does now declare that it is not her intention to accept the provisions of the will of her late husband to the exclusion of her right to have her distributive share of his real estate assigned and set off to her." On the 8th day of May, 1889, appellees filed a paper asking the court to direct the clerk to enter the acceptance of record, and on the same day they filed an answer to the petition for dower or distributive share, in which they set up the acceptance of appellant to take under the will. There were exceptions filed to the motion to have the acceptance entered of record, and on the 18th day of September this side issue as to whether the acceptance should be entered of record was submitted to the court on all these motions without any evidence, and the court, without determining the effect thereof, ordered that the acceptance be made of record. The case which the parties had in court for trial and determination was not disposed of, and, as we understand it, is still pending. The controversy we have presented to this court by this attempted appeal is upon a mere question of evidence in the case. In view of the fact that appellant made a disavowal of her election, and asked to withdraw it before it was acted upon by the parties in interest, the order of the court directing the clerk to enter it of record did not give it any additional force. The order did not prevent the appellant from showing upon the trial of the action for dower that she had good grounds for the withdrawal of the election. That question was not determined by the order to enter the acceptance of record. Appellant should have, by a proper pleading in her proceeding for the admeasurement of dower, raised all of the questions which she presents by this attempted appeal. Dismissed.

GLEASON V. CHICAGO, M. & ST. P. RY. Co.

(Supreme Court of Iowa. Feb. 7, 1891.) REVIEW ON APPEAL-CONFLICTING EVIDENCE.

An agreement between a member of a firm engaged in procuring and selling options for coal lands and a railroad company, to pay such member a commission on the sale, when not fraudulent as to the company, will not, on appeal, be declared void, as against public policy, because of a condition to keep secret the payment of the commission, where the evidence is conflicting as to whether or not the other partner had knowledge of the agreement.

Appeal from district court, Keokuk county; J. K. JOHNSON, Judge.

Action to recover an amount alleged to be due by virtue of an oral agreement to procure an option for the purchase of coal lands. There was a trial by the court without a jury, and a judgment in favor of plaintiff for $5,672 and costs. The defendant appeals.

Chambers, McElroy & Roberts, for appellant. G. W. Lafferty, E. S. Sampson, and H. W. Gleason, for appellee.

ROBINSON, J. In the year 1881 the plaintiff and one W. N. Hoover entered into an agreement to procure and sell options for the purchase of coal lands in the vicinity

of Oskaloosa. As plaintiff was known to be in the coal business, it was arranged that Hoover should procure the options in his own name, and that plaintiff should do most of the work required to sell them. They were to share equally in the profits of the business. Options were procured for a large amount of land, as contemplated by the agreement. The plaintiff commenced negotiations for their sale to different persons, and finally effected a sale for the benefit of defendant, through its agent, one H. W. McNeill. An agreement in writing was signed by plaintiff and Hoover, which gave to S. S. Merill, trustee, the right to purchase certain coal lands, amounting to about 1,250 acres, at the agreed price of $100 per acre. To procure that agreement, the defendant, by McNeill, agreed verbally with plaintiff to pay him $5,000, exclusive of the price named, for the land. Of that sum, $1,000 were to be paid when the agreement should be signed, and the remainder when the title to the land should be vested in the trustee of defendant. The first payment was made as agreed, and the defendant exercised the option which the agreement in writing gave, and procured the title to the land which it described, but refuses to pay the remainder of the $5,000. This action is brought to recover that remainder. On a former submission of this cause, an opinion was filed reversing the judgment of the district court. A rehearing was ordered, and the cause is again submitted.

