He also testified that some der it. The only present right of defendants in the farm under the contract is the right to occupy and cultivate it according to the terms of the agreement. But the ownership of the property has not yet accrued to them. against his will. For a breach of an undertaking of that kind the parties would be left to their remedy at law. But the contract was valid. It had a lawful object, and was certain and definite in its terms; and, when fully performed, a court of equity would enforce the rights of the parties under it. Franklin v. Tuckerman, 68 Iowa, 572, 27 N. W. Rep. 759. There is no question in the case as to a breach or termination of the contract. Plaintiff's contention is that no such contract ever was entered into; not that there has been a tween them. months after that contract was entered into he promised that if defendants would remain on the farm during his life-time and that of his wife, and would care for them in case they should come to require care and atten- 3. It was contended that the agreement, tion in their old age, that he would give de- from its nature, being for personal services fendant Esther as her share of his estate an and care, is necessarily determinable at the undivided one-half of the farm, while defend- election of either of the parties, and that upant George L. testified that the agreement on its determination the remedy of the one entered into in April was substantially as al- aggrieved is in an action for damages. It leged in the answer, and that the arrange- is probably true that while the contract rement with reference to the personal property mained executory a court of equity would not and the payment of the debts was subse- decree specific performance. A court could quently entered into. On this question of not enforce an undertaking to render perfact we think the preponderance of the evi-sonal service or care to another. Nor could dence is with the defendants. If the case it compel the other party to such a contract depended on the direct testimony of the two to receive the attention or service of another witnesses, who alone have personal knowledge of the transaction, it could hardly be said that either claim was established; for, while they appear to be equally candid and creditable, there is a direct and positive conflict in their testimony. We think, however, that defendant is corroborated by the action and conduct of the parties subsequent to the making of the contract. There never has been any division of the proceeds of the farm, or any accounting between the parties with reference to it. Defendant has carried on the farm, employed and paid the help, dis-breach by defendants, or that he has termiposed of the produce, and applied the proceeds in payment of the expenses and for the support of his family, giving to plaintiff, from time to time, such amounts as he required for his own use. He has also devoted to the same use means of his own not derived from the farm, amounting in the aggregate to a considerable sum. He has also expended nearly $1,000 in permanent improvements on the farm, the amount being derived from the sale of the produce and stock from the place. No account of the receipts and expenditures has ever been kept by either of the parties; nor did plaintiff at any time make any objection to the manner in which the business was being conducted, or any demand for a different application of the proceeds. These facts are strongly corroborative of defendants' claim. They are also quite inconsistent with that asserted by plaintiff, and, when considered in connection with the direct testimony, they lead us to the conclusion that the contract was as claimed by defendants. 2. It does not follow from our finding of fact, however, that defendants are entitled to the affirmative relief demanded in their answer. The contract was executory in all of its provisions. Defendants were to render the services contracted for during the lifetime of plaintiff and his wife. As part compensation for the services, defendant Esther F was to receive an undivided one-half of their farm. She did not become the equitable owner of that interest upon the making of the contract, but will be entitled to receive that interest only when she and her husband shall have performed their undertakings un nated it. Upon that state of facts it is clear that a court of equity will not grant him the relief demanded. We do not determine whether he has the right to terminate the contract or not; but, if that right should be conceded to him, he could exercise it only upon payment or by offering to pay the damages which defendants would sustain in consequence of such termination. But he has neither paid nor offered to compensate defendants for the services they have rendered under the contract, nor does he allege that the compensation which they have received in the enjoyment of the property is adequate compensation to them. The contract, therefore, remains in full force, and the courts cannot award the measure of relief which would be due him only in case of its termination, which is the measure of relief demanded. The judgment will therefore be reversed, and judgment will be entered in this or the district court, as the parties may elect, dismissing the petition. DEERE et al. v. WOLF et al. (Supreme Court of Iowa. Feb. 1, 1889.) ATTACHMENT-EVIDENCE-INSTRUCTIONS-APPEAL. claiming to have purchased the attached property 1. In an attachment suit, a bank intervened, of defendant in payment and satisfaction of all claims held by it against him. The president of the bank, in his testimony with regard to the sued to defendant a certificate of deposit to reptransaction with defendant, stated that he had isresent the difference of certain accounts, and thereupon he was asked: "How did you make your deposit account balance?" Held, that the question was properly admitted, the issue involved being as to the good faith of defendant and inter 3. And of statements of the president advising a creditor of defendant to garnish the bank, as this tended to show that intervenor did not purchase the property. 