red its payment. He denied all other alleged loans. He admitted the receipt of a part only of the goods charged against him in the counterclaim, and averred the total value of the goods received to be $19.01. The case presents to us questions of fact only. The principal testimony is that of the parties themselves. It is difficult to say which of the two is the most unworthy of credit. The plaintiff is the brother of the defendant's wife. He has had a varied experience in different lines of business. He had had a limited experience in merchandising. For the last three or four years, however, before he came to the defendant, he was engaged in the liquor business. While working for the defendant he was engaged in negotiations for the purchase of an interest in a vaudeville theater. As to some of the items in controversy, we will not take the space to discuss the evidence. The plaintiff's claim of partnership in the Malcolm stock is not proved. We find no merit in any of the items of the counterclaim, except the claim for goods received and the item of $10 for money loaned. Turning to the petition, it is undisputed that the defendant did receive of the plaintiff $1,400 and that $300 thereof was later returned in the form of a certificate of deposit, such return being made during the trial. It is also undisputed that the plaintiff received from the defendant $100 in April, 1909. The plaintiff claims, however, that such sum was paid upon his wages, whereas defendant claims that it was a partial return of the money in his hands. [1, 2] The difficult question in the case is to determine whether the plaintiff is entitled to recover the item for wages claimed by him. The evidence of the parties is in direct conflict. Were it not for one item of the evidence, we would be disposed to find a failure of proof. It appears, however, that during the period referred to the defendant held three "special sales" on different dates. These were separately advertised, and in each case the plaintiff was named as the "sales manager." These advertisements were prepared by the defendant. We think that they must be regarded now as in the nature of admissions by the defendant that the plaintiff was in his employ. The defendant operated a store at Mason City. Plaintiff's alleged services were rendered in such store. An important part of defendant's business consisted in buying bankrupt stocks. His method of operation was to sell as much of the stock so purchased as possible at the place of purchase, and then to ship the remainder to his store at Mason City. During a considerable part of the time for which the plaintiff claims wages, the defendant was absent at Malcolm, looking after one of such stocks. The defendant denies that he ever employed the plaintiff at all. His conduct is inconsistent with such denial, and we find against him at this point. We do not find it easy to believe that the defendant agreed to pay the plaintiff $100 per month as wages, but we must find that he agreed either expressly or impliedly to pay him something. If the defendant could have made his denial less sweeping and could have told us his version of what the agree ment of employment really was, we might have reached a more satisfactory conclusion at this point. We feel compelled to say that there is some preponderance of evidence in the plaintiff's favor upon this item. Turning to the counterclaim, we think the preponderance is with the defendant on the item of $10. It is undisputed that the defendant paid such item. The claim of the plaintiff that it was paid upon a pre-existing debt is not proved. The claim of $60.50 for goods received by the plaintiff presents some difficulty. Only the parties themselves testify on this item. We are impressed that the defendant claims too much and that the plaintiff concedes too little. In view of our conclusions already announced, it becomes unnecessary for us to find definitely upon it. If the full amount claimed by defendant were allowed, it would still leave a recovery to the plaintiff of about $1,250 as of the date of the trial below and including one year's interest. The amount allowed by the trial court is $1,247. [3] The plaintiff has not appealed, and he cannot recover a larger judgment here than he obtained in the court below. It is sufficient to say, therefore, that he is entitled to the amount awarded him by the trial court. The decree entered below is therefore affirmed. STATE V. MCCLELLAND. (Supreme Court of Iowa. Nov. 15, 1911.) 1. BIGAMY (§ 9*)-EVIDENCE-CERTIFIED RECORD OF FORMER MARRIAGE. Where, in a prosecution for bigamy, defendant claimed that he was not legally married to prosecutrix, because at that time he was married to B., the record of a divorce obtained by B. in another county, prior to defendant's marriage to prosecutrix, was admissible. [Ed. Note.-For other cases, see Bigamy, Cent. Dig. §§ 34-53; Dec. Dig. § 9.