CONKLIN V. GRAHAM.1

(Supreme Court of Nebraska. July 2, 1891.) BANKS AND BANKING-DEPOSITS-CHECKS-EVI

DENCE.

The evidence considered and held sufficient to sustain the verdict, and that there is no error in the record.

(Syllabus by the Court.)

Error to district court, Thayer county; MORRIS, Judge.

E. O. Kretsinger and O. H. Scott, for plaintiff in error. Manford Savage, for defendant in error.

COBB, C. J. James M. Graham, plaintiff, commenced his action against W. Conklin, defendant, in the district court of Thayer county, in which he alleged, in substance, that in the years 1887 and 1888 the defendant was engaged in the banking business in the town of Hubbell, Neb., as proprietor of the Bank of Hubbell; and that during the whole of said years the plaintiff was engaged in the business of buying and feeding stock, and transacted a large amount of business with the defendant as proprietor of said Bank of Hubbell, the plaintiff, from time to time, borrowing money from said bank on his notes, depositing his money therein, and checking the same out in the usual course of business; that on December 22, 1887, the plaintiff deposited with the defendant, as the proprietor of the said Bank of Hubbell, the sum of $140.63 in a note and cash; the defendant on said day deducted from said deposit the amount due upon a certain note, (dated December 17, 1887, due one day after date, payable to defendant and by the plaintiff,) to-wit, the sum of $33.77, said note being on said day canceled and delivered to the plaintiff; and at the same time the defendant entered on the plaintiff's pass bank-book a deposit of the amount of $66.23, the plaintiff thereby receiving a total credit on said day of $100, whereas the plaintiff should have received credit for the entire amount of said deposit, to-wit, the sum of $140.63, leaving a balance due to the plaintiff from the defendant, out of the transactions of December 22, 1887, of $40.63, for which no credit has been given to the plaintiff, nor has the same, or any part thereof, ever been paid to the plaintiff; that none of the checks drawn by the plaintiff on the defendant's said bank between February 1 and July 7, 1888, were delivered or shown to the plaintiff until the last-mentioned date, at which time the plaintiff and defendant attempted to make a settlement, and at said time the defendant delivered to the plaintiff, among other checks, a certain check purporting to be signed by the plaintif for the sum of $130.45, and charged the same to the plaintiff, the defendant then and there claiming that said check was given in payment of two certain notes of the plaintiff to the defendant, one for $80, dated January 24, 1888, due 10 days after date; that he never signed the said check, nor did he ever consent to or authorize any person whomsoever to sign his name to the said check, and he had no knowledge whatsoever of the existence of said check until July 7, 1888; that the two 1 Petition for rehearing pending.

notes above described, and for the payment of which defendant claims that said check was given, were paid by the plaintiff on February 9, 1888, and canceled by the defendant on said day, and delivered to plaintiff, in whose possession they have been since that day; that plaintiff has demanded of the defendant that he pay to him the sum of $130.45, being the amount of money wrongfully charged to him by reason of said check, but the defendant wholly refuses so to do, and defendant is indebted to plaintiff in the sum of $130.45, etc.; with demand for judgment. The defendant answered admitting that he was engaged in the banking business in the town of Hubbell, during the years 1887 and 1888, and that the plaintiff during said years was engaged in the business of buying and feeding cattle and transacting business with the defendant as proprietor of said bank, as alleged in the first paragraph of his petition; but denies that on the 22d day of December, 1887, the plaintiff deposited with the defendant the sum of $143.63, but said that he only deposited the sum of $100; and that the note described in plaintiff's petition for the sum of $33.77 was paid out of said sum, and the balance, amounting to the sum of $66.23, was placed to plaintiff's credit. For an. swer to the second cause of action, he admitted that on the 24th day of January, 1888, and on the 28th day of said month, the plaintiff executed and delivered to the defendant the two promissory notes described in the second cause of action; and that on the 9th day of February, 1888, and after said notes became due, the same being unpaid, the defendant drew a charge check on the account of the plaintiff for the amount then due thereon, to-wit, the sum of $130.45, and deducted said sum from a deposit the plaintiff then had in defendant's bank, and then and there canceled said notes; and denies that said notes were ever paid in any other way than as above set forth, etc. There was a trial to a jury, with verdict and judgment for the plaintiff. The case comes to this court upon the following assignments of error: First, the damages are excessive, appearing to have been given under the influence of passion and prejudice; second, the verdict of the jury is not supported by sufficient evidence; third, the verdict is contrary to law; fourth, errors of law occurring at the trial, duly excepted to; fifth, the court erred in refusing to admit the charge check dated February 9, 1888, offered by the defendant in evidence, and excluded by the court; sixth, the court erred in refusing to give each and every instruction asked by the defendant; seventh, the court erred in giving each and every instruction given on its own motion; eighth, the court erred in refusing to give to the jury the two instructions asked by the defendant.

