1. Loss having been sustained under a hail policy, the insurer
claimed it was adjusted at $400, and the assured at $925. The
company sent assured a check, which, with the balance due for
premium, amounted to $400, reciting on its face, "This check accepted
as payment in full for all claims to date." The assured cashed the
check at his local bank, and in doing so wrote his name under an
indorsement, "Accepted in part payment of loss by payee." Held
that, since there was no consideration for the acceptance and cashing
of the check, it would not amount to an accord and satisfaction;
Civ. Code § 1180, providing that part performance of an obligation,
when expressly accepted by the creditor in writing as satisfaction
thereof without any new consideration, extinguishes the obligation,
being inapplicable. Siegele v. Insurance Co., 142.
1. A complaint by township taxpayers to enjoin adjustment of
high ways to an illegal survey was not demurrable as improperly
joining causes of action, in that plaintiffs are not jointly interested.
Hoekman v. Iowa Civil Tp., 206.
2. A complaint which shows a joint adventure in the purchase
of real estate, the plaintiff, a party thereto, relied on the false state-
ments of defendant, a coadventurer, and paid money to defendant,
and which demands judgment for the sums paid accruing to defend-
ant as a secret benefit, shows a suit to recover a share in secret profits
obtained by defendant, and the amount of the recovery can only be
based on the amount of the secret benefits. Gamble v. Loffler, 240.
3. Where a party to a joint adventure sues à coadventurer for
secret advantages gained, the only issue is whether the defendant has
gained a secret advantage in fraud of the complaining party, and
evidence of defendant's good faith at the time of entering into the
contract of joint adventure is immaterial, but defendant may ex-
plain how the alleged benefits were received to rebut fraud. Id.
4. An equitable action to quiet title to personalty lies only
where there is no adequate remedy at law. Heilman v. Heilman, 303.
5. Where a complaint alleged that defendant's holding of plain-
tiffs real property was adverse, a demurrer thereto confessed such
allegation, and was therefore unsustainable on the theory that de-
fendant was in possession as plaintiffs' tenant. Ward v. Brown, 375.
6. Code Civ. Pro. §§ 675-691, and Laws 1905, c. 81, authorizing
the maintenance of an action to determine adverse claims to real
property, does not require that plaintiff join all parties claiming an
interest in the property. Id.
7. In the absence of a statute making proof of death or injury
prima facie evidence of negligence on the part of a carrier, proof
of the injury alone will not sustain a recovery. Wright v. Sioux Falls
Traction System, 379.
8. A mortgagee may sue on the indebtedness without foreclosing
the mortgage. Hampe v. Manke, 501.
9. One claiming a mortgage lien upon real property may sue to
avoid a tax deed which clouds his security. Rhomberg v. Bender, 609.
1. Adoption, being a creation of statute unknown to the com-
mon law, is not a contractual relation, and the laws of the place
where it occurred do not become part of the contract so as to govern
all the rights, which the parties may have as an incident to the rela-
tion, as the right of inheritance in land situated without the place of
adoption. Calhoun v. Bryant, 266.
2. The right of inheritance is not a necessary incident to the re-
lationship of parent and chiid, and hence is not necessarily incident
to the relationship of adoption. Id.
3. A foreign adoption will, if not against public policy, be recog-
-nized in another state, but the law of the place where it occurred
cannot determine the rights of the parties to the adoption to inherit
land located in another state. for while the validity of the adoption
depends upon the law of the place where it occurred, and the rela-
tionship or status of the parties to the adoption depends upon that
law, yet, as such law has no extraterritorial effect, it cannot deter-
mine the rights of inheritance which, as an incident to the relation-
ship, the parties may have in property situated without such state. Id.
4. Civ. Code, §§ 107-138, treats of the relationship between
parent and child. Sections 107-127 of that title define the rights,
duties, and obligations of children by birth, and sections 128-138 those
of adopted children. While neither chapter contains any specific pro-
vision as to the right of inheritance, section 136 provides that a
child may take the family name of the person adopting him, and
that after adoption the two shall sustain towards each other the
relation of parent and child, having all the rights and duties of that
relation, and section 137 relieves the parents of an adopted child of
all duties and responsibilities toward it. Held, that the relation be-
tween adopted parents and children is the same as between natural
parents and children, and an adoptive parent may inherit real prop-
erty owned by an adopted child. Id.