*] 2. NAMES (§ 16*)-IDENTIFICATION OF PERSONS-SUFFICIENCY. Defendant, whose name was Robert R. McClelland, was indicted for bigamy, and denied liability, on the ground that, when he married prosecutrix, he was already married to Florence E. "Byerly." Thereupon the state introduced a certified copy of a district court record, showing that Florence E. McClelland had obtained a divorce from R. R. McClelland prior to his marthe plaintiff be permitted to assume her maiden riage to prosecutrix; the decree providing that name of Florence E. "Bryarly." It was also shown that defendant had given his name as R. R. McClellan, instead of Robert R. McClelland. Held, that the name "Bryarly" and the name "Byerly" of defendant's former wife were so nearly alike that the names used in the decree, in connection with defendant's admission to prosecutrix that he had been married before, but that his wife had been divorced, were sufficient to identify defendant as the party defendant in the divorce suit. [Ed. Note.-For other cases, see Names, Cent. Dig. §§ 12-14; Dec. Dig. § 16.*] Appeal from District Court, Floyd County; C. H. Kelley, Judge. The defendant was convicted of the crime of bigamy, and appeals. Affirmed. J. H. Lloyd and W. M. Brouillard, for appellant. George Cosson, Atty. Gen., and John Fletcher, Asst. Atty. Gen., for the State. this case should not be permitted to stand if he has been illegally convicted, the court certainly will not indulge in finespun theories for the purpose of reversing the judgment of the trial court. [1, 2] The certified record of the district court of Humboldt county was properly admitted in evidence, and we think the names of the parties to that action, together with the defendant's own declaration that he and his former wife had been divorced, a sufficient identification of him as the party defendant therein. That action was brought by Florence E. against R. R. McClelland. land, and the Kossuth county wife's maiden The defendant's name is Robert R. McCleldecree the plaintiff was permitted to assume name was Florence E. Byerly, and in the the maiden name of Florence E. Bryarly. The defendant says, however, that the name "Bryarly" used in the decree is conclusive evidence that the plaintiff was not his former wife. We do not think so. It is so nearly the same as "Byerly" in sound and in appearance that either the judge or clerk might easily make the mistake in the spelling thereof. This is illustrated by the fact that the very record that the defendant introduced to prove his marriage to Florence E. Byerly gives his name as R. R. McClellan, instead of Robert R. McClelland, and this record also shows that he used the initials "R. R." in SHERWIN, U. J. The defendant was married to Ruth Thompson, in Minnesota, on the 24th of November, 1906, and they lived together over three years, when they separated. On the 29th day of June, 1910, the defendant was married to Rosella Fingalsen, in Floyd county, Iowa. His Minnesota wife was then living, and they had not been divorced. Thereafter he was indicted in Floyd county | for bigamy; the indictment alleging his marriage to Rosella Fingalsen while he had a lawful wife living, to wit, Ruth McClelland, to whom he was married in Minnesota. In addition to his plea of not guilty, the defend-place of his full given name. The difference ant pleaded that he was never legally married to Ruth Thompson. On the trial, the defendant proved that he was married to one Florence E. Byerly, in Kossuth county, Iowa, on the 29th day of September, 1902, and that Florence E. Byerly was living at the time of his marriage to Ruth Thompson in Minnesota. To meet this evidence, the state put in evidence a certified copy of the district court record of Humboldt county, Iowa, which showed that Florence E. McClelland had obtained a divorce from R. R. McClelland in that court on the 16th day of February, 1905; and the state also proved that, shortly prior to his marriage to Ruth Thompson, the defendant told her that he had been married before, but that he and his wife had been divorced. This certified record from the Humboldt district court, and the defendant's statement to Ruth Thompson that he and his former wife had been divorced, was all of the evidence produced by the state, showing the actual divorce of the defendant and Florence E. Byerly, his wife of 1902, and the defendant claims that it was insufficient to sustain a finding that he was divorced from his first wife when he married Ruth Thompson in Minnesota. The defendant did not testify in his own behalf, but he produced witnesses who swore that they did not know that he had been divorced from Florence E. Byerly. The defendant is a confessed bigamist, and, while his conviction in in spelling is so easily accounted for that we think the jury was fully justified in finding that the plaintiff in the divorce action was the defendant's wife, Florence E. McClelland. The marriage of the defendant to Ruth Thompson in Minnesota, and to Rosella Fingalsen in Floyd county, were both fully prov en. those who witnessed or performed the cere The judgment should be, and it is, affirmed. ECKERT v. ECKERT et al. sulting trust in realty, held to show that plain- [Ed. Note.