position in the Code does not necessarily | praying that his title be confirmed in him as control its application, it is a significant circumstance, which should be accorded due weight, when we consider that no reference is expressly made to administrators, or to the settlement of estates.

It may be true, as counsel says, that there is just as much reason for giving preference to labor claims in the one case as in the other, but that is an argument to be addressed to the Legislature, and not to the court. We must look to the statute as it is written, and doing so we are compelled to hold that plaintiff does not bring himself within its terms.

The judgment below was right, and it is affirmed.

FRANZ et al. v. VINCENT (VINCENT,
Intervener).

(Supreme Court of Iowa. Nov. 14, 1911.) 1. VENDOR AND PURCHASER (§ 44*)-EXISTENCE OF CONTRACT-EVIDENCE.

Evidence, in an action, supported by attachment upon realty, in which intervener claimed to own the attached land, held to show that defendant and intervener had executed a binding contract before a certain date, to convey the land to the latter.

[Ed. Note.-For other cases, see Vendor and Purchaser, Dec. Dig. § 44.*]

2. VENDOR AND PURCHASER (§ 143*)-TITLEOBJECTIONS-WAIVER.

A purchaser of land, by writing to the vendor. requesting delivery of a deed, waived any further objections to the title.

[Ed. Note. For other cases, see Vendor and Purchaser, Cent. Dig. §§ 267-270, 311; Dec. Dig. § 143.*]

3. DEEDS (§ 38*)—VALIDITY-DESCRIPTION OF PROPERTY.

That a deed designated the township in which the land was situated by name, instead of by number, did not render it ineffective to pass the equitable title.

[Ed. Note.-For other cases, see Deeds, Dec. Dig. § 38.*]

4. VENDOR AND PURCHASER (§ 213*)-RIGHTS AND LIABILITIES OF PARTIES ATTACHMENT. Property which an owner had theretofore agreed to convey by valid contract was not subject to attachment.

devisee under his father's will. Plaintiffs claim-
ed that intervener was estopped from claiming
the land as against their attachment, because
plaintiffs' attorney, prior to the attachment, ex-
amined the records and discovered the pending
action, and was misled into believing from the
pleadings that defendant still owned the land.
Held, that intervener was not estopped from
claiming the land as against plaintiffs; he not
knowing of plaintiffs' interest in the land; and
the petition in such action not being inconsist-
ent with intervener's contract of purchase.
[Ed. Note.-For other cases, see Estoppel,
Dec. Dig. § 68.*]

Appeal from District Court, Muscatine
County; D. V. Jackson, Judge.

The

EVANS, J. The writ of attachment in question was levied upon June 17, 1909. The defendant was a nonresident of Iowa and a resident of the state of Pennsylvania. The intervener is a brother of the defendant, and claim of the intervener is predicated upon was a resident of Muscatine county. The the alleged purchase and sale of the attached real estate prior to the date of the levy. As against this claim, the plaintiffs contend that there was no completed contract of sale between the parties prior to June 17, 1909. They also pleaded an estoppel. The facts are not in dispute. We have to do, be drawn from the undisputed facts. therefore, only with the legal conclusions to defendant, Rolland Vincent, had owned the land in question for several years, having acquired the same by devise from his father. In January, February, and March, 1909, negotiations were had by correspondence between him and his brother Homer, who resided near the land, for the purchase and sale of the same. The intervener made an offer of purchase. The price and terms were agreed upon. These terms called for "merchantable title." Some question was raised by intervener's attorney as to whether the father's will conveyed a fee-simple title to the defendant, Rolland Vincent, and he advised Plaintiffs attempted to attach land claimed that action be brought to construe the will, by intervener by purchase from defendant, his and to obtain a confirmation of defendant's brother. Defendant had negotiated with intervener for the sale of the land before the at- title in that way. This subject was dealt tachment, and, to determine whether defendant with in the correspondence between the parhad a marketable title under his father's will, ties, and was assented to by the defendant. as called for by the contract of sale, intervener began a proceeding against defendant and the The defendant was also advised that if all other heirs, to construe the will; the petition the heirs assented to the proceedings there

[Ed. Note.-For other cases, see Vendor and Purchaser, Dec. Dig. § 213;* Attachment, Cent. Dig. § 151.]

