very reason, and that the jury might accept it as tending to show that the property still belonged to the plaintiff, when it ought not to have any such effect. It would be preposterous to suppose that the plaintiff, during the pendency of the action in which he claimed that he had sold the machine to the defendants, and that the property was theirs and not his, would say or do anything that would imply that he had not sold but still owned it, and have the effect to defeat his action. The plaintiff had a right to offer the machine for sale on condition of an adverse judgment in the action, and he was compelled to take it back, or to ascertain whether it would not be more profitable to him to sell it again than to litigate with the defendants about it. Such a statement, like a proposition of settlement or of compromise, should not be allowed against the right of the party making it, for it is in the interest of peace. Bank v. Dutton, 11 Wis. 371. The same principle was laid down by this court in Hinton v. Coleman, ante, 26, (decided the first of this term.) The question was raised whether the plaintiff had not admitted that he was not employed by the defendants to purchase the property by offering to purchase it for others. It was held that the testimony should have no such effect, but only that he wished to make sure of a purchaser, and save his fees in case the defendants did not take it. this view, the evidence rejected was immaterial if not improper. It should have done the plaintiff no harm, nor the defendants any good, on the main issue in the case,-whether the property in the machine had passed to the defendants. In 4. It is assigned as error that the plaintiff was allowed to introduce testimony to prove that the machine worked well, or did good work, before and after the defendants used it. The contention on this point is that the testimony should be confined to the question whether it did good work when the defendants used it, and, if not, whether it was for the reason that it was not properly managed. If the machine did good work just before and afterwards, the inference would seem to be, if it did not do good work when the defendants used it, that it was not properly managed. So that the testimony reaches the same point either way,-that it either did good work, or it was not properly managed. It is further contended, in relation to the testimony, that it did good work for the neighbor who took it from the fence corner, where the defendants left it, throughout his harvest of the next year, that the plaintiff ought to have shown affirmatively that it had not been repaired or improved before he used it. The burden of proof lies on the affirmative, and not on the negative. Wright v. Insurance Co., 36 Wis. 522; Hayes v. Frey, 54 Wis. 503, 11 N. W. Rep. 695. It is a presumption of fact that the machine remained in the same condition up to the time it was so taken and used by the neighbor; and it was for the defendants to prove that it had been repaired or improved. Laughlin v. Railway Co., 28 Wis. 204. 5. The instructions asked by the defend ants, and which the court refused to give, are substantially embraced in those given in the general charge. 6. The general charge, that the jury should find accordingly as they might find the claims of either party to be true and sustained by the evidence, was not erroneous. A charge substantially the same was sanctioned by this court in Somers v. McLaughlin, 57 Wis. 358, 15 N. W. Rep. 442. The claims of the respective parties seem to have been fairly, clearly, and fully stated to the jury as the basis of this general charge. There was nothing in the case that required any more specific instruction. The court gave one of the three instructions asked, which substantially embraced the other two. We do not think the jury were misled by the instructions, or misunderstood them; and their verdict seems to be sustained by the evidence. The judgment of the circuit court is affirmed. (80 Iowa, 237) THOMAS et al. v. SCHEE. (Supreme Court of Iowa. May 23, 1890.) VENDOR ANd Vendee-BREACH OF WARRANTYATTORNEY AND CLIENT-ABSTRACTS OF TITLE. 1. A complaint alleged that defendant, an attorney at law, holding himself out to be competent to make and certify abstracts of title to land, sold land to plaintiffs, and, as an inducement, delivered to them an abstract of title, on which he indorsed a certificate stating that he had carefully examined the title, and that the abstract was full, true, and complete; that plaintiffs, relying on the certificate, improved the land; that the abstract was untrue, in that it showed a conveyance, where the alleged conveyance did not purport to convey the land, and a decree quieting title to the land, while the suit was still pending; that after plaintiffs' purchase the suit was decided adversely to them. Held, that the complaint stated a cause of action both for defendant's want of reasonable care and skill as an attorney and abstractor, and upon his warranty that the title was as shown in the abstract. 