeds applied, after the payment of costs, first, to the
payment of the claim of Boggs & Hill, and the balance
pro rata among the mechanic lien holders. The defendant
Groves and the mechanic lien-holders appeal.
The main question raised in this case is identically the
same as we have just considered at the present term, in the
case of Bohn Mfg. Co. d al. v, Kountze, ante, p. 719. We
held in that case that where a vendee of real estate under a
contract of sale which contained a stipulation that the pur-
chaser shall construct a building upon the premises, erects
a building thereon, the laborer and material-man are en-
titled to a lien against the premises paramount to the lien
of the vendor. The memorandum of agreement in the
case we are now considering contemplated that the pur-
chaser, Groves, would erect houses ou the lots to cost at
least $600 to $700 each. The buildings were constructed,
but the labor performed and materials furnished have not
not been paid for. Boggs & Hill, having authorized the
purchaser to make the improvements on the property, to
which they held the l^al title, we hold, for the reasons
given in the Kountze case/ that they postponed their lien
for the unpaid purchase money to that of the mechanic
and material-man.
We will now pass to the consideration of the points
raised by the appellant Groves. It appears that after Ball
abandoned the contract for the construction of the build-
ings, H. A. Schreckingast, in pursuance of a contract with
Groves, furnished the balance of the hardware and the
labor necessary to complete the buildings, amounting to
Vou 30] SEPTEMBER TERM, 1890. 733
Millsap V. Ball.
$75.75. The last item was furnished on the 9th day of
May, 1888. Within sixty days thereafter Sehreckingast
filed his answer and cross-petition herein, and upon the
trial the defendant Groves objected to the Sehreckingast
lien being introduced in evidence, because his suit was
prematurely brought. The court thereupon permitted this
answer and cross-petition to be withdrawn from the files
and to be refiled. This ruling is assigned for error.
Under section 2 of the mechanic's lien law, a subcon-
tractor, to obtain a lien, must make out and file with the
register of deeds of the county where the building is erected,
a sworn statement of the amount due him from the con-
tractor, within sixty days from the performing of the labor
or the furnishing of the materials. The section also pro-
vides that "No owner shall be liable to any action by the
contractor until the expiration of the said sixty days." It
is obvious that a contractor cannot lawfully bring an action
against the owner of the building within sixty days after
performing the last labor or furnishing the last item of
material. To bring the case within the provisions of the
statute, Sehreckingast withdrew his answer and cross-
petition and refiled the same. At that time the sixty
days' limit had elapsed, and he was entitled to maintain his
action. Of course, on the refiling of the pleading, Groves
would have been entitled to a continuance of the hearing
upon the cross-bill had he demanded it. Failing to request
a postponement, there was no error committed in proceed-
ing with the trial.
After the lienors had introduced their testimony in sup-
port of their respective claims, the defendant Groves ofiered
to prove that the contract entered into between Ball and
himself bad never been complied with by Ball, and that
the buildings were not erected according to the terms of
the contract. Groves's counsel stated to the court that his
purpose in offering this testimony was to show that the
liens were prematurely filed and that they could not file
734 NEBRASKA REPORTS. [Vol. 30
Biillsap T. BalL
and enforce their liens until the buildings were completed
and the contract complied with. The court ruled out the
testimony.
It will be noticed that the excluded evidence was not
tendered in support of any claim for damages which
Groves may have sustained by the failure of Ball to fulfill
his contract. In fact no such issue was tendered in Groves's
answer. Had such been the purpose of the excluded tes-
timony, under proper pleadings it would have been error
to have refused to receive it.
If we understand the position of Groves' counsel it is
this : that neither a contractor or subcontractor can enforce
a mechanic's lien when the building is not completed ac-
cording to contract. We cannot accept this as a correct
statement of the law. There is certainly no legislative
enactment so limiting the right of the mechanic or material-
man to a lien. He must establish his account, and the
lien attaches for the amount found to be due thereon. If
the contract for the erection of the building is not fulfilled
by the contractor, it does not necessarily defeat his lien.
The owner of the building is entitled to set up as a coun-
ter-claim any damages he has sustained by reason of the
breach of the agreement, and the lien attaches for the
amount actually due, after deducting such damages.
One D. M. Bowman was examined as a witness to estab-
lish his claim for a lien for labor performed. He was
cross-examined by Mr. Holsman, counsel for Mr. Groves.
The bill of exceptions shows that before the last question
propounded to the witness was answered, the court ordered
the witness to stand aside, and another witness was called.
No objection or exception having been taken to the order
dismissing the witness from the stand, it cannot be con-
sidered here.
That part of the decree of the lower court awarding
Boggs & Hill tiie prior lien on the property is reversed, and
she decree will be modified in this court giving the jmra-
Vol. 30] SEPTEMBER TERM, 1890. 735
U. p. R. Go. V. Broderick.
mount lien to the mechanic lien-hoIders. In all other re-
specis the decree is affirmed.
Degree accordingly.
The other judges concur.
U. P. R. Co. V. Patrick Broderick.
[Filed Novembkb 11, 1890.]
1. Master and Servant: Injitbibs: Nbgliobnob. Where mi
employer negligently provides his workmen with improper and
unsafe apparatns with which to perform the work, and the
workman, without any fault on his part^ is ii^nred owing to the
employer's neglect to provide suitable, safe, and proper appli-
ances, the employer is liable for the injury.
2. BeTiew. Held, That the evidence sustains the verdict and judg-
ment.
3. The instraotiona examined, and hM, to have been properly
given.
Error to the district court for Douglas county. Tried
below before Groff, J.
J. M. Thurston^ W. R. Kelly, and J. 8. Shropshirey for
plaintiff in error, cited : Walsh v. R. Cb., 2 Am. & Eng.
R R. Cases, 144.
MaJumey, Minahan & Smyth, contray cited: Plank v, R,
Cb., 60 N. Y., 607; Oibaon v. R. Co., 46 Mo., 163;
McGairick r. Wumn, 4 O. St., 566; HvMldon v. Machine
Co., 106 Mass., 282; 3 Wood, Ry. Law, sec. 371; Snow
V. R. Co,, 8 Allen [Mass.], 441 ; 2 Thompson, Negligence,
1015; Fairbanks v, Haentzschcy 73 III., 236; Dorsey v.
FhUlips, 42 Wis., 583.
.10 7Zli\
48 811
736 NEBRASKA REPORTS. [Vol. 30
U. p. R. Co. V. Broderiok.
NORVAL, J.
The plaintiff below, Patrick Broderick, brought suit
against the defendant to recover $1,995 damages sustained
from an injury received while in the employ of the defend-
ant, alleging that on October 15, 1886, he was so employed
as a laborer, attending the masons of defendant in building
the stone piers of its bridge over South Thirteenth street, in
the city of Omaha; that he was acting under the direction
and control of the defendant's foreman, and without fault
or negligence on his own part, while so acting with other
workmen, he moved a large stone, by means of rollers,
onto two planks, placed over a hole, six feet square, in-
tended to receive the stone ; that the planks were provided
by the defendant's foreman, and while obeying his orders,
and performing bis labor as directed, he was in the act of
lifiing up one side of the stone by means of a crow-bar in
order to slide the stone down into the hole on the opposite
side, and while so lifting, one of the planks on which the
stone rested, being of insufficient strength, broke in two
and gave away, thereby throwing the crow-bar out of his
hands, and throwing him backwards into a hole of like
dimensions behind him and thereby breaking his arm, by
reason of which he has suffered great bodily pain, has
b^n unable to labor for a long time, and that his disability
therefrom is permanent; that such injury was caused by
the negligence of the defendant in selecting and directing
to be used as a means of labor and construction insuffi-
cient, unsafe, and defective planks for the purpose of lower-
ing and placing the stone in the abutment of the bridge,
without contributory negligence on the plaintiff's part.
The defendant answered admitting its corporate ca-
pacity, and that the plaintiff was in its employ at the time
and place alleged, and denying that such injury was caused
by any want of care on its part, or that of its foreman,
but was caused by the negligence of the plaintiff and of
his fellow- workmen.
Vol. 30] SEPTEMBER TERM, 1890. 737
U. p. R. Co. V. Broderlck.
The plaintiff replied denying every allegation of the
defendant's answer.
There was a trial to a jury and verdict for the plaintiff
for the sura of $1,995. The defendant's motion for a new
trial was overruled and judgment entered upon the verdict.
The defendant below brings the case to this court on error.
In the last half of the year 1886, the plaintiff in error
•was constructing a railroad bridge over Thirteenth street in
the city of Omaha. The abutments and piers of the bridge
were of heavy masonry. Broderick, the defendant in error,
With five or six others, was employed to attend the masons
and assist them in laying the stone. Broderick commenced
work about the 20th of August, and until the 15th of
October was employed upon derrick work. Two holes
had been dug about five feet apart on the west side of the
street, to the depth of five feet, and about five or six
feet square. About two feet of concrete had been laid by
the masons in the bottom of these holes, upon which foun-
dations of the piers were to be constructed. On the morn-
ing of October 15th Broderick and three other workmen
were directed by Charles Brogstadt, the foreman of the
gang, to bring a large stone from a pile on the east side of
Thirteenth street to one of these holes, to be laid by the
masons. The stone was rolled across the street by plading
it upon rollers, which rested upon two planks laid upon
the ground. When the stone reached the west side of the
street it was rolled onto two planks which were stretched
east and west across the south hole, and by means of a
crow-bar the stone was pried up and thrown into the hole.
While it was being placed in proper position by the ma-
sons, the plaintiff with the three others was ordered by the
foreman to procure from the same pile another stone and
take it to the north hole. This was accomplished in the
same manner as the other. This stone was about five feet
square, ten inches thick, and weighed from 2,500 to 3,000
pounds. It was rolled onto two planks placed across the
47
738 NEBRASKA REPORTS. [Vol. 30
U. p. R. Co. V. Broderick.
north hole. The plaintiff and one Hans Christianson,
under the instructions of the foreman, took a crow-bar and
attempted to pry the stone up and throw it into the hole.
In doing so one of the planks broke, the crow-bar was
jerked out of their hands and Broderick was thrown into
the south hole, breaking one of his arms. He was re-
moved to the hospital, where he remained under the care of
the company^s surgeon for a long time. The arm has not
fully recovered. It is for this injury that the plaintiff
brings this action.
It appears from the testimony that the planks placed
across the hole were pine, twelve or fourteen feet long,
two or three inches thick, and twelve inches wide. While
the testimony does not disclose which one of the men
placed them in position, there is testimony tending to
show that it was done under the direction of Brogstadt,
who had entire control over all the men working on the
job, and who directed the manner in which the work should
be performed. Brogstadt denies under oath, that these
planks were obtained and used by his orders, but says that
they were in position, and the stone on them when he first
saw them. ^
There is likewise in the bill of exceptions, testimony
tending to prove that the ends of these planks rested upon
high banks of dirt that had been thrown out near the hole,
so that there was nothing to support the planks for a space
of eight or ten feet; that the planks were entirely too
weak for handling such heavy stones, and were not proper
and safe appliances for that kind of work; but that a der-
rick should have been used for lowering the stone. It
also appears that there was a derrick near the work, which
could have been used, and that the foreman had a right to
have taken it had he so desired.
The testimony of the defendant's witnesses tends to
establish that the planks did not rest upon banks of dirt,
but upon level ground, and that the method employed, to
Vol. 30] SEPTEMBER TERM, 1890. 739
U. p. R. Go. V. Broderick.
use the language of the witness Brogstadt^ ^'was safe
enough if the workmen look out.*'
There was ample testimony to justify the jury in find-
ing that improper and unsafe appliances were used under
the instructions of the company ^s foreman, or at least, if
the planks were not procured by Brogstadt's directions, he
ordered the plaintiff and his fellow-workmen to roll the
stone upon them after they had been laid across the hole.
It was the duty of the defendant to have provided and
used suitable, safe, and proper apparatus for the perform-
ance of this work, and it is liable for any injury which
happened by reason of the use, by direction of its foreman,
of improper and unsafe appliances, if the injured party is
free from fiiult and negligence. Whether or not Broderick
was n^ligent, was for the jury to determine from all the
evidence in the case. That questiop was submitted to the
jury upon proffer instructions, and we are not prepared to
say that the verdict is clearly against the weight of the
testimony.
Prior to the examination of any witness in the court
l)elow, the defendant objected to the introduction of any
testimony, for the reason that there are no all^ations in
the petition showing negligence on the part of the defend-
ant It does not appear that the trial court ruled upon
this objection, but permission was granted the plaintiff to
amend his petition by interlineations, to which the defend-
ant excepted. The petition was thereupon amended by in-
serting the following:
'^ But the defendant and the defendant's foreman negli-
gently selected and directed to he used for that purpose old,
weather-beaten, defective pine planks, well knowing that
the sxime were unfit and unsafe for the use to which the
defendant then and there applied them, and well knowing
that the said planks were not strong enough to stand the
weight of said stone."
Afler the pleading was thus amended the defendant did
740 NEBRASKA REPORTS. [Vol. 30
30 740
48 712
Linch V. State, ex rel. Eckles.
not ask for further time to prepare for trial, nor does it
appear that it was not then ready with its witnesses to
meet the new issue presented, but, on the other hand, tlie
record before us shows that the defendant introduced wit-
nesses to disprove the new allegations made by the plaint-
liF. As it is not shown that the defendant was prejudiced
by the amendment made to the petition on the eve of the
trial, the case should not be reversed on the objec^tion
made.
Complaint is made of the giving of the last paragraph
of the instructions prepared by the court on its own mo-
tion, and to instructions 1, 2, 3, 4, and 7, given on requ€:<t
of the plaintiff. It is conceded by counsel for the railroad
company that these in^ructions state correct principles of
law, but it is urged that they were not warranted by the
testimony. We are satisfied that the law, as laid down by
the court, was based upon the facts of the case, and that
the instructions were not in the least misleading. Every
disputed question of fact was submitted to the jury upon
instructions that were quite favorable to the defendant.
The judgment is
Affirmed.
The other judges ooncor.
Thomas R. Linch et al. v. State, ex rel. George
W. ECKLES.
[Filed Novembbb 18, 1890.]
1. Mandamus: Mat Bb Obanteb at Chambebs. Under ihe
provisions of the statnte, sec. 51, ch. 19, of C. S., a jadge of the
district court sitting at chambers at any time and place within
his jadicial district has the power and jurisdiction to hear and
determine an application for a writ of mandamus^ and such
Vou 30] SEPTEMBER TERM, 1890. 741
Llnoh T. State, ex leL Ecklee.
power and jarisdiciion indade the allowanoe of a peremptory
writ of mandamus,
2. Pleading. All material allegations, well pleaded in a petition
and not denied or answered nnto in the answer, will be deemed
and taken as trae.
Error to the district court for Grant county. Tried
below before Harrison, J.
0. A. AbboUy for plaintiffs in error,
KirkpcUriok & Holcomb, eorUra.
Cobb, Ch. J.
This action was mandamus brought In the district court
of Grant county and tried before the Hon. T. O. C. Har-
rison, judge of the ninth judicial district, at his chambers,
in the city of Grand Island, in Hall county. The petition
('ontains the following allegations of &ct:
^'1. That the relator is a duly qualified elector, citizen,
and taxpayer of the county of Grant and state of Ne-
braska.
" 2. That on about the 15th day of April, 1888, the gov-
ernor of the state, on the petition of citizens of Grant
county, appointed Thomas B. Linch, James Forbes, and
Romane Westover special commissioners, and John S.
Dellinger special county clerk of said county; that each of
said officers took the oath prescribed by law and entered
upon the discharge of their duties as said officers, according
to law, and that on the 28th day of May, 1888, said special
county commissioners and county clerk called a special
election to elect county officers for said county and to vote
upon a site for permanent county seat for said county of
Grant
"3. That said special commissioners and clerk divided
said county of Grant into four voting precincts as follows,
to-wit : Whitman, Hyannis, Ashby, and Collins, and that
742 NEBRASKA REPORTS. [Vol. 30
liinch T. State, ex rel. Ecklei.
at the special election held in said county on the Slst day
of July, 1888, pursuant to the call of said special commis-
sioners, the following legal votes were cast in the several
precincts, to-wit :
"4. That there were cast in the precinct of Whitman,
thirty legal votes for the town of Whitman for permanent
county seat, and twenty-eight l^al votes for Milton Dodds
for county treasurer of said county, and two votes for
James Forbes for county treasurer, 'as returned by the
board of canvassers of said precinct.'
^'5. That at said special election tliere were cast in the
precinct of Ashby nine l^al votes for the town of Whit-
man for permanent county seat and six votes for the town
of Hyannis for permanent county seat of said county, and
fifteen legal votes for Miiton Dodds for county treasurer
of said county, 'as returned by the board of canvassers of
said precinct/
" 6. That at said special election there were cast in the
precinct of Collins twenty-one legal votes for the town of
Whitman for permanent county seat and twenty eight
votes for the town of Hyannis for permanent county seat,
and twenty-one legal votes for Milton Dodds for county
treasurer and twenty-eight votes for James Forbes for
county treasurer, 'as returned by the board of canvassers
of said precinct.'
" 7. That at said special election there were cast in the
precinct of Hyannis twenty- four votes for Hyannis for
the permanent county seat of said county, and twenty-four
votes for James Forbes for county treasurer of said county,
as returned by the board of canvassers of said precinct of
Hyannis; ' a copy of said canvass is hereto attached, marked
" Exhibit A," and made a part hereof.'
"8. That there were cast in said county at said special
election in the several precincts sixty legal votes for the
town of Whitman for permanent county seat and fifty-
eight votes for the town of Hyannis for permanent county
Vol. 30] SEITEMBER TERM, 1890. 74:i
Linch y. State, ex rel. Eckles.
seat, and no more, and sixty-four votes for Milton Dodds
for county treasurer, as returned by the precinet canvassing
board.
" 9. That there were cast at said special election in the
precinct of Collins for the town of Hyannis for county
seat, two illegal and unlawful votes, that were duly can-
vassed and counted for the town of Hyannis for county
seat, in this that they were east by one Walter Broking
and one William H. Rothwell, who had not resided in the
state of Nebraska but five months.
" 10. That there were cast at said election in the precinct
of Ashby for the town ol Hyannis for county seat six il-
legal votes that were cast by persons that did not reside in
Grant county and had only been in said county twenty-one
days, and their names are unknown to this aflSant. That
said votes were duly counted for the town of Hyannis by
the precinct canvassing board.
"11. That there were cast at said election in the pre-
cinct of Hyannis for the county seat at the town of Hy-
annis four illegal votes duly counted and canvassed by the
board for the town of Hyannis, to wit : G. G. Pickering,
H. R. Bellinger, and Michael Yokum who were not citi-
zens and residents of Grant county, and one vote cast by
, who was not a citizen of the United States and had
never declared his intention to become one, and said illegal
votes were all counted for the town of Hyannis and given
in the number of votes given above except tliose cast in
the precinct of Ashby.
" 12. That on the 7th day of August, 1888, said s|)ecial
(*ounty commissioners and county clerk met at the town of
Hyannis, temporary county seat, to canvass the votes cast
at said s])ecial election, and then and there duly canvassed
and declared the returns of the votes cast at said election
in the precincts of Whitman, Collins, and Hyannis, in said
county, and unlawfully, wrongfully, and fraudulently threw
out, disregarded, and refused to canvass the votes cast in the
744 NEBRASKA REPORTS. [Vol. 30
Unoh V. State, ex rel. Eekles.
precinct of Ashbj in said county, as returned by the pre-
cinct canvassing board, though often requested so to do,
and still n^lect and refuse to canvass said votes and to de-
clare the result, and this without any color of right or au-
thority of law so to do, and fraudulently and unlawfully
declared the town of Hyannis the permanent county seat
and the said James Forbes to be the duly elected county
treasurer of said county. A copy of the record of said com-
missioners is hereto attached, etc.
" 13. That the town of Whitman received a majority of
all the votes cast at said election for permanent connfy
seat, and Milton Dodds received a majority of all the
votes cast at said election for county treasurer, and that the
town of Whitman should be declared the permanent
county seat, and that Milton Dodds should be declared the
duly elected county treasurer of said county.
"With prayer that the said board of county commis-
sioners and county clerk be compelled to reassemble and
canvass the votes cast in the county at said election, and
especially the votes cast in Ashby precinct, as they are by
law required, and that they may be required to declare the
town of Whitman the permanent county seat, and to de-
clare Milton Dodds the duly elected county treasurer of
said county of Grant, and for costs."
The defendant John S. Dellinger, answering for himself,
as well as for his co-defendants, "admits that there was a
special election at the time mentioned in Grant county, and
denies each and every the several matters and things al-
leged in paragraphs 8, 4, 5, 6, 7, 8, 9, 10, and 11 of the
|)etition.
"Answering paragraph, or cause of action No. 12, the
defendant denies that any legal election, or any election,
was held in Ashby precinct at said special election. But
alleges that the said special commissioners in specifying
the place of voting in said Ashby precinct selected the
house of H. J. Kin ley, two and one half miles west of
Vou 30] SEPTEMBf:R TERM, 1890. 745
linch V. State, ex reL Eckles.
Ashby station ; that noti(^es were posted of such fact, and
one of said notices was posted on said Kinley's house; that
no election was held at said house, nor was there any pre-
tense of holding an election thqre, nor in or about it, or at
any place on the farm or land of said Kinley; nor did any
judge or clerk of election act or receive any votes or bal-
lots at the place so designated', nor were any polls opened
at said place on said 31st day of July, 1888 ; but that
several evil-minded and wrongly disposed persons and il-
legal voters, in order to disturb the law abiding citizens of
said county, congr^ted together at a place some two and
a half miles distant east of the said Kinley house, a place
that had not been designated as the place of election, and
wholly unknown to the legal voters of said Ashby pre-
cinct, fraudulently and unlawfully pretended to receive
votes and ballots for several officers to be voted for, and for
the places designated for county seat of Grant county, and
received, or pretended to receive, some fifteen votes without
any kind of ballot-box other than a cigar-box, which said
box was unlocked and without any means of fastening,
and was not fastened at any time, but was opened and shut
at pleasure during the day, and votes taken therefrom and
changed at the will of the pretended board ; that at the
said pretended election in said precinct there was but one
book for the names of the voters, and the said book, when
returned to the county clerk to be opened by the board of
canvassers, was found to be in such an irregular, changed,
and scratched condition as to be unintelligible; that the
persons shown to have acted as judges and clerks were not
sworn before any justice of the peace, or any officer known
to the law, and the papers returned were not, and could
n«>t be, recognized as the returns of an election held at the
place dosignatc(1 to hold said election, in Ashby precinct, in
said county — this return being the one complained of by
the plaintiff; that out of the fifteen votes alleged to have
been cast in said Ashby precinct, ten of them were illegal,
746 NEBRASKA REPORTS. [Vol. 30
Linch T. State, ex reL £ckle&
for the reason that said votes were cast by persons who
were not residents of Grant county.
"3. That, in the event that said board of canvassers was
recalled together as prayed for, the result of the said elec-
tion would not be changed, for the reason that in Whit-
man precinct all votes cast in said precinct were for Whit-
man ; that seven of said votes so as aforesaid cast were cast
by illegal voters who were not residents of Grant county;
five of said persons are named as follows: Milton Dodds,
Dean Durham, M. A. Fairchild, S. A. Weaver, and Frank
EUswick; that in Collins precinct three illegal votes were
cast for Whitman, by C. H. Manning, Bert Procter, and
B. Swinge] ; with prayer for judgment."
The defendants also filed a supplemental answer to the
said petition, in which they all^: ''That, since the insti-
tution of said suit, and since the answer hereto filed
therein, a new election has been called and had in the said
county for the purpose of locating a county seat of said
county by common consent as well of the parties to this
suit as of all the dtizens of said county, parties in said
election, and agreed to abide by the result thereof; that said
agreement was made and said election held in pursuance
thereof for the purpose of amicably adjusting and settling
all matters in controversy in this case, and that as a result
of said election the county seat of said county has been
located at the town of Hyannis, that being the place desig-
nated as having been chosen by the board of canvassers of
said county."
To which supplemental answer the plaintiff filed a de-
murrer, which was by the court sustained. Thereupon
the cause 'came on to be heard, upon the objection of the
respondents, to the jurisdiction of the judge to try and de-
termine said cause at his chambers, whereupon the said
objection was overruled. And thereupon the cause, being
submitted, was taken under advisement, and afterwards a
peremptory writ of mandamus was awarded as prayed.
r
Vol. 30] SEPTEMBER TERM, 1890. 747
Llnoh y. State, ex rel. Ecklea.
The defendantB assign the following errors :
"1. The court (Judge) had no jurisdiction to hear, try,
or determine said matter at chambers.
"2. The court (judge) had no jurisdiction to hear, try,
or determine said matter in the county of Hall.
"3. The court (judge) had no jurisdiction to hear, try,
or determine said matter at any place except at the county
seat of Grant county, and at the regular term of court
holden in and for said county.
"4. The court erred in finding the issues joined in favor
of the defendant in error and against the plaintiff in error.
"5. Under the facts and circumstances of the case the
defendant in error was not entitled to a writ of mandamiis,
"6. The judgment of the court should have been for the
plaintiffs in error and not for the defendant in error, accord-
ing to the law of the land."
The first, second, and third assignments will be consid-
ered together.
To the proposition, that a district judge is without juris-
diction, or power, to hear and determine an application for
a mandamus at his chambers, within a county other than
that of the respondent, etc., counsel cite sees. 39 and 57 of
ch. 19, Comp. Stats. They also cite sec. 5 of ch. 71,
Comp. Stats., 653, of the Civil Code, and sec. 9 of art. 6
of the constitution of the state.
Sees. 39 and 40, chapter 19, Comp. Stats., were passed
as a part of an act entitled ''An act to amend chapter 13
of the Revised Statutes of 1866, entitled 'Courts,' ap-
proved February 27,1877." That act, so far as it pur-
ported to confer upon district judges the power and jurisdic-
tion to " sit at chambers anywhere within his district for the
purpose of * * * 8. Hearing an application for ??ianr/a-
mu«" was considered by this court in the case o{ State, ex
re/., V. Pierce County, 10 Neb., 476. In that case it was
held that under our preseut constitution, section 11, article
3, the l^islature could not by an amendatory act confer
748 NEBRASKA REPORTS. [Vou 30
Linch y. State, ex rel. Eckles.
such power and jurisdiction upon the judges of the district
courts. In the opinion by Judge La&e we find the fol-
lowing language : '' The act of 1866, to which this amend-
ment was made, h&s a very restrictive title, it being simply
' Courts/ and was passed when no such limitation upon the
discretion of the legislatui*e in the enactment of laws as
the foregoing existed. In view of that limitation [the
provision of the constitution above cited], it would hardly
be contended ♦ * * that under this title the legislature
could, by an original enactment, confer upon judges of
courts during vacation any jurisdiction whatever. And if
the l^islature could not do this directly by means of an
original act, surely it could not be done by an amendment
of this one wherein, with the single exception of the dis-
trict court judges being, by sec. 13, made conservators of the
peace, there is not a solitary provision investing them with
judicial power."
At the next session of the legislature, after the above
opinion was filed and published, that body, doubtless with
the above opinion in full view, passed the act of March 2,
1881, which now constitutes section 57 of chapter 19 of
the current compilation. The language of this act is
such as to clearly invest district judges, sitting at chambers
anywhere within their respective districts, with the power
and jurisdiction in question, without regard to the county
of such district into whicli such jurisdiction is to extend or
operate. And it was so held in the case of Clark v. State,
24 Neb., 263.
The remaining assignments may be considered together,
as they are all directed to the merits of the finding and
judjrrnent upon the evidence.
There was quite a volume of testimony taken in the
form of depositions. Nearly all of this testimony was
stricken out upon the motion of either party. But never-
tlieless the depositions thus stricken out were attaclied to
the bill of exceptions, and counsel in the brief treats it
Vol. 30] SEPTEMBER TERM, 1890. 749
Linch T. State, ex rel. Eckles.
as having been before the district judge, and considered by
him in deciding the case; and as being before this court for
the purposes of this review. I might possibly take this
view of the matter were it not that the certificate of Judge
Harrison, of his allowance of the bill of exceptions, is be-
fore me, in which he specifies the evidence which was
before him upon the trial, to-wit, on the part of the plaint-
iflF, the depositions of Sidney Manning, A. R. Elswick, and
Greorge W. Eckles, and a certified copy of the proceedings
of the county board of said county, and upon the part of
the respondents the deposition of H. R. Dellinger, and a
map of the county of Grant, showing the locations of the
various precincts therein, and that the same was all the
evidence produced at the trial.
Sidney Manning is the county clerk of said county
elected at said special election. He introduced and delivered
to the county judge taking his deposition, a certified copy
of the record, made by the special cop^imissioners, of the
canvass of the votes cast at the said special election, which
was received in evidence. He also testified that he had in
his possession the ballots and poll books showing the votes
cast at the said special election ; but that said ballots and
poll books were under seal as the same were delivered to
him by John S. Dellinger, late special county clerk of said
county, and he declined to open them or to introduce them
in evidence.
A. R. Elswick testified that he resides at Whitman, is
engaged in keeping a hotel, and in the practice of the law ;
that he is acquainted with Thomas R. Linch, who was one
of the special commissioners for Grant county, and who
canvassed the election returns of the special election held
July 31, 1888; that witness had a conversations with him
with regard to canvassing the returns of Ashby precinct.
I quote his testimony : '^ I have had conversations with him
in regard to the canvass of the Ashby precinct vote, and
he has told me at about three different times that that \^te
750 NEBRASKA REPORTS. [Vou 30
Linch T. SUte, ex rel. Eokleo.
was canvassed and had given two majority for Whitman,
and was declared so by the special commissioners. And
he said then that Mr. Del linger found that Whitman had
a majority, and he claimed that he had business in Lincoln
and that he had to go to Lincoln, and they adjourned to
the ninth day from the closing of the polls. He said he
did not know what the business was or what he went for."
He also stated that after Mr. Del linger returned the com-
missioners met according to adjournment and that they
sealed up the poll books and the ballots and said they
wouldn't count Ashby pi'ecinct at all ; that these conver-
sations— the last and most particular one — took place
about four weeks before the time of the taking of wit-
nesses' depositions, and occurred at witnesse's house. Wit-
ness also testifies that he knows Romane Westover, who
also was one of said special commissioners; that he had a
conversation with him with reference to the canvass of
Aflhby precinct; that they had counted the vote of Ashbj
precinct, and that it was declared in favor of Whitman;
that it gave Whitman a majority of two and was declared
so by the commissioners. Then Mr. Dellinger went to
Lincoln. When he came back they sealed up the ballots
and the poll books from Ashby precinct, and would not
count it, which he said gave a majority to Hyannis. He
said, as to the condition of the returns from Ashby pre-
cinct, that they were somewhat erased and scratched up,
but they were plain enough to know what they were and
what they meant."
Geo. W. Eckles testified that he was one of the plaint-
iffs; that he resided two miles east of Whitman; that he
was acquainted with Romane Westover, who was a special
commissioner of said county. He said he was one of the
special commissioners who made a canvass of the special
election on the 31st day of July ; heard him make a state-
ment concerning the returns, of the canvass of the vote of
Ashby precinct. He said that they counted them fifteen
Vol. 30] SEPTEMBER TERM, 1890. 751
Linch V. State, ex reL EekleL
votes in Ashby precinct, nine votes were cast for Whit-
man for permanent county seat and six for Hyannis; that
Whitman had the county seat by a majority of two at that
time. Then he said they threw it out on account of its.
being erased, erasing being done in the writing of the
names in the poll book.
I here copy so much of the proceedings of the special
commissioners, as a board of oonvassers of said special
election, as is deemed relevant.
''Aug. 3, 1888. — Board met pursuant to adjournment;
all members present. On motion board adjourned to 1
o'clock.
"1 P. M. — Board met pursuant to adjournment; all
members present. On motion board proceeded to canvass
votes. On motion by Forbes, seconded by Westover, it
was decided to not canvass the votes of Ashby precinct, for
the reason that the said voting place in Ashby precinct was
moved from the place designated by the county commis-
sioners, two miles, without authority of the board, or with-
out cause and against the law. Said moving constituting
such an irregularity that the vote could not be legally can-
vassed. Motion carried. On motion board then adjourned
to 1 P. M. (sic).
" 1 P. M. — Board met pursuant to adjournment, and
finished canvassing votes. Clerk was instructed to write
out notices, and have same put up declaring Hyannis the
permanent county seat, it having a majority of votes.''
The respondents offered in evidence the deposition of
John S. Dellinger, in which he testified that he resided in
Hyannis, and was acquainted with the county of Grant.
Whereupon he presented a map of said county, which he
declared to be a correct representation of said county, and
the several precincts therein, as established by the board of
special county commissioners ; that he was acquainted with
some of the legal voters of Ashby precinct, in said county;
that they were all, with the exception of two, in the em-
752 NEBRASKA REPORTS. [Vol. 30
linch V. State, ex rel. Eeklei.
ployment of the B. & M. Railroad Company ; that one of
these, Mr. J. H. Kinley, resided about two and a half
miles west of Ashby — that is, hia first residence was at that
point; that the other, Mr. Markland, lived in the south-
west part of the county^ probably about fourteen miles
from the place where the election was held ; that witness
did not know whether Markland voted or not ; that wit-
ness had seen him several times, and believed it was in
April he saw him first; that was at the house of Mr.
Yates ; that he was out of the county at that time, being
before he went onto his claim in Grant county. He also
testified that he did not know who made the map which
he presented; that it was not absolutely correct, but is a
good representation of the way the precincts lie; that this
man Markland's family had resided a number of years in
the southern part of the state, according to Mrs. Yates's
story, who is a part of the family, witness did not know
the fact himself; that Mr. Yates then lived north of
Alkali lake, near the county line of Cheyenne county.
^^Some think he is on this side of the line, and some think
on the other side."
The purpose of the introduction of the map in evidence
is not stated, nor is it apparent. So far as the evidence
before the district judge is concerned, I do not think that
it was sufficient to sustain the issuance of a writ of man-
damns; but I do not deem it necessary to discuss the evi-
dence, because an examination of the pleadings impels me
to the conclusion that under them no evidence whatever
was necessary, but that upon the pleadings alone the judge
was justified in issuing the writ. The petition and in-
formation of the plaintiff or relator consists of thirteen
paragraphs or causes of action. The defendants or re-
spondents, by their answer, deny all of the facts, matters,
and things alleged in the said paragraphs or causes of ac-
tion, numbered from one to eleven inclusive, except the
allegation that there was a special election at the time
Vol. 30] SEPTEMBER TERM, 1890. 753
Linch V. State, ex reL Eckles.
mentioned, in Grant county, which they admit. The alle-
gations contained in the twelfth pariigraph or cause of
action are not specifically denied by the answer, but are
rather confessed and sought to be avoided by the allega-
tions of other facts, but with what degree of success it is
unnecessary to decide, as there was no evidence tending to
prove such facts befor/B the judge. The thirteenth para-
graph of the petition was not denied by the answer, nor
was any notice, whatever, taken of it or its allegations by
the defendants. By reference to the statements of thi
pleadings in the forepart of this opinion, it will be seen
that the said thirteenth paragraph contains the allegatioa
^Hhat the town of Whitman received a majority of all th^
votes cast at said election for permanent county seat."
This all^ation contains the very gist and essence of the
petition and of the plaintiff's case. It was not denied,
nor, as I have already intimated, was it proved upon th^
trial. This allegation, had it been denied by the answer^
must have been proved to enable the plaintiff to recover,
but being fairly well pleaded and not denied, the facts al-
leged stand as true without proof. That there was an
•election for the location of a jiermanent county seat for
said county is alleged and admitted. The record of the
canvass of the votes cast at said election shows that the
returns of the votes cast in one precinct were rejected and
thrown out, and that thereupon Hyannis was, by the rec-
ord, declared to have a majority of the votes cast. Tho
object and pur{K>se of this proceeding was, in substance, to
correct that record. As we have seen, the pleadings settle
the point against the record made by the county commis-
sioners. The judgment of the district court is therefore
Affirmed.
The other judges concur.
48
754 NEBRASKA REPORTS. [Vol. 30
Deieret Natl. Bank t. Nuckolli.
D£8ERET National Bank, appellant, v. Heath
Nuckolls, appellee.
[Filed Noyembbb 18, 1890.]
Judgment: Voluntabt Payment. Honey recovered and paid
on legal process npon a judgment of a court of competent joris-
diction rendered in a salt or proceeding in which the ooort had
jurisdiction of the subject and the parties thereto, or voluntarily
paid in satisfaction of the judgment or prooeas, cannot be recoT-
ered back in a subsequent action, while such judgment remains
in force unreversed and unmodified.
Appeal from the district court for Richardson county.
Heard below before Appelgbt, J.
Charles OffuU, for appellant
Isham Reavis, and E, F, Warren, for appellees.
8. H. OaJhoun, pro se.
See opinion for citations of counsel.
Cobb, Ch. J.
This action is in the nature of a creditor's bill, brought
in the name of the Deseret National Bank, of Salt Lake
Oity, against Heath Nuckolls and others, in the district
<*ourt of Richardson county, in which a decree was ren-
dered for defendant Nuckolls on March 18, 1889, for
$993.66, and from which decree the plaintiff appeals to this
court.
In the summer of 1879 one S. F. Nuckolls was indebted
to the Deseret National Bank in the sura of $1,000, and
as security assigned a note made payable to himself by
Heath Nuckolls for the sum of $987.87 and accrued inter-
Vol. 30] SEPTEMBER TERM, 1890. 756
Dewret Natl. Bank ▼. NackolU.
est. 8. F. Nuckolls died before the bank's debt became
due, and at the request of his representative the bank pro-
ceeded to collect the collateral against Heath Nuckolls,
who lived in Otoe county in this state. On June 10, 1879,
the note was sent to an Omaha bank with instructions to
place it in the hands of an attorney for collection. The
Omaha bank sent it to the Nebraska City National Bank,
which delivered it to S. H. Calhoun, an attorney at law,
for suit. On July 29, 1879, Mr. Calhoun wrote the Des-
%ret National Bank that he had received the note, and had
''brought suit against Heath Nuckolls alone.'' Prepara-
tions were made for trial in December following in the
district court of Otoe county, the bank having forwarded
to the attorney the United States comptrollei^s certificate
of its organization as a national bank and of its corporate
capacity. On October 8, 1879, the Deseret bank sold the
note it held against the estate of S. F. Nuckolls to W. S.
McOormick, and wrote to the attorney :
"Salt Lake City, Utah, Oct 8, 1879.
"8. H. Calhoun, Esq. : I have to-day sold the note of
S. F. Nuckolls to W. S. McCormick, of tliis city, and
given him an order on you for the Heath Nuckolls note;
he will pay all costs incurred, and, we presume, have his
own name substituted in the place of the Deseret National
Bank. Please return us the comptroller's certificate rela-
tive to our organization, and oblige, L. S. Hill,
The attorney received and answered this letter as fol-
lows:
"Nebraska City, Otoe Co., Neb., Oct 14, 1879.
"Deseret National Bank: Tours of October 8
announcing sale of the note in suit against Heath Nuck-
olls duly received. I think suit had better go on in your
name, and it can be treated as a trust for Mr. McCormick.
Depositions will have to be taken before the first Monday
756 NEBRASKA REPORTS. [Vol. 30
Deseret Nail. Bank t. NuckoUf.
in December. I also herewith enclose you the comptrol-
ler's certificate of jour organization heretofore sent me.
"S. H. Calhoun."
No further correspondence appears to have passed be-
tween these parties until September 5, 1887, but the
attorney continued the suit against the defendant Nuckolls
without substituting the name of the assignee and owner
of the note as the cestui que trust, and on December 8, 1880,
obtained judgment in favor of the bank for the sum of
11,420.23, with interest at ten per cent per annum untu
paid.
On September 8, 1880, execution issued on the judg-
ment, and on June 6, 1881, and December 28, 1882, cUicui
writs of execution were issued, and not satisfied. On Jan-
uary 20, 1880, a transcript of the judgment was filed and
indexed in the clerk's office of the district court of Rich-
ardson county. On October 14, 1885, a transcript of the
issuance of executions was filed in the same office in Rich-
ardson cotmty.
On December 13, 1884, one Albert Harmon, holding a
tax lien on certain real estate owned by Heath Nuckolls in
Otoe county, entered foreclosure proceedings in the district
court of that county, making the Nebraska City National
Bank, Lewis Dunn, and the Deseret National Bank de-
fendants, as holding liens against the property. Mesne
process was not served on the last named defendant. On
April 6, 1886, the attorney, Mr. Calhoun, filed the answer
of the Deseret bank, setting up that the judgment of
December 19, 1879, was unpaid, and was a valid subsist-
ing Hen on the land described "to the exclusion and pre-
cedence of all others."
On April 7, 1885, a decree of foreclosure was taken in
Harmon's case, directing the sale of the laud to pay the
liens of the parties, that of the Deseret bank being ad-
judged third in order of priority, amounting to $2,234.49,
bearing interest at ten per ceut per annum.
Vol. 30] SEPTEMBER TERM, 1890. 757
Deseret Natl. Bank t. Nuckolla.
On August 1, 1885, the land was sold for $1,250. The
sale was confirmed, and after discharging the two prior
liens and the costs, $798.06 were paid to the attorney, Mr.
Calhoun, by the clerk of the district court on October 1,
1885, ''as the attorney for the Deseret National Bank.''
On May 20, 1886, Mr. Calhoun brought the present
action in the name of the Deseret National Bank against
Heath Nuckolls, Robert Hawke, Isham Reavis, William
E. Nuckolls, Rupert Nuckolls, Bruce Nuckolls, Paul
Nuckolls, and Allen Fowler, executor of S. F. Nuckolls,
deceased, as debtors of Heath Nuckolls, or as being in
possession of equitable assets of which he was entitled to
the possession and the proceeds. The plaintiff's petition
sets up the rendition of the judgment of December 8, 1880,
and the subsequent proceedings thereunder, and was in
fact a creditor's bill against the appellee in the case to
enforce the satisfaction of the judgment debt in favor of
the Deseret National Bank.
