mortgages was decreed, the plaintiff to have priority.

Many interesting questions are presented by the record, and ably argued in the briefs; but the conclusion reached on one branch of the case renders unnecessary the consideration of other phases. It is now the well-settled law of this state that, where one makes a promise to another for the benefit of a third person, the third person may enforce it, although not a party to the consideration. Morrill v. Skinner (Neb.) 77 N. W. 375, and cases there cited. This rule has several times been applied to cases where one accepts a conveyance of land, and, as part of the consideration, agrees to pay an existing incumbrance thereon. The mortgagee may enforce the promise. Rockwell v. Bank, 31 Neb. 128, 47 N. W. 641; Cooper v. Foss, 15 Neb. 515, 19 N. W. 506; Reynolds v. Dietz, 39 Neb. 180, 58 N. W. 89; Meehan v. Bank, 44 Neb. 213, 62 N. W. 490. Even where there has been no agreement to assume and pay the debt, a purchase wherein an apparent lien has been recognized as valid, and allowed for in fixing the price, has been held to estop the purchaser from denying its validity. Koch v. Losch, 31 Neb. 625, 48 N. W. 471.

It follows that, if the contract whereby the land was reconveyed was not open to rescission for fraud, it constituted a binding obligation upon the plaintiff to discharge the Weber mortgage; and it is immaterial whether, before that agreement, that mortgage was senior or junior to the plaintiff's. The finding that there was no consideration for the agreement is manifestly wrong. Plaintiff received the land and Hans' notes for $250 as a consideration for the assumption of the Weber mortgage. From the cases already cited, it follows that it was immaterial that the holder of that mortgage was not a party to the consideration, or that he did not know of the promise at the time it was made. We are thus relegated to an inquiry as to the fraud. Plaintiff knew long before this transaction that her mortgage had not been recorded; so that she was not induced to make the contract by any deception which had before been practiced upon her with regard to that fact. The only fraud charged in the petition is-First, that plaintiff relied on the validity of the Weber mortgage; and, secondly, that Hans threatened that, unless she made the settlement, he would transfer the land, or lease it for five years. The first charge is flatly contradicted by the plaintiff's own reply, where she says that she relied on Hans' statement that he had made the Weber mortgage only to cloud her title and force a settlement. These averments offset one another, but whichever may indicate plaintiff's position it is insufficient. If she relied on the validity of the Weber mortgage as charged in the petition, she relied on the truth; for it is shown that that mortgage was given for a bona fide debt, and

was undoubtedly good as between the par ties. It may have been in equity junior to plaintiff's, but there is no charge of any misrepresentation affecting the priorities. If, on the other hand, plaintiff relied on Hans' statement that the mortgage was invalid, as alleged in the reply, that would be a reason for not assuming it. If she were willing to pay it, believing it to have been made solely to defraud her, she ought to be held to her bargain when the contrary appeared. The second charge shows no fraud. It was neither a false statement nor a suppression of the truth. It merely expressed a purpose to do what Hans had a right to do. He owned the land, and might convey it or lease it. If he should do either, it could not affect plaintiff, if she then took the proper steps for her own protection. Such a threat does not constitute duress. Finally, it may be said that the proof wholly failed to sustain such allegations as were made. The most that the evidence tended to show was that Hans told her that, if she did not accept his proposition, he "would beat her out of it,"-whatever that may mean. It is quite evident that the plaintiff, with full knowledge of all material facts, and in the absence of anything approaching fraud or duress, for a sufficient consideration took back the land, and agreed to pay the Weber mortgage; that the intention was thus to close matters with Hans, and to merge the plaintiff's mortgage in the legal title, leaving the Weber mortgage as a valid, recognized, subsisting lien. Neither on the face of the record nor by evidence did she show a right to the relief demanded.

