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(1898) 101 Wis. 378, 17 N. W. 740, supra, "Restaurant equipment."

Soda fountain.

Whether a soda fountain is exempt, under a statute exempting tools and apparatus belonging to a trade or profession, has been held to depend upon the facts of the individual case. McCord-Collins Co. v. Lazarus (1899) Tex. Civ. App. —, 50 S. W. 1048. The court here states: "The facts are certainly not conclusive that the soda fountain is a tool or apparatus belonging to a trade or profession. On the contrary, we think the facts show that it was not a tool or apparatus belonging to a trade or profession."

Stock exchange seat.

A seat in the stock exchange is not comprehended within the meaning of "working tools," as used in an exemption statute. Leggett v. Waller (1902) 39 Misc. 408, 80 N. Y. Supp. 13. The court here, however, concludes that, even assuming that the seat in question constituted the judgment debtor's working tool, it would, under the statute, be exempt only to a sum not exceeding $250, whereas the owner's own testimony showed it to be worth about $2,000.

See Seeley v. Gwillim (1873) 40 Conn. 106, supra, III.


See Seeley v. Gwillim (1873) 40 Conn. 106, supra, III.


See Abraham v. Davenport (1887) 73 Iowa, 111, 5 Am. St. Rep. 665, 34 N. W. 766, supra, "Furniture," and Seeley v. Gwillim (1873) 40 Conn. 106, supra, III.

Threshing outfit.

The courts are not agreed as to whether a threshing outfit is a tool, implement, farming utensil, etc. A threshing outfit, including separator, engine, belts, and all parts necessary to constitute a threshing outfit, kept by the owner for the purpose of carrying on his business of threshing, has been held to be included in the term "implements," within the meaning of an exemption statute; and, together with all tools necessary to operate the

same, exempt to the resident owner who is the head of a family, while used by him in carrying on his business. Jackman v. Lambertson (1905) 71 Kan. 138, 80 Pac. 55.

See Muse v. Darrah (1862) 2 Ohio Dec. Reprint, 604, supra, IV.

On the contrary, a threshing outfit has been held not to be a "working tool," within the meaning of a statute exempting the "working tools and team owned by any person, being a householder, or having a family for which he provides, to the value of not exceeding $250." Ford v. Johnson (1861) 34 Barb. (N. Y.) 364. Likewise. ? threshing separator and engine nave been held not exempt, under a statute exempting all tools and apparatus belonging to any trade or profession. Comer v. Powell (1916) Tex. Civ. App., 189 S. W. 88.

Whether an expensive threshing outfit is exempt, under a statute exempting "the farming utensils or implements of husbandry of a judgment debtor," has been made to depend upon its use. If used by the owner upon land farmed by him, it is exempt, notwithstanding it was his custom to use it for hire to thresh crops of others, after doing his own threshing. Spence v. Smith (1898) 121 Cal. 536, 66 Am. St. Rep. 62, 53 Pac. 653. But such an outfit has been held not exempt as a farming utensil or implement of husbandry, where used principally in threshing, for hire, grain raised by other persons. Re Baldwin (1886) 71 Cal. 74, 12 Pac. 44 (see supra, II.). A threshing outfit used by the owner to thresh his own grain, and that of others for hire, has been held not exempt, under a statute exempting "the proper tools or implements of a farmer," without making any point of the relative importance of the owner's own work and that of the others. Meyer v. Meyer (1867) 23 Iowa, 359, 92 Am. Dec. 432, approved in Vandeventer v. Nelson (1917) 180 Iowa, 705, 163 N. W. 354, where a separator was held not exempt from execution. In the Vandeventer Case it was left to the jury to say whether or not a traction engine was one of the instrumentalities by which the

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Undertaker's equipment.

A candelabrum used by an undertaker at the funeral of persons of certain religious beliefs is a "working tool" of the undertaker, within the meaning of an exemption statute, and as such exempt. O'Reilly v. Erlanger (1905) 108 App. Div. 318, 95 N. Y. Supp. 760.

Upon a finding by the trial court that certain property used by an undertaker was necessary to his trade. or profession, an exemption thereof has been sustained, under a statute exempting "all tools or other mechanical instruments or appliances moved or worked by hand or foot necessary to the practice of any trade or profession, and used in practice thereof." Steiner v. Marshall (1905) 72 C. C. A. 103, 140 Fed. 710. The property included an embalming satchel and instruments, other small tools, engraving machine, embalming boards, couch, canopy, six fur rugs, two pairs of black cloth pedestals, one pair of white pedestals, one pair of brass pedestals, three pairs of wooden pedestals, one candelabrum, four door crapes, one transfer case, four ice boxes, one church truck, two black catafalques, one white catafalque, one undertaker's wagon.

