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rights which would be prejudiced by permitting the defendants to succeed in their defense. We conclude that the Butlers have wholly failed to use the diligence and act with the promptess required. Other stockholders have been compelled to contribute more than 60 per cent. of the par value of their stock for the purpose of discharging corporate liabilities, and it is their right to insist that the Butlers contribute their just proportions.

It is objected that the defense of laches interposed to the claim of appellants should have been pleaded in a reply, and that, as it was not, it ought not to be considered. We do not find that the objection was presented to the district court, and we do not think it should be sustained now.

Judgment was rendered in favor of plaintiff for $2,398.35, besides attorney's fees and costs. The amount due on the note at the date of the judgment, which was January 4, 1890, was $2.380.08. But plaintiff held $350 to the credit of the Butlers as an unpaid dividend on their stock, for which an accounting was asked by them. That should have been deducted, and judgment rendered for $2,030.08 and an attorney's fee and costs. The judgment of the district court will be modified to that extent, and in other respects approved. Modified and affirmed.

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and of such width and depth as shall be necessary. Held, that the fact that part of the excavation was through rock will not entitle plaintiff to extra compensation, though neither party contemplated that rock would be met, and parol evidence of that fact is inadmissible.

Appeal from district court, Polk county; MARCUS KAVANAGH, Jr., Judge.

This is an action to recover for alleged extra work in building a brick sewer under a written contract with the defendant. There was a trial by jury, and a verdict and judgment for the plaintiff. Defendant appeals.

Detrick & McMartin and Hugh Brennan, for appellant. Kauffman & Guernsey and Macey, Sweeney & Jones, for appellee.

ROTHROCK, J. The contract which the plaintiff undertook to perform was to construct a brick sewer in the city of Des Moines, according to certain written plans and specifications. The plaintiff was to make the excavation, furnish the materials, and complete the work for $4.44 per lineal foot. He was to perform all the labor under the direction of the city engineer, and to furnish all the materials necessary to construct and complete the work he undertook to perform. In making the excavation the plaintiff claims that it was necessary to remove a large quantity of rock in order to put the sewer in place, and that, when the contract was made,

the parties thereto supposed that earth excavation would alone be required. The evidence shows that the excavation of the rock imposed upon plaintiff an expenditure of several hundred dollars in addition to what would have been incurred if there had been an excavation wholly composed of earth. This is the foundation of plaintiff's demand against the city. The claim of the plaintiff must be determined by the contract, and we may here say at the ontset that there is no ambiguity in the instrument that is susceptible of explanation by oral evidence. By the very terms of the contract the plaintiff bound himself"to furnish at his own proper expense all necessary material and labor, and excavate and build in a good, firm, and substantial manner," the sewer in question. It was provided in the specifications that "the contractor shall make all necessary excavations for the sewer proper as well as for the appurtenances. The excavations are to be made in such directions and of such widths and depths as shall be necessary." If these provisions of the agreement of the parties are to be construed by the natural meaning of the language employed, there is no ground upon which the plaintiff can be permitted to recover. He was bound to make the excavation without regard to the character of the substance to be removed, whether clay, sand, quicksand, hard-pan, or stone. The fact that the excavation required labor which did not enter into the contemplation of the parties when the contract was made will not excuse a performance for the consideration agreed upon. The facts were equally within the knowledge or means of knowledge of each of the parties, and they must be held to its performance, and are not entitled to relief from hardships against which no relief can be predicated from the agreement. Owens v. Butler Co., 40 Iowa, 190. That case was determined in 1875, and it is said therein that the principle above announced is elementary. It is to be found in every textbook upon contracts, and why the court permitted the plaintiff to introduce parol evidence to show that both parties supposed there was no rock formation in the line of the proposed sewer is more than we can understand. It was a plain and palpable violation of that other elementary principle that it is not competent to contradict the language of a written contract by parol evidence.