It is argued that we are foreclosed by the condition of the record here from examining the questions just decided. This is upon the theory that the brewing company alone appeals, and that the case for rescission affects only the plaintiff and Hans Goos. The claim that the brewing company is the only appellant is founded on the fact that it alone gave a supersedeas bond. But a supersedeas is not necessary to an appeal. An appeal is taken by lodging a transcript in this court within the statutory period. When one party does so, the other may avail himself of the same transcript for the purpose of an appeal on his own part, by simply filing in due season his briefs assailing the decree. McDonald v. Buckstaff, 55 Neb. —, 76 N. W. 476. Here all the defendants join in a brief, relying on the same grounds, and we have no other means of ascertaining who appeals. Furthermore, by virtue of the contract which it was sought to rescind, the brewing company, as holder of the mortgage, obtained a vested legal right, which it has a right to defend on its own behalf. The decree of the district court is reversed, and the cause remanded, with directions to dismiss plaintiff's case, and to award foreclosure of the Weber mortgage, as prayed in the cross petition of the defendant brewing company. Reversed and remanded.

SMITH v. SPRAGUE.

(Supreme Court of Michigan. Jan. 3, 1899.)

ESTOPPEL-WHAT CONSTITUTES.

The lessee under a parol lease for one year, with privilege of harvesting his wheat the next, moved away when the lease expired, and later, having conveyed the wheat for a past-due debt, returned, and cut and stacked it, unmolested by the landlord, who erroneously supposed he had only a lien on the wheat for his rent, and afterwards attached it. Being advised that the title was in him, the landlord dismissed the attachment, and converted the wheat to his own use. Held, that his standing by while the lessee cut the wheat, and then attaching it, did not estop him to claim it, no deception being practiced, and both being ignorant of their rights, and the purchaser, who knew all the facts, not being a bona fide purchaser.

Error to circuit court, Oakland county; George W. Smith, Judge.

Action by William T. Smith against Caleb J. Sprague. There was a judgment for defendant, and plaintiff brings error. Affirmed.

C. C. Yerkes, for appellant. A. & S. H. Perry, for appellee.

LONG, J. This is a suit in trover for the conversion of a quantity of wheat. Plaintiff's contention is that in the winter of 1894-95 defendant, Sprague, orally leased his farm for one year to one Orrin Cook, for money rent. The lease commenced with Cook's occupancy, about March 1, 1895. At that time there was growing on the farm a field of wheat of about 18 acres, and in the lease it was agreed that Cook should have the privilege of sowing an equal acreage that year, and of harvesting it the next. At the expiration of the first year, the parties settled satisfactorily; and it was then verbally agreed that Cook should have the place for another year at substantially the same terms as the first year. The arrangement for the second year was made in February, 1896, and Cook occupied the farm up to about March 1, 1897, when he moved away. On July 15, 1897, he went back to the farm, and cut and stacked the wheat now in question, and which was produced from the wheat he had sown in the fall of 1896. On September 3, 1897, he executed a bill of sale of the wheat to the plaintiff, the consideration of the sale being $225, which Cook owed plaintiff for work done on the farm. September 21, 1897, defendant went before a justice, and swore out a writ of attachment against Cook, and directed a constable to levy it on the stacks of wheat. Before this attachment suit became returnable, defendant caused the same to be discontinued, and then threshed the wheat, sold it, and kept the proceeds; and on the trial it was conceded that defendant converted it to his own use. The court instructed the jury to find for the defendant.

This lease was not in writing, and, under the holding of this court in Carney v. Mosher, 77 N.W.-44

97 Mich. 554, 56 N. W. 935, it expired one year from the date it was made; that is, one year from February, 1896. In March, 1897, Mr. Cook moved off the farm, and presumably surrendered it to the defendant. He then sold the wheat to plaintiff, and, under an arrangement with plaintiff, went to the farm in July following, cut the wheat, and stacked it. Under the rule in Carney v. Mosher, supra, Mr. Cook, the lessee, would have had no right to the wheat after the surrender of the premises, and could not have maintained an action therefor. The plaintiff had no greater right.

