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by him; and if it appears that the vessel, shortly after sailing, became leaky, unfit to perform the voyage, or sank without encountering any peril or storm, this is presumptive evidence of unseaworthiness. 2 Arn. Ins. 1345. The facts presented bring the case within the rule above stated, and it is very manifest that upon no sound principle of law can it be held that under the circumstances presented the vessel was seaworthy. Although the question has never been decided in this court, yet the distinct point was presented in Wright v. Orient Mut. Ins. Co., 6 Bosw. 269. In that case, where a vessel sailed in the morning, and was soon after found to be leaking, and in the afternoon put back to port, the jury having found a verdict for the plaintiffs, no violent storm or extraordinary peril being shown, the court set the verdict aside, as contrary to ence and law, and violation of the presumption of unseaworthiness arising on such facts. In the case considered there was no evidence introduced on the part of the plaintiffs directly showing that the vessel was seaworthy, even when she started on her voyage. The claim of the plaintiffs to the contrary is without merit. The testimony of Mr. Lawrence, that he thought the boat was capable of carrying what coal she had on, does not establish that the boat was seaworthy. This was not enough in the face of the fact that within twenty-four hours after she started, without any apparent cause or reason, she sank at the dock where she was moored. Nor does the fact that she performed other voyages safely prove her seaworthiness in contradiction of the testimony showing her loss and destruction. It cannot be said that a vessel which, after a voyage of two or three hours, without encountering any danger or peril, sinks and disap. pears, was sound and seaworthy. As the case stood upon the evidence given, it is very clear that the court were entirely justified in dismissing the complaint. Van Wickle v. Mechanics', etc., Ins. Co. Opinion by Miller, J. [See 26 Am. Rep. 129; 11 Eng. Rep. 206, 252.-ED.]
[Decided Nov. 25, 1884.]
LIMITED PARTNERSHIP-CONTRIBUTION MUST BE IN CASH-MAY DEAL WITH SPECIAL PARTNER-CHANGED TO LIMITED-PROVISION AS TO SHARE OF LOSSESOMISSION IN NOTICE-NAME OF NEWSPAPER CHANGED.
-(1) It is well settled that under the Limited Partuership Act the contribution of capital by the special partner must be made in cash, and that payment in any thing else will not satisfy its requirements. Van Ingen v. Whitman, 62 N. Y. 513; Durant v. Abendroth, 69 id. 148. (2) There is nothing in the Limited Partnership Act which prohibits a limited partnership from dealing with or buying goods for its business from the special partner. Transactions between the firm and the special partner may be fraudulent in fact as to the oreditors of the firm. But there is no disability to engage in such dealings imposed by the terms of the act, nor are such dealings, fairly conducted, inconsistent with the purposes or objects of a limited partnership. That such dealing is permitted has been decided by the Supreme Court of Pennsylvania, under a statute almost identical with our own, and the same prinoiple is recognized in the French law, from which the principle of limited partnership is derived. McKnight V. Ratcliff, 44 Penn. St. 156; Troubat Lim. Partn., § 807. (3) There is nothing in the letter nor in the policy of the Limited Partnership Act to prevent a change of an existing partnership into a limited one. The practical convenience of such a proceeding in many cases is manifest. It enables a general partner, who by reason of age or infirmity, or upon any other ground, desires to withdraw from the active management of the business, to place it in the hands of his copartners, risking only his capital, and at the same time
securing to the new concern the good will and business advantages possessed by the former one. The practical arrangements by which such a change is effected usually include the taking by the limited partnership
the assets of the general partnership. The special partner cannot put in his stock in the old concern upon a valuation as his capital, because the statute requires it to be paid in in cash. But the statute does not prohibit the limited partnership from purchasing in good faith of the former firm, or from paying for it out of capital contributed by the special partner, although it may happen that the latter is enabled to receive the greater part or the whole of the purchase-money, and is placed in substantially the same position as if he originally had put in the stock as capital instead of money. The transaction is not a withdrawing of the capital of the special partner. It is the employment of that capital in the business of the limited partnership. If the purchase of the stock was made a condition of his contribution of capital, a different question would be presented. But where a limited partnership is at liberty to purchase the stock, or to use the fund for any other partnership purpose, bad faith in constituting the partnership is not a legal inference from such a transaction, and this, although the expectation that the new firm would make the purchase existed when the partnership was formed. The case of Lawrence v. Merrifield, decided in the New York Superior Court, and reported in 10 J. & S. 36, and affirmed in this court (73 N. Y. 590), tends to support the conclusion we have reached upon this branch of the case. A provision of the partnership articles that the special partner should bear a proportionate share of the losses, is not violative of said act, as there is nothing therein prohibiting the general partner from extending his liability by agreement with his partners or assuming risks beyond the loss of capital. An omission to state in the notice published all the details of the partnership is not a failure to comply with the provisiou requiring publication of the terms of the partnership if it contains all the facts required, the provision is satisfied by a publication of the terms of the certificate. The name of one of the newspapers in which notice was directed to be published was changed after publication was commenced. Held, that this did not affect the validity of the publication; that the identity of the paper was not lost by the change of name. Metropolitan Nat. Bank of New York v. Sirret. Opinion by Andrews, J. [(1) See ante, 184.] [Decided Nov. 25, 1884.]