On January 4, 1888, the defendant Heath Nuckolls
answered by his cross-petition and counter-claim, setting
up that the plaintiff, on December 8, 1879, recovered a
judgment in the district court of Otoe county for the sum
of $1,423.23 and $12 costs, which remains but partially
satisfied ; that a transcript thereof has been filed in the
clerk's office of the district court of Richardson county,
and that this suit is based thereon. He also admits the al-
legations of the petition in tlie suit of Greever and others;
and further answering, by way of cross-|)etition, the de-
fendant alleges that, after the rendition of said judgment,
he entereil into an agreement with one Allen Fowler, as
the executor of S. F. Nuckolls, deceased, whereby certain
litigation then pending in the district court of Otoe county,
l>etween this defendant and Fowler, as executor, and cer-
tain other matters in difference between defendant and said
exe<tntor should be settled and amicably arranged, by virtue
of which said executor agreed to assume and pay off the
758 NEBRASKA REPORTS. [Vol. 30
Descret Natl. Bank v. NackoUs.
said judgment against this defendant in favor of the Descret
bank; that such agreement was made long prior to the
issuing of any execution on said Judgment as mentioned in
the petition, and this defendant further alleges that the
said Allen Fowler, as executor, fairly and fully carried
out the provisions of the agreement entered into; that on
November 21, 1881, said Fowler paid to the holder and
owner of the judgment at Salt Lake City the sum of
$1,698.02, the full amount of the judgment with interest,
but not including any amount collected on execution prior
thereto, as allied in the petition herein, but the whole
amount of the judgment and interest was considered as
due, owing, and payable; that on December 15, 1884, one
A. M. Harmon commenced his action in the district court
of Otoe county against defendant, the Nebraska City Na-
tional Bank, the Deseret National Bank, and others, the
object and purpose of which was to foreclose certain tax
liens held by Harmon on certain lands owned by defendant
in said county of Otoe ; that the plaintiff herein was made
defendant in the action, as the alleged holder of the lien
on said described real estate, which Mas subject to the lien
of the plaintiff Harmon therein; that thereafter, on April
6, 1885, the plaintiff herein, the Deseret bank, filal its
answer, setting up that the judgment against this defendant
in favor of this plaintiff had been duly recovered ; that the
same was a lien upon the premises from the date of its
rendition; that it was at the date of the filing of said
answer still unreversed and unpaid, and was a valid and
subsisting lien upon the premises, and that by said answer
judgment and decree were prayed that the land be sold,
and from the proceeds the judgment, interest, and costs l)e
paid and discharged.
Also on April 7, 1885, at the regular term of the dis-
trict court of Otoe county, j(idgment and decree were ren-
dered therein in favor of the j)laintiff's first lien ujK>n the
real estate, described in the petition, for the aggregate
Vol.. 30] SEPTEMBER TERM, 1890. 75»
DeieretNatl. Banky. Naekolls.
amount of the taxes paid thereon by him^ with interest
thereon to the last date, being the sum of $86.70; and as
to the defendants Greenwood and the Deseret National
Bank, it was found that there was unpaid and due on the
judgment set up in the answer of Greenwood, including
interest, the sum of $262.36, which was a second lien on
said real estate; and that there was due and unpaid on the
judgment set up in the answer of said bank, including in-
terest, the sum of $2,234.49, which was a third lien on
said real estate; and further, that said liens should be en-
forced against the same. The defendant Heath Nuckolls
was required, within twenty days from the rendition of the
judgment and decree, to pay the costs of the action, and for
the benefit of the plaintiiT, the defendants Greenwood and
the Deseret bank were to pay the aggregate amount of the
three liens described, with interest from that date, and in
default of such payment, that said real estate be sold by the
sheriff* of Otoe county, as upon execution at law, and that
the proceeds be applied, first, to the payment of costs; sec-
ond, to the plaintiff''s lien ; third, to the lien of Greenwood,
fourth, to that of the Deseret National Bank, and fifth,
as should be thereafter directed by the court. That by
such sale the defendants Heath Nuckolls and I^cwis Dunn,
and all persons claiming under them, were forever barred
and foreclosed of all right, title, and interest in, to, or
upon said real estate, .the i)ossession of which, after con-
firmation and sale, was by the sheriff^ to be delivered to
the purchaser, to- wit, the west half of tlie southeast quar-
ter of section 7, township 7 north, of range 12 east, in
Otoe county, Nebraska.
On October 1, 1885, the plaintiff in the present suit, by
the receipt of its attorney to the clerk of the district court,
received and had in said action the sum of $798.06, the
surplus aforesaid, and has retained the same and has failed
to pay the amount, or any part thereof, to defendant.
It is further alleged that at the date on which the
760 NEBRASKA REPORTS. [Vol. 30
Deeeret NatL Bank y. NuckoUa.
plaintiff reoeived said sum of $798.06, there was Dothing
due it on the judgment or otherwise; that the same had
been long prior thereto, on December 21, 1881, paid to
plaintiff as it well knew, and has not been repaid though
often requested and is still due and owing, with inter-
est thereon. Further, it is alleged that thp defendant was
not informed of, and did not know the facts as to the judg-
ment until long after the commencement of this action, on
November 1, 1887, and that he was unable to secure the
proof thereof; that all of said transactions occurred in
Utah territory, where the plaintiff and Allen Fowler re-
side ; that defendant was not advised by any person of these
facts, but that the plaintiff had full knowledge of them,
and that the judgment was no longer a lien upon the
property of defendant.
Subsequently, on August 1, 1888, the plaintiff moved to
strike the amended answer of defendant from the files, for
reasons presented to the court, which were overruled. At
the same time the plaintiff moved for an order on the de-
fendant to make his answer more definite and certain,
which motion was overruled. The plaintiff's demurrer to
the defendant's cross-petition and answer, on the grounds
that the same do not contain facts sufficient to maintain a
cause of action, was heard and overruled.
On August 30, 1888, the plaintiff answered the cross-
petition and reply to the amended answer of defendants,
setting up :
1. That the action was instituted, conducted, and pros-
ecuted, from its inception down to June 16, 1888, without
the authority of the plaintiff in the suit.
2. That it was pever served with process in the action
of A. N. Harmon, commenced December 15, 1881, or at any
other time, in the district court of Otoe county against
Heath Nuckolls and others ; that it never made its ap-
pearance in that action, and never authorized any one to enter
or mak^ appearance in the action; that the answer filed
Vol. 30] SEPTEMBER TERM, 1890. 761
Deseret NaiL Bank v. Nuckolls.
April 6, 1 885, purporting to be that of the Deseret Na-
tional Bank, was not the answer of plaintiff^ and was filed
without its knowledge, authority, or consent, and that each
allegation therein made, and the relief asked, were made and
sought without the knowledge, authority, or consent of the
plaintiff; that it has never been within the state of Ne-
braska, but is a national banking association, organized un-
der the laws of the United States in the territory of Utah,
and has never had any officer or managing agent in Ne-
braska^ and that neither the plaintiff nor any of its attorneys
knew of the prosecution of Harmon's action or of the pre-
tended answer filed therein until the 16th day of June,
1888.
3. That S. H. Calhoun was not the attorney of said
Deseret Imnk, and had no authority to file its answer or to
receive said sum of f 798.06 as the attorney of the plaint-
iff or otherwise, and plaintiff denies that said sum, or any
part thereof, was ever paid to it, or to its attorney.
4. The plaintiff further denies any allegation in the
cross-petition set up not in this answer admitted.
For a second defense to the cross-petition oi Heath
Nuckolls, the Deseret bank, not waiving its defense herein-
before set forth, further alleges :
1. That the action named in the amended answer and
cross-petition, which lately, before the commencement of
this suit, depended in the Otoe county district court,
wherein A. M. Harmon was plaintiff and Heath Nuck-
olls, the Nebraska City National bank, the Deseret National
Bank (this plaintiff ), and Lewis Dunn were defendants, it
was by the plaintiff alleged that the defendant Nuckolls
was the owner in fee simple of the land described as the
west half of the southeast quarter of section 7, township
7 north, of range 12 east, in the county of Otoe, and
tliat the plaintiff had a lien thereon for taxes, and that
the other defendants had each a lien on said land by rea-
son of judgments which each owned and held, of record
762 NEBRASKA REPORTS. [Vol. 30
Deteret NatL Bank t. Nuokollfl.
in the Otoe county district court, in full force and effect;
that the plaintiff petitioned for a sale of said land under
a decree of the court for the purpose of satisfying the
liens thereon in the order of their priority.
2. That the judgment which the plaintiff then had
of record in Otoe county, as a lien on said land, was the
same judgment which the defendant Nuckolls, in this ac-
tion, by his amended answer and cross-petition alleges was
finally and fully paid off and discharged to this plaintiff
on the 21st day of November, 1881.
3. That on April 4, 1886, the defendant Nuckolls filed
his answer in the cause mentioned, admitting that he had
the title to said land, and put in issue the lien claimed by
the plaintiff and those of the other defendants therein.
4. That on April 7, 1885, after the separate answers of
the defendants had been filed, asserting their judgment
liens, the cause was finally heard and judgment entered for
the plaintiff as having the first lien upon said land, for the
aggregate amount of taxes paid thereon, and interest to the
last date, amounting to $86.70 ; and as to the defendants
Gi'eenwood and the Deseret National Bank there was un-
paid and due on the judgment set up in the answer of
Greenwood, including interest, $262.36, which is a second
lien on said real estate; and that there is due and unpaid
on account of the judgment set up in the answer of the
Deseret National Bank, including interest, $2,234.49, which
is the third lien on said real estate, and it was adjudged'
that the said lien should be enforced against said real estate
and in default of the payment of the costs of this suit,
within twenty days, by the defendant Heath Nuckolls,
who should pay for the benefit of the plaintiff, the defend-
ants Greenwood, and the Deseret National Bank, the aggre-
gate amount of the three liens described, with interest
from the date of the decree, and in default thereof that said
real estate be sold by the sheriff of Otoe county as upon
execution at law, and the proceeds applied to satisfy the
Vol. 30] SEPTEMBER TERM, 1890. 763
Doseret Natl. Bank v. Nuckolls.
costs of suit^ and the amounts of said liens according to
their priorities, with interest, and, further, as the court)
shall thereafter direct; that by such sale the defendants
Nuckolls and Dunn, and all others claiming under them,
or either of them, should be forever barred and foreclosed of
all right, title, and interest in and to said real estate, the
possession of which upon confirmation of such sale shall
be by the sheriff delivered to the purchaser.
5. The Deseret National Bank further sets up that the
judgment remains in full force and effect, unreversed, and
has not been modified or vacated, and that the sum of
$798.06 paid to the attorney, S. H. Calhoun, October 1,
1885, was paid under, by virtue, and in pursuance of the
judgment aforesaid, in said Otoe county district court,
and that the defendant Nuckolls ought not to be |)ermittc*d
to have his answer and cross-petition to sue for the recov-
ery of said sum, forasmuch as the same was paid under
and in pursuance of the orders, decree, and final judgment
of a court of competent jurisdiction, and the matters,
alle^tions, and issues in his answer and cross-petition set
up and made are res adjudicata, and have been finally
settled in the parties to this action.
6. That the Deseret National Bank presents herewith
the complete record of the action of Ha/mon v, Heatli
Nuckolk and otherSj and pleads the same, and the judgment
therein, in bar of the claim asserted in the answer and
cross-petition of the said Heath Nuckolls, with prayer for
the dismissal of the same, with costs.
This reconl is more extended than was required, for the
purpose of presenting the questions upon which, as I con-
ceive, the case must be decided.
It is not deemed necessary to discuss the matters pre-
sented in the first or second jK)ints of the brief of counsel
for the appellant. Although it were true, and so con-
ceded, that the action, to reverse which this appeal was
taken, was commoii<»(Ml in the district court without author-
764 NEBRASKA REPORTS. [Vol. 30
Deseret Natl. Bank ▼ Nuckolls.
ity, and that the cross-petition and counter-claim of the
appellee ought to have been dismissed at the request of the
appellant, even then it is no less true that after such re-
quest was refused by the trial court the appellant, as
defendant to the cross-petition, made answer to the same
upon the merits and submitted to the trial thereof. At
tlie hearing we were all of the opinion that by this course
all questions of the jurisdiction of the court and its right
to hear and determine the cause were waived. In ex-
pressing this view neither the court, nor the writer as a
member of it, wishes to be understood as expressing an
opinion whether or not the appellant pursued the wiser
or more prudent course in answering to the merits rather
than seeking other remedy, as the case stood, upon tlie
overruling*of its motions and demurrer.
The cross-petition of the defendant Nuckolls was in the
nature of an action in assumpsit for money had and re-
ceived by the plaintiff to the use of said defendant. The
plaintiff. The Deseret National Bank, set up, by way of ad-
mission in answer to the defendant's cross-petition and
counter-claim, the identical facts relied upon by the defend-
ant therein as hereinbefore stated, in so far as the same
depended upon the proceedings in the district court of Otoe
county, and pleaded and relied upon the same as being
judicial proceedings in and the judgment of a court of
competent jurisdiction, and in a proceeding wherein it had
jurisdiction as well of the subject-matter as of all the parties
thereto.
It is not deemed necessary to refer to the evidence in
the case other than that of the record in the action of
Harmon v, Nuckolls, The Deseret National Bank, and others,
stated in the cross-petition of the defendant Nuckolls, and
in the answer of the bank. This record is relied upon by
botli parties, and appears to be complete, in due form, and
sufficiently proved. The appellee, in the brief of counsel^
attacks the pleading and brief of ap|)ellant as inconsistent
Vol. 30] SEPTEMBER TERM, 1890. 765
Deseret Natl. Bank ▼. NuckoUa.
in eoi bracing propositions contradictory and paradoxical.
As a criticism, the reflections of counsel are not without
force, and are fairly well taken. Counsel cited the case of
^School Distinct v. Holmes, 16 Neb., 487; that oi Hoppei* v.
Hopper, 11 Paige, Ch. [N. Y.], 46; Bliss on Code Plead-
ings, sec. 243, and MaxwelPs Pleading and Practice [3d
Ed.], 93. The doctrine of all of these authorities is doubtless
correctly laid down by Judge Maxwell, that "while the
Code permits a defendant to set forth in his answ^er as
many grounds of defense, counter-claim, or set-ofl^ as he
may have, and places no limitation upon the right, except
that the party shall state in the verification that he believes
the facts stated in the answer to be true, yet this clearly
requires consistent defenses, because it is impossible for
two alleged grounds of defense, which plainly contradict
each other, to be true." {Citizens Bank v. ChssaUf 29
Ohio St., 78.) The authors in these cases are laying down
a rule for the construction of pleadings when the same are
brought before a court by the established methods. None
of them go to the length of holding that, where an answer
contains two or more inconsistent defenses, and the oppo-
site party, without motion, or in any manner, invokes a
ruling or decision of the court, but proceeds to trial on
such defenses, either in the trial court, or on error, can
he insist that all of such defenses be rejected on account
of their inconsistency with each other. In the case cited
from the 29th Ohio St. Report doubtless the correct prac-
tice was pursued where the court, on motion of the plaint-
iff, ordered the defendant to elect which of the two sup-
posed inconsistent defenses he would rely upon ; and that
case was reversed, not because a correct rule was not fol-
lowed, but because in the judgment of the ap|)ellate court
the two defenses were not inconsistent, and the order for
the defendant to elect in that case was error. In the case
at bar it may be conceded that the defenses set up to the
croes-petition by the answer of the plaintiff in the first
766 NEBRASKA REPORTS. [Vol. 30
Deaeret NatL Bank ▼. Nuckolls.
and second defenses of the answer were inconsistent, and
tliat upon proper application the plaintiff would have been
required to elect upon which of the two defenses pleaded
he would rely. At the same time the inconsistency was
more serious in law than in fact; it was more technical
than objectionable. The plaintiff made no motion requir-
ing the plaintiff to elect^ nor did he take any exception to
the form of the plaintiff's pleading, and I think, there-
fore, jf either count of the answer is found to present a
sufficient defense to the cross-petition, the plaintiff is en-
titled to the benefit of it.
While, as before stated, there is an apparent inconsistency
in the defenses set up in the first and 'second counts of the
plaintiff's answer to the cross-petition, such inconsistency is
more superficial than substantial. The tenor and effectof
the first count are that the defendant was not represented
by an attorney of its employment in the commencement
and prosecution of the action, nor is it chargeable with the
money set up as the foundation of the defendant's counter-
claim, because the attorney who drew and receipted for the
money from the clerk's office of Otoe county was not
authorized to receive money by the plaintiff. These are
the substantial facts alleged in the first count. It is true
there are other facts set up, that the attorney was not that
of the plaintiff authorized to prosecute in its name, or to
accept service of process for it in the suit of Harmon.
But it is not allied that the proceedings in the Otoe
county district court, from the commencement of Harmon's
action up to and including the final judgment therein, were
not, in fact, had and made in a court of competent jurisdic-
tion, nor that such proceedings were not juridical in form.
And the sole object and purposes of the second count were
and are to allege and bring before the court the fact that
the money sued for by the defendant in his counter-claim
was derived from the property of the defendant, and re-
ceived by the plaintiff, if at all, under due process of law,
Vol. 30] SEPTEMBER TERM, 1890. 767
Deseret NatL Bank v. Nuckolli.
as the judgment of a cx)urt of competent jurisdiction act-
ing within the requirements of law.
The fact is not to be denied that there is an apparent
inconsistency in the two propositions : the plaintiff's denial
that it ever received the money, and that it received the
money under the process of law. But it is equally appar-
ent and clear to the whole case, that, while the plaintiff
received the money in the eye of the law, it never did re-
ceive it in point of fact.
There is another view to be taken of the question. So
far as the case presented is concerned the defendant stands
in the attitude of a plaintiff. Although designated as the
defendant, by his cross-petition and counter-claim he in re-
ality sues the Deseret National Bank for money had and
received to his use. Hence it was incumbent upon him,
by his pleadings, to allege, and, by evidence, to prove, the
material facts and circumstances of the receipt of the
money by the plaintiff, and necessary to establish his right
to the money and to demand its return to him. Accordingly
by his cross- petition he set up and alleged all the material
facts, lacking the arguments and conclusions contained in
the first and second counts of the plaintiff's answer, and
the principal if not the sole proof in support of his cross-
bill and counter-claim was the record of the judicial pro-
ceedings of the judgment in Otoe county. To state it
differently and briefly, the defendant, being sued by the
plaintiff in Richardson county, sets up, by cross-petition and
counter-claim against the plaintiff, the commencement of
the suit against him by Harmon in the district court of
Otoe county; the implcafllDg of the Deseret bank in the
action ; the appearance of the plaintiff therein, and its lien
on the property of the defendant ; the decree and sale of
the property to satisfy the liens of the action; the pay-
ment into court of the proceeds, and the receipt by the
plaintiff of $778.06 in satisfaction of that amount of its
lien and judgment which the defendant claims to recover
768 NEBRASKA REPORTS. [Vol. 30
Deseret Natl. Bank v. Kackolls.
back upon his cross-bill and counter-claim. * Upon the
supposition that the plaintiff had made neither plea nor
answer to this claim, but had only appeared after judgment,
and had brought his cause to this court on appeal, in my
view the identical question would have been presented by
the record which is now before us; and such judgment
could only be affirmed upon its appearing to the court that
it was rendered upon sufficient allegations of pleading, and
upon competent and satisfactory evidence.
A case involving the same question here presented was
brought before the supreme court of the territory of Ne-
braska in the case of Paynter v. Mills, reported in 1 Neb.,
440. So far as appears^ in that report but one prece-
dent was cited as authority, either by counsel in argu-
ment or by the court in its opinion, and that to a collateral
issue. It is probable at that early day but few autiiorities
were aocessibla But the experienced and cultivated mind
of the judge who delivered the opinion directed him to
the same logical conclusions which had already been pro-
mulgated by the jurists of English and American law.
The facts were that certain land had been entered under
an act of congress, for the relief of citizens of towns on
land of the United States under certain circamstances,
approved May 23, 1844. The land being within the cor-
porate limits of the city of Omaha, it was by the purview
of the act made the duty of the mayor to convey the lots
into which the land had been subdivided to such purchas-
ers as were entitled thereto under the provisions of the act;
and in oases of conflicting claimants to any of such town
lots the mayor was "to hear and determine all questions of
title according to law and evidence, and give to the person,
adjudged to have the best title a deed in fee simple.'* A
certain lot was claimed by both John I. Paynter and
Greorge M. Mills, of Omaha. Upon a hearing before the
mayor he decided in favor of the title of Mills, and con-
veyed the lot to him. Paynter brought ejectment for pns-
Vol. 30] SEPTEMBER TERM, 1890. 769
Descrct Nutl. Bank v. Nuckolls.
session, which resulted in a verdict and judgment for th
defendant, from which the plaintiff appealed, and the su-
preme court held that ^Hhe decision of a tribunal acting
within its jurisdiction, whether it be a court or merely a
board, or an officer having special enumerated powers, can
be reviewed or set aside only by a direct proceeding for
that purpose."
In tlie case of Marriott v. Hampton, 7 Term R. [Eng.]^
269, the defendant formerly brought an action against the
plaintiff for goods sold for which the plaintiff had before
paid and taken a receipt; but not being able to produce
the receipt at the trial, and having no otiier proof of the
payment, he could not defend the action, but was obliged to
submit to judgment and pay the money again, and gave a
cognovit for th^ costs. Subsequently^ he found the receipt^
and brought this action for money had and received to re-
cover back the sum wrongfully enforced in payment. But
Lord Kenyon was of the opinion, at the trjal, that since
the money had been paid under legal process it could not
be recovered back again, however unconseientiously re-
tained by the defendant, and the plaintiff was nonsuit'Cd.
The chief just ice said: ^' If this action could be maintained^
I know not what cause of action could ever be at rest.
After recovery by process of law there must be an end of
litigation, otherwise there would be no security for any
person. I cannot, therefore, consent even to grant a rule to
show cause lest it should seem to imply a doubt. It often
happens that new trials are applied for on the ground of
evidence supposed to have been discovered after the trial,
and they are as often refused, but this proposition goes
mucli further.'^
Lord Ashhurst was of the same opinion, and the other
justice, upon the king's bench, said: "It would tend to
encourage the greatest negligence if we were to open a door
to parties to try their causes again because they were not
properly prepared the first time with their evidence."
49
770 NEBRASKA REPORTS. [Vol. 30
Deseret NalL Bank v. Nackolls.
The case of Huffer v. Allen and another y reported in the
Juriat [Eng.], vol. 12, pt. 1, p. 930, is to the same effect, and
it was there held that " A demand for which action was
brought, having been reduced below £20 by payment, and
the plaintiff afterwards signing judgment in default of ap-
pearance for the original claim, and arresting the defendant
by capias on the judgment, the defendant was estopped by
the judgment from alleging that the arrest was malicioasly
made for a sum which did not authorize it/^
The court said : " The judgment must be for the defend-
ants, which I regret, for if the acts of the defendants as
plaintiffs in the former action were willfully done, they are
unjustifiable. But we must stand on the principles and
process of the law. There is here a judgment which is
equivalent to an act of the law, and constitutes an estop-
pel, and I take it that this judgment imparts an abso-
lute incontrollable verity of all the words convey, against
which neither of the parties to the suit can aver anything
so long as it remains. So long as there stands a judg-
ment saying that £28 is due, that cannot be controverted
or called in question. The counsel says, if the plaintiff
cannot maintain this action, he has no other remedy. But
that is not the case. His client might have caused the
judgment to be corrected, and the execution prevented or
set aside; otherwise we are concluded by first principles.
It may be that if the judgment had been first set right,
this action would have aft;erwards lain, but tliere is no
opinion upon this point."
There are abundant American cases, cited by counsel for
the plaintiff, to the same effect: Cm-bet v. Evans j 25 Pa.
St., 310; TiUon v, Gordon^ 1 N. H., 33; Le Grand v,
Francisco, 3 Munford [Va.], SS; James v, CkwU, 2 Brevard
[S. Car.], 174; Stephens v. Howe, 127 Mass., 164; Greena-
baum V. Elliott, 2 Cent. L. J., 439; Kirhlan v. BrotmCs
Admr., 4 Humph. [Tenn.], 174; Binck v. Wood, 43 Bar-
ber [N. Y.], 315.
Vol. 30] SEPTEMBER TERM, 1890. 771
Beseret NatL Bank y. Kackolla.
The only authorities cited to this branch of the case by
counsel for appellee is the latter clause of sea 524 of 1
Greenleaf on Evidence, as follows : "Another qualification
of the rule is that a party is not to be concluded by a prior
.suit or prosecution, where from the nature or course of the
proceedings he could not avail himself of the same means
of defense or of redress which are open to him in the sec-
ond suit" There is nothing in the nature or cause of the
proceedings pointed out in the Harmon suit which the de-
fendant could avail himself of in the second suit, and not
in that one except that at that time he did not know^ as he
alleges, that he had paid off the note upon which the origi-
nal suit had been brought against him in Otoe county.
This allegation falls far short of the facts in the case of
yiarrujfU v. Hainpdenj supra, where the defendant knew
.that he had paid for the goods, but had temporarily lost
the receipt ; and under the rules of evidence of that day
• (K)\ild not prove the fact of payment. No cases are cited
to the text of Greenleaf, but there is a citation to Starkie
on Evidence, 214, 215, which is not pertinent to the ques-
tion, and is doubtless a miscitation.
I am of the opinion, upon the authorities, and from a
consideration of the nature and conclusive character of
judicial proceedings, that the claim, set up by the appellee's
. cross-petition and counter-claim, and proved by the record
produced by him, is insufficient to sustain an action in the
present collateral proceeding. The judgment of the dis-
trict court is therefore reversed, and the counter-claim and
cross-petition of the appellee are dismissed.
Judgment Aocx>RDiNaLY.
The other judges concur.
772 NEBRASKA REPORTS. [Vol. 30
Root T. state Bank.
A. D. Root bt al. v. State Bank.
[Filed Novemher 1H» 1890.]
1. Final Ordor: Ovkr ruling Motion to DrscHABOK Attach-
ment IS NOT. An order oTerraling a motion to discharge an
attachment is not a final order and cannot be reviewed prior to
the rendition of final judgment.
3, Frooeedings in error, held, to be ^rematmelj brooght and
are dismissed.
Error to the district court for Saline county. Tried
below before Morris^ J.
Dawes & Foss^ for plaintiffs in error.
if, H. Fleming y and Haatinga & MoGintie, contra, cttod^
to the contention that the order was not reviewable : WU-^
son V. Shephef'dy 15 Neb., 16; Seidentopfv. Annabily 6 Id.,
524; Drake, Attachment, sec. 419; Talbot v. Pieroe, 14
B. Mon. [Ky.], 195.
Maxwell, J.
The allegations in the case are substantially as follows :
A. D. Root & Co. were indebted to the State Bank of Cfete,
in the sum of $3,000 u[K)n a puomissory note due Septem-
ber 29, 1889, which note was signed by A. D. Root & Co.,
Benjamin Root, and A. D. Root. Benjamin Root was in-
debted to the State Bank in the sum of $2,900, which note
was due August 24, 1889. This note was signed by A.
D. Root as surety. On the 14th day of November the
State Bank caused an order of attachment to be issued
against the said parties, attaching their drug store at Crete,
and also attaching some property which had been the in-
dividual property of Benjamin Root, and which he had
conveyed by deed, in the month of June, 1889, to his
Vol. 30] SEPTEMBER TERM, 1890. 773
Root T. Bute Bank.
wife, Susie Root; also attaching one piece of property
which he had bought and given to his wife, having had
the deed made directly to her more than two and a half
years previous to the issuing of said attachment.
The affidavit for attachment is in the usual form : ^^That
the defendants have assigned and disposed of a part of
their property with intent to defraud their creditors, and
that the defendants are about to convert a part of their prop-
erty into money for the purpose of placing it beyond the
reach of their creditors, and that they have property which
they conceal."
The defendants deny every allegation that is made in
the affidavit for attachment; admit that Benjamin Root
owned block 46, in Crete; that he conveyed it to his wife;
admit that A. D. Root & Co. did own five acres of land
which is near Crete, and they conveyed this five acres to
the wife of Benjamin Root, or, in other words, Benjamin
Root gave this land to his wife; admit that lots 5 and 6,
in block — , were given to Susie Root by her husband,
Benjamin Root, in April, 1887, as a birthday present, the
deed being made direct from the party of whom Benja-
min Root lK>ught the property at that time to his wife, and
never has been changed since, and at which time the firm
of A. D. Root & Co., Benjamin Root, or A. D. Root
owed the State Bank nothing whatever. They set forth
that these transfers were made in good faith, with no in-
tent to defraud their creditors, and they allege the further
fact that at the time the said attachment was issued the
said Benjamin Root had property of the value of $13,355,
and that he owed $7,709, and had a balance, after paying
his creditors, of $5,646 ; that the firm of A. D. Root &
Co. were possessed of property to the value of $12,023.67,
that they owed $4,774.12, and had a balance of assets of
$7,249.55; that they were worth on the day the attach-
ment was made $12,895.55 over and above liabilities,
which property could have been reached, and was liable to
774 NEBRASKA REPORTS. [Vol. 30
Root y. State Bank.
satisfaction of any judgment under execution which might
be issued against them; that at the time the attachment
was issued A. D. Root & Co. owed the State Bank the sum
of $3,000, and, being engaged in a general drug business,
they also owed various firms with whom tiiey did business
an amount of $1,774.12, which amount has all been paid
by the said A. D. Root & Co. since that time, and had
been paid at the time that the motion to dissolve was
made.
A motion to dissolve the attachment was made in the
court below and overruled, and from that order the caui^e
was brought into this court by a petition in error. No
final judgment, so far as appears, has been i*endered in the
case. The action, so far as the record discloses, is still
pending and undetermined. This being the case, the over-
ruling of the motion to discharge the attachment cannot
be reviewed. It is not a final order, as it simply continues
the lien of attachment in force and is subject to further
review up to the time of rendering judgment.
The question here presented was before this court in
Wilson V, Sheplverdy 15 Neb., 15, and it was held that over-
ruling a motion to discharge an attachment was not subject
to review up to the time judgment was rendered. The
question was carefully considered in that case and the de-
cision we believe is right. The proceeding in error in this
court, therefore, is premature and will be
Dismissed.
The other judges concur*
Vol. 30] SEPTEMBER TERM, 1890. 775
Seward t. Klenck.
,80 776
dry OF Seward v. Catherine Klenck, 47 M
[Filed November 18, 1890.]
1. Beview: Failubs to Sebys Bill of Exceptions in Time.
Where a bill of exceptions which coDtained all the testimonjr
was not presented to the attorneys of the adverse party for cor-
rection and amendment for a considerable time after that fixed
by law, and was then signed by the judge against the protest
of the attorneys of the defendant in error, held, that while
errors which occurred doringthe trial oonld not be reviewed, yet
the evidence will be considered for the sole purpose of determin-
ing whether or not there was snfiElcient to sustain the verdict.
2. Evidenoe examined, and held, to support the verdict
Error to the district court for Seward county. Tried
below before Norval, J.
Ed. P. Smith, and D. C. MoKUtip, for plaintiff in error,
B. 8. Norvaiy and B, P. Anderson^ c(ynJLra.
Maxwell^ J.
This is an action brought by the defendant in error
against the plaintiff in error to recover damages sustained
by her from an alleged defect in a sidewalk in the city of
Seward by reason of which she fell and fractured her left
leg.
On the trial of the cause the jury returned a verdict in
her favor for the sum of $1^200, and a motion for a new
trial having been overruledjudgment was entered on the
verdict
The special question was submitted to the jury whether
Mrs. Klenck at the time of the injury was on the side-
walk, and the jury answered in substance that she was. In
view of the condition of the case this finding is important
776 NEBRASKA REPORTS. [Voi. 30
Seward t. Elenok.
After the case was docketed in this court a motion was
made to quash the bill of exceptions, because it was not
reduced to writing and presented to the attorney of the
adverse party within the time required by law.
It appears from the record that the trial took place on
the 7th day of March, 1888, and court adjourned sine die
on the 30th day of April, 1888. No time was taken by
the plaintiff in error to reduce the exceptions to writing,
so that the time to prepare the bill and submit it to the
attorneys of the defendant in error would expire on the
15th day of May of that year. The bill was not presented
to the attorneys of the adverse party or trial judge for his
approval and signature until the 11th day of October,
1888, and was signed by him against the protest of the
attorneys of the defendant in error.
It is the duty of the court to give a liberal construction
to all provisions of the statute relating to the preparation
and signing of bills of exceptions, and, if possible, to pro-
tect the rights of the parties by sustaining such bills. In
tiie case at bar, however, for some reason which does not
clearly appear, the bill was not prepared and presented to
the attorneys of the defendant in error until October next
after the trial. No valid excuse is offered for this delay.
The judge evidently considered the evidence proper to sub-
mit to this court, and signed the bill which contains all
the testimony.
It is apparent that the bill, so far as it embodies the ex-
ceptions taken during the trial, cannot be considered, but
may be retained for the sole purpose of determining
whether the evidence is suflRcient to sustain the verdict.
(Seott V. Waldcch, 11 Neb., 625; Donovan v, Shencin, 16
Id., 130.) The record shows that the jury viewed the
place where the accident occurred and made special find-
ings that the defendant in error was on the sidewalk when
injured.
The attorneys for the city called certain witnesses who
V< L. 30J SEPTEMBER TERM, 1890. 777
Cannon ▼. WUbur.
testified that the defendant in error was angling from the
sidewalk to the street crossing, and that the accident in fact
occurred in the street outside of the sidewalk. The testi-
mony upon this point was in direct conflict and proper for
the jury to decide.
The jury had a much better opportunity of determining
the facts than is possessed by this court, and the verdict
appears to be based upon the testimony. The judgment
is therefore
Affirmed.
Cobb, Ch. J., concurs.
NoRVAL, J., haying tried the case in the court below^
did not siU
Martin Cannon v. M. C. Wilbur.
[Filed Novkmbek 18, 1890.]
1. Lease : Forfeiture: Notice Keqitired. In order that a land-
lord may avail himself of an option contained in his lease to
terminate the same for a failure to pay the rent, he mnst give
the tenant notice of his intention to declare i» forfeiture.
2. : Wbongful Eviction: Measure of Damages. Or<ii-
narily, where a tenant is wrongfnlly evicted by his landlord, the
measnre of the tenant's damages is the rental value of the prop-
erty for the unexpired term, less the amount of rent reserved
by his lease.
3. Evidence considered, and Ae/d, to sustain the verdict.
Erkor to the district court for Douglas county. Tried
below before Doane, J.
Jfio, L. Webstei'y and Seymour G. Wilcox^ for plaintiff
in error, citetl, contending that notice of forfeiture was not
778 NEBRASKA REPORTS. [Vol. 30
Oumoii T. WflJMir.
required: SexUm v. Chicago Storage Cb.^ 21 N. E. Rep.,
920, and cases died; CWton v. Oorham, 38 N. W. Rq»., 76.
Charles OffuU, and jB. W. Patriek, cited, in reply to the
contention: Wilson v. OerhardJty 13 Pac. Rep., 705; He9^
driekson v. Beesm, 21 Neb., 61 ; Code, sees. 1020-22. As
to the measure of damages for wrongful eviction : Suther-
land, Damages, sec. 149, and cases; Mack v. Faichir^ 42
N. Y., 167, and cases.
NOBVAIi, J.
This is an action for damages which the plaintiff claims
to have sustained hj reason of the defendant unlawfully
terminating a certain lease entered into between the plaiat-
iff and defendant, whereby the plaintiff lost the benefit of
the possession of the leased premises. A trial was had to
a jury, with verdict and judgment for the plaintiff for |510.
The defendant's motion for a new trial was overruled, and
he brings the case here for review by proceedings in error.
On the 29th day of November, 1886, the defendant,
Martin Cannon, executed and delivered to Mathew C. Wil-
bur, the plaintiff below, a written lease of a barn and other
improvements, situated on lot 1, in block 205|, in the
city of Omaha, for a term of four years from December
1, 1886, in consideration of an annual rental of $720, paya-
ble semi-annually in advance. The plaintiff paid the de-
fendant about December 1, 1886, $360 rent in advance, and
went into possession of the premises under the lease, and
continued to occupy the same until July 30, 1887. Wil-
bur on this date, with the consent of Cannon, subleased
the premises for the remainder of the crm to one J. E.
Blackman for $1,200 per annum, to be paid, $600 August
1, 1887, and $600 every six months thereafter, until the
termination of the lease. It was at the time agreed be-
tween Blackman, Cannon, and Wilbur, that Blackman
should pay to Cannon the $60 per month rent stipulated
Vol* 30] SEPTEMBER TERM, 1890. 779
Cannon y. Wilbnr.
for in the leaRe entered into between the plaintiff and de-
fendant, and Black man promised to pay the plaintiff
Wilbur the remaining $40 per month of said rent. In
pursuance of this arrangement Wilbur vacated the prem-
ises and Blackman immediately took possession thereof,
and paid to Cannon $360 and to Wilbur $240, being the
rent to February 1, 1888. On January 3, 1888, Black-
man assigned his lease to one J. H. McShane, and gave
possession to him. No further rents were paid to Cannon
by either Wilbur, Blackman, or McShane, and about Feb-
ruary 8 Cannon demanded possession of the barn from
McShane. Possession was surrendered and on the same
day McShane again went into possession as Cannon^s ten-
ant, and remained until about March 1, when Cannon
leased the premises to one Proctor for the; period of one
year, at a rental of $75 per month. Each lease containe<l
a stipulation to the effect that if the rent should not be
paid at the time the same became payable, the landlord
should have the right, at his option, to declare the lease at
an end and retake immediate possession of the premises.
The plaintiff introduced evidence tending to show that
defendant Cannon fraudulently procured Blackman to
assign his lease to McShane, in order that McShane might
take possession of the property, and then surrendered the
same to the defendant ; that McShane, in pursuance of that
arrangement, took possession and surrendered the same to
Cannon, and immediately re-entered as the direct tenant
of the defendant.
The defendant s'ti*enuously maintains that he entered
into no fraudulent arrangement to obtain jiossession of the
leased premises. The circumstances disclosed by the tes-
timony were ample to warrant the jury in finding that the
defendant obtained the possession of the premises through
undue means. Cannon took McShane to Blackman to
purchase his lease. The lease is assigned to McShane, who
enters into possession and remains in the occupancy thereof
780 NEBRASKA REPORTS. [Vol. 30
Cannon v. Wilbur.
a short time, vvlien, at the request of Cannon, he volun-
tarily surrenders to him, and on the same day MeShane
goes into possession as Cannon's tenant and remains, with-
out paying rent, until Cannon leases to Proctor for $75
per month, an advance of $180 per year over the rent
Wilbur agreed to pay. The day the rent was due from
Wilbur, or the day following, he saw the defendant and
gave him an order on Black man for six months' rent in
advance, and without notifying the plaintiff that this order
was not paid, or that he intended to terminate the lease, .
the defendant secretly takes possession of the premises and
declares the lease forfeited. The plaintiff was two months
in arrears in the payment of his rent at the time the prem-
ises were leased by Blackman, yet the defendant made no
objection thereto. Why such haste to forfeit the lease
without notice when there was a default of but a few days?
Doubtless the increase of $40 per month in the rental
value of the property was the motive that prompted the
4lefendant's conduct.
As to the right of the defendant to terminate the lease
without giving notice to plaintiff, the court instructed
the jury that, " the right reserved by the terms of the
lease to the lessor. Cannon, was, in case of a failure to piiy
rent, or performance of other conditions of the lease by
Wilbur, at his (Cannon's) option to declare the term at an
end, and to retake immediate possession of the premises.
But in order to avail himself of this option it was the
duty of Cannon to give Wilbur reasonable notice that he
would terminate the lease unless the rent was paid or other
oonditions complied with, and if he i-etook possession
without such notice — without Wilbur's consent, he would
be liable for such damages as might be sustained by 'Wil-
bur by reason of such wrongful act."
It is urged that as the plaintiff had subleased the entire
premises for the balance of his term, he was not entitled to
any notice of forfeiture. Did the subleasing of the prop-
Vol. 30]' SEPTEMBER TERM, 1890, 781
Cannon v. Wilbur.
erty have the effect to make Blackmaa the tenant of tlie
defendant, and to release the plaintiff from all liability on
his covenants to Cannon? This must be determined from
the intention of the parties. In the lease between plaintiff
and Blackman, the latter agreed to pay his rent to the
plaintiff. The amount reserved as rent, and the date of
payment, were different from that stipulated for in the loa^o
between the plaintiff and defendant. Blackman cove-
nanted to yield possession, at the termination of his lease, to
the plaintiff. The lease between the plaintiff and defend-
ant gave the plaintiff an option to purchase the demised
premises within a fixed period, at a stipulated price, while
the other lease contained no such provision. Again , the
defendant received an order from plaintiff on Blackman
for the rent, thus recognizing the plaintiff as his tenant, and
the one he looked to for his rent. The defendant wa.-?
aware that the plaintiff had leased the pi^emises to Black-
man at an increased rate. Wilbur was holden to the de-
fendant for the payment of the rent. .If he was not
released from his covenants to pay rent to Cannon, on what
principle of law was Cannon released from his obligation
to notify the plaintiff of his intention to terminate the
lease? The greater is the necessity for this notice when
the occupant of the premises is in collusion with the de-
fendant to deprive the plaintiff of his rights. In view of
all the facts appearing in evidence we have reached the con-
clusion that the plaintiff was entitled to notice of the in-
tention of the defendant to declare the lease at an end.
The instruction, therefore, stated the law correctly as ap-
plied to the facts in the case.
Exceptions were taken to the third and fourth instruc-
tions given. They are as follows :
"3. If you believe from the evidence that the defendant
Cannon connived with Blackman and McShane or Brown,
or witii either of them, to obtain possession of the prem-
ises described, without the knowledge of Wilbur, and
782 NEBRASKA REPORTS. [Vol. 30
Cannon v. Wilbur.
without having given him any notice of his intention to
terminate the lease^ or that he had done so, and that
thereby Wilbur lost the benefit of the possession of the
premises to which he was entitled under the lease, and if
you further find that the value of such possession was
greater than the rent which he had obligated himself to
pay by the terms of the lease, then and in that case the
plaintiff would be entitled to your verdict
*'4. If you find for the plaintiff, the rate of damages
would be the difference between the rental value of the
premises and the amount which, under the terms, he
was obligated to pay as rent for the balance of the term,
after he was so deprived of the possession."
It is claimed that these instructions were erron^us ^for
two reasons: First, that, under the pleadings and evidence,
the plaintiff had no right of action; second, that no evi-
dence was introduced tending to show the rental value of
the property.
The defendant unlawfully obtained possession of the
premises and canceled the plaintiff's lease, thereby dam-
aging the plaintiff to the extent that the rental value
exceeded the amount of rent that the plaintiff promised
to pay. It is now firmly settled by the decisions that,
where a landlord unlawfully takes possession of the leased
premises and withholds the same from his tenant, a cause of
action arises in favor of the tenant, and the measure of his
damages, ordinarily, is the rental value of the unexpired
term less the amount of i*ent reserved by the lease. {Maok
v,Patchen, 42 N., Y., 167.) And it makes no difference
that such possession was obtained by collusiou and fraud.
The undisputed testimony shows that Blackman leased
the property at a monthly rental of $100, and that sub-
sequently Proctor rented for a year at |75 per month. No
other proof was offered as to the rental value of the prop-
erty. It is urged that this was not competent evidence. It
was certainly competent to prove the price the property
Vol. 30] SEPTEMBER TERM, 1890. 783
FriedlaDder t. Byder.
rented for at or near the time the eviction took place.
The diifereuce between the rent reserved in the lease be-
tween the plaintiff and the defendant and the rent paid by
Proctor was $15 per month^ which for two years and ten
months, the unexpired term of the lease^ makes $510^ the
amount of damages assessed by the jury. The verdict is
sustained by the evidence. The judgment is
Affirmed.