1. The appellant insists that the agree ment in suit is void, as being against pub. lic policy The evidence shows that one of the conditions of the agreement was that plaintiff should not disclose it to any one, and defendant insists that it was to be kept from the knowledge of Hoover, and that it was designed for and inured to the sole benefit of plaintiff. The testimony of Hoover tends strongly to support the claim of defendant. He states that be had no knowledge of the agreement; that the partnership matters between himself and plaintiff have been settled, but that the agreement in suit was not referred to, and that no account of the money received and to be received by virtue of it was rendered. McNeill testifies that the condition as to secrecy was required by plaintiff; and a witness named Wightman, who was present when the written option was delivered to McNeill, and the $1,000 were paid, corroborates McNeill, and states that the conversation then had was to the effect that the $5,000 were to belong to plaintiff. On the other hand, plaintiff, while admitting the condition of secrecy, claims that it was imposed by McNeil. He admits that Hoover had no knowledge of it until the settlement of their business transactions in regard to the options was had, but he claims that at that time the agreement was mentioned, and taken into account in making the settlement. It appears that the option given to defendant included 120 acres which were owned by Hoover, and 84 acres which belonged to his brother. Plaintiff claims that a commission was to be allowed for the sale of those tracts,

of which his share was $2,100; that at the time of the settlement Hoover proposed to give his check for that amount; that plaintiff declined to accept it, on the ground that he had an arrangement with McNeill, by which he was to receive something additional, and he offered to offset that against his share of the commission tendered by Hoover, and his offer was accepted; that Hoover said he knew of the arrangement between plaintiff and McNeill, and that there was a full statement, which included the amount which plaintiff had received and was to receive under the agreement in suit. Plaintiff also claims that the agreement was made for the benefit of Hoover, as much as it was for himself, and that he had never intended to retain Hoover's share. Plaintiff is corroborated in what he says as to the settlement by W. W. Haskell, who was present when it was made, and testifies that it was agreed between the parties that Hoover and his brother should be allowed the full price for their land paid by defendant, and that plaintiff was to have the claim in suit. There is much in the record which tends to support the theory of defendant, and the district court might well have found that it was fully established. But this case is not triable here de novo, and the most that can be said is that there is such a conflict in the evidence that different persons might reach different conclusions from it. We cannot say that the judgment is so unsupported by the evidence that it should be set aside. The district court doubtless found that, in making the agreement in suit, the plaintiff acted in good faith, for the joint benefit of himself and his partner, and without intent to defraud; and that in their settlement it was fully considered, and due account taken of the benfits it conferred. There was evidence to support those findings. The agreement is not shown to have been fraudulent as to defendant. On the contrary, its interests may have been thereby promoted. We conclude that the agreement has not been shown to be void as against public policy, but that it is valid.

2. The conclusions we have announced make it unnecessary to determine other questions discussed by counsel. The judgment of the district court is affirmed.

SICKLES et.al. v. BRABBITTS et al. (Supreme Court of Iowa. Feb. 10, 1891.) BAILMENT-INSURANCE BY BAILEE-EVIDENCE.

1. In an action for the value of goods destroyed by fire while in possession of a bailee, received under an agreement to hold, pay freight upon, and keep them fully insured for the owner's benefit, it was claimed by the bailee (and denied by the owner) that prior to the fire there had been a full settlement of all transactions in relation to the property under the contract. The evidence was conflicting. Held, that a verdict for defendant would not be disturbed.

2. The verdict implied a finding that there had been such a settlement, and therefore the admission of evidence that the bailee afterwards insured the property to the extent of his charges against it could not have been prejudicial to the bailee.

3. Even though the bailee, after the settlement, insured the property to its full value for his own benefit, and received the insurance claim thereon. money after the loss, the bailor could have no

Appeal from district court, Webster county; S. M. WEAVER, Judge.

Action to recover on an account for wagons and other property sold by plaintiff to defendant. There was a judgment on a verdict in favor of M. Brabbitts & Co., and another judgment on a verdict against M. Brabbitts, one of the firm which is a defendant in the action. Plaintiffs appeal.

Smith & Morris and A. N. Botsford, for appellants. Albert E. Clark, for appellees.

