to indirectly accomplish specific performance by enjoining violation of the contract. "Whether equity will decree the specific performance of a contract rests [entirely] in judicial discretion and always depends upon the facts of the particular case. As a rule when a definite contract to leave property by will has been clearly and certainly established, and there has been performance on the part of the promisee, equity will grant relief provided the case is free from objection on account of inadequacy, and there are no circumstances or conditions which render the claim inequitable." Syllabus in Anderson v. Anderson, 75 Kan. 117, 9 L.R.A. (N.S.) 229, 88 Pac. 743. The performance by Andrew was complete until his death. The contract did not specify that his death should forfeit all rights of his heirs or estate obtained under such performance. Equity should not imply or construe such a forfeiture where none has been stipulated. In fact every equity and circumstance is in favor of enforcement of the contract, the contractual features of the will executed and delivered under it in partial performance of it.

The law and the equities of the case fully sustain the judgment appealed from and it is affirmed.

INDEX.

ACCEPTANCE.

Of goods by carrier for transportation, see Carriers, 1.

ACCOUNTING.

Of receiver, see Receivers.

ACTION OR SUIT.

Continuance of, see Continuance.

Matters peculiar to action for death, see Death.

Dismissal of action, see Dismissal.

As to parties, see Parties.

Venue of, see Venue.

Where several causes of action arise out of the same transaction, they may be
joined in one suit, although the defendants may be affected in different de-
grees of responsibility. Royer v. Rasmussen, 428.

ADVERTISEMENT.

Foreclosure of mortgage by, see Mortgage.

AGENCY. See Principal and Agent.

ANSWER. See Pleading, 3.

APPEAL AND ERROR.

Loss of jurisdiction of appeal by continuance, see Continuance.
From justice's court judgment, see Justice of the Peace, 3-6.

661

APPEAL AND ERROR-continued.

DECISIONS APPEALABLE.

1. An order which changes the venue of an action affects the merits thereof, and
is appealable under the provisions of § 7841 of the Compiled Laws of 1913.
Kramer v. Heins, 507.

RECORD.

2. An order granting a new trial upon the ground of the insufficiency of the
evidence to sustain the verdict will not be disturbed in the Supreme Court
where the appellant has failed to incorporate in, and make a part of, the
settled statement of case, the evidence introduced at the trial below. Shu-
man v. Lesmeister, 209.

TRIAL DE NOVO.

See also infra, 8; Arbitration, 1; Mechanics' Liens, 1.

3. Plaintiffs, as taxpayers of school district No. 12, Barnes county, seek to en-
join the defendants as officers of such school district from establishing and
maintaining a district high school therein without first submitting the
question to a vote of the electors. Defendants answered, denying that they
have established or are attempting to maintain such high school. The
issues were resolved by the trial court in defendants' favor, and the injunc-
tion prayed for was denied. Upon a trial de ncro in the supreme court the
judgment is, for reasons stated, reversed, and the relief prayed for in the
complaint is granted. Christianson and Bruce, JJ., dissenting. Kretch-
mer v. School Bd. of Dist. 12, 403.

4. Both parties appeal. Trial de novo demanded by defendant and partial re-
trial by plaintiff. Reformation of a written contract and its cancelation
for alleged fraud of defendant, and forfeiture for his defaults under the
contract, are sought by plaintiff; defendant asks that title of the land in
suit be quieted in him, on condition. Held: There was no fraud practised
upon plaintiff, inducing her to make the contract for sale of the land to
defendant. (2) Possession in defendant was contemplated by the contract.
(3) There was no abandonment by defendant of the contract or premises.
(4) Plaintiff is not entitled to forfeiture. (5) Plaintiff should not recover
an annual rental of $300 and interest thereon for defendants' possession of
the premises. (6) In lieu of rental allowed by the judgment, plaintiff
should recover only interest at 7 per cent per annum on the $2,100 balance
due on contract from its date of deposit made with the clerk. (7) Bal-
ance on deposit over $2,100 and interest and costs of trial less defendant's

APPEAL AND ERROR-continued.

costs on this appeal, ordered returned to defendant, in whom also title is
quieted to the half section in dispute. Barnes v. Hulet, 576.

5. On a trial de novo of an action brought to rescind a contract and to have
certain promissory notes and securities canceled upon the alleged ground
of fraud and failure of consideration, the findings and conclusions of the
trial court in defendant's favor are sustained. McLennan v. Plummer, 269.
6. Upon a trial de novo in the supreme court, evidence examined and held in-
sufficient to establish either actual or constructive fraud or failure of con-
sideration. McLennan v. Plummer, 269.

PRESUMPTIONS ON APPEAL.

7. Every presumption will be indulged in favor of the correctness of the trial
court's order granting a new trial. Shuman v. Lesmeister, 209.

8. Where an action properly triable by a jury is tried by the court without a
jury, the supreme court will not try the case de novo, but the findings of
the trial court are presumed to be correct. Appellant has the burden of
showing error, and a finding based upon parol evidence will not be disturbed,
unless shown to be clearly and unquestionably opposed to the preponder-
ance of the evidence. State Bank v.. Maier, 259.

DISCRETIONARY MATTERS.

9. Matters pertaining to the proper order of proof, the mode of examination of
witnesses, and the form of questions, rest largely within the discretion of
the trial court, and its rulings will not be disturbed except for abuse of
discretion. Blackorby v. Ginther, 248.

10. The extent to which cumulative evidence may be introduced is largely within
the discretion of the trial court; and where there is much evidence in the
record as to the nature of a downpour of rain, a case will not be reversed
merely because a trial court has excluded evidence that the flood occasioned
no injury to premises in a different hollow or drainage basin, although such
hollow or drainage basin was close to the one in question. Soules v. North-
ern P. R. Co. 7.

11. Under the evidence in this case it is held that the trial court did not abuse
his discretion in relieving the plaintiff from a nonsuit. Lee v. Imperial
Elev. Co. 1.

12. The granting or refusing of new trials on the ground of surprise rests in the
sound judicial discretion of the trial court, and its ruling will not be dis-
turbed by the supreme court except for abuse of discretion. Blackorby v.
Ginther, 248.

13. It is held that the trial court did not abuse its discretion in denying motion