Irving Browne Isaac Grant Thompson.

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Beck, J. The plaintiff claims that the note Beonred by the
chattel mortgage is usurious, and that the payments made thereon,
and upon the unlawful interest, are sufiScient to fully dischai^ the
note and mortgage.

[Omitting immaterial matters.]

The evidence tends to prove the following facts: In 1875 plaintiff
borrowed of D. C. Thomas 8100, for which he gave his note for
$120, and ten per cent per annum interest, payable one year after
date. Certain payments were made upon this note. All the busi-
ness was done by D. C. Thomas, and plaintiff had no reason to
believe that he was acting as the agent of another. This note was
indorsed by D. C. Thomas, without recourse, to John Lewis. K
was usurious.



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JUNE TERM, 1880. 247

Erickson v. Bell.

[Omitting immatorial statements.]

The court gave the jury the following instruction, which is
complained of by defendant :

"In determining whether the first note was usurious or not, you
are told that if D. C. Thomas loaned $100 to Erickson and took
his note for $120, drawing ten per cent interest per annum ; that
he did not say or pretend that the money was not his own, and
Erickson believed that it was Thomas' money, then you should find
that the first note was usurious ; but if Erickson knew that Thomas
was acting as agent for John Lewis, or any other third person, or
if Thomas told him he was so acting, and he in fact was
acting as an agent, then the note would not be usurious unless the
party for whom he was acting authorized him to charge more than
ten per cent interest, or had knowledge that he was doing so."

The instruction contemplates the facts that the note referred to
was made payable to D. G. Thomas, and that plaintiff had no
knowledge that the money was not really the property of the agent,
bat believed that it was.

A person dealing with an agent in regard to personal property
if trusted to him by the principal, without knowledge that the
property is not owned by the agent, but supposing him to be the
owner thereof and the principal in the transaction, will possess all
the rights that he would have acquired had the transaction been
with the real principal. See Story's Agency, § 444. This rule is
applicable to the case before us. It is founded upon the plainest
principle of law and justice.

In support of his position that the instruction is erroneouB counsel
for plaintiff cites Lee v. Chadsey, 3 Abb. Ct. App. Dec. 43, and
Estevez Y. Purdy, 66*N. Y. 446. These cases, as well as Belly.
Day, 32 id. 165, and Condit v. Baldwin, 21 id. 219, to the same
effect, differ from the case before us in that the notes involved in
the several actions were not made payable to the persons acting as
agents. The note referred to in the instruction was payable to D.
C. Thomas, and he was not known by the defendant to be the
agent of Lewis. The fact that the notes were payable to the
principals gave the respective makers notice that the persons with
whom they dealt were agents. The defendant in this case had na
notice of that kind.

[But for errors in admitting evidence]

Judgment reversed.



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m IOWA,

Arnold v. Walts.



Abitold V. Waltz.

(58 Iowa, 708.)

Exemption — •• head of famUif.''

An onnuirried woman, keeping boofle, and there bringing up two cbildiea ol
her deceased sister, is tbe " bead of a family,*' and entitled to a homertead
exemption. (See note, p. 249.)

ACTION to enjoin a sale of real estate. The opinion states the
case. The plaintiff had judgment below.

Read £ Wilson, for appellant.
Wynn £ Wynn, for appellee.

BoTHBOOK, J. The cause has been submitted upon certain agreed
facts, of Mrhich the following is the substance : The plaintiff is the
owner in fee of the property the sale of which she seeks to enjoin,
and she has been such owner since before the indebtedness upon
which the judgment is founded accrued. Before she incurred the
indebtedness, and while the plaintiff was residing on said property,
her sister died at the home of the plaintiff, leaving two daughters,
aged abbut seven and thirteen years, respectively. Just before the
death of said sister she gave the plaintiff .her said children, and
requested her to bring them up and care for them, and be a mother
to them, as her own. The plaintiff accepted the charge and has
protected, provided and cared for said children, as her own, ever
since the death of their mother. She has ever since occupied said
property as a home for herself and the said children, and said
children have had no other home, and have constantly remained
with the plaintiff, except that the elder has been out at service for
others at various times. The plaintiff has never lived in the
property with her father nor mother. She has never been married,
nor had any family, except the said children of her sister, and said
children have never been adopted by her under the provisions of
chapter 7, title 15 of the Code.

