Omaha daily bee., 1908-07-26

to persons using them. nor is Il bound 4,
employ the utmost care and exertion to
That end. It's duty under the Law is onlN
TO. use. reasonable duigence 20 keep III
Sidewalks in a reasonably safe condition
for the use OF persons passing over them
exercising ordinary care and caution.
2 When instructions are asked by eithe,
parry To a suit, which correctly state tn,
law upon the issues presented by IN,
pleadings and the evidence received during
the trial, Il II error to refuse them unless
the points are fairly covered 10y other in.
struotions SVEN by the court on It's owl
motion,
1882. Omaha Loan and Building Asso,
citation against Hendee. Appeal from
Douglas Affirmed. Motion to tax at
t9rney's fees oyerruled. Epperson, c. hi
/, Ordinarily this court viii not re.ex.
anime questions OF law presented by and
determined upon a former appeal, where
the case was then remanded with specific
directions to the lower court.
= Where upon showing mad this court
grants additional time to appellants 10
serve and file briefs, attorney fees for the
adverse party oCcasioned thereby will not
De taxed against appellants. as costs upon
motion afterwards filed.
1892. Fairbanks. Morse a. Co. against
Butgert. Appeal from Pawnee. Reversed
and remanded. Epperson, G. Division No. l
price OF machinery 81 ipped to the vende,
upon his written order therefor. Il IL com.
petent for the vcndce to alleEe and prove
that the order was given upon the ora
representations Of the vendor that the ma.
chinery would do the work for which Il
was required, and that 4 failed to do 30.
1878. Ashford against Iowa 4 Mlnnesots
Lumber Co. Appeal from Dakota AT
firmed. Root. G. Division No. 2.
L A suhcontractor whose only agreement
is with the contractor cRnnot extend tho
time within which he may file a mcdaniel
lien by donating material to the owner OF
the building nor by substituting proper ma
terlal for defective lumber heretofore fur
nished the contractor.
. A subcontractor who furnishes ma,
terials for a building and whose compact
Is with the contractor alone, cannot &C.
quire a lien under the statute for material
that was neither used In the construction
OF said building, nor delivered on tho
premises for such use.
3. Where more than sixty days interviews
between the items OF an account used by
a subcoItSactor as the basis for a me.
chsnic's lien. It will be presumed that those
items were furnished under separate con,
tracts.
4. A small amount Of labor performed
or material furnished without the request
Of the owner Of the building. after he hat
unconditionally accepted said structure, and
Under circumstances Indicating bad faitt
on the part of the material man and the
contractor, will not support a mechanics
lien.
s. This court will not reverse or modify
a decree for a possible error OF 10 cents
therein.
6. Evidence In this case xamine and
court.
1874. Odell against Story, Appeal from
aitGheock' Reversed and remanded,
l. While the owner of real estate is pre-
sumed to know the boundaries thereof, and
a purchaser who has no knowledge OF such
boundaries may rely on the representa-
tions of the owner relating thereto when
positively made, he isa not authorized to
statement of the distance from a known
TO an unknown corner, but must in such
case investigate and ascertain for himself
?. When the owner of land has pointed
out to his vendee land which he did not
own as land which he proposed TO sell and
convey, and has conveyed to him land Of
less value than that pointed out and which
the ,vendee supposed he was buying, the
vendee may recover the difference In value
between the land shown him as the sub
Ject OF his purchase and the land actually
conveyed,
3. The understanding of a witness derived
from language used by a party Is not COM
petent evidence for a jury, The language
used should be detailed and the inference
deducible therefrom is for the jury to de-
termine.
4. In a suit brought to recover damages
Tor fraud and deceit In the sale of land,
the opinion of a witness as to the amount
OF damage sustained by the plaintiff is not
competent evidence, that being a question
for the jury.
1876. smothers against State. Error from
Boyd. Affirmed. Letton. j.
/. At a trial upon a charge Of incest evil
dence may be properly received of other
criminal acts OF the same nature anterior
to the time tho crime is charged to have
been committed.
2. An instruction in Substance. that the
prosecutriX was not an accomplice and
that II the jury were satisfied beyond a
reasonable doubt of the truth OF her evil
dence II might convict the defendant, is
a correct statement of the law applicable
to the case.
8. Under the facts testified to in this case,
II was not erroneous TO allow evidence that
a child born after marriage was the re-
suit OF incestuous intercourse.
i5i75. Cooper & Cole Bros. against
Witham. Appeal from Lancaster. AZ
firmed. Fawcett, c. Division No. ?.
/. Petition set out in the opinion ex-
amined and held to state a cause Of action
only for goods and merchandise sold and
delivered