4. It was admissible to show the amount realized from the sale of the property, since this tended to show its value, and might have some bearing in determining the bona fides of the transaction. 5. The court need not, in a single instruction, give all the rules upon the subject of the instruction, when such rules are sufficiently presented in succeeding instructions. 6. Error cannot be predicated upon the failure of the court to give an instruction which was not asked for. venor in the alleged payments made by defendant. | 2. The president of the intervenor was ex2. Evidence was also admissible of conversations amined as a witness, and testified to transachad by a witness with the president of the bank after the alleged transfer of the property, in which tions of the bank in connection with the he, in effect, stated that the property was held as claim it held against Wolf, and the transfer security. ment is not clear, and need not be repeated. of property in payment therefor. His stateHe states, among other things, that in the transaction he issued a certificate of deposit for $5,000, which, as he says, was given to represent the difference of certain accounts. Thereupon he was asked this question: "How did you make your deposit account balance?" His answer is in these words: "I cannot explain to you the book-keeping. That balances itself. If you take off $5,000 bills receivable, and write a certificate of deposit for $5,000, that balances." Counsel 7. Plaintiff's answer to intervenor's petition al- now insist that the evidence was erroneously leged that the purchase of the property was void admitted. The issue involved the good faith as to plaintiff, for the reason that it was made of the alleged payments made by defendant, with the intent of defendant and intervenor, and all parties participating therein, to hinder and de- and whether the transaction was, on the part lay creditors of defendant. The court charged the of the intervenor, with the purpose of delayjury that, as there was no evidence of a conspiring and defeating creditors. It was proper acy, the questions relating thereto were withdrawn from their consideration. Held, that this in- for the plaintiff to demand a full disclosure struction did not withdraw the issue of fraud from of all the transactions, to the end that it the consideration of the jury. could be determined whether they were honest and fair, whether there was an actual payment of the intervenor's claim, and the purpose with which it was paid. It appears to us the answer tended to throw some light upon these matters. The evidence was therefore rightly admitted. 8. The fact that the court renders judgment against a party for a sum less than the amount of the verdict affords him no ground for appeal. Appeal from district court. Adams county; R. C. HENRY, Judge. Action by attachment. The intervenor claims certain goods attached. The issues arising upon this claim are involved in this appeal. The cause was tried to a jury, and a judgment had for plaintiffs. The intervenor appeals. The case has before been in this court. See 65 Iowa, 32, 21 N. W. Rep. 3. Certain conversations were had by a witness with the president of the bank after the alleged transfer of the property, in which he, in effect, stated that the property was held as security. To this evidence objections were made. We think they were rightly overruled. It was proper to determine just what interest the bank claimed to have in the property. This statement of its chief officer, who was authorized to speak for the bank, is competent as tending to show that interest. 4. A witness testified that an attorney, who had taken a mortgage to secure another bank, testified that he had no authority to do So. The evidence was objected to on the ground of irrelevancy and immateriality. The attorney had before testified in this case, upon his cross-examination, that he had not testified as stated. The evidence was properly received to contradict and discredit his testimony, if it was competent for no other purpose. Objection is made to a question asked another witness, but the abstract fails to show that the question was answered. No error is therefore shown. 1. The intervenor claims to be the absolute and unqualified owner of certain personal property which plaintiff caused to be seized upon an attachment in this case. This claim of ownership is based upon a transfer by the defendant to the intervenor of property of considerable value, in payment of an indebtedness from defendant to the intervenor. Plaintiffs claim that this transfer is void, for the reason that it was made in pursuance of a contract "to stifle, hinder, and 5. Other testimony as to the statements of prevent a prosecution against defendant for the president of the intervenor, advising a the crime of forgery," and for the further creditor of the defendant to garnish the bank, reason that it was made with the intention was admissible, on the ground that it tended of defendant, and all persons participating to show that the intervenor did not purchase therein, to hinder, delay, and defraud the the property. creditors of the defendant, among whom were plaintiffs. The intervenor claims to have purchased the personal property of defendant Wolf in payment and satisfaction of all claims held by it against him. 6. Evidence was admitted, against the intervenor's objection, tending to show the amount realized from the sale of the property. This evidence tended to show the value of the property, which might have some bear ing in determining the bona fides of the trans- | structions relating to that issue were erroneaction. 