the owners of the building alone, and from that they appeal.

They contend that Keefe was bound under his contract to furnish all the fixtures, that neither they nor their ancestor knew that Keefe or Donohue was ordering more fixtures than the specifications called for, that neither Keefe nor Donohue had any authority to order any fixtures costing more than the estimated $500 named in the specifications, and that whatever else was done in this regard was not binding upon them. These contentions are based upon two propositions, which are strongly insisted upon: First, that Keefe under his contract was to furnish all the fixtures for the hotel, and to complete the same in full according to the plans and specifications; and, second, that defendants made no contract with plaintiff to supply any fixtures whatever. Going back to the written contract, it will be discovered that, while Keefe was to furnish all the labor and material for the construction of the building according to the plans and specifications, the electrie light fixtures were specifically mentioned and Keefe was not bound to put in more than $500 worth thereof. It does not clearly appear just what sort of electric fixtures were set forth in the specifications; but it is manifest that Keefe's obligation with reference thereto was estimated at $500, and that beyond that amount he was not required to go. When the matter came up it was discovered that the hotel could not be equipped with proper electric fixtures for $500. Donohue, the tenant, was informed of this, and, when plaintiff's bid was accepted, the conversations between plaintiff, Donohue, Keefe, and the agent of the owner, to which we have referred, occurred. There is no doubt that the fixtures put in the building could not be supplied for $500, and it is admitted that Keefe has paid the $500 which was included in his contract. There is also no doubt that Keefe cannot be held liable for the additional cost of the fixtures, for he did not make any contract to pay this amount. Donohue, the tenant, did not assume to act for himself, and there is no ground for holding him. The sole question in the case is the liability of the owners for the cost of the fixtures over and above the $500.

It is perfectly manifest that Keefe was not to put in fixtures costing more than $500, and that the exact kind and character of the fixtures was to be determined after the work had progressed to the point where it was necessary to decide the matter. The contract did not require Keefe to put in any certain fixtures, nor was he bound to put in any which cost more than $500. Indeed, it appears that the matter of the character and kind of electric fixtures to be put in was to be left to future negotiations. The written contract contains no other limitations, and it is clear that Keefe is not liable beyond the $500 which he has paid. The testimony shows that, when the tenant learned the fixtures

could not be put in for the $500, he consulted with the owner's agent, advised him of the situation, and that the agent said: "We wil! have to have them anyway. Go ahead and get them." Moreover, the evidence makes it appear that Donohue acted as agent for the owner of the building during its entire construction, gave directions and orders with reference thereto, and was treated as agent of the owner for the construction of the hotel. This agent, Donohue, went over the list of fixtures, approved it, and said the owner would pay all over $500 of the cost. Another confessed agent of the owner said that Donohue's selection was all right, thus confirming the tenant's authority to make choice of the fixtures for the hotel. We are satisfied that the owner of the building and her immediate agent authorized the tenant to make the selection of the fixtures, fully understanding that if they amounted to more than the $500 the owner was to be responsible for the overplus. This finding settles the case in the plaintiff's favor, for the law is not seriously in dispute.

The decree seems to be correct, and it is affirmed.

SHEETS v. CHRISTIE et al. (Supreme Court of Iowa. July 9, 1908.) FRAUD-DECEIT EVIDENCE.

Where, in an action for fraud in inducing plaintiff to execute certain notes for shares of mining stock, the petition charged that representations made as to the corporate capacity of the mining company, the ownership and control of the mines, etc., on the faith of which plaintiff gave the notes, were false and fraudulent, but there was no proof that the representations were not literally true, or that the stock purchased was not worth its full face value, or that the notes had not been used in the exact manner contemplated, plaintiff could not recover.

[Ed. Note.-For cases in point. see Cent. Dig. vol. 23, Fraud, §§ 55-59.]

Appeal from District Court, Johnson County; R. P. Howell, Judge.

"Not to be officially reported."

Action at law to recover damages for the alleged fraudulent procurement of certain promissory notes executed by the plaintiff. There was a judgment on directed verdict for defendants, and plaintiff appeals. Affirmed.

Holbert & Kimball, for appellant. M. Remley and Ranck & Bradley, for appellees.