2. But it is claimed by counsel for appellee that the contract did not absolutely provide that rock excavations should be made. The clause relied upon is found in the specifications, and is as follows: "Whatever precaution unforeseen circumstances may render necessary in the judgment of the engineer in order to make the sewer both unyielding and impervious shall be taken, and all extra work or materials rendered necessary thereby which may be ordered by the engineer shall be paid for on his estimate, and at a price to be determined by him. Any work not herein specified, which may be fairly implied as | included in this contract, of which the city engineer shall judge, shall be done by the contractor without extra charge." The

first paragraph of this part of the specifications has no reference to the excavation. It refers to that part of the work necessary to make the sewer "unyielding and impervious," and any extra labor or expense in the way of strengthening the sewer by additional courses of brick or otherwise, or by the use of additional cement or other appliance, to render the sewer impervious. It does not refer in the remotest degree to the excavation necessary to be made, and in which the sewer was to be placed. The last paragraph, in our opinion, has even less bearing upon the claim of plaintiff than the first. It applies to any work not specified in the contract, and which is not fairly implied as included therein as extra work. But the excavation is plainly provided for in the contract. It is not necessary to imply anything to reach that conclusion. The contract is express upon this part of the work. There was no ground for any extra estimate to be made by the engineer for removing the rock, and all of his acts in that direction were without authority from the city council. We need not discuss this case further. The court should have excluded the parol evidence, and, instead of instructing the jury as matter of law that the plaintiff was entitled to recover, the motion of the defendant to direct the jury to return a verdict for the defendant should have been sustained. Reversed.

HENDERSON V. CHICAGO, R. I. & P. RY. Co.

(Supreme Court of Iowa. June 2, 1891.) TRESPASS-Verdict-EXCESSIVE DAMAGES.

In an action for trespass to land, when the jury find specially that defendant, for four years and a half, occupied one-twelfth of an acre of plaintiff's land, which was of the value of $50 per acre, and allowed no damages save the rental value of the land occupied, a verdict for plaintiff for $50 is excessive.

Appeal from district court, Appanoose county; H. C. TRAVERSE, Judge.

This is an action to recover damages for an alleged trespass upon certain land, the property of the defendant. There was a trial by jury. Verdict and judgment for the plaintiff. Defendant appeals.

Thos. S. Right and Tannehill, Vermillion & Vermillion, for appellant. G. D. Porter, for appellee.

ROTHROCK, J. This appeal involves a small amount of money, and, considering the amount in controversy alone, it is of very little significance. We are required, however, to give the question involved the same consideration that is accorded to cases of more consequence to the parties. The plaintiff is the owner of certain land in the vicinity of the city of Centerville. The defendant owns and operates a line of railroad running on or near the line of plaintiff's land. The plaintiff leased part of his land to a coal company, which company was engaged in mining coal. In 1875 or 1876 the defendant, without any express permission from the plaintiff, entered upon his land, and laid down a spur track to a bank of coal slack, for the purpose of removing the slack, which was de

posited on the plaintiff's land with his consent. This track remained upon the plaintiff's land until some time in the spring of 1889, when the defendant removed it. This action was commenced on the 27th day of August, 1889. There is not much question, from the facts disclosed in evidence, but that the plaintiff is entitled to recover for the use and occupation of his land for the period of five years previous to the commencement of the action. This would embrace about four years and six months. A number of questions are discussed by counsel for appellant, touching the right to maintain any action, because of the claimed assent of the plaintiff to the use of the land by defendant. We think that the evidence did not demand a finding that the possession was by reason of a license by plaintiff, and we think the court properly instructed the jury that the plaintiff was entitled to recover the fair rental value of the land for the five years next preceding the commencement of the suit. But defendant claims that the verdict of the jury is excessive, and, as we think the claim is well founded, it is necessary that we should give that question some consideration; and, to demonstrate the conclusion we reach, it is only necessary to set out the findings of the jury upon certain special interrogatories, and briefly consider certain evidence in explanation of these findings. The special interrogatories and answers thereto are as follows: "(1) How much of the plaintiff's land did defendant take possession of, if any? Answer. About one-twelfth of an acre. (2) When did the defendant take possession of said land? A. In 1875 or 1876. (3) How much damage, if any, do you allow for damage to the land that accrued more than five years next before the commencement of this suit? A. Not anything. (4) How much damage do you allow, if any, for rental value that accrued more than five years before the commencement of this suit? A. Not any. (5) How much damage do you allow, if any, for injury done to the land itself within five years next before the commencement of this suit? A. Not any. (6) How much do you allow, if any, for rental value of the land in question during the five years next before the commencement of this suit? A. Fifty dollars, ($50.) (7) How much do you find the value of said land now in question was per acre at the time defendant put down its track on it? A. We have no evidence in the case to go by. (8) What do you find the value of said land was last spring per acre? A. Fifty dollars, ($50.) (9) Do you allow anything for moving the dirt that came out of air shaft? If so, how much? A. Not anything. (10) Do you allow anything for restoring soil? If so, how much? A. Not anything. (11) Did the plaintiff know that the track in question was being put in at or about the time it was put in? A. He did not until about the time the track was finished. (12) Did he object to the track being laid on his land? If so, when? A. He did not. The following is propounded by the court: "Did the defendant, through its servants, agents, or employes, take possession of said strip

