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Vol. I.)

DIGEST OF Cases.

[No: 2.

CONTRACT.

1. CONSTRUCTION OF CONTRACT TO PAVE. — PREVENTION OF COMPLETION OF CONTRACT BY LEGISLATIVE ACTION. — A city ordinance authorized the paving of Beckett Street from Woodland Street to 43d Street, and the city made a contract with the plaintiffs, for paving the street between those two points. The plaintiffs were prevented from paving the whole distance by an act of Assembly, which prohibited the opening of streets through Hamilton Park. The work was done by the plaintiffs under the supervision of the commissioner of highways, and was approved by him. Held, that the plaintiffs having paved the street as far as they were permitted by law to pave, were entitled to recover from the property owner for the portion of the work with which he was chargeable.

A selection of the paver made by the property owners is not vitiated by the fact that it was made before the passage of the ordinance authorizing the paving, if it was allowed to remain in full force, unrevoked and unobjected to, and the work was allowed to proceed without objection. _Other points relative to contracts for paving public streets. Phila. v. Fell, Legal Intelligencer, February 13, 1874.

2. NOT TO PRACTISE “IN THE NEIGHBORHOOD.” – Before a covenant not to practise medicine " in the neighborhood " can be enforced in equity, evidence must be given to show the extent of the practice sold to plaintiff. McNutt v. McEwen, Ib.

3. BY LETTER. — IMPLICATION OF LAW AS TO DEED. — A. desiring to sell, and P. to buy certain tracts of land belonging to A., entered into a correspondence by letters and telegrams, in which the lands and the prices were sufficiently described. Held, that the correspondence contained all the requisites of a valid contract of sale.

Where the parties agree, the one to sell and the other to purchase land at a price mentioned, the law implies that a deed will be executed and the money paid in a reasonable time. Polhemus v. Ashley, Pac. Law Reporter, January 20, 1874.

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DAMAGES. 1. BY CONSTRUCTION OF RAILROAD. — In estimating damages caused by construction of a railroad, the general selling price of lands in the neighborhood is to be taken as a standard. Hays v. Briggs, Pittsburg Leg. Jour., February 4, 1874.

Ž. IN ACTIONS FOR LIBEL, the question of damages is for the jury, and the court cannot assume, as a matter of law, that the plaintiff is entitled to only nominal damages. Lick v. Owen, Pac. Law Reporter, January 20, 1874.

See BOND.

DEED.
See CONTRACT, 3.

[No. 2.

Vol. I.]

DIGEST OF CASES.

GIFT. DELIVERY ESSENTIAL TO VALIDITY OF. — The decedent executed an assignment, sealed it up in an envelope, and placed it in the fire-proof of the firm of which he was a member. Upon the outside of the envelope, he wrote the name of the assignee, adding, “ Please send this to him on my death.” After his death it was found in the fire-proof. Held, not to be a gift, or to create a trust in favor of the assignee, as there had been no delivery. Taylor's Appeal, Legal Gazette, February 13, 1874.

GUARDIAN. POWERS OF. – A guardian is but a representative of his ward, and has no greater power in the disposition of the property of his ward than the latter would have if laboring under no disability. Flege v. Garvey, Pac. Law Reporter, February 3, 1874.

HOMESTEAD. HOW ALIENATED. -- The estate held by a husband or wife in a homestead cannot be alienated by the voluntary act of either or both of the parties, except in conformity to the statute in force at the time. Flege v. Garvey, Pac. Law Reporter, February 3, 1874.

HUSBAND AND WIFE. 1. WIFE'S REAL ESTATE. — JUDGMENT AGAINST HUSBAND.— The plaintiff purchased at public sale certain real estate owned by a married woman, and made a deposit upon account of the purchase. Ascertaining afterwards that there were numerous judgments against the husband, he rescinded the contract and sued to recover the money deposited. Held, that the facts showing that the property was purchased by the owner out of her own means, the plaintiff was not entitled to recover. Schlessinger v. Ellis, Legal Gazette, February 6, 1874; Legal Int., February 6, 1874.

2. INSURANCE. — A husband has an insurable interest in the buildings on a wife's real estate. Am. Cen. Ins. Co. v. McLanathan, Ins. Law Journal, December, 1873.

See HOMESTEAD.

INJUNCTION. LICENSE TO PERFORM PARTICULAR ACT. — An injunction to restrain defendant from removing surplus soil, &c., from land, was refused where it was shown that a license to make such removal had been granted to defendant, and he had expended money on the faith of the license. Davis v. Souder, Legal Gazette, February 13, 1874 ; Legal Intel., February 13, 1874.

