Omaha daily bee. (Omaha [Neb.]) 187?-1922, 1912-01-02

raised by the pleadinBs received suppS-t
from the evidence and that such issue
was correctly determined.
2. A sub-contraCtor whose only agree
ment Is with the contractor cannot ex-
tend the time within which he may file
mechanics lien by substituting proper
material for defective material thereto
fore furnished and charged to the con-
tractor. Ashford against Iowa y Mime
sofa Lumber company, 81 Neb., 56l.
16549. O'Grady against Chicago, Bur
lingtOn & Quincy railroad. Appeal from
Furnas. Reversed and remanded. Root, J.
1. Section 121 of the code commands the
courts to construe with liberality the
allegations In pieadings with a view to
doing substantial justice between the
2. A petition charging in substance, that
common carriers porter refused a pas
senger Tor hire, who, with her nine In
FAINT children, also passengers for hire,
were changing cars on the defendants
railway at point intermediate the COM
mencement and the end Of their journey,
been transported and from which she
desired to take her suitcase, with its
contents Of the value OF Sl,525 although
the porter knew that her suitcase was
IN the car. and she Informed him Of her
purpose. but that he wilfully refused TO
admit her and that although the train
the station and she informed the carriers
agents and servants In charge OF the
train that her suitcase was In the car.
they refused to deliver the suitcase or
purpose Of securing her property, and
that II was not delivered to her and she
has not received 1t, states a cause of
action against the carrier
1851 Reynolds against Adams. Appeal
from Frontier. Reversed and remanded.
Root, j.
l. Where 1t is clear that a judgment
was rendered or an order made by the
district court in an action then pending,
but through the inadvertence or careless
ness OF the clerk the judgment or order
was not entered on the journals, the court
may subsequently upon motion, after
notice to all persons, affected thereby
cause the entry to be made nunc pro tune
2. In such proceedings II is not -neces
sary to notify persons implead;a as de-
PENDANTS, but dismissed from the action
before the judgment was rendered or
order made.
3. II the person injuriously affected by
the fault Of the clerk departs this life,
his legal representative may maintain
the proceedings in their names to supply
the record.
4. II the person benefited by the incom-
plete condition of the record departs this
life without conveying or assigning his
Interest In the subject matter of the
litigation, notice may be served on his
legal representatives, and on satisfactory
proof, the record corrected.
1878. Kramer against Bankers Surety
company. Appeal from Otoe. Reversed and
remanded. Lection, ].
l. The sureties on bond given under
NhS fAONlblOnb VI CHdpltE DVs COulptleu
statutes, are not merely nominal parties
In an action on the bond, but have such
an interest in the action that All action
on the bond may be brought against them
in any county where they reside or may
be found, and under section GO of the
code, summons properly issued to any
other county for service on their prin-
cipal.
z. Where jurisdiction has attached the
fact that there is an error In the account
OF recovery or other irregularities, will
not Justify In a collateral action the
granting Of an injunction to restrain the
enforcement of q judgment.
| 3. In equity surety paying judgment
against himself and his principal Is en-
titled to be subrogated to the rights OF
judgment consigned to him or to some one
else for his benefit.
1883 Sabin against Cameron. Appeal
from Lancaster II within fifty days
plaintiff files a remlttitur of $10625 with
Z per cent interest from July 1, 1906, judg-
ment of district court to be affirmed, each
| party TO pay his own costs In this court.
| IL such remittitur be not filed, judgment
OF district court to be reversed and cause
| remanded. Root, j.
| 1. Alleged error in giving an instruction
will not be considered where no eXcep-
| ton was taken thereto and no reference
was made to 1t In the motion for a new
trial.
2. Where a written contract requires
extrinsic evidence to explain its terms,
the Interpretation to be given in view
OF such evidence is a question OF fact"
| Haskell against Read, IS Neb. 10.
3. But in the absence of a latent am
| biguity this principle will not ordinarily
apply to those terms OF written con-
/ tract which are plain and unmlstakable
in their meaning when considered by
themselves and in connection with the
remainder OF the contract.
| 4. A builder ordered by the proprietor
to do work in some way connected with
the original contract, but substantially
independent of II, under such circum-
stances that the owner should know that
the execution of her orders will cause
| extra trouble and expense to the builder
not contemplated by the terms of the
contract to build, has a just demand for
reasonable compensation for the extras
/ II the original contract does not provide
s. 1t is prejudlciaI error to submit to
the jury a controVerted defense not sus-
tanned by any evidence,
81 Where a case has been tried twice
in the district court and in this court
| II by imposing terms as a condition "a
affirming the Judgment substantial JUS
| tioe may be done between the litgants
1t lie competent for this court to do so.
1891, Doll against Getzschmann. APP
peal from Douglas, Reversed and re-
/. When a vendor OF real estate takes
a series OF notes for deferred payments
and at the time they are executed en-
dorses one OF the notes paid and sur
renders II to the purchaser pursuant &c
the contract OF purchase, then endorse
ment Is a substantive part OF the note,
! 2. Facts showing that an endorsement
on a note when executed is a substantive
part OF the note may be proved by pAro
evidence.
1850 Gruenther against Bank Of Mon.
Reese. 9, J, Root, Barnes and Rose
j. j., dissent.
l. In an action instituted before a jus.
tice OF the peace plaintiff alleged thai
upon the representation Of defendant
bank that the drawer of a check had
| money on deposit to pay the check, thai
the check was received, but when pre-
/ scented at the bank payment was refused
I the defendant falsely claiming that the
drawer had no funds wherewith 20 pay
the same. on appeal to the district
! court, where the cause was tried upOr
the original pleadings. plaintiff was al
lowed TO amend by inserting in the bill
| Of particulars that prior to the presenta'
ton OF the check the drawer had left
| with defendant the sum named in the
check for the express purpose OF payinG
Il and which sum the bank retained. Held
that the amendment did not change the
cause OF action.
| q Where the parties TO an action entsi
upon a trial and treat the allegations OF
new matter alleged In the answer as
denied this court will also treat II 81
Notwithstanding no reply appears In tbs
records" Loan and Trust Savings banl
against Stoddard, Neb- (unof), 4s6, s
& "Pieading affirmative matters in al
answer. which amount to no more thar
a denial OF plaintiffs cause OF action
| will not necessitate reply" Peaks
/ AGAINST Lord AZ Neb. Is 90 n. w. 349.
! 4 Where a check Is issued upon a de