BECK, C. J. 1. The original petition declares upon an account for property received by defendants, which was to be sold and accounted for to plaintiffs, and seeks to recover a balance due thereon. It is shown that the property was received by defendants under an agreement that they should receive, hold in store, pay freight upon, and keep fully insured the property for plaintiffs' benefit; that the property was destroyed by fire, and the defendants claimed and collected the insurance for their own benefit, and failed to account therefor to plaintiffs. The defendants, in their answer, show that prior to the loss of the property by fire they had a full settlement with plaintiffs of the transactions growing out of the property, and the contract under which they had received the property was terminated, and defendants were discharged from all obligations and liabilities thereon. They also allege that the insurance they held on the property covered only their own interest therein for freights paid and commissions. Plaintiffs, in a reply, allege that defendants, in collecting and adjusting the loss of the property, claimed and received the full value of the property, and that they are now estopped to allege the contracts with plaintiffs were not in force, and that the property was insured for less than the amount of their claim made to the company.

2. It will be observed that the issues involved the discharge by settlement of the obligation and liability of defendants to store and insure the goods, and the existence of an obligation on their part to in sure them. The point most pressed by plaintiffs' counsel is that the verdict of the jury upon these points is in conflict with the evidence. We think the evidence authorized the conclusions which the jury doubtless reached, that defendants were discharged from the original contract; that the evidence shows a full settlement of the transactions had under that contract, and the property was retained for temporary storage simply, without any agreement, expressed or implied, whereby the defendants were bound to insure the property. This was unquestionably found by the jury. Had they found differently the verdict would have been for the plaintiffs against defendants for liability arising on the original contract. The evidence upon this point is to some extent conflicting, but it cannot be said that it so lacks in

support of the verdict that it cannot be sustained.

3. The defendants were, against plaintiffs' objection, permitted to prove that they procured insurance on the property, for freight and commissions, and that they so informed the agent of the insurance company and the adjuster of the loss after the property was burned. The admission of this evidence is now complained of as erroneous. We think that, were the evidence admitted erroneously, it was without prejudice to the plaintiffs for this reason. As we have seen, the jury must have found that the contract binding defendants to insure the property was terminated. Defendants were under no obligations to insure the property for plaintiffs' benefit. If they insured the property for their own benefit to the extent of its full value, plaintiffs, having no contract with defendants for insurance, cannot recover any part of the money accruing from the insurance. If the insurance company took the insurance, and paid the loss to an amount exceeding defendants' interest in the property, that is a matter between the insurance company and defendants, and plaintiffs can claim nothing under the policy.

4. The doctrine we have just stated is recognized in instructions given to the jury, which are now complained of by counsel. For the reasons stated they are correct.

5. Another instruction was given, based upon the doctrine that the termination of the contract requiring defendants to insure che property by agreement of the parties relieved defendants of liability on account of the loss of the property, without insurance to plaintiff. It is made the ground of an assignment of error. In our opinion, it is plainly correct. Plaintiffs base their claim to recover upon the contract obligation of defendant to insure the property for their benefit. If that contract were terminated by agreement, plaintiffs have no grounds to recover. These considerations, in our opinion, dispose of all questions in the case. The judgment of the district court is affirmed.

BANGS V. BERG.

(Supreme Court of Iowa.

Feb. 10, 1891.) MECHANICS' LIENS-STATEMENT OF CLAIM-AFFIDAVIT PLEADING.

1. Where the affidavit for a mechanic's lien upon a well and pump states that the work was done and the materials furnished on dates specified in the statement of account, but the statement contains only one date, September 2, 1889, the affidavit and statement are sufficient when they together show that the contract was made August 20, 1889; that the work was finished September 2d; and that the work and labor were furnished in pursuance of the contract.

2. Where the statement contained an item for "board and horse feed," it was necessary that the complaint should set out the provision of the contract that defendant agreed, in addition to the cash consideration, to board the hands and furnish feed for the horses; and it was not prejudicial for the court to refuse to strike out this averment, together with some others, in regard to the kind of materials, though the latter were not strictly necessary.

3. An allegation that the well was completed in accordance with the contract was a sufficient averment that it furnished enough water for stock and farm purposes, as required thereby.

Appeal from district court, Wright county; J. L. STEVENS, Judge.

