Neither the statute nor rule requires an abstract to present the record or evidence in its absolute or literal entirety in order to entitle an appellant to a hearing. Code, 4118; Vaughn v. Smith, 58 Iowa, 553, 12 N. W. 604; Tootle v. Taylor, 64 Iowa, 629, 21 N. W. 115; Huff v. Farwell, 67 Iowa, 298, 25 | N. W. 252. Idelivered at the time of their alleged loss. The proof and identity of plaintiff's checks by which the admitted payments were made, or of the written application for the admitted purchase of the bonds, or of the written memorandum of their serial numbers, are wholly immaterial to a decision of the one question whether the loss of the bonds took place under circumstances rendering the appellee liable to account therefor to the appellant and the omission or inclusion of the described exhibits in the abstract is a matter of no moment. It follows that the appellee's objection to the sufficiency of the record to enable this court to pass upon the ruling below directing a verdict for the defendant is not well taken; and the question whether plaintiff was entitled to have his claim submitted to the jury is properly before us for decision. The assignment of error upon this ruling will now be considered. [3, 4] The mere general allegation by appellee that the appellant's abstract does not disclose all the evidence is too general, and will not be considered. Bank v. Richardson, 132 Iowa, 370, 377, 106 N. W. 923, 109 N. W. 809. The denial, to be of any effect under our rules, must "point out as specifically as the case will permit, the defects alleged to exist in the abstract." In the absence of such specific denial "the abstract, with amendments and additions, is presumed to contain the record with sufficient completeness to enable the court to pass upon every question raised." 132 Iowa, 377, 106 N. W. 925. And if the alleged defect, when pointed [5-7] Under the issues joined and upon the out, appears to be in regard to matter not at conceded fact that defendant did receive the all material to a proper determination of the plaintiff's money for the purchase of the appeal, it will be disregarded. As we have bonds, and did in fact hold the bonds in its already noted, appellee has sought to meet possession for plaintiff's use or benefit, and this requirement by filing an amended ab- that when a delivery or return of the bonds stract, which has not been denied; and, ac- to the plaintiff was demanded defendant did cording to the well-settled practice, if the not and could not comply with such demand record as shown by the amendment differs in on the plea that said securities had been any material respect from the appellant's ab- lost or stolen, the burden was upon it to stract, the former will be presumed to be show, not only the alleged loss, but also that correct. If, however, the matter set up in such loss had occurred under circumstances the amendment is immaterial to a decision which relieved it from liability. Sherwood upon the question raised by the appeal, or v. Bank, 131 Iowa, 532, 109 N. W. 9; Hunter is matter upon which there is no material v. Ricke, 127 Iowa, 111, 102 N. W. 826; Mildispute between the parties, such amendment ler v. Miloslowsky, 153 Iowa, 137, 133 N. W. is unnecessary, and its filing can have no 357; Funkhouser v. Wagner, 62 Ill. 59; Daeffect upon the appellant's right to have his vis v. Tribune, 70 Minn. 95, 72 N. W. 808; appeal considered. The alleged defect in ap- Baehr v. Downey, 133 Mich. 163, 94 N. W. pellant's abstract relates, as we have seen, 750, 103 Am. St. Rep. 444; Nutt v. Davidson, to the omission therefrom of the bank checks 54 Colo. 588, 131 Pac. 390, 44 L. R. A. (N. given by plaintiff in payment for his bonds, S.) 1170; and see cases cited in note 88, a memorandum of the serial numbers of the 6 C. J. 1168, 1169. It is true that when this bonds purchased, and the written application burden has been met by a showing sufficient made by the plaintiff for such purchase. to rebut the presumption of negligence arisThe absence of these papers from the recording from the failure to redeliver the subject presented here in no manner affects the of the bailment, the burden of proving neglirights of either party. On the trial below gence is upon the bailor, and if there be no the appellee admitted taking the plaintiff's other fact or circumstance shown from which subscription for the bonds, and receiving full the jury may properly find a want of due care payment therefor. It admitted also having by the bailee, there can be no recovery. Hunreceived the bonds and having undertaken or ter v. Ricke, 127 Iowa, 111, 102 N. W. 826. consented to hold them for the plaintiff, and In the cited case this rule was applied bedid in fact retain such possession until their cause it there appeared that plaintiff "realleged loss by burglary. There is no plea or lied solely" upon the presumption; but the proof that the bonds were ever returned or court was there careful to point out that a surrendered to plaintiff. It was claimed and plaintiff may still recover if he goes farther evidence offered by defendant that there had and "either disproves the asserted cause of been an actual or symbolical delivery of the loss or make it appear that a want of ordibonds across the bank counter, but the fact nary