plaintiffs and their property. The grounds upon which plaintiffs demand relief are (1) that the council were by the statute required to determine in advance the kind and quantity of material to be used in doing the proposed work, and that having failed to do that before advertising for and receiving the bids the contract is void; (2) that the council had no power or authority to tax against the abut-acter of the work, or the material of which ting property the cost of paving the streets and alley intersections; and (3) that the property was not chargeable with the cost of the grading necessary to be done in preparing the streets for the paving.

the kind of pavement it would construct, but | and that the city had no authority to borrow that it might determine that question after in excess of that, and hence the levy for the the bids were received, and hence the action purpose of paying the remaining portion of of the council in accepting the bids for the patented article in competition with others not so protected was not in violation of its provisions. But the case does not determine the question here involved, for as we have seen by its terms the statute does require the determination of the question in advance.

the loan is void. We are of the opinion that this position cannot be sustained. There was no limitation upon the city as to the amount of work it might do in a single year, except such as might arise out of the constitutional limitation upon its power to contract indebtedness, and it was evidently not the intention of the general assembly to create any such limitation by the act in question. It was within its power, then, during any one year, to make improvements to any extent it chose, within the limitation of the constitution, as to the indebtedness it might contract, and the purpose of the act was to provide a means for raising the money to pay that portion of the cost which under existing laws could not be assessed against the abut-, ting property. By its provision the city was allowed to anticipate the revenue to be derived from that source, by borrowing the amount necessary to meet the expenditure, and pledging the tax for the payment of the loan. The language of the section does not

It is insisted, however, that as plaintiffs made no objection until after a portion of the work had been done, and the expense incident thereto incurred, they are now estopped from denying the right of the city to assess their proper proportion thereof against their property. This position is disposed of by the holding of this court in Starr v. Burlington, 45 Iowa, 87. The defect of the proceedings was not a mere irregularity, as in Patterson v. Baumer, 43 Iowa, 477, but was jurisdictional. The counsel omitted to do the acts which under the statute are essential to their power to enter into any contract for the paving of the streets. The power to contract for the improvements must of necessity be acquired before any tax can be lev-limit it in making such loan to the amount ied to pay the expense incurred in making them. Having reached the conclusion that the assessment is invalid for want of power in the council to make it, it becomes unnecessary to consider those objections which go to but a portion of it.

2. In 1882 the city caused a large amount of paving to be done, the cost of which, except the intersections of streets and alleys, was taxed to the abutting property. The cost of paving the intersections largely exceeded the revenue which it would derive from the two-mill levy which it was empowered to make for that purpose, and which it had made for that year. It accordingly borrowed large sums of money for the purpose of meeting the deficiency, and issued its bonds therefor, and for each of the succeeding years it has levied a two-mill tax to pay the interest and principal thereof. One of the objects of this suit is to restrain the collection of that levy for the year 1886. It is provided by the fourth section of the act under which the city assumed to make the levy (chapter 38, Laws 19th Gen. Assem.) that "it shall be competent for any city, authorized by this act to levy such tax, to anticipate the collection thereof by borrowing money, and pledging such tax whether levied or not, for the payment of the money so borrowed, but such money shall be used or appropriated to no other purpose." Other sections of the act provide that the cost of paving intersections, when the cost of other portions of the work is taxed to abutting property, shall be paid out of a general paving fund, which is to be raised by a two-mill tax upon the taxable property within the city. It was contended that the provision quoted above empowers the city only to pledge the money which will be derived from the levy for the year during which the pledge is made,

which would accrue under the levy for a single year, but it is empowered to anticipate the tax before any levy thereof is made. The effect of this provision clearly is to empower the city to pledge the tax to any extent necessary to enable it to meet such indebtedness as it might lawfully incur in a single year. As to that tax, then, the judgment of the district court will be affirmed; as to the special assessment, it will be reversed.

