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& F., 149; Shay v. Water Co., 6 Cal. 286; Steketee v. Kimm, 48 Mich. 322, 12 N. W. 177. We are constrained to hold that this instruction, in view of the circumstances disclosed by the record, should not have been given. Appellee says, however, that the jury did not follow the instruction, in that it awarded compensatory damages in the sum of $1. It will hardly do to say that a verdict for $1 is compensatory; but, if it be, this does not cure the error in the instruction. The award may have been made in order that there might be no question as to who should pay the costs without any reference to compensation to the plaintiff; but, if this be not true, the vice of the instruction with reference to mitigation of damages becomes apparent. That is to say, the jury may have concluded that the mitigating facts pleaded should be considered in reduction of actual damages suffered. Upon no ground can the instruction quoted be sustained.

Although we do not regard the proposition involved in the case, it may be well to speak of defendant's claim that the article is not libelous per se. Plaintiffs were charged, or at least the jury was authorized to so find, with entering into a pool to control the prices in the hog market at Neola. The trial court instructed that this charged them with a crime. Defendant contends that this is not so, and cites in support of his contention Achorn v. Piper, 66 Iowa, 694, 24 N. W. 513. It is true that that case seems to so hold, although not as broadly as defendant contends. But sections 5060, 5061, and 5062 of the Code, in force when the publication was made, made pools and combinations to regulate or fix the price of any commodity a crime. These statutes did not exist when the Achorn Case was decided. But counsel insist that these statutes were and are unconstitutional and void, and that the law is in fact the same as when Achorn's Case was decided. This contention overlooks the proper definition of libel, and, were we to concede for the purposes of the case that the statutes are unconstitutional, it does not follow that plaintiff was not slandered and defamed not only in their business or trade, but in the eyes of the people. The Legislature in declaring the public policy of the state had spoken in an authoritative way, and although the statutes may have been void because not uniform in their operation, or because of the varying degrees of punishment, the acts with which plaintiffs were charged were none the less contrary to the public policy of the state as declared by proper legislative authority, and the publication thereof would of necessity tend to expose plaintiffs to public hatred or contempt, and to deprive them of the benefits of public confidence or social intercourse. This latter is the definition of libel for civil as well as criminal cases. Morse v. Printing Co., 124 Iowa, 713, 100 N. W. 867; Stewart v. Pierce, 93 Iowa, 136, 61 N. W. 388. Manifestly the words written of plaintiffs would

injure them in their trade or business. Since Achorn's Case was decided, there has been a remarkable change not only in public opinion, but in the law as well, regarding pools, combinations, and trusts calculated to stifle competition, control prices, or regulate the output of goods, and the law of libel must of necessity keep pace with public opinion as reflected in the public prints as well as in legislation. Conceding arguendo that the law is unconstitutional, and that defendant may attack it collaterally, it does not follow that it may not be considered in determining the libelous character of the publication.

For the errors pointed out, the judgment must be, and it is, reversed.

LEIFHEIT v. NEYLON. (Supreme Court of Iowa. July 7, 1908.) 1. BOUNDARIES ADJOINING PROPERTY AGREED LINE ACQUIESCENCE.

M., owner of a city lot, in 1893 contracted to sell plaintiff the west part of the lot, and in 1904 made her a deed for all the lot except the east 36 feet. In 1894 M. contracted to sell all the lot except the west 30 feet to S., describing the property as being 34 feet wide at one end and 42.6 feet at the other. Plaintiff went into possession under her contract in 1893, and S. took possession of his part in 1894. Plaintiff's husband helped S. measure off the property claimed by each, and together they constructed a fence on the line found by them between the two parcels, after which S. erected a barn, to which the fence was joined, and both barn and fence thereafter remained as originally placed. S. having defaulted and surrendered his contract, M. in 1899 contracted to sell defendant the east 36 feet of the lot, and thereafter made her a deed therefor, informing her that it was 36 feet in front and 42.6 feet in the rear; defendant understanding that she was to have all up to the fence and the west side of the barn. Held, that the line of the fence and barn so agreed on and acquiesced in, having remained for more than 10 years, constituted an agreed division line.

