age so cared for that it shall not create a nuisance. As we have already said, there is nothing in the record which warrants the conclusion that such nuisance is the natural or necessary result of the reasonable exercise of the city's admitted power to construct sewers. On the other hand, the testimony, considered in the light of common observation and experience, would seem to show there can be no doubt of the entire efficiency of the main sewer whenever the plan of which the present structure is a part shall have been carried out.

The principle which we here apply has been recently recognized by this court in Young v. Rothrock (Iowa) 96 N. W. 1107, where we said: "Specific legislative authority to do an act will generally save the perpetrator from the charge of nuisance. *

But when the legislative authority is relied upon it must be broad enough to cover the very act complained of. If there be two methods of doing the authorized act, one of which will accomplish the result without creating a nuisance, and another which may injure persons or property, the former method must be pursued, and not the latter." See, also, as bearing upon this point, Pine City v. Munich, 42 Minn. 342, 44 N. W. 197, 6 L. R. A. 763; Morton v. Mayor, 140 N. Y. 207, 35 N. E. 490, 22 L. R. A. 241; Churchill v. B. W. Co., 94 Iowa, 89, 62 N. W. 646.

Nor do we think it any answer to the plaintiff's demand to say that the covering of the open channel between Jefferson and Washington streets will only serve to carry the discharge of gases further up the creek, and create a nuisance in another place. There is no proof that the "back draft" through the main is a necessary incident to a properly constructed sewer. Moreover, the record seems to indicate that an extension of the covered sewer a short distance will remove the open end to a location where, for the present at least, it is not likely to be a source of annoyance to any one. At any rate, we think we should not go far into the field of conjecture to find a reason for relieving the city from the performance of a clear duty. "Sufficient unto the day is the evil thereof."

2. It is next urged against the conclusion of the trial court that the Hawkeye creek at the place indicated runs on private property, and the court will not by its writ command appellants to commit a trespass. Subject to whatever rights the city may have to control or make use of the creek, most of the land over which it runs between Jefferson and Washington streets belongs to the plaintiffs, who are not objecting, but earnestly inviting the city to enter and do this work. The land, other than that of plaintiffs, to be affected by the proposed work, is railroad right of way. If it may not be safely presumed that the railroad company will gladly consent to have this nuisance removed, there are methods not unknown to the law by

which such objection may be overcome. See Netzer v. Crookston (Minn.) 61 N. W. 21. When we note in the record that from the earliest inception of a sewer plan this creek has been considered the "main artery"; that the city has at all times assumed the right to its control; that it has repeatedly planned for and voted to do this very work, without the slightest objection, so far as shown, by any property owner in that vicinity-there is room for grave suspicion that appellants are not in fact greatly disturbed over the prospect of being held to answer in damages for a trespass thus committed. It must be remembered, also, that the judgment appealed from orders no specific method for the abatement of the nuisance. Appellants are not even commanded to inclose or cover this open channel, but are ordered to take such methods as, in their judgment, are right, necessary, and proper in order to abate said nuisance, and to appear at a future date and report what, if anything, they have done in the matter, and receive such further orders as the court may then find equitable. If, when the city and its officers endeavor in good faith to obey this injunction, it shall find any objecting landowner standing guard over Hawkeye creek and forbidding the dis turbance of present conditions, that fact, if deemed good cause for desisting from further effort, can be reported to the court, and its sufficiency then passed upon.

3. It is lastly argued that plaintiffs themselves contributed to the nuisance complained of, and therefore cannot obtain relief. We think there is no evidence on which such conclusion can be fairly predicated. A witness testifies that there is a water-closet on the open sewer on the premises of one of the plaintiffs, and "there used to be" another in that vicinity, but nothing to show that either has been used in years. The same witness testifies that manure has been thrown in near the same place, but does not state by whom. No word of testimony is given tending even in this remote degree to connect more than two of the six plaintiffs with this alleged contribution to the nuisance. The objection cannot prevail.