care on part of the appellee co-operated in this respect is immaterial here, for it was with such destroying cause." In the case conceded that the bonds were then left with now before us, the plaintiff does not rely (186 N.W.) vive in some jurisdictions, but with a manifest tendency to a relaxation in technical strictness of application. In this state we have refused to recognize the so-called "degrees" of care and negligence. All "due "reasonable care" is due care. The inquiry in the case of a bailment involves consideration of the nature and character of the thing bailed; the measures ordinarily employed for its protection and preservation; the care which the ordinary or average person is accustomed to exercise in caring for his own property of like nature and value; the compensation or absence of compensation received or to be received for the service, and all the other material facts from which the impartial trier of facts may reach a just and fair answer to the inquiry whether the bailee has taken that care of the thing intrusted to him which may reasonably be demanded of him. It is well settled in law, as well as in the minds of all just men, that the bailee fendant's failure to redeliver the bonds, but offers evidence of facts and circumstances tending to show want of due care by the bailee, and it is his contention that the evidence as a whole, when given its most favorable construction in support of his claim, pre-care" is reasonable care, and, conversely, sents a question of fact upon which he was entitled to go to the jury. A careful review of the entire record forces us to the conclusion that appellant's assignment of error upon the ruling of the court at this point, sustaining the defendant's demand for a directed verdict, is well taken, and that the motion should have been denied. That the case even as made and relied upon by defendant is one between bailor and bailee cannot be doubted. We shall not take time for any prolonged discussion upon the classification of bailments. There is no presumption that this bailment was gratuitous, and there is no evidence on that subject unless it be an inference drawn from some of the testimony that nothing was said between the parties upon the matter of compensation. If any in-serving without compensation should not be ference upon the subject is to be indulged in, it may well be of the character spoken of by us in the Sherwood Case, where it is said that held to that high standard of requirement which may reasonably be insisted upon as against one who serves for hire, and, if without negligence or wrong on his part the thing "An institution whose avowed object is to bailed is lost or destroyed, he is relieved make money cannot be assumed to pursue the from responsibility. There is, however, a business of receiving such deposits save for reasonably well-defined rule by which to test some anticipated advantage to itself and the or measure the extent of his duty and liabildrawing or retaining a paying business furnish-ity to the bailor. In Sherwood v. Bank, 131 es as good a reason as though direct compensation were required." In other words, the taking and holding of such deposits by a bank for its customers is a transaction to the mutual advantage of the bailor and bailee, and not solely a matter of mere accommodation to the former. For the purposes of this appeal, however, we will assume that the bailment may be treated as gratuitous. Even so, the concession does not advance us beyond the threshold of the case. A gratuitous bailee, receiving into his possession the valuable property of another for safe-keeping, enters into a contract relation with the bailor; a relation by which he becomes charged with an enforceable obliga tion for the benefit of the latter. The fact that there is no payment provided or promised for the service so rendered is a material circumstance as bearing upon the amount and kind of care which he is bound to give to the thing bailed; but it does not operate as an absolution from all liability on his part. Under the earlier authorities this branch of the law became complicated and not a little obscured by learned and hairsplitting distinctions by which the care required at the hands of a bailee was "slight" or "ordinary" or "great" and the negligence for which he might be held was "slight," "ordinary," or "gross" according to varying circumstances. These ancient rules and distinctions still sur Iowa, 536, 109 N. W. 9, where the defense, as in this case, was based on the theory that the bank was at most a gratuitous bailee, we said: "Conceding the deposit to have been gratuitous, we inquire what is the duty of a bank in care of bonds or other papers deposited for safe-keeping? No one would contend that it should be held as an insurer. On the other hand, such papers are left with banks because of their special facilities for safely keeping them. Their duty is to be measured somewhat by their situation, and it is exacting none too much to require that banks accustomed to keep such deposits exercise that care which business men of prudence would exercise in keeping property of like value in like circumstances." The Massachusetts court says that "Every one, who receives the goods of another in deposit, impliedly stipulates that he will take some