Counsel, neither in the argument at the bar nor in the brief, follow these assignments specifically. Neither will I, in giving the views of the court upon questions presented. It may be said, generally, that it is a case of conflicting evidence. Both parties were sworn as witnesses upon the trial, and they agreed that on the 22d day

of December, 1887, the plaintiff executed his note to the defendant for $100, and deposited it in defendant's bank, which was received by defendant on deposit at the value of $100. Plaintiff testifies explicitly that on the same day he made another deposit of $40.63. On the other hand, the defendant testifies that on the day stated the plaintiff came into his bank, executed and deposited his note for $100, but took in payment therefor a note of $33.77,and got credit for the balance. After refreshing his memory for the exact amount, as he expressed it, he continued to testify that he would not state the exact amount, and that there were two amounts; but that he got credit for the smaller of the two amounts, $25.60, "as this deposit slip shows;" that the balance he took in money, and "told us at the time what he wanted that money for." To the question put him by his counsel, "What was the balance?" he answered, "$40.63; which he took in money, and stated at the time what he wanted the money for. Witness was unable to state what he stated he wanted the money for. To the question put by his counsel, "How much money, or its equivalent, was deposited in your bank on December 22, 1887?" he answered, "$66.23." To the question, "How much was the amount that the plaintiff got credit for at your bank?" he answered, "$49.63 and $25.60." To the question, "Over and above that, what other transactions?" he answered, he "paid the note." "Question. These three credits you gave to him out of what deposits on his part? Answer. He gave his note for $100 in payment of that note and the $25.60 and the $40.63 in money which he took out, and which afterwards, during the day, he returned at the time he got the $40.63 in money, and the deposit slip of $25.60, and his note. Q. Did he make another deposit on that day, except the $100 note? A. He didn't make a deposit of the note. Q. You gave him credit for the $100 note? A. No, sir. Q. State how it was. A. He took up this note for $33.77, and got credit on the books for $25.60, and took out $40.63 in money, which money he afterwards brought in again that same day, and got a deposit slip, getting credit on $66.23 deposit." Taking this evidence of the defendant as true, there was due to the plaintiff upon the transactions of that day, December 22, 1887, the sum of $40.83. Upon this sum, under the instructions of the court, he was entitled to interest at 7 per cent., which would amount, at the date of the verdict, as I figure it, at $3.81; which, added to the above amount, would make $44.64,-26 cents more than the amount of the verdict. It is deemed quite unnecessary to comment further upon the evidence on either side, as it is evident that the verdict of the jury was made up in chief from the above testimony of the defendant, and, with that evidence before them, they could not have found a verdiet for the defendant. Plaintiff in error's brief makes no complaint of the instructions of the court, nor do I think he could, either as to the instructions given or those refused. Neither do they present the errors of law occurring at the trial

contemplated by the fourth assignment of error. The first assignment, that the damages are excessive, cannot be sustained; the verdict being for a smaller amount than it should have been under the testimony of the defendant himself. The judgment of the district court is affirmed. The other judges concur.

EDMONSON V. ALEXANder.

(Supreme Court of Nebraska. July 2, 1891.) FORECLOSURE OF TAX-LIEN-NECESSARY PARTIES.

