more (Colo. Sup.) 25 Pac. 556; Printz v. People, 42 Mich. 144, 3 N. W. 306; State v. Hath. away, 100 Iowa, 225, 69 N. W. 449; Latham v. Shipley, 86 Iowa, 548, 53 N. W. 342. The cross-examination of Lizzie McMahon indicated that she spoke only of the actual value, and not of the market price.

2. A witness was not permitted to testify whether the house destroyed was in good repair, because merely an opinion. The value of the house was in controversy. The condition of a dwelling house as a whole is not observable, except upon examination, and for this reason does not come within the rule of Kelleher v. City of Keokuk, 60 Iowa, 474, 15 N. W. 280, that testimony of matters within the observation of all are to be treated of as facts rather than opinion. There might well be wide differences of opinion as to what would constitute good repair, and the court rightly held that the house might be described in detail, and from such evidence the jury determine its condition.

3. The evidence was received, over the defendant's objection, showing the actual value of the house at the time of the fire, and, it is said, this does not furnish the true basis of recovery. The fundamental principle in all actions for damages is that just compensation be made to him who has suffered injury from another in his person or property, and, in order to give satisfaction, measured in money, such rules are formulated as are thought best adopted to accomplish this purpose. A distinction has, for this reason, been made between growing crops, shrubs, and trees, whose chief value is because of their connection with the soil and their incidental enhancement of the value of the land, and those improvements which may be replaced at will, and whose value may readily be determined, apart from the ground on which they rest. It is thus put by Mr. Sutherland in his work on Damages (volume 3, p. 368): "If the thing destroyed, although it is a part of the realty, has a value which can be accurately measured and ascertained without reference to the soil on which it stands, or out of which it grows, the recovery may be the value of the thing thus destroyed, and not for the difference in value of the land before and after such destruction." In Drake v. Railway Co., 63 Iowa, 310, 19 N. W. 215, crops were destroyed by overflow caused by an embankment, and the measure was held to be the difference between the market value of the land immediately before and after the injury. This rule was approved in Sullens v. Railway Co., 74 Iowa, 660, 38 N. W. 545, and applied, where growing trees were burned, in Greenfield v. Railway Co., 83 Iowa, 276, 49 N. W. 95, and Brooks v. Railway Co., 73 Iowa, 182, 34 N. W. 805. See Smith v. Railroad Co., 38 Iowa, 518; Striegel v. Moore, 55 Iowa, 88, 7 N. W. 413. In Rowe v. Railway Co.. 102 Iowa, 288, 71 N. W. 410, the court said: "Appellant's contention results in fixing the value of each tree destroyed or damaged

by the fire, and the aggregate of such values would be the measure of plaintiff's recovery. Such a rule may well be held applicable to the destruction by fire of buildings, fences, and other improvements, which may at once be replaced, where the exact cost of restoring the property destroyed is capable of definite ascertainment, and where there is no damage of the realty itself." It is apparent that the growing crops, small trees, and orchards are of little or no use separated from the soil, and that their value must necessarily be determined in connection with the land on which they stand. This is not true of improvements which may be replaced at will. In Graessle v. Carpenter, 70 Iowa, 167, 30 N. W. 392, the defendant, by digging trenches and laying water pipes, injured the plaintiff's fences, walks, house, and shrubs. It was not shown the acts were of such a nature as to permanently injure the real estate, or that it could not be restored to its condition before the fire. The court, through Beck, J., announced the rule to be that which will "give the plaintiff just and full compensation.

In the case before us the familiar and simple rule applicable to such cases would perfectly attain that end. That rule is this: The plaintiff may recover as damage the sum which, expended for the purpose, would put the property in as good condition as it was in before the injury, with the addi tional sums which would compensate the plaintiff for the use and enjoyment of the property, should he be deprived thereof by the injury, and the value of such property, as trees, buildings, and the like, which have been wholly destroyed, and cannot be restored to the condition they were in before the injury." We take it, the trees and shrubs were of a character which might be replaced by others of the same actual value; otherwise the case is not in harmony with those cited. In Freeland v. City of Muscatine, 9 Iowa, 465, the defendant, in changing the grade, dug away the dirt, and caused the plaintiff's house to fall, and it was held: "The cost of rebuilding or repairing was properly taken into consideration, if we understand it as having reference to the quality and condition of the building before the accident, and the instruction cannot be taken in any other sense. It is the cost of rebuilding and repairing, which implies the restoring it to as good a condition as before, and not the putting a new and firm building in the place of an old and decayed one." To prove the market value of the land immediately before and after the fire would be accomplishing, by circumlocution, what might be directly ascertained, for such difference would be the value of the house. True, location may sometimes have a bearing, as where a building is so situated as not to be useful for the purpose of its construction. In such cases this must be taken into consideration in fixing the real value. But it could be as readily done in estimating this separate from as with the

land. Simplicity and directness are particularly favored in modern jurisprudence. True, such property may have no market value. It does, however, have actual value, and this is then the measure of recovery. The ruling was right.