We are required to determine whether, under the foregoing facts,
the plaintiff is the head of a family, within the meaning of the
statute which exempts the homestead from judicial sale.



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JUNE TERM, 1880. 249

Arnold v. Waltz.

In Parsons y. Livingston ^ 11 Iowa, 104, the plaintiff was a widower
and without children. He purchased the property claimed as a
homestead, and took up his residence thereon, taking with him his
mother, who was a widow without children, excepting the plaintiff.
They continued to live in said house as their home, the plaintiff
supporting his mother. It was held that the plaintiff while thus
living was the head of a family within the meaning of the home-
stead act then in force.

A family '* is a collective body of persons who live in one house,
and under one head or manager.'' The case at bar is not different
in principle from that above cited. There is no material difference
between the statute there construed and the one now in force. It
was there held that it was not necessary to constitute the head of a
family, within the meaning of the statute, that there should be
children of such head of a family, nor that there should be husband
or wife, nor that the person claiming to be the head of a family
should be a surviving husband or wife to one who was the owner
of the property. The court adopted a broader definition, and as
we believe, one entirely consistent with the language and spirit of
the statute.

In the case at bar the plaintiff is the head of a family in the
fullest sense, as the protector of the children of her deceased sister.
The agreed facts show that she stands in the relation of a parent to
them, having assumed and taken upon herself that obligation. We
are united in the opinion that she is the head of a family within
the meaning of the statute, and is entitled to its exemption. In
further support of the views herein expressed see Tyson v. Reynolds^
52 Iowa, 431. Judgment affirmed.

Nora BT TUB RcpoRm.— Tn Ty8on v. Reytmlda^ S8 Iowa, 431, it was held that a widower,
with whom lived his son and son's wife, and who employed a household servant, was the
bead of a family within the meaning of the statute granting exemptions. The court said: '
**A ftoiily is * the collective body of persons who live in one house, under one head or
manager.* The relation existing between such persons must be of a permanent and do-
mestic character, not abiding together temporarily as strangers. There need not, of
MoesBity, be dependence or obligation growing out of the relation. Code, 9 9073, provides
that the word family, used in the preceding section, does not include strangers or boarders
lodgiog with the family. This would seem to imply that the term does not include persons
livhig In the family who are not strangers or boarders. The son and his wife were neither
strangers nor boarders, but lived with the father, who provided for them as for children
ordependents. We conclude that they,with his domestic, constituted interveuor's family.**

See CnlUer v. Lattimrr.B Baxt. 420; s. c, 35 Am. Rep. Til; Calhoun v. WilUamn^ 89
Oratt. 16;s.c.,34 Am. Rep.750. '

Vol. XXXVI— 32



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250 IOWA,

Qraul ▼. Strutiel



Obaul V. Strutzel.

(58 Iowa. 718.)

NegoHabU intirument — indanemerU after maturity — indorser, haw hM,

To hold one who indorses a negotiable note after mataritj, payment most be
demanded of all the makers within a reasonable time thereafter, and imino-
diate notice of non-payment given to him.

ACTION on a promissory note. The opinion states the point.
The defendant had judgment below.

E, C, JioweU and K. Corning, for appellant.
A. R. Cot ion, for appellee.

RoTHROCK, J. It is contended by counsel for the plaintiff that
as to the note which was over-due when it was indorsed, no demand
of payment and notice of non-payment to the indorser was neces-
sary. But such is not the rule. A note indorsed after due most
be presented to the makers for payment within a reasonable time,
and notice of non-payment must bo given to the indorser immedi-
ately, which means, at furthest, the next day after default, where
the parties reside in the same town. McKewer v. Kirtland, 33
Iowa, 348; Pryor v. Bowman, 38 id. 92; Blake v. McJfiUen, 33 id.
150; Bank of Bed Oak v. Orvis, 40 id. 332.

There was no evidence tending to show a demand upon all the
makers of the note within a reasonable time, nor at any time. It
does appear that the plaintiff mailed written notices to the makers,
;ind that two of them called upon him in a day or two afterward.
All of the parties, so far as appears, resided in the same neighbor-
hood. It does not appear that the note was at any time presented
for payment personally to all the makers. This must be done to
charge the indorser, or the presentment must be made at the place
of residence or business of tlio makers. Hartford Bank v. Green^
11 Iowa, 47G; Edw. on Bills and Notes, 485.

