to disclose. The order entered in this ourt, October 20, 1890, at the instance of appellant, is revoked, and the judgment On both appeals, with modification indiated, is affirmed.

BRAY V. WISE.

(Supreme Court of Iowa. May 22, 1891.) REPLEVIN-EVIDENCE-AGISTER'S LIEN-Waiver.

Defendant, a livery stable keeper, received a horse from a trainer, to whom it had been intrusted to train and race, and at the same time took an assignment of an account of the trainer against the owner for services. The owner, having ascertained that the horse was at defendant's stable, went there, and in the absence of defendant took the horse, and put him in the plaintiff's stable, and subsequently, in an interview with defendant, he repudiated the trainer's demand, when defendant said to let it go until the trainer got home, and then they would "fix it up." Defendant afterwards went to plaintiff's stable, in the latter's absence, and by representing that the owner had sent him for the horse, succeeded in getting possession of it. Held, in an action to recover possession of the horse, that any lien which defendant may have had, either for its keep while in his stable or for the assigned account of the trainer, was waived when the adjustment was postponed until the return of the trainer, and judgment was properly rendered for plaintiff.

Appeal from superior court of Council Bluffs; E. E. AYLESWORTH, Judge.

This is an action of replevin for a horse. There was a trial by the court without a jury. Judgment was rendered for the plaintiff. Defendant appeals.

Wright, Bald win & Haldane and A. W. Ask with, for appellant. G. A. Holmes, for appellee.

ROTHROCK, J. As the action is at law, the judgment cannot be reversed without a finding that it is so manifestly against the evidence as to indicate passion or prejudice on the part of the trial judge. With this well-known rule in 'view, we will briefly recite the facts, which we think the learned judge was authorized to find as established by the evidence. In the summer of 1888, one J. J. Shea, of Council Bluffs, was the owner of a horse, which was named "Gray Jim." The horse was a pacer, with a record of 2.24%, and was kept for racing purposes. During the rac Ing season of 1888 Shea put the horse in charge of one Carey, whose business it was to go on the circuit with horses. Carey was authorized to sell the horse while on the circuit if he could find a purchaser. He did not succeed in this part of his mission, and returned to Council Bluffs with the horse about September 10, 1888. He took the horse to a livery stable kept by the defendant, Wise, and left him there, and assigned to Wise an account of $116, which he claimed Shea owed him for keeping the horse, and for freight charges while on the circuit. On the same day Shea ascertained that the horse was left at defendant's livery stable. He went to the stable, and, in the absence of Wise, took the horse to the livery stable of the plaintiff. On the same day Shea and the defendant had an interview about the claim which Carey had assigned to the defendant. In this interview Shea disputed

the bill for $116, and the conference was concluded by the defendant saying: "Let it go till Carey gets home, and we will fix it up." On the night of that day the defendant went to plaintiff's livery stable in plaintiff's absence, and stated to an employe that Shea had sent him for the horse, and by this representation he again acquired possession of the animal. The evidence further shows that it is extremely doubtful whether Shea at that time was indebted to Carey in any amount. It is claimed that the defendant was entitled to a lien upon the horse for the claim of Carey, and for the few hours the animal was in his barn; and he relies on chapter 25, Laws 1880, (Miller's Code, p. 585.) That act provides as follows: "That keepers of livery and feed stables, herders, and feeders, and keepers of stock for hire shall have a lien on all stock and property coming into their hands as such for their proper charges, and for the expense of keeping when the same have been received from the owner or from any person: provided, however, this lien shall be subject to all prior liens of record." Carey was not the keeper of a livery or feed stable. His business was breaking horses and training them for races and speed. It may be questioned whether he was entitled to a lien under the statute. But this judgment can well be sustained without determining that question. When Shea disputed Carey's account in the interview be. tween him and the defendant, and it was agreed that the matter should rest as it was until Carey came home, and it was "fixed up," this was an abandonment by the defendant of any lien upon the horse. The animal was then in the possession of Shea, or of the plaintiff. The defendant could not revoke this agreement by afterwards going to the stable of the plaintiff and obtaining possession of the horse by the untruthful representation that he was sent there by Shea for the horse. This is all there is of the case. Affirmed.