MARTIN v. HAMMOND et al. (Supreme Court of Iowa. Feb. 7, 1889.) APPEAL-WORK AND LABOR-EVIDENCE.

1. Plaintiff sued defendants for money collected by them as her attorneys. Defendants pleaded a and moneys expended. Plaintiff introduced an counter-claim and balance due them for services account rendered by defendants after their last charge for services, showing a balance due by them to plaintiff, which a witness for plaintiff testified was given to him by defendants as a full statement of account, which defendants denied. Held, that there was such a conflict of evidence that a verdict in favor of plaintiff could not be

disturbed.

2. In such a case an instruction that, before defendants could recover against plaintiff for services rendered another, it must appear that plaintiff had assumed the payment thereof for some consideration, or had voluntarily paid the same, is correct. 3. An instruction that defendants must establish any items of their counter-claim which are contradicted, by a clear preponderance of evidence, is correct.

Appeal from district court, Freemont county; GEORGE CARSON, Judge.

The plaintiff, by her petition, demanded judgment against the defendants for $795, being a balance which she claims to be due to her as money collected by defendants for her, and which they refused to pay over. The defendants answered in denial, and set up an account against the plaintiff for legal

services and other items of charge, and demanded judgment against the plaintiff for a balance alleged to be due them. There was | a trial by jury. A verdict was returned for plaintiff for $233, upon which a judgment was rendered. Defendants appeal.

REED, C. J. After the foregoing opinion was filed, defendant filed a petition for rehearing, in which our attention was called to an apparent inaccuracy of statement in the third paragraph of the opinion. It is there stated that the right to sell intoxicating liquors as a medicine was conferred upon

J. M. Hammond and William Eaton, for appellants. Geo. E. Draper and James Mc-registered pharmacists by chapter 83, Acts Cabe, for appellee.

ROTHROCK, J. 1. Certain instructions which the defendants requested the court to give to the jury were refused. Complaint is made of this action of the court. We do not discover any error in this regard. The case was purely one of fact; the only questions to be determined by the jury were the mutual accounts of the parties. The instructions given by the court fairly placed before the jury all the questions in the case.

2. It is claimed that the verdict is without support in the evidence. A careful examination of all the evidence has led us to the conclusion that we cannot disturb the judgment on this ground. The testimony of George Allen, in behalf of the plaintiff, in connection with Exhibit A, to be found on page 37 of the abstract, in our opinion raises a fair conflict with the evidence introduced by the defendants. Affirmed.

STATE v. SALT.

1886, and that they were not required to obtain permits before engaging in the business. The language of the opinion is capable, perhaps, of a broader meaning than was intended. What was meant is that they were not required to obtain permits under the statutes formerly in force, and which continued in force as to all applicants for permission to sell intoxicating liquors for other purposes than as a medicine. But they are required by the express provisions of the enactment of 1886 to obtain permits from the board of supervisors before engaging in the business. This, however, does not detract from the argument of the opinion; for if it be conceded that the construction of section 1540 of the Code contended for by counsel is correct, and that it exempts persons holding the permits there referred to from the penalties prescribed by section 1543 for keeping or maintaining a place where intoxicating liquors are sold or kept for sale contrary to law, it does not aid defendant, for he does not belong to the class exempted. He does not hold the permit there referred to, but the one held by him is of a different character, and was issued under a different statute; and, if he sells for any other purpose than as a medicine, his case is covered by the general pro

(Supreme Court of Iowa. Feb. 9, 1889.) INTOXICATING LIQUORS-PHARMACISTS. A pharmacist holding a permit to sell liquors as a medicine, under Laws Iowa 1886, c. 83, and who sells for other uses, has no such permit' as is re-vision of section 1543. As to such sales, he ferred to in section 1540 of the Code, exempting is in the same condition as one holding no from the provisions of that act sales by persons permit at all. The petition for rehearing holding a permit, and is liable to the penalties pre- will therefore be overruled. scribed by section 1543 for such sales.1

Supplemental opinion, on rehearing. For statement of facts and former opinion, see 39 N. W. Rep. 167.