1. A harborer of a vicious dog is liable for injuries caused by
it, regardless of ownership, and hence, in an action against a harborer
for such injuries, it was immaterial that he had given the dog to
another. Wood v. Campbell, 197.
2. "Harboring" means protecting, and one who treats a dog as
living at his house, and undertakes to control his actions, is the
owner or harborer thereof, as affecting liability for injuries caused
by it. Id.
3. Evidence, in a prosecution under Pol. Code, § 3020, for
knowingly keeping, using, and controlling glandered horses, held suf-
ficient to sustain a conviction. State v. Leavitt, 216.
1. Where no motion for a directed verdict was made by ap-
pellant, and the action of the trial court in overruling the motion
for a new trial is not assigned as error, the sufficiency of the evidence
to sustain the verdict will not be reviewed. Cole v. Schreier, 30.
2. On appeal from the overruling of a motion for a directed
verdict, the defendant's evidence should be disregarded, where con-
flicting. Lyons v. Chicago, M. & St. P. Ry. Co., 31.
3. Finding on conflicting evidence will not be disturbed on ap-
peal, where there is no clear preponderance against them. Bump v.
Nelson, 40.
4. The decision of the trial court, approving the verdict of
guilty, should be given great weight on appeal in determining the
sufficiency of the evidence. State v. Stambaugh, 51.
5. The jury are the exclusive judges of the credibility of the
witnesses and the weight of the evidence; and a verdict based on
evidence justifying the conclusion reached cannot be disturbed on
appeal. Id.
6. The admission or rejection of photographs in evidence is
largely within the discretion of the trial court, and, unless there has
has been a manifest abuse, the court on appeal will not reverse a
decision thereon. Id.
7. Where, in an action to have title to stock adjudged to be
in plaintiffs, defendant demurred to the complaint on the ground that
B. was a necessary plaintiff and had him made a party, defendant
was estopped to complain on appeal that title to the stock was ad-
judged in plaintiff B., instead of the other plaintiffs, defendant having
invited any error in having B. made a party. Rogers v. Mining Co.,
74.
8. Defendant cannot complain on appeal that the trial court
held a defense set up by him to be good. Id.
9. In an action against a railroad company for killing stock, the
ownership of the animals, their value, and the killing of the same by
defendant's train, and defendant's negligence, were alleged in the
complaint, as well as the serving of the notice of loss, which, after
detailing the facts concerning the killing, notified the defendant that
if settlement was not made within 60 days suit would be brought to
recover double damages. Held, that nothing to the contrary appear-
ing, the appellate court will presume that service of the alleged
notice of loss was established by evidence, and that the trial court
took judicial notice that the action was not commenced within 60
days; and hence the complaint stated a cause of action for double
damages. Bekker v. White River Ry. Co., 84.
10. Where, in an action against a railroad company for setting
fire to plaintiff's property, an issue as to the negligence was raised, it
will be presumed, in support of the judgment, the evidence and charge
of the court being omitted from the abstract, that the facts proven
entitled plaintiff to recover, and that the jury were properly in-
structed; and hence a judgment for plaintiff will not be reversed,
because the action was brought under a statute unconstitutional, in
so far as it relieved plaintiff from establishing defendant's negligence.
Kennedy v. Railway Co., 95.
11. An order allowing an amendment of defendant's answer
during trial was not prejudicial to plaintiff, where the trial court
offered plaintiff a continuance, which plaintiff declined. J. I. Case
Machine Co. v. Gidley, 101.
In the absence of a request for a more specific instruction.
a party cannot on appeal complain that an instruction erroneously
failed to define a certain term. Id.
13. An instruction to which no exception was taken will for the
purpose of the decision on appeal be regarded as the law of the case.
Id.
14.
Where an executor, superseded by an administrator who
sues to foreclose a mortgage, testified to the payment of the mort-
gage by the mortgagor, and to a conversation with the county judge
as to a satisfaction of the mortgage, the exclusion of the testi-
mony of the county judge as to the conversation was not prejudicial
to the mortgagor; the statements of the executor as to the conversa-
tion not being contradicted. Mead v. Mead, 131.
Where the court should have instructed that the defense of
accord and satisfaction had not been made out, defendant was not
prejudiced by the court's modification of certain instructions on such
issue. Siegele v. Insurance Co., 142.
16. The sustaining of an objection to one ground for opening a
default judgment cannot be considered on appeal from an order open-
ing the default on another ground, where defendant does not appeal.