The other judges concur.
A. J. Fbiedlander, appellee, v. J. J. Ryder,
ET AL., APPELLANTS.
[Filed Novbhbek 18,1890.]
Lease: Fixtures: Lessee Cannot Re-ektebtd Remove. A
tenant in possession under a lease which does not provide that
he may remove his fixtnres and improvements, cannot, after be
has sarrendered possession to his landlord, re-enter and remove
his fixtures.
•i. : : Rights op Lessee's C&editob. A creditor, by
the levy of an execution upon a tenant's fixtores, acquires no
greater rights therein, or to romove the same, than the tenant
had.
3. : Sale op Premises: Notice op Lessee's Rights.
Whe-i a tenant is in the actual possession of real estate at the
time it is sold by tlie landlord, the purchaser is chargeable with
notice of the rixhts of the tenant.
4. : Fixtures: Must Be Removed Without Injuring
Premises. Unless there is a stipulation in the lease to the con-
trary, a tenant can only remove snch improvements erected by
him, the removal of which will not materially injure the prem-
ises or put them in a worse condition than they were in when he
look posseasion. (Lanphere et al. v. Lowe, 3 Neb., 131.)
130 783
80 226
I 30 7831
48 160|
90 7831
62 67;}'
784 NEBRASKA REPORTS. [Vol. 30
Friedlander t. Ryder.
Appeal from the district court of Douglas county.
Heard below before Wakeley, J.
John P. Breen, for appellant, cited : Van Ness v. Pack-
ard, 2 Pet. [U. 8.], 137 ; Linahan v. Barr, 41 Conn.,
471 ; Rogers v. Brokaw, 26 N. J. Eq., 496; WaU v.
HindSy 4 Gray [Mass.], 271 ; Ombony v. Jones, 19 N. Y.,
234 ; Lanphere v. Lowe, 3 Neb.^ 135 ; Smith v, Whitney,
18 N, E. Rep. [Mass.], 229; Tovmsend v. UnderhiU-, Pa.
Com. PL, 6 Pa. Co. Ct., 545; Wing r. Gray, 36 Vt.,.
261-8; Dubois fj. KeUy, 10 Barb. [N. Y.], 508; Dev-
lin, Deeds, sec. 770; Bietriohs v. R. Cb., 13 Neb., 43;
WUgus V. Gettings, 21 la., 177 ; Wood, Land. & Ten., sec.
516; Mason t». Fenn, 13 111., 525; Waterman v. Clark,
58 Vt., 601; Mills v. Redick, 1 Neb., 437; Sec. Nafl Bk,
V. MeiTiU, 34 N. W. Rep. [Wis.], 614; Kerr v. Kings-
bury, 39 Mich., 150.
A. C, Troup, contra, cited : Godfrey v. Walker, 42 Ga.,
662; Famam v.Hohman, 90 111., 312; Gook v. Creswell,
44 Md., 581 ; Taylor, Land. & Ten., sees. 551 (and note),
553 ; Wood, Land. & Ten., sec. 532, and authorities cited
in note, page 892; Erickson v. Jones, 35 N. W. Rep,
[Minn.], 267; Darrah v. Baird, 101 Pa. St., 265.
NORVAL, J.
On July 8, 1885, one Malina Sanchezerey entered into
an article of agreement for the purchase from tlie South
Omaha Land Company of lot 4, in block 81, South Omaha.
Subsequently she erected on the north half of the lot a
two-story frame building, and on the 1st day of October,
1886, she leased the said north half to one George Boyle
for the term of one year with the privil^e of three years
more, at his option, the stipulated rent being $50 per month.
Boyle went into possession under the lease, and while in
Vol. 30] SEPTEMBER TERM, 1890. 786
Ftledlander v. Ryder.
possession he erected a frame addition to the building which
had been constructed by Mrs. Sanchezerey. The defend-
ants claim that the lease contained a provision giving the
tenant the right to remove all buildings he should con-
struct upon the premises. The plaintiff denies that the
lease contained such stipulation. Mrs. Sanchezerey assigned
her contract of purchase to one Moses Horrowich, on De-
cember 7, 1886, who completed the payments to the South
Omaha Land Company and received a deed for the lot.
On the 30th day of April, 1887, Moses Horrowich and wife
sold and conveyed by warranty deed the lot to Abraham
J. Friedlander, the plaintiff, who is still the owner thereof.
This deed was filed for record in the county clerk's ofSce of
Douglas county on April 23, 1887. Boyle on the 4th day
of February, 1887, assigned the lease to one Thomas Hig-
gins, and on the same day executed a bill of sale to Hig-
gins for the frame addition erected by Boyle. Higgins ^
went into possession of the premises under the lease, and
remained in the occupancy thereof until the latter part of
December, 1887. On the 12th day of January, 1888,
Higgins, it is claimed, assigned the lease to Mary E.
Hewitt, one of the defendants, and at the same time sold
her his interest in the frame addition. The Hewitts took
possession, and paid tW rents for a time. Having quit
paying rent, and being in default thereof, the lease was de-
clared forfeited for that reason, and on March 19, 1888,
the plaintiff A. J. Friedlander brought an action of forci-
ble detainer against Harry Hewitt, the husband, before
J. S. Morrison; a justice of the peace in and for Douglas
county, to recover the possession of the premises. The
justice found the complaint of the plaintiff to be true and
rendered a judgment of restitution on the 4th day of April,
1888. On the same day a writ of restitution was issued,
and two days later the Hewitts were dispossessed by an
oflScer under the writ.
It also appears diat some time in April, 1888, and after
50
786 NEBRASKA REPORTS. [Vol. 30
Friedltmder v. Ryder.
the judgment of restitution was entered, the defendants
Ryder & Glick recovered a small judgment before a justice
of the peace of Douglas county against Harry W. Hewitt
and Mary E. Hewitt, and that an execution was issued
thereon, which was levied upon the frame addition above
referred to, as tlie projjerty of the Hewitts. The oflSoer
holding the execution having advertised the addition for
sale, and the Hewitts having threatened to remove the im-
provement, the plaintiff filed his bill in the district court
to enjoin the sale and removal.
A trial was had to the court, with findings and judgment
for the plaintiff. The defendants appeal.
It is claimed by the appellants that the lease from Mrs.
Sanchezerey to Boyle contained a stipulation that the ten-
ant could remove all buildings he should erect, thereon
during the continuation of the lease. The original lease
was not produced on the trial, and without showing thai
it was not in existence, the defendants introduced a pur-
ported copy thereof, which contained such a clause.
Whether such a provision was in the original lease when
executed is not so clear. The lease, soon after its execu-
tion, was recorded in the county clerk's office of Donglas
county. The record thereof was produced at the trial, and
it contained no stipulation authorizing the tenant to erect
and remove buildings, nor did it prohibit the erection and
removal of improvements. The parties to the lease were
not called to prove its terms. Theodore Elliott and M.
H. Ish, being called as witnesses by the defendants, testi-
fied to having made the copy of the original lease intro-
duced in evidence, after it had been assigned to Mrs.
Hewitt. While it may be true that they made a correct
copy of the paper then before them, they could not know
that it contained the disputed clause at the time of its ex-
ecution, as they never saw the instrument until many
months aft;er it was made. This testimony was not suffi-
cient to overcomei the record of the original made by the
Vol. 30] SEPTEMBER TERM, 1890. 787
Friedlander y. Ryder.
county clerk. The finding of the trial court, that the orig-
inal lease contained no sach a provision, was certainly
justified by the evidence.
Under the lease^ as established by the evidence, the ten-
ant had a right, before the surrender of possession, to
remove any improvements owned by him which are em-
braced under the head of tenant's fixtures, but the tenant
had no authority to remove such improvements after the
termination of the tenancy ; in other words, the tenant
could not re-enter to remove his fixtures after the sur-
render of possession to the landlord. In the case at bar
the addition constructed by the tenant was not removed
before the tenant was ousted under the writ of restitution.
It is true, before the writ of restitution was served, the
execution in favor of Ryder & Glick was levied upon
the addition. But we fail to see how that could affect the
rights of the plaintiff. These creditors, by the levy of
thefr execution, obtained no greater rights in the premises
than had their debtors, the Hewitts. If the Hewitts had
no right to re-enter and remove the property aft^r they had
been dispossessed under the writ of restitution, then it
would seem clear that their creditors had no such right.
It is claimed that the lease was transferred to Mrs.
Hewitt and not to her husband, and as she was not a party
to the forcible detainer suit, she is not bound by the pro-
ceedings therein. It does appear from the copy of the
lease introduced in evidence by the appellants that it was
assigned to her; yet it is equally certain that Friedlander,
the plaintiff, was not aware that Mrs. Hewitt claimed any
interest in the premises until long aft^r this suit was insti-
tuted. The testimony shows that her husband stated to
the plaintiff's agent, Andrew Rosewater, just aflier the
Hewitts took |)ossession, that the lease had been transferred
to Mr. Hewitt. It was he who paid the rent. The tran-
script of the detainer suit shows that Mrs. Hewitt was a
witness for her husband on the trial of that case. There
788 NEBRASKA REPORTS. [Vol. 30
Friedlander v. Ryder.
is ample testimony in the record to warrant the oonchision
that the husband was the plaintiff's tenant. But if it be
conceded that Mrs. Hewitt owned the improvements
claimed as fixtures, she has forfeited all right thereto. She
failed to pay the rent and the lease was forfeited for that
reason. She made no effort to remove the improvements
prior to the taking of possession by the plaintiff of the
leased premises.
The plaintiff contends that he is an innocent purchaser
and had no notice when he purchased from Horrowich
that the tenant in possession claimed to own the addition
in question. The testimony shows that one Hammond
represented the plaintiff in making the purchase. The
testimony introduced for the purpose of showing that
Hammond had actual notice that the addition belonged (o
the tenant, is conflicting and unsatisfactory. Horrowich
and his wife each testified at the trial that they informed
Hammond at the time the deed was executed that the ad-
dition did not belong to them but was the property of the
tenant. This is contradicted by the testimony of Ham-
mond. As a reviewing court, we only examine the evi-
dence to see whether it sustains the finding of the trial
court. The testimony of Hammond, if true, was sufficient
to base a finding tliat the plaintiff was not chargeable
with actual notice of the rights, of the tenant. In our
view, it is quite immaterial whether Friedlander had ac-
tual notice of the claims of the tenant or not. The latter
was in the open, notorious possession at the time the
plaintiff became the owner of the lot. This was sufficient
notice of the rights of the tenant. ( Wing v. Gray, 36 Vt*,
261; Dubois v. Kelly, 10 Barb., 608; Devlin on Deeds,
sec. 770.)
This brings us to the consideration of the question, Was
the addition erected by the tenant of such a character that
the law would permit him to remove it? The evidence
shows that at the time the^premises were leased by Boyle,
Vol. 30] SEPTEMBER TERM, 1890. 789
Frledlander t. Ryder.
there stood upon the lot and attached to it a frame two-
story building. To the front of this building Boyle^
while in possession, erected a frame addition 24x20 feet in
dimensions, two stories in height. It was placed upon
wooden posts set in the ground. This addition, as well as
the old portion of the building, was sided with shiplap.
In the construction of the addition all the windows in the
front of the old building were taken out, the openings
made thereby were sealed up with boards. An opening
was cut in the front of the upper story of the old part
and as a means of communication between the old and new
parts a door was hung therein. The eaves of the main
building, where the addition joined, were cut off, and the
roof of tlie two parts were so connected as to use one
^Irainage. The addition next to the old part was not sided,
but a row of studding was placed there which, as well as
the sill of that side of the addition, were nailed to the
main building. There is also evidence tending to show
that the siding was removed from the front of the old
house where the new was joined. This is denied by some
of appellant's witnesses. It further appears in testimony
that the tenant at one time presented to the landlord a bill
for repairs made by the tenant on the new part, the amount
of which was allowed by the landlord and deducted from
the rents. It is obvious that the new ]>art could not be
removed without material injury to the old portion, and if
separated and removed neither part would be a complete
structure. We do not deny the right to remove this ad-
dition on the ground that it was attached to the freehold,
but because the improvement was of such a character and
was so annexed to the main building that its removal
would greatly injure the demised premises. The modern
decisions are to the effect that a tenant can only remove
such improvements erected by him, the removal of which
will not materially injure the premises or put them in a
worse condition than they were in when he took
790
NEBRASKA REPORTS. [Vol. 30
K. a d^ O. R. Ca T. Frey.
sion. {Lanphere d al. v. Lowe^ 3 Neb., 131 ; 1 Washbam
on Real Property, sec. 27 ; Taylor's Landlord and Tenant,
sec. 550; Whiting v. Bradow, 4 Pickering [Mass.], 311.)
We are convinced, from a careful reading of the testi-
mony, that the improvement placed upon the leased prem-
ises was practically an enlargement of the old building,
and that it cannot be removed without considerable injury
to the premises. The judgment of the district court is
Affirmed.
The other judges concur.
ao
"WO
87
344
ao
790
46
73f>
46^
893
lift too!
46
75
»
790
61
98
K. C. & O. R. Co. ET AL. V. Louis Frey.
[FlLBO NOVEMBBB 19, 1890.]
1. Statutes : GoNsrrruTroyALrrT. A bill which has bat one gen-
eral object that is fairly expressed in the title thereof, is notob-
jecUonable on the ground that it contains two or moze satigecla.
2. : . The act approved March 3, 1881, giving a laborer
and material -man a lien npon a railway for material furnished
and labor performed on such railway does not contain more than
one snbject and is not in conflict with the constitntion.
Error to the district court for Fillmore county,
below before Morris, J.
Tried
HazlM & BcUes, for plaintiffs in error, cited : Cooler,
Const Lim. [4th Ed.], 180-1 ; Aiitonio v. Gould, 34 Tex.,
49; SUsit r. JfcG-ocJfce/i, 42 Id., 383; SmaU^ t?. WhiU, 4
Neb., 353 ; B. & Af. R, Ch. r. Saunders Co., 9 Id., 510 ; Statr
V. Lancaster Cb., 17 Id., 85; State r. Hurds, 19 Id., 323;
Const^, sec. 2, art 3 ; XacJierter r. Price, 11 Ind., 199;
State r. lou«^, 47 Id., 150; Jones r. Thomjjson, 12 Busk
Vol. 30] SEPTEMBER TERM, 1890. 791
K. C. & O. R. Go. y. Frey.
[Ky.], 394; Rushing v. Sebree, Id., 198; State v. Kin-
sdla^ 14 Miun., 395; Boggs v. Washington Co.y 10 Neb.,
298; White V. Lincoln, 5 Id., 514; Ex parte Thomason.lS
Id., 238; Ives v. Norris, 13 Id., 252 ; Tecumseh v. PhiUipSy
5 Id., 305; Jones v, Lancaster Co,, 6 Id., 486.
Mauie & Sloan, contra, cited : £. & M. R. Cb. v, Saun-
ders Co., 16 Neb., 123; WhUe v. Lincoln, 5 Id., 515; Peo-
ple V. Mahaney, 13 Mich., 494 ; Santo v. State, 2 la., 208 ;
Herold v. State, 21 Neb., 50.
Maxwell, J.
This action was brought in the district court of Fill-
more county against the plaintiffs in error to foreclose three
liens claimed against tlie road-bed, rolling stock, etc., of the
railway for a balance due on a contract for the construction
of said road through Fillmore county. The first cause of
action was for a balance due the defendant in error on a
subcontract for grading one mile of said road. The second
cause was for work performed on said road by one William
Felker, and the third for work performed thereon by one
A. Parviance. These claims were assigned to the defend-
ant in error before bringing the action.
On the trial of the cause judgment was rendered in favor
of the defendant in error, and the railway company brings
the cause into this court. The principal error relied upon
i . that the act approved March 3, 1881, making the rail-
way companies liable for work performed and material
furnished in the construction or repair of the road, is un-
constitutional and void, because the bill contains more than
one subject not embraced in the title.
-In White v. CUy of Lincoln, 5 Neb., 515, this court
held that where a bill has but one general object it will be
sufficient if the subject is fairly expressed in the title.
The question is very fully considered in People v. Ma-
haney, 13 Mich., 494, and it was held, in effect, that where
792 NEBRASKA REPORTS. [Vol. 30
K. a & O. R. Co. ▼. Frey.
the title expressed the general purpose of the bill it would
be sufficient.
The object of the framers of the constitution was not to
embarrass legislation by making laws unnecessarily re-
strictive in their scope and operation, and thus greatly
multiply their number, but it was intended that a pro-
posed measure should stand upon its own merfts, and
that the several members of the legislature should be ap-
prised of the purpose of the act when called upon to
support or oppose it; in other words, members were
prohibited from joining two or more bills tc^ther in order
that the friends of the several bills may combine and pass
them. It was never designed to place the l^islature in a
straight jacket and prevent it from passing laws having
but one object under an appropriate title. The act in this
case was designed to secure persons aiding in the construc-
tion of a railway, by furnishing either labor or material,
from being defi*auded out of their just dues on a contract.
It is a well known fact that, prior to the taking effect of
the act in question, subcontractoi's not unfrequently failed
to pay their employes or persons who had furnished ma-
terial, and the act in question was designed to remedy that
evil. The railway companies to a great extent can pro-
tect themselves by withholding from the subcontractors
the money due until the legitimate claims against such sub-
contractors for labor and materials have been paid.
The judgment of the court below is right and is
Affiumrd.
The other judges concur.
Vol. 30] SEPTEMBER TERM, 1890. 793
Alexander v. Wilcox.
A. E. Alexander, appellee, v. Clark Wilcox et
AL., APPELLANTS.
[FiLKD NOVEMBBB 19, 1690.]
1. Adverse Possession. Where a person has been in the open,
exclnitiye, notorioas, adverse possession of real estate as owner
for ten years, he thereby acquires an absolute title to the lands
free from the lien created by a tax deed on the property, issued
prior to the commencement of such adverse possession. D^Gette
V. Sheldon, 27 Neb., B29.
2. A tax deed issued more than five years after the expiration of the
time to redeem from the tax sale is invalid, and creates no lien
upon the real estate therein described.
Appeal from the district court for Cass county. Heard
below before Field, J.
Beeson A Root, for appellants, cited: Preston v. Van
Oorder, 81 la., 250; Jarvis v. Peck, 19 Wis., 84 ; Sayles
V. Dams, 22 Wis., 225; Dougherty v. Henarie, 47 Cah, 14 ;
Blackwell, Tax Titles, 544, and citations ; Wygard v. Dahl,
26 Neb., 562; UOeUe v. Sheldon, 27 Id., 829.
NORVAL, J,
This suit was brought by A. E. Alexander on the 7th
day of August, 1888, in the district court of Cass county,
to foreclose two tax liens. The petition contains two
counts. The first cause of action is based upon a tax
deed bearing date July 11, 1870, and the second is upon
a tax deed issued on October 13, 1885, upon a certifi-
cate of purchase dated September 13, 1875. The answer
sets up the statute of limitations, and to the first cause of
action the further defense that the tax purchaser failed to
pay the taxes levied and assessed on the land after the pur-
chase; that the land was sold for such subsequent taxes to
30
793
33
m
33
389
38
570
33
725
33
747
{so-m
»«
497
794 NEBRASKA REPORTS. [Vol. 30
Alexander t. Wilcox.
oue Perry Walker, and that a tax deed was afterwards
issued to said Walker.
Upon a trial to the court a decree was entered in favor
of the plaintiff, foreclosing the tax liens. The defendants
appeal.
The facts in the case are undisputed. On the 25th day
of September, 1866, one J. J. Monroe purchased at tax
sale the east half of the southeast quarter of section 8, town
10, range 14, in Cass county, for the taxes levied thereon
for the year 1865, amounting to $11.52, and that he re-
ceived a certificate of purchase from the county treasurer.
Monroe afterwards paid the taxes on the land for the years
1869, 1872, 1874, 1875, 1878, and 1880, amounting, in
tlie aggregate, to $30.30. On the 11th day of July, 1870,
he surrendered said certificate to the treasurer and received
a tax deed for said land, to which the treasurer failed to
attach his official seal. On the 11th day of January,
1885, Monroe sold and conveyed the land to the plaintiff.
On the 15th day of September, 1875, one S. N. Mer-
riam purchased from the treasurer of Cass county the
northwest quarter of the southeast quarter of section 8,
same town and range, for the taxes of 1874, for the .sum
of $7.43. Afl;erwards he paid the taxes assessed thereon
for the years 1863, 1875, 1877, 1878, 1880, 1881, and
1882, amounting in the aggregate to $34.82. On the 13th
day of October, 1885, the plaintiff A. E. Alexander, being
the owner of the tax certificate, presented it to the treas-
urer and received a tax deed for the lands.
On the 8th day of September, 1868, the taxes levied on
the land first above described for the year 1867, being un-
paid and delinquent, the land was sold by the treasurer to
one Perry Walker, and a certificate of purchase was de-
livered to him. On the 1st day of September, J 874, the
treasurer executed and delivered to said Walket' a deed to
the land, which deed conveyed no title for the reason
that it does not bear the seal of the county treasurer. Sut)-
Vol. 30] SEPTEMBER TERM, 1890. 795
Alexander r. WUooz.
sequeutly Walker conveyed by quitclaim deed to Robert
Maxwell^ who afterwards conveyed the lands to the de-
fendant Clark Wilcox on the 26th day of January, 1875.
Wilcox immediately took possession of the land, and has
been in the continuous, open, notorious, exclusive, adverse
possession thereof ever since. The defendant Gilmore
holds a mortgage on the premises given by his co-defend-
ant Wilcox.
Are the plaintiff's actions barred by the statute of limi-
tation ? It will be observed that the tax deed, which is
made the foundation of the first count of the petition, w&s
issued July 11, 1870, or more than eighteen years prior to
the commencement of this suit. The same land included
in that deed was again sold for taxes to Perry Walker, and
a tax deed was issued to him September 1, 1874. The
defendant Wilcox purchased this tax title on January 25,
1 875, and immediately took possession of the land. He
had been in the open, exclusive, adverse possession thereof
as owner for more than ten years prior to the bringing of
this suit. He thereby acquired an absolute title to the
land free from the tax lien acquired by the plaintiff prior
to Wilcox's possession.
The precise question here involved was before this court
in UQette v. Sheldon, 27 Neb., 829. That was an action
to foreclose a tax lien. The defense was ten years' adverse
possession. Judge Maxwell, in the opinion of the court,
says : ''It was the evident intention of the legislature to
limit the time in which to bring an action for the fore-
closure of tax liens to five years from the time the cause
of action accrued. This is in conformity to the general
purpose of the statute of limitations, that stale claims
shall be barred. The whole tenor of the legislation of
this state has been in favor of the repose of titles to real
estate after a fair opportunity has been given any party
claiming an adverse interest therein to assert his claim
thereto. Hence an action for the possession of real estate
796 KEBRASKA REPORTS. [Vol. 30
Alexander y. Wilcox.
must be brought in ten years ; otherwise it is barred. This
gives security to titles, and is designed to be and is a stat-
ute of quiet enjoyment. The statute in effect says to every
one : Here is a party iu possession of real estate as owner.
If you dispute his claims you must assert your rights in
the courts within the period fixed by law, or the doors of
the courts will be closed against you. This applies to
every one. The law does not distinguish between claims
and claimants, but gives to the adverse occupant for ten
years an absolute title in fee." We see no reason to doubt
the correctness of that decision. It follows that the rights
of the plaintiff are cut off by the adverse possession of the
defendant.
Again, the first cause of action is barred by the special
limitation fixed by the statute for the foreclosure of tax
liens. The plaintiff never acquired any title under the tax
deed, but the same was void on account of the omission of
the treasurer's seal therefrom. He acquired a lien on the
land for the amount of the taxes paid, but the cause of ac-
tion to foreclose such lien accrued at the date of the deed.
He could have brought his suit for that purpose immedi-
ately on the delivery of the deed. He cannot now, after
the lapse of eighteen years, assert his claim.
The tax deed referred to in the second count of the peti-
tion, was based upon a tax certificate issued and dated Sep-
tember 16, 1875. Section 179, chapter 77, Compiled Stat-
utes 1889, authorizes the owner of any certificate of tax
sale to foreclose the same by bringing an action for that
purpose, "at any time before the expiration of five yeai-s
from the date of such certificate."
Sec. 180 of the same chapter provides that, "If the
owner of any such certificate shall fail or neglect either to
demand a deed thereon, or to commence an action for the
foreclosure of the same, as provided in the preceding sec-
tion, within five years from the date thereof, the same
shall cease to be valid or of any force whatever, either as
Vol. 30] SEPTEMBER TERM, 1890. 797
Alexander v. Wilcox.
against the person holding or owning the title adverse
thereto, and all other persons, and as against the state,
county, and all other municipal subdivisions thereof/'
It has been held by this court in a number of cases
that an action to foreclose a tax certificate cannot be
brought until the time given to redeem has expired, and
that such suit is barred after the expiration of five years
from the time the cause of action accrued. [Helphrey v.
Redick, 21 Neb., 80; Parker v. Matheson, Id., 54G ; D'Gette
V. Sheldon, 27 Id., 829.)
It follows from the reason of those cases, that where a
tax deed is demanded after the expiration of five years
from the time limited by law for the redemption from
a tax sale, no lien is acquired by such deed. The tax
deed to Alexander not having been issued until October
13, 1885, or more than ten years after the date of the
certificate, and more than seven years after the expiration
of the time to redeem, it is plain that the plaintiff acquii*ed
no rights in the land thereby. The lien acquired by the
issuing of the tax certificate of September 15, 1875, was
barred when the tax deed was issued thereon. The plaint-
iff could not revive the lien by afterwards taking out'a tax
deed.
What effect the subsequent sale of land, on which a tax
deed is outstanding, has on the holder of such prior deed,
it is unnecessary to decide. The judgment of the district
court is reversed and the action dismissed.
Revbbsed and dismissed.
The other judges concur.
798 NEBRASKA REPORXa [Vol. 30
Coy T. Jone&
j 30 788
i^i-iS LuciEN W. Coy bt al. v. Riohabd D. Jones et ai*.
30 798 '
-^«>'. AND
Marathon County Bank v. Richard D. Jones et al.
[FiLKD NOYEMBEB 25, 1890.]
1. laixnitatdons: Quasi-Penal Actions: Stockholdbb's Lia-
bility. Section 136, chap. 16, €k>mpil6d Statutes, 'which makes
stockholders In a corporation liable for debts contracted by the
corporation while its officers are in default in publishing an an-
nual notice stating ^* the amount of all of its existing debts,'' is
guan'-penal, only, but is not a i>enalty, the evident purpose being
to secure the rights of creditors, and an action to recover such
debts is not barred by the statute of limitations in one year.
(Howell V. BohetiSy 29 Neb., 483.)
Error to the district court for Webster county. Tried
below before Gaslin, J.
Kaley BroB.^ for plaintiffs in error.
Case & MoNeny, corUra.
Per Curiam:
The plaintiffs in error brought their action in the court
below alleging that on February 4, 1884, the Nebraska
Lumber Company, of Red Cloud, in said county, became
a duly authorized corporation under the laws of this state,
of which corporation the defendants were stockholders and
members, and were responsible as such under section 136,
chap. 16, Compiled Statutes. That on April 10, 1888, the
plaintiffs recovered judgment in the court below, against
the said corporation, upon certain promissory notes given
for goods sold and delivered to it for $1,975.84, and costs,
for the collection of which final process was issued and
served, and returned nulla bondy and that said corporation
was thenceforward, and hitherto insolvent
Vol. 30] SEPTEMBER TERM, 1890. 799
Ooy ▼. Jones.
The plaintiffs further alleged that for more than one
year next prior to the time of contracting said indebted-
ness, the corporation had not given notice of the amount of
its existing debts in a newspaper printed in said county, or
elsewhere, as required by the statute, of its incorporation,
by reason of which default the defendants, as stockholders,
became personally liable for the debts and for said judg-
ment recovered against the Nebraska Lumber Company.
To this complaint the defendants demurred as insuffi-
cient to constitute a cause of action, which defense the court
below held to be sufficient, and gave judgment thereon.
From the record it appears that this action was brought
in the court below on September 28, 1888, to secure the
rights of the plaintiffs, as creditors, against the defendants
as stockholders of a defaulting and insolvent corporation.
The defendants' counsel, in their brief, maintain that
this is a penal action merely, and under section 13 of the
Civil Code, that an action for a penalty, or forfeiture, can
only be commenced within one year after the cause of ac-
tion shall have accrued, citing twenty precedents in support
of their view, and endeavoring to bring the case within
their premises.
It is only necessary to state that this question has here-
tofore been considered by the court; that it was fully con-
sidered on a reargument to the court in the case of Howell
V. Roberts, at the last term, 29 Neb,, 4b3, in which it was
held that sec. 136 of chap. 16, Comp. Stats., under which
this action was brought, and ''which makes stockholders in
a corporation liable for debts contracted by the corporation
while its officers are in default in publishing an annual
notice stating the aviourU of alt the existing debts of the cor-
poration, is quasi-penal, but is not a penalty; the evident
purpose being to secure the rights of creditors, and an ac-
tion to secure the rights of creditors, and to recover such
debts, is not bared by the statute of limitations in one
year." ( White v. Blum, 4 Neb., 563 ; Smith v. Steele, 8 Id.,
800 NEBRASKA REPORTS. [Vol. 30
130
-800
jao
8111
80
800
a3
715
mmm
\ 30
800
1 39
851
30
800
45
140
45
797
Brown v. Work.
115; Garrison v. Howe, 17 N. Y., 468; Dooliitle v. Marsh,
11 Neb., 243.)
The judgment of the district court is reversed, and the
cause remanded for further proceedings.
The Marathon County Bank, as plaintiff in error, alleges
that on April 13, 1888, it recovered a judgment against the
same corporation, in the district court of Webster county,
on a promissory note of Kri^man & Co. for $1,542.66,
with interest at ten per cent per annum, payable to said
corporation on Januarys, 1886, dated November 9, 1885,
and indorsed by the defendant R. D. Jones, as president
of said corporation, whereby the corporation was liable
for the same, for tlie sum of $1,920.50 and costs, for the
collection of which final process was issued and served,
and returned nulla bona, and that said corporation was
thenceforward and hitherto insolvent.
Under the same conditions and terms the court below
gave judgment for the defendants and against the plaintiff
in error, and upon the same conditions and terras of the
preceding case, the judgment is reversed and the cause
remanded for further proceedings.
Reversed and remanded.
The other judges concur.
H. E. Brown v. George Z. Work et al.
[Filed Novembbb 25, 1890.]
Fraudulent Conveyances: Unauthobizbd Pbbfbbbnok or
Cbbditobs. B. walb the owuer of a stock of goods valued at
$4,200, and real estate vulaed at $1,500, and was indebted to ten
creditors and firms to the amount of $5,000. The largest crad*
iter ^as R., amounting to $1,800, not yet due. As security to R,
B. delivered to him a mortgage on his real estate and a chattel
mortgage of his entire personal property. In an attachment
Vol. 30] SEPTEMBER TERM, 1890. SOI
Brown v. Work.
proceeding brought by one of the other creditors, Jwhf, that the
mortgages to R. constituted a frandalent disposition of the
property of B. (See W. V, Morse dt Co, v. J. F. Steinrod dt Co,,
W Neb., 108.)
Euijon to the district court for Johnson county. Tried
below before Appelget, J.
C. K, Chamberlain^ and D. F. Osgoody for plaintiff in
error, cited: Waples, Att. & Gam. [Ed. 1885], 56-7, and
note 1; Grimes p. Fan-ingion^ 19 Neb., 45; Deilrich r.
Hufchinson, 20 Id., 52; Hunter v. Soward, 15 'Id., 215
Thvrber v. Sexmier, Id., 541 ; Steele v. Dodd. 14 Id., 496
Hilton V. jRoFs, 9 Id., 409; Kerr, Fraud & Mistake, 384
Clemens v. Biiflhavt, 17 Neb., 335.
8. P, Davidson f contra^ cited: Holland v, Bank^ 22
Neb , 672, 583; Rothell v. Grimes, Id., 526, 531; Mayer
V. Zlnffie, 18 Id., 458.
Cobb, Cm. J.
This cause comes up on error from the district court of
Johnson county.
On the 18th of August, 1888, plaintiffs (who are de-
fendants in error here) commenced an action in the district
court for Johnson county against H. E. Brown, (the plaint-
iff in error here) to recover from him the sum of $420.60
and interest thereon. The same being due for goods and
merchandise purchased from them by said Brown. At
the time of commencing said action said plaintiffs- filed an
affidavit for an attachment against Brown and for gar-
nishee process against one James D. Russell as garnishee.
The two grounds alleged in the affidavit for attachment
were:
First — Fraud practiced by said Browj^ misrepresent-
ing his financial standing in order to obtain the goods on
credit; and,
51
802 NEBRASKA REPORTS. [Vou 30
Brown v. Work.
Second — Averring that said Brown had sold and dis-
posed of his property, or a large part of it, for the pur-
pose of placing it beyond the reach of, and of dieating
and defrauding, his creditors.
An order of attachment was issued and notice in gar-
nishment was served upon Russell, and certain other prop-
erty was attached. A motion was made by Brown to
discharge the attachment, supported by affidavits, in which
it was sought to controvert the allegations in the affidavit
for attachment; and afterwards the plaintiffs filed addi-
tional affidavits sustaining the original affidavit and sup-
})orting the attachment. Upon these affidavits a hearing
was had by the court after Russell, as garnishee, had an-
swei*ed as such, and his answer was also relied upon in
support of the attachment by plaintiffs; and upon this
hearing the court found that the preponderance of the
proof sustained the attachment, and, therefore, the motion
to discharge the same was overruled, to which said Brown
excepted, and brings the cause to this court by petition in
error.
Although stated differentially, there is, substantially, bat
one error assigned, that of the overruling the motion of
the plaintiff in error to discharge the attachment, in the
court below. The grounds of the motion were:
1. Because the facts staled in the affidavit were not suf-
ficient to justify the order.
2. That the statements of fact were not true.
The substantial part of the affidavit was that " the de-
fendant has obtained credit to said amount, and has been
able to and did contract said debt by reason of fraudu-
lently misrepresenting his financial standing, and by fraud
said defendant has since, as affiant is informed, and avers
the fact to be, sold and disposed of his property, or of a
large part thereof, for the purpose of placing it beyond the
reach of, and of cheating and defrauding, his creditors."
Upon the trial the plaintiff offered this affidavit^ and >
Vol. 30] SEPTEMBER TERM, 1890. 803
Brown T. Work.
thoee of W. H. Longmoor, and R. G. Work^ in evidence.
The defendant offered his own, and those of H E. Brown,
D. F. Osgood, C. R. Chamberlain, and J. D. Russell.
The salient facts proved by this evidence, and as to which
there is little, if any, conflict are, that on August 8, 1888,
the plaintiff in error was the owner of a stock of goods of
about the value of $4,200, and of real property in the vil-
lage of Elk Creek of from twelve to fifteen hundred dol-
lars, and was indebted to the amount of about $4,000,
$1,800 of which was owing to James D. Russell, or to the
l)ank, of which he we» manager, not then due; Brown
having previously executed a chattel mortgage to Ella
Longmoor upon a part of his stock of goods, or to all the
groceries of his stock, to secure an indebtedness to her of
$1,875, neither of which, the groceries or the debt, is in-
cluded in the assets or liabilities of Brown, who executed
and delivered to Russell, to secure his claim of $1,800, a
mortgage of all his real estate, and also a chattel mortgage
upon his entire stock of merchandise, both of which con-
veyed to Russell the entire property of Brown. The
chattel mortgage provided that whenever the mortgagee
should deem himself insecure of his debt he might take
immediate possession of the property. These mortgages of
Brown to Russell constitute one of the grounds set up, or
80 intended to be, for the attachment. And the evidence
in the trial court fairly raised the question whether, or not,
a debtor may execute a mortgage, or mortgages, to a cred-
itor, or creditors, whoso claims amount to less than one-
third of the value of his property, and less than one-half
of the entire debts owing by him, upon both his entire real
and personal property, without being chargeable with fraud
against other creditors who may be thereby left without
other security, or any fund in the hands of the debtor for
their payment other than the equities of his estate, if any.
This question was before the court and considered in the
several cases of Morse & Co. r. Steinrod & Cb., SmUh & Co.
804 NEBRASKA REPORTS. [Vol. 30
Brown y. Work.
V. Tlie Same, and Farwell & Co, v. The Same, 29 Neb.,
108. Tliese cases were consolidated, and, in the opinion,
the court, by Judge Maxwell, held that "A creditor may
secure his own debt by taking adequate security, but he
cannot cover up all of a debtor's property, so that other
creditors cannot reach it, where such property greatly ex-
ceeds in value the amount of his claim. The law was
never intended to permit a debtor to place a blanket mort-
gage on all his persohal property to secure a debt of but a
small portion of the value of such property, and thus pre-
vent other creditors from appropriating the same to the.
payment of their claims. * * * Other creditors have
rights in the premises which he must respect by limiting
his security to a sufficient amount to satisfy his claim.''
The case at bar comes i}uite within the principle of this
opinion. Practically a small excess of security sufficient
for accruing costs and expenses, accruing interest, and pos-
sibly for a depreciation in values would be justifiable, but
where the excess of security is so great as to show either an
utter disregard of the rights of other creditors, or a dispor
sition to cut them off from an opportunity to secure their
claims, subject of course to the preference which the law
gives to superior vigilance and activity, the giving of se-
curity on the part of the debtor, and the taking of it by
the creditor, with the knowledge of the existence of the
claims of other creditors, actual or implied, must be held
to be fraudulent as to them.
The first cause set up in the affidavit for attachment will
not he further considered, as one sufficient ground will sus-
tain the action, though there may be others relied u|K>n by
the plaintiff and not sustained* The judgment of the dis-
trict court is
Affirmso.
The other judges concur.
Voj>. 30] SEPTEMBER TERM, 1890. 805
RoKell v. Laa.
James D. Russell v. Hans P. Lau.
[FlLKD NOVEWBEB 25, 1890.]
1. Chattel Mortgage : Salb by Fibst MoRTaAaBs: 8ubplu8.
B., a merchant in failiDg coDdition, gave a mortgage to R. on
his stock of goods valued at $4,000, and also on his real estate,
to secure debts of $1,800, and delivered possession of the goods.
On the following day B. executed a second mortgage on the
goods to secure L. of a debt of $286.86, and, following this,
other mortgages to other creditors, of all of which R. had full
knowledtre, and was given formal notice by L. of his secondary
lien on the goods. R. sold the goods at private sale, satisfying
his own claim, with a surplus retained in his hands of $237.50,
and turned back to B. the remainder of the goods which was
immediately appropriated by other creditors than L., who was
without opportunity of notice. L. brought his action against
R. for the amount of the surplus, which, in the meantime, had
been garnished by W. B. & Ck>. foreign creditors, in an attach-
ment against B. R. appeared and answered as garnishee, fail-
ing to disclose the claim and secondary lien of L., but, under an
order to pay the $237.50 into court, on the judgment of W. B.
& Co., paid the same to their attorney of record, without a sat-
isfaction of the order. On the trial of L.'s action for the sur-
plnsagninst R. judgment was for the plaintiff, and, upon review,
it is held, that the blanket mortgage of R. was void, that he paid
out the surplus in his hands, as garnishee, improvidently, and
is liable for that amount to L.
2. Garnishment : Liability of Garnibheb. A garnishee an-
swering to proceedings in attachment stands in the impartial
attitude of a stake-holder between the parties, and is liable for .
the property in his hands and the amount of his indebtedness,
which can only be discharged by the delivery of the property^
or money, into the court, in compliance with its orders.
Error to the district oourt for Johnson county. Tried
below before Broady, J.
S. P, Dandsoriy for plaintiff in error, cited : Tallon v»
Mi8on, 3 Neb., 75; Herman, Chattel Mtgs., 235-6;
Faulkner r. Meyers, 6 Neb., 418; Burnham r. DooUtile, 14
806 NEBRASKA REPORTS. (^"^ol. 30
Russell y. Lau.
Id., 214 ; Smith v. Aimcow, 11 Id., 478 ; Reed r. Fletcha-^
24 Id., 436, 452; Tuimer v. Killian, 12 Id., 585, 586;
Dcnsnwre v. Tomer, 14 Id., 395; Lee v. Gi'egory, 12 Id.,
284; Davenport Plow Co, v, Mei-wis, 10 Id., 321 ; Simmons
Hdw. Co. V. Brokaw, 7 Id., 409 ; Grimes v. Canthell, 23
Id., 187.
J, 3f. Stewart, and H, F. Rose, contra, cited : Tamer v.
Killitm, 12 Neb., 586 ; Jones, Chattel Mtgs., sea 691, and
cases cited; Linivgei* v, Herron, 18 Neb., 450; 23 Id.,
197; Code, sees. 224-5, 244-49; Fitzgerald v: Hollings-
lowUiy 14 Neb., 1M8; HoUingsworth v, FitzgeraM, 16 Id.,
492 y Clark v. Foxworthy, 14 Id., 241 ; Ed;ney v. Willis, 23
Id., 63; Smith v, Ainscow, 11 Id., 478; Reed v. Fletcher,
24 Id., 452.
Cobb, Ch. J.
On March 26, 1889, defendant in error, as plaintiff,
filed his petition in the district court for Johnson county
against the plaintiff in error and Noyes, Norman & Co.,
A. B. Symnis & Co., W. V. Morse & Co., R. L. McDon-
ald & Co., D. F. Osgood, and C. K. Chamberlain as joint
defendants, alleging that on August 9, 1888, plaintiff and
all the defendants except Osgood and Chamberlain were
creditors of one H. E. Brown, a merchant at Elk Creek,
.Nebraska; that on the 9th day of August, 1888, said
Brown gave a chattel mortgage on his stock of goods to
said Russell to secure the amount due him — $1,800 — ^which
was the first lien on said goods ; that afterwards, but on the
same day, said Brown gave plaintiff Lau a second mort-
gage to secure $286.86; that on August 10, 1888, said
Brown gave a third mortgage to said Noyes, Norman & Co.,
to secure $449. 1 5 ; that afterwards, but on the same day, said
Brown gave a fourth mortgage to A. B. Symms & C'C^., to
secure $218; that afterwards said Brown gave a fifth
Vol.. 30] SEPTEMBER TERM, 1890. 807
Russell ▼. Lau.
mortgage to W. V. Morse & Co., to secure $267.80; and
afterwards said Brown gave a sixth 'mortgage to R. L.
McDonald & Co., to secure $336. Said Ru.^selTs mort-
gage was the first lien, said plaintiff Lau's mortgage was
the second lien, and by its terms was made subject to said
Russell's mortgage; and each of the other mortgages was,
by its terms, made subject to the said mortgages of said
Russell and said plaintiff Lau.