4. The alleged negligence of the defendant was the failure to use any device, such as a spark arrester, to prevent the escape of cinders, coals, and sparks from the engine. No other issue as to negligence was submitted, and the state of repair of the engine was not material. Experts, in testifying, were allowed to use a model of a locomotive engine to illustrate the use of a spark arrester, and to indicate how it could be applied to the roller engine, and for no other purpose. The court was careful to caution the witnesses that, "in so far as the different parts of this model are similarly shown in this model to the steam roller, you may call attention to them, but the other parts of the model you are not to mention." We discover no error in this. The model was used to better bring to the understanding of the jury a mechanical device. It was like the use of a plat or sketch by a witness to indicate relative locations or directions.

5. The appellant asserts that in operating the steam roller it acted solely for the public, and not for any private corporate benefit. It may be observed that the defendant is incorporated under a special charter, and that, by chapter 210, Acts 6th Gen. Assem., it was given the power and made the duty to grade, pave, and otherwise improve its streets, and for this purpose it may levy a special tax on any lot or lots, or the owner thereof, for the purpose of grading, paving, or macadamizing the same, and is authorized to collect it under regulations prescribed by ordinances. That such powers and duties are peculiarly munici pal, and injuries occasioned by the negligence of the corporation in carrying out or performing them may be redressed in actions against the city, is not an open question in this state. Wallace v. Muscatine City, 4 G. Greene, 373; Creal v. City of Keokuk, Id. 47; Cotes v. City of Davenport, 9 Iowa, 227; Ross v. City of Clinton, 46 Iowa, 606. See collection of authorities generally in note to Goddard v. Inhabitants of Harpswell (Me.) 24 Atl. 958. Though the city might have, under its charter, contracted with others to properly roll its streets, when macadamized, at the cost of the abutting lot owners, it chose to do this work itself and retain compensation therefor. Contractors were requir ed, in making bids, to include, for Telford macadam, "five cents per square yard, the price charged by the city of Dubuque for the use of the roller and for rolling the street." The contract with Tibey did this, and that amount was detained from the price for such work. It was when rolling the street he had Improved that the fire was set out. Had Tibey been employed to do this, as he might have been, and through his negligence, like that of the city, fire had escaped and burned the

property of citizens, would any one question the right of recovery? Upon what theory, then, will the municipality escape liability? There are two very satisfactory reasons why it must be held to answer in damages for its negligence: (1) It was engaged in doing, with its own instrumentality, that which it was authorized to contract with another to do at the expense of the abutting lot owners: and (2) the work was voluntarily assumed and carried on for compensation. Mr. Dillon thus states the rule: "The liability of a corporation for its own negligence, or that of its servants, is especially clear, and in fact indisputable, where it has received a consideration for the duties performed, or where, under permissive authority from the legislature, it voluntarily assumes and carries on a work or undertaking from which it receives tolls or derives a profit." 2 Dill. Mun. Corp. § 881. The city was authorized to make the improvement, but was not bound to undertake it with its own instrumentalities. Having done so, it incurred the same liability an individual would have done in performing like work. We have found no authorities precisely in point, but the principle is so just that none are required. It finds analogy in the cases holding municipalities, owning and operating water and gas works, docks, piers, and other property, to the same liability as individuals or private corporations with similar ownership and performing like duties. In operating the steam roller, the city was acting peculiarly for the benefit of the municipality, and in a way to enable it to exact compensation from property owners within its limits. Its liability, similar to that of an individual if engaged in doing the same work, is within the principle approved by the authorities generally. Affirmed.

A savings bank contracted with plaintiff to act as plaintiff's agent at a public sale to take notes of purchasers with approved security, and retain and collect such notes. Held, that since the contract was ultra vires of the bank, and beyond its apparent authority, it was not liable to plaintiff for loss resulting from the negligence of its agent in taking a note on which the indorsement was forged.

Appeal from district court, Iowa county; M. J. Wade, Judge.

Action to recover $161.80, with interest, upon an alleged breach of a contract. Defendant's demurrer to the petition was sustained, and, plaintiff electing to stand on his petition, judgment was rendered against him, from which he appeals. Affirmed.

