cable, was not involved in the determina- | proof of, his alleged title, although by virtion of the Roberts Case. This brings us to a consideration of the relations which existed between appellant and Buchanan, when respondent's judgment was docketed, and what facts the latter might have learned, had he then pursued such inquiries as to Buchanan's claims as the law required. His investigations must be made at the time of the docketing of the judgment; and he will be held, in the absence of inquiries, as having knowledge of what he could have then learned. Therefore, it is quite immaterial, in this case, that Bevier, the judgment creditor, was permitted to testify that a few days subsequent to the entry of the judgment he inquired of Buchanan, the tenant, and was informed by him that he leased from Austin; and equally as immaterial that the trial court passed upon this in its findings of fact. The admission of the testimony, and the finding thereon, did not prejudice the appellant, because the rights of the respondent must be determined by what he knew, or might have learned upon proper inquiry, at the time his judgment was docketed. The lien of the judgment could not be impaired or aided by subsequently acquired knowledge as to the tenant's interest or his landlord's title. From the findings it appears that "in the spring or early summer of 1888" the appellant notified Buchanan of his purchase from Austin, and that he had a deed of the premises. This is indefinite, and no effort was made in the court below to have the finding made more exact as to the time. But this is of no practical consequence; for we shall assume, while considering the question, that this information was imparted, as appellant claims, shortly after March 27th, when he received his deed, and antecedent to the 24th of May, the day of the docketing of the judgment. For several years, Buchanan, the tenant, had held from year to year under a lease from Austin, the judgment debtor; and for some time, at least, Wilkins, the appellant, had been the landlord's agent in respect to the leased property. This was well known to the tenant when he, in November, 1887, applied to the agent for a renewal of his lease; and he then paid one year's rent in advance to Wilkins, for Austin, as he supposed. A lease for the year ending November 15, 1888, was then signed by Austin, witnessed by the appellant, who also, as a notary, took and certified to Austin's acknowledgment thereof. It was under this lease, with the rent fully paid in advance for the term, that Buchanan held when the judgment was docketed. The tenant was notified by the appellant that he had succeeded by deed to Austin's title; but there is nothing in the record to show that at any time prior to the expiration of the term covered by the lease, or in any manner, Buchanan recognized or acknowledged appellant as his landlord. He did not expressly attorn; nor did he pay rent to appellant as the owner, and thus attorn by Implication. At no time was the tenant in a position where he could not have been permitted, had occasion arisen, to deny, and to have put appellant upon tue of the conveyance, appellant secured Austin's title to the property, as well as his rights in the written lease, including such as might arise by reason of the ten ant's covenants, if any there were. This, of itself, did not constitute him the landlord. Now, with this condition of affairs, was Buchanan's possession notice to the judgment creditor of the title now asserted by the appellant? Admitting it to have been the creditor's duty to have followed up the suggestion which the occupancy of the premises by a third party implied, to have investigated Buchanan's claims, and that he must be presumed to know all the facts which inquiry would have developed, all that he might have learned had he interrogated Buchanan, what knowledge would he have acquired, in the natural course of events, and what must he be charged with as in his reach, had he attempted to obtain it? Certainly, he would have been told that Buchanan owned the building, and had leased the ground on which it stood for the year ending November 15th, following. The tenant's interest would have been defined by this answer, but the pursuit of information as to the actual title could not safely stop at this point. It would be incumbent upon the creditor to ascertain from whom he leased. To a verbal inquiry Buchanan's answer would have been, naturally and truthfully, that he leased from Austin; or had the creditor called for the written lease he would have learned precisely the same thing. It would seem plain that the law cannot require further or other inquiries, or hold the creditor as having knowledge, and therefore constructive notice, of facts which these inquiries might possibly, but not naturally, lead to,-such, for instance, as a disclosure that the lessor, the judgment debtor, in whose name the title to the property appears of record, has very recently sold to another person. It would also seem plain that no more