Omaha daily bee., 1909-07-31

~ quincy NAAIIIOAN company NHNNAl ANNAA
OF S2tO Within thirty days, other
wise reversed and rCmaudsu. Root J. and
FaWcett J concurrlng separately' Barnes
l. Sections 1896 and lo7g7. Cobbcy's An
notat'd SlaiuJss Wa ne,nS '4 roppiT ssyDss
sections II or 10 Of article 8 OF the .consi-
tuition OF Nebraska, nor Is said lcgisl3-
ment to the constitution OF the United
states.
or offer to prove any affirmative defence
to an action under said statute, save and
except hat as to its delay In forwarding
one carload Of stock. 4 did so in Difference
OF trains on sunday, and defendant having
been given by this court the benefit OF
said defense, it Is unnecessary 70 determine
whether the statute preCiuded any other
defense In said action.
B. The legislature may provide by gen
eral law that a shipper OF live stock may
recover llauidated damages from a public
carrier for failure to transport such stock
committed to the carrier for transit be-
tween stations In Nebraska.
T. Section 4 of article l OF the consti-
tuition does not prohibit the Legislature
Of common carriers, and in case the lcgis-
lature expands such liability, the courts
complaint Of the carrier, because in some
Hypothetical case the law, II applied, might
work to the disadvantage OK a shipper.
8. The statute does not interfere with
or regulate interstate commerce.
6. Where the evidence disclosed without
dispute that as TO. one cause OF action
the delay was oCcasioned by unloading the
stock for feed. water and rest at the Feed
Ing pens of defendant at O division point,
and that to have continued the shipment
probably compelled the carrier to have
operated it's trains on Sunday and have
resulted in the delivery Of said stock on
the Sabbath, a judgment based on said
count in the petition will be reversed.
15272 Carter against A. l. Root, Inc.
Annna1 from nnnplne pnVEaygal vwNNh g,
structions. Epperson, C. Commissioners
department.
/. a builders contract provided for the
construction OF a building under the d.
rection OF an architect as the agent OF
the owner, and further provided that no
alterations should be made I'm the work
as described by the plans and specifications
except upon the written order OF the ar
chitect, and that extra work would be
paid for only when the price had been
agreed upon and affixed to the order
given by the architect in writing and
counterslgned by the owner previous to
the performance of the same. Held. that
the architect alone could not by verbal
agreement waive this provision of the
contract.
2 a clause in a builders contract pro-
viding for a written demand by the
the building is legal. but may be waived
by the owner entering into supplemental
contracts for extras which require adj
ditional time for the completion OF the
building.
8. Unless otherwise provided in the con-
tract a builder is not entitled TO additional
time because he has been delayed in the
construction OF a building by ordinary
rains, FOR such might reasonably have
been contemplated at the time the con-
tract was made; nor IL he entitled to ad-
ditional time for delays caused by acct
dents, or unexpected conditions against
which he could have provided in his con-
tract.
1921. Lands & Schick against Watts.
appeal from Seward. On rehearing re-
yersed and remanded. FawCett, j.; Root,
sent. ~ 80 ~ us
l. The rule announced in Hamblin against
state. ll5 N. w. $50, that IN propounding
II Is for each party to the con-
t~roversy to submit such questions upon
the theory OF the case contended for by
the side propounding them does not
mean that a party propounding hypothet-
lcal questions may do so upon a theory
at variance with testimony which he him
ser mas given, either In person or through
other witnesses whom he has previously
introduced.
2. In such a case the questions must be
so framed as to fairly reflect the party's
theory as shown by the facts admitted or
proved by him.
3. And where the party's own evidence
corsoooTates evidence which has been in
troduced by the other party to the action.
such questions should fairly reflect ali
or the facts SO admitted or proved by
both sides.
1864. Powers against spiedel. AppeaI
from. SCOTS Bluff. Affirmed. Root, j.
l. III a deed conveying the real estate
OF a corporation Is properly executed and
Acknowledged and delivered to the register
or deeds for record, the grantee will not
be prejudiced by the failure of said Of
fetal to record the imprint of the cor
IA certificate OF acknowledgment is
sufficient If 1t shows that the requirements
or the statute have been complied with
IN substance" Burbank against Ellis, !
Neb. 1856, 1G4.
g. The certificate of a notary public that
tns president OF a corporation appeared
peIoie MN ana acknowledged as his voluu-
tary act and deed a conveyance duIy
signed, sealed and witnessed by said cor
poratlon, entities said instrument to rec
ord, and the record thereof. is construc-
i've notice of the grantees interest In the
property thereby conveyed.
lhOIO' Haas against Mutual Life Insur-
ance company. Appeal from Douglas. Re
Versed and r~eInanded. Fawcett, j.
!. "Forfeitures are looked upon bv the
courts with Ill favor, and will be enforced
only when the strict letter OF the contract
requires 1t, and this rule applies with full
force to policies of Insurance" Connecticut
Neb. 3Ss. ' "
2 "A clause stipulating for a forfeiture
OF a contract should not be aided or given
effect by construction in a case whore the
pain meaning of the language used does
not require it," Jensen against Palatine
insurance company, 116 N. w. 2S6.
. II has become a settled rule in the
construction Of contracts of insurance maj
policies OF insurance will be literally con.
strued to uphold the contract, and condi-
tons contained in them which create for
1eitures will be construed most strongly
against the insurer and will never be ex-
tended beyond the strict words Of the
policy.
T. a policy OF life insurance is not a con-
tract or assurance for a single year. with
a privilege Of renewal from year 10 veal
by paying the annual premium. 1t is an
entire contract Of insurance for life, sub
Ject, when so stipulated, to discontinuancc
and forfeiture for "nonpayment OF any I'm.
stallments OF premium. Such installments
or premium are not intended as the con.
slderation for the respective years in which
they are paid, but each installmert is IN
fact part consideration Of the entire insur-
ance for life.
D. A life insurance policy, when once II
taxes effect by payment of the first year.
premium and delivery Of the policy, does
not terminate at the end OF the year, but
II Is a contract for the life OF the assured
III the policy contains no provision for a
FORFEITURE thereof by reason OF a failure OF
the assured to pay subsequent premiums
annually, a failure to pay such remiu
on the day named will not constitute a
forfeiture of such policy. All that the
company can demand in such case is thu
right TO set off against the amount OF
indemnity IL has bound itself to paw. the
amount Of the premium remaining unpaid.
with interest thereon.