One S. conveyed certain real estate to Mrs. W., but, through neglect, the deed was not recorded. W. took possession of the land, and rented the same to one B. One A. thereupon brought an action to foreclose a tax-lien, and made S. and B. parties, but not W. A decree foreclosing the tax-lien was thereupon taken by default. In an action by W. to vacate the decree, and for leave to intervene and answer, held, that the vacation of the decree and order permitting intervention were properly made. (Syllabus by the Court.)

Appeal from district court, Cass county; FIELD, Judge.

Matthew Gering, for appellant. S. P. & E. G. Vanatta, for appellee.

MAXWELL, J. This action was brought by the plaintiff against the defendant to open a default and decree foreclosing a tax-lien on 40 acres of land described in the petition, and for leave to pay all taxes and costs due on said land, etc. To this petition the defendant filed an answer, as follows: "Denies that the plaintiff is the owner of, or has any legal or equitable interest in or to, the land described in the petition, or any part thereof. Admits that Richard H. Williamson executed and delivered to plaintiff a deed for said land, but avers that, at the date of the execu tion and delivery of said deed, the said Williamson had no title or right in or to said land, and that the said deed conveyed no title to plaintiff. Admits that on or about the 16th day of March, A. D. 1889, Paul Schminke executed and delivered to one Richard H. Williamson a quitclaim deed for said land, but avers that at the date of the execution and delivery of said deed the said Paul Schminke had no title or interest whatever in or to said land, and that said deed conveyed no title or right to said Williamson. And, for further answer to the petition of plaintiff, the defendant says that she is the absolute owner of said land, and each and every part thereof; that she purchased the same from W. D. Merrian and J. P. Mathis, who were the owners thereof; that on the 15th day of August, A. D. 1888, this plaintiff commenced an action in this court against Paul Schminke, who was then the legal owner of said land, and against Oliver Baker, who was then in the possession of said land, for the purpose of quieting her title to said real estate, and fixing and establishing her absolute right to said land; that the said Paul Schminke and Oliver Baker were personally served with summons in said action, and had their day in court, but they wholly failed to appear in said action, and to set up any right or claim thereto; that at the com

mencement of the action there was nothing of record to show that the said Williamson had any right or interest in said land, and this defendant had no knowledge whatever that he had or claimed any interest thereto; that such proceedings were had in said action that on the 5th day of January, A. D. 1889, this honorable court ordered a decree to be entered upon the records of this court, fully quieting and establishing the title to said land in this defendant, and enjoining and restraining the said Paul Schminke and Oliver Baker, and all persons claiming by, through, or under them, from having or claiming any interest or right in and to said land; and that said decree was duly signed by the court, and is still in full force and effect, all of which will more fully appear, reference being had to the proceedings and record of said cause in this court, which is hereby referred to and made a part of this answer. Defendant further avers that all right or interest the plaintiff has in said lands has been vested in her since the date of said decree, and came through the said Paul Schminke and Oliver Baker, who were estopped from making any conveyance of said land; and that all of plaintiff's rights in said lands were fully adjudicated in said cause." On the hearing, the court set the decree foreclosing the tax-lien aside, and permitted the plaintiff to intervene. From that order the defendant appeals. The testimony tends to show that, at the time the foreclosure proceedings were instituted and pending, one Mrs. Williamson was the owner of the land in question; that Schminke, many years before the instituting of the suit, had conveyed to her by warranty deed, but through neglect the deed had not been recorded, and was lost; and that, after the decree was rendered, Schminke conveyed to her a second time by a quitclaim deed. There is no claim that the real owner of the land (Mrs. Williamson) was a party defendant in the action to foreclose the tax-lien. The decree as to her, therefore, was a nullity; and the court properly permitted her grantee, the plaintiff herein, to file an answer in that case, in order that there may be a trial on the merits. The judgment is right, and is affirmed. The other judges concur.

STATE ex rel. LUCAS v. HOUCK, Constable. Supreme Court of Nebraska. July 2, 1891.) EXEMPTIONS-WHEN WIFE HEAD OF THE FAMILY.

