Omaha daily bee., 1907-01-02
SUPREME COURT SYLLABI.


braska. Opinions filed December q 1906:
1921 Union Pacific Railroad Company
rebeaTing. Judgment heretofore entered by
this court vacated and set aside; judgment
of district court reversed and cause re-
manded. Sedgwick, c. j., Letton, j., con-
curing separately.
/. This court will not set aside the YER
port il If there is SUFFICIENT evidence in the
record, taken by itself. to have supported
Judgment by default, unless the preponder-
ance of the evidence against the verdict Is
so strong as to indicate that the verdict
must have been predicated upon something
other than the evidence.
Q In an action for damages by fire
originating in the carelessness of the de-
PENDANT. the plaintiff to establish his cause
of action, must trace the fire from the
place of its origin and Identify the hre
which caused the damage with the fire
which was originated by the defendant.
II the evidence shows several prairie fires
of different origin, each Of them originating
several miles from the place of damage,
probable that the fire started by the de-
PENDANT was the one that caused the
by probabilities and conjecture:
1852. Union Pacific Railroad company
against Flchenscher. Error Dawson, Re-
versed and remanded. Sedgwick, G. j.
1875. Union Pacific Railroad company
against Fosberg. Error, Dawson, Re
1896. Rosenberg against Chicago, Burling
! ton q Quincy Railroad company. Error,
Sioux. Reversed and remanded. Oldham,
l.
l. Evidence examined and held: That
| whether or not the defendant railroad
track at the unincorporated station of
Adelia was a question of fact that should
have been submitted to the jury under
2, Chicago. Burlington & Quincy Rail-
| road company against Sevcek, Neb., l01
N; w, 9Sl, followed ana approved.
1908. Norton against Brink Appeal from
| Buffalo. Former judgment vacated and
| the judgment of the district court dis
| missing the appellants cause of action
affirmed. Barnes, J. Letton, j., concur
| ring separately.
1, A parol agreement between two per
| sons to purchase a single tract OF land,
| or in partnership" where the purchase is
| finally made by one of them, who pays the
| whole of the purchase price, and takes
| the title to himself, the other simply agree
/ ing to pay him one-half thereof on De
mand does not create a partnership be-
q Such a contract is within the inhibition
| of section 3 of chapter 81 of the compiled
| statutes of 1906, commonly called the stat
| ute of frauds, and is void.
| 3, In such case no resulting trust arises
in favor of one who contributes nothing
4. Former opinion herein, Nebraska, 100
N. w, 66S, overruled.
14S07. Union Pacific Railroad Company
| against Edmonson. Error from Platte.
/. In an action for damages caused
by alleged defects in defendants machinery,
evidence of the same defective condition
| Immediately before and after the accident
complaind Of is admissible for the purpose
and as to its prior condition, for the addi-
tional purpose of showing knowledge on the
part OF the defendant.
2 In an action for the negligent killing
of an employee by a railroad company, al
leging as the result of a defective condi-
ton In the engine, evidence of a defective
| condition, made at the time, and under
| such circumstances as to raise the pre-
sumption that was an un oP tRs css
atty, is admissible as part OF the res
gestae
8. To obtain a review of the rulings OF
the district court on objections to alleged
misconduct of counsel in addressing the
jury, the record must show not only that
objections were made but the matter OBJ
jected to, and the rulings of the court
thereon.
4. The district court may permit n party
to withdraw his rest and introduce add
tional evidence when it appears that the
same is required in the furtherance of JUS
tice and no undue advantage is thereby
acquired over the adverse party.
1883. Letherman against Hauser. APP
, peal from Sherman. Reversed and re-
manded with directions. Albert, c. Di-
vision No. 2
l. The statutory provision that a peti.
ton for the establishment of vacation OF
public, road shall be signed by at least
ten electors residing within five miles OF
the road is Jurisdictional
2 The facts essential to the jurisdiction
of a county board to establish or vacatt
! a road must alfirmatively appear on the
record of the proceedings.
3. A party complaining of a public
, nuisance is not entitled to relief by in
junction unless he shows some special in
jury to himself, different from the com
, mon injury to the public.
| 4. An elector residing within five mile:
of public road has such special interes
therein. independent of that which he hal
in common with the public, as will enabl,
|, him to maintain a suit to restrain the
unlawful closing of such road to public
: travel.
5. On the facts stated heidi That tn,
plaintiff had no adequate remedy at law
| 14435 Kertson against Kertson. 'Appea
t from Madison. Affirmed. Epperson, c
2 Division No. 1.
l. When a party who claimed he hat
been fraudulently induced to enter into
, contract by reason of the concealment o.
, material facts afterwards employs counse
and after full investigation ratihes ant
endorses the contract and accepts benefits
under 1t, he is bound by such ratification
, and cannot again question the validity o
the original contract
2. Evidence examined and held to uphol,
the judgment of the district court
\ 14461 McMaster against Doubt. Appea
from Dixon. Affirmed. Albert, c., DVisiol
No. 2.
e Evidence examined and held to sustain
the findings and decree of the trial court.
1886 Wolcott against State Farmers Mu
tual Insurance Company. Appeal from Mer
rick; Anirmed. Jackson, c. Division No
not make assessments upon their members
as provided in section IL of the act of 1891
until loss has first occurred, unless such as
e sessment is authorized by two-thirds vot
of its directors.
z Wnen IL Is sought 10 avoid policy o
k insurance for the non-payment OF an as
| sessment not made for the payment OF
= | loss, the records of the company are in
sufficient TO establish the validity of sue
= assessment unless 1t affirmatively appear
?. therefrom that the statute has been com
- piled with.
1859. Acme Harvester Company agains
4 Curlee. Appeal from Red Willow. Re
versed and remanded. Oldham, c., Divisio
| No. l.
y l. Where defendant is sued for an &C
counting for goods alleged to have been re
ceived under the terms of a written cor
tract of agency, he may, under a genera
denial, show that the goods in controvers
were received under another and differen
IS contract from that laid in the petition.
!, 2 Action of the trial court in the eXclu
d sion Of testimony examined and held, preju
r dicial.
h 1922 Cobbey against State Journal Com
p pany. Error from Gage. Reversed and re
handed. Ietton, j.
n Section 65 of the code applies to corpora
e lions as well as individuals, and II an actio
m Is rightly brought in one county. summon
= may be Issued to another county for serV
70 Ice upon corporation.
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