(concurring).- — -While agreeing to the conclusion, I can not, in view of our decisions in Van Veahten v. Smith, 59 Iowa, 173; Lucas v. Crippen, 76 Iowa, 507, and other like cases agree to the arguments used in support thereof, and because of the peculiar facts disclosed by the record I agree to the result reached in the last paragraph without being committed to the reasons given for the holding.