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assumes the existence of facts not disclosed | principal enters into an enforceable contract, by the record. He says that at the time the contract was entered into between Parsons and the defendant the defendant had a cash deal pending with another party, and that the clause in the contract reserving to defendant the right to cancel was inserted there because of the existence of such pending deal; that immediately after canceling the contract he entered into a contract with other parties to sell the land to them for cash, and that by reason of that fact Parsons placed his contract on record; that the defendant waited until March 4th, and then tendered to the Pogues the balance due upon their contract, and demanded a deed; that the Pogues had conveyed their land to the Building Company and were unable to make the deed; that the defendant tendered to the Building Company the amount due from him on the Pogues contract, and demanded a conveyance of the property to him, which was refused by the officers of the company; that the Pogues sold the farm to the Building Company in order to settle the lawsuit with defendant.

We find no evidence of these facts in the record, and, if they are true, counsel must have drawn on his knowledge of facts outside the record to justify the statement, or perhaps this is counsel's inference from the record as made. But, even if the record did show, as claimed by defendant, yet we think the case ought to be reversed, for the reasons hereinafter stated.

Coming back to the original proposition, what was the contract between the plaintiff and defendant? It was to the effect that if the plaintiff procured a purchaser for the land in question, or the defendant's interest in the land in question, on terms satisfactory to the defendant, or would procure one who would trade for defendant's land on terms satisfactory to the defendant, the defendant would pay the plaintiff the stipulated commission. It appears that the plaintiff produced Parsons; that Parsons entered into negotiations with the defendant for the purchase of the land in controversy on terms satisfactory to the defendant; that the negotiations resulted in the contract hereinbefore set out; that defendant subsequently refused to carry out the contract; that Parsons brought an action to enforce the specific performance of the contract; that the contract made with Parsons was an enforceable contract as between Parsons and the defendant; that Parsons was ready and willing to perform it on his part; that he demanded a performance and sought to have it enforced. [1-3] The law that governs the parties under such circumstances is as follows: When an agent contracts to procure a purchaser for his principal who will purchase on terms satisfactory to the principal, and thereupon produces a purchaser who is ready, able, and willing to purchase on terms satisfactory to the principal, and with whom his

the agent has earned his commission, even though the contract is afterwards canceled by his principal without the consent of the agent. That, under a contract of agency like the one in question, if the agent produces a purchaser for his principal who at the time is ready, able, and willing to buy, and he enters into a contract for the purchase on terms satisfactory to the principal, although in the contract so entered into there is a provision that the principal may terminate the contract within a certain time, if he so elects, the agent has earned his commission, even though the principal afterwards elects to avail himself of the provisions of the contract and cancels the same. This is true because the agent has done all that was required of him to do under the terms of his contract, and the principal may enforce it, or elect to cancel it at his option. The right of the agent to his commission is in no way af fected by the conduct of his principal to which he has not consented subsequent to the execution of the contract of sale. It has been further held that, where the vendor of land enters into a contract of sale with a competent purchaser produced by a broker or agent, the subsequent inability even of the vendor to convey title by reason of which the contract is not performed does not release the principal from the obligation to pay the agent his commission.

In Willes v. Smith, 77 Wis. 81, 45 N. W. 666, we find this language used in a case similar to this: "If the title was good, the vendees were absolutely bound to accept the property and pay the purchase price, unless the vendor elected to waive a performance on their part and retain the money. We have no doubt that, under this contract, the defendant herein could have enforced a specific performance of the contract had he seen fit to do so. The option given him to terminate the contract was for his benefit solely. The vendor elected to waive performance on the part of the vendee and retained the amount stipulated as liquidated damages, and the contract was never performed between the vendor and the vendee. The court says: "It appears, therefore, that the plaintiff procured a person willing and able to purchase the property on the terms fixed by the defendant, and consequently earned his commission."

