to them that he is a defaulter, would place a sum aggregating the amount of his defalcation in his hands, or in a bank subject to his check, and trust to his honesty in applying that money in the payment of the shortage. They would be much more apt to fear that if the money were so deposited he might immediately withdraw it and depart for parts unknown.

ception was practiced by the notary. The that two business men, who are sureties upparties were in their own home. The mort- on the bond of a public officer who confesses gagees were not present. To hold that mortgagors can deny the acknowledgment of a mortgage and thereby defeat it, upon their naked assertion that a formal question was not asked, would open the door to fraud and perjury and make recorded acknowledgments a snare and a delusion. No one could safely deal with land on the faith and truth of public records if such a rule were to obtain. In Pickens v. Knisely, 29 W. Va. 1, 16, 11 S. E. 932, 937 (6 Am. St. Rep. 622) it it said: "For reasons of public policy and to protect innocent purchasers, it has been uniformly held that, when a married woman appears before a justice for the purpose of acknowledging a deed, and does in some manner attempt to do what the law requires to be done, the certificate is conclusive of the facts therein stated, as regards innocent purchasers." If the notary failed to ask the formal question as to whether or not plaintiff acknowledged the deed to be her free and voluntary act, such failure was at most an irregularity only.

[2] 2. Was there a sufficient consideration moving to plaintiff for the execution of the mortgage? It seems unnecessary to discuss this assignment. She was told by her husband that he was a defaulter; that unless the mortgage was executed he was liable to be arrested and imprisoned for his crime. This would entail loss of support, and disgrace, not only upon the husband, but upon herself and family. No true wife would, under such circumstances, refuse to execute a mortgage upon her home, and we do not think a court will ever be found to hold that a mortgage so executed is without consideration.

[4] 4. Can a mortgage by a married woman upon her separate property, given to secure the debt of her husband, be enforced? The law upon that point must be taken as settled in this state. Section 2, c. 53, Comp. St. 1911, which is the same as it was at the time the mortgage in suit was executed, provides: “A married woman, while the marriage relation subsists, may bargain, sell, and convey her real and personal property, and enter into any contract with reference to the same in the same manner, to the same extent, and with like effect as a married man may in relation to his real and personal property." This section of the statute was carefully considered by this court in Grand Island Banking Co. v. Wright, 53 Neb. 574, 74 N. W. 82. The authorities are there collated and carefully considered, and the conclusion reached that, where a wife executes a mortgage upon her own real estate to secure an indebtedness of her husband, the mortgage will be sustained, but if the wife also signs the note she cannot be held upon that for any deficiency after the sale of the premises, where it is not disclosed that in executing the note and mortgage it was the intention to bind her property generally. In Buffalo County Nat. Bank v. Sharpe, 40 Neb. 123, 58 N. W. 734, we said: "The wife executed and acknowl[3] 3. Was the mortgage executed under du- edged as her voluntary deed and act, and ress? If the testimony of E. O. Bode were delivered to Gallentine, the mortgage on her to be taken as true, possibly it might be so separate property to secure the payment of held. But, as we have already stated, the the note which evidenced the debt of the husclear preponderance of the evidence is band, and the consideration being its extenagainst plaintiff upon the point that her hus- sion of payment. This was a contract which band was acting for the bondsmen in securing she had the power to make, and by which the mortgage. He was not doing anything she bound her property for the payment of of the kind. He was acting for himself in the amount of the note." That is to say, an earnest endeavor to save himself from she bound the property set out in the mortarrest and prosecution, and protect the rep-gage; utation of his family. Nothing was said to plaintiff by any person except her husband, and he was not delegated by Jussen and Holland to make any statements or threats to her. In such a case the rule announced in the cases cited in plaintiff's brief and in the recent case of Hoellworth v. McCarthy, 140 N. W. 141, not cited, does not apply.

The allegation and the testimony by Mr. Bode that the agreement with Jussen and Holland was that they were to deposit $2,500 in the bank to his credit is not only denied by them, but is too incredible to be believed. It is taxing our credulity to ask us to believe

but, under the rule announced in Grand Island Banking Co. v. Wright, supra, she did not bind any other estate she may have had outside of that set out in the mortgage. In Watts v. Gantt, 42 Neb. 869, 61 N. W. 104, we held: "A married woman may, in this state, mortgage her separate estate or property to secure the payment of the individual debt of her husband. A loan of the money to the husband, creating the debt so secured, is a sufficient consideration for her executing and delivering the mortgage." And so in this case, while plaintiff may not have received any direct cash consideration for the execution of the mortgage in suit, it was ex

The syllabus in Bode v. Jussen (No. 17,- ties being ready for trial. Jury impaneled, 135) 140 N. W. 768, applied to this case.

