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er for 12 years, during which time he had lived | president of the bank, and owner of a majority on his farm of 150 acres with a son and one of the plaintiffs. In February, 1901, the farm was rented, and the defendant, with the son, who had married, removed to Iowa City. During the period mentioned the son had managed the farm, had received the entire income, and had met the expenses of the family. To procure money to build a new house, he had induced defendant to incumber it for $1.500. Ostensibly to pay for labor performed, the defendant had also executed to his son a note of $3,500, and a mortgage on the land, securing it. This son, it will be unnecessary to add, is resisting the application for the appointment of a guardian. Another daughter is not participating in the proceeding. The fact that he had done no business for so long a time accounts for the failure to adduce any considerable amount of evidence as to his business capacity. The opinions of the nonexperts were at much variance; the weight of evidence apparently preponderating with the defendant. But he was a witness, and his testimony tended strongly to support the claim of his unfitness to manage his own affairs. A careful examination of the entire record has convinced us that the verdict ought not to be disturbed. The other errors assigned are so manifestly unfounded or unprejudicial as to demand no discussion. Affirmed.

WRIGHT & HUBBARD . FIRST NAT. BANK OF SIOUX CITY et al. (Supreme Court of Iowa. April 11, 1903.) Appeal from District Court, Woodbury County; F. R. Gaynor, Judge. Action at law to recover upon a claim for attorney's fees. From a judgment in favor of plaintiffs for the principal part of their demand against the defendant bank, the latter appeals. Affirmed. Lewis & Lewis, for appellant. Wright, Call & Hubbard, for appellees Wright & Hubbard. Taylor & Burgess, for appellee Stone.

WEAVER, J. Plaintiffs claim upon an account, consisting of numerous items, aggregating $1,105.10, and interest thereon, for services alleged to have been rendered for the defendants. The bank, answering separately, first, denies the claim generally; second, admits its liability to pay certain specified items, amounting to $36; and as to other specified items avers the services therein mentioned were rendered to Stone alone, and not to the bank. By way of counterclaim the bank sets up the promissory note of plaintiffs for $1,000 and interest, upon which it asks judgment. The defendant Stone, answering for himself, denies plaintiffs' petition and each and every allegation therein contained. By agreement of parties the cause was tried to the court without a jury, with stipulation authorizing the court to find what portion of plaintiffs' claim should be paid by the bank and what by the defendant Stone, and render judgment accordingly. No dispute is made that plaintiffs performed the services charged for, or that such services are of the value alleged; but the real controversy turns upon the question whether certain items of the clause are chargeable to the bank or to Stone. The controversy centers particularly about an item of $500 charged for consultations had and negotiations conducted concerning matters hereinafter mentioned. Some of the smaller items, it is admitted in argument, are properly chargeable to Stone, and not to the bank. The evidence tends to show that in the year 1896 the First National Bank of Sioux City became financially embarrassed and was placed in charge of a receiver. Soon afterwards a reorganization was effected and the bank resumed business. The reorganized bank did not prosper, and efforts were made to secure the aid of some party who would furnish the money necessary to protect the bank's depositors, and thus obtain time in which to realize upon the slow assets and avoid the sacrifice to be apprehended from a forced liquidation. T. J. Stone was

