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so obvious and patent that his employer was under no obligation to inform him of it. The danger from the use of a machine with revolving iron rollers placed within three-fourths of an inch of each other is so apparent that any boy of fifteen years of age would see it. When one, without objection or promise of repair, works for three years with a machine which is dangerous, and which he knew, or by the exercise of ordinary care ought to have known, was dangerous, he waives the defect, and, if injured, cannot ordinarily recover. Muldowney v. Railroad Co., 39 Iowa, 615, and cases cited. Again, the duty of the master to instruct and warn the servant only arises as to dangers which the master knows or has reason to believe the servant is ignorant of. It does not arise as to dangers known to the servant, or that are so open and obvious as that, by the exercise of ordinary care, he would know of them. Yeager v. Railway Co., 93 Iowa, 1, 61 N. W. 215; Newbury v. Manufacturing Co., 100 Iowa, 441, 69 N. W. 743. It is clear that plaintiff cannot recover for any negligence in the use of the brake.
2. As to the alleged defective castor in the trow which plaintiff was using at the time of the accident, we are of opinion that there was not sufficient evidence, either of defect in the trow, or of the defect, if there was one, being the cause of the injury, to take the case to the jury. There is evidence, it is true, that some trow was out of repair a year before the accident, but no proof that this was the trow which plaintiff was using at the time he was injured. Again, the evidence shows that the trow stopped because of some obstruction upon the floor. Plaintiff's case in these particulars is based almost wholly upon surmise and speculation. In this respect it is quite like Sorenson v. Pulp Co., 56 Wis. 338, 14 N. W. 446. Moreover, if the trow which caused the accident was defective, and had been so for more than a year, plaintiff knew of it; or, if he did not know of it, it was due to his own negligence and want of observation.
3. The court refused to allow plaintiff to state whether or not defendant ever told him how to operate the brake, and warned him of the exposed gearings. This ruling was correct. Plaintiff was not injured by the gearing, and the evidence shows that plaintiff, after three years of experience, knew exactly how to operate the machine. Again, if there was error, it was without prejudice, for the reasons stated in the first division of this opinion.
Other rulings on the admission and rejection of evidence are complained of. As a rule, they were correct. Where incorrect, they were clearly without prejudice. From our point of view, the injury received by plaintiff was clearly an accident, for which no one is responsible. In its facts it is quite like the following: Tinkham v. Sawyer (Mass.) 27 N. E. 6; Buckley v. Manufacturing Co. (N. Y. App.) 21 N. E. 717; Young v. Mattress Co., 79 łowa, 415, 44 N. W. 693; McKee v. Railroad Co., 83 Iowa, 616, 50 N. W. 209. The ruling
of the court directing a verdict for defendant was clearly correct, and the judgment is af firmed.
WEAVER v. SHEEAN et al. (Supreme Court of Iowa. Dec. 17, 1898.) EXECUTION-SALE-REVERSAL ON APPEAL
On a decree obtained against husband and wife, certain land and tax certificates belonging to the wife were sold under executions. The decree was reversed on appeal. Held, that the wife could not recover the value of the cer tificates sold from a creditor whose judgment was satisfied by sale of the land.
Appeal from district court, Jones county; W. P. Wolf, Judge.
A decree was entered subjecting certain real estate and 79 tax certificates held by F. D. Weaver and Nancy L. Weaver to the satisfaction of four judgments against D. Weaver. Upon appeal this decree was reversed. Jamison v. Weaver (Iowa) 53 N. W. 1076. No supersedeas bond was filed, and executions issued on these judgments, and the land and the tax certificates were levied on and sold. Afterwards the plaintiff redeemed the land sold by paying to the clerk of court the sum of $1,151.70. F. D. Weaver has assigned his interest in the certificates to the plaintiff. She seeks to recover in this action the amount of money paid to redeem the real estate, and the value of these certificates. The answer sets up that no certificates were sold under the execution issued by virtue of plaintiff's judgment against D. Weaver, and that the redemption was either made in behalf of D. Weaver, or else amounted to a voluntary payment. Trial to court, and judgment for the defendants. The plaintiff appeals. Affirmed.