In Francis v. Baker, 45 Minn. 83, 47 N. W. 452, the Minnesota Supreme Court used the following language in respect to a transaction similar to the one before us: "Where a person agrees with a real estate broker to pay him a commission if he procures a purchaser * on specified terms, the broker, in order to entitle him to his commission, is bound to present a purchaser who is ready, able, and willing to buy on the proposed terms, and the principal is not bound to accept a proposed purchaser unless he is able to perform the contract on his part

according to the proposed terms.

v. Johnson, 68 Pa. 43. See, also, Lockwood It is for the principal then to decide whether v. Halsey, 41 Kan. 166, 21 Pac. 98, in which the person presented is acceptable; and if, without any fraud, concealment, or other improper practice on part of the broker, the principal accepts the person presented, either on the terms previously proposed or upon modified terms then agreed upon, and enters into a binding and enforceable contract with him for the purchase of the property, the commission is fully earned. The party presented is then a purchaser within the meaning of the contract between the principal and the broker, although the sale is not completed"-in support of which see Rice v. Mayo, 107 Mass. 550; Pearson v. Mason, 120 Mass. 53; Keys v. Johnson, 68 Pa. 43.

it is said: "The rule seems to be well settled
by authority and good reason that, to enti-
tle a real estate agent to his commission in
a sale or exchange of lands, it is only neces-
sary for him to furnish a purchaser who is
willing to purchase or exchange upon the
terms and conditions agreed to
* by
the seller. This would prima facie entitle
the agent to receive a commission. Where
such a proposition is not accepted by the
owner of the land, then, before an agent can
recover his commission, he must still further
show that the purchaser he has found is
willing and able to purchase or exchange up-
on the terms offered by the owner of the land.
*
* But where they are brought to-
gether in person," a purchaser and seller,
and "the purchaser is accepted and the ex-
change is authorized," the commission is
earned, "although afterwards it may turn out
that there is a defect in the title and qual-
In this case-

In Knapp v. Wallace, 41 N. Y. 477, where
a broker was employed to find a person to
convey land to be paid for in money, and in
Kalley v. Baker, 132 N. Y. 1, 29 N. E. 1091,
28 Am. St. Rep. 542, where a broker was
employed to find a person to convey land, to
be paid for by a conveyance of other land-ity or condition of the land.
that is to say, to effect an exchange-it was
held that, where the principal makes a valid
agreement with a customer produced by a
broker, the broker has earned his commission,
even if it turns out that the customer cannot
make a good title, and the land is not con-
veyed, provided the broker acted in good
faith in the matter.

Halsey [the defendant] accepted the trade, directed the exchange of papers with a full knowledge of all the facts possessed by Lockwood [his agent]." This rule is based upon the theory that the agent acted in good faith in the transaction, and without fraud or deceit or concealment from his principal. In: support of this doctrine, see McGavock v. Woodlief, 20 How. 221, 15 L. Ed. 884; Everhart v. Searle, 71 Pa. 256.

In Wenks v. Hazard, 149 Iowa, 16, 127 N.. W. 1099, the principal agreed with his agent that he would give him $2,000 if he would find a purchaser for the principal's property who was satisfactory to the principal, or to whom the principal was willing to sell. That thereafter the agent produced a purchaser who was satisfactory to the defendant, and to whom defendant sold his property. The court in deciding that case said: "The case at bar belongs" to a class by itself. "Here the terms of sale were not fixed in advance by the owner, and therefore it was impossible for the plaintiff to know what they were or might be. The terms and conditions of the sale being expressly reserved for determination by the owner, it is manifest that the agent or broker cannot know whether the purchaser can or will accede to the terms. fixed" upon by the owner. "The owner reserves the right to and determines the ability of the purchaser to pay or to comply with other terms which he may fix, and it would be manifestly unjust to say to the broker that his commission must depend upon the correctness of the owner's judgment or abil ity."