The petition furtlier alleges that on the 9th day of Au-
gust defendant Russell took possession of the said stock
of g(Kxis for the purpose of foreclosing his lien thereon;
that notwithstanding the rights of said plaintiff Lau, said
defendants Russell and Osgood, as agent and attorneys for
Noyes, Norman & Co. and A. B. Symms & Co., and said
Chamberlain acting as agent and attorney for W. V. Morse
& Co. and R. L. McDonald & Co., conspiring together for
the purpose of cheating and defrauding said Lau, without
any legal foreclosure of their mortgages, and without notice,
proceeded to sell said stock of goods, and received as the
proceeds of such sale three thousand and fifty dollars;
that out of said proceeds said Russell, although his claim
thereon was only $1,800, appropriated and converted to
his own use $2,500, and said Osgood and Chamberlain, for
their cotid clients, wrongfully converted to their own use
the balance remaining and being in their hands as the pro-
ceeds of such sale, to-wit, the sum of $1,450; that nothing
has been paid on said Lau's claim, which remains due, with
ten per cent interest thereon from August 9, 1888. Where-
fore plaintiff prays for an accounting of the moneys re-
ceived by said defendants from said sale, and for judgment
against defendants for $286.86 and said interest.
The petition contains the averments, in addition to those
mentioned, that of the money K.oived from sales of
mortgaged property, '^ the defendant Russell, although his
daim upon said fund was but $1,800 and no more, appro-
priated and converted to his own use and benefit the sum
808 NEBRASKA REPORTS. [Vol. 30
Ruasell v. Lao.
of $2,500/* Paragraph five alleges non-payment of
plaintifT's note and mortgage, ''and that plaintifi^ is entitled
to have the same paid by defendants from the proceeds of
the sale of said mortgaged property, so as aforesaid made
by defendants/'
The defendant creditors who participated with Bnssell
in the proBts of the sales of the mortgaged goods, were
non-residents and could not be found.
PlaintiiF in error filed his separate answer, admitting the
receipt by him, from the sale of the mortgaged property,
of $237.50 in excess of the sum secured by his mortgage,
but alleging payment to Work Brothers under an order of
court, in an attachment suit against him as garnishee, for
a defense as to this $237.50.
The reply ''denies that any valid binding or final order
was made therein against said defendant as garnishee, re-
quiring him to pay to said Work Brothers all or any por-
tion of the moneys received by said Russell from the sale
of said mortgaged goods and chattels, and alleges that said
defendant was not compelled by any judgment, order, or
process of said court so to pay over said money as garnishee
or otherwise. 2. If any payment was so made by said
defendant by virtue of said pretended order against him
as garnishee, the same was wholly voluntary on hfe part,
and made with notice, actual and constructive, of the lien
of plaintifi^ on said mortgaged goods, and with full knowl-
edge of the plaintifi^'s rights in the premises.''
The cause was tried to the court, who found the facts as
follows: "The court being fully advised in the premises,
finds in favor of defendant Russell and against plaintifi* as
to all the mortgaged property not sold by defendant Rus-
sell under his mortgage, and as to the allegation of fraud
and conspiracy against him. The court further finds in
favor of plaintiff and against said Russell as to the bal-
ance of the proceeds of the property sold by said Russell
over and above his mortgage debt, and the court finds that
Vol. 30] SEPTEMBER TERM, 1890. 809
Bonell T. Lao.
the amount of the proceeds of said sale over and above
said mortgage debt is $237^ the court finds there is due
plaintiff from said defendant thereon the sum of $237.^^
Upon tliis finding judgment v/as entered for said sum of
$237 and costs taxed at $20.48 against defendant Rus-
sell, whose motion for a new trial was first overruled.
By a more careful inspection of the record than is set
forth by counsel, it appears that the mortgagor made the
transfer on August 8, 1889, and the plaintiff in error took
possession of the stock of goods on the 9th following ; that
later, on that day, the chattel mortgage to the defendant in
error was executed. On the 11th following the defend-
ant's attorney wrote to the plaintiff urging him to have the
goods invoiced and his mortgage legally foreclosed by a pub-
lic sale, upon twenty days' notice, rather than at a private
sale, as it had been understood he contemplated doing. On
the 16th following, this letter of the attorney was acknowl-
edged and reply made by the plaintiff that he was having
an invoice of the goods taken that day, and, when com-
pleted, he would sell $1,800 worth to some one at private
sale, or would give twenty days' notice and sell at auction.
On September 1 the attorney again wrote to the plaintiff in
error expressing surprise that on going to Elk Creek the
week before he found that the plaintiff had disposed of the
goods without notice to defendant and advising the plaint-
iff of his client's intention to make a common defense in
the anticipated replevin suit of another creditor of the
mortgagor, and explaining that it was the plaintiff's duty
after satisfying his own claim, even in the manner he had,
to deliver the remnant to his client as the next junior
mortgagee, and prior creditor to all others. After dispos-
ing at private sale of $2,037 of the goods the mortgagee
returned the remainder to the mortgagor, and, in fact, to
the other creditors junior to the defendant in error.
On March 26, 1889, this action was commenced in the
court below, and a summons issued of which the defendant
810 NEBRASKA REPORTS. [Vol.. 30
Russell ▼. Lau.
Iiad service. On May 7, following, in the attachment pro-
ceedings of Work Brotliers & Co, v. Brown, the mortgagor,
the plaintiff in error, answered as garnishee, setting up his
mortgage on the stock of goods for $1,800; admitting the
sale of $2,040 worth at private sale, without notice, and
the delivery back to the mortgagor of the remainder before
service of notice of garnishment. His answer stated that
** some time after he had taken possession of the goods he
was told by Mr. Rose that be had taken a chattel mortgage
from defendant in favor of H. P. Lau & Co., of Lincoln,
to secure a claim due them. The mortgages, which were
delivered to Chamberlain and Osgood for other creditors,
and that in favor of H. P. Lau & Co , were all executed
and delivered after he had taken possession of the prop-
erty and during the time he remained in possession of it."
It will be observed that no mention is made in this an-
swer of the demand of the defendant in error that he should
sell the goods, if at all, at public sale, after notice, nor of
the commencement of this action in the court below, for
the surplus of sales in his hands, the subject in garnish-
ment. But had he done so the order of garnishment
would have properly been made as it was, that he pay the
surplus into court, and had he complied with the order the
amount of the sufplus would doubtless have been ordered
to be paid over to the defendant in error. But the plaint-
iff in error, as garnishee in the attachment proceedings,
having, in violation of the order of the court in that ease,
paid the money into the hands of the attorney for the
plaintiffs in attachment, it followed that the trial court ren-
dered judgment for a like amount for the plaintiff there.
In the first part of the plaintiff in error's argument,
under subdivision IV of his brief, he directs attention to
tlie fact that before the execution of the chattel mortgage
under which the defendant in error claims rights in this
action, the plaintiff in error had taken possession of the
goods by virtue of his prior mortgage, and thence argues
Vol.30] SEPTEMBER TERM, 1890. 811
Rufcfiell V. Lau.
that tlie mortgagor, not being in posso&sion of the goods at
the date and delivery of the subsequent mortgages^ could
not convey any title or lien to defendant in error, and
further, the plaintiff in error, having taken possession of
the goods, continued to sell the same at retail with the
knowledge and consent of the mortgagor, it was the same
disposition of the property in fact, so far as the other
crcditorswereconcerned, asif the mortgagor had continued
to sell the same at private sale after the execution of the
subsequent mortgages to other creditors.
It is presumed that the main part of this argument is
intended to be predicated upon the theory and supposition
that the mortgage to the plaintiff in error was a legal and
suiBcient instrument, in which condition it has been held,
and is the settled law of this state, that the execution, de-
livery, and filing in the proper office, of a valid chattel
mortgage, conveys to the mortgagee the legal title to such
chattels; and it would, therefore, be altogether doubtful if
the subsequent mortgsige to the defendant in error would
have conveyed any title to the goods then in the pos-
session of the plaintiff in error, and l)eing sold to satisfv
his prior mortgage.
But in the recent case of JST. E. Brown, plaintiff in error,
V. Oeorge L, Work d a/., defendants in errcw', in an opinion
at the present term, ante, p. 800, it was held that this
identical mortgage having been taken upon the entire
personal estate of the mortgagor, of a value largely in ex-
cess of the debt to be secured, and of the creditors' claims,
was fraudulent and void as to the other creditors of the
mortgagor who would be, in case this mortgage were held
valid, thereby cut off from any security of their respective
claims. This mortgage, then, being void, did not stand in
the way of that of the defendant in error, the validity of
which is not otherwise questioned. This I think disposes
of the more important part of the argument of the plaintiff
in error. His further argument that, if the defendant's
812 NEBRASKA REPORTS. [Vou
Ennell v. Lan.
mortgage was worth anything at all, he had the first lien
on the remnants turned back to the mortgagor, and was
obliged to exhaust that remedy before charging the sarplns
of $237.50 garnished by Work Brothers & Co., whose ofdy
lien was upon that surplus, is sufficiently answered in the
reply of the plaintiff below, and not traversed on the trial,
that the sales of the goods were private sales, without notice
to creditors, and that before the plaintiff was informed of
the transaction, and on the same day the mortgagor was
again in possession^ the remainder of the goods was given
up, taken away, and appropriated by other creditors with-
out any probability of plaintiff's recovery from that source.
This allegation was sustained on the trial, and was not
contradicted by any evidence in the case. Under these
circumstances, the plaintiff below pursued his only remedy.
The defense in the court below was the fact of the pay-
ment of the surplus under an order of court into the hands
of the attorney of record for the attachment proceedings of
Work Brothers & Co., against the mortgagor, to which
the plaintiff in error had answered as garnishee.
The judgment in attachment was entered May 23, 1889,
for $434.63, with a finding as to the amount in the hands
of the garnishee, and an oixler that he pay that amount into
the court, to be applied on the judgment of the plaintiff
within twenty days from that date.
It was in evidence on the trial that the defendant paid
the amount, $237.50, to the attorney of the firm of Work
Brothers & Co., who were residents in Chicago, and not
into the court, subject to its order and distribution. The
payment was not made in the court house, nor was any
part of it then entered there of satisfaction. It was also in
evidence that the defendant had full knowledge of the pri-
ority of the second mortgage over that of other creditors
as well as a direct notice from the plaintiff's attorney that
he would be held responsible, in this action, for the sur-
plus in his hands from the sale of the goods, and for itR
Vol. 30] SEPTEMBER TERM, 1890. 813
Raasell t. Lan.
proper application to the prior lien^ thus establishing the
superior claim of the defendant in error^ over that of the
plaintiff in attachment^ to the surplus in the hands of the
garnishee. The courts in view of this evidence, held that
this payment. by the garnishee was not a satisfaction of the
order.
Sec. 224, Civil Code, provides that in proceedings under
attachment, if the garnishee is possessed of any property
of the defendant, or is indebted to him, the court may
order the delivery of such property, and the payment of
the amount owing by the garnishee into court, and (in sec.
225) if he fail to comply with the order of the court, the
plaintiff may proceed against him in an action in his own
name, and such proceedings may be had as in other actions,
and judgment may be rendered for the plaintiff for what
shall appear to be owing by him to the defendant, and for
the costs of the proceedings against the garnishee. Under
these provisions, the court assumed jurisdiction and au-
thority to determine the question of sui)€riority and that of
the liability of the garnishee to a strict compliance with the
order of the court.
In the case of Wilson v. Bumey, 8 Neb., 39, where the
garnishee appeared and answered inconclusively, and an
order was made requiring him to pay a certain sum, owing
by him to the defendant, into court, from which no appeal
was taken, and default having been made by the garnishee,
the judgment was paid after execution, by the defendant's
surety, who recovered the amount in an action against the
garnishee, which was affirmed on error, holding the gar-
nishee to the strict order of the court, and that the surety
was subrogated to the rights of the plaintiff.
And subsequently, in HoUingsworth v. FUzgo-oM, 16 Neb.,
492, it was also held that 'Mn an action by an attachment
plaintiff against a garnishee founded upon an order of*
court, made upon the answer of the garnishee to pay money
into court, the order is not conclusive as to the indebted*
814 NEBRASKA REPORTS. [Vol. 30
Rusuell ▼. Lao.
ness of the garnishee, nor as to his rights, and the question
of indebtedness at* the time of the service of notice of gar-
nishment, may be inquired into in an action by the attach-
ment-plaintiff against the garnishee.'' If such an action
may be brought, it will not be questioned that, under the
circumstances and conditions of this case, the present actior
will lie.
It has been laid down by an accepted authority on pro-
ceedings in attachment that ''As an attaching creditor can
acquire, through the attachment, no greater rights against
the garnishee than the defendant has, except in cases of
fraud, it follows that the extent of the garnishee's liability
is to be determined by the value of the defendant's prop-
erty in his hands, or the amount of the debt due from him
to the defendant.
"The garnishee is a mere stake-holder between the par-
ties, and it would be manifestly unjust, in that position, to
subject him to a judgment for a greater amount than that
in his hands.
"It is his recognized right to discharge himself from
personal liability by delivering into court the property of
the defendant which is in his hands. In such case the
property is wholly within the control of the court, and the
garnishee is thus relieved from all responsibility therefor,
and is not considered as having any further concern in
the proceedings." (Drake on Attachment, p. 661.) This
authority seems fully to justify the ruling of the trial court
in this case.
The plaintiff in error assigns as the seventh error, in the
trial below, the admitting in evidence of the letter of the
attorney of H. P. Lau & Co. to the mortgagee, previous
to the sale of the stock of goods, relating to the claims of
the next creditor.
It has almost uniformly been held that a judgment
would not be reversed for the admission of doubtful evi-
dence on the trial of a cause to the court, without a jury.
Vol. 30] SEPTEMBER TERM, 1890. 815
Whitlook v. Stale, ex rel. School District.
and the reason for this is too plain to be mistaken. But
in this case I think the evidence was admissible generally,
and no fact is stated in the brief taking the case out of the
general rule. The reply of the party was admitted with
it, and he was not denied an opportunity to explain the
circumstances, or' to modify the force of the facts, if he
had so pleased, in his answer as garnishee in attachment.
From all the facts disclosed by the record in this case,
the overreaching mortgage taken by the plaintiff in er-
ror, the knowledge he had of the claims of other credit-
ors, the notice given him by the defendant in error before
the disposition of the goods, his inconclusive answer as
garnishee, and his improvident payment of the surplus in his
hands^ not in accordance with the court, we can only come
to the conclusion that the judgment of the district court
was carefully and properly rendered^ and is therefore to Le
Affirmed.
The other judges concur.
George C. Whitlock v. State, ex rel. School Dis-
trict OP Omaha.
[Filed Novbmbkb 25, 1890.]
1. fnmsts: Land Gbant fob Schools: Ck>NSTBUonoN. Under
the act of 1869, donating " Capitol Square " to the city of Omaha^
the grant provided *' that the said property shall he naed by
said city for the pnrpose of a high school, college, or other insti-
tution of learning, and for no other purpose whatever;** held^ that
this does not include the mere primary department of the com-
mon schools.
: Chanob of AoMiNiSTBATOBa The substitution of the
board of education for the board of regents of the high school,
816 NEBRASKA REPORTS. [Vol.. 30
Whitlock v. State, ex reL School District.
made by the aefe of 1^1, did not change the character of the
trust but merely of tbe body ^hich administered the same.
3. The words "high school," as used in the act, may be defined
as a school where the higher branches of a common school edu-
cation are taught.
Error to the district court for Douglas county. Tried
below before Doane, J.
A, J, Poppleton, and Howard B, Smithy for plaintiff in
error, cited: VanWyck v. Knevals, 106 U. S., 360; Kan,
Poo. R. Co. V. Dunmeyer, 113 U. S., 629; 9 Opinions ol
Attys. Genl., 41; SUcer v. Ladd, 6 Wall. [U. S.], 440;
Perry, Trusts, sec 38-41, 687-700; Dillon, Mun. Corp.,
566-7-8 and note; State v. Benton, 29 Neb., 460.
Lee 8. Estelle, and Wm. E, Healey, contra^ cited : Stale
V, BerUon, 29 Neb., 460.
Maxwell, J.
This action was brought in the district court of Doug-
las county to compel the plaintiff in error to issue a permit
for a one-story brick building to cost about $5,000, to be
erected on " Capitol Square," in the city of Omaha. The
court below rendered judgment in favor of the relator, and
the cause was brought into this court by a petition in error.
The petition of the board of education, which is very
long, sets out the ordinances of the city of Omaha relating
to the erection of new buildings, to show that it was the
duty of the plaintiff in error to grant such permit.
In his answer the plaintiff in error alleges '4hat he is
advised and believes that the effect of the said acts passed
by the said legislatures of the state of Nebraska, and of the
conveyance made in pursuance thereof, is, and has been
from the date of the passage of the iiret of said acts
hereinbefore referred to, approved February 4, 1869, and
the occupancy of said premises, and control thereof by the
Vol. 30] SEPTEMliER TERM, 1890. 817
WhlUock V. ^tate, ex rel. School District.
board of regents, created by said act, on behalf of the city
of Omaha, to vest the legal title of said preniises and the
control and use of said premises in the city of Omaha, and
to vest in said city the sole and exclusive jurisdiction and
control thereof, and that the said board of education, repre-
senting the school district of Omaha, have heretofore, and do
at the present time occupy said premises only by the per-
mission of said city, and that they have no legal right
whatever to occupy, use, or control said premises, save by
the consent and permission of said city of Omaha, and
that the said school district of Omaha, the relator, has no
legal or equitable title to said premises, and that the re-
lator is not in any sense the owner thereof, and is not
entitled under and by virtue of the provisions of the ordi-
nanc^es of said city relating to the inspection of buildings,
herein Itefore referred to, to the building permit applied for.
That prior to the application of the relator to this re-
spondent for said permit, the city council of the city of
Omaha adopted a concarrent resolution, w^ich resolution
was approved on the 6th day of September, 1890, by the
mayor of said city directing the superintendent of build-
ings (this respondent) and all other persons, not to issue
or cause to be issued to any person or corporation a permit
to erect any building upon the grounds hereinbefore de-
scribed, without the express permission of the mayor and
council of said city in writing; which said resolution is
in words and figures following, to-wit:
" ' Resolved, By the city council of the city of Omaha, tlie
mayor concurring, that the superintendent of buildings
and all other persons be and they hereby are instructed and
directed not to issue or cause to be issued to any person, |)er-
sons, company, association, or corporation, a permit to erect
any building upon the grounds commonly known as the
"High School Grounds/' in the city of Omaha, without the
express permission, of the mayor and council of said city
in writing, and said sirperintendent of buildings and all
62
818 NEBRASKA REPORTS. [Vol. 30
Whitlock V. State, ex rel. School DistiioL
officers of said city are directed and instructed to see that
all violations of chapter XVII of the Revised Ordinances
or amendments thereto, for said city, compiled by W. J.
Connell, are prevented, if possible, and all violators thereof
prosecuted and punished.'
'^ And respondent says that in obedience to the said res-
olution and in pursuance of the direction and authority of
the council in that regard, he has declined and refused to
issue any permit for the erection of any building what-
ever upon said premises, and shall continue so to decline
and refuse and to obey said resolution, according to its
tenor and effect, unless otherwise ordered by said city coun-
cil or by the court; that in the year 1869, and before the
passage of the act establishing thcschool distcict of Omaha,
and \yhile the premises in question were in the charge and
control of the board of regents provided for in the act grant-
ing said premises to the city of Omaha, the books, papers,
archives, records, and other public property belonging to
the state of Nebraska, were removed from said premises,
and the 'old capitol building' situated thereon, to the
place designated by law as the capital of the state, to-wit,
Lincoln, Lancaster county, Nebraska, whereby a full and
complete and perfect title in fee became vested in the city
of Omaha, to be held and enjoyed only subject to the con-
ditions and limitations in said act set forth ; and respond-
ent further says that at the date of the passage and approval
of the act creating the city of Omaha a school district and
providing for the government of said district by a board
of education, to-wit, February 6, 1873, and of an act rel-
ative to public schools in metro[)olitan cities which took
effect March 31, 1887, the premises hereinbefore described
as ' High School Square ' and the buildings and erections
thereon were not owned by any school district within the
corporate limits of the city of Omaha. ^ The act of 1869,
transferring the title of capitol square to the city of Omaha,
is as follows :
Vol. 30] SEPTEMBER TERM, 1890. 819
Whitlock y. State, ex rel. School DistrloC.
" * AN ACT to transfer to the city of Omaha for school
purposes the capitol grounds and buikiings in said
city, and to provide a board of regents for the manage-
ment of the same.
" * Whereas, The capitol grounds heretofore occupied
by the state of Nebraska were originally conveyed to the
territory of Nebraska by said city of Omaha ; and,
"'Whereas, After the erection of a capitol building
thereon had been commenced by the government of the
United States, the appropriation therefor was found to be
insufficient; and,
"'Whereas, After the suspension of the construction
of said building for the reason aforesaid, the people of said
city of Omaha contributed the sum of sixty thousand dol-
lars to complete the same ; and,
"' Whkueas, The state of Nebraska has ceased to use
said ctapitol grounds and buildings for the object original ly
contemplated; and,
" * Whereas, The said capitol building is now in a con-
dition to require the expenditure of a large sum before the
said building can be safely used by the state of Nebraska
for any purpose :
" * Sectiox 1 . Therefore^ Be it enacted by the Legislature
of the State of Nebraska: That whenever the books, papers,
archives, records, and other public property belonging to
the state shall be removed from the old capitol building in
the city of Omaha, to the place designated by law as the
capital of this state, the said capitol building and grounds
surrounding the same and whereon the same stands, known
and designated on the lithographed plat of said city as
Capitol square, shall revert to and vest in said city of
Omaha for school purposes; and the governor of this state
is hereby authorized and required, for and on behalf of
this state, to make and execute, under his official seal, the
full and complete conveyance of said property to said city
for the purpose herein mentioned, on or before the first
820 NEBRASKA REPORTS. [Vol. 30
.Whlilock V. State, ex reL School District
day of April, A. D. 1869; Provided, That the said prop-
erty shall be nsed by said city for the purpose of a liigli
school, college, or other institution of learning, and for no
other purpose whatever; And provided further, That said
city shall never alien, convey, lease, or in any manner in-
cumber the same.
" 'Sec. 2. That Alvin Saunders, G. W. Frost, Thoma."?
Davis, J. H. Kellom, Augustus Kountz, and J. M. Wool-
worth, and their successors, be and they are hereby ap-
pointed a board of regents to serve as follows : The two
first named for three years, the two next named for two
years, and the two last named for one year ; the term of
service of each to commence at the date of the passage of
this act and run for the full term herein named afler the
general election for city officers in said city of Omaha, in
1869, so that two of said regents shall be chosen by the
qualified electors of said city at the general election of mu-
nicipal officers in the year 1870, and two of said board at
each annual election thereafter. The said board of r^nts,
or a majority of them, shall receive in behalf of said city
of OmAha, from the state, the aforesaid property, and shall
take possession of the same, and manage and control said
high school, college, or other institution of learning so to
be established, and provide such rules and regulations for
the government of the same as to them shall seem expedi-
ent. Said regents shall continue in office until their suc-
cessors are duly elected and qualified as hereinbefore pro-
vided.
^^ 'Sec. 3. That in case of death, resignation, refusal to
serve, removal from said city, or other disability of one or
more of said regents, the remaining members shall fill
said vacancy or vacancies until the next general election
for city officers of said city. The said regents shall ap-
point a treasurer, who shall give such bonds as they shall
prescribe, and hold his office during the pleasure of the
board, which said officer shall receive for his services such
Vol. 30] SEPTEMBER TERM, 1890. 821
Whitlock ▼. Suite, ex reL School D.striot
reasonable compensation as shall be prescribed by said
board. The nets of a majority of said board shall, in all
respects, Ire as binding and valid as if concurred in by the
whole number of regents hereby appointed.
"*8bc. 4. That no college, school, seminary, or other
institution of learning shall ever be kept in said building
or upon said grounds, or upon any portion thereof, the
control or management whereof shall be placed under the
direction of any religious sect or denomination whatever.
'^ 'Sec. 6. This act shall take effect and be in force from
and after its passage.
"'Approved February 4, 1869."'
The city accepted the trust as specified in the act. In
1871 an act was passed in relation to the schools of Omaha,
sections 1 and 2 of which are as follows :
*'Be it enacted by (he Ijegislature of the State of Nebraska:
That the city of Omaha, excepting a certain part of said
city to be hereinafter designated in this act, shall constitute
one school district, and all schools organized therein under
the general school law are under special acts, creating and
authorizing the board of high school regents in Capitol
Square, in the city of Omaha, and all schools hereafter to
be erected or organized within the limits of said city, shall,
under the direction and regulations of the board of educa-
tion authorized by this act, be public and free to all chil-
dren residing within the limits of said city, between the
ages of five and twenty-one years.
" Sec. 2. The board of education of the city of Omaha
shall consist of two members elected by the electors in
each ward, who sliall be elected in the manner following :
At the annual city election in the year 1872, the electors of
each ward shall elect two members of said board of edu-
cation, one of whom shall hold his office for the term of
one year and one for the term of two years. At the an-
nual election in the year 1873, and annually thereafter*'
822 NEBRASKA REPORTS. [Vol. 30
Whitlock r. State, ex rel. School District
there shall be elected one member from each ward, who
shall hold bis office for two years and until bis successor
shall have been elected and qualified; Provided^ That the
present school board and the board of high school regents
sihall remain in full authority over their respective schools
until the election and organization of the board of educa-
tion to be elected uiidcr the provisions of this act, and no
longer."
Other acts have been passed in relation to the high
school of Omaha which need not be referred to here. The
present board of education is the successor of the board
created by the act of 1871.
The change from the board of r^nts to the board of
education did not change the character of the trust, !)ut
merely provided what body should administer it. In or-
der to determine the powers of the board of education we
must consider the character of the trus^t in the act donating
•'Capitol Square." It was expressly provided "that the
said property shall be used by said city for the purpose of
a high school, college, or other institution of learning, and
for no other purpose whatever."
The city seems to have performed its part of the trust
in good faith and it now protests against the erection of
an inferior building upon the grounds in question for the
sole purpose of a primary department, and contends that
such use of the property would be a violation of the pur-
poses for which the land was c^onveyed. The objection is
well taken. The evident purpose of the act in question
was to create an educational institution of a higher grade
than the primary department of the common schools.
The words " high school, college, or other institution of
learning" indicate this. The words "high school" may
be defined as a school where the higher branches of a com-
mon school education are taught. This does not include a
mere primary school. This school, no doubt, under the
terms of the grant, may be converted into a college or
Vol. 30] SEPTEMBER TERM, 1890. 823
Todd ▼. Can County.
other Tike institution, free alike to all, but cannot be per-
verted from the purpose of the original grant.
The judgment of the district court is reversed and the
cause remanded for further proceedings.
Reversed and remanded.
The other judges concur.
Levi G. Todd et al., appelt.ees, v. Cass County
et al., appellants.
[Filed Novrmbeb 25, 1890.]
1. Elections: Ili.koal Votino: Evidknck Required. In order to
establish the fact that illegal votes were cast at an election in a
spiecified voting precinct, proof mnst be offered by one or more
witnesses having actual knowledge of snch fact that persons
who were not legal voters did actnally vote at such election, and
snch witness or witnesses must designate such illegal voters.
When the proof merely tends to show that the witnesses do not
know all the legal voters in the precinct, and therefore fails to
designate certain voters as illegal, it is insufficient to authorize
the rejection of such votes as illegal.
2. : : Pleading. In contesting an election in court the
allegations of the petition and proof must correspond; in other
words, the plaintiff mnst set forth in his petition the names of
the persons whose votes are claimed to be illegal, in order that
issue may be taken thereon. If such names are unknown at
the time of bringing the action, the contestant afterward should
obtain leave of court to amend his petition, giving a list of the
names of voters claimed to be illegal, and it is the duty of the
court to designate from the evidence the particular persons who
haye voted unlawfully.
3. : Ballots: Presumption of Legality. Where ballots have
been cast in the mode provided by law, the presumption is that
they are legal, and this presumption cannot be overturned by
vague, indefinite, and uncertain testimony.
Appeai, from the district court for Cass county. Heard
below before Broady, J.
824 NEBRASKA REPORTS. [Voi» 30
Todd y. CaaB ( ounty.
T. M. MarqueU, Byron Clark, J. B. Strode^ A. N. Sal-
UvaUy and MaUiew Oering, for appellants, cited : People v.
GcoU, 16 Mich., 283; Sudbury t?. Steams, 21 Pick.
[Mass.], 148; Ex parte Murphy, 7 Cow. [N. Y.], 153;
PeopU V. TuthUl, 31 N. Y., 550; Judkins v. HiU, 60 N.
H., 140.
E, H, Wooley, and J. R, Wd>8ter, contra, cited: Mc-
Crary, Elections [3d Ed.], sees. 647, 548; Knox ». Blair,
1 Bart 621; Brightley, Election Cases, 493; Ruaaell v.
State, 11 Kan., 308; Tarbox v. Sughrue, 12 Pac., Rep.,
939 ; Patten v. Coatea, 41 Ark., Ill ; Burr v. Boyer, 2 Neh.,
267.
Maxwell, J.
This is an action to contest an election held in Cass
county on the 8th day of June, 1889, for the purpose of
voting bonds to erect a court house in said county. It is
allied in the petition :
''Said election was held in the county of Cass on the
8th day of June, 1889, pursuant to notice given therefor,
and the whole number of votes cast for the proposition
submitted was 5,953, of which the proposition incumbent
received 3,078 in favor thereof, and there were cast against
said proposition incumbent 2,875 votes, and upon the can-
vass of said votes said proposition incumbent had an ap-
parent majority of 203 votes; and said proposition, by the
board of canvassers, organized and held by the county clerk,
at the city of Plattsmouth, on the 12th day of June, 1889,
was declared to have received an apparent majority of 203
votes, and the result of said canvass was by the board of
canvassers signed and filed with the board of county com-
missioners of the said county of Cass, and said board of
canvassers declared said proposition carried." The peti-
tion contains the names of fifty persons who, it is allied.
Vol. 30] SEPTEMBER TERM, 1890. 826
Todd V. Gv-s County.
voted in the First ward of said city and were not legal
voters; also the names of fifly-four such persons whom, it
18 alleged, voted in the Second ward, and fifty-seven per-
sons, whose names are set out, that it is alleged were not
legal voters, but voted in the Fourth ward. No names of
allied ill^ral voters are set forth as having voted in the
Third ward, and there is no contest over the Fifth ward.
The reason given for not setting out the names of other
alleged ill^al voters is, that the plaintiffs did not have
access to the poll-books of (he Third ward.
The county of Cass in its answer:
''First — Denies all the facts stated in the contestant's
petition.
' "Second — Alleges that at a point (naming it), which had
formerly competed for the county seat, there were 205 ill^al
votes cast, giving a large number of names, all of which
were cast against said bonds.
" Third — ^That at other points named illegal votes to the
number of more than 150 were cast against said bonds."
It is unnecessary to consider the answer in the case
farther than the general denial, as on the trial, upon the
conclusion of the testimony offered by the contestants, the
defendant moved for a nonsuit on the ground " that the
evidence adduced by the plaintiff in this case does not sus-
tain the allegations of the petition, and is not sufficient to
sustain a finding in favor of said plaintiff and against
these defendants, or any of them.''
The court thereupon took the matter under advisement,
and afterwards filed a lengthy written opinion which, so
far as relates to the cause for declaring the election annulled,
is as follows: "At the polls in the contested wards, on the
part of many on the outside, there was a very active de-
sire to increase the vote for the bonds without regard to
whether the same were legal or illegal votes. There was
not present, either in or out the election board, any oppos-
ing force to prevent illegal voting. The judges of elec-
826
NEBRASKA REPORTa [Vol. 30
Todd V. CaiB Coanty.
tion hid behind the erroneous supposition of the law, that
it was not their duty to challenge, but, on the contrary,
that it was their duty to receive all votes offered by men
that were not challenged by outsiders. There was a moral
or an immoral influence around the polls sufficient to
guard against illegal votes against the bonds, and so the
gates were left wide open for all men to vote who would
ofler ballots. This was weakening to that presutBi>-
tion of legality. Then, to further weaken that presump-
tion, the plaintiffs offer in evidence the records showing
the men on the tax list of personal property, and polls for
spring of 1889 in the several wards of the city, and the
record of votes at the city election in April, 1889, in the
several wards, with evidence tending to show there was a
spirited contest on members of school board at that elec-
tion : the records showing the number of votes and the
names of the voters of the several wards of the bond elec-
tion in dispute; the registry of voters in the several
wards in dispute for th^ general fall election of 1889, and
the records showing the number of votes in the several
wards at the November, 1889, election. The following is
a recapitulation of those records, with some deductions and
stated results :
"abstract op documentaky proofs.
U
5
.2 S
Vote bond elec-
tion contested
Jane, 1889.
OQD
Vote general elec-
tion, 1889.
Excess over high-
est other flgurej
1889. i
First ward
212
2.56
272
227
86
141
147
231
206
82
522
516
627
503
128
239
291
296
276
98
230
291
24H
269
99
283
Second ward
225
Third ward...
335
Fonrth ward
327
Fifth ward
39
Excess
105.3
1243
807
1489
2296
1200
1096
1183
1113
1089
Voi>. 30] septembp:r term, i8yo. 827
Todd V. Chss County.
*' These defendants' statements certainly liave a tendency
to maintain plaintiff's assault against that presumption of
regularity at the bond election in June. It shows that there
was then voted more than double the nidn who paid poll
or personal tax and nearly double as many as they voted
before or after. The circumstances surrounding the fall
election of 1889, as shown by the evidence, would tend to
bring out a full vote.
" There is another record that should be noticed — that
concerning census. The law provides for the taking of the
census of the children with school age, giving sex, name,
age, residence, etc., as means of verification of correctness
thereof. This was done according to law, and the numl)er
of children with school age in the district in which Platts-
mouth is situated was 1,928. The plaintiffs brought this
out for the purjK)se of showing the opportunity of the
witnesses for general acquaintance with the electors, and for
the same pur|)ose showed that the witness, at the request
of the city officials, took the census of the town by taking
the names of the head of the family as to the number of
the family, without giving name, age, sex, or residence of
individuals or other means of verification of correctness.
The plaintiffs asked for the number of children but not
for the population. This was asked for by defendant^^
while cross-examining, although not strictly cross-examina-
tion. The census of the children is authorized by law and
is a l^al and sworn record and must be admitted. The
census of the population was unauthorized by law and was
hearsay, and during its taking it is safe to say that while
one eye was on the census the other was on the county seat.
It cannot be taken as a census nor as a sworn count.
''Still further, the plaintiffs offer, to support their attack
against that presumption, oral testimony of a negative
character. Their witnesses, being interested against them,
are necessarily chosen with reference to high character
as a guarantee that they will l)e truthful, and with good
«28 NEBRASKA REPORTS. [Vou 30
Todd V. Cass County.
opportunities of general and extended acquaintance with
the voters, same having been judges of election in dispute
when they saw the men and heard their names announced,
and some asses^rs, and school census takers, the dif-
ferent vocations of life among the men of the place being
well represented. They ask these witnesses if they knew or
know of these challenged voters. They fail to know or
know of more than twice the number of 203, the majority
canvassed by the bonds.
"These witnesses, in estimating the proportion of the
voters within their knowledge, fixed at a very small frac-
tion, safe for defendants, but give no sufficient reason for
the estimate; tlie examination throughout of each of them
showing a very extensive acquaintance with the names not
challenged. This was satisfactorily illustrated in the ex-
amination of ex-Mayor Johnson and Barber Boone, who
were asked for knowledge on both the challenged and
unchallenged lists, and from the utter unreliability of their
estimates of the proportion of the votes known of by them.
The many striking circumstances of the want of knowledge
of these witnesses and to the records of the same challenged
votes, make the witnesses and the records go together mnch
stronger than either could go alone. The vote in June
was out of all proportion to the other votes, the records,
and out of the knowledge of those of general knowledge
who ought to know. If the bond vote was legal the con-
clusion is irresistible, that there wieis a remarkable tempo-
rary sojourn of voters at that time, never discovered to tax,
to work, or to vote except on that occasion. This event
could not have escaped attention such as to track up in
evidence and find where to place them. Nothing of this
sort is done, except the repeated suggestion of shop hands
and railroad employes. But these men are substantially
9II found, and these undiscovered votes are not to be any
great extent among them, but on the contrary they are
known residents, voters, and taxpayers and unchallenged
Vol. 30] SEPTEMBER TERM, 1890. 829
Todd V. Ca8B Coanty.
voters. This increases the mystery of so many undiscov-
ered voters. That some of the undiscovered voters cast
illegal votes is l)eyond doubt. Whether they were by
men not entitled to vote, or by legal voters repeating under
assumed names, as the evidence sufficiently shows that
the Italians, otherwise called Dagos, did, and under cir-
cumstances audiorizing the belief that they were not legal
voters at all, cannot be determined. How many illegal
votes were cast? The number cannot be named to a cer-
tainty. Were there 203? The number of strangers to
the witnesses, and all the records except of that election
are about three times that number. All the legal votes
must be counted. They will be counted for the bonds.
The evidence is sufficient to find the maximum number of
legal votes in Plattsmouth at the time of the election in
dispute, and the excess in the election in dispute are that
may be fairly said to have been ill^al.
'*In view of all the evidence, I fix, by that maximum of
votes, 1,928, the number of children of school age in the
whole district (too high an estimate for other places in
Nebraska). The evidence is sufficient to show that the
Fifth ward, which is not contested, cast at the election in
dispute substantially a full vote, so that it cast at that
election not enough I^al votes to change their estimates
or results.
''This leads to the conclusion that more than 203 illegal
votes wiTe cast in the other four wards. I am constrained
to feel that the proofs are sufficient to prevail against that
presumption of regularity, so as to call for evidence from
the other side, which they do not offer.
"I therefore find that in this court of equity the bond
election of June 8, 1889, cannot stand. It is therefore
annulled at the cost of Cass county. Defendants except
to all. J. H, Broady, Judged
Charles S. Twiss, the witness who took the school ceu-
sus in March, 1889, and also in March, 1888, was called
830 NEBRASKA REPORTS. [Vou 30
Todd y. CasB Codnty.
as a witness by the plaintiffs^ and testified that he bad
lived in the Thibd ward of Plattsmouth for ten years; that
he had l)een assessor in that ward a number of times, and
that in March, 1889, when taking the census of children
of school age in the city, he had also^ under the direction
of the city council, taken an enumeration of the persons
residing in the city. This testimony was elicited evidently
to show his knowledge of the people residing within the
limits of the city. On cross-examination he testified as
follows:
Q. Mr. Twiss, you may state as a matter of fact if a
larger number of persons have their homes here while
their employment is outside of the city.
A. Yes, a great many of them.
Q. You are not personally acquainted with these folks,
are you.
A. No. I believe a good many of them are working
on farms and their families are living here.
Q. State whether or not a large number of men whose
homes are in Plattsmouth are employed in the service of
the Burlington & Missouri railroad as machinists, car-
penters, repairers, stone masons, brick masons, eta, whose
homes are here and their employment elsewhere,
A. Yes.
Q. How did you take that list, or how did you keep
count of the population here in the city of Plattsmouth
last spring; did you keep a list of all their names, or just
the nuhibers?
A. Of the numbers; I didnH keep the names. I took
the numbers, except of the school children. Of course I
was compelled to take the names of the school children
and the parents, father and mother, and then took down
the names of the different ones between the ages of five
and twenty-one, and when I got the family I would take
tlie number and not the name.
Vol. 30] SEPTEMBER TERM, 1890. 831
Todd y. Oafis County.
Q. Do jou remember the number of school children you
returned between the ages of five and twenty-one?
A, It was 1,928, I think, if I am not mistaken.
Q. Can you state to the.court the population of the city
as found by that census?
A. I cannot exactly, it is a good while; but it was
something over eleven thousand returned to the city coun-
cil.
Q. You may state whether or hot your recollection of
these names or a great number of persons resident in that
ward, and that your knowledge of them comes solely from
meeting them in your o£Scial capacity as census-taker for
the sdiools.
A. Yes.
Q. State to the court whether or not you would be able
to say you know one-third of the people in that ward by
name.
A. I do not,
Q. You may state whether or not you have attended
the meetings in the Third ward, such as primaries and elec-
tions.
A. I have, that is pretty near all of them.
Q. State whether or not, at these meetings, you knew
one-third of the people.
A. I could not call them by name.
Q. State whether or not we have not in the Third ward,
and a good share of the city, a large number of foreigners,
with peculiar and unusual names.
A. Yes, very.
Q. Can you say that you would be able to recall these
names?
A. No, I would not. There is another thing about all
the foreigners, it is a di£Scult matter to get the foreigners
to give a correct list of the children and grown persons,
because the idea is as soon as they give their names they
have to pay more taxes. We have had to work very near
832 NEBRASKA REPORTS. [Vol. 30
Todd ▼. Cass County.
to get the name^. of the school children, and I am confident
I never did get them all. As soon as you commence to
ask questions they think they are going to have more taxi^>
to pay. I have explained it, I was going to say, a thou-
sand and one times; but I have explained it a great many
times, yet it is difficult to get a correct list of the grown
people and children. I always explain it every time I
take the enumeration.
This testimony was not objected to and was proper
cross-examination, and so recognized by the attorneys for
the plaintiffs, who failed to interpose a single objection.
In this state cities are graded according to tlie number
of inhabitants contained therein. Thus, all cities contain-
ing eighty thousand inhabitants, or upwards, are denomi-
nated metropolitan cities, and governed by a statute passed
expressly for said cities. Cities containing more than
, twenty -five thousand and less than eighty thousand inhab-
itants are denominated cities of the first class, and gov-
erned by a statute peculiar to said cities. Cities of the
second class are of two grades, viz., cities containing more
than one thousand inhabitants and less than twenty-five
thousand, and cities containing more than five thousand
and less than twenty-five thousand inhabitants. Each
grade of cities of this class is governed by a statute ap^
plicable to it.
In several cases which have come before this court relat-
ing to the organization of cities, the enumeration has been
taken substantially as testified to by the witness in this
case, the purpose being merely to ascertain the charter
under which the city shall act, and this, doubtless, was the
object of the enumeration ordered by the council in this
case. This witness had peculiar advantages for ascertain-
ing who were residents of the ward in which he resides,
and of the city, yet he testifies that he did not know by
name one-third of the people in his own ward.
Vol. 30] SEPTEMBER TERM, 1890. 833
Todd V. Cass County.
S. W. Dutton, a witness called by the plaintiffs, testified
on his direct examination as follows:
Q. Where do you reside?
A. I reside in the city of Plattsmouth.
Q. In which ward do you reside?
A. In the Tliird ward.
Q. In what business are you engaged?
A. General time keeper of the B. & M. railway for the
lo<;omo(ive department.
Q. Do you keep the time of the workmen in the shops?
A. I supervise the keeping of the time.
Q. I will ask you about how much the force of work-
men in the shop was reduced in the spring of this present
year?
A. About one hundred men.
Q. About one hundred men discharged and the force cut
down that mucli?
A. Yes.
Q. At what time was that cut made?
A. Welly I cannot say exactly what month it was; I
cannot tell without referring to the books.
