of ple's Savings Bank for $1,200 on the said lot, and the said $1,200 was used to pay the remainder of the purchase price; that subsequently the said mortgage was paid by these defendants in installments, but principally from the moneys of the said Elizabeth Callaghan; that the said land was not paid for by the said John, nor was the title taken in their joint names to defraud the complainants or anybody, but simply so that the survivor should own the same, as they have no children." John Callaghan was sworn in behalf of complainant, and is asked what property be owns, and replies, "Four suits clothes and a black dog," and that he paid nothing for the dog; that for many years he had been in the saloon business, and his wife had been in the grocery business; that they had put the moneys received by them into one bank in the name of the witness; that from time to time with these moneys they had purchased real estate, and taken the title in their joint names. When counsel sought to examine the witness John Callaghan in relation to this particular property which was purchased after the debt sought to be collected was contracted, the defendant Elizabeth Callaghan objected, and, when complainant sought to examine Elizabeth, defendant John objected According to the answer, the purpose of taking the title in the joint names of the defendants was that the survivor should take, but, if any part of the consideration was paid by the defendant John Callaghan, the effect was to place that part beyond the reach of process, and that operated as a fraud upon creditors. A denial of actual intent to defraud does not avoid the consequences of an act which is in effect a fraud. The defendants had it in their power to explain fully the transaction in question. They did not attempt to do this, but actually refused so to do. If any part of the consideration was contributed by John Callaghan, his creditors have a right to reach that part. An answer that the consideration was paid by defendants jointly, but "principally from the moneys of the said Elizabth Callaghan," is evidence, it is true; but, in view of the refusal of defendants to testify as to just how much or what part was paid by Elizabeth, and of the other facts and circumstances in the case, it has little weight. The language used in the answer is evasive rather than responsive, and, in the absence of some further showing, the presumption created by the averments in the deed must prevail. A rehearing is denied, with costs. The other justices concurred. | his brother had not paid the tax. Held that, in the absence of such evidence, he could not be convicted for illegal sales as his brother's clerk, but only as owner of the saloon, and hence it was error to refuse to charge on that issue that his guilt must be established beyond a reasonable doubt. 2. The objection that the warrant and complaint, on which defendant was arrested and held to trial for selling liquor without payment of the required tax, does not negative that he was a druggist, must be taken by motion to quash the information, which does negative that fact, and cannot be first raised on the introduction of testimony. Error to circuit court, Wayne county; GEORGE S. HOSMER, Judge. John G. Hawley and George W. Coomer, for appellant. A. A. Ellis, Atty. Gen., for the People. MORSE, J. The respondent was convict. ed in the Wayne circuit court upon the charge that he was engaged on the 28th day of May, 1889, at the city of Wyandotte, in the business of selling, by retail, malt, brewed, fermented, and intoxicating liquors, without having paid the tax required by law upon such business; he not being then and there a druggist, etc. It seems that the complaint and warrant upon which respondent was arrested and held to trial did not negative that Drennan was a druggist. Respondent pleaded to the information, which contained the proper averment that he was not a druggist, etc. When the first witness was sworn on behalf of the prosecution, defendant's counsel objected to the introduction of any testimony, for the reason that the complaint and warrant did not charge any offense known to the law. The ob. jection was overruled, and the trial proceeded. We think the objection came too late. This question should have been raised by motion to quash the information be fore pleading. But the court erred in not giving the following request, asked by respondent: "In this case, as in all other criminal cases, the law presumes every one to be a lawabiding person, and the guilt of the accused must be fully proven, to the exclusion of all reasonable doubt." The circuit judge made no reference whatever to the matter of reasonable doubt. He said, in substance, that there was evidence tending to show that the business was being carried on, and that the statute provided specifically