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Vol. IV.]

DIGEST OF CASES.

(No. 7.

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of typhoid fever.” Also, "Have you employed any physicians for yourself or your family? if so, give name or names, and residence.” Answer, “ Dr. Paine, Putnam, Ct., nine years ago, now dead.” The answers were warranted to be full, correct, and true. Held, that there was no warranty that the answers stated the names of all the physicians employed or consulted at any time. The meaning was that the answers were true and full, in the sense that the insured had not intentionally concealed any material fact. Dilleber v. Home Life Ins. Co., Ct. App. N. Y., Ib.

4. PURCHASE OF POLICY. - -A PERSON WHO HAS NO INTEREST in another's life cannot purchase or take by assignment an insurance policy on such life. Such a thing would be clearly against public policy, and is not authorized by law. Mo. Valley Life Ins. Co. v. Sturgis, S. Č. Kans., Ins. L. J., May, 1877.

5. CONSTRUCTION OF POLICY. WRITTEN AND PRINTED CONDITIONS. - An insurance policy provided in writing for insuring Bernstein's "stock of boots and shoes, dry goods, drugs, liquors, and such other goods as are usually kept for sale in a country store ;” and provided in printing that

gunpowder, saltpetre, phosphorus, petroleum, naphtha, benzine, benzole, or benzine varnish are positively prohibited from being deposited, stored, or kept in any building insured, or containing property insured by this policy, unless by special consent in writing indorsed on this policy, naming each article specially, otherwise the insurance shall be void ; and accompanying the policy, and a part of it, is the application of the assured, in the body of which he obtains in writing special permission to keep one of the prohibited articles, in the following words, to wit: “ Permission given to keep coal oil, not to exceed three barrels at any one time.” Held, that the true construction of the policy was as follows : The insurance company insures Bernstein's “stock of boots and shoes, dry goods, drugs, liquors, and such other goods [including 'gunpowder, saltpetre, phosphorus, petroleum, naphtha, benzine, benzole, or benzine varnish' ], as (the same] are usually kept for sale in a country store ;” provided, however, that as to “gunpowder, salt petre, phosphorus, petroleum, naphtha, benzine, benzole or benzine varnish ” [said insurance does not extend, except by the “special consent” of the company “in writing, indorsed on this policy, naming each article specially," and said articles) " are positively prohibited from being deposited, stored, or kept in any building insured or containing any property insured by this policy, unless by special consent [of the company) in writing, indorsed on this policy, naming each article specially ;” and that the assured could not keep gunpowder in any shape or quantity in his store along with his other goods without the consent of the insurance company in writing, naming such article specially, without violating the terms of his policy. Cobb v. Ins. Co. of No. Am., Ib.

6. PAROL TESTIMONY TO ENLARGE POLICY. Where the policy was by its terms avoided on account of insurance effected in excess of the amount permitted, parol evidence is admissible to show that the corporation had knowledge of the additional insurance, and agreed that permission should be granted in the policy, but failed to do so. Greene v. Eq. Fire f Mar. Ins. Co., S. C. R. I., Ib.

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7. PAYMENT OF PREMIUM. ANNUAL CREDITS. - PAID-UP POLICY.

Vol. IV.)

DIGEST OF CASES.

[No. 7.

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- FORFEITURE, ETC. – A credit of one third of the premium each

year was allowed to the insured, he executing a paper acknowledging a receipt of credit for the amount to be deducted from the policy when it becomes a claim if not previously cancelled ; " and in case said policy is surrendered, this acknowledgment will be taken in settlement of the equitable value thereof.” The policy stipulated that after the receipt of not less than three annual premiums, the company would issue a paidup policy, “subject to any loans or credits outstanding against the policy for such an amount as the surrender value of the premiums received hereon would purchase as a single premium.” The receipt of the first premium was acknowledged in the policy, and the subsequent payments indorsed as “received dollars in cash and notes, which amounts, if said notes are duly paid on or before maturity thereof, will complete the payment of the premium,” needed to keep the policy in force to the end of the year, and in case the notes shall not be paid on or before maturity, the policy shall at once become void without notice. The policy provided that it should be avoided by the “ failure to pay any annual premium when due, or any note, obligation, or indebtedness," other than the annual credit or loan, for premiums or interest; that a failure to pay the annual credit at the end of the year did not forfeit the policy; that the payment of the cash, and giving the note each year, was a full payment of the premium ; and that the insured was entitled to a paid-up policy without first paying the amount of the loans, after three annual payments. Kirkpatrick v. Knickerbocker Life Ins. Co., S. C. Tenn., Ib.

