2. The mere fact that hypothetical questions put to a medical expert are in part based upon his personal examination and knowledge does not make them objectionable. Selleck v. Janesville, 157 3. Failure of the court, in striking out testimony, to name all the witnesses whose testimony should have been excluded, is not a material error, where plain and definite instructions to disregard the objectionable testimony were given in the charge to the jury. Wright v. C. S. Graves Land Co. 269 4. The rule that all parts of a conversation, in substance at least, relating to a subject in controversy, must be produced in evidence, or all excluded, is not violated by permitting a person who can remember the particular language or the substance of it, relating to the fact in issue or the evidentiary fact sought to be established, to testify to such part, or by permitting part of the conversation to be testified to by one witness and part by another, if the portions together show, with reasonable distinctness, the bearing of the conversation on the fact in controversy. Fertig v. State, 301 5. To render a wife competent to testify in behalf of her husband to a transaction in respect to which she acted as his agent, her authority as agent and the scope of it should be made to appear; and her testimony should be confined within that scope. Goesel v. Davis, 678 EXCEPTIONS. See APPEAL, 10. LANDLORD AND TENANT, 2. EXCISE LAWS. 1. A license issued by a town board of supervisors under the laws of this state for the sale of intoxicating liquors is not transferable even with the consent of such town board. State v. Bayne, 35 2. One who files a bond which is approved by the town board, but pays no money to the town, and proceeds to sell intoxicating liquors, acting in good faith upon a transfer to him of a license issued to a third person, by authority and with the consent of the town board, may nevertheless be convicted of selling liquors without a license. Ibid. EXECUTIONS. See JOINT DEBTORS, 3. VOLUNTARY ASSIGNMENT, 5. EXECUTORS AND ADMINISTRATORS. See COURTS, 1-6. INSURANCE, 2, 3. WILLS. EXPERT TESTIMONY. See EVIDENCE, 2. EXTENSION of time for payment. See BILLS AND NOTES, 1, 2. EXTRAS: Claims for. See MUNICIPAL CORPORATIONS, 7–13. FALSE REPRESENTATIONS. See AGENCY, 1. CONTRACTS, 1. FRAUD, 3. INSURANCE, 5. FELLOW-SERVANTS. See MASTER AND SERVANT, 6-8. RAILROADS, 21. FENCES. See BOUNDARIES. FINDINGS of fact. See APPEAL, 14. FISHING: Right of. See WATERS, 2. FORECLOSURE. See MORTGAGES. FORFEITURE See INSURANCE, 8-12. MASTER AND SERVANT, 4. FRAUD. See AGENCY, 1. CONTRACTS, 1. COUNTIES. EQUITY, 1. INSURANCE, 5. MUNICIPAL CORPORATIONS, 16, 17. PARTNERSHIP, 2, 3, 5. 1. Where a voluntary conveyance is made by an aged person of his entire property, without consideration and under circumstances of secrecy, to one who stands in a position of trust and confidence to him, the burden of proof is upon the grantee to show that the conveyance was not tainted with undue influence or fraud. Doyle v. Welch, 24 2. The presumption of undue influence and fraud in this case, arising from such a conveyance by an aged father to his daughter, to the exclusion of the children of his son, is held not to have been overcome by the evidence. Ibid. 3. Plaintiff and defendants agreed to become jointly interested in, and copurchasers of, certain land. Defendants were agents of the vendor to make the sale. They paid the earnest money, and took a receipt from the vendor, specifying when subsequent payments should be made and providing that in case of default in any payments said earnest money should be forfeited, time being of the essence of the contract. Plaintiff afterwards paid to defendants, for the vendor, a sum equal to the earnest money paid by them, and also his half of the next payment, and this money was by them paid over and applied on the purchase in conformity with his instructions. Plaintiff thereafter failed and refused to make further payments, and defendants completed the purchase and sold the land again at a loss, receiving, however, no money upon such sale, but only other property which had not, when the action was commenced, been converted, in whole or in part, into money. The evidence tended to show that defendants were to receive from the vendor a large commission on the sale, but had falsely stated to plaintiff that no commission was allowed them and that the price agreed on was the rock-bottom price. Held, that plaintiff could not recover from defendants the money paid by him, as money had and received by them to his use. If injured by any fraud or deceit of defendants, his action should be founded thereon. Blewitt v. McRae, 153 FRAUDS, STATUTE OF. See PARTNERSHIP, 1-5. WATERS, 6. FRAUDULENT CONVEYANCES. See EQUITY, 1. 