tract doesn't say anything about half of it. A. There is a letter there that shows that they are entitled to one-half, and we could have the other half. Q. That you sold? A. Yes. Q. Where? A. Around the city here. Q. Did you sell any of these machines outside? A. No, I didn't have money enough to go out of town to sell any at that time."

On November 25, 1903, the Blakeslee Company wrote to the Reinhold Company a letter, from which we quote the following: "We understand, however, that, in express opposition to the terms of the contract, you have been selling these goods to parties other than us, and while we are willing to share profits with you on goods sold by you in your own city, we must most emphatically object to any sale, made by you out of Detroit, of which we do not get the full profit. We only recently learned of this, and in our last letter asked you for an accounting, which we did not get. Unless we get a full statement from you by return mail showing what you have sold, we shall consider the contract broken by you from the date of your first sale of a machine after you signed the contract with us, and shall take vigorous steps to enforce our right in this regard. We never supposed that there would be any difficulty regarding the settlement of this part of the account, or we would have spoken about it before, as to the machines which we knew you had sold at the time. As to any money which you claim we owe you, we desire to say that same is not due you until the machines are sold, and even if it were due, we would be compelled to await your action regarding our claim before sending you a check."

The assignments of error raise the following questions: (1) That the court erred in not submitting defendant's seventh request to charge to the jury as follows: "I charge you that the testimony showing that the Blakeslees had a number of orders for certain machines, known as 'Cube Cutters,' on | hand, namely, 28, which the Reinholds refused to fill, is proof of the establishment of the market to the extent of said machines, and the Blakeslees are entitled to recover their loss upon the number of cube cutters that the Reinholds refused to furnish to fill these orders." (2) That the court erred in not submitting the appellant's ninth request to charge to the jury, as follows: "I charge you that you may positively allow the Blakeslee Company their profit on the machines admitted on the stand to have been sold during the contract period [this was admitted by the Reinholds to have been 28]. The Blakeslees have testified that these machines numbered 100. This number is not admitted by the Reinholds, and you are therefore at liberty to draw your own estimate as to the amount actually sold by them, and when you have fixed this estimate, you are then to allow the Blakeslees their profit on the machines sold." (3) That the court erred in

charging the jury that the Blakeslees were bound to make payment for machines as delivered, when the contract expressly states that payment was to be made within 30 days after machines had actually been sold. (4) The court erred in refusing to give appellant's second, third, and fifth requests to charge. (5) That the court erred in overruling the appellant's motion to vacate and set aside the verdict rendered by the jury in favor of the Reinholds, for reasons set up in the said motion and supplemental motion of appellant, etc.

1. The principal question, in the view of the trial court, for determination, and which we think was properly submitted to the jury, was as to who really broke the contract. It seems apparent from the contract, as well as from the record, that the parties were dealing with reference to three different forms of ice machines. The original contract related to the "Reinhold Ice Chopper," which was to be furnished at the price of $21, and to be paid for within 30 days from date of sale by the consignee. The addition to the contract referred to, first, "Gem Ice Choppers" at a price of "Twelve ($12) dollars, less five (5%) per cent. in thirty (30) days and half freight allowed in Chicago; second, cube machines on the following terms for one year. Price to be forty-five ($45) dollars f. o. b. Detroit for the term of six (6) months. After that date the said first party is to receive an additional twenty-five ($25) dollars, if the machine is then found satisfactory." We are of the opinion that the court correctly construed this addition to the contract as stating its own terms of payment, and not adopting, with reference thereto, the provision of the original contract, which related solely to the "Reinhold Ice Chopper." The plaintiff company not only failed to show compliance on its part with the terms of the contract as to payment for the "Cube Cutters," but, on the contrary, proved its refusal to comply with such terms. It follows that the request was properly refused.

