street for the first time, changing it from the [ and cutting down of the sidewalk space does natural grade, such property is "damaged" not vary in substance from that given by within Const. art. 1, § 21, providing that pri- the witnesses for the plaintiffs. vate property shall not be damaged for public use without just compensation therefor.

[Ed. Note. For other cases, see Eminent Domain, Cent. Dig. §§ 269, 270; Dec. Dig. $ 101.*

For other definitions, see Words and Phrases, vol. 2, pp. 1820-1822.]

Appeal from District Court, Lancaster County; Cornish, Judge.

Action by William R. Stocking and others against the City of Lincoln. From judgment for plaintiffs, defendant appeals. Affirmed.

C. C. Flansburg, L. A. Flansburg, Fred C. Foster, and D. H. McClenahan, all of Lincoln, for appellant. G. W. Berge, of Lincoln, for appellees.

HAMER, J. This is an action by the owners of lot 20, in block 5, in Vine Street addition to the city of Lincoln, for damages to their property caused by the grading of Vine and Twenty-Third streets in said city. The lot in question is on the northwest corner of the intersection of said streets, and the property faces south. Vine street runs east and west along the south end of the property, and Twenty-Third street runs north and south on the east side of the plaintiffs' lot. The plaintiffs became the owners of the property on or about the 11th day of September, 1907. The grading in question was done by the city in 1910. The record shows that plaintiffs' trees growing between the curb and the lot line on Vine and Twenty-Third streets were dug up and removed, the sidewalk space was lowered from three to five feet below the surface of the lot, and the plaintiffs sustained other damages by reason of the grading in question. There was a trial to a jury and a verdict against the city on which judgment was rendered for the plaintiffs for $425. The city appeals.

[2] It is claimed by counsel for the appellant that there was error at the trial because the court admitted evidence which allowed the jury to consider damages to improvements by reason of the grading of Vine street and Twenty-Third street and the lowering of the sidewalk space and digging up and removing the trees. It is the defendant's contention that "no damage can be allowed, as the city was the owner of the street in fee, and that the trees were the property of the city." As we understand the matter, it is this: When the grading and lowering of the sidewalk space has been done, what is the damage, if any, to the plaintiffs? Section 21, art. 1, of the Constitution reads: "The property of no person shall be taken or damaged for public use without just compensation therefor."

In City of Omaha v. Flood, 57 Neb. 124, 77 N. W. 379, it was held that, where property fronting on a public street is damaged by the method or manner adopted by the authorities of a municipal corporation in permanently grading such street, the corporation is liable to the owner of such property for such damages. In such case the owner's measure of damages is the depreciation in value of his property caused by the construction and permanent maintenance of the grade.

In Bronson v. Albion Telephone Co., 67 Neb. 111, 93 N. W. 201, 60 L. R. A. 426, 2 Ann. Cas. 639, it was held that where an abutting owner has planted trees along the street adjacent to his property, under the terms of a city ordinance pursuant to statutory provisions, a telephone company which removes, destroys, or injures such trees in erecting poles and wires under its franchise is liable for the. resulting damage, even though no unnecessary injury is inflicted. In the body of the opinion in that case it is said: "The right of an abutting owner to maintain shade trees upon or overhanging the sidewalk is general and well recognized."