In Roche v. Smith, 176 Mass. 595, 58 N. E. 152, 51 L. R. A. 510, 79 Am. St. Rep. 345, a case in which a broker was employed to get a customer to buy and pay for his principal's land, and it turned out that the customer is not able to pay for the land, it is settled that his inability to do so does not deprive the broker of his commission, provided the principal made a valid and binding agreement for the sale of the land with the customer produced by the broker. In support of this see Ward v. Cobb, 148 Mass. 518, 20 N. E. 174, 12 Am. St. Rep. 587, and it is said: "The ground upon which this is settled is that, by entering into a valid contract with the customer produced by the broker, the principal accepts the customer as able, ready, and willing to buy the land and to pay for it. But, if the principal did not accept the customer produced by the broker, the burden would rest upon the broker to show that the customer so produced by him was able; and in such a case, if it turned out that the customer produced by the broker is not able to pay and does not pay for the land, the broker has not performed his contract, and has not earned his commission. It is only in cases where the principal accepts the customer by entering into a valid contract with him that it is In Nagl v. Small, 138 N. W. 849, the same held that the broker has earned the commis- doctrine is laid down. It is said: "It is well sion, even though it afterwards turns out settled that when the agent proposes a purthat the purchaser produced by him was not chaser acceptable to the owner, who makes able to perform the contract. See Glent- with him a binding contract providing for worth v. Luther, 21 Barb. (N. Y.) 145; Si- the terms and conditions on which he shall monson v. Kissick, 4 Daly (N. Y.) 143; Keys have a conveyance of the property, nothing.

remaining as between them save the performance by such accepted purchaser of the terms and conditions of the contract thus entered into, the agent becomes entitled to his commission. This rule was settled after full discussion of the authorities."

Flynn v. Jordal, 124 Iowa, 457, 100 N. W. 326, is in accord with the general weight of authority. In this case it is said: "Under circumstances like those in this suit and the purchaser is produced by the agent, it is then for the principal to decide whether the purchaser is acceptable precisely as when the purchaser is present personally, and, if he executes the contract on his part, it is binding upon him, and it was held there that under such circumstances the agent would have earned his commission."

Coming back to the case of Ford v. Easley & Co., 88 Iowa, 603, 55 N. W. 336, we find this language used: "It is true the pleadings allege that the plaintiff was authorized to sell the property on the terms given, and that he was to receive as commission whatever sum he might obtain in addition to $400 per front foot, and that he was entitled to the amount claimed as commission for selling the property; but it is clear that no power was given him to execute a conveyance, and that what the parties contemplated by the arrangement made between them was that plaintiff should obtain a purchaser for the property for the price and on the terms given him, and that the conveyance should be made by the defendants. When the plaintiff found a person who agreed to take the property on the terms given, and was able and ready to carry out the agreement, he had done all he was authorized to do to effect a sale, and was entitled" to the commission agreed upon, and, if the purchaser was willing to take it in excess of the price agreed upon, that would be the measure of his commission.

able to purchase upon the terms stated to him. The agent, however, in pursuance of his contract produces A. A. enters into negotiations with the principal, but is not willing or able to buy on the terms satisfactory to him. Nothing is done and no commission earned. The agent produces B. The same result follows, and no commission earned. He produces C. The seller enters into negotiations with C. The principal, for the first time, states and makes known to C., the buyer, the terms and conditions on which he is willing to sell. He makes a contract of sale with C. that is satisfactory to both, and legally binds both. This right he reserved when he employed the agent to negotiate. The contract is then reduced to writing and signed by both, as follows: That C. will pay $10,000 down in cash; $5,000 in one year at 6 per cent.; the balance in ten years at 6 per cent., secured by a mortgage on the land. At the time the contract is entered into, C. has only $10,000 which he then pays down. Has the agent to wait until C. has fully performed, or is he required to show under such a contract that at the time C. entered into it he was able then to perform all such conditions? We think not. The rule herein announced presupposes that the agent has acted in good faith and without fraud or concealment, or without any collusion with the purchaser, and also that the contract entered into between the purchaser and the seller is a completed and enforceable contract, enforceable by both, and not a contract where there is something yet to be done by the purchaser to make it satisfactory to the seller and enforceable, as, for instance, to furnish an abstract showing good title to him (if the deal is for exchange of land), or, if for a sale with deferred payments, to give a note with sureties to be approved by the seller, etc. It must be a completed and enforceable contract before the commission is earned.

Under the facts shown by this record and under the law as it is, and was at the time this case was tried, we are satisfied that the court erred in directing a verdict for the defendant. We further find that this court has jurisdiction of this cause, and that the motion to strike abstracts and amended abstracts from the record should be and is overruled.

