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reported,) see 8 Western Jurist, (1874,) 302; Robinson v. Lair, 31 Iowa, 10; Ashworth v. Grubbs, 47 Iowa, 553.

Counsel for plaintiff insists that these decisions were made under a statute differing in its provisions from Code, § 2730. Upon a careful comparison of the statutes in question we are utterly unable to discover any difference in them. They are in substance the same, and almost the same in language. The same effect must be given to each.

We conclude that under the issues raised by defendant's answer the court correctly permitted the introduction of evidence tending to prove that the firm of which defendant was a member did not execute the notes.

3. The testimony tended to prove that Cole & Hedges were employed by the general agent of plaintiff to sell Pitts threshers, under a contract specifying the duties and obligations assumed by them, some of which pertained to the security to be taken upon sales made by them. They sold a thresher to J. C. and W. C. Power, and received notes which did not, in some matters, comply with their contract, and sent them to the agent of plaintiff. He returned them to Cole & Hedges, and demanded that they indorse the the paper. In the settlement of this difference, and in compliance with the requirement of the agent, Cole & Hedges returned the notes signed by them, as they now appear. They were afterwards sent back by the agent, and part of the amount due was received and accounted for by Cole & Hedges. The contract required Cole & Hedges "to guarantee all notes good when taken.

Defendant's theory of the case is that the signing of the notes was no part of the business of the firm, and by their contract they were not required so to do. They were bound to do nothing more than "to guarantee all notes good when taken." This theory of the defence was presented in instructions asked by defendant. The law was correctly announced to the effect that the contract did not bind the firm to sign the notes, and therefore none of the copartners were authorized to do so. The obligation of the firm to guarantee the notes surely did not give the copartners authority to bind it by signing the notes as makers.

Plaintiff's theory of the case is this: Cole & Hedges accepted the notes in violation of their contract, and thereby became liable to plaintiff. Upon plaintiff's agent claiming to hold them liable, and insisting upon security upon the notes, they signed the paper. This was done in the settlement

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of a claim made upon them arising in the business of the firm. Each partner was authorized to settle the claim so made, and discharged it by executing the notes. The plaintiff requested the court to give to the jury instructions presenting this theory of the case. They were refused. We think this is error. If Cole & Hedges failed to comply with their contract, and accepted notes in violation thereof, the firm was bound to make good any deficiency arising from their default. This could have been done by the execution of a note, and each copartner was authorized to execute such a note. It was a transaction growing out of the business of the firm. It was, indeed, the settlement of a liability arising in the business of the firm which each partner could make either by payment or the execution of a note or other obligation.

These are familiar and elementary principles of the law, which need not be supported by authorities. They were presented in instructions applicable to the facts of the case, which were erroneously refused. For this error the judgment of the circuit court must be reversed.

JOHN O'LAUGHLIN, Appellee, vs. THE CITY OF DUBUQUE,

Appellant.

Filed December 11, 1879.

Evidence in this case held sufficient to sustain the verdict herein.-[ED. Appeal from Dubuque circuit court.

This is an action for a personal injury caused by the plaintiff falling upon a sidewalk, which he alleged the defendant negligently allowed to become dangerous to travelers, by reason of an accumulation of snow and ice theron. There was a trial by jury, verdict and judgment for the plaintiff, and defendant appeals.

H. T. McNulty, for appellant.

H. B. Fouke, for appellee.

ROTHROCK, J. This is the second appeal in this cause. 42 Iowa, 539. In the former appeal the evidence showed that the plaintiff, in crossing from one side of Main street to the other, did not cross upon a cross-walk, but went diagonally in a hurried manner, and slipped and fell just as he reached the sidewalk. "There was no evidence tending to show that the cross-walk was in bad condition." Foraught that appeared it was, at least, perfectly safe, and free from accumulations of (655)

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We then held that "ordinarily he should have crossed at the place provided for that purpose, but if this was obstructed, or there was not merely appearance of danger, but such as would deter an ordinarily prudent person from crossing on the sidewalk, then he might do so at some other place. Sidewalks and cross-walks alone are constructed for foot passengers, and he who, without some good and sufficient reason, walks elsewhere and is injured, should not be permitted to complain that he has been injured through the fault and negligence of the city.

Counsel for appellant claims that the evidence upon the last trial was the same as on the first. He says: "The plaintiff had before him the opinion of this court given in the former case, and although his interest as well as his inclination prompted him to avoid the objection to his recovery stated in the opinion, a careful reading of his testimony shows plainly that he has not succeeded in avoiding such objections."