INSURANCE 1. AGENT. — KNOWLEDGE OF BINDS PRINCIPAL. Held, that an agent authorized to issue policies of insurance and consummate the contract binds the principal by any act, agreement, representation, or waiver, within the ordinary scope or limit of insurance business, which is not Vol. I.)

[No. 2.

Digest or CASES.

known by the assured to be beyond the authority granted to the agent. Am. Cent. Ins. Co. v. McLanathan, Ins. Law Journal, December, 1873.

2. APPLICATION. — OPINION OF EITHER PARTY.- Held, that the opinion of the president of the company as to the truthfulness of certain statements made in the application, or what he would have done under certain circumstances, had no bearing on the case, and was properly rejected. Held, that it is a question of law for the court, and not to be settled by either party, how far false statements in the application affect the validity of the contract. Wash. Life Ins. Co. v. Haney, Ib.

3. ASSESSMENT. — PREMIUM NOTES AS CONSIDERATION. — STATUTE LIABILITY NOT TO BE ASSESSED TILL PREMIUM NOTES EXHAUSTED. — Held, that premium notes in a mutual fire insurance company are a part of the contract price, or consideration of the insurance, and constitute a reserved fund or investment of the capital of the corporation. Held, that the application of such an assessment as between the members themselves, must be determined by the character of the liability, which is subject to the assessment. Held, that the statute liability, outside of the deposit note, is not properly of the corporation, but is rather an indemnity imposed by law upon the members. Held, that under the general statutes, c. 58, $$ 48–54, the deposit notes should first be exhausted before resorting to the further liability imposed by law on the policy holders. Commonwealth v. Mon. Mut. Fire Ins. Co. Ib.

4. DAMAGES. — REFUSAL TO REBUILD. — Plaintiff in error gave notice that it would repair the building injured by fire, but neglected to do so for upward of a month, when it had suffered additional injury by being exposed to the weather. Held, that defendant in error is entitled to recover for the damages incident to this delay. American Central Ins. Co. v. McLanathan, Ib.

5. DESCRIPTION OF PREMISES. — ERROR IN. — The property of the defendant in error, insured by plaintiff in error, was described as situated on the corner of Second and Vine streets. As a matter of fact, the property, as was well known to the agent, was situated on the corner of Second and Elm streets, and the mistake was made by the agent in writing the policy. Held, that the contract was not void for uncertainty, nor is there any need of applying for a reformation of the contract, provided it appears from the face of the instrument or extrinsic facts which is the true and which the false description. Ib.

6. EXPIRATION OF POLICY. — One condition of a policy of life insurance was, that “ within each calendar month the insured shall also pay as a mortuary assessment, the further sum of two dollars," &c. It was further provided that a non-performance of any of the conditions of the policy nullified the contract of insurance and worked a forfeiture of any claim on the part of the insured against the insurer. On one of its customary printed blank forms of receipts and notices of mortuary assessments, the insurer, April 13, 1872, gave its receipt for an assessment for March 1872, and, annexed thereto, this notice of the assessment for April : “ Mortuary Assessment No. 30 will be due and payable on or before the 1st day of May, 1872.” Without that assessment having been paid, the insured died on the night of May 1st, 1872, before midnight. Held, that the policy continued until midnight of May 1st, and the insurer was liable. Och

(No. 2.

Vol. I.)

DIGEST OF CASES.

v. Homestead Bank f Life Ins. Co., Pittsburg Legal Journal, February 11, 1874. (See present issue of Law Times.)

7. INSURABLE INTEREST. — TRUSTEE OR AGENT. — A trustee or agent having no personal pecuniary interest in the property has an insurable interest sufficient to effect an insurance thereon. Am. Cen. Ins. Co. v. MeLanathan, Ins. Law Journal, December, 1873.

8. MATERIAL FACTS. – TRIVIAL FACTS CANNOT BE MADE MATERIAL. - Held, that neither party can, without the consent of the other, lift an unimportant and trivial thing into a material and essential fact, nor, when the contract has been executed by the other party, and it is called upon to perform its obligations, can it say that this trivial matter was essential, and that it did not exist as represented. If a party would make anything material other than what the law says is, it must be made known to the opposite party prior to the contract. Washington Life Ins. Co. v. Haney, Ib.

See BANKRUPTCY, 2 ; HUSBAND AND WIFE, 2; STATE LAW.