of its capital stock, and naturally was a principa! figure in these negotiations. After frequent and protracted consultations the negotiations ended in a contract upon which much of this controversy hinges. The only parties named in the contract and executing same are T. J. Stone and the Farmers' Loan & Trust Company. By the terms of this agreement, which is much too voluminous to set out in full, Stone assigned all his shares of the bank stock to the company. The agreement also provided in elaborate terms for the settlement of the business of the bank, the preservation of its assets, and the payment of its liabilities. The testimony tends to show that this scheme of relieving the bank from the necessity of again going into the hands of a receiver was entered into with the consent and approval of the bank's board of directors, and that the plan of settlement thus adopted was carried out. During all these negotiations the plaintiffs' firm of attorneys was consulted by the president and cashier, as well as by other members of the directory, and on one or more occasions one of the plaintiffs attended a meeting of the board, giving advice and help in bringing about the adjustment. The trial court found that, of the plaintiffs' bill, the defendant T. J. Stone should pay certain items, to the amount of $117.57; that of certain other items, amounting to $75, two-thirds were chargeable to Stone and one-third to the bank; and that for the remainder, $955, the bank was alone indebted to plaintiffs. The bank was found entitled to recover upon its counterclaim the aggregate sum of $1,069.93, and for the difference, $137.80, it was given judgment against the plaintiffs. As already indicated, the parties upon this appeal waive all dispute as to plaintiffs' claim, except those more particularly relating to services in the business culminating in the contract signed by Stone and the Farmers' Loan & Trust Company. It is said by appellant that this contract and the negotiations leading up to it related alone to the private business and personal interests of Stone and the sale of his individual stock. There was evidence, however, from which the trial court could have reached a different conclusion, and upon these matters of fact we are not disposed to interfere with the finding. The contract is much more than an ordinary transfer of shares of stock. Its terms contemplated the complete settlement and adjustment of the bank's affairs. Mr. Stone was not to receive a cent for his stock until the debts of the bank had been paid from its assets, and then was to receive only such fractional proportion of the surplus (if any remain) as the amount of the stock transferred bore to the entire capital. Not only was the stock to be transferred, but the business itself, and the entire body of the bank's property and assets, of every kind, were to be placed under the direct management and control of the Farmers' Loan & Trust Company; an agreement which cauld be carried out only by the ratification and consent of the corporation which Stone assumed to represent. From the history leading up to this contract, as well from the apparent acquiescence in its terms and plan of settlement by the bank and all parties interested therein, we think the court below was justified in finding that plaintiffs' services were rendered for the bank, rather than for Mr. Stone individually; and, having so found, we think there was no error in releasing the latter from liability, and adjudging recovery against the former. The judgment of the district court is affirmed.

BARR v. GUELPH PATENT CASK CO. (Supreme Court of Michigan. May 29, 1903.) Error to Circuit Court, Benzie County; Clyde C. Chittenden, Judge. Action by Emma Barr, as administratrix of the estate of Daniel Barr, deceased, against the Guelph Patent Cask Company. Judgment for plaintiff, and defendant

brings error. Affirmed. Brennan, Donnelly & Van De Mark, for appellant. Charles A. Withey (D. G. F. Warner, of counsel), for appellee.

MOORE, J. This case has been tried twice. Upon the first trial the circuit judge directed a verdict in favor of the defendant. An appeal was taken to this court, which ordered a new trial. Upon the second trial a verdict was rendered in favor of the plaintiff. The defendant brings the case here by writ of error. The opinion rendered in this court when the case was here before is found in 88 N. W. 640. A reference to that opinion will make it unnecessary to make a long statement of the case here. Upon the second trial, in addition to the testimony offered upon the part of the plaintiff, testimony was also introduced upon the part of the defendant, and it is claimed on the part of the defendant the record which we now have differs from the record when the case was presented here before. It is true that the trial judge, upon the objection of defendant's attorneys, declined to admit some of the testimony on the part of the plaintiff which was received upon the former trial. It is also true that testimony was offered on the part of the defendant, when none was offered before. This had the effect of presenting a weaker case on the part of the plaintiff, and a stronger case on the part of the defendant; but it did not wholly eliminate the questions of fact, and a careful comparison of the two records does not indicate any material difference, except in degree, in relation to the question of fact which was involved. Many of the cases cited by counsel were cited in the former briefs, and some of the same arguments used then are used now. A careful reading of the present record satisfies us that now, as when the case was here before, the proofs disclose a case which should be submitted to a jury. It would not do any one any good to review the record in detail. See former opinion and Brown v. Railroad Co., 118 Mich. 205, 76 N. W. 407. The trial judge submitted the case to the jury under a very careful and impartial charge. The judgment is aftirmed.