INSURANCE-GENERAL LANGUAGE OF POLICY-SPECIAL INDORSEMENTS TO CONTROL-LIABILITY OF COMPANY FOR LOSS.-Defendant and others issued an open policy of marine insurance, which consisted of a printed form which provided that its general language should be controlled by indorsements of special risks, as made from time to time, "touching the adventures and perils" insured against. The policy declared that "in this voyage they are of the seas, * * * and all other perils, losses and misfortunes that have or shall come to the hurt, detriment or damage of the said goods and merchandise, or any part thereof." A subsequent provision however declared that "vegetables and roots * ** and all other articles that are perishable in their own nature * * * are warranted by the assured free from average unless general." It was further provided that the adventure shall continue and endure until the said goods and merchandise shail be safely landed at aforesaid. Plaintiff's assignor was insured by indorsement upon said policy upon a quantity of potatoes, "said to contain 1615 barrels," shipped in bulk on a canal boat named, "from New York to Yonkers F. P. A.," which initials, it was conceded, meant that the risk was free
from particular average, i. e., that the assured should only be accountable for a total loss. The boat arrived at its port of destination with its cargo entire and in good order, but after about 109 barrels of the potatoes had been taken out and delivered to the consignees in good order the boat sank with the remainder of the cargo, and most of it lost. In an action upon the policy, held, that by the contract the insurers were exempted from the payment of any loss occurring only to a portion of the property, their liability being confined to the absolute or constructive loss of the entire cargo, and that therefore when by the delivery in good order of a material part a total loss during the progress of the insured voyage became impossible, such liability terminated. The clause in the original policy covering any part of the subject insured, and continuing the risk until the goods were safely lauded, would, unexplained and unmodified, require the payment of a loss occurring through the destruction, by any of the perils insured against, of any part of the insured property, and would continue the insurance over the entire cargo until it was discharged, even though a part had been safely landed and secured from loss or destruction. The special indorsement, on the other hand, excepts the assured from the payment of a partial loss, and provides indemnity only for a total loss of the whole cargo insured. The provision in respect to the insurauce upon goods, etc., and " any part thereof," is undoubtedly qualified by the memorandum excepting
roots and vegetables" from any average unless general, and independent of the considerations, would relieve the assurers from any loss upon the property insured unless it was total as to the whole subject. Wadsworth v. Pacific Ins. Co., 4 Wend. 33; Ralli v. Janson, 6 Ell. & Bl. 422; Morean v. U. S. Ins. Co., 1 Wheat. 219; De Peyster v. Sun Mut. Ins. Co., 19 N. Y. 277. It was held in the case of Wadsworth v. Pacific Ins. Co., supra, that an underwriter is not accountable for a partial loss on memorandum articles, except for general average, unless there is a total loss of the particular species, whether the particular artiole be shipped in bulk or in separate boxes or packages. This also seems now to be settled law in England, as well as this country. Ralli v. Janson, supra; Wallerstein v. Col. Ins. Co., 44 N. Y. 204; Moreau v. U. S. Ins. Co., supra. It is against a partial loss of any part of this subject that the contract seeks to protect the assurers, and there is no rule of construction, which after the risk attached, will permit the diminution by a delivery in good order at the port of destination of a part of the subject insured, and still keep alive the insurance, without defeating the object sought to be effected by the special provision referred to. Moreau v. U. S. Ins. Co., supra. The subject of the insurance here is entire, and is determined when the risk attaches. Any subsequent dealing with the property by the assured which results in the preservation of a substantial part of it, so that it may be delivered in safety and in good order at the port of destination, discharges the obligation of the assurers. Guerlain v. Col. Ins. Co., 7 Johns. 