But the plaintiff maintains that the defendant is now estopped from setting up title to the wheat, because he stood by and saw Mr. Cook cut and stack it, and thereafter commenced proceedings by attachment against Cook, levying upon the wheat as his (Cook's) property. It is apparent that both defendant and Cook were mistaken as to their legal rights. Cook undoubtedly supposed when he left the farm that he would have the right to return and cut and harvest the crop, as it was agreed he might. He owed defendant for a year's rent, and defendant claimed a lien on the wheat for the rent, and most likely understood that that was the extent of his right in the crop. Under the rule in Carney v. Mosher, the defendant was the legal owner of the crop. When Cook undertook to cut it, defendant claimed that he must be paid his rent out of it. He was then trying to save his rights as he then understood them, and, in making the levy of the attachment, he was undertaking to enforce that right. Subsequently, he was advised as to his legal rights, advised that he had the title, and then sought to enforce those rights by retention of the crop. Defendant apparently acted in good faith, and without knowledge of his legal rights, when making the levy of attachment. We think it is not a case for the application of the doctrine of equitable estoppel. To constitute an estoppel of this character, such as will prevent a party from asserting his legal rights to property, there must be some degree of turpitude in the conduct of the party to the estoppel, which has led others to their injury. Conduct or declarations founded upon ignorance of one's rights have no such ingredients, and seldom work any such result. Henshaw v. Bissel, 18 Wall. 255. No deception was practiced upon Cook. He knew the facts as fully as the defendant did. The plaintiff is in no better position than Cook would be had he brought the action. The property was on the defendant's farm at the time plaintiff took his bill of sale, and he knew all the facts which defendant knew. He also took the wheat on a past-due indebtedness from Cook to him, and was not therefore a bona fide purchaser. Upon the whole record, the court was not in error in directing the verdict for defendant. The judgment must be aflirmed. The other justices concurred.

FRAUDS-INSTRUCTIONS-REVIEW.

1. An agreement between three persons, by which the first is to pay the third a debt due him from the second, who is to be released, and who agrees to discharge a claim due him from the first, constitutes a novation.

2. Such an agreement is not within the statute of frauds.

3. An instruction that there is evidence tending to show that plaintiff did not keep correct books of account, and, if the jury find this true, they art at liberty to disregard the claims based thereon, will not be held erroneous, as stating what the evidence tends to show, where the evidence has not been brought up in the record, since its truth is left to be determined by the jury.

Error to circuit court, Grand Traverse county; Roscoe L. Corbett, Judge.

Action by Clarence I. Martin against Ashley B. Curtis. There was a judgment for defendant, and plaintiff brings error. Affirmed.

C. G. Turner, for appellant. Crotser, for appellee.

Patchin &

HOOKER, J. The appellant brought assumpsit, and the brief of his counsel states that the case depended upon an item of offset, amounting to $116, which was credited to the defendant by the jury. It arose as follows: The plaintiff was the assignee of the account against the defendant, from plaintiff's father. The charge, which is the only means we have of determining the facts, as no evidence is printed in the record, shows that Martin, Sr., owned a sawmill which one Hudson operated on his own account, and that Hudson's men boarded at the defendant's hotel, upon his credit, whereby Hudson became indebted to the defendant for their board. There was evidence tending to show that Martin, Sr., owed Hudson, and that, by an agreement to which Martin, Sr., Hudson, and the defendant were parties, Martin, Sr., promised to pay the board bill, in consideration of Hudson's release of his claim against Martin, Sr. Counsel for the plaintiff claim that this promise was void, under the statute of frauds. The learned circuit judge properly left the question of fact to the jury, and correctly stated that the foregoing facts, if true, constituted a novation, and the statute of frauds had no application. Mulcrone v. Lumber Co., 55 Mich. 622, 22 N. W. 67, is conclusive of the question.