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INTEREST.
See PLEADING AND PRACTICE, 2.

JUDGMENT. TRANSCRIPT WHICH SHOWS ONLY APPEARANCE BY ATTORNEY. - If suit be brought in one state upon the transcript of the record of a judgment rendered by a court of record in another state, which transcript shows that the defendant was not served with process, but recites that he appeared by attorney only, the judgment debtor may, under the rule of law as settled by the supreme court of the United States, aver and prove that such attorney had no authority so to appear; and, if proven, such judgment will be void. The rule is otherwise, when suit is brought here upon a judgment rendered in Ohio. Marks v. Fordyce, Am. Law Record, January, 1874. See PARTNERSHIP; PLEADING AND PRACTICE, 2; VENDOR AND

VENDEE.

JURY. DIRECTION BY COURT. — To warrant an unqualified direction to the jury in favor of one party or the other, the evidence must either be undisputed, or the preponderance so decided that a verdict against it would be set aside and a new trial granted. Commonwealth v. Magee, Legal Chronicle, February 7, 1874.

LACHES.
See CERTIORARI.

LANDLORD AND TENANT. TENANT IN POSSESSION. — PROOF BY TO DISPUTE LANDLORD'S TITLE. - In order that a defendant in an action of unlawful detainer may avail himself of the rule that a tenant who did not enter under the lease, but was in possession at the time it was made, is not estopped from disputing Vol. I.]

[No. 2.

Digest Of Cases.

his landlord's title, he must prove paramount title in himself. It is not enough to dispute the title by averment. The production of a lease which is valid as a contract makes out a primâ facie case for the landlord. Peralta v. Ginochio, Pac. Law Reporter, January 27, 1873.

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OPERATION OF STATE LAW. - SIMILAR STATUTES IN ADJOINING STATES. — ACTION AGAINST CITIZEN OF ONE STATE FOR VIOLATION OF LAW OF ANOTHER STATE BY AGENT. — Aldrich & Co., oil merchants at Cincinnati, Ohio, upon a written order of Mary Van Camp, a druggist doing business at Metamora, Indiana, and a stranger to A. & Co., forwarded one barrel of gasoline to B., at Metamora, with instructions to deliver it to Van C., if she was responsible. The gasoline was delivered and placed in the cellar of Mrs. Van C., where, in consequence of the barrel leaking, an explosion occurred, causing the death of four persons, among them that of C. M. Van Camp, the plaintiff's intestate. By a statute of Indiana, a copy of the Ohio statute, it was unlawful to sell gasoline in that State, for illuminating purposes, before the same was inspected and branded “ approved.” The gasoline had not been caused to be inspected by B., at Metamora, before delivery to Mrs. Van C., and there was no evidence that A. & Co. knew for what purpose she bought it, or that they gave any instructions to B. to deliver it without inspection, or that they knew or had cause to believe that he would do so. All that A. & Co. did in the matter was done in Cincinnati. By the Code of Indiana, as by statute in Ohio, an action is given to the personal representative of the deceased who comes to his death by the wrongful act, neglect, or default of another. The plaintiff, the duly appointed administratrix of the deceased C. M. Van Camp, under the laws of Indiana, brought her action in the superior court of Cincinnati against A. & Co., for causing the death of her intestate by their wrongful act and neglect in delivering the gasoline to Mrs. Mary Van Camp, by their agent B., at Metamora, before the same was inspected. Held, that the law of Indiana was not violated by defendants; that there being no evidence of B.'s agency to violate the same, the presumptions against his authority to do so must prevail. Story on Agency, sec. 197; Owens v. Hall, 9 Peters, 607; Wassem v. Underhill, 2 N. H. 505, &c.

Held, also, that even if defendants did violate the law of Indiana, the plaintiff had no remedy in the courts of Ohio. Woodward v. Mich. f Ind. R. R. Co. 10 Ohio St. 121; Richardson v. N. Y. C. R. R. Co. 98 Mass. 85; Hunt v. Townall, 9 Vermont, 411, &c.

YAPLE, J., dissenting, cited : Sedgwick on Stat. 362; Westlake's Priv. International Law, sec. 158, 276, &c.; Am. Law Record, February, 1874.

LIBEL. 1. RIDICULE. — A publication which tends to reflect shame upon a person, and to hold him up to the people as an object of ridicule, is libellous. Lick v. Owen, Pac. Law Reporter, January 20, 1874.

2. PRESUMPTIONS AS TO MALICE. — If a publication be libellous and not privileged, the law implies that it was malicious.

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