Omaha daily bee., 1909-06-05
OCEAN STEAMERS
SUPREME COURT SYLLABI

vinckel. Appeal from Cedar. Affirmed
Dean, J.
l. A contract prepared by a vendor for
his own protection will be construed most
strongly against such vendor.
2. The fact that notice of failure OF q
machine to fulfil the requirements OF a
printed warranty Is not given in the man
neT provided by the contract. is no defense
against an alleged breach Of warranty
where the vendor under such notice as iN
given him by the vendee undertakes to
remedy the defects complained OF by the
latter.
chinery provides that a retention Of such
machinery by the vendee beyond a given
period will operate as a waiver of defects
therein; held, to be inapplicable where the
vendor induced the vendee to retain the
machinery under a promise that the de-
fects would be remedieo
4. The verdict Of q jury rendered urrn
conflicting evidence will not be DISTURBED
where there is sufficient evidence to sup
port It.
Hair against Chicago, Burlington &
Quincy Railroad company. Appeal from
Lancaster. Affirmed. Root. ].
l. A railway company th6S maintains It's
station in a public highway in the center
Of its switch yards and for years has per
mttted the public to use said yards as S
footway. is bound to exercise reasonable
care to avoid injuries to persons who are
known or reasonably may be expected TO
be within those yards in the vicinity OF
said station.
2. Questions of negligence and contribu-
tory negligence. where the facts are such
that, from them different minds may rea-
sonably draw diverse conclusions, are for
the jury, and not the court to determine.
3. II a trial court fairly instructs the
judgment will not be reversed because OF
some slight ambiguity in the instructions,
nor because they might lawfully have been
stated more favorably to defendant.
Chairman against MaVaTS. Appeal from
Otoe. Reversed and remanded. Barnes, ],
/. In an action to recover money alleged
to have been obtained by misrepresenta-
lions, fraud, duress and deceit, the petition
must set forth the facts showing such
fraud. and a mere allegation of fraud OF
Misrepresentation is not sufficient
o evidence examined, Its substance SCI
forth in the opinion, and held not sufficient
to sustain the judgment Of the district
court.
8 A court will not lend its aid TO one
who POUNDS his cause of action upon al
immoral or illegal transaction
Nebraska Bitulithic Company against
City OF Omaha. Appeal from Douglas
Affirmed. Barnes, J.
l. A municipal corporation, by contract
obtained the use of an asphalt plant fol
, the purpose Of repairing its paved streets
In making the contract the provisions OIL
the city charter were not compiled with
and the contract was therefore void HE'D
Notwithstanding that fact, that the city
was liable for the value Of the plant while
making such repairs. -
2. Evidence examined, and found suffi
Client to sustain the judgment OF the dis
trict court.
Nebraska Plumbing Supply Company
against Payne, Appeal Douglas Affirmed
/. In an action to recover the ~contrac
price of a steam heating plant where the
defense is that the apparatus is worthless
and not according to contract, hesrsay ties
timony of an opinion expressed by a work.
man on the Job, after the completion OF
the plant and IT'S surrender to the de-
PENDANT; held. to be inadmissible.
Z In such an action the rule as 70 sub
~stantial performance applies, and the In
struction set forth in the opinion Is a cor
rect statement Of the law:
Mimic against Security Mutual Hail In.
surance Company. Appeal, Boyd. Reversed
and remanded. Root, j.
l. A bylaw aygo 0fza q mutual M t virtu nai IL i tSs iHS,
Of Nebraska providing that II a member
does not pay the premium on his policy by
sured he will not be entitled TO participate
in the fund provided that year for the pay
ment Of losses Ia a reasonable provision
and will be enforced.
2 With such a bylaw in force, II a mem
Der executes a promissory note for his
premium, and before IL becomes due the
by hail he will not be permitted TO with.
hold payment of his premium, even though
mis- loss exceeds the amount OF his note
and II he fails during the entire year fol
which he is insured to pay said premium
the company will be released from all OBJ
legation on said policy, and he cannot tive
S SSts or eater a esl ,s tsnHsTi6 oS ESs m poIiey OF TIL
o'Connor against Witte. Appeal, Sa
line, Affirmed Root, J.
l. Where evidence is conflicting, bu
fairly submitted to the jury, a new tria
will not be granted II there is sufficien
evidence TO sustain the verdict. even though
this court may differ with the jury as Il
the weight of hat evidence.
2. II the evidence Of a witness Is errone
ously excluded, but subsequently admitted
the cause will not be reversed because o
said error.
McCoiium against City Of South omaha
Appeal, Douglas. Affirmed. Rose. ]. Faw
cett, j., dissenting.
l. A dangerous accumulation OF snow an,
ice on a sidewalk was a defect therel
within the meaning of section l07, article 4
chapter 10, Compiled Statutes OF 1906. ex
empting South Omaha from liability 10
damages arising from a defective Sidewalk
unless notice of the accident was filed wit
the city clerk within twenty days.
2. The charter of South Omaha. as
existed in 1905, exempted the city fror
liability for damages arising from q de
fective sidewalk, unless notice OF the &C
J cident was filed with the city clerk With
4 twenty days, and the fact that an injur
deprived a person Of consciousness durin
, that time did not create an exception I
, /, the provisions Of the statute or excuse hir
for noncompliance with it's terms. Schmid
against city Of Fremont, 70 Neb. ST..
Lincoln Traction Company against Cit
" A-AlANgllA' APRNaA ANbih laalAdHANis ~
ftrmed. Reese, c. J. Root and Letton. j
! coneurring separately.
. l. The decision of the supreme court 1
the case OF Nebraska Telephone Com
pany against the City of Lincoln, re
! ported in 50 Neb., 50. III N. W.. 2S4. In
! volvlng principles similar 10 those involve
In this case, approved and followed
Riggs against State. Error from Lar
4 caster Affirmed. Reese, C. J. Rose. J
not sitting.
l. Sections 20, 81 and p, chapter !. Com
piled Statutes. 1897, provide for two sepsI
A ate lines Of prosecution In the same case
one a criminal action for the keeping q
intoxicating liquors for the purpose c
D unlawfully selling the same, and the othe
4 for the destruction OF liquors found [
4 have been kept for such nlawful purpos,
4 2 When the examining magistrate
satisfied that the person charged is guilt
OF the offense OF keeping liquors for IN
purpose Of unlawful sale, he shall hold IN
accused to the district court to ansWe
said charge and enter an order for n
destruction of the liquors, II any have bee
D seized. In order TO prevent such destru,
4 ton II Is necessary for the accused TO al
2 peal from that order. which may be dor
} without giving bond, although a recoG
! nizance Is necessary TO secure defendant
. liberty pending the final disposition {
! said case.
a 8. On the trial OF said case In the distrit
! court. the verdict OF the jury should, ord
4 narily, be guilty OF not guilty" as n