that all persons who are engaged in the sale of or keeping for sale of any of the liquors mentioned in the act, whether as owner or clerk, agent, or servant or employe, shall be equally liable as principals for any violation of the act; referring to Act No. 313, Pub. Acts 1887; and further said: "It is a stringent pro vision, gentlemen of the jury, but still it is law upon the statute books, which the legislature has, in its wisdom, passed. Now, gentlemen of the jury, if you find from the evidence in this case that Mr. Drennan, under that provision of the act, or under any other provision of the act, has been guilty, either as owner or clerk for his brother, and, when I say clerk, I mean that any one who voluntarily offered any assistance would come within the provisions of this act, equally as one charge was wrong. The verdict must be set aside, and a new trial granted. The other justices concurred. MCHUGH V. O'Dowd's ESTATE. Material evidence by a claimant as to claims against an estate, which was equally within the knowledge of the decedent, should not be received, although the administrator does not object thereto. Appeal from circuit court, Wayne county; GEORGE S. HOSMER Judge. Action by Annie McHugh against the estate of Edward O'Dowd for board of deceased and money loaned him. The administrator did not object to evidence of the claims by plaintiff, which, being equally within the knowledge of de$7545, providing that, when a suit is prosceased, was prohibited by How. St. Mich. ecuted or defended by the heirs or personal representatives of a deceased person, the opposite party, if a witness, shall not be admitted to testify at all to matters which, if true, must have been equally within the knowledge of the deceased. Trial by jury, verdict and judgment for plaintiff, and defendant appeals. Brannan & Donnelly and Elbridge F. Bacon, for appellant. Conely, Maybury & Lucking, for appellee. CHAMPLIN, C. J. The plaintiff presented the following claim against the estate of Edward O'Dowd, deceased: "(1) Work and labor performed by claimant for deceased in his life-time, and board furnished who was hired,-why, then, gentlemen of the jury, you will return a verdict of guilty." The evidence in the case on the part of the people was-First. The testimony of Richard Tregaskis, who had charge of the record of liquor taxes in the County treasurer's office, that respondent had paid no liquor tax for the year 1889, on the 28th of May in that year. Second. The city marshal testified that respondent kept a grocery in Wyandotte; that there was on said 28th day of May, 1889, a saloon in the same building; that he went there that day, and drank a glass of beer, which was given him by the respondent. He could not swear that he had seen the respondent sell any liquor at any other time on that date or since. Had seen him in the saloon, but a young man named Marsh was attending the bar. Drennan was sworn in his own behalf, and testified that he was not engaged in the liquor business on the 28th day of May, 1889, and that his brother William, since deceased, was running the saloon, and had been since the 1st of January, 1888, until his death in October, 1889. It was shown on bis cross-examination that in his brother's life-time respondent began suits in his own name for the collection of bar-bills, and since the 28th of May, 1889. But on redirect he said that one of these suits was for liquor sold four or five years ago, and that none of the bills so sued were contracted since May 28, 1889, to his knowledge. The prosecuting attorney asked him the following question: "Have you ever tended bar during the life-time of your brother and sold liquors, except this time that Mr. Thon testifies to? Answer. I guess I have, in his ab-him by claimant, $950. (2) Money paid sence, and none of his bar-tenders were there. I would go in and assist when I was not in the post-office in evenings, or something like that, or in the day when I was not busy." Respondent was acting as postmaster then for nearly four years. It will be seen that the evidence not only fails to show that William Drennan had not paid his tax up to the 1st of May, 1889, for the year before, but there is no evidence that he had not paid the tax upon this business for the year commencing May 1, 1889. Respondent, therefore, could not, as the proofs stood, have been convicted under the information as a clerk of his brother, but only as the owner of the business. It may be truly said that there was some evidence tending to show that it was his own business, but upon this he was entitled to the benefit of all reasonable doubts. It was not sufficient to show that the respondent sold one glass of liquor, and bad not paid the tax, when he gave testimony tending to show that he sold this liquor for his brother, and that his