« ForrigeFortsett »
“ (12) You would in this case be warranted in Error cannot be predicated upon the giving of convicting the defendant of murder in the first an instruction where it could not bave prejudegree, and it would be your duty to do so, if diced the complaining, party.
Converse v. you find the following facts from the evidence Meyer, 14 Neb. 190; O'Hara v. Wells, Id. 403; and beyond a reasonable doubt: First, that Labaree v. Klosterman, 33 Neb. 150; RoggenCatherine Debney is dead, and that she died kamp v. Hargreaves, 39 Neb. 544; Hurlbut v. in the county of Platte and state of Nebraska Hall, Id. 890; Jolly v. State, 43 Neb. 857. on the 9th day of July, A. D. 1893, or at some The twenty-fourth instruction, given by the time prior to the 21st day of November, 1893, court on its own motion, reads thus: -(24) which is the date of filing the information in Wbile it is a general rule of law that voluntary this case; second, that said Catherine Debney intoxication is no excuse for the commission died from the effects of wounds and injuries of crime, still, in cases of this kind, drunkinflicted on ber by the defendant in the man- eppess, if proved, may be considered by the ner and by the means specified in the informa jury for the purpose of determining whether tion; third, that the defendant inflicted said ihe accused, at the time of the alleged killing, wounds and injuries upon the said Catherine was capable of forming a wilful, deliberate, Debney uplawfully, aud with the purpose and premeditated purpose to take life. And and intent to thereby kill her, and that the if, in this case, although you believe from the said wounds and injuries were so inflicted evidence beyond a reasonable doubt that the by the defendant of his deliberate and pre defendant killed the deceased in manner and meditated malice; fourth, that the said wounds form as charged in the information, still, if and injuries were so inflicted by the defendant you further believe from the evidence that, at upon the said Catherine Debney in the county the time he inflicted the fatal injuries, he was of Nance and state of Nebraska on the 4th day so deeply intoxicated as to be incapable of of July A. D. 1893, or at some time prior to her forming in his mind a design deliberately and
The criticism, and the only one, sug. premeditatedly to do the killing, then such kill. gested upon the foregoing instruction,—that iting would only be murder in the second deassumes that the death occurred within a year gree. If, however, the defendaut took intoxi. and a day from the time the mortal blow was cants to steady his perves for the commission inflicted, —is without merit. It is firmly set of the crime with which he is charged, then tled by our own decisions that the court has no his intoxication would neither excuse the crime right in its instructions to assume that any es- nor reduce it from murder in tbe first degree sential element of a crime has been established. to the second degree.” The criticism directed It is for the jury alone to pass upon tbe facts against the foregoing is twofold: First, that it and the credibility of the witnesses. Heldt v. imposes the burden of proving intoxication State, 20 Neb. 492, 57 Am. Rep. 835; Long v. upon the defendant; and, second, that the last State, 23 Neb. 33. But the rule stated above clause of the instruction is poi based upon has not been violated or infringed by the in the evidence. struction already quoted. It does not assume As to the first objection, we remark that that the death occurred within a year and a counsel for the prisoner are correct when they day after the injury was received, but it was say that the law does not cast the burden of lett for the jury to determine from the evidence proving intoxication upon the defense, but that whether or not, beyond a reasonable doubt, it was sufficient if the jury from the evidence Mrs. Debney died after the wounds were given, entertained a reasonable doubt upon that point. and before the filing of the indictment.