A husband and wife were living together as such. The husband was, and for the two years last past had been, by reason of being from his childhood crippled in his right arm, and having his left arm broken by accident, and afflicted by rheumatism, neuralgia, and erysipelas, unable to do any kind of work or labor; and being entirely without money, property, or means, besides the clothes which he wore, had neither done nor contributed anything for the support of the family; while the wife, during the whole of said time, had, by renting a house, which she did in her own name, subletting rooms therein, and by keeping boarders, solely supported the family. Held that, for the purposes contemplated by sections 521, 522, and 523 of the Code of Civil Procedure, the wife was the head of the family. (Syllabus by the Court.)

Error to district court, Douglas county; CLARKSON, Judge.

Saunders & MacFarland, for plaintiff in error. Cavanagh, Atwell & Thomas, for defendant in error.

COBB, C. J. A firm of traders having obtained a judgment in justice's court against the relator, and having caused execution to be issued thereon and placed in the hands of the respondent, a constable, a horse, buggy, harness, and lap-robe, the property of relator, having been levied upon by said respondent, as constable, to satisfy said execution, the relator filed with respondent an inventory headed, "Inventory of the whole personal property owned by Mrs. R. H. Lucas, of Omaha, Douglas county, Nebraska." This inventory consists of various articles of household furniture, bedding, dishes, books, and pictures, of the estimated value of $95; one clock, valued at $1; wearing apparel, at $100; and one horse, carriage, harness, and lap-robe, valued at $125; to which is attached an affidavit of the relator, in which she makes oath that she is a resident of the state of Nebraska, and the head of a family; that she has neither lands, town lots, nor houses subject to exemption as a homestead under the laws of this state; and that the above inventory contains a true and correct list of the whole of the personal property owned by her; and said relator thereupon demanded of the respondent that he call to his assistance three disinterested freeholders of Douglas county, and appraise said property, but the respondent then and there refused so to do. Afterwards the relator applied to the district court for a writ of mandamus to compel the said contable to call to his assistance three disinterested freeholders of Douglas county, and appraise said property inventoried, and, if said inventory did not exceed the amount or value of $500, to release said property forthwith. An alternative writ was issued, commanding the respondent to show cause why the peremptory writ should not issue. The respondent appeared and made answer to the said writ, in which he alleged that the relator is not, and never has been, entitled to the exemption claimed, in that she is not the head of a family; and prayed to be hence dismissed, with his costs. There was a trial to the court, with a finding and judgment for the respondent. The relator brings the cause to this court by petition in error. Five errors are assigned: First, that the court erred in allowing testimony to be introduced under the pleadings; second, that the court erred in forcing the relator to trial, and making her show that she was the head of the family, and entitled to exemptions; third, that the court erred in forcing the relator to trial on the answer; fourth, the court erred in refusing to allow the relator the peremptory writ of mandamus; fifth, the the relator for costs. court erred in rendering judgment against

The first, second, and third assignments will be considered together. The relator's object and purpose in applying to the court, and instituting her suit, was to es

tablish her right to the relief demanded. Her right to this relief consisted primarily in the fact that, she being a citizen of the state, and the head of a family, and not possessed of either lands, town lots, or houses subject to exemption as a homestead under the laws of the state, her personal property, within the value of $500. had been taken from her and was detained upon legal process by the respondent. Doubtless any or all of these facts might be put in issue by the respondent upon his appearance, and those put in issue it was incumbent upon her to prove; or, had the respondent failed to appear at all, it would have been incumbent upon her to produce at least prima facie evidence of each of said facts. But the respondent, by appearing and answering, narrowed the issues to the single fact denied by him, to-wit, that the relator is a head of a family. This fact it was necessary for her to prove. If she has done so, then the trial court erred in refusing to allow the relator the peremptory writ of mandamus, and also erred in rendering judgment against the relator for costs. There were three witnesses sworn and examined on the part of the relator: Mrs. R. H. Lucas, the relator; R. H. Lucas, her husband; and Dr. R. C. Moore, their family physician. The evidence of these three witnesses, taken together, tended to prove that the relator is a married woman; that her family consists of herself and her husband; that she had resided in the city of Omaha for about five years at the time of the trial, during which time she had been engaged in keeping boarders and renting rooms; that the work and labor necessary to the carrying on of this business was performed by herself and hired help, which consisted sometimes of two hired women, and a portion of the time of one hired woman and a sister of the relator, who during that portion of the time lived as a member of the relator's family, and worked at the ordinary labor usually performed by a hired girl in a boarding-house, and thereby repaid relator for her living; that at least during the two years next before the trial R. H. Lucas, husband of the relator, had been absolutely without means by which to support or to assist in the support of relator and her family, and physically incapacitated by reason of one crippled arm from boyhood, and the other disabled by an accident which occurred over two years before the date of the trial, and rheuma. tism, neuralgia, erysipelas, and other ailments to his health. During most of this time he had been under the care and treatment of Dr. Moore. Taking the whole of this testimony together, there can be no doubt that, during the whole of these two years, the family of the relator and her husband were absolutely dependent upon the relator for their support, without which they must inevitably have become a public charge. Upon cross-examination of R. H. Lucas, it appeared that he had resided in Omaha about 25 years; that he was in the grocery business in said city for about 13 years, that he kept a stock of goods of from five to six hun-dred dollars; that he was broken up by