H. T. Dale, for appellant. A. J. Baker, Atty. Gen., and Benj. Browne, Co. Atty., for the State.

HALL V. JACKSON.

Supreme Court of Iowa. Feb. 9, 1889.)

FORCIBLE ENTRY AND Detainer.

In an action of forcible entry and detainer, a contention by defendant that he is entitled to the possession of the land in controversy, because of a contract by plaintiff to sell it, defendant conceding the title to be in plaintiff, is not prohibited by Code Iowa, § 3620, providing that the question of title shall not be investigated in the action of forcible entry and detainer.

Appeal from district court, Mills county; GEORGE CARSON, Judge.

This is an action of forcible detainer, which was originally brought before a justice of the peace, where there was a trial by jury, and a verdict and judgment for defendant. The

1It is no defense to an indictment for maintaining an intoxicating liquor nuisance in violation of a certain statute that the sales were made under a permit issued to defendant before the act took effect, and which had not at that time expired. State v. Mullenhoff, (Iowa,) 37 N. W. Rep. 329. And the fact that defendant was a pharmacist, and could be punished under the pharmacy statute for misdemeanor, does not protect him from an indictment for nuisance under the statute prohibiting the sale of intoxicating liquor. Id. În State v. Webber, (Iowa,) 39 N. W. Rep. 286, it is held that one who holds a permit to sell liquors for certain, purposes, but who sells for other and unlawful purposes, is guilty of maintaining a nuisance. One who furnishes liquor to persons who voluntarily plaintiff appealed to the district court, where apply therefor, and not on his own prescription as a trial was had without a jury, and a like their medical adviser, cannot defend an indictment judgment was rendered. Plaintiff appeals. for unlawful sale of intoxicating liquor on the ground that he is a practicing physician. State v. E. B. Woodruff, John Y. Stone, and P. P. Cloughly, (Iowa,) 35 N. W. Rep. 652. Where a firm Kelly, for appellant. Watkins & Williams, having a permit to sell liquors in one county takes for appellee. orders by an agent in another county, and the agent testifies that such sales were not considered made until approved by the firm, such sales will be held legal. Gross v. Scarr, (Iowa,) 33 N. W. Rep. 223.

ROTHROCK, J. On the 21st day of December, 1886, the plaintiff, by a written contract

Action by Robert Garvin against James L. Gates on a logging contract. Verdict and judgment for plaintiff. Defendant appeals. R. J. MacBride, for appellant. George L. Jacques and James O'Neill, for respondent.

signed by the parties, leased to the defendant Appeal from circuit court, Clark county; a quarter section of land for one year. At A. W. NEWMAN, Judge. the same time the parties entered into another written contract, by which the defendant had the right to purchase the land at the expiration of the lease, upon certain terms named in the contract. By the last-named contract the defendant was required to make his election to purchase the land on the 21st day of December, 1887; that being the date of the expiration of the lease. The election was to be made by executing a writing in which the terms of the sale should be complied with. At the expiration of the lease the defendant caused the contract of purchase to be prepared, and there is evidence in the case tending to show that late in the evening of the 21st of December he tendered to the plaintiff a compliance with the contract of purchase. It is true the evidence upon the question as to the defendant's election to purchase the land is in conflict, but it is sufficient to sustain the judgment of this court. The contention of the plaintiff is that the defense based upon a contract of purchase cannot be interposed in an action of forcible detainer, because it is provided by section 3620 of the Code that the question of title cannot be investigated in the action. But we think it is quite plain that the defendant did not seek to try titles with the plaintiff. He conceded that the title to that land was in plaintiff. His claim was that he was entitled to the possession of the land, because the plaintiff had contracted to sell it to him. That such a defense is proper, in an action of this kind, see Oleson v. Hendrickson, 12 Iowa, 222, and Jordan v. Walker, 52 Iowa, 647, 3 N. W. Rep. 679. Affirmed.