should be required of the creditor than that he inspect the lease, or by verbal inquiry obtain information as to who may have executed it, and therefore assumed to have interests in the demised premises; failing so to do, that he be charged with the knowledge which he would have thus obtained. It is possible that, in the course of the conversation with Buchanan in respect to his rights in the premises, he would have informed the respondent of the sale and conveyance to appellant, but the conclusion is inevitable that such would not have been the natural or ordinary result of pertinent inquiries upon the subject, and, obviously, an inspection of the lease under which the tenant occupied would not have conveyed the slightest intimation of appellant's claim. Of the seventh assignment of error we need but to say that, if the judgment herein involved was not against the person in whose name the title to the lot appeared of record prior to the recording of appellant's deed, the latter cannot be allowed to maintain the action. Coles v. Berryhill, 37 Minn. 56, 33 N. W. Rep. 213. It was only upon the assumption that the title of record was in Austin at the time of the | docketing that the suit was brought, tried, or determined. Judgment affirmed. (43 Minn. 219) WILKINS V. BELL et al. (Supreme Court of Minnesota. April 30, 1890.) ENSION, Judge. county; White & White & PER CURIAM. In this action it was stipulated upon appeal that the decision should follow that in Wilkins v. Bevier, ante, 157, argued and submitted with it, in which an opinion has just been filed affirming the judgment below. Judgment affirmed. (29 Neb. 102) sen & Anderson as their sales agents for the sale of their binding wire and twine in the following described territory, to-wit, Minden and vicinity and Holdrege and vicinity, during the season of 1888, în consideration of which said agents agree to purchase, and hereby do purchase, from said pounds of binding wire, and 15,000 lbs. of McCormick Harvesting-Machine Co.,binding twine, of the following marks; 15,000 lbs. Blue Jay; lbs. pure Sisal; said party of the 1st part to said agents - lbs. pure Manila,-to be shipped by at Minden or Holdrege, as ordered, in the county of Kearney and state of Nebraska, on or before 10th day of June, 1888, for which said agents hereby agree to pay to said party of the 1st part as follows, to MCCORMICK HARVESTING, ETC., Co. v. JEN- wit: For all said binding wire, SEN et al. 2. When A., residing in Chicago, contracts to sell a certain quantity of twine at a stipulated price to B., residing at M., in this state, the twine to be shipped by said party of the first part to said agent at Minden or Holdrege, Neb., as ordered, for sale at the latter place, and A. fails to comply with this contract, the measure of damages is the difference between the contract price and the market value of the twine at the point to which It was to be shipped, less the cost of the transporta tion thither. Manufacturing Co. v. Randall, 62 Iowa, 250, 17 N. W. Rep. 507; Cockburn v. Lumber Co., 54 Wis. 619, 12 N. W. Rep. 49. (Syllabus by the Court.) Error to district court, Kearney county: GAHLIN, Judge. St. Clair & McPhealy, for plaintiff in error. L. W. Hague and Stewart & Rose, for defendants in error. MAXWELL, J. The plaintiff brought an action against the defendants to recover the sum of $111.39, balance due on account. The account is set out at length in an exhibit attached to the petition, and shows debits to the amount of $1,781.24, and credIts for $1.669.85. The defendants admit in their answer that the account as pleaded is correct, but allege that the plaintiff is indebted to them upon a set-off arising from a breach of contract in the sum of $327.27. On the trial of the cause the jury returned a verdict in favor of the defendants for the sum of $14.48, upon which judgment was rendered. But two assignments of error are made: (1) That the evidence fails to sustain the verdict; and (2) that there was no adequate proof as to the measure of damages. ―cts. per lb.,delivered on board the cars in Chicago, to be paid on or before the day of, 188-; for all said binding twine, 13 cts. per lb. for Blue Jay,cts. per lb. for pure Sisal, and cents per lb. for pure Manila, delivered on board the cars in Chicago, to be paid on or before the 1st day of Nov., 1888. It is, however, mutually understood and agreed that the said McCormick Harvesting-Machine Co. reserves the right to change the above prices at any time, by giving said agent written notice of such change, and all orders given after date of such notice shall be subject to provisions of this contract. Above prices such change, without invalidating other guarantied during the season of 1888, and any reduction on this grade of twine will be met by us. "10,000 #5# balls. R. RINFORD. By CROW, General Agent for the McCormick Harvesting-Machine Co. "JENSEN & ANDERSON." "In case of failure of crops, this contract may be canceled on or before June 1, '88. The principal part of the instrument seems to