2. It appears from the letter of the Blakeslee Company that they were willing to share profits with the defendant "on goods sold by you in your own city," and it further appears from the bill of particulars that they were given credit for one-half the commissions on the machines admitted to have been sold, and the only machines admitted to have been sold by the defendant. Mr. Reinhold testified that these 28 machines were sold in the city of Detroit, the Blakeslee Company received the benefit of the commission, in accordance with the terms of their letter, in the judgment in justice's court, and apparently received the benefit thereof in the verdict of the jury in the circuit court. The trial judge covered this request in his charge, as follows: "If you find that the plaintiff. regardless of the terms of the contract, sold either 100 machines or any number less than

100, or whatever number you determine the evidence shows, then you should deduct the amount of the profits that the defendant would have made if it had sold these machines from the claim of the plaintiff, which is $500." The request, as presented, required the court to charge the jury, as to the number of machines sold, that "the Blakeslees have testified that these machines numbered 100." The Blakeslees had not so testified, but only to alleged admissions by the Reinholds, and the circuit judge was therefore justified in refusing the request as presented.

3. What we have said on the first point renders it unnecessary to discuss this point.

4. The second and third requests to charge required the court to determine, as a matter of law, that the contract had been broken by the Reinhold Company, which the court very properly refused to do.

The fifth request was given in terms.

5. No reasons were filed by the court for overruling the motion to set aside the verdict, nor exceptions taken, and the matter is not before us for consideration upon this record.

The judgment is affirmed.

SABIN v. CAMERON. (No. 15,250.) (Supreme Court of Nebraska. June 26, 1908.) 1. MECHANIC'S LIEN-EVIDENCE-RECORD OF LIEN.

The record of a mechanic's lien is not competent evidence either of the time when the material and labor therein mentioned were furnished, or that such labor and material were furnished and used upon the building therein described.

2. TRIAL INSTRUCTIONS APPLICABILITY TO PLEADINGS AND EVIDENCE.

It is reversible error to instruct the jury upon a question not raised by the pleadings nor applicable to the evidence, when such instructions have a tendency to mislead the jury or have a prejudicial effect upon the party complaining.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 46, Trial, §§ 584-612.]

(Syllabus by the Court.)

Commissioners' Opinion.

Department No.

1. Appeal from District Court, Lancaster County; Cornish, Judge.

Action by Margaret L. Sabin against Joseph J. Cameron. Judgment for plaintiff. Defendant appeals. Reversed and remanded.

Burkett, Wilson & Brown, for appellant. L. W. Billingsley, R. G. Greene, and P. F. Greene, for appellee.

GOOD, C. Margaret L. Sabin, the plaintiff, brought this action in the district court against Joseph J. Cameron, the defendant, to recover the sum of $224.90. For her cause of action she alleged that in October, 1904, she entered into a contract, chiefly in writing, with the defendant, whereby he was to furnish all the material and build and con

struct certain improvements and to make certain repairs to the two-story frame residence of the plaintiff, situated on the east half of lot 8 and the west 45 feet of lot 9, in block 127, in the city of Lincoln, for the consideration of $1,080; that the defendant immediately entered upon the performance of his contract, furnished the material and performed the work, and that from time to time she had made payments to him until she had paid the entire consideration agreed upon; that defendant, in the performance of the work and furnishing the material called for by the contract, purchased certain material and obtained certain labor and contracted to pay for the same in the sum of $224.90, the reasonable value of said labor and material, but failed to pay for the same, and concealed from the plaintiff the fact that he had not paid for said material and labor, which consisted of plumbing material and work; and that, by reason of the failure to pay for said material and labor, he had wrongfully permitted a mechanic's lien to be filed by a subcontractor, who had furnished such material and labor, in the sum of $224.90. She further averred that, when she discovered the existence of the lien, the defendant promised that, if she would pay off the lien, he would pay her therefor, and averred that said Cameron had not paid the said lien, and that she had been compelled to pay the said lien to her damage in the amount thereof. To this petition the defendant filed an answer and cross-petition, in which he admitted the making of the contract, and that he had entered upon the work and performed his part of the contract, and denied all the other allegations of the petition, alleged that the contract was in writing and set out a copy thereof, and averred that after the signing and delivery of the contract and while he was performing the work thereunder, and at the special instance and request of the plaintiff, he furnished labor and material for improvements and changes upon the residence property of the plaintiff other and different from those specified in the written contract, and set out a list of the extras furnished, and alleged their value to be $353.34, and prayed for judgment for that amount. Plaintiff replied, first, with a general denial, and further specially denied that defendant furnished any labor or material not contemplated by and included in the contract between the parties, and alleged that the instrument set out in the answer was but a partial memorandum of the contract. The trial was had upon the issues thus joined, which resulted in a verdict and judgment for the plaintiff in the sum of $21.56. The defendant has appealed.