1. A city lot was purchased and improved with money from the separate estate of a married woman, but the title was taken in the name of her husband. Afterwards, acting through her husband as agent, she traded said lot for other land, receiving some cash, and this, with other money belonging to her separate estate, was invested in speculative purchases of real estate which resulted in large profits, the husband investing no money of his own, but taking the title to the several parcels in his own name for convenience, until finally he conveyed to the wife the lands which were the outcome of the various transactions. Held, that prior to the statute (sec. 2077, R. S. 1878), there would have been a valid resulting trust in favor of the wife in each of the various parcels of land so held by the husband, and, although such trusts have been abolished, yet his conveyance in execution thereof was founded upon a sufficient consideration and, in the absence of fraud, is valid even as against his creditors. Martin v. Remington, 540 2. The increment of a wife's property due to the sagacity and industry of her husband cannot be reached by his creditors. GARNISHMENT. See VOLUNTARY ASSIGNMENT, 1, 2. Ibid. 1. On the trial of a garnishment action which was commenced before judgment in the main action, the judgment roll in the main action should be introduced in evidence. O. L. Packard Machinery Co. v. Laev, 644 2. Corporate stock cannot be reached by garnishing the person in possession of the certificates, but the mode of procedure prescribed by secs. 2738, 2989, 2990, R. S. 1878, should be followed. Ibid. GATES at highway crossing. See RAILROADS, 14. GUARANTY. See CONTRACTS, 2. EQUITY, 2, 3. SURETYSHIP. HIGHWAYS. See MUNICIPAL CORPORATIONS, 2, 3. RAILROADS, 14. 1. In an action against a town for injuries alleged to have been caused by defects in a bridge, a denial in the answer, following the language of the complaint, that the town had laid out, used, and maintained the road in question "for a great number of years," and that the town had kept and maintained the bridges "for twenty years or more,” is a negative pregnant and raises no issue. Grimm v. Washburn, 229 2. Whether it was prudent under the circumstances shown in this case to attempt to pass, with a loaded wagon, over an old bridge, the stringers of which were rotten, is held to have been a question for the jury. Ibid. 3. Evidence that a bridge on a public highway had been built for some time; that it was in bad condition about five years prior to the accident; that its timbers were old and rotten; and that its rotten condition caused the accident, was sufficient to take to the jury the question whether the town was chargeable with notice of the defect. Ibid. HUSBAND AND WIFE. See EVIDENCE, 5. FRAUDULENT CONVEYANCES. ILLEGITIMATE CHILDREN. See WILLS, 7. INDEBTEDNESS: Constitutional limit. See MUNICIPAL CORPORATIONS, 18-21. INDEFINITENESS. See BILLS AND NOTES, 1, 2. PLEADING, 3. INJUNCTIONS. See WATERS, 8. INSOLVENCY. See APPEAL, 5. BUILDING AND LOAN ASSOCIATIONS. CONSTITUTIONAL LAW, 2. EQUITY, 2, 3. MORTGAGES. VOLUNTARY INSTRUCTIONS TO JURY. See ASSAULT AND BATTERY, 2. CRIMINAL LAW, 2, 12, 13, 15, 16. RAILROADS, 11, 17-19. 1. A charge that the jury must pay no attention to comments on the part of counsel or of the court is held not a material error, where, in immediate connection therewith, the court charged that, in arriving at their verdict, the jury "must take in evidence all the evidence and only the evidence;" that in running over the evidence it was for them to say what weight should be given to the testimony of each witness; and that they were the judges of the candor and fairness of the witnesses, and the only judges as to the weight that should be given to the testimony of each of the parties. Malone v. Gerth, 166 2. It was error to refuse an instruction that the number of witnesses and their concurrence in support of a given state of facts was a subject of material importance in deciding their credibility, for the reason that there was much less probability of two or more witnesses being concerned in the same falsehood or being influenced by the same mistake than a single individual. Bisewski v. Booth, 383 8. Instructions on the subject of positive and negative testimony which were given in such a way as to leave the impression that plaintiff's evidence was positive and defendant's negative, are held to have been misleading, although correct as abstract propositions of law. Ibid. 4. Where there is to be a special verdict, the right to recover being a matter of law to be determined by the court on the facts found, instructions to the jury may properly be limited to the particular questions, and no general instructions be given. Goesel v. Davis, Life. INSURANCE. 