[Ed. Note. For cases in point, see Cent. Dig. vol. 8, Boundaries, §§ 232-242.] 2. SAME-ESTOPPEL.

Plaintiff, having agreed on the line, and seen the barn erected with reference thereto. and made no protest, nor claimed any more of the property than was on her side of the fence. until the commencement of the suit to determine the boundary, was estopped to claim that the fence did not mark the true boundary.

Appeal from District Court, Polk County; James A. Howe, Judge.

This is an action to determine the boundary line between two parcels of land in the city of Des Moines. The trial court established the line claimed by plaintiff, and defendant appeals. Reversed and remanded.

Sullivan & Sullivan, for appellant. George Harnagel and Clinton L. Nourse, for appellee.

DEEMER, J. Appellee is the owner of a certain lot in the city of Des Moines, except the east 36 feet thereof, and appellant is the owner of the east 36 feet of said lot. Each acquired ownership of their property by conveyance from one L. M. Mann, who at one

time owned the entire lot. The controversy is over the boundary or division line between these two parcels of land. There is a barn upon defendant's property, and a fence between that owned by the respective parties to this action, which, if found to be on the true line, gives defendant a strip 36.33 feet at one end and 42 feet at the other, leaving plaintiff with a strip of 27.67 feet in width at one end and a little less than 30 feet at the other. The conveyance, under which plaintiff claims was made pursuant to a contract to convey the west 30 feet of the lot, although the deed conveys all of the lot save the east 36 feet. There is no doubt that the barn and fence to which we have referred, if treated as upon the line between these two parcels of land, give to defendant more than the east 36 feet of the lot; but she claims that she is entitled to it, because, at the time she purchased, this barn and fence were pointed out to her as being upon the true line between the two parcels of ground, and for the further reason that the line so fixed had been recognized and acquiesced in by the respective owners for more than 10 years before this controversy arose.

L. M. Mann was at one time the owner of the entire lot. In the year 1893 Mann contracted to sell the west part of the lot to plaintiff and her husband, and in the year 1904 he made a deed to plaintiff of all of the lot, except the east 36 feet. In 1899 Mann made a contract with defendant to sell her the east 36 feet of the lot, and thereafter made her a deed of the property. It also appears that in the year 1894 Mann made a contract to sell all of the lot, except the west 30 feet thereof, to one Stivers, and in that contract he described the property as being 34 feet in width at one end and 42.6 feet at the other, although he was told that the property was 36.2 feet wide in front and 42 and some tenths in the rear. Plaintiff went into possession under her contract with Mann in the year 1893, and Stivers went into possession of the property he had purchased in the year 1894. Plaintiff's husband, who was one of the purchasers under the contract from Mann, and who was in possession of the premises contracted for by them, helped Stivers measure off the property claimed by each, and together they bought the material for the fence and erected it upon the line found by them between the two parcels of ground. Stivers also erected the barn, to which the fence was joined at the rear end of the lot, and Leifheit knew that Stivers was placing it upon what was thought to be the line between the two parcels of ground. This barn and fence were erected in the year 1894, and have since remained where they were originally placed. Defendant claims that she purchased with reference to this line, and that the line so established has been acquiesced in by plaintiff, and also by Mann and Stivers, for more than 10 years. After the erection of the barn water mains were laid and other

improvements made with reference to the line as established by the barn and fence. These facts clearly bring the case within the rule announced in Miller v. Mills Co., 111 Iowa, 654, 82 N. W. 1038, Kulas v. McHugh, 114 Iowa, 188, 86 N. W. 288, Laughlin v. Francis, 129 Iowa, 62, 105 N. W. 360, O'Callaghan v. Whisenand, 119 Iowa, 566, 93 N. W. 579, Kitchen v. Chantland, 130 Iowa, 618, 105 N. W. 367, Younker v. White (Iowa) 111 N. W. 824, Quade v. Pillard (Iowa) 112 N. W. 646, and other like cases, unless it be that, as contended by appellee, neither Mann nor any one for him ever recognized the barn and fence as being on the true line.

