Omaha daily bee. (Omaha [Neb.]) 187?-1922, 1911-03-18

8 A notice inviting bids for street inn
| prOvements, signed BY the chairman and
secretary OF the Board OF Public works,
| will be presumed TO have been authorized
/ by that board I'm the absence Of evidence
4 II was not necessary that the city
council should Fix a definite time and place
for property owners TO file protest against
choice OF material. The stature Of 1897
! provided that thirty days should be al
lowed for those purposes after the publ
improvement, and n such time was allowed
before proceeding With the Improvement
5. The act OF 1897 required the council
to sit as a Board Of Equalization Of spe-
Cial assessments on certain specified days,
and to give notice Of such sitting Tor a.
least six days prior thereto" Notice given
for six days immediately prior to one oIts,n OF
that on said day so fixed by statute as
sessments in a certain specified district
would be equalized was sufficient.
6. Under the statute notice of the sit
ting of the council as a board OF equalza-
ton might be given by the Board Of Pub
lie Works when specifically directed by
the mayor and council to give such notice:
1928. O'ConnOr against Waters. Appeal
from Dakota Affirmed. Root, j., Reese
c. j., not sitting.
/. The direct, clear and uncontradicted
testimony Of two disinterested witnesses to
the effect that father, subsequent to a
sons majority, promised that II the son
would remain at home and care for his
parents during their natural life he should
nave QeIlnlLeiy uGaCTlueu lIdGA VI lGal
estate and testimony that the son for over
twenty years and up to the time his pa
rents departed this life, performed his
agreement, may, II believed by the court,
support a decree for the specific perform
anCe OF that contract.
3 In such case IL the other children
claim the real estate under their fathers
will, but do not plead that the farm was
their ancestors homestead at the time the
contract was made. and no usch issue Is
tried in the district court, the defendants
will not be heard in this court to urge that
I5.24S. Bulgrin against Schlechte Appeal
from York. Affirmed. Fawcett, J. Reese,
G. j., not sitting.
When the only question presented on
appeal to this court is one Of law which
has already by frequent decisions OF this
court become the settled law in this state,
It will not ordinarily be again considered.
1921. Aurora State bank against Hayes
Eames Elevator company. Appeal from
! Hamilton. Reversed and action dismissed
as to Hayes-Eames Elevator company and
Barnes j. Reese. G. j., not sitting
l. Payment by bank Of a check drawn
upon it does not constitute such bank
holder within the meaning OF the negoua-
| bic instruments law Comp St. 1903, Gu.
Al, art. 3, sec. 800, providing that an in
| strument is negotiated when it is trans
/ ferred so as to constitute the transferee a
/ holder thereof National Bank OF Com
merce against Farmers and Merchants
| National bank of Lincoln, Neb, Followed.
2. Payment by bank Of check drawn
| upon It, in the usual course and IN the
| absence of fraud or mistake Oh TACT, eA-
| tinguishes the instrument and the bank
| by thereafter putting 1t in circulation can
| not create a liability thereon against its
maker or prior endorser.
I6259-Higinbotham against Mckenzie.
| Appeal from Adams Affirmed. 5eds-
! wick. ].
! several respective brokers or agents to sell
! or exchange the same, but gives neither an
! exclusive agency, the agent or broker who
actually effects the sale or exchange Is en-
/ titled to the commissions. The agent under
! such contract, who negotiates with pur-
! chaser but does not effect a sale cannot
recover commissions.
View. Appeal from Lancaster. Affirmed.
Root, j. Reese, c. j., not sitting.
| /. A judgment of the district court in
] proceeding prosecuted under section 1O1
| article l. chapter IA. Compiled Statutes, to
| exclude territory from the boundaries OF a
municipal corporation, VIII not be set ASIDE s,
on appeal unless it is made to appear that
| the trial court committed an important mis-
| take of fact or made an erroneous infer
| ence of fact or of law.
| force where the trial judge inspected the
| premises before rendering judgment
| 1929. State against Village OF College
View. Appeal from Lancaster. Affirmed
| Root, j., Reese, c. j., not sitting.
]. nonresident owner OF agricultural
! lands illegally included within the bound
aries Of a village may maintain proceed
| ings by quo warranto for the purpose of
preventing the municipality from exercis-
| 2. But in such a case the reator should
! not prevail il he and those under whom
he claims title for sixteen years after the
| municipality under color and claim Of
| right assumed to treat said property as
! part of the village, stood by without sub
| stantial objection until streets were graded
! and a permanent sidewalk built so as to
connect the REALTORS property with the
built-up part Of the village and his land
! lies between the business section of the
| village and the only railway within It's
limits.
Lancaster. Reversed and remanded. Rose,
! j., Fawcett, j., not sitting.
In a suit on an unpaid, past due negoti-
able promissory note, it is error for the
trial court to refuse a request for a per
emptory instruction in favor OF plaintiff,
where the uncontradicted evidence OF wit
nesses whose credibility is not questioned
shows that Plaintiff is a bona fide holder
of the note and that he purchased It for
value before maturity without knowledge
Of any infirmity therein and Of facts in
} dicating bad faith in taking it,
1887. Alt against state Error from Hail.
Affirmed. Rose, j. Sedgwick, -, concurs
in conclusion.
1. In criminal prosecution the trial court
In giving instructions may describe the Of
fence in the language of the statute.
.. In changing the jury II is not neces-
sarily improper to make quotations from
the statute under which defendant is being
} 8. The act granting to electric power com
paniet the right to use public highways for
poles and wires Comp. st, Oh. 26a, sec. u
|
whose operations are confined exclusively
| to telephone service.
4. Where a telephone company constructs
its lines along a public highway in a
proper manner under the terms of legisla
tive grant and uses them in the public ser
Al vice, a railroad company has no authority
either by itself or by employe, to treat
1.-THE wires at a railroad crossing as nut
sance and cut them down. II they do moi
in any way endanger railroad employees Of
interfere with the moving of trains or will
the railroad right of way.
g. In determining the respective rights
of telephone company and a railroad com
pany at a place where the telephone wirei
on a public highway cross the railroad RICH
OF way, the rights Of the public as wei
as the property rights should be considered
G. Where the evidence in a criminal prose
cution viii sustain a conviction for the OF
Tense charged in the information, II Is erro
to direct an acquittal
Z. THE fact that a defendant was actinl
as the agent OF another in the commiSsiol
OF an offense win afford no excuse o
justification for the act in a prosecution
| therefor" Allyn against state. p Neb. 593.
s. In original law malice" may denot
that condition Of mind which is manifesto
! by the intentional doing OF a wrongful &C
| without Just cause or excuse.
9. In a prosecution against a railroad EN-
| ploye for cutting telephone wires on high
i'll