PER CURIAM. There was no error in directing a verdict for defendants. The notes were given by plaintiff for shares of mining stock, and the petition alleges that representations by defendants as to the corporate capacity of the mining company, the ownership and control of the mine, and various other matters connected with the enterprise, upon faith of which he gave the notes, were false and fraudulent. The allegations are strong enough, perhaps, to state a good de

fense; but there is an utter absence of any proof that the representations were not literally true, or that the stock purchased by plaintiff was not worth its full face value. Again, it is alleged that the defendants desired the notes to use as collateral, and promised not otherwise to negotiate them, but would hold them until the dividends upon plaintiff's stock should be sufficient to pay them off. The notes were in fact pledged as collateral for money borrowed at a bank, and plaintiff has since paid them; but the express purpose of their execution, according to his own story, was that they might be so used. He further alleges that he was fraudulently induced to believe that the condition by which the notes were to be held until paid off by dividends on his stock was embodied in the notes themselves, when in fact no such condition appears therein. It may be conceded for the purposes of this case that the matter thus alleged would constitute a fraud entitling plaintiff to rescind the contract, and if the notes had been sold to an innocent holder he could recover the damages thus sustained. But he has made no attempt to rescind the contract or to restore to the defendants the stock purchased, which, so far as the record shows, may be worth a sum equal to the amount he has paid to take up his notes.

Upon the record as presented here, we find no error of which plaintiff can complain, and the judgment of the district court is affirmed.

LEATHERS et al. v. OBERLANDER et al. (Supreme Court of Iowa. July 9, 1908.) 1. BOUNDARIES-ESTABLISHMENT-LOST QUARTER SECTION CORNER-EVIDENCE.

In proceedings to establish a lost quarter section corner, where it appeared that there was no existing fence for some distance either north or south of the corner when plaintiff built his fence along what he claimed to be the proper line at the side of the highway along the section line, in accordance with surveys approved by the report of the commissioner appointed in the proceedings, it must be assumed that the line of the highway corresponded to the location of the original government quarter section as established by the commissioner's survey and other surveys previously made, with which it conforms, in the absence of satisfactory evidence of establishment of another line by acquiescence or adverse possession.

[Ed. Note. For cases in point, see Cent. Dig. vol. 8, Boundaries, §§ 147, 148.]

2. APPEAL AND ERROR - REVIEW - TRIAL DE Novo CONCLUSIVENESS OF FINDINGS ON CONFLICTING EVIDENCE.

On appeal in a proceeding to establish lost or disputed boundaries, the case is not triable de novo, and the finding of the commissioner and of the trial court on conflicting evidence is as conclusive as the verdict of a jury.

[Ed. Note. For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 4015-4018.] 3. BOUNDARIES-LOCATION OF CORNER-HOW

of a highway and line fences as indicating where the corner originally was, if the boundaries of the highway and the location of the fences alleged to have corresponded to the government corner cannot be definitely established, its original location, as shown by surveys based on other established corners of the original survey, should control.

[Ed. Note. For cases in point, see Cent. Dig. vol. 8, Boundaries, §§ 272-274.]

4. APPEAL AND ERROR RECORD - AMENDED ABSTRACT-NONCOMPLIANCE WITH RULES.

Where an amended abstract consists almost entirely of the pleadings, reports of commissioners and other formal matter, printed in full, with the title of the case repeated in each instance, and jurats set out verbatim and the testimony by question and answer, without any appreciable abridgment, it will be stricken from the files on motion for noncompliance with the rules.

[Ed. Note. For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 2582, 2583.] Appeal from District Court, Ringgold County; H. M. Towner, Judge.

In this special proceeding for the establishment of lost corners a commissioner was appointed who established the corners in dispute, and his report was confirmed by the court after oral evidence on behalf of each party had been received. From this judgment, the defendants appeal. Affirmed.

Spence & Smith, for appellants. V. R. McGinnis and F. F. Leathers, for appellees.

MCCLAIN, J. The controversy in this proceeding relates to the location of the quarter section corner between sections 7 and 8, in township 68, range 30 west, of the Fifth principal meridian, in Ringgold county. It is alleged in the application for the establishment of lost corners that the section corner on the north line of said sections is also in dispute. It appears by the report of the commissioner which is substantially uncontroverted in the evidence that no monuments of the public survey for these two corners can be found, and that the commissioner proceeded to locate the section corner by means of government corners north, south, east, and west thereof, and then establish the quarter section corner by running a straight line between the two sections from the corner thus established on the north section line to a recognized corner fixed by the government survey on the south line, placing the quarter section corner midway between these two section corners.