Q. I will ask you if it was not as early as April?
A. No, I think not.
Q. Was it in May?
A. If I recollect right it was in June. I would not be
positive.
Q. I will ask you after you go from the witness stand
to look that up definitely.
A. I will.
Q. The force was reduced about a hundred?
A. I judge about a hundred.
Q. How many men prior to this reduction did you have
employed in the shops?
A. Do you mean on the shop roll?
Q. Yes, on the shop roll ?
53
834 NEBRASKA REPORTS. [Vou 30
Todd V. Cass Ooanty.
A. Well, there was, to the best of mj recoUeotion, some-
thing over six hundred. That is only one roll though.
Q. What other roll did you keep?
A. The engineers, firemen, and wipere' roll.
Q. That included all on what division?
A. On the whole system.
Q. From what point to what point.
A. From Denver, Colorado, to Plattsmouth, Nebraska,
and from Atchison to Newcastle, the whole system west of
the Missouri river.
Q. A great many of that list would be parties that did
not reside here?
A. Oh yes.
Q. Do you know about how many you had upon that
list of switchmen, wipers, engineers, and firemen that r^ide
here in Plattsmouth?
A. I judge there was likely one hundred or more that
resided in Plattsmouth.
Q. So you had upon your pay rolls altogether some-
thing like seven hundred men that were residents of
Plattsmouth?
A. Something over seven hundred in our department
Q. That was prior to this reduction ?
A. Yes.
Q. What other department was there ?
A. The store department employed about a hundred
men.
Q. Did the store department employ a hundred men
additional?
A. Yes, they have a separate roll.
Q. Who kept that roll?
A. That was under Weed.
Q. Don't you make it up in your general roll?
A. No, it was entirely separate.
Q. What other roll do you have?
A. The store department — ^the station roll.
Vol. 30] SEPTEMBER TERM, 1890. 886
Todd T. Caas Conntj.
Q. What does that include?
A. That indades all the men employed about the sta-
tiouB.
Q. Ib the telegraph operator a station man?
A. Yes, and the employes under him.
Q. About how mauy did he have on this?
A. There is not so many; I judge about ten, likely.
Q. What do they do?
A. There is the agent and two clerks, and there is the
baggage-master, and there are two or three men up in the
store that handle freight — helpers, and two operators.
Q. About ten or a dozen of these?
A. I judge about that.
Q. What was the other roll?
A. Then there is a train service roll, and also a roll for
the trackmen.
Q. How many trackmen reside here?
A. That is impossible for me it say.
Q. Are there any trackmen residing here that you know
of except those that work this section from Plattsmouth
to Oreapolis?
A. I have very little knowledge of the trackmen.
Q. Who keeps the list of trackmen ?
A. I am not aware of the name of the party who keeps
it ; th^ foreman returns it, I suppose.
Q. Are you any way certain about the number you had
upon the pay roll?
A. Yes, I am pretty sure — that is, I am reasonably
j?ure.
Q. Will you bring into court the pay rolls for April
and May of the present year ?
A. I cannot do it.
Q. Where are they?
A. They are in the B. & M. office,
Q. Do you keep duplicates?
A. No, sir.
836 NEBRASKA REPORTS. [Vol.. 80
Todd T. CrtM OODDtj.
Q. In what oiSoe are they?
A. In the office of the superintendent of motor power.
Q. Do you keep a record in your office of them ?
A. No other record except them.
Q. You simply make up the list and sign it.
A. I make up the pay roll.
Q. Do you keep any record in your office of the names?
A. We have a copy of the pay rolL
Q. Will you bring that into court?
A. I cannot do it.
Q. Where is it?
A. In the office.
.Q. Why cannot you bring it?
A. It don't belong to me individually.
Q. You have charge of it?
A. It belongs to the B. & M. railway.
Q. You have cliarge of it?
A. In one sense I have; I have no right to take the
records out of the office.
Q. Will you look at that record and return into court
so as to swear positively to the number of men that you
had upon the shop roll ?
A. Yes^ I can look that up.
Q. For the months of March, April, May, and June,
1889? Also, will you look over your other rolls of the
motive department, or motor power; the engineers, fire-
men, and brakemen, and see how many you know of that
were residents of Plattsmouth?
A. It is impossible for me to tell on that roll who are
residents here, or who are not. It is not s})ecified where
they reside; they are kept alphabetically on the roll.
Q. Is it specified on the roll -where they are to receive
their pay?
A. No, sir.
Q. These train men receive their pay wherever they
catch the pay car?
Vou 30] SEPTEMBER TERM, 1890. 837
Todd T. Catf Oountj.
A. Yes.
Q. I will ask you if there are not a great many men
that work in the shops, that work there a short time and
go elsewhere, or whether they are stable men ?
A. A great many of them — the great body are stable
men — ^but a few are coming and going continually, but not
a great many except when there is a reduction made.
Q. I will ask you if a great many of these shop men
are not men that own their little homes here in Platts-
mouth, and reside here some length of time?
Q. State whether or not there are men that you know
have been residing here some length of time — a good many
of them.
A« I cannot say as to anything like the number; I know
some of them have their homes, quite a goodly number,
but I have no idea what proportion to the whole number;
I don't interest myself particularly about that.
Q. You have quite a number of these Bohemians that
live out in the west part of the crty, have you?
A. Yes.
Q. You have a large number of men that you have
been acquainted with for several years?
A. There is only a small proportion that I would be
personally acquainted with.
Q. I will ask you whether or not a large number, and
if you have any knowledge of it, alx)ut w !..it proportion
of these men are married men living here in town?
A. I have no idea.
Q. Do you know that a large numlwr of them are mar-
ried men living in town here?
A. Certainly, I know there is a lar^o number of mar-
ried men residing here.
Q. I will ask you, Mr. Dntton, if, outside of the mer-
chants of Plattsmouth, the larger part of the population
of Platti»mouth is not made up of railroad men — ^shop
men? * * *
838 NEBRASKA REPORTS. [Vol. 30
Todd T. Cass Oonnty.
Q. How long have you resided here in Plattsmouth ?
A. About fifteen years.
Q. You have been about the city considerably, have
you?
A. Yes.
Q. And you know about all these men that work in the
shopS) don't you ?
A. No, sir.
Q. You know of the men and their names?
A. I know the names. I know we have such men on
the roll, that is all I know.
Q. Now I will ask you if, outside of the merchants and
business men here on Main street, and some carpenters and
stone masons, and lawyers and clerks, and such men as
that — ^if outside of that the population of Plattsmouth is
not principally made up of railroad men and shop men?
A. Why, I can only give my opinion, that likely they
form about one-fifth of the population, they and their
families.
Farther along in his testimony he states that the shop
men and their families in his opinion compose from a fifth
to a third of the population of Plattsmouth. If we take
either estimate, it would give a considerably lai^r num-
ber of men than the votes polled at the election in
question. This witness testified in substance that while he
was unacquainted with certain men whose names were men-
tioned to him, yet for aught he knew they were residents
of Plattsmouth. From the testimony of this witness and
that of others, the whole number of men directly and indi-
rectly employed by the B. & M. Railway Company who
resided in Plattsmouth must have been nearly or quite
1,000.
Joseph W. Johnson, who was called as a witness for the
plaintiffs, testified in substance that he had a general
acquaintance in the city and had held a number of posi-
tions thci*ein, that he had had charge of grading the
Vol. 30] SEPTEMBER TERM, 1890. 839
Tbdd ▼. Cass Connty.
streets, etc., and a number of men were employed in that
business. The exact number does not any where appear.
He testified in substance that while he was unacquainted
with certain persons named, yet such persons might reside
in Flattsmouth without his being acquainted with them.
Some thirteen other witnesses were called who testified
in substance that they were residents of Plattsmouth, and
had been for some time; that they were unacquainted with
certain persons whose names are mentioned, but that such
persons might reside in Plattsmouth and they not be ac-
quainted with them.
The testimony tends to show that in the years 1888 and
1889 the city of Plattsmouth engaged in the construction
of a system of sewerage and paved its principal streets,
and did a large amount of grading, and made other im-
provements. These necessarily required the employment
of a large number of persons. During this time also the
engineers* strike on the C, B. & Q. railway seems to have
been general along the line, and the engineers and firemen
in Plattsmouth, as well as other points on the line, went
out and their places were supplied by others. The exact
number thus affected does not appear, but evidently is
quite large. And there is testimony tending to show that
many of the old employes, as well as the new, had their
homes in Plattsmouth.
It addition to this, it is evident from the testimony that
many of the men connected with the railway company
were young and unmarried. The judge evidently was
aware of the fact in basing his estimate of legal voters
u|K>n the number of school children. This estimate, how-
ever, as shown by the testimony of the enumerator, is
probably greatly below the actual number.
The city election held in the spring of 1889 does not
appear to have involved any im))ortant matter, such as
would arouse the zeal of the mass of voters, and the same
is true of the election in November, 1889. A new regis-
840 NEBRASKA REPORTS. [Vol. 30
Todd T. Cms Cbanty.
try law had just taken effect. Eegistration oould only
take place on certain days, and many, no doubt, who were
connected with train service found it inconvenient or im-
possible to register. Experience has shown that only
where important matters of public interest are at issue
can anything like a full registry of voters or of full ^otes
bc! obtained. From some cause which is not fully shown
a very full vote was polled throughout the entire ooanty
upon the question of issuing bonds.
A better criterion would have been the vote for presi-
dent of the United States, members of the l^islature, and
county officers held in November, 1888, aboat eight
mouths before the bond election. Such election no doubt
called out the full vote of the city, and as no contests seem
to have resulted therefrom it will be presumed to be satis-
factory to all parties. In order to establish the fact that
illegal votes were cast at an election in a specified voting
precinct, proof must be offered by one or more witnesses
having actual knowledge of such fact, that persons who
were not legal voters did actually vote at such election, and
such witness or witnesses must designate such illegal vo-
ters. When the proof merely tends to show that the wit-
nesses do not know all the legal voters in the precinct, and
therefore fails to designate certain votes as illegal, it is in-
sufficient to authorize the rejection of such votes as ill^al.
The testimony in this case tends to show that there were
a greater number of adult males in the city of Piatts-
mouth on the day of election than there were ballots cast.
In regard to the charge of repeating, it is sufficient to say
that there is no proof of it whatever.
So far as appears, the Italians were legal voters and it
is an uncalled for imputation to charge them with the com-
mission of a crime without any evidence to sustain it.
The only pretext for such statement is the testimony of a
witness from the interior of the county who was attending
the election in Plattsmouth, who testifies that in tiie First
Vol. 30] SEPTEMBER TERM, 1890. 841
Todd T. Ous Coanty.
ward he saw six or eight Dagos go towards the polls, but
did not see them vote ; he also claims that tliey went to-
wards the polls two or three times, but he did not see them
vote even once. He states that there was a water closet
back of the building in which the election was held, and
that he himself, although not a voter in that city, had just
visited the water closet. He also, in effect, testifies that he
would be unable to distinguish Italians from Austrians.
In addition to this, this action is based upon the proposi-
tion that certain illegal votes were cast in favor of the
bonds sufficient to change the result. This requires a des-
ignation of the persons who it is alleged were not legal
voters. The allegata et probata must agree. ( William^ v.
Lowe, 4 Neb., 393; Young v. FUley, 19 Id., 543.) The
plaintiff recognizes this rule by giving the names of 161
persons who, it is claimed, were not legal voters. There
was no attempt, however, to prove that the persons named
were not legal voters ; that is, commencing with the first
name and continuing to the last, no individual is selected
and proved to have voted unlawfully.
The issue is made upon the pleadings. A party may
not be able to obtain the names of all the illegal voters
when the petition is filed, and hence may be unable at
first to set them forth in the petition. When, however, he
does obtain such names he must amend his petition to con-
form to what he expects to prove, so that issue may be
taken thereon. The court should afford every reasonable
facility to enable a party contesting to ascertain the facts
as to the casting of unlawful votes. The parties, however,
must act in good faith, and set forth the names of the per-
sons alleged not to be voters. Such cases are not tried
upon vague statements or charges, but by sifting the
list of voters and determining who are not authorized to
vote. It was the duty of the plaintiffs, thereibre, to set
forth the names of at least 203 persons whom they allege
were not autliorized to vote, and introduce proof tending
842 NEBRASKA REPORTS. [Vol. 30
Todd V. Cass Ckranty.
to show that each of tlie individuals named was not a legal
voter. This they have wholly failed to do.
In State v. Pennistoriy 11 Neb., 100, it was held tha(^ a
notice of contest of election which states that the contest-
ant was an elector of the district, the points of contest,
the office contested, and the date at which its duties com-
menced, the person selected to take depositions, and the
time and place of taking the same, is sufficient. That was
a contest for a member of the legislature, and after the
selection of the officers before whom the testimony was to
be taken, they refused to proceed upon the ground that the
notice of contest was insufficient. Thereupon the contest-
ant applied to this court for a mandam^is to compel the
officer who had entered upon the duties of his office in
taking the testimony to proceed and complete the taking
of such testimony. The defendant demurred to the pe-
tition and the demurrer was overruled and the officer
required to proceed and complete the taking of such tes-
timony.
It will be seen a very different question was presented
from that under consideration. The rule is, that where a
vote has been received at an election by officers who have
conformed to the forms of law in its reception, the law
will presume that the vote is legal. {Cirencester Case^ 2
Frans. [El. Cases], 448 ; Orme on Election, 405 ; Porter-^
field V. McCoy, 1 Cong. El. Cases, 261 ; LoyaM v, Nctpfmi,
Id., 620 ; New Jersey Case, 2 Cong. El. Cases, 19 ; Whitakn-
V. CummingSy L. & R. [Mass. El. Cases], 360; 6 Am. &
Eng. Ency. of Law, 428.) And this presumption must
prevail in this ease.
Some comment is made upon the remarks and conduct
of two or three persons on election day, but no fair-minded
person will charge a whole community with the trivial
sayings or conduct of two or three pei-sons. If the proof
in this case was held sufficient to annul the election, it
would be possible, on vague, indefinite charges, or mere
Vol. 30] SEPTEMBER TERM, 1890.
843
Magneau v. FiemoDt
suspieion, to annul any election held in the state. This
cannot be permitted. Elections can only be annulled for
sufficient causes which are open and apparent to all and
susceptible to specific proof.
The judge in the case at bar confesses that he does not
know from the evidence what illegal votes were cast. It
was his duty, however, to have found what particular per-
sons^ if any, voted, illegally, specifying the names, based
upon the testimony.
Upon the whole case it is apparent that the proof is not
sufficient to warrant the judgment annulling the election.
The judgment of the district court is therefore reversed
and the action dismissed.
Reversed and dismibsed.
The other judges concur.
Magnbau et al v. City op Fremont.
[Filed Novembeb 25, 1890.]
1. De Faoto Offioers. The acte of » de facto officer are valid and
binding, so far as the interests of the public or third peraona are •
inyolved.
2. Cities : Council. A mkbtino of the city council, held at a time
other than that fixed by ordinance for a regular meeting, ia
valid, if the mayor and all the council men are present and act
as A body, notwithstanding the meeting was not called by the
mayor or two council men.
: * : Adjourned Sessions. Where such a meeting
is adjourned to a specified date, and at such date a quorum of the
council meet, they may transact any business within the powers
conferred by statute.
QuoBUH. In cities of the second class having
ao
843
32
544
88
84S
39
006
■30
8431
48
m
80
843
51
874
62
217
55
313
.^5
489
65
.oSS
«J 6So/
JH> figlf
,«0~8S'
fei 4831
more than five thousand inhabitants, the council, when in lawful
814 NEBRASKA REPORTS. [Vol. 30
Magneau v. Fremont.
session, may pass any ordidance, by the concnrring Tote of a
majority of all the members elected to the oooncil, or by tbe
affirmative vote of one-half of the whole number of oooncilmen,
with the concurrence of the mayor.
The city conncil of the eity of F. is
composed of eight members. The mayor and four ooancilmen
voted in favor of the passageof a certain ordinance, three mem-
bers voted nay, and one was absent. HeM, That tbe ordinance
was legally passed.
: Occupation Tax : Constitutionality. The proTision
of subdivision 8 of section 52, article 2, chapter 14, Compiled
Statutes, authorizing cities to levy and collect occupation taxes,
is not repugnant to sections 1 and 6 of article 9 of the constitu-
tion.
7. : — 9 — : . Where a city ordinance impgses a fixed
sum upon each of the various avocations therein named, and
makes no exceptions in favor of or against any person who may
desire to pursue the business taxed, held, not to violate the role
respecting uniformity prescribed by the constitution and statute.
8. : : Penalty: Ordinance Void in Pabt. While
the penal provision for the enforcement of an ordinance impos-
ing an occupation tax is void, it does not invalidate the remain-
der of the ordinance. .
ApPEAii from the district court for Dodge connty.
Heard below before Mabshall^ J.
. N. H. Belly and C. Hollenbecky for appellants^ dted:
Cooley, Const. Lim. [2d Ed.], 116; Mays v. CXfudnnati,
1 O. St., 268; B. Co. v. Columbus Co., Id., 77 ; J&ate v.
Wilcox, 45 Mo., 458; Locke, Civ. Gov., sec. 142; SUxU
V. Mayor, 38 N. J. L., 110; State v. Qreen, 27 Neb., 64;
1 Waterman, Corp., 347; HUdsley v. MoEnters, 19 Am.
Dec., 61, note 68; Orem v. Burke, 23 Wend. [N. Y.],
490; People v. Hopson, 1 Denio [N. Y.], 674; ) Dillon,
Mun. Corp. [3d Ed.], 301, and citations; JExparU Wolf,
14 Neb., 24.
Fi'ank DoUzal, and W. H. Mwnger, contra, died
mfrrred to in opinion.
Vol. 30] SEPTEMBER TERM, 1890. 846
Magneaa v. Fremont.
NOEVAIi, J.
This suit was brought in the district court of Dodge
countj^ to enjoin the collection of certain occupation taxes
imposed upon various occupations within the city by ordi-
nance No. 231, and to have said ordinance declared void.
The district court found the issue in favor of the defend-
ants, and dismissed the action. The plaintiffs a[>peal.
The city of Fremont is a city of the second class having
over 5,000 inhabitants. It is divided into four wards, and
under the act or charter which governs cities of that class,
is entitled to eight councilmeu, two from each ward. At
the general election held in said city on the first day of
April^ 1890, E. N. Morse was elected councilman from
the Second ward as the successor to J. J. Lowry, and D.
Hein was elected from the Third ward as the successor to
C. A. Peterson. At a session of the city council held on
April 3, 1890, the votes cast at the last city election were
canvassed and Morse and Hein were declared elected. This
meeting was adjourned to April 4, when the ordinance in
question was introduced and read for the first time. An
adjourned session was held on April 6, when the ordinance
was read the second time, and the meeting was adjourned
to April 9. On that date the council met pursuant to ad-
journment when the ordinance was read a third time and
passed. There were present and participated at this ses-
sion, besides the mayor, councilmen Biles, Esmay, Plam-
beck, Harms, Wilcox, Peterson, and Lowry. On April
7, prior to the passage of this ordinance, the councilmen
elect, Morse and Hein, qualified.
It is contended by the appellants that the ordinance was
never legally passed for the following reasons :
" First — That there were not present at its passage a
quorum of the legal members of the city council.
" Second — That a suflScient number of the l^al mem-
bers of that body did not vote in favor of the passage of
the ordinance.
«46 NEBRASKA REPORTS. [Vou 30
Magueaa y. Fremont,
" Third — Becau.se the mayor had no legal right to vote
upon its passage.
'^ Fourth. Because the ordinance was passed at a meeting
at which the council had no authority to pass an ordinance.''
The first two objections will be considered together. It
is conceded that all who participated at the meeting when
the ordinance was adopted were legal members of the coun-
cil, except Peterson and Lowry, whose right to act is
questioned, on the ground that their successors had pre-
viously qualified on April 7. The statute requires that
two-thirds of all the members of the council shall be nec-
essary to constitute a quorum for the transaction of busi-
ness. It is obvious that if Peterson and Lowry could not
lawfully act with the council at that meeting, no quorum
was present and the ordinance is invalid.
Section 12 of article 2, chapter 14, Compiled Statutes,
provides that in cities of the second class having more
than 5,000 inhabitants there shall be elected annually in
each ward one councilman, who shall hold his office for a
term of two years, and until his successor shall be elected
and qualified. There being no statutory provision fix-
ing a particular date when the term of office of a council-
man shall begin, it is believed that the provisions of said
section 12 control, and that the term of such officer com-
mences immediately after the person elected has qualified.
While Morse and Hein bad qualified, they had not, as
yet, taken their seats in the council, or participated in the
proceedings of that body. The names of Lowry and
Peterson appeared upon the roll of menibers, and they
were recognized as such by other members of the coun-
cil, as well as by the mayor and city clerk. They took
part in the proceedings of the council on A|>ril 9th with-
out objection from any one, although Morse and Hein
were at the time in the council chamber. We conclude,
therefore, that Messrs Morse and Hein were cfe jure offi-
cers and that Lowry and Peterson were de fdcto members
of the city council.
Vol. 30] SEPTEMBER TERM, 1890. 847
Magneau t. Fremont
The cases are numerous which hold that the acts of a
de fado officer, so far as they iovolve the interests of the
public or third persons are as valid and binding as though
he was an officer de jure.
In JEx parte JohnaoTiy 15 Neb., 612, the petitioner had
been tried upon a criminal complaint before a justice of
the peace, convicted and fiued, and ordered committed to
jail until the fine and costs were paid. He applied to this
court for a writ of habeas corpus, alleging that the justice
of the peace before whotn he was convicted, usurped said
office without authority of law. It was held that as the
justice was a de facto officer his acts were valid, and the
writ was denied.
In State, ex reL, v. Oray d al,, 23 Neb., 366, it was held
that 'Hhe acts of councilmen de fado, within the power
of the statutes, will be recognized and upheld.''
In Braidy v. Theriit, 17 Kan., 468, the defendant exer-
cised the duties of councilman of the city of Wathena after
his successor had been elected and qualified. It was held
that Theritt was a de fado officer.
The case of Morion et al. v. Lee, 28 Kan., 286, was a
suit brought by Lee to enjoin the collection of a judgment
rendered by one A. J. Buckland, as justice of the peace
after his term of office had expired, and after the election
and qualification of his successor. It was held that Buck-
land was a justice of the peace de fado, and his acts as such
were valid. The following cases support the same doc-
trine : NoHon v. Shelby Q>., 1 1 8 U. S., 445 ; Garli v. Rhener,
27 Minn., 292; Leach v. People, 122 111., 420; People v.
Bangs, 24 111., 184; TVumbo v. People, 76, 111., 561.
It follows from the reason of these cases that the act^ of
Lowry and Peterson are valid, and that there was a quo-
rum of the city council present at the time the ordinance
was adopted. The authorities cited in the brief of plaint-
iffs do not, in any manner, conflict with the rule for which
we contend in this case, but sustain the proposition that the
848 NEBRASKA REPORTS. [Vol. 30
Magneau ▼. Fremont.
acts of ofiBcers de facto are invalid as to the person }>er-
forming the duties of the office, and are no protection to
him.
It appears from the record, that four members of the
council and the mayor voted in favor of the passage of this
ordinance — three voted against it, and one was absent.
Whether a sufficient number voted in the affirmative, de-
pends upon whether the provisions of section 18, or those
of section 30 of article 2 of chapter 14, Compiled Stat-
utes, control and govern cities of the class of Fremont, in
the passage of ordinances.
Section 18 provides that '' The mayor shall preside at
*all meetings of the city council, and shall have a casting
vote when the council is equally divided, except as other-
wise herein provided, and noiie other, and shall have the
superintending control of all the officers and affiiirs of the
city, and shall take care that the ordinances of the city and
of this act are complied with.^'
Section 30 provides that ''On the passage or adoption
of every resolution or order to enter into a contract by the
mayor and council, the yeas and nays shall be called and
recorded ; and to pass or adopt any by-law, ordinance, or
any such resolution or order, a concurrence of a majority
of the whole number of members elected to the council
shall be required; Provided, That the concurrence of the
mayor and one half of the whole number of members
elected to the council shall be sufficient to pass any such
ordinance, by-law, resolution, or order.'*
Section 18, standing alone, sustains the construction con-
tended for by the plaintiffs and appellants, that the mayor
can only vote when* the council is equally divided. The
language used in section 30 is plain and explicit, ''that the
concurrence of the mayor and one-half of the whole num-
ber of meml)ers elected to the council. shall be sufficient to
pass any such ordinance,"
In construing statutes, effect, if possible, must be given
Vol. 30] SEPTEMBER TERM, 1890. 849
Magueau v. Fremont.
to every part of the law. Effect can be given to all the
provisions of both sections by holding that the section first
above quoted does not apply to the passage of ordinances,
by-laws, or resolutions^ but relates to the other proceedings
of the council. Holding, as we do, that section 30 author-
izes, when a quorum of the council is present, the passage
of* ordinances by the affirmative vote of one-half of all
tiie members of the council, with the concurrence of the
mayor,, the ordinance under consideration received a suffi-
cient affirmative vote to adopt the same.
The appellants claim that the case of Staie v, Gi*ay, 23
Neb., 365, conclusively settles the present case in their fa-
vor. We do not think so. The court, in that case, had
under consideration sees. 10, 76, and 79 of the act which
governs and controls cities of the second class containing
ft population of less than 5,000, being article 1, chapter
14 of Compiled Statutes. The only difference between
section 10, construed in that case, and section 18, involved
in this, is that the former section does not contain the
words "except as otherwise herein provided.'' Sections 76
and 79 each provides that to pass an ordinance it requires
the concurrence of a majority of all the members elected
to the council. Neither of said sections provides "that the
concurrence of the mayor and one-half of the whole num-
ber of members shall be sufficient to pass any such ordi-
nance." In that respect the provisions of said sections
are different from those contained in section 30, which we
have been considering. The court in State v. Gray, supra,
held, and we think correctly, that section 10 therein con-
strued did not apply to the passage of ordinances, and that
it required the concurrent vote of the majority of whole
number of members of the council to adopt an onlinanoe.
It is obvious that the provisions of section 30 and those
of sections 76 and 79 are so different that the decision re-
ported in 23d Nebraska does not in any manner conflict
with tbo views expressed in this opinion, but on the other
54
800 NEBRASKA REPORTS. [Vol. 30
ICagneau v. Fremont.
hand sustains us in holding that section 18; copied above,
does not refer to the passage of ordinances.
It is also claimed that the city council had no authority
to pass ordinance 231 at the meeting at which it was
adopted. Ordinance No. 3 of the city of Fremont pro-
vides that the regular meetings of the council shall be held
on the last Tuesday of each mouth. It is conceded that
the ordinance under consideration was not acted ui>ou at
such a meeting, nor at any adjourned session thereof.
It is provided by ordinance No. 79 that the mayor and
council shall meet on the Thursday following each city
election and canvass the returns of the votes cast at
such election. A meeting was held April 3, when tlie
votes cast at the city election held on April 1 were can-
vassed. Prior to this meeting a call was issued by the
mayor for a meeting of the council on April 3 to canvaas
the votes of the city election and to transact any business
that might lawfully come before the council. At the
meeting held on April 3, the mayor and all the members
of the council were present except Archer. This meeting
was adjourned to the following day, at which time^ the
mayor and all the councilmen being present, the ordinance
was introduced; read the first time, and the meeting ad-
journed to April 5. On that date there were present the
mayor and all the councilmen except Plambeck. The
ordinance was then read a second time, and an adjournment
taken to April 9. On the last named date, all the mem-
bers of the council being present except Archer, the ordi-
nance was read a third time and passed.
The meeting held on April 3 was for the special purpose
oir canvassing the returns of the city election. Had it been
a regular meeting then any corporate business could have
been lawfully transacted at any adjourned session thereof.
The statute authorizes the mayor or any two councilmen
to call special meetings. Whether the call must specify
the object of such a meeting, the statute is silent, and the
Vol. 30] SEPTEMBER TERM, 1890. 851
Magneau ▼. Fremont
<leci8ioD8 of the courts are conflicting upon that question.
At any rate the purpose and object of the call is to apprise
the meml)ers of the proposed meetings so that they may
attend. So it seems clear to us that when all the mem-
bers of the council and the mayor meet and act as a body,
they may at such meeting, or at any adjourned session
thereof, transact any business within the powers conferred
by law, notwithstanding no written call for the meeting was
made by the mayor or two councilmen, or in case one was
made which failed to specify the purpose of the meeting.
At the session held on April 4, at which the ordinance
was introduced and read, the miayor and all the members
of the council were present and acted. All the members
were notified of the meeting at which the ordinance was
re^d the second time, by the adjournment of the previous
meeting when all were present, and all had notice of the
meeting at which the ordinance was passed, by the adjourn-
ment of the meeting held on April 5, except Plambeck,
and he was present and participated at the meeting when
the ordinance was finally passed. In view of these facts,
we must hold that the council was in lawful session when
each step was taken in passing this ordinance.
It is urged that subdivision 8 of sec. 52 of the act gov-
erning cities of the second class having over five thousand
inhabitants, which authorizes a city to levy and collect a
license tax on any occupation or business carried on within
the corporate limits, violates sections 1 and 6 of article 9
of the constitution.
Section 1 of said article provides that "The legislature
shall provide such revenue as may be needful, by levying
a tax by valuation, so that every person and corporation
shall pay a tax in proportion to the value of his, her, or its
property and franchises, the value to be ascertained in such
manner as the legislature shall direct; and it shall have
power to tax peddlers, auctioneers, brokers, hawkers, com-
mission merchants, showmen, jugglers, innkeepers, liquor
852 NEBRASKA REPORTS. [Vol. 30
Magneau y. Frepiont.
dealers, toll bridges, ferries, insurance, telegraph, and ex-
press interests or business, vendors of patents, in snch
manner as it shall direct by general law, uniform as to the
class upon which it operates."
Section 6 provides that "The legislature may vest the
corporate authorities of cities, towns, and villages with
power to make local improvements by special assessments,
or by special taxation of property benefited. For all
other corporate purposes all munici)yal corporations may
be vested with authority to assess and collect taxes, but
such taxes shall be uniform in respect to persons and prop-
erty within the jurisdiction of the body imposing the
same.''
It has been the uniform holding of this court that the
constitution is not a grant but a restriction of legislative
power, and that the legislature may legislate upon any
subject not inhibited by the constitution. {State v. Lan-
caster County, 4 Neb., 537; StaU v. Dodge Co., 8 Id., 124;
Hanscom v. City of Omahay 11 Id., 37; Staie v. Rcanij 16
Id., 685 ; Shaw v. State, 17 Id., 334.)
In State v. Bennett, 19 Neb., 191, this court had under
consideration sec. 1, article 9, of the constitution, and sub-
division VIII of section 69 of "An act to provide for
the organization, government, and powers of cities and
villages," passed in 1879, which empowers cities contain-
ing less than five thousand inhabitants to impose an occu-
pation tax. It was held that the constitution and statute
both conferred the power to levy and collect such a tax.
While the legislature has authority to enforce a tax upon
occupations, it is evident that section 1 of the constitution
above referred to does not prohibit the legislature from
conferring, by general law, power upon cities and villages
to impose occupation taxes for municipal purposes. The
only restriction imposed is that the taxes shall be uniform
as to class.
The above quoted section 6 of the constitution wad not
Vol. 30] SEPTEMBER TERM, 1890. 853
Magneau ▼. Fremont
referred to or considered by the court in State v. Bennett^
supra. It therefore only remains to be determined whether
the provision of that section prohibits the legislature from
conferring upon municipal corporations the power to levy
occupation taxes.
It is claimed by appellants that this section of the con-
stitution has reference to taxation by valuation. We do
not think so. The language used is : *' Such taxes shall be
uniform in respect to persona and property. ^^ If it was the
intention of the framers of the constitution to limit a muni-
cipal corporation to the imposing of taxes on property, why
was the word "persons" specified in the section? It was
evidently inserted for the purpose of authorizing the levy
and collection of occupation taxes.
Sections 1 and 6 of article 9 of our constitution are
identically the same as sections 1 and 9 of the ninth article
of the constitution of HHnois, which were construed by
the supreme court of that state in 1873, before the adop-
tion of the constitution of this state, in Wiggins v. City oj
Chicago, 78 111., 378. Mr. Justice Walker, in delivering
the opinion of the court, observes: " The ninth section, ar-
ticle 9, of the constitution declares that the general assem-
bly may vest the municipal authorities of cities, towns, and
villages with authority to assess and collect taxes for cor-
porate purposes; 'but such taxes shall be uniform, in re-
spect to persons and property within the jurisdiction of
the l>ody imposing the same.' To give full effect to this
provision, we must hold that it embraces more than the
mere assessment and imposition of a imiform tax on prop-
erty. It evidently was designed to include the various
modes of collecting taxes of persons pursuing various avo-
cations. And in the first section of the .«ame article, the
legislature is authorized to tax j)ed(llers, auctioneers, etc.
Tlie tax here provided for is manifestly the sum of money
which shall be paid to enable them to pursue their calling.
Their, property was required to be assessed by the first
854 NEBRASKA REPORTS. [Vol. 30
Magneau ▼. Fremont.
clause of the section, as it falls within the language em-
ployed, hence it foIlo\^s that the tax last referred to, as ap-
plied to the classes of persons enumerated, is a personal
tax, imposed upon the person exercising the calling, and
has no reference whatever to his property."
We are clearly of the opinion that the provision of sub-
division VIII of section 52, article 2, chapter 14, Com-
piled Statutes, is not repugnant to the constitution.
It is, however, urged that the ordinance is void because
the taxes imposed by it are not uniform in respect to the
classes upon which they are levied. The ordinance imposes
a fixed sum upon each of the various avocations therein
named. The fact that it does not classify each business
and graduate the amount that shall he paid by the person
pursuing an avocation, according to the amount of business
he shall do, is not a violation of the rule of uniformity
prescribed by both the constitution and statute. It is not
an income tax, but a license fee or tax for the privilege of
carrying on business in the city. The ordinance makes no
exceptions in favor of or against any one carrying on the
business taxed, but operates uniformly on the class to
which it applies.
Section 7 of the ordinance i)rovides that any person
violating any of its provisions shall, on conviction tliereof;
be fined not less than five nc.r more than fifty dollars, and
be committed until the fine and costs be paid. Under the
decision of this court in ^iate r. Green, 27 Neb., 64, the
penal provision for the enforcement of the ordinance is
void. But that does not invalidate its other provisions, as
the valid part is a c^omplete act and is not dependent u[K>n
the void portion. {State v. Lancaster Co,, 6 Neb., 474,
Stale V. Hardy, 7 Id., 377; State r. Lancast^* Co., 17 Id.,
85; State v. Hards, 19 Id., 323; Miildoon v, Levi., 25 Id.,
457; Mi'Hi^cnger v. Sta'e, Id., 674.) The judgment of the
district court is
Affikmed.
The other judges concur.
Vol. 30] SEPTEMBER TERM, 1890. 855
Bailey v. State.
C. B. Bailey v. State of Nebraska.
[Filed Novembbb 25, 1890.]
1. Appeal: Waivkb of Infobmalities. The taking of an ap-
peal from a oonvictioD had before a magistrate for the violation
of a village ordinance, is a waiver of the errors committed on
the trial before such magistrute.
2. Villages : Obdinaxces: Pboof of Passaqb. The certificate
of a village clerk attached to an ordinance of the municipality,
attested by his official fieal, stating that such ordinance was
passed and approved, and when and in what paper it was pub-
lished, is sufficient proof of its passage, approval, and pnblica-
tion.
3. : LiQUOBs: Sale: Penalty. The board of trustees of a
village has authority to enact an ordinance to prohibit the sale
of intoxicating liquors within the corporate limits, and to pro-
vide as a pennlty for its violation the imposing of a fine not to
exceed one hundred dollars and for imprisonment in default of
the payment of the fine and costs.
4. : Obdinange Void in Pabt. Where such an ordinance
provides for its enforcement, the imposing of a ^'fine of not less
than twenty-five dollars, nor more than one hundred dollars, or
by imprisonment not exceeding thirty days, or by both fine and
imprisonment,'' held^ that part providing for punishment by
imprisonment is void, but that it does not invalidate the re-
mainder of the ordinance.
Error to the district court for Saline county. Tried
below before Morris, J.
Hastings & McGirdie, for plaiiitiif in error:
A police judge may exercise only such powers as the
statute gives him. (5. C &P. R. Co. v. Washington Co., 3
Neb,, 41; MorriUv. Tay/or, 6 Id., 242 ; Doody v. Vaughn,
7 Id., 32; Brondberg v. BabboU,^ Id., 519.) Sees. 11,
12,. and 25, ch. 50, ..Comp. Stats., fix a method of pro-
cedure which is exclusive. (8. C, & P. R, Co. v. Washing-
856 NEBRASKA REPORTS. [Vol. 80
Bailey v. State.
ton Co., supra,) Since the two provisions for enforcing
the ordinance form parts of a penalty, one cannot be void
and the other vah'd. (Oatman v. Bond, J 5 Wis., 22; Staie
V. Dousman, 28 Id., 541 ; State v. Ferry Co., 5 O. St, 497;
Canipau v. Detroit, 14 Mich., 276 ; Cooley, Const Ltm.,
213.)
Abbott & Abbott, contra:
A municipality may inflict penalities. (Horr & Bemis,
Municipal Police Ordinances, sees. 89-119; BrownvUlev.
Cook, 4 Neb., 101.) Imprisonment is no part of the pen-
alty, but a method of collecting thefine. {Sheffield v. CfDayj
7 111. App., 339; ^ate\. Herdt, 40 N. J., 264.) Void
and valid parts of an ordinance should, if possible, be con-
strued as separable. (Horr & Bemis, Municipal Police
Ordinances, sec. 139.) When a double penalty is imposed
the fact that one is unauthorized does not invalidate the
other. ( micox v. Hemming, 58 Wis., 144.) As to the ef-
fect of the appeal : 1 Dillon, Mun. Corp., sec 367.
NORVAL, J.
On NovemW 19, 1888, J. B. Dann made a written
complaint under oath l)efore E. J. Hancock, justice of the
peace of the village of De Witt, Saline county, chaining
Charles B. Bailey, the plaintiff in error, with unlawfully
selling malt and spirituous liquora to one James Liggard,
in violation of ordinance No. 24 of said village. Bailey
was arrested and taken before the justice, where he entered
a plea of not guilty. He applied for a change of venue,
which was refused. He thereupon demanded a trial by
jury, which was denied. Over the defendant's objection he
was tried before the justice, who found him guilty, and
was sentenced to pay a fine of $100 and costs, and that he
stand committed until such fine and costs be paid. An
appeal was taken to the district court, where the defendant
Vol. 30] SEPTEMBER TERM, 1890. 867
Bailey ▼. State.
was tried, convicted, and sentenced to pay a fine of $100
and costs.
As this case was tried in the district court on ap{)eal, the
proceedings and judgment of that court alone are before
us for review. The errors, if any, committed by the jus-
tice were waived by the appeal.
The prosecution is brought under sec. 1 of ordinance
No. 24 of the village of De Witt, which provides: " That
any person who shall within the corporate limits of De
Witt, by himself, herself, or themselves, or by his, her, or
their agent, servant, clerk, or employe, barter, sell, ex-
change, give away, or deliver intoxicating, malt, spiritu-
ous, vinous, mixed, or fermented liquors, shall for each
offense be deemed guilty of a misdemeanor, and upon con-
viction thereof shall be fined not less than twenty-five
dollars nor more than one hundred dollara, or be im-
prisoned in the county jail' not to exceed thirty days, or
both such fine and imprisonment."
The first objection urged by the plaintiff in error is that
there is no proof that the ordinance was ever passed. There
is attached to the ordinance introduced in evidence a certifi-
cate of the village clerk, attested with the seal of the vil-
lage, showing that it was adopted by a unanimous vote of
the Ixmrd of trustees on April 23, 1888, was signed by its
chairman, and that it was published in the De Witt TimeSy
a newspaper published in the village, for two consecutive
weeks, beginning April 26, 1888. This certificate, under
the provisions of sec. 49, chap. 14, Compiled Statutes, was
sufficient proof of the passage, approval, and publication
of the ordinance.
It is claimed that, as the legislature has by general law
made it a criminal offense for any person to sell or give
away intoxicating liquors without having obtained a li-
cense so to do, and prescribed the penalty therefor, the
village board had no authority to pass the ordinance in
question.
858 NEBRASKA REPORTS. [Vol, 30
Bailey v. State.
Section 11 of the liquor law fixes the penalty for sell-
ing liquors without a license by a fine not less than one
hundred dollars nor more than five hundred dollars, or by
imprisonment not to exceed one month in the county jail.
Section 12 provides for a preliminary examination where
a complaint is made of a violation of section 11. The
ordinance having fixed a different punishment from that
provided for the violation of the general law on the same
subject, the objection is fairly presented, had the board of
trustees of the village authority to enact such an ordinance?
The l^islature, by subdivision IX of section 69, chapter
14, Compiled Statutes, conferred the power upon villages
to pass ordinances to prohibit the selling or giving away
of intoxicating liquoBs within the corporate limits, and
subdivision XII of the same section authorizes the impos-
ing of fines for the violation of such ordinances ^'not ex-
ceeding one hundred dollars for any one offense, recoverable
with costs, and in default of payment to provide for con-
finement in prison or jail, and at hard labor upon the
streets or elsewhere, for the benefit of the city or village."
The law makers not only granted the power to village
authorities to make the selling of intoxicating liquors a
criminal offense, notwithstanding it is also made such by
general law, but authorized the imposing of a different
punishment from that attached to the statutory offense.
It will be observed that the ordinance under which the
defendant was convicted and sentenced provides for its en-
forcement by the inflicting of a fine of not less than
twenty-five dollars nor more than one hundred dollars, or
by imprisonmont not exceeding thirty days, or both fine
and imprisonment. The fine provided for by the ordi-
nance is clearly within the iK)wer conferred upon the vil-
lage by statute. But there is no law which empowers a
village to enforce its ordinances by both fine and impris-
onment, nor by imprisonment alone, except as a means of
enforcing the payment of the fine imposed by the court for
Vol. 30] SEPTEMBER TERM, 1890. 85J>
Bailey y. State.
a violation of the ordinance. It follows that that part of
the ordinanoe providing for imprisonment is void, as being
contrary to the power conferred upon the village authori-
ties by statute.
The point is made that the portion of the ordinance
providing for the punishment by imprisonment being bad,
invalidates the entire ordinance. It does not necessarily
follow that a whole act or law is invalid because some of its
provisions are void and cannot be sustained. The rule, as
established by the decisions of this and other courts, is that
when the valid and invalid portions of a law are depend-
ent upon each other, the whole law is void ; but if the
valid part is not dependent upon that which is void, and
is a complete law in itself, it will be upheld. (StcUe v, Lan-
caster Co., 6 Neb., 474; State v. Hardy, 7 Id., 377; Slate
V. Lancaster Co., 17 Id., 85; Stale v. Hurds, 19 Id., 323;
Muldoon V. Levi, 25 Id., 457 ; Messenger v. State, Id., 674 ;
Oatman v. Bond, 15 Wis., 22; Campau v, Detroit, 14
Mich., 276; Wilcox v. Hemming, 58 Wis., 144.)