Wagons, buggy, sled.

The courts are not agreed as to whether a buggy or wagon is exempt as a tool, implement, etc. A buggy and harness have been held exempt to an insurance agent. Wilhite v. Williams (1889) 41 Kan. 288, 13 Am. St.

Rep. 281, 21 Pac. 256. See supra, "Harness."

See Re Conley (1907) 162 Fed. 806, supra, "Horses."

It has been held that a buggy and harness may be exempt to a physician as a tool of his occupation, if they are reasonably necessary for him in pursuing his occupation. Richards v. Hubbard (1879) 59 N. H. 158, 47 Am. Rep. 188.

A wagon which was found as a fact to be a tool of the owner's occupation was held exempt in Johnson v. Lang (1902) 71 N. H. 251, 93 Am. St. Rep. 509, 51 Atl. 908.

A bus used by a hotel keeper has been held to be within the description of tools and implements in an exemption statute. White v. Gemeny (1892) 47 Kan. 741, 27 Am. St. Rep. 320, 28 Pac. 1011.

A cab belonging to a cab driver was held to be exempt, as an "implement of his trade," in Lavell v. Richings (1906) 1 K. B. (Eng.) 480, 4 B. R. C. 475, 75 L. J. K. B. N. S. 287, 54 Week. Rep. 394, 94 L. T. N. S. 515, 22 Times L. R. 316.

A discussion of whether a cab or other vehicle used for transportation of passengers for hire is exempt property appears in the note to Lavell v. Richings, 4 B. R. C. (Eng.) 478.

A wagon with which the owner made a livelihood by hauling sand, cement, bricks, etc., for hire, was held to be comprehended within the meaning of an exemption statute, exempting "tools and instruments" necessary for the exercise of the debtor's trade or profession. Schwartz V. Dennis (1916) 138 La. 848, 70 So. 857, Ann. Cas. 1917D, 94.

See Rice v. Wadsworth (1879) 59 N. H. 100, and Hall v. Nelson (1880) 59 N. H. 573, supra.

A sled used by a shoemaker who also worked at farming, for the purpose of drawing wood and timber cut from a wood lot to the market for sale, and for his own use when not employed at his trade as a shoemaker, has been held to be exempt, as a tool of the owner's occupation. Parshley v. Green (1878) 58 N. H. 271.

On the contrary, a buggy and har

ness used by a land, loan, and insurance agent in his business have been held not exempt as a tool or apparatus belonging to his trade and profession. Cates v. McClure (1901) 27 Tex. Civ. App. 459, 66 S. W. 224.

It has been held that a lumber wagon owned by a mason cannot be said to be a working tool of a mechanic, within the meaning of a statute exempting "the tools and implements of any mechanic necessary to the carrying on of his trade." Morse v. Keyes (1851) 6 How. Pr. (N. Y.) 18.

In Van Buren v. Loper (1859) 29 Barb. (N. Y.) 388, the court apparently disapproved of the decision in the Morse Case, and held that a buggy belonging to a physician, and used by him in his practice, is exempt; but this decision seems to be based upon the theory that the buggy is included. within the word "team," as used in the statute exempting the "working tools and team."

A buggy was exempted also in Eastman v. Caswell (1853) 8 How. Pr. (N. Y.) 75, under a statute exempting the "necessary . . working tools

and team."

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In the subsequent case of Dains v. Prosser (1860) 32 Barb. (N. Y.) 290, the case of Morse v. Keyes is held to be correct so far as it holds that a wagon is not exempt, as such; but it is further held in the Dains Case that, when customarily used in connection with a horse, or horses and harness, it may comprise a part of the team, and be exempt under this provision of the statute.

Upon an application for the appointment of a receiver of the property of a judgment debtor after an examination in supplementary proceedings, it was held in Galowitz v. Bumford (1907) 54 Misc. 41, 104 N. Y. Supp. 492, that a desk, small counter, two chairs, three wagons, two sets of harness, and a Dutch collar, owned by a widow who conducted a small express business, from which she was merely able to make out a living, were exempt, under a statute exempting the necessary household furniture, working tools, and team, not exceeding in value $250. The exemption statute

is not set out in full, so it is not clear whether it is the same statute as that involved in the foregoing cases.