Another assignment of error is based upon the following instruction: "Evidence has been introduced tending to show that plaintiff does not keep correct books of account. If you believe this to be true, you are at liberty to disregard his claim as based upon his books of account, if you see fit." It is urged that it was error for the court to state to the jury what certain evidence tended to show. The court's statement was condition

ed upon the belief of the jury in the truth of such evidence, and as he did not assume to decide that question, and we have no means of knowing what the testimony was, we cannot say that he erred. The judgment is affirmed. The other justices concurred.

MALICKI v. CHICAGO GUARANTY FUND LIFE SOC.

(Supreme Court of Michigan. Jan. 3, 1899.) LIFE INSURANCE-APPLICATION-MISREPRESENTATIONS-BURDEN OF PROOF.

1. An answer, in an application for a policy, which states that a bar owned by applicant was tended by the clerk exclusively, and that applicant tended to other business, is untrue if applicant occasionally went behind the bar to temporarily wait on customers.

2. An application for a policy answered the question, "Do you drink beer, ale, wine, or spirits? If so, state what, how often, and how much," by stating, "Yes; two or three glasses of beer daily." Held, that the answer was a representation that applicant did not drink any spirituous liquors.

3. The burden is on insurer to show the violation of conditions avoiding an otherwise valid policy.

Error to circuit court, Wayne county; Roscoe L. Corbett, Judge.

Action by Teofila Malicki against the Chicago Guaranty Fund Life Society. There was a judgment for plaintiff, and defendant brings error. Reversed.

This is an action upon a policy of insurance issued upon the life of John Malicki, the busband of plaintiff, who was the beneficiary named in the policy. The application contained the following questions and answers: "Q. Do you drink beer, ale, wine, or spirits? If so, state what, how often, and how much. A. Yes; two or three glasses of beer daily. Q. Have you ever drank beer, wine, or spirits, or ale to excess? A. No. Q. Have you now, or have you ever had, any interest in the manufacture or sale of intoxicating liquor of any kind, directly or indirectly? A. Yes; keep liquors in my store." Additional information was asked, to which Mr. Malicki replied as follows: "In regard to my occupation, would say that I am proprietor of grocery, and have a bar in connection. I have a clerk that attends to the bar trade, and I attend to the grocery, and the buying and marketing. My bar trade is attended to exclusively by my clerk." These statements formed the basis for the issue of the policy. The body of the policy is general, and insured the life of Mr. Malicki against death. But for the clause next below quoted, liability would have attached for any cause of death. This clause is as follows: "This policy is issued upon the agreements contained in the application therefor, and upon condition that the answers and statements in said application are full, complete, and true. Said application, together with all privileges, conditions, and requirements indorsed hereon,

whether written or printed, are hereby made a material part of this contract." The condition upon the back of the policy, so far as it is material, reads: "Death caused or superinduced by the use of intoxicants, within three years from the date of the within policy, is a risk not contemplated or covered by said policy, and, in case of death from any of the aforesaid causes, the amount recoverable shall be limited to the premiums paid on said policy, with interest. * * * If this policy is obtained by fraud, or if any statement contained in the application on which this policy is based, or in the proof of death, is found to be fraudulently untrue, then this policy shall be ipso facto null and void." Mr. Malicki died October 23, 1896, eight months after the issue of the policy. Plaintiff notified the company of his death, and asked for blank proofs of loss, which were furnished. These were filled out, signed, and sworn to by plaintiff, October 31, 1896, and forwarded to the company. The cause of death was stated to be a severe cold. She gave the name of the physician who attended him in his last illness as Dr. W. J. Brand. A blank proof appears to have been sent to Dr. Brand, who filled it out and swore to it on the 19th day of November, 1896, and forwarded it to the company. In this affidavit the immediate cause of death was said to be delirium tremens. Plaintiff made her case by introducing the policy of insurance and proofs of death which had been submitted to the company, and rested. Defendant then introduced Dr. Brand, who testified that he attended Mr. Malicki in his last illness; that the report he sent the company was true, and correctly stated the cause of death, which report was received in evidence. Defendant then introduced testimony tending to show that Mr. Malicki was frequently intoxicated, that he drank spirituous liquors, and that he frequently attended the bar. One witness testified that she was frequently in the grocery for several years, and that Malicki, most all of the time when she was there, was attending the bar, "selling drinks to whoever wanted to buy." The record then states that the plaintiff produced evidence "in rebuttal of the evidence produced by the defendant." Verdict and judgment were for the plaintiff. Moore & Moore and E. C. Bolton, for appellant. T. E. Tarsney and George B. Greening, for appellee.