of land without the knowledge or consent of plaintiff? A. Yes; they did."

A claim was made by the plaintiff that the land itself was injured by digging up the soil, and by depositing cinders thereon. There was a conflict in the evidence on these questions, and it will be observed that the jury, in estimating the damages, entirely excluded them from their consideration. The verdict of $50 is founded exclusively on the rental value of one-twelfth of an acre of land, which is of the value of $50 an acre, for a period of about four years and a half. There is no claim or pretense that any land of the plaintiff, other than the one-twelfth of an acre, was in any way affected or damaged by any act of the defendant. Upon the basis of the finding of the jury, if the defendant had occupied one acre, the rental value for the same time would have been 12 times the amount of the verdict, and the plaintiff would have recovered $600 for the use of an acre of his land for four years and a half. It is scarcely necessary to say that there is no competent evidence in the case which authorizes any such a verdict as the jury found. There is no evidence that the land had any peculiar adaptation to any special use. It is true it is near the city of Centerville, and no doubt is worth $50 per acre, as the jury found; but that is no reason why its rental value should be placed at the rate of more than $150 an acre. The judgment of the district court is reversed.

SMITH V. HESS.

(Supreme Court of Iowa. June 2, 1891.) CUSTOM AND USAGE - CONSTRUCTION OF LEASECOUNTER-CLAIM-COSTS.

1. In a counter-claim by defendant for commissions for the sale of real estate, though there is evidence of a custom in the neighborhood that commissions at a certain rate should be allowed, there is no presumption that plaintiff knew of the custom, or that the parties contracted in reference thereto, where the alleged usage was left uncertain by the evidence.

2. In an action for rent accruing under a lease which requires the lessee to make all necessary interior improvements at his own expense, while outside improvements are to be charged to the lessor, the lessee cannot set up a counterclaim for a furnace put in the house by him.

3. Though defendant admits plaintiff'sclaim, and by the verdict it is reduced by a counterclaim, the costs of the trial are properly taxed to defendant where they arose principally from a counter-claim which was denied him, and there are no facts to enable the court to make an intelligent apportionment of the costs.

Appeal from district court, Polk county; CHARLES A. BISHOP, Judge.

Plaintiff was the owner of an hotel in the city of Des Moines known as the "Given House." He leased the property to the defendant by a written lease. He brought this action to recover the rent agreed upon between the parties. The defendant by his answer admitted that the plantiff's claim was correct, and pleaded some four counter-claims, upon which he demanded judgment against the plaintiff. The cause was tried to a jury, and there was a verdict and judgment for the plaintiff for the amount of his claim, less about $130. The defendant appeals.

Callender & Smith, for appellant. John A. McCall, for appellee.