It is not contended by the appellants that this was not a proper method for restoring the lost quarter corner; but it is contended that the original location of the quarter section corner by the government survey is shown by the evidence to have been some 30 feet west of the quarter section corner as established by the commissioner. The witnesses for the defendant who attempt in their testimony to thus establish the original location of the corner as fixed by the government survey refer to a stone which was at one time in the center of the highway estab

lished along this section line and fences which were built with reference to such government corner. After a careful reading of the evidence, we are satisfied that there is a marked conflict as to the location of the government quarter section corner. The stone to which the witnesses refer ceased to be a fixed monument at least 25 years before the trial of the case, for by that time it had become a floating monument, and about that time was carried away. With reference to the fences, their continuity on any definite fixed line with reference to a government monument is left in uncertainty. When the plaintiff, Leathers, built his present fence along what he claims to be the proper line on the west side of the highway in accordance with surveys which were approved by the commissioner in his report, there was no existing fence for a considerable distance either north or south of the quarter section corner, and it does not appear that there had been any fence on any division line which had by acquiescence or adverse possession become an established line for either side of such highway. In the absence of satisfactory evidence of establishment of another line by acquiescence or adverse possession, it must be assumed that the line of the highway corresponds to the location of the original government quarter section as established by the commissioner's survey and other surveys previously made with which it conforms. In view of the conflict in the evidence, we cannot question the correctness of the commissioner's finding and the judgment of the court based thereon. The case is not triable de novo, but the finding of the commissioner and that of the court in view of the conflict in the evidence is as conclusive as the verdict of a jury would be, and we are not justified in reaching a different result. Newton v. Templeman, 115 Iowa, 643, 89 N. W. 24; Bohall v. Neiwalt, 75 Iowa, 109, 39 N. W. 217; Yocum v. Haskins, 81 Iowa, 436, 46 N. W. 1065.

The real question is as to the original location of the government quarter corner, and, while it is competent to prove the location and recognition of a highway and line fences as indicating where the corner originally was (See McAnich v. Hulse, 113 Iowa, 58. 84 N. W. 914), if the boundaries of the highway and the location of the fences claimed to have at one time corresponded to the government corner which has since been lost cannot be definitely established, the original location of the government corner as shown by surveys based on other established corners of the same survey ought to control.

Appellants' motion which has been submitted with the case to strike from the files appellee's so-called amended abstract is sustained, and the costs thereof are taxed to appellee. This so-called abstract consists almost entirely of the pleadings, reports of commissioners, and other formal matter

Per

printed in full with the title of the case repeated in each instance, the jurats set out in ipsissimis verbis and the testimony by question and answer, without so far as we can discover, any abridgement whatever. haps a few matters contained in this so-called abstract might have been embodied in one or two pages of amendment to appellant's abstract, but, as the document is not prepared with any regard whatever to compliance with the rules, it should not have been filed in its present form.

The judgment establishing the lost corners in accordance with the report of the commissioner is affirmed.

BUTTERY v. WRIGHT, LEECH & WRIGHT et al.

(Supreme Court of Iowa. July 9, 1908.) ATTORNEY AND CLIENT-CONTRACT-FEESFINDINGS EVIDENCE.

In a proceeding to require attorneys to pay over money alleged to belong to plaintiff, evidence held to sustain findings that plaintiff contracted to pay defendants $1,500 for all services to be performed by them in connection with the settlement of a certain estate on behalf of plaintiff; that an attorney fee allowed defendants for services in a partition suit was included in the general contract, and that defendants' services in presenting certain claims for others against the estate, were also included therein, as services rendered on behalf of plaintiff.

Appeal from District Court, Cedar County; M. P. Smith, Judge.

"Not to be officially reported."

The defendants are the firm of Wright, Leech & Wright and the individual members thereof, and said firm is engaged in the practice of law at Tipton, Cedar county. This is a proceeding brought by plaintiff on motion to require defendants to pay over money received by them in their relation as attorneys for plaintiff and belonging to her. The hearing resulted in a judgment in favor of plaintiff, and therefrom defendants appeal. Affirmed.

C. O. Boling and J. H. Preston, for appellants. Bronson, Carr & Sons, for appellee.

PER CURIAM. It appears that in March, 1903, one Jacob A. Warner died intestate in Cedar county, leaving him surviving as his only heirs at law a son and daughter, and the plaintiff herein, a granddaughter. Following the death of said Warner administration was granted on his estate, and the defendant firm was employed by plaintiff to attend to her interests in said estate. It is the contention of plaintiff that at the time of such employment she was informed that the fees and compensation to which defendants would become entitled for their services were fixed by law and would be paid by said estate. On the other hand, it is the contention of defendants that they were employed by plaintiff through her husband, E. A. Buttery, and that at the time of such employment it was the understand

ing and agreement that for their services on behalf of the plaintiff they were to be paid by her the sum of $1,500. It appears that shortly after the administration proceedings were begun defendants brought an action to partition the real estate of which said decedent died seised. To this action the other heirs appeared, and by consent of parties a decree was entered confirming in each of the parties a one-third interest in said real estate, and providing for a sale thereof by referees; and a sale of said real estate was made. and therefrom was realized the sum of $31,260. In the decree confirming the sale and directing distribution of the proceeds thereof the defendant firm was awarded attorney's fees in the sum of $352.60, and said sum was paid them by the referees. Plaintiff, who resided in the state of Wisconsin, on the request of defendants, forwarded to them a receipt for the amount due her from the proceeds of the sale after deducting expenses, including attorney's fee, as above stated, and the amount of her one-third interest was paid over to defendants by the referees. From such amount the defendants deducted the sum of $1,500 and remitted to her the balance.