Stivers surrendered his contract with Mann after living upon the property for three or four years, and Mann sold to defendant in November of the year 1899, reserving possession until February 1, 1900. When defendant purchased from Mann, she was informed that the lot was "36 feet in front and 42.6 in the rear." Defendant then asked if this would ever make any trouble, and was told that it would not. Although her deed and contract conveyed but the east 36 feet, defendant understood that she was to have all of the property up to the fence and the west side of the barn. It is argued for appellee that as Mann at all times owned the property, subject to the outstanding contracts, the doctrine of acquiescence does not obtain, for the reason that he could not agree with himself as to the boundary line. In some respects this is true; but he could as owner lay off his ground into two tracts, and sell with reference to his subdivision thereof. Viewing the case from one aspect, this is what he did. But we need not determine the case upon that theory. Mann sold to plaintiff and her husband, and gave them possession in the year 1893. He sold to Stivers, and gave him possession in the year 1894. With the presumed acquiescence of Mann, these parties established the division line between their pieces of property. Although he did not aequiesce, plaintiff, through her husband, and Stivers agreed upon a line, built a fence, and erected a barn with reference thereto, and so far as plaintiff is concerned this line was acquiesced in by her for more than 10 years as being the true one between the two pieces of property. Stivers regarded it as the true line so long as he lived upon the east part of the lot, and when he surrendered the contract it is evident that Mann regarded it as the true line, and pointed it out to defendant as such when he conveyed to her, although her deed did not call for more than 36 feet of the lot east and west. It was definitely stated to defendant that, although her deed called for but 36 feet, she would have no trouble about the excess, for the manifest reason, no doubt, that down to that time plaintiff was not claiming that the fence was over the line and upon her ground.

If it satisfactorily appeared that after the making of the contract with plaintiff, and

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after Stivers surrendered his contract, Mann intended to make another division of the lot, we would have a very different question. But it does not appear that plaintiff, in taking her deed, was getting anything more than her contract called for, nor does it appear that defendant was told she was to get but the east 36 feet. On the contrary, nothing seems to have been said to plaintiff about the matter, and defendant was assured that she was getting property to the line marked by the baru and fence. Plaintiff is also estopped from claiming the property in dispute, for the reason that through her agent she agreed upon the line, saw the barn erected with reference thereto, and made no protest, and at no time, until the commencement of this suit, did she claim any more property than was on her side of the fence. When Mann took the property back from Stivers, he accepted it in the condition it was then in, and sold to defendant with reference to the boundaries marked by the barn and fence. At no time did he evince a purpose to make another subdivision of the lot. Under the doctrine of estoppel, as well as by reason of recognition and acquiescence, the boundary as fixed and determined between plaintiff and Stivers should be regarded as the true one.

The decree should have been for the defendant, and the case must be remanded, in order that such a one, not inconsistent with the issues tendered, may be rendered. Reversed and remanded.

CULBERTSON v. SALINGER & BRIGHAM et al.

(Supreme Court of Iowa. July 9, 1908.) 1. APPEAL AND ERROR RECORD-PRINTED ABSTRACT-SERVICE.

The matter of service of the printed abstract on appeal is governed by rule 29 of the Supreme Court, providing that "at least 30 days before the day assigned for the hearing of the cause, the appellant shall serve upon each appellee, or his attorney, a printed abstract," and not by Rule 37, which goes no farther than to provide what shall be the result of a failure to file the abstract with the clerk within 30 days before the beginning of the second term after the appeal is taken.

2. SAME-ADDITIONAL ABSTRACT BY APPELLEE-TIME FOR FILING.

The rule of the Supreme Court governing the time of filing abstracts or amendments to abstracts is not a hard and fast rule which will be enforced in all cases regardless of the circumstances.

3. COURTS - JURISDICTION VARIANCE BETWEEN PLEADINGS AND PROOF.

Where the allegations of a cross-petition are sufficient to show that the subject-matter of the cross-petition is germane to the main case, the court does not lose jurisdiction by the fact that the proof fails to show a cause of action relevant to the case.