GARVIN v. GATES.

COLE, C. J. The principal controversy in this case turns upon the question whether the plaintiff performed his contract by delivering the logs which he cut for the defendant into Hay creek in good driving water, landing them so that they could be easily started through the dam in the spring. The defendant claims that he did not thus deliver them, and that, in consequence of the logs being delivered at a wrong place, he was put to great expense in getting them to water where they could be floated down the stream. The agreement is plain, and bound the plaintiff to "deliver the logs into Hay creek, in good driving water, and land them so they can be easily started through the dam in the spring." Was this condition kept and performed by the plaintiff? The contract should be construed in the light of the surrounding circumstances, and the situation of the parties, in respect to the subject-matter about which they were contracting. This rule is familiar in the interpretation of contracts, that the court should as far as possible put itself in the situation of the parties, and see how the terms of the instrument affect the property or subject-matter. 1 Greenl. Ev. § 287. The evidence shows that the logs in question were delivered or landed on Hay creek at an old beaver dam. This beaver dam was a little distance above a flooding dam, constructed to set back the water. The evidence is quite in accord, and conclusive that Hay creek, at the point where the logs were landed, in its ordinary and usual stage of water, really had no good driv

(Supreme Court of Wisconsin. Feb. 19, 1889.) ing water for floating logs; but the water

LOGS AND LOGGING-CONTRACTS-DAMAGES-SET

TLEMENT.

1. In a suit on a contract to deliver logs "into Hay creek in good driving water, and land them so they can be easily started through the dam in the spring," when it appears that the creek in its ordinary stage has no good driving water, but that at high water, by means of a flooding dam, logs can be run from that point, and there is evidence that the logs could have been run from the point at which they were delivered had not the dam below been choked with other logs, the court cannot say as a matter of law that the contract has not been performed.

2. Plaintiff may state his understanding of a con

versation with a witness who has testified to it.

3. Under a complaint counting on a contract and account stated, and an answer alleging breach of the contract, there is no prejudice to defendant in a charge that, if all matters were settled, and defendant, knowing how the contract had been performed, talked over that matter, and the parties agreed as to the amount due, they were bound by the settlement; that, unless they understood that any claim for breach of contract was included in the settlement, such claim stood open and unadjust

ed.

4. There is no error in a charge that, if defendant paid for the completion of the contract more than it was reasonably worth, plaintiff would not be liable for that excess.

which set back from the flooding dam at times of high water was sufficient to enable logs to be run from that point. The court below submitted the question to the jury upon the evidence whether the plaintiff had performed his contract by landing the logs at a place that lumbermen would consider fairly good driving water, and where the logs could be got at with fair facility in the season of ordinary driving water. It seems to us that this was peculiarly a question of fact for the jury.

But one of the main errors relied on for a reversal of the judgment is this action of the court in submitting the question whether the logs were landed in good driving water. It is said the evidence was all one way on that point, and that the court should have determined as a matter of law that the logs were not landed in good driving water within the meaning of the contract. We cannot agree with counsel in that view of the matter. The parties must be presumed to have contracted with reference to the nature of Hay creek in its natural condition. And when the plaintiff landed the logs in the creek as near