D. H. Wilson, for appellant. Hedges & Rumple, for appellee.

GIVEN, J. 1. The petition is quite lengthy, but the following will be a sufficient statement of it for the purposes of the question presented on this appeal: Plaintiff alleges that defendant is a corporation organized under the laws of this state as a savings bank, and is doing business as such; that about the 1st day of February, 1896, plaintiff employed the defendant, for a consideration, to attend a public sale to be held by plaintiff, as his agent, to keep an account of the sales, to take promissory notes from purchasers, with approved security, when the purchase exceeded five dollars, and to retain the notes, and collect the same when due; that defendant, through its duly-authorized agents and servants, attended said sales, kept the accounts, and took the notes, and that plaintiff, relying on them, gave the matter no further consideration; that one James Doonen was a purchaser to the amount of $161.80; that defendant's agent prepared a note for him to execute, and gave it to him to be signed by himself and surety; that James Doonen returned the note to defendant's agent, signed by himself, and purporting to have been signed by Thomas Doonen, and defendant's agent accepted and approved the same; that the name Thomas Doonen to said note was a forgery; that no such man lived in the community; and that, as defendant well knew, James Doonen was not financially responsible. Plaintiff alleges that the defendant, through its agents and employés, was careless and negligent in permitting James Doonen to take said note to have the same signed by a surety, and in receiving and approving the note, with the knowledge of James Doonen's financial inability, and without inquiring as to Thomas Doonen; that James Doonen has disposed of all his property, and absconded, wherefore it would be useless to bring suit against him; and that because of defendant's negligence plaintiff is entitled to recover the sum of said note and interest from the defendant. The ground of the demurrer is that the petition shows on its face that the defendant is a savings bank incorporated under the laws of Iowa, "and the defendant, under the laws of Iowa, has no authority to enter into any contract or obligation for the performance of any of the acts stated and set forth in said pleadings."

2. Briefly stated, the basis of plaintiff's demand is that, for a consideration to be paid, the defendant savings bank agreed that in accepting and approving the sale notes it would exercise care to see that the notes were well secured, and that in accepting the Doonen note it failed to exercise care, and acted negligently. The petition shows that defendant was incorporated as a savings bank under the laws of Iowa, and under repeated decisions it could only exercise the power conferred by those laws. The contention being whether the defendant had power to make the agreement set up in the peti

tion, we turn to the laws of Iowa for the answer. The defendant was incorporated under the laws as found in chapter 6a, p. 449, and following, McClain's Code, under the head "Savings Banks." Section 1788 authorizes the incorporation of savings banks "for the purpose of receiving on deposit the savings and funds of others, and preserving and safely keeping the same, and paying interest or dividends thereon." Section 1789 provides that they shall have power to transact business of such institutions." Section 1792, under "Enumeration of Powers," provides that they shall have power: "First. To sue and be sued in any court. Second. To make and use a common seal, and to alter the same at pleasure. Third. To purchase, hold, sell, convey, and release from trust or mortgage, such real and personal estate as hereinafter provided for in this act. Fourth. To appoint such officers, agents, and servants as the business of the corporation shall require; to define their powers, prescribe their duties, and fix their compensation; and to require of them such security as may be thought proper for the fulfillment of their duties. Fifth. To loan and invest the funds of the corporation, to receive deposits of money, or to loan and invest the same as hereinafter provided, and to repay such deposits without interest, or with such interest as the by-laws or the constitution may provide. Sixth. To make by-laws, not inconsistent with the laws of this state, for the organization of the company, and the management of its property, the regulation of its affairs, the condition on which deposits will be received, the time and manner of dividing the profits and of paying interest on deposits, and for carrying on all kinds of business within the objects and purposes of the company." Section 1794 authorizes such banks to "receive on deposit all such sums of money as shall, from time to time, be offered by tradesmen, merchants, laborers, servants, minors and others." Section 1796 authorizes the directors or trustees to invest the funds belonging to the bank, all moneys deposited therein, and all the gains or profits thereof, "only as follows," namely, bonds, etc., of the United States and of this state. stock bonds or warrants of any city, town. county, village, or school district of this state. issued pursuant to any law of the state, and in notes secured by first mortgage or deed of trust upon real estate in this state; also to discount, purchase, sell, and make loans upon commercial paper, notes, bills of exchange, drafts, or any other personal or public security. Section 1797 makes it lawful for such banks to purchase, hold, and convey the real estate in which the business 's carried on, and such as shall have been purchased at foreclosure or execution sales on mortgages or judgments owned by the bank. Other powers conferred relate to the manner of organizing. As we view it, there is not in all these sections an expression that can be

construed as authorizing savings banks to make such an agreement as that set up in the petition. If they may agree to furnish clerks for public sales to keep the account of the sales and to take notes with good security, and to be responsible for the exercise of care on the part of such clerks, they may contract to furnish like services to merchants, manufacturers, common carriers, and others, and to assume like obligations. Such an obligation is somewhat in the nature of a security. In Lucas v. Transfer Co., 70 Iowa, 542, 30 N. W. 772, we held that the defendant, incorporated for "general freight and transfer business," had no power to make a contract whereby it became surety for another. The alleged agreement is not within the powers conferred, and is contrary to the spirit and purpose of the statute authorizing savings banks. This conclusion finds support in the case of Lucas v. Transfer Co., supra.