We will first consider the errors alleged that relate to the claim of the plaintiff. It developed during the trial that plaintiff had not paid the entire amount of the alleged lien, but had paid only $20 thereon previous to the commencement of the action.

The court

by instructions limited the amount that plaintiff was entitled to recover to this sum with interest. The defendant complains because the verdict and judgment are not supported by sufficient evidence. There is no evidence in the record to show that defendant ever promised plaintiff that he would reimburse her if she would pay the alleged lien, and there is no evidence as to when any of the material or labor, for which the lien was claimed, were furnished or performed, save that furnished by the record of the alleged mechanic's lien. This court has held that the verified account of the items with proof of the amount of the claim is not sufficient to support a decree of foreclosure upon a mechanic's lien. Urlau v. Ruhe (Weeth) 63 Neb. 883, 89 N. W. 427. This court has also held that the verified account of a mechanic's lien proves nothing except the filing thereof and the making of the oath thereto. Wakefield v. Latey, 39 Neb. 285, 57 N. W. 1002. It is evident that the record of the lien could prove no more than the verified account itself. There was, therefore, no competent evidence to show that the material was furnished within the time, or that it went into the premises decribed, so as to entitle the claimant to a lien. There is no evidence from which it can be said that a valid lien existed against the plaintiff's property. She did not pay out any sum in response to any request of the defendant, nor, so far as the record discloses, was there any necessity for her to pay out any sum to protect her property, and the judgment in favor of the plaintiff is not sustained by any competent evidence. The proof is insufficient, also, in that there is no evidence in the record to show that the house on which the improvements and repairs were made was located upon the lots described in the petition.

The defendant complains of several instructions given by the court, which, in effect, submitted to the jury the question as to whether or not the extras were furnished gratuitously. It appears clear from an examination of the pleadings that the question of whether or not the extras were furnished gratuitously was not an issue. Plaintiff by her reply denied that any extras were furnished, or that any material or labor was furnished other than those contemplated by the contract. An inspection of the contract discloses that most of the extras furnished, for which claim was made by the defendant, were not mentioned or referred to in the contract. The evidence also discloses that the improvements made outside of the contract were substantial and of considerable value, and there is no competent evidence in the record from which it could be inferred that there was any intention to furnish the same gratuitously, except that it was claimed by the plaintiff that defendant had not previous to the bringing of the action made any demand against her for or on account of the extras. This, however, is denied by the defendant.

We do not think the fact alone, even if it be true, as contended by the plaintiff, that he made no previous demand, would be sufficient to justify a finding that the alleged extras were furnished gratuitously. Besides, the question of whether or not they were gratuitously was not made an issue by the pleadings. It is evident that the trial court by these instructions submitted to the jury for its determination an issue not warranted by the pleadings or the evidence. The rule is well established in this court that it is prejudicial error to submit to the jury an issue not raised by the pleadings or evidence. Esterly v. Van Slyke, 21 Neb. 611, 33 N. W. 209; Walker v. Haggerty, 30 Neb. 120, 46 N. W. 221; Farmers' & Merchants' Bank v. Upham, 37 Neb. 417, 55 N. W. 1044; Roberts v. Drehmer, 41 Neb. 306, 59 N. W. 911; McCready v. Phillips, 44 Neb. 790, 63 N. W. 7; Kansas City & O. R. Co. v. Rogers, 48 Neb. 653, 67 N. W. 602; Swift & Co. v. Holoubek, 60 Neb. 784, 84 N. W. 429. As the jury disallowed the defendant's entire claim, it is apparent that these instructions were prejudicial to him. It follows that the judgment of the district court should be reversed and the cause remanded for further proceedings.

DUFFIE and EPPERSON, CC., concur.

PER CURIAM. For the reasons given in the foregoing opinion, the judgment of the district court is reversed, and the cause remanded for further proceedings.