the dishonesty of a partner, and sold out the remains of his stock; that he afterwards bought into a livery stable business with a brother-in-law, and within three days it burned down, whereby he lost about $3,000, everything that he was worth; that at that time he was unable to do any work or labor whatever about the said stable; that he owned no property whatever, either real or personal, except the clothes which he wore; that the property described in the schedule presented by the relator to the respondent constituted all the property of every name and nature which she owned; that she had lately disposed of an interest which she had in a lot for the purpose of paying back rent on the house which they occupied. There is no contradiction or conflict whatever in the evidence of these witnesses. The respondent offered no evidence. I am of the opinion that the learned court erred in its judgment and decision upon the merits of the case, and that the judgment is absolutely without evidence to sustain it. The judgment of the district court is reversed, and judgment will be rendered in this court for the relator for costs in both courts, and a writ of mandamus will be issued in this court as prayed by the relator in the district court. Judgment accordingly. The other judges concur.

1. The evidence considered, and held to sustain the verdict and judgment.

2. The instructions given, and those requested and refused, examined, and held properly given and refused.

(Syllabus by the Court.)

Error to district court, Howard county; HARRISON, Judge.

T. T. Bell and Paul & Templin, for plaintiff in error. Henry Nunn, for defendant in error.

COBB, C. J. This action was brought by the defendant in error against the plaintiff in error to recover a sum claimed as commissions for services rendered iu procuring a purchaser for certain real estate. The petition in the court below alleges that the defendant, some time in the month of January, 1888, placed in the hands of the plaintiff, for sale on commission, lots 11 and 12, in block 19, of the city of St. Paul, in this state, for the sum of $3,500; that defendant agreed to pay plaintiff a commission of 5 per cent. on the first $1,000, and 2% per cent. on the balance of the said $3,500, if plaintiff would furnish a customer for said property at that price; that on or about the 3d day of August, 1888, plaintiff found a customer for said property, who purchased the same at the price named; that plaintiff negotiated and effected said sale; and that there is due him from defendant, as the commission agreed upon, $112.50. The answer of the defendant is a general denial. There was a trial to a jury, with a verdict and judgment for the plaintiff for

1

the above-named sum. Defendant, having moved in vain for a new trial, brought the case to this court by petition in error. There are some half dozen errors assigned, but one of which is presented or argued in the brief of counsel, and that alone will be examined. It is: "That the verdict is not sustained by sufficient evidence."

