tion was a condition subsequent and not 12. APPEAL AND ERROR precedent to the vesting of the title. [3] It afforded grounds perhaps upon which the grantor, acting within a reasonable time, could declare a forfeiture and by proper proceedings regain possession. But it was entirely competent for him to waive the performance, and, such waiver being shown, the title would be relieved of the condi tion. It is shown that this grantor permitted the grantee to go on using the railway for the transportation of coal only, and not as road for general transportation purposes for a period of eight years, and there is nothing to indicate even by inference that he ever objected thereto, or sought in any manner to assert or enforce a forfeiture because of a violation of the condition expressed in his deed. In the absence of other explanation, we think this must be said as a matter of law to have been a waiver of the right of forfeiture for nonperformance of the condition. [4] It is also objected that the operation of the road at this point had been abandoned before Whitlock made the deed under which defendant claims, but this is immaterial unless the abandonment was for such length of time as to bar the company's right to resume its possession and operation. The road had admittedly been in use up to a time not more than five years before the beginning of this action, while the statutory period of abandonment which will bar the exercise of such right is eight years. Code, § 2015. ROR-RULING OF COURT. 854-HARMLESS ER the trial court was right, it was immaterial In such case where the result reached by whether all the reasons stated by the court for its rulings were sound. [Ed. Note. For other cases, see Appeal and Error. Cent. Dig. §§ 3403, 3404, 310S-3424, 3427-3430; Dec. Dig. 854.] Certiorari proceedings. Certiorari brought to review the action of the district court in certain contempt proceedings. The opinion states the material facts. Affirmed. Sears, Snyder & Boughn, of Sioux City, for complainant. Henderson & Fribourg, of Sioux City, for respondent. WEAVER, J. C. J. Rich and others, as partners under the firm name of Sioux City Robe & Tanning Company, were doing business as dealers in furs and hides and as tanners at Sioux City. Volnie S. Powell and others, incorporated under the name of Sioux City Hide & Fur Company, were also carrying on a similar business at the same place. The first-named firm brought a suit in equity against the latter concern charging it with unfair competition and asking that it be perpetually enjoined therefrom and from using the firm name "Sioux City Hide & Fur Company," and especially enjoined from using the name "Sioux City" in connection with the name or description of its business of tanning or dealing in hides and robes. Το this action the Hide & Fur Company appeared and took issue upon the petition. Such further proceedings were had in such suit that a decree was entered therein for plaintiffs, the material part of which was in the following words: Upon the record presented, there is no other question which needs to be considered or decided. An examination of the entire case satisfies us that the conclusion reached It is therefore ordered, adjudged, and decreed by the trial court works substantial equity that defendants Volnie S. Powell, H. B. Powbetween the parties, and the decree appeal-ell, and Sioux City Hide & Fur Company, a corporation, the officers, directors, agents, attorneys, and representatives, of the said corporation, and the agents, attorneys, and repre ed from is therefore affirmed. EVANS, C. J., and DEEMER and PRES- sentatives of the said Volnie S. Powell, and H. TON, JJ., concurring. SIOUX CITY ROBE & TANNING CO. SEARS, District Judge. (No. 30709.) (Supreme Court of Iowa. Feb. 12, 1916.) 1. INJUNCTION 223-VIOLATION OF ORDER -CONSTRUCTION-CONTEMPT. B. Powell, be and they are each hereby severally perpetually enjoined from using or continuing to use the words "Sioux City Hide & Fur Company" as their trade-name. It is further ordered, adjudged, and decreei v. that the said defendants Volnie S. Powell, H. B. Powell, and the Sioux City Hide & Fur Company, a corporation, and its officers, directors, agents, attorneys, and representatives, and the agents, attorneys, or representatives of the said Volnie S. Powell and H. B. Powell, be and they are hereby perpetually enjoined from using the words "Sioux City" in connection with other words designating or indicating a business or dealing in hides, robes, fur, or tanning. A decree perpetually enjoining defendants from using or continuing to use the words "Sioux City Hide & Fur Company" as their trade-name, and from using the words "Sioux City" in connection with other words indicating a business of dealing in hides, robes, fur, or tanning, was not violated by defendant's receipt of mail and its acceptance of shipments in that name actually intended for them, for the most part within 15 days after the decree, in view of their immediate adoption of another trade-name and their efforts to notify their shippers of the change, and hence the court on information, properly found defendants not guilty of contempt. [Ed. Note. For other cases, see Injunction, Cent. Dig. §§ 448-473; Dec. Dig. 223.] The decree was entered May 24, 1915. In July, 1915, the plaintiff in said action filed in the district court an information charging that defendants in violation and contempt of the decree and writ of injunction had wrongfully continued to use the business name of Sioux City Hide & Fur Company, and to use the word or name "Sioux City" in connection with their business name or designation, and upon these allegations