Omaha daily bee., 1908-07-18

l52a Reeves q Co. against Deets. Ap-
peal. Buffalo. Reversed. Dutfie. G.. Dtvi-
In q suit on the promissory notes Of the
defendants, the defense was made that the
notes were given for machinery sold under
troversy thereon arose in settlement OF
which the defendants agreed 10 pay certain
OK paDt the notes and the plaintiff 9gr eSSor 70
70 the warranty. When the PLAINTIFF Of
fered to repair the machinery. defendants
repairs proposed would be Intellectual, but
on the trial they were allowed to show as
a reason for refusing the repairs that the
offer came too late In the season. Held
that the court erred in allowing the de-
PENDANTS to show another and a different
reason for refusing repairs than that made
TO the Plaintiff when the offer to repair
was made and before suit was commenced.
1874 Blum against Nebraska-Iowa Cream
cry mpa Appeal, Dougias, Affirmed.
l. This court win not set aside the
verdict Of a Jury for want of evidence to
support II 4 there is sufficient evidence
ported a Judgment by default. unless the
preponderance OF the evidence against the
verdict Is so strong as to Indicate that
on something other than the evidence,
Pickenscher, ITO N. w, 56l.
9 h pleadings IN the case examined
and held not to tender an issue as to
whether OF not plaintiff was a stakeholder
III atLGnudnN COMPANY
3. Where an employe Of a corporation
under a contract OF employment for a
stated period, on being requested to re-
tract. delivers to the secretary. for sub
mission to the board Of directors OF such
corporation, a written resignation contain;
Ing certain conditions, subsequent ora
statements made by him to Individual mem.
bers of the board, that he is willing, Il
Of directors. to valve the conditions in.
serted in said written resignation, are not
alone, sufficient to constitute such waiver
l5225. jacobson against Doll. Appeal from
Douglas. Affirmed. Epperson. c. Division
No. I.
1. In an action for malicious prosecution
not error to admit in evidence the findinl
OF the magistrate that there was no jus
cause for complaint. obernalte agalns
Johnson, Sc Neb. ia, distinguished.
2. A threat to inflict personal violenc
pom a ~trespasser. II he persisted in hi
w~rongdoing, will net justify him ip prose
cutting the author OF the threats upon
complaint to prevent such personal violence
1890. Omaha & Northern Pacific Railwa
Company against SaTpy County. Affirmed
Appeal from Sarpy. Calkins, c. Dtvisio
/. The power given by section 9 Of articl
|, chapter 50 of Compiled Statutes to In
clude a branch ditch, drain or water cours
necessary to secure the object of the In
provement. whether mentioned in the pet
ton or not, is not confined to sue
branches, bitches or drains as are who'll
QCSlknSu 70 uTdln ln0 idnu AhAcldl W ~
line of the main ditch.
2. The county board. in fixing assess
ments for benefits conferred by the COZ
struction of a branch ditch under the pr
visions of article /, chapter 50 Compile
Statutes, acts tudicially, and its judgmer
and findings will not be reviewed for errC
in an Injunction suit brought to restrai
in the execution thereof.
3. Where three railroad companies, beir
} owner, lessee and sub-lessee. respectivel
of a railroad, Join in an action to restrai
4 nrnoanAippo undar fha DRAMA ga act of 1RS
on the ground that,due notice of such pr
ceedings was not given, II is incumbel
upon such. plaintiffs to show want OF know
edge of the existence of such proceeding
in time to appear and contest the same.
4. Where three companies are interesti
in a railroad which is claimed to be dar
aged by the Improvement of a branch dit
which was constructed prior to the buildil
of the road, the question of such danag
is properly disposed OF In the original pr
feeding; ard the mere fact that no damag
were allowed one of the companies does n
make such proceedings void and subject
collateral attack.
1881 ~(article /, chapter 80. Compiled Statute
is restricted to the purpose of draini
swamp and marsh lands Only, II is not VIC
a as in c~ontrayention OF section H. article
N of the Constitution. -.
1924. Rogers against City OF Omaha. A
n peal from Douglas. Affirmed. Fawcett,
j. "A warrant issued by a city in &C
" sideration of a demand which is a va
obligation payable out of its general fur
10 is not invalidated by a recital, not &C
templated by the statute, that 1t shall
payable out Of a special fund which I
70 city is not authorized to create, or out
a special fund which the city may lawfu
create, but the failure to create which
due solely to the fault or negligence OF
city" Abrahams against City of Omal
ia n. w. 161.
2. The statute of limitations does not co
mence to run against warrants Issued by
municipal corporation, payable out, OF
~special fund to be created, until each ~
has in fact been created, and there is sui
Gent money in the fund with which TO
the warrants.
1924. Rice against Sharp. Appeal fr
Thurston. Affirmed. Fawcett, c. Divis
81 Where the pleadings support the judgm'