Action in equity to recover an amount alleged to be due for sinking and completing a well, and to foreclose a mechanic's lien therefor. A motion to strike out certain portions of the petition was overruled. A demurrer to the petition was then overruled. The defendant refusing to further plead, a decree was rendered in favor of plaintiff as prayed. The defendant appeals.

J. H. Scales, for appellant. Jamison & Secrist, for appellee.

ROBINSON, J. The petition alleges that on the 20th day of August, 1889, the plaintiff entered into an oral agreement with defendant to furnish the materials and machinery and labor required for, and to sink and put in, a tubular well, and to place therein a pump; that the tubing for the well was to be of iron, two inches in diameter; that the well was to furnish sufficient water for stock and farm purposes; that for the labor and materials required to be furnished by plaintiff the defendant agreed to board the hands and team engaged in doing the work, and to pay one dollar for each foot of the depth of the well. The petition further alleges that plaintiff performed his part of the agreement; that the well was sunk on land owned by the defendant and described, to the depth of 104 feet; that the sinking of the well was commenced on the 20th day of August, 1889, and that on the 25th day of September, 1889, the plaintiff filed in the office of the clerk of the district court of Wright county a statement for a mechanic's lien, verified by affidavit; that it was a just and true statement and account of his demand; and that the sum of $114.45 is due thereon, and unpaid. The statement, of which a copy is attached to the petition, shows a charge against the defendant of $104 for drilling and sinking the well and placing a pump therein, and a further charge of $10.45 for "board and horse feed" while putting in the well and pump. The demurrer contains numerous grounds, which will be noticed, so far as is necessary, in connection with the arguments of counsel.

1. It seems to be claimed by counsel for appellant that the statement of account is insufficient in not fixing the time when the materials were furnished and the labor performed. It is shown that the agreement under which plaintiff claims was made on the 20th day of August, 1889; that the well and pump were completed on the 2d day of the next month; and that the labor and materials were furnished by virtue of the agreement. The affidavit attached to the account states that the labor was done and the pump furnished on the dates specified in the account, and the only date therein mentioned is September 2, 1889. It is true that all the labor could not have been performed on that day; but, taking the statement and account together, and it sufficiently ap

pears that the materials and labor were furnished between the time of making the agreement and the time when it was completed, and both dates are shown. There is a technical want of accuracy, which does not in any manner affect the rights of interested parties. That it was not the result of an intention to mislead or to secure an advantage is apparent. The statement shows the claim of plaintiff, the items upon which it is based, and the time when they accrued, with sufficient fullness and accuracy for the purposes for which a statement is required. Therefore the error in statement cannot defeat the right of plaintiff to a lien.

2. It is said the statement is unnecessarily complicated, and that the court should have stricken from the petition certain averments in regard to pump, tubing, machinery, and board and feed. The petition doubtless contains some unnecessary averments, but they did not and could not result in prejudice to defendant. It was not only proper, but necessary to a recovery therefor, to plead the agreement with reference to board for hands and team. Plaintiff sunk the well and furnished necessary materials, and a pump. For that he was to be paid in money and board, and one was as much a part of the contract price as the other. We do not understand counsel to question in argu- | ment the right of plaintiff to a lien for such improvements as that in controversy.

3. It is claimed that the petition does not show that the well furnished sufficient water for stock and farm purposes It alleges in substance and effect that the well was completed according to the agree ment, and we think that was all that was required, in the absence of a motion for a more specific statement. The decree of the district court is affirmed.

FIRST NAT. BANK OF MARshalltown v. WRIGHT.

(Supreme Court of Iowa. Feb. 7, 1891.)

ACTION ON NOTE-PLEADING EVIDENCE.

1. To the complaint on a note defendant alleged a total failure of consideration, in that the note was given in consideration of the delivery of a note and mortgage to defendant, which plaintiff refused to deliver, to which there was no reply, which constitutes a denial, under Code Iowa,

2712. Held, that the question of a waiver of the breach of the condition by an acceptance of the note and mortgage after the breach was not raised by the pleadings.

2. Evidence thereof was inadmissible, under Code, § 2704, providing that, under a denial, no evidence shall be introduced which does not negative some fact the party making the controverted allegation is bound to prove.