[4] We recognize the fact that the rule herein stated has not met with universal satisfaction; that some cases hold to a different doctrine; that some cases hold that, even if a binding and enforceable contract has been entered into between the party produced and the principal, the agent seeking to recover commission still has the burden of proving that the party procured by him was not only ready and willing, but able to perform the contract. Such holding will not stand a careful analysis of the relationship which the contract itself creates between the agent and the principal. The agent agrees to produce a McCOULLOUGH v. purchaser who will buy on terms satisfactory to his principal. The principal does not com

The cause is therefore reversed and remanded.

CHICAGO, R. I. & P. RY.
CO.

(Supreme Court of Iowa. June 7, 1913.)

municate to his agent what these terms are 1. DEATH (§ 11*)-FEDERAL EMPLOYER'S LIA

BILITY ACT STATUTE.

--

DISTINGUISHED FROM STATE

that will be satisfactory to him, or on which he is willing to part with his property. The agent does not and cannot know what kind of a party his principal wants, or whether he can or will, when produced, be willing and

22, 1908, c. 149, 35 Stat. 65 (U. S. Comp. St. The federal Employer's Liability Act April Supp. 1911, p. 1322), creating a right of action against an interstate carrier for the death of

an employé, due to the employer's negligence, in favor of the administrator for the benefit of the surviving widow or husband and children of such employé, and, if none, then of his parents, and, if none, then of the next of kin dependent upon him, is based, not upon the injury to the deceased, but upon the fact of his death by wrongful act of the defendant, with damages measured by the pecuniary loss to the beneficiaries, rather than by loss to the estate of the decedent as such, and differs from the state statute, in that the latter is a survival statute under which the damage is measured by the loss to his estate as such.

[Ed. Note.-For other cases, see Death, Cent. Dig. $ 10, 15; Dec. Dig. § 11.*]

2. DEATH (95*)-FEDERAL EMPLOYER'S LIABILITY ACT MEASURE OF DAMAGES CLASSES OF BENEFICIARIES.

-

Under such federal Employer's Liability Act April 22, 1908, c. 149, 35 Stat. 65 (U. S. Comp. St. Supp. 1911, p. 1322), the measure of damages in favor of the surviving spouse and children will be essentially different from that in favor of the parents and next of kin classes, and that in favor of the parents may be different from that in favor of the next of kin.

[Ed. Note.-For other cases, see Death, Cent. Dig. 88 108, 109, 111-115, 120; Dec. Dig. 8 95.*]

3. DEATH (§ 58*)-FEDERAL EMPLOYER'S LIABILITY ACT-EVIDENCE-PRESUMPTION OF DAMAGES.

Under the federal Employer's Liability Act April 22, 1908, c. 149, 35 Stat. 65 (U. S. Comp. St. Supp. 1911, p. 1322), substantial damages will be presumed in favor of the widow and children without special averment or proof other than a showing of the pecuniary value of the life of the decedent to his family, and damages to his own estate will also be presumed; but, as to the other classes of beneficiaries, it is necessary to show their pecuniary loss, although the presumption of nominal damages obtains in favor of the parents.

[Ed. Note.--For other cases, see Death, Cent. Dig. §§ 75-78; Dec. Dig. § 58.*]

4. DEATH (8 86*)-DAMAGES-ELEMENTS OF COMPENSATION.

Under the federal Employer's Liability Act April 22, 1908, c. 149, 35 Stat. 65 (U. S. Comp. St. Supp. 1911, p. 1322), where recovery is claimed for the benefit of the parents for the death of a child, it is material to show whether the decedent was a minor or adult, and, if a minor, whether his services during minority would have been of pecuniary value to his parents, and in the case of an adult the prospective gifts, either of money, property, or services, which the parents could reasonably have expected to receive in the course of their lifetime from decedent.

[Ed. Note. For other cases, see Death, Cent. Dig. §§ 108, 109, 112-114, 117, 119; Dec. Dig. $ 86.*]

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5. DEATH (§ 89*) Loss TO BENEFICIARY. Under such federal Employer's Liability Act April 22, 1908, c. 149, 35 Stat. 65 (U. S. Comp. St. Supp. 1911, p. 1322), pecuniary loss only can be considered, and compensation cannot be had for suffering or bereavement.

DAMAGES PECUNIARY

[Ed. Note.-For other cases, see Death, Cent. Dig. 118; Dec. Dig. § 89.*]

6. DEATH (§ 95*)-MEASURE OF DAMAGES GIFTS AND PECUNIARY BENEFITS.

Under the federal Employer's Liability Act April 22, 1908, c. 149, 35 Stat. 65 (U. S. Čomp.