2. Where an abstract of title to real estate is certified by an attorney at law and abstractor to be a "full and true and complete abstract of the title, "it is to be presumed that it covers suits as well as conveyances affecting the title. 3. Where the owner of land agrees to sell to a person for a certain sum, to be paid on condition that a third person to whom the vendee wishes to sell shall be satisfied with the title, the conveyance to be made direct from the owner, and by misrepresentation as to the title induces such third person to accept the conveyance, the owner's liability is directly to such third person. 4. It is not error to refuse to submit to the jury, for findings, particular questions not ultimate in their nature, and which would be apt to cause confusion. Appeal from district court, O'Brien county; SCOTT M. LADD, Judge. Plaintiffs state their cause of action in two counts. The first count charges that on the 12th day of February, 1883, the plaintiffs negotiated with the defendant for the purchase of certain lands in O'Brien county; that, as an inducement to purchase said property, the defendant made and delivered to them a duly certified abstract of the title to said property, upon which he indorsed in writing a certificate "stating that he had carefully examined the title to said lands, and that the same was a full and true and complete abstract of the said title;" that at that time the shows that defendant, a professional abstractor, as an inducement to plaintiffs to pay him $600 for his land, presents them with an abstract showing title in him. He states to them by his certificate on the abstract that he had carefully examined the title to the lunds, and that the abstract was "a full, complete, and correct abstract of all the conveyances upon record affecting the same." It was for the land, and this personal promise and assurance as to the title, that the plaintiffs paid their money. The abstract was prepared to be used as an inducement to whoever might apply to purchase the land. The plaintiffs applied, and the abstract was presented. It was as much prepared for them as if it had been upon their order. Surely, the liability of the defendant should not be lessened because he was both vendor and abstractor. defendant was an attorney at law, hold- | show a cause of action on contract. It ing himself out to be a competent person to make and certify to abstracts of title to real estate; that plaintiffs, relying upon said abstract, purchased said lands of defendant, paying him therefor $600, and thereafter, without any actual notice of any defect in the title to said lands, improved the same by breaking 24 acres, which was of the value of $72; that said abstract was untrue, in that it showed a conveyance of said lands from the treasurer of O'Brien county to D. W. Inman, when in fact said conveyance does not purport to convey said lands; also in that there was no decree quieting the title in said premises in the defendant against the claims of Ray Thomas, the owner of the fee title, but, on the contrary, there was at said time, and for six months prior thereto, on file in the office of the clerk of the circuit court of O'Brien county, the petition of Ray Thomas against this defendant, claiming that said Thomas was the owner in fee of said land, and asking that his title be quieted against the said George W. Schee; that said Ray Thomas was successful in said action, and by the decree of said court the defendant and these plaintiffs were barred and forever estopped from claiming any interest in said land adverse to the said Ray Thomas. The plaintiffs say that, by reason of the foregoing facts, they have been damaged $672, which they ask to recover, with interest. The second count states substantially the same facts, and alleges that the representations were false, and known to be so, and that they were made with intent to defraud plaintiffs. The case was submitted to the jury on the first count alone, and verdict and judgment were rendered for plaintiffs. Defendant appeals. H. H. Crow and E. C. Herrick, for appellant. Warren Walker and Hughes & Hastings, for appellees. GIVEN, J. 1. It is apparent from the remarks of the court during the trial, and the instructions, that the case was submitted upon the first count alone; but it is not clear why, as there was some testimony tending to sustain the charge of fraud in the second count, namely, that of Warren Walker. This action of the court was without prejudice to the defendant, and, as he alone appeals, we are not called upon to consider it. Appellant contends that his liability must rest upon either fraudulent representations, by use of the false abstract knowingly made, by which plaintiff's money was obtained, or upon his having made the abstract as an attorney, and having been guilty of such negligence in making and certifying to it as renders him liable for the damages resulting from plaintiff's reliance thereon. He insists that the first count does not state a cause of action upon either of said grounds, and therefore the court erred in not instructing the jury to find for the defendant, and in overruling his motion for a new trial. He While the first count is not as definite as might be, or as it should have been made