degree of care of it. The degree of care, which is necessary to avoid the imputation of bad faith, is measured by the carefulness which the depositary uses toward his own property of a similar kind." Altman v. Aronson, 231 Mass. 588, 231 N. E. 505, 4 A. L. R. 1185. And again in the same case the court says: itous bailees is that the bailee shall act in good ""The duty which the law imposes on gratufaith,' that is, he shall use the degree of care in the performance of the undertaking which is measured by the carefulness which the de positary uses toward his own property of mand of the case for new trial, we pass other similar kind, under like circumstances." The same holding is repeated by the same court. Rubin v. Huhn, 229 Mass. 126, 118 N. E. 290, 4 A. L. R. 1190. See, also, Bank v. Affholter, 140 Ark. 480, 215 S. W. 648; Boyden v. Bank, 65 N. C. 13; Bank v. Graham, 79 Pa. 106, 21 Am. Rep. 49. Quite in point also is the statement of the rule by the Vermont court in Whitney v. Bank, 55 Vt. 155, 45 Am. Rep. 598, that the duty of the bailee in such case required it to keep the bonds in good faith within its safe under all the safeguards afforded to like property of its own. questions argued by counsel without discus- PRESTON, DE GRAFF, and EVANS, JJ., concur. STEVENS, C. J., took no part in the decision of this case. STATE ex rel. THIE et al. v. CONSOLIDAT- (Supreme Court of Iowa. Feb. 7, 1922.) 1. Elections 227 (3)—Election not invalidated by polls being kept open a few minutes after closing time. 38-Evidence held not to show consolidation election was result of fraudulent representations to voters. That the election in favor of consolidation of districts was the result of fraudulent representations to voters of part of the territory held not shown by the evidence. 3. Schools and school districts 38-Private persons held barred by laches from questioning consolidation because of irregularities in election. [8, 9] It would be a very violent departure from this rule for us to hold as a matter of law that the claim of plaintiff in this case has no foundation except the presumption An election is not invalidated by the polls which attaches to its failure to redeliver the being inadvertently kept open a few minutes bonds on demand or to further hold as a mat-after closing time; not enough votes being cast ter of law that such presumption has been in that time to affect the result. successfully rebutted. Under the evidence, 2. Schools and school districts even that of defendant itself, the jury would have been authorized to find that it did not use the care in keeping the plaintiff's bonds which it habitually used in the care of its own property of similar kind. It is a significant fact that, while carefully securing the safety of its own bonds in the steel chest. and thereby foiling the robbers and saving itself against the loss of a dollar, it left the bonds which it held in bailment outside the chest unprotected, except by the comparatively flimsy brick wall of the vault, which offered no effective resistance to enterprising burglars. We do not for a moment intimate any complicity of the bank or its officers in the crime committed, but we think it too clear for serious argument that the question whether the bank, acting by its officers and agents, exercised the care reasonably required of it to preserve the deposit placed in its keeping, was a question of fact for the jury, and not of law for the court. Preston v. Prather, 137 U. S. 604, 11 Sup. Ct. 162, 34 L. Ed. 788; Bank v. Affholter, 140 Ark. 480, 215 S. W. 648; Skelley v. Kahn, 17 Ill. 170. Action in quo warranto to test the validity [10] II. We are disposed also to hold that of a public corporation known as the consolthe court erred in ruling out the evidence re-idated independent school district of Mediaplating to the advertised offer of the bank to receive such deposits. We so hold, not because the advertised offer affords in itself any right of action to the plaintiff, but it is quite material circumstance tending to show that the bank was acting as a depository of bonds and soliciting business of that kind and that the taking or holding of plaintiff's bonds was not an isolated or exceptional instance outside of its ordinary line of busi ness. As what we have already said necessitates a reversal of the judgment below and a re Private persons are barred by laches from maintaining proceedings to test the legality of consolidation of districts because of irregularities in the election, when, with full knowledge they remained silent and permitted the organization, witnessed the following annual election, allowed the inauguration of a central school system, knew contracts for teachers were being made and taxes were being levied on the property of the entire district, and took no step till a bond issue was voted, especially when they are not alleged to be voters, taxpayers, or residents of the district. Appeal from District Court, Des Moines County; Oscar Hale, Judge. olis, Iowa, and to oust officials elected to of- J. C. McCoid, of Mt. Pleasant, and Seerley DE GRAFF, J. The events as disclosed by the chronology of this case are as follows: (1) In December, 1919, a proper petition de (186 N.W.) scribing a legally defined area was filed with the county superintendent