Counsel is mistaken. It appears that the plaintiff was an officer of some court, and that he had a subpoena which he desired to serve on one Smith. His testimony, in part, is as follows: "When I got up to Main street I struck the northeast corner of Main and Seventh streets; I there saw Squire Smith, the witness I was after; he was on the other side of Main street, about half way between Seventh and Eighth streets, when I went to the corner; the reason why I did not cross over on the regular crossing was that the regular crossing was not a very good crossing, and another thing, I did not see any danger before me, and the snow was covering the obstruction and I wanted to make a short cut to my witness, and that was supposed to be the worst crossing then on Main street at that time; the reason for my crossing diagonally was to get up to my witness, and another reason was that the crossing at Seventh street was a little dangerous."

It is true that in another part of his testimony he said: "At that time I did not know that there was any ice or obstruction on the crossing; at that time I did not see any obstruction on the crossing; I knew it before that time." There was other evidence tending to show that at the end of the crosswalk there was quite an accumulation of ice at a point where iron sewers formed part of the crossing, and that they had been overflowed with water, which was frozen and allowed to remain there. Now the jury may have found that the crossing was dangerous, and that the plaintiff avoided it and crossed upon the street because it was dangerous. The evi

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dence is not the same as on the former trial. The facts necessary to a recovery were, no doubt, discovered after the former trial, and are sufficient within the rule of the opinion in the former appeal. The record presents no other question for our determination.

Affirmed.

SEEVERS, J., dissenting.

W. C. BLAKE, Appellant, vs. JOHN BLACK and others,

Appellees.

Filed December 11, 1879.

Several parties were joint owners of a bond for the conveyance of lands Action was instituted for its foreclosure by the beneficiary, notice served on some of defendants, sale made, and statutory redemption from such sale, which was for a portion only of amount due. Subsequently notice was served on the other owners of bond, judgment entered, and sale ordered. Held, that the first sale only covered the interest in the bond of those then served, and a statutory redemption from such sale, though the money was accepted by the beneficiary, affected no other interest, and subsequent sale, as against others, not affected by the first sale, was proper. Statutory redemption and equitable redemption distinguished. -[ED.

Appeal from Bremer district court.

Action in equity, the object of which is to restrain the sheriff from executing a deed to certain real estate sold by him on execution. A temporary injunction was allowed, which, on motion of defendants, was dissolved, and the plaintiff appeals.

Gray, Daugherty & Gibson, for appellant.

No appearance for appellees.

SEEVERS. J. The facts briefly but sufficiently stated are that the defendant Black was the owner of certain real estate which he sold to Ellis, and gave the latter a bond conditioned to convey the same to him upon the payment of the purchase money. The bond was assigned to and became the property of the plaintiff and A. J. Van Duzee. Black commenced an action against Ellis, the plaintiff, Van Duzee and others, to foreclose the bond, and such proceedings were had that a judgment was rendered against Ellis for the purchase money, foreclosing the bond, and cutting off Van Duzee's right of redemption, but not that of the plaintiff, because he had not been served with notice of the action. A special execution was ordered to, and did, issue. The real estate was sold to the v3-42 (no. vi)

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defendant Black for what is understood to be one-half of the judgment, interest and costs.

Afterwards, in January, 1877, the bond was foreclosed as to the plaintiff, and his equity of redemption cut off by the decree. In June, 1877, the plaintiff and Van Duzee made statutory redemption by paying the amount of the bid, and interest thereon, which the defendant, within a few days thereafter, accepted and receipted for to the clerk. In July, 1877, a special execution issued for the sale of the plaintiff's interest in the premises, under which a sale was made to said Black for the balance due on his judgment and costs. To restrain the execution of a deed under this sale is the object of this action. Under our statute bonds for the conveyance of real estate must be foreclosed like mortgages. The rights of the parties and encumbrances are the same in all respects as if the action was to foreclose a mortgage. Code, §§ 3318, 3319, 3321. Such being true it will simplify the discussion of the question for determination, and it can be more readily understood if the maker of the bond is designated as the mortgagor, and the beneficiary, mortgagee, for such in legal effect they are. As the bond was assigned to the plaintiff and Van Duzee they will be regarded as mortgagors. It may, therefore, with propriety be said that in legal effect the plaintiff and Van Duzee were owners in common of the legal title, and executed a mortgage thereon to Black, and that the latter brought an action to foreclose such mortgage, but having failed to serve the plaintiff with notice, he, therefore, only obtained a foreclosure as to Van Duzee. Under the decree thus obtained the premises were sold, and the plaintiff and Van Duzee made statutory redemption therefrom by paying the amount of the bid, which, however, was less than the judgment.

The important inquiry is, what did they obtain by such redemption? Certainly we think all that had been sold and no more. Van Duzee's interest only had been sold, and he and the plaintiff, by the redemption, obtained such interest. Regarding Van Duzee and the plaintiff as the owners of the legal title, it is evident the interest of the latter was not sold, for it had not been foreclosed. This would be also true if the title of the plaintiff were equitable instead of legal. The plaintiff, therefore, was the owner of the legal or equitable title to the undivided one-half of the real estate, in addition to the interest he obtained under his statutory redemption. A decree having been rendered foreclosing such interest, it

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