street. The remedy provided by section 469 is not an exclusive one, and the city cannot escape liability for such injuries by annulling the assessment. It is the province of the court to determine what issues are involved in a case, and where it was claimed that certain matter involved in this had been determined in another action, held, that the court properly instructed the jury as to what was determined in such action. Evidence held not to authorize a vacation of verdict on the ground that damages were excessive.-[ED.

Appeal from Polk circuit court.

Action to recover for injuries to certain real estate caused by the city changing the grade and excavating the streets upon which the property is situated. There was a verdict and judgment for plaintiff in the sum of $2,000. Defendant appeals.

Bryan & Bryan, for appellant.

Nourse, Kauffman & Co, for appellee.

BECK, C J 1. The 1. The petition alleges that plaintiff has owned the property in question-lots 9, 10, 11 and 12, block 5, Scott's addition to the city of Des Moines-since November 11, 1874; that in 1857 the defendant established the grade of Walnut and Ninth streets adjacent to the lots, and re-established the same grade in 1861; that in 1876 defendant changed the grade of those streets so that they would be excavated below the original grade from three to six feet; that the streets were cut down to the grade established in 1876; that after the grade was first established, and before the change in 1876, the property had been improved, and large expenditures of money made for that purpose, and that defendant did not have the damages assessed as required by law, nor pay or tender to plaintiff such damages, before the streets were cut down. The plaintiff filed an amended petition, alleging that in a certain action in chancery, wherein the parties were the same as in this action, it was adjudged and decreed that the property had been improved with a view to a previously established grade, and that no excavation of the street could be made until, under proceedings authorized by the statute, the damages resulting therefrom should be assessed and paid. The answer of defendant denies the allegations of the petition.

2. The case can be more briefly and satisfactorily disposed of by considering the objections made by defendant's counsel in the order they are presented in their argument. We will therefore pursue that course in this opinion. It is first insisted that plaintiff is not entitled to recovery, however much the value of the property may be depreciated by the change of

grade, unless the city, by negligence in making the change, caused direct injury to the property.

It may be that this rule prevails in the absence of statute, but Code, § 469, provides that where an established grade is altered "in such manner as to injure or diminish the value of property," the city shall pay the owner the damages to be assessed in the manner prescribed. The city is made liable, not only for injury to the property, but for damages resulting from the value of the property being diminished. The court below properly held that plaintiff is entitled to recover for the diminution of the actual value of the property caused by excavating the streets.

3. The statute under which plaintiff claims to recover (Code, § 469) provides as follows: "When any city or town shall have established the grade of any street or alley, and any person shall have built or made any improvements on such street or alley, according to the established grade thereof, and such city or town shall alter said established grade in such a manner as to injure or diminish the value of said property, said city or town shall pay to the owner or owners of said property so injured the amount of such damage or injury.

Counsel for defendants insist

"First, that the improvements [contemplated in the provisions] must be made after the grade was established. "Second, they must be made according to the grade. "Third, the improvements must be made on the street. "Fourth, the injury must be done to such improvements, and not to the lots on which they are situated.'

4. In reply to these points we say: It may be admitted that improvements must be made after the grade is first established, and in accordance therewith, but it cannot be admitted that no other improvements are to be considered in estimating the injury. Improvements become part of the realty-a part of the whole property. The statute authorizes recovery for the diminution of the value of the property. The realty-the whole property-including improvements, buildings, etc., made before and after the grade was established, must be considered in estimating the damages. The plaintiff. when he made improvements after the grade was established, doubtless relied upon its continuance, and was induced thereby to expend money in improving his house, built before the grade was established. The improvement became part of the realty. The statute provides that he shall recover

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for the diminution of the value of realty. See Dalzell v. City of Davenport, 12 Iowa, 437.

5. It is said the improvement must be made on the street. The statute evidently contemplates improvements upon lots which are situated on the street. The particle on, when used to designate a place, means at, near, adjacent to. obviously its import as used in the language of the statute under consideration.

This is

6. As we have just remarked the improvements became a part of the realty, and under the statute plaintiff may recover for injuries to the whole property. This interpretation is obvious, and has been adopted by this court in construing a statute almost identical in language with this one now under consideration. Dalzell v. City of Davenport, 12 Iowa, 437.

7. Counsel for defendant insist that plaintiff must pursue the remedy provided by Code, § 469, and can have no other. The proceeding provided for by this section is an assessment or appraisement of damages. When such an assessment is made the city council has the power to annul the same, and it is provided, "if annulled, all the proceedings shall be void." No appeal is allowed from such action. In case the proceedings are annulled the property owner cannot recover on the assessment. If the city proceeds to change the grade of the street the property holder, under the rule contended for by counsel, would have no remedy. In the case at bar the city did annul the assessment. The grade had been changed and the excavation made. The statute cannot be so interpreted that it will permit the city to escape from the payment of damages by annulling the assessment. The rights of the plaintiff were not effected thereby, and he can recover in this action.