The decree rendered by the trial court is right, and it is affirmed.

STONER v. ZACHARY et al. (Supreme Court of Iowa. Jan. 20, 1904.)

BANKS-COLLECTIONS-NEGLIGENCE -BILL OF LADING - MEANING OF "NOTIFY" AMONG CARRIERS-EVIDENCE.

1. Plaintiff sold a car of vegetables to J., taking a bill of lading made to "Consignee S. [plaintiff] notify J.," and employed defendants, bankers, to make a draft for the price, and forward it with the bill of lading for collec tion. Held, in an action for the value of the vegetables-they having spoiled before the draft and bill of lading were presented, by reason of defendants' delay-that such delay was not harmless, because plaintiff had not indorsed the bill of lading, as J., on payment

of the draft and presentation of the bill of lading, would be entitled to receive the shipment without such indorsement.

2. Evidence is admissible to show that the word "notify," in a bill of lading made to "Consignee S., notify J.," is understood and recognized among carriers, and by the carrier having possession of the shipment in question, as indicating that the party thus to be notified is entitled to receive the shipment on presentation of the bill of lading, though not indorsed by the consignee, accompanied by the draft to which it is attached.

3. One who employs bankers to make a draft for the price of a shipment, and forward it with the bill of lading for collection, having given the correct data, and not having with him his spectacles, without which he cannot read, is not negligent in signing the draft without having it read.

Appeal from District Court, Jasper County; A. R. Dewey, Judge.

Action at law for the recovery of damages. Facts stated in the opinion. Judgment for the defendants upon a directed verdict, and plaintiff appeals. Reversed.

G. M. Tripp, for appellant. C. C. Nourse, for appellees.

WEAVER, J. The plaintiff alleges that on October 15, 1899, at Prairie City, Iowa, he sold a car load of onions to W. H. Judy & Co. for the agreed price of $350, and, in pursuance of such sale, made the shipment by railroad to his own order at Bloomington, Ill., receiving from the railroad company a bill of lading accordingly; that upon the same day he took said bill of lading to the defendants, who were doing a banking business in Prairie City, and requested them, by their cashier, to make a draft on W. H. Judy & Co. for $350, and forward the same at once with the bill of lading for collection from said W. H. Judy & Co., at Bloomington, He alleges that in pursuance of such request the cashier, having prepared a draft which was signed by plaintiff, received the same with the bill of lading, and undertook to make the collection as directed. He further alleges that defendants and their said cashier failed and neglected to forward said draft and bill of lading as agreed, and that by reason thereof W. H. Judy & Co. could not and did not obtain possession of the shipment, thereby causing a delay in the delivery, during which the onions were spoiled and rendered valueless. The defendants deny the allegations of the petition, and allege that the delay, if any, in the presentation of the draft and bill of lading, was the fault of plaintiff. At the close of the evidence offered by both plaintiff and defendants, the court sustained a motion to direct a verdict in favor of the latter.

Without going into an extended recital of the evidence, it may be said that the testimony of the plaintiff and his witnesses tends to show that he directed the defendants to send the draft and bill of lading for collection to Bloomington, and to notify W. H. Judy & Co. thereof at Peoria, Ill.; that

