that they are not, therefore, entitled to a vendor's lien. Section 2924 of the Code, providing for a vendor's lien is as follows:

"No vendor's lien for unpaid purchase money shall be enforced in any court of this state after a conveyance by the vendee, unless such lien is reserved by conveyance, mortgage or other instrument duly acknowledged and recorded, or unless such conveyance by the vendee is made after suit by the vendor, his executor or assigns to enforce such lien. But nothing herein shall be construed to deprive a vendor of any remedy now existing against conveyance procured through the fraud or collusion of the vendees therein, or persons purchasing of such vendees with notice of such fraud or lien."

As early as Allen v. Loring, 34 Iowa, 499,

this court held that a vendor's lien is not based upon contract, is not an equitable mortgage or resulting trust, but a mere equity.

In that case, the court said:

v. Linder, 14 Iowa, 414; Stein v. McAuley, 147 Iowa, 630, 125 N. W. 336, 27 L. R. A. (N. S.) 692, 140 Am. St. Rep. 332. As already stated, the lots in question were conveyed to the defendant Pelser by the Cedar Rapids Floral Company and Bain Bros. Manufacturing Company, and not by the plaintiffs herein. Whether this fact alone, as plaintiffs were the owners of all the stock of the

said corporations, would prevent them from asserting a vendor's lien, we need not determine; but it is significant that plaintiffs permitted judgment to be entered in the main action with knowledge of plaintiff's claim, without asserting therein, as against the defendants, some claim to a vendor's lien, or taking some steps to establish and enforce

the same.

[8, 9] It is alleged in plaintiffs' petition that the lots in question were worth in the neighborhood of $18,000, and the judgment against defendants is in amount almost double the value of the lots. Plaintiffs brought their suit for damages aided by attachment about two years after the transactions complained of were consummated. Judgment was not entered for several months thereafter, and yet plaintiffs have taken no steps to enforce a vendor's lien against the lots, except as above stated, and we think they should,

"We need not discuss the question whether the assignees of an obligation given for real estate have the same right to enforce a vendor's lien as the payee and vendor himself has, because, in our view of the case, if Clemens, himself, was seeking to enforce his vendor's lien, as against an attaching creditor without notice of it, his right must be denied; and this upon the doctrine as stated by this court in the case of Porter v. City of Dubuque, 20 Iowa, 440. It is there said that the lien of a vendor is not based upon contract; nor is it an equit-upon the record before us, be held to have able mortgage or resulting trust, but a mere abandoned and waived any right they may equity. * It is but a naked equity, have had to vendor's lien as against the raised and administered by courts, and which rights of intervener. See, also, Todd v. Dawill be enforced or denied, even between the vey, 60 Iowa, 532, 15 N. W. 421; Owen v. parties, where no counter equity arises, as the Higgins, 113 Iowa, 735, 84 N. W. 713; Kretzparticular case may seem to demand. But it is inger v. Emering, 169 Iowa, 59, 150 N. W. never allowed to override or take priority of 1038. Assuming further, without deciding, equities or rights of third persons, which have attached in ignorance of such vendor's equity. that plaintiff might, under the issues and the It is not, in this respect, like a mortgage, or prior holdings of this court, in the absence any other lien created by express contract, or of waiver, be entitled to a vendor's lien upon even by statute." the lots, it would be impossible for the court upon the record to determine the precise amount for which a lien should be established, and for this reason the right thereto must be denied. Erickson v. Smith, 79 Iowa, 374, 44 N. W. 681; Smith v. Dayton, 94 Iowa, 102, 62 N. W. 650.

Substantially, the same language was used by the court in Spindler v. Iowa & O. S. L. R. Co., 173 Iowa, 348, 155 N. W. 271. In the last-cited case, the court held that a waiver of a vendor's lien

"may be found from any conduct on the part of the vendor which shows that he did not rely upon the lien or has abandoned it, and this may result from a failure to assert the same within a reasonable time."

[7] The mere commencement of an action for damages, aided by attachment, would, not, however, operate as a waiver of the right to enforce a vendor's lien. Patterson

Other questions discussed by counsel bear either directly or indirectly upon the propositions already considered, and do not merit

separate consideration.

It follows that the judgment of the court below is right, and must be affirmed.

WEAVER, C. J., and GAYNOR and LADD, JJ., concur.

(177 N.W.)

BRAUSE v. BRAUSE et al. (No. 32799.) (Supreme Court of Iowa.

April 13, 1920.) 1. Assault and battery 35-Finding that defendants were aggressors held sustained by evidence.

In an action for damages for assault and battery, a finding that defendants were the aggressors, and both participated in the assault, held sustained by the evidence.