It is contended that the evidence is insufficient to sustain the verdict. Ida Leinberge testified that after the excavation was made the lot at the intersection of Twenty-Third and Vine streets was about five feet higher than the street. Her evidence is sustained In Slabaugh v. Omaha Electric Light & by the testimony of William R. Stocking and Power Co., 87 Neb. 805, 128 N. W. 505, 30 L. T. J. Hensley, the street commissioner, the R. A. (N. S.) 1084, this court held that the latter fixing the distance at 42 feet. The electric light company was liable to the abuttestimony concerning the damage done is in ting lot owner who plants trees in that part direct conflict. An examination of the rec- of the street contiguous to his lot for all ord fails to disclose any negligence on the damages accruing to the lot by reason of part of the city in the manner of doing the trimming and injuring the trees. Chief Juswork. The grading done seems to have been tice Reese in concurring said: "The trees necessary. It was also necessary to lower were rightfully growing on and in connection the sidewalk. The witness Ida Leinberge with plaintiff's property at the time the altestified that in order to lower the sidewalk leged franchise was granted. According to it was necessary to remove the trees. The the usual course of nature, those trees would assistant engineer, Bates, testified on behalf grow up. As well might defendant have of the city that the grade as made is the chopped them down in anticipation of their proper grade; that the sidewalks were left natural upward growth as to wait until they in good condition after the city completed had become more valuable, and then, withits work. His testimony as to the grading out consent or payment and by the force

and authority of might, practically ruin | wise than decide the reserved question as them. The rights of persons ought to be held just as sacred as the rights of property, and of the single individual as sacred as those of the multitude." Letton, J., in concurring in the conclusion, said, among other things: "I am further of the opinion, to quote the language of the opinion in Southern Bell Telephone & Telegraph Co. v. Francis, 109 Ala. 224 [19 South. 1], 31 L. R. A. 193 [55 Am. St. Rep. 930], that, if the city or other corporation invested with the right of eminent domain, acting under municipal authority, proceeds to cut or trim trees planted on a sidewalk by the owner of abutting property under lawful authority, when no necessity for such cutting exists, or when the cutting clearly exceeds the necessity, and consequential injury results therefrom to such abutting property, the owner will have his appropriate remedy at law, to redress the injury.'"

United Presbyterian Church, 96 Pa. 331; | to the date of its conversion into a paid-up Hendrick's Appeal, 103 Pa. 358. policy of term insurance.

[Ed. Note. For other cases, see Insurance,

Cent. Dig. §§ 194, 936, 939; Dec. Dig. § 368.*] 4. INSURANCE (§ 368*)-PAID-UP TERM IN

SURANCE-EXPIRATION OF POLICY.

[1] Defendant further contends that plaintiffs acquired title to the lot in question since the grade of Vine street was established, and therefore that they cannot recover for Where the contract for paid-up term indamages to their improvements, and in sup-surance is plain and unambiguous, and the port of that contention City of Omaha v. Williams, 52 Neb. 40, 71 N. W. 970, is cited. As we view the record, the city failed to show by any competent evidence that a grade had been legally established on that portion of Vine street abutting on the plaintiffs' lot at any time prior to the time the grading in

question was done. It follows that the rule contended for has no application to the facts of this case.

[3] We have examined the instructions given, as also the requests for instructions which were denied, and the other errors alleged. We are unable to find any alleged error which seems to us to be prejudicial to the rights of the defendant. We are unable to say that the verdict of the jury is wrong. It was upon a conflict of evidence, and apparently the evidence fully sustains it. The judgment of the district court is affirmed.

SEDGWICK and LETTON, JJ., concur in conclusion.

CADY v. TRAVELERS' INS. CO. (No.

17,202.)

parties have agreed as to the date when the policy will lapse, if the death of the assured occurs subsequent to that date no recovery can be had upon the policy.

[Ed. Note. For other cases, see Insurance, Cent. Dig. §§ 194, 936, 939: Dec. Dig. § 368.*] 5. TRIAL (§ 169*)-DIRECTING VERDICT. the plaintiff is not entitled to recover, it is

Where, under the law and the evidence,

error for the trial court to refuse to direct a verdict for the defendant.

[Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 341, 381-387, 389; Dec. Dig. § 169.*]

Appeal from District Court, Douglas County; Sears, Judge.

Action by Ida L. Cady against the Travelers' Insurance Company. Judgment for plaintiff, and defendant appeals. Reversed and dismissed.

Greene & Breckenridge, of Omaha, for appellant. Gurley & Woodrough and T. J. Mahoney, all of Omaha, for appellee.

