is limited to the difference between the contract price and the actual value. Moodey v. Brown, 34 Maine, 187, and authorities there cited. Allen v. Joines, 20 Conn. 38; Garison v. Madigan, 13 Wis. 67.

We think, from an examination of the authorities cited by counsel, as well as others that have come under our observation, that the true rule is that where everything has been done by the vendor which he is required by his contract to do, and the manufactured property in its completed condition is tendered to the purchaser and he refuses to receive it, and it is held by the vendor for the purchaser, that the vendor may recover the contract price. The result of the judgement in such cases would be to vest in the purchaser the title to the property. But where, as in the case of manufactured articles, something remains to be done by the vendor which requires the co-operation of the purchaser, and the purchaser refuses to perform, the contract price cannot be recovered. To adopt the contrary rule would allow the purchaser to recover for a manufactured article, which is yet incomplete and unfinished, the full price of a finished article, and would be giving him more than his actual damages. We find no case which adopts such a rule.

Affirmed.

THE STATE OF IOWA, Appellee, vs. PETER P. STEWART,

Appellant.

Filed October 28, 1879.

A general instruction to the jury in a criminal case that they should acquit, if on the the whole case they have a reasonable doubt, sufficiently directs them that each material fact must be established beyond such doubt. Upon the trial of an indictment for attempting to procure an abortion, the fact of the pregnancy, as well as the administering of the drugs or use of instruments, must be proved beyond a reasonable doubt. Charging a jury that the fact of pregnancy must be fully and clearly proven, is not equivalent to charging that it must be proved beyond a reasonable doubt. The definition of a reasonable doubt, as given in this case, held to have been prejudicial to defendant.-[ED.

Appeal from Harrison district court.

**

The indictment charged that the defendant "did unlawfully, wilfully, and feloniously administer to one Surrilda Purcell, who was then and there a pregnant woman, certain drugs and substances, and did then and there unlawfully use a certain instrument with intent then and there and thereby to produce the miscarriage of the said Surrilda Purcell, such miscarriage

* *

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not being neces

sary to save her life."

ment, and defendant appeals.

Cochran & Bailey, for appellant.

J. F. McJunkin, for the state.

SEEVERS, J. 1. The second and third instructions given the jury were as follows:

"2. There are in the offence, with which the defendant is charged as enumerated in the indictment herein, the following material allegations, to-wit: First, that on or about the first day of November, 1878, said Surrilda was pregnant. Second, that the defendant, Stewart, wilfully administered to said Surrilda Purcell some drugs, or drugs or substances, with the intent to produce the miscarriage of said Surrilda Purcell, or that he used some instrument upon said Surrilda with the intent to produce her miscarriage. Third, that this was done by defendant at and within this county and state, and on or about the first day of November, 1878, and while said Surrilda was pregnant.

"If the first and third of the foregoing material allegations are fully and clearly proven, and either the first or second averment of the second allegation is proven beyond all reasonable doubt, and you are further satisfied beyond all reasonable doubt of the guilt of the defendant, your verdict should be guilty. If not so satisfied, then your verdict should be not guilty.

"3. A reasonable doubt is such a doubt as fairly and naturally arises in the minds of the whole jury after fully and carefully weighing and considering all the evidence which has . been introduced herein during the progress of the trial, when viewed in the light of all the facts and circumstances surrounding the same."

It is insisted these instructions are erroneous, and in relation thereto we have to say, (1) in order to constitute the crime charged Surrilda Purcell must have been pregnant at the time the drugs were administered or instrument used with intent to produce the miscarriage. Unless the fact of pregnancy was established beyond a reasonable doubt the defendant was entitled to an acquittal. But it does not follow that the jury should be instructed to this effect. It is sufficient if the jury are instructed they should acquit if, upon the whole case, they have such a doubt. When such an instruction is given it covers the whole ground, and necessarily includes such material fact required to convict, and sufficiently directs the jury that each material fact must be established beyond a Iowa.

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BUND

LEY

reasonable doubt. The State v. Felter, 32 Iowa, 53; The State v. Hayden, 45 Iowa, 17. If we understand the second instruction the jury are told that it is sufficient if the existence of pregnancy has been "fully and clearly proven." This is not equivalent to saying it must be established beyond a reasonable doubt. A clear, well-defined, and, we doubt not, intentional distinction is drawn between pregnancy and the administration of the drugs or use of the instrument. It must be presumed the jury understood the distinction thus drawn, and that the fact of pregnancy was only required to be fully and clearly proven, while the use of the instrument or administration of drugs must be established beyond a reasonable doubt. This, we think, constitutes error to the prejudice of the defendant, and that it is not cured by the subsequent remark that if the jury "are satisfied beyond a reasonable doubt of the guilt of the defendant" they should so find; for the jury are not told if they have such doubt on the whole case they must acquit. Besides this, the latter part of the instruction is contradictory to that portion which indicates the degree of proof required to establish the fact of pregnancy. But we ground our opinion principally upon the proposition that the instruction draws a distinction between two facts, both of which should be established beyond a reasonable doubt, before the defendant could be convicted.