2. Damages 96, 128-Assessment peculiarly within discretion of jury.

The assessment of damages is peculiarly within the discretion of the jury, but this discretion is not unlimited; the test being, not what amount the court would have allowed, but whether the verdict is so large or small, as the case may be, as to shock the conscience.

3. Assault and battery 40-$3,500, reduced to $2,000, not excessive for severely beating

woman.

A verdict for $3,500, reduced by the court to $2,000, was not so excessive as to show passion or prejudice, where the plaintiff, a woman, was severely beaten about the face, bit on the arm, and rendered incapable of doing heavy work by reason of resulting nervous disorders. 4. New trial 77 (2)-Reduction of verdict by trial court did not show defendant entitled to new trial.

That a verdict for damages was too large and was reduced by the trial court does not of itself necessarily require the granting of a new trial on the ground that the verdict of the jury was the result of passion and prejudice. 5. Damages 94-Exemplary damages within discretion of jury.

There is no definite rule as to what the amount of exemplary damages should be, awarding of such damages being within the discretion of the jury.

6. Damages 87 (1)—“Exemplary damages" compensatory to some extent.

The idea of punishment does not enter into the definition of "exemplary damages"; the term being employed to mean an increased award in view of supposed aggravation of the injury to the feelings of plaintiff by the wanton or reckless act of defendant.

[Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Exemplary Damages.]

Trial to a jury, which returned a verdict in
favor of plaintiff against both defendants
for $5,000, which included $1,500 exemplary
damages. The amount of the exemplary
damages was shown by the answer to a spe-
cial interrogatory as to how much exemplary
damages were included in the general ver-
dict. In ruling on defendants' motion for
new trial, the court announced that unless
plaintiff remitted from the verdict all com-
pensatory damages in excess of $2,000, a new
trial would be granted defendants. There-
upon the plaintiff remitted all compensatory
damages in excess of $2,000 from the verdict,
and the court overruled the motion for new
trial, and rendered judgment against defend-
ants in favor of plaintiff for $3,500. The
defendants appeal. Affirmed.

W. C. Lewis, of West Union, and D. D.
Murphy, of Elkader, for appellants.
James D. Cooney and E. H. Estey, both of
West Union, for appellee.

PRESTON, J. 1. Plaintiff claims that the defendants assaulted and beat her, and that she was injured and damaged thereby. Dethat plaintiff assaulted defendant Myrtle fendants deny plaintiff's claim, and allege Brause, and that any injuries received by the plaintiff were caused by her own act in provoking the assault, and were necessary to repel the assault of plaintiff. No complaint is made of the instructions, and they are not set out in the record. The errors assigned are as to the sufficiency of the evidence to sustain the verdict against the defendants, and as against defendant Rebecca Jane; that the verdict is excessive and the result of passion and prejudice; that the court erred in not setting the verdict aside and granting a new trial, and in attempting to correct the same by reducing the amount of damages; that the verdict, after remitting the amount fixed by the court, is still excessive.

Plaintiff is the wife of Rudolph Brause, a son of defendant Rebecca Jane Brause, and her husband, Dan. The defendant Myrtle Brause is the daughter of Rebecca Jane and Dan, and a sister of Rudolph, plaintiff's then husband. Plaintiff was married to Rudolph in 1910. They lived in West Union from their marriage until 1913, Rudolph carrying on his father's farm near West Union part of the time. In 1913 plaintiff and her hus$1,500 exemplary damages allowed a wo-band moved on the farm in a house built by man assaulted by two other women, who bit and beat her and called her foul names, held not excessive.

7. Assault and battery

40-$1,500 exemplary damages not excessive to woman assaulted by two women.

Rudolph under an arrangement with his father. This house was near the house occupied by Dan and his family. At the time of the transaction complained of, plaintiff and

Appeal from District Court, Fayette Coun- her husband and two children, eight and four ty; A. N. Hobson, Judge.