PATTON V. COOK et al.

(Supreme Court of Iowa. May 28, 1891.) REAL-ESTATE AGENT-IMPLIED REVOCATION OF AUTHORITY.

Plaintiff authorized defendants to sell his and for a cash payment and notes, and on their representation that they had found a purchaser, and the cash payment and notes were ready to be delivered to him, executed and gave them a bond for title, blank as to the name of the purchaser: Defendants failed to deliver the cash and notes on demand of plaintiff, and afterwards filled in the bond with the name of a purchaser. Held, that defendants' authority, as plaintiff's agents, to use the bond for title, was determined when they failed to deliver the cash and notes.

Appeal from district court, Pottawattamie county; H. E. DEEMER, Judge.

The plaintiff seeks by this action to set aside and cancel a bond for a deed of a certain lot in Council Bluffs. There was a full hearing on the merits, and a decree for the plaintiff. Defendants appeal.

Stone & Sims and Flickinger Bros., for appellants. G. A. Holmes and Hart & MeCabe, for appellee.

ROTHROCK, J. The plaintiff was the owner of the lot in question. The defendants Cook & Morgan were real-estate agents. In the month of February, 1887, the plaintiff authorized Cook & Morgan to sell said lot for $275. The terms of sale were to be one-third cash and the balance payable in one year, with interest at 8 per cent. per annum. The purchaser was to execute a promissory note for the deferred payment. In a short time after this arrangement was made, Cook & Morgan notified the plaintiff that they had found a purchaser for the lot. Thereupon plaintiff executed and acknowledged a titlebond. It was a blank bond, in that the name of the purchaser was not filled in nor anywhere inserted in the bond. This fact cannot be said to be disputed. The real question is whether Cook & Morgan filled the blank wrongfully, and without authority from the plaintiff. On this branch of the case there is a serious conflict in the evidence. We have examined the record with care, and we reach the same conclusion that was adopted by the district court. We think that a fair preponderance of the evidence shows that, when Cook & Morgan requested the defendant to prepare the bond, they, or one of them, stated to him that the cash pay. ment and the note for the deferred payment were ready to be delivered to him. When the plaintiff presented the bond, Cook & Morgan did not have the money nor the note, but offered the plaintiff five or ten dollars for an option on the purchase of the lot. This the plaintiff refused to accept, and, as the bond had been handed to Cook & Morgan, they refused to return it to the plaintiff. After some dispute and discussion between the parties, the bond was left in the hands of Cook & Morgan. Plaintiff went to their office early the next morning, and demanded the bond or a compliance with the contract. Cook & Morgan refused to pay the money and deliver the note, and filled up the bond with the name of one Greenwood. He assigned it to the defendant Smith. In our opinion, the rights of the parties were fixed when Cook & Morgan failed to pay the money and deliver the notes to the plaintiff, and it is entirely immaterial what they did afterwards in the way of a tender. They had no authority to fill in the name of Greenwood in the bond. This question of fact is all there is in the appeal. The decree of the district court is affirmed.

PAYNE V. RAUBINEK et al. (Supreme Court of Iowa. May 23, 1891.) PARTIES ON APPEAL-RECORD-"BOHEMIAN OATS" NOTE-CONSIDERATION.

1. In a suit by the holder of a note against the maker and the payee, who had transferred the note, guarantying its payment, when the judgment is against the payee, but in favor of the maker of the note, the payee is not a necessary party to an appeal taken by the holder of the note, the questions presented by the appeal being questions in which the payee has no con

cern.

2. Where, immediately after the trial, the instructions given and refused are returned with the files to the clerk, who neglects to mark them

as filed until nine months after the trial and eight months after an appeal, and the instructions are in no way identified by the bill of exceptions, they cannot be considered by this court.

3. A "Bohemian oats" contract, by which one purchases grain at a "speculative" value in consideration of the seller's promise to sell grain for the purchaser at a like "speculative" value, is against public policy, and notes given by the purchasers in execution of such a contract are void, except in the hands of an innocent purchaser.

