The judgment is affirmed on the authority of Curtis v. Raymond Bros. & Co., ante, 52. The majority of the court desire that it be noted that they do not think this conflicts with the reasoning in Torbert v. Hayden, 11 Iowa, 435.

In this opinion I do not concur The rule in the case at bar does not conflict with the rule established in Torbert v. Hayden, but it does with dicta contained in that opinion.

Affirmed.