that the land had been sold for $37,500, but it satisfies us that the actual condition of the negotiation for a sale was concealed, and that, had it been known to the plaintiff, he would not have parted with his interest as he did. The sale to Stevens was not fully completed until the 13th day of February, but it was practically assured on the 6th. The appellants obtained the conveyance from the plaintiff by concealing facts which their relation to him made it their duty to disclose, and by exaggerating the difficulties in the way of completing the sale, the chances of a failure to make it, and the probability that the plaintiff would be compelled to advance more money on account of the land. What was concealed and what was said by the appellants operated as a fraud upon the plaintiff, which avoids the attempted settlement for his interest in the land and the profits realized from the sale. The evidence shows that he is entitled to recover at least as much as the amount allowed by the district court; and he must be content with that, as he does not appeal. The decree of the district court is affirmed.

MICHAELSON v. SERGEANT BLUFFS & S. C. BRICK CO.

(Supreme Court of Iowa. Jan. 31, 1895.) INJURY TO EMPLOYE-ASSUMPTION OF RISK. Plaintiff, an employé in defendant's brick yards, climbed up on a derrick used to support the shovel which took the clay from the banks, to remove with a pick a part of the bank which was left overhanging by the work of the shovel. He knew the condition of the bank, and had previously used a pick in the same manner. While in such a position that any portion of the bank loosened by his pick would necessarily fall on him, he was injured by a portion so loosened. Held, that he cannot

recover.

Appeal from district court, Woodbury county; A. Van Wagenen, Judge.

Action at law to recover damages for a personal injury. Trial by jury. Verdict and judgment for the plaintiff. Defendant appeals. Reversed.

Swan, Lawrence & Swan, for appellant. Lynn & Sullivan, for appellee.

ROTHROCK, J. The defendant is a corporation engaged in the manufacture of brick. The plaintiff was a laborer in the defendant's brickyard. The defendant's yard was so located that the clay used in making brick was obtained some distance from the place where the brick was molded, and the material or clay was carried from the clay bank to the manufactory by means of small cars, which run on tracks, and the cars were moved by neans of a rope and revolving drum at the building. The plaintiff's employment in connection with the works was to wind the rope on the drum, and thus draw the loaded cars to the house and dump the clay. The bank

where the clay was procured was not an excavation in the earth. It was a perpendicular elevation about 20 feet high, and the clay was removed from the bank by means of a steam shovel or scoop, which worked or scraped from the bottom of the bank upwards, and when filled it was swung round and emptied into the cars. The derrick upon which the shovel was suspended did not reach to the top of the bank, and, after working on the face of the bank for a time, the top of the bank not reached by the shovel interfered with the work so that it had to be removed. This was usually done by boring into the top of the bank, and exploding dynamite in the holes. On the 16th day of May, 1891, there was trouble with the overhanging bank, and the plaintiff went up on the derrick or crane with a pick, and attempted to remove the obstruction, so that the work could proceed. After picking at the bank for a short time, a chunk of clay fell and struck the plaintiff on the hand, and injured it so that he was unable to work for some time. As the detached clay came down, the plaintiff had his hand on the iron rod which supported the crane, and the hand was crushed between the rod and the clay. There was no general caving of the bank. The piece which fell was described by all the witnesses as being of inconsiderable size. There was nothing on the face of the bank to indicate that there were any seams or breaks in the clay, and, so far as appeared from observation, the only danger the plaintiff incurred by attempting to remove the projecting clay was occasioned by the plaintiff himself. He went upon the crane for the very purpose of removing the projection, so that the shovel could be worked. The presumption is that he had sufficient knowledge of the law of gravitation to know that the clay that he removed must fall towards the earth. He claims that he was ordered by the foreman of the defendant company to go from the building and pick down the bank. The foreman testified that he gave no such order, and all the witnesses, including the plaintiff, testified that the foreman was not at the bank at or near the time of the accident, and two witnesses who were present when the plaintiff undertook the work testified positively that they objected to the plaintiff going on the crane and picking at the bank. It is true the plaintiff in his testimony denies that any one made any protest against his undertaking; and it may be, notwithstanding this apparent preponderance of evidence, it was the prerogative of the jury to determine the question of the veracity of the witnesses. But we think it is very plain that there was no right of recovery upon the plaintiff's own testimony. He was under no compulsion to go on the derrick, and in such a position that he could not escape contact with the clay which he picked down. The theory upon which it is sought to sustain the verdict is that the bank of clay had been