527. The various fallacies by which such a contract as the present has been construed as intended to cover a total loss of a part of the insured subject, when it was shipped in separats boxes or packages, and valued separately, have now been rejected by the courts of the principal maritime countries. Ralli v. Jonson, supra, aud continental authorities cited, Wallerstein v. Col. Ins. Co., supra; Phil. on Ins., § 1773; 2 Pars. Ins. 292. Conceiving therefore that there is an irreconcilable repugnance existing between the provisions referred to, the contract must be construed so as to give effect to the stipulations contained in the special indorsement, even though we are thereby required to nullify other provisions contained
in the printed parts of the same contract. It hardly needs the citation of authority to support the long established rule that the printed portions of a contract, wheu repugnant, must be subordinated to those which are written, and that the latter are presumed, from the circumstance of their special and deliberate insertion by the parties, to embrace their real intent and meaning. Leeds v.Mechan. Ins. Co., 8 N. Y. 351; Harper v. Alb. Ins. Co., 17 id. 194; Harper v. N. Y. City Ins. Co., 22 id. 441. The rule requiring courts to construe contracts so as to give effect to every expression contained therein, when it can reasonably be done, is undoubtedly a salutary one, and should not be departed from; but it is not applicable to a case where the repugnance between its various provisions is irreconcilable, aud the effect of the construction would be to defeat the main intent of the contracting parties in making it. We think such a repugnaucy exists in this case. Chadsey v. Guion. Opinion by Ruger, C. J. [Decided Nov. 25, 1884.]
KANSAS SUPREME COURT ABSTRACT.*
HIGHWAY-WILLFULLY OBSTRUCTING—PENALTY.— Where one obstructs a public road or highway by the erection and maintenance of a mill-dam for the sole purpose of supplying water power to run and operate a grist, flour and exchange mill owned by him, and the back-water from the mill-pond formed by the dam reuders the road unsafe for crossing, and practically impassable, and to the notification of the road overseer that the back-water from the dam and mill-poud totally obstructs the road, insolently answers the road overseer that "if he wants the water removed, to warn out his men, and dip it out with buckets," held, that such a person is liable to the penalty for a willful obstruction of the public road, under the provisions of § 17, ch. 89, Comp. Laws of 1879. Although the dam was erected and maintained for the sole purpose of supplying water power to run and operate a grist, flour, and exchange mill owned by the appellants, they acquired no right by the erection of the dam for such a purpose to obstruct the highway either with their dam or by the flowage of water. "The purely public use of a highway is paramount to the quasi public purpose of a mill. Where the building of a dam overflows and obstructs the highway, the right to proceed with the dam can only be secured by proceedings vacating the highway, or by taking such steps, either raising the roadway or building a bridge, as may be necessary to secure the free and unobstructed use of the highway." Venard v. Cross, 8 Kans. 259. If the term "willful" is construed only to mean designedly and purposely, then upon the agreed facts, the appellants are guilty. If we give to it greater strength, and say that willful in this connection denotes "governed by a will; without yielding to reason; obstinate, stubborn, perverse, inflexible," then the appellants are guilty. And if we go further, and say that in order to convict the appellants of willful obstruction, they must have committed an act "which a man of reasonable knowledge and ability would know to be contrary to his duty," then he must say that they are guilty, because with the knowledge that they had obstructed the road, they insolently answered the notice of the road overseer, and in defiance of his order continued to obstruct the public road. Territory v. Taylor, 1 Dak. 47; Fearnley v. Ormsby, 4 C. P. Div. (Eng.) 136. See also State v. Castle, 44 Wis. 670; State v. Preston, 34 id. 675. State v. Raypholtz. Opinion by Horton, C. J. [As to meaning of "willful" see 47 Am. Rep. 311; 30 Alb. L. J. 434.—ED.]
*To appear in 32 Kansas Reports.
