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STATE v. McKEAVITT et al. (Supreme Court of Iowa. Dec. 15, 1898.) LARCENY VALUE OF ANIMALS – FORM OF QUES

TIONS-WITNESSES -COMPETENCY. 1. In a prosecution for stealing a thoroughbred Cotswold ram, kept for breeding purposes, questions as to the "value of that kind of a ram” at the place and time of the alleged theft, and to the "value of full-blooded Cotswold rams,” are not objectionable in form, as calling for his value as mutton.

2. A butcher, who bought sheep, cattle, and hogs, and a stock buyer, who bought sheep on speculation, are competent to testify to the value of a ram for breeding purposes.

Appeal from district court, Linn county; H. M. Remley, Judge.

Defendants were indicted, tried, and convicted of the crime of stealing two hogs, one sheep, and one ram, and from the sentence imposed they appeal. Reversed.

John M. Hughes, for appellants. Milton Remley, Atty. Gen., and J. M. Grimm, Co. Atty., for the State.

diction might be set aside upon petition, and by doing so we have necessarily determined that the prohibition in section 70 did not apply to that kind of a case. In that case the sale and all proceedings were absolutely void for want of jurisdiction, and no title could be acquired upon such sale except in cases when a possession of five years would preclude attack upon it, under section 73. It was held by this court in the case of Crawford v. Tuller, 35 Mich. 57, that one who attacks a judicial sale as invalid after strangers have acquired rights under it must do so by some original proceeding, in which an issue can be formed and tried in the ordinary way, and the persons concerned brought in as parties. Under the facts shown in the Benedict Case, the sale and deed were void, and might have been attacked in a suit to remove a cloud or upon ejectment. Perhaps it would have been a more technically correct course had we dismissed the petition in that case as precluded by section 70, leaving the petitioner to proceed in another way to get rid of the cloud upon his title. That course, however, would have left the question undetermined, and, as all of the parties were before the court, there seemed to be no obstacle to a disposition of the case, except a rule of equity practice and a technical and strict construction of section 70. We are of the opinion that a reasonable construction of that section may exclude jurisdictional questions from its terms, as was done in Benedict v. Auditor General, supra. But other defects in the procedure, which are mere irregularities, and therefore do not make the decree void, cannot be excluded, if we give any effect whatever to the statute. We may also be justified in inferring that section 70 was designed, not only to permit the setting aside of sales, to the end that a fairer sale might be made, but that it was intended to relieve a party against any sale in a meritorious case, within its terms; and that the practice by petition might be resorted to before confirmation, in case of a want of jurisdiction to declare the entire proceeding void, cannot be doubted. That being so, we see no reason to deny the remedy after confirmation, upon the ground mere. ly that the procedure is irregular.

Complainant held a mortgage upon these premises from 1891, and obtained title under a sheriff's deed made in 1894, yet the taxes were delinquent from 1892, and he gave himself no concern about taxes until informed of the defendant's deed. It is true that the defendant has acquired title to this land for a nominal sum, and the complainant's interest has been sacrificed, and the sympathies of courts as well as the public go towards the loser in such cases, notwithstanding the fact that inexcusable negligence may alone have made the situation possible, but we are not at liberty to allow such questions to enter into the disposition of causes. The decree of the circuit court is reversed, with costs of both courts. The other justices concurred.

DEEMER, O. J. The state offered evidence to show that the ram was a fullblooded Cotswold,. worth in the market at Cedar Rapids $30, and he was bought and used by the prosecuting witness for breeding purposes. Defendants produced witnesses to show the value of the animal, and to one of them propounded the following questions: "Did you know the market value of that kind of a ram in and about Cedar Rapids about the 15th day of December, 1897 ?” To this an objection was sustained. He was then asked: Do you know the value of full-blooded Cotswold rams?” An objection to this question was also sustained. Questions of similar import were propounded to other witnesses, and objections thereto were sustained, the court evidently being of the opinion that the questions called for the value of the animal as mutton. It is evident that the questions which we bave set out do not call for that kind of a an answer. One witness stated that he was a butcher, and that he was in the business of buying sheep, cattle, and hogs. Another said that he was a stock buyer, and knew the market value of sheep, as he bought them in a speculative way. He was then asked if he knew the market value of the ram, and the court refused to allow him to answer. It is manifest that these rulings were errone

And, as the value of the property was a material ingredient of the offense, the errors were highly prejudicial. The judgment is reversed.

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et al. (Supreme Court of Iowa. Dec. 15, 1898.) SELLING AGENCY-EXCLUSIVENESS- APPEAL -- UN

NECESSARY ABSTRACT-Costs. 1. An agreement to appoint a firm as agent "for receiving, keeping, and selling in their beholf" the first party's harvesting machinery

and parts and binding twine, "on commission, Leggett & McKemey, for appellant. Raney for the following territory only, J. county, for the entire season of 1891," with a power of rev

& Simmons, for appellee. ocation reserved, does not confer an exclusive selling agency.

GRANGER, J. 1. Appellant presents two 2. Where an amendment to an abstract cor

questions for consideration: First, does the ered 45 pages, setting out questions and answers, and the conclusion was reached on the

written contract by its terms grant to defendappellant's abstract alone, the appellee, though

ant the exclusive agency or right to sell plainsuccessful, will be taxed with all but three tiff's machinery in Jefferson county? and, secpages of such unnecessary abstract.

ond, if it does not, is there evidence on which Appeal from district court, Jefferson county; the contract should be reformed so as to grant M. A. Roberts, Judge.

such a right? We first consider the legal effect In December, 1890, the plaintiff and defend- of the contract on its face, and the following ant companies entered into a written contract are the provisions of it that we think material for the sale by defendant, on commission, for the purpose: “Fairfield, Iowa, December of the plaintiff's harvesters, binders, etc., for 13, 1890. Memorandum of an agreement bethe year 1891, in Jefferson county; and in tween William Deering & Company, a corMay, 1891, the parties made another written poration, of Chicago, Illinois, and Beatty & contract for the sale to defendant of binding Company, of Fairfield, county of Jefferson, twine to be delivered on or before June 1, 1891. and state of Iowa: (1) Said William Deering In pursuance of these agreements the plaintiff & Company have appointed Beatty & Compafurnished to defendant machines, twine, and ny agent hereunder, and for receiving, keeprepairs, for which it claims, as due it, the sum ing, and selling in their behalf their harvesters, of $1,788.10, and it asks an accounting and binders, reapers, mowers, twine, extra parts, judgment. The defendant admits the making | trucks, bundle carriers, flax carriers, and othof the contracts, but denies the accounting as er attachments, on commission, for the followmade by plaintiff. The defendant, by way of ing territory only, Jefferson county, for the encounterclaim, shows that after the making of tire season of 1891. (2) Said agent agrees to the agreement, in December, 1890, and in perform all the duties of such agency with pursuance of it, it entered upon its duty as prompt business diligence and due care and agent for plaintiff in Jefferson county, pur- skill. This agency may at any time be deterchased and received from plaintiff large mined by said William Deering & Company amounts of goods and wares, specified in the without liability for damages, and they may contract, and proceeded at great expense to ad- at once take possession of the goods or propvertise the same in the markets of said coun- erty unsold, and of everything in the hands of ty, and before its customers therein, and that the said agent in any way relating to the busiit worked up a good market and a large de- ness." The contract contains numerous other mand for said goods by its labor and the ex- provisions relating to the method and details penditure of money, and would have sold large of carrying the contract into effect, but we quantities of the goods, and made large profits see nothing to aid in the solution of the ques. and gains thereby; that in the midst of the tion before us. The conclusion on this branch season of 1891 the plaintiff, in violation of the of the case is not doubtful. The contract conduty it owed defendant, entered the county tains no words of an exclusive tenor. It simof Jefferson, and willfully and maliciously cut ply gives a right to sell on commission in Jefthe prices of its own goods and wares, which ferson county for the entire season of 1891, were in the hands of the defendant, and offer- with a subsequent provision for a revocation ed to and did sell the same to defendant's cus of the agency by the plaintiff at any time. tomers below the retail prices, and thereby The character of appellant's argument leads prevented defendant from making sales, by us to think there is no serious contention over which defendant was prevented from making this proposition. The next question is one of profits and gains in the sum of $1,000, for fact, and one of greater doubt. From our which amount judgment is asked. By an separate readings of the record, there is no amendment to the answer, it is a verred that difference of conclusion on this branch of the the written contract of December, 1890, does case, and it is in harmony with that of the not express the intention of the parties, and district court. Much reliance is placed on that in its making the parties intended and former contracts and dealings of the parties of understood that the contract should be for the same character to show the intent in makthe appointment of defendant as the sole and ing the contract in question, but there is exclusive agent for plaintiff in Jefferson coun- nothing in it, with the other facts disclosed by ty for the year 1891; and a reformation of the evidence, to overcome the conclusive lanthe contract is asked, to conform to such in- guage of the contract itself. Less than the tention of the parties. Issue is taken upon the substance of all the evidence would not show averments as to a counterclaim and for refor- on what our conclusion is based, and we canmation of the contract. The cause proceeded not and need not set it out. to trial as an equitable one, and the court de- 2. There is a motion to tax to appellee the nied defendant's counterclaim, and any rule costs of an amendment to the abstract, and by way of reforming the contract, and gave the the motion is, in the main, well taken. The judgment for plaintiff, from which the defend- amendment consists of 45 pages, much of ant appealed. Affirmed.

which is by question and answer, and unneces

sarlly so, which is proven by the fact that we bent upon the state to prove beyond a reasonreach our conclusion alone on the record as dis- able doubt that the defendant at the time did closed by appellant's abstract. Of course, we not act in self-defense. It is a law that a realize that parties cannot know in advance person may resist force with force in the dehow the record may be regarded, and that in fense of his person against one who manifest. its preparation they must be guided by what ly intends or endeavors by violence to kill reasonably appears to be necessary to a proper him or inflict upon him great bodily injury, presentation of the case; and by that rule we

and if a conflict ensues in such a case, and must determine such questions as the one be

injury follows, such resistance is justifiable. fore us. Guided by that rule, we think three

To justify the defendant, however, in thus pages are all that was necessary by way of an

resisting and inflicting such injuries in selfamendment, and the costs of appellee's ab

defense, he is authorized to use such force, stract in excess of that amount will be paid and such force only, as may be necessary, or by appellee. The judgment is affirmed.

appear to him, as a reasonably careful, prudent, and cautious man, to be necessary, to protect himself from injury. While the dan

ger must be imminent and perilous, yet it is STATE Y. GOERING.

not necessary that the danger should be ac (Supreme Court of Iowa. Dec. 14, 1898.)

tual, but it must appear to him, as a reasonAssault AND BATTERY-Self-DeFENSE-CHARGE.

ably careful, prudent, and cautious man, to 1. Where, on a trial for assault, there was

be actual, and such as that a reasonably care evidence justifying a charge as to self-defense, ful, prudent, and cautious man would have a charge conveying the idea that one assaulted

good reason to believe that his life was in cannot defend himself unless it reasonably appears that his life is in danger, or that he is

danger, or that he was about to suffer bodily likely to suffer great bodily harm, is erroneous, injury. And, if such be the fact, he would since one assaulted may repel force with force. 2. Where affirmative error

then be authorized, under the law, to make

appears in a charge, accused is not estopped to urge the ob

resistance thereto, even though such resist jection on appeal by failure to ask a different ance might result in the death of his assailcharge.

ant, or in his suffering great bodily injury. Appeal from district court, Marion county; Where an assault is made, and there is a reaJ. D. Gamble, Judge.

sonable opportunity for the assailed party to Defendant was charged by indictment with withdraw and avoid the conflict and the the crime of assault with intent to inflict threatened or feared injury, it is his duty to a great bodily injury. From a judgment of withdraw and avoid the conflict or injury. conviction, he prosecutes this appeal. Re- If he has such reasonable opportunity to withversed.

draw, and fails to do so, then he would not Crozier & McCormack, for appellant. Mil

be justified in self-defense in inflicting painton Remley, Atty. Gen., and W. C. Kinkead,

ful or hurtful wounds upon his assailant. An for the State.

assailed party is not required to run away or

withdraw when an assault is made with such WATERMAN, J. The assault is charged

a violence that he cannot safely withdraw, to have been made upon one Lewis Leits.

or if it appear to him, as a reasonably careThe evidence is not before us. The record

ful, prudent, and cautious man, that he could we have sets out the indictment and the in

not safely withdraw and avoid the conflict structions given the jury, and this statement

and the injury threatened; but under such

circumstances he would be authorized to of facts: “There was evidence on the part

stand and resist the assault with such force, of the state tending to prove that the defendant struck and beat one Lewis Leits with a

and only such force, and with such weapons club and whip, the said Lewis Leits being at

or means, as were necessary therefor, or such the time unarmed. On the part of defendant,

as would appear to him as a reasonably carethere was evidence tending to show that the

ful, prudent, and cautious man, under like

circumstances necessary therefor. And in said Lewis Leits assaulted the defendant with

this case, if you find from the evidence that a knife in his hand, and that, when said as

Lewis Leits assaulted the defendant in such sault was made, the defendant struck bim several blows, but with his fists only, and

a manner and under such circumstances as that he did not at any time strike him with

that the defend ant did believe, or as a reason. anything but his fists." The sole complaint ably careful, prudent, and cautious man had is of the tenth paragraph of the court's

reason to believe, that he was about to be charge to the jury, which is as follows: “The killed, or to suffer some great bodily injury, defendant pleads not guilty, which plea puts

and that he could not withdraw and avoid in issue every material fact necessary to sup

the assault and encounter, then he would be port the indictment, and which must be es justified in using such force, and such force tablished by the evidence beyond a reasonable only, as would enable him to resist the asdoubt. And, for further and additional de- sault, and protect his life, or pr tect himfense, the defendant claims that, at the time self from such great bodily injury, and would of the altercation with the said Lewis Leits, be authorized, if it were necessary, as herehe was acting in self-defense. It is incum- inbefore defined, to inflict upon the said Lewis



Leits such injury as was reasonably neces- 2. But counsel for the state say that the sary for his protection. But if he could have defendant cannot be heard now to urge an withdrawn from the conflict, and avoided the objection to this instruction, because he did same, or if it were not necessary, or if it not ask that any different rule be given. did not appear to him, as a reasonably care- Where the court undertakes to give the law ful, prudent, and cautious man, necessary to to the jury, it is its duty to do so correctly; protect his life, or to protect himself from and a failure in this respect can be taken adgreat bodily injury or harm, to inflict pain- vantage of by defendant. The rule that counful or hurtful wounds or other injury upou

sel have in mind, doubtless, is that where the the said Lewis Leits, then he would not be

instructions given are correct, so far as they authorized, under the law, in self-defense, to

go, but objection is made that they are not have inflicted such painful or hurtful wounds

sufficiently specific, such complaint will not or other injury upon the said Lewis Leits.

be heard, if no more specific requests are sub

mitted. State v. Viers, 82 Iowa, 397, 48 N. In determining whether an assault, if any,

W. 732, and cases cited. We know of no was made in such a manner by Lewis Leits

rule that requires a party to do more than as would authorize the defendant in self-defense, as hereinbefore defined, to inflict upon

except to an instruction containing affirmative the said Lewis Leits painful or hurtful

error, in order to secure its review by this

court. For the error complained of in this wounds, if any, or to inflict upon him any injury, you should take into consideration the

instruction, the judgment is reversed. relative strength of the two contending parties; the nature and character of the assault, if any, made by Lewis Leits upon the

EDGERLY et al. v. COVER et al. defendant; whether made with weapons of some kind, or whether made sim

(Supreme Court of Iowa. Dec. 15, 1898.) ply with the hands or fists; the feeling exist


AGENT. ing between the parties at the time of and

A merchant's son-in-law, who managed the prior to the assault; the character and num

business as agent, and bought and paid for ber of blows given by the defendant, if any; stock, and who, on the principal's becoming and all the other surrounding facts and cir- sick, was told to do the best he could, and to

make collections or take notes for outstanding cumstances disclosed and shown by the evi

accounts, and apply them on a certain claim. dence in this case.”

and “to work things to the best advantage, and The complaint made of this instruction is to do anything [the agent] could to keep the that it limits the right of defendant to act

business going," had no authority to execute a in self-defense to cases where he is in rea

chattel mortgage of the stock; that not being

effective to keep the business going. sonable fear of losing his life or of suffering great bodily harm, at the hands of his adver

Appeal from district court, Iowa county; M. sary. We have italicized the portions of the

J. Wade, Judge. instruction to which appellant excepts.

Action to foreclose a chattel mortgage cor

A very cursory reading will show th: ere is

ering a stock of goods owned by J. V. Hatter good ground for the criticism made. Four

in his lifetime, alleged to have been executed times in this single paragraph is the thought

February 6, 1896, by John L. Miller, as his repeated that, if Leits assaulted defendant,

agent. The defendant Aaron Cover has two the latter had no right to defend himself un

mortgages, each covering the same stock of

goods, executed by Hatter on the 28th day of less it reasonably appeared to him that his life was in danger, or that he was likely to

February and the 23d day of April, 1896. The suffer great bodily harm from such assault.

defendants Seaton and Hatter are administraAs an abstract proposition of law, this state

tors of the estate of J. V. Hatter, deceased. ment is incorrect. The rule is elementary

The sole question is whether John L. Miller that one unlawfully assailed may, in self-pro

had authority from J. V. Hatter to execute tection, repel force with force. The extent

the mortgage to plaintiff. The district court to which he may go is to be measured by the

found he had not, and dismissed the petition. character of the assault; but the right, as

The plaintiff appeals. Affirmed. we have stated it, exists under any and all Thomas Stapleton, McNett & Tisdale, and circumstances. Counsel for the state insist W. A. Work, for appellant. Hedges & Rumthat the instruction may have been correct ple, for appellees. under the evidence in this case, and that, as the evidence is not before us, we should pre- LADD, J. That J. V. Hatter was indebted sume a state of facts justifying the rule giv- to the plaintiff on the 6th day of February,

It does, however, appear in the record, 1896, as alleged, is not questioned. At that that there was evidence on the part of de- time he was very sick, and, because of the fendant tending to prove that Leits, armed advice of his physician, could not be conwith a knife, assaulted him, and that defend- sulted. His son-in-law, John L. Miller, had ant, in resistance, struck his assailant with been in his employment as clerk in the drug his fists, and with those only. It is manifest store for seren years, and for two or three that the rule announced is erroneous when ap- years bought the goods, kept the books, made plied to any such state of facts.

collections, paid the bills, and waited on the


trade. In addition to this, during the last suggestions with reference to raising money. six months of Hatter's life, he conducted the But observation teaches that the execution of correspondence, and made all adjustments a chattel mortgage on the stock of a retail with the wholesale houses. On the day men- merchant is ordinarily quite as effective in tioned, Miller signed Hatter's name to the putting an end to his business as the levy of mortgage sued on, covering the entire stock of a writ of attachment. In Dispatch Line of drugs and other goods, by himself as agent. Packets v. Bellamy Mfg. Co., 12 N. H. 205, This was done after consulting the sons of Chief Justice Parker remarked: "It is not Hatter, and under the apprehension that the carrying on the business of the company to agent of the plaintiff, armed with a verified pledge or mortgage the machinery used by petition and bond as he was, would imme- the company, and thereby suspend its operadiately sue out a writ of attachment, and tion, or place them at the will and pleasure cause it to be levied on the property. The of a mortgage.” In Taylor v. Labeaume, 17 competency of Miller and his wife as wit- Mo. 338, an agent, having an entire managenesses, under section 4604 of the Code, is ment of a business of a lumber company, the exhaustively argued by the appellant, but, as members thereof living abroad, was held to the appellees ignore the point, and submit the have power to transfer lumber in trust in case on the theory that they might testify, payment of the servants of the company. we pass that question. Each party relies on Only a part of its property was so disposed the evidence of Miller, which is confirmed by of, not enough to terminate its business. If that of his wife, and we set it out in extenso. the agent was permitted to do what the ownHe testified: "During the first and second er might have done, this must be construed weeks of his sickness, I went up to see him with reference to carrying on his business, [Hatter) almost every day, and sometimes and not in respect to ending it. The morttwice a day. Sometimes, during the first part gage, if valid, transferred the right of possesof his sickness, something came up that I sion to the plaintiff. The mere fact that he wanted to talk to him about. A claim had did not exercise this right does not argue come in that I couldn't meet. I went to see against the existence. Miller had the authorhim. I told him I didn't like to trouble him, ity to sell in the ordinary course of trade, but, because I knew he wasn't in a condition to be authority to mortgage cannot be inferred from troubled about business, but if he did not feel that to sell. Jeffrey v. Hursh, 12 N. W. 898, able to talk to tell me so. He said he could 49 Mich. 31; Wood v. Goodridge, 52 Am. Dec. talk to me a little then, and we talked a lit- 771. As the mortgage transferred the right tle about the claim. He told me to make to the possession of the goods and fixtures in some collections, to sue if I thought best, to the store, and placed the operation of Hatter's make the customers give their notes, and to business beyond the control of Miller, its ex. turn these in, or to work things to the best ecution was inimical to the very purpose of advantage, and to do anything I could to his agency. Clearly, under such circumstankeep the business going. 'Come up when ces, the authority to mortgage cannot be imyou can and see me, and I will talk to you plied. Affirmed. when I can; but in the meantime,' he says, 'go ahead, and do the business just as though it was your own.' He said that he knew that there was a great many debts to be paid, and

STATE v. DYER. things weren't in very good condition, but to

(Supreme Court of Iowa. Dec. 14, 1898.) go ahead, and do the best I possibly could,

Ou, INSPECTORS-SALARIES. and that whatever I did would be all right until he got well; and he said, 'If I don't get

Under Acts 24th Gen. Assem. c. 52, 53,

authorizing a deputy oil inspector to retain for well, it will be all right anyhow.'” It will be services fees earned by him, up to $50 per observed that the special duty of Miller was month, and 25 per cent. thereafter, not to exto "keep the business going.” To this end he

ceed $100 per month, where one inspector died

in the middle of the month, and his successor was given very general powers. If the execu

filled out the time, two salaries of $100 each tion of the nortgage was included within are not authorized; and this though the fees these, it is a valid instrument. Richmond v. for each half month were sufficient to warrant

them. Greeley, 38 Iowa, 666. The authority is not expressly given, and cannot be implied unless Appeal from district court, Polk county; practically indispensable to the accomplish- Thomas F. Stevenson, Judge. ment of the object of his agency. This is the John Morris died December 15, 1893, and rule with respect to the making of promissory during that month, as deputy inspector of notes. Whiting v. Stage Co., 20 Iowa, 557; oils, bad tested 3,376 barrels of oil, entitling Miller v. House, 67 Iowa, 737, 25 N. W. 899; him to charge as fees the sum of $337.61. Paige v. Stone, 43 Am. Dec. 420; Mechem, The defendant was appointed deputy inspectAg. $ 389 et seq.; 1 Am. & Eng. Enc. Law, or to succeed Morris, and during the remain1022, 1032. And it must be applied with der of the month tested 3,561 barrels of oil, strictness to the giving of chattel mortgages. entitling him to charge fees amounting to The evidence plainly indicates the purpose of $351.60. He reported to the inspector of oils Hatter to have been that the business con- the total work of himself and Morris, and retinue a going concern. This appears from his tained from the moneys received $100 as com

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