of Des Moines county, Iowa, for the creation of a consolidated independent school district to be known as the consolidated independent school district of Mediapolis, Iowa. (2) Objections to the petition were duly filed by certain persons with the county superintendent, and were by him overruled. (3) An appeal was taken to the county board of education, and upon a hearing the action of the county superintendent in the premises was affirmed. (4) On January 13, 1920, an election was held within the said proposed district upon due publication of notice. The vote was canvassed and certified, disclosing 245 votes in favor of and 82 votes against the proposed consolidation. (5) Thereafter the consolidated district was duly organized, and in March, 1920, the regular annual election in said district was held. (6) On April 27, 1920, a proposition to vote bonds in the sum of $185,000 was submitted to the voters of said consolidated district for the purchase of a school site and for the construction and equipment of a new schoolhouse. This proposition carried by a large majority. On said date the relators herein filed their application, asking for leave of court to institute quo warranto proceedings, the county attorney having refused to commence said action. Consent was given, and the petition was filed. In the light of the proceedings had prior to the commencement of this suit it is necessary to make answer to the complaint lodged by relators against the formation of the district in question. Upon what theory is their petition predicated? a public meeting held at Harmony independent district, and publicly promised the voters of said Harmony school district, or a portion thereof, that if the voters in a portion of Harmony district would vote for said consolidation they would have one-half of said district released from said consolidated district, and they would be permitted to cease to be a part of the territory within the consolidated independent district, and that said promise was made for the purpose of carrying the vote of the territory outside of the town of Mediapolis, and petitioner states that by said fraudulent promise a sufficient number of votes was obtained in favor of consolidation, and without said promise a majority of the votes outside of the said town of Mediapolis would have been against said proposition of consolidation." The evidence fails to support this allegation. It appears that a public meeting was called in the Harmony district by a Mrs. William Mehaffy. It was not official, nor was it directed or authorized by any officer or officers of the county or the school districts. Those in attendance, including the county superintendent, were present at her invitation. It was not a secret meeting, but called for the purpose to discuss the proposed consolidation and to give an opportunity to all to express their views for or against the proposition. It was debated pro and con. There were present those in favor and those opposed. Relator John Thie was present. It is idle to claim that under the circumstances there was any conspiracy intended or fraud practiced as charged by the relators. No one occupied the vantage ground. Every voter at the election residing within Harmony district who was called as a witness testified he was not influenced by anything that was said or done by any one at the meeting in question. No one was deceived; no one could have been. [1] In the first place it is contended that the polls remained open after the legal closing hour on January 13, 1920, the day appointed for voting on the proposed consolida[3] This appeal merits a short opinion, and tion. Relator Charles McDonald was a judge the determinative issue is the laches of the at this election, and he certified that the relators in the commencement of this action polls closed at 6 o'clock p. m. Furthermore Under recognized principles of both law and it is shown that but three votes were cast equity they are estopped to complain of any within the disputed time, but the result of irregularity if such in fact ever existed. the election was not affected by these votes. With full knowledge relators remained siThe inadvertence of judges of election in per- lent, and permitted the organization of the mitting the polls to remain open for a few district; witnessed the annual election in the minutes after the closing hour does not in- following March; allowed the inauguration validate an election. The complaint is pure- of a central school system; knew that the ly technical, and under the evidence no prej-board of directors was entering into conudice resulted. Chambers v. Board of Directors, 172 Iowa, 340, 154 N. W. 581. [2] It is further alleged by relators that by reason of fraudulent statements and promises by certain persons to the voters of Harmony district included within the proposed territory sufficient votes were obtained thereby to change the result of the election. The petition charges: "Prior to the election interested parties from the town of Mediapolis, to wit, Mr. Eland, Mr. Walker, Mr. Osborn, and Mr. Ferris, attended tracts with teachers, and that taxes were being levied upon the property of the entire district, and, finally, upon the day a bond issue was voted, asked leave of court to commence this cause of action. A