ROTHROCK, J. 1. It appears from the evidence that while the defendant was in possession of the hotel the plaintiff effected a sale or trade of it to one Crabb. He received no money for the property. It was mortgaged for about $12,000, and Crabb assumed the payment of the mortgage, and conveyed to the plaintiff certain land in the state of Kentucky. The actual value of the hotel property was from $12,000 to $15,000. The defendant claims that he is a real-estate broker, and that by a verbal agreement the plaintiff authorized and employed him to effect a sale or exchange of the property, and that no sum was fixed as a compensation for his services in that behalf. He claims that he effected the sale or exchange that was made to Crabb, and that the customary and reasonable compensation for his services amounted to 5 per cent. on the first $1,000 of the consideration for the sale, and 2% per cent. on the balance of the consideration, and that the aggregate commission was $862, for which sum he demands judgment. This was the principal matter in controversy on the trial of the case. The evidence as to whether the defendant was employed to make a sale of the property, and whether it was through his efforts that a disposition of the same was made, was in conflict. The defendant sought to show by dealers in real estate that there was a general custom at Des Moines which established the commission for the sale of real estate at 5 per cent. of the first $1,000 of the consideration, and 2% per cent. on the residue. The evidence upon this question appears to have been quite uniform that the above rates were the customary charges of real-estate agents. But there is a decided conflict in the evidence as to what sum should be the basis upon which the commission should be computed. In the case at bar the plaintiff claims a commission on some $33,500 upon an exchange of property, and the property itself was of very little more value than the mortgage upon it which the purchaser assumed. The evidence leaves it in very great doubt whether there was any usage which the parties should be held to have had in contemplation when the alleged contract was made. The court instructed the jury that if they found that there was a custom it was necessary that it should be shown that the plaintiff had knowledge of its existence. It is claimed by counsel for appellant that this part of the charge to the jury was erroneous, because the law is that the plaintiff is presumed to have knowledge of the custom, and the burden would be on him to show the contrary. This is the rule where the custom is so general and well established that all persons dealing in the business should be presumed to have knowledge of it. As is said in Foye v. Leighton, 22 N. H. 75: "It must appear to be so well settled, so uniformly acted upon, and of so long a continuance as to raise a fair presumption that it was known to both contracting parties, and that they contracted in reference to it, and in conformity with it."

See 2 Pars. Cont. 542, 543. Applying this rule to the facts disclosed in evidence, the instructions under consideration were not prejudicial to the defendant. Indeed we think that there was no evidence authorizing a finding that any custom existed. As we have pointed out, it was uncertain what the alleged usage was, and in that state of the record there was no presumption that the plaintiff had any knowledge upon the subject, and no ground for holding that the parties contracted with a view to any custom.

2. The lease contained the following stip. ulation: "It is agreed that lessee shall make all improvements he may deem necessary in the house at his own expense, but all outside and permanent improvements to be done at the expense of the lessor, and costs of same to be deducted from the accrued rents." The defendant placed a heating furnace with attachments in the house. He claims that the cost of the same should be deducted from the rent. The court held that, the furnace not being outside the house, the cost thereof was not properly chargeable to the plaintiff, and oral evidence offered by the defendant in connection with the procuring of the furnace and placing it in the house was excluded. In our opinion, the ruling of the court is correct. There is nothing in the language of the lease which authorizes parol evidence varying or explaining its meaning. It plainly provides that improvements in the house deemed necessary by defendant shall be done at his own expense.

3. The whole costs of the action were taxed to the defendant. A motion of the defendant to retax the costs, and make an equitable apportionment thereof, was overruled. This is claimed to be erroneous. It is true that the defendant admitted the plaintiff's claim, and that the amount thereof was reduced to some extent by the counter-claims filed by the defendant. But it appears from the record that nearly the whole cost of the trial resulted from the attempt to establish the claim for a commission for effecting a sale of the property. It is quite evident from the result of the trial that no part of this claim was allowed by the jury. There were, therefore, no facts from which the court could make an intelligent apportionment of the costs. The judgment of the district court is affirmed.

MCCLAIN V. INCORPORATED Town of GarDEN GROVE.

(Supreme Court of Iowa. June 2, 1891.)

BRIDGES-DEFECTS-PROXIMATE CAUSE.

