and in this case controlling, question, it is of vital importance to consider the facts and circumstances surrounding each party at the time of making the contract, for this is one of the surest means of arriving at the mutual intent. Be fore contracting with the appellant, A. B. Devoe had been thrice married, and had six living children, all of whom were married, and living in different localities. At the time of making the contract, and at the time of his marriage to the appellant, he was 73 and she was 27 year old. For three or four years immediately before this time she had been a domestic in his family, receiving, it is to be presumed, only a domestic's wages. In fact, it is clearly shown. that her whole life up to the time of her marriage had been one of unremitted toil, and to some extent, at least, of privation. Nothing is shown as to her father, but her mother is shown to have been, at times, at least, supported by charity. Appellant had been a residen of Creston for some time before engaging in the service of A. B. Devoe. Just how long does not appear, but her residence there and in his family was sufficiently long to acquaint her in a general way, at least, with the fact that he was a rich man. The contract gives her an annual income from $5,000, in addition to the sum of $300 in cash and $200 in value of the household and kitchen furniture. In view of the statement in the contract that he was worth $50,000, more or less, it is very clear that appellant was entirely satisfied to relinquish her possible inis far from the assertion of no knowledge as to his financial and marriage would bring to her. Nor does she testify that she did not know at the time of signing the contract the exact amount of his estate. She does say that she had seen the contract, and did not know its contents, before signing; but this is far from the assertion of no knowledge as to his financial condition. The law will not presume fraud and misrepresentation. On the contrary, the presumption as to dealings between parties sustaining the close relations of fiancee is that of utmost good faith, unless something appears in the

contract itself rebutting such conclusion. We cannot presume, then, that she did not have knowledge on this matter aside from that contained in the instrument, and her silence on the subject may well raise a strong presumption that shedid. Again, it is not shown certainly what the estate of the deceased was at the time the contract was made. The evidence fairly shows, however, that it would approximate $120,000 about 5 years thereafter. There was about $50,000 of personalty when invoiced, and real estate consisting of business houses and other property in Creston and else-where which the deceased owned at the time of his marriage to the appellant. It will also be noticed that the contract does not fix the value absolutely; it says $50,000 more or less,. indicating that neither party thought it necessary to give the exact figures in the contract. As we read the record, the conclusion forces itself upon us that the appellant had full information as to the estate of her prospective husband, and that she willingly entered into the contract with the thought that she was well and suitably provided for; and this conclu-sion is in perfect harmony with her own statements to different parties during her husband's life. She knew that he wanted his estate to go to the children, and frequently expressed her satisfaction with that arrangement, and with the provisions that had been agreed upon for herself. No fraud or concealment appears, and, if it be conceded that this case falls within the rule announced in Fisher v. Koontz, 110 Iowa, 498, that the burden in cast upon the appellee to show that the contract was fairly procured, we think the burden has been successfully borne, and that the contract should be sustained. That the parties should be left where they placed themselves, in the absence of fraud or unfair dealing, is well settled, not only in this state, but elsewhere. Peet v. Peet,. 81 Iowa, 172; Mahaffy v. Mahaffy, 63 Iowa, 55; Dilson v. Ditson, 85 Iowa, 276; Fisher v. Koontz, 110 Iowa, 498; Smith's Appeal, 115 Pa. St. 319 (8 Atl. Rep. 582);Thompson v. Osborn, 111 Mich. 470 (69 N. W. Rep. 730);

McNutt v. McNutt, 116 Ind. 545 (19 N. E. Rep. 115, 2 L. R. A. 372); In re Kesler's Estate, 143 Pa. St. 386 (22 Atl. Rep. 893, 24 Am. St. Rep. 557, 13 L. R. A. 581; West v. Walker, 77 Wis. 557 (48 N. W. Rep. 819); Naill v. Maurer 25 Md. 532; Forwood v. Forwood, 86 Ky. 114 (5 S. W. Rep. 361; Stilley v. Folger, 14 Ohio, 610. As our views require an affirmance of the two cases on their merits, we de not further notice the motion to dismiss the appeals. -cases are both AFFIRMED.