It further appears that in the course of the settlement of the estate the defendant firm was employed to prosecute against the estate claims on behalf of Mrs. Henry Hecht and Mrs. M. E. Post, each claiming that the estate was indebted to them, respectively, in the sum of $2,000, due for services rendered to said Warner in his lifetime. It seems that such employment of the defendant firm came about in this way: It was conceded by plaintiff that said claims were just and should be paid out of the estate; but the other heirs were not so minded. Finally Mrs. Hecht and Mrs. Post, on the suggestion of plaintiff, went to defendant to arrange for the filing of their claims, and such was done. After some negotiations between the heirs, the administrator, and defendants, an agreement was reached whereby Mrs. Hecht and Mrs. Post were allowed each the sum of $1,000. That sum of money being paid over to the defendant firm, there was deducted therefrom and retained the sum of $500 as attorney's fees, and the remaining sum of $1,500 was turned over to the claimants. The court below that the contention of defendants respecting the terms of their employment was sustained by the evidence, and that said firm was therefore entitled to deduct from the moneys coming into their hands and retain therefrom the sum of $1,500. The court found, however, that within the intention of the parties said sum of $1,500 was to cover all services to be performed by defendants in connection with said estate on behalf of plaintiff. The court further found that the services performed by defendant in presenting the claims against said estate mentioned were in reality rendered for and on behalf of plaintiff. The court further found that the attorney fee allowed the defendant firm as

Based

and for services in the partition suit, within the intention of the parties, was included in the general contract under which the defendant firm was employed by plaintiff. upon these findings, the court entered judgment in favor of plaintiff for the difference between the sum of $1,500 and the aggregate of the attorney's fees paid to defendant by the referees and by the said claimants, to wit, the sum of $815 and interest.

We shall not undertake to set forth or discuss in this opinion the evidence introduced by the parties on the trial. It is sufficient to say that we have read the same with care, and we are satisfied that the trial judge correctly reached the conclusion that defendants led plaintiff to believe that the sum of $1,500 was to cover all services rendered to her in the settlement of said estate matter; further, that from what took place plaintiff was warranted in believing that the services rendered by the defendant firm in connection with said claim was to be regarded as included in her contract of employment.

It follows, from this, that there was no error in the judgment, and it must be, and is, affirmed.

FLOYD COUNTY v. WOLFE et al. (Supreme Court of Iowa. July 7, 1908.) 1. HOMESTEAD NATURE OF ESTATE-CONSTRUCTION OF STATUTORY PROVISIONS.

Homestead rights are the creatures of legislative enactment; and, while the statute should be liberally construed to effect its benevolent purposes, the court may not by interpretation unduly extend its scope for the benefit of persons not expressly or by fair implication included in the list of its beneficiaries.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 25, Homestead, § 7.]

2. WORDS AND PHRASES

"FAMILY."

The word "family" in its most usual signification is the group comprising the husband and wife and their dependent children. In a broader sense it consists of a person acting as head or manager with others living with and depending upon him and occupying the same home.

[Ed. Note.-For other definitions, see Words and Phrases, vol. 3, pp. 2673-2691; vol. 8, p. 7661.]

3. MARRIAGE-NATURE OF CONTRACT.

Under the express provisions of Code, § 3139, marriage is a civil contract, requiring the consent of parties capable of entering into other civil contracts, and hence without such consent no marital rights are acquired nor marital duties imposed, and, if one or both of the parties be insane and therefore incapable of giving consent, there is no marriage, but in the interest of good order the courts will assume jurisdiction to decree the annulment of the union though annulment is not necessary to clothe the parties with all the rights of unmarried persons.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 24, Marriage, §§ 1, 9, 113.

For other definitions, see Words and Phrases, vol. 5, pp. 4390-4598; vol. 8, p. 7717.]

4. HOMESTEAD-PERSONS ENTITLED-DIVORCED WIFE ANNULMENT MARRIAGE

"FAMILY"-"DIVORCE."