The claim of the city is that by a recent survey the street as it is at present, and has been for the past 25 years or more, improved, is some two feet too far west, and that for a proper permanent improvement of the street it should be moved east that distance. It appears in evidence that this street has been worked for 35 years, and that the street and alley crossings, the sidewalks, and all the improvements along the street have been made to conform to the street as accepted and improved by the city. There is evidence of lot corners being established and marked when these improvements by the city and lot owners were commenced; and the street, as thus located, has been, by all parties, understood to be as it is at present, until this recent survey. Nothing in evidence as to this new survey satisfies us that these parties have been mistaken. Before such a change is made, involving interests so important i the way of expense to abutting property owners, changes in their property, and the destruction of shade trees, not only valuable to the plaintiffs, but to the public, the court should be satisfied from the evidence that there is a substantial variance from the legally established line of the street. We concur in the finding of the district court that the trees are not an obstruction to the proper improvement of the street. There seems to be nothing to elaborate. The case turns upon the evidence showing the facts. In view of this conclusion, it is not important that we consider the question of estoppel. The judgment is affirmed.

DAVIS et al. v. LATTA et al. (Supreme Court of Iowa. Feb. 2, 1895.) SUIT TO SET ASIDE DEED-MENTAL INCAPACITY— UNDUE INFLUENCE-SUFFICIENCY OF EVIDENCE.

In an action by heirs to set aside a deed from a father, 86 years old, to his son, it appeared that when the deed was made the son agreed that he should pay to the father a sum of money, which should be a lien on the land, and should support the father during his life. There was evidence that the father was feeble, that his hearing and sight were poor, that he was extremely nervous, that his wife and son attended to some of his business, and that he seemed incompetent to do business. A daughter testified that, shortly before the deed was made, her father talked about disposing of his property among his children, and told her what he would give each, and that he was going to make the deed in suit. When the deed was made, he disposed of other property among his children, and the lawyer who drew the papers testified that he discussed the different dispositions, and was competent to make a will. doctor called in to attend him a few weeks later testified that he did not see anything about him that was not rational. Held, that a finding that there was no evidence of undue influence or mental incapacity was proper.

The

Appeal from district court, Polk county; P. Holmes, Judge.

Action to set aside a deed of conveyance. Judgment for defendants, and the plaintiffs appealed. Affirmed.

v.62N.w.no.1-2

J. R. Good and St. John & Stevenson, for appellants. Bishop & Wilcoxen and Phillips & Phillips, for appellees.

GRANGER, J. 1. William Latta died on the 10th day of January, 1892, at the age of 86 years. He had been twice married, and by the first marriage there came to him seven children, six of whom are living, and four of whom are the plaintiffs. There were by the second marriage three children. The defendants were the children of William Latta, except one, who is the wife of defendant William E. Latta. On the 23d day of December, 1891, William Latta made to his son William E. Latta a deed of 160 acres of land; and the purpose of this suit is to set aside said conveyance, on the ground that it was fraudulently obtained, through undue influence, and because said William Latta, at the time of the conveyance, was in such condition of body and mind as to render him incompetent for such a transaction. The answer puts in issue the averments of the petition. On the day of the execution of the deed, William Latta and his son William E. made the following agreement in writing, which indicates the purpose of the convey

ance:

"This article of agreement, made and entered this 23d day of December, A. D. 1891. by and between William Latta, of Polk county, Iowa, party of the first part, and William E. Latta, of the same place, party of the second part, is as follows: The party of the first part being desirous of making a disposition of certain of his real estate among his children, and the party of the second part being his son, the said party of the first part has this day made, executed, and delivered to the said party of the second part a deed of conveyance, conveying to him the following described real estate, lying and being in Polk county, Iowa, to wit: The southwest quarter (4) of section 17, township 81 north, range 25 west of the fifth principal meridian, Iowa, containing 160 acres more or less. The consideration expressed in said deed being $4,000.00, and said real estate being of greater value than said party of the first part desires to give as legacy to party of the second part, it is therefore understood and agreed by and between the parties hereto that party of the second part is to pay to party of the first part, as part consideration for said conveyance, the sum of $1,200.00, the same to be paid in cash. And the party of the second part, being unable to pay said $1,200 on this date, agrees to make a loan of said amount on said real estate, and, for the purpose of enabling him to make such loan and raise said sum of money, the deed conveying the same to him. is this day delivered to him, and it is understood and agreed by and between the parties hereto that said $1,200.00 is to be and remain a lien on said real estate until the same is paid; and the party of the second

