Burns v. City of Fairmont.

twenty-four consecutive hours, much less for six days. By the terms of the contract the city was to pay when the work was finished and tested and shown to fulfill the conditions of the contract. The fact that the plaintiff partially tested the capacity of the wells shows that it was his understanding of the contract that he was required to demonstrate by practical means the quantity of water they were capable of supplying. The parties having thus construed the contract, we are warranted in adopting the same construction. Should the plaintiff yet make the required test he can recover.

The resolutions of the city council, under date of August 20, and signed by Mr. Burns, recognize that only a partial test had been made and that the council were not fully satisfied with the supply of water. It does not appear that any test was ever made after the payment of the $1,300. Before the plaintiff could recover we think it was his duty to establish by evidence that the wells had the capacity to furnish the quantity of water called for by the

contract.

The fact that the city has been using the wells and machinery does not waive the terms of the contract or prejudice the rights of the city. The plaintiff expressly agreed that it should not. There being no conflict in the evidence, and the plaintiff having failed to show that it had furnished the city the requisite supply of water, the court did right in instructing the jury to return a verdict for the defendant.

The plaintiff cannot complain of the failure of the court to reduce to writing its instruction to the jury. The parties stipulated that the court should instruct orally. (Fitzgerald v. Fitzgerald, 16 Neb., 414.)

The last contention is that the court erred in sustaining the defendant's objection to several questions propounded by the plaintiff to the witness Henry. Error cannot be predicated thereon, because the plaintiff made no offer to prove the facts sought to be introduced in evidence. (Math

Burns v. City of Fairmont.

ews v. State, 19 Neb., 330; Masters v. Marsh, Id., 462; Lipscomb v. Lyon, Id., 522.)

There is no reversible error in the record, and the judgment is affirmed.

THE other judges concur.

JUDGMENT AFFIRMED.

INDEX.

Abatement. See BASTARDY.

Account Stated. See LIMITATION OF ACTIONS, 1, 2.
Accounting. See PARTNERSHIP, 2.

Actions. See BANKS, 4. COUNTIES. JOINDER OF CAUSES.
OPTION. PARTIES.

1. On fire insurance policy is transitory in its nature, and may
be brought wherever service can be had on the company,
though the contract is made in Iowa where the statutes
provide in what counties an action may be brought on the
policy. Insurance Co. of N. A. v. McLimans........

.... 657
2. Against a national bank to recover the penalty fixed by
sec. 5198, Rev. Stats. U. S., for taking usury, may be
brought in any county or district court of the county
in which the bank is located, if such court have juris-
diction of the amount involved. Schuyler Nat. Bank v.
Bollong.............
...........684, 691

Actions Quia Timet.

1. Neither party may have two trials in. Mollie v. Peters..... 671
2. Where both parties, by their pleadings, claim the same

tract of land, and each asks to have his title quieted, it is
too late after decree for the losing party to claim for the
first time that the proper remedy was ejectment. Id.

8. Evidence examined and found to sustain the decree of
the court below quieting title to the real estate in con-
troversy. Baldridge v. Foust........

Adverse Possession.

Occupation under mistake constitutes.

259

Obernalte v. Edgar..70, 83

Affidavit. See CONTINUANCE.

Agreements. See CONTRACTS.

STIPULATIONS.

Alimony. See JUDICIAL SALES, 3, 4.

1. In apportioning, the court will consider ability of hus-
band, wife's estate, if any, and the situation of the parties.
Small v. Small..

845

.........

2. An allowance of $20 per month, in addition to the home-
stead, held, under the circumstances, to be excessive. Id.. 846
Alteration.

1. Of chattel mortgage; evidence examined and found not
to establish. Gandy v. Dewey.........

..... 179
2. Where a note is dated Aug. 1, 1886, payable five months
after date, and the defense, in an action by the indorsee,
is want of consideration and indorsement after maturity,
and by inspection it appears that the indorsement in pen-
cil of "Oct. 1, 1887," was rewritten in ink as "Oct. 15,
1886," the note is not admissible without evidence ex-
plaining the alteration. Johnson v. First Nat. Bank......... 796
Amendment. See LARCENY, 3. PLEADING, 8, 11, 12.
Answer. See PLEADING.

Liberally construed in case stated and held sufficient after
verdict. Beels v. Flynn..........

Appeal. See ELECTIONS, 3, 4. REVIEW.

575

1. Notice of, not necessary in order to confer jurisdiction on
supreme court. Schuyler v. Hanna.......
..... 604
2. Not essential to such jurisdiction, that the record should
contain the depositions, testimony, or proofs offered în
evidence in the lower court. Id..................

3. When taken without the filing of a supersedeas bond, and
resulting in the reversal of a decree quieting the title to
real estate in a party to the action, does not affect the title
of a bona fide purchaser under such decree. Parker v.
Courtnay........

602

.... 608

4. The allegation that a party sought in good faith to dismiss
an action which he had brought before a justice of the
peace, and that defendant appeared and obtained an ad-
journment until a time when plaintiff was compelled to
remove from the county, and afterwards fraudulently pro-
cured a judgment in his favor, of which plaintiff did not
learn until about a year and a half after its rendition,
would not, if proven, be sufficient to extend the time for
taking an appeal under sec. 1007 of the Code; even though
plaintiff was a foreigner, and his failure to understand
the English language may have caused him to be misin-
formed by the justice. Miller v. Camp........

Appearance. See ATTORNEYS, 1, 2.

......415-16

1. Taking of stay is. Franse v. Armbuster....

2. Of an attorney when unauthorized, confers no jurisdiction
on the court. Vorce v. Page...........

*****...........................

469

297

Appraisers.

Purchase by, at judicial sale not void as against third parties

who have no interest in the matter. Reno v. Hale.......... 652

Appraisement. See DAMAGES.

Assault. See RAPE.

Assignment. See NOVATION.

Assumpsit. See CONTRACT, 3. PARTNERSHIP, 1. VENDOR
AND VENDEE, 3.

1. In an action to recover the value of certain services, an
allegation in defendant's answer that plaintiff never, at
defendant's request, performed the services claimed, and
defendant never promised to pay for the same, is an ad-
mission that the services were rendered as claimed. Smi-
ley v. Anderson............

2. The question whether or not such services are voluntary,
must be determined by the jury from the evidence. Id.
Attachment. See STOPPAGE IN TRANSITU, 2.

of goods alleged to be fraudulently conveyed, upheld. Kir-
kendall v. Shorey.........

Attorneys. See SUMMONS.

102

....645-6

1. Are presumed, where they appear in an action, to be au-
thorized by the party whom they claim to represent. Vorce
v. Page..........

296

2. Such presumption is rebuttable, and the special finding of
a jury that the appearance of counsel in certain proceed-
ings was unauthorized, held, conclusive. Id.................296-7
3. Are entitled to a fee of $25, provided for in a mortgage in
case it should be foreclosed; the mortgage being executed
while the law allowing attorneys' fees was in force. Che-
ney v. Campbell............

......................

379

1. Supreme court has jurisdiction to appoint receivers of, in
a proper case. State v. Commercial Bank..........................
682
2. Property and assets of, when they have ceased to do a
banking business, constitute a trust fund for the payment
of debts, and the right of creditors to the corporate prop-
erty are superior to those of stockholders, or, the assignees
of insolvent stockholders. Id................

3. Any county or district court of the county in which a na-
tional bank is located has jurisdiction in an action against