brother, and not himself, was engaged in the business. The burden of proof is upon the people, and that beyond a reasonable doubt. It was the duty of the prosecution in this case to show beyond a reasonable doubt that respondent was engaged in the business, and had not paid his tax, or that he sold liquor for his brother, who had not paid the tax upon the business at this particular place. Under the evidence, the whole theory of the by claimant to use of deceased in his lifetime to pay interest on and redeem from Hasselbacker mortgage, $780. (3) Money loaned by claimant to deceased, to-wit, in summer of 1883, $400. (4) Purchase price of land deeded by claimant to deceased in his life-time, to-wit, August 7, 1883, said land being lot 6 of the Chas. Moran farm, Detroit, Wayne county, Mich., to wit, $1,000. (5) To money due claimant from deceased on promise made in consideration of said deed of said land to pay her in money for her past services, and board furnished deceased, said new promise being made on, to-wit, August 7, 1883, to-wit, $1,000. The total sum of the claims to be recovered in the proceeding is $1,250." Upon the trial in the Wayne circuit court before a jury, a verdict was rendered in favor of the claimant for $546. It appears that the claimant was permitted to testify, without objection, to several material matters, which, if true, must have been equally within the knowledge of the deceased. This ought not to have been permitted by the party representing the estate. It has been held that an administrator cannot waive the statute of limitations, and thus charge the estate for a claim which the law pre. sumes to have been paid. McGee v. McDonald's Estate, 66 Mich. 629, 630, 33 N. W. Rep. 737. The defense of the statute was relied upon in this case; but of what avail is such defense if the administrator permits the claim to be established by in competent witnesses? If the administra- | into this court by petition in error. We tor cannot waive the statute of limitations, neither can he waive the provisions of the statute prohibiting a party to testify in support of a claim to facts tending to establish it which are equally within the knowledge of the deceased person. The statute was designed to protect the estates of deceased persons against claims which depend, in whole or in part, upon testimony of a party which cannot be refuted by the testimony of the deceased. To permit such party to testify would be a direct violation of the policy of the statute, and open the door to the perpetration of fraud against the estates of deceased persons, which it was the policy of the law to prohibit. It was error to permit the witness Mrs. Craib to testify to what she supposed Doud thought as a reason why he asked her if she knew "how we stand on the board-bill." Clement v. Cureton, 36 Ala. 120; Gorham v. Gorham, 41 Conn. 242. This error is sufficient to reverse the case; but, in sending it back for a new trial, we desire to call attention to the very vague and general language of the claim. The bill of particulars is no more definite than the claim, and the items are too vague and uncertain to permit proof to be given to charge the estate. If there exists an open account, the items of which it is composed, with the dates when they accrued and the respective amounts, can be given; and this should be required before a new trial is had. The testimony by which the claim is supported is of the same general uncertain character, owing, perhaps, to the fact that no account current was filed to which it could be confined. The judgment must be reversed, and a new trial granted. The other justices concurred. PHENIX INS. Co. v. BACHELDER.1 (Supreme Court of Nebraska. July 1, 1891.) INSURANCE-CONDITIONS OF POLICY-WAIVER. 1. The policy of fire insurance contained a clause, if the assured failed to pay his premium note at the time specified, then the policy should cease to be in force, and remain null and void during the time the note remains unpaid after maturity, and that the payment of the premium revives the policy, and makes it good for the balance of the term. The premium note matured before the loss complained of, and had never been fully paid. Held, that the company was not liable. 2. Such stipulation in the policy can be waived by the company, but such waiver must be pleaded and proved, to avail the insured. 