Following Hanks v. Brown, 79 Iowa, 560, 44 N. W. Rep. 811; Merrill v. Packer, 80 Iowa, 543, 45 N. W. Rep. 1076.

Appeal from district_court, Ringgold county; J. W. HARVEY, Judge.

Action upon two promissory notes exe. cuted by the defendant Raubinek to Milton Lorimer or bearer, which were transferred and payment guarantied by Lorimer to the plaintiff, for value, before due. Raubinek answered for himself, admitting the execution of the notes, and alleging that they were obtained from him by fraud; that they are without consideration; were executed as part of a gambling contract; that they have been altered in material parts since he executed and delivered them, without his consent; and that the plaintiff took the notes with knowledge of all of these facts. There is nothing to show that Lorimer answered, except in the fifth paragraph of the court's instructions, wherein the jury were directed to find against Lorimer, unless they found that the notes had been altered as alleged after he transferred them to the plaintiff. The case was submitted to the jury, and a verdict returned in favor of the plaintiff against Milton Lorimer, and in favor of the defendant Josef Raubinek. Plaintiff moves to set aside the verdict, and grant a new trial, on the grounds that it was not sustained by the evidence, was contrary to law, and that the court erred in giving the fourth and fifth paragraphs of its instructions, and in refusing to give the instructions asked by plaintiff. This motion was overruled, and judgment entered upon the verdict, from which plaintiff appealed, serving notice thereof upon the defendant Raubinek alone, and assigning as errors the giving of the fourth and fifth instructions, and in refusing to give those asked, and in overruling the motion for new trial, and rendering judgment for the defendant Raubinek.

Mount & Willis and Kauffman & Guernsey, for appellant. Laughlin & Campbell and R. H. Spence, for appellee.

GIVEN, J. 1. Appellee moves to dismiss this appeal for the reason that the defendant Lorimer is not made a party to it. Appellant and Lorimer are not co-parties; therefore section 3174 of the Code does not apply. They were adverse parties, and hence the appeal is under sections 3178, 3179. It will be noticed that the defenses were not pleaded in common by the defendants, and that none of the defenses set up were available to Lorimer as guarantor, except the charge of alteration. This defense was not common to both defendants, for the reason that it might prevail as to one and not as to the other. Alterations such as those alleged, made any time after Raubinek executed

and delivered the notes, would be a good defense as to him, but only available to Lorimer if made after he delivered the notes to the plaintiff. Appellant has all that he asks as to Lorimer, and therefore has nothing to appeal from as to him. The judgment as to Raubinek can be modified, affirmed, or reversed without injuriously affecting the interests of Lorimer, and is therefore within the rule announced in Moore v. Held, 73 Iowa, 538, 35 N. W. Rep. 623. The questions presented on this appeal are questions in which the defendant Lorimer, who did not appeal, has no concern. A determination either way of the issues between plaintiff and defendant Raubinek cannot affect the liability of Lorimer. Such is not the case in Hunt v. Hawley, 70 Iowa, 183, 30 N. W. Rep. 477; Day v. Insurance Co., 77 Iowa, 344, 42 N. W. Rep. 312; or Goodwin v. Hilliard, 76 Iowa, 555, 41 N. W. Rep. 312, (cited by counsel.) In those cases the party omitted in the appeal was directly interested in the questions presented, and the judgments could not be reversed, modified, or affirmed without affecting their interests. The motion to dismiss is overruled.

2. Appellant's abstract sets out instructions asked and refused, and his exceptions to the refusal and instructions given, and his exception to the fourth and fifth paragraphs thereof. Appellee moved to strike those instructions, for the reason that the record shows that they were not filed in the office of the clerk, and are not in any manner referred to in the bill of exceptions, or made a part thereof. Appellant's abstract sets them out as the instructions given and refused. Appellee denies the correctness of this abstract in an amended abstract, and sets out the bill of exceptions at length, which says, "Said jury were instructed by the court,' but contains no instructions, or any other reference to instructions. Appellant states, in what he terms an "additional abstract," that the instructions given and refused were returned with the files to the clerk immediately after the trial, and remained in his possession with the other files in the case; but that through inadvertence he neglected to mark them filed, and to note them upon the appearance docket, until the 8th day of May, 1890. There is no record before us to show such to be the fact; and, though entitled as an "additional abstract," we can only receive it as the statement of counsel. If this statement may be considered as part of the record, we then have a case wherein what is presented to us as instructions asked and refused, and instructions given, are not identified by being filed in the office of the clerk of the district court until some nine months after the trial, and