BARNES, J. Action on a policy of life insurance. A trial in the district court of Douglas county resulted in a verdict and judgment for the plaintiff, and the defendant has appealed.

It appears that, by the policy in question,

'Supreme Court of Nebraska. May 17, 1913.) defendant insured the life of Henry L. Cady

(Syllabus by the Court.)

1. EVIDENCE (§ 383*)-DOCUMENTARY EVI

DENCE.

for the sum of $25,000, payable at his death to his wife, who brings this action. The policy was issued on the 24th day of April, 1893, for the consideration of the application Where the question of a waiver of the con- and the payment of an annual premium of ditions of a policy of life insurance by letters $465.25, payable in advance on the 21st day notifying the assured of a default in the payment of a past-due premium is submitted to of April of each year during the life of the the the jury, the insurer is entitled to intro- assured. The contract was not to take efduce in evidence the whole of the correspond- fect until and unless the first premium was ence between the parties, and it is error to ex-paid while the assured was in good health. clude any part of it which shows the construction of the policy agreed upon by both parties

to the contract.

[Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 1660-1677; Dec. Dig. § 383.*] 2. CONTRACTS (§ 170*)-CONSTRUCTION BY

PARTIES.

The practical interpretation given their contracts by the parties to them, while they are engaged in their performance and before any controversy has arisen concerning them, is one of the best indications of their true intent, and the courts will ordinarily enforce such construction.

The policy further provided that in case of default in the payment of a premium, after the third, the contract should remain in force for the terms specified in the table of paid-up term insurance, indorsed thereon. There was also given the assured the option, upon certain conditions, to take the paidup value of the policy in money, due him at the time of the default, or to consider the policy as converted into paid-up term insurance for the time designated in the table above mentioned. All provisions of the policy which are not involved in this controverSy are omitted from this opinion. It is agreed by the parties that the assured paid A notice sent by an agent of a life insur- nine annual premiums, and then declined ance company to the assured that the annual to make any further payments; that he failpremium on his policy of insurance is past due ed and refused to pay the premium due on and unpaid, with a request for its payment without more, payment being refused, did not the 21st day of April, 1902, and by the terms change the terms of the contract with respect of the policy he was then entitled to a paid

[Ed. Note.-For other cases, see Contracts, Cent. Dig. § 753; Dec. Dig. § 170.*] 3. INSURANCE (§ 368*)-LIFE INSURANCE PAID-UP POLICY.

[2] The rule seems to be well settled that where the parties have acted upon and construed a contract, in the absence of any mistake or misunderstanding between them, the court will enforce such contract as so interpreted. Jobst v. Hayden Bros., 84 Neb. 735, 121 N. W. 957.

up term of insurance for seven years and | serious error." This rule was followed in eight months from the date of his default, Johnson v. Mutual Benefit Life Ins. Co., 143 and if he should thereafter make no other Fed. 950, 75 C. C. A. 22. payments upon the policy his term insurance would lapse on the 21st day of December, 1909. The assured refused to make any additional payments, and departed this life on the 24th day of January, 1910. Suit was brought on the policy by the beneficiary on the theory that the defendant, by sending certain notices to the assured that he was in default of the payment of his annual premium, due April 21, 1902, and requesting its payment, extended the life provision of the policy to June 23, 1902, at which time the term insurance began to run, and therefore the death of Henry L. Cady occurred before and not after his term insurance had expired. The trial court adopted the plaintiff's theory of the case, instructed the jury accordingly, and the plaintiff had the verdict and judgment.

Defendant assigns error for excluding from the evidence the letters of the assured in which he notified the defendant of his refusal to pay the premium due on the 21st day of April, 1902, and in which he declared his option to claim paid-up term insurance for seven years and eight months from that date as indicating the construction of the contract by both the assured and the defendant, and for the refusal of the trial court to direct a verdict for the defendant. The foregoing assignments present the only questions which are necessary for us to determine upon this appeal.