Upon the trial George E. Lean, the plaintiff, was called and examined as a witness in his own behalf. He testified that he was by occupation cashier of the First National Bank of St. Paul, and acquainted with Charles Wasmer, the defendant. That in January, 1888, he made a contract with defendant in regard to selling the real estate described in the petition, and that the contract was made by conversation in the First National Bank at St. Paul. That, in the first place, he wrote to Mr. Wasmer, who resides at Grand Island, asking him what he would take for that property, stating that witness thought he could furnish him a customer for it. Said that it would be a cash transaction, and witness wanted his lowest figures. That, in answer to that letter, Mr. Wasmer came up to see witness at the bank, and stated that he would take $3,500 cash for the property. Witness told him that he thought that it was a very good price, and asked him if that was the lowest that he would take, and he said that it was. Witness asked him what commissions he would allow him if he furnished him a purchaser for them at that price, and he said that he would give him 5 per cent. on the first $1,000, and 2% on the balance. Witness told him that he would try and see what he could do with it. That he did make an effort to find a customer for the property, and that he did find a customer who purchased the property at that price in August, 1888. That the customer's name is R. E. Dallas. That Mr. Wasmer accepted said customer at that price. That Mr. Dallas paid Wasmer the price he asked, $3,500. That the consideration was paid and the property transferred on the 1st day of August, 1888, but that Mr. Wasmer refused to pay him his commission. Upon cross-examination, the plaintiff admitted that he was not a real-estate agent by profession. That the defendant came to him in response to a letter which witness wrote to him, asking what he would take for the property. Mr. A. E. Cady was called and sworn on the part of the plaintiff, and testified that he was acquainted with the defendant, Mr. Wasmer. That on the 3d day of August he came to the bank some time in the morning, and inquired for Mr. Lean. Witness told him that Mr. Lean was out of town. Witness and defendant then sat down in the outside office of the bank, and defendant said that, unless the property was sold pretty quick, he would not stand to his agreement to sell it for $3,500. That in this conversation with the defendant wit ness was acting for and on the behalf of the plaintiff, and that he asked the defendant, first, when he was going away. Defendant told witness, and witness replied to defendant that he would endeavor to get the party, so they would have a meet

ing, so that some understanding could be reached, and appointed an hour for him to be at the bank, which he agreed to. Witness then went and found the party, and told him of the hour, and had them both there at about that time. Introduced Mr. Dallas to Mr. Wasmer. Took them into the back office of the bank, and brought about the topic of the sale of that property. Brushed away what barriers seemed to present themselves, and brought about an agreement. They agreed on the purchase and sale of the property. At about half past 5 or 6 o'clock the plaintiff, having been away on business to Elby that day, returned. Witness informed him of Mr. Wasmer's visit to the bank, and all that had transpired. Upon cross-examination, it was brought out pretty clearly from this witness that he was, during all of the time embraced in these transactions, an officer or employe of the bank of which Mr. Lean was cashier, but in what capacity does not appear; and that shortly after the first visit of the defendant to the bank, which he made in response to the letter of the plaintiff, this witness, at the request of the plaintiff, agreed with him to render him all possible assistance in procuring a purchaser of the defendant's lots, and carry out the understanding between the defendant and the plaintiff in respect thereto. Mr. R. C. Dallas was called and sworn as a witness for the plaintiff, and testified that on the 3d or 4th of August, 1888, he bought lots 11 and 12 from Mr. Wasmer, and paid $3,500 for them. That he first learned that this property was for sale from Mr. George E. Lean, and again from Mr. Cady. That it was for sale for $3,500. That he had often had conversation with the plaintiff in regard to the purchase of the property. That the plaintiff recommended the property to him at different times, and had said that it was a good chance for witness to make money by buying that property and building a hotel, and that plaintiff and his associates would do something towards it, a hundred or two dollars or so. Upon cross-examination, this witness stated in full that he purchased the property. That plaintiff was present when he purchased it.

That he was present both on the 3d and 4th days of August. That at the conversation in the back room of the bank, of the 3d day of August, referred to by Mr. Cady, witness and defendant agreed upon the business and the price, according to what witness Cady stated. That the sale was then made and agreed upon on the 3d, but not secured until the 4th. There was nothing paid on the purchase on the 3d, the actual payment and exchange of papers was made on the 4th. That negotiations were all done in the back office of the bank, and witness had nothing to do with it. The sale was not consummated until the 4th. That witness paid Charles Wasmer $3,500. The First National Bank advanced $2,500, and there was a note went in for $1,000. This was all turned over to Mr. Wasmer. Witness further stated that he did not know the actual date that the sale was consummated. That