have been printed, but the words, "above prices guarantied during the season of 1888, and any deduction on this grade of twine will be met by us," were in writing, and added to the printed form. The testimony also shows that early in June, 1888, the defendants requested the plaintiff to defer the shipment of twine for a short time, until they obtained a bond from a person named that seems to have been doing business for them; that early in July they requested the shipment of twine, and the agent at Lincoln, Neb., did send them 4,930 pounds of twine, and promised the remainder at an early date, and he seems to have made an earnest effort to fulfill the contract. On July 14, 1888, he wrote to the defendants: "I have telegraphed the company several times in regard to your twine, and it is now on the road, and must reach you before Monday." "Wire and Twine Contract. The Mc- Two days later he wrote to the defendants: Cormick Harvesting-Machine Co., a duly- "Gentlemen: I am just in receipt of teleorganized corporation of the state of Illi- gram from the company, saying that the nois, doing business in the city of Chicago, twine factories have disappointed them, in said state, party of the first part, and and that they have just learned that they Jensen & Anderson, of Minden, in the coun- cannot get the twine to fill your order ty of Kearney and state of Nebraska, party within the next ten days or 2 weeks, and of the second party, agree and contract, as that will be too late for use here, I this 2d day of May, 1888, as follows, to-wit: have canceled your order; but I have a car Bald company hereby appoints said Jen-load on the road to this point, consisting The testimony shows that in the spring of 1888 the plaintiff and defendants entered into the following contract: of pure Sisal, and have several thousand | Moines, with the exclusive privilege of sellpounds coming from Nebraska City. Please ing that make in the counties named, less telegraph me on receipt of this, stating just the expense of bringing said vehicles from how few lbs. you can get through with in Cincinnati, Ohio, and fitting them up for addition to twine shipped you from here the Des Moines market." The court held which was 50, 50 bales, 2,500. I will this to be a correct statement of the law. spare you every lb, that I possibly can." The same rule had previously been applied There seems to have been but little demand in a well considered case by the supreme for pure Sisal twine, for reasons stated by court of Wisconsin in Cockburn v. Lumber one of the witnesses, probably, that it was Co., 54 Wis. 619, 12 N. W. Rep. 49, and in our an inferior quality, and not in demand. view these cases state the law correctly. But little of this was purchased. The par- It will be observed that the jury allowed ties treated the contract as a continuing but little more than one-third of the alone, and such is the plain import of the leged set-off, having evidently adopted the language that the "above prices [were] lowest estimate of the witnesses, but of guarantied during the season of 1888. this no complaint is made. There is no There is no plea or claim that the plaintiff error in the record, and the judgment is could have filled the contract prior to June affirmed. The other judges concur. 10th of that year, or indeed at any time for use during the season of 1888. The evidence, therefore, as to a breach of the contract, is sufficient to sustain the verdict. 99 As to the measure of damages. It is claimed on behalf of the plaintiff that the proper measure of damages is the difference in Chicago between the contract price and the price for which the twine could have been purchased, and, there being no proof upon that point, that the action must fail. It will be observed that the contract provides that the twine is "to be shipped by said party of the first part to said agent at Minden or Holdrege, as ordered. The testimony shows that twine of the varieties named was selling for 16 and 17 cents per pound in Minden and Holdrege on the 16th of July of that year, although one witness states that the price was 14 cents per pound; but all agree that it was scarce, and but little could be had, -none at wholesale. The testimony also shows that the defendants could have sold all the twine contracted for, if it had been furnished. It appears from the testimony that the transportation charges on twine from Chicago to Minden or Holdrege in car-loads was about 60 cents per 100 pounds, and about 75 cents per 100 pounds in less than car-load lots. This being the state of the proof, the rule in such case is that the measure of damages is the difference between the contract price and the market price at the place where the twine was to be sold by the purchaser, less the cost of transportation thither. In other words, where a party in a distant city, like Chicago, contracts to deliver an article like twine to certain parties at a designated point in this state, for them to sell, the amount of recovery should be the difference between