The ordinance in question, tested by the above rule, must
be sustained as to all of its provisions, excepting the part
providing for punishment by imprisonment. Strike out
the invalid part, and a complete law remains, capable of
being executed and carried into effect, independent of the
void portion. The judgment of the district court is
Affirmed.
The other judges concur.
860 NEBRASKA REPORTS. [Vou 30
Norton v. Pilger.
r30~8fl0
' -t^ ^ Norton et al. v. A. P. Pilger et al.
49 771
B2 702
[Filed Degbmbeb 22, 1890.]
Chattel Mortgages: Retention by Mortqagob: Fraud
Presumed. A chattel mortgage, or bill of sale of persoDal prop-
erty, not aoccompanied by an iui mediate delivery and followed
by an actnal and continued change of possession of the property
sold, mortgaged, or assigned, is presumed to be frandalent and
void as against subsequent purchasers in good faith; and when
offered in evidence in an action between the person claiftiing
under it and a subsequent purchaser in good faith, and for valoe,
to be effective, must be accompanied by evidence on the part
of the person claiming under such chattel mortgage, or bill of
sale, that the same was made in good faith nnd without intent
to defraud creditors or purchasers. A prior recording of the
instrument will not supersede the necessity of such proof.
%, : Failure TO Record. Undertheactof FebruaiylP, 1877,
sec. 26, ch. 32, Com p. Stats., an unrecorded bill of sale, contract,
or lease, wherein the transfer of title or ownership of personal
property is made to depend upon any condition, is Toid only as
against any purchaser or judgment creditor of the Tendee or
lessee in actual possession, obtained in pursuance of such sale,
contract, or lease without notice. As to all other persons or par-
' ties, the law remains unaffected by the act, except in so far as
it places conditional leases of personal property upon an equal
footing with conditional sales.
Error to the district court for Madison county. Tried
below before Crawford, J.
D. A. Hofnies, for plaintiflFs in error, cited : Aubman ».
Malhry, 5 Neb., 180 ; Bliink r. Kdley, 9 Id., 441 ; 3/cCbr.
mch V. Stevenson, 13 Id., 72; Gorham t\ HoUlen, 9 At,
Rep., 894 ; Germain v. Wind, 13 Pac. Rop., 753; Miles c.
EdsnlL 14 Pac. Rep , 701 ; McGinnis v. Savage^ 1 S, E.
Rop., 746 ; Campbell P. P. & M. Co, v. Walker, 1 So.
Rep., 59; Faefh v, Leary, 23 Neb., 270; Loeb v. Miner,
32 N. W.Kop., 209; McGmnell v. People, 84 111., 585;
Sirrine r. Brigys, 31 Mich., 444.
Vou 30] SEPTEMBER TERM, 1890. 861
Norton t. Pilger.
H, C. Bromej contra, cited : Hei-yford v. Davis 102 U«
8., 235; Everett v. Buchanan, 2 Dak., 249; Cartelyou v.
Lansing, 2 Caines Cases, [N. Y.], 202; Dykers v, Allen, 7
Hill [N. Y.J 497; WUson v. LiUle, 2 N. Y., 443; Lewis
V. Oraham, 4 Abb. Pr. [N. Y.], 106 ; Waiter v. Martin,
11 How, [U.S.], 226; Newbold v. Wright, 4 Rawle[Pa.],
195; Buckley v. Packard, 20 Johns. [N. Y.], 421; Rod-
riguez v. Heffernan, 5 Johns. Ch. [N. Y.], 429.
C()BB, Ch. J.
The plaintiffs below brought their action in replevin on
April 80, 1887, in the district court of Madison county,
alleging that they are the owners and entitled to the im-
mediate possession of all the machinery, presses, type,
and printing material of the Norfolk Printing Com-
pany, not incorporated; that the defendants wrongfully
detain the same, and have so detained the said goods and
chattels for two days, to the plaintiff's damage $1,200.
The defendants Norton, Sprecher, and Bell answered by
a general denial.
There was a trial to a jury, with verdict for the plaint-
ifis, that the right of possession of the property at the
commencement of this action was in the plaintiffs, and
assessing their damages for the wrongful detention thereof
at one cent.
The defendants' motion for a new trial was overruled,
and judgment entered on the verdict, to which the defend-
ants excepted ; and in their petition in error to this court
assigned:
''I. That the court erred in overruling the objections of
defendants to the introduction of testimony offered by
plaintiffs.
'' II. In instructing the jury to return a verdict for the
plaintiffs.
''III. In overruling the motion of defendants to in-
862 NEBRASKA REPORTa [Vou 30
Norton ▼. Pi)g«r.
struct the jury to return a verdict at the dose of the testi-
mony in chief."
It appears from the record that in April, 1886, one
Frank A. Sharpe, of Fremont, Dodge county, was in pos-
session of certain printing presses and printing material,
and on April 13 executed to the firm of Marder, Luse &
Co., of Chicago, a chattel mortgage on the property to se-
cure an indebtedness of $500 with interest; that in the
fall of that year Sharpe removed the mortgaged property
to Norfolk, Madison county, and had tiie cliattel mortgage
also recorded there. At this time Sharpe and George B.
Van Voart, of Norfolk, entered into partnership under the
name of the Norfolk Printing Company, contemplating an
incorporation of their company, which was not effected;
also, at this time, Sharpe went to Chicago and obtained
from Marder, Luse & Co. two additional printing presses,
a three horse-power engine and boiler, and other material for
a more complete printing, binding, and stereotyping es-
tablishment, of the value of $3,422.52, which was shipfied
to the Norfolk Printing Company, at Norfolk, Nebraska,
with directions to deliver the consignment to Sharpe. At the
time of the delivery to Sharpe he executed to Marder, Lose
& Co. the following instrument:
"Norfolk, Neb., October 2, 1886.
" Mr. Frank A. Sharpe borrowed and received of Marder,
Luse & Co., 139 and 141 Monroe Street, Chicago, 111.,
the following articles in good order: If the prices set
against them are paid as per memorandum below, the
property is then to belong to said borrower, otherwise it
remains the property of Marder, Luse & Co. Notes
and drafts, if given, are not to be considered payments
until they are paid.
*'In the meantime the borrower is to keep the prop-
erty in good order, and agrees to pay the price as per mem-
orandum below, keeping the property sufficiently insured
for the benefit of the said Marder, Luse & Co., depositing
Vol. 30] SEPTEMBER TERM, 1890. 863
Korton ▼. FUga,
the policy of insaranoe with them, and may use the prop-
erty free from any other charge. Said property is not to
be removed from Madison county, Nebraska, without the
written consent of Marder, Luse & Co. Should said bor-
rower fail to meet any of the payments at the time specified,
or to keep the property satisfactorily insured, or in good
order, then Marder, Luse & Co. may take the said articles
and dispose of them to the best advantage, rendering to
said borrower all surplus, if any, after paying the price
agreed upon, and the expense of removal and sale.
"memorandum of payments to be made.
Thirty days after date $200 and 8 per oeni
Sixty days after date 200 and 8 |)er oeni
Four months after date 100 and 8 per oen
Five months after date 100 and 8 per oen
Six months afterdate 100 and 8 per cen
Seven months aft;erdate 100 and 8 per cen
Eight months afterdate 100 and 8 ])er cen
Nine months after date 100 and 8 per cen
Ten months afterdate 100 and 8 per cen
Eleven months after date 100 and 8 per cen
Twelve months after date 100 and 8 per cen
Thirteen months after date 100 and 8 per cem
Fourteen months afterdate 100 and 8 per cen
Fifteen months after date lOQ and 8 per cen
Sixteen months after date 100 and 8 j)er cen
Seventeen montiis after date 100 and 8 per cen
Eighteen months after date 100 and 8 j^er cen
Nineteen months after date 100 and 8 per cen
Twenty months after date 100 and 8 per cen
Twenty-one months afterdate 100 and 8 per cen
Twenty-two months after date 100 and 8 per cen
Twenty-three months aft;er date 100 and 8 per cen
Twenty-four months after date 100 and 8 per cen
Total $2,525.''
Then follows " a memorandum of articles borrowed '* and
the signature of Frank Sharpe, witnessed by Amos Dresser,
the agent of Marder, Luse & Co., and James Hawkins. It
864 NEBRASKA REPORTS. [Vol. 30
Norton y. PilKer.
appears from the evidence that promissory notes were given
by Sharpe to Marder, Lase & Co. for each of the payments
recited in this instrument. It was filed in the county clerk's
office of Madison county February 11, 1887.
This property, as well as that brought to Norfolk from
Fremont the spring before, was in the possession and use
of Sharpe & Van Voart, otherwise known as the Norfolk
Printing Company. On December 23, 1886, an instru-
ment had been executed by Sharpe & Van Voart for the
printing company, signed by T. H. Egbert and A. P. Pil-
ger, as follows :
" That the Norfolk Printing Company, in consideration of
$1,000, paid by A. P. Pilger and P. Schwenk & Co., have
sold, and by these presents do sell and convey, to said A. P.
Pilger and P. Schwenk & Co. all the right, title, and inter-
est of said printing company in and to all machinery, presses,
type, and printing material now in possession of and owned
by said printing company, at Norfolk, Nebraska, a partial
list of the property conveyed being hereto attached.
"It being understood and agreed by and between the
parties that this conveyance is made subject to first lien
upon said property of $2,000 in favor of Marder, Luse &
Co.
"It being further agreed that if said Norfolk Printing
Company shall at any time pay to said A. P. Pilger and P.
Schwenk & Co. said sum of $1,000, together with any ad-
ditional sum or sums that may at the time of such pnyment
be due from said Norfolk Printing Company to said A. P.
Pilger and P. Schwenk & Co., then, and in that event said
Pilger and Schwenk & Co. agree to sell and convey said
property to Norfolk Printing Company.
Witness our bands at Norfolk, Nebraska, Doceml)er 23,
1886. Norfolk Puintinq Co.,
"By Frank Sharpe.
"Geo. B. Van Voaot.
"T. H.Egbert.
"A. P. PlLGEB.'*
Vol. 30] SEPTEMBER TERM, 1890. 865
Norton v. Pilger.
This instrument is duly certified to have been [placed on
file in the clerk's office of Madison county January 21,
18S7.
It appears that Sharpe <& Van Voart, otherwise the
Norfolk Printing Company, were in possession of the prop-
erty at the time of the execution of the last instrument, and
remained in possession during some part of 1" 8-7, but up
to what date does not appear. But at some time in that
year Sharpe transferred his interest to Van Voart, and
shortly afterwards left Norfolk, and at the time of the trial
had disappeared. It further appears that about April 28,
1887, after Sharpe had left, Van Voart, being the only rep-
resentative of the printing company and in possession of the
property, delivered it to Marder, Luse & Co., who sold and
delivered it to the plaintiffs in error (the defendants below),
from whom the goods and chattels were replevied, and
delivered a bill of sale to them which was in evidence;
that Norton, Sprecher, and Bell, the plaintiffs in error, took
possession of the property and were in ))Ossession under
Marder, Luse & Co. on April 30, 1887, when this action
was commenced and the order of replevin executed.
There are several important questions presented and ar-
gued by counsel on either side, but it is not deemed strictly
necessary to follow them, as it is believed that the first ar-
gument presented by the plaintiffs in error is conclusive of
other questions in the case.
The instrument introduced by the plaintiffs below on the
trial, although designated and indorsed as a bill of sale is,
in law, a chattel mortgage executed by the Norfolk Print-
ing Company, but without witnesses, to secure the payment
of $1,000 to the defendants in error. It is apparent from
ita terms that it was not intended there should be an im-
mediate delivery, or any change of possession, of the prop-
erty from mortgagors to mortgagees. And there is an en-
tire absence of evidence by the plaintiffs in the court below
of any delivery of the property by the Norfolk Printing
55
866 NEBRASKA REPORTS. [Vou 30
Norton y. Pilger.
Company to the plaintiffs, or of any change of possession
until taken by Harder, Luse & Co. and turned over to the
defendants in the court below; nor is there any evidence,
except the instrument itself, of its primal character^ that it
was made in good faith or for an actual consideration. The
case therefore falls within the meaning of sec. 11, chap. 32,
of our statutes, cited by counsel for plaintiffs in error, which
provides that " every sale, * * * unless accompanied by
immediate delivery, and be followed by an actual and con-
tinued change of possession of the things sold, mortgaged,
or assigned, shall be presumed to be fraudulent and void as
against subsequent purchasers in good faith, and shall be
conclusive evidence of fraud, unless it shall be made to ap-
pear, on the part of the persons claiming under such sale,
that the same was made in good faith and without any in-
tent to defraud such creditors or purchasers."
It is the contention of the defendants in erro.- that the
instrument executed by Sharpe on October 2, 1886, and
herein set out, is in legal effect a chattel mortgage, and
counsel cite very high authority in support of the argu-
ment. But I do not agree that the case cited, that of
Heryford v. Davis, 102 U. S. 8. C. B., 236, can be fol-
lowed under our statutes and decisions. In the case of
Auliiaariy Miller & Co. v. MaUory, 5 Neb., 180, it was held
that *'A sale and' delivery of goods on condition that the
property is not to vest until the purchase money is [laid or
secured, does not pass the title to the vendee until the con-
dition is performed." This opinion was delivered at the
July term, 1876. It was there contended, by the defend-
ants in error, that while the selling and delivering of the
property in controversy upon the condition that the title
doci^ not pass from the vendor until the purchase price was
paid, might be good, and the condition sustained as between
the original parties, yet, as between creditors of the vendee
or innocent purchasers, it was fraudulent, and was contrary
to public policy; but as the law of the state then was, al-
Vol. 30] SEPTEMBER TERM, 1890. 867
NonoQ ▼. Pllcw.
though there was nothing on record to show the conditional
character of the sale, and it appeared by stipulation that
the defendant in error had no actual notice thereof, the
court ^as of adiflerent opinion and expressed it decisively
in the decision.
The legislature, then about to convene, passed an act
to prevent the fraudulent transfer of personal property,
which was approved February 1 9, 1877, providing in sec. 1:
'*That no sale, contract, or lease, wherein the transfer of title
or ownership of personal property is made to depend upon
any condition, shall be valid against any purchaser or
judgment creditor of the vendee or lessee, in actual posses-
sion, obtained in pursuance of such sale, contract, or lease,
without notice, unless the same be in writing, signed by the
vendee or lessee, and a copy thereof filed in the office of
the clerk of the county within which such vendee or lessee
resides; said copy shall have attached thereto an affidavit
of such vendor or lessor, or his agent or attorney, which
shall set forth the namesof the vendor and vendee or lessor
and lessee, a description of the property transferred, and
the full and true interest of the vendor or lessor therein.
All such sales and transfers, shall not remain valid against
purchasers in good faith, or judgment or attaching creditors,
without notice, for a longer period than one year, unless
such vendor or lessor shall, within thirty days prior to the
expiration of one year from the date of such sale or trans-
fer, file a copy thereof, verified as aforesaid, in the office of
said clerk, and the said vendor or lessor may preserve the
validity of his said sale or transfer of personal property
by an annual refiling, in the manner as aforesaid, of such
copy.''
It was the evident intention of the legislature to place
conditional leases of personal pro()erty upon the same foot-
ing with those of conditional sales, as held in AtUtmariy
MiUer & Co,^b Case, 8upi*a; but applying the statute to the
present case, if the defendants in error were purchasers, or
868 NEBRASKA REPORTS. [Vol. 30
Norton y. Pllger.
judgment creditors, of the lessees without notice, then the
lease was void as to them. It is not contended that they
were judgment creditors ; and were they purchasers ? They
cannot be held to be purchasers because, as we have seen,
no possession of tlie property passed to them, nor was it
made to appear, on their part, that the sale to them was in
good faith, and without intent to defraud other creditors or
purchasers. But if the plaintiffs were purchasers, they
carlainly were not purchasers without notice, as by refer-
ence to the bill of sale, a copy of which is herein set out, it
will be seen that the same was taken expressly "subject to
the first lien upon said property of $2,000 in favor of
Harder, Luse & Co/'
There l)eing, then, neither j^udgment creditor nor pur-
chaser without notice whose rights were to be affected by
the failure of Marder, Luse & Co. to file their lease^ or a
copy thereof, in the office of the county clerk, as provided
by law, the only effect which the statute of 1877 had upon
their lease was to recognize it, and place it on a footing
with conditional sales, as we have shown. And altliough
the trial was in a manner at arms length on either side, it
nevertheless appears from the whole proceedings tliat the
firm of Murder, Luse & Co. acted in entire good faith to-
wards other parties; that it furnished an amount of valua-
ble machinery to Sharpe & Van Voart, for the Norfolk
Printing Company, allowed them the possession and use
of it until Sharpe had abandoned his printing enterprise,
had lefl the town and county, and probably the state.
Then Van Voart, who remained the only representative of
the printing company, recognizing the property rights of
Harder, Luse & Co., delivered the property to them, who
sold it again to the plaintiffs in error.
It has been stated that this sale was by the consent of
Van Voart, the sole representative of the Norfolk Printing
Company at the time. It is probably more exact, in the
light of the closing testimony of Sprecher, one of the
"Vol. 30] SEPTEMBER TERM, 1890. 869
NortoQY. PUger.
plaint ilTs in error, to say that the sale was made jointly by
the Chicago firm and the Norfolk Printing ComiMiny,
represented by Van Voart, and while I am of the opinion
that the whole evidence, of record, shows good faith on the
part of the plaintiffs in error, yet it is noticeable that
neither Norton nor Sprecher, who testified for themselves,
statc<l liow much they gave for the property. Sprecher
does say, in his closing testimony, that they assumed the
notes and mortgage of the Norfolk Printing Company,
and assumed to pay off the wages of Van Voart^s printer,
so he could go away.
Amos Dresser, a witness for defendants, testified that at
the time of the transfer of the property by Marder, Luse
& Co. to defendants there were the amounts of $275 and
$28.65 due upon the notes and mortgage given by Sharpe
at Fremont. This witness also testified that he was a clerk
in the employ of Marder, Luse & Co., and was in charge
of the credit business of the firm, and that $200, and no
more, had been paid upon the material embraced in the
lease.
On the other hand, it is significant that while Dr.
Schwenk, one of the plaintiffs below, and defendants in
error, was twice examined as a witness on behalf of the
plaintiffs, and testified as to various matters, he did not
testify, nor was he interrogated by counsel, as to the con-
sideration for the bill of sale or chattel mortgage under
which he claimed the goods, nor did he disclose any con-
sideration whatever for <4ie same.
Upon the whole aspect of the trial, I think the court
erred in its instruction to the jury to find for the plaintiffs,
and therefore there should be a new trial. Judgment is
Reversed and remanded.
The other judges concur.
870 NEBRASKA REPORTS. [Vol. m
Getchell y. Benton.
John W. Getchell v. Thomas H. Benton.
[Filed Drcembkr 22, 1890. J
Internal Improvement : What is Not: A Bbbt Suoab Man-
UFACTOUY which does not manafactnre sugar from beets for
toll, althoagh propelled by water power, is not within legislii-
tive control by virtne of any law of this state, and is, therefore,
hdd, not a work of internal improvement within the meaning
of the constitatiou or statute.
Original application for injunction.
B. B. Willey, and Talbot & Bryan, for plaintiiT, cited, on
the point discussed in the opinion^ cases there referred to.
WUliam Leese, Attorney Genei*al, H, G Brome, and A^.
D, Jaokaony contra^ cited on the same point: U, P. R.
Go, V, Colfax County,^ Neb., 450; !^tate v, Adams County,
15 Id., 568; Angell, Water- Courses, sec. 4G6; (Hmslead
V. Camp, 33 Conn., 532; Lewis, Eminent Domain, sec.
180; Head v, Amoskeag Mfg, Co,, 113 U. S., 9 ; Hanking
V. Lam^ence, 8 Blackf. [lud.], 266; Boston^ elo,, Corp, v:
Newman^ 12 Pick. [Mass] 467.
Cobb, Ch. J.
This cause was submitted upon an agreed statement of
facts, of which the following is the substance:
First — The plaintiff is, and, for more than one year last
past^ has been a citizen, a resident, freeholder and tax-
payer of the city of Neligh, in the county of Antelope.
Second — The city of Neligh at all the dates hereinafler
mentioned has been, and now is, a city of the second class,
with more tiiau one thousand and less than five thousand
inhabitants, duly incorporated, organized, and existing un-
der nnd by virtue of the laws of this state.
Vol. 30] SEPTEMBER TERM, 1890. 871
Getcbell v. Benton.
Third— That on the 20th day of May, 1890, said city
of Neligh submitted the question of the issuing of tlie
bonds of said city to the amount of fourteen thousand eight
hundred dollars to a vote of the legal voters of said city in
the manner provided by law.
Fourth — More than two-thirds of the votes cast at said
election being in favor of said proposition, said city coun-
cil did, subsequent to said election, cause said proposition
and the vote at said election to be entered upon the records
of said city, and a notice of the adoption of said proposi-
tion to be published in a newspaper of said city, and tliere-
after and on the first day of June, 1890, the authorities of
said city, in the manner provided by law, issued said bonds.
Fifth — Said bonds have been delivered by the corporate
authorities of said city to the defendants, the auditor of
public accounts of this state, for the purpose of registra-
tion and said defendant will, unless enjoined therefrom by
the order of tiie court, register said bonds.
Sixth — Plaintiff claims :
1 . That the purpose for which said bonds were issued, as
shown by the proposition and notice of election, is not to
aid a work of internal improvement within the meaning of
the laws of this state.
2. That the coriK)rate authorities of the city of Neligh
have no authority, under the law, to issue bonds in aid of
a work of internal improvement to be located outside of
the corporate limits of the said city.
Seventh — The above claims of plaintiff, as set out in the
sixth paragraph of the stipulation, are denied by defendant,
and the questions, thus presented, are the only matters in
tjontroversy between the parties, it being agreed that all
the requirements of law with respect to the voting of bonds
to aid works of internal improvement in the cities of this
state have been complied with.
Upon the submission of the case, the respective parties,
by their counsel, filed exhaustive briefe on each side, which
872 NEBRASKA REPORTS. [Vol. 30
Getchell ▼. Benton.
werecarefully examined and considered, at our oonsnltation,
and we were all of the opinion that the bonds could not be
sustained.
The authority of statute^ relied upon to justify the is-
suance of the bonds, is found in an act passed by the leg-
islature in 1869, and which now constitutes section I of
chapter 45 of the current compilation of the statutes.
This section provides that "Any county or city of the state
of Nebraska is hereby authorized to issue bonds to aid in
the construction of any railroad, or other work of inter-
nal improvement, to an amount to be determined by the
county commissioners of such county, or the city council
of such city, not exceeding ten per centum of the assessed
valuation of all taxable property in said county or city;
Provided, The county commissioners or city council shall
first submit the question of the issuing of such bonds to a
vote of the legal voters of said county or city in the man-
ner provided by chapter 9 of the Revised Statutes of the
state of Nebraska, for submitting to the people of a county
the question of borrowing money.''
Chapter 57 of the Compiled Statutes has also an im-
portant bearing u|X)n the question involved. Section 1 of
this chapter provides that" If any person desiring to erect a
dam across any water-course for the purpose of building a
water grist, saw, carding, or fulling mill, or of erecting^
any machinery to be propelled by water, be the owner of
the lands on which he desires to build such mill or erect
such machinery on one side of such water-course and not
of thie lUnds on the opposite side against or upon which he
would abut his dam ; or if any person be the owner of
the lands on which he desires to erect any such mill, or
machinery, on both sides of such water-course; or if any
person shall have erected such mill and mill-dam on his
own lands, he may file a petition for leave to build or con-
tinue such mill-dam, and a writ of ad quod damnum, in
the district court of the county, where such lands li^
Vol. 30] SEPTEMBER TERM, 1890. 873
Getchvll Y.Benton.
against the owners or proprietors of the lands above and
below such dam^ which are, or probably will be, overflowed
or injured thereby, or against or upon which he may de-
sire to abut his dam/' The succeeding twenty-five sections
are devoted to matters of proct'dure and detail. Section
27 provides that ''All mills within this state, now in op-
eration, or which hereafter may be put in operation, for
grinding wheat, rye, or corn, or other grain, and which
shall grind for toil, shall be deemed public mills.^' The
remaining six sections of the chapter are devoted to pre-
scribing the duties of the miller at such mill, providing
for the fixing of the rates of toll and other matters of
r^ulation, but all confined to public mills for grinding
grain.
In the case of Traver v, Metriek County, 14 Neb., 327,
this court, construing the two chapters of the statute, above
cited, and in part copied, held that "A water grist mill
erected for public use, the rates of toll to be determined by
the county commissioners, and being subject to regulation
by the legislature, is a work of internal improvement within
the meaning of the act of 1869, and bonds voted to aid its
construction are valid.''
The case of the Slate v. Adams County, 15 Id., 5^»9, was
an original application in this court for a mandamus to
iasue to the county commissioners of Adams county to com-
pel them to levy a tax to pay the interest on a certain bond,
one of a series of bonds issued by the county commissioners
of said county upon an affirmative vote of the electors of
Juniata precinct, in said county, for the issuance of $6,000
in l)onds to aid in the erection of a steam grist mill. 'The
writ was denied, the court, in the syllabus, holding that
"there is no statute in this state authorizing the voting of
aid to steam grist mills and l)onds voted for that purpose
are invalid." The opinion reviewed to some extent the
case of Traver v, Merrick County, svpra, and said : " The
decision in that case is based almost entirely upon the
874 NEBRASKA REPORTa [Vol. 30
GetchellY. Benton.
statute authorizing the condemnation of private property
for the purpose of erecting dams and oveiflowing lands in
order to obtain power to propel mills." Now, although
beet sugar mills are not specifically mentioned in section 1
of chapter 57, the statute referred to in the opinion quoted,
yet the machinery for their propulsion by water is as clearly
within the language of the section, "any machinery to be
propelled by water," as though specially mentioned by
name, so that, as the case of Traver v. Merrick CbwUg,
«ap-a, rests almost entirely " upon the statute authorizing
the condemnation of private property for the purpose of
erecting dams," etc., other reasons must be found for ex-
cluding beet sugar mills from the benefit of county or mu-
nicipal aid, for, as we have seen, machinery for their pro-
pulsion by water is equally within the language of the act,
and, if sugar is as much a necessary of life as flour, which,
I think, no one will doubt, it is equally within its spirit
But this reason is found in the provisions of section 27 and
tiie following sections of the same chapter. By these pro-
visions, as we have seen, all mills for the grinding of wheat,
rye, corn, or other grain, and which shall grind for toll,
shall be deemed public mills. The succeeding sections
make it the duty of the owner or occupant of every such
public mill to grind the grain brought to such mill in due
time and "as the same shall be brought" — in other words
to give every mill-boy his turn; to cause a statement of
the rates of toll by him charged for grinding and bolting
the different species of grain to be posted up in the mill,
"and the county commissioners of each county shall estab-
lish and regulate the amount of toll allowed to be charged."
They also fix the liability of the miller for the safe keeping
of all grain, grain bags, and casks brought to the mill, and
for taking a greater toll than that fixed by the county com-
missioners, or as contained in printed or written statements
required to be posted up in the mill. And, finally,' section
33 prescribes the manner and method by which any such
Vol. 30] SEPTEMBER TERM, 1890. 875
Qetohell t. Benton.
public mill may be divested of such public character
and become a private mill, but with the proviso ^Hhat no
party shall change his mill to a private mill until fully
reimbursing all parties who have assisted in its erec-
tion/'
None of these provisions apply to a beet sugar mill, nor
a beet sugar factory, and it is for the reason that such beet
sugar factory, when erected, would not, by virtue of any
statute or law of this state, be subject to the regulation of
any board, or officer of the state, county, or city, but
would be private property, pure and simple, that it is held
not to be a work of internal improvement within the
meaning of section 1, chapter 45, Compiled Statutes.
Counsel for defendant, in the brief, quote a portion of sec-
tion 1, chapter 57, and from its provisions placing water
power for the propulsion of saw, carding, and fulling
mills, or "any machinery propelled by water," upon the
same footing with grist mills. So far as the right to the
writ of ad quod damnum is concerned they argue that
the act quoted from, ex vi termini^ subjects all machinery
propelled by water to legislative control. The argument
is ingenious and it would not be strange if, in this age of
enterprise and adventure, it did not find some support in
the authorities. But where a theory tends directly to the
subversion of private rights, courts will, and should, be
slow to follow them.
It will be observed that the mere fact of mills for grind-
ing grain being propelled by water does not make them
public mills, or bring them within the operation of any
legislative regulation ; but in order to make them public
mills or bring them within the operation of the legislative
regulations, or to autliorize the county commissioners to es-
tablish and r^ulate the rates of toll to be charged, such mill.s
must grind for toll. Indeed, were it a question of first in-
stance, and not indirectly affected by former decisions, I
would be of the opinion, from a consideration of the Ian-
876 NEBRASKA REPORTS. [Vol. 30
Getcbell v. Benton.
guage of sections 27 and 33 of the chapter above cited, that
the grinding for toll, and not their being propelled by water,
is the test of such mills being public mills. The languageof
the statute applies as well to mills run by any other power
as those run by water; and the distinction depends solely
upon the fact that the section declaring **all mills * * *
shall be deemed public mills ^^ occurs in the same chapter
with the sections providing for the writ of ad quod dam-
num; and I should add the argument used in the cases of
Traver v. Aleii-ick County and Siaie r. Adams County, supra,
based upon the more permanent and continuing character
of water over st^am power, as well as its acknowledged
cheapness.
There is certain language used in the opinion last above
cited which may be understood to mean that the provisions
of the statute authorizing the use of the power of emi-
nent domain in behalf of the water mills thereby places
their regulation under legislative control. The language
used was not intended, I am sure, to bear such construc-
tion;' for, as we have seen, the framers of the statute
deemed it necessary to use express language for the pur-
pose of placing certain of the beneficiaries of the power
of eminent domain under legislative control, and that
with such discrimination as to repel the idea that they
were only supplementing that which had already been
done indirectly or by implication.
The writer has but little knowledge of beet sugar manu-
factories, or of their manner of doing business; but he
is sure that their ojierators do not, as a rule, manufacture
beets into sugar for toll, and hence that such manufactories
would not be under legislative control, and so, under the
constitution and statutes of this state, and the previous
decisions of this court, are not works of internal improve-
ment.
Having come to the above conclusion upon the second
point argued by counsel for plaintiff in the brief, it is not
Vol. 30] SEPTEMBER TERM, 1890. 877
Wullenwaber v. Dunigan.
deemed necessary to discuss the other questions argued.
An injunction will be granted as prayed.
Injunction granted.
The other judges concur.
Nicholas Wullenwaber et al., appellees, v. Mi-
chael DUNIGAN £T AL., APPELLANTS.
[Filed Dbcrmbeb 23, 1890.]
1. BaOroadB : Bond Proposition. A propoeition to issae bonda
to a railway company is in the nata re of a contract, npon the ac-
ceptance of which both parties are bonnd by the agreement.
2. : : Aoknt: Bepbesentations. Where certain
petitioners were induced to sign a petition calling an election in
E. township, Seward county, npon the representations of an
agent of the railway company that the depot would be located
on section 16 of said township, when in fact the depot wa^ after-
wards located on section 17, A«M,that the company was bound
by the reprpsentations of its agents, and that persons who had
been deceived thereby and induced to e^gn the petition might
set up such facts to enjoin the issuing of the bonds.
Electiok: Petitionebs. At least fifty free-
holders, resident of the township, etc., must sign a petition to
the county commissioners requesting them to call an election in
said township for the purpose of voting aid for a railway. With-
out a petition so signed by the full number required, the commis-
sioners have no jurisdiction.
Appeal from the district court for Seward county.
Heard below before Norval, J.
George W. Post, and D. C. McKiUip, for appellants,
cited : Mechem, Agency, sees. 714, 716, 743 and notes, 747
and note, 750 ; Montgomery 8. R. Cb. v. Mathews, 77 Ala.,
357; Billiard, Inj., 295-6 j Helms v. MeFaddm, 18 Wis.,
201 ; 2 Whart., Ev., sees. 797, 932 ; Perkins v. Lougee, 6
«78 NEBRASKA REPORTS. [Vol. 30
Wullenwaber v. Dnnigan*
Neb., 223; Ex parte Fisher, 18 Wend. [N. Y.], 609 ; Lmig
i\ Woodnum, 58 Me., 49; Graves v. Hedges, 58 Pa. St.,
540; Ranney v. People, 22 N. Y., 417; Ccm. v. Mishey
Breaneinan, 1 Rawle [Pa.], 311 ; 1 Woods, R. Law, sec. 33,
and p. 81, sees. 112-13-14, 120; Martin r. Peumcola R.
Cb., 8 Fla., 370 ; CkirlisU v. Eoansoille R. Co., 13 Ind., 477 ;
Miss. R. Co. V. Cross, 20 Ark., 443 ; HoWrookv. <y Berne,
9 N. W. Rep., 291 ; B. C. R. & M. R. Co. v. Palmer, 42
la., 228; First Nat'l Bk of Cedar Rapids v. Hurford, 29
Id., 585; 1 Wood, R. R, 110, 111, note 6, 112 to 120; 1
Parsons, Cont., 71; C. R. & M. R. Co. v. Boone Co., 34
la., 51 ; State v. Lake CUy, 25 Minn., 404; PlaUeviUe v.
Galena, 43 Wis., 493; People v. Klokke, 92 III., 134; J5um»
V. Campbell, 71 Ala., 271; Ewall's Evans, Agency, 64, 70,
71 ; 4 Coke, Institutes, 317 ; Story, Agency, sees. 239, 240 ;
Townsend v. Lamb, 14 Neb., 324; PlaUeviUe v. R. Co.,
43 Wis., 493 ; KL,& R. R. Co. v. Garrett, 52 Tex., 133;
B., & Jf. L. R. Co. v. Brooks, 60 Me., 568 ; 6 Am. & Eng.
Ency. L., 738, F95; 1 Washb., Real Prop. [5th Ed.], 57;
Gage v. Scales, 100 Ills., 218, 221, 895; 6 International
Eucy., 885 ; J/. & S. R. Co. v. Matthews, 24 Am. & Eng. R.
Cas., 9 ; 1 Redfield, Railways [5th Ed.], 172-3; Franklin
Glass Co. V. Alexander, 9 Am. Dec., 92 ; Hanover June R.
Co. V. Haldeman, 82 Pa. St., 36; Caley v. P. & C. R. Co.,
80 Id., 363 ; Koisenhader v. Peters, Id., 438 ; Lippincott v.
Whitman, 83 Id., 244; Broionlee v. R. Co., 18 Ind., 68;
Hardy v. Merriweather, 14 Id., 203; Anderson v. 0. JR.
Co., 14 Id., 169 ; Frees v. Davis, 29 Mo., 184 ; Hodges v.
Torrey, 28 Id., 103 ; Cooley, Torts, 475, 483, 487, 502 ; 1
Story, Eq., sees. 199, 200, 203, 203a, 2036; WaUv. StiJ>-
ble, 10 Vcsey, Jr. [Eng.], 509 ; Dyer v. Hargrave, Id., 505 ;
Anderson v. Burnett, 35 Am. Dec., 426 ; Bell v. Henderson,
6 How. [Miss.], 313; Juzan v. Toulmin, 44 Am. Dec
452 ; Kerr, Fraud & Mistake, 382, 383; Custar v. Tdm-
mile, 63 Pa. St., 381 ; Vicksburg R. Co. v. McKean, 12 La.
Ann., 638 ; Crossmanv. Penrose Co., 26 Pa. St., 69 ; Hughes
Vol. 30] SEPTEMBER TERM, 1890. 879
WuUenwaber v. Dunlgan.
©. Afitietam Co., 34 Md., 317; Kehey v. N. L. Co., 54
Barb. [N.Y.], HI; Walker v. MobUe R. Co., 34 Mfss.,
246; Anderson v. R. Co., 14 Ind., 169; Johnson v. Crate-
fordsviUe, 11 Ind., 280 ; Mabey v. Adams, 3 Bosw. [N. Y.],
346; Upton v. Tribileock, 1 Otto [U. S.], 45; Ooodrieh v.
Reynolds, 31 111., 490 ; Saffold v. Barnes, 39 Miss., 399 ;
Uppfalt V. Ndson, 18 Neb., 533; Gammage v. Alexander,
41 Tex., 4] 8 ; Teai v. Terrell, 48 Id,, 491 ; Whart, Ev., sec.
1174; WUliams v. Lowe, 4 Neb., 393; Prait v. Philbrook,
41 Me., 132 ; Tuek v. Downing, 76 111., 71 ; Whiting v. Bill,
23 Mich., 399 ; Bowman v. Carilhers, 40 Ind., 90; Stitt v.
JMUe, «3 N. Y., 427 ; Phipps v. Buckman, 30 Pa. St., 401 ;
1 Greenleaf, Ev., 113,114; Chapnumv. R. Co., 55 N. Y.,
584; Gilmanv. R, Co., 13 Allen [Mass.], 441; Livings-
ton V. R. Co,, 35 la., 556; Verry v. R. Co., 47 Id., 549;
Martin v. Farnsworth, 49 N. Y., 558; Trudo v. Anderson,
10 Mich., 357 ; Rice v. Club of G. R., 52 Id., 87.
Noroal Bros. & Lowley, for appellees, cited: StcUe v.
Babeock, 21 Neb., 187; Willianvs v. Holmes, 2 Wis., 9;
Damp V. Dane, 29 Id., 427 ; Canfield v. Smith, 34 Id., 381 ;
Eldred v. Leahy, 31 Id., 546; Galbraith v. Plasters, 101
III., 444; Gage v. Busse, 94 Id., 690; Sinnett v. Moles, 38
la., 25; Carry v. Board, 15 N. W. Rep., 602; Henderson
V. R. Co., 67 Am. Dec., 675; Crump v. Mining Co., 66 Id.,
116; Wickham v. Grant, 28 Kan., 617; Melendy v. Keen
89 111,396; Sanford v. Handy, 23 Wend. [N. Y.], 260;
Burhop V. Milwaukee, 18 Wis., 463; McCleUan v. Scott,
24 Id., 81 ; Davis v. Dumont, 37 la., 47; Vreeland v. Stove
Co., 29 N. J. [Eq.], 188 ; People v. !Sfupervisors, 67 111.,
67; People v. Ry. Co., 63 Id., 374; People, ex rd., v.
Jaekson Co., 92 Id., 441 ; PlaUevUle v. R. Co., 43 Wis., 493.
Maxwkij^ J.
This is an action to enjoin the issuing of certain bonds
of K. township, in the county of Seward, and to have said
880 NEBRASKA REPORTS. [Vol. 30
WuUenwaber ▼. Duntgan.
bonds canceled and delivered up and declared null and
void. The pleadings, which are very lengthy, need not be
set out in this opinion.
On the trial of the cause the court made findings and
rendered judgment as follows:
"Now on this 29th day of December, 1888, this cause,
heretofore tried on a former day of the present term of
court and taken under advisement, came on for decision
and judgment; and the court, being now fully advised in
the premises does find the issues joined in favor of the
plaintifis, and that the injunction heretofore allowed and
granted and issued herein ought to be made perj)etual, and
that the bonds now under custody of the court, in the hands
and keeping of S. C. Langworthy, ought to be canceled and
ht'ld for naught, and that the said colorable and the appar-
ent record of the proceedings of the board of supervisors of
Sewanl county, recorded in Commissioners' Record No. 4,
pages 94 to 98 inclusive, and on pages 127 to 131, so far
as the same relates to the calling of an election and the
voting of bonds in said K. township, is incorrect, unau-
thorized, and ought to be canceled, set aside, and held for
naught. It is therefore by the court considered, ordered,
and adjudged that the said bonds and the proposition for
their issue and the election held and proceedings had and
done in pursuance thereto in reference to the issue of said
bonds of K. township, in Seward county, Nebraska, were
unauthorized by law and void, and that the same and all
proceedings of the said board of suf)ervisors in reference
thereto be held for naught; that the said defendants, their
successors in ofiice or assigns, are perpetually enjoined and
restrained from delivering or authoiizing the delivery in
any opacity whatever of the said bonds or any of them
to the said defendant railroad company, and from negotiat-
ing or transferring them or any of them at any time; and the
said defendant railroad company, its officers, assigns, agents
and successors, are each of them restrained from receiving^
A^OL. 30] SEPTEMBER TERM, 1890. 881
Wulleuwaber v. Duuifan.
claiming, assigning, or negotiating said bonds or any of
tliem, and from in any way holding the same to be valid;
that the said board of supervisors and county clerk and
J heir successors in ofBce are severally enjoined and re-
straineil from signing, authenticating, or in any way vali-
dating said election, canvass on the question submitted at
said special election, or the record of said proposition sub-
mitted, or the record of the board of supervisors thereon^
and from in any way giving color of validity of said pro-
ceedings or any of them, and from recognizing in any way
the same to be valid."
To authorize a precinct, township, or village to issue
bonds the statute requires: ''A petition signed by not less
than fifty free-holders of the precinct, township, or village
to be presented to the county commissioners, or board au-
thorized by law to attend to the business of the county
within which such precinct, township, or village is sit-
uated. Said petition shall set forth the nature of the work
contemplated, the amount of the bonds sought to be voted^
the rate of interest, which shall in no event exceed eight
per cent per annum, and the date when the principal and
interest shall become due, and the said petitioners shall give
bond, to be approved by the county commissioners, for the
payment of the expenses of the election, in the event that
the proposition shall feil to receive a two-thirds majority
of the votes cast at the election."
It appears from the record that fifty persons did sigu
the petition, and that thereupon the election was duly called
and held, and the bonds declared carried. This election
appears to have been held before the depot in the township
of K., Seward county, was located. There is a large
amount of testimony in the record tending to show that a
considerable number of the signers of the petition were in-
duced to sign the same by representations of the agents of
the railroad company that a freight and passenger depot on
56
\
882 NEBRASKA REPORTS. [Vou 30
WoUenwaber v. Dunigan.
the line of said railroad would be located upon section 16
of said township.
The depot finally was located on section 17 of said
township. A proposition to issue bonds to aid in the con-
struction of a railway is in the nature of a contract, which,
when accepted, is binding upon the respective }>arties.
Hence, if the electors, through false or fraudulent represen-
tations, have been induced to vote bonds to aid in the con-
struction of such railway, a court of equity in a proper
case will grant relief. {Cutry v. Board of Supervisors^ 15,
N.W. Rep., 602; Sinnettv. Moles, 38 la., 25; Hender-
son V. San Antonio, etc., R. Co., 67 Am. Dec., 675;
Orump V. U. 8. Mining Co., 66 Id., 116; Wickham v.
Grant, 28 Kan., 517.)