678 1. In case of doubt or ambiguity the language of an insurance policy should be construed most strongly against the insurer. Patterson v. Natural Premium Mut. L. Ins. Co. 118 2. One to whom, as beneficiary, a policy of life insurance is payable or has been assigned has, until the insured makes a change of beneficiary, such a vested, subsisting interest in the policy as would pass to his personal representatives in case of death. Ibid. 3. Where third persons are beneficiaries, intentional suicide of the insured while sane does not avoid a policy of life insurance, in the absence of any provision in the policy to that effect. [What would be the rule in an action by personal representatives of the insured for the benefit of his estate, not determined.] Ibid. 4. Although suicide is technically a crime, it is not within the meaning of a clause in an insurance policy providing that death in consequence of, or in, violation of law is not covered by the policy, where the usual suicide clause is omitted and the policy provides that it shall be absolutely incontestable except for nonpayment of premiums or misstatement of age. Ibid. 5. False statements or concealment of the insured in respect to his health are covered by an incontestable clause in the policy. Ibid. 6. In an action on a policy of life insurance which did not cover death by suicide, whether voluntary or involuntary, sane or insane, there was evidence, among other things, that the deceased frequently became intoxicated, quarreled with his wife, and then threatened to kill himself; that on one such occasion he attempted to cut his throat, and on the same evening said to his mother "Good-by for the last time;" that the next day he attempted to borrow a rifle and a revolver to shoot rats, but finally purchased a revolver and ammunition and took them to his room, saying to another occupant of the building that he "had a weapon and would never see another sunrise;" that he resisted an attempt to take the revolver away, and went into the dining room alone; that shortly afterwards a shot was heard, and the deceased was found lying on the floor, with a bullet hole through his head, entering above the right ear and coming out back of the left ear; and that there were no marks of burnt powder, and the flesh around the hole was not burned or broken. Held, that a verdict for defendant was properly directed, the only reasonable inference which could be drawn being that the deceased took his own life. Rens v. Northwestern Mut. R. Asso. 266 7. In such a case evidence of the declarations of the deceased within the twenty-four hours preceding his death, tending to show an intention to commit suicide, was properly admitted. Benefit Societies. Ibid. 8. One who accepts a certificate of membership in a mutual benefit society, subject to certain conditions and liable to forfeiture if he shall not comply with said conditions and "such by-laws as are or may be adopted by the head camp or the local camp of which he is a member," is bound by an amendment to the by-laws, subsequently adopted, by which his membership becomes forfeited because he is engaged in a business prohibited by such amendment. Loeffler v. Modern Woodmen of America, 79 9. The fact that no action was taken in the matter until about three years after the head consul of the society had knowledge that such member was engaged in the prohibited business, and that during that time the local camp continued to receive his dues and assessments, did not constitute a waiver of the forfeiture, where the head consul had no duty to perform in respect to receiving such dues or assessments or in respect to the suspension of the member, and one of the conditions to which the contract was expressly subject provided that no officer of the society could waive such a forfeiture. Ibid. 10. A member of a mutual benefit society who, as clerk of a local camp, receives dues and assessments from himself after he has forfeited his membership by engaging in a prohibited business, does not thereby waive such forfeiture. Ibid. 11. A stockholder, officer, and salesman of a corporation dealing in liquors at wholesale is a "wholesaler of liquors" within the meaning of a by-law of a mutual benefit society providing that a member engaging in the occupation of a wholesaler of liquors should thereby forfeit his membership. Ibid. 12. Where, by the laws of a mutual benefit society, all decisions of the head consul are subject to an appeal to the executive council and from that to the head camp, one who feels aggrieved by a decision of the head consul that he has forfeited his membership VOL. 100-45 |