A wagon used only for conveyance or pleasure is not exempt to the owner as a tool of his occupation. Parshley v. Green (1878) 58 N. H. 271. But see Rice v. Wadsworth (1879) 59 N. H. 100, supra, IV.

The wheels of a cart, an ox yoke and bows, staple and cops and pin were held not to be exempt, under a statute exempting the tools of any debtor necessary for his trade or occupation. Dailey v. May (1809) 5 Mass. 313. The court states that "the chattels in this case are the wheels of a cart, and part of the gear to be used in moving it with oxen. The case does not state that they were the tools of the plaintiff, necessary for his trade or occupation. Very clearly, the case as stated does not bring the plaintiff within the provisions of the statute; and the defendant must have judgment. If the court could presume that the chattels seized were implements of husbandry, necessary for the plaintiff in tilling his land, yet the plaintiff must fail; for tools of a man's trade or occupation do not include the implements of husbandry, used by the husbandman in tilling his farm."

A wagon with patent couplings attached, built for the owner for the purpose of carrying on his business in selling the patent couplings, was held not exempt in Gibson v. Gibbs (1857) 9 Gray (Mass.) 62.


A watch and chain have been held not exempt as "an instrument used and kept by the debtor for the purpose of carrying on" his trade, within the meaning of an exemption statute, although used by the owner, who was a cigar maker by trade, to keep the time of the workmen whom he employed in his business of making cigars. Rothschild v. Boelter (1872) 18 Minn. 361, Gil. 331. Under a statute exempting the tools, implements, and fixtures "necessary" for carrying on the debtor's trade or business, it has been stated that to carry on some kinds of trade or business a watch may be reasonably necessary, and therefore

exempt, but in the absence of proof that it is necessary it will not be exempt. Re Turnbull (1901) 106 Fed. 667.

In an action for the appointment of a receiver in proceedings supplementary to execution, the court in Re Edlunds (1885) 35 Hun (N. Y.) 367, in refusing the appointment, stated that "the examination of the defendant disclosed no property, except a cheap watch and chain and a trunk and some clothing. The judgment debtor is a clothing cutter and an unmarried man, but certainly he is entitled to all tools and implements necessary for his occupation, of which a watch may well be one."

Well-drilling outfit.

An extensive oil-well drilling outfit, including a boiler, engine, pumps, etc., of the approximate value of $3,300, has been held not exempt to the owner, a well driller, as a tool or apparatus. Thresher v. McEvoy (1917) Tex. Civ. App. 193 S. W. 159.


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A shovel, pickax, dung fork, and hoe have been held to be tools, and exempt. Pierce v. Gray (1856) 7 Gray (Mass.) 67, see supra, I.

A clock, a stove, a screen, a pitcher, and a table cover were held to come within the description of "tools, implements, or fixtures," as used in an exemption statute, and as such exempt

to a milliner, if necessary to her business. Woods v. Keyes (1867) 96 Mass. 236, 92 Am. Dec. 766.

A sign in the form of a wooden boot used in front of a boot and shoe shop has been held to be in no sense a tool or implement of the debtor's trade, so as to be exempt under the statute. Wallace v. Barker (1836) 8 Vt. 440.

In Garrett v. Patchin (1857) 29 Vt. 248, 70 Am. Dec. 414, an iron shovel, spade, dung fork, three pitchforks, a scythe and snathe, a potato hook, hog hook, common ax, broad ax, adz, hatchet, and five augers were held to be tools, within the meaning of a statute exempting such tools as may be necessary for upholding life, and exempt to the owner, whose principal occupation or trade was shoemaking, but who lived rather isolated, and did his own mending or tinkering of sleds, ox yokes, etc.

A machine for shaving or splitting leather, and operated by hand, by steam, or by water power, which cost $250 and weighed from 600 to 900 pounds, which, when operated by hand, required two men to turn the crank, and which was kept in its place by cleats, was held not to be a "tool," within the meaning of a statute exempting such tools as are necessary for upholding life. Henry v. Sheldon (1862) 35 Vt. 427, 82 Am. Dec. 644. W. A. E.

VIRGIL FALLOON, Admr., etc., of Edwin Falloon, Deceased, Appt.,

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1. A new trial on the ground of newly discovered evidence is a statutory remedy, which attorneys may reasonably contemplate in making a contract to protect, for specific fees, the interests of their client in pending litigation.

[See note on this question beginning on page 844.]

Headnotes by ROSE, J.

(Neb., 170 N. W. 191.)