asked that defendants For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes be cited to answer for their alleged contempt. I ports by the several freight agents show that A citation was issued, and defendants appear- very soon after the date of the decree shiped in obedience thereto, and denied that it ments began to arrive consigned to defendhad violated the injunctional order or decree. ants under the name of Powell Hide & Fur The principal evidence offered in support of Company. The consignments gradually inthe charge was the testimony of the freight creased, while those directed to the Sioux agents of the several railroads entering Sioux City Hide & Fur Company decreased. Much City showing that between the date of the the larger part of those directed to the old decree and the filing of the information a name arrived and were received by defendconsiderable number of packages and ship- ants within less than 30 days after the enments of furs and hides had arrived at their try of the decree, and very largely within 15 several stations marked or directed to the S. days thereafter. Naturally it would take C. or Sioux City Hide & Fur Company, and some time to get the information of the change that said packages and shipments had been to the knowledge of the shippers, and to get delivered to and received by the defendants. the shippers who desired to deal with them Some evidence was offered tending to show in the habit of using the new name, but when that the decree was entered by the consent of the contempt proceeding was begun the conthe parties, and that prior thereto there was fusion in shipments had largely disappeared. some verbal understanding that after an interval of 10 days defendants would relinquish or turn over to plaintiffs all shipments and mail directed to the Sioux City Hide & Fur Company. uncertain implication. We think the decree is not open to the construction which the plaintiffs place upon it. [2] Whether the mere absence of intention to violate the injunction would be sufficient to relieve defendants from the charge of contempt, as suggested by the trial court if the act complained of was clearly forbidden by the terms of the decree, we need not here consider or decide. Taking the decree as it reads and the undisputed facts as disclosed by the record we are clearly of the opinion that no violation of the injunction was shown, and that the court did not err in finding defendants not guilty of contempt. The result reached being right, it is not a material question whether all the reasons stated by the court for its ruling were sound. Had the court intended by its decree to deny the defendants the right to receive the mail and consignments of goods actually intended for them, it was an easy thing to so provide in clear terms, and we think it fair [1] Upon this record we have to inquire to assume that so important and unusual rewhether the proved or admitted acts and constraint upon the liberty of a person in dealing duct of the defendants constitute a clear vio- with his own would not have been left to an lation of the terms of the injunction. Turning to the decree by the terms of which the rights and duties of the parties must be measured we find defendants are thereby enjoined (1) from "using or continuing to use the words 'Sioux City Hide & Fur Company' as their trade-name;" and (2) from "using the words 'Sioux City' in connection with other words designating or indicating a business of dealing in hides, robes, fur, or tanning." Nothing is forbidden to the defendant, except the acts or things above specifically mentioned and such other, if any, as may be fairly implied therefrom. Unless we can say that such restraint is to be implied from that expressed, as above quoted, there is nothing in the decree denying defendants the right to receive the mail and accept the shipments which the senders and consignors actually intended for them. There is no evidence that at any time after the entry of the decree defendants advertised or bought or sold or made any claim of right to do business under the forbidden name or style, or did in fact receive any mail or shipments or consignments intended for the plaintiffs. On the contrary, the agents of the carriers called as witnesses by the plaintiffs testified that defendants informed them of the injunction and manifested much care to receive or accept such consignments only as were clearly intended for them. It also appears indirectly that upon the entry of the decree defendants adopted and thenceforward did business under the name of Powell Hide & Fur Company. It was perhaps the duty of defendants to notify their customers and consignors of the change in their business name, and there is nothing to show that they did not. On the contrary, the circumstances tend to show that they did make such effort, for the detailed re- | TON, JJ., concur. We may further add, with reference to the alleged fact that prior to the decree there was a verbal understanding or agreement between the parties that defendants would turn over to plaintiffs all mail and consignments coming in the old trade-name of the former, that even assuming such arrangement to have been made its violation would not be a contempt of court. The sole question presented is whether a violation of the decree as written and entered was so clearly shown as to render the dismissal of the contempt proceedings an error for which the judgment below should be annulled and the cause remanded for a judgment of guilty. This inquiry we think must be answered in the negative. The writ of certiorari will therefore be dismissed, and the judgment of the district court