5. ATTACHMENT (§ 175*)-RIGHTS OF ATTACHING CREDITOR.

In absence of fraud, the rights of an attaching creditor can be no greater than those of the debtor in the property attached.

[Ed. Note.-For other cases, see Attachment, Cent. Dig. 88 518-523; Dec. Dig. §*175.*] 6. ESTOPPEL (§ 68*)-EQUITABLE ESTOPpel.

would be no trouble in obtaining construc- | description of one piece of land, in that the tion of the will, confirming his fee-simple township had been designated by name, intitle. On March 20, 1909, the correspon- stead of by number. A part of the land was dence between the brothers culminated in described as located in Cedar township, the following: "Memorandum of Agree- Muscatine county, Iowa, instead of in townment. Letts, Iowa, Mar. 20, 1909. R. E. ship No. 76 north, etc. If we understand it Vincent sells his land joining my farm and correctly, the attorney obtained a corrected undivided one-third interest in timber to H. deed, which eliminated this error. Such W. Vincent for $8,000.00. R. E. furnishes corrected deed was not obtained until after abstract and merchantable title, leaves $4,- June 17th. The corrected deed was record000.00 in land at 5 per cent. for 5 years with ed, and the first deed was not. No money privilege of partial payments. Transfer to was paid on the purchase until about July be made as soon as possible and papers dat- 1st. The intervener learned of the attached March 1, 1909. H. W. pays his share of ment before he paid the purchase price. The expense having will interpreted by the court action to construe the will went to decree a and if merchantable title cannot be made, few days subsequent to June 17th. Such H. W. pays $350.00 cash rent for R. E.'s decree construed the will so as to confirm farm Sept. 1, 1909. H. W. pays 4 per cent. the defendant's title. The substance of the interest on money not left in land till trans- appellants' contention is that upon this state fer is made." This memorandum was for- of facts there was no completed contract of mulated by the intervener. It was never sign- sale between the parties at any time prior to ed by either party, but it was inclosed with June 17th. They also contend that the cona letter from the intervener to the defend- tract between the parties amounted to a ant, and referred to in such letter as fol- mere lease until the date of the decree, conlows: "I inclose herewith outline of agree- firming the defendant's title. On the other ment of how we should deal on land." On hand, the appellee contends that he held a March 26th, the defendant replied by letter, valid and enforceable contract of purchase as follows: "The agreement is O. K. Un- prior to June 17th, and that he was in posless you care to go to further trouble, sim- session thereunder, and that he became ply this memorandum is all I care for." thereby the equitable owner, and that the land was therefore not subject to seizure under attachment or execution against his grantor.

On May 21, 1909, the interevener wrote to the defendant as follows: "Letts, Ia., May 21, 1909. R. E. Vincent, Wellsboro, Pa. -Dear Brother: I saw C. A. Carpenter this a. m. He says the title of the land or the will, will be all O. K. in a few days. All have signed the notices and he says to make out the deeds, sign them before a notary and send them with the abstract to the Letts Bank and I will have mortgage and money on hand soon. How much money do you want to leave in the land? I would like $5,000.00; if it's $4,000.00 I can get along. * * Send those papers as soon as possible. Homer W. Vincent."

*

I

On May 25th, the defendant replied thereto as follows: "Wellsboro, Pa., May 25, 1909. H. W. Vincent, Letts, Iowa-Dear Bro.: I inclose tax receipts for taxes due to date since abstract was made. Have made out deed, signed and forwarded to bank as you said. The abstract was left at German-American Savings Bank, Muscatine; you may get it by asking for it there. have written them to hand it to you when you call for it. I leave it optional with you whether you give mortgage on the land or not. In case you do not give mortgage have Mrs. H. W. sign note with you. Wish to leave $4,000.00 in land; later on should you need use of some money, I may be able to help you out $500.00 or $1,000. R. E. Vincent."