Defendant maintained a bridge 12 feet wide, with side rails 2 feet high, across a railroad track. Plaintiff was driving across the bridge in a sleigh, when the horse fell against the rail, which broke, and precipitated horse, sleigh, and plaintiff to the track below. The horse was dead-either from heart disease or from choking by the harness-when he fell. Held that, even if there was a defect in the bridge, it was not the proximate cause of plaintiff's injury, and defendant is not liable therefor. Appeal from district court, Decatur county; R. C. HENRY, Judge.

Action to recover for personal injuries alleged to have been caused by the wrong of defendant. There was a judgment in favor of defendant. The plaintiff appeals.

E. W. Curry and S. A. Gates, for appellant. S. H. Amos and R. L. Parrish, for appellee.

ROBINSON, J. In January, 1888, defendant controlled and was responsible for the condition of a certain bridge over a railway within its territorial limits. The bridge was 12 feet wide, provided with side railings, and reached by means of steep approaches. In the month named one Ira Miller invited plaintiff and another lady to take a sleigh-ride for pleasure. The invitation was accepted, and the party started in a cutter drawn by one horse. In the course of the ride they attempted to cross the bridge described. The horse drew the cutter with its load up the steep approach, and onto the bridge. When a part of the way over, the horse suddenly fell against the railing on one side of the bridge, broke it down, and dropped off, drawing with him the cutter and its lady occupants. Plaintiff fell to the ground be. low and received the injuries for which she seeks to recover in this action. She claims that the defendant was negligent in maintaining a bridge of insufficient width, in not providing it with sufficient railings, and in permitting it to be used without sufficient railings. Defendant avers that the accident occurred without fault on its part, in consequence of the carelessness of plaintiff and the negligence of Miller, and insists that the alleged defects in the bridge were not the proximate cause of the injuries received by plaintiff. After the evidence had been submitted on the part of both parties the court sustained a mo. tion of defendant to direct the jury to return a verdict in its favor. A verdict was returned in favor of defendant by direction of the court, and judgment was rendered thereon. The first ground alleged in the motion for a verdict was that the evidence showed that the defects alleged in the bridge were not the proximate cause of the injury. It appears without contradiction that there was snow about half way up the approach to the bridge, and none on the bridge. The horse pulled steadily and without apparent difficulty in going onto the bridge, fell without warning of any kind, and appears to have been dead when he fell. Miller, who owned the horse, is of the opinion that its death was caused by heart disease, although it may have been choked by the breast harness in which it was pulling at the time. To entitle plaintiff to recover it must be shown that the injuries of which she complains were the natural and proximate result of the alleged defects in the bridge. West v. Ward, 77 Iowa, 324, 42 N. W. Rep. 309, and cases therein cited. Under the evidence submitted we do not think that is a matter about which there can be any controversy. The horse which Miller was driving fell because it was diseased, or not properly harnessed and driven The width of the bridge and the condition of the railing had nothing to do with its fall and death. Had it not fallen, the accident

would not have occurred. The railing of the bridge was about 21⁄2 feet high, and it may be true that, had it been of sufficient height and strength to bear the weight of the horse, the accident would have been avoided. But defendant was not an insurer against accidents. 2 Dill. Mun. Corp. § 789; Raymond v. City of Lowell, 6 Cush. 524. It was its duty to provide for the use of the bridge in the usual manner, and to guard against ordinary contingencies, or those which might be reasonably apprehended. It was its duty to provide railings of sufficient height and strength to prevent horses and other animals from walking off at the side, and to resist any weight and pressure which would be upplied under ordinary circumstances; but it was not its duty to provide a railing which would successfully resist the weight of a horse of ordinary size precipitated suddenly against it. It is said that if the bridge had been wider the horse might have been turned when it was discovered that there was no snow on the bridge, but there is no evidence to justify the claim that the horse would have been turned under any circumstances. On the contrary, it is shown that Miller knew the bridge was bare before he drove onto it. We conclude that the condition of the railing and the narrowness of the bridge were not the proximate cause of the injuries sustained by plaintiff. See De Camp v. Sioux City, 74 Iowa, 392, 37 N. W. Rep. 971; Handelun v. Railway Co., 72 Iowa, 710, 32 N. W. Rep. 4; Knapp v. Railway Co., 65 Iowa, 93, 21 N. W. Rep. 198. The case of Houfe v. Town of Fulton, 29 Wis. 297, is relied upon as sustaining the claim of appellant. The facts involved in that case were somewhat similar to those under consideration, but it appears that the bridge was without a railing, and that the injury might not have occurred had there been a suitable one. The essentials of such a railing were not considered, and much of what was said in that case is in harmony with conclusions we have announced. We find it unnecessary to determine some of the questions discussed by counsel for appellant, since the one determined is controlling. In our opinion, the evidence shows without conflict that defendant is not liable for the injuries sustained by plaintiff, and the case was properly taken from the jury. Affirmed.

