Omaha daily bee. (Omaha [Neb.]) 187?-1922, 1905-09-30
SUPREME COURT SYLLABI.

1891. France against Hohnbaum. Error,
from York. On rehearing former Judgment
adhered to. Barnes, ].
Where the extent of the homestead and
the value of the claimants interest therein
Is less than that allowed him by law, a
mortgage placed thereon after the rem
dttion of judgment against such claim
ant, for the purpose of paying OF prior
mortgage, will not be affected by such
1875. McGinnis against Johnson County.
Error, from Saunders. Affirmed. Letton,
c. Division No. /.
l. A denial in an answer that the oral
contract alleged by the plaintiff was made
together with a statement that contract
was made at the time alleged, differing
substantially from the one set up by plain
tiff, is not subject TO a motion to strike
on account of changing the issues from
a general denial since the allegation that
a different contract was made, is a mere
matter of evidence, tending to prove that
the contract declared upon was not made.
Such allegations may be superfuous and
redundant, but do not change the issue.
2. Where coal from mine in Illinois was
ordered from wholesale coal dealer in Ne
braska on December Z, 1901, TO be delivered
to the buyer at Valparaiso, Neb., for the
winter trade, an offer TO deliver the same
able delay in delivery as to release the
buyer from the obligation to take and pay
for the same, no good reason for the delay
8. In such case the court may determine
whether the offer to deliver was made
law and it is unnecessary to submit the
question to the jury for determination.
4. 1t is not error for the district court to
allow an appellant to file an amended ap-
peal bond within a specified time to take
the place Of bond irregular and defective
1879 soehner against Grand Lodge OF the
Sons of Hermann; error. Cedar Reversed
and remanded. Oldham, c., Ames, G. con-
curing. Division No. l.
/ A certificate OF a mutual benefit as
ISOLATION will be treated a contract Of
insurance between the member and the
2. Where by the constitution and by
laws OF. a fraternal benefit society II Is
society to pay their assessments and dues
to the secretary of the local lodge TO which
they belong such secretary in receiving
such dues and assessments acts as the
agent of the grand lodge OF the order
which issues the certificate.
g. II with knowledge OF the facts by
reason whereof II Is entitled to claim
forfeiture, the insurer continues to treat
the policy In force. does any act in
consistent with an intention to insist upon
the forfeiture, the forfeiture is waived.
Hunt against Insurance Co, 66 Neb.. 12S.
followed and approved.
limiting or avoiding liability are strictly
construed against the insurer and literally
in favor Of the assured.
g. Held under the facts and crcum-
stances shown by the record in this case
that II was error to direct verdict for the
defendant
1852 Brownheld against Union Pacific
Railway Company. Error from Dawson Re-
versed and remanded. Jackson. c. Division
Where a party has produced proof tend
Ing TO sustain his theory Of the case he Is
entitled 10 have such theory submitted 10
the fury by suitable instructions without
qualifying words calculated 10 mislead tho
jury into the belief that although they may
find the theory Of such party 10 he true.
they may return a verdict for the opposing
party.
DOUGLAS Reversed and remanded. Ames,
c. Division No J.
I. An instruction which withdraws from
concerning which there Is a conflict OF evil
dence Is reversible error.
2 A formal admission Of a mere conclu-
sion Of law In pleading may be avoided
by positive aveTments Of fact In the same
pleading which show the admission 10 be
1884 Larson against Anderson. Appeal
from Sarpy Affirmed. Letton, c. Division
i. Where during his life time husband
took possession Of certain real estate,
claiming title thereto. and lived upon the
same with his wife and family as his home
and before the ten-year period Of Limitation
expired the husband died, leaving his
widow who continued 10 reside upon the
same as her home, the possession Of the
widow may be tackled To that OF the hus-
band 50 as 10 raise the bar OF the statute
Of Limitation. Montague v, Marunda, 80
? In such case the possession Of the
widow IS continuation Of the adverse
possession OF the husband and will not be
presumed 20 be adverse 10 the claims OF
their children ana helrs
q The widows right TO possession Is by
virtue Of the marital relation and will not
| he construed 10 be independent and hostile
| 10 that Of her husbands heirs. unless by
some means she brings 20 their attention
| tbe fact that she claims 70 own the prop
ertv IN her own right and adversely TO any
right derived through her husband
4 Where one. by his words or conduct
UilfulIy causes another 10 believe I'm the
existence Of a certain state ~ things and
induces him 20 act on that belief. so as 10
alter his own previous position, the former
| is concluded from averring against the lat
ter a different state Of things a. existing
At the same time