eight months after the appeal was perfected, and are not identified in any manner in the bill of exceptions. Appellant contends that appellee does not deny that the instructions set out are in fact the instructions given, and asked and refused, at the trial. It is questionable whether appellee's abstract will bear such construction. He does concede that exceptions were taken to the giving and refus

ing of the instructions which were given and refused, and we think must be understood as denying that those set out are the identical instructions. There should be no uncertainty as to the identity of instructions presented for review, and the modes pointed out in the law for their identification should alone be relied upon. We think appellee's motion to strike from the record the instructions set out as giv. en, and as asked and refused, must be sustained.

3. These notes were given upon what is familiarly known as a "Bohemian oats contract," and the transaction as to the giving of the notes is identical with that in Hanks v. Brown, 79 Iowa, 560, 44 N. W. Rep. 811, and Merrill v. Packer, 80 Iowa, 543, 45 N. W. Rep. 1076, wherein the transactions and notes were held to be against public policy, and void. Following those cases, we hold that these notes are void, except in the hands of an innocent purchaser for valne, before due, without notice.

Having no instructions before us, it only remains to inquire whether the court erred in overruling the motion in arrest of judg. ment against appellee, and for a new trial, on the grounds that "the verdict is not sustained by the evidence." If the evidence shows that the plaintiff had notice of the fraudulent and void character of the notes at the time he purchased them, then the verdict is correct. There is testimony tending to establish each of these defenses,-not, it is true, without conflict, nor so as to be entirely convincing; yet that there is testimony so tending is shown by the discussion. We do not usually discuss the evidence at length in passing upon such questions as these, nor is it necessary that we should do so in this case. We think, after a careful reading of the record, that there is testimony tending to establish each of these defenses, and of such weight that under the familiar rule we should not interfere with the verdict on the grounds that it is not sustained by the evidence. Our examination of the record and of the evidence leads us to the conclusion that the judgment of the district court should be affirmed.

H., on whose land her son was paying taxes, authorized him to use the same by leasing it for pasturage or by selling the grass, so as to make it bring enough to reimburse him, but said that she did not want him by a lease to injure the sale of the land. Held, that whether a lease would injure a sale of the land was left to the son's judgment, and that a lease made by his agent was a authority of his agent as agent for H. could not lease on his own behalf, so that the question of

arise.

Appeal from district court, Audubon county; N. W. MACEY, Judge.

Action to enjoin the defendant from the use and occupation of a 40-acre tract of land in Audubon county. The district court gave judgment for the defendant, and the plaintiff appeals.

I. L. Statzell and J. M. Griggs, for appellant. H. W. Hanna, for appellee.

GRANGER, J. 1. Appellee objects to the trial of the cause de novo because the abstract does not purport to be one "of all the evidence." The abstract, as amended, shows that it contains all the evidence introduced or offered to be introduced, and all objections made thereto, and rulings made thereon. Appellee files no abstract putting in issue the statement, and it is sufficient.