MUIR V. MILLER.

(Supreme Court of Iowa. June 2, 1891.)

REPLEVIN-COUNTER-CLAIM.

A father, 80 years old, divided his entire property, consisting of money, notes, and securities, among his 7 children. In one of several actions brought by his administrator against each of the children to set aside such distribution as obtained by undue influence, and to recover the specific personal property, a cross-petition set out the facts, and denied undue influence, and asked that the case be consolidated with another like case against another of the heirs, that equity take jurisdiction of the controversy, that plaintiff's title be quieted, and that defendant be forever enjoined from disputing the validity of such division. Held, that the cross-petition was a counter-claim within Code Iowa, § 3226, providing that in actions for the recovery of specific

personal property no counter-claim shall be allowed, and a demurrer thereto was properly sus tained. Affirming 47 N. W. Rep. 1011.

66

On rehearing.

GRANGER, J. It is perhaps due that one point presented by a petition for rehearing should receive notice in an additional opinion. In the first division of the opinion it is held that the cross-petition, to which a demurrer was sustained, presented a counter-claim. The correctness of the holding is vigorously assailed, and, as authority against the holding, we are referred to Stuart v. Hines, 33 Iowa, 60; Burroughs v. McLain, 37 Iowa, 189; Walker v. Land Co., 66 Iowa, 751, 24 N. W. Rep. 563; Kavaleir v. Machula, 77 Iowa, 121, 41 N. W. Rep. 590; and Haywood v. Seeber, 61 Iowa, 576, 16 N. W. Rep. 727. These cases, in the main, hold to a rule like this: That where facts pleaded are intended as defensive matter only, but a relief is asked which such defensive facts would authorize, it will not be regarded as a counterclaim. In most, if not all, of such cases, it will appear, upon examination, that the relief asked would result, by legal operation, as well without as with the prayer for relief. In none of the cases referred to does it appear that a counter-claim was intended, which is not true of the case at bar. In view of our statute, we need not consider the technical definition of the terms "counter" and "counter-claim.” An amendment to the answer is entitled Additional answer and cross-petition." Plaintiff's petition in this case seeks recovery from the defendant because be obtained the property from Samuel J. Miller when he was in such a condition of mind that he was incapacitated to contract or transact business. The crosspetition is too lengthy to reproduce in an opinion, without a more urgent demand than appears here, but it is there claimed that, "even though it should be found that the decedent was not at the time of said division of sound mind, or that the division was made by reason of undue influence," still, because of other facts that are recited in the cross-petition, it is claimed the defendant should have the title confirmed in him, and to that end have the cause consolidated with other causes, in which this defendant is not a party, and the cause, when consolidated, tried by equitable proceedings, and the title of other property determined against the plaintiff. Thus the cross-petition not only seeks to change the kind of action, . but the parties and the subject-matter of the action, and the judgment sought is one that could not be obtained under a merely defensive plea. The prayer asks an adjudication on the cross-petition, while the answer in other parts and respects pleads defensive matter. It is not the office of a cross-petition to plead defensive matter, but to present a cross-demand. Under the revision, a cross-demand was recognized, and was new matter pleaded by the defendant against the plaintiff, and on which the defendant might have brought an action when the suit was commenced. Revision, § 2891. If the cross-petition presents a cause of action,-which we may

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