3. The absolute denial by the insurer of all liability, on the ground that the policy was not in force at the time of the loss, is a waiver of the preliminary proofs of loss required by the policy. (Syllabus by the Court.) Error to district court, Sarpy county; CLARKSON, Judge. Fawcett & Sturdevant and John P. Davis, for plaintiff in error. A. U. Hancock, for defendant in error. NORVAL, J. This is an action on a policy of fire insurance. There was a trial to a jury, which resulted in a verdict for the plaintiff. The defendant brings the case 'Petition for rehearing pending. are asked to reverse the case upon two grounds: First, the failure of the defend ant in error to pay his past-due premium note; second, failure of the insured to furnish the preliminary proofs of loss according to the terms and conditions of the policy. We will briefly examine the points in the order named. The policy provides that, "in case the assured fails to pay the premium note or order at the time specified, then this policy shall cease to be in force, and remain null and void during the time said note or order remains unpaid after its maturity, and no legal action on the part of this company to enforce payment shall be construed as reviving the policy. The payment of the premium, however, revives the policy, and makes it good for the balance of the term." The consideration for issuing of the policy was $10 cash, and the payment at maturity of the assured's promissory note for $22. The note was payable on the 1st day of August, 1889. No part of the $22 was paid when due, and a balance of $7 remained unpaid at the time of the fire. The defendant in error held two policies from this company, one for $100, and the other for $1,000, on buildings which were detached when the policies were issued; but the buildings were subsequently joined together. A new policy, the one in suit, was issued covering the building thus formed. Evidence was introduced tending to show that one Weymouth, a soliciting agent of the company, agreed to cancel the old policies and apply the unearned premiums on the new. It is claimed by the plaintiff in error that the agent had no power to make any such agreement. Conceding, as is claimed by the insured, that the company is bound thereby, and that the unearned premiums on the old policies should be credited upon the note, there would remain unpaid a small balance, and he would still be in default at the time of the fire. It is obvious that the failure to pay the premium note at maturity suspended the policy until payment was made. It could have been revived, for the balance of the term, by making full payment at any time before the loss. This, as we have seen, he failed to do. True, after the maturity of the note, he paid $15 thereon, but this did not give him the right to avail himself of the benefits of the contract of insurance. Nothing short of full payment, or a waiver of the stipulation in the policy, could have the effect to remove the suspension caused by the failure to pay the note. The clause referred to is not unreasonable. It is but fair and just that, while the insured is in default of the payment of his note, the company should not be liable for loss when the parties have so agreed. We have no right to make a new contract for them, or refuse to enforce the one they have made. To hold that the policy was in force at the time of the fire would be to set aside and disregard the plain stipulation of the parties. Gorton v. Insurance Co., 39 Wis. 121; Shakey v. Insurance Co., 44 Iowa, 540; Garlick v. Insurance Co., Id. 553; Wall v. Insurance Co., 36 N. Y. 157; Williams v. Insurance Co., 19 Mich. 457; Curtin v. Insurance Co., (Cal.) 21 Pac. Rep. 370. There was some evidence offered for the purpose of showing that the company waived the terms of the policy in regard to the payment of the premium note, but such evidence, under the pleadings as framed, could not avail the defendant in error. The issue was squarely presented by the pleadings whether or not the note was paid. We doubt not that the stipulation in the policy can be waived, but, when such waiver is relied upon, it must be pleaded. Zinck v. Insurance Co., 60 Iowa, 266, 14 N. W. Rep. 792; Welsh v. Insurance Co., (Iowa,) 32 N. W. Rep. 369; Mehurin v. Stone, 37 Ohio St. 58; Palmer v. Sawyer, 114 Mass. 13; Nichols v. Larkin, 79 Mo. 264. The policy provides that loss will be paid "upon receipt of proper proofs at its Chicago office." It also provides that, "in case of loss or damage, the assured shall forthwith give notice of said loss in writing to the company." The evidence shows that the insured immediately after the fire notified, in writing, the company of the loss, but it does not appear that he ever furnished the preliminary proofs of loss. The existence of a loss has not at any time been denied by the company. In fact, it is admitted by the answer under which the case was tried that the house was totally destroyed. The company has at all times insisted, and now insists, that it was not liable for the loss, on the ground that the policy was not then in force, by reason of the failure of the insured to pay his premium note. The plaintiff in error, by denying all liability, dispensed with the necessity of furnishing proofs of loss. Carson v. Insurance Co., 62 Iowa, 433, 17 N. W. Rep. 650; Union v. Whitt, 36 Kan. 760, 14 Pac. Rep. 275; King v. Insurance Co., 58 Wis. 508, 17 N. W. Rep. 297; Tayloe v. Insurance Co., 9 How. 390; Insurance Co. v. Lippold, 3 Neb. 391. The judgment is reversed, and the cause remanded for further proceedings. The other judges concur. 