GRANT, J., did not sit. The other Justices concurred.

CITY OF DETROIT . BLADES, City Controller. (Supreme Court of Michigan. May 15, 1903.) Certiorari to Circuit Court, Wayne County; George S. Hosmer, Judge. Petition by the city of Detroit for a writ of mandamus against Francis A. Blades, controller of the city of Detroit, to compel him to draw a warrant in favor of J. H. O'Donoghue for services as sidewalk assessment clerk in office of board of assessors. Writ denied, and relator applied for a writ of certiorari to review the decision. Denied. Timothy E. Tarsney, Corp. Counsel, for applicant.

PER CURIAM. The city of Detroit applied to the circuit court for the county of Wayne for a writ of mandamus to compel the controller of the city to draw his warrant for the sum of $321.67 in favor of J. H. O'Donoghue for services as sidewalk assessment clerk in the office of the board of assessors; the controller having declined to draw such warrant, and alleging as reason therefor that the board of estimates of the city had struck out the item for sidewalk assessment clerk from the estimate of expenses for the office of the board of assessors of the city, and he knew of no money which could be legally expended for the services of such clerk. The circuit court denied the writ of mandamus, and application is made here for a writ of certiorari to review that decision. The writ must be denied. The case is ruled by Robinson v. Detroit, 107 Mich. 168, 65 N. W. 10, in the denial of motion to modify the decree in that case, so as to permit of salaries being paid from

other sources than taxation; and in case of City of Detroit v. Blades, heard March 18, 1902, where this question was involved, and the denial of mandamus below was affirmed, the following memorandum appears: "Affirmed. See Robinson v. Detroit, 107 Mich. 168, 65 N. W. 10, and motion subsequently made in same case."

T.

(So

GRAND RAPIDS & L. RY. CO. CHARLEVOIX CIRCUIT JUDGE. preme Court of Michigan. May 1, 19:03) Mandamus by the Grand Rapids & Indiana Railway Company to compel the Charlevoix circuit judge to set aside an order sustaining a demurrer to a plea in abatement. Order to show cause denied. James B. Howard, for relator.

PER CURIAM. This is a petition for mandamus to compel the respondent to set aside an order sustaining demurrer to plea in abate ment. The case is ruled by the case of Michigan Mutual Fire Insurance Co. v. Ciretit Judge, 112 Mich. 270, 70 N. W. 582, in which it was attempted to fix a rule for these cases, and which was followed in St. Clair Tunnel Co. v. St. Clair Circuit Judge, 114 Mich. 417, 72 N. W. 249, Reed v. St. Clair Circuit Judge, 122 Mich. 157, 80 N. W. 985, and Improved Match Co. v. Michigan Mut. Fire Ins. Co., 122 Mich. 259, 80 N. W. 1088. It seems that these cases were overlooked at the time of the decision of Carpenter v. Circuit Judge, 122 Mich. 323, 81 N. W. 95. The order to show cause is denied.

FORMAN et al. v. SAUNDERS. (Supreme Court of Minnesota. May 15, 1903.) Appeal from Municipal Court of Minneapolis; Andrew Holt, Judge. Action by Frank W. Forman and M. Louise Parker against Henry J. Saunders. Judgment for plaintiffs. From an order denying a new trial, defendant appeals. Affirmed. E. W. Gray, for appellant. W. B. McIntyre, for respondents.

PER CURIAM. Action to recover two months' rent, claimed to be due on a written lease of certain premises for the period of three years. The answer admitted the execution of the lease, and alleged that respondents had demanded possession of the premises and cancellation of the lease, and that thereupon an agreement was entered into between the parties to cancel the lease and deliver possession of the premises, in pursuance of which agreement the lease was canceled and the premises delivered to respondents. The issue thus presented was tried by the court without a jury. and the fact was found adverse to appellant; judgment being ordered for plaintiff for the amount claimed. The evidence not only reasonably tends to support the finding of the court, but manifestly preponderates against the contentions of appellant; and, there being no reversible error, the order appealed from is

affirmed.