In pursuance of this letter, the intervener called at the bank and got the deed, and took it to his attorney and left it there. The

[1] It is to be noted that there is no claim of fraud or bad faith, so far as this feature of the case is concerned. We have to deal here only with a naked legal question. We think it must be said that the negotiations between the brothers had reached a stage, prior to June 17th, whereby they had bound themselves to each other to performance. If it could be said that the memorandum of March 20th was insufficient for that purpose, there is little occasion for debate on that question after the correspondence of May 21-25, and the acts of the parties pursuant thereto.

[2, 3] The letter of the intervener was a call for his deed, and was a clear waiver of any further objection to the title. The response of the defendant thereto indicated clearly that the minds of the parties had met. The act of the defendant in executing and forwarding the deed in compliance with the intervener's request was in intent, if not in fact, a full performance of the contract on his part. The deed so delivered was valid, notwithstanding its alleged defect. It was in every respect consistent with the prior negotiations. If the defect had been even more substantial, it would have been quite immaterial, so far as the equitable ownership of the land was concerned. The mistake could not operate to release the defendant from the intended performance.

ed to a further waiver of all objection to | ed for "merchantable title." We reach the the title, and of all other objections, except conclusion that the case was rightly decidthe specified one. This objection went to ed in the trial court, and the judgment is the form, and not to the substance, and did therefore affirmed. not impeach or repudiate in any degree or in any sense the agreement of the parties.

If at any date, subsequent to May 27th, either party to the contract had sought to repudiate the same, it is very clear to us that upon the evidence contained in this record specific performance could have been enforced. Regardless of the question, therefore, of whether the legal title passed by the deed of May 25th (a question which we do not now decide), we are of the opinion that the equitable title passed thereby, if it had not already done so under the previous correspondence and contract.

[4] If there was a completed contract of sale prior to June 17th, then the land was not subject to seizure by attachment against the grantor. We do not understand appellant's counsel to controvert this legal proposition. Our previous decisions are decisive at this point. Baldwin v. Thompson, 15 Iowa, 504; Woodward v. Dean, 46 Iowa, 499; Scott v. Mewhirter, 49 Iowa, 487; In re estate of Miller, 142 Iowa, 563, 119 N. W. 977.

[5] In the absence of fraud, the right of an attaching creditor can rise no higher than that of his debtor in the property attached.

MURRAY v. CHICAGO, R. I. & P. RY. CO.
(Supreme Court of Iowa. Nov. 17, 1911.)
1. MASTER AND SERVANT (§ 217*)-INJURY TO
SERVANT-ASSUMPTION OF RISK-ELEMENTS.
The court in determining whether risks in-
cident to the operation of machinery are so ob-
vious as to have been necessarily appreciated
by an employé as a reasonably prudent person,
the age and experience of the employé, and the
so that he assumed them, may properly consider
nature of the dangers involved, as distinguished
from the mere obvious physical construction of
the machinery.

Servant, Dec. Dig. § 217.*]
[Ed. Note.-For other cases, see Master and

2. MASTER AND SERVANT (§ 288*)-INJURY TO
SERVANT ASSUMPTION OF RISK-QUESTION
FOR JURY.

Whether an operator of a laundry mangle failure to guard the machinery held, under the assumed the risk of injury arising from the evidence, for the jury.

[Ed. Note.-For other cases, see Master and Servant, Dec. Dig. § 288.*]

3. MASTER AND SERVANT (§ 153*)-OBLIGATIONS OF MASTER-INSTRUCTING SERVANT.

Where the dangers of an employment are not such that the employé, as a reasonably prudent person, in view of his age and experience as known to the employer, must have appreciatof the risks and dangers, must instruct the emed them, the employer, charged with knowledge ployé in regard thereto, and is negligent if he fails to do so.