Where parties have been induced by false representa-
tions to sign a petition calling an election to vote aid to a
railway, they may set up such false representations as
grounds for enjoining the issuing of the bonds. (SinneU
V. Moks et a/., 38 la., 26 ; Ourry v. Board of Supervisors,
eto., 15 N.W. Rep. 602; Wickham v. Grant, 28 Kan.,
617; Melendy et al., v. Keen, 89 111., 395; Sandfordv.
Handy y 23 Wend., 260; Burhop v. City of Milwaukee et
at., 18 Wis., 431 ; McCldlan v. Scott et al., 24 Wis., 81;
Davis & Co. V. Dumont^ 37 la., 47 ; Vreeland v. New Jer-
sey Stone Co., 29 N. J. Equity, 188.)
If, therefore, the plaintiffs were induced to sign the pe-
tition by false representations, they have a right to set up
such representations to prevent the issuing of the bonds.
It is claimed, however, that the persons who procured the
signatures to the petition were not the agents of the rail-
way company, and therefore such company cannot be af-
fected by their statements. This question was before the
supreme court of New York, in Sandford v. Handy, 23
Wend., 265, and the opinion delivered by Chief Justice
Nelson, who says : "The distinction between a general and
special agent has often been the subject of discussion in ad-
Vol. 30] SEPTEMBER TERM, 1890. 883
Wullenwaber v. Dunigan.
judged cases, and by elementary writers, but it is not par-
ticularly important here, as this is conceded to be a case
of special agency. Our inquiry is more especially directed
to ascertain the extent of the principal's responsibility in
cases of this character ; or rather, confining it more par-
ticularly to the point before us, to what extent and to what
circumstances will the principal be held responsible for the
representations and declarations of the agent.
'^Mr. Justice Story, in his recent valuabl ecommentaries
on the sybject, p. 126, lays down the general rule, and
which is as applicable to special as to general agents, that,
' where the acts of the agent will bind the principal, then
his representations, declarations, and admissions respecting
the subject-matter will also bind him, if made at the same
time, and constituting part of the res geskeJ He further
observes that ' for most practical purposes, a party dealing
with an agent, who is acting within the scope of his au-
thority and employment, is to be considered as dealing
with the principal himself. If it is the case of a contract,
it is the contract of the principal. If the agent, at the time
of the contract, makes any representation, declaration, or
admission touching the subject-matter of the contract, it is
the representation, declaration, or admission of the princi-
pal.' These principles are fully borne out by the several
authorities referred to-— are founded in good sense and
with a just conception of the commercial and other busi-
ness transactions of life from which they have been de-
rived." This, we think, is a correct statement of the law.
If a person employed by a railway company in a special
matter, as to procure signatures to a petition for the calling
of an election to vote bonds in aid of such railway, the
company will be bound by the representations of such
agent made in any matter pertaining to his duties ; in other
words, a principal, by availing himself of the acts of an
agent, must adopt the same in toio and cannot adopt that
which is beneficial and reject that which is detrimental.
884 NEBRASKA REPORTS. [^'oL. 30
Wullc nwaber v. Duuigan.
This rule was recently applied by this court iu Donisthorpe
V. F., E, & M, V. Ry. Co., ante, p. 142, and the company
held responsible for the representations of the agent.
In the case at bar it is clearly shown that a number of
the petitionee were induced to sign the petition by repre-
sentations made on behalf of the railway company, that
the depot would be located on section 16. There is no
pretense that the depot has been located on that section.
The api)ellant contends that it was located on section 17,
and therefore is more advantageous to some of the plaint-
iffs than if located on section 16: It is sufficient to say
that the original proposition under which a number of the
plaintiffs were induced to sign the petition was that the
depot would be located on section 16. If the company
may remove it to section 17 it may remove it to the ex-
treme limits of the township.
We cannot make a new contract for the parties. The
plaintiffs are entitled to a performanceof the condition under
which they are induced to sign the petition for the election
to vote the aid. And as it is apparent that the company
has not performed its part of the agreement, hence it is
not entitled to the bonds. It is contended on behalf of
the plaintiff in error that fraud cannot be predicated on a
promise not performed. Perkins v. Lougee^ 6 Neb., 220,
is cited to sustain that position. That action was brought
for the purchase money of the sale of a lot which the
defendant had personally examined before purchasing, and
he alleged as a defense that the plaintiff, to induce him to
purchase the same, had falsely represented to him that he
was about to erect a large brick hotel on a lot near that
soM to the defendant. It was held that such promise was
not actionable, and as the party had personally viewed the
lot before purchasing that he must pay for the same. In
the case at bar, however, the inducement or consideration
for signing the petition calling the election was the loca-
tion of the depot on section 16. The case therefore differs
from that of Perkins v, Lougee.
Vol. 30] SEPTEMBER TERM, 1890. 885
Dixon County y. Oantt
Some objection is made to a number of the signers of
tlic })etition on the ground that they are not freeholders.
It is unnecessary to examine this question. It is sufficient
to say that it is indispensable that a petition requesting the
calling of an election must be signed by at least fifty free-
holders, and without such petition such commissioners
have no jurisdiction. The judgment of the district court
is right and is
Affirmed.
Cobb, Ch. J. concurs.
NoRVAL, J., having tried the case in the court below,
took no part in the decision.
Dixon County v. W. E. Gantt.
[Filed Dkckmbeb 22, 1890.]
Iiaohes: Judgment by Default Affirmed. A firm of attorneys
rendered serrice for Dixon coanty and filed a claim for the same
before the board of coanty oommifisioners, which claim was re-
jected. The case was then appealed to the district oonrt, the
transcript being filed in March, 1886, and a petition filed in
April following. The coanty filed no answer, nor other plead-
ing in the case, and in April, 1887, judgment was entered against
the coanty, and afterwards a motion made by the coanty to set
the defaalt aside was overraled. Heldf That as error mast ap-
pear to aathorize the reversal of the judgment of the district
coart, and as the coanty had been goilty of gross negligence
in not pleading, and it did not appear that it had any valid
defense to the action, the judgment woald be affirmed.
Error to the district court for Dixon county. Tried
below before Powers, J.
A, E. Barnes^ County Attorney ^ for plaintiff in error.
DacUy Gantt & Keatley, contrcu
886 NEBRASKA REPORTS. [Vol. 30
Dixon County t. Gantt.
Maxwell, J.
This is an action founded on an oral contract between
the plaintiff in error and the firm of Grantt & Norris,
wherein said plaintiff in error employed said firm of
Gantt & Norris to bring suit on the official bond of B. H.
Knapp, a defaulting county treasurer of Dixon county^
Nebraska. In consideration of said contract said firm of
Qsntt & Norris commenced suit on said bond. After said
case had been commenced, the same was compromised be--
tween' the county and said R. H. Knapp, and his bonds-
men and the county took certain lands of said B.. H.
Knapp, and his bondsmen paid the sum of $2,000, and
said cause on said bond was dismissed, when W. E. Gantt,
the defendant in error, presented a claim in his own right
to the board of county commissioners of the plaintiff in
error, which claim was rejected by said board, when tne
defendant in error appealed the case to the district court of
Dixon county, where the defendant in error filed a petition,
set up the facts that the plaintiff, in error was indebted to
said defendant in error on a contract made'with the county
of Dixon by Gantt & Norris; that this cause was contin-
ued from time to time, when on the 21st day of April,
1887, said defendant in error took judgment by default
against the plaintiff in error for the sum of $590.50, in
the absence of the attorney for plaintiff in error; that
plaintiff in error at once moved to set aside the judgment,
and supported said motion by several affidavits; that the
hearing of said motion to set aside and vacate said judg-
ment was continue<l from time to time, and on the 17th
day of October, 1888, the same was overruled by the
court, whereupon said cause is brought to this court by
petition in error.
The transcript shows that it was filed in the district
court of Dixon county in March, 1886, and the petition
was filed in the following April. One year thereafter
Vol.. 30] SEPTEMBER TERM, 1890. 887
Shreck v. Spain.
judgment was taken against the county by default, and no
reason is given to explain the delay. It does not appear
now that the county has any defense to the action. •
Whatever the facts may be, it seems to be admitted that
the defendant in error and his partner rendered valuable
services for the plaintiff in error. If it was not liable for
such services, or the amount claimed is too large, an an-
swer to that effect should have been pleaded. This is a
reviewing court, and to authorize the reversal of the judg-
ment it must appear that the court below erred. This is
not apparent in this case. The judgment of the district
court is
Affirmed.
Th£ other judges concur.
George W. Shreck et al. v. Lydia Spain.
[FiLKD December 22, 1890.]
Chattel Mortgages : Descbiftion: Notice: Pbiobitt. In an
action by a senior mortgagee against a junior mortgagee for the
conversion of two mares which it is alleged were described in
the senior mortgage as one dark brown mare, age five years,
weight abont 1,200 poands, of the valne of $175, and one dark
brown mare, right hind foot white, age five years, weight abont
1,200 pounds, of the value of $175, and in the junior mortgage
as one dark brown mare five years old called '* Dolly," and one
light brown mare four years old called **Pet," heldj that the
testimony showed that the mares were properly described in the
senior mortgage and that such mortgage was duly filed for rec-
ord; it was notice therefore to the junior mortgagee, of the ex-
istence of the lien of the senior mortgagee, and that the senior
mortgagee bad the superior right.
Error to the district court for York county. Tried
below l)efore Norval, J.
888 NEBRASKA REPORTS. [Vol. 30
Shreck y. Spain.
France & Harlan^ for plaintiffs in error, cited, contend-
ing that the description was insufficient: Rowley v. Bar-
thokmew, 37 la., 374; Smith v. McLean, 24 Id., 322;
Adams v. Com. Nafl Bk., 53 Id., 491 ; Montgomery v.
Wi-ight, 8 Mich., 147; Ivina v. Hines, 45 Id., 73; Sav-
ings Bank v, Sargent, 20 Kan., 576; Jones, Chattel
Mtges., sec. 63; Rhutaael v. Stephens, 27 'N. W. Rep., 786;
Ormsby v. Nolan, 28 Id., 569 ; Hayes v. Wilcox, 61 la.,
732, cases cited.
Sedgmck & Power, in reply to the contention, cited :
Peters v. Parsons, 18 Neb., 193; Prioe v, MoOomcts, 21
Id., 197 ; Jones, Chattel Mi^es. sees. 54, 61, 66 ; Pettis v.
Kellogg, 7 Cash. [Mass.], 456; King v. AuUman & Co., 24
Kan., 246 ; Mdy v. OaMwell, 7 Minn., 225.
Maxwell, J.
This action was brought in the district court of York
county by the defendant in error against the plaintiff in
error to recover the value of a span of mares, and on the
trial the jury found in favor of the defendant in error and
assessed the amount of her recovery at the sum of $310,
and a motion for a new trial having been overruled judg-
ment was entered on the verdict. The testimony tends to
show that on the 9th day of May, 1887, one John Price
executed a chattel mortgage to one John Milton Oliver on
the following described property : "One dark brown mare
named ' Browny,' age five years, weight about 1,200
pounds, sound, and worth $175; one dark brown mare
(right hind foot white), named * Flora,' age five years,
weight about 1,200 pounds, sound, and worth $175; also
one white mare named ' Maggie,' age seven years, weight
about 1,050 pounds, sound, and worth $125;»one black
horse named 'Bill,' age eight years, weight about 1,150
pounds, sound, and worth $125; one red cow, four years
Vol. 30] SEPTEMBER TERM, 1890. 889
Shreck v. Spain.
old, with spotte<Mieifer calf at side ; one white cow, three
years old, with spotted steer calf at side/'
This mortgage was duly filed for record on May 9 of
that year. On the 3d day of June, 1887, John Price ex-
ecuted a chattel mortgage to the Utica bank of Seward
county for a large amount of personal property, which in-
cluded the following: "One team of mares; one light
brown mare four years old, called ' Pet,' one dark brown
mare, six years old, called ' Dolly,' steers and heifers on
section 27, town 11, range 1 west ; all of said property
owned by me ; mares on section 8, town 11, range 1 west,
in Waco precinct, and York county, Neb., and free from
incumbrance."
The mares were taken by the bank under the second
mortgage and converted to its own use. The contest is
thus between two mortgagees, and the question presented is,
first, whether the description of the mares in the first
mortgage was sufficient to identify them so that the filing
of the mortgage would be constructive notice to subsequent
mortgagees or purchasers in good faith ; and, second, whether
the mares described in the second mortgage, viz., one dark
brown mare, five years old, called " Dolly,'' and one light
brown mare^ four years old, called " Pet," are the same
animals which Price had previously morl^ged to Oliver.
On both of these points there seems to be no doubt, and
we fail to perceive any ground upon which the plaintiff in
error would be entitled to recover.
A large number of errors are assigned in the record
which it is unnecessary to review at length. There is no
error in the record and the judgment is
Affirmed.
Cobb, Ch. J., concurs.
NoRVAL, J., having tried the case in. the court below,
did not sit.
INDEX.
Abstracter.
1. Fees reoeived as, by county derk, most be reported to
ooQDty board. State v. Kelly 677-9
2. Warranty in sale of abstract books. Crawdl v, Harvey 570
Aooounting.
Heldf To be the daty of a mortgagee of buildings who had
collected the rents. Edling v. Bradford 602-4
Act of God.
1. A snow storm of such violence as to prevent moving trains
is. Black v. B. Co \ 205
2. Common carriers are not insurers against iiguries to live
stock resulting from; in such case only the ordinary c&re
of a prudent person is required. Id 107, 204-5
Action. See Pabtibs. Variance.
Against stockholders of corporations under sec 136, ch. 16,
Comp. Stats., for failing to publish corporate indebtedness,
are gtuiat-penal only, and not barred in one year as penal
actions, the limitation being the same as ia other contracts.
Coy V. Jone» 700
Adverse PosseBsion.
1. Heldy To be established by the evidence. Petersen v. Toum-
wend 376
2. Ripens into absolute title in ten years, free from lien of
tax deed issued before that time. Alexander v. Wilcox 795
Affidavits. See Bills of Exceptions, 3, 4.
Agency. See Pbikcipal and Aqbnt.
Agistment.
1. Evidence found to show a want of that reasonable care
required of an agister in absence of express contract. Cal'
land V. Niehole 636
2. Where agister accounts for cattle which have died, to
owner, burden of proof is upon latter to show negligence.
Id 536
(891)
892 INDEX.
Alteration.
Of promissory notes, consented to by one of two partners;
firm boaud. Mace v. Heath 623
Amendment.
1. Allowed of petition on eve of trial; held, not reversible
error. U. F. R. Co. r. Broderick 739-40
2. Properly allowed in fartherauce of justice. Ward v. Par-
tin ._. 379-80
Animals. See Cabbiebs, 3. Wabbanty, 1-4.
Action for injuries by a wolf harbored by defendant; verdict
for plaintiff, held, to be sustained by the evidence. Man^
ger V. Shipman 355
Answer. See Pleading, 16. Appeal, 2.
Appeal. See Ebbob Pboceedings, 4. Review. Vabianoe.
1. Unauthorized dismissal of. Dickenon v, Mechling 719
2. Where, in an action on a promissory note, defendant of-
fers no testimony in county court, an answer in district
court on appeal, alleging forgery, tenders a different issue
from that originally raised. First Natl, Bank v. Carson... 107
3. A cause appealed from county to district court should be
' tried on the same issues i^ both. Id.
4. But if appellee go to trial on a different issue, he waives
the error. Id.
5. Not a sufficient excuse for failure to file transcript within
statutory time, in appeal from county to district court,
that county judge promised to prepare and file transcript
for appellant but neglected to do so. Oppenheimer v. Me- '
Clay 655-7
6. Errors committed by justice of the peace, in trial for viola-
tion of village ordinances, held^ to have been waived by.
BaUey v. State 857
Appearance.
In an action to recover real property where service is by pub-
lication and plaintiff's affidavit fails to state the non-resi-
dence of defendant, latter may appear specially to challenge
jurisdiction or quash papers, without making a general
appearance in the case. Brown v. Mice 239-40
Appointment.
Of county attorney, by entering the fact upon the record of
the proceedings of the county board, sufficient State v.
Walker 506
Assignment.
Of contract between attorney and client for professional serv-
INDEX. 893
ices, without client's oonsent, entitles latter to reconvej-
ance of land given as a fee for services. HiUon v. Crooker^llQ-ll
Afisignment for Creditors. See Insolybkcy.
A mortgage given by an insolvent debtor less than thirty days
before an assignment, preferring a creditor who has rea-
sonable grounds for knowing of the insolvency, is fraudu-
lent Banka v. Barb Wire Co 131-4
AsBiunpsit. See Cities, 1.
Attachment. See Onus Pbobanoi, 5, 6.
Overruling motion to discharge, not a final order. Boot v.
Bank » 774
Attorney.
Judgment by default against county for services rendered by,
affirmed. Dixan CoutUyv. GatUt 885
Attorney and Client.
1. Contract between, for professional services, is personal and
not assignable without consent; after performance, the
right to recover compensation may be assigned. Hitton v.
Crooker 716-17
2. Assignment of such contract by attorney without client's
consent is an abandonment thereof, and entitles client to
a reconveyance of land given as a fee for services ; money
expended in the prosecution of the suit to be refunded, /d., 717
Anotions. See Judicial Sales.
Bailment. See Agistment.
Ballots.
When cast in prescribed mode presumed to be legal, and this
presumption cannot be overcome by vague, indefinite, or
uncertain testimony. Todd v. Cats County 842
Banks. See Gabnishment, 3, 4. National Banks.
Bills of Exceptions.
1. Should be signed by referee in cases tried before him; not
by district judge. StaUv. Oaslin 653-4
2. When signed by trial Judge long after time fixed by law,
will be considered by supreme court solely to determine
sufficiency of evidence; alleged errors at trial will not be
reviewed. Seward v. Klenek 776
3. Affidavits used on hearing of motion for new trial cannot
be attached to such motion as an exhibit, but must be*pre-
served in bill of exceptions. VaUindingham v- 8coU 187
4. Alleged errors and affidavits used beiow must be pre-
894 INDEX.
Berved by, in order to be oonsidered in the sapreme ooort.
McOam v. Cooley 556
5. A stipulation stating that a certain transcript is a correct
bill of exceptions vill not warrant the sapreme court in
BO considering it, though it may Justify the district Judge
in signing it. Id,
Bona Fide Ptirohaser.
One who takes negotiable paper under circumstances show-
ing bad faith, or with knowledge of maker's defenses, is
not Myet9 v, Betder 286
BondB.
1. Of building contractor; action on; defense, changes in
plans; sureties held not to be released. Dorsey v. MeOee, 657
2. Cannot be voted by a municipality in aid of a beet sugar
factory. Oetehell v, Benton 871-2
3. Proposition to issue railroad bonds is in the nature of a
contract, upon the acceptance of which, both parties are
bound. Wullenxoaber V. Dunigan 877
4. Where parties are induced to sign a petition for a bond
election, by false representations by the agent of the rail-
road company as to where the depot is to be located, the
company is bound by the representations, and the parties
deoelTed may set up such facts as grounds for enjoining
the issue of the bonds. Id.
5. Without a petition signed by Utty resident freeholdersi
county board has no authority to call a bond election. Id.
Breach. See Rbsoission.
Biiilding Contraots.
Action against sureties on contractor's bond ; defense, changes
in plans and specifications; sureties) held, not to be re-
leased by change in frontage of building, nor by prema-
ture payment of contractors, the latter defense not being
pleaded in the answer; testimony as to what original
specifications were, conflicting, and verdict against sure-
ties sustained. Dorsey v. MeOee,., 662-4, 667
Burden of Proof. See Onus Pbobandi.
Carriers.
1. General duties and liabilities discussed. Black v. S, Cb., 204-6
2. Evidence and instructions reviewed in action against, for
loss of live stock. Id 200-4,207-8
3. Are not insurers against injuries resulting from inherent
propensities of live stock or from act of God; in latter
INDEX. 896
case are required only to uae the ordinary oare of a pru-
dent person. Id 197, 204-6
4. Orai contract between shipper and station agent, that a
store should be shipped at carrier's risk; subsequent de-
livery to shipper of bill of lading with the clause, *' stoves
at owner's risk of breakage," which condition was not
brought to shipper's notice, hM^ that carrier was liable
for breakage. U. P. £. Cb. o. ManUm 248
Cattle-GiiardB.
Are not required to be constructed by railroad companies at
private or farm crossings. O. A B,V, B. Co, v. Severin, 334-6
Chattel Mortgages. See Evidekcb, 31. Gabnishmbnt, 2.
Pbefbksncb of Cbbditobs, 1.
1. Void on account of not being recorded. South Omaha
NaU. Batik V. Chase. *.. 466
2. Instrument indorsed and termed a ''bill of sale," had, to
be a chattel mortgage and void under sec 11, ch. 32,
Comp. Stats. Norton v. PUger.. 866-6
3. Evidence, heldf insufficient to remove presumption of
fraud, there having been no change of possession of the
property. South Omaha NatL Bank v. Chase 466
4. Action by senior against junior mortgagee for conversion
of two mares described in senior mortgage. Held, That
description was sufficient, and that filing of first mortgage
was notice to junior, of rights of senior mortgagee.
Shreek v. Spain 887
6. Executed on certain buildings situated on leased land;
construed in connection with an assignment of the lease
and a contract between the parties. Held, That mort-
gagee was a trustee with authority to collect the rents
and apply them to taxes, insurance, etc Edling v. Brad-
ford 602
6. None of the notes, to secare which this mortgage was
given, having become due, mortgagee could not declare a
forfeiture of the property and advertise it for sale. /d..... 603
Cheeks. See Kambs, 2.
Cities. See Municipal Corpobations. Occupation Tax.
Obdinancbb, 1-3. Stbbets.
1. Allowance of a claim by city council '* to be paid when
there is money in the treasury," is binding, and the condi-
tion will not defeat an action to recover a judgment there-
on. NaU, Lumber Co, v.Wymore 359-60
2. In cities of second dass over 5,000, council may pass any
896 INDEX.
ordiaance by vote of majority of all members, or by vote
of one^half, with concnrreBce of mayor. Magneau v. Fre-
mont 848-50
3. Meeting of sncb oouDcil held at a time other than that
fixed by ordinance, valid, though not called by mayor or
ooancilmen, if all are present and act as a body. Id 850-1
4. Where sach meeting is adjourned to a specified date, and
a quorum is then present, it may transact any business
within the powers conferred by statute. Id 851
City Council. See Cities.
Claims. See Cities, 1.
Codicils. See Wills, 9.
Comiuoii Carriers. SeeCABsiEBS.
Conditional Sale. See Recobdinq, 1.
Evidence reviewed and found not to establish, but an oflfer to
sell only. Davis v. Oiddinga 213
Conditions. See Cabbibbs, 4. Cities 1. Contbacts, 4,5.
Real Estate, 2. Wills, 10, 11.
Consideration. See Negotiable Instbfmbnts, 1.
For a promissory note, may be established by parol evidence.
Walkerv. HaggeHy 124
Constitutional Law. See Intebnal Impbovembnts.
1. Subdiv. 6, sec 52, art. 2, ch. 14, Comp. State., authorizing
cities to levy and collect occupation taxes, not repugnant
to sees. 1 and 6, art. 9, Const. Magneau v. Frefnont 851-4
2. Constitution not a grant but a restriction of legislative
powers. Id^ 852
3. Purpose of sec. 11, art 3, Const, requiring bills to have
but one subject clearly expressed in title, discussed. K, C.
<fe O. B, Co.v. Frey 791-2
4. Such provision not violated by act of March 3, 1881, Laws,
1881, p. 267, providing for liens of laborers and material-
men. Id,
Construction.
Of written instrument set out in opinion. South Omaha Nail,
Bank v. Chase 467
Contest. See Elbctio^ts, 1-3.
Continuance.
1. Affidavit showing absence of material witness, and dili-
gence used to secure him; application denied; held, error.
Beatrice Sewer Pipe Co, v. Erwin 86
, INDEX. 897
2. AllowaDoe of motions for, discretionary. Hale v. Hesa ... 47
3. Verbal stipalations for, made out of coart^ unenforceable.
Id.
Oontraots. • See Bonds, 3. Building Contbacts. Wbit-
TBN INSTBUMSNTS, 2.
1. Written instruments set out and construed. South Omaha
Natt, Bankv, Chaae 458-60, 407
2. When executory, may be rescinded by either party thereto
without the consent of the other. Hale v. Hess^ 55-6
3. In such case the party not in fault is entitled to compen-
sation for damages sustained, labor actually performed,
and profits which he would actually have realised on fM
performance, /d.... • 60-1
4. Offer to sell real estate conditioned, among other things,
on the payment of a note within six months; held^ that
this was a condition precedent; that the offer, unless con-
tinued, must be accepted within that time; and that
upon failure to accept, the other party was not entitled to
specific performance. SehUldM v. Horbaeh 540-44
6. Acceptance after expiration of limit, of money on the
note, not a waiver of the forfeiture. Id 541
6. For professional services, between attorney and client, la
personal only, and assignment thereof by attorney , with-
out client's consent, entitles latter to a reconveyance of
land given as a fee for services; money expended in the
action being refunded. Hilton v. Orooker 716-17
OonyeyanceB. See Ck>yENANT8. Deeds. Rbcobdino.
1. Heldf Not to be affected by written instrument set out in
opinion. Norman v. Watte ^ 302, 313-14
2. Deed given by .lather to son, not absolutely, but to enable
latter to obtain a loan for former; held^ that son would be
compelled to reoonvey, subject to the security for the loan.
7Aomp«mv. Thompeon 489
Corporations. See Limitation or Actions, 4.
Oosts. See Ejectment.
Oounoil. See Cities.
Counoilmen.
Of cities of second class over 5,000; terms begin when they
have qualified, whether they then take their seats or not
Magneau v, Fremont 846
Oonnter-CHaiiii. See Set-Off.
1. Objection to sufficiency of 'facts stated in, may be taken at
any stage of proceedings in review. Bruifman v. Bwrr 420
67
898 INDEX. ,
2. Action by landlord on notes giren for rent by tenant;
damages pleaded by defendant for goods injured through
changes in the building by landlord, under agreement;
held^ that such damages were not the subject of a oounter-
claim, as they did not arise from transactions set forth in
petition. Id 414
3. Cause of action in suit for specific performance need not
be pleaded as, in action of ejectment; suit may be
brought separately, plaintiff therein being liable for coeta.
UppfuU V, WoervMinn 194-6
Counties. See County Attorney. County Clebk.
1. Judgment by default for serTioes rendered to, by attor-
neys, affirmed. Dixon County v, QanU 885
2. Where conflicting petitions for the submission of proposi-
tions to erect new conn ties are presented to the county
board, only the one first filed should be granted; two
propositions describing part of the same territory should
not be submitted. State v. Armstrong 499-501
3. New county cannot be formed from old one, so as to re-
duce latter to less than constitutional area. Id^ 500
County Attorney.
Vacancy in office of; appointment by entering the fact upon
the records of the proceedings of the county board is suf-
ficient. State V. Walker .*. 506
County Board. See Bonds, 5. Pabties, 1.
County Clerk.
1. Fees for services rendered by, as notary public, or bonded
abstracter, must be reported to county board, though only
fees in excess of the lawful salary need be paid into the
treasury. State v. KeUey 576-0
2. Application for mandamus to compel fees to be so reported
may be made either by the county or the county board.
Id 679
County Judge. See Appeal, 5.
Courts. See Appeal. Ebbob Pbocebdinos. Review. 8u-
PBBHE COUBT.
Covenants.
1. Against incumbrances, cover thoee known to purchaser,
as well as unknown. Burr v. Lamaster 698
2. Such covenants are violated 6y prior agreement of grantor
of a vacant lot which supports half the wall of a building
INDEX. 899
OB an adjoining lot, obligating himself and his grantees
to pay part costs of wall in order to ose it. Id 69S-8
Creditor. See Executions. Fbaudulent Conveyances.
Garnishment. Prbferbnge of Creditors.
Creditor's Bill. See Husband and Wife, 6.
Criminal Law. See Information. Principal and
Agent, 6.
Damages. See Counter-claim. Eminent Domain. In-
surance, 3. Mechanics' Liens, 5. Review, 3.
Streets, 1, 2.
1. For failure to complete bailding according to contract,
maj be set-off in an action to foreclose mechanic's lien.
Millsap V, Ball 734
2. May be recovered for the excess of iqjary due to the con-
struction of side tracks, over that arising from the opera-
tion of the main line of a railway. Donisthorpe v. B. Co., 147
3. Special ii^juries to properties along a railway track, not
sustained by the public generally, may be recovered for.
0. <&N. P, B, Co. V, Janeeek 278
4. Injuries resulting from smoke, soot, and cinders from
passing trains are proper elements of. Id 278-80
6. Cannot be recovered for lessening plaintiff's security by
opening a street across lots held under a tax lien, where
the value of the latter is less than that of the parts of lots
not taken. Alexander v. Plaitsmouth 119-20
6. Measure of, for wrongful eviction of tenant by landlord, is
rental value of property for unexpired term, less amount
of rent reserved by lease. Cannon v. Wilbur 782
7. Measure of, for rescission of contract by one party without
the consent of the other, held^ to be profits to be realized
under the contract. Hale v. Hess 61
8. Measure of, for d^truction by fire, of young trees and
timber, is amount of injury thereto; not difference in
Talue of land before and after fire. F.jE, A M. V, B. Co.
V. Crum ...; 74-6,78
9. In such case inquiry should be made as to the value of the
trees as standing timber, not their market price for trans-
plan tation as shade or ornamental trees. Id 70, 76
Death.
Of party, after submission of cause in supreme court. Thomp-
son V. Thompson 492
Debtor and Creditor. See Execution. Fbaudulbnt Con-
WXi JNDEX.
ywYAUcKH. Gabhishmbht. Prkfebkvcb of CsnK
ITOKK.
Decedents' Eetates. See Wills.
1. District coart ha« Jniisdictioii when an action is broagfat
to recover property receired by diatribotees of any estate
liable for debts under snbdiv. 10, 8e& 267, cb. 23, (}dmp.
Btats. Jlor^v. JfcCarniick Co,^ ^ 561
2. The lioiitAtioD against a claim allowed in the ooonty
coart, appealed to district court, and thence certified back
to coanty oonrt, begins to run from the original allowance
in connty oonrt. Id 562
Deoree. 8c« Homsstrad.
Deedl. See CovKNAMTS. Evipkitob, 22. Limitation of
AoTioNBi 3. Mbbobs. Mistake.
1. Land iucladed by mistake; reformation of deed granted.
Bition V. Crooker , « 716
2, Conveyance by father to son, not abBolate,bnt to enable
latter to obtain a loan for former; held, that the son wonld
be compelled to reoonvey, snbject to the security for the
loan. ThtmpMnv,l%omp9on 489
De Taoto Offioers.
Acta of, valid, so tkr as interests of third parties are involved.
Magneau v. DrematU 847
Delkidt.
Jadgment by, against a connty for attorney's services af-
firmed. Di»m Oma^v. Qtmtt 885
Dttflnitions. See Words and Phbasks.
Demurrer. See Pabtibs, 8. Plsadinq, 4
Deeoriptioii. See Cbattkl Mobtoaoe8,4.
Biemiaeel. Sea Pabtib, a.
Of appeal IWhii JasUce% to diatriot court, properly peifcilea,
no wriUen motion therefor appearing of reeard, held la
have been an arbitrary exercise of power. Ditku — a>
MttkHm$ >...>...«, ., ., T19
BiToroe. Sea Invanct, 1.
SMements. See Party Walls.
IDeotment.
\s FUriMr aclktt of, JUW, not to be a bar to a sail fer spa-
cifie peribrmanes. Upf^mHv, JTwisiaaa^...... , l>e-a
S. G^uae of aelkw in saeh sails need not be plsaisd aa*
coealcc^elaiM to «j«claieBt; suit auiy be bra^gbt ftfat-
iat«ly» plaintiff thereiii being liable for casta. M
INDEX. 901
Elections.
1. To establish the fact of illegal voting, testimony of a
witness who knows of and can designate parties not legal
voters, who actuallj did vote, neoessury; testimony merely
tending to show that witnesses do not know all the legal
voters in the precinct, insufficient. Todd v. Caas County,,, 841
8. Contestant in his petition mnst designate parties alleged
not to be legal voters. Id,
3. Ballots cast in the prescribed mode presumed to be legal;
and this presumption cannot be rebutted by vague, indefi-
nite and uncertain testimony. Id.„ 842
.4. A petition signed by fifty resident freeholders must be
presented to county hoard before it has authority to call a
bond election. WuUenwaber v. Dunigan.... 877
5. Where signatures to such petition were procured by false
representations, the latter may be set up by signers as
ground for enjoining issue of bonds. Id,
Sminent Domain. See Right of Way.
1. Owner of land taken by municipal corporation for opening
streets, entitled to its full value withont deduction for
special benefits. Omaha v. Hoxcell Lumber Co 636-7
Omaha v. Cochran 638
2. Action to recover damages for lessening plaintiff's security
by opening a street across lots on which plaintiff had a
tax lien ; Jield^ (1) that as the value of the parts of the
lots not taken exceeded the amoant of the tax lien, the ac-
tion could not be maintained; (2) that as the street had
not been opened fifteen years before, the suit was barred.
Alexander v. Platismouth 119-20
Sntry.
Tenant and his creditors have no right of, to remove im-
provements after surrender of possession to landlord.
Friedlander r, Ryder 787
Error. See New Tiual, 1, 4.
Error Proceedings. See Review.
1. Cannot be prosecuted from order overrnling motion to
discbarge attachment. Root v. Bank 774
2. Failnre to file a motion for new trial below, no ground for
dismissal by the supreme court, though it will prevent a
review of errors occurring at trial. Cheney v. Wagner 963
3. No exception is neces.sary to a final judgment. Id,
4. Petition and transcript filed within one year as an appeal
will be retained and the case considered as an error pro-
ceeding. Id,
902 INDEX.
Estoppel.
Wife Dot estopped to claim ander certain conyeyanceB from
her hasband, by reason of failure to record them, if cred-
itors are not prejudiced. Ward v. Parlin 384
Eviotion. See Landlobd and Tenant, 2.
Eridence. See Obdinances, 4. Recobdino', 1, 2.
a. Admis8ibilUy in General.
1. Improper admission of. Obemev. Burke 502
2. Wills not admissible before death of testators, to show
title in devisees. Thompson v. Tliompaon 492
3. Record of a jndicial proceeding admissible against any
one not a stranger thereto. Doraey v. MeGee 670
4. Written warranty is admissible even where petition in ac-
tion thereon is silent as to the form. Watson v, Boode 268
6. Where the warranty states that a horse is registered in the
Stud Book of England, vendor cannot introduce testimony
that he informed the purchaser, prior to the sale, that the
horse was not so registered. Id 271-^
6. A paper containing representations as to the horse, but
delivered to vendee after sale, fields admissible as evidence
in chief, though not proper rebuttal. Id 269-70
7. Before a copy of a letter is introduced in evidence, over
objection, it should be shown that the original cannot be
produced. Jd 273
8. Warranty by a partner may be proven under an allega^
tion that it was made by a firm. Eldridgev, Hargreaves,,. 645
9. Sufficient in such case to establish any one of the material
representations averred. Jd 639
10. Testimony to establish an offer to compromise claim for
breach of warranty, held^ iuadmissible. Id 647
11. In action by A against B for breach of warranty, not
competent to prove representations by C to D,as to same
kind of goods. Id 648
12. Error, if any, in admitting testimony of purchaser, that
the article sold was new to the trade, cured by deposition
of manufacturer to same effect. Id 645
13. Telegram countermanding the order, inadmissible, not
because it was not addressed to a party to the action, but
because it had not been alleged that the order was re-
scinded. Id 646-7
6. Degree and Weight
14. Degree and kind required in election contest. Todd v.
OatB County ^ 841-2
INDEX. 903
16. A preponderance only of evidence is required to establish
bona fides of a transfer by a debtor to his wife when con-
tested by the creditors. Stevens v. Carson 560
16. Possession by wife, under claim of ownership, of the prop-
erty when attached, not j^rtina/acie evidence of such own-
ership. Id 551
17. Preponderance of, is determined not alone by the number
of witnesses; their credibility, bias, means of knowledge,
and manner of testifying should be considered. Fitzger-
ald ». Richardson 369
18. Testimony of mechanics introduced to show what the car-
penter work on a house should have cost, and that the
same had been purposely delayed; Held, That jury should
not have been told what weight to give it. Weston v.
Brown 613
c. Parol,
19. The person in whose custody a paper has been left, should
be called to establish its loss, before parol evidence is re-
ceived of its content& Myers v. Beater 287
20. Parol testimony is admissible to establish the considera- *
tion for a promissory note, though not to vary its terms.
Walker v, Haggerty 124
21. Parties to a written contract may prove the existence of
a contemporaneous oral agreement forming a condition to
the other. Norman v, Waite 316
22. Where a deed to right of way is given upon representations
by an agent of the railway company that the land was for
main line only, and side tracks are then constructed
thereon, the purpose for which the deed was executed may
be shown. Donisthorpe r. R, Co 146
d. Trial,
23. Statutory order of introducing, may be varied. Gandy v.
Early 186
24. Where plaintiff is allowed to offer evidence in chief on re-
buttal, defendant may introduce evidence in reply. Id.
25. Admission of incompetent evidence on trial to court with-
out jury, not ground for reversal. Ward v, Parlin 379
26. Admission of irrelevant testimony on a jury trial, to the
prejudice of the adverse party, is good ground for a new
trial. First Natl, Bank v. Carson 104
27. Objection to testimony as " incompetent, irrelevant, and
immaterial," is specific enough. Id 113
28. In order to predicate error upon the exclusion of testi-
904 INDEX.
mony, statement of what witDees wonid testify to should
be preserved in record. Seebrock v. Fedawa 440
e. Witncises
29. Falsity of any material part of a witness's testimony war-
rants the jary in disregarding the whole, nnleas corrob-
orated. Walker V, Haggerty 126-7
WaUon V. Roode 274
30. A single witness cannot be questioned as to how a colt in
controversy in the case is "generally described.'' Farm-
ers Loan <fc TVust Co. v, Montgomery 33
31. Statementa of a mortgagor of personalty, made as to latter
after it had passed ont of his possession, held^ not admis-
sible against mortgagee. Id 39
32. In order to impeach a witness, his attention mnst be
called to the alleged contradictory statement, its time,
place, and circamstancee. Id 34
33. Party bonnd by answer of his own witness, and cannot
call another to contradict it. Id 39
34. Witness should not be allowed to refresh memory by
memoranda, unless made at or near time of transaction's
occurrence. Weston v. Brown 612
Exeoution.
Creditor by levy upon tenant's fixtures acquires no greater
rights to remove them than tenant had. Friedlander v.
Ryder 787
EzemptionB.
1. Divorced husband who, as the testimony tends to show,
continued to furnish support for the children after their
custody had been awarded to the wife, is the head of a
family and entitled to the exemption. Roberts v.Moudy,,, 685
2. A lawyer's library is absolutely exempt under sec. 530 of
the Code. Id,
Exhibits. See Bili^ of Exceptions, 3. Pleading, 2.
Expert Evidenoe. See Evidence, 18.
False Bepresentations. See Evidence, 22. Right or
Way.
When made by the agent of a railroad company, as to the
intended location of a depot, in order to procure signers to
a petitiou for a bond election, may be set up by such sign-
ers as grounds for enjoining the issue of the bonds. Wui-
lenwaher v. Dunigan 877
Family. See Head of FAStiLY.
INDEX. 905
Fees.
1. When received bj conntj clerk as notary public or as ab-
stracter, mnat be reported to county board, thongb only
those in excess of the lawful salary need be paid into the
treasury. State v. Kelly 576-9
2. Either county or county board is a proper party to insti-
tute proceedings to compel fees to be reported. Id 579
Tenoes. See Railroads.
1. General duties of railroads as to fencing at crossings dis-
cussed. O. <& B. V.B Co. v.Severin 318
2. Bailroad company not required to fence that portion of its
depot grounds outside city limits (the remainder being
within) upon which abuts a platted addition. C, B. dt Q.
B, Co.v. Hogan 687
Final Order.
1. Overruling motion to discharge attachment is not, i2oo<
v,Bank 774
2. Ruling on motion to quash service by publication, with-
out a judgment of record, is not. Brown v. Bice 236
Findings.
1. Must conform to pleadings. Doreey v. McQee 667
Kitchen Bros. Hotel Co, v,ffammond 620
2. Special findings must be requested before error can be
predicated upon refusal to submit. Davis v. Oiddings 216
Fire Insurance. See Iksubance.
Fires.
By railways; damages. 0. A N. P. B, Co, v, Janecek^ • 278
Fixtures.
1. Tenant cannot re-enter to remove, after surrendering pos-
session to landlord, nor can former's creditors do so.
IHedlander v. Byder 787
2. Only those whose removal will not injure the freehold
may be taken. Id 788-90
Foreclosure. See Mechanics' Liens, 4. Tax Liens, 2.
Of mortgage on buildings. Edling v, Bradford 603-4
Forfeiture. See Chattel Mobtqaobs, 6. Contracts, 4, 5.
Fraud. See False Repkbsentations.
Fraudulent Conveyances. See Chattel Mortgages, 3.
PI USB AND AND WiFE, 2-6. INSOLVENCY. PREFER-
ENCE OF Creditors.
1. Chattel mortgage or bill oi sale, not followed by actual
906 INDEX.
and continaed change ot pooocoBion, void under sec 11, ch.
32, Com p. Stats., and prior recording will not supersede
necessity of proving good faith. Norton v. Pilger^ 860
2. Sole effect of sec. 26, ch. 32, npon unrecorded conditional
lease of personalty, where lessee is neither jadgment cred-
itor nor purchaser without notice, is to place it on an
equal footing with conditional sale. Id 867-8
3. Blanket mortgages on entire real and personal property, to
one creditor, to the exclusion of others, and disproportion-
ate to former's claim, are void. Brown v. Work 803-4
4. Preference, less ihin thirty days before an assignment, of
a creditor who has ground for knowing of his debtor's in-
solvency, is void. Banka r. Barb Wire Co.^ 131-4
6. A trust, resulting from the purchase of city lots, the deed
to which is made to another, for the purpose of defraud-
ing creditors, cannot be enforced by the eetiui que trust by
action, but the legal title which he afterwards acquires,
is free from claims of heirs of the trustee. Detwiler v.
Deiwiler 338
Freight. See Cabbiebs.
Gkumishment.
1. Status and liability of garnishee discussed. Bussell r. Zau, 814
2. First mortgagee of a stock of goods, having satisfied his
claim by sale, and having in his hands a surplus, gar-
nished by other creditors; action by second mortgagee
against fii-st to recover surplus; improvident payment
thereof by first mortgagee to attorney of other creditors;
held^ that former was liable to second mortgagee for such
surplus. Id 805
3. In proceedings against a bank, whose president and cash-
ier are absent, service on the book-keeper is sufficient.
Find Nail. Bank v. Turner 84-5
4. A garnishee, duly served, who delivers property then in
bis possession 1o defendant, is not thereby released from
liability to plaintiff. Id, , 85
Guaranty. See Pkincipal and Agbnt, 2.