NEGLIGENCE. 1. PRESUMPTIONS. - ALTHOUGH THE BURDEN OF PROOF FALLS UPON A PLAINTIFF to establish the negligence of a railroad company sued for an injury caused by their cars running off the track; still, where the plaintiff is guilty of no negligence, and the cause of the accident is not disclosed by the attending circumstances, the burden of explanation falls upon the company to show that there was no fault upon their part; and a jury would be authorized to presume them guilty of negligence if they fail to do so. Stevens v. E. & N. A. Railway, S. Č. Me., Am. Law. Reg., May, 1877. 2. RAILROAD.

INJURY TO SERVANT. A statute of Missouri giving a right of action against a railroad company, “whenever any person shall

a die from an injury resulting from or occasioned by the negligence, unskilfulness or criminal intent of any officer, agent, servant, or employee, whilst running, conducting, or managing any locomotive, car, or train of cars (1 Wag. Stat. p. 517, § 1), does not give a right of action in case of death happening through the negligence of a fellow-servant, the master not having been at fault in selecting or retaining in his employment an unskilful, negligent, or otherwise improper servant. It was not the intention of the above statute to alter the common law rule as to the liability of a master for an injury happening to one servant through the negligence of a fellowservant engaged in the same employment, nor to give an action for an injury resulting in death, where there would have been no cause of action had death not resulted. Schultz v. P

Schultz v. Pacific Railroad, 36 Mo. 13, over

Vol. IV.)

DIGEST OF CASES.

[No. 7.

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ruled. Proctor v. H. f St. J. R. R. Co., S. C. Mo., Cent. L. J., March 30, 1877.

3. A CARRIAGE WHILE BEING DRIVEN ACROSS THE TRACK OF A PASSENGER RAILWAY was struck by the pole of a car and injured. In an action against the passenger railway company for damages: Held, that the questions of the alleged negligence of the respective drivers of the carriage and car were questions of fact to be submitted to the jury. Girard, g-c., Pass. R. W. Co. v. Middleton, S. C. Pa., W.N.C., April 5, 1877.

See COMMON CARRIER.

PARTNERSHIP. 1. NOTE GIVEN IN FIRM NAME AFTER DISSOLUTION. After the dissolution of a partnership, even if it be conceded that the liquidating partner has authority to give an acknowledgment of debt in the firm name, yet he has no authority, by implication of law, to give a note in the firm name, which increases the amount of the indebtedness, or extends the time of liability, or in any way amounts to a new contract. Smith v. Sheldon, S. C. Mich., Am. Law Reg., May, 1877.

2. AFTER THE DISSOLUTION OF A PARTNERSHIP, IF ONE PARTNER BUYS OUT THE INTEREST OF THE OTHERS, and agrees to assume the debts, he becomes, as between the parties, the principal debtor, and the retiring partners merely sureties; and creditors of the firm having knowledge of this equity are bound to regard it in their subsequent dealings with the parties. 16.

3. ACCEPTANCE OF NOTE IN FIRM NAME AFTER DISSOLUTION. Where, after the dissolution of a firm under such circumstances, a creditor accepted from the liquidating partner, without the knowledge of the others, a note in the firm name, with interest at a special rate, the retiring partners were thereby discharged from the original debt. This result was not varied by the fact that the note was at very short time, one day, where the agreement for a high rate of interest showed an intention to give indulgence beyond the time named, and such indulgence was, in fact, given until the principal debtor became insolvent. These facts, while legally immaterial, have a strong bearing on the equities, by showing that the creditor bargained for an advantage that the sureties were not to share, and therefore they could not be compelled to share the risk. Ib.

4. WHERE PARTNER IS MEMBER OF TWO FIRMS DEALING WITH EACH OTHER. - A., the partner of B., having charge of the firm's business at a particular place, employed a firm of which he was a member to conduct it for a commission; the accounts rendered to B. showed that this was the course of dealing, and no objection was made, and the effect was to reduce the expense of transacting the business: Held, that B. could not, after dissolution and settlement, demand an account of A.'s share of such commissions.

A. sold coal of his firm to another firm of which he was a member, with notice to his partner, and at the full market value : Held, that he was not liable to account for profits received by him as partner in the purchasing firm, although said firm took the coal to fill contracts for delivery at a larger price than they paid for it. Freck's Appeal, S. C. Pa., W. N. C., March 29, 1877.

Vol. IV.)

DIGEST OF Cases.

(No. 7.