[Minor mattei*s omitted.]

Judgmmi affirmed.



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OA.8ES



SUPREME COURT



KANSAS-



TuRKER V. Webster.

(24 Kans. 38.)
OmUraei — ageneff — price in ease of mimmderttanding ,

Where a contract for work is made tlirougli an agent on behalf of one of the
parties, and on completion tlie parties differ in tlieir understanding as to
the price, the law will award a reasonable compensation, although it mAj
exceed what the agent was authorized to offer.

ACTION for services. The opinion states the case. The plaint-
iff bad judgment below.

J. D, McCuey for plaintiffs in error.

Hill & Broadheady for defendant in error.

Brewer, J. In an action commenced by plaintiffs in error an
attachment was issued, placed in the bands of the sheriff, and by
him levied upon certain mill property. Pending the attachment
proceedings, the sheriff, under direction of plaintiffs in error, em-
ployed defendant in error to watch the property, and this action
was brought by defendant in error, plaintiff below, to recover foi



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252 KANSAS,

Tomer v. Webster.



such services. That the sheriff was authorized by plaintiffs in
error to employ defendant in error, and that the latter performed
the services, are conceded facts. The dispute is as to the compen-
sation. Webster claims that the contract price was three dollars
per day, and that it was worth that amount; while Turner & Otis
say that they authorized the sheriff to contract for only one dollar
and a half a day, and the sheriff says that that was all he prom-
ised to pay. The misunderstanding seems to have arisen in this
way. After the attachment Turner & Otis requested the sheriff to
find some one to guard the mill. Meeting Webster he asked him
what he would undertake the job for. He replied, one dollar and a
half a day, and nights the same. The sheriff understood him to
say and mean one dollar and a half for each day of twenty-four
hours, while plaintiff meant that amount for a day of twelve hours,
and the same for the night time, or three dollars for every twen^-
four hours. The sheriff reported the offer to Turner & Otis as he
understood it, and they, after some hesitation, told him to accept
the offer and employ Webster. Without further words as to the
price the sheriff gave the key of the mill to Webster, and told him
to go ahead. Now the contention of plaintiffs in error is that the
case turns on the law of agency ; that they never personally em-
ployed Webster; that the sheriff was only a special agent with
limited powers, only authorized to bind them by a contract to the
amount of one dollar and fifty cents per day of twenty-four hours;
that Webster is chargeable with notice of the extent of the sheriff's
authority, and can enforce the contract as against the plaintiffs in
error to the extent only of such authority. For any contract
beyond that amount the special agent binds himself alone, and not
the principal. On the other hand, the defendant in error contends
that where services are contracted for and rendered, and no price
stipulated, the law awards reasonable compensation therefor, and
that where there is a misunderstanding as to the price, the one
party understanding it at one sum and the other at a different
there is no stipulation as to the price, and that it makes no differ-
ence whether the contract be made through an agent or with the
principal directly. In the case at bar he contends that it is imma-
terial that the conversation and misunderstanding were with the
sheriff, the agent, and that the rule is just the same as though
the talk and misunderstanding had been with Turner & Otis per*
sonally.



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JULY TERM, 1880. 253



Turner v. Webster.