GRANT, C. J. (after stating the facts). If all the testimony on the part of the defendant was true, the policy was void, and the court should have so instructed the jury. But the record does not contain all of the evidence, and, in view of the statement that there was testimony in rebuttal of that of the defendant, we cannot hold that the jury should have been so instructed. The court instructed the jury as follows: "It is further claimed by the defendant that this pol

er.

icy was issued on condition that the deceased should not attend bar in his saloon. It appears from the evidence that the occupation of the deceased was grocery and saloon keepIt also appears from a part of the application of insurance that the deceased stated that he did not attend bar, but that his business was in the grocery, and that the bar was attended exclusively by his clerk. That is a material condition, gentlemen of the jury. It was competent for the defendant to make that a condition, and having made it such, and the deceased having subscribed to it as a part of the application, it becomes binding upon the plaintiff. Now, gentlemen of the jury, if you find from the evidence that John Malicki was in the habit of attending bar,that is, if that was his business; that he attended bar habitually, instead of attending to the grocery,-in other words, if his business was to attend bar in that saloon, then your verdict must be for the defendant. But you are instructed, if he occasionally attended bar, if he went behind the bar occasionally, and dealt out liquors to customers, it should not avoid the policy; but if that was his business, if he was in the practice and in the habit of doing so, it would avoid the policy, but an occasional sale by the deceased to the customers would not." There is no doubt about the terms of this contract. Mr. Malicki, in order to obtain this insurance, represented that he did not attend the bar, but that his bar was exclusively attended to by his clerk. Relying upon this representation, this policy was issued. The vice of the instruction lies in the fact that under it the jury might have found that nothing short of an habitual tending of the bar, and making that his business, would avoid the policy, and that anything short of that would be an occasional act. Clearly, if Mr. Malicki daily tended the bar while the regular bartender was absent at his meals or on other occasions, this would be contrary to the terms of the policy. If he wanted a policy upon that basis, he should have stated the facts. Whether a single act or a few acts of tending the bar would avoid the policy, we need not determine. The jury evidently received no instruction as to what occasional acts would or would not have that effect. It is urged that the policy, being dated the day before this part of the application was made, was not issued in reliance upon this representation. The only proof on this point is that this paper, with the other two, constituted the application. The date of the policy does not control. The delivery is essential. It was not issued till delivered.

2. The court instructed the jury that if Mr. Malicki, at the time of effecting the insurance, "was in the habit of drinking intoxicating liquors to excess, that would end the case, and your verdict should be for the defendant. If you find that he was not an intemperate user of alcoholic liquors, it would not avoid the policy. It is a simple question

whether he was an excessive drinker. If he was an habitual excessive drinker, it would avoid the policy." Here, again, plaintiff is confronted with the terms of the policy. Mr. Malicki distinctly stated in his application that he only drank two or three glasses of beer daily. This was in reply to the question: "Do you drink beer, ale, wine, or spirits, and, if so, state what, how often, and how much." The representation was clear and explicit that he did not drink spirituous liquors. Defendant asked this, and was entitled to know it. If he was in the habit of using spirituous liquors as a beverage, he should have so stated. The instruction was erroneous. The court should have instructed the jury that the habit of using spirituous liquors before the issue of the policy was a false representation, and, if proven, avoided it.