Same strict construction. sional services and compensation of 2. The general rule is that a doubt- the attorney who drew it should be ful or ambiguous contract for profes- construed in favor of the client.

APPEAL by plaintiff from a judgment of the District Court for Richardson County, dismissing an action brought to recover a certain amount alleged to be the reasonable value of services performed by plaintiff's decedent as attorney for defendant. Affirmed.

The facts are stated in the opinion of the court.
Messrs. S. P. Davidson and Virgil
Falloon, for appellant:

The contract should be construed in favor of plaintiff.

Schroeder v. Nielson, 39 Neb. 335, 57 N. W. 993; Patterson v. First Nat. Bank, 78 Neb. 228, 110 N. W. 721; Paxton v. Smith, 41 Neb. 56, 59 N. W. 690; Davis v. Ravenna Creamery Co. 48 Neb. 471, 67 N. W. 436; Lawton v. Fonner, 59 Neb. 214, 80 N. W. 808; Singer Mfg. Co. v. Doggett, 16 Neb. 609, 21 N. W. 468; Rosenthal v. Ogden, 50 Neb. 224, 69 N. W. 779; Coquillard v. Hovey, 23 Neb. 622, 8 Am. St. Rep. 134, 37 N. W. 479; Jones v. Sherman, 34 Neb. 452, 51 N. W. 1036; Bishop v. Busse, 69 Ill. 403; Osborne v. O'Reilly, 42 N. J. Eq. 467, 9 Atl. 209; Schurger v. Moorman, 29 Idaho, 97, 36 L.R.A. (N.S.) 313, 117 Pac. 122, Ann. Cas. 1912D, 1114.

It was error to direct a verdict for defendant.

Johnson v. Missouri P. R. Co. 18 Neb. 690, 26 N. W. 347; Habig v. Layne, 38 Neb. 743, 57 N. W. 539; Rogers v. Kansas City & O. R. Co. 52 Neb. 86, 71 N. W. 977.

Messrs. Mahoney & Kennedy and John Wiltse, for appellee:

A contract of employment between attorney and client should be construed most strongly in favor of the client, and all ambiguities should be resolved against the attorney.

Samuels v. Simpson, 144 App. Div. 466, 129 N. Y. Supp. 534, affirmed in 207 N. Y. 643, 100 N. E. 1133; Walsh v. Helena School Dist. 17 Mont. 413, 43 Pac. 180; Re Hawke, 148 App. Div. 326, 133 N. Y. Supp. 23, affirmed in 204 N. Y. 671, 98 N. E. 1079.

The proceeding for a new trial and the new trial itself, when granted, were parts of the same litigation which plaintiff's contract bound him to stay in until the finish, for the compensation enumerated in the contract.

Hastings v. Foxworthy, 45 Neb. 676, 34 L.R.A. 321, 63 N. W. 955; Gibbons v. Kyner, 53 Neb. 626, 74 N. W. 52; Comstock Mill & Min. Co. v. Allen, 21 Nev. 325, 31 Pac. 434; Calderwood v.

Pepper, 42 Cal. 110; Hinckley v. Beckwith, 23 Wis. 328; Hellman v. David Adler & Sons Clothing Co. 60 Neb. 580, 83 N. W. 846.

Rose, J., delivered the opinion of the court:

This is an action by Edwin Falloon, plaintiff, to recover $16,647.60, alleged to be the reasonable value of professional services performed by him as attorney for Joseph H. Miles, defendant. The claim was resisted on the grounds that plaintiff had performed the services in controversy under a written contract and that he had received the stipulated compensation. At the trial plaintiff adduced evidence tending to prove that he performed the services pleaded in his petition, and that the reasonable value thereof exceeded the amount claimed. At the close of his testimony, however, the trial court sustained a motion to direct a verdict in favor of defendant. The action was accordingly dismissed. Later plaintiff died, and the cause was revived in the name of Virgil Falloon, administrator, who has appealed to this court from the judgment of dismissal.

Edwin Falloon, plaintiff, with other attorneys, was employed by defendant to protect the latter's interests under what is called the "Rulo will" of Stephen B. Miles, deceased. The estimated value of testator's estate exceeded $1,000,000, and defendant, under the Rulo will, was entitled to all of it except $150,000. The Rulo will was executed in 1888, and was probated in the county court for Richardson county December 2, 1898. After the time to appeal from the order of the probate court had expired, Joseph Williams and others, heirs at law of Stephen B. Miles, deceased,

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