OF

-

Section 2973 of the Code provides that a widow or widower, though without children,

shall be deemed a family within the meaning of the chapter while continuing to occupy the real estate used as a homestead at the death of the husband or wife, and such right shall continue to the party to whom it is adjudged in a decree of divorce during continued personal occupancy. A man obtained a decree annulling his marriage to a woman who was confined in an insane asylum on the ground of her insanity at the time of marriage. Held, that the decree of annulment was not a decree of divorce within the statute, but simply operated to declare the union not a marriage, and hence the woman had no homestead rights as a divorced wife. [Ed. Note.-For other definitions, see Words and Phrases, vol. 3, pp. 2149-2150.]

5. SAME-PERSONAL OCCUPANT OF PROPERTY. The woman even had she been a divorced wife would not be entitled as such to homestead rights, since being without children, and having been confined in the asylum for several years, she was not in personal occupancy of the premises.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 25, Homestead, §§ 40-43.]

Appeal from District Court, Floyd County; C. H. Kelly, Judge.

Action to recover on account of moneys expended for the support of the insane ward in the state hospital. Judgment for defendants, and plaintiff appeals. Reversed and remanded.

L. O. Rue, Co. Atty., for appellant. Eggert & Lockwood, for appellees.

WEAVER, J. In the year 1895 the defendant Ernestina Wolfe, was married to one Louis Wolfe. In 1893 they became possessed of a house and lot in Charles City, Iowa, which they occupied as a home until the year 1900, when the said Ernestina was adjudged insane, and committed to the state hospital provided for such unfortunates. Since that time the plaintiff Floyd County has expended for her support in said institution the sum of $733.50, no part of which has been repaid. In the year 1905 Louis Wolfe brought suit in the district court of Floyd county to annul said marriage, on the ground that the defendant was at the date thereof insane and incapable of contracting a valid marriage. Upon due notice of the proceeding and trial to the court, a decree was entered granting the relief prayed, and providing for a division of the homestead property, onethird to the defendant Ernestina Wolfe and two-thirds to the said Louis Wolfe. Since that time the property has been sold in partition proceedings, and the proceeds of the one-third interest therein of Ernestina Wolfe, something less than $300, is in the hands of the defendant Eggert, her guardian. In the ease at bar the county presents a claim for the moneys expended for the support of the ward, and asks that the fund in the hands of the guardian be applied to its payment. There are no children of said marriage, and the ward is still in the hospital. In the agreed state of facts to the above effect, it is also conceded that said ward is not the head of a family, has no family dependent on her, and is not married. The money thus 117 N.W.-3

obtained by the guardian constitutes all the property of the ward, and the guardian offers to "turn it over to the county in part payment of its claim, provided the superintendent of the hospital where the ward is confined will furnish a certificate that she is and will remain incurably insane." On this showing the trial court held with the contention of the guardian that the moneys sought to be reached were exempt to the ward as the proceeds of the sale of a homestead, and denied the prayer of the petition, without prejudice to the renewal of the application, "in the event that for any reason the funds cease to be exempt." The one question presented by the appeal is whether under the agreed facts the ward's share in the moneys arising from the sale of the property occupied by her and the said Louis Wolfe as a home previous to the annulment of their marriage is exempt from execution. The claim of exemption is based upon the theory that for the purposes of the homestead statute the ward, after the annulment of the marriage, is entitled to the homestead rights of a divorced wife. The statute as to the homestead rights of a divorced person reads as follows: "Sec. 2973. Family Defined. A widow or widower, though without children, shall be deemed a family within the meaning of this chapter, while continuing to occupy the real estate used as a homestead at the death of the husband or wife, and such right shall continue to the party to whom it is adjudged in a decree of divorce, during continued personal occupancy." It is also further provided that no change of the homestead without the concurrence of the husband or wife shall affect his or her rights therein, and that a new homestead to the extent of the value of the old is exempt in all cases where the old one would have been. Appellees seek to further support their contention by reference to the statute regulating the annulment of marriages. Without setting it out in full, it may be said that this statute provides that a marriage may be annulled where either party was insane or idiotic at the time of the marriage (Code, § 3182), and except as otherwise provided the pleadings and practice in such cases shall be the same as in actions for divorce. Code, § 3183. Homestead rights are the creatures of legislative enactment, and, while the statute is to be construed with generous liberality to effect its benevolent purposes, the court may not by interpretation or construction unduly extend its scope for the benefit of persons not expressly or by fair implication inIcluded in the list of its beneficiaries. The homestead which the law exempts is "the homestead of every family." Code, § 2972. The word "family" in its most usual signification is the group comprising the husband and wife and their dependent children. In a somewhat more enlarged sense, it consists of a person acting as head or manager with others living with and depending upon him and oc