2. The definition of reasonable doubt, in the third instruction, is "such as arises in the minds of the whole jury." If by this it was meant that there must be such doubt before there could be an acquittal, it is correct. The State v. Rodabach, 19 Iowa, 154. But the difficulty is, whether the jury did not understand that if such doubt did not exist there should be a conviction. If this latter view is the correct one, then the instruction is erroneous, because it amounts to a direction to each individual juror to yield his convictions, unless the reasonable doubt entertained by him is shared by his fellows. While we have some doubt as to the proper construction of the instruction, we, on the whole, incline to think it was prejudicial to the defendant, and may have produced a conviction, when one or more of the jurors may have entertained a reasonable doubt of his guilt.

3. In view of a new trial it is proper to say that none of the objections to the evidence, or the admission thereof, are well taken. The objection made here to the admission of the evidence of the witness Hull is that it is not rebutting, but the objection below was that it was incompetent. It was

clearly competent and material, but it may not have been strictly rebutting.

Reversed.

S. B. BELLOWS, Appellant, vs. GEORGE TOD and others,

Appellees.

Filed October 28, 1879.

Where there is any remedy for a refusal of a trial judge to sign a fair bill of exceptions, it must be obtained before the case is passed upon by the appellate court. A party cannot submit his case upon a bill of exceptions known by him to be unfair and incomplete, take his chances, and failing to procure a reversal upon such bill, then maintain an action in equity to set aside the judgment in the court below, and on appeal, upon the ground that the court below fraudulently refused to sign a fair bill of exceptions.[Ed.

Appeal from Humboldt district court.

In May, 1870, plaintiff brought his action at law against the defendant Tod, to recover the west of the south-east 1, and lots 3 and 4, section 27, 92, 28. In May, 1871, there was a trial and judgment for the defendant. Upon the trial of the cause the plaintiff established a complete chain of title to all the lands in controversy. Plaintiff appealed to this court, and the judgment was reversed. See 34 Iowa, page 18. The case was again tried in February, 1873, and judgment was again rendered for the defendant. The plaintiff appealed. The abstract on which the cause was tried in this court failed to show one link in the chain of plaintiff's title, to-wit, a deed from Robert J. Hubbard to Grace H. Litchfield for lots 3 and 4. Because of this apparent defect in the plaintiff's title the judgment of the court below, as to lots 3 and 4, was affirmed. As to the balance of the property involved the judgment was reversed. A procedendo having issued, the plaintiff, on the seventh day of June, 1875, filed an amended petition in equity. This petition recites all the foregoing facts, and alleges that upon the second trial of said cause, on the twenty-fifth of February, 1873, the plaintiff introduced the original deed from Robert J. Hubbard and wife to Grace H. Litchfield, conveying said lots 3 and 4 in controversy; that the court upon its own motion appointed one Mr. Van Pelt, a short-hand reporter, to take down the minutes of testimony offered in evidence; that said reporter, in taking down and noting upon his minutes the testimony offered by your petitioner, which embraced a large number of printed and written documents, by accident or mistake neglected and omitted to take and note upon his minutes of

testimony the offer and introduction in evidence by your petitioner of the conveyance from Robert J. Hubbard and wife to Grace H. Litchfield, conveying said lots 3 and 4; that said reporter was unable and refused to furnish plaintiff a copy of his minutes during the term of court, and plaintiff, being thus unable to prepare and have signed his bill of exceptions during the term, applied to the court for time, and the court granted him forty days for that purpose; that the reporter furnished plaintiff with a copy of his minutes some four or five weeks after the adjournment of the term, and plaintiff then for the first time discovered that the reporter had failed to note in his minutes the offer and introduction in evidence of said deed from Hubbard to Grace H. Litchfield, conveying said lots 3 and 4; that plaintiff, in preparing his bill of exceptions in said cause, incorporated and put into the same the offer and introduction in evidence by him of said deed from said Hubbard to said Litchfield, conveying said lots 3 and 4, as the same was offered and introduced in evidence on the trial of said cause; that when he applied to the judge who tried said cause for the settlement and signing of said bill, said judge, though well knowing that said deed was in fact offered and introduced in evidence by your petitioner upon said trial, yet for the purpose of depriving your petitioner of a full, true and perfect bill of exceptions, wrongfully refused to sign said bill containing the statement of the offer and introduction in evidence by your petitioner of said deed from Hubbard to Litchfield, but struck the same out therefrom before signing the same, and thereby deprives your petitioner of the right to a full, true and perfect bill of exceptions, and wrongfully compelled your petitioner to take a bill of exceptions which said judge well knew did not show the offer and introduction of all the evidence offered on said trial, in this, that it did not show the introduction by your petitioner in evidence of said conveyance by said Hubbard to said Litchfield, which was one of the links in the chain of plaintiff's title to said lots 3 and 4 described in said petition; that your petitioner appealed from said judgment of the district court to the supreme court of Iowa, believing that for the manifest errors at law committed by said court on the trial of said cause, and which appeared in the record thereof, and by the uniform practice of said appellate court in such cases, so far as your petitioner was able to learn the same, that if said appellate court should find that the error complained of by your petitioner has been committed by said district court on the trial of said cause, (103)