[Ed. Note. For other cases, see Master and Servant, Dec. Dig. § 153.*]

4. MASTER AND SERVANT (§ 153*)-OBLIGATIONS OF MASTER-INSTRUCTING SERVANT.

A girl 17 years old was employed to operate a laundry mangle. She was inexperienced as to machinery in general, and without knowledge of a particular danger involved in the work,

an effort was made in special cases to prevent articles from becoming wound up in the machine. She had heard other employés often scolded for allowing articles to become wound up in the machine, and was injured while attempting to prevent it. Held, that the employer was guilty of actionable negligence in failing to instruct and warn her as to the operation of the mangle.

[6] 2. The plaintiffs pleaded an estoppel. The facts pleaded were that, prior to the attachment, their attorney examined the records, and found no evidence of any outstanding interest or claim of any person to said land, except their debtor. That the attorney also discovered the pendency of the action to construe the will, and read its allegations. In form, this action was brought by the intervener, as plaintiff, against his the danger being not incident to the ordinary brothers and sisters, including the defend-operation of the mangle, but arising only when ant. Appearances were entered therein by all the defendants. The petition prayed that the title of this defendant be confirmed and quieted in the defendant as devisee of his father. In their plea of estoppel, it was averred by the plaintiffs that they were misled by the allegations of the petition, and were induced to believe thereby that the defendant was still the owner of such land. It is not claimed that the intervener knew anything about the plaintiffs' researches, nor did he know that they were misled or deceived in any way; neither is it claimed that there was any intent on his part to deceive or mislead any one, directly or directly. The plea of estoppel cannot be sustained. The intervener was guilty of no wrong. He was ignorant of any right or interest on the part of the plaintiffs. There was nothing in his petition inconsistent with his contract. His contract call.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 314-317; Dec. Dig. § 153.*]

5. TRIAL (§ 242*)

CIENCY.

INSTRUCTIONS

SUFFI

Where, in an action for injuries to an operator of a laundry mangle, the court specifically charged that the burden was on the emin-ployer to show that the operator assumed the risk, and in another instruction stated that the burden of proving negligence in the failure of the master to warn the operator was on the latter, an instruction submitting the questions of assumption of risk and the duty to warn was not objectionable as confusing.

[Ed. Note. For other cases, see Trial, Cent. Dig. §§ 569-576; Dec. Dig. § 242.*]

6. TRIAL (8 89*)-INJURY TO SERVANT-DUTY | from the mangle, and she has since suffered and OF MASTER TO WARN-EVIDENCE.

Where a girl 17 years old was first employed in a laundry to iron by hand, and continued in that employment for about four months, when the manager of the laundry, whose only information was that when first employed she said she had worked in another laundry, and that the girl who recommended her said she was experienced, directed her, without further inquiry as to her experience, to operate a mangle, at which she was injured, the striking out of the testimony of the manager that he hired her for an experienced girl, and supposed she knew the dangers of the machine, but that his sole information as to her experience was that she informed him that she had worked in another laundry, etc., was proper. [Ed. Note. For other cases, see Trial, Dec. Dig. § 89.*]

7. MASTER AND SERVANT (§ 286*)-GUARDING MACHINERY STATUTORY OBLIGATION

QUESTION For Court.

Where the practical operation of a laundry mangle did not require the operator to put her fingers inside the zone of danger, which could be obviated by a guard, and an expert testified that a guard could be placed to prevent the hands of the operator from getting into the machine, the court properly charged as a matter of law that the employer's failure to guard the mangle, as required by the factory act (Code Supp. 1907, § 4999a2), was negligent.

[Ed. Note.-For other cases, see Master and Servant, Dec. Dig. § 286.*] 8. MASTER AND SERVANT (§ 270*) - INJURIES

TO SERVANT-EVIDENCE-ADMISSIBILITY.