-For other cases, see Trusts, Dec. Dig. § 89.*] Appeal from District Court, Polk County; James A. Howe, Judge. Suit in equity to establish a resulting trust in an undivided one-half of certain real estate. There was a decree for the plaintiff. and the defendants appeal. Modified and affirmed. Chester J. Eller, for appellants. lin & Shankland, for appellee. McLaugh- | fectionately until the defendant was married EVANS, J. The plaintiff is the mother of the defendant. The mother is 75 years old, and the defendant is 45. The defendant never married until within a few months before this controversy arose. For nearly 45 years, the mother and son lived together, and had but one purse. The mother was widowed when her boy was but three years old. They lived at that time in Kansas City, and continued to live there until 1901, when they moved to Des Moines. In time the boy became the wage-earner for the family, conIt is the contention on behalf of the plainsisting originally of himself and his mother, tiff that she contributed one-half of the price and a sister two years older. Since his ma- to the purchase of the premises, and that, jority, if we understand the record, the son inasmuch as the title was taken in the name was the only wage-earner of the family. of the defendant alone, he should be deemed The mother carried the purse. The son to hold the title to the undivided half therebrought all his wages to her, and they con- of in resulting trust for the plaintiff. The stituted the only resources of both. Both rule of law applicable in such a case is a were industrious and frugal. While in Kan- familiar one, and the parties have no dissas City, savings were accumulated out of pute over it. The contention of the defendthe boy's wages to the amount of $350, and ant is that he purchased the property upon were lost by a bank failure. After that time, his own initiative and as his own property, the mother kept the further savings in her and that the money used in payment thereown custody. In the fall of 1901, they mov- of was his money. He concedes that he reed to Des Moines; the son obtaining employ-ceived from his mother the $350 proceeds ment here. Shortly after their arrival, the son bargained with one Rundberg for his equity in the real estate in controversy. It consisted of an acre and a half of ground, with a small house thereon. Rundberg held the same by contract only; the legal title being in one Mary Thornton. The consideration to be paid consisted of $190 to be paid to Rundberg, $471 to be paid to the Jewett Company on account for building material, and $750 to be paid to Mary Thorn ton. The first payment consisted of $50. This was followed by two other payments of $200 and $350, respectively. Some other payments appear to have been made before the title was taken, but the record before us does not disclose what they were. In April, 1902, title was conveyed by Mary Thornton to the defendant John H. Eckert, and a mortgage back for the balance of the purchase money was executed by Eckert. It is stated in the appellee's brief that the amount of the purchase-money mortgage was $205, but we are unable to determine the fact in any other way upon the record. Of the money paid prior to April 1902, $350 was money received by the plaintiff from the sale of the late home in Kansas City. The other payments were all made out of the savings from the defendant's earnings. After April, 1902, both mother and son occupied the home together. In the course of three or four years, the purchase-money mortgage was paid off out of the earnings of the defendant, and the proceeds of fruit sold from the property. The living expenses also came from the same sources. The parties lived togeth er upon the premises harmoniously and af of the sale of the Kansas City home, but We think, also, that it should be held that PER CURIAM. This action was commenced in April, 1907; the petition alleging: That, between the 20th day of November, 1887, and the 26th day of September, 1906, the plaintiff and Nellie Kinkead were husband and wife, and lived together as such; that at different times between the 29th day of December, 1904, and the 26th day of Septem the plaintiff did contribute $350 to the purchase price, and this should not be deemed a loan. To that extent, a resulting trust should be declared in her favor. Her petition alleges that the property cost approximately $1,500. The only items we find in the record are those already enumerated, which amount in round numbers to $1,400. On this basis, she contributed one-fourth of the pur-ber, 1906, the defendant had sexual interchase price. The decree entered below will be modified so as to declare a resulting trust in her favor as to the undivided one-fourth of the premises. Let each party pay one-half of the costs of this court. Modified and affirmed. KINKEAD v. KENNEDY. (Supreme Court of Iowa. Nov. 17, 1911.) 