Omaha daily bee., 1908-12-28

ton the minds u the parties have met in
a common intention krum against cham
will not be enforced unless the contract
has been entered into with perfect fairness
tstion or oppression, unless II would be un-
lust and inequita6le to REFUSE 70 enforce IL
MprSa E1,s ssSlSss .a HSiTSyd a Is N sst out NJ in the
opinion. Held, insufficient to establish a
claim for specific performance.
1SS9. Talmage against Woodward
Company. Appeal from Hall. Reversed
and remanded. Good, G. Division No. l.
Of creditors is void IL the deed of assign
ment is not witnessed and acknowledged.
2 In proceedings In the county court
Statutes. 1907, relating to assignments for
benefit Of creditors, II the deed OF assign
allowing claims OF creditors does not
amount TO a Judgment, and the distribution
Of the sssigned estate and the discharge
county court in such proceedings do not
amount to a Judicial exhaustion OF the
property of the asstgnor.
1856. johnson against Bankers Union
OF the World. Appeal from Cass. Az
/. Where a fraternaI benefit association
has not complied with the provisions OF
section I, chapter q, page 266, OF the acts
OF government. its governing body is with
out power to adopt a constitution OF by
terms and obligations of a mutual benefit
certificate heretofore Issued TO one OF its
4 AutUlhEIE-
2. Where the constitution and bylaws OF
a beneficial society provide that on the
death of a member the amount due on his
certificatS shall be ascertained by deduct-
ing from It's face value the monthly as
sessments from the death Of the member
10 the expiration OF the life expectancy OF
such member at time Of entry, will 4 peS
cent interest thereon, and the constitution
AM bylaws ere afterward changed, in
cre0sing the monthly Assessments to be coll
iected, but such Increased assessments are
not demanded or collected from old MEM
oers, bat only from persons thereafter
joining, and the old members continue To
pay az the Old rate until the death of a
certificate holder. Held, that the society in
settling with the benefiCiaries of the de-
ceased membe cannot decrease the amount
n the recovery, but is entitled to deduct
the difference between the ratio OF the
monthly assessment in force when the GER
tticale was issued and the increased rate,
provided by the amendment, coapuieu
from the time when the new rate went
INTO effect up to the date OF IL. death Of
me member, and not for the balance OF
the ne expectancy OF such deceased mem
Der.
1883. Chicago, Rock Island & Pacific
Railway Co, against Erskine. Appeal
Root, j.
/. Plaintiff and defendant in ejectment
Claimed title from a common source. De-
PENDANT secured his tide subsequent to the
conveyance to plaintiff but prior TO the
date plaintiffs deed was recorded. De-
PENDANT did not prove that his deeds or
any of the conveyances in his chain of
title subsequent u the deed 10 plaintiff had
been recorded, nor prove the consideration
paid by him therefor. AS to one tract he
proved that for ten years next preceding
crib had been built and maintained on said
block by his B~rRntors and himself, but did
not prove tnst any Sther part OF the block
crib had not been built with plaintiffs per-
mission; as to the other tract involved in
the suit, defendant proved that 1t had been
enclosed for more than ten years before
the commencement OF the suit and ocou-
ing that time. but did not nrONe that he
had succeeded to the possession of all of
said occupants. Held. that the evidence
; 1881. Anderson against Borgaard. APP
peal from Kearney. Affirmed. Duffie. c.
l i. Unless reserved. crops standing upon
the ground, matured or not, pass to the
! grantee named in a deed OF conveyance
. or to a party to whom the land Is de-
A vised.
1906. Williams against Phillips. Appeal.
! Dundy. Reversed and remanded with in
structions. Root, c. Division No. ..
1. Where on the hearing of a remon-
STRANGE against the granting of liquor IL
; cense It Is satisfactorily proven that the
| applicant has within a year sold or given
to a miner malt or spirituous liquors, he is
1903, O'Brien against Omaha Water
Company; Appeal. Douglas, Affirmed.
4 /. Where there was evidence to show
that a fire hydrant which broke and
a condition c1SUftH for more than diiGl fSorty-eaight hours
Q before it collapsed, the question whether
: the leaky condition indicated the defect
j Of fact. and for the jury.
: 2. Instructions examined and found to be
, without error.
{ 3. It is not error to refuse an instruction,
the substance of which is embraced In the
: charge given by the court on its W mo-
: ton.
4. Where there is no evidence OF plain.
= tiff's contributory negligence, instructions
submitting that question to the jury are
q 8. Contributory negligence is a matter OF
defense to be plead by defendant, and need
not be negatived in the petition. First para
II graph of syllabus In Chicago, Burlington
& Quincy Railroad company against KEEL
log, So Neb., 7t8, and Chicago, st. Pau
q Minneapolis & Northern Railroad company
against Lagerkrans, 65 Neb., 566, dlsap
a proved.
e 6. In an action to recover the value o
goods negiigently destroyed, the fact tina
n a witness testifying to the market value
thereof, has based his estimate upon thu
cost. does not make his testimony incompe
tent when It further appears that said cos
"a was less than the market value OF suci
goods. .
ton so as to demand interest on the valu
OF goods destroyed, Is made after the com
ing In of the verdict, and no showing o
IL facts excuslng the delay appears. IA
such application will not be disturbed.
~ 1925. Nichols q Shepard company agains
steinkraus. Appeal from Lancaster. Al
l. 1 aAM ~
~ / In an action upon a promissory note
the execution of which was admitted, an
~ the defense was fraudulent misrepresenta
ne lions of fact and breach Of warranty as I
a. the quality OF the property for the purchas
Id price of which the note was given In pari
the court instructed the jury that thei
le finding should be in favor of plaintiff upo
In its cause of action for a specified sun
ly being the principal and Interest dSe upQ
x pthe note. The jury returned a verdict find
40 ing the amount due plaintiff TO be 10 cent
less than the sum named by the court /
Of the instruction. No objection was made I
Z the verdict and the erroneous computatio
Z Wss not called to the attention OF the ooui
ne until after Judgment had been rendere'
IT Held. that the objection came too lat.
Z that IL the jury made an error OF 10 cent
nj In computing the interest, the attention {
r. the court and jury should have been Gale
~ TO the fact. II at all, before the dischcare
~ OF the Jury In order that the verdict migf
~ be referred back and the proper computi
Vi ton made.
a, l5l34. Odell against Story. Appeal froi
T. Hitchcock. On TeheaTing, former Judl
-. ment OF reversal adhered to. Calkins, I
r. Division No. 2.
~ 1. To refuse an instruction that Is M
10 annlicable 10 the evidence does not col