It must be borne in mind that intoxication is Exception was taken to the eighth paragraph not a justification or an excuse for crime, but of the court's charge, as follows: "(8) Delib- evidence of intoxication is admissible in some eration means the act of deliberating or weigb. cases for the purpose of showing no crime has ing or considering the reasons for and against been committed, or to show the degree or grade a choice or measure. In the sense in which the of the offense where the crime charged, e. g. word is here used, an act is done deliberately murder, consists of different degrees. In a or with deliberation when it is done in cool prosecution for murder, it is competent for blood, and pot under the influence of violent ihe jury to consider evidence of intoxication passion, suddenly aroused by some real or sup- as tending to show that the act was not preposed grievance. A person who does an act, meditated, and that there was not such delibnot in the heat of sudden passion, but after eration as was necessary to constitute murder having coolly weighed or considered the mode in the first degree. Smith v. State, 4 Neb. 278. and means of its accomplisbment, does it de. By at least four instructions, the jury were liberately.” The foregoing definition of “de informed that the accused should be acquitted liberation" is substantially within the rule an unless from the evidence they found that every nounced in Craft v. State, 3 Kan. 450. It is element of the crime was established beyond a true, this court, in Simmerman v. State, 14 reasonable doubt. The fifteenth paragraph of Neb. 570, criticised the definition given in the the charge is in this language: "(15) Bý the Kansas case in so far as it held it was necessary law of the land, every person is presumed to for the accused to have considered the different be innocent of crime; and the defendant in this means for the accomplishment of the killing. case is entitled to the benefit of this presumption And in the case at bar the instruction informed as evidence in his favor, and in order to conthe jury that the weighing of the mode and vict him of the crime alleged in the informameans of the accomplishment of the act was tion, every fact necessary to constitute such essential to deliberaiion. Whetber this was crime must be established by the evidence becorrect or pot it is unnecessary to determine, yond a reasonable doubt. If, after a full and for, if it was erroneous, it was more favor fair consideration of all the evidence in the able to the accused than he was entitled to. I case, you entertain any reasonable doubt upon any single fact or element necessary to consti, drawn from the testimony that defendant drank tuie the crime of murder in the first degree, it “intoxicants to steady bis nerves for the comis your duty to give him the benefit of such mission of the crime.” The instruction was doubt, and acquit him of that crime; and if, applicable to the evidence. upon a like consideration of the evidence, you It is also urged that the evidence is insuffientertain a reasonable doubt as to the existence cient to sustain the verdict. The evidence is. of any single fact or element necessary to con uncontradicted that the defendant purchased stitute the crime of murder in the second de a revolver a short time before the homicide, gree, you should give him the benefit of such and that he inflicted the wounds from wbich doubt, and also acquit him of that charge. his wife died. The accused relies upon the de You should likewise acquit him of the charge fense of insanity. After a second reading of of manslaughter, if, upon a full and fair con- the record, we are fully satisfied that the desideration of the evidence, you entertain a rea- fendant at the time fully comprebended what sonable doubt of the existence of any fact he was doing; that his mind was clear; and necessary to constitute that offense." The fore that, with deliberation and premeditation. be going was a full and clear statement of the committed one of the most atrocious murders law upon the question, and put, and properly, that has come under our observation. The the burden upon the state to make out its case evidence bearing upon the defense of insanity at every point beyond a reasonable doubt, al. was fairly submitted to the jury under proper though it would bave been more appropriate instructions, and the verdict bas settled that to bave used the word “degree" instead of point against the defendant. The assignment “crime.” To convict of murder in the first that the verdict is unsupported by the evidence degree, it was necessary that the act be done must be overruled. with deliberation and premeditation; and, if Finally, it is insisted tbat the defendant did the evidence left any reasonable doubt upon not bave a fair and impartial trial, on account the minds of the jury as to whether there was of alleged misconduct of the audience in atany deliberation or premeditation, they knew tendance upon the trial. It appears that, at from the charge that they could not convict the close of the argument of the county athim of the highest degree of murder, and they torney to the jury, the spectators applauded by knew, too, that it was not incumbent upon the stamping of feet and clapping of hands, wbich accused to prove his ixtoxication at the time applause was immediately suppressed by the the mortal wounds were given, since they were presiding judge, who rebuked the persons for told that the state was required to establish making the same. It was also shown that the every fact or element necessary to constitute applause was without the knowledge or conthe crime by the evidence beyond a reasonable pivance of those connected with the prosecudoubt. This is not a case of conflicting instruction. The record fails to disclose what was. tions, nor does the instruction criticised under said by the prosecutor in his closing address, take to impose the burden of showing intoxi- nor does it appear from the showing made that cation upon the defendant, but the rule upon the applause was in approval of the sentiments that point was covered by the general instruc- expressed by the county attorney. The incident tions upon the burden of proof. The doctrine complained of occurred in the presence and is well settled that instructions must be con- bearing of the trial judge, and he is better enstrued together; and if, when so considered, abled than we to determine the effect, if any, the law is properly stated, it is sufficient. St. the applause had upon the jury. By overrul. Louis v. State, 8 Neb. 406; Murphy v. State, ing the motion for a new trial, containing an 15 Neb. 383; Lincoln v. Smith, 28 Neb. 762. assignment relating thereto, submitted upon
There was sufficient evidence before the jury the affidavits both on bebalf of the accused upon which to base the latter portion of the and the state, the trial court must have been twenty-fourth instruction. The evidence dis of the opinion that the demonstration was not closes that the defendant often drank liquors to of such a character as to influence the verdict; excess, and, when under the influence of in- and no prejudice being shown, its determinatoxicants, he is cross and rougb; that after he tion will not be interfered with. Edney v. first saw his wife on the morning of the tragedy, Baum, 44 Neb. 294; State v. Dusenberry, 112 and before its occurrence, be drank liquors. Mo. 277. The defendant testified that, on the day of the The accused has been accorded a fair trial, shooting, he took the priest to Genoa. "I was and, po prejudicial error appearing in the recdrinking outside. It was carried out in pails. ord, the judgment is affirmed. I got 25 cents worth of beer, and 25 cents worth January 10, 1896, fixed for the execution of of rum.” The inference could properly be the sentence imposed by the trial court. 34 L. R. A.