[1] 1. In disposing of defendant's first contention, it is sufficient to say that it appears that the trial court received in evidence the letters of the defendant company by which the assured was notified of his default in the payment of his annual premium due on the 21st day of April, 1902, and in which its payment was requested, but excluded the letter of the assured by which he expressly refused to make the payment, notified defendant of his election to consider his policy converted into term insurance, and stated his understanding of the contract to be that he was entitled to paid-up insurance for a term of seven years and eight months from April 21, 1902. It appears that in reply to this letter defendant assented to that arrangement, and informed the assured that his understanding of the contract was correct. If the effect of this correspondence was to be submitted to the jury as showing waiver of the terms of the policy, it was error to exclude any part of it.

To our minds it seems clear that, if the plaintiff was to rely upon any part of the correspondence between the assured and the defendant, then the jury should have been given the whole of that correspondence, and this assignment of error is well founded.

2. As we view the record, there is no dispute in relation to the facts of this case; therefore the court should determine the main question, and finally dispose of this action, thus preventing further litigation.

It is plaintiff's contention that the defendant waived the conditions of the contract, extended the time for payment, and thereby changed the time from that fixed by the terms of the policy itself to another date at which the term insurance in question commenced to run, by the notices of default and request for payment of the past-due premium above mentioned.

In Parker v. Knights Templars & Masons Life Indemnity Co., 70 Neb. 268, 97 N. W. 281, it was held: "A permanent waiver of a condition in a policy of insurance would not be inferred from occasional indulgences shown a policy holder. No implication of a waiver of the terms of a contract can arise from acts which may be construed as a compliance with such terms."

In Driscoll V. Modern Brotherhood of America, 77 Neb. 282, 109 N. W. 158, it was said: "A waiver of a condition will not be implied from an act not inconsistent with an intention to insist upon performance.”

In Sharpe v. New York Life Ins. Co., 5 Neb. (Unof.) 278, 98 N. W. 66, it was held that the giving of a note extending the time for the payment of a past-due premium, which contained an agreement providing for the forfeiture of the rights of the assured if the note was not paid at maturity, default having been made in such payment, did not operate as a waiver of the terms of the policy providing for forfeiture in case of nonpayment of premiums.

We think this rule is sustained by the great weight of authority in this country. Thompson v. Insurance Co., 104 U. S. 252, 26 L. Ed. 765; Nederland Life Ins. Co. v. Meinert, 199 U. S. 171, 26 Sup. Ct. 15, 50 L. Ed. 139, 4 Ann. Cas. 480.

In Manhattan Life Ins. Co. v. Wright, 126 Fed. 82, 61 C. C. A. 138, the court said: "The practical interpretation given to their con- In Stephenson v. Empire Life Ins. Co. tracts by the parties to them while they are (Ga.) 76 S. E. 592, the question of the effect engaged in their performance, and before of a request for the payment of a past-due any controversy has arisen concerning them, premium was before the court. In that case is one of the best indications of their true the life insurance policy contained a stipulaintent, and courts that adopt and enforce tion that if any premium is not paid on or such a construction are not likely to commit | before the day it is due, or if any note or

obligation that may be accepted by the com- [ As we view the record, this contention is pany for the whole, or any part of the first without merit. Under the terms of the conor any subsequent premium, or any other payment under this policy be dishonored or not paid, on or before the day when due, this policy shall, without any affirmative act on the part of the company, or any of its officers or agents, be annulled and void except as herein provided. It was held that a failure to pay a note for a portion of the first annual premium when the note became due worked a forfeiture of the policy, and that the condition of the policy was not waived by a demand made by the insured after maturity of the note for its payment; the assured having refused such payment.

