It appears from the evidence that N. T. Vorse was in feeble health during the winter and spring of 1877. His home was at Des Moines, and he was absent for medical treatment in Ottumwa, and also in Galesburg, Illinois. His son, C. S. Vorse, had charge of his business during his absence. In March, 1877, while at Galesburg, he wrote a letter to his son, of which the following is a copy, so far as it relates to the purchase of the stock in question :

"Davidson was here to-day and we traded $5,000 worth of stock, with 15 per cent.-$5,700. Frank is to go down Monday night. Leave Des Moines on the C. R. I. at eleven in the evening, and will arrive at Marseilles eleven on Tuesday. He will take Elliott's note, due January next, for $2,700, or thereabouts, and one due a year from January next, same amount. That will leave two or three hundred dollars, which I told him I would give some good note or my own; I indorse in either case. Have Frank take the notes and make the indorsement, and sign my name. D. Says he will give him his furniture, about $50 worth, now, and will want to make him a bridal present of a china tea set worth $50. You needn't send deed. They will, when F. gets there, make the transfer. Frank will come this way home.

* * *

"N. T. VORSE."

It thus appears that the contract was consummated at Galesburg. The defendant introduced himself as a witness, and sought thereby to prove that the plaintiff made certain representations to him before the fourteenth day of March, 1877, in regard to said stock, which he communicated to his father. He also proposed to testify that Davidson made certain representations to him at the time the note was executed. The evidence was objected to and the objection was sustained.

The defendant did not propose to testify that Davidson admitted, at the time the note was executed, that he had in Illinois, when the agreement was entered into, made representations to the decedent as to the value of the stock, etc., but he did propose to detail a conversation which he had with Davidson as to the value of the stock when Davidson came to him to get the notes. This was clearly incompetent. The agreement was consummated in Illinois; that is, the decedent there agreed to give $5,700 for the ten shares of stock. It is true the balance for which his own note was to be given was greater than he supposed it would be, but this did not alter the contract so that it could be said to be a

contract made with Davidson by C. S. Vorse for his father, N. T. Vorse.

2. With respect to the representations made by the plaintiff to C. S. Vorse, which the latter communicated to his father, another and more difficult question arises. We think, under all the circumstances, the evidence should not have been excluded. It cannot be claimed that false representations must be shown to have been made at the very time the contract in question was consummated. If made during the negotiations they are admissible, and it is for the jury to determine from all the evidence whether, when thus made, they operated upon the mind of the party, at the time when the contract was closed, and induced him to enter into it. If the false representations had been made directly to N. T. Vorse in the hearing of the witness, it cannot be doubted that the evidence would have been competent. In such case it would not be proper for the court to determine that they did not induce the decedent to make the contract. That would have been a question for the jury, under all the circumstances of the case. We do not understand from the record that the evidence was rejected because the representations were made to a third party, and by him communicated to N. T. Vorse, but upon the ground that they were not proposed to be connected with the final consummation of the contract at Galesburg

If the representations were made to C. S. Vorse by the plaintiff with intent that they should be communicated to N. T. Vorse, and thus induce the latter to purchase the stock, the effect was precisely the same as though made directly. That the representations were made with this intent was a question for the jury, taking into consideration the relation of the parties, the fact that C. S. Vorse had charge and control of his father's business, and the other facts and circumstances disclosed in evidence. Upon the same ground we think the evidence of Frank Vorse, which was excluded by the court, should have been admitted, it being to the same effect as the evidence of C. S. Vorse. It may be that other negotiations and representations were made after this, and that the decedent was in no manner influenced by the communications which he received from the plaintiff, through these witnesses, but that was not a question for the court.

3. The note in suit provides for attorney's fees for collection, if an action should be commenced thereon. This question as to the allowance of attorney's fees was withdrawn from the jury and submitted to the court. Evidence was

introduced as to what was a reasonable allowance, and the court fixed the amount at $150. The defendant insists that no fees should have been allowed, because the filing of a claim against an estate, and proving the same, is not ån action. It is not at all probable that when the note was executed the parties had in mind any nice technical distinctions as to what is an action. It was intended that if resort be

had to legal proceedings for the collection of the note the plaintiff should be at no expense, but that reasonable attorney's fees should be allowed him, and this, we think, is the proper construction of the note. It may be true that for the mere filing of the note, accompanied by an affidavit, where there is no resistance, an attorney's fee should not be allowed, because the services of an attorney are not necessarily required; but where the claim is resisted, and the services of an attorney are requisite to the proper prosecution of the cause, it is an action within the meaning of this note-it is a legal proceeding for the enforcement of a right in a court of justice. Code, § 2505.

4. It is contended by counsel for appellee that the assignment of errors are not sufficiently specific to entitle appellant to a hearing in this court. The assignment of those above discussed, and which seem to us to be all that are necessary to be determined, as they involve the very merits of the appeal, are as specific as they well could be made. They point out with more than ordinary particularity the errors complained of. For the errors above pointed out the judgment will be reversed and the cause remanded for a new trial. Reversed.

