Omaha daily bee., 1896-12-19
SUPREME COURT PROCEEDINGS.

LINCOLN. Dec, h5ECourt met pursuant
to adjournment. George L, Whitman f. w,
Beghtol and Charles W. Runyar were ad-
| mittcd to practice. l
Kountze agalnst 4, Erck, and Horhoch
against Omaha hlsmlssed; Krlcy against
! Shrader, leave touwithdruw bill of cNcep-
tions for certihcathns Drcxcl against Rich
ards and Morton Against Carlin continued
Cady against South Omaha National bank
mandate, recalled; Davis against Nebraska
National bank, Hohnck against Hayden, Be
atrce Savings bank against Beatrice Chau-
tauqu0 and Nebraska National bank against
Bell, motions to adVanCe overruled; North
| Platte Water Wonlss company agHinst North
bertson against Holiday. advanced; Brown
against Walrath, affirmed; Hink against
WcStcrVclt, Harms against IittlcJohn,
Walker against Allen and SChcrer against
Rcddio, motions to ruuHsh bill OF CNCep-
tions sustained; First National bank sutton
denied; Dean against Miller motion to dis
miss overruled, leave given to amend pc
tition In error; Omaha Loan and Trust com
pany against Risdon, two cases, rehcaring
denied; Johnson against HawNGr, dtsmi'ye i;
Mercer, motions to dismiss overruled.
December ld.-Arch o. Russell, Charles H.
Kubat and Thomas +. Inghams were ad-
Romano against Columbro, order of oc-
tober vacated and proceeding In error dis
missed; Davis & Rankin Building and Man
ufacturing company against Butler County
| Farmers Cooperative Butter and Cheese
factory, Harrington AGAINST houston, liOgt-
boom against Short Wetzig against Hoiz-
hCimer, Evcrson against Graves, Thomas
against Etwein and state ,ex rel. Mahoney
against Mcintosh, dismissed: Crawford
against Smith, transcript remanded for re-
certihcation: Hcyn Photo Supply company
against Seeds Dry. Plate company, leave to
docket petition of Scovll & Adams com
pany granted: Lefferts against Bell, mo-
ti,n1 tion to 9uash bill Of executions see sustained;
allowed.
Rehearngs were denied in Graves against
fNlly No III ffoCt
Peterson against Reisdorph, Austin az Gainst
| Tecumseh National bank, Doom against
trust t ST. COMPANY ] sr sager against Summers, sum rt
Eager against State and Krug Brewing
company, against Johnson.
In Glade against Herpolshemer and Mar
y Serg Ea o7ESrraei o"Gs State 0Sr sS rel wSodrpr
continued. Court adjourned sine die.
The next term commences January .
GSaey State SanE Ssast WI Line 0mS6a
against Richards. Drexel against Richards,
Tuttle against May, state eX rel Moran
ton against Carlin Bolln against state,
Williams against State, Bryan against City
rel Woodruff against Bartley, sieroe against
Homan, Weare against Boyle, Whitney
against, Gretna state bank; Cobbey against
| Dorland, Muller against kcnscy Griffith
against Thompson, Lobeck against Duke,
Council Bluffs Savings bank against Girls
Savings bank against Noll, Gamble against
Stauber Manufacturing company. Aultman
against Ward, Olcott against Bolton, Te-
cGmseh National bank against Head ct al.
(ten Cascs), Johnston against Spencer, Nose
man against Heitzhauser. Walach against
Cord against Bowen
OShea against Rice. Appeal from Madi-
Justice Post.
Tho contract of an agent in the name of
his principal for the sale of lands in this
state is void under the provision of our
statute of frauds unless the authority of
the latter is evidenced in writing. Morgan
against Bergren. Neb. 2O9
2. knowledge by the principal of the ma
SGl tGrial ia facts Is an e essential element of an
thorlzed act of his agent
3. He'd: from from an examination of the cyl
enforced no ID is @ Void i Gnsr the provs6n Of the
statute of frauds; (9 that the law will not
from the facts disclosed imply a ratification
Moline. Mlburn & Stoddard company
against Wood Moving and Reaping Machine
company. Error from Douglas county. AZ
irmed. Opinion by Chief Justice Post.
A party who appears before Il referee al
Of reference as embracing all the issues of
the case and requests findings upon all con-
trovertea questions will not upon the com;
the findings on the Pound that they are un-
authorized by the order of reference.
9. Exclusive possession of chattels by the
claimant, whether "a factor wareh ouseman
or other bailee Is. Indispensable to the eX-
common law or the usage of trade.
3. A lien does not exist at common law or
by custom in favor of one who holds prop
erty in subordination to the Will or control
of another.
A.. A lien does not attach in favor of a
bailee of goods inconsistent with the terms
of the agreement express or implied under
which his possession was obtained.
3. A contract for the storage and forward
ing of goods by which the consignor reserves
the right to withdraw, at pleasure, for re-
shipment the goods stored hereunder and
draw at sight upon the other for any bal
ance in his favor, the consignee relying
upon the personal credit of the consignor
does not create in favor of such consignee
lien for charges pursuant thereto.
dar county. Decree affirmed. Opinion by
Chief Justice Post.
The right to rescnd contract on the
ground of fraud must be promptly exercised
upon the discovery of the ground therefor.
The continued use or employment of prop
to affirm the contract under which 1t Is re-
ceived. American Building and Loan asso-
citation against Rainbolt. As Neb., 434.
2. one who is deceived by means of the
fraudulent representations of another may
elect to rescind the contract and reclaim the
property parted with, or to. affirm the agree
ment and pursue his ordinary remedy by
an action thereon. Such remedies are, how
ever; not concurrent but Inconsistent. and
by e!ecting to pursue one with n knowledge
of the fact he valves his right to the other
First National bank against Mckinley, AZ
8; Evidence examined and held to estab-
lish an atfirmance by the plaintiff of the
contract sought to be rescinded on the
ground of fraud.
Smith against City of Omaha. Appeal
from Douglas county. Reversed and re-
manded with instructions. Opinion by Chief
Justice Post.
1t is n rule of construction peculiarly ap-
plicable to special assessments authorized
by sec 6, art. tx of the constitution that the
record must show affirmatively a compli-
ance with all the conditions essential to
valid exercise of the taxing power, and
that the omission of such facts will not be
supplied by presumptions.
2. An award of damage pursuant to pro-
vision of sec. 11G, chapter of the city of
Omaha (chap la comp. stats) upon the
charge of an established grade, should show
affirmatively that the appraiser appointed
for such purpose took into consideration the
benefits thereby accruing to the property in
made represents the difference balance
in favor of the property owner
g. Both sec 6, art TX, constitution. 1875,
and the charter of the city of Omaha by
implication limit the amount of assessment
for local improvements to the special bene-
fits severally accruing to the lots or par
GELS of land thereby affected. Cain against
City of Omaha, AZ Neb,. 120.
Hermance against Cunningham. Error
from Douglas county. Reversed and re-
manded. Opinion by Judge Harrison.
In county where there We're several
judges of the district court who presided
over sessions of the court in separate rooms
cause was, pursuant to the established
rules of practice, set for trial before one of
the judges on fixed date and notice there
of given in the manner prescribed by the
rules. On the day assigned for trial the
aftatt I. 10,