LANDLORD AND TENANT-POSSESSION ABANDONEDLEASE NOT REVIVED.—A tenant of real estate, at the end of his term, removed his fences and improvements, and abandoned and quit the possession. Some time afterward he again went into the possession of the property under a claim of title adverse to his former landlord. Held, that such abandonment was a surrender of the possession under the lease, and the relation of tenant to the person from whom he obtained possession was thereby terminated, and that he did not, by afterward taking possession, revive the lease or extend the term under it, and was not liable for rent under it. Douglass v. Geiler. Opinion by Hurd, J.
keep the buildings and fences in as good repair as they now are, damage by the elements excepted. And it is mutually agreed between the parties that they bind their heirs, executors and assigns, as well as themselves, to the faithful performance of these cove. uants, "creates the relation of landlord and tenant between G. and S.; and in au action under the forcible and unlawful detainer statute against S., after the expiration of the term specified, he is estopped from denying the title of G., or setting up title in himself to the premises, or any part thereof, or to show that G. had no possession to give, or that he did not hold the possession from G. The principle that the tenant cannot dispute and is estopped from denying the title of his landlord has been established by too many decis. ions of this court, and of all courts, and is too elementary to require the citation of authorities; but we may not ignore the true legal character of this instrument as a lease, and the true relation of the parties to it as landlord and tenant. By all the later and most approved authorities, in most all the States, as in New York, this instrument is a lease, and the defendant may be, and was, properly proceeded against as a tenant holding possession after the expiration of the term fixed therein, under the old provisions of the statute. This instrument is drawn with great formality, and the language is apt and pertinent: "The party of the first part does hereby lease her farm," etc. One-third of the grain, roots and hay is to be delivered. The tenant has all the buildings on the premises, and is to keep them in repair. The term is one year, from December to December-a longer time than a cropping season merely. There is no possession reserved to the landlord during the term, or any control over the premises. It is under seal and is made to bind heirs, executors and assigns. The intention is clear enough that the instrument should be and have all the effect of a lease, if it can be determined from any such au instrument. In Fry v. Joues, 2 Rawle, 11, there was a formal lease of a grist-mill, and a house and lot with it, the lessee to render one-third of the toll of the mill. The question was whether there could be distress for this rent. It was objected that it was no lease, because the rent was uncertain. It was held that such rent was sufficiently certain, because it could be reudered certain. Id certum est quod certum reddi potest; and the distress was sustained. It was held in that State subsequently, in Burns v. Cooper, 31 Penn. St. 426, and in Ream v. Harnish, 45 id. 376, that an agreement to let a farm for a certain term for a share of the grain to be delivered to the landlord was a lease, and the landlord had no ownership of or interest in the crops while growing which he could convey; and if he died before his share was ready for delivery it would go to his heirs, and not to his executors. It is held in Massachusetts that under such a lease the landlord has no property in the crops until they are divided (Geer v. Flemming, 110 Mass. 39; Darling v. Kelly, 113 id. 29; Warner v. Abbey, 112 id. 355), thus establishing it as a technical lease, under which the tenant has exclusive possession. The case of Jordan v. Staples, 57 Me. WISCONSIN SUPREME COURT ABSTRACT.* 352, is distinguished from a lease of a farm making the
rent a share of the crops, and the landlord reserving no right of occupancy for any purpose during the term has no property in the crops until divided, because the landlord reserved the possession for certain purposes. In Harrison v. Ricks, 71 N. C. 7, "A. rents a farm from B. for one year, agreeing to furnish and feed the teams, and to find the farming utensils to make the crops, and furnish and pay for the labor, and give B. one-half of the crop as rent." It was held to
INJUNCTION-PUBLIC OFFICER-RESTRAINING EXERCISE OF POWERS—.—Plaintiff claiming to be the dulyelected, qualified and acting county attorney of Saline county, brings his suit in this court, against the defendant, to obtain a judgment prohibiting him from exercising or attempting to exercise any power or duty of the office of such county attorney, and asks for a restraining order pending the suit. On motion of the defendant to dismiss the action, held, that this court has no jurisdiction of the subject-matter, or power to grant the relief demanded, and that such action cannot be maintained in this court. Foster v. Moore. Opinion by Hurd, J. [See 23 Eng. Rep. 91.]