CALIFORNIA SUPREME COURT (Department 1).
Joseph YOCH, Respt.,
| a higher rate of premium would have been t.
charged, and this, in and of itself, determines HOME MUTUAL INSURANCE COM
materiality. PANY, Appt.
Ryan v. Springfield F. & M. Ins. Co. 46 Wis. 671; May, ins. 184; Civ. Code, 2565.
It was explained that the rate of premium to (111 Cal. 503.)
be cbarged and collected was dependent upon
the number of rooms in the house, and Brooks 1. Gasoline kept as part of the usual admits his signature to the application in
stock of merchandise will not avoid a pol- which that number is falsely stated. This icy in which a written description of the prop- would seem to make a clear case of a knowerty insured names such stock "as is usually kept ingly false statement by an authorized agent, in country stores," although a printed condition and for such statement the principal is liable. declares that the policy shall be void if certain articles, including gasoline, are kept, used, or Glen's Falls Ins. Co. 98 Cal. 557.
Stockton Combined Harvester & A. Works v. allowed on the premises. 2. Written parts of an insurance policy warranted it as true, and by such adoption
By signing the application he adopted it and will control printed (parts, and in case of repug- and warrant the same result ensues as if he had nancy the latter must be disregarded.
in the first instance made it. 3. An "agreement indorsed,” permitting
New York L. Ins. Co. v. Fletcher, 117 C. S. otherwise prohibited articles to be kept on in- 519, 29 L. ed. 934; Richardson v. Maine Ins. sured premises, is made where the articles are included in the written description of the property
Co. 46 Me. 394, 74 Am. Dec. 459. insured.
Misrepresentation as to a material fact will 4. Untrue answers to questions in an appli
avoid the policy, even although innocently
made. cation for insurance do not constitute a concealment or misrepresentation by the insured which
May, Ins. 2d ed. p. 218; Phillips, Ins. $ 337; will make the policy void, where the misstate- Flanders, Ins. p. 327; Carpenter v. American ments were written by the insurance agent with Ins. Co. 1 Story, C. C. 57; Continental Ins. Co. out any direction or knowledge of the insured. v. Kasey, 25 Gratt. 268, 18 Am. Rep. 681. 5. Leading questions may be permitted
Petition for rehearing in banc. where the only objection is that they are irrele- The decision in department is not sustained vant and immaterial.
by a single authority, and is opposed to authorities cited, but not referred to, in the opin
ion. (Beatty, Ch. J., dissents.)
Lancaster F. Ins. Co. v. Lenheim, 89 Pa.
497, 33 Am. Rep. 778, note; Cobb v. Insurance (March 11, 1896.)
Co. of N. A. 17 Kap. 492; Birmingham F. Ins.