4. DEPOSITIONS-INTRODUCTION IN EVIDENCE -PART OF DEPOSITION.

A party introducing a deposition to prove admissions made therein by a witness since deceased need not read the entire answers, but may read such portions as have a direct bearing

in explaining or qualifying the admissions sought to be established.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 16, Depositions, §§ 276, 277.]

5. SAME-RIGHTS OF ADVERSE PARTY.

Where a party reads portions of the answers to interrogatories contained in a deposition to prove admissions by deponent, the adverse party may read the omitted portions of the answers, the several portions of such answers being more or less in direct relation.

[Ed. Note. For cases in point, see Cent. Dig. vol. 16, Depositions, § 277.]

6. SAME-PARTIES ENTITLED TO USE DEPOSI

TIONS.

A deposition taken under the issues in the main case may be read in evidence by a crosspetitioner for the purpose of proving admissions made by one of the deponents therein who, prior to his death, was a party defendant to the action.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 16, Depositions, §§ 237-241.j 7. TRIAL

RECEPTION OF EVIDENCE-OBJECTIONS-TIME TO OBJECT.

After evidence has been received and incorporated into the record, it is too late to object thereto on the ground of incompentency. [Ed. Note.-For cases in point, see Cent. Dig. vol. 46, Trial, §§ 183-190.]

8. SAME STRIKING OUT EVIDENCE ADMITTED. Where a cross-petitioner was permitted to read portions of answers in the deposition of a deceased party to prove admissions by such decedent, and defendant was then permitted to read the omitted portions of the answers as cross-examination, it was erroneous for the court to thereafter declare that the portions of the deposition read by defendant must be considered as evidence in chief, and, on his denial that the same was evidence in chief, to sustain a motion by cross-petitioner to strike from the record the portions of the deposition so read by defendant.

9. WITNESSES - COMPETENCY-TRANSACTIONS WITH PERSONS SINCE DECEASED.

In an action on partnership notes, in which M., who had assumed payment of and become surety on the notes, was joined as a defendant, the testimony of the surviving partner with reference to the partnership relation, and as to the manner of conduct of some of the business of the partnership was not, so far as M. or his representatives were concerned, within the prohibition of Code 1897, § 4604, providing that no party to any action or proceeding, nor any person interested in the event thereof, nor any person from, through, or under whom any such party or interested person derives any interest or title by assignment or otherwise, shall be examined as a witness in regard to any personal transaction or communication between such witness and a person who is deceased, against the executor, administrator, heir at law, next of kin, assignee, legatee, devisee, or survivor of such deceased person.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 50, Witnesses, §§ 658, 659.]

10. PARTNERSHIP RIGHTS AND LIABILITIES OF THIRD PERSONS-ACTIONS-EVIDENCE. In an action on partnership notes, in which M., who had assumed payment of and become surety on the notes, was made a defendant, and in which a surviving partner filed a cross-petition seeking to cancel notes executed by him to M., evidence offered by the cross-petitioner as to the existence of the partnership and as to the manner of conduct of some of the partnership business, was admissible as against M. 11. WITNESSES COMPETENCY CONVERSATIONS WITH PERSONS SINCE DECEASED.

In an action on partnership notes, in which M., who had assumed payment of and become surety on the notes, was made defendant, and

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Code 1897, § 4604, providing that no party to any action or proceeding, nor any person interested in the event thereof, nor any person from, through, or under whom any such party or interested person derives any interest or title by assignment or otherwise, shall be examined as a witness in regard to any personal transaction or communication between such witness and a person deceased at the commencement of such examination, against the representative or assignee of such deceased person, has no application to conversations overheard by the witness whose competency is questioned.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 50, Witnesses, §§ 696, 697.]

13. BILLS AND NOTES-WANT OF CONSIDERA

TION-CANCELLATION-EVIDENCE.

One seeking the cancellation of notes on the ground that they were executed without consideration has the burden of proving the want of such consideration.

[Ed. Note. For cases in point, see Cent. Dig. vol. 7, Bills and Notes, § 654.]

14. PARTNERSHIP-LIABILITIES AS TO THIRD

PERSONS-ACTIONS EVIDENCE.