1. EVIDENCE (§ 265*)-ADMISSIONS-WEIGHT. Admissions of a party are competent, and when deliberately and understandingly made, and correctly understood, they are entitled to great weight; but their weight is generally a question for the jury. [Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 1029-1050; Dec. Dig. § 265.*] 2 EVIDENCE (§ 265*)-CRIMINAL CONVERSATION-ADMISSIONS QUESTION FOR JURY. Where a husband, suing for criminal conversation, proved admissions of defendant to himself, made after plaintiff and his wife had been divorced, and the admissions were not denied or explained, the question whether they were sufficient to support the action was for the jury. [Ed. Note. For other cases, see Evidence, Dec. Dig. 265.*] 3. HUSBAND AND WIFE (8 350*)-CRIMINAL CONVERSATION-LOSS OF CONSORTIUM. Where the petition pleaded criminal conversation, and negatived loss of consortium by averring that plaintiff and his wife lived together as such during the time of defendant's misconduct, but the evidence showed that plaintiff and his wife, though living in the same house during that time, did not live together as husband and wife, and that defendant, during that time, frequently had intercourse with plaintiff's wife, and the evidence of loss of consortium during that time was received without objection, and was uncontradicted, the court erred in directing a verdict for defendant, under the rule that, where either loss of consortium or criminal conversation is shown, the law presumes pecuniary damages. [Ed. Note. For other cases, see Husband and Wife, Cent. Dig. § 1135; Dec. Dig. § 350.*] 4. LIMITATION OF ACTIONS (§ 182*)-AFFIRMATIVE DEFENSE NECESSITY OF PLEADING. course with the plaintiff's said wife. The answer was a general denial. There was a trial to a jury, but, at the close of the plaintiff's evidence, the court, on the defendant's motion, directed a verdict for him. The plaintiff appeals. The evidence offered in support of the allegations of the petition consisted wholly of the alleged admissions of the defendant to the plaintiff in person, made after the plaintiff and his wife had been divorced, and appellee contends that the conditions under which such admissions were made entitled them to no weight. [1, 2] Admissions are competent, and the weight which shall be given them is generally a question for the jury. When the admissions are deliberately and understandingly made, and correctly understood, they are often entitled to great weight. In this case, the alleged admissions were not denied or explained, and whether they were sufficient to sustain the plaintiff's claim was clearly a question for the jury, and not for the court. [3] 2. The plaintiff says that the cause of action pleaded is for criminal conversation alone, and, because actual damages were not alleged, there can be no recovery. It is true that the petition did not allege loss of consortium, and negatived such loss by averring that the plaintiff and his wife lived together as such until September 26, 1906, and asked general damages only. But the defendant denied all of the allegations of the petition, and the evidence showed that, as a matter of fact, the plaintiff and his wife had not lived together as husband and wife, though living in the same house, for two years prior to their divorce. The evidence further showed that during these two years the defendant was frequently having sexual intercourse with the plaintiff's wife. The evidence of loss of consortium for two years seems to have been received without objection, and it was not contradicted. Whether such loss of consortium The defense that an action is barred by was caused by the relation existing between limitations is affirmative, and must be pleaded. the defendant and the plaintiff's wife was [Ed. Note.-For other cases, see Limitation a question for the jury under the undisputof Actions, Cent. Dig. §§ 676-682; Dec. Dig. Sed facts shown by the evidence. Where ei182.*] ther loss of consortium or criminal conver Appeal from District Court, Linn County; sation is shown, the law presumes pecunW. N. Treichler, Judge. "Not to be officially reported." The opinion states the case. Reversed. Jamison, Smyth & Hann, for appellant. Voris & Haas, for appellee. iary damages, and it was therefore error for the court to direct a verdict for the defendant. 21 Cyc. 1631, and cases cited. [4] 3. The appellee contends in his argument that the action was barred by the KREHBIEL v. HENKLE. STATE v. JOHNSON. (Supreme Court of Iowa. Nov. 14, 1911.) 