that he had nothing to do with the mill; that Ainsworth was running it; that he (Nodle) had rented it, was out of the milling business entirely, and had nothing more to do with it, and spoke of Ainsworth doing a good business. In this state of the record, even though a written contract employing Ainsworth was in evidence, we think the ownership of the property was a question for the determination of the jury.

3. The defendant pleaded an estoppel, and that issue was submitted to the jury. The evidence tended to show that Nodle knowingly permitted Ainsworth to hold himself out to the public as the owner of the property in suit, and that the levy of the execution was induced thereby, but not with that express intention, as Nodle knew nothing of the judgment against Ainsworth. But the business at the mill was done with the public generally; and if Ainsworth carried it on, and handled the property therein as his own, and this was known to and permitted by Nodle, the latter had good reason to understand that such property would be treated as that of Ainsworth by any one dealing with him. Such conduct, if established, was inconsistent with his claim of ownership, and ought not to be gainsaid to the injury of any one who acted upon the faith of the admission implied. Whether the defendant might claim the estoppel by reason of making the levy is not argued. See Jamison v. Miller, 64 Iowa, 402, 20 N. W. 491. The different elements of an estoppel were specifically found by the jury in answer to interrogatories propounded by the court, and the evidence heretofore mentioned in part was such as to preclude any interference by this court.

4. At the request of defendant, 12 special interrogatories were submitted to the jury, some of which did not call for ultimate facts material to the issue. We have held it not error to refuse interrogatories the answers to which could not affect the general verdict. Read v. Insurance Co. (Iowa) 72 N. W. 668; Scagel v. Railway Co., 83 Iowa, 380, 49 N. W. 990; Hablichtel v. Yambert, 75 Iowa, 539, 39 N. W. 877; Van Horn v. Overman, 75 Iowa, 421, 39 N. W. 679; Cormac v. Bronze Co., 77 Iowa, 32, 41 N. W. 480; Bank v. Jennings, 89 Iowa, 230, 56 N. W. 494. It is the better practice not to submit those not calling for ultimate facts, as these usually tend to confuse, rather than aid, the jury, and the answers, when made, are of no practical value. All the inquiries were relevant, however, and no prejudice could have resulted from making them. Manatt v. Scott (Iowa) 76 N. W. 722.

5. The appellant criticises nearly every ruling made during the trial. We have referred to those deemed of sufficient importance to require mention. With the court's finding that the jury was not guilty of misconduct we cannot interfere. We discover no prejudicial error in the record, and the judgment is affirmed.

BRENNECKE et al. v. HEALD. (Supreme Court of Iowa. Jan. 27, 1899.) SALES-BREACH OF CONTRACT-DAMAGES-INSTRUCTIONS EVIDENCE.

1. Where there is an issue as to whether a writing constitutes the contract between the parties, evidence of an alleged verbal contract is admissible.

2. An instruction that, if a writing was not so signed or accepted as to become a contract, the jury might consider it in determining the terms of and parties to the contract, is not objectionable, as instructing that, though the jury find the writing to be the contract, they might consider it an oral contract.

3. Where defendant represented that property purchased by plaintiff was free from incumbrance, and it was in fact incumbered and lost by plaintiff, the measure of his damages is the value of the property so lost.

4. An instruction that plaintiff's damages for breach of contract for the sale of property was the value of the property "and rights" is not misleading, where the good will of the business was part of the consideration, and one of the rights claimed to have been lost by plaintiff.

Appeal from district court, Marshall county; Obed Caswell, Judge.

Plaintiffs bring this action to recover damages in two counts,-the first, to recover for a breach of contract; and the second, to recover for false and fraudulent representations. Issues were joined as will hereafter appear, and, on trial had, verdict and judgment were rendered in favor of the plaintiffs for $350. Defendant appeals. Affirmed.

Binford & Snelling and J. M. Whitaker, for appellant. J. M. Parker, for appellees.

GIVEN, J. 1. The defendant sold and delivered to the plaintiff firm, for the consideration of $350, certain tools, implements, and supplies kept in a certain meat market on leased premises in the city of Marshalltown, and one buggy and set of harness. The plaintiffs claim that the contract was verbal, and that defendant agreed, as part of the consideration, that he would secure from the owner of the building, for the plaintiffs, a lease for the term of one year, with the privilege of two more years, at a rental of $50 per month; and they allege that he failed to do so, to their damage. The defendant claims that the contract was in writing, and that thereby the plaintiffs assumed the existing lease, and denies that any other contract was made. He sets out a writing claimed to be the contract, reciting that, for the consideration of $350, "I hereby agree to turn over to Brennecke Bros. the following property." Here follows an enumeration of the tools, etc., and then the following: "The said Brennecke Bros. to assume the lease now on said building belonging to Mr. Bailey, and occupied by the Huffaker Meat Co." There is no provision In this writing for the defendant procuring a lease for the plaintiffs.