NEGOTIABLE INSTRUMENT-STATUTE OF LIMITATION -DUE-BILL-NO DEMAND NECESSARY TO SET STATUTE RUNNING.-A due-bill or contract in the following terms: "Leavenworth City, October 22, 1873. Due J. C. Douglass $500, in brick-work at $10 per thousand, measured in the usual way. [Signed] Sargent & Bro.,' is payable at once and without demand, so that the statute of limitations runs from its execution; and an action thereon against the makers is barred by the statute if not brought within five years after its date. Code, § 18, sub. div. 1. The case of Auld v. Butcher, 22 Kans. 400, is not applicable. That was an action for the wrongful conversion of a city bond, a case of pledge or trust in which a demand was necessary. Here on the face of the due-bill sued upon, the defendants owed the plaintiff $500 in brick-work at the date thereof. The obligee in the contract was bound to receive performance of the work whenever offered, whether before or after it was specially demanded by plaintiff. Upon contracts of the kind sued upon, it would not do to say that the statute does not begin to run until after demand. As a demand is optional with the creditor, no performance or tender could be made which would bind him, and he could keep the due-bill or contract alive for an indefinite period. Such a construction would not carry out the intention of the parties. Palmer v. Palmer, 36 Mich. 487, and cases cited; Herrick v. Woolverton, 41 N. Y. 581; Wheeler v. Warner, 47 id. 519; Stover v. Hamilton, 21 Gratt. 273; Bowman v. McChesney, 22 id. 609. Douglass v. Sargent. Opinion by Horton, C. J.
LANDLORD AND TENANT-WORKING FARM ON SHARES -FORCIBLE ENTRY AND DETAINER-STATUTE-ESTOPPEL-DENYING LANDLORD'S TITLE.-A written instrument duly executed by G. and S., whereby G. "does lease uuto S. her farm for the term of one year, date to commence December 1, 1882 [describing the land]. * * * S. to give one-third of all grain or roots raised, to be delivered in the half-bushel, and onethird of all the hay out in the stack; to furnish all seed and tools, and pay all threshing expenses; aud to *Appearing in 21 Northwestern Reporter.
be a lease. That case is not so clear a tenancy as the one in this case, and yet the court held that A. was tenant, and not a cropper, and had the right to convey the crop, subject to the right of the landlord to his
share as rent. It is stated in the opinion that "the difference between a tenant and a cropper is: a tenant has an estate in the land for a term, and consequently has a right of property in the crops. It is he who divides off to the landlord his share, and until such division the right of property aud of possession in the whole crop is his." On a similar lease and to the same effect is Sargent v. Courrier, 66 Ill. 245; Lacy v. Weaver, 49 Ind. 373; Rinehart v. Olwine, 5 Watts & S. 157; and Doremus v. Howard, 23 N. J. Law, 390. Under such a lease the lessee can bring trespass against an intruder upon the land or a disturber of the crops without joining his landlord, for the exclusive possession of both are in him. Larkin v. Taylor, 5 Kan. 433. In Walls v. Preston, 25 Cal. 59, the contract was substantially the same as in this case, and it was held in law a lease. It is held in one of these cases that the use of the words "deliver to the landlord" his share, is strong ground for holding the agreement a lease. See also to the same effect, Alwood v. Ruckman, 21 Ill. 200; Blake v. Coats, 3 G. Greene, 548; Hoskins v. Rhodes, 1 Gill & J. 266; Moulton v. Robinson, 7 Fost.
(N. H.) 550; Aikin v. Smith, 21 Vt. 180; Hatch v. Hart, 40 N. H. 98; Tayl. Landl. & Ten., § 25, and note 6. By the strong current of authority this agreement is in every essential a lease, and the relation of the parties as landlord and tenant precludes the tenant from denying the title of the plaintiff or setting up title in himself to the premises, or any part of them. It would be a violation of the same principle to allow the defendant to show that plaintiff had no possession to give, or that he did not hold the possession from the plaintiff. He is equally estopped by his lease from denying the possession as the title of the plaintiff, for thereby he has acknowledged both. Strain v. Gardner. Opinion by Orton, J. [Decided Oct. 14, 1884.]