99

2. On the 23d day of March, 1888, Lavina Hanna, residing at Cedar Rapids, Iowa, was the owner of the 40 acres of land in question. On that day a written lease of the land for one year was made to the plaintiff, to which the name of H. W. Hanna appears as lessor. On the 12th day of May, 1888, Lavina Hanna entered into a written contract with the defendant for the sale of the land for $440, with a payment of $75 in hand, and the balance in installments, the last to become due May 12, 1893. Upon performance by deendant, Lavina Hanna agreed, in effect, to convey to him all her "rights, title, and interest in and to the real estate. The right of possession during the period of performance by the defendant is left entirely to legal inference. It is not in terms given to the defendant by the contract. These contracts constitute the basis of the respective claims of the parties to the use and occupancy of the land. The defendant, being a herdsman, insisted upon a right to pasture the land, and at the instance of the plaintiff an injunction issued to restrain him. The case may be said to turn upon the validity of the contract or lease of the land to the plaintiff. As before said, the lease has to it the name of H. W. Hanna as lessor, and it is insisted that the name is there without authority, and that hence the contract is without effect. H. W. Hanna is a son of Lavina Hanna, and resides in Audubon county. His mother formerly resided there, but moved, some four years ago, to Cedar Rapids. During this time she has owned the land, and from the testimony of H. W. Hanna for the defendant it appears that since his mother left Audubon county he has on his own account paid the taxes for her on the land; that he was at Cedar Rapids the winter before, and his mother said she did not like to have him pay the taxes, and asked him if he could not get enough out of the grass from the land to pay the taxes, so that he would not have them to pay; and he told her he thought he could; that it would rent for that, but would injure the sale of it; and she said she didn't want him to do anything to“ avoid the sale," as she wanted the money as soon as she could get it. On cross-examination Mr. Hanna said: "My mother left here about four years ago, and has not been here since. She lives at Cedar Rapids. I told Ridgley he could have the use of the land for the taxes. After the lease was made it was deposited in my safe, and then afterwards Mr. Ridgley paid me fifty cents in money, being the balance due on the rent. Received this fifty cents after the land was sold to De Bough. I bad

been paying her taxes, and sent her the receipts, ever since we had owned this land, and she said she didn't think I ought to be paying her taxes without getting some benefit from it. I told her I didn't see how I could get enough for it without I leased the land or sold the grass; she asked me if that could not be done, and I told her it probably could, but it might affect a sale if it were leased out for a year, and she said she would rather pay the taxes herself than to have land leased so it would prevent a sale being made." Mrs. Hanna was not a witness, and his is the only testimony from which we may know his understanding with his mother as to his right to lease, or so use the grass on the land as to pay the taxes. The facts as to the making of the lease are about as follows: Mr. Moore was the clerk for Mr. Hanna, who is an attorney at law. The plaintiff saw Mr. Hanna on the day the lease was made, and they had some talk about the lease, and Hanna, being called away by sickness in his family, directed his clerk to draw up a lease. The rental value of the land was to be the amount of the taxes for the year. The amount was that day ascertained to be $6.40, and the plaintiff paid Mr. Moore $5.90, for which Moore gave the receipt of Mr. Hanna, and afterwards, May 30, 1888, plaintiff paid the remaining 50 cents to Mr. Hanna. The money was applied in payment of the taxes. Mr. Moore signed the name "H. W. Hanna" to the lease, and the plaintiff attached his signature. The lease is silent as to any forfeiture in case of a sale, and is for the period of one year. The value of the land for rent that year consisted entirely of the grass thereon for hay or pasturage. Mr. Hanna, in his testimony, says that he told the plaintiff that his lease must be subject to a right to sell the land; that he "would not prevent its being sold on account of the lease." Healso says in his direct evidence: "In case the land should be sold the agreement was rather indefinite. I told him that we would have no trouble in relation to that part of it." These statements are denied by the plaintiff. It may be well to first settle the point as to Mr. Hanna's authority to deal with the land. It seems to us from the statements and conduct of Mr. Hanna that he understood that he had the right to so use the land that the grass thereon, for hay or pasturage, should save him from the payment of taxes. This he might do by selling the grass or leasing the laud. There is nothing to show that his mother had not the same understanding. It is important to keep this fact in view: That between Mrs. and Mr. Hanna both understood that Mr. Hanna assumed the burden of paying the taxes, and he was to use the land to save him there. from. The case does not involve a quesion of agency. The grass was not to be sold or the land leased for her, but for him. In so doing she desired him to so use it as not to prevent a sale. This, we think, was a matter that she confided to his judg ment. It would be a harsh construction of his authority in such a case to say: "If he had sold to A. the grass on the land for that year for hay for the payment of taxes