The defendant's first contention is that the court erred in admitting evidence over

his objection tending to show a verbal contract. There is evidence tending to show that this writing was made out at the time of the sale, but not signed by the plaintiffs, and there is a conflict as to whether it was accepted by them. The court instructed that it was claimed by the plaintiffs that the contract was in parol, and by the defendant that this writing was the contract, and that "it is for the jury to determine the truth as to that; and, in determining that question, you should consider the testimony of the witnesses, and all the circumstances bearing upon the question. If you find that said original written matter, called by the defendant the 'written contract,' was made by the parties to this action, and was seen, read, and understood by them, at the time of the payment of the money or before, and they assented to or did not object to the statements therein contained, even though the same may not have been signed by the parties, or signed by one, and delivered to and accepted by the other, still you have a right to consider it in determining the terms of and parties to the contract, even should you determine the contract to be oral. If you find that said written contract, alleged by defendant, was signed by the defendant for himself, or for the Huffaker Meat Company, and also find that the same was known to and understood by the plaintiff, and was accepted by it, as its provisions are decisive of the material question in this case, your verdict should be for the defendant." There being an issue as to whether this writing constituted the contract, there was no error in admitting the evidence objected to, nor in overruling defendant's motion for a verdict, and submitting that issue to the jury.

2. Objections are urged to the statement of the issues as made by the court. The statements are in accord with the pleadings, and, while it is true they do refer to allegations that were not submitted to the jury be cause of there being no proofs, there was no prejudice from the reference made to these allegations.

It is complained that the court erred in instructing that, if the writing was not so signed or accepted as to become the contract, still the jury might consider it in determining the terms of and parties to the contract. This was favorable to the defendant, and did not, as contended, instruct the jury that, though they found the writing to be the contract, they might consider it an oral contract.

3. Plaintiffs, in the second count, alleged that the defendant represented the property as free from incumbrance, while, in fact, Mr. Bailey had a chattel mortgage on the same for rent in the sum of $1,500, and that said property was taken from the plaintiffs under said mortgage, to their damage. The court instructed: "If you find for the plaintiff, its measure of recovery will be the value of the property and rights, as shown

by the evidence, purchased by the plaintiff, and not delivered, or taken from and lost to plaintiff by reason of the aforesaid lien and incumbrance." Complaint is made of the use of the words "and rights." Whether the contract was as claimed by the plaintiffs or the defendant, the good will of the business was part of the consideration, and one of the rights claimed to have been lost by the plaintiffs. It is insisted that this instruction was confusing, and that there was no evidence as to the value of the property when taken under the landlord's lien. We think the instruction is in line with the evidence. and correctly stated the measure of damage. We find no prejudicial error in any of the respects complained of, and the judgment is affirmed.

1. The fact that another cause operated with the negligence of defendant to produce the injuries complained of will not relieve him from liability, if his negligence, concurring with such other cause, was the proximate cause of the injury.

2. In an action for injuries received at a railroad crossing, it appeared that decedent's team became frightened and unmanageable by steam escaping from a mill. The court charged that, if defendant company was negligent in failing to ring the bell or blow the whistle of its approaching train, still, if, by reason of the team becoming unmanageable, the giving of the signals would not have prevented the injury, then it could not be said to have been caused by such failure. Held a sufficient charge of the effect of the conduct of the team on the question of the proximate cause of the injury.

3. Where it appeared that the team driven by deceased on approaching a railroad crossing became frightened and unmanageable, the question whether defendant was negligent in sounding the whistle when near the crossing, thereby increasing the fright of the team, was properly left to the jury.

4. A charge that if the surroundings of a crossing were such that, with the signals given, and the speed of the train, persons at or near the crossing, using ordinary care, had reasonable warning of the approach of the train, then defendant was under no obligation to check its speed as it approached the crossing, was correct.

5. Where the undisputed evidence showed that a view of the track was partially obstructed, it was not error for the court to assume in its charge that there were obstructions to sight and hearing of an approaching train.

6. In an action for injuries at a railroad crossing, where the evidence showed that decedent's team was unmanageable, a charge on the question of defendant's negligence in not providing a flagman at the crossing was not error.

7. Under Code, § 2072, requiring that a locomotive whistle be sounded 60 rods before a crossing is reached, except in cities or towns, unless required by an ordinance thereof, failure of the court, in an action for injuries at a crossing within the limits of a town having no such

ordinance, to charge that it was defendant's duty to sound the whistle, was not error.

8. In an action for injuries at a crossing, there was evidence that the view of the track was obstructed by a cornerib, and then by a section house. Held, that a special finding that if deceased, while approaching the track, had looked, he would not have been able to have seen the train from the time he passed the corncrib until he reached the crossing, was not in conflict with the evidence.

9. In an action for injuries at a crossing, the court requested special findings as to whether the attention of deceased was so divided by the fright of his team, the danger arising therefrom, and his efforts to control them, that, under the circumstances, he was not guilty of negligence in not stopping and listening before going on the crossing, and whether his attention was so diverted that he was not guilty of negligence in not knowing the approach of the train. Held, that the findings requested called for important facts bearing on the question of contributory negligence, and were not error.

10. Division of a requested interrogatory into two, containing every material fact in the one requested, is not prejudicial error.

Appeal from district court, Cass county; Walter I. Smith, Judge.

The petition and amendments thereto are too lengthy to be even fully summarized. It is sufficient, to say that it charges that on the 10th day of March, 1894, deceased, W. H. Stone, came to his death, without fault on his part, by being struck by one of defendant's passenger trains at a street crossing in Anita, while in his wagon, passing over defendant's track at said crossing; that his death was caused by reason of the negligence of the defendant's servants in failing to give the required and proper signals and warnings of the approach of said train to said crossing, by running said train at a high, unusual, and reckless rate of speed, and by sharply sounding the whistle when near the crossing; also, that defendant was negligent in not providing a flagman at said crossing. Plaintiff asks judgment for $50,000. The defendant answered, admitting its corporate capacity, and that it was operating a railway through the town of Anita, and, in effect, denying the other allegations of the petition. Verdict and judgment were rendered in favor of the plaintiff for $5,020. Defendant appeals. Affirmed.

Swan & Bruce, for appellant. J. B. Rockafellow, Robert Mather, and Carroll Wright, for appellee.

GIVEN, J. 1. Except in a few particulars, that will be mentioned, there is no conflict in the evidence. The following is a sufficient statement of the facts for the purposes of this appeal: Defendant's railway runs east and west through the town of Anita; the depot building being on the north side of the track, and east of the crossing of a north and south street, called "Chestnut." Part of the town is situated south, and part north, of the railway; and said crossing, being the principal one, is much used. The track east from the crossing is straight for a long distance, and slightly down grade to the west.

In

Some distance south of the track, and east of Chestnut street, was a steam mill, with a driveway around it and between it and a large corncrib standing north, between the mill and the track, and running lengthwise east and west. The mill and crib obscured a view of trains coming from the east by persons going north on the street until the northwest corner of the crib was passed, and from there the view was quite extended. There is some conflict as to the distance from the track to the crib, from the northwest corner of the crib to the crossing, and the extent of the view of the track to the east. The exact distances are not very material, as it is manifest that, taking the shortest distances claimed, deceased had ample opportunity to have seen the train in time to have avoided the collision, if nothing had occurred to prevent him from doing so. the forenoon of March 10, 1894, deceased, accompanied by his wife, drove his twohorse team and wagon into the north part of the town; and, after leaving Mrs. Stone at a store, he drove south, over the crossing, to the south side of the mill, and from there, around the mill, out onto Chestnut street, and thence north onto the crossing, where the fast passenger train going west struck the wagon and killed Mr. Stone. Plaintiff alleges in his petition that the team became frightened by steam escaping from the mill, and that by the time the street was reached it "became unmanageable, or very difficult to control and manage." It is also alleged that by reason of the conduct of the team the attention of Mr. Stone was necessarily given entirely to its management, and that, therefore, he could not and did not observe the approach of the train. While there is much diversity in the testimony as to the conduct of the team, there can be no doubt that the horses were greatly frightened, and that although Mr. Stone, as all agree, made strenuous efforts to control them, he did not succeed in doing so. Some question is made in argument whether the horses were entirely or only partially beyond the control of Mr. Stone. The jury found specially that they were only partially unmanageable and beyond his control. It is evident, however, that they were so much beyond his control that he was unable to stop them before reaching the crossing. Mr. Stone was familiar with that crossing, and knew that this fast train was due to pass about that time; and we may presume that he would not have gone upon the crossing when and as he did, if he could have controlled the team, and observed the approach of the train. As we view it, it is not material whether the team was entirely or only partial beyond his control. There is some conflict in the evidence as to what signals were given, and the speed of the train. These conflicts we will notice further on.

2. Defendant's counsel say in argument "that if the team of the deceased rushed on

the track at the crossing because they were frightened and unmanageable, and beyond the control of the driver, and that such condition of the team was due to the fright, for which defendant was in no manner responsible, then the fright was the proximate cause of the accident, or at least a concurring cause, and there can be no recovery." Appellee's counsel say "that when two causes combine to produce an injury, both of which are proximate in their character,-the one being the result of culpable negligence, and the other an occurrence as to which neither party is at fault,-the negligent party is liable, provided the injury would not have been sustained but for such negligence." Appellant cites a number of cases-among them, the following Iowa cases in support of its contention: Knapp v. Railway Co., 65 Iowa, 91, 21 N. W. 198; Handelun v. Railway Co., 72 Iowa, 709, 32 N. W. 4; Moss v. City of Burlington, 60 Iowa, 438, 15 N. W. 267; Gould v. Railway Co., 66 Iowa, 590, 24 N. W. 227; De Camp v. Sioux City, 74 Iowa, 392, 37 N. W. 971. While much is said in these cases which seems to support appellant's contention, the question under consideration was not directly passed upon in either of them. In the recent case of Gould v. Schermer, 101 Iowa, 583, 70 N. W. 697,-an action to recover damages for injuries sustained by plaintiff by reason of the alleged negligence of defendant road supervisor in constructing a bridge, by erecting a cattle pass under the same without authority,-the court instructed as follows: "That, if there were other causes than that of the cattle way or defective bridge concurring to produce the injury, plaintiff could not recover, unless these causes were also the wrongful act of the defendant." This court said: "Such instructions were erroneous, for the rule of law is well settled that the mere fact that some other cause operates with the negligence of the defendant to produce the injury does not absolve defendant from liability. His original wrong, concurring with some other cause, and both operating proximately at the same time in producing the injury, makes him liable, whether the other cause was one for which the defendant was responsible or not." This case is decisive of the question under consideration, and sustains appellee's contention as to the law.

3. Appellant insists that the court refused to instruct as to the fact that the team was frightened, so far as it affected the question of the proximate cause of the death of the deceased. After stating the issues, the court instructed that: "To recover damages from the defendant for the killing of W. H. Stone by the defendant's train, all the following matters must appear from the evidence: First, that the defendant was negligent in some one or more of the particulars complained of in plaintiff's petition; second, that such negligence on defendant's part caused the death of W. H. Stone; third, that W. H.

Stone was not guilty of negligence on his part that contributed to the injury; fourth, that the estate of W. H. Stone suffered injury by reason of his death. The burden rests with plaintiff to show all of said matters by the greater weight or preponderance of evidence. If all of said matters are thus shown, the plaintiff will be entitled to recover; but, if any one or more of said matters are not thus shown by the evidence, then your verdict must be for the defendant." Following this, the court instructed fully and clearly as to the duty of the defendant in respect to the matters charged as negligence, and that if defendant was negligent in any of said particulars, and such negligence caused the death of W. H. Stone, without fault or negligence on his part contributing thereto, the defendant was liable. Next in order the following was given: "(9) Unless it appears from the evidence that the defendant was negligent in the running and management of its train in one or more of the ways complained of, as before explained, then the plaintiff cannot recover; but, if such negligence is shown by the evidence, then it must also appear from the evidence that such negligence on the part of defendant caused the death of W. H. Stone. That is, it must appear from the evidence that but for such negligence the accident and consequent death of W. H. Stone would not have occurred. If it appears from the evidence that the defendant company was negligent in some one or more of the particulars complained of, as in failure to ring the bell or blow the whistle on approaching the crossing, still, if it appears from the evidence that, by reason of the team driven by Stone being unmanageable, the giving of said signals, or the placing of a flagman at said crossing, would not have prevented the injury, then it cannot be said that the failure of the defendant to give said signals, or to station said flagman at the crossing, caused the injury." The remaining Instructions are as to the care to be exercised by persons when approaching railway crossings, and as to the measure of damages. The eleventh paragraph submits the question whether the fright of the team was such as to excuse the deceased from stopping, looking, and listening for the approach of the train. Taking the view of the law that we do, we think the instructions were sufficiently full and explicit in the respect complained of.

4. It is charged that defendant was negligent "by sharply sounding the whistle of the engine when near the crossing, and thereby frightening the decedent's horses." There was evidence tending to show that immediately before, or just at the time of, the collision, the whistle was sounded; and the court submitted to the jury the question whether the defendant's engineer was negligent in so doing. Appellant insists that there was no evidence to warrant the giving of this instruction, and cites Schaefert v. Railway

Co., 62 Iowa, 624, 17 N. W. 893, and Ochiltree V. Railway Co. (Iowa) 68 N. W. 832, to show that it would not be negligent to have sounded the whistle. Whether or not it was negligence to sound the whistle at that time depends upon the circumstances, and, under the circumstances of this case, the court could not say as a matter of law that it was or was not negligence, but properly. submitted it to the jury.

In the seventh paragraph the court instructed that "if the circumstances and surroundings of the crossing as shown by the evidence were such as that, with the signals that were given by the defendant of the approach of the train, and the speed the train was going, persons at and near the crossing, who were using ordinary care to learn of the approach of the train, had reasonable warning of its approach, then the defendant was under no obligation to check the speed of its train as it approached the crossing." Appellant insists that too much stress is laid upon the giving of signals; that if persons could see the approach of the train, though no signals were given, they were bound to keep off the crossing. This instruction was directly applicable to the alleged negligence in the speed of the train.

It is contended that the court erroneously assumed, in the sixth instruction, that there were obstructions which obscured the hearing and seeing of the approaching train. There is no dispute that the mill and corncrib obstructed the view up to a certain point, and there is dispute as to whether the view was not also obstructed by a section house, and as to the extent of the view. There was no error in this instruction. There is an equally groundless complaint made of the ninth instruction.

The fifth instruction submitted the question whether the defendant was negligent in not having a flagman at the crossing. It is insisted that, as the horses were unmanageable, the absence of a flagman had nothing to do with the accident. It was for the jury to say whether, in view of the deceased's attention being given to the team, the presence of a flagman to warn him that the train was approaching might not have enabled him to turn the team out of the street. In submit ting the charge that defendant was negligen in failing to give proper signals by ringing the bell or blowing a whistle, the court instructed that it was the duty of the defendant "to ring the bell on its engine at least sixty rods before the train reached the highway crossing in question, and to ring said bell continuously until said crossing was reached," and that not to do so would be negligence. Appellant cites section 2072 of the Code, requiring that the whistle shall be twice sharply sounded 60 rods before the road crossing is reached, "but at street crossings within the limits of cities or towns, the sound of the whistle may be omitted unless required by ordinance or resolution of the

council thereof." The town of Anita had passed no ordinance; hence, it was not required that the warning be sounded within the town limits. The court properly instructed only as to whether or not the bell was rung.

The court submitted the following special interrogatory, which was answered in the negative: "If the said Stone while approaching the crossing in question had looked for the train approaching from the east, would he not have been able to see the train in question during all of the time he traveled from the northwest corner of the large crib in question until he reached the place of the accident?" Appellant insists that this answer is in conflict with the undisputed evidence. There is evidence tending to show that the location of the section house obstructed the view after the corncrib was passed. Therefore we cannot say that the answer has no support.

It is contended that the last two interrogatories submitted by the court did not ask the jury to find any particular question of fact. The first asked the jury to find whether the attention of deceased was so diverted by the fright of his team, the danger arising therefrom, and his efforts to control them, that, under the circumstances, he was not guilty of negligence in not stopping and listening before going on the crossing. The other required them to find whether his attention was so diverted that he was not guilty of negligence in not knowing of the approach of the train. These interrogatories, though calling for answers somewhat in the nature of conclusions, call for the finding of the jury as to ultimate and important facts bearing upon the question of contributory negligence.

Appellant submitted the interrogatory: "Were Mr. Stone's horses frightened, unmanageable, and beyond his control from the time they left the northeast corner of the mill until the accident happened?" The court submitted instead thereof the following: "(1) Were Mr. Stone's horses frightened from the time they left the northeast corner of the mill until the time of the accident? (2) Were Mr. Stone's horses unmanageable and beyond his control from the time they left the northeast corner of the mill until the time of the accident?" Appellant complains that the court divided its interrogatory into these two. The two contain all that appellant asked, and we fail to see any prejudice in the manner in which they were submitted. We do not discover any errors in the record, and the judgment is therefore affirmed.

CASADY v. GRIMMELMAN et al. (HAMILTON et al., Interveners).

(Supreme Court of Iowa. Jan. 27, 1899.) ACTION ON JUDGMENT-LIMITATIONS-CREDITORS'

SUIT-PARTIES-PROPERTY SUBJECT

-GARNISHMENT.

1. Under Code 1873, § 2541, providing that, in computing the time for the commencement of an