Omaha daily bee., 1909-07-02
SUPREME COURT SYLLABI

II q defendant denies that he pubiished
a libel Of and concerning plaintiff he will
not be permitted to prove the truth Of the
publication.
3 Heresay evidence. tending to prove an
Issue, u admitted without objections, may
sustain a verdict; It's ~probative force being
for the Jury and not the court to determine.
T. IL any competent evidence concerning
a material fact Is introduced on the trial
OF a case, II Is error for the court TO in
struct the jury that there is not any
evidence on said point
s Where Il becomes material to ascertain
whether a woman was AAsaultea and the
identity OF the person who attacked her,
evidence OF her appearance at the time she
was fleeing from her aseailant and seeking
shelter In a neighbor's house and her
spontaneous declarations with regard 20
the transactions, is admissible as part OF
the res gestae.
Marriott against Western Union. Appeal.
Douglas. Calkins. C., commissioners dt-
vision. Affirmed.
/. Where the plaintiff had decided to
oonsisn a shipment OF cattle to Chieago
that market, which telegram the defendant
negllgently failed 20 deliver, he may. in an
action against the defendant for such neg-
feet upon his mind OF the failure to re-
ceive the telegram was TO cause him to
divert a part OF such shipment TO anoth2
4 Knowledge Of the probable result OF =
failure to deliver a Telegraph message may
De imported to the tsleSrsph company an
explicit notice or by the language OF the
message itself. vH
3. Where the failure Of the defendant to
deliver a message caused the plaintiff TO
divert n shipment OF stock to an unfAvor-
able market, the measure OF damages IN
an action against the defendant for such
failure Is the difference between the net
sum the plaintiff received in such unfavor-
able market and what he would have real
lied In the market to which he would have
shipped the stock except for defendants
said failure.
KatE against Ish. Appeal from Douglas.
Lotion, ]. Affirmed,
/. While It Is the duty Of this court upon
appeal in an equity case to Tass upon the
evidence and reach its own conclusion
thereon, stu, In ordinary cases where the
evidence lie entirely oral and the trial court
may be presumed to have had a general
local knowledge Of the parties the wit
nesses and the subjects % controversy,
the finding OF the trial court is entitled 10
careful consideration. Voc
2. Evidence examined and held to sus-
tain the judgment OF the trial court.
Wenninger against Lincoln Traction COM
pany Appeal from Lancaster. Affirmed,
l. A verde. upon conflicting evidence
will not be set aside where there Is sur
tici, II evidence to support IL.
q - Where there is evidence tending to
show that the plaintiff was negliGently
driving at a trot across a street intersec-
tlon without observing a street car which
was approaching at a right angle, that the
motorman saw that the car would strike
plaintiffs team unless stopped, and that
he might have stopped the car by the eXer-
else OF ordinary care, It is not error 20
submit to the jury the question Of the
existence of negligence In thus failing to
stop the car.
Butterfield against City Of Beaver City.
appeal from Furnas, Affirmed. Faw'
/. Evidence min and held suf-
ficient to sustain the verdict OF the jury
and judgment OF the court.
2 Instructions gwen and refused, ex-
amined and held, no error,
3 A new trial should not be granted q
party on the ground of newly discovered
evidence unless he makes 1t appear that
the newly discovered evidence IL material
for him, and that he could not by the
covered and produced It at the trial. Gun
ningham against state. be Neb,, SOL.
j. b. Watkins & Co. against Kobicla.
Appeal from Douglas. Reversed with d.
1. A material man who. in good faith,
furnishes material to a contractor, which
is delivered to one OF the owners upon
the premises where the building 10 In
course Of construction and upon representa-
tons by the contractor that the material
so furnished is to be usec IN the .eonstrue1
ton OF such building Is protected In the
filing of his itemized and verified account
OF material 80 furnished for sixty days
from the delivery Of the last item furn-
tshed, and the filing and recording thereof
in the proper office establishes his lien.
q The evidence examined and discussed
In the opinion. Held, to establish the bona
W vi AHN AAlal III AhC bal0 "
the contractor and delivery Of building ma
terial to the owner OF the premises in
volved in the suit.
g. Fraud is never presumed. Its exist
enee must be clearly established by COM
4 statutes, with reference to which
part Of the contract" Sessions against
Irwin. s Neb, 81
state sx rel. Katelman against Kink. APP
peal, Douglas. Affirmed. Good, =. Com
misstonsrs' dcp1rtmcnt
!. In condemnation proceedings had under
section 74lS, annotated statutes, 1906, The
award Of damages by the appraisers II con-
firmed by the mayor and council aud not
appealed from II final and conclusive on
all who had notice of and were parties
to the condemnation proceedings. II the
city appropriating the property has a lien
thereon for special assessments and fails
or neglects to have such Hen established
BY the appriasiers, II cannot after the time
for appeal has expired offset the amount
of is lien against warrants issued to the
property owner Dor he damage awarded
him by reason OF the taking OF bis prop
McShans against Mcshane. ArreaL
Olson. Affirmed. Root. J.
/. The duty cast by statute upon a county
Judge 30 Transmit T. the clerk Of the dis
trict court a trans ,ript Of the proceedings
in county court In cnso OF an appeal there
from, IS a ministerial enc. and II lie II
Induced by the nd cice Of an attorney for
appellant to delay such transfer beyond
forty days from the date * tho order ap'
| utdlGo lIOIHt inc hlSANltN NNulN Will lON
acquire Jurisdiction az the case.
Cannon against Worth. Appeal ThuTston.
Affirmed. Epperson, c. Commissioners
department.
!, j. Defendant agreed to ray n~lainti:f the
difference between q certain sum. and, The
amount Of rental for which T~ialntiff would
procure for defendant, u lease On oettain
lands belonging ~ ano .ner held. that the
contract was one - pay for ~s"ryiees ard
not pay REM, j
Bayard against City OF Franklin. Ap-
peal, Franklin. Affirmed. Emerson. 4.
Commissioners department..
/. There 10 no fixed rule for the meas0ik
OF damages occasionSd by pain, The
amount IL to be Determined by the CIR
cumstanees of-each case, and is a matter
peculiarly within the province OF the jury.
1887. Clark against Deans. Appeal from
Dawes. Reversed and renhanded with in'
struction. Good, C. Commissioners Dc,
partment.
/. In ejeotmsnt when the defendant
prays for affirmative equitable relief and
pleads facts emitting him thereto. such
issues arr triable to the court without q
jury.
I. The general rule that plaintiff in eject,
ment must recdysr on the strength Of his
own title Is moi applicable when the de.
! PENDANT obtained possession as tenant OF
} the plaintiff and refuses to Vacats at tbs
expiration OF his lease. In such case the
defendant cannot acquire and set up Z
superior outstanding title against his land
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