part is to proceed at once to negotiate said loan, and the said $1,200.00 to be paid within a reasonable time for him to procure said loan on said real estate; and, upon the payment of said $1,200.00 by the party of the second part to the party of the first part, the same is to be received and accepted by him in full consideration and full payment for said real estate, except that party of the first part is to receive from party of the second part, as a further consideration therefor, his board, washing, mending, and having a home with him, and all necessary provisions, care, and attention for one of his years and declining health, during the remainder of his natural life. And party of the second part hereby binds himself to provide for party of the first part a comfortable home with him, in his family, to furnish him board and all necessary and proper care and attention for one of his years and declining health, free of charge, during the remainder of his life. In witness whereof, we hereunto sign our names, at Des Moines, Iowa, this 23d day of December, 1891.

"William E. Latta. "Witness: F. K. Butler. W. W. Phillips." The district court specifically found that "there is no evidence showing, or tending to show, that the defendant William E. Latta ever exercised, or attempted to exercise, any such influence over the said William Latta, deceased; and that the allegations in plaintiff's petition to the effect that the person named in the petition, William Latta, father of the defendant, was of unsound mind at the time of the execution of the deed, ‘or that it was obtained by fraud,' is not supported or warranted by the evidence."

It will be observed that the finding as to undue influence is very conclusive, and to the effect that the evidence does not even tend to show such a fact. We think, when the record is fairly considered, the language of the finding is justified. Even though it should be conceded that, in view of the admitted condition of William Latta, as to age and physical weakness, at the time of the conveyance, the burden is with defendant to show that the transaction is free from fraud or undue influence, we are still of the opinion that the finding is warranted. It seldom happens that in a case of this character this important branch of it is free from doubt. William Latta, at the time he made the deed in question, was, from age and consequent weakness, stooped, and he walked with a cane. His hearing was poor, and also his sight. The evidence in support of the averments of the petition as to his incompetency is by tesrimony from a daughter (Mrs. Davis), her daughter, and some other witnesses who knew Mr. Latta the later years of his life. Mrs. Davis saw her father about five years before his death, and she testifies as to his

being very old and feeble, and that he could not hear. She also said that he was almost blind at times, and "trembly and extremely nervous." Her daughter testified that she saw him about four years before his death, and she testifies to a state of facts much the same as her mother did. There is other testimony from neighbors and others who had some business transactions with him, who say the business was done by his wife or one of his sons, and they further say that he seemed incompetent to do business. This testimony is very inconclusive, and the business referred to as having been done by others, in his presence, for him, was generally of a character that, without any question of incompetency, might well have been done by others for one so advanced in years and physically weak. There can be no question but that Mr. Latta was, for years before his death, in such a condition bodily that, almost as a matter of course, the business of the farm would have been looked after by his family, regardless of his mental condition. It may be said that such is the usual experience of those in a like situation. Such business would likely be an undue tax upon his strength, and that fact alone would be an inducing cause for others of the family to do such business for him. Much importance seems to be attached to the fact that he did not attend to the business of the farm.

The testimony for the defendants far outweighs that of plaintiffs, because it is of a character to show better the actual condition of his mind. One daughter, who lives in Des Moines, a Mrs. Cassidy, testified that he was at her house about December, 1891, which we understand to be about the time of making the deed, and talked with her particularly about the disposition of the property, or "how he wanted to fix his business." He stayed with her all night. He told her he wanted to deed each of the older children a lot, and give each $200, in money.

Mrs. Cassidy was one of the older children. He told her that William was to have the farm, except $1,200; and William was to take care of him. It does not appear that any one else was present at this conversation. William was not. This is the plan that was carried out, as we understand, on the next day. The papers were made at the office of Mr. Phillips, in Des Moines. The testimony of Mr. Phillips shows that both William Latta and William E. came to his office, and the business was directed by William Latta, who explained to Mr. Phillips how he wanted to dispose of his property among his children. Mr. Phillips agrees with the witnesses for the plaintiffs as to his physical condition, and he says that, without a further test, he would have thought him incompetent for such a transaction; but he says that, after talking to him about the children, the improvements of his farm, and as to how he wished to dispose of his property, with other facts as to the best manner of making a disposition of his property, he thought he had

