Omaha daily bee., 1908-12-05
Supreme Court Syllabi.

1858. Allen against Rushford. Appeal.
Douglas. Affirmed. Duffie, c. Division
No. /.
/. Plaintiff sold to defendant forty acres
$l.5O per ton, the hay to be weighed and
paid for before taken from the farm. The
defendant took possession, cut and stacked
loads thereof. Held, that title to the entire
crop passed to the defendant.
2. When the sixth load was being weighed
the defendant questioned the correctness
Of the scales, which 1t was agreed should
be used, and refused to take away or pay
for the hay remaining In the field, claiming
that the plaintiff refused to allow the hay
to be weighed elsewhere. Held, that the
tfff's contention that she offered to accept
railroad weights or to have the scales of
which defendant complained inspected and
corrected II out of order, by a party named
by the defendant.
3. II it be conceded that because OF the
lien reserved on the hay for the purchase
price thereof, a duty rested on the plain
tiff to sell such part of the hay as the
defendant refused to take and pay for, and
apply the proceeds IN reduction of her
damages, still she was relieved of any sup
posed duty in that respect by the defend
ants refusal to allow her to make such
4. There is evidence that the hay would
average two or three tons per acre. Only
$50 Of the purchase price has been paid.
the plaintiff is not excessive.
1901. Ramsey against State. Error.
Wayne. Affirmed. Calkins, c. Division
1885. Lopeman against Colburn. Appeal
Merrick. Affirmed, Root, c. Division
/. In order to convert an offer into a
contract to sell real estate the Vendec
must accept the offer as made.
2. Acceptance of an offer to sell land,
but fixing a place other than the residence
OF the vendor, or the place named In the
offer, for the payment of the consideration
and delivery Of the deed, is not an uncon-
ditional acceptance so as to bind the ven
8. Courts of equity will rot always en-
force a specific performance Of a contract.
Such applications are addressed to the
sound legal discretion OF the court. and it
will be governed to a great extent by the
facts and merits of each case" Morgan
against Hardy, 16 Neb., 427.
1892. Hayman against Rownd. Appeal,
Hall. Reversed and remanded with irstruc-
lions. Epperson, c.. Division No. /.
l, A court of equity viii restrain the
committing of waste threatened by a ten
ant for years and his agents or employees.
2. Waste is a destruction or material al
teration or deterioration of the freehold or
part thereof by any person rightfully In
possession but who has not the fee title,
8. A tenant is guilty of waste who drills
holes into a brick wall, and drives wooden
pegs therein for the purpose OF attaching
a sign, when such use would cause the
brick in that part Of the wall to become
loose or misplaced.
15S4S. Sarah Hadsall against Chas. Had
Eoi. 49,
T. The allowance made by the Probate
band is a debt against the estate which
must be paid from the assets thereof. The
allowance cannot be satisfied or made out
1854. Clarke against Lyon. Appeal, Lam
caster. Affirmed. Calkins, c. Division
l. Where the court of a sister state has
granted a divorce and awarded the temper
AIRY custody of the children TO the mother
who becomes a resident Of this state and
dies here, leaving such children in the
hands of relatives who are appointed
guardians by the county court the fact
tanned jurisdiction for the purpose of max
ing further orders, does not deprive the
courts of this state Of jurisdiction to de-
tweep the divorced father and such guard
ians for the custody of such children. es-
pecially where the court rendering the d.
VorCe has expressly refused TO itself de-
termine the material question in issue.
without finding the father unfit. temper
ariiy awards the custody or minor chill
dren to the mother, such decree. does not
deprive the father of the natural right to
the custody Of such children against any
person except the mother; and upon her
death such right ceases to be affected by
8. The appointment of a guardian by
a county court is not CONCLUSIVE as
against a parents right to the custody
Of his children unless it appears that
he had notice OF the Proceeding ana that
the question OF ms competency anu SUIT
ability was adjudicated,
4. The u%nfitness which d~eprives a
parent of the right to the custody OF his
children must be positive and not COM
parative; and the mere fact that the chill
dren would he better nurtured or cares
for by aSstranger is not sufficient 20 de-
prive the parent of his right 20 their
custody.
s. While the unfitness which deprive.
a parent of his natural right 20 I he Gus
tody of his Oh ildren must be positive auU
not comparative, the degree thereof mGGt
be considered in relation to the attend.
ing circumstances, such as the coneeIT
he has shown for them in the past, tn,
suitability of his domestic surrounding
to receive them and the question al theil
general welfare.
1885. Lincoln Upholstering conpanl
against Baker et al Appeal from Ian
caster. Affirmed. Duffie, c. Division
No. /.
l. In an action aided by attacnmen
upon the entry of judgment the attach
ment lien is merged In that Of the 1udg
ment. and thereafter the lien Is a mer
incident to the judgment and ceased Il
exist when the judgment becomes dor
mant. Harvey against Gedding, lOs, n
W. 22O.
>. a proposed sale Of real estate unce
On execution Issued on a dormant ludg
ment will be enJoined at the suit VI On