LINDAHL v. MINNESOTA & N. W. R. CO. (Supreme Court of Minnesota. May 15, 1903.) Appeal from District Court, St. Louis County; J. D. Ensign, Judge. Action by Hogan Lindahl against the Minnesota & North Wisconsin Railroad Company. From an award of damages in condemnation proceedings, and from an order denying a new trial, defendant appeals. Affirmed. John A. Keyes, for appellant. John Jenswold, Jr., for respondent.

PER CURIAM. Plaintiff appealed to the district court from an award of damages in condemnation proceedings, where he recovered a verdict of $200; and defendant appealed to this court from an order denying its motion for a new trial. A large number of errors are

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assigned, but a careful examination of them discloses no new or serious question of law or practice, and the case does not require an extended opinion. We have examined all the as- signments, and discover no reversible error. Most of the errors assigned relate to the admission or exclusion of evidence, and, though perhaps some little incompetent or irrelevant evidence was received, it is quite clear that its nature was not such as to prejudice defend- ant before the jury. The damages awarded are not so excessive as to warrant interference by this court. Order affirmed.

PHELPS v. WESTERN REALTY CO. et

al. (Supreme Court of Minnesota. May 22, 1903.) Appeal from District Court, Hennepin County; Frank C. Brooks, Judge. Action by Carrington Phelps against the Western Realty Company and others. Demurrer to the com- plaint sustained, and plaintiff appeals. Affirmed. Carrington Phelps, in pro. per. Snyder & Gale, for respondents.

PER CURIAM. The demurrer to the complaint in this action was sustained upon the ground that it did not state facts sufficient to constitute a cause of action. The facts set forth in the complaint are practically the same as those in Anna Catherine Phelps v. Western Realty Co. et al., 94 N. W. 1085; and for the reasons therein stated the order is affirmed.

RAMGREN et al. v. STAPLES. (Supreme Court of Minnesota. May 8, 1903.) Appeal from District Court, Washington County; W. C. Williston, Judge. Action by Napoleon Ramgren and others against Otis Staples. Judgment for defendant. From an order refusing a new trial, plaintiffs appeal. Affirmed. Henry J. Gjertsen and Gjertsen, Rand & Lund, for appellants. J. N. Searles, for respondent.

PER CURIAM. In an action for malicious prosecution for procuring an indictment against the plaintiff here for receiving stolen property, defendant had a verdict; and it is insisted that a new trial should be had for the reason that the trial court erred in refusing to give specific instructions to the jury defining what constituted want of probable cause and proof of malice on the part of the prosecutor (defendant here). The instructions of the court in its general charge were exceedingly full and clear, and accurately stated the law as previously laid down in several decisions of this court, which included every material element of the subject involved, so far as properly embraced in the requests which were refused. The trial court did not, and was not bound to, adopt the

requests denied, where the law therein contained had been, as on this trial, accurately stated in its general instructions. The order appealed from is affirmed.

NEBRASKA LOAN & TRUST CO. v. CORNING et ux. (Supreme Court of Nebraska. March 18, 1903.) Commissioners' Opinion. Department No. 2. Appeal from District Court, Sherman County; Sullivan, Judge. "Not to be officially reported." Action by the Nebraska Loan & Trust Company against Ernest Corning and wife. Judgment for plaintiff, and defendants appeal. Affirmed. Aaron Wall, for appellants. John M. Ragan and W. R. Mellor, for appellee.

POUND, C. This is an appeal from an order confirming a sale under decree of foreclosure. The points argued in this court are not without some force, but none of them were raised in the objections to confirmation filed in the district court, and none of the points there urged are discussed in the brief in this court. There is nothing before us. We therefore recommend that the order be affirmed.