on motion, we think the matters alleged as ultimate facts, fairly construed, While it may be true, as contended, that as an abstractor defendant was only bound to use reasonable care, diligence, and skill, and that no element of guaranty enters into such employment, we think the count shows a want of reasonable care, diligence, and skill, and that as vendor he did, by his certificate on the abstract, promise and agree that the title was as stated therein. These statements, with that as to the failure of the title and the causes, shows a cause of action against the defendant, not only for failing to exercise reasonable care, skill, and diligence in preparing the abstract, but upon his contract of warranty that the title was as shown in the abstract. It is said that the abstract only covers conveyances, and does not purport to cover anything else. It is certified as being "a full, complete, and correct abstract of all conveyances upon record affecting the same." It was not correct in showing a conveyance of this land to D. W. Inman, norin showing a decree quieting the title in defendant as against Ray Thomas, there being no such conveyance or decree. We think the first count shows a cause of action not only upon an implied contract that defendant had exercised reasonable care, skill, and diligence in preparing the abstract, but upon his promise that the title was as stated therein. We are also of the opinion that the testimony sufficiently sustains the action, as stated in the first count. 2. Proceeding upon the theory that the case was to be submitted upon the first count alone, as charging the defendant with a want of reasonable skill and diligence in preparing the abstract, defendant made several objections to testimony which were overruled. He also offered testimony tending to show how the mistakes as to the title arose, and that he believed that the title was as stated in the abstract. The cause of action being as we have stated, there was no error in overruling these objections, and in excluding the testimony offered. Defendant's liabil ity under the first count in no wise depended upon whether he knew of the defects in the title or not. Appellant complains that the testimony of Warren Walker was not withdrawn. Walker was permitted to testify to a conversation prior to the conveyance to plaintiffs, in which he told defendant about the action then pending against him, by Ray Thomas, to quiet his (Thomas') title to the land. The complaint is that the abstract does not cover suits. It is a sufficient answer to say that it purported to be full, correct, and complete, when it was not. 3. The jury were instructed that, if they found that it was arranged between Schee, Thomas, and Youman that Youman should give Schee $500 worth of barbed wire for the land, and that Thomas should pay Youman $450 in notes and a team of horses therefor, Schee to convey the land directly to Thomas, and all this was one transaction, or that Schee had arranged with Youman for the sale of the land on the condition that the title should be satisfactory to Thomas, and further found that, to induce Thomas to accept the conveyance, defendant showed and delivered to him the abstract of title in evidence, and that Thomas relied thereon, and in pursuance of such inducement paid the $450 in notes and a team for the land, and received a conveyance in pursuance of said agreement, they should find for the plaintiffs. Appellant contends that there was nothing to warrant the court in telling the jury that they might find for the plaintiffs, if, in addition to certain other facts, they found that Schee had so arranged with Youman. If Youman had agreed with Schee to give him $500 in barbed wire for the land, on condition that Thomas was satisfied with the title, and they came together and as one transaction agreed as stated in the instruction, Schee's liability is to these plaintiffs, and not to Youman The foregoing discussion disposes of all exceptions to instructions given and refused, and leads us to the conclusion that there was no error therein. 4. The defendant requested that the following special findings be submitted: "(1) Did plaintiffs, or either of them, buy the land in question from the defendant? (2) Did plaintiffs, or either of them, pay defendant anything for the land? (3) Did plaintiffs, or either of them, pay or promise to pay defendant anything for the abstract of title, or for any opinion or statement concerning the same, or validity of the title to the land?" These requests are not for findings upon any particular questions of fact, but rather for conclusions from several facts. Home Ins. Co. v. Northwestern Packet Co., 32 Iowa, 223. The only conflict as to the manner of the transaction was whether Youman bought from Schee and then sold to Thomas, or whether they three agreed together as one transaction touching payments and conveyances. There was no question as to how the payments were made, nor was it claimed that | plaintiffs paid defendant for the abstract separately from the general transaction. It is not error to refuse to submit to the jury particular questions not ultimate in their