a clear conception of his business transactions, and was perfectly competent to make a will. The testimony of Mr. Phillips is quite convincing as to the mental capacity of Mr. Latta. The lots deeded to the other children were worth about $150 to $200 each, and it is said the farm was worth $40 per acre. This, of course, would be a very unequal distribution of property among children. But that of itself does not show mental incapacity. The farm was his home, where he desired to remain, and he was to be cared for during his lifetime. The value of such care was a matter of much uncertainty. The evidence clearly shows that he had in mind, in doing what he did, the fact that he should not give William too much, and he thought to give him the farm would be too much, and William was required to make a payment of $1,200. The following is the testimony of Dr. Brockhart, the physician who attended him in his last sickness: "I am a practicing physician in Polk county. Have been there about three and a half years. I became acquainted with Mr. Latta about two years before his death. I attended him in his last sickness. I was called about two days before he died. La Grippe was the occasion of his death. When I was first called to see him, he was rational. He asked me if I thought he would get well. I told him I did not think he would. I saw him on the following day. He was not conscious at that time. When I first called, I did not see anything but what he was perfectly rational. He was very sick then, but what conversation I had with him I did not see anything but that he was perfectly rational. I never met him until I saw him on his deathbed. It was from the 7th to the 15th of January last. I was called there one day, and went back the next day, which was the afternoon before his death. That is all I know about the old gentleman." This testimony has strong corroboration in other testimony of physicians and farmers who knew him for years before his death. It is a case in which the man in advanced years, after the loss of his wife, who died about a year before, was not only making a final disposition of his property, but he was making provision for his support and a home in a way to meet his wishes. It is true he lived but a short time after the provision was made, but the right to make such a provision is none the less sacred or important to him, and courts should not, upon so feeble a showing, disturb such a transaction. The case is without a taint of bad faith, and we think the action of the court in sustaining the transaction was proper, and its judgment is affirmed.

HOLTZ v. PETERSON. (Supreme Court of Iowa. Feb. 4, 1895.) SALE-PLACE of Delivery-CARE OF PROPERTYLIEN.

1. Under Code, § 2098, providing that, when 4 contract for the payment or delivery of prop

erty other than money does not fix a place of payment, the maker may tender it at the place where the payee resides, when a contract for the sale of cattle fails to specify the place of delivery, it is at the residence of the buyer.

2. Under Code, § 2102, providing that if property terdered by the seller requires care, and no person be found to receive it when tendered, the person making the tender shall care for the same, for which he shall have a lien on the property, a seller of cattle has a lien on them for feed given after the time specified for their delivery only after tendering them to the buyer, unless the buyer waive such tender.

Appeal from district court, Emmet county; George H. Carr, Judge.

Action for the recovery of specific personal property. Judgment for the defendant, and the plaintiff appealed. Reversed.

Soper, Allen & Morling, for appellant. J. G. Myerly, for appellee.

GRANGER, J. 1. The subject of the action is 11 steers which the defendant, in the fall of 1891, contracted to sell and deliver to the plaintiff for the agreed price of $275. It is conceded that $75 of the purchase price has been paid, but defendant claims a payment of $25 more, making a total of $100, which plaintiff denies. By the terms of the contract, the balance of the purchase price was to be paid, and the cattle delivered on the 1st day of May, 1892. The parties are in dispute as to the place of delivery; it being plaintiff's claim that because of a custom known to the parties, and with reference to which they contracted, the cattle were to be delivered at his (the plaintiff's) farm, in Kossuth county; while defendant's claim is that, by express agreement, the cattle were to be delivered at his (the defendant's) farm, in Emmet county. The court instructed the jury that the place of delivery was that agreed upon, whether it was the plaintiff's farm, by virtue of a known custom, or the defendant's farm. by an express agreement. The court also told the jury that if it failed to find any agreement as to place of delivery, either as the result of a custom or in express terms, then the law fixed the place at the defendant's residence. The jury specially found that there was no custom established to give rise to a contract under the plaintiff's claim. After the time for delivery, the plaintiff tendered to the defendant $175 and demanded the delivery of the cattle at plaintiff's farm, which the defendant refused, claiming $205; $200 thereof being the balance he claimed as due on the purchase price, and $5 for keeping the cattle after the time for delivery. The plaintiff then brought this action, and the jury found, generally, for the defendant, fixing the value of his interest in the cattle at $200.

2. Appellant urges and cites many authorities to show that, where a verdict has not support from any phase of the evidence, a new trial should be granted, and then argues that the value of defendant's interest, as fixed by the jury, is without such support.