We think the case rests upon the propositions advanced by the
defendant in error. It will not be questioned that where the
minds of two contracting parties do not come together upon
the matter of price or compensation, but do upon all other matters
of the contract, and the contract is thereupon performed, the law
awards a reasonable price or compensation. Thus, where shingles
were sold and delivered at $3.25, but there was a dispute as to
whether the $3.25 was for a bunch or for a thousand, it was ruled
that unless both parties had understandingly assented to one of
those views there was no special contract as to price. Chreene ♦.
Bahman, 2 Woodb. & M. 239. It is said by Parsons in his work
on Contracts, vol. 1, p. 389, that '' there Is no contract unless the
parties thereto assent; and they must assent to the same thing in
the same sense.'' Here Webster never assented to a contract to
work for $1.50 a day. He agreed to do a certain work, and did it,
but his understanding was that he was to receive $3 per day. Tur-
ner & Otis employed him to do that work, and knew that he did
it; but their understanding was that they were to pay but $1.50 a
day. In other words, the minds of the parties met upon everything
but the compensation. As to that there was no (iggregatio mentiunu
What, then, should result? Should he receive nothing because
there was no mutual assent to the compensation? That were mani-
fest injustice. Should his understanding bind both parties ? That
were a wrong to them. Should theirs control? That were an
equal wrong to him. The law, discarding both, says a reasonable
compensation must be paid. So that if the negotiation had been
between the parties directly, and this misunderstanding had arisen,
the rule of reasonable compensation would unquestionably have
obtained. Now, how does the law of agency interfere? The
proposition of law advanced by counsel for plaintiff in error, that
a special agent binds his principal to the extent only of the authority
given, and himself by any promise in excess, is clear. But the agent
made no promise in excess of his authority. He promised that which
he was authorized to promise. That the other party misunder«
stood the extent of the promise, is surely no reason for holding the
agent bound for more than he did in fact promise. The agent
has rights as well as the principal. The work is not done for his
benefit He has discharged his agency m good faith, and to the
best of his ability. Why should he be mulcted in any sum on ac-
count of the misunderstanding of the party with whom he con-



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254 KANSAS^

Smith V. Rogers.



tnicted P If compensation were given on the basis of his promise,
then, if his promise was in excess of his authority, he should be
responsible for the excess ; bat where the promise is ignored, and
compensation given on the basis of value alone, he should not be
charged with the excess of such value above his authority. An
agent is responsible for good faith. That is not questioned. He does
not insure, either to his principal or the opposite party. Acting
in good faith, and to the best of his ability, we can see no reason
for making him responsible for any mere misunderstanding. Jus-
t)be is done to all parties by ignoring any promise or understanding
as to compensation and giving to the laborer reasonable compensa*
tion for the work done, and requiring the party receiving the bene-
fit of such work to pay a just and reasonable price therefor.

The case was submitted to the jury upon this basis, and while
the instruction asked by plaintiffs in error, and refused, was un-
questionably good law in the absttact, and while some criticism
might fairly be placed upon one of the instructions given, and upon
the answers of tho jury to two special questions, we think the main
question was fairly presented and that no error appears justifying
a reversal of the judgment, and it will be affirmed.

Judgment affirmed.

All the justices concurring.



Smith v. Boobbs.

CM Kaiu. 140.)

Parent and child -J-step^hild^^ support.

When a step-father has voluntarilj assamed the caro and support of hlsstq;^
child, he cannot recover for compensation therefor. (See note, p, 356.)

ACTION on account. The opinion states the case. The defend-
ant had judgment below.

Hentig <& Sperry, for plaintiflP in error.

A, B. Jetmore, for defendant in error.

Valentine, J. This was an action brought by the plaintiff in
error, in the Probate Court of Shawnee county, on an account against



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JULY TERM, 1880. 255

Smith y. Rogers.

the defendant in error, as executor of the estate of Emma J.
Rogers, deceased, who at the time of her death was the wife of the
defendant in error. When the said Emma J. Rogers was seven
years of age, her mother intermarried with plaintiff in error, and
said Emma J., with her brother, lived with her mother and step-
father as one of the family, working and discharging the duties of
a chilJ, without any contract or understanding that she was to be
paid for her labor, or that she was to pay for her maintenance.
After she became of age, she married the defendant, aad soon after
her marriage, died. The account of the plaintiff in error is for
board and clothing, furnished to said Emma J., his step-child,
while she was a minor. The plaintiff proved his account in accord-
ance with the facts above stated, and rested; whereupon the defend-
ant in error moved the court for judgment upon the pleadings and
evidence, which motion was sustained by the Probate Court, The
plaintiff took the case to the District Court on petition in error,
where the judgment of the Probate Court was aflQrmed, and the
plaintiff now brings the case to this court for review.

The only errors complained of by the plaintiff in error as occurring
in either the Probate Court or the District Court, areas follows: Firsts
The court erred in sustaining the motion of the defendant for judg-
ment Second, The said judgment was given for the said defendant^
when it ought to have been given for the said Charles E. Smith,
according to the law of the land.