nature, or which could not well be considered or answered without danger of confusion and misrepresentation. Phonix v. Lamb, 29 Iowa, 352. The court cannot be required to propound to the jury interrogatories which call for the finding of facts not necessarily determinative of the case. Hawley v. Railroad Co., 71 Iowa, 717, 29 N. W. Rep. 787. We see no error in refusing to submit these questions. Our conclusion upon the whole record is that the judgment of the district court should be affirmed. (80 Iowa, 65) HODGES V. IOWA BARB STEEL WIRE CO. (Supreme Court of Iowa. May 13, 1890.) LETTER OF CREDIT-CONSTRUCTION. Defendant, which had indorsed notes, executed to it by one P., to other persons, by whom they were deposited with plaintiff for collection, gave P. a letter of credit, dated July 14th, which, referring to a letter received from P., recited: "We do not know what notes you refer to, as we do not find any due just at present. We find one due July 6, but, as we have received no notice of nonpayment, we presume it has been paid. We will assist you in taking care of any paper due us, and indorse a blank note for you to sign, and you may draw on us for the amount of the note." Held, that the letter did not authorize P. to draw on defendant for the note of July 6th. Appeal from district court, Marshall county; JOHN L. STEVENS, Judge. Action to recover upon a letter of credit signed by defendant, upon which plaintiff discounted a bill of exchange drawn on defendant, pursuant to the letter of credit. The cause was tried to the court without jury, and judgment was rendered for defendant. Plaintiff appeals. John V. Coon and J. H. Bradley, for appellant. Binford & Snelling, for appellee. We BECK, J. 1. The following facts are established by the evidence: The defendant, in response to a letter written to it, sent a letter dated July 14, 1885, to one Patterson, which is in this language: "Dear Sir: Your favor of the 13 inst. is at hand. do not know what notes you refer to, as we do not find any due just at present. We find one due July 6th, that we discounted in the east, but, as we received no notice of non-payment, we presume it has been paid. We will, of course, assist you in taking care of any of the paper due us, and inclose a blank note for you to sign, and you may draw on us for the amount of the note, less 8 per cent. for the time the note runs. Do not make the note to exexceed five months' time. Trusting this will prove satisfactory to you, we remain, Yours, truly, IOWA BARB STEEL WIRE Co. By R. E. SEARS, President." The letter written to Patterson is not in evidence, nor are its contents shown, further than may be inferred from the letter of credit. Plaintiff was a banker, and held two notes for collection, executed by Patterson to defendant, and by it indorsed to other holders, who had sent them for collection to plaintiff. The notes were in the aggregate for the sum of $756.96. One of them was for $377.96, and became due July 6, 1885, and is the note referred to in the letter of credit. Patterson presented plaintiff the letter of credit, and a draft on defendant, for the aggregate of the two notes, which plaintiff accepted in payment of the notes. Defendant refused to accept and pay the draft. 2. The defendant insists that it was bound by the letter of credit to accept paper only for notes upon which it was lia ble, and that it is not liable on the | notes paid by plaintiff by the draft, having indorsed the notes, and not having been made liable as an indorsee by due notice. We need not determine this defense pleaded by defendant. In our opinion, the decision of this case turns on another defense. 3. The defendant alleges in its answer that it never agreed to accept the draft, nor did it authorize Patterson to draw it. We think the evidence supports this defense. The letter of credit binds defendant to take care of any paper due us." This expression means that defendant will provide for paper which is unpaid, or, as it interprets the expression, paper upon which it is liable. We need not determine which is the true construction of the expression. It surely means that the paper which has been paid is not covered by the language of the letter of credit. It seems to us that this language plainly excludes the note of July 6th. It states that defendant presumes that it is paid; that it is past due, was discounted, and no notice of non-payment had been received. Surely, a business man would be authorized to presume that the note was paid, and that he, as indorser, was discharged therefrom. Patterson and plaintiff must have understood that this note of July 6th was excluded from the contemplation of the letter of credit. It speaks this language: "Paper dne us we will protect, but the note of July 6th we presume is paid, for we have transferred it by indorsement, and it is past due, and we have heard nothing from it. We will accept no draft on account of this note." We are clear in the opinion that Patterson had no authority to draw on defendant for the note of July 6th. We need not inquire as to the other note. The draft was unauthorized, for it was drawn for a purpose not