Head of Family.
Divorced husband is, where, as the testimony tends to show,
he has furnished support for the children, since their cus-
tody was awarded to the wife. Bobertsv. Moudy 685
Highways. See Streets.
Homestead.
Value exceeding $2,000; decree applying surplus to payment
INDEX. 907
of liens existing before commencement of action, held^ to
be sustained by weight of testimony. Tingley v. Greg-
ory 196-7
Horses. See Wabeanty, 1-4.
Husband and Wife. See Mechanics' Liens, 1.
1. Replevin by wife, of property owned by her but incum-
bered by her husband. AaKby v. Greenalate 263
2. Burden is upon wife to establish by preponderance of evi-
dence bona fides of a transfer to her by an indebted hus-
band, when such transfer is contested by the creditors.
Stevens v. Carson 560
3. The fact that the wife had possession of the property
when attached, and claimed ownership, is not prima /acie
evidence thereof Id 551
4. Conveyance from husband to wife to secure a pre-existing
bona fide debt owing to her, not fraudulent as to other
creditors if taken in good faith. Ward v, Farlin 384
5. Failure of wife to record her conveyances, does not estop
her from claiming under them, if creditors are not mis-
led thereby. Id.
6. Creditor's bill to subject real estate conveyed by husband
to wife; property shown to have been paid for out of wife's
separate estate; but title taken in name of husband un-
der parol agreement to convey; failure to show that cred-
itor relied upon ownership of husband; judgment for wife
sustained. Goldsmith v. Fuller 569
Impeachment.
Alleged previous contradictory statement of a party's own
witness cannot be proved without first calling his atten-
tion to the time, place, and circumstances. Farmers Loan
dE- Trust Co. v. Montgomery 34
Inonmbrances.
1. Covenanta against, cover those unknown to purchaser, as
well as those known. Burr v. Lamaster 698
2. Agreement by owner of vacant lot which supports half
the wall of a building on an adjoining lot, obligating him-
self and his grantees to pay part costs of wall in order to
use it, constitutes an incumbrance. Id 693-8
Indictment.
1. Omitting ^' A" and indorsing simply the words ''True
bill" not fatal. Martin v. State 609
2. May join several distinct misdemeanors. Id.
908 INDEX.
Infoncy.
1. Cnstody of child of diyorced parents awarded to mother.
Oilea V, Giles 624
2. Father has no absolnte Tested right in snch custody.
Id 627-8
3. Child's best interests the paramount consideration in
awarding cnstody. Id 624, 628
Information.
^hen charging tmlawful sale of liquors, should state names
of vendees or the fact that they are unknown. MtMrtin v.
State , 421
Injunction. 8ee Bonds, 4.
Application for by owner of abutting property, to prevent the
sale of vacated streets by a city, denied. Lindeaff «.
Omaha \ 512
Insolvenoy.
Transfer of stock of goods by an indebted firm to parties
who had been severally liable for the debts, but who then
assumed them jointly and absolutely, is a sale, and not an
assignment. Kaufman v. Oobwm^ 672, 682
Instruotions.
1. Are suflScient if as a whole, they state the law correctly.
Martin v. State 511
2. Must be based upon and applicable to the testimony.
Farmers Loan and Tnut Cb. v. Montgomery 41-2
Walker v. Haggerty 126
Davis t. Giddings 214
I^atl. Lumber Co, r. Wymore 360
Kinney v. TekamaU 608
3. And to the pleadings. Dorseyv. McGee 658
4. Objections to, must be assigned in motion for new trial in
order to be considered in supreme court. Walker v. Hag-
gerty 125
5. Mere repetition in, of the same legal principle, not re-
versible error where it is not intended to, and does not
mislead the jury. Scrhrock v. Ftdmca 438-8
6. Error to refuse, when legally correct, warranted by the
testimony, and not already covered. First Natl. Bank r.
Carson 104
7. Errors in, not excepted to before verdict, waived. Watson
v.Boode 273
8. In action for breach of warranty discussed. Id 273-6
Eldridge r. Hargreaves 648-51
INDEX. 909
9. In action on a promissory note, set oat and discnssed.
First Natt. Bank v. Carson 107-12
10. In action to recover for farm machinery, approved. Cham-
pion Machine Co. v. Gorder 89
11. In action for injary to freight while in hands of common
carrier, discussed. U. P, E. Co. v. Marston 248-52
12. In action to recover for boarding horses, discussed. Houck
v.Qfis 116-17
Insiirance. See Carriers, 3.
1. Objections to proof of loss must be specific, as proof may
be waived. Hartford Fire Ins, Co. v. Meyer 135
3. Clause in policy forbidding additional insurance, even by
agreement with the local agent, except upon the express
written consent of the company, upheld. Qerman Ins. Co.
v.Heiduk 296-7
3. Where a policy provides that in case of additional insur-
ance the holder shall recover no more on the one policy
than its amonnt bears to the whole insurance, and other
insurance has been taken, and there is evidence that the
entire loss is less than the whole insurance, it is error to
instruct jury that measure of damages is market value of
goods destroyed. Id^ 301
Interest. See National Banks.
Unsettled accounts do not draw, until six months after date
of last item. Wetionv. Brown 613
Intemal ImproTements.
Beet sugar factories are not, within the meaning of consti-
tution or statute, so as to justify the issuance of muni-
cipal bonds therefor. Oetehell v. Benton 870
Interpretatioii. See Construction.
Intoxioating Iiiquors. See Liquobs.
Joinder. See Indictment, 2.
Alexander V, Thaeker 617-18
Judgment. See Final Order. Names, 2. Pleading, 16.
1. Must conform to pleadings. Dorssjf «. MeOee 667
2. ffOd, Not subject to collateral attack. Deserel Natt. Bank
9. NnekoUs 754
3. Money voluntarily paid in satisfaction of, cannot be re-
covered back while judgment remains in force. Id.
Judioial Sales.
1. Notice of, not vitiated by omitting the words "for the
910 INDEX.
heirs," followiog the word '^admiDistrator." McCamv,
Cooley 557
2. Nor by containing the phrase '^ bidder for costs " where
the latter word palpably should be "cash," and would
mislead no one. Id 557-8
3. It is proper, though not, essential, that the notices publish
the terms as cash. Id 558
Jurisdiction. See Bonds, 5. Dbo£Dsnts' Estates, 1.
Venue,
Jury. See Findings. Tbial.
JuBtioe of the Peace. See Appeal, 6.
Laches. See Counties. Default.
Neglect of county judge to prepare and file in district court,
for appellant, a transcript, within the statutory time, as
he had promised to do, is neglect of appellant and will
forfeit the right of appeal. Oppenheimer v, McClay 655-7
Landlord and Tenant. See Counteb-Claim, 1, 2.
1. In order to avail himself of an option in a lease to termi-
nate it for default of rent, landlord must give notice to
tenant of such intention. Cannon v. Wilbur 781
2. Measure of damages for wrongful eyiction by landlord, is
rental value of property for unexpired term, less amount
reserved by lease. Id, 782
3. Where lease does not provide that tenant may remove
fixtures and improvements, he cannot re-enter for that
purpose after surrendering possession to landlord, nor can
tenant's creditors do so. Friedlander v. Ryder 787
4. Without a stipulation to the contrary, only those improve-
ments whose removal will not injure the premises may
betaken. Id 788-90
5. Actual possession by tenant is notice to purchaser of for-
mer's righte. Id, 788
Leases.
1. Must be construed according to intent of parties. Oannon
V. Wilbur ; 781
2. Held^ To require notice from landlord to tenant of for-
mer's intention to declare a forfeiture. Id.
3. Measure of damages for wrongful eviction is rental value
of property for unexpired term, less amount reserved by
lease. Cannon v. Wilbur 783
4. Where there is no provision that lessee may remove fix-
tures and improvements, he cannot re-enter fi>r that pur-
INDEX. 911
po0e after surreodering posBession to lessor, nor can his
creditors do so. Friedlander v. Byder 787
5. Without a stipulation to tl^ contrary, lessee can take
awaj only those improvements whose remoTal will not
materially iigure the premises. Jd 788-90
6. Purchaser of property in possession of lessee, chargeable
with notice of latter's rights. Id 788
7. Agreement by lessee to farm land for one-half the crop;
eleven acres of com in lessee's share snbstitated for like
acreage of oats; sale by lessee of his share, the lessor con-
senting and waiving rights as to the eleven acres, held, that
he had no claim as to the latter, on the purchaser.
IdenB. See Homestead. Statutes, 2.
Mechanic's lien held to be paramount to lien, for purchase
money, of vendor of land on which building was erected.
BohnMfg. Co. v, Kounite 725-7
MilUap V, Bail 732
Limitation of Aotions.
1. An action to recover for damages for the opening of a street
fifteen years before, is barred. Alexander v. PlaUmnouth,.. 120
2. Statute begins to run upon the original allowance in
county court of a claim afterwards appealed to the dis-
trict court and thence certified back to county court.
Hwrvtv. MeCormiek Co 562
3. Statute begins to run against an action to correct a deed
upon discovery (or facts leading thereto) of the mistake,
where correction involves no change of possession or dis-
turbance of investments by defendant Aintfidd v.
More 405-6
4. Action under sec. 136, ch. 16, Comp. Stats., against stock-
holders of a corporation, for failing to publish corporate
indebtedness, is ^uast-penal only, and not barred in one
year, the limitation being the same as in other contracts.
Cojfv. Jone$ 799
5. The statute, though confined in terms, applies to all
claims that may be made the ground of action at law,
in whateTor form they may be presented. State v. School
VisL 620
6. A proceeding by mandamtta is barred at the end of fbnr
years. Id.
Liquors.
1. Information charging unlawful sale of, should state names
of purchasers or the fact that they are unknown. Martin
V. State 421
912 INDEX.
2. Sale on Sanday by agent, or one anthorued by principal
to sell at hia place of business, renders latter liable,
though he is absent. Martin v. State, 511-19
3. Village trustees are authorised to prohibit, by ordinance,
sale of, within corporate limits, with the penalty of a fine
not exceeding $100, and imprisonment in defiialt thereofl
Bailey v. State 857-8
ICalioioiis Proseoutioii.
1. Probable cause defined. C, B. A Q. R, Co, o. KriOd 936
2. Evidence found to show probable cause. ITeM, That Ter-
dict for plaintiff shonld be set aside. Id,
Mandamus.
1. Bight of action by, barred at the end of four years. fite<9
«. SchMl DM 528
2. SemblCj Is now only an ordinary action at law in cases
where it is the appropriate remedy. Id 527
3. May be granted by district Judge at chambers anywhere
within his district; need not be sitting in respondent's
county. lAneh v. Eeklea,. 747-8
4. Issuance of writ hdd to have been justified by the plead-
ings, though the evidence was not sufficient. /(!{..•..•••••«. 752
Mamifaotory. See Internal Ihpboyembnts.
Marriage.
A condition in a will which discourages or interferes with
marriage is void, and a devise which, but for such condi-
tion, would vest, is not thereby prevented from doing so.
Hawke v. Euyart 149
Mtoter and Servant.
Employer who negligently provides his workmen with un-
safe appliances is liable for injuries received by them
therefrom. U, P. B. Co, v. Broderick TS9
wS^TiTna.
Faietu in uno, falsua in omnilmSj held^ applicable to certain
testimony under discussion. Walker v, Haggerty 126
Measure of Damages. See Damages, 6-9.
Mechanics' Liens.
1. A building erected by a husband on his wife's land, with
her consent, is subject to, the husband's agency being
presumed. Bradford v. Petersen 98
9. Evidence found not to show the furnishing of material, or
the filing of an account within the sixty days; AeM, that
plain tifis were not entitled to a lien. McPhee v. Kay 02
INDEX. 913
3. In case under discassion, heldy to have priority over lien
for pnrchase money of vendor of land on which building
was erected. Bohn Mfg, Co. v, Kauntze 725-7
MiUaapv.Ball 732
4. Suit to foreclose cannot be maintained until after expira-
tion of the sixty days. Milimpv. Ball f 733
6. If building is not completed according to contract ,owuer
may set off damages therefor, and lien attaches only for
amount due after deducting the same, Id 734
Merger*
While all the prior agreements of x>arties relative to a trans-
action are merged in a deed, yet representations upon
which the deed was given may be shown. Donisthorpe v,
B.Co 146
Kistake.
1. Deed wrongly including certain land, reformed. Hilton v.
Orooker 716
2. The statute of limitations begins to run against an action
to correct a deed upon the discovery of the mistake, or of
facts leading to such discovery, where correction involves
no change of possession or disturbance of investments by
defendant Ainsfield o. More^ 406-6
Moderator. See Schools, 2, 3.
Mortgages. See Chattel Mobtoages. Fbaudulent Gon-
yEYANGBS,3.
Himioipal Bonds. See Bonds, 2-6.
Hiinicipal Corporations. See Cities. Villages.
1 . Where land is taken by, for opening a street, owner is en-
titled to yalue thereof without deduction for special ben-
efit Omaha v. HoweU Kumber Co 635-7
Same v, Cochran 638
3. Have power to vacate streets, and title to latter does not
revert to abutting owner, but vesta in municipal corpora-
tion. Lindsay v, Omaha 517-20
3. Injunction to prevent sale of vacated streets, denied;
remedy in damages deemed sufficient Jd.
4. Are liable for injuries received by a party in passing along
the continuation of a sidewalk to a deep creek, and fall-
ing down the bank ; though such continuation of the
sidewalk is constructed by private individuals. Kinney v.
Tekamah S07-8
6. Liable for injuries received by one who, in driving after
68
914 INDEX.
dark along a way used by the public for yean, tfaong^ nol
laid ont, falls into an excavation made in grading streets
no lights or barriers being there. Omaha v. i2aiufe/pJb... 708-4
6, School districts are qnaai rather than real mnnicipal oov-
porations, but by statate may sae and be seed. Fnuu «.
Young ; 363
li'ames. See Infobmatiok.
1. At common law a declaration describing a party by his in-
itials is bad on special demurrer; thongh it shftold appear
that the initials are not his Christian name. Oaklep v.
Peffler 632
2. Where a party signs checks, etc., by his initials, they will
be treated as his bnsiness name, and a judgment reooyered
against him thereunder is not subject to collateral attack.
Jd, 628, 632
^rational Banks.
1. Are not liable to the penalty for usury, when the same
has not been knowingly charged. Hail v. Bank 102
2. Nor where usurious interest has been chai^ged but not col-
lected. Jd 103
3. Partial payments on a usurious note will be applied on
the principal. Id • 102
Negligence.
1. In care of cattle. Calland v, Ifiehoh 532
2. Verdict of jury that common carrier of live stock was not
guilty of, sustained. Black o. B. Co^ 197
3. Of municipal corporations in permitting existence of un-
safe streets and sidewalks. Kinnejf v. Tekamah 607-6
Omaha v, Bandolph 703-4
4. Of employer in providing improper and unsafe appli-
ances for his workmen. U, P. B. Go. v, Broderick 738
Negotiable Instruments. See Bona Fidb Pubchassb.
Chattel MobtoaC^es, 6. Evidknob, 20. Names, 2.
Oxus Pbobandi, 4. Usuby.
1. Abandonment of a partnership, the formation of which
was the consideration for a note, is a sufficient defense to
an action thereon. Norman v. Waite 317-18
2. An indorsee who sues on a note, to which the payee sets
up a good defense, alleging notice to plaintiff, must prove
that he not only bought, but paid for, the note. /(i... ..314-15
3. Erasure by payee of word '* maturity, "indicating when
interest stiould commence on note given by a firm; eras-
ure assented to by a partner; held^ that firm was bound.
INDEX. 916
especially aa there was eyidence that the notes weie to
draw interest from date. Mace v. Heath '. 038
Kew Trial. See Error Proceedings, 2. Instructions, 4.
1. Shonld be granted where verdict is clearly against the in-
stmctions. a, B. A Q, B. Co. v. Kriski 236
2. Mere forgetfnlness of or oyerlooking of material testimony
by couDsel, not ground for. Crotoell v. Harvegf 673-4
3. Motion for, indivisible, and when made by several parties
must be allowed or overrnled as to all. Dorsey v. McOee... 670
4. Admission of irrelevant testimony on a jury trial, to the
prejudice of tbe adverse party, is good ground for. First
NaU. Bankv. Carson 104
Notary Public.
Fees received as by county derk must be reported to county
board. State v.Keily 676-7
li'otioe. See Chattel Mortgages, 4. Judicial Sales.
Real Estate, 1.
1. Required of, intention to forfeit lease. Cannon v, Wilbur.,, 781
2. Poeseasion by lessee is, to pnrcbaser, of former's rights.
FSriedlander v, Byder 788
Oaths. See Schools, 2.
Oooupation Tax.
1. Not an income tax, but a license fee for privilege of doing
business. Magneau v. Fremont 864
2. Does not violate constitutional requirement of uniformity,
because each occupation is not classified and amount to be
paid by those pursuing it graduated according to business
done. Id.
Oflto. See Contract, 4.
Oiaoers. See Councilmen. County Attorney. County
Clerk. Schooijs, 2, 3.
Acts of de facto officers valid so far as interests of third par-
ties are involved. Magneau v. Fremiowl „ 847
Onus Frobandi.
1. Upon owner to prove negligence of agister, where latter in-
forms owner of cattle which have died. Calland v. Nichols, 636
2. Upon party alleging undue influence in execution of will.
Seebrockv. Fedawa 442
a Upon proponent, both in county and district court, to prove
testamentary capacity. Id 431-2
4. Upon plaintiff, in an action on a promissory note, where
the answer is a general denial, to show that defendant ex-
916 INDEX.
ecuted the note, and does not shift to defendant after note
is introduced in evidence. First Natl. Bank v. Carson llrJ
6. Upon wife to establish bj a preponderance of evidence bona
fides of a transfer to her by an indebted husband when such
transfer is contested by the creditors. Stevens v. Carson ... 550
6. She is not relieved iVom such burden by having possession
of the property under claim of ownership, when the same
is attached. Id 551
Opening and Closing.
1. Proponent of will entitled to. Seebrock v. Fedawa 436
2. Plaintiff entitled to, whenever he is required to introdaoe
any evidence in support of his case. Mizer v, Bristol 138
Option. Bee Gontbaot, 4.
Order. See Final Obdbr.
Ordinances.
1. In cities of second class over 5,000 may be passed by Tote
of one-half the conncil with concurrence of the mayor.
Magneau v. Fremont 848-50
2. When imposing a fixed sum on each of several occupations,
do not violate the constitutional requirements of uniform-
ity in taxation. Id,.... 854
3. Clause in, providing penalty of imprisonment for violation
Yoid ; bat other provisions thereof are not invalidated. Id.
Bailey v. State 859
4. Passage of, proved by certificate of village clerk, attested
by his official seal. Bailey v. StaU 857
Parties.
1. Either the county or county board is a proper party plaint-
iff in a proceeding to compel the county clerk to account
for fees received by him and which it is his duty to report.
State V. KeUy 679
2. Owner of equity of redemption a necessary party to fore-
closure of tax lien. Alexander V. Thaeker 617
5. Action should not be dismissed on sustaining demurrer for
non-joinder of parties defendant, without giving plaintiff
an opportunity to bring in absent parties. Id,
Partnership. See Negotiablb Imstbumbnts.
1. Testimony found to show that incoming partner assumed
liabilities of retiring one. Richard* v. Hmio.. 262
2. Firm bound by representations and warranties of a mem-
ber, and the warranty of one partner may be proven under
INDEX. 917
an allegation fbat it was made by the firm. Eldridge v.
HargreaveB e3&-9
Party Walls.
An agreement by the owner of a vacant lot, which supports
half the wall of a strnctare on an adjoining lot, obligat-
ing himself and his grantees to pay part of the costs of
the wall in order to nse it, constitutes an incumbrance.
Burr V. Lamaster ©93-8
Penalty. See Actions.
Personal Ctontraot. See Contbagts, 6.
Personal Injuries.
1. From unsafe highways; municipal corporations held liable
for. Kinney v. Tekamah 607-8
Omaha V, Randolph 703-4
ft. When recelTed by workmen from unsafe appliances neg-
ligently fumidied by employer, latter is liable. U. P. R,
Co. V. Broderiek 739
Petition. See Pleading.
Pleading. See Amendment. Appeat., 2. Countku-Claim.
Information.
1. Liberal construction of. German Ins. Co. v. Heiduk 300
Pie/fqr V.Johnson 529
2. While it is not good practice to make a mere exhibit a
part of a petition, yet if facts in the former, together with
those set forth in the petition, state a cause of action, a
demurrer should be overruled. Pefley r. Johnsfm 529
3. Material allegations well pleaded and not denied taken as
true. Lineh v. Eckies....^ 741,752-3
4. Facts pleaded as matters of information and belief, and
not positively, may be objected to only by motion; not by
demurrer or effort to exclude testimony. Myers v. Sealer^ 283
5. One good count in a petition will not sustain a verdict
rendered upon a count that fails to state a cause of action.
OreentDood V. Cobbey 681
6. A general demurrer to a petition containing more than
one count must be overruled if any count is sufficient.
Alexander v, Thacker 618
7. Where there is a misjoinder of causes plaintiff should be
required either to elect upon which he will proceed, or file
a separate petition and docket an action for each cause.
Id.
6. An allegation in one count may be referred to in any sub-
sequent pleading or count of the same pleading, and, by
918 INDEX.
proper referenoe, be made a part thereof. JEldridge v. Ear'
greaves 641-2
9. Under an allegation that a certain warranty was made bj
a firm, competent to proYe that it was made by a member
thereof. Id^ 646
10. Snfficient in such case to establish any one of the mate-
rial representations averred. Id 63]^
11. Answer in action for breach of warranty, hetd^ sufficient
to constitute a oonoter-claim. Id 641-11
12. Testamentary capacity need not be specifically pleaded;
mere allegation that instrument is the will of the testator,
sufficient. Seebrock v. Fedawa^ 436
13. Gontestant of election must designate in his petition par-
ties alleged not to be legal voters. Tbdd v. Cans Qmntg. ,,941-2
14. Action for breach of warranty in sale of abstract books,
etc; motion to make petition definite and certain by
pointing out alleged errors in the books, hM^ properly
overruled. Orowell v. Bdrvejf 572-S
16. Facts constituting an alleged defense to a Judgment, in an
action to enjoin the same, must be pleaded so that it may
appear that a retrial would probably result differently.
Hartford Fire Ins. Co, v. Meyer v.. 135, 136-7
16. Semble^ That if an answer sets up inconsistent defenses,
and plaintiff goes to trial thereon, either in district or
supreme court, without objection, he cannot insist that
defenses be rejected because of inoonsisten<7. Deseret
NatL Bankv. NuchOls ^ 765-6
17. Matter pleaded as a counter-claim, held^ properly stricken
from answer. Brugman v. Burr 417
18. Objection to counter-claim as a defense may be taken at
any stage of proceedings in review. Id 426
Practice. See Amendment. Dismissat^ Eyidkkck. Puead-
iNo. Supreme Coubt. Tbial.
1. Conrt may take case from jury where there is no evidence
presen ting questions of fact. Hall v. Bank 103
2. Plaintiff is entitled to open and close whenever he is re-
quired to introduce any evidence in support of his case.
Mizerv, Bristol 138
Seebroek v, Fedawa 436
Preference of Creditors.
1. Blanket mortgages on entire real and personal property,
to one creditor excluding others, and disproportionate to
former's claim are fraudulent. Brown v. Work, 803-4
INDEX. 919
* % Of creditor who has reasonable ground to know of his
debtor's insolvency, void, if made less than thirty days be-
fore assignment. Bunks v. Barb Wire Co 131-4
3. A hnsband may prefer a bona fide pre-existing debt owing
to his wife, thongh she knew he was being pressed by his
creditors. Wurdvi ParUn 384
Preaumptioii. See Ballots. Chattkl Mobtoaoks, 3.
Onus Pbobandi.
Prineipal and Agent. See Mechanics' Liens, 1.
1. Apparent anthorily defined. Vhemev. Burke 592
2. Authority to agent to buy, ship, and advance cash for cer-
tain commodities does not anthorize him to guarantee, in
the name of the principal, the obligation of a third party
for the purchase of cattle. Id 587-92
3. Clause in insurance policy limiting powers of local agent,
upheld. German In». Co. v. Heiduk 29&-7
4. Principal cannot ratify part of agent's acts and reject the
balance. Walker v, Haggertg 126-6
5. Railway company bound by false representations of its
agent as to the intended location of a depot. WvUenwdber
V. Dunigan 877
6. Kepresen tattoos by such agent as to intended use of land
purchased for right of way, may be proven to show pur-
chase of deed given therefor. Doniaihorpe v, B. Co 146
7. Sale of liquors on Sunday by agent, or one authorized by
principal to sell at his place of business, renders latter li-
able, though he is absent. Martin o. 8UUe 511-12
Principal and Surety.
Action against snretieson contractor's bond; defense, changes
in plans and specifications; sureties, held^ not to be released
by change of frontage of building, 'nor by premature pay-
ment of contractor, the latter defense not being pleaded
in the answer; testimony as to what original specifications
were, conflicting, and verdict against sureties sustained.
Dorsey r. McOee 662-4, 667
Probable Cause.
C, B. A Q. B, Co. V. Kriaki 236
Probate. See Wills.
Quorum.
Of council of cities of second class over 5,000; what consti-
tutes. Magneauv. Fremont 848-50
Bailroads. See Bonds, 3-5. Damages, 2, 8, 9. Cabbibrs.
KiGHT OF Way.
920 INDEX.
1. General do ties as to fenciDg at crossings discussed. O. A
R. V, B,Co. v.Severin 318
2. Are not required to oonstract cattle-guards at prirate or
farm crossings. Id.^ 334-5
3. Are not required to fence that portion of their depot
grounds outside city limits, the remainder being within,
upon which abuts a platted addition ; the grounds being
constantly used and necessary for railroad business. C,
B. <fc Q. B. Cb. V. Hogan 687
4. Special damages caused by, to abutting property, and not
sustained by the public generally, may be recoTored for.
0. & N, F. B, Co. V. Janecek 278
5. Injuries resulting from smoke, soot, and cinders from
passing engines are proper elements of damage. J<{...278-80
Beal Estate. See Conyeyancbs. Incumbranosb.
1. Deposit of building material on a lot, hddy not to establish
a contract for sale of the lot between its owner and owuer
of material, nor to constitute possession amounting to part
performance, so as to take the contract out of the statute
of frauds, nor to constitute notice to a subsequent pur-
chaser. Hunt V. Lipp.^ 486-8
2. Offer to sell, conditioned, among other things, on pay-
ment of a note within six months; A«/<2, that this was a
condition precedent; that it had not been waived; that
the offer, unless continued, must be accepted within six
months; and that upon failure to do so the party to whom
it had been made was not entitled to specific performance.
Schieldsv. Horbach 540-4
Beoording. See Chattel Mobtgaqes, 4.
1. Sole effect of sec. 26, ch. 32, Comp. Stats., upon unre-
corded, conditional leases of personalty, where lessees
are neither judgment creditors nor purchasers without no-
tice, is to place them on an equal footing with conditional
sales. Norton c. Hlger 867-^
3. Prior recording will not supersede necessity of proof of
good faith, required by sec 11, ch. 26, where sale is unac-
companied by deliyery. Id 860
3. Failure by a wife to record conveyances from her hus-
band does not estop her from claiming under them, if
creditors are not prej udiced. Ward v. Farlin 384
Beoords.
Of a judicial proceeding, admissible against any one not a
stranger thereto. Doraey v. McGee 670
INDEX. 921
Bedemptioii.
Of mortgaged property sold before the debt became due.
Edling v. Bradford 603-4
Beferee.
Should sig^ and settle bill of exceptions in case tried before
bim; not daty of district judge to do so. State v. Gas-
Kn, .* 653-4
Beformation. See Deeds. Mistake.
Bemittitur.
Made a condition of affirmance. Fitzgerald v, Richardson... 373
Bemoval of Causes.
From state to federal court, cannot be effected on ground of
local prejudice, unless amount in controversy exceeds
$2,000. Bierbwoerv. Mitter 161
Bepleviii.
By wife, of personalty owsed by ber but incumbered by her
husband. Ashbjfv. Oreenslate^ 2&3
Bes Adjudioata.
Subject-matter of suit for spedilc performance, held^ not to
be, on account of former action of ejectment. Uppfali v,
Woermann, 104-5
Bescission.
1. May be effected by either party to a contract without the
consent of the other. Halev, Hen. 55-6
2. Measure of damages for such rescission, AeM,to be the
profits to be realised under the contract Id.., 61
Besultilig Trusts. See Trusts, 4, 5.
Beview. See Appeal. Erbob Pboceeding& Supreme
Court.
1. Questions not raised below, not considered in supreme
court. 8oul\ Omaha NaU. Bank v. Chase 435-6
3. A judgment against which the sole error assigned is that
it is contrary to the weight of evidence, will be affirmed
where testimony is conflicting. Curry v. Metcalfe. 366
8. Finding of jury, as to damages, not reyiewed where a
Yiew by it of the subject of the litigation introduced a
new element into the evidence which could not be pre-
sented by bill of exceptions. U. P. R. Co. v. Marstan..... 253
4. Where bill of exceptions was not signed by judge until
long after statutory time, alleged errors at trial will not
be revieired; only sufficiency of evidence considered.
Seward v. Klenck 776
922 INDEX.
6. Errors not amigned in petition in error will not be con-
sidered in supreme conrt. Stevens 9. Carson 553
6. Alleged errors, matters of exception, and affidavits used
below mnst be preserved by bill of exceptions. MeCam
V. (ooley 556
7. A stipalation stating that a transcript may be accepted as
a bill of exceptions will not be accepted by the sopreme
conrt. Id.
Bight of Way.
1. Where land is deeded to a railway company for, upon tlie
representations of its afi^ent that main line only should be
bnilt thereon, and side tracks are laid, the purpose for
which the deed was executed may be shown. Doniithorpe
V. R, Co 146
2. Special damages due to the construction of side tracks,
and in excess of those arising from the operation of the
main line, may be recovered for. /d.. ; 147
Sale. See Conditional Sale. Warbantt.
Sohools.
1. School districts may sue and be sued, but are gtkiM, rather
than real municipal corporations. Frans v. Young 363
2. The district moderator is not required to take aa oath of
office. Id,
3. Nor does his fiedlaie to file a written acceptance of office
forfeit title thereto, if he perform its duties. Id 384
4. Land conyeyed by legislative act, in trust to a city, ** for
the purpose of a high school, college, or other instiintion
of learning '' only, cannot be used for a mere primary
school. WhiUock v. Omaha School DiU^ 832
5w Words **high school" as used in the act, mean a school
where higher branches of common school education are
taught Id.
6. Substitution by later act, of board of education for board
of regents for such high school, does not change character
of trust; merely body which administers it. Id.
Service. See Appearance. Garnishment, 3.
Set-Off.
1. Special benefits to residue cannot be set off in an action
for damages for land taken in opening a street Owutha v.
EoweU Lumber Co 633
Omaha v. Cochran 637
2. Damages for failnre to complete a building according to
INDEX. 925
contract oay be set off in action to foreclose me clmnic's
lien, and latter attaches only for araoantdne after dedact-
ing sach damages. MiUsapv.BaU TM
Sheriff's Sale. See Judicial Salbs.
Sidewalks.
If owned by private individuals, being a continnation of those
owned by the city, latter is liable for unsafe condition.
Kinney V. Tekamah 607-8
Special Benefits. See Streets, 2.
Special Findings.
Must be requested before error can be predicated upon refusal
to submit. Davis V. Qiddings 215
Specific Ferformance.
1. Party not entitled to, who failed to accept an offer within
the required time, and was not bound by its terms.
Sehield$ v, Horbach 544
2. Cause of action for, need not be pleaded ai counter-claim
to ejectment; suit may be brought thereon separately,
plaintiff being liable for costs. Uppfalt v. Woermann ...194-5
Statute of Frauds. Sc ^ Fraudulent Conveyances.
1. Verbal contract to buy and divide between the parties
baled hay worth more than $50 is within the statute and
void. Maeev, Heath 621,623
2. Deposit of building material on a lot, held^ not to consti-
tute possession amounting to part performance of a verbal
contract for sale of the lot, so as to take the contract out
of the statute of frauds. Hunt v. Lipp 487-8
Statute of Limitations. See Limitation of Actions.
Statutes. See Table, ante, p. xUU-xIt.
1. Purpose of sec 11, art. 3, of Const, relative to subjects
and titles of acts, discussed. K, C. A O. R. Co, v, i^^...791-2
3. Ch. 60, Laws 1881, p. 267, providing for liens of laborers
and material-men, not in conflict with such constitutional
provision. Id.
8. Subdiv. 8, sec. 52, art. 2, ch. 14, Comp. Stats. , authorizing
cities to levy and collect occupation taxes, not repugnant to
sees. 1 and 6, art. 9, Const. Magneau v. Fremont 851-4
Stipulations.
1. When verbal and made out of court are unenforceable.
Hale V. Hen 47
8. Cannot be accepted by supreme court in lien of bills of
exceptions. McCam v. Cooley^ 556
924 INDEX.
Stookholders. See Limitation or AcnoNB.
Streets. See Limitation of Actions, 1.
1. City held liable for unsafe oondition of. Omaha v. Ran'
dolph 703-4
2. Where land is taken for, by manicipal corporation, owner
is entitled to valne thereof withont dedaction fix special
benefits. Omaha v. Howell Lumber Co 635-7
Omaha v, Cochran 638
* 3. City has power to vacate. Lindsay v. Omaha 517-20
4. Title to, when vacated, is in mnnicipal corporation; not
in owner of abutting property. Id 517
5. Such owner is entitled to damages for injuries not suffered
by the community at large; but such remedy is presumed
to be adequate, and in the case under discussion, applica-
tion for an ix^ unction as to the sale of vacated ground de-
nied. Id.
Sunday.
Sale of liquors on, by agent; principal held liable though ab-
sent MaHin v. 8taU 511-12
Supreme Court. See Appbal. Ebbob. Pbocbbdinos. Bb-
VIBW.
Death of plaintiff after submission of cause in; certain
rights of defendant left undetermined; cause remanded
to district court for final settlement. Thompson v. Thomp-
«m.. 492
Sureties. See Insolvbncy. Pbincipal and Subvtt.
Taxliiens.
1. Absolute title free from, acquired by adverse possession
for ten years. Alexander v. Wilcox 705
2. Owner of equity of redemption a necessary party to fore-
closure proceedings. Alexander r. Thaeker 617
3. Where lots are held under, damages cannot be recovered
for lessening plaintiff's security, by opening a street
through the lots, if the value of the i>arts not taken ex-
ceeds the amount of the tax lien. Alexander v, Flatts-
mouths 119-20
Taxes. See Occupation Tax.
Tax Titles.
Tax deed issued more than five years after time to redeem,
invalid and creates no lien. Alexander v. Wilcox 793, 797
Tenancy. See Landlobd and Tbnant.
Testamentary Capacity. See Wills, 4, 5.
INDEX. 925
Transcript. See Appral, 5.
Trial. See Appeabangs. Bills of Exceptions. Evidence,
23-8. Findings. New Trial. Review. View.
1. Where plaintiff is reqaired to introdnce any evidence in
support of his case, he is entitled to open and dose. Mizer
V. BrisM 138
3. Proponent of will entitled to open and close. Seebroek v.
Fedatoa 436
3. Statutory order of introducing evidence may be varied.
Qandyv. Early 186
4. Where plaintiff is allowed to offer proof on rebuttal, de-
fendant mi^ introduce evidence in reply. Id,
5. Permitting amendments and reopening of case for further
testimony, heldy not reversible error. F,, E. dtM, K. B. Co,
V, Oum 78
6. Language of a judge, not becoming but evidently without
effect on the jury, not reversible error. Black v. B, Co... 208
7. Where there is no evidence presenting questions of fact
the court may take the case from the Jury. Hail v. Bank, 103
8. Error for court to direct verdict where testimony is con-
flicting upon a material fact. Houck v.Oue 116
9. On a jury trial, either side has the absolute right of argu*
ment where a material fact is in dispute. Id. 117
TnutB. See Chattel Mobtgaqes, 5.
1. Land conveyed to a city, in trust, by legislative act, '* for
the purpose of a high school, college, or other institution
of learning,'* cannot be used for a mere primary schooL
WhiOockv. Omaha School Disi 822
2. The words "high school," as used in the act, mean a
school where the higher branches of a common school ed-
ucation are taught. Id.
3. Substitution by later act of board of education for board
of regents of such high school, does not change the charac-
ter of the trust; merely the body which administers it
Id.
4. A trust results in favor of a party who purchases lots with
his own means, but directs the deed to be made to his
mother. Detwiler v. Detwiler 338
5. But if the transaction is so directed in order to defraud
creditors, the cestui que iruBt cannot enforce such trust, but
the le^al title which he afterwards acquires is free from
claims of other heirs of his mother. Id.
926 INDEX.
Usury. See National Banks.
Partial payments on a note drawing more than legal interest
will be applied on the principal. Hall v. Bank 109
Variance.
Seldj Not to exist in an action as brought in justice's oonrt^
and afterwards tried in district ooart. Bickards v. Rene,,, 262
Vendor and Vendee. See Notice, 2.
Lien, for purchase money, of Tender of land on which build-
ing is erected, held, to be inferior to lien of laboren, me-
chanic, or material-man. Bohn Mfg. Co. v. KounUx 725-7
MUls^p V. BaU 732
Vendor's Lien. See Vendor and Vendee.
Venue.
Peremptory writ of mandamua may be issued at chambers by
district judge to another county than one where he is
sitting. Lineh v. Eckles 747-8
Verdict. See Ebbob Pbocbbdings, 2, 3. Findings.
View.
Finding of jury based upon, not reviewed by supreme court.
U. P. B, Co, V. Marston 263
Villages. See Obdinanoes, 3, 4.
Trustees may, by ordinance, prohibit sale of liquors within
corporate limits, and impose, as a penalty, a fine of not
more than $100, with imprisonment in default thereof.
Bailey v. State 8S7-8
Vis Major. See Act of Ood.
Voluntary Payment.
Satisfaction of the judgment of a court of competent jnris-
tion is, and money so paid cannot be recovered back while
the judgment remains in force. Deserei NuU, Bank v.
NuckolU 764,768-71
Waiver. See Contbacts, 6. Leases, 7.
1. Proof of loss required in an insurance policy may be
waived. Hartford Fire Ins. Co. v. Meger 135
2. Appeal is, of errors by magistrate in trial for violating
village ordinances. Bailey v. State SOT
3. Consent by appellee to trial is, of error in raising new is-
sues on appeal from county to district court FirU NatL
Bank V. Carson 107
Warranty. See Pleading, 9-11, 14.
1. Not presumed to be parol, where, in an action on, peti-
INDEX. 927
tion is silent as to the form; if written, it is admissible
under such pleading. Wtxtson v. Boode 268
2. Parchaser must have relied upon, in order to maintain an
action for breach. Id 276
3. Vendor is liable for patent defects if he so stipulate. Id... 271
4. Where a written warranty states that a horse is registered
in the Stud Book of England, vendor cannot introduce
testimony that he informed purchaser, prior to the sale,
that the horse was not so registered. Id , 271-3
6. In action for breach of, alleged to have been made by a
firm, competent to prove that one member of the firm
made the warranty. Eldridge v. Hargreaves 645
6. Sufficient in such case to establish any one of the material
representations averred. Id 638
7. Testimony to establish an ofTer to compromise daim for
breach of warranty, inadmissible. Id 647
8. In action for breach of, not competent to prove represen-
tations as to the same kind of goods by one person to an-
other, neither of them being parties to the action. Id 648
9. Instructions in action for breach of, examined and ap-
proved. Id 648-51
10. In sale of a1i)stract books. Orowdl v. Rarveg 570
Wills.
1. Are not admissible in evidence before death of testators,
to show title in devisees. Thompson v. Thompson 493
2. Undne influence defined and discussed. SeArock v. Fed-
awa 437-9
3. Burden is upon party alleging undue influedoe to establish
it Id 442
4. Burden is upon proponent, both in county and district
court, to prove teslamentiry capacity. Id 431-2
5. Testamentary capacity need not be specifically pleaded.
Id 436
6. Proponent is entitled to open and doee argument to jury.
Id.
7. Liberal provision by testator for some of his children to
the exclusion of others, not to be regarded as an indica-
tion that will is result of undue infiuenoe. Id 440
8. Failure to revoke, where testator lingers several months
after execution of will, an indication of its validity. Id.,. 443
9. A codicil confirming a will wholly or in part, amounts to
a republication of the will and brings it down to the date
of the codicil. Hawke v. Eiiyart 158-4M)
928 INDEX.
10. A devise to a son conditioned on his abandoning certain
bad habits is valid. Id^ 150
11. But a further condition in a will that the devise should
not vest until devisee should abandon a woman, to whom
he was already married, is void, and, without observing
it, devisee is entitled to his share. Id 160
Witnesses.
1. Should not be allowed to refresh memory by memoranda
unless made at or near the time the transactions occurred.
Weaion v. Brown 612
2. Party bound by answer of his own witness and cannot call
another to contradict it. Farmers Loan A Truti Co. «.
Montgomery .-. 39
3. In order to impeach, by proving alleged contradictory
statement, attention mnst be called to latter, its time,
place, and circumstances. Id ^ 34
4. Falsity of any material part of a witness's testimony, war-
rants jury in disregarding the whole unless corroborated.
Walker V. Haggerty 126-7
Watwn V. Eoode 264
Words and FhrajEies. See Judicial Sales.
1. * 'Apparent authority" of agent defined. Obeme v, Burke^ 592
2. ** Causeway or other adequate means of crossing " as used
in sec 106, ch. 16, Comp. Stats., construed. 0. <& £. V, R.
Co, V. Severin 322-3
3. *' District" as used in sec 1, art. 14, Comp. Stats., means
a judicial, not a school district. Frane v. Young 363
4. **" High school," as used in act donating Capitol Square to
city of Omaha, means a school where higher branches of
common school education are taught. WhiUock v. Omaha
School DUi 822
6. *" Probable cause " defined. C. B. A Q. R. Co, v. Kriski 235
6. ''Undue influence" defined and discussed. Seebroek v.
Fedawa 487-9
7. Words "True bill," omitting "A," indorsed on an indict-
ment, sufficient. Martin V. State 509
8. The words "ordinary" and "reasonable," as used to de-
fine the degree of care required of a common carrier of live
stock, when overtaken by the "Act of Qod," are used in-
terchangeably, and either word expresses the degree suffi-
ciently. Black V. R, Co 206
Writs. See Venub.
INDEX. 929
Written InBtrumeiit. See Constbuotiok.
1. Held, Not to convey title to land described therein. Nor-
manv, Waite^ 3(Ki, 313-14
2. Existente of, as evidence of acontract, does not forbid proof
of a distinct oral agreement as a condition to the written.
Id • 316
y^'^^f.VC^
69
2193 -i82
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