3. In Lucas v. Transfer Co., supra, it is said: "Where the officers of a corporation make a contract with third parties in regard to matters apparently within their corporate powers, but which, upon the proof of extrinsic facts (of which such parties had no notice), lies beyond their powers, the corporation must be held, unless it may avoid liability by taking timely steps to prevent loss or damage to such third parties; for in such cases the third party is innocent, and the corporation or stockholders less innocent for having selected officers not worthy of the trust reposed in them." The matter of this contract was not, apparently, within the corporate powers of a savings bank. Plaintiff would not have thought of going to a savings bank to furnish him help on his farm under an agreement that the help should exercise care in the performance of the work. The illustrations given in that opinion show that the rule does not apply in this. The demurrer was properly sustained, and the judgment is therefore affirmed.

PRINGLE et al. v. DES MOINES INS. CO. (Supreme Court of Iowa. Dec. 17, 1898.) INSURANCE Change of TITLE-Proof of LossWAIVER APPEAL-RECORD.

1. Insured made a contract to sell the property, which was to stand as a bond for a deed, but upon which no payment was made nor possession delivered. A clause provided that either party might recede from the contract on payment of $500 as liquidated damages. Held, that there was no such change of title or ownership as would avoid the policy.

2. After a fire, insured's attorney wrote the company informing it of the nature of the fire, the loss, and the number of the policy, and the company's secretary replied that the notice would receive prompt attention. Held, that the company waived the provision of Acts 18th Gen. Assem. c. 211, § 3, that proof of loss shall be accompanied by an affidavit stating how the loss occurred.

3. The court cannot hold that a provision of a policy that no stipulation can be changed ex

cept in a certain manner prevents the waiver of the sufficiency of proofs of loss in any other manner, where the record does not show that the policy contains any stipulations as to the form or contents of proofs of loss.

Appeal from district court, Jefferson county; Robert Sloan, Judge.

Action to recover upon a policy of insurance against fire. The cause was tried to the court, and from a judgment in plaintiff's favor the defendant appeals. Affirmed.

McVey & McVey and Leggett & McKemey, for appellant. Raney & Simmons, for appellee.

WATERMAN, J. The policy in suit was issued upon the dwelling house, outbuildings, furniture, and other household articles belonging to plaintiff. There was a loss by fire of property, and the present action is to recover therefor. The policy contained this condition: "If any change take place in the title, ownership, or possession by mortgage, judgment, lien, lease, sale, incumbrance, or any other manner whatever (except by succession or devise, consequent upon the death of the assured), unless the assent of the company be indorsed thereon, then this policy shall immediately terminate." One defense is that this condition was violated by the assured. The facts as to this matter are that the policy was issued February 7, 1895. The fire occurred October 24th of the same year, and on the 28th day of August preceding the fire Pringle and wife entered into a contract with one O. S. Hall, which is as follows: "That the said parties of the first part [the plaintiffs] have this day bargained and sold, and do hereby agree to convey, to the said second party [Hall] the following real estate, to wit. [Here follows a description of the farm of 120 acres, upon which, the policy recites, the insured buildings were located.] The agreed price for the said real estate is the sum of $4,100, which sum is to be paid as follows: $300 on the first day of November, 1895, and the remainder of $3,800 on the first day of March, 1896. And the said first parties do hereby agree and bind themselves to make and execute to the said second party a good and sufficient warranty deed to the said premises, and to furnish a good and sufficient abstract of title to the same, showing a good title to the said land; and to deliver the same to the said second party on full payment being made as above provided. And they agree that this contract shall stand as a bond for a deed for the said premises, and that the same shall be of full force and effect as such in law and equity. And it is further agreed and understood that time is of the essence of this contract in all particulars, and shall be so considered. It is further understood and agreed that the said second party shall have immediate possession of the stubble land on the said farm for the purpose of plowing the same; that he shall have possession of all

