223.

Conclusiveness.

(1883.) Where from an inspection of a bill of exceptions it is apparent that material evidence has been omitted, the certificate that it contains all that was used on the trial will not be taken as conclusive on that point. Missouri P. R. Co. v. Hays, 15 Neb. 224 (18 N. W. 51); (1890) Oberfelder v. Kavanaugh, 29 Neb. 427 (45 N. W. 471); (1893) Dawson v. Williams, 37 Neb. 1 (55 N. W. 284); (1894) Nelson v. Jenkins, 42 Neb. 133 (60 N. W. 311); (1898) Alling v. Fisher, 55 Neb. 239 (75 N. W. 536).

224. (1893.) A bill of exceptions duly allowed and certified by the trial judge imports absolute verity and its truthfulness cannot be assailed collaterally. Gregory v. Kaar, 36 Neb. 533 (54 N. W. 859).

225. (1893.) Where the copy of an af fidavit appearing in the transcript differs from that in the bill of exceptions, only the latter will be considered. Lundgren v. Erik, 38 Neb. 363 (56 N. W. 992).

226. (1896.) The supreme court will not weigh the evidence to see if it sustains the verdict, when the bill of exceptions on its face reveals that a deposition, introduced and read upon the trial, has been omitted therefrom, even though the trial judge has certified that the bill contains all the evidence offered or given upon the trial. Storz v. Finkelstein, 48 Neb. 27 (66 N. W. 1020).

227. (1896.) When it appears from statements in the bill of exceptions that it does not contain all the evidence introduced at the trial of the case, such must be taken to be the fact, in the absence of any other or further proof on the subject than the certificate to the bill to the effect that it contains all the evidence. Greene v. Greene, 49 Neb. 546 (68 N. W. 947; 59 Am. St. Rep. 560; 34 L. R. A. 110).

228. (1901.) A bill of exceptions allowed and signed by the trial judge becomes a part of the record in the case, and its recital cannot be impeached by affidavits filed for that purpose. Phanix Ins. Co. v. Howe, 2 Unof. 20 (96 N. W. 73).

Amendment or correction.

Application to correct bill as appearance, see Appearance, §§ 46, 47.

229. (1889.) When it is made to appear to the supreme court that there are errors and mistakes in the bill of exceptions, and

that evidence is included therein which was not in the bill of exceptions at the time it was signed by the judge of the district court and that important evidence has been omitted in making up the bill, the supreme court will order the bill to be referred back to the judge before whom the case was tried, for examination and correction. Hoagland v. Van Etten, 27 Neb. 705 (43 N. W. 422).

230. (1892.) Where exhibits are stricken out by the trial court upon objection of appellant that the same are not true copies of the original, and the bill of exceptions is allowed without them, the supreme court will not entertain a motion by the appellant to require the appellee to supply such exhibits. Bickel v. Dutcher, 35 Neb. 761 (53 N. W. 663).

231. (1896.) The supreme court will not, as a matter of course, permit a record to be withdrawn for the purpose of amending a bill of exceptions; and especially is this true where it appears that a failure to incorporate into the bill of exceptions all the evidence is due to the laches of the party seeking the amendment. Macfarland v. West Side Improvement Ass'n, 47 Neb. 661 (68 N. W. 637).

232. (1896.) Where documents have been omitted from a bill of exceptions through the fault of defendant in error, plaintiff in error may be permitted to withdraw it from the supreme court for the purpose of presenting to the trial judge an application for amendment. Macfarland v. West Side Improvement Ass'n, 47 Neb. 661 (66 N. W. 637).

233. (1896.) A motion to correct a bill of exceptions by supplying evidence omitted therefrom through inadvertence will not be entertained by the supreme court. Warner v. Hutchins, 48 Neb. 672 (67 N. W. 745). 234. (1897.) Where a bill of exceptions filed in the supreme court has been remanded with permission to the lower court to rule on a motion to correct the bill, additional matter properly inserted by the trial judge and certified to the appellate court will not be eliminated on motion of defendant in error. Macfarland v. West Side Improvement Ass'n, 53 Neb. 417 (73 N. W. 736).

235. (1898.) A district judge has authority, after the expiration of the time for settling a bill of exceptions, to make corrections therein, if it be found not to disclose what it was intended to at the time of

Jones v. Wolfe, 42 Neb. 272 (60 N. W. 563); (1895) Conway v. Grimes, 46 Neb. 288 (64 N. W. 971); (1896) City Nat. Bank of Hastings v. Thomas, 46 Neb. 861 (65 N. W. 895).

Effect of failure to procure bill.

251. (1880.) A party or his attorney is justified in relying on the stenographic reporter for a transcript of the oral proceedings of a trial, and if without fault on his part such transcript is not prepared within the time limited by law, and he is thereby deprived of his bill of exceptions, the court, in a proper case, will grant a new trial. Curran v. Wilcox, 10 Neb. 449 (6 N. W. 762). 252. (1896.) The failure of a defeated

party, through his own neglect, to secure a true bill of exceptions, presents no ground for reversal. Blomgren v. Holmquest, 49 Neb. 49 (68 N. W. 382).

Filing.

253. (1883.) A bill of exceptions in a cause tried in the district court must be filed in that court. Aultman v. Patterson, 14 Neb. 57 (14 N. W. 804); (1906) Wood Mowing & Reaping Machine Co. v. Gerhold, 47 Neb. 397 (66 N. W. 538); (1906) Duncan v. State, 75 Neb. 764 (106 N. W. 1014).