aflirmed. EVANS, C. J., and DEEMER and PRES SHERMAN v. SHERMAN. (No. 30534.) (Supreme Court of Iowa. Feb. 12, 1916.) ANNULMENT FRAUD - 1. MARRIAGE 58 FRAUD Plaintiff, who married defendant under fear of prosecution for seduction and to avoid the consequences thereof, urged thereto by defendant's father and the sheriff, who stated their intention that plaintiff should marry defendant or face a prosecution, and who cohabited with defendant as man and wife during a night, and then left to find work, and who until his suit for annulment was brought never claimed that he did not voluntarily consent not only to the marriage, but to a consummation thereof by cohabitation, was in no position to say that the marriage was void for either fraud or duress. [Ed. Note. For other cases, see Marriage, Cent. Dig. § 108; Dec. Dig. 37.] tiff's parents, stopping on the way at a schoolhouse at the town of Inwood where plaintiff was attending school and taking him to a hotel in said town. At the hotel plaintiff was taken in the presence of defendant and her mother, and there charged by the girl's father with having ruined her and told that he must marry the girl. It is also asserted that he said the sheriff of the county was near at hand, and that, if he (plaintiff) did not marry the girl, he would be taken back to the county seat. Plaintiff then asked to confer with his father and mother and this permission was granted, and all the party, including the sheriff, went with him. Arriving at his home, defendant's father repeated the story of the daughter's seduction to plaintiff's parents, and insisted that he (plaintiff) must marry the girl, and it is averred that he said this must be done or plaintiff would be sent to the penitentiary for life or a long term of years. Plaintiff then retired from the room and talked privately with his mother and father about the matter, and while they were absent it is claimed the sheriff advised plaintiff's mother that the best thing he (plaintiff) could do was to marry the girl. After plaintiff and his father had consulted over the matter for some time, it is said the sheriff advised them that they had been out long enough, and that they must come back and settle the mat Appeal from District Court, Lyon County; ter, and upon their return the sheriff adWm. Hutchinson, Judge. Action to annul and set aside a marriage between plaintiff and defendant, which was solemnized at Canton, in the state of South Dakota. It is alleged that it was entered into on plaintiff's part through misrepresentation, fraud, and duress. This charge was denied by defendant, and on the testimony adduced the trial court dismissed plaintiff's petition, and he appeals. Affirmed. Asa Forrest, Jr., of Canton, S. D., and S. D. Riniker, of Rock Rapids, for appellant. Simon Fisher, of Rock Rapids, for appellee. DEEMER, J. The parties were married in the state of South Dakota on January 15, 1914, and on April 25th of the same year plaintiff, the husband, commenced this action to annul the marriage on the grounds before stated. The contracting parties were high school pupils, each about nineteen years of age. They had "kept company" and corresponded with each other as lovers usually do for three or four years before their marriage; the last letter which passed between them being dated January 4, 1914. They lived in adjoining towns, but were often in each other's company, and, yielding to their passions, plaintiff finally had intercourse with the girl. When this was discovered by the girl's parents, whose names were Shutt, they took the matter in hand, and, getting the sheriff of the county to go with them, they took their daughter to the home of plain vised the father that the best thing that could be done was to have plaintiff marry the girl. To this proposition plaintiff and his parents finally consented, and at the suggestion of some one it was agreed that the marriage should be performed at Canton, in South Dakota, and the entire party agreed to go there for the ceremony. As the plaintiff was under age, it was necessary that his parents, or one of them, should consent to the marriage in order to secure the proper license. It is admitted that defendant and her parents represented she was pregnant as a result of her intercourse with plaintiff, and it is stated in the petition that this was false and untrue, and known to be so when the statement was made, and it is further alleged that plaintiff had committed no crime for which he could be sent to state's prison for life or a long term of years, which the sheriff and all other parties making the statement well knew, and that by reason of all these statements, which were falsely and fraudulently made, and by reason of the threats made against him, both plaintiff and his parents were induced through duress and against their will to consent to the marriage to defendant, which they would not otherwise have done. The father and mother of both participants went to Canton, in South Dakota, which is but a few miles from Inwood, where plaintiff's family resided, with the plaintiff and the defendant, making the journey in two automobiles, and their marriage license For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes which led to the giving of consent. Neither the defendant, nor her parents, nor the sheriff who went with them misrepresented the defendant's condition. None of them acted maliciously, nor was their action without probable cause. That they intended to have plaintiff marry the girl or to face a prosecution for his prior conduct may be conceded; but this alone will not avoid the marriage. Marvin v. Marvin, 52 Ark. 425, 12 S. W. 875, 20 Am. St. Rep. 191; Shoro v. Shoro, 60 Vt. 268, 14 Atl. 177, 6 Am. St. Rep. 118; Jackson v. Winne, 7 Wend. (N. Y.) 48, 22 Am. Dec. 563; La Coste v. Guidroz, 47 La. Ann. 295, 16 South. 