5. PROFITS WHERE BUSINESS IS CARRIED ON AFTER DISSOLUTION OF FIRM. RIGHTS OF FORMER PARTNERS. If after the termination of any partnership by death, dissolution, bankruptcy, or otherwise, the business is continued by a portion of the associates, with the capital or appliances of the firm, all profits derived from such continued business are part of the joint estate, and as such are to be accounted for to all the partners or to their representatives. No partner can make use of that which continues to be partnership property for his own use. All partners are entitled to share in the profits and advantages which result from their use, unless, indeed, those general principles are changed or modified by the agreement of the parties; if they are, such agreement becomes the law which applies to the specialties of a case affected by it. The plaintiff was a member of a firm, and on its dissolution, he retired, and the new firm agreeing to pay the debts of the old firm, and to pay the plaintiff a cera tain amount, all the assets of the old firm coming to the new firm — the assets afterwards proved almost valueless — and from other circumstances in this case, and from the agreement made at the time of the dissolution, the retiring partner held not to be entitled to recover. Fithian v. Jones, S. C. Pa., Leg. Int., May 25, 1877.

PLEADING AND PRACTICE.

NEWLY-DISCOVERED EVIDENCE. - IN EQUITY PRACTICE, WHERE THE EVIDENCE HAS BEEN CLOSED, it will not ordinarily be opened for newlydiscovered testimony merely cumulative, but this rule is not imperative; it will be enforced subject to the discretion of the court. Where the newly-discovered testimony is cumulative in character, but makes plain and certain what was doubtful before, so that the court can see that it may be material to a just decision of the cause and there has been no laches in the party offering it, it will be admitted. Mulock v. Mulock, Ct. Ch. N. J., Am. Law Reg., May, 1877.

PRIVILEGED COMMUNICATION.

THE NEW YORK STATUTE WHICH PROHIBITS A PHYSICIAN FROM DISCLOSING ANY INFORMATION received by him which is necessary to enable him to prescribe for a patient under his charge, must be liberally construed as a remedial statute, and excludes the evidence of medical attendants, not only as to information obtained from the lips of the patient, but as to information acquired from the patient, from the statements of others who may surround him at the ne, or from observation as to his appearance and symptoms. The right of objecting to such evidence is not restricted to the patient insured, or his personal representatives, but may be availed of by his assignee. The protection of the law does not cease upon the death of the party. It can only be removed by the party himself or his legal representatives. The privilege is not abrogated by that section of the Code, by virtue of which a party to an action may examine the adverse party as a witness, in the same manner as other witnesses may be examined. Edington v. Mut. Life Ins. Co., Ct. App. N. Y., Ins. L. J., February, 1877.

Vol. IV.]

DIGEST OF Cases.

[No. 7.

PUBLIC POLICY.
See PARTNERSHIP, 2.

RAILROAD.
See COMMON CARRIER ; NEGLIGENCE.

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RATIFICATION. PRINCIPAL AND AGENT. GOOD FAITH OF AGENT. BANK. LOAN. — NEGLIGENCE. – Ratification by a principal of his agent's acts is only binding when made on full knowledge of the facts as they actually exist, not merely as the agent supposes them to exist. The good faith of the agent does not exonerate him from liability to his principal if he has been in fact negligent or has disregarded orders. Plaintiff, a bank, authorized its agent to make a loan on a note with any good collateral security. The agent made a loan on what would have been good security had it been free from prior liens, but the existence of prior liens was claimed. The plaintiff, with knowledge of this claim, accepted the note and the collaterals and brought suit to enforce its demand against the holder of the collaterals. In this suit it was defeated, the priority of the holder's lien being established. The plaintiff then brought suit against its agent for negligence in making the loan without good security. Held, that it had not ratified the agent's act, and on proof of the negligence it was entitled to recover. Where an agent to loan money takes insufficient security, the principal is not bound at his peril to accept it and discharge the agent or to reject it and look only to the responsibility of the agent; he may take the security and still hold the agent for any deficiency which, after due diligence, he suffers on it. Owensboro Savings Bank v. Western Bank, Ct. Ap. Ky., Am. Law Reg., June, 1877.

VENDOR AND VENDEE.

SALE BY SAMPLE. WARRANTY. CUSTOM OF TRADE. In the absence of fraud or representation as to quality, a sale by sample is not in itself a warranty of the quality of the goods, but simply a guaranty that the goods shall be similar in kind and be merchantable. A broker effected a sale for A. of 850 cases of “ King's brand” of canned corn to B., who had first been furnished with three of the cans for trial, and found them in perfect condition. No express warranty of the corn to be delivered was made, nor was fraud shown. Part of the lot proving bad, B. refused to accept the balance. In a suit by A. for the purchase money of the whole : Held, that there was no warranty as to the quality, and that the plaintiff was therefore entitled to recover. Boyd v. Wilson, S. C. Pa., W. N. C., April 19, 1877.

WILL. 1. POWER COUPLED WITH INTEREST, ETC. Where one who took lands under a will, by the terms of which she had both a life estate in the lands and power to convey the same in fee, executed a deed, which on its face purports to convey in fee simple absolute, for a valuable considera

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