Action at law to recover damages for assault and battery, claimed to have been committed by defendants upon the plaintiff.

years of age, were living in the house built by Rudolph, as stated. The trouble in ques tion occurred on the morning of July 10th, after the men had gone to the field. Ap

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 177 N.W.-5

At

ty in swallowing, and there was an imprint
of teeth in her arm, showing tooth marks
above the elbow on both sides of the fore-
arm; her face and neck were red, and her
hair was snarly and tousled. The affected
parts were treated with hot applications and
a boracic acid lotion, and the arm washed
with alcohol and painted with a tincture of
iodine. A doctor testifies she was laboring
under very much excitement, rather hysteri-
cal. She remained in their own house until
the next evening, when her sister removed
her to her father's home in West Union,
where she has since been living with her two
children. There was no further treatment
by the physician. He, however, visited her
again at her father's house July 17th.
that time her face had gone through the or-
dinary stages of a contused wound; her arm
was healed; the color in her face was absorb-
ed out, just showing green spots here and
there through it. He noticed no other in-
juries, and no complaint was made to him
of any other injuries. When the doctor saw
her seven days after the injury she was
practically well so far as the wounds were
concerned. She was a woman of nervous
temperament, and had some trouble before,
prolapsus uteri. Plaintiff contends, and the
evidence tends to so show, that she is a
small, delicate woman, and at the time of
the assault weighed 110 pounds, and that
defendant Myrtle is a strong, healthy woman,
who works out, and has cooked at a hotel
for a time. At the time of the assault,
Myrtle weighed 150 pounds. Rebecca Jane
weighed 120 pounds. At the time in ques-
tion plaintiff was still the wife of Rudolph.

pellant concedes in argument that the evi-, West Union, and as a result of the fight she dence as to what happened after the trouble had a black eye, and the side of her face commenced is conflicting. The defendants' was contused, and she complained of difficulversion of the transaction, and of plaintiff's injuries, is substantially as follows: That plaintiff went up to the Dan Brause home to pick some cherries, and met defendant Rebecca Jane Brause, who was washing in front of the house, and she told defendant that she came to get the cherries, and was told that there were no cherries, that the birds had been eating them, and that Myrtle had picked them. Plaintiff was disappointed, and felt as if she ought to have stayed at home. She then went to the north cornfield for some gooseberries, and on her way back came again to the Dan Brause house and asked Mrs. Brause for a carpet which belonged to her. Mrs. Brause told her the carpet was upstairs. Plaintiff started for the carpet, going through the kitchen and hall to go upstairs. Mrs. Brause called after her, saying she would go and get the carpet, as she knew where it was, and the plaintiff did not, but plaintiff kept on going, and Mrs. Brause went by her on the stairway and got the carpet from one of the bedrooms and gave it to Nellie, who was then standing at the head of the stairs. She started down ahead of Mrs. Brause, who came on behind, and it seems the talk was not very friendly. Plaintiff stated that it was funny that she had to run up there for everything; that it was her carpet, and made mention of a coat which she had missed, whereupon she was asked by Mrs. Brause if she insinuated that they had taken her coat. She said no, but that she had missed it for a long time, and had told her husband that morning that she was going to search the whole premises for the coat, if it did not appear. She had a good deal of feeling about the coat, and that was why she mentioned it. They went down the stairs out through the kitchen, and met Myrtle, who had then gone outside. Myrtle was in the kitchen when they went upstairs. Words passed between them regarding the coat and other things, and Myrtle called plaintiff a liar, and the fight commenced. Nellie was struck by Myrtle several times, in the face and head and neck, and plaintiff had hold of Myrtle's hair and was also striking and kicking.

The plaintiff claims that Rebecca Jane Brause struck her and beat her, and that Mrs. Rebecca Jane Brause struck her coming down the stairs is denied by the other witnesses, and Mrs. Rebecca J. Brause claims that all she did was to try to get the two women separated and to loosen Nellie's hands out Myrtle's hair, and the uncontradicted evidence shows that she was trying to get Nellie's hands loose from Myrtle's hair.

After they separated Nellie, the plaintiff, and her two children went home, and her sister Bessie and the doctor were called from

Plaintiff's version of the trans-action is substantially as follows: At the time in question, plaintiff went up past the house of defendants to get some fruit, and on the way back stopped at their house to get a carpet which belonged to her. Rebecca J., the mother-inlaw, told plaintiff that her carpet was upstairs, and plaintiff said she would go and get it. When plaintiff had gone into the house of defendants and part way up the stairs for the purpose of getting the carpet, the mother-in-law, Rebecca J., came running after her, passed her on the stairs, got the carpet, and threw it at plaintiff.