CONTRACT-CONSIDERATION-RELEASE OF DOUBTFUL CLAIM.-A materialman, who after filing a notice of a lien for material furnished a contractor to build a house, releases his claim and discharges the contractor in consideration of a promise by the owner to pay him the amount due for such material, may maintain an action against the owner on such promise. The discontinuance of an action brought in good faith upon a doubtful claim has always been held to be a good consideration for a promise to pay the amount of the claim. So a compromise of a doubtful claim is a good consideration for a promise to pay money, and it is no answer to an action brought upon such promise to show that the claim was invalid. Craus v. Hunter, 28 N. Y. 389; McKinley v. Watkins, 13 Ill. 140; Draper v. Owsley,57 Am.Dec. 218. Here the claim was not doubtful. The defendant's promise to pay was an implied
confession that she was then indebted to Hire in at least the amount she then promised to pay to the plaintiff. This being so, her block was then charged with the payment of the plaintiff's claim. The subsisting obligation of the defendant to pay the claim, or have it enforced out of her block was a sufficient consideration to support the promise of payment. Cook v. Bradley, 7 Conu. 57; Burr v. Wilcox, 13 Allen, 269. In Rippey v. Friede, 26 Mo. 523, it was held that the forbearance of a subcontractor to take the necessary steps to enforce his lien under the mechanics' lien law of that
State was a good consideration for the promise of the owner of the building to pay the claim. The case is even stronger than this, for there the question whether the defendant made the promise was disputed, while here it is confessed that the defendant not only promised, but that the plaintiff had actually given the requisite notice of lien, and then released the lien, and also discharged the principal contractor in consideration of such promise. Such release and discharge must
be regarded as a sufficient consideration. Snell v. Bray, 56 Wis. 156. It is urged that if the defendant made such oral promise, then it was within subd. 2, § 2307, Rev. Stat., and hence void. But the assumption that the promise was oral, and not in writing, is wholly unwarranted by any thing contained in the record. A promise and agreement being alleged, we are bound to assume that they are valid rather than invalid, even if such oral promise would be within the statute. But we are by no means prepared to say that such oral promise would have been within the statute. In fact the decision in Weisel v. Spence, 59 Wis. 301, seems to hold that it would not. In fact the case is stronger, because it is alleged not only that the lien was released, but that the original debtor was discharged, while in that case the original debtor was not released. Griswold v. Wright. Opinion by Cassoday, J. [Decided Oct. 14, 1884.]
PRACTICE AMENDMENT TO PLEADING-DISCRETION -REFUSAL TO EXERCISE DISCRETION ERROR.-The allowance or disallowance of an amendment to a plead
ing setting up a statute of limitations or a plea of usunder all the circumstances of the case. In accordury, rests in the sound discretion of the trial court, tained orders of the trial court refusing to grant such ance with that principle, this court has frequently sus. amendment. Fogarty v. Horrigan, 28 Wis. 142; Eldred v. Oconto Co., 30 id. 206; Meade v. Lawe, 32 id. 261; Dehnel v. Komrow, 37 id. 336; Plumer v. Clarke, 59 id. 646. It has also sanctioned the right of the trial court in the exercise of such discretion, to grant such amendment. Newman v. Kershaw, 10 Wis. 340; Jones v. Walker, 22 id. 220; Orton v. Noonan, 25 id. 676; Baker v. Supervisors, 39 id. 444; Wisconsin Cent. R. Co.v. Lincoln Co.,57 id. 138. Where such discretionary power has in fact been exercised by the trial court in a given case, this court, in the review of such exercise, only determines whether there has been an abuse of such discretion. Dehnel v. Komrow, supra; Capron v. Supervisors, 43 Wis. 617; Plumer v. Clarke, supra; The Phoenix v. Walrath, infra; Willis v. White, infra; Jones v. Evans, 28 Wis. 168. In the case at bar the trial court expressly refused to exercise such discretion on the asserted assumption that it had no such power. This was error. Where a trial court has, in the exercise of a sound discretion in a given case, power to do or not to do a certain act, a refusal to exercise such discretion, upon the expressed assumption that it has no such power, is an error of law which eliminates from the case the question whether there 28, 29; Phoenix Ins. Co. v. Walrath, 53 id. 669; King v. was any abuse of discretion. Wallis v. White, 58 Wis. Justices, 14 East, 395; Russell v. Conn., 20 N. Y. 83; Tracey v. Altmyer, 46 id. 598; Tilton v. Beecher, 59 id. 176; Attorney-General v. Insurance Co., 88 id. 77; Tolman v. Railway, 92 id. 353. Smith v. Duggert. Opinion by Cassoday, J. [Decided Oct. 14, 1884.]