1. RAPE (8 48*)-EVIDENCE-ADMISSIBILITY. On a trial for rape, it is error to exclude evidence that the complaint, made by prosecutrix and her sister, an eyewitness, was of an assault with intent to murder, and not for an assault with intent to rape, or for rape. [Ed. Note.-For other cases, see Rape, Cent. Dig. §§ 67-69; Dec. Dig. § 48.*] 2. WITNESSES (§ 370*)-CREDIBILITY-BIASEVIDENCE-ADMISSIBILITY. that she had a motive in testifying against him, cause of his relations with prosecutrix, and was improperly rejected. A wrongful and malicious search of plain-fied against accused, was angry with him beProof that prosecutrix's sister, who testitiff's home for stolen property is such an invasion of his rights as to cause mental suffering and humiliation for which the wrongdoer must respond in actual damages, though incapable of exact measurement, and though the act did not affect plaintiff's standing in the community. [Ed. Note.-For other cases, see Searches and Seizures, Cent. Dig. § 6; Dec. Dig. § 8.*] Petition for rehearing denied. For former opinion, see 129 N. W. 945. PER CURIAM. The finding of the original opinion that the eighteenth paragraph of the court's charge was erroneous should be more fully considered to prevent possible misunderstanding of the opinion. The intention was to hold that it was erroneous as applied to the facts in this case without further direction to the jury as to what would constitute actual damages under the circumstances. The wrongful and malicious search of the plaintiff's home for the avowed purpose of finding stolen property there in was such an invasion of the plaintiff's rights as to cause mental suffering and humiliation for which the defendant must re [Ed. Note.-For other cases, see Witnesses, Cent. Dig. § 1189; Dec. Dig. § 370.*] 3. CRIMINAL LAW (§ 783*)-CAUTIONARY IN STRUCTIONS. Where the court in its charge made no reference to the proof of accused's prior convic tion of a felony, as authorized by Code, § 4613, the refusal to give a requested charge that such evidence could only be considered to test his credibility as a witness was erroneous. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 1875; Dec. Dig. § 783.*] 4. RAPE (§§ 40, 44*)-EVIDENCE-ADMISSIBILITY. Proof that prosecutrix was a lewd woman, and that she had lived with accused as his mistress, was admissible as substantive proof of the fact that whatever accused did was with her consent, and must be so considered as bearing on the included offense of assault with intent to commit rape; and a charge, limiting such proof to a determination of whether accused would be likely to commit the crime charged at the time and place and in the manner testified to by prosecutrix, was reversible error. [Ed. Note.-For other cases, see Rape, Cent. Dig. §§ 55-59, 63, 64; Dec. Dig. 88 40, 44.*] Appeal from District Court, Polk County; Lawrence De Graff, Judge. Indictment for rape. Trial to a jury, verdict of an assault with intent to commit rape, and defendant appeals. Reversed. T. L. Sellers, for appellant. George Cosson, Atty. Gen., and John Fletcher, Asst. Atty. Gen., for the State. spond in actual damages, although such damages are not capable of exact measurement in dollars and cents. McKinely v. Railway Co., 44 Iowa, 315, 24 Am. Rep. 748; Shepard v. Railway Co., 77 Iowa, 54, 41 N. W. 564; 1 Sutherland on Damages, 716. If the feelings of the wronged party are injured, if he feels the disgrace and indignity of the wrongful act, he is entitled to actual damages, though the act itself may not have lessened the esteem of his neighDEEMER, J. The case as made for the bors and friends, or have affected his stand-state is practically as follows: Defendant ing in the community. Such damages can- is a colored man, about 33 years of age, and not be proved or measured as ordinary dam- prosecutrix is a colored woman, eight years No one would undertake to say older than defendant. Defendant has servhow much damage in dollars had been suf-ed at least one term in the penitentiary and fered on account of a wanton and malicious tort, nor is it necessary to so say. 12 Am. & Eng. Enc. of Law, 30. The instruction undoubtedly announced the correct abstract rule applicable in many cases, but it was misleading here, and consequently erroneous, because the jury was nowhere clearly instructed that actual damages might be allowed for the indignity offered by the defendant and for the mental pain alone suffered on account thereof. ages are. The petition for rehearing is overruled. many terms in county or city jails. Prosecutrix is a woman of bad moral character and undoubtedly a prostitute. At the time in question, prosecutrix was living with her sister in South Des Moines, and defendant had just been released from jail. The house in which prosecutrix lived had but two rooms; the back one being a kitchen and bedroom combined, and the front a sort of sitting room. Prosecutrix claims that at the time charged in the indictment she was looking over some samples of combs, which a travel |