Omaha daily bee., 1903-02-24

lzlbt Lynch against EEan. Appeal from
Grant. Affirmed. Albert, G. Division
No. 3.
l. Evidence examined and held sufficient
to sustain the findings Of the trial court.
2. In a suit in equity. where the court
makes special findings and omits there
from some fact conclusively established by
the evidence essential to the decree, such
fact on appeal to this court VIII be treated
as though found by the court.
3 Where the true boundary line between
adjoining owners is uncertain and unknown
TO them and may be asCertatned only at
more or less trouble and expense, an eN-
ecuted agreement to accept and abide by a
certain line as such BOUNDARY is binding
upon the parties, and subsequent purchas-
ers having notice thereof, although the
line.
4. The destruction of a fence by a tres
passer and his threat to repeat such act as
often as the fence should be replaced, en-
titles the owner of the premises invaded to
an injunction against the trespasser, even
i22oS Barber against Martin. Error from
Douglas. Affirmed. kirkpatrick, {. DlVi-
sion No. /
the manager of an insurance company,
charging the manager as agent with fraud
ulently concealing from plaintiff the actual
consideration received Tor plaintiH STOCK
sold by him as agent, evidence of repre-
sensations made to other stockholders
similarly situated, is admissible when such
representations are so related in character
and point of time as to furnish a basis for
a reasonable Interference as to the main
issue.
2. The rule that parol testimony cannot
be admitted TO vary or contradict the
terms of a written contract applies only
to the parties and their prtvies. Accord
ingly, in an action by principal against an
agent for recovery of the true considera-
ton received by the agent for the sale of
stock owned by the principal under a con-
tract In the agents name, the principal is
not estopped by the stated consideration In
the contract between the agent and a third
3 Where the evidence shows concluslvely
that all the negotiations for the purchase
of the capital stock of an insurance. com
pany contemplated all the stock, 1t Is not
error to exclude on croSs-eNamtnatton the
statement of a witness, who was the ven
dee. as to what he would have given per
share for less than all the stock.
T. The officers and directors of a corpora
ton and the shareholders thereof sustain
to each other the relation of trustees and
cestui que trustent, and public policy for
bids those who have accepted such post
nistic to their duties as trustees.
8. The general manager of a corporation
in circulating a sale of the entire capital
all the stockholders, and he cannot receive
and retain a secret compensation from the
vendee for calculating the contract of
sale.
6. Where a manager of an insurance COM
pany offered to make a sale of a share
holders stock, and the shareholder eX-
pressly authorized a sale for a stated sum
within a limited period, and there is evil
dence that both parties regarded the con-
NAoNN VI o6NANS $50 liz NoNn- 10 = -
tinuing one, the limitation of time being
only upon the power to sell at the sum
dence the letter of the manager offering to
make the sale, and the reply of the share
holder authorizing a sale within a limited
period at a stated sum, as tending TO show
the existence of a contract of agency at a
T.. in an action by a shareholder as prin-
cipal against the general manager and
secretary of the corporation as agent for
the sale of the shareholders stock, TO re-
cover the difference between the actual
considers ton received therefor and the
amount accounted for. II appeared that the
general manager led the shareholder to be-
lieve that he would not purchase her stock
under any circumstances that an option TO
purchase the shares for a sum much larger
than the manager stated he would take for
his own was given to the manager by a son
of plaintiff, which was fully explained to
have been given for the express purpose of
enabling the manager to erect a sale to
agrr sent a t tsIegram to plaintiff; stating
ceived such offer, but as a result of nego-
lions then pending he later received a much
higher offer. Held, that the manager was
the plaintiffs agent for the sale of the
stock.
s. Rulings CT the trial court on the ad-
mission and exclusion of evidence examined
and held not erroneous.
8. Rulings of the trial court In the giving
and refusal of instructions and
held not error.
1892. City of Lincoln against Lincoln
Street Railway Company. Error from
Lancaster County. Affirmed. Barnes. c.,
division No. 2.
ment cannot be released from a part of II
on the grounds of a mistake and still
leave. the other party bound thereby; his
remedy is not by motion to withdraw from
a part of the stipulation, but by a pro-
ceeding to reform the agreement or TO set
It aside altogether.
2. Where a party waits until near the
close of a second trial before asking to
withdraw from a stipulation of facts used
by both parties ON both trials, the court
may, I'm its discretion, refuse such request.
8. A street railway company authorized
TO construct equip and operate lines of
electric street railway may purchase lines
already constructed and fit and suitable for
the extension and completion of it's system,
as well as construct the same; and a re-
cital contained In a mortgage executed
by such company that it has power to
borrow any sum or sums of money which
struction and equipment of its. electric
street railway will not render the mort
gage void upon its face.
4. The charters of all street railway
companies in this state are created by
general law; cities have no power to grant
such charters or impose any limitations
thereon, and the act of 1889, authorizing
street railway companies to borrow money
for certain purposes and secure the pay
ment of the same by mortgaging their
property and franchises, applies to all
street railway companies in this state,
whether chartered before or after the
5. Where It is claimed that a mortgage
executed by a street railway company is
for an amount in excess of that permitted
by law and Its charter, such alleged fact
must be proven, so that an examination of
the record will disclose II. Otherwise 1t
will be presumed that the mortgage was
not for an excessive amount.
6. Where a street railway company mort
gagged its property and franchises to secure
the sum of 100000 for the purpose of pur-
chasing, constructing and equipping its
lines of electric street railway, and II is
shown that IL expended for that purpose
hnnt 4Q00 OOO n pannnf he said that The
mortgage was given to create a fictitious
Indebtedness.
7. A series of bonds secured by a mort
gage, or trust deed, on the property of a
street railway company are negotiable and
as between bona hde purchasers thereof
of each bond dating from the recording
of the mortgage that secured II and not
from the time II was issued.
s. Such a mortgage is a first lien upon
the property of the street railway de
scribed therein as against all special as
were assessed for paving already done
or as were in contemplation at the time
IL was recorded.
Q. Section n of Chapter XII OF the laws
OF 1887, which creates a lien for paving
taxes against the lines of street railway
companies does not make such special
taxes a lien on their personal property.
10. Under the statutes the taxes levied as
special assessments In cities Of the first
! class draw interest at the rate Of - per
cent per annum from the time OF deiin-
I qutncy, and a decree enforcing a tax lien
arising thereon will draw interest at the
same rate. A computation OF the amount
will be sustained. Lincoln Street Railway
] co against The CITY of Lincoln 81 Nah