8. The plaintiff introduced in evidence the record of the chancery suit pleaded in his amended petition. The court instructed the jury that the record established these facts: First, the grade of the street had been established previous to the ordinance of the city changing it; second, between the time of establishing the grade and the change thereof improvements had been made upon the property with a view to the grade; third, the change of the grade would diminish the value of plaintiff's property.

It is insisted by the defendant that the instruction is erroneous in that it was the province of the jury to determine the identity of the issues of that case and this. The objection is

not well taken. It was the province of the court to determine what issues are involved in each case and what matter was decided in the chancery action. Records of this kind must be interpreted by the court, and the jury are to be informed in that way of their effect. The court below correctly interpreted the record and truly informed the jury what facts were established by it. The instruction proceeds to state that upon these facts, and others admitted in open court, the plaintiff had no right to cut down the grade. The case is distinguishable from Amsdem v. The D. & S. C. R. Co. 33 Iowa, 288, in that the court, by the instruction in question, states to the jury the facts established by the record, and does not pass upon the question of the identity of the issue of the two actions. It is proper to say that we think the court correctly interpreted the record, which, in our opinion, establishes the facts stated by the court in the instructions.

9. It is insisted that the damages are excessive. The testimony upon this branch of the case is conflicting. We are not authorized to say that the amount of the verdict is not warranted by the fair preponderance of the proof.

We have considered all questions urged in the argument of counsel, and reach the conclusion that the judgment of the court below is without error. It is therefore affirmed.

GEORGE WHITTAKER, Appellant, vs. ISAAC KUHN, Appellee. Filed October 28, 1879.

Defendant subscribed for certain stock in the Iowa Industrial Exposition Company. He paid the first assessment thereon in cash; for the. second he gave his promissory note, which was accepted and accredited as a cash payment. This note was transferred to plaintiff. Subsequently other assessments were made, and, not being paid, said stock and the payments thereon were, under the charter of said company, declared forfeited. The charter provided that no stock should issue to subscribers until the whole amount had been paid thereon. Held, that the transfer of the note having been made before the stock was forfeited, plaintiff's rights were unaffected by anything growing out of such forfeiture. Equities between the maker and payee of a promissory note, arising after its transfer to a third person, will not affect the rights of the holder, though the transfer be made after the note becomes due.-[ED.

Appeal from Polk circuit court..

Action on a promissory note. Trial to the court, judgment for the defendant, and plaintiff appeals.

Barcroft, Given & McCaughan, for appellant.

Phillips, Good & Phillips, for appellee.

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SEEVERS, J. The defendant subscribed for one share of the capital stock of the Iowa Industrial Exposition Company, the subscription paper being as follows:

"The undersigned respectively subscribe to the capital stock of the Iowa Industrial Exposition Company the number of shares set opposite our respective names, (of $1,000 each,) which we respectively agree to pay, upon the call of said company, in such assessments as may be from time to time ordered, pursuant to the articles of incorporation and by-laws. of said company."

on the

The company made an assessment of 10 per cent., which was paid by the defendant. Subsequently another assessment of 20 per cent. was made. Instead of paying this in cash the defendant executed to the corporation his promissory note, which was accepted and credited by the company, same day it was given, on its books as so much paid on the defendant's subscription. Other assessments were afterward made before the twenty-second day of June, 1877, when the note was transferred to the plaintiff as part payment of an indebtedness due him by said company.

On the ninth day of July the company caused the following notice to be served on the defendant:

"You are hereby notified that all shares of stock of the Iowa Industrial Exposition Company, on which any instalment has remained due and unpaid for thirty days prior to this date, will be liable to forfeiture at any time after the thirteenth day of August, 1877. You are also notified that instalments upon the one share of stock standing in your name are due and unpaid, as follows, viz.: Twenty per cent., amounting to two hundred dollars, ($200,) due on the twentythird day of July, 1876; twenty per cent., amounting to twohundred dollars, ($200,) due on the fifteenth day of January, 1877; twenty per cent., amounting to two hundred dollars, ($200,) due on the fourteenth day of February, 1877; ten per cent., amounting to one hundred dollars, ($100,) due on the fifteenth day of March, 1877. By order of the board of directors."

None of the assessments referred to in said notice were paid. On the twenty-fourth day of August, 1877, the company, pursuant to a power contained in the charter, declared said stock and all payments thereon forfeited. The charter also provided that "certificates of stock shall not be issued to any subscriber until the whole amount has been paid thereon." No stock was ever issued to the defendant, and the only con