of the pasture land except the stock pasture on the first day of November, 1895, and that he shall have possession of the stock pasture as soon as the corn is gathered, not sooner than the said first day of November, 1895; that he is to have possession of the house on the first day of December, 1895, and that he is to have possession of all the other buildings on the farm on the first day of November, 1895, except that the said first parties are to have the use of a crib for their corn for a longer period if they should need it. The said second party is to pay one dollar in addition to the price above named, and the farm bell on the place is to be left there. And it is especially understood and agreed that the said farm is to be kept in as good condition as it now is, unavoidable accidents excepted, and the same is to be delivered to the said second party as the same now is except above. It is further understood and agreed by the parties to this contract that each party shall secure to the other a forfeit of five hundred dollars for the faithful performance of this contract. And the said sum of five hundred dollars shall be considered as liquidated damages for the breach of this contract, by either party in favor of the other party. And as security from said first parties to the second party, it is understood and agreed that this bond shall stand for the securing of the same. And the said second party agrees to furnish good and sufficient security for the performance of this contract on his part." While the first clause of this contract recites a present sale, it is manifest from a consideration of all of its terms that this was not the intent or purpose of the parties. The deed was to be executed in the future, and in the meantime it is expressly provided that the contract "shall stand as a bond for a deed." While immediate possession is given to second party of the stubble land, the present possession of the buildings and remaining land was expressly retained by Pringle. Again, it is provided in the contract that the sum of $500 is fixed as liquidated damages, to be paid by either party upon his failure to perform his part of the agreement. Under the terms of this agreement, if the amount fixed was, as it is termed, liquidated damages, specific performance could not have been compelled by the second party, or so-called vendee. Pom. Spec. Perf. § 50. Neither title nor ownership can be said to have passed under this contract to Hall. It is a mere agreement for a future sale. Being such, it is not a breach of the condition quoted. Kempton v. Insurance Co., 62 Iowa, 83, 17 N. W. 194. Appellant relies upon Davidson v. Insurance Co., 71 Iowa, 532, 32 N. W. 514. That case was decided by a divided court. But, aside from this fact, we may say that it does not conflict with the rule announced in the Kempton Case. In the Davidson Case possession was given to the person who contracted to purchase, and

the fact is allowed much force by the court. It is said, "Nothing remains to be done but for the party taking possession to make the payments." And, speaking of the case of Kempton v. Insurance Co., with other cases, it is said: "But those cases all differ from the case at bar. In those cases something yet remained to be done by the vendor in addition to the execution of the deed." In the case we have here, not only did it remain for Pringle to give possession of the insured premises, but no part of the purchase price had been paid at the time of the fire, and the contract contained a provision by which he might avoid his obligation to convey by paying the stipulated damages: for, in the absence of any extrinsic evidence tending to show a different intent, we feel compelled to accept this language of the contract as meaning literally what it says. The $500 mentioned is denominated liquidated damages, and in this collateral proceeding we think we should so treat it. See, also, on the matter of the sale, Erb v. Fidelity Ins. Co., 99 Iowa, 727, 69 N. W. 261, Erb v. German-American Ins. Co., 98 Iowa, 607, 67 N. W. 583, and Lodge v. Insurance Co., 91 Iowa, 103, 58 N. W. 1089, as indicating the strictness with which such conditions are construed against the company. We might well rest our conclusion upon this branch of the controversy on the Kempton Case alone, supported as it is in principle by the other decisions of this court to which we have called attention. It is well, however, to say that the doctrine announced is sustained by other courts. Grable v. Insurance Co. (Neb.) 49 N. W. 713; Insurance Co. v. Kelly, 32 Md. 121; Hill v. Protection Co., 59 Pa. St. 474; Browning v. Insurance Co., 71 N. Y. 508; Trumbull v. Insurance Co., 12 Ohio, 305; Insurance Co. v. Brown (Md.) 27 Atl. 314; Insurance Co. v. Bethel (Ill. Sup.) 32 N. E. 510. 2. Another defense is that no proofs of loss were made. The policy in suit does not appear in full in the record. Appellant sets forth only such parts as it deems material. On the branch of the case we are considering, a clause of the policy which is pertinent appears in the original abstract (page 10) in these words: "In case of loss, the assured shall, within sixty days thereafter, render a particular account of such loss, under oath, stating when and how the loss originated, the nature of the title and interest of the assured and of others in the property, all incumbrances thereon, and the cash value thereof, the amount of loss or damage on each item separately and correctly, how and by whom and for what purpose the building insured or containing the property insured, and the several parts thereof, were occupied at the time of loss, and shall subscribe to the same." In an amended abstract appellant says: "The abstract in this case does not contain a copy of the policy, but only such portions thereof as are necessary to the decision of the case. The clause in