Hubbard, Dawley & Wheeler and Remley & Ercanbrack, for appellant. F. O. Ellison, D. McCarn, and J. S. Stacy, for appellees.
PER CURIAM. In so far as the amount paid by the plaintiff to redeem the land from sheriff's sale is in controversy, the case is ruled by Weaver v. Stacy, 93 Iowa, 683, 62 N. W. 22. The petition alleges the 79 tax certificates were all sold under the four executions issued on the judgment against D. Weaver, and that for costs in the equity case; and the evidence shows that the judgment of these defendants against him was entirely satisfied from the sale of land, and that no tax certificates were sold thereunder. The conclusion, then, under such allegations, is inevitable, that the certificates must have been sold under the other executions. It was immaterial, then, under the issues of this case, how many or for what prices they were sold under the other executions; and the plaintiff was not prejudiced by the rulings similar to those considered in Weaver v. Stacy (Iowa) 75 N. W. 640. Affirmed.
McCOY v. IOWA STATE INS. CO.
1. A waiver of a condition of an insurance policy against additional exposures, without consent, must, in an action on the policy, be pleaded.
2. Insured transferred a policy on merchandise to his own new building, standing detached. The policy was voidable for the erection of buildings which were additional exposures, unless the insurer was notified and consented. Insured erected an oil house six feet from his building, and alleged that he called the soliciting agent's attention to a platform, and stated he would build such oil house on it. Held that, as the case was tried on the erroneous theory of a waiver of the additional risk which had not been pleaded, it was improper to submit such point, as relating to the description of the property.
3. In an action on an insurance policy which had been transferred to new premises, to which new exposures were added after issuance of the policy, it is immaterial that they substantially conform to the environs of the original risk.
4. An insurance policy conditioned to be void if the insured's "interest" was less than absolute, and that fact was not so stated in the policy, is not violated by an omission to so state, where insured has the entire beneficial interest except the naked legal title.
5. It was error to refuse to submit special in- ! terrogatories which called for essential ultimate facts.
Appeal from district court, Hardin county; S. M. Weaver, Judge.
Action at law upon a policy of insurance covering a certain building and fixtures in the town of Robertson, and a stock of goods kept for sale therein. Defendant pleaded a breach of condition of the policy against the erection of buildings contiguous or near to the property insured; that the plaintiff was not the owner of the building, and that such fact was not disclosed to the company, and that the insured's interest was not stated in the policy; that the insured placed a mortgage upon the stock of goods covered by the policy without the knowledge or consent of the company; and that the action was prematurely commenced. The case was tried to a jury on these issues, resulting in a verdict and judgment for plaintiff, and defendant appeals. Reversed.
H. Scott Howell & Son, for appellant. J. H. Scales, for appellee.
DEEMER, C. J. On the 11th day of August. 1892, the defendant issued its policy of insurance against loss by fire upon a stock of general merchandise situated in a one and a half story building in the town of Robertson. Thereafter plaintiff erected a one-story frame building upon lot 1, block 3, in said town, the legal title to which was in the name of Mrs. M. M. McCoy, his wife. On July of the year 1893, the insured moved his stock of goods into the building erected by him, and on the 31st day of July the policy of insurance was transferred so as to cover the stock 77 N.W.-34
in its new location. At the same time $200 of insurance was added to cover the new building. This added insurance was written upon the old policy. On the face of the policy was written these words: "Loss, if any, on the building, payable to Mrs. M. M. McCoy, as her interest may appear." The property covered by the policy was totally destroyed by fire on November 10, 1896. Ou March 11, 1897, plaintiff commenced this suit. The defenses interposed have already been stated, and need not be repeated here. That what follows may be properly understood, it is perhaps well to say that plaintiff did not plead waiver of any of the conditions of the policy, nor did he plead an estoppel. The main issues were tendered by the denial which the law interposed to the affirmative defenses pleaded in answer. The building was described in the policy as follows: "The one-story frame building occupied by the assured as a general store, situated upon a certain lot [describing it]." One of the conditions of the policy was in the following words: "If any alteration shall be made in any house or building * after insurance has been made on property therein in this company, * or if any building or buildings be erected contiguous or near to the property insured, then it shall be
the duty of the assured to forthwith notify the secretary in writing of such alteration and changes and additional buildings, and, if he fails to do so, this policy shall be void." At the time the policy was issued there was a platform at the rear end of the building which was made the floor of an oil house that was built after the policy was transferred. This oil house was within six feet of the main building, and appellant contends that this is a violation of the condition just quoted, and avoided the policy. On the other hand, appellee insists that he fully explained to appellant's soliciting agent, at the time the transfer of the policy was made, that he intended to build an oil house over the platform, which platform he had then commenced to build, and that for this reason the policy was not avoided.