Upon this question we are not without authority of our own. In Swett v. Antelope County Farmers' Mutual Ins. Co., 91 Neb. 561, 136 N. W. 347, it was held that making a demand for a payment by a mutual insurance company of an assessment upon a policy of insurance subsequent to a loss under such policy, will not be held to be a waiver of its terms in the absence of a plea and proof of payment by the assured of such assessment. Schmedding v. Northern Assurance Co., 170 Mich. 528, 136 N. W. 361, was a case where an insured, upon giving his notes for his annual premium when it became due, was granted an extension of several months, and then failed to pay the notes at maturity. policy lapsed and became void at once. statute provided that every insurance policy should contain a provision giving the insured one month of grace for the payment of every premium after the first year, and the policy conformed to the statute. It was held that the facts in connection with the statute did not entitle the insured to two periods of grace.

His
The

[3] As we view the facts of this case, the defendant's request for the payment of the past-due premium, not complied with, but, on the other hand, which was positively refused, did not have the effect to change the conditions of the policy; and the term insurance provided for thereby commenced to run on the 21st day of April, 1902, and expired by lapse of time on the 21st day of December, 1909. Johnson v. Mutual Benefit Life Ins. Co., 143 Fed. 950, 75 C. C. A. 22; Roehner v. Knickerbocker Life Ins. Co., 63 N. Y. 167; Wilkie v. New York Mutual Life Ins. Co., 146 N. C. 513, 60 S. E. 427; Grattan v. Prudential Ins. Co., 98 Minn. 491, 108 N. W. 821; Rye v. New York Life Ins. Co., 88 Neb. 707, 130 N. W. 434; McLaughlin v. Equitable Life Assurance Society, 38 Neb. 725, 57 N. W. 557.

tract itself the assured was entitled to paidup term insurance for seven years and eight months, in consideration of the premiums that had been paid by him before his default occurred, and the beneficiary was entitled to the same and no greater right. We have seen that the notification that the assured was in default of payment of the premium due on the 21st day of April, 1902, and the request for payment did not change the terms of the policy. Its terms were plain and unambiguous, and were understood alike by both the defendant and the assured. By no act of the defendant or of the assured were the rights of the beneficiary changed, and, the term insurance to which they were alike entitled having lapsed before the death of the assured, there was, at his death, nothing due to his beneficiary.

[5] As we view the case, we are constrained by the authorities to hold that it was error for the district court to refuse the defendant's request for a directed verdict.

The judgment of the trial court is reversed, and as there can be no recovery in this case the plaintiff's action is dismissed. Reversed and dismissed.

HAMER, J., not sitting.

COULTER v. CUMMINGS. (No. 17,240.) (Supreme Court of Nebraska. May 17, 1913.)

(Syllabus by the Court.)

1. TROVER AND CONVERSION (§ 1*)-WHEN ACTION LIES-"CONVERSION."

An action for "conversion" will not lie for the disposition of property which the plaintiff has authorized. If he has an action, it is for the price or value of the property. Conversion, Cent. Dig. §§ 1, 2; Dec. Dig. § 1.*] [Ed. Note.-For other cases, see Trover and 2. MONEY RECEIVED (§ 1*)-EVIDENCE.

In such a case, in order to recover the value of the property, the plaintiff is required to prove that defendant expressly or impliedly agreed to pay him the purchase price, or the

market value thereof.

[Ed. Note. For other cases, see Money Received, Cent. Dig. § 1; Dec. Dig. § 1.*] 3. TRIAL (§ 169*)-DIRECTING VERDICT.

Where the evidence will not sustain a verdict for the plaintiff, it is the duty of the trial court to direct the jury to return a verdict for the defendant.

[Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 341, 381-387, 389; Dec. Dig. § 169.*]

Appeal from District Court, Gage County; Pemberton, Judge.

Action by Robert Coulter against Marion T. Cummings. Judgment for defendant, and plaintiff appeals. Affirmed.

[4] It is contended, however, that the understanding and the acts of the assured and the defendant could not in any manner affect the rights of the plaintiff, who was the E. O. Kretsinger and E. L. Kretsinger, both beneficiary named in the policy, which had of Beatrice, for appellant. Hugh J. Dobbs, of become fixed by the terms of the contract. Beatrice, for appellee.