7. The court, in an instruction, directed the jury that, before they could find the sale fraudulent, it should be made to appear that the price paid by the intervenor was in excess of the real value of the property. This instruction is now complained of. It was doubtless given through mistake, into which the court may have been led by an instruction asked by the intervenor conveying the same thought. But the error of the instruction is plainly to the advantage of the intervenor. He cannot, therefore, complain of it. 8. Objections are made to one or more of the instructions on the ground that there was no evidence to which they are applicable. We think the objections not well taken. One of these instructions was to the effect that, if the intervenor held possession of the property as agent of defendant, he cannot defeat the attachment. An inference may be drawn from the declarations of the president of the bank that a garnishment process would avail a creditor, and that the bank did not hold the property claiming it as an owner, but rather as an agent. The question whether the property was held by the bank as an owner or bailee is raised by the pleadings. 9. An instruction (the eleventh) directed the jury, among other things, that an intention, by withdrawing property from the reach of creditors, to defeat the recovery of their debts, is fraudulent. Counsel for intervenor complain that the instruction does not present the rules allowing a vigilant creditor to take property in payment or security of his debt; but these rules are sufficiently presented in succeeding instructions. It cannot be expected that all rules upon a subject can be given in one instruction. 10. Objections to another instruction (the fourteenth) are based upon the ground that it fails to present the rule that the bank cannot be bound by the acts or knowledge of its agents, unless done and obtained while acting within the scope of their authority. We think it was not necessary, for the correct determination of the case, to present this rule to the jury. If the intervenor's counsel so thought, they should have asked for an instruction presenting the rule. As they failed to do this, they cannot now complain. 11. A paragraph of the answer of plaintiff to the intervenor's petition alleges that "the purchase of the property is void, as to plaintiff, for the reason that the same was made with the intent of Wolf and the intervenor, and all parties participating therein, thereby to hinder, delay, and defraud the then existing creditors of Wolf, of whom plaintiff was at that time one." 12. The court, in an instruction, informed the jury that, as there was no evidence of a conspiracy, the questions relating thereto were withdrawn from their consideration. Counsel now insist that after the last instruction no issue of fraud remained for the determination of the jury, and therefore in ously given. But it will be observed that plaintiff's answer, above quoted, does plead fraud. It cannot be understood as alleging a conspiracy, but rather a fraudulent purpose on the part of all persons participating in the purchase. The issue as to the fraud remained in the pleading. 13. Counsel for the intervenor complain of alleged misbehavior of a counsel for plaintiff in his statement of the case to the jury, in that incorrect statements and claims as to the facts of the case were made by him. We think the objection is not well taken. It is probable that counsel failed to state accurately the facts of the case, and was free in his inferences drawn from the facts; but we think he did not so far transgress in this regard as to require the reversal of the judgment. 14. It is urged that the general verdict and special findings are not supported by the evidence. It is a case of the conflict of evidence, and the familiar rules recognized by this court applicable thereto will not permit us to disturb the judgment on this ground. 15. The court rendered a judgment for about $31 less than the amount of the verdict, which is now made a ground of complaint. But surely this is an error, if it be an error, of which the intervenor cannot complain. The judgment is a charge on the property claimed by intervenor, and, as it is less than the sum for which it could or should have been rendered, it is not an error of which the intervenor can complain. We have considered all questions discussed by counsel, and reach the conclusion that the judgment of the district court ought to be affirmed. KAVALIER et al. v. MACHULA et al. APPEAL-EQUITY-PLEADING. 1. Under Code Iowa, § 2742, requiring the evidence in an equitable action to be certified by the judge at any time within the time allowed for an appeal, and made a part of the record, where the translation of the short-hand reporter's notes in such action is not filed, though certified by the judge, within six months, (the time allowed by section 3173 for an appeal,) the evidence will not be considered on appeal. 