Did either court commit any substantial error? For the pur-
poses of this case, we shall suppose that the plaintiff in error has
80 preserved his exceptions to all questioned rulings of the courts
below, and so got his case into this court, that we may hear and de-
termine the case upon its merits; but this supposition is extremely
favorable to the plaintiff in error. Upon the merits of this case,
we think the plaintiff in error must fail. He cannot recover for
the board, clothing, etc., for which he has charged. During all the
time while he was furnishing such board, etc., he stood m loco par*
mtis toward the said Emma J. Rogers, then Emma J. Hill. They
Bustained the relation toward each other of substantially parent and
child. When said Emma J. was only seven years old, and living
with her mother, Mrs. Susannah Hill, the plaintiff married the
mother and took the child along with the mother to live with him;
and from that time on, for about twelve years, the girl lived with
her mother and the plaintiff as one of their family, receiving board-



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256 KANSAS,



Smith v. Rogers.



ing, clothing, schooling, etc., and performing services as one of the
family with no thought or expectation on the part of any one that
anybody should give or receive any other or further compensation
for these mutual benefits and services. When the girl was about
nineteen years old, she married the defendant, and soon afterward
died. The defendant having been appointed her executor, the
plaintiff commenced this action in the Probate Court against him,
with the result aforesaid.

We think the decisions of the courts below were correct We
think Mr. Schouler in his work on the Domestic Belations (p. 378),
states the law governing this case very correctly. His language is
as follows: '^It is well settled that in the absence of statutes, a
person is not entitled to the custody and earnings of step-children,
nor bound by law to maintain them. Yet if a step-father volun-
tarily assumes the care and support of a step-child, he stands in
loco parentis ; and the presumption is, that they deal with each
other as parent and child, and not as master and servant — in
which case the ordinary rules of parent and child will be held to
apply, and neither compensation for board is presumed on the one
hand, nor for services on the other." We do not think that the
plaintiff is entitled to recover in this case, and hence the judgment
of the court below must be affirmed.

Judgment affirmed.

All the justices concurring.

NoTB BT TBS RcpoRTKR.— In Qtrdf y. W^mt^ Iowa Supreme Oourt, October 90, 1680,
11 Rep. 199, an acdon for board, it was held that where a step-father receives a step-son
into his family, he is entitled, while standing in loco parent ig, to the rights and is subject
to the liabilities of an actual parent. The court said: '* It is said, however, that the de-
fendant was under no obligation to maintain the child of his wife by a former marriage.
We have no occasion to determine the question whether the defendant could have been
compelled to take his wife's child into his family and maintain it as his own. But we be*
lieve it is well settled that he is liable when he takes such children into his family and keeps
them as part thereof. When this relation exists between the parties, the child cannot re-
cover for services rendered, and the step-father cannot ordinarily recover for the support
and maintenance of the child. When a roan stands in loco parentis^ he is entitled to tlie
rights and subject to the liabilities of an actual parent, although he may not have been
legally compelled to assume that situation. Wmiam% v . Hutchinson^ 3 N. T. 312 ; Stout v.
CarVy 8 Esp. 1; Cooper v. MarHn^ 4 East, 78 ; and see, Bradford v. BodJUh^ 39 Iowa, 681.
It appears from the report made the defendant in this case, that when the plaintiff was
three months old he took him into his family and txmrded him, furnishing him with bii
clothing and other necessaries, as one of his own children. Under these circumstances
the relation between the parties was that of parent and child, with like obligations. Brad'
ford V. Bodfish, aupra."' In the latter case, it was held that the step-father, assumingthe
place of the parent, was responsible for education and maintenance. And In WiUiami v.
JJiiichinrnn^ ntpra^ it was held that the step-child, under such circumstances, could not
maintain an action for services to the step-father, although their value exceeded the e»



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■LC^



^^ JTJLY TERM, 1880. £57

^^^^^ 8ute V. Wilflon.

'^eoA^'^ **^****^*''' and support. The court said: •* The policy of the law seems to be

e^^^'^ftge and protect that relation — to encourage an extension of the circle and influ-



Online LibraryIrving Browne Isaac Grant ThompsonThe American reports: containing all decisions of general ..., Volume 36 → online text (page 30 of 123)