836; Copeland v. Copeland (Va.) 21 S. E. 241. Any other rule would make the statute which permits one accused of seduction to avoid the consequences of a prosecution for that offense contrary to public policy and against good morals. He who advantages himself of such a statute must incur all the burdens which it was obtained with the consent of one of plaintiff's parents. A minister was called, and a ceremonial performed in the hotel at Canton; neither of plaintiff's parents being present. After the marriage all parties except plaintiff and defendant returned to their respective homes. The newly married couple remained at the hotel overnight, occupying the same bed. The next day they went to the town of Hudson, which is but a short distance from Canton, ostensibly to visit some relatives, but on the afternoon or evening of the same day they returned to Canton, and plaintiff there left the defendant, saying that he was going to find a place to work. The record does not show whether they lived together after that time or not; but, whether they did or not, this action was commenced in April of the same year. There is a sharp conflict in some of the testimony regarding what occurred at various places on the day the marriage ceremony was perform-imposes, and it was not intended that the pared, and, in view of the conclusion reached, it is better that we say little about this matter. For the good of all concerned, it is well that whatever feeling may have been engendered by this most unfortunate controversy be forgotten, and every effort made to induce these young people to remember their marriage vows and to atone for their indiscretion. [1] It is enough to say that the law of this state favors marriage, and makes it possible for a young man in the position in which plaintiff placed himself to atone for his wrong by marrying the woman who he has wronged. Code, § 4763. And a marriage for this purpose, although made under fear of prosecution or to avoid the consequences thereof, is not regarded as made under duress, although, save for the fear of prosecution, the parties would not have married. Armstrong v. Lester, 43 Iowa, 159. This is the rule everywhere prevailing where like statutes are found. See cases hereafter cited. There is no denial by plaintiff anywhere of the claimed seduction, and the only duress or fraud relied upon are certain statements said to have been made by defendant's father and the sheriff to the effect that, if plaintiff did not marry the girl, he would be prosecuted and sent to the penitentiary for life or a long term of years. It is denied that these statements were made, although it is conceded that reference was made to a recent case in that county which resulted in the conviction of another young man and his imprisonment in the penitentiary. We will not, for reasons stated, attempt to settle this conflict. It is enough to say that, even if these statements were made and were false, in that the extent of punishment for the crime was misrepresented, nevertheless it does not appear that the nature of the punishment-that is, the length of the imprisonment-was the motive which led plaintiff and his parents to give their consent. It was the fact that he might have to undergo imprisonment in the penitentiary as a penalty for his offense ty should go through an idle ceremony, and thus purge himself of a wrong not only to an individual but the state itself. Its manifest object was to legitimatize issue born, secure their future support and make it possible for the guilty party to rectify his wrong. That fear of prosecution or conviction of an offense was the impending motive is no reason for invalidating the marriage. In 99 cases out of 100 such marriages are induced by fear. And, if the charge is not falsely and maliciously made, and without probable cause, it cannot be said that the marriage in a legal sense was under duress. [2] Moreover, it appears from the record that after the marriage ceremony the parties thereto were left alone together, that they cohabited as man and wife during the night, and that plaintiff did not leave the defendant until the next day. He then left not because his will had been overcome, but, as he said, to find work, and until this suit was brought he never claimed that he did not voluntarily consent, not only to the marriage, but to a consummation thereof by cohabitation. Under the well-established rule, he is in no position to say that the marriage was void for either fraud or duress. Schwartz v. Schwartz, 29 Ill. App. 516. The reason for this is that consummation under such circumstances is regarded as strong, if not conclusive, testimony that the man intended to assume the marriage relation, and not simply to go through an idle ceremony, or, because he took part in the ceremony by reason of threats of prosecution, was put in fear and acted under duress. Leavitt v. Leavitt, 13 Mich. 452; Hampstead v. Plaistow, 49 N. H. 84; Scott v. Shufeldt, 5 Paige (N. Y.) 43. It may be said in closing that courts do not look with favor upon such actions as this. As said by the court in the Jackson Case, supra : "To nullify on such slight ground so solemn a contract as that of marriage would jeopardize in too many instances the blessings which spring from the dearest civil and social relations." If the parents of these parties will endeavor to induce their children to regard their marital obligations with as much sanctity and solemnity as they have their own, and use all their