3. Errors not assigned cannot be considered.

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

Action upon a promissory note. Defense, a failure of consideration. There was a verdict and judgment for the plaintiff, from which the defendant appealed. Cummins & Wright, for appellant. Kauffman & Guernsey and O. T. Binford, for appellee.

GRANGER, J. A principal ground of complaint by appellant is based upon the action of the district court in giving certain instructions, involving an issue not presented by the pleadings, and in admitting evidence for its support. The execution and delivery of the note were admitted by the answer, and a total failure of consideration pleaded, as to which the court said to the jury: "The defendant says that the consideration for said note was the purchase by the defendant Wright of the note for twenty thousand dollars, which has been introduced in evidence as Exhibit C, and the chattel mortgage securing the same; that, therefor, the said Wright was to pay the sum of one thousand dollars in cash, and was to give his notes, one for the sum of three thousand dollars, and one for two thousand dollars; that the said Wright paid the sum of one thousand dollars in cash, and that he executed and delivered to the said George Glick the two notes, the one for two thousand dollars being the one in suit in this action; that the consideration for said notes and money was the delivery to the said Wright of the said twenty thousand dollar note and mortgage, and that the said Glick wholly failed and refused to deliver to said Wright the said twenty thousand dollar note and mortgage, and that by reason thereof the consideration of the note sued upon in this action has wholly failed." No reply was filed, and the issues of fact for trial arose on the answer, and a denial by operation of law. Code, § 2712. The court said to the jury: "The burden of this issue is upon the defendants, and they must establish, by a preponderance of the testimony in the case, that the contract between the said George Glick and the said A. W. Wright was for the delivery of the said twenty thousand dollar note, and assignment of the mortgage securing the same, within a short time after the making of such contract. If the defendants have so proven, you should return your verdict for them, unless you should further find that the plaintiff has shown, by a preponderance of the testimony on that subject, that the twenty thousand dollar note, and the assignment of the mortgage securing the same, was afterwards accepted by the said A. W. Wright, or that such failure of consideration, if you so find there was such failure, was waived by the defendant A. W. Wright, as hereinafter explained in these instructions." The explanation to the latter clause of the instruction is as follows: "If you find from the testimony before you that the firm of Cummins & Wright, attorneys, with the authority of the defendant A. W. Wright, offered to pay the note in suit, if said twenty thousand dollar note, and mortgage securing the same, were transferred to the defendant Wright; and you further find that the plaintiff, or the said George Glick, did deliver to said A. W. Wright, or to his duly-authorized agent, the said twenty thousand dollar note and mortgage; and you further find that said twenty thousand dollar note and mortgage were accepted by the said Cummins & Wright for the said A. W. Wright, then, in that case, such facts be

ing found, you are instructed that such acceptance would be a waiver of any breach of the original contract, and the plaintiff would be entitled to recover in this action.”

It will be observed that the instructions recognized a condition of the testimony under which the jury may find, on the part of the plaintiff's assignor, (Glick,) a "breach of the original contract," which would be a finding of a failure of consideration. The instructions authorize the jury, after finding such fact, to avoid its legal effect by a finding that, after the original breach, there was such a delivery and acceptance as amounted, on the part of the defendant, to a waiver of the breach or failure of consideration. The issue thus presented is certainly a new one in the case. Under the denial by operation of law of the allegation of the affirmative defense, the only proofs admissible are such as would negative the affirmative averments in the answer. Code, § 2704. The instructions recognize a breach of the contract by a failure of Glick to return the $20,000 note in a short time, and there is testimony tending to show that it was to be returned when Glick reached Marshalltown. The jury was told that, if such was the agreement, the defendant was released from liability. That the note was not returned is without dispute. The law, thus stated, must be accepted as the law of this case, for no assignments bring it in question. If, then, plaintiff seeks to avoid the effect of such facts by proof of other facts, it must do so under the provisions of Code, § 2665, by proper averments in a reply. Appellee's theory of this point is that, defendant's plea being one of total failure of consideration, if the $20,000 note was delivered, even after a breach, the consideration has actually passed, and it is not a total failure, and that any proofs tending to show that there was not such a failure were admissible. But it is not the rule, where facts are pleaded showing a want of consideration, that, under a denial, a party may put in evidence any facts that may show that a consideration still exists by virtue of any agreement; but, under the denial, "no evidence shall be introduced which does not tend to negative some fact the party making the controverted allegation is bound to prove." Code, § 2704. The facts referred to are not the conclusion of a want of consideration, but of the facts to be proven from which the conclusion may be drawn. In this case, to show the want of consideration, defendant was bound to prove an agreement to return the note in a short time, and that Glick did not return it. Under a denial, plaintiff could introduce any testimony tending to negative such facts. But if the claim is that, because of other facts, such facts are avoided, and the consideration still exists, the issue must be properly presented before proofs are admissible. The instructions of the district court present an issue in accord with this view, and properly place the burden of proof upon defendants. The error consists in there being no such issue in the pleadings. This conclusion has support in many cases. Kervick v. Mitch

