Omaha daily bee. (Omaha [Neb.]) 187?-1922, 1912-01-02
Proceedings Of the Supreme Court

an abuse Of discretion to exclude such
statements
4. II is not the duty Of the jury to tind
which of the defendants is principal ana
which are sureties under section oil OF
the code. II Is not error TO refuse to
submit that matter to the jury TO guard
against prejudice when the surety Is
foreign corporation. -,
5. Evidence examined and found suffi-
Client to support the verdict, and that the
damages are not so excessive as TO re-
iseSs. scott AGAINST DeGraw. Appeal.
Morrill,. Reversed and remanded. Sedg-
wick, J. Letton, and Root j. j., con-
curing separately.
/. In this state the statute Of Limitation
is a statute OF repose; II prevents re-
covery on stale demands. IL the petition
In an action upon promissory note sets
out the note which shows upon its face
that II is barred by the statute, and
partial payments are also alleged in the
petition which would remove the bar OF
the statute, and such payments are de-
MED in the answer, with the allegation
that the note is barred, the plaintiff can
not recover without evidence OF such pay
ments
lG947. Village of Wakefield against
utscht appeal Ape f from wayne reversed
/. Section S977 Annotated Statutes, 1909,
construed and held broad enough to per-
init a village located upon the border OF
one county, in a proper case, to annex
contiguous territory situated in an ad-
jacent county
?. In an action to annex additional terri
tory to a village the burden is upon the
village to establish, by sufficient aver
ments and evidence, that the territory
sought to be annexed will be benefited
by the annexation, or that justice and
equity require that such territory be an
neXed.
3. Evidence examined and set out in the
opinion. held, not sufficient to sustain
1870. First National Bank of Buchanan
County against Exchange Bank of ong.
Appeal from Clay. Affirmed. Root ].
Sedgwick, j.. and Fawcett, j., dissenting.
Where a corporation accepts and re-
tains the fruits OF transaction induced
by the fraudulent representations OF It's
agent made by him while acting within
the scope of his authority it is liable to
the party injured thereby.
lIO49. Haas against Wellner. Appeal
from Cheyenne. Affirmed. Reese, c. j.
Rose, j.. dissenting.
The delivery of a deed by the grantor
to a third person to be delivered to the
grantee will be equivalent to delivery
to the grantee II the existing equities re-
quired such delivery and II Is apparent
that the grantor so intended 1t.
17OSO. Harding against Board of Equali-
cation of Douglas County Appeal from
Douglas. Affirmed. Root, ].
The privilege granted a licensee to sell
Intoxicating liquors is not subject to
assessment for taxation under the pro-
visions of chapter n of the Compiled
Statutes, which In substance provide for
l7l7S. Keezer against State. Error, Cass.
Affirmed, Root, ].
!. In charging murder while the accused
is attempting to perpetrate robbery, 1t
is not necessary to allege that the act
was committed deliberately and with pre-
meditation.
2. These allegations not being essential
in stating the offenSe, IL made, may be
rejected as surplusage and need not be
proved separate and apart from proof
Of the killing while the accused is in the
preparation of the robbery
3. In the case at bar. since the jury
might well find from the evidence, be-
yond all reasonable doubt that the ac-
cused planned to waylay, assault and rob
two men and did carry their plan into
execution by assaulting the men. robbing
Of them and beating the other so that he
died, the triors Of fact might logically
find that the last described victim was
assaulted with the intent on the part of
the accused to rob him, although they
denied the intent, and there Is no direct
evidence that his person was searched or
any property taken therefrom.
g.. In that state OF the proof, the court
having instructed the jury that the ac-
cused were presumed to be innocent, they
were not entitled to a further instruction
that the presumption is that no such an
intent existed and no attempt was made
| 8. The rule announced in Preuit against
State, Neb., 81, that Where informers,
/ detectives, or other persons employed TO
hunt up testimony against the accused.
| are called to testify against him, he Is
entitled to an instruction to the jury that
in weighing their testimony greater care
should be exercised than in the case of
witnesses who are wholly DISTINGUISHED"
Will not ordinarily apply TO a county at
torney, sheriff or to his deputy.
1914. McIninch against Evans. Appeal
from Nemaha. Reversed and remandeds
Rose, ]. Letton, j., concurs in conclu-
| sion Fawcett, j., not sitting
l. A verbal lien on personal property
Is void as to subsequent purchasers in
/ good faith.
2. There is no presumption that a
stranger to an oral agreement creating a
B. As a general rule the burden of prov
ing that a stranger to an oral agreement
creating verbal lien on personality has
knowledge thereof is on lienor, where that
fact is material to his protection.
| l. While defendants possession of a
chattel, when replevied, Is presumptive
evidence OF ownership, such possession
loses its presumptve character when
| plaintiff adduces evidence showing that
| he bought the .chattel from the owner.
that he paid for 1t and that he is entitled
8. After plaintiff in replevin has ad-
duced proof showing that he bought the
chattel in controversy from the owner.
that he paid for II and that he 10 entitled
| to possession under his purchase, the
burden Is on defendant, where he at
tempts to defeat the case thus made and
| to establish his own right OF possessi
by proof of a verdict lien to which plain
tiff was a stranger, to show that plain
tiff, before completing hts purchase, had
notice OF such lien.
| 8. Where the law imposes on defendant
the burden OF proving a material fact on
| which he relies, the plaintiff is entitled
to an instruction so advising the jury.
1926. Cooper & Cole Bros. against
! Cooper. Appeal from Lancaster. At
firmed as to defendants Cooper, McCash-
land & Fowler; reversed and dismissed
| as TO defendant Whitman without pre-
! JUDGE 10 an action on contract made for
plaintiff by Gilbert Cooper. Root, ].
| /. Persons not Jointly liable to the plain
tiff or who do not claim some right in
the subject matter of the action. may
not over their objections lawfully be
Joined as defendants.
! 2 The apparent authority of an agent
which will bind his principal is such
authority as the agent appears TO have
by reason OF the actual authority which
he has. Creighton against F1nlayson,
AZ Neb. 457
| g. "Ostensible authority to act as agent
may be conferred II the party to be
charged as principal affirmatively or in
tentionslly, or by lack of ordinary care,
causes or allows third persons to trust
and act upon such apparent agency"
Thomson against Shelton, 40, Neb. 644.
| 4 Where a wholesale dealer In plumbing
! supplies, furnaces and water plants
knows that one of it's statesmen has, upon
! a promise of compens alton TO be paid.
solicited retail merchants in another city
TO secure customers for 1t, and in response
TO letter from them to the effect that
the time is ripe to get hold OF some bust
ness and TO send salesman. sends an