The trial court instructed the jury as follows: "I next call your attention to the defense based on the alleged fact that, after the date of the change in the policy, plaintiff erected another building near the insured building without notice to, or consent by, the defendant. Under the terms of the policy, if, after the date thereof, any building was erected near or contiguous to the building insured, and plaintiff did not notify the defendant's secretary thereof in writing, the policy was made void, and, if you so find, your verdict will be for the defendant. If, however, you find from the evidence that plaintiff undertook to erect a new store and warehouse in close proximity, substantially after the plan of the building from which he removed, and in which the goods were first
insured, and that the main part was first finished and the goods placed therein, and that the annex or warehouse was in the course of construction, for the purpose of being used jointly or in connection with said store building, and that the same was disclosed to the plaintiff's agent, and understood by him at the time he made the application for the change in the policy, then the completion of such annex or warehouse, and its use in connection with the store building, would not be such a violation of the provisions of the policy as to render it void, nor would the plaintiff be barred of his right of action thereby, should you otherwise find him entitled to recover."
To this exception was taken, and this constitutes the basis for the first assignment of error. The latter part of the instruction, while not stating in so many words that knowledge of the appellant's agent of the intended construction of the oil house at the time of the transfer of the policy would constitute a waiver of the conditions therein, is evidently based upon such proposition of law. See Eiseman v. Insurance Co., 74 Iowa, 11, 36 N. W. 780; Williams v. Insurance Co., 50 Iowa, 561, and numerous cases cited in 1 McClain's Dig. p. 917 et seq., and 3 McClain's Dig. p. 595 et seq. Now, it seems to be well settled that, to rely upon a waiver or estoppel, it must be pleaded, and, if not so pleaded, it cannot be relied upon. See the Eiseman Case, supra; Zinck v. Insurance Co., 60 Iowa, 266, 14 N. W. 792; Heusinkveld v. Insurance Co. (Iowa) 64 N. W. 594. The Eiseman Case is precisely in point, and clearly holds that it is error to submit the question of waiver of a condition similar to the one under consideration, when there is no pleading tendering such an issue.
The italicized portions of the charge are also erroneous, for the reason that the form and construction of the building from which the stock was removed is entirely immaterial to any issue in the case. There is also a verbal error in the charge, which will be noticed in the reading, that we do not regard as sufficient to justify a reversal. As the case does not properly present the question of waiver in virtue of the knowledge of defendant's agent of plaintiff's intention to build the warehouse, we have no occasion to consider it. Appellee insists that the point presented relates to the description of the property, and that the doctrine of waiver has no application. We do not think this is true. But, if it were, the case was not tried upon this theory, and, as the instruction is based wholly upon the theory of waiver or estoppel, it was erroneous, because no such issue was tendered. Had nothing been said to appellant's agent regarding the erection of the warehouse, there can be no doubt that the erection of the building, or the alteration of the old, if you please, would have avoided the policy.