contemplated by the letter of credit. We need not consider questions discussed by counsel which relate to rulings admitting evidence. Had the evidence been excluded, in the view we take of the case the judgment could not have been different. Affirmed. (80 Iowa, 68) STATE V. STOKE. (Supreme Court of Iowa. May 13, 1890.) OPENING HIGHWAYS-REMOVAL OF FENCES-RESISTING TRESPASS. Where a public road is established, and the owner of the land through which it passes is given time to take down his fences across it, a private citizen has no right, before the fences are down and the road formally opened to the public by the supervisor, to undertake to open it himself, and force his way across it. The owner of the land has the right to use sufficient force or threats to resists such an attempt. Appeal from district court, Davis county; H. C. TRAVERSE, Judge. The defendant was accused of an assault by information before a justice of the peace. He was tried and convicted. He appealed to the district court, where he was again tried, with a like result. From a judgment upon the conviction he appeals to this court. M. H. Jones and Henry C. Taylor, for ap | pellant. John Y. Stone, Atty. Gen., for the State. ROTHROCK, C. J. 1. The defendant is the owner of a farm through which a public road was established by the board of supervisors. The defendant filed a claim for damages for that part of his farm taken for the road. He appealed from the amount allowed him by the board, and a trial was had in the district court. After the trial the matter was compromised, and the defendant was paid the amount agreed upon. This payment was made on the 15th day of November, 1888. After that there was no legal impediment in the way of the new road, except that the owners of the farms through which it was established were entitled to a reasonable time to remove their fences from the land over which the road was located. It was in the winter season, and there was delay in the matter. On the 23d day of March, 1889, the defendant had not completed fences along the road through his farm, and there was a fence and a gate on his land across the new road. There had been ill feeling between one Beedle and the defendant about the establishment of the road, and, on the said 23d day of March, Beedle attempted to travel on horseback over the new road, through the defendant's farm. The defendant saw him going towards the gate, and went to him, and, according to the testimony of Beedle, the following interview took place between him and the defendant: "On March 23, 1889, at Drakeville township, I went along the new road, and came up through defendant's field, and when near his house he came at me with his fists drawn. He was mad, frothing at the mouth, and his face all covered with slobbers. He said: You confounded old rebel, I have been watching for you for some time.' He took my horse by the rein, and turned him around. I said I didn't want to go that way. He made a grab at me, and would have caught my leg, if I hadn't moved it back. His wife said something. I couldn't hear it all; part of it was, 'Go back, Beedle.' I said: 'It is not your put in now; it is the old man I have to do with.' Stoke said he'd die there before I should go through his gate. I said I did not want him to die, and turned around and went back. I intended to go back that way, (through the gate.) I said I would ride over the gate if he didn't let me go. Before I got to the gate he was coming at me shaking his fists. I went inside of the stakes, over the new road. Didn't find any fence or ditch in the way, and saw a wagon track along the new road. Fence posts could have been driven any time during the winter. Cross-examination. Can you hear, Mr. Beedle? Answer. What? Question. Did you hear what Stoke said that day? A. Part of it. I couldn't hear what he said before he got to the gate. He was making a good deal of noise. After Stoke got through the gate I was 10 or 15 feet from it. There was a fence across this new road, but the school-children had laid down 3 or 4 panels of it. I intended to go through that gate. I don't think I went around any fence nor around any ditches. Defendant had sent word by Smith to me to have my children shut the gate as they went to school. I said that if the children found the gate open to leave it open. This was the "head and front" of defendant's defense. It is claimed by Beedle that he was unlawfully assaulted. He does not claim that the frothing at the mouth of the defendant, and having his face covered with slobbers, was an assault. But his fists were drawn, and he made a grab at Beedle's leg, and turned his horse away from the gate. Now, it may be conceded that taking hold of a horse, and making a grab for the leg of the rider, would be an assault on the rider, if unexplained. But Stoke claimed that the road was not yet opened, and the evidence shows beyond all controversy that he was correct in making the claim. It was no part of Beedle's duty to open the road. That was the duty of the road supervisor. The supervisor received notice to open the road in the winter, and it was not opened for travel until March 25th, some