recognition of such a right under the circumstances would cause irreparable injury to the district. Molyneaux v. Molyneaux, 130 Iowa, 100, 106 N. W. 370; Nelson v. Cons. Ind. Dist., 181 Iowa, 424, 164 N. W. 874. It is not the policy of the law to permit private persons to call into question the cor porate existence of an agency of the state un- [ der the facts disclosed by this record, and especially so when it is not alleged that the relators are voters, taxpayers, or residents of the district. The justification for a rule or principle of law is to assist in bringing about a certain desirable social status, and both makers and interpreters of the law should have this thought articulately in mind. Law is the concrete expression of the ethical doctrine of utility-the greatest good for the greatest number. Our government recognizes the rule of the majority, and the will of the majority finding expression in the manner and form provided by law must not be thwarted for slight or transient reasons. The trial court was fully justified in dismissing plaintiff's petition and taxing costs to relators. Wherefore the judgment entered is affirmed. STEVENS, C. J., and WEAVER and PRESTON, JJ., concur. BERRY v. KRITTENBRINK et al. (Supreme Court of Iowa. Feb. 7, 1922.) Where, pending partition, defendant conveyed the entire parcel of land by warranty deed, and the grantee executed a mortgage, which was recorded, and then conveyed the whole parcel to another, and it was determined in the pending case that plaintiff was entitled to an undivided one-half interest in the land, held, that the mortgage constituted a lien on the half interest of the last grantee claiming through the defendant, though he did not in terms assume the mortgage. 2. Subrogation 22-Junior lienholder furnishing owner with money to redeem held not entitled to subrogation. Action in equity to partition, with supplemental petition to quiet title and determine the validity of certain liens on the lands in controversy. Defendants Malone and Zellmer appeal. Affirmed. Wilson & Crowley, of Greenfield, and Swan, Clovis & Swan, of Atlantic, for appellants. Carl P. Knox, of Stuart, for appellee. DE GRAFF, J. This is an action in partition and originally was entitled C. E. Berry, plaintiff v. George F. Kritenbrink et ux., Defendants. Plaintiff in the original suit claimed to be the owner of an undivided onehalf interest in the 100 acres of land in controversy title to which was in the name of defendant Krittenbrink. The trial court found the equities of the cause to be with plaintiff and appointed S. Lincoln Rutt as referee to make partition. On appeal to this court the decree was affirmed. Berry v. Kritenbrink, 185 Iowa, 1121, 171 N. W. 5S2. Upon the affirmance a supplemental petition was filed in the court below by plaintiff making other parties defendants for the purpose of quieting title in Berry and determining the validity and priority of certains liens. The entire tract at the time of the acquisition of title by Krittenbrink and Berry was subject to two mortgages which remained liens on the premises. The first mortgage was executed by William Malone, the then title holder, and payable to the Bankers' Life of Des Moines in the sum of $4,500; the second was in the sum of $1,500, payable to one McManus, but is known in this record as the Knox mortgage by virtue of an assignment. The original petition was filed on March 11, 1915, and during the pendency of the action either in the trial court or in this court the conveyances to which we now refer were executed. On June 9, 1915, defendant Krittenbrink and wife conveyed to Winfield S. Marr the Where primary debtor on foreclosure of entire parcel of land by warranty deed which mortgage, with money furnished by a junior was filed for record July 8, 1915. On June lienholder whose time for redemption had ex-22, 1915, Marr executed to the Omaha Napired, redeemed the land, such junior lienholder was not entitled to be subrogated to the rights of the prior lienholder, or to be reimbursed out of the land for the money furnished to redeem. 3. Subrogation 22-One advancing money after period of redemption has expired to protect junior lien not entitled to subrogation. A person who is entitled to redeem under the law and fails to do so cannot be heard to say, after the period of redemption has expired, that his protection requires that he advance the money and by so doing is entitled to be subrogated to the rights of the creditor, the holder of the lien so discharged. Weaver and Preston, JJ., dissenting in part. Appeal from District Court, Adair County; J. H. Applegate, Judge. tional Bank a mortgage for $6,000 which was filed for record. On December 15, 1915, Marr and the defendant Edward Malone entered into a land contract for the sale and purchase of the entire parcel of land, and the vendee Malone assumed the two mortgages of $4,500 and $1,500, respectively. This contract was recorded February 22, 1916. Subsequently and on November 22, 1919, Marr and wife pursuant to the contract executed a quitclaim deed to defendant Malone, which was filed for record November 28, 1919. About the time the land contract was executed, Marr deposited a warranty deed under said contract in escrow with the First National Bank of Adair, Iowa. This deed |