ell, 68 Iowa, 273, 24 N. W. Rep. 151, and 26 N. W. Rep. 434; Zwick v. Insurance Co., 60 Iowa, 266, 14 N. W. Rep. 792; Hay v. Frazier, 49 Iowa, 454; Edgerly v. Insurance Co., 43 Iowa, 587; Smith v. Insurance Co., 64 Iowa, 717, 21 N. W. Rep. 145; Fauble v. Davis, 48 Iowa, 462. It is said the facts do not constitute a waiver;" that the question of waiver is not in the case. The district court submitted the case on the theory of a waiver, and it seems to us that, if a condition of the contract was that the $20,000 note was to be delivered within a short time, and it was not, it would be a violation of the condition, and, if afterwards the note was delivered and received with the intent to carry out the former contract, except as to time, the effect would be to waive the former condition for delivery.

2. At the conclusion of defendant's direct evidence, the plaintiff moved the court to direct a verdict for the plaintiff, because there had been no defense made out against the note or the parties to the suit, which the court overruled, and to which ruling the defendant excepted. It is urged that this ruling was erroneous, and that, if the motion had been sustained, there could have been no inquiry into errors in the submission of the cause. But the plaintiff has not appealed, and there is no assignment involving the error of which it complains, and errors not assigned are not to be considered. Wood v. Whitton, 66 Iowa, 295, 19 N. W. Rep. 907, and 23 N. W. Rep. 675; Des Moines Sav. Bank v. Colfax Hotel Co., 79 Iowa, 497, 44 N. W. Rep. 718; Lamb v. Insurance Co., 70 Iowa, 238, 30 N. W. Rep. 497. As somewhat affecting the question, see Butler v. Barkley, 67 Iowa, 491, 25 N. W. Rep. 747; Smith v. Wolf, 55 Iowa, 555, 8 N. W. Rep. 429. These considerations seem conclusive as to the error of the district court, and its judgment must be reversed.

MAGEE V. CHICAGO & N. W. Ry. Co. (Supreme Court of Iowa. Feb. 7, 1891.) INJURIES TO BRAKEMAN-CONTRIBUTORY NegliGENCE.

A brakeman on a mixed train, on being relieved from duty on a dark night, hurriedly stepped from the moving caboose to the station platform without looking, under the belief that the car was moving towards the lying-up track, as was usual, when in fact it was being moved in the opposite direction, and, losing his balance, rolled under the car, and was injured. Held, that the company was not bound to notify him that the car was not moving in the usual direction, and he was guilty of contributory negligence.

Appeal from district court, Mahaska county; J. K. JOHNSON, Judge.

Plaintiff brings this action as assignee of a claim from T. G. Klepper, Jr., for damages sustained by Klepper because of personal injuries received while in the employ of the defendant, alleged to have been caused by the negligence of the defendant, and without fault or negligence on the part of said Klepper. The defendant answered, denying generally, and the case was tried by a jury, and a verdict and judgment rendered in favor of the plaintiff for $10,000. Defendant appeals.