the contract price in Chicago and the market value at the point designated in the state, less the cost of transportation. In Manufacturing Co. v. Randall, 62 Iowa, 250, 17 N. W. Rep. 507, where there had been a breach of contract to deliver certain buggies, the court instructed the jury as to the measure of damages as follows. "If, upon inquiring as before directed; you find that the defendants are entitled to damages, you will then proceed to determine the amount you will allow. The measure of defendants' damages for a refusal to sell them vehicles under the contract is the difference in the contract price of the vehicles refused to be furnished and their market value in the city of Des v.45N.w.no. 2-11 (28 Neb. 792) JOHNSON et al. v. FIRST NAT. BANK OF (Supreme Court of Nebraska. Feb. 17, 1890.) EVIDENCE-NEGOTIABLE INSTRUMENTS ADMISSI BILITY-ALTERATIONS. 1. A note was dated August 1, 1886, due five months from date. In an action by an indorsee commenced April 31, 1888, plaintiff offered said note and the indorsement thereon in evidence, which was admitted, over objection of defendants, they having set up as a defense the want of consideration for the note, and that it was indorsed after maturity. Upon inspection of the note, the original being preserved in the bill of exceptions, it is apparent that the indorsement was first writ ten with a lead-pencil, and dated "Oct. 1, 1887, which writing was partially erased, and rewritten with pen and ink, and dated "Oct. 15-87," and afterwards the figure "7" was altered to a "6. " Held wrongly admitted. 2. The admission in evidence of the original petition in the case offered by plaintiff, held error. (Syllabus by the Court.) Error to district court, Phelps county; GASLIN, Judge. James I. Rhea, for plaintiffs in error. Hall & Patrick and J. H. Linderman, for defendant in error. Совв, С. COBB, C. J. The defendant in error alleged in the district court of Phelps county that it was and is a corporation, doing a banking business under the laws of the United States, located at Plum Creek, in Dawson county. That on August 1, 1886, the plaintiffs in error made and delivered to the Overton Bridge Company their promissory note in writing, as follows: 66 $50. Overton, Nebraska, August 1, 1886. Five months after date, for value received, we or either of us promise to pay to the order of the Overton Bridge Company fifty dollars, at the office of its treasurer at Overton, Nebr., with interest at 10 per cent. from date. It is expressly understood and agreed that all the makers of this note are principals thereon. C. JOHNSON. C. L. JOHNSON." That on the day of, 1886, the Overton Bridge Company indorsed said note as follows: "Pay the First National Bank. OvERTON BRIDGE COMPANY. E. M. TEFLANG, Treas. ;" and delivered and transferred it to the defendant in error, who became the owner thereof for value. That no part has been paid, and that there is due thereon the original sum, with interest from date, for which suit is brought. The defend ants in the court below answered, deny- | ing the allegations of the plaintiff's petition, except as herein admitted. They admit the note set forth, but aver that the plaintiff became the holder after maturity; that the note is without consideration, of which the plaintiff had notice; that the note was executed to the bridge company as a donation or subscription, conditioned that the bridge company build a wagon bridge over the Platte river at a point intersecting the half section line running north and south through sections 1 and 12, in township 8 N., range 20 W.; that the company procure the right of way and open a public highway through said sections on the half section line; that the bridge be completed by January 1, 1887, no tolls to be charged,— which conditions were not complied with, but the terms of all of which were violated. The plaintiff replied, denying each and every allegation of the defendants' answer. There was a trial to a jury, with findings for the plaintiff and verdict for $50. The defendants' motion for a new trial being overruled, judgment was entered on the verdict, to which the defendants excepted: (1) That the court erred in admitting in evidence to the jury the indorsement of the note; (2) in admitting in evidence, as proof, the plaintiff's petition; (3) in excluding the testimony of defendant C. L. Johnson; (4) the verdict is contrary to law, and is not sustained by the evidence. and dated "Oct. 1, 1887." This was partially erased, and rewritten with pen and ink, and dated "Oct. 15-87," and afterwards the figure "7" changed to a "6." These changes are visible to the naked eye. As the action was commenced in justice's court on the 31st day of May, 1888, the presumption is so strong that the true date of the indorsement is that of the original or lead-pencil writing that, one of the issues in the case being that the note was indorsed after maturity, the trial court should have required evidence explaining the alteration or alterations in the date of the indorsement before admitting it in evidence. 