the flooding dam as was necessary to enable | knowing just how the logs were landed, had them to be run down the stream when the talked over that matter, and the parties agreed water was set back by the dam in the spring as to the amount due, then they were bound as it usually was, he had performed his con- by the settlement; that no advantage could tract. There is considerable testimony that be taken, but the parties must fully underthe logs might have been run down the chan- stand and agree that any claim for a breach nel of the creek through the beaver dam, had of the contract was included in the matters not the dam below been choked with logs. settled; otherwise such claim was still open So that the difficulty in getting the logs down and unadjusted. This is really all the charge the stream was not because they were not amounts to, and we can perceive nothing in landed in good driving water, but because it unfavorable to the defendant. The defendthe dam was filled with other logs, which pre- ant claimed that he had paid $300 for haulvented these from being driven. We do not ing the logs from above the beaver dam down say that this was the fact, but merely that the creek into good driving water. As to there was evidence tending to prove such a that claim the court charged that, if the destate of things, which it was proper to sub- fendant paid for this hauling more than it mit to the jury with the other circumstances. was reasonably worth, that the plaintiff would So it was impossible to say, as a matter of not be liable to account to him for the full law, that the real obstacle to running the logs amount, but only for what the hauling was was because they were not landed, as the con- fairly worth. We do not perceive any valid tract required, in good driving water; for objection to the rule of damages thus laid there certainly is evidence that they might down. It seems to be founded in good sense, have been driven in the spring from where and accords with principles of justice and they were landed, if the dam below had been equity. Upon what principle could it be free from other logs. So that error cannot claimed that the defendant was entitled to rebe predicated upon the fact that the ques- cover of the plaintiff more for the hauling tion was submitted whether the plaintiff per- than it was fairly worth to do it? It is not formed his contract by placing the logs where to be presumed he would pay more than the they were put by him. If the logs were land- service was reasonably worth, but, if he ed where men in the lumber business, en- should see fit to do so, he ought to bear the gaged in driving logs, would consider there loss. We think the charge is unobjectionawas good driving water in view of the char- ble. These remarks dispose of all the quesacter of the stream and its surroundings, this tions which we deem it necessary to notice. was all that was required by the contract. The judgment of the circuit court is affirmed.

Another error assigned is the ruling of the court in allowing the plaintiff to answer, under objection, the question put to him, in substance, whether he knew the location of the beaver dam in the winter when he was put ting in the logs. It is said it made no difference whether he knew or did not know of the existence of the beaver dam; that he was bound to deliver the logs in good driving water. The counsel on the other side say, in answer to this objection, that the question was not asked to excuse non-performance of the contract, but to explain a conversation that the witness Bailey had testified to, and to show that the plaintiff had not knowing ly landed the logs at an improper place. It seems to us it was competent for the plaintiff to state his understanding of the conversation he had with Bailey, and which the latter had testified to.

The question asked the plaintiff on crossexamination, and ruled out, as to whether he had given the defendant a note for a yoke of oxen purchased in November, 1876, was clearly irrelevant, and properly excluded.

Some exceptions were taken to the charge of the court. In the complaint it was alleged that there was an accounting between the parties in March, 1886, and that a balance of $369 was found due from the defendant to the plaintiff. On the trial there was an effort made to prove a settlement of all matters between the parties. In regard to this account stated, the court, in effect, charged, if all matters were settled, and the defendant,

GOUGH v. ROOT.

(Supreme Court of Wisconsin. Feb. 19, 1889.) ATTORNEY AND CLIENT-APPEAL-Reargument. 1. In an action for services as an attorney, in sation should be conditioned on success, it is error which defendant alleges a contract that compento submit to the jury the question as to what services the contract applied, with no restriction, except that it cannot extend beyond a subsequent tain services rendered before such written agreewritten agreement, where it is admitted that cerment were not included in the contingent contract, and the jury find for defendant. It is misleading, that it is for the jury to determine the extent of also, to charge subsequently, without limitation, such contingent contract, if made.

2. Failure to move for reargument, within the period fixed therefor, by rule 20, Sup. Ct. Wis., is not excused by affidavits, by which it is sought to convey the idea that the applicant was inaccessible to his attorney by reason of diphtheria in his family, where it is proved that he was in the city near which he lived, and which was his postoffice address, several times during such period.

On motion for leave to move for reargument.

The opinion delivered on the original argument is reported in 40 N. W. Rep. 647. John Randall, for motion. Arthur Gough, opposed.

LYON, J. The judgment of the circuit court herein was reversed December 4, 1888. On January 18, 1889, defendant's attorney served on the plaintiff notice of a motion for February 1st for leave to move for a reargu