two days after the alleged assault. The defendant was setting his posts to fence the road on the day of the interview between him and Beedle, and at that time the ground was frozen 10 inches deep. There appears to have been a great deal of evidence on the trial upon the question whether the defendant should not have set his posts and built his fence at some time during the winter, when there was no frost in the ground; and the court instructed the jury that, if he had reasonable time, and failed to open the road, he had no right to resist Beedle, and prevent him from traveling over the road. We think that was not a question for Beedle to determine. He knew the road was not opened for travel through defendant's farm. Upon this question the road supervisor testified as follows: "I examined the ground several times during the winter with a view of working this road, and found it frozen, and attempted three times to work the road, and did open it just as soon as it could be done. When defendant set his posts the ground was frozen 10 inches. This was on the day of the assault, March 23d. There was a rail fence across the road on defendant's land west of the gate, and ditches that could not be traveled across. There was no travel on the new road,-not on the line of the road. A person could not approach this gate from the west without traveling over the private lands of Lockman and Stoke. Beedle was traveling from west, going east. Opened the road on the 25th of March, 1889." The defendant requested the court to charge the jury that "Beedle had no right to take the law in his own hands, and open the road, or force his way over defendant's land. The duty of opening the road belongs to the road supervisor, and not to private citizens. The court refused to give this instruction to the jury. We think that, under the facts of the case, it should have been given. If it had been given, the jury doubtless would have found that the defendant ased no more force and made no more of a 99 (Supreme Court of Iowa. May 14, 1890.) INTOXICATING LIQUORS-ILLEGAL SALES-DrugGIST-EVIDENCE. 1. In an action by the state to recover of a registered pharmacist the penalty prescribed by statute for selling intoxicating liquors to a person in the habit of becoming intoxicated, papers purporting to be applications from such person to defendant for the purchase of intoxicating liquors, which are produced from the county auditor's office, and are testified to by defendant himself, as appearing to be in his handwriting, are sufficiently identified to be admitted in evidence though the usual sworn certificate is not attached, and the deputy-auditor testifies that defendant, in making his reports of sales, always made a sworn certificate. 2. Such applications purported to be signed by J. M., the man to whom defendant was alleged to have made the sales, and who, several witnesses testified, was in the habit of becoming intoxicated. A witness testified that he had seen the person in question write his name once, and, that he thought the signature to the applications was the same. Defendant testified that he had sold liquor to different persons of that name, but to none who were in the habit of becoming intoxicated; that the person in question had several times applied to him for liquor, but he had always refused. Held, that the evidence was sufficient to sustain a verdict against defendant. 3. A motion for a new trial on the ground of newly-discovered evidence is properly denied where such evidence is merely cumulative. Appeal from district court, Polk county; MARCUS KAVANAUGH, Jr., Judge. Action against the defendant, a registered pharmacist, to recover penalties pretoxicating liquors. The petition charges scribed by statute for unlawful sales of inseven sales to one James Murphy, a person in the habit of becoming intoxicated. Defendant answered, admitting that he ing every other allegation of the petition. was a registered pharmacist, and denyTrial to a jury. Verdict for plaintiff for $200. Defendant appeals. Guthrie & Maley, for appellant. Balliet & Stafford, for appellee. GIVEN, J. 1. On the trial, plaintiff was permitted to introduce in evidence, over defendant's objection, several papers purporting to be applications of James Murphy to defendant for the purchase of intoxicating liquors. The ground of defendant's objection was that the documents were not identified as any part of the reports filed with the auditor, by the defendant. The papers are in the usual form of such applications, and are addressed to defendant, and purport to be signed by James Murphy. They were produced by the county auditor, who testified that they came into his possession with the office, that there should be a sworn certificate attached or accompanying them, but that he could not find such a certificate. The deputy-auditor testified that the defendant, in making his reports of sales of intoxicating liquors, always made a sworn certificate, and that, if these papers were filed by defendant, such sworn certificate would have been with them. The defendant, being called by the plaintiff, testified that the exhibits appeared to be in |