2. Another condition of the policy was in these words: "If the interest of the assured be an interest not absolute, it must be so stated in the policy; otherwise the same shall be void." The legal title to the lot, and presumptively to the building, was, as we have seen, in Mrs. M. M. McCoy, wife of appellee. Evidence was offered, however, which tended to show that plaintiff was the beneficial owner, and that his wife had no interest therein. There was also evidence to the effect that appellant's agent had notice of the condition of the title. The court instructed, in
effect, that if appellant's agent had notice
of the condition of the title at the time the policy was transferred, then knowledge of the agent would be notice to the company, and it could not rely upon the second defense pleaded. This instruction was also based upon the doctrine of waiver, and, for the reasons stated in the first division of this opinion, was erroneous. It will be noticed that the condition last recited refers to the interest of the assured, not to his title. Hence if it be true, as claimed, that he was the beneficial owner at the time the policy was issued, the mere fact that the naked legal title was in another would not defeat recovery. Bonham v. Insurance Co., 25 Iowa, 328; Hough v. Insurance Co., 29 Conn. 10: Insurance Co. v. Erb, 112 Pa. St. 149, 4 Atl. 8; Wainer v. Insurance Co., 153 Mass. 335, 26 N. E. 877. The case should have been presented to the jury on this theory, and not upon the assumption that they might find a waiver.
3. There is no evidence to support appellant's third defense, and, as the fourth is not argued, we will not consider it.
4. Appellant submitted certain interrogatories to the court that it wished the jury to answer, which were refused. Some of them should have been submitted. We need not set them out, for it appears that they called for ultimate facts which were essential to a ¦ recovery, and appellant had the right to have them submitted. For the errors pointed out, the judgment is reversed.
BONNIWELL v. MADISON.
1. An entry by the grantor is necessary, in order to devest the title of the grantee for the breach of a condition subsequent.
2. A grantee's breach of a condition subsequent contained in the deed of land, to maintain a fence, in that some of the fence was burned and not replaced, is waived by the successor to the grantor's interest, where he afterwards lays down a part of the fence for the purpose of hauling over it, so that his immediate grantee can rely only on the breaches occurring after he became owner.
3. A deed required the grantee to erect and maintain a fence on one side of the land conveyed, and provided that failure so to do
should cause the land to revert to the grantor. A strip of land adjoining the required fence was conveyed by mesne conveyances to plaintiff under a like condition; and the remainder of the land was conveyed to defendant in 1895 through mesne conveyances providing that, if plaintiff's grantor or his assigns should fail to comply with the conditions of his deed, then the strip of land should become a part of the property conveyed thereby. A fence was duly erected and maintained until 1893, when it was burned by a fire; but plaintiff, who was a nonresident, had no actual notice of the fire until 1896, when he at once ordered it to be repaired; but defendant entered on the land, claiming forfeiture for breach of the condition. Held not to show a willful violation of the condition by plaintiff, so as to authorize a forfeiture.
4. An executed conveyence will not be set aside for failure to perform a condition subsequent, where there has been a partial performance, accepted as such, and the parties cannot be placed in statu quo.
5. While it is a general rule that no demand for performance of a condition subsequent is necessary, yet, where there is an evident waiver of performance by the immediate grantor of the party seeking to enforce the forfeiture, a demand is necessary, before the right of reentry exists.
Appeal from district court, Buchanan county; A. S. Blair, Judge.
Suit in equity to quiet plaintiff's title to a strip of ground two rods wide off of a certain 40 acres of land in Buchanan county, Iowa. Defendant denies plaintiff's ownership, and claims that he is entitled to the possession thereof by reason of a forfeiture growing out of a condition subsequent in the deed conveying the same to plaintiff's grantors. Plaintiff denies the forfeiture. On the issues thus joined the case was tried to the court, resulting in a decree and judgment for plaintiff, and defendant appeals. Affirmed.
Ransier & Everett and E. B. Abbott, for appellant. James E. Jewel, Lake & Harmon, and H. W. Holman, for appellee.