St. Supp. 1911, p. 1322), the measure of loss to the parents of an adult is the present worth of such gifts as they could reasonably have expected to receive from him in the course of their lives.

[Ed. Note.-For other cases, see Death, Cent. Dig. 88 108, 109, 111-115, 120; Dec. Dig. § 95.*]

7. DEATH (§ 58*)-EMPLOYER'S LIABILITY— DEPENDENCY OF PARENTS.

In an action under the federal Employer's Liability Act April 22, 1908, c. 149, 35 Stat. 65 (U. S. Comp. St. Supp. 1911, p. 1322), it is not legally necessary to show that the parents were dependent upon him, as in cases of "dependent next of kin," but plaintiff must show those facts within the general knowledge of the beneficiaries bearing upon the financial resources of the decedent and of themselves.

[Ed. Note.-For other cases, see Death, Cent. Dig. §§ 75-78; Dec. Dig. § 58.*]

8. DEATH (§§ 64, 67*)-EVIDENCE ARY LOSS.

PECUNI

In an action under the federal Employer's Liability Act April 22, 1908, c. 149, 35 Stat. 65 (U. S. Comp. St. Supp. 1911, p. 1322), for the benefit of the parents of a deceased son, the question of the loss of prospective gifts ordinarily involves an inquiry into the means and of the parents, the extent of his previous conearning capacity of the decedent, as well as tributions, and the dependency of the parents, if recognized by decedent in the form of con

tributions.

[Ed. Note.-For other cases, see Death, Cent. Dig. §§ 83, 88; Dec. Dig. §§ 64, 67.*]

9. DEATH (§ 49*)-FEDERAL EMPLOYER'S LIABILITY ACT-PLEADING-DAMAGES.

In such action the fact that the surviving parents had sustained pecuniary loss by his death should be averred.

[Ed. Note.-For other cases, see Death, Cent. Dig. §§ 64-66, 69; Dec. Dig. § 49.*]

10. DEATH (§ 99*) SUFFICIENCY OF EVIDENCE DAMAGES ALLOWANCE TO PAR

ENTS.

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In such action, where the evidence only showed the mere fact that contributions had been made to his parents by decedent in some amount by paying for his board and room for two years or more, the parents being working people between 50 and 60, a verdict of $5,000 was unsupported by the evidence.

[Ed. Note. For other cases, see Death, Cent. Dig. 88 125-130; Dec. Dig. § 99.*]

11. DEATH (8 95*)-DAMAGES-ELEMENTS OF COMPENSATION.

Under the federal Employer's Liability Act April 22, 1908, c. 149. 35 Stat. 65 (U. S. Comp. St. Supp. 1911, p. 1322), the jury may not render a finding solely upon the earning capacity of the decedent, nor upon the damage accruing to him or to his estate, but the proper estimate can usually be reached by taking into account his calling, income, health, age, and habits of industry, as well as the amount of aid in money or services which he was accustomed to furnish or contribute.

[Ed. Note.-For other cases, see Death, Cent. Dig. 88 108, 109, 111-115, 120; Dec. Dig. § 95.*]

12. DEATH (§ 49*)-FEDERAL EMPLOYER'S LIABILITY ACT.

Under the federal Employer's Liability Act April 22, 1908, c. 149, 35 Ŝtat. 65 (U. S. Comp.

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

St. Supp. 1911, p. 1322), a declaration for | Falls, and Wade, Dutcher & Davis, of Iowa wrongful death was defective for failing to al- City, for appelïee.

lege facts showing that the surviving parents sustained pecuniary loss by the death.