2. Where it is contended on appeal that a party is a minor, and that no relief should be granted as against him, not having made defense by guardian, but there are no averments in the pleadings, or competent proof in the record, that he is a minor, tent to make his own defense. it will be presumed that he is of age, and compe 3. An answer cannot be said to contain a counter-claim, so as to necessitate a reply, where a decree in favor of defendants on the allegations of the petition would give them all the relief which they would obtain on the averments of their answer. Appeal from district court, Tama county; J. L. STEVENS, Judge. This is an action in equity, brought for the cancellation of an agreement in regard to real estate, to quiet title, and for an accounting. | nies that the plaintiff, Joseph, purchased the A decree was rendered in favor of the plaintiffs. Defendants appeal. Rickel & Crocker, for appellant. Caldwell & Drahos and Struble & Stiger, for appellee. land, and alleges that it was purchased by Joseph, the son, and denies most of the allegations of the petition. In a portion of the answer entitled "Second Division," the defendants set out substantially the oral agreeROBINSON, J. The petition alleges that in ment pleaded by plaintiff, and allege that the year 1867 the plaintiff, Joseph Kavalier, after the death of Joseph, Jr., the plaintiff, purchased the 120 acres of land therein de- Joseph, and defendant Kate, with the knowlscribed; that he paid down one-fourth of the edge and consent of the wife of the father, purchase price, and gave his note for the re-entered into an agreement in writing, wheremainder; that thereafter the plaintiffs, who by defendant Kate was to succeed to the were then and are now husband and wife, rights and obligations of her deceased husimproved said land, erected thereon a dwell-band, under the said oral agreement; that ing-house, and made it their homestead; that, under said written agreement defendant Kate while it was their homestead, the plaintiff, remained upon said premises, and performed Joseph Kavalier, alone made an oral agree- her obligations thereunder, until April, 1876, ment with his son Joseph, whereby the lat- when she was driven away by plaintiffs, and ter was to become the owner of the land, prevented from fulfilling on her part the conupon condition that he should improve all of ditions of her said agreement. The defendit not then improved, and pay the unpaid ants ask that this agreement be established; portion of the purchase price, and deliver to that the land be declared to be the property his father one-fourth of all crops raised there- of defendants Kate and Julia at the death of on during the life-time of the father, and also plaintiffs; and for general equitable relief. allow him to retain thereon two cows, and By an amendment to their answer defendants occupy two rooms in the house; and that, in allege that, ever since the entry of the judgcase the wife of the father should survive ment and decree referred to in the petition, him, she was to succeed to his right to a plaintiffs have occupied the premises in conshare of the crops and other privileges named. troversy, and enjoyed all the rents and profThe petition further states that in 1875 the its arising therefrom, amounting, in the son died, and left surviving him the defend- aggregate, to much more in value than oneant Kate-who afterwards married her co-de-fourth of the crops which might have been fendant, John Machula-and two children, raised thereon; that after the decree was renof whom defendant Julia only is now living; that since the death of the son Joseph the covenants to be kept by him have not been performed by any one; that defendants have abandoned the premises; that the son failed to pay the balance of the purchase price, and that the same was paid by his father; that in the fall of 1875 the father brought suit against the administrator of the estate of his son, the defendant Kate, and her children, 1. The abstract of appellants, and the adto recover the portion of the purchase price ditional abstract of appellees, show that the which the son had neglected to pay, and for case was submitted on the 28th day of Octoa specific performance of the oral agreement ber, 1887, and by consent taken under adwith the son; that in said suit the father re- visement by the court, to be decided in vacacovered judgment for said portions of the tion; that the decree was made of record on purchase price, with interest, and obtained a the 8th day of February, 1888; that the shortdecree for specific performance of said agree-hand reporter's notes of the trial were filed in ment; that the premises were sold to satisfy the judgment, and that redemption was afterwards made from said sale by the payment to the proper clerk of $521.50, which still remains in his hands; that, notwithstanding the facts aforesaid, defendants have neglected and refused to perform said agreement, and comply with the decree of court. The plaintiffs tender to defendants so much of the redemption money in the hands of the clerk as they shall be found entitled to receive, and ask that the oral agreement between the father and son be annulled; that plaintiff, Joseph Kavalier, be decreed to be the owner of the premises in fee-simple; and that his title be quieted as against defendants, and that an accounting be had, and that general equitable relief be given. The answer de dered, and the premises were sold, defendants redeemed from the sale; and that plaintiffs are now estopped from claiming a forfeiture, or asking a rescission of the agreement. The court found plaintiffs entitled to the special relief demanded, and rendered a decree accordingly, and awarded to defendants the redemption money in the hands of the clerk. the proper office on the 28th day of October, 1887, but were not certified by the short-hand reporter, nor by the judge before whom the cause was tried; that the translation of the short-hand reporter's notes was certified by the judge on the 21st day of May, 1888, but was not filed in the office of the clerk of the court until the 21st day of August, 1888. No errors have been assigned by appellant, and this case is only triable by this court de novo, if it can be here tried. Appellees object to a consideration of the evidence on the ground that it was not made a part of the record, as required by law. Section 2742 of the Code requires that in equitable actions, wherein issue of fact is joined, all the evidence offered in the trial "shall be certified by the judge at any time within the time allowed for the ap tained on the averments of their answer. Walker v. Land Co., 66 Iowa, 752, 24 N. W Rep. 563. Therefore they are not entitled to any relief on the pleadings. 