1. The questions of fact involved in the case should have been submitted to the jury, and the court erred in directing a verdict. 2. Where a party makes a promise to another for the benefit of a third person, such third person may avail himself of the promise, and bring an action thereon, although the consideration did not move directly from him. (Syllabus by the Court.) Error to district court, Platte county; POST, Judge. Allen, Robinson & Reed, for plaintiff in error. W. A. Hampton and Sullivan & Reeder, for defendant in error. MAXWELL, J. In this case the plaintiff alleges in his petition that on or about the 1st day of June, 1888, the citizens of Humphrey, Platte county, Neb., were desirous of having a depot on the Fremont, Elkhorn & Missouri Valley Railroad established at said Humphrey, and for that purpose were desirous of making a dona tion of certain grounds or lands to said company, then owned by one Henry Gebecke, situate near said village; and, for the purpose of carrying into execution said purpose, the said defendant and 17 other persons, in and near said village of Humphrey, made, executed, and delivered unto said Henry Gebecke a written contract, in the words and figures as follows, to-wit: "Humphrey, Neb., Platte Co., June 1st, 1888. "We, the undersigned, hereby agree to pay the several sums opposite our names as follows: To deposit in the bank said sums, and it to be paid over at the completion of a depot on the F., E. & M. V. R. R. at Humphrey. The object is to pay for the east forty acres of land belonging to Henry Gebecke, and deeding same to said R. R. Co. "[Signed] JACOB RIPP, $200 00 100 00 100 00 That, pursuant to the request of said persons, the said Henry Gebecke sold and conveyed said land unto the said Fremont, Elkhorn & Missouri Valley Railroad, and said railroad company promptly built thereon, and now have in operation, a depot at said village of Humphrey; and the said Henry Gebecke and said railroad company have in all respects fully kept and performed their part of the said contract, but the said defendant has hitherto wholly neglected and refused, and now refuses and neglects, to pay said sum by him so subscribed, or any part thereof, though the same is long past due. That on or about the 10th day of July, 1889, the said Henry Gebecke, for value, sold and assigned said contract to the plaintiff, and each and all the subscriptions thereto and thereon, and the said sum due from the said defendant is now the property of the plaintiff, and wholly unpaid. To this petition the defendant filed an answer, as follows: "At or about the date named in the petition the defendant signed a certain subscription paper, the contents whereof he does not now remember. He therefore, for want of adequate information upon which to base a belief, denies that he ever signed the paper a copy of which is set out in the petition, and refers the plaintiff to his proof concerning the same. Defendant is informed and believes, and charges it as a fact, that, after he had signed the subscription paper aforesaid, the same was by plaintiff, and without defendant's knowledge, privity, or consent, fraudu. lently and materially altered, and made, 66 by false additions and changes and interlineations, to read as follows: Humphrey, Neb., Platte Co., June 12, 1888. We, the undersigned, agree to pay the several sums opposite our names, as follows: To deposit in the bank said sums, and it is to be paid out at the completion of a depot on the F., E. & M. V. R. R. at Humphrey, Nebr. The object is to pay for the east forty acres of land belonging to Henry Gebecke, and deeding the same to said R. R. Co. [Signed.]" By said alterations so made the subscription paper aforesaid became substantially changed in meaning, and is therefore null in law. Defendant admits that the railroad named in the petition has constructed, and now operates and maintains, a depot at or near the village of Humphrey, in said county; admits that defendant has refused to pay the plaintiff the sum demanded in the petition, or any portion thereof. Defendant denies that the subscription was ever executed or delivered to Henry Gebecke; denies that said Gebecke ever executed a deed for any land to said railway company; denies that he ever executed a deed for any land to any person, company, or corporation on the faith or credit of said subscription paper; denies that said Gebecke ever made a conveyance of any land to any person, company, or corporation at the request or solicitation