2. The plaintiff offered in evidence the petition in the case, which, over the objection of defendants, was admitted. I know of no rule of evidence under which this instrument was admissible, and there are serious objections to such practice. This petition had been verified by the oath of J. H. Linderman as attorney for the plaintiff. By the means here resorted to, the plaintiff was enabled to avail itself, before the jury, of the benefit of Mr. Linderman's oath, upon the facts stated in the petition, without his being subjected to a cross-examination; and it further takes the benefit of the belief or opinion of Mr. Linderman as to the truth of the facts stated in the petition, which he would not have been permitted to give on the stand as a witness for the plaintiff. It is true that the pleadings in a case on trial are, under our practice, permitted to go before the jury, not as evidence, but to show the issues thereby made and presented. There was evidence on the part of the defendants very clearly establishing the defense of the want of consideration for the note, thus narrowing the right of the plaintiff to recover to the single issue of indorsement before maturity. C. L. Johnson, one of the defendants, testified, on behalf of himself and co-defendant, that in the month of January, 1887, he saw the note sued on in the hands of one George Crandall, and that there "was no indorsement on the back of the note at that time." This witness was asked the question, in reference to George Crandall, at the time spoken of, when he had this note in his possession: "State who, if any one, he was representing at that time." This question, being objected to, was ruled out by the court. The purpose of asking this question was evidently to prove that some time in the month of January, 1887, after the maturi The petition in the court below contained no allegation that the note sued on was transferred to the plaintiff by indorsement of the bridge company or otherwise before maturity. The pleader inserted a clause, apparently for the purpose of setting out the day, month, and year of the making of the indorsement of the note by the bridge company, but he failed to insert either the day or the month, leaving the appropriate places therefor blank, but did insert the figures "1886" as the year. The note bearing date August 1, 1886, and payable five months after date, as a matter of fact, if it was indorsed on any day in said year, was indorsed before maturity; so that, by a liberal construction of the statute prescribing our most liberal system of pleading, an allegation that the indorsement was made in 1886 might, especially after verdict, be construed to be an allegation that the note was transferred to the plaintiff by indorsement before maturity. The defendants by their answer alleged a want of consideration for the said note, and denied that it was transferred by in-ty of the note, Mr. Crandall was acting as dorsement before delivery. These allegations, taken together, constitute a defense, and, if proved, would defeat the action Upon the trial the plaintiff offered in evidence the note and the indorsement, which, over the objection of the defendants, were admitted. The objection of defendants, not being specific, must be held to apply as well to the indorsement in its changed and mutilated condition as to the note thus indorsed. I doubt the admissibility of the indorsement without evidence explaining the alteration therein apparent upon the face, or, rather, upon the back, of the instrument. The indorsement was evidently first written with a lead-pencil, the agent of the payee of the note, and But there must be a new trial. The judgment | and upon all the taxable property included of the district court is reversed, and the cause remanded for further proceedings. The other judges concur. (28 Neb. 742) FREMONT, E. & M. V. R. Co. v. HOLT COUNTY. (Supreme Court of Nebraska. Feb. 18, 1890.) TAXATION-PAYMENT TO UNAUTHORIZED OFFICER. Before the organization of Brown county it was attached to Holt county for election, judicial, and revenue purposes; and in June, 1883, Holt county levied taxes upon all property in Brown county. Before such taxes became due, however, viz., September, 1883, Brown county was duly organized, and elected officers, and thereafter transacted county business at the county-seat of the latter county, and the authority of Holt county over it wholly ceased. The taxes upon the plaintiff's property, however, were carried on its taxrolls, although a copy thereof of property in Brown county had been obtained by the duly-elected officers of that county. When the taxes on the plaintiff's property became due, they were paid to the treasurer of Holt county, who placed the same in the county treasury. In an action to recover back such taxes, held, from the statement of facts in the petition, that the payment was made to a public officer under color of his office, but whose authority to collect the taxes in question had ceased, and that