JOHN J. WILSON & Co., Appellees, rs. O. H. BAKER, Appellant, and Trustees of Algona College.

A defendant is not entitled to a dismissal because the petition joins a cause of action against him with causes of action against other defendants as to which he is not a proper party. It is probable his remedy would be to have the other causes of action stricken from the petition against him. Where service is made upon the proper officers of a corporation the fact that the judgment is entered against it in a name different from its proper name will not render such judgment void. The misnomer must be taken advantage of, if at all, by plea in abatement. So held, where judgment was entered against "Algona College," the corporate name being "The Trustees of Algona College."—[Ed.

Appeal from Kossuth district court.

This action is brought to declare void a judgment held by O. H. Baker, and also judgments held by other parties defendants, and to decree them juuior and inferior to a judgment held by the plaintiff to set aside and cancel a sheriff's sale to O. H. Baker, and to restrain, by injunction, the sheriff from executing a deed to him. The defendant O. H. Baker moved the court that he be dismissed from the action for the reason that the cause of action against him was improperly joined with causes of action against the other defendants. Afterwards the defendant Baker filed a demurrer to the petition. It was stipulated that, pending the hearing on the demurrer, the defendant might file his answer, and that the evidence might be submitted, and the cause taken under advisement by the court without the waiver of the questions presented by the demurrer. The defendant thereupon answered, and the cause was submitted to the court upon an agreed statement of facts. The court overruled the defendant's motion and demurrer, declared the plaintiff's judgment paramount to the judgment of the defendant Baker, and decreed that the sheriff's sale to the defendant Baker, in satisfaction of his judgment, be set aside. The defendant Baker appeals.

Maxwell & Witter and J. H. Hawkins, for appellant.
George E. Clark, for appellee.

DAY, J. 1. The record does not disclose that any defendant, other than O. H. Baker, was served with notice, or made defence. He moved the court that he be dismissed from the action, and that so much of the cause of action as relates to him be stricken from the petition, for the reason that said cause of action is improperly joined with the causes of action against the other defendants, in violation of chapter 7, of title 17 of the Code. The defendant was not, for the reasons stated, entitled to be discharged from the action. If causes of action against other parties were improperly joined with the cause of action against him, it is probable that he would have been entitled to have the other causes of action stricken from the petition against him, under the provisions of section 2632 of the Code. The motion was properly overruled.

2. The questions presented by the demurrer are involved in the final hearing upon the agreed statement of facts. The rulings upon the demurrer, therefore, need not be considered. 3. The agreed statement upon which the cause was submitted shows the existence of the following facts: On the thirty-first day of December, 1870, there was organized at

Algona, under the laws of Iowa, a corporation by the name and style of the "Trustees of the Algona Seminary." On the thirty-first day of May, 1873, the persons whose names are attached to the articles of incorporation above named, together with other persons, signed and had copied upon the records of Kossuth county a paper purporting to be articles of incorporation of an association, under the name of "The Trustees of Algona College," but this paper was never acknowledged as required by section 1095 of the Code of 1873. On the seventeenth day of May, 1873, at a meeting of the board of trustees of Algona Seminary, the annual meeting was changed from the Monday preceding the last Saturday in June to the twenty-fourth day of May, and D. H. Hutchins, a member of the board, gave notice that he would offer for adoption, at the annual meeting, amended articles of incorporation. On the twenty-fourth day of May, 1873, the board met and adjourned to May 31st. On the thirty-first day of May, 1873, the board met and adopted the articles of incorporation before presented by Hutchins, which are the same as the paper above referred to as signed on the thirty-first day of May, and recorded, but not acknowledged. At the meeting, May 31, 1873, the secretary was directed to notify the trustees of Algona College that a meeting of said board would be held June 14, 1873. Since May 31, 1873, the defendant, “The Trustees of Algona College," has acted and done business as such, and the defendants Mitchell, Stacy, Ingham, Jones, Robinson, Smith, Hutchins, Read, Potter, Lemon, Loper, Barr, Walker, Williams, Walker, Cary, Omsley, Horton and Rowen are the acting officers and trustees thereof.

On the fifteenth day of August, 1870, Lewis H. Smith conveyed to the "Trustees of Algona Seminary," for the express purpose of erecting thereon a building to be used for school or seminary purposes only, a certain tract of land containing 784 rods. On the fifth day of September, 1873, the said Smith executed a quitclaim of said tract of land, together with a small additional tract, in all containing 854 square rods, to "The Trustees of Algona College."

In August, 1870, the trustees of Algona Seminary contracted with Yemans & Bongey to erect on the real estate above described certain buildings and other improvements, and furnish the material therefor. The plaintiffs furnished said Yemans & Bongey the lumber and materials with which said improvements were made, and Yemans & Bongey turned over to plaintiffs a warrant dated January 20, 1871, for