the onions were in fact consigned to said plaintiff at Bloomington, where they arrived on October 7, 1899; that soon after their arrival at said destination they were examined by a member of the firm W. H. Judy & Co., and found to be in good condition and reasonably worth the purchase price; that, on applying at the First National Bank at Bloomington, he found the draft drawn by plaintiff through defendants upon his firm, but said draft was not accompanied by the bill of lading, and without it said purchasers could not obtain a delivery of the shipment by the carrier; and that, after waiting a day or two, W. H. Judy & Co. telegraphed plaintiff to wire the railroad company to turn over the onions to them and make draft there. On receipt of this telegram, plaintiff's son, without authority, telegraphed to the agent of the railroad company at Bloomington to turn the onions over to the purchasers on payment by them of $350, to which direction the agent telegraphed a reply that he was not allowed to make collection on goods shipped over their railroad, and could "only deliver on presentation of bill of lading." Meanwhile the draft was returned. It appears that, as originally drawn, the draft was addressed to W. H. Judy & Co., at Peoria, Ill., instead of Bloomington, and, on its return to defendants, their cashier, having learned of the confusion which had arisen, erased the name "Peoria," and inserted the name "Bloomington," and forwarded it again on or about October 11, 1899, and, not being paid, it was finally returned some days later. It is further shown without dispute that, while thus kept in the railway car after their arrival in Bloomington, the onions sprouted and became worthless. As bearing upon the question where the draft was ordered sent for collection, plaintiff swears that he told the defendants' cashier to send it to Bloomington, and relied upon him to draw it as directed, as he himself did not have his spectacles, and could not see to read the instrument. It is conceded that the cashier did draw the paper, and plaintiff signed it, after which the cashier took it for the purpose of sending it for collection. The cashier, on the other hand, states that the draft was directed precisely as the plaintiff ordered.

1. Assuming the truth of plaintiff's testimony, and giving it the most favorable interpretation of which it is fairly susceptible in his behalf, we think a verdict in his favor would have to be sustained; and, if this be true, it follows that the issue should have been submitted to the jury. It is true that the testimony upon part of the defendants tends to establish their claim that plaintiff did not direct the draft and bill of lading sent to Bloomington, but to Peoria; that said direction was obeyed; and that the mistake leading to the delay was on part of plaintiff, in directing the course of the draft; but all this, at most, served only to raise an issue

of fact, to be settled by the verdict of the jury. It is not urged that if plaintiff had proved the alleged negligence on part of defendants, and consequent loss or injury to himself, he was not entitled to damages, and we are quite clear there was evidence from which such a finding might be sustained.

2. It is said on part of appellees that the evidence does not show the bill of lading to have been indorsed by the plaintiff, and that, without such indorsement, W. H. Judy & Co. could not have obtained possession of this shipment. From this premise it is argued that plaintiff has failed to show any injury by reason of the delay in presenting the draft and bill of lading. We think this position is not sound. The entire transaction manifests the intention of the parties that upon payment of the draft, accompanied by the bill of lading, the title in the onions should pass to W. H. Judy & Co., and upon such payment being made, and the draft and bill delivered to said purchasers, their title and right to demand and receive the shipment would be complete, even in the absence of plaintiff's formal indorsement. Rochester Bank v. Jones, 4 N. Y. 497, 55 Am. Dec. 290; Emery v. Bank, 25 Ohio St. 360, 18 Am. Rep. 299; Davenport Bank v. Homeyer, 45 Mo. 145, 100 Am. Dec. 363. This rule is especially applicable in the present case. The bill of lading was made to "Consignee J. B. Stoner Nfy. [Notify] W. H. Judy & Co."; thus, from its form, apprising the carrier that Judy & Co. had some interest in the shipment; and, as we have above suggested, on the appearance of these parties, with the bill and draft in their possession, affording evidence of their right, we may safely conclude that a delivery to them would not have been refused. Moreover, plaintiff offered testimony to prove that the legend "Nfy." on the bill of lading, in the manner here employed, is understood and recognized among carriers, and by the carrier having possession of this shipment, as indicating that the party thus to be notified is entitled to receive the property on presentation of the bill of lading, accompanied by the draft to which it is attached. This evidence was ruled out, and in this we think there was error. The abbreviation is not in itself of such plain or unequivocal signification as to exclude explanation by persons versed in the business in which it is used. And if this abbreviation, or the full word "notify," has acquired a peculiar meaning among carriers, plaintiff was entitled to prove the meaning of the same. L. Cook Mfg. Co. v. Randall, 62 Iowa, 244, 17 N. W. 507; Coulter Mfg. Co. v. Ft. Dodge Co., 97 Iowa, 616, 66 N. W. 875; Wood v. Allen, 111 Iowa, 97, 82 N. W. 451.