Cases like that of Insurance Co. v. Foley, 105 U. S. 350, have no application. In that case the representations were that the appli- | cant had always been of temperate habits. The very answer implied the use of intoxicating liquors, and it was very properly held that the occasional use and an exceptional case of excess did not justify the conclusion that he was a man of intemperate habits.

3. We think the court committed no error in instructing the jury that the burden of proof was upon the defendant to show that the deceased died from delirium tremens. A distinction is made between the principal contract as found in the body of the instrument, and conditions or stipulations indorsed thereon, "which are intended to avoid the defendant's promise by way of defeasance or excuse." The party relying upon the breach of such conditions to defeat his liability assumes the onus probandi. Coburn v. Insurance Co., 145 Mass. 226, 13 N. E. 604. The contract of insurance in that case was substantially identical with this. See, also, Insurance Co. v. Ewing, 92 U. S. 377; Redman v. Insurance Co., 49 Wis. 431, 4 N. W. 591. Judgment reversed, and new trial ordered. The other justices concurred.

BOYCE v. BARKER. (Supreme Court of Michigan. Jan. 3, 1899.) SALE OF LOGS-DUTY TO DEMAND JOINT SCALEQUESTION FOR JURY-COMPROMISE-EVIDENCE HARMLESS ERROR.

1. Where the buyer and seller of logs agree that each shall furnish a scaler, but the buyer subsequently directs his scaler to act independently of the seller's, the seller cannot insist that his scale is conclusive, in the absence of a demand for a joint scale, but the quantity sold is for the jury.

2. Error in admitting evidence of the ex parte mill scale of the lumber made from certain logs was cured by subsequently striking it out, and directing the jury to disregard the same.

3. The buyer and seller having agreed to estimate the quantity of logs sold, by an average to be ascertained from sawing a certain number, the buyer is not bound by the result, where the seller directed that only the best logs should be selected for that purpose.

MONTGOMERY, J. This is an action brought by the plaintiff to recover the purchase price of a quantity of logs. The plaintiff recovered a verdict of $846.70, but has brought error, and insists that he was entitled to receive nearly $4,000, but failed because of erroneous rulings of the trial judge. The chief controversy arises over the scale of the logs. The plaintiff, by a written contract, agreed to sell, and defendant agreed to purchase, at least 5,000,000 feet of logs. It was agreed that each of the parties should furnish a good, reliable, and competent scaler, each at his own expense, to scale by Scribner's scale; that the logs should be scaled on the skids along the railroad track; and that the scalers should determine the amount of logs scaled. Plaintiff engaged one Oleson to scale under the contract, and defendant employed one Reiley, and both began scaling on October 27, 1896. The first day they scaled separately. Oleson's scale was 920 pieces, scaling 165,140, and Reiley's 923 pieces, scaling 156,060. The next day they began scaling together, and continued to so scale up to and including November 2d. The scale during this time substantially agreed. On the 5th and 6th of November, Reiley was absent at Bay City. Oleson scaled alone during this time, but on his return Reiley accepted Oleson's scale and reported it to defendant as his own. The scale of these three days is not questioned. It appears that when the two scalers commenced work they were not instructed to scale together. The plaintiff's foreman told Reiley that he had better go ahead and mark what logs he wanted to leave, and that Oleson would leave the same logs out, and they so commenced this work, but at first no effort was made to harmonize the scale. As before stated, the two scalers did harmonize the scale between themselves for two days, but on the return of Reiley, on November 9th, he began scaling by himself again, having been instructed by defendant's foreman so to do. He continued scaling until November 13th, he and Oleson making separate scales. Mr. Hood, another scaler employed by defendant, took Reiley's place, and scaled until December 18th, the two scalers acting independently. On the 21st the parties discovered a disagreement in the scale, and met at the camp, and, Barker being of the opinion that Oleson's scale was faulty only with reference to the but logs, it was agreed that plaintiff should take out the but logs, and that defendant would accept Oleson's scale from that time forward. This was carried out, and no con