While an employer when sued for injuries to an operator of a machine may show the general use of similar machines in other places of business conducted with reasonable care and prudence, yet testimony of an expert that he had never seen such a machine guarded was properly excluded because not showing a custom prevailing in other places of business conducted with care and prudence to leave the machine unguarded.

[Ed. Note.-For other cases, see Master and Servant, Dec. Dig. § 270.*]

9. APPEAL AND ERROR (§ 1050*) - PERSONAL INJURIES-EVIDENCE-ADMISSIBILITY.

will continue to suffer much bodily pain. Held, that a verdict for $15,000 was not excessive. [Ed. Note.-For other cases, see Damages, Cent. Dig. §§ 372-385; Dec. Dig. § 132.*]

Appeal from District Court, Scott County; D. V. Jackson, Judge.

Action to recover damages for personal injuries received by plaintiff while in defendant's employ engaged in the operation of a laundry mangle. A previous trial resulted in a verdict for plaintiff in a sum of $17,375, and a new trial was granted on defendant's motion. The ruling of the court granting such new trial was sustained on plaintiff's appeal to this court. See 145 Iowa, 212, 123 N. W. 954. On a second trial, the jury returned a verdict for plaintiff in the sum of $15,000, and from judgment on this verdict defendant now appeals. Affirmed.

Carroll Wright, J. L. Parrish, and Cook & Balluff, for appellant. Finger & Letts and M. J. Wade, for appellee.

MCCLAIN, J. The facts appearing in the record as supported by the evidence were set out to some extent in the opinion on the former appeal, but, for the purpose of disposing of some of the questions now raised, a fuller statement seems to be necessary.

The plaintiff, a girl 17 years of age, was employed in a laundry owned and operated by the defendant, first in ironing by hand. This employment continued from January to April, 1906. From April to July, when plaintiff was injured, she was employed about the mangle, a piece of machinery used for ironing tablecloths, napkins, towels, sheets, and pillow slips. This machine consisted of a hollow cylinder or drum about 75 inches long and 18 inches in diameter heated by steam to about 175 degrees of temperature. Above the cylinder and in conWhere a girl 17 years old sustaining a tact with it were three smaller rollers causpersonal injury necessitating amputation of one finger of the right hand and all the fingers of ed to revolve by belts, and the operation of the left hand at the knuckles had been prepar- ironing was performed by sending the artiing herself for becoming a music teacher by cles to be ironed by means of a canvas apron having taken lessons in music on the piano for three years, and she had shown aptitude in to the cylinder over which they were carmusic, the error, if any, in allowing her music ried between its surface and the surface of teacher to testify as to the average earnings of the rollers, being received on the other side music teachers, was not prejudicial, especially at a table by an employé who took the artias the questions as finally put to such teacher related only to how music teachers were paid, cles from the machine as they passed from whether by the lesson or pupil, since the pros- the third roller. On the feeding side there pect to earn money as a music teacher was not was a guard to prevent the hands of the as to her a mere conjectural possibility. der and the first roller, but on the receiving feeder from being caught between the cylinside the third roller, which was about as high from the floor as the breast or shoul ders of the operator, was unguarded. The danger to the receiving operator, if any, resulted from the necessity of sometimes catching the article passing through off the surface of the third roller to which it might adhere if not already perfectly dry; the effect of such adherence being that the article might become wound around the third

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. 88 4153-4160; Dec. Dig. § 1050.*]

10. DAMAGES (§ 132*)-PERSONAL INJURIESEXCESSIVE DAMAGES.

A girl 17 years old, who was training to be a music teacher and had showed an aptitude therefor, having been employed to operate a laundry mangle, sustained a personal injury by having her hands caught in the mangle, so as to necessitate the amputation of one finger of the right hand and all the fingers of the left hand at the knuckles. She suffered excruciating torture before the hand could be removed