3. The final proposition in the motion for directed verdict which is urged in argument before us is that the evidence conclusively shows the plaintiff to have contributed by his negligence to the injury of which he complains. This is based upon the proposition

He

that as plaintiff says he signed the draft without reading it, and cannot state whether the name "Peoria" then appeared in it, he was therefore confessedly negligent. The rule upon which appellees rely is not broad enough to cover this case. In the first place, plaintiff swears that, by reason of the want of spectacles, he could not read the instrument, but, assuming that it was written by the cashier as directed, he signed it. We cannot say, as a matter of law, this constitutes negligence. In this transaction with the bank and its cashier, he was not dealing with one who was hostile in interest. applied to a bank presumably experienced in making collections of this kind; and, having given the data required, and being himself unable to read, it is not for the court to say that he was negligent in relying upon the accuracy and skill of the cashier in a matter so peculiarly within the line of his business, or in signing the draft under such circumstances without procuring someone to read it for him. The cases cited by the appellees, of which McKinney v. Herrick, 66 Iowa, 416, 23 N. W. 767, and McCormack v. Molburg, 43 Iowa, 561, are types, are not applicable here. In each of those cases a party who had knowingly signed a contract without reading it or having it read to him, and without any fraudulent device practiced upon him to prevent his obtaining knowledge of its contents, was held not entitled to show that he did not know the stipulations of the agreement to which he had put his name. In the pres ent case plaintiff was taking upon himself no contractual obligation, save the implied obligation to pay the defendants for their services in making the collection. He had orally employed them to make this collection. and trusted them to prepare the instrument by which it was to be made; and it would be going very far, indeed, to say that, as a matter of law, he was negligent in not fencing against a possible mistake on their part in preparing the draft for his signature. They were his agents, employed to perform a service in which they, as bankers, were presumably skilled, and he, as a farmer, was presumably less familiar; and, to say the very least, if, under such circumstances, he did not exact a reading of the draft before signing it, his negligence is not so glaring or patent as to justify the court in withdrawing the case from the jury.

It follows from the foregoing observations that the motion directing a verdict for the defendants was improperly sustained, and a new trial will be ordered. Reversed.

SUTPHIN v. HOLBROOK.

(Supreme Court of Iowa. Jan. 20, 1904.) LAND CONTRACTS-FORFEITURE-WAIVEREVIDENCE.

1. Evidence in an action for specific perfor mance of a contract to sell land held not sufficient to show that a payment after expiration

of the 30-days notice of forfeiture was made and accepted in performance of the contract, so as to effect a waiver of the contract, but to show that it was on an indebtedness independent of the contract.

Appeal from District Court, Poweshiek County; John T. Scott, Judge.

Suit in equity for the specific performance of a contract for the sale of real estate. The trial court rendered a decree as prayed, and defendant appeals. Reversed.

Hedges & Rumple and J. T. Beem, for appellant. J. W. Carr, for appellee.

DEEMER, C. J. On the 3d day of June, 1901, the parties to this litigation entered into a written contract which reads as follows:

"That on condition that before the contract hereinafter referred to shall be made or entered into, and at the time hereinafter named said Sutphin shall and do, without further demand, pay to said Holbrook, such sum of money as shall leave due on general indebtedness from said Sutphin to said Holbrook no more than the sum of Twelve Hundred Dollars, including the $650.00 rent note to mature February 1st, 1902, such sum to be paid on or before the 1st day of November 1901, at the Marengo Savings Bank, at Marengo, Iowa, and on the further condition that said Sutphin shall and do pay to said Holbrook at said Bank, without demand, all balance of such general indebtedness on or before the 1st day of March, 1902, such balance to include the rent note to be due February 1st, 1902, in the sum of $650 and interest after maturing, as per the terms of the said note that at or on any time after the said payment, said Holbrook will make to and with the said Sutphin, a contract of sale, for the sale and conveyance to the said Sutphin, of the following described land, to wit: The south three-fourths of the south half and southwest quarter (except three acres in the southwest corner thereof, used as a graveyard) two hundred and seventeen acres in section twenty three, township seventy-nine north, of range thirteen west of the fifth p. m. and in Poweshiek County, Iowa. It is specially understood and agreed that this contract is for the accommodation and convenience of said Sutphin and that there is a disposition on the part of the said Holbrook to help said Sutphin to get the land above described on favorable terms, and is made in view of the fact that Sutphin and the present and former owners of the said land have had business relations for a long time and the contract is for this purpose and not to be assigned to any other person whomsoever. And it is specially agreed that if said Sutphin shall in the payment of every portion of the sum agreed to be paid by the 1st day of November, 1901, or if he shall fail to pay the balance referred to herein, of Twelve Hundred Dollars by the 1st day of March, 1902, time of such payments being of the very essence of this agreement to enter into a contract, then, there shall no longer exist on the part of said Holbrook any obligations to make

the contract of sale herein referred to, and if any portion of said debts that is to be paid by November 1st, and March 1st, as herein agreed shall have been paid, it shall be retained by said Holbrook and credited on said debt on which it shall have been paid, it being understood that such payments are not of the purchase money or any portion of it agreed to be paid for the land. But if said Sutphin shall and do pay said sums in full, including all interest thereon accrued, and to accrue, at the times herein limited, then said Holbrook will enter into a written contract for the sale of said land to said Sutphin for the sum of Ten Thousand, Five Hundred Dollars, payable in installments as follows: Two Hundred dollars per year for the first two years, Three Hundred per year for the next three years, Five Hundred dollars per annum for the next six years; six hundred per annum for the next two years, and Five thousand Dollars the next year, together with interest, on all such payments at the rate of six per cent per annum, from March 1st, 1902, payable annually and all payable without demand at the Marengo Savings Bank, Marengo, Iowa.

"The contract shall require Sutphin to pay interest and taxes regularly and keep up insurance on the buildings for the benefit of Holbrook, in a sum equal to the fair insurable value of the same and will provide that when Sutphin shall have paid $3,500.00 of the principal of the purchase money and all interest and taxes on the land shall have been paid to the date of the payment of the $3,500.00, and all according to the terms of this contract, then Sutphin will be entitled to receive a deed of said land, and on receipt of same will make to Holbrook or his assigns a mortgage on the land to secure such of the purchase money of the land as shall then remain unpaid in such form as shall be approved by said Holbrook, or N. B. Holbrook, his agent at Marengo, Iowa.

"Said contract shall further provide that said Sutphin shall keep the buildings and improvements of the said land in as good condition as now or as they may have been placed in during the time they shall have been in possession of Sutphin; and shall be so drawn as to make the time of the payment of the money agreed to be paid for said land, essential to the validity of the contract, and that if there shall be any default in the payment of any of the principal or interest and taxes of said land, or if there shall be any breach of the covenants or agreements of the contract on the part of Sutphin the rights he may have had under the contract shall be deemed to have been waived and forfeited by him and said Holbrook thereupon and thereby at his option, released from his obligation to convey the land; and there shall be such provision of the contract as shall enable Holbrook in the event of any forfeiture of the rights of said Sutphin, to enter into possession of the said land, and remove any and all persons therefrom without previous demand, and if neces

sary by an action of forcible entry and detainer, notwithstanding any of the provisions of the contract, at any time of the year or month; and should there have elapsed more than thirty days after such default, there shall still exist the right to commence such proceeding, as the forfeiture shall date only from the date of the election of Holbrook to declare it; or Holbrook may have any other remedy for the recovery of the land in case of the forfeiture herein referred to, that is or shall be given by law.