Messrs. Victor Montgomery and Will. the Superior Court for Orange County in iam T. Kendrick, for respondent: favor of plaintiff in an action brought to re- Gasoline was an article of merchandise usucover the amount alleged to be due on a policy ally kept in a country store, and was custoof fire insurance. Affirmed.
marily kept in the store building, but in a The facts are stated in the opinion.
separate room from the other stock. Messrs. Van Ness & Redman, for appel- The description of the property, which, as lapt:
we have seen, includes gasoline, is in writing, The policy expressly provided that it should and the provision “all while contained in be void if gasoline was allowed or kept upon above described building" is also in writing, the premises, and as it was so kept, ipso facto, and if the printed portion of the policy does liability upon the part of the defendant ceased. absolutely forbid the keeping of it there, the
Civ. Code, S$ 2611, 2612; Cerf v. Home Ins. printed clause so forbidding is repugnant to. Co. 44 Cal. 320, 13 Am. Rep. 165; Commercial the written clause and therefore of po force or Ins. Co. v. Mehlman, 48 Ill. 313, 95 Am. Dec. effect. 543; Beer v. Forest City Mut. Ins. Co. 39 Ohio Civ. Code, SS 1652, 1441; Wood, Fire Ios. St. 109.
2d ed. $ 206, p. 491; Pindar v. Kings County In Lancaster F. Ins. Co. v. Lenheim, 89 Pa. F. In8. Co. 36 N. Y. 648, 93 Am. Dec. 544; 497, 33 Am. Rep. 778, the effect of policy Franklin F. Ins. Co. v. Updegraff, 43 Pa. 353; clauses similar to those in the case in band was Elliott v. Hamilton Mut. Ins. Co. 13 Gray, 139; considered, and the conclusion reached that Reynolds v. Commerce F. Ins. Co. 47 N. Y. they were not inconsistent or repugnant, and 597. that the prohibitory clause was of controlling The burden of showing the written represeneffect.
tation was upon the appellant, and if there is The statement concerning the number of any doubt or uncertainty the construction rooms in the building was material, and if must be in favor of the insured and against false, and made by the insured, it avoided the forfeiture. policy.
Wood, Fire Ips. 2d ed. $ 62. If ibe truth had been known by the company Dungan was in fact the agent of the com
A PRE Abri de Cendant fromaa judgment of
NOTE.- For cases similar to the above, see Faust | Maril v. Connecticut F. Ins. Co. (Ga.) 30 L. R. A. v. American F. Ins. Co. (Wis.) 30 L. R. A. 783; and 835.
pany. The information furnished by him was alleged, as grounds of defense, that the insured at the request of the company's authorized | kept for sale and allowed gasoline upon the agent, it was for the company's benefit, and the premises, in violation of the terms and con. company paid bim for the information. ditions of the policy, and that, in her writ
Hartford F. Ins. Co. v. Josey, 6 Tex. Civ. ten application for the policy, she made a App. 290; Commercial U. A88ur. Co. v. Elliott material misrepresentation in reference to the (Pa.) 13 Atl. 970.
building to be insured. The cause was tried Dungan had acted as foreman while the by a jury, and a verdict rendered in favor of house was being built, it had been recently the plaintiff. From the judgment entered completed and he knew as much about the thereon, and an order denying a new trial, the house as Mr. or Mrs. Brooks did.
defendant bas appealed. Burke v. Bours, 92 Cal. 108; Insurance Co. The policy was made out upon a printed of Pennsylvania v. O'Connell, 34 Ill. App. 357; form, in which, after the agreement of insurArt v. Star F. Ins. Co. 125 N. Y. 57, 10 L. ance, there were printed certain conditions to R. A. 609.
be observed by the insured, and certain limitaDungan's knowledge as to the number of tions upon the liability of the insurer. In the rooms in the house was the company's knowl. insurance part of the policy the defendant edge.
insured Mrs. Brooks for the term of one year Reynolds v. Iowa & N. Ins. Co. 80 Iowa, 563. against all direct loss or damage by fire, except
At the time the application was made out the as hereinafter provided," and intermediate this insured had no notice as to the scope of Free part of the policy and the printed conditions man's authority to employ Dungan to make and limitations were written, with pen and a diagram of the building for the use of the ink, the description of the property upon company. The act was within the general which the insurance was made. One of these scope of his apparent authority and is binding printed conditions was as follows: "This upon the company.
entire policy, unless otherwise provided by Wheaton v. Nörth British & M. Ins. Co. 76 agreement indorsed bereon or added hereto, Cal. 415; Farnum v. Phænix Ins. Co. 83 Cal. shall be void . . . if (any usage or custom of 246, and cases therein cited on page 257. trade or manufacture to the contrary not with
In filling out the printed form of the appli- standing) there be kept, used, or allowed on cation furnished by the company, Freeman the above-described premises benzine, beozole, acted for the company and his act in writing gasoline, Greek fire, etc.". Testimony was down a false statement without Brooks' knowl given at the trial tending to sbow that gasoline edge would not avoid the policy even though is one of the articles of merchandise usually Brooks did sign the application without read- kept in country stores, but that it is customary ing.