254. (1893.) A bill of exceptions must be filed in the district court of the proper county. First Nat. Bank of Denver v. Lowrey, 36 Neb. 290 (54 N. W. 568).

CROSS-REFERENCES.

See, also, Contracts; Sales. Contract for sale of land in general, see Vendor and Purchaser.

Specific performance of contracts to sell land, see Specific Performance.

Requisites and validity of contract.

1. (1897.) A contract for the exchange of property is not void for indefiniteness of description where the description is such as, by the aid of evidence aliunde, to enable the property to be identified. Woods v. Hart, 50 Neb. 497 (70 N. W. 53).

2. (1897.) Where a contract contains two descriptions of the property to be conveyed, one correct and the other false in fact, the latter should be rejected as surplusage. Woods v. Hart, 50 Neb. 497 (70 N. W. 53).

Fraud and misrepresentations.

3. (1890.) In action to set aside an exchange of property on the ground of alleged conspiracy to defraud, evidence held to sustain finding that there was no fraud. Covey v. Keegan, 29 Neb. 250 (45 N. W. 454).

4. (1892.) The plaintiff and defendant exchanged real estate. The part conveyed

by the plaintiff to the defendant was situate in Blue Springs; that conveyed by the defendant to plaintiff in exchange therefor being in Rooks county, Kansas, and South Dakota. The defendant stated that he never had seen the Kansas land and urged the plaintiff to go and see it. It appeared, however, that he had viewed said land and knew that it was poor and nearly worthless. It also appeared that the South Dakota land was incumbered and that the plaintiff obtained but little value for his property. Held, That the judgment rescinding the exchange was right and is affirmed. Armstrong v. Helfrich, 34 Neb. 358 (51 N. W. 856).

5.

(1884.) Where in a trade or barter of property the trade is procured by one of the parties by false and fraudulent representations as to the quality of the property disposed of by him, the defrauded party may, upon the discovery of the fraud, rescind the contract and maintain replevin for the property procured by such fraud. And this may be done without returning the property received by the defrauded party when such return is impossible, or where the party guilty of the fraud has by his own act put it out of the power of such defrauded

Faulkner v.

party to make such return.
Klamp, 16 Neb. 174 (20 N. W. 220).

5a. (1907.) Evidence held insufficient to show that the conveyance of plaintiff's property to defendant, in exchange for a conveyance by defendant, was procured by fraud. Miller v. Bradford, 80 Neb. 167 (113 N. W. 994).

Construction of contract.

6. (1891.) In a contract between E. H. S. on the one part, and O. H. B. and E. G. B. on the other part, for the exchange of one parcel or description of real property by S., for five parcels or descriptions of real property by the second party, in which the property to be exchanged by each party was described as follows: "E. H. S.'s barn and lot, 17 and Davenport; B.'s lot 2, B. 174; east half lot 5 and 6, B. 80, Omaha; twenty acres adjoining Cote Brilliante, Douglas county; N. B. 1, Ambler Place; lot 14, B. 5, and lot 11, B. 2, Boggs and Hill's addition, Omaha," held, that each description of property to be exchanged by the parties, following the first description, is to be construed and read as B. the owner of the property, in the possessive case, at the commencement of each description. Ballou v. Sherwood, 32 Neb. 666 (49 N. W. 790) (50 N. W. 1131).

for the ex7. (1899.) The contract change of lands set out in the opinion construed, and held that the forty days designated therein for the exchange of deeds did not commence to run from the time the contract was made, but from the effecting of a loan of a certain sum or money stipulated to be made by one of the parties in consummation of the trade. Te Poel v. Shutt, 57 Neb. 592 (78 N. W. 288).

Joint contract for exchange with third person.

8. (1898.) Where two persons owning separately adjoining tracts of land entered into a joint contract to exchange it for property of vendee, the terms of the contract were held equally binding on each of vendors. Perkins v. Tilton, 53 Neb. 440 (73 N.

W. 930).

Performance and breach of contract.

9. (1884.) A party who claims to have fully performed an oral agreement to exchange land for other property, must show: First, a definite contract to that effect, and its terms; second, such a part performance on his part that its recission would be a fraud upon him; and, thirdly, the delivery of possession in pursuance of the contract.

McPherson v. Wiswell, 16 Neb. 625 (21 N. W. 391).

10. (1884.) One W. claiming to be the owner of nineteen reapers by virtue of an oral contract with M. & M., which contract he claimed to have fulfilled on his part, sold said reapers to one N. who obtained possession of the same by replevin to which the plaintiff was not a party. Held, That the evidence failed to show a completed contract between W. and M. & M., but merely an oral agreement to enter into a written contract, and that there had been no actual delivery of the reapers to W. and he had no title to the same. McPherson v. Wiswell, 16 Neb. 625 (21 N. W. 391).

11. (1888.) Under an agreement of June 2, 1884, for the exchange of real property, whereby the respective deeds were deposited in escrow together with defendant's check for boot money, to be delivered when defendant "shall ascertain that (plaintiff) has a good title," plaintiff has a reasonable time in which to furnish a good and marketable title, and such a title furnished September 8, following, is within a sonable time. King v. Gsantner, 23 Neb. 791 (37 N. W. 654).

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