[Ed. Note. For other cases, see Death, Cent. Dig. §§ 64-66, 69; Dec. Dig. § 49.*]

EVANS, J. The decedent was an unmarried adult 25 years of age. He left surviv

13. COURTS (8 489*)-JURISDICTION-FEDERAL ing him a father and mother 53 and 54 years EMPLOYER'S LIABILITY ACT.

The federal Employer's Liability Act April 22, 1908, c. 149, 35 Stat. 65 (U. S. Comp. St. Supp. 1911, p. 1322), impliedly permits a concurrent jurisdiction to the state courts for its enforcement within their respective states; and by amendment of April 5, 1910 (Act April 5, 1910, c. 143, 36 Stat. 291 [U. S. Comp. St. Supp. 1911, p. 1324]), the concurrent jurisdiction of the state courts is expressly recognized. [Ed. Note.-For other cases, see Courts, Cent. Dig. 88 1324-1330, 1333-1341, 1372-1374; Dec. Dig. 489.*]

14. MASTER AND SERVANT (§ 286*)-INJURY TO SERVANT TRIAL INSTRUCTIONS NEGLI

GENCE.

-

In an action under such federal Employer's Liability Act April 22, 1908, c. 149, 35 Stat. 65 (U. S. Comp. St. Supp. 1911, p. 1322), for damages for the death of plaintiff's decedent, killed by the derailing of his engine and tender, held on the evidence that the question of negligence was for the jury.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 1001, 1006, 1008, 10101015, 1017-1033, 1036-1042, 1044, 1046-1050; Dec. Dig. 286.*]

15. TRIAL (§ 191*)-INSTRUCTIONS-WANT OF INSPECTION-ASSUMING FACTS.

In such action, where the evidence, under allegations that the engine wheels were flat, showed that the wheel and rims were badly worn, and had not been trimmed for more than a year and a half, an instruction assuming that there was evidence that the wheels were flattened was not erroneous.

of age, respectively. He was an employé of the defendant company, and as such was engaged at the time of the accident resulting in his death in interstate commerce. He was the forward brakeman on his train, and was at his proper place upon the engine while the train was running between stations, when a side bar of the drive wheel was suddenly broken. The revolving piece tore the cab of the engine where the decedent was sitting, and inflicted injury upon him from which he shortly died. There was a verdict for the plaintiff for $5,000. It is urged by the appellant that there was no basis either. in the pleading or in the evidence for the allowance of substantial damages under said Liability Act. The question presented is a very important one in its effect upon future cases under this statute, and we therefore give it our first attention.

The Liability Act referred to creates a right of action against the employer for the death of any employé resulting from the employer's negligence, in favor of the administrator but for the benefit of certain classes of relatives as follows: "(1) For the benefit of the surviving widow or husband and children of such employé; (2) and if none then of such employé's parents; (3) and if none then of the next kin dependent upon such employé." The beneficiaries of this suit are those of the second class above stated. It is urged by the appellant that the petition 16. MASTER AND SERVANT (§ 293*)-INJURY TO made no averment that the beneficiaries SERVANT-INSTRUCTIONS—WANT OF INSPEC-named suffered any pecuniary loss by reason of their son's death. And it is urged, fur

[Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 420-431, 435; Dec. Dig. § 191.*]

TION.

In such action, an instruction including lack of inspection in the enumeration of specifi-ther, that there was no evidence of any cations of negligence was not erroneous as be- such pecuniary loss or of any facts from ing without support in the evidence, which which such pecuniary loss could be found. tended to show a failure to repair after in- Inasmuch as this act impliedly provides that spection and discovery rather than a failure to suit may be brought thereunder in state inspect, since the duties would be practically identical.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 1148-1156, 1158-1160; Dec. Dig. § 293.*]

courts as well as federal courts, it is important that there be uniformity of judicial opinion in construing its provisions. Manifestly, the final word will rest with the Supreme Court of the United States as to mat

Appeal from District Court, Hardin Coun- ters of substantive right thereunder. As to ty; Charles E. Albrook, Judge.

This is an action for damages brought under the provisions of the Employer's Liability Act enacted by Congress. The action was brought by the administrator in behalf of the parents of the deceased. There was a verdict for the plaintiff, and the defendant has appealed. Reversed and remanded.

J. L. Parrish and Robt. J. Bannister, both of Des Moines, and Lundy & Wood, of Eldora, for appellant. Bryson & Bryson, of Iowa

pleading and procedure, necessarily the courts of each state must pursue their own statutory methods.

[1] The parties before us differ in their analysis of the act in question. The plaintiff contends that in its general application it is not materially different from the Iowa statute on the same subject. This contention is not tenable. This act is modeled in its principal features upon an English statute known as Lord Campbell's Act, enacted in

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