In an action on partnership notes, in which M., who had assumed payment of the notes and become surety for their payment, was made defendant, and in which a surviving partner interposed a cross-petition seeking cancellation of notes executed by him to M. in satisfaction of a partnership debt, evidence considered, and held insufficient to support a finding that the notes executed by such surviving partner were not supported by a consideration.

Appeal from District Court, Carroll County; B. H. Miller, Judge.

Action originally commenced at law, by plaintiff, to recover upon four promissory notes. Two of the notes bear date of January, 1887, and were executed by Salinger & Brigham (composed of B. I. Salinger and L. P. Brigham) and L. P. Brigham to plaintiff. The other two notes bear date in September, 1888, and May, 1889, respectively, and were executed by Salinger & Brigham to plaintiff. H. C. McAlister was also made a party defendant, and as against him it was asserted that he had in writing assumed or agreed to pay the indebtedness evidenced by the notes sued upon. And it was said that the moneys loaned Salinger & Brigham, evidenced by the four notes sued upon, was used to purchase a certain tract of land, in which said firm and said McAlister were interested; that "the agreement by McAlister was an undertaking to become surety for Salinger & Brigham on two notes, to be executed to Culbertson in lieu of others made by Salinger & Brigham to plaintiff." A copy of the writing is attached. It bears date November 16, 1891, and in substance details the execution on that day by B. I. Salinger and L. P. Brigham of three notes for $2,400 each to McAl

ister; that "these notes are given in full of account between said parties to date, in full settlement of all former notes given, and all matters growing out of the loaning and handling of McAlister's money and said other parties." After making reference to some matters of collateral security, the writing preceeds, "This agreement shall not become operative until the said McAlister shall sign certain notes heretofore agreed upon, as surety for said Salinger & Brigham, and the same when so signed accepted by W. L. Culbertson in full settlement of all matters between Culbertson and Salinger & Brigham." The individual signatures of Salinger, Brigham, and McAlister are attached. Across the face of the instrument this is written: "This agreement canceled by mutual consent, January 4, 1892. H. C. McAlister." McAlister alone appeared to the petition and filed answer-in effect a general denial. It may be said in passing that the issue thus joined was finally disposed of in favor of said defendant. See 111 Iowa, 447, 82 N. W. 925, and 131 Iowa, 307, 108 N. W. 454. Pending the issue between plaintiff and McAlister, and in January, 1897, B. I. Salinger appeared in the action, and filed a cross-petition in equity as against McAlister. In such pleading it is alleged that he (Salinger) was a member of the sometime firm of Salinger & Brigham, since dissolved; that certain business transactions were had between himself and McAlister, in the course of which the latter "executed a writing dealing with a debt from Salinger & Brigham to W. L. Culbertson, upon which Culbertson has declared in this action; that as a final outcome of these negotiations and of the transactions of which they dealt this cross-petitioner executed to McAlister his promissory notes (describing them as one for $300 and six for $500 each, all dated July 11, 1893, and payable, one each year, beginning with July 11, 1894, with interest at 8 per cent.), securing the same with a life insurance policy deposited with said McAlister." It is then alleged that said notes were wholly without consideration, and given for the debt of L. P. Brigham after the creation of said debt. The prayer is for cancellation of said notes, and a return of the insurance policy. It does not appear that any notice of the cross-petition was given McAlister, and he did not appear thereto. In November, 1900, Salinger amended his cross-petition, alleging the death of McAlister, testate; that all his property, including the notes involved in this cross-petition, was bequeathed to his wife, Martha McAlister; that Martha has since died, intestate, claiming to be the owner of said notes, and that Lucius McAlister has been appointed administrator of her estate. And the prayer is that said administrator be substituted as defendant. It does not appear how the administrator was brought in, but in March, 1902, he appeared and answered, "in compliance with an order of this court here