of any of the signers of said subscription paper, or any of them. The matters and things contained in said petition, and not hereinbefore specifically denied or admitted, are hereby denied.' The second and fourth paragraphs of the answer were stricken out on motion. On the trial of the cause, the court directed a verdict for the defendant, and dismissed the action. There is but little conflict in the testimony. It is clearly shown that the defendant signed the subscription paper set forth in the petition, and that he has failed to pay the amount subscribed by him, or any part thereof. It also appears that the plaintiff paid Gebecke $2,000 for the land, and took an assignment of the subscription list. It also appears that the object of purchasing the land was to induce the railroad company to put in a station at a certain point in the village of Humphrey, and that the railroad company has established a station at that point. The testimony tends to show that the land was purchased for the railway company, and in fact belonged to such company. A contract of this kind was upheld in Harris v. Roberts, 12 Neb. 631, 12 Ñ. W. Rep. 89. In that case a verbal contract for the exchange of lots was sustained and enforced. It is probable that the court dismissed the action on the ground that there was no mutuality between the parties. This, however, would not be sufficient cause in a case like that under consideration. It is now well settled in this court that, where one makes a promise to another for the benefitof a third person, such third person may avail himself of the promise, and bring an action thereon, although the consideration does not move directly from him. Shamp v. Meyer, 20 Neb. 223, 29 N. W. Rep. 379, and cases cited. The district court erred in directing a verdict, as the questions of fact should have been submitted to the jury. The judgment is therefore reversed, and the cause remanded for further proceedings. The other judges concur. HIBBARD V. TALMAGE. (Supreme Court of Nebraska. June 29, 1891.) MECHANICS' LIENS-FORECLOSURE-PLEADING. 1. In an action to foreclose a mechanic's lien, the defendant pleaded payment and set out certain checks, etc., to support his plea. The plaintiff, in his reply, alleged that $150 of the amount so paid was for extra work, (describing it,) which had been performed on the building by the plaintiff at the defendant's request. Held, that a motion to strike this allegation out of the reply was properly overruled. 2. Where damages were claimed by the defendant in his answer for a failure to complete the buildings in the time specified, the plaintiff in his reply alleged that the delay was caused by certain acts of the defendant, (stating them,) and not by the fault of the plaintiff. Held properly pleaded. 3. Evidence held to sustain the judgment of the court below. (Syllabus by the Court.) Appeal from district court, Buffalo county; HAMER, Judge. Thompson Bros., for appellant. R. A. Moore, for appellee. MAXWELL, J. 1. This action was brought by the plaintiff to foreclose a mechanic's lien on a building and lot in the city of Kearney. The petition was filed in February, 1889. In March following the defendant filed an answer in which he pleads payment of the plaintiff's claim, and sets out certain receipts and checks to sustain his plea. He also pleads that he sustained damages in a large amount by reason of the failure of the plaintiff to complete his contract at the time specified. To this answer the plaintiff filed a reply, in which he alleges that $150 of the amount paid by the defendant to the plaintiff, as set forth in his answer, was for extra work on the building performed by the plaintiff at the defendant's request, and that there is still due to plaintiff on said contract the sum claimed in the petition. He also alleges, in substance, that the delay in the completion of the building was caused by such extra work, etc. The defendant filed a motion to strike out of the reply the claim for extra work as being redundant. This motion was overruled, to which exceptions were taken, and the ruling is now assigned for error. The court properly overruled the motion to strike out the matter referred to. It devolved on the plaintiff, where the receipt of the money was admitted, to show how it was to be applied. If all the money paid by the defendant to the plaintiff was not for work and labor performed under the original contract, the plaintiff should state in the reply for what purpose it was received. This is not a new cause of action. No lien is claimed for the extra work, and the plaintiff contends that it has been paid for. It was proper, also, in the reply, to allcge that the delay was caused by the extra work, in effect, at the instance of the defendant, and that, therefore, the plaintiff was not liable for the delay. |