The

113 16 d120 172 120 569

J. R. BOWSHER V. CHICAGO, BURLINGTON & QUINCY RAIL-
ROAD COMPANY, Appellant.

Ejectment of Passenger: FAILURE TO BUY TICKET: Excuse for.
Where a passenger made no effort to get a ticket at a certain
junction, not knowing there was a ticket office there, he was
not precluded thereby from urging that the time was short,
1 and during most of it the way to the office was obstructed, and
the agent was engaged in transferring mail, etc., as an excuse
to the conductor for not having a ticket; and a judgment for
the passenger, in an action for ejection, will not be disturbea
because of a refusal to instruct that he was so precluded.
MEASURE OF DAMAGES: Services of doctor. In an action for injuries
1 sustained by reason of a passenger's ejection from a train, the
amount paid a doctor for services was not a measure of dam-
ages, but the reasonable value of the services rendered.

3

Evidence. Where, in an action for injuries to a passenger sus-
tained by reason of ejection from a train, where there was no
evidence of the reasonable value of a doctor's services rendered
to the passenger, he could not recover for such services.
Cross-Examination. Where evidence prejudicial to the opposing
5 party had no reference to any matter called out on direct exam-
tion, it was error to overrule objections thereto on cross-
examination.

Rule Applied. It appearing by the conductor that a passenger was ejected for failure to pay ten cents extra fare on failure to -5 buy a ticket, it was error to permit testimony as to whether

he had not carried others without exacting such payment; and that another was injured by passing under a plank used to transfer baggage and mail.

Instructions:

SINGLING OUT PHASES OF CASE. Where, in an action for ejection from a car, a number of disinterested witnesses gave contradictory testimony, and different from that of the 6 passenger, as to what occurred between the passenger and the conductor, it was not error to instruct the jury to consider the probability or improbability of sucn testimony, as singling out this phase of the case to defendant's prejudice.

7

Amended Abstract: REPETITION: Costs. The costs of an amended abstract should not be charged to the party filing it merely because it contains more repetition than is really necessary. Remittitur. Appellee can avoid reversal for an improper recovery 4 by remitting its amount by offer made in this court.

Appeal from Decatur District Court.-Hox. W. H. TEDFORD, Judge.

SATURDAY, JANUARY 19, 1901.

ACTION to recover damages for an alleged wrongful ejection of the plaintiff from one of the defendant's passenger trains for the reason that the plaintiff, not having procured a passage ticket, refused to pay the 10 cents in addition to the usual fare demanded by the defendant's conductor. Plaintiff alleges reasons, as will hereafter appear, why he had not procured a ticket, and that he made said reasons known to the conductor, and that, nothwithstanding said reasons, which were sufficient, he was wrongfully ejected from the train, and with unnecessary force and violence, to his damage $1,982, which he asks to recover. Defendant answered, denying generally, and, upon trial had, verdict and judgment were rendered in favor of the plaintiff for $405. Defendant appeals.-Reversed.

Harvey & Parrish for appellant.

Hoffman & McVey for appellee. VOL 113 Ia-2

1

GIVEN, C. J.-I. Section 2077 of the Code provides as follows: "A charge of ten cents may be added to the fare of any passenger when the same is paid upon the cars, if a ticket might have been procured within a reasonable time before the departure of the train." Plaintiff has the burden of alleging such ultimate facts as show that he could not have procured a ticket within a reasonable time before the departure of the train upon which he took passage. All ultimate facts alleged and necessary to be noticed in considering the questions presented are these: Defendant is a carrier of passengers on ias railways, one of which runs south through the town of Leon to and beyond Bethany Junction, and another through Bethany Junction west to and beyond the town of Lamoni. On the 9th day of March, 1897, the plaintiff, desiring to go from Leon to Lamoni by way of Bethany Junction, got on board of one of defendant's passenger trains without a ticket, at a stopping place in Leon, where no tickets were on sale. While this train stopped at the regular station in Leon, he applied to the agent there for a ticket, but was told that there was not time for him to procure one, and that he could pay the same fare on the train. Plaintiff paid the usual fare to the junction, and on arriving there went on board the passenger train bound for Lamoni and beyond, without procuring a ticket. When defendant's conductor called on plaintiff for his fare, plaintiff gave him 10 cents, the regular fare being 8 cents, whereupon the conductor insisted upon his paying the 10 cents additional because he had not procured a ticket; and the plaintiff refusing to do so, the conductor caused him to be ejected from the train before reaching Lamoni. The most, if not the only, material conflict in the evidence is as to the reasons plaintiff gave the conductor why he had not procured a ticket, the force used in ejecting him from the train, and the amount of damage sustained. There was a ticket office and agent at the junction, and it is questioned