Reilly v. Kirk, 159.
17. The verdict is presumed to accord with the instructions, if
they are not in the record. Nichols & Sheppard Co. v. Marshall, 182.
Unchallenged instructions, right or wrong, are the law of
19. Sufficiency of evidence to support the verdict and the judg-
ment will not be reviewed, unless it was questioned by motion for
verdict. Id.
Assignment of error not briefed are abandoned.
Id.
21. Statement in a brief, "Indeed, every one of the plaintiff's
objections should have been sustained, after defendant introduced his
Exhibits 1, 2 and 3," is insufficient argument, and such objections
must be deemed abandoned. Id.
22. The rule that a conflict in the evidence precludes the court
on appeal from reviewing the evidence does not apply where the issue
is immaterial, and does not conclude the rights of the parties, and
where, in an action on a note, there was evidence of a consideration
for the note, an alleged conflict in the evidence as to whether the
notes were intended as accommodation notes for the payee was im-
material, and the court could review the evidence. First Nat. Bank
v. Engebretson, 186.
23. If the record does not contain the instructions, the jury is
presumed to have been properly instructed. Wood v. Campbell, 197.
24. The findings of the trial court are presumptively correct,
and will not be disturbed, unless it clearly appears that they are not
sustained by the evidence; and the party complaining must show that
fact. Hannahs v. Provine, 200.
25.
The grounds of an objection or motion, as stated on the
trial, cannot be substantia ly changed in the specifications of error
appended to the bill of exeptions or in the assignment of error.
Wood v. Stacy, 214.
26. In an action on a written contract, a motion by defendants
for directed verdict on the ground that the modification of the agree-
ment relied on by plaintiff was not in writing, and was without con-
sideration, was insufficient to eserve objection that the modifica-
tion did not conform to Civ. Coue. § 1287, providing that a written
contract may be altered only by written or executed oral agreement.
Id.
27. Exceptions to the instructions on the ground that the modi-
fication of a contract was too indefinite to constitute a contract, that
no oral contract was made, and that the modification was not claimed
to be in writing, or for any consideration, were also insufficient to
preserve the objection, under Civ. Code, § 1287. Id.
28. Great delay in the settlement of the bill of exceptions is not
ground for striking the bill from the record on appeal, where the
trial court did not abuse its discretion in settling the bill, and where
it never lost jurisdiction. Bates v. Loffler, 228.
29. The error occasioned by omitting from the bill of exceptions
as settled by the court necessary and material evidence cannot be cor-
rected by motion to strike the bill, instead of a proceeding to perfect
the bill. Id.
The insufficiency of assignments cannot be presented to the
Supreme Court on a motion to strike the bill of exceptions from the
record.
The Supreme Court may not dismiss an appeal and affirm
the judgment merely because the bill of exceptions is fatally defective,
since other questions based on other parts of the record may be re-
viewable.
Where respondent failed to urge his motion to strike the
bill of exceptions until about six months after the expiration of the
time for filing his brief, the court, on denying the motion, will not
allow him time to prepare and file a brief on the merits. Id.
33. Where relief prayed for cannot be decreed under the find-
ings of the trial court, the Supreme Court may not make new findings
to justify such relief. Id.
34. The error, if any, in sustaining objections to questions put to
a witness on the ground that they were leading, was not prejudicial,
where all the testimony sought to be elicited was subsequently given
by the same witness. McGinty v. Reynolds, 249.
35. Secondary evidence as to the nature of a written contract
for the sale and purchase of land is not competent, in the absense of
proof of loss or destruction of the original instrument, or other in-
ability of the party to produce it. Kimm v. Wolters, 255.
36. Where parol evidence is admissible to enable the court to
construe an ambiguous clause in a written contract, the failure to
instruct as to the purpose of its admission is not reversible error,
where the jury, under other instructions, could not have been misled
by such evidence. Id.
37. The error in instructing that parties could modify their
written contract by a parol agreement, and that no new consideration
was necessary, was harmless, where the modification in issue was in
writing, and hence was by statute presumably on consideration. Id.
38. Where no motion was made by plaintiff to strike out alleged
improper remarks of defendant's counsel, and there was no ruling of
the court, there is nothing before the appellate court for review. Id.
39. An order of the county court setting aside a decree of final
distribution is appealable. Calhoun v. Bryant, 266.
Defendant in condemnation may appeal from the part of the
judgment fixing the amount of his damages, without appealing from
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