BARNES and OLDHAM, CC., concur.

PER CURIAM. The conclusion of the Commissioners is approved; and, it appearing that the adoption of the recommendation made will result in a right decision of the cause, it is ordered that the order of the district court be affirmed.

STANDLEY v. CLAY, ROBINSON & CO. (Supreme Court of Nebraska. April 9, 1903.) Commissioners' Opinion. Error to District Court, Douglas County; Baxter, Judge. Action by Joseph Standley against Clay, Robinson & Co. Judgment for defendants, and plaintiff brings error. Affirmed. C. M. Williams and E. G. McGilton, for plaintiff in error. Crofoot & Scott, for defendants in error.

AMES, C. This is a companion case to No. 12,617 of the same title, submitted with it at the same time (94 N. W. 140), and presents the same questions for review. Those questions are considered in an opinion filed in the latter case at the present term, and it is unnecessary to reiterate what is there said. It is recommended that the judgment of the district court be affirmed.

ALBERT and DUFFIE, CC., concur.

PER CURIAM. The conclusions reached by the Commissioners are approved; and, it appearing that the adoption of the recommendations made will result in a right decision of the cause, it is ordered that the judgment of the district court be affirmed.

END OF CASES IN VOL. 94

INDEX.

ABANDONMENT.

ACCORD AND SATISFACTION.

Of condemnation proceedings, see "Eminent Do- See "Compromise and Settlement"; "Payment";

main," § 3.

Of garnishment, see "Garnishment," § 3.
Of highway, see "Highways," § 1.

Of homestead, see "Homestead," § 3.

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ACCESSION.

"Release."

ACCOUNT.

Accounting between partners, see "Partner-
ship," § 6.

Accounting by agent, see "Principal and Agent,"
§ 2.

Accounting by executor or administrator, see
"Executors and Administrators," §§ 8, 9.
Accounting by guardian of infant, see "Guardian
and Ward," § 3.

Accounting by receiver, see "Receivers," § 5.
Accounting on decree rescinding exchange of
property, see "Exchange of Properties.”

ACCRUAL.

Of right of action, see "Limitation of Actions,'
§ 1.

ACKNOWLEDGMENT.

Operation and effect of admissions as evidence
see "Criminal Law," § 10; "Evidence," § 5.

ACQUIESCENCE.

Ground for estoppel, see "Estoppel," § 2.

ACTION.

Accrual, see "Limitation of Actions," § 1.
Bar by former adjudication, see "Judgment,"
§ 8.

Concealment of cause of action, see "Limitation
of Actions," § 1.

Election of remedy, see "Election of Remedies.'
Jurisdiction of courts, see "Courts."

Laches, see "Equity," § 1.
Limitation by statute, see "Limitation of Ac-
tions."

Malicious actions, see "Malicious Prosecution."
Review of proceedings, see "Appeal and Error";
"Certiorari"; "Exceptions, Bill of"; "Judg-
ment," § 4; "Justices of the Peace," § 3; "New

Trial."

Set-off, see "Set-Off and Counterclaim."

Actions between parties in particular relations.

Intermixture of goods of same kind, see "Con- See "Master and Servant," § 8.

fusion of Goods."

ACCESSORIES.

Co-tenants, see "Partition," § 1.
Partners, see "Partnership," § 6.

Actions by or against particular classes of
parties.

Criminal responsibility, see "Criminal Law," § 1. See "Carriers," § 1; "Corporations," § 4; "Ex-

ACCIDENT.

Accident insurance, see "Insurance," § 7.
Ground for new trial, see "New Trial," § 2.

ACCOMMODATION PAPER.

See "Bills and Notes."

ACCOMPLICES.

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Criminal responsibility; see "Criminal Law," § 1. Retiring partners, see "Partnership," § 5.

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