Omaha daily bee., 1909-08-07
SUPREME COURT SYLLABI

CABINS, l.
1. Where the fact that a defendant is
Jointly interested with the plaintiff in she
subject " the action appears upon the
face OF the petition, the objection that such
defendant Is not made a party plaintiff Is
waived by a failure to demur upon that
ground.
2 A judgment rendered i'm a suit in equity
will not be reversed for the reason that a
party who should have been made plaintiff
is made defendant instead. when the party
against whom Judgment Is rendered Is not
prejudiced thereby.
& Where a contractor with the knowledge
and consent OF the owner and under direc-
zion OF the architect but without a written
order. performs extra Vork entailing addt-
uonal expenses, he will not he ~precluded
frum recovering reasonable c0mpeusauon
therefor by a clause In the contract which
provides that no alteration shall be made
in the work done or described by the draw
ings and specifications except upon n writ
ten order frum the architect
l. Where the parties have acted upon and
construed a contract I'm the absence OF
any mistake or misunderstanding between
them the court will enforce such contract
as so interpreted.
& Where a contract requires a building
tD be erected By a specified time, the naked
promise Of the owner to valve the time
clause, made without consideration, Is In
valid. and such owner is not thereby
estopped to claim damages for such delay
when II does not appear that the contractor
acted upon such promise.
8. Such promise viii. however. estop the
owner from insisting upon a stipulation OF
the contract which provides that no allow
ancs shall be made for delays caused by
the owner unless a claim therefor is pre-
scented in writing to the architect.
Z. Where there is no finding of the dts
rict court upon a material fact. and the
evidence I'm the record is not directed to
the ascertainment thereof, the case will be
remanded for further proceedings.
1861. Nilsson, ADMINISTRATIVE, against the
Chicago. Burlington & quincy RAILROAD
...z. AFnrunnA Annual frnU1 1lnN
l. Where the evidence showed that. the
employees OF a railroad company MADE a
flying switch Of four cars on one OF sew
eral parallel tracks across the main bust
ness street of a town OF over 1900 people,
during a busy hour OF the day, and imme-
diately thereafter made another fying
| switch OF two cars upon a nearby track,
parallel to the first, crossing the same
tce or signals than the ringing OF a bell
upon the engine which detached the cars
at a point some distance east OF the street
the question OF the negligence OF the de.
PENDANTS was probably submitted to the
jury and the evidence sustains a finding
that the defendants were guilty OF negll-
gence.
z. Under the evidence it was immaterial
whether an ordinance was In existence
or not regulating the speed of trains and
he movement OF cars within the. city,
since, irrespective OF the existence OF such
ordinance, a verdict based upon the negli-
gence OF the defendants is amply sup
ported by the evidence.
D. NAN q RNAbOl "a AAlNu ~ wv NNa1
making a flying switch over a public street
and the only proof OF the contributory
negligence OF the deceased is an Inference,
ably drawn from the circumstances may
be considered by the Jury.
4. Unless the proof OF contributory
negligence is so clear that different minds
could not reasonably draw different con-
illusions therefrom, this defense Is for the
jury to consider, and under the evidence
In this case we are not warranted In say
Ing that the deceased was chargeable with
contributory negligence as a matter OF law.
Schwanenfeldt against Chicago, Burling-
ton & Quincy Railroad company, lib, N. W.
.. Instructions requested by the de-
PENDANTS imposing upon a pedestrian cross
ing railroad tracks IN a public street, the
a condition precedent to recovery in case OF
accident, properly refused, since the ele-
ment OF reasonable excuse for not doing
so was omitted therefrom.
6. Evidence respecting the amount OF
property OF a deceased which he owned
during his lifetime or which he left to
MS widow and children Is not competent
upon the question of the measure OF dam
ages for his death by wrongful act.
c~ustomarily devoted to the support and
maintenance OF his family, when consid-
cred in connection with his power and
ability to continue to contribute the same
a to their support in the future, which should
be the subject Of inquiry. Proof that the
deceased owned a farm and that a por-
ton of the support which he furnished
/, his family was derived from, the rent OF
II LnG BdIiiG uOtb HOl pItJuulNldhN dIlGCl lNN
defendants.
1887. Robinson against City OF Omaha.
=, Appeal from Douglas. Affirmed. Ross, j..
Letton, Barnes and Root, justices, dissent
/. In an action against a city for personal
a injuries resulting from a defective side
! walk, testimony disclosing plaintiffs opin-
ion and the result of tests as to the cause
OF the accident may be considered by the
jury, when admitted without objection.
2. Error cannot be predicated on the ad-
! mission Of testimony Identical with that al
ready admitted without objection.
1 3. A city denying responsibility for the
4 work OF trespassers who tore up part OF
. a board sidewalk In a street and replaced
4 { with cement cannot evade liability fol
walk on the ground that temporary bar.
4 riers erected by such treEpasseTs to proteci
a the cement until 1t solicited were removed
4 without the city's consent.
4. Where the instructions in an actor
against a city for personal injuries result,
u ing from a defective sidewalk clearly III
rect the jury that plaintiff cannot recover
q Unless the injury was caused bv n defec
at the rlace Of the accident a separat,
u instruction is not erroneous because II fall
to repeat that direction.
' 16O76. State against Several Parcels o.
Land Rosenthal against GillilRn). Appea
from Lancaster. Reversed and remanded
Dean. T..
1. Whore land is sold at public sale, II
n pursuance of a tax decree obtained unde'
n the provisions Of that part NJ the revenu,
law called "The ScavengeI
l ] ~ " " Ah'H ~ 'ihAA wv w NN
a interest ana costs. snch sale IL n "premiuu
q sale within the meaning OF the act
n whether there be but one bid or NOR
N than one.
n 2 Under the provisions OF the reyenu
n law. chapter n. compiled statutes, 1871, a.
n owner who seeks TO redeem land from
n public tax sale, which has been sold Fl
n pursuance of a decree obtained thereunde
n for delinnTent taxes, must nav the ful
n amount Of the decree with interest as pro
n vided nv law. and all costs.
B. Where the owner o. land that ha
n been sold at public sale under n tax "A
N "rNe in n"rsuance of the revenue lay
fails To redeem from such sale nv tn
avmen OF tho fuIl amount ~ the decree
interest and costs. the purchaser II On
!" titled TO a confirmation Of the sale
whether there has been one bid or a plu
rslity Of bids.
g. A tender nv the owner OF land q
the amount Maid bv the purchaser thereo
AZ n puhllc tax sale. held N pursuance @
m n decree obtained under the nrovisions G
m the revenue act. together with intsres'
m nenaltios and costs. is not a compiflaq
e. with the law and does not entitle w
.. owner TO redemption OF the tract so SOLE
III IGOR n u. GiIcrest Lumher compan
against Wilson, bnnral from Dawson. Re
m vo~"o7 and r"mP~1rd. Barnes. ]. Roc
and Dean. Y v. DISSENTING separately.
l. Where a vendee Induces = dealer I
agricultural imnlemRnts 10 order for hiI
- = Machine v-hlch tho dealer hos neve
- previously sold or handled and as TO whic
DO nn'tNNr has nor nrof"sses 10 have an