Omaha daily bee. (Omaha [Neb.]) 187?-1922, 1906-05-19

substantial change. for a period Of time
necessary to bar an action to recover
TSS q lei '9s s e W &c. Bee
against Keller, Neb.. 1903; N. W, ga.
1927 Lutjeharms against Smith. Appeal,
Harlan. Affirmed. Jackson, c. Division
i. A principal who ratiaes a contract Of
his agent is thereafter. In the absence Of
ity Of the agent to enter into the con-
tract.
ing to accept the title of the vendor the
courts will not refuse to compel spe-
cific performance of a contract because of
1I22s Hefner against Robert Error,
Otoe. Reversed and remanded. Oldham, c.
Division No. l.
contract for a tender the law will presume
that the tender should be made at the
place of the contract, but an unconditional
refusal to accept the tender at any place
valves the necessity for technical tender
at the place of the contract.
2. Where tender other than money is
the property in condition to make the
tender good while an action for RECESSION
is pending. II after making the tender he
exercises acts Of ownership over the prop
erty rendered inconsistent with the the
DRY that he is holding the property for de-
livery to the party TO whom IT was ten
dered such conduct amounts to a with
drawal Of the tender.
1926. Fitzgerald against Kimball Bros.
and remanded. Albert, c. Division No. Q
l. The declarations of an alleged agent
pose of establishing or charging his au-
! thority.
2 The authority of an agent to execute
a contract cannot be established by evil
dence of his declaration as to the nature
| OF a conversation carried on between him
and his alleged principal by telephone dur
g. knowledge by the principal of the ma
tertal facts IS an essential element OF an
effective ratification by. him OF the unau-
thorized act of his agent. OShea against
Rice. ~ Neb., 1893.
4. Evidence examined and held insufi-
Gent to sustain finding that the alleged
agent had authority to bind the defendant
by the contract in suit,
1921 Stats against Wilson. Appeal
Richardson. Affirmed. Epperson, c. Divi-
1. The judgment of the court, unappealed
from, in an action for partition OF real
estate. fixing the shares OF the interested
parties and making partition of the land Is
final, and the parties thereto are estopped
from claiming greater interest. even
though the proceedings of the court were
irregular and the shares of the parties de-
termined according TO the provisions OF
2 widow who succeeded TO a home
stead valued at 5000 for the purpose OF
procuring the absolute title thereto paid
the heirs $500. Sc. which they accepted he
lieving that such payment vested the alb
solute title IT. the widow; the heirs re-
tained the payments so made and remained
the heirs are estopped from now assert
ing title TO the homestead against the
widows grantee, who purchased in good
faith.
1895 Won. Haller against State Error,
Douglas Affirmed. L.etton, J.
l. Where the evidence has not been pre-
served by bill OF exceptions, the pre-
sumption Is that instructions to the Jury
which refer to the testimony are based
upon and supported by the evidence in the
case.
?. Instructions set forth in the opinion
examined and held not erroneous
1423S Lawrie against Lininger & Metcalf
Company. Error, Thayer. Affirmed. Ames,
c. Division No. /.
I. Upon an examination OF the record IL
is held that the matters in issue were
fairly submitted 20 the jury upon the evil
/ dence.
1881 Parkins against Missouri Pacific
versed and remanded. Albert, c. Division
Nc. 2
/ Where a party fails to test the SUM-
cheney OF a petition by demurrer, but an
swers to the merits and proceeds 10 trial
on the theory that Il tenders a certain
issue. which Is litiEated and submitted to
the jury, II by any reasonable construction
OF the language the pleiadings can be con-
strued 10 raise such issue they will be held
to do so.
2 Evidence examined add held sufficient
10 sustain a finding thai tie commodity
which the plaintin was able, ready and
willing TO deliver. IN purs lance OF a con-
tract OF sale answered the requirements OF
such contract.
8 In an action for breach o. contract for
refusal on the part n tine, Vendee 70 ac-
cent the goods rendered ire burden OF proof