efforts to have them forget the past, there seems to be no valid reason why they may not re-establish their affections and live happily together. The edict of the law is that they must make the effort. The decree seems to be right, and it is af firmed. Naglestad, Kindig & Mullan and C. N. Jepson, all of Sioux City, for appellants. E. J. Stason, of Sioux City, for appellees. PRESTON, J. About the year 1902 one Simpson owned 160 acres of land. A road was established, running north and south, which divided his farm in two parts, leaving 80 acres upon either side of the new highway. Simpson appealed to the district court from the amount of damages allowed him by the appraisers and the board of supervisors, the appraisers having allowed him $600, and the EVANS, C. J., and WEAVER and PRES- board of supervisors, upon a hearing, reduced TON, JJ., concurring. BARTELS et al. v. WOODBURY COUNTY et al. (No. 30724.) (Supreme Court of Iowa. Feb. 12, 1916.) 1. EASEMENTS 58- INJUNCTION INTERFERENCE WITH RUNWAY BY CONSTRUCTION OF CULVERT. Evidence in a suit to enjoin defendant county and its officers from completing the construction of a concrete culvert, and from filling in the space under a former trestle bridge at the side of the culvert, so as to interfere with or destroy plaintiff's runway for stock from his land on either side of the highway, and from maintaining the highway without providing an ordinary and satisfactory runway, held to establish plaintiff's claim that the new runway was not sufficient, and to justify an injunction. [Ed. Note.-For other cases, see Easements, Cent. Dig. §§ 121-127; Dec. Dig. 58.] 2. BRIDGES 8-CONSTRUCTION. Acts 35th Gen. Assem. c. 122, § 13, providing for the adoption and publication of a resolution of necessity for construction of a culvert across a highway, which shall be published in one issue of each of the official papers of the county, and for a time and place of hearing protests to be fixed by the board, and that after the hearing the board shall by resolution state its final determination as to the construction of the bridge, etc., which decision shall be final, was not intended to settle property rights, and plaintiff, who had no notice that the county was proposing to deprive him of an easement of runway previously granted to him, might assume, pending proceedings before the board, that the county would respect the granted easement. [Ed. Note.-For other cases, see Bridges, Cent. Dig. §§ 9-16; Dec. Dig. 8.] Appeal from District Court, Woodbury County; David Mould, Judge. it to $300. The controversy was settled by Simpson being paid $550, and it was agreed by the board of supervisors that the bridge to be constructed by the county in the highway dividing Simpson's land should be built 9 feet high from the top of the north creek bank to the bottom of the stringers. Later Simpson, upon payment to him by the supervisor of that district of the sum of $25 additional, agreed that the bridge could be lowered a foot and the passageway scooped out at the bottom. When the board of supervisors reduced Simpson's damages to $300, it ordered: "The road is established provided petitioners pay $300 damages within 30 days, and also with the further proviso that the county construct an ordinary runway for stock under the bridge, across the creek where such bridge is built." When the parties interested added $250 to this assessment, the board made this record: "In consideration of additional damages paid by parties interested, J. S. Simpson agrees to dismiss his appeal, provided the county will build a satisfactory cattle way under the bridge; wherefore, on motion, a resolution was adopted as follows, to wit: 'Be it resolved and ordered by the board of supervisors that the bridge to be built on the road heretofore established through the Simpson land in Banner township be and . is hereby ordered to be so built that said bridge shall be 9 feet high from top of north creek bank to the bottom of the stringers.' It is conceded by appellants that appellees have succeeded to whatever rights Mr. Simpson had in the premises. The bridge which was constructed at that time was a pile bridge, with two end bents, and one in the middle. At the time the old bridge was built, in order to make it 9 feet high, it was necessary to This is an action in equity to enjoin the construct an embankment to the north of the county and its officers from completing the bridge. The bridge at the present time is in construction of a concrete culvert and from a highway that is a part of the county road filling in the space under a former trestle system under the so-called new road law. bridge at the sides of the culvert and impede | The county, under this new road law, passed or obstruct the water of a small stream flow- a resolution of necessity providing for the ing through plaintiff's premises, and from construction of a concrete bridge, or culvert, destroying or removing an existing bridge so to take the place of the old bridge in quesas to interfere with or destroy plaintiffs' run- tion, the same to be 7 feet wide and 9 feet way for stock from his land on either side of high. The board caused said resolution to be the highway, and from maintaining the high- published as required by law. The resoluway without providing and maintaining an tion of necessity recited that the new culvert ordinary and satisfactory runway for plain- was to provide a waterway for a drainage tiffs' stock. There was a decree for plain- area of 1000 acres. It appears, however, tiffs, and defendants appeal. Affirmed. from the evidence that the drainage area of For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |