ton. Judgment for plaintiffs, and defendants bring error. Reversed.

George B. France, for plaintiffs in error. Harlan & Taylor, for defendants in error.

NORVAL, J. In March, 1893, William H. Holden and Frank C. Webster were the owners of certain real estate in York county, which they traded to John Hampton for lot 10, block 40, in David City. Warranty deeds for the respective tracts were executed and delivered, the grantee mentioned in the deed to the York county land being Matilda Hampton, wife of the said John Hampton. Holden and Webster insist that Hampton, to induce the exchange of properties, falsely represented that he was the absolute owner in fee of said lot 10; that the same was free from all liens and incumbrances; that he had a perfect right to sell and convey the same; that, relying on said representations, he executed the deed conveying to Matilda Hampton the York county property; and that the Hamptons, at the date of the execution and delivery of said deeds, had a good title to undivided one-half of said lot 10; and that the other one-half interest was owned, as the record discloses, by one Sally Milburn. This suit was instituted by Holden and Webster, as they insist, to recover damages for the fraud and deceit, while the defendants contend that the action is upon the covenants of warranty contained in the deed executed by the Hamptons. We confess that the petition is so framed as to justify either interpretation; for while it sets out the representations which induced the exchange, and that plaintiff's relied thereon, plaintiffs also plead the covenants of warranty, and aver that the same have been broken by the defendants. Plaintiffs obtained judgment, and defendants prosecute error.

The evidence wholly failed to make out a case of fraud and deceit. The following is the chain of title of record of lot 10, block 40, in David City: "Patent from the United States to Union Pacific Railroad Company, March 26th, 1875; Union Pacific Railroad Company to Phoebe W. Miles, warranty deed, December 23, 1873; Pha be W. Miles to Mary E. Pheonix, deed dated October 30, 1882; Mary E. Pheonix to Fred E. Wilson, deed, December 26, 1889; Fred E. Wilson to D. E. Coleman, January, 1890; D. E. Coleman and wife to Nora Wilson and Sally Milburn, January, 1890; Fred E. Wilson and Nora, his wife, to Matilda J. Hampton, July 18, 1892." At the time the exchange of properties was made, the deed records of Butler county disclosed a complete and perfect chain of title in fee simple in the defendant Matilda J. Hampton to the undivided one-half of the said lot 10, although the deed from the Wilsons and wife to her purported to convey the entire fee, and that the title to the other onehalf appeared on the records to be vested in Sally Milburn. There is to be found in the

record no evidence to show that Sally Milburn has any interest whatever in the lot, and that the deed from the Wilsons to Matilda J. Hampton did not in fact, as it purported to do on its face, convey the full title to the lot to the grantee named therein. There is some evidence introduced by plaintiffs below, although somewhat of a hearsay character, from which the inference might be drawn that Sally Milburn quitclaimed her interest in the property to said Fred E. Wilson, prior to the conveyance from the Wilsons to Matilda J. Hampton, and that the deed from Sally Milburn never has been recorded, but for some cause has been withheld from the record. It is elementary that fraud is never presumed, but must be established by the party alleging it by clear and satisfactory evidence. The burden, therefore, was upon the plaintiffs below to show by competent evidence that they did not obtain a good and perfect title to the lot in dispute. The proofs do not show any defects in their title. They merely disclose that the record title is incomplete, and Hampton did not represent that the record title was without flaw. The charge of fraud and deceit in the petition is not sustained by sufficient evidence.

If the action be regarded as on the covenants of warranty for a breach thereof, there can be no recovery, for the reason the petition fails to state facts sufficient to constitute a cause of action. There is no allegation in the pleading anywhere that plaintiffs have been evicted or dispossessed of the premises by any one claiming a paramount title. Such an averment was indispensable to maintain an action for a breach of covenants of warrant of title. Mills v. Rice, 3 Neb. 76; Scott v. Twiss, 4 Neb. 133; Real v. Hollister, 20 Neb. 112, 29 N. W. 189; Cheney v. Straube, 35 Neb. 521, 53 N. W. 479. In any view of the case, the judgment cannot stand. It is accordingly reversed.

HOUCK, Constable, v. LINN et al. (Supreme Court of Nebraska. Nov. 17, 1898.) REPLEVIN-DISMISSAL-JOINT PLAINTIFFS.

1. A plaintiff in replevin may not, after obtaining the property under the writ, dismiss the case without defendant's consent.

2. A case cannot be dismissed, at the instance of a party who may be liable to a judgment therein, against the objection of his adversary, although the recovery might be only for nominal damages.

3. Two persons joined as plaintiffs in an action of replevin, and took the property under the writ. They claimed a concurrent right of possession, but by several titles. One recovered judgment. Held. that the other could not thereupon dismiss the case as to himself without the consent of the defendant.

(Syllabus by the Court.)

Error to district court, Douglas county; Hopewell, Judge.

Action by Sylvester Linn and Alexander Barrie against Dorsey B. Houck, constable. Judgment for plaintiff's was reversed as to

Linn, and affirmed as to Barrie. On remand, Linn dismissed the case, and from the judgment of dismissal defendant brings error. Reversed.

John T. Cathers and T. J. Mahoney, for plaintiff in error. Gregory, Day & Day, for defendants in error.

IRVINE, C. Linn and Barrie instituted this action in replevin for the purpose of recovering certain horses. The property was taken under the writ, and delivered to the plaintiffs. They claimed under a chattel. mortgage securing several notes, each claiming to own a part of the notes. In the district court there was a judgment for both plaintiffs. The cause was brought to this court, where the judgment in favor of Barrie was affirmed, and that in favor of Linn was reversed, and the cause remanded generally. Houck v. Linn, 48 Neb. 227, 66 N. W. 1103. After the mandate reached the district court, Linn moved to dismiss the case, and the motion was sustained. Defendant then asked for a trial of the right of possession as between him and Linn, and for an assessment of damages, which were refused. Defendant again brings the case here, assigning as error the dismissal against his objection, and the refusal to assess his damages against Linn.

It has been repeatedly held that the plaintiff in replevin, who has taken the property under the writ, may not then dismiss the case without defendant's consent. Aultman v. Reams, 9 Neb. 487, 4 N. W. 81; Moore v. Herron, 17 Neb. 697, 24 N. W. 425, 451; Ahlman v. Meyer, 19 Neb. 63, 26 N. W. 584; Garber v. Palmer, 47 Neb. 699, 66 N. W. 656; Vose v. Muller, 48 Neb. 602, 67 N. W. 598. The present case is, however, complicated by the fact that the suit was by two plaintiffs, claiming a common, or at least a concurrent, right of possession, by the several titles; and, on the face of the record, when the motion to dismiss was made it stood adjudicated that Linn's co-plaintiff had the right of possession, -that he had rightfully taken the property. On the other hand, the plaintiff in replevin must recover on the strength of his own title, and this court had decided that, under the evidence at the first trial, Linn had not shown in himself a right to recover. The record showed that both plaintiffs had taken the property. It follows logically that, when the cause was remanded, Linn stood in the attitude of a plaintiff with the property, and could not dismiss so as to preclude defendant from recovering, should Linn fail again to prove his own right, for the injury caused by the wrongful use of the writ. The Code of Civil Procedure (section 191a) provides that the judgment in such case shall be in the alternative,-for a return of the property, or its value if a return cannot be had. In addition to this there may be recovered damages for the wrongful detention. Here, it is true, the record shows that Linn's co

plaintiff was entitled to take the property; and, as the two joined in causing the writ to be issued, it may be that the rightful claimant would be estopped by the record from asserting any claim against the defendant, even if, as is asserted, it was in fact Linn who actually received the property under the writ. Nevertheless, this and other interesting questions suggested by the peculiar facts of the case go rather to the measure of damages in case, on a new trial, Linn fails to recover, than to the right of the defendant to have his claim adjudicated. Those questions are on this record speculative purely, and cannot be considered. The bare fact is that a plaintiff in replevin, who, singly or together with his co-plaintiff, obtained the property in controversy, was by the dismissal permitted to go free, without any opportunity on part of defendant to assert his right to the property or to damages. Possibly the defendant is only entitled to nominal damages, should Linn's case again fail; but in that event he must be entitled to nominal damages, at least, and the court cannot dismiss a case merely because substantial damages are not recoverable. Reversed and remanded.

VILLAGE OF ARLINGTON v. BAROTHY. (Supreme Court of Nebraska. Nov. 17, 1898.) APPEAL-REVIEW.

Where there is no bill of exceptions in the record, and the errors assigned only challenge the correctness of the conclusion deduced by the court from the evidence received, and the ruling of the court excluding evidence offered on the trial, the judgment will be affirmed. (Syllabus by the Court.)

Error to district court, Washington county; Blair, Judge.

Action by the village of Arlington against Estelle Barothy. Judgment for defendant, and plaintiff brings error. Affirmed.

W. S. Cook and Frick & Dolezal, for plaintiff in error. Walton & Mummert, for defendant in error.

SULLIVAN, J. This action was brought in the district court of Washington county to restrain the defendant, Estelle Barothy, from encroaching upon one of the public streets of the village of Arlington. The trial resulted in a finding and judgment in favor of the defendant. It is now claimed on behalf of the village that the conclusion and decree of the trial court are not sustained by sufficient evidence, and that there was prejudicial error in the exclusion of certain testimony tendered by the plaintiff in support of the allegations of the petition. These questions cannot be determined without the aid of a bill of exceptions, and no such document is to be found in the record before us; neither is there any allusion to it in the certificate of the clerk. Error does not affirmatively appear, and the judgment is therefore affirmed.

HOFFMAN v. BECKER et al. (Supreme Court of Nebraska. Nov. 17, 1898.) APPEAL-REVIEW.

The entire omission from the bill of exceptions of evidence necessary to sustain an essential controverted averment of appellant's petition necessitates the affirmance of the judg ment of the district court.

(Syllabus by the Court.)

Appeal from district court, Platte county; Sullivan, Judge.

Action by Apollonia Hoffman against Philepene Becker and others. Judgment for defendants, and plaintiff appeals. Affirmed.

C. J. Garlow, for appellant. McAllister & Cornelius, for appellees.

RYAN, C. This action was brought in the district court of Platte county, by Appollonia Hoffman, for a judgment in the sum of $9,000, which plaintiff alleged was the value of her dower interest in certain lots in Columbus. The defendants were the widow and minor children of John P. Becker, who, as his heirs, claimed to be the absolute owners of the above-mentioned lots. The brief of appellant sets out what purports to be a stipulation of facts; and, in their brief, counsel for appellees admit that the stipulation of facts and the statement of the case are correctly given in appellant's brief; but the bill of exceptions fails to show that any statement of facts whatever was offered in evidence, or considered, on the trial of the issues determined by the district court. In this condition of the proofs, the judgment of the district court must be affirmed; for, not to mention any other disputed fact, there was issue joined on the essential averment of plaintiff that her deceased husband, during his lifetime, was the owner of the aforesaid lots, and on this proposition no evidence was offered. Affirmed.

SULLIVAN, J., not sitting.

HOPKINS v. WASHINGTON COUNTY. (Supreme Court of Nebraska. Nov. 17, 1898.) ORDER ON DEBTOR-ACCEPTANCE-FORMS OF AcTION.

1. An order by a creditor, in favor of a third person, on the debtor to pay to the third person a portion of an entire debt, is inoperative in law, if without the acceptance or consent of the debtor.

2. The distinction between law and equity is not abolished in this state. Section 2 of the Code of Civil Procedure, however, provides that there shall be but one form of action, called a "civil action," in which rules of law or doctrines of equity may, under proper pleading and proper states of facts, either or both be enforced.

(Syllabus by the Court.)

fendant, and plaintiff brings error. Affirmed.

Horton & Blackburn, for plaintiff in error. Clark O'Hanlon and W. H. Munger, for defendant in error.

HARRISON, C. J. During the course of erection under a contract (the various stipulations and conditions of which we need not particularly notice) of a court house for Washington county, Richards & Co., the contractors, had purchased of the Paxton & Vierling Iron Works material to be used in the performance of the work, and in the transaction of the furnishing and sale of such material, and evidencing a portion or all of the indebtedness thus created, Richards & Co. executed and delivered to the Paxton & Vierling Iron Works promissory notes, which were duly assigned to the plaintiff herein; and it is alleged in the petition in the action "that, to secure said notes assigned to said plaintiff as aforesaid, said Richards & Co. delivered to him an order, bearing date May 15, 1891, signed by them, and drawn on the county supervisors of said Washington county, for the sum of $1,000 (a copy of said order is hereto attached, marked Exhibit B, and made part hereof); that at the time said order was delivered to said plaintiff said county was largely indebted to said Richards & Co.; that on the 19th day of May, 1891, said plaintiff filed said order with the county clerk of said county; that on the 14th of July, 1891, and also on the 22d of August, 1891, said county supervisors refused to recognize said claim as evidenced by said order, by two certain resolutions, copies of which are hereto attached, and marked Exhibits C and D." It was also of the allegations of the petition "that prior to the 15th of May, 1891, said Richards & Co. had, at request of said Washington county, purchased material, and furnished labor, and built and constructed for said Washington county a court house, at Blair, said county, and that there was on said 15th of May a large amount due and owing from said Washington county for said labor and material furnished, and for the construction of said court house." A demurrer to the petition was overruled, and the defendant answered. In the answer it was alleged that due and written notice as required by law was given plaintiff of the refusal of the county board to recognize his claim. For the plaintiff a reply was filed, in which a statement was made relative to the time of the full accrual of the indebtedness of the county to Richards & Co., on which considerable stress is laid in the argument for the plaintiff; but this allegation was of such nature that,-under the rules of pleading, appearing in a reply, it must be deemed controverted as upon direct denial.

Action by George A. Hopkins against the county of Washington. Judgment for de

waived, and the cause tried to the court; and, following the findings, a judgment was rendered for the county. There is no bill of

exceptions; hence we are without the evidence adduced at the trial.

In error proceedings on behalf of the plaintiff it is urged that the judgment is contrary to the rules of law applicable to, and governable of, the conditions and relative rights of the parties which arose from the transactions in question; also, that the only issuable matter in the controversy was that of the giving notice of the rejection of the order by the board. It is further argued in this connection that when it was determined by the trial judge, as it was in one finding, that the notice was not given, the plaintiff became entitled to a judgment, as it had been settled by the overruling of the demurrer by one of the judges of the district in which the cause was pending that the excuse which plaintiff had pleaded for not sooner taking an appeal from the action of the county board was forceful and sufficient, and this ruling could not be annulled or rendered ineffective by the different decision of the question by another judge of the same district at any subsequent stage of the proceedings. To what we deem a proper disposition of the controversy, the decision on the demurrer or the question of notice is not a necessary element of discussion, and we need not further refer to it.

In relation to what matters were for trial in the district court, it may be said that the record discloses that the plaintiff seems to have thought there were others than he now asserts was the only one; for in a demand for special findings there were several questions of fact incorporated, one of which was "whether at the date of the execution and filing of said order the defendant was indebted to Richards & Co.," and to this the trial court gave a negative answer, on the ground that at the time of the order, and the board's action in respect thereto, there had been no certificate of a supervising architect of the building that any sum was due the contractor and maker of the order. But aside from any other things which are disclosed by the record is one which arises from the order, coupled with some other facts which fully appear. The order was as follows: "Omaha, Neb.. May 15, 1891. To County Commissioners. Washington Co., Blair, Nebraska-Dear Sirs: Please pay to the order of George R. Hopkins the sum of $1,000, and deduct the same from the amount due on the contract. Yours, etc., Richards & Co." There were several other like assignments of, or orders for payments of parts of, any sum which might be due Richards & Co., to different persons; also, one in favor of a bank,—all of which received at the hands of the county board similar treatment to that accorded the one in suit. It also appeared that, in an action by Richards & Co. against the county, judgment had been rendered for the balance due the former, and in a suit by parties who had furnished material used in the erection of the court house, and laborers in the construc

not

tion thereof, for such purpose. The amount of such judgment had been taken, and, by order of the court, distributed. The order herein involved was but for a portion of the amount, if anything, then due Richards & Co. from the county, and, without the consent or acceptance of the latter, was invalid. This is on the ground that the creditor may not split up a single cause of action into many, thus subjecting the debtor to a multiplicity of suits, and to many complications, embarrassments, and responsibilities within the purview of, or contemplated in, the original contract. 8 Am. & Eng. Enc. Law (2d Ed.) pp. 1069, 1070; Insurance Co. v. Bullene, 51 Kan. 764, 33 Pac. 467; Welch V. Mayer (Colo. App.) 36 Pac. 613; Snedden v. Doerffler (Colo. App.) 39 Pac. 68. This is the rule at law; and the reason for it, which we have stated, was, as we have set forth. present and of force in the transactions with which we have to deal herein. We are not unmindful of the rule in equity, that, where a creditor gives to a third person an order on a debtor for a definite part of the debt, it will constitute a valid equitable assignment pro tanto, which will be enforced by a court of equity, or in an equitable action, and that this doctrine is recognized in many jurisdietions in the law courts. 8 Am. & Eng. Enc. Law (2d Ed.) p. 1070, and notes. In this state there is but one form of action, to be called a "civil action." Section 2, Code Civ. Proc. But the distinction between law and equity is not abolished. There is one form of action, in which either relief may be sought and obtained; and, if the facts pleaded and proved demand, the rules of either law or equity, or both, may be enforced. Turner v. Althaus, 6 Neb. 54; Wilcox v. Saunders, 4 Neb. 569; Cropsey v. Wiggen horn, 3 Neb. 108. But the case at bar is an action at law, in all its elements but its pleadings and facts, and calls for the enforcement of the rule at law. What rule might have been enforced had the pleadings. issues, and facts been different, we need not decide. The judgment must be affirmed. Affirmed.

BRONG et al. v. SPENCE. (Supreme Court of Nebraska. Nov. 17, 1898.) APPEAL-REVIEW-CONFLICTING EVIDENCE-RATIFICATION BY PRINCIPAL-LIABILITY OF AGENT-APPEAL.

1. A verdict rendered on substantially conflicting evidence, and approved by the trial court, will not be set aside on the ground that it is not sustained by adequate proof.

2. A principal who accepts the fruits of a contract made by an agent in excess of his authority is liable to the person with whom such contract was made, although misinformed as to some of its provisions.

3. One who assumes, without authority, to contract for another, is not personally liable in an action on such contract, unless he is within its terms.

4. Where two defendants join in a motion

for a new trial, and also file a joint petition in error in this court, the judgment will be affirmed, unless the record discloses error prejudicial to both.

(Syllabus by the Court.)

Error to district court, Seward county; Bates, Judge.

Action by Thomas B. Spence against Harriet Brong and Jacob Brong. Judgment for plaintiff. Defendants bring error. Affirmed.

Edw. C. Biggs and J. J. Thomas, for plaintiffs in error. G. H. Terwilliger, for defendant in error.