RICE v. SHARP et al. (No. 15,247.) (Supreme Court of Nebraska. June 26, 1908.) APPEAL AND ERROR-AFFIRMANCE-BILL OF EXCEPTIONS-CERTIFICATE.

Where the pleadings support the judgment rendered, and the correctness of the court's finding depends upon the evidence adduced on the trial, the judgment will be affirmed, unless the bill of exceptions is certified by the clerk of the district court as being either the original or a copy of the one allowed and ordered made a part of the record of the case. (Syllabus by the Court.)

tendent and his employés, made application to the Secretary of the Interior to have issued to him a patent in fee simple for his allotment, viz., the E. 2 of the S. W. 4 of section 1, township 25 N., range 7 E. (no county and state given); that upon the same day that he finally received his patent defendant Sharp represented to him that he (Sharp) was familiar with the land and the prices therefor, that he was experienced in the value of Indian lands on the Winnebago reservation, and that he would find plaintiff a purchaser who would pay the highest price therefor; that the plaintiff, relying upon the representations made by said Sharp, executed a deed to one J. L. Kuhns for a consideration of $1.600; that the said Sharp represented to plaintiff that the price named was the highest price obtainable, and that said Kuhns had deposited money for the payment of the full sum, which could be paid at once; that, relying upon such representations, plaintiff executed a deed to said Kuhns for the land above described; that the deed was acknowledged before the said Sharp as notary public, and that said Sharp was the sole witness of plaintiff's signature; that the transaction "is an unconscionable contract, and the consideration wholly inadequate, or about one-half the actual value of the land; that the said Theodore Sharp sustains confidential and fiduciary and trust relations to this plaintiff. Plaintiff further alleges that the consideration paid was the money, fund, or property of the said Theodore Sharp, and that said Theodore Sharp made the said deed for his own benefit without disclosing to the plaintiff his interest therein, and that he is now and has been from the beginning the sole party interested in said transaction or a partial owner thereof, and that, in all the misrepresentations made by said Theodore Sharp to the plaintiff, plaintiff relied thereon, and did not know that said Theodore Sharp was making said deed for his own benefit. Plaintiff further alleges that the said John L. Kuhns named in the deed has no interest therein, and that he furnished no funds for the purchase of said land, and that the representation made by said Theodore Sharp that said John L. Kuhns had funds on deposit for the purpose of buying land were false and untrue; that because of the false and untrue representations made by defendant Theodore Sharp and relied on by plaintiff he was damaged in the sum of $1,600." The prayer is for a cancellation of the deed and for an injunction restraining defendants from conveying the lands to other parties.

The amended answer admits that defendant Sharp is chief clerk of the Indian office at the Winnebago Agency; that plaintiff upon December 12, 1906, received from defendant Sharp as purchase price of the premises the sum of $1,600, and alleges that the plaintiff executed and delivered a deed to said premises to defendant Kuhns, conveying to him 117 N.W.-7

the title thereto in trust for defendant Sharp, alleges that said conveyance was subject to a valid lease of said premises to one Olson for the term of three years from March 1, 1906, at an annual rental of $65 for the first and second years, and $80 for the third year, the lessee, in addition, to break out 10 acres at a cost of not less than $20, and erect a wire fence at a cost of not less than $35, which was to remain upon the premises at the termination of the lease, "and denies each and every other allegation in plaintiff's petition contained." In an amendment to the amended answer filed by leave of court defendants allege that, after discovering and having full knowledge of the fact that defendant Sharp furnished the money for the payment of the land in question, plaintiff knowingly and purposely used and appropriated to his own use the consideration money received by plaintiff for said land, and after the commencement of this suit, with full knowledge of the allegations set forth in his petition, plaintiff used and appropriated to his own use several hundred dollars of the consideration money so received by him. No reply was filed to the amended answer, but for reply to the amendment to the amended answer plaintiff admits that after the filing of the petition in this action, and with the belief that the money consideration given for the land in controversy was the money of the defendant Sharp, "but which fact was not brought to the full knowledge of plaintiff until the admission was made by defendant in his answer," did use and expend for his own use some money deposited with John Alam; "the same being a part of the consideration paid by said Sharp for the land." Upon these issues the case proceeded to trial. When plaintiff rested, defendants demanded judgment, and, from a decree dismissing plaintiff's petition and awarding defendants their costs, plaintiff has prosecuted this appeal.