the money so paid could be recovered back. The question of a voluntary payment of illegal or doubtful taxes does not arise in the case. (Syllabus by the Court.) Error to district court, Antelope county; POWERS, Judge. John B. Hawley, for plaintiff in error. E. W. Adams and M. F. Harrington, for defendant in error. MAXWELL, J. This is an action against Holt county to recover the sum of $2,892.26, taxes paid under a mistake. A demurrer to the petition was sustained in the court below, and the action was dismissed. It is alleged in the petition, in substance, that prior to September, 1883, Brown county was attached to Holt county for election, judicial, and revenue purposes. "That in pursuance of the provisions of section 40 of said statute last aforesaid, [Comp. St. c. 77,] after said return was made by the plaintiff to the auditor of public accounts, the state board of equalization of said state of Nebraska returned and assessed the value per mile of said railroad of plaintiff, so returned to said auditor; and on or before the 15th day of May, 1883, the said auditor certified to the clerk of the said county of Holt the assessment per mile of said state board on said railroad, and the said mileage of said railroad in said Holt county, and in said territory which now comprises the county of Brown, and said assessment of said railroad in Holt county, and in the territory now comprising the county of Brown, was received by said county clerk of Holt county from said state authorities for taxation; the said territory embraced in what is now the county of Brown being then still attached to Holt county for revenue purposes. That the county commissioners of the county of Holt, on the 14th day of June, 1883, and while the said county of Brown was still attached to said county of Holt for revenue purposes and unorganized, duly levied taxes upon all of the taxable property in said county of Holt, in said territory which now comprises the county of Brown, including taxes upon the assessment made by the state board upon plaintiff's railroad in said county of Holt, and in said territory now comprising the county of Brown; and all assessments made for the year 1883 upon all property for taxation in Holt county, and in the territory now embraced in the county of Brown, (excepting the plaintiff's said railroad, assessed by said state board,) were made by assessors elected or appointed in said Holt county. That the said county commissioners of the county of Holt, in making said levy of taxes for the year 1883, levied a state tax of 6% mills, a county tax of 14 mills, and school taxes (certified up to the county clerk of Holt county by the several district boards) upon the assessed valuation of the plaintiff's road in Holt county, and in the territory attached thereto as Brown county, as well as on all other taxable property therein. That the total county taxes thus levied by the county commissioners of Holt county on the assessed valuation of plaintiff's railroad in said territory now comprising the county of Brown amounted to the sum of $2,892.26. That the said county taxes thus levied by the commissioners of Holt county on the plaintiff's railroad in the territory now embraced in Brown county were carried out on the tax-books of Holt county against said plaintiff's property, and the same delivered to the treasurer of said Holt county for collection, as by law provided, with the warrant thereto signed by the county clerk of said county, commanding the treasurer of said county of Holt to collect the same as by law provided. That on or about the 24th day of April, 1884, the said county taxes so levied by the county of Holt on the plaintiff's said property in the county of Holt, and in the territory now comprising the county of Brown, being due, the said tax-lists being in the hands of the treasurer of said Holt county for collection, the plaintiff paid into the treasury of Holt county on said day, in good faith, said taxes so levied upon the said railroad in Holt county, and in said territory now embraced in the county of Brown, and paid all taxes assessed and levied on its property for the year in said territory aforesaid, and received a receipt from said treasurer of Holt county therefor. That the county authorities of Brown county never at any time levied any taxes whatever upon any property in said county of Brown for the year 1883, and never levied any tax for said year on said railroad of plaintiff in said county of Brown; and said county of Brown was not organized at the time when by law the counties in said state of Nebraska are required to levy the taxes, but the taxes on all the property subject to taxation in said territory now comprising the county of Brown were levied by the proper authorities of Holt county. That immediately after the permanent organization of said Brown county, and in the month of August or September, 1883, the county clerk of said county of Brown obtained from the tax-books of Holt county a transcript of the said tax-list or tax-roll for the |