SULLIVAN, J. Harriet Brong and Jacob Brong, by this proceeding in error, seek to reverse a judgment of the district court of Seward county rendered against them, and in favor of Thomas B. Spence, for the sum of $63.32. In his petition the plaintiff alleges that, under and pursuant to the terms of a contract between himself and the defendants, he furnished feed for one team, board and lodging for two men, and 22 days' labor to a contractor who was engaged in putting down a well on the farm of Harriet Brong. The defendants answered separately, denying the contract. The Brongs were husband and wife. They lived in Pleasant Dale. Mrs. Brong owned an 80-acre farm, which she leased in 1894 to Thomas B. Spence. The well on the farm failing to furnish an adequate supply of water, Jacob Brong was instructed by his wife to cause it to be repaired. He proceeded to execute his commission, but, after consulting with Spence, was induced to wander outside of his authority, and enter into a written contract with a man named Swain for a new tubular well. This agreement provided that Swain should receive 75 cents per lineal foot for sinking the well, be furnished with a sufficient supply of water to enable him to prosecute the work, and have his men boarded and lodged while the work should be in progress. Mrs. Brong read the contract, and acquiesced in its terms only upon being assured by her husband that Spence had agreed, in consideration of the new well being put down, to furnish board and lodging for the men, feed for the team, and furnish all necessary help. On the trial the defendants contended that such was the arrangement between Brong and the plaintiff. The plaintiff, however, denied it, and, upon substantially conflicting evidence, the jury, under proper instructions, resolved that issue against the defendants.

In the further consideration of the case, therefore, we proceed on the assumption that the board, lodging, horse feed, and labor were furnished at the request of Brong, and under circumstances affording an implied promise to pay for the same. Was Mrs. Brong bound by the agreement between her husband and Spence? She undoubtedly ratified the contract with Swain with a full knowledge of its provisions. This, of course, included a ratification of the engagement in regard to fur

In

nishing water and boarding and lodging the men. To perform the obligations imposed by the Swain contract Spence was employed, with her knowledge and consent. She was, it is true, misinformed as to the arrangement between Spence and her husband, but that was not the plaintiff's fault, and we do not see why it should prevent him from recovering for services rendered and accommodations furnished for Mrs. Brong's benefit and in fulfillment of the contract with Swain. Hughes v. Insurance Co., 40 Neb. 626, 59 N. W. 112, this rule was laid down: "The acceptance by a principal of the fruits of an unauthorized contract made by his agent is a ratification of such agent's conduct, and said ratification relates back to the date of the performance of the act ratified, and the principal is bound by the effects thereof, and the results flowing therefrom, as much so as if he had himself performed the act." And in Bradford v. Peterson, 30 Neb. 96, 46 N. W. 220, it was said: "In a number of cases this court has held that where a husband constructs a house on the land of his wife, of which fact she has full knowledge, the agency of the husband will be presumed; in other words, the wife, by her silence where she should speak, in effect admits that the work is being done for her benefit." The liability of Mrs. Brong upon her husband's contract was conclusively established, and therefore the action of the trial court in giving, and refusing to give, certain instructions in regard to the law of agency, if error, was without prejudice.

The court charged the jury as follows: "If you further find from the evidence that Jacob Brong contracted with the plaintiff to board and lodge two men and to feed their team while engaged in putting down said well, and if you further find from the evidence that Jacob Brong employed the plaintiff to furnish two men and one team to haul water to be used in putting down such well, and if you further find from the evidence that Jacob Brong was acting as the agent of his wife, then you should find for the plaintiff and against both defendants." The giving of this instruction is assigned as error. We think it is not a correct statement of the law. It, in effect, directed the jury to return a verdict against Brong in case they found that he made the contract with Spence, and in so doing acted as the agent of his wife. It is perfectly clear, on principle and authority, that if Brong was the agent of his wife, and avowedly acted in that capacity, without assuming to bind himself, he incurred no personal obligation, and is not liable in an action on the contract. 1 Am. & Eng. Enc. Law (2d Ed.) 1119. And, even if he were not the agent of his wife, the contract would not bind him unless he was within its terms. Cole v. O'Brien, 34 Neb. 68, 51 N. W. 316; Bartlett v. Tucker, 104 Mass. 336; Hall v. Crandall, 29 Cal. 568; Duncan v. Niles, 32 Ill. 532. The instruction was preju