A reversal is sought on the following grounds: "Appellant alleges and claims that the sustaining of the defendants' motion to dismiss the action made at the close of the plaintiff's evidence is contrary to the law and the evidence. That the judgment of dismissal and for costs and the findings upon which the same are based are contrary to the law and the evidence."

The assignment that the judgment of the court is not sustained by the evidence cannot be considered by this court, for the reason that the bill of exceptions purporting to contain the evidence adduced on the trial is not authenticated. The transcript of the pleadings and judgment of the district court were filed in this court June 7, 1907. What purports to be the bill of exceptions was not filed until June 19, 1907. This so-called bill of exceptions is not in any manner certified by the clerk of the district court, either that it is the original bill of exceptions settled

and allowed in the case, or a copy thereof, as required by law; and, under the well-settled practice in this court, as well as under the requirements of the statute, it cannot be considered for any purpose. Romberg v. Fokken, 47 Neb. 198. This being the condition of the record, the only question we can consider is whether the pleadings in the case support the judgment rendered. Crawford v. Smith, 57 Neb. 503, 77 N. W. 1078.

Looking to the pleadings only, it is apparent that the judgment of the district court is fully sustained thereby, and must be affirmed. Under the allegations and admissions in the pleadings, it appears that plaintiff is in this court seeking equity without making any offer whatever to do equity. Giving the pleadings the construction most beneficial to plaintiff, it appears that he was induced to convey his 80 acres of land for a cash consideration of $1,600, paid to him by defendant, the land being worth $3,200, but incumbered with a three years' lease at what would seem to be a nominal rental. He admits having received the $1,600, and appropriated it to his own use; several hundred dollars of the money having been appropriated and used by him after the commencement of this suit, and after he had sufficient information to lead him to believe that the money was the money of the defendant Sharp, and not of the defendant Kuhns. In short, plaintiff admits having received $1,600 for his 80 acres of lands, and now asks a court of equity to permit him to keep the money and give him back the land. A court of equity will in a proper case relieve a party from a contract which he has been induced to enter into through fraud and misrepresentation, but it will not grant relief from one fraud by assisting the party to perpetrate another just as great. Under the above state of the pleadings, even if plaintiff's proposed bill of exceptions could be considered, we do not see how he could obtain any relief in this action. The judgment of the district court should be affirmed.

CALKINS, C. This was an action to enjoin an alleged trespass upon farming lands. The petition alleged that the plaintiff was in possession of such land "as the tenant of John B. Stanser, who is the owner of said land by virtue of a state school land lease issued by the state of Nebraska for said land"; and that the defendants, "claiming to have purchased the lease to said lands from the state of Nebraska," while plaintiff was peaceably engaged in farming said lands, wrongfully came upon the same, took down a portion of plaintiff's fences, and undertook to unlawfully stay and trespass thereon and to plow up said land and destroy plaintiff's crops. The defendants answered, alleging that the state of Nebraska was the owner of the land in question, and on the 8th day of July, 1884, leased the same to John B. Stanser for the term of 25 years from the date of such lease; that the said Stanser failed, neglected, and refused to pay the rental due the state of Nebraska on said land; that the said state of Nebraska, as by the terms of said lease it was provided it could do, by and through its proper officers, on the 12th day of January, 1905, canceled and annulled said lease and all the rights of the said John B. Stanser in and to said lease and the premises described in the plaintiff's petition; that afterwards and on the 25th day of May, 1906, the state of Nebraska, by and through its proper officers, leased said premises to the defendant for the term of 25 years; and that the defendant has since the making of said lease been entitled to the possession of the said premises. There was no reply, and at the close of the plaintiff's testimony the district court rendered judgment dismissing the plaintiff's petition, from which judgment the plaintiff appeals.

1. The plaintiff is in the position of claiming under John B. Stanser, and at the same time admitting, by his failure to reply to the answer of the defendant, that the title or right of John B. Stanser in the land in question has been canceled and determined. There is no claim made that the case was tried as if a reply had been filed. The only consideration urged by plaintiff to avoid the