DEEMER, C. J. On the face of the records, plaintiff is the owner of the strip of land in dispute, through certain mesne conveyances from one Henry R. Cobb. The deed to Cobb contained this provision: "Grantee is to put in a box culvert under the road at the north end; also, one near the center of this grant, as needed. Grantee, his heirs and assigns, agree to erect and maintain a lawful fence on the entire west side of this grant, and failure to erect and maintain such a fence shall cause the land herein conveyed to revert to the grantor. The grantee, his heirs and assigns, shall not dig a ditch nor cut the sod on the west side of this grant, and said fence shall be built by June 1, 1882." The deed from plaintiff's immediate grantor contained substantially the same condition. Defendant is the owner of the remaining 40 through certain mesne conveyances from Cobb. In each of the conveyances constituting his chain of title is found this provision: "If Horatio Bryant [one of the plaintiff's grantors], grantee of the two-rod strip named above [which was excepted in the deeds],
or his heirs or assigns, shall fail to comply with the covenants of his deed, then the said strip of land shall become a part of the property conveyed by this deed." Defendant became the owner of the remainder of the 40 on the 8th day of October, 1895. Previous to that time it had been owned by A. H. Farwell, from June 13, 1890, to December 4, 1891, and by Fred M. Abbott from December 24, 1891, to the time of the making of defendant's deed. Defendant claims that about the year 1892 plaintiff knowingly permitted the farm to become out of repair, and failed and neglected to maintain a lawful fence as agreed, and that this state of affairs continued until the spring of 1896, and that thereupon he entered upon and took possession of the strip of land as owner; and he asks that his title be quieted.
We may concede, for the purposes of the case, that the provisions in plaintiff's deed respecting the erection and maintenance of the fence are conditions subsequent, as claimed, and that plaintiff has not at all times kept up and maintained a lawful fence, as agreed. Yet it is well settled that a grantee obtains title under such a conveyance, which remains in him until it is devested by the entry of the grantor. Now, without determining defendant's right to insist upon a forfeiture,-a proposition which, to say the least, is doubtful (see Jones, Real Prop. §§ 696, 723, 728, and cases cited),—and conceding that he may do so if the facts warrant, we now turn to the evidence. It appears that the plaintiff is, and was at the time the alleged forfeiture occurred, a nonresident of the state. The fence was built by plaintiff's grantors, as agreed; and, while it may not have been a lawful one, it was accepted as such by defendant's grantors, and defendant has no right to complain of any act which was treated as sufficient by them. It was kept up and maintained until the fall of 1893, when a fire set out by a passing engine running over a tract of land adjoining this strip burned off some of the posts. Other posts were burned in the year 1894. Plaintiff's tenant neglected to inform him of the condition of the fence, and he had no actual notice thereof until some time in the spring of 1896. As soon as he became aware of the condition of the fence, he ordered his then tenant to repair the same; and the tenant was so engaged when defendant entered upon the land, claiming forfeiture for breach of condition. A controversy then arose over the right of possession, and defendant brought action of forcible entry and detainer. Thereupon plaintiff commenced this suit. It further appears that Abbott (who was defendant's grantor), by his tenant, laid down a part of the fence, which was built with wire, that he might haul over it. As to Abbott, this was a waiver of the forfeiture, and defendant -cannot rely upon plaintiff's failure to erect the fence during the time that Abbott owned
what may be termed the reversion. He can only rely upon what occurred after he became the owner. This was in October, 1895. The defendant did not take possession until March of the year 1896. When he took possession the fence was down in two or more places. Shortly thereafter, and as soon as it became known that defendant was dissatisfied with the condition of the fence, plaintiff's tenant began to repair it, but was stopped in his work by the defendant.