"Made in duplicate, each party having one piece or copy. George O. Holbrook. "Charles Sutphin." Plaintiff neglected to pay the amount which was required of him on November 1, 1901, and on November 6th defendant gave plaintiff notice of an election to declare a forfeiture of the contract. Thereafter, and on the 10th day of December of the same year, plaintiff paid the defendant the sum of $1,285. Defendant claims, however, that this was received by him upon an indebtedness which was owing him independent of any consideration for the sale of the land, while plaintiff insists that, by receiving this money, defendant waived the alleged forfeiture, and that plaintiff is entitled to a decree specifically enforcing the contract which we have quoted. Defendant contends that the contract is not for the sale and conveyance of real estate, but simply an agreement to make a contract, which agreement was upon conditions which have never been performed. He further contends that the contract was without consideration, and was nothing more than a mere option, in that plaintiff did not bind himself to take and pay for the land, but had the right, upon electing to pay certain debts, to enter into an agreement for the purchase of the land. Claim is also made that the contract was, in any event, forfeited, and that plaintiff has no rights thereunder. There is much to be said in favor of each of these contentions, but, as we view it, the case may be determined wholly upon the theory of forfeiture, and to that question alone we shall give attention.

Such contracts as the one in question, conceding it to be a valid agreement to sell an interest in real estate, cannot be forfeited except on 30 days' notice to the vendee, as provided in section 4299 of the Code. At the end of this 30-day period, if the condition broken has not been performed, the contract is forfeited, according to its terms, for breach of condition. The notice was given here, but, after it was given, plaintiff made some payments, which, it is claimed, amount to a waiver of the forfeiture. If these payments were made and accepted in performance of the contract which contained the agreement to sell, then, doubtless, there was a waiver. But if made and accepted in satisfaction or part satisfaction of an indebtedness which existed independent of the contract, then there was no waiver. This view of the case

necessitates an investigation as to the facts. It appears that the land was at one time owned by N. B. Holbrook, who conveyed it to C. M. and B. D. Holbrook, and they, in turn, conveyed it to defendant, George 0. Holbrook. N. B. Holbrook, while he owned it, entered into a contract in the year 18095 to sell the land to plaintiff for the sum of $10,850; and plaintiff at that time gave him a note for $350, due March 1, 1896, as representing part of the purchase price. C. H. and B. D. Holbrook became the owners of the land after this contract was executed, and in 1897 they entered into a contract to sell to plaintiff the land for the sum of $10,500. At the same time plaintiff executed a note to these vendors for the sum of $600, representing the rent of the land for one year. In November of the year 1897 these same parties entered into another contract to sell the land to plaintiff on March 1, 1899. on condition that he (plaintiff) pay off certain indebtedness owing to the Holbrooks, including the $600 rent note for the use of the farm for the year 1898, and other matters of indebtedness. Defendant acquired title to the land some time in the year 1900, and he, in turn, entered into a contract to sell plaintiff the land, provided he (plaintiff) should pay certain indebtedness owing to him (defendant), including a rent note for the year 1900. Thereafter the contract in suit was entered into. This contract speaks for itself. It also appears that, before the making of the last contract, defendant took up many other items of indebtedness owing by plaintiff to third parties, and on some of these he (defendant) obtained a discount. In 1899 plaintiff owed defendant on transaetions independent of the land transaction more than $1,400, after allowing all credits. This he was obligated to pay, no matter whether the contract in suit was forfeited or not. If he paid the entire indebtedness within the time fixed in the contract, then defendant agreed to sell him the land for an agreed price. Plaintiff's payments after the declaration of forfeiture, if made or accepted under the contract, should, no doubt, be treated as a waiver thereof. But if not so made, but in satisfaction of other valid debts, then there was no waiver. There is some doubt about whether the original note given as part of the purchase price of the land has ever been paid, and it is probably immaterial as to whether it has been paid or not, except as it throws light on the question of the application of the payments made after the declaration of forfeiture. As the case turns on the effect to be given the payments after the declaration of forfeiture, we now go directly to that question. Plaintiff says be paid all that was due defendant under the contract, including the $350 given as part of the original purchase price of the land, while defendant contends that he distinctly refused to accept the money on the contract of sale, and that whatever he received was