tofore made." The answer, in addition to a general denial, denies the right of the crosspetitioner to assert his cause of action in this action, and denies the jurisdiction of the court to hear the same, because the matters alleged are in no wise related to the cause of action declared upon by plaintiff nor to the subject-matter thereof. For a further defense it is pleaded that McAlister was at all times a resident of Muscatine county, where his will was probated after his death; that Martha McAlister was at all times a resident of said county, as is also the pleading defendant; that the notes sought to be canceled are payable by their terms in that county. And it is then said that long before said Lucius McAlister, as administrator, made a party defendant to the cross-petition, and on August 23, 1900, he had commenced an action on the notes in question in the district court of Muscatine county against said Salinger, which suit is still pending and undisposed of. Accordingly, it is asserted "that this court has no jurisdiction over the subject-matter of this action or over the defendant." The prayer is that the cross-petition be dismissed. Trial was had on the issue thus joined, resulting in a decree in favor of the cross-petitioner The defendant administrator appeals. Reversed.

was

Jayne & Hoffman and George W. Bowen, for appellant. B. I. Salinger, pro se.

BISHOP, J. 1. Several motions have been submitted with the case, and we shall first make disposition of these. To begin with, we have a motion by appellee to strike appellant's abstract from the files, for the reason that no proper and timely service thereof had ever been made upon him, said appellee. On going to the record, we find that the abstract was filed in the office of the clerk on August 16, 1907, and that this was 30 days before the beginning of the second term after the appeal was taken is not disputed. Under order of this court, the case was put on the term submission docket for the January, 1908, term, and was by the clerk assigned and set for hearing at the third period of the term, beginning March 10, 1908. The motion to strike was filed on January 13, 1908, and was predicated upon the precise ground that no personal service of the abstract had ever been made upon appellee. Pending the motion, and on January 18, 1908, service of the abstract was made by appellant. lowing this, appellee filed a supplement to his motion, demanding that the abstract be stricken because the service was not within the time prescribed by the rules. We think the service was timely, and that the motion to strike should be overruled. The matter of service is governed by rule 29 which provides that, "at least thirty days before the day assigned for the hearing of the cause, the appellant shall serve upon each appellee, or his attorney, a printed abstract," etc. Rule 37, relied upon by appellee, goes no farther than

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to provide what shall be the result of a failure to file in the office of the clerk an abstract within 30 days before the beginning of the second term after the appeal is taken.

Next in order, we have a motion by appellant to strike an additional abstract filed by appellee, because not filed within the time fixed by the rules. We have repeatedly said that the rule governing the time of filing additional, or amendments to, abstracts is not a hard and fast one, and, under the circumstances, we think it should not be enforced in this case.

Appellant also moves to strike the reply argument of appellee for various reasons. Without discussing these, we think the reasons are insufficient, and the motion is overruled.

2. Taking up the matters relied upon for a reversal of the decree, we may first dispose of the contention that the court was without jurisdiction to entertain the cross-petition, for the reason that the cause of action stated therein had no relation to the subject-matter involved in the main action. And reliance is placed on Code, § 3574, which provides that, "When a defendant has a cause of action affecting the subject-matter of the action against the codefendant,

* he

may, in the same action, file a cross-petition against the codefendant,” etc. The sufficiency of the pleading here assailed, as stating matter proper to be brought forward in the cross-petition, was one of the questions involved on the appeal last before us in the main case. 131 Iowa, 307. And we there expressed the opinion that the pleading was not open to the objection that it did not present matter proper to a cross-petition. Resting content with that opinion, we have on this appeal the further question of jurisdiction, based upon the contention of appellant that the proof adduced on the trial established the transactions as wholly distinct and independent of each other. We think that, under the circumstances of the case, appellant has no grounds for complaint. As the cause of action stated in the cross-petition was germane, the court did have jurisdiction of the subject-matter brought forward by the pleading, and it had jurisdiction of the parties. And it is to be observed that the question made by the answer was carried along without objection, and submitted with the case. Conceding the state of the proof at the close of the trial to be as appellant contends, we think the court properly put aside the technical question, and proceeded to an investigation of the merits of the issue. As sustaining this view, see Novak v. Novak, (Iowa) 115 N. W. 1.

3. In setting forth the errors relied upon for a reversal, it is said that the court had no jurisdiction to try the case because of the action pending in Muscatine county. It is conceded in argument, however, that, if held that the cross-petition was properly in the case, this contention must be regarded as

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