3. Appellants insist that no relief should be granted as against defendant Julia Kavalier, for the alleged reason that she is a minor, and has not made defense by guardian. We have examined the record, but fail to discover any averments in the pleadings or competent proofs in the record that she is a minor. We must therefore presume, for the purposes of this case, that she is of age, and competent to make her own defense. The decree of the district court is affirmed. THOMAS v. MCDANELD et al. (Supreme Court of Iowa. Feb. 2, 1889.) APPEAL-RECORD-REVIEW. 1. Under Code Iowa, § 2742, requiring the evidence in an equitable action to be certified by the judge at any time within the time allowed for appeal, and be made a part of the record, a transla tion of the short-hand reporter's minutes in such an action, not filed within six months from the rendition of the decree, (which is the time allowed for an appeal by section 3173,) will be disregarded. Following Kavalier v Machula, ante, 590. peal of said cause, and be made a part of the record, and go on appeal to the supreme court, which shall try the cause anew." It has been held that this provision requires that the translation of the short-hand reporter's notes be filed within six months from the rendition of the decree. Arts v. Culbertson, 73 Iowa, 14, 34 N. W. Rep. 490. Appellants contend that the time of filing is immaterial. It is true that some of the language used in the opinion in Runge v. Hahn, 38 N. W. Rep. 389, relied upon by appellants, considered apart from the facts in that case, seems to sustain their position. But it will be observed that the time of filing the certified translation of the short-hand reporter's notes was not involved in that case, nor was it considered by the court. The question decided was the sufficiency of the judge's certificate to identify the evidence offered, and it was said to be the object of the statute to secure the identification of the items of evidence offered by the trial judge. No purpose to overrule any decision of this court was indicated. The provisions of section 2742, quoted, that the evidence offered "shall be certified by the judge, and be made a part of the record," shows clearly that the certification of itself does not make the evidence a part of the record. It is well known that in ordinary practice the person who desires to use the translation procures it, and presents it to the judge for certification. When certified, it is usually returned to the person who presented it, and in that case remains his property until he files it in the proper office. Until it is so filed, no one but himself has any right to possess or control it. Should he decide to withhold it from the record, no one would have any just ground for complaint. Of course, what we have said in regard to this does not apply to documents or other proper-ants costs ty which belong to another person, or which have become so far a part of the record that they cannot be withdrawn without an order of the court. We conclude that the transla- ROBINSON, J. 1. The abstract of appeltion and certificate in question were not filed lant was served on the 8th day of September, within the time required by statute, and that 1888. On the 5th day of the next month the the evidence which it was intended to iden-appellees served a denial of the correctness tify thereby must be disregarded. * ** * 2. No reply to the answer was filed. It is contended by appellants that their answer contains a counter-claim, and that they are entitled to judgment thereon by reason of the failure of plaintiffs to plead thereto. We are satisfied that the answer was not drawn, and that the case was not tried in the district court, upon that theory. The affirmative matter pleaded in the answer was designed to show a defense to plaintiff's claims, rather than to lay the foundation for affirmative relief. A decree in favor of defendants, on the allegations of the petition, would have given them all the relief which they could have ob 1Sec. 3173. Appeals from the district courts may be taken to the supreme court at any time within six months from the rendition of the judgment or order appealed from, and not afterwards. 2. A denial of the correctnesss of appellant's ab stract will not be disregarded because not served within the time fixed by Rules Pr. Sup. Ct. Iowa, § 19, where the final submission has not been retarded thereby. 3. A judgment of the district court in an equitable action will not be reviewed where no errors are assigned. Appeal from district court, Linn county; J. H. PRESTON, Judge. Action to set aside certain mortgages, and to subject real estate to the payment of a judgment. After the hearing in the district court judgment was rendered dismissing the petition of plaintiff, and awarding to defendPlaintiff appeals. Rickel & Crocker, for appellant. Davis & of appellant's abstract. Appellant objects to this denial on the ground that it was not served within 10 days from the time when counsel for appellees received the abstract, as required by section 19 of the rules of practice of this court. It is not our practice to disregard an additional abstract filed after the time fixed by the rule, although a case might arise in which we would be justified in doing so. See Fowler v. Town of Strawberry Hill, 74 Iowa, 645, 38 N W. Rep. 521. All the relief to which appellant is entitled in such cases can usually be given by taxing costs against appellee, or imposing other terms upon him. In this case the final submission in this court does not seem to have been retarded by the delay in serving the additional abstract, and it must be considered on its merits. |