Now, it is well settled that forfeitures are not favored in law, and that a court of equity will not declare a forfeiture, nor lend its aid in any way towards its enforcement. City of Marshalltown v. Forney, 61 Iowa, 578, 16 N. W. 740. It is also a well-established rule that, when maintenance or use is a part of the condition, there must be such neglect to maintain as to indicate an intention not to comply, to constitute a breach of condition. Osgood v. Abbott, 58 Me. 73; Mills v. Evansville Seminary (Wis.) 15 N. W. 133; Rowe v. City of Minneapolis, 49 Minn. 148, 51 N. W. 907; Hurto v. Grant, 57 N. W. 899, 90 Iowa, 414. In other words, it must be shown that the spirit and purpose of the condition have been willfully disregarded by the grantee, to establish such breach as will authorize a reentry by the grantor. Jones, Real Prop. § 680, and cases cited. Again, it is held in Gardner v. Lightfoot, 71 Iowa, 577, 32 N. W. 510, that an executed conveyance will not be set aside for failure to perform a condition subsequent, where there has been a partial performance, accepted as such, and the parties cannot be placed in statu quo. Applying any of these rules to the fact above cited, and it is clear that there has been no such breach of condition as authorized the defendant to enter and claim for forfeiture. Moreover, while it is a general rule that no demand for performance is necessary, yet where, as in this case, there is an evident waiver of performance by defendant's immediate grantor, it seems to us that demand is necessary, before the right of re-entry exists. See Merrifield v. Cobleigh, 4 Cush. 178; Bradstreet v. Clark, 21 Pick. 389; Donnelly v. Eastes (Wis.) 69 N. W. 157; Cory v. Cory, 86 Ind. 567; Royal v. Aultman & Taylor Co., 116 Ind. 424, 19 N. E. 202; Hurto v. Grant, supra.
Appellant's counsel contend that, as plaintiff failed to plead waiver, he cannot rely upon it. This would, no doubt, be true, if he were relying upon a waiver by the defendant himself. Proof of waiver by defendant's grantor was introduced without objection, and the case was tried upon the theory that such pleading was unnecessary to tender the issue. We need not determine, therefore, whether plaintiff was bound to plead it, for the evidence was, properly admitted on the question of necessity for a demand. The decree of the district court is right, and it is affirmed.
1. Acts 25th Gen. Assem. c. 7, authorizing ordinances for street improvements, and repealing Acts 23d Gen. Assem. c. 14, containing similar provisions, does not make it incumbent on a city which had enacted an ordinance for such purposes, under chapter 14, to re-enact the ordinance after the passage of chapter 7, where the ordinance is not repugnant thereto. 2. City bonds are not invalidated by a misrecital therein respecting the particular act of assembly under which the ordinance authoriz ing the issuance of the bonds was passed.
3. A failure of a city to comply with a charter provision that all ordinances shall be recorded does not render the ordinances void, the provision being merely directory.
4. A city charter requiring ordinances to be recorded in a book kept for that purpose is complied with by a publication of the ordinances in book form.
5. Ordinances published in book form will be presumed to have been signed by the mayor in the absence of evidence to the contrary, where the city charter provides that such book shall be received in evidence without further proof.
6. The statute making it incumbent on a city ing it does not preclude the city from ordering the paving and making a contract therefor before it has established the grade, where the contract is made with reference to a proposed grade, which is established before any work is done.
7. Though a city cannot assess an abutting lot owner for money expended merely to grade a street, it can include in a paving assessment such cost of excavating as would be reasonably necessary to prepare the surface for paving.
8. An assessment for paving a street is not invalid in toto because the cost of grading and interest is included therein.
9. A contract by a city with a paving contractor requiring the contractor to replace defective work at any time within two years, and providing that, if he fails to do so, the city may replace it and recover the expense of him and his bondsmen, does not provide for an expenditure for repairs of streets, within Code 1873, § 465, requiring the city to pay for such expenses out of the general funds.
10. Plaintiffs leased to various tenants land abutting a street in a city. There were several lumber yards, a stone quarry, an house, a pasture, a nursery, and six houses, with garden spots on the land, and forty acres were used for farming. Held, that the land was not occupied for agricultural purposes, within Acts 23d Gen. Assem. c. 1, § 3. exempting such lands from taxation for city purposes. 11. A special assessment for street paving is not a "tax for city purposes," within Acts 23d Gen. Assem. c. 1, § 3. exempting lands in a city used for agricultural purposes from such tax. 12. The front-foot rule applied to the assessment of land abutting a street for paving the street will be sustained, though the assessment exceeds the benefits conferred.
13. After a city's indebtedness has reached the limit fixed by Const. art. 11. § 3. it cannot make a contract binding it unconditionally to pay for paving a street, though it contemplates a reimbursement for such payments from the