Rebecca J. then started to abuse plaintiff, told plaintiff she did not keep her house or her clothes clean; that she was dirty; called her vile names; said plaintiff was running a house of prostitution; that plaintiff was lying around with men; that she had seen plaintiff with Jim Barrett out in the cornfield and with others, called her a bitch and a red-headed devil; told plaintiff they were tired of her on that place, and were going to get rid of her. The mother-in-law, also told

(177 N.W.)

plaintiff at that time that they were not but did hold Myrtle by the hair, while Rebecgoing to let her live on the farm; gave plain-ca J. Brause kept on pounding plaintiff on the tiff a shove with her hand as if to shove her downstairs; struck plaintiff twice on the back on the way downstairs, and told plaintiff to get out and stay out.

appellants, is as to whether, considering the assault, and the circumstances thereof, the verdict was so excessive and so shocking as to show passion and prejudice on the part of the jury, and whether the verdict as reduced is excessive. Indeed, we think this is the only question relied upon. Counsel for appellants say in argument:

eyes were black for a long time. There were | portant question in the case, relied upon by black and blue marks on her right shoulder, down her side and limbs. There was a bruise on her back and on the back of her neck between the shoulder blades. When plaintiff got home she could not stand up alone. Her back ached; she could allow no one to touch it. Her whole body ached. The pain was in her back at the time of the trial. She was in bed several days, had to be helped up and down stairs, and could not dress herself. She could not sleep nights, was very nervous, and her hands twitched. At the time of the trial she could not do house work, her head ached continuously, and she was still taking medicine.

[1] Before this assault plaintiff did all her own work on the farm; took care of the garden; had from 300 to 500 chickens; did the washing; cared for the hired man; helped with the farm work, helped to sow oats, hitch up colts, plow, plant, and take care of the garden; did the cooking, sweeping, milking, and attended to the milk cans and separator. After assault she was unable to do any work, except to help a little with the dishes at her father's home. Before the assault she had been suffering some from female trouble, prolapsus uteri, and after the assault for about six weeks she could not walk a block without having to go to bed, and, at the time of the trial, if she walked down town from her father's home, she would have to go to bed the next day. These matters are testified to by plaintiff herself, and with less detail by the little girl, who was present; her sister; another party; and a doctor, who saw plaintiff soon after she returned to her own home; and by her father. Two other doctors testify as to her condition a week or so after the trouble. The hired hand testifies that he was at the Brause place the day the trouble happened, and the days that followed, and saw both

defendants around there; did not notice any marks upon the faces or persons of either defendant. He also testified for defendants to the effect that he saw Daniel Brause going to the field with a scythe. The only other witnesses giving testimony for the defendants were the defendants themselves and Daniel, the husband of Rebecca Jane. They gave evidence to sustain their version of the affair. It is thought that plaintiff has exaggerated somewhat. Interested witnesses do that sometimes, and it is equally true of defendants. Doubtless they have shaded the testimony in their own favor. It is clear that there was such a conflict in the evidence that it was a question for the jury, and under all the evidence they were justified in finding that defendants assaulted plaintiff, as alleged, and that they were the aggressors, and that both defendants participated in the assault.

While the errors relied upon for a reversal appear under several heads, there is in reality but one question in this case, and that is this: The evidence in this case does not support any such amount as that given by the jury, or even that finally awarded by the court, and the amount so awarded is so out of proportion to the injuries received by plaintiff, as shown by the evidence, that it is clearly the result of passion or prejudice, and not the result of honest and intelligent deliberation and consideration on the part of the jury, and it should therefore have been set aside and a new trial granted.

It must be conceded that the verdict was large. Though it may be true, as contended by appellants, that plaintiff was not permanently injured, still the jury may well have found that the assault was an aggravated one. We say this without repeating the circumstances before set out, and without stating the elements of damage for which recovery may be had. The elements are well recognized in the law. It may be thought that because the assault was an aggravated one, it may have had an influence upon the jury. Nevertheless, plaintiff is entitled to adequate compensation; the jury having found that defendants were in the wrong. We have said many times that the assessment of damages, both actual and exemplary, is peculiarly within the discretion of the jury. It is true, of course, as said in some of the cases, that this The test is, discretion is not unlimited. not what amount the court would have allowed, but whether the verdict is so large

or small, as the case may be, as to shock the conscience. In Hall v. Railway, 145 Iowa, 291, 122 N. W. 894, cited in Ideal Separator Works v. Des Moines, 167 Iowa, 517, 522, 149 N. W. 640, 642, we said:

"The mere fact that the amount assessed is more or less than the court would have been disposed to allow were the case submitted without a jury is not controlling, and will not justify the setting aside of the verdict. To call for such action the amount allowed must be so great and excessive, or so small and inadequate, that the just and intelligent mind is forced to the conclusion that the jury has failed to comprehend the case as submitted, or has been influenced to its verdict by passion or prejudice. * It cannot be said that the sum actually awarded is so out of proportion to the injury suffered as to shock the conscience and point inevitably to the conclusion that the jury were misled by ignorance, passion, or prejudice. This is especially true in view of the fact that the learned trial court, which saw the plaintiff and the [2-4] 2. We take it that the more im- witnesses produced on the trial and heard their