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quite fully the fact that the goods purchased | finds one still less plausible, and the defendby defendant were a worthless kind of cheap ant is compelled to pay his money for nothjewelry, of no value whatever; that, when ing. I think I ought to dissent.

HAMER, J., concurs.

DE WOLF v. RETZLAFF. (No. 17,087.) (Supreme Court of Nebraska. March 28, 1913.) (Syllabus by the Court.)

defendant received the goods, he was not aware of their inferior and worthless character, or of the fraud which had been perpetrated upon him; that he tried to and did sell a small portion of them, but, with the exception of a very few instances, all of the goods so sold were returned to defendant, | who had to refund to his customers the price they had paid therefor. The first answer also alleged: "That said defendant has of- 1. APPEAL AND ERROR (§ 1064*)-GROUND FOR fered, and does now offer, to return all of said goods unsold to said plaintiff." This answer was followed by a counterclaim for damages. The amended answer alleged: "But he has held said jewelry subject to the order of plaintiff, and, upon the trial of this case, he will produce said jewelry in court and tender the same back to the plaintiff.

That about $5 of the nominal value of said jewelry, as listed in said contract, which was so sold by this defendant, was kept by the purchasers, and for this amount this defendant offers to confess judgment." The counterclaim was abandoned. As the amended answer tendered no defense not included within defendant's original answer, the court did not err in sustaining the motion to strike it from the files. When the amended

REVERSAL-HARMLESS ERROR-INSTRUCTION. Harmless error in an instruction to the jury is not ground for reversing a judgment on the verdict.

Error, Cent. Dig. $8 4219, 4221-4224; Dec. [Ed. Note.-For other cases, see Appeal and Dig. 8 1064.*1

2. APPEAL AND ERROR (§ 301*)—ASSIGNMENT IN MOTION FOR NEW TRIAL-SUFFICIENCYEXCESSIVE RECOVERY.

cessive in the motion for a new trial, mere exWhere the verdict is not questioned as excess in the amount of recovery is not reviewable under the assignment that the verdict is not sustained by the evidence.

[Ed. Note.-For other cases, see Appeal and Error. Cent. Dig. §§ 1743, 1753-1755; Dec. Dig. § 301.*1

Appeal from District Court, Lancaster County; Stewart, Judge.

Action by William W. De Wolf against Albert Retzlaff. From a judgment for plaintiff, defendant appeals. Affirmed.

answer was stricken, defendant made no attempt to offer proof under his original answer, as he might and should have done. As T. J. Doyle and G. L. De Lacy, both of Linthe record shows, he refused to answer fur-coln, for appellant. Morning & Ledwith, of ther, and elected to stand upon his amended Lincoln, for appellee. answer. We do not think a party should tenaciously insist upon an amended pleading in a case in the district court which has been appealed from a justice court, and particularly so when, under his original answer, he has stated a defense upon which he was able to prevail in the justice court. He should not stand idly by and permit judgment to go against him, and then ask this court to reinstate him in the court below. His original answer in the district court tendered a defense. The justice court had sustained that defense, and there is nothing in the record to show that the district court would not have done the same. It should at least have been requested to do so.

Affirmed.

SEDGWICK, J. (dissenting). I think the decision is too technical. The defendant says plaintiff delivered fake jewelry as a compliance with the contract, and that it was entirely worthless. The case was fairly tried in justice court, and plaintiff failed; he appealed to the district court, and prevailed on a technicality. He says in his brief that the defendant's amended answer was stricken out because it changed the issues presented in justice court. This court does not justify that technicality, but now

ROSE, J. Defendant broke the fibula and the tibia of his left leg, and employed plaintiff, who is a physician and surgeon, to reduce and treat the fractures. For professional services rendered and expenses incurred between March 16, 1910, and April 20, 1910, plaintiff brought this suit to recover $239.35. Defendant admitted plaintiff's employment but pleaded malpractice, and demanded damages in the sum of $5,000. Upon the verdict of a jury, judgment was rendered in favor of plaintiff for $250.50. Defendant appeals.

Complaint is first made of the following instruction: "If you find for the plaintiff, you will so say by your verdict. If you also find for the defendant on his damage claim, you will deduct the larger item from the smaller, as the case may be, and return a verdict accordingly."