to keep it in a room or building by itself. It Continental Ins. Co. v. Pearce, 99 Kan. 396; was also shown that, during the month prior McComb v. Council Bluffs Ins. Co. 83 Iowa, 247; to the fire, the insured would, in the daytime, Germania L. Ins. Co.v. Lunkenheimer, 127 Ind. bring small quantities of gasoline-one or two 536; Follette v. United States Mut. Acci. As8o. caps – from a building on another lot, which 107 N. C. 240, 12 L. R. A. 315; Wheaton v. was used for storing it, into a room within the North British & M. Ins. Co. 76 Cal. 415; insured building, and adjacent to the store, for Beebe v. Ohio Farmers' Ins. Co. 93 Mich. 514, the purpose of selling it at retail to her cus18 L. R. A. 481.
tomers. Upon this evidence the defendant The misrepresentation referred to in the pol- requested the court to instruct the jury: "If, icy is a wilfully false or intentional misrepre. from the evidence, you find that, during the sentation.
period between the delivery to plaintiff of National Bank v. Union Ins. Co. 88 Cal. the policy of insurance in this action sued on 497; Wheaton v. North British & M. Ins. Co. and the fire, gasoline was at any time for supra.
several days kept for sale in the building The company through its agents Freeman described in the policy, or in any part of said and Dungan made a personal inspection of the building, your verdict should be for the defendbuilding, and had actual knowledge of the ant.” The court refused this instruction, but number of rooms contained therein.
told the jury: "If you find, from the evidence Under such circumstances the company is in this case, that gasoline was, during all or estopped from denying its liability on the pol- | any portion of said time between the issuance icy.
of said policy and the said fire, an article of Duelling House Ins. Co. v. Brodie, 52 Ark. merchandise usually kept in country stores, 11, 4 L. R. A. 458.
then and in such case the fact that the insured
did keep for sale or allow gasoline, if she did, Harrison, J., delivered the opinion of the either by herself or agent, allowing or keeping court:
such article on the insured premises—that is, The defendant issued its policy of insurance babitually-is no defense to this action." It is against fire to Mrs. W. H. Brooks, the assignor urged by the appellant that, in giving this of the plaintiff, in the sum of $4,000, upon a instruction, and also in refusing to give the frame building occupied as a country store, one asked by it, the court erred., and also upon household furniture and the A contract of insurance is to be interpreted stock of merchandise, such as is usually kept by the same rule as is any other contract. It in country stores," while contained in said must be so interpreted as to give effect to the -building Before the expiration of the policy mutual intention of the parties as it existed at the insured property was totally destroyed, the time of contracting, so far as the same is and the present action is brought to recover ascertainable. If it is reduced to writing. the for the loss thereby, sustained. The defendant intention of the parties is to be ascertained from the writing alone, if possible. The whole it must be held that this was an “agreement contract is to be taken together. When it is indorsed” upon the policy which removed the partly written and partly printed, the written exemption from liability that would otherwise paris control the printed parts, and, if there is have existed. Niagara F. Ins. Co. v. DeGraff, any repugnancy between the two, the printed 12 Mich. 124. If there be any repugnance part must be disregarded. It may be explained between the written phrase "such as is usually by reference to the circumstances under which kept in country stores," and the printed clause, it was made. In cases of uncertainty it is to “any usage or custom of trade or manufacture be interpreted most strongly against the party to the contrary notwithstanding,” the former who caused the uncertainty to exist. Civ. controls the latter, as being the'more deliberate Code, ss 1636-1654. Applying these rules to expression of the contracting parties. Fraim the contract in the present case, it must be v. National F. Ins. Co. 170 Pa. 151; Civ. held tbat it was the intention of the defendant Code, $ 1651. to insure gasoline, if it was an article usually Counsel for appellant bas cited the case of kept in country stores, and that, if such was Lancaster F. Ins. Co. v. Lenheim, 89 Pa. 497, in its intention, it was no violation of the policy support of his contention; but this case seems for ibe insured to keep gasoline upon the to stand by itself. Mr. Freeman, in his note premises as a part of the stock of merchandise. to the case (33 Am. Rep. 778), says that the When the defendant agreed to insure a stock case “is utterly opposed to the decisions in all of