[1] The criticism is that the jury were permitted to allow plaintiff compensation for professional services, and to award damages for malpractice growing out of the same services, though one claim, if established, would necessarily defeat the other. If the position thus taken is correct, it is clear that defendant was not prejudiced by the instruction, because the verdict shows on its

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face that the jury specifically found in favor | Defendant became dissatisfied, complained of plaintiff for the full amount of his claim, of the treatment and consequent suffering, and against defendant on his cross-petition feared blood poisoning, discharged plaintiff, for damages. The occasion for deducting and employed Dr. Finney who removed the one claim from the other, therefore, did not arise. The correctness of the following instruction is also challenged: "It is the duty of a patient to exercise ordinary care and prudence, and obey all reasonable instructions given by the surgeon, and if he fails in these respects, and complications arise in the matter of healing the wounds or injuries being treated by the surgeon, and such complications are such as may have been caused by such want of ordinary care and prudence on the patient's part, or by his failure to obey reasonable instructions of his surgeon, the burden is upon him to show that such complications or unfavorable results were not due to his own want of ordinary care and prudence, but were due to the negligence or want of skill of the surgeon."

splint, broke whatever union had been formed, treated and dressed the wound, placed the bones in apposition, and put the leg in a plaster cast. Dr. Finney's testimony tends to prove that a complete use of the broken leg would not have been restored without a change of conditions as he found them. That defendant will entirely recover from his injuries is not now questioned. The principal charges of negligence imputed to plaintiff are that he failed to replace the broken ends of the bones in true apposition; that the leg below the fractures was left in an unnatural or crooked position; and that the splint used did not properly immobilize the limb. In all of these particulars the evidence is sufficient to sustain a finding that plaintiff, in performing his professional services, was neither unskillful nor negligent, though the testimony is not in perfect harmony on that issue. On the witness stand defendant himself evinced a purpose to be both truthful and candid. The verdict of the jury, however, based as it is on all of the evidence, determines the fact that plaintiff's services were skillfully and carefully performed. Though there is proof that, in a few minor particulars, directions of the physician were not strictly observed, there is no convincing evidence that "complications" or "injuries" came from that

The instruction cannot be approved as an accurate statement of the law applicable to the issues and facts. Defendant attacks it as an erroneous direction that, in an action for malpractice, the burden is on a patient charging negligence to prove that complications or unfavorable results were not due to contributory negligence on his part. Assuming, but not deciding, that the position thus taken by defendant is tenable, should the judgment be reversed for the giving of the instruction quoted? In answering this question, further details of the case must be considered. The injury occurred on a high-source. Plaintiff's own testimony virtually way while defendant was sitting on a wagonload of lumber with his legs hanging over the front end. A horse kicked him and broke his left leg below the knee. Both bones were broken and protruded through the flesh, causing ugly lacerations. In that condition he drove to the home of his broth er. Plaintiff arrived there within an hour, dressed the wounds, reduced the fractures, so he says, and wrapped the leg in a splint composed of wire and wood. The splint was devised by plaintiff after his arrival. It is described by experts as a "cabot posterior splint." The evidence shows that it is one frequently used by skillful and careful surgeons. In two or three days the patient was taken a short distance to the home of his parents. After a week or more he was removed to his own home. There he had the attention of his wife and her mother. Nearly every day for five weeks after the injury, plaintiff removed the bandages and dressed the wounds. He frequently stated to defendant that the fractures had been properly reduced, and that conditions and improvement were satisfactory, considering the nature of the injuries. The fears of the patient were often aroused by his wife and mother-in-law, who discussed the danger of 'blood poisoning and censured the physician.

shows that no harm was caused by disregarding instructions. He testified that the bones had been in continuous apposition during his treatment, and that, when he made his last examination before being discharged, the leg was in its natural position, and that the injuries were improving normally. Defendant had escaped dangerous infection. His wife's testimony indicates that Dr. Finney used considerable force in breaking the union before he reset the bones. In one of the instructions the jury were told that plaintiff could not recover if the bones had been placed in apposition by Dr. Finney for the first time. With the record and the evidence in the condition outlined, it does not appear that the jury were misled or that defendant was prejudiced by the instruction criticised.

[2] It is also argued that the recovery is excessive. Defendant urges this point on the ground that the evidence is insufficient to sustain the judgment; there being in the motion for a new trial no assignment that the verdict is excessive. Mere excess in the amount of the recovery cannot be corrected on appeal in that way. Hammond v. Edwards, 56 Neb. 631, 77 N. W. 75; Lowe v. Keens, 90 Neb. 565, 133 N. W. 1127. Affirmed.

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