merchandise “such as is usually kept in the other states, and that it is quite difficult to country stores,” it must be presumed to have reconcile it with previous decisions in the same known the cbaracter of the merchandise wbich state.” A subsequent case in the same state is usually kept in country stores, and that (Fraim v. National F. Ins. Co. supra) appears gasoline was one of these articles, and, conse to be at variance with the rule in the Lenheim quently, that its policy covered all such mer Case. It may also be observed that the opinion chandise, Harper v. Albany Mut. Ins. Co. 17 of the court in the Lenheim Case rested mateN. Y. 194; Pindar v. Kings County F. Ins. rially upon the fact that, in the policy then Co. 36 N. Y. 648, 93 Am. Dec. 544. The before it, the condition exempting the insurer court would have no judicial knowledge of from liability for loss where turpentine was the character of merchandise which is usually kept, was "in immediate connection" with the kept in country stores, and it was therefore clause by which it insured the property speci. competent to offer evidence upon that point, fied, “except as bereinafter provided,"wbereas, for the purpose of enabling it, when interpret- in the present case, the words "except as hereing the language of the policy, to understand inafter provided” are in direct proximity to the matter to wbich it related, and the circum the words “loss or damage by fire” which is stances under which it was made. Elliott v. insured against and may be regarded as a Hamilton Mut. Ins. Co. 13 Gray, 139; Whit- limitation upon the causes of fire against which marsh v. Conway F. Ing. Co. 16 Gray, 359, 77 the insurance is made, rather than as a qualifi. Am. Dec. 414; Archer v. Merchants & Mfrs. cation of the contract of insurance. In subse. Ins. Co. 43 Mo. 434; Maril v. Connecticut F. quent portions of the policy there are certain Ins, Co. 95 Ga. 604, 30 L. R. A. 835; Fraim v. causes of loss for which the insurer expressly National F. Ins. Co. 170 Pa. 151; Wood, Ins. declares that it will pot, under any circum$ 64; May, Ins. & 239. When it was sbown stances, be liable; and it is more reasonable to that gasoline is one of the articles which is construe these as the matter referred to by the usually kept in country stores, the court cor- phrase "except as hereinafter provided,” than rectly held that it was a part of the subject of those provisions in which it is declared that the insurance, and that the insured did not in certain contingencies the policy shall be violate the policy by keeping it in stock. The "void." defendant, when it issued the policy in ques- The policy sued on contains the following tion, knew the character of a country store, provision: "This entire policy shall be void and that Mrs. Brooks kept it for the purpose if the insured has concealed or misrepresented of retailing to her customers all of the articles in writing or otherwise any material fact or kept by her, and that the gasoline which she circumstance concerning this insurance or the kept was to be disposed of by retail in the subject thereof." It is alleged, in the answer, same way as the other portion of her stock. that the policy was issued upon the written To give to the policy the construction now application of the assured, in which it was claimed by the defendant would be to bold that, stated that the building to be insured conalthough it agreed with her to insure all the tained less than fifteen rooms, whereas, in fact, stock she usually kept in her store, yet, if she it contained twenty rooms; and that the matecontinued to keep that stock, she forfeited all riality of this representation consisted in the fact rights under the policy. The clause in the that ihe rate of premium for the risk assumed policy above quoted, and which is relied on was greater for a building of twenty rooms by the appellant, cannot be construed as hav. than it was for a building with fifteen rooms. ing this effect. The qualification therein It was sufficiently shown at the trial that which excepts the policy from becoming void, the building contained more than twenty viz., "unless otherwise provided by agreement rooms, but it was also shown that the stateindorsed hereon,” is found in the policy itself. ment in the application that there were less The subject matter of the risk-he stock of than fifteen rooms was written therein by the merchandise ''such as is usually kept in country agent of the defendant from information wbich stores,”— was written on the policy by the he had obtained at his own instance, and with. insurer; and, as the defendant must be deemed out any direction on the part of the insured, to have intended thereby to insure all such from one Duogan, the carpenter who had articles as are usually kept in a country store, butilt the house; and it was not shown that