MARYLAND court of APPEALS ABSTRACT.*
AGENCY-DURATION OF EMPLOYMENT.-The B. & W. Co., engaged in the manufacture of steam boilers in the city of New York, entered into an agreement vicinity," signed by both parties, and dated Decemwith M. "in regard to selling boilers in Baltimore and ber 9, 1881, and containing the following terms: “Mr. M. to open an office in Baltimore to represent the B. & W. Co., and work for their best interest in every thing. On all sales made by him, he is to take charge of erecting, and collecting money and remit same to us; all contracts to be subject to the approval of home
*To appear in 62 Maryland Reports.
office. The B. & W. Co. to pay office rent and incidental expenses of same, necessary travelling expenses, and $25 per week to Mr. M., charging the same to Baltimore office; five per cent on all sales by Mr. M. to be credited to Baltimore office, and any surplus credits at end of year to be paid to Mr. M." Held, that this contract is to be construed as continuing for a year, and the company had no right to discharge M. during that time, merely because the sales effeeted in the Baltimore district did not in their judgment warrant a continuance of his employment for that period. Babcock, etc., Co. v. Moore. Opinion by Miller, J.
CONTRACT-BREACH-DAMAGES-COMPOSITION— ACTION FOR DAMAGES BARRED.-T. made a contract with H. for the purchase of a large number of shooks, to be delivered and paid for in different quantities and at specified intervals between the 1st of Oct., 1875, and the last day of Feb. 1877. On the 26th of April, 1876, T. wrote to H. not to send him any more shooks. Held, that this action amounted to a repudiation of the contract, and it entitled the seller to consider it entirely at an end. Whether it entitled the injured party to an immediate action to recover damages in respect to each and every future delivery stipulated in the contract, quaere? (2) On June 9, 1876, T. made
a composition with certain of his creditors, including H., by which he agreed to pay in cash, to every creditor accepting the agreement, one-fourth of his claim, and to deliver to him two indorsed notes, each for one other fourth; it being stipulated that said cash and notes should be accepted by the creditors in full satisfaction of their respective claims. The claim of H., as stated by him was duly settled according to the terms of the composition, and did not include any damages for the breach of the contract for the shooks. In an action subsequently brought by H. against T. to recover said damages, it was held that the action was barred by the composition proceedings. Payler v. Homersham, 4 Maule & Sel. 423. Textor v. Hutchings. Opinion by Bryan, J.
PAYMENT-APPLICATION OF.-A continuous account between the plaintiffs and J. D., extending from the 4th of February, 1880, to the 30th of March, 1882, was kept by the plaintiffs alone. A draft drawn on and accepted by the plaintiffs, and signed by J. D. for whose accommodation it was drawn, and by the defendant's intestate, as surety for J. D., was charged in the account on 7th of June, 1880, as one of the debits against J. D. The credits were more than sufficient to extinguish the draft and all the debits antecedent to it. In an action against the administrator of the surety, to recover a balance due on the draft, it was held that the credits should be applied to the settlement of the earlier items on the debit side of the account; and the draft was therefore in point of law paid. Harnnett v. Dudley. Opinion by Bryan, J. [See 16 Eng. Rep. 273.]
INFANT-PROCHEIN AMI-ATTORNEY--RATIFICATION. -An infant brought a suit by her prochein ami, in a court of law. Afterward she employed an attorney, and requested him to dismiss the suit, which was accordingly done. A motion was subsequently made in the name of the infant by her prochein ami, asking the court to strike out the entry of "off," which had been made in the case, and re-instate it on the docket for trial. On appeal from the order of the court overruling this motion, it was held that the infant, until she reached the age of twenty-one years, was incompetent to appoint an attorney, or to take any step in the suit which could bind her rights. Greenwood v. Greenwood, 28 Md. 386; DeFord v. State, 30 id. 200; Baltimore & Ohio R. Co. v. Fitzpatrick, 36 id. 624. The ap
pointment of an attorney by the infant being nugatory, his dismissal of the suit was simply void. The court was therefore in error when it refused to re-instate the case. This case has been compared in the argument to a nonsuit regularly entered. We do not so regard it. When the plaintiff in a cause submits to a nonsuit, it is well settled that he has no right of appeal. This is an appeal from an order of the court refusing to correct an entry of nonsuit, made against the will of the only person who had the right to authorize it. The prochein ami had as much right to the protection of the court in this particular as in any other. The erroneous entry subjected her to a liability for costs, and an error of the court in refusing to relieve her ought certainly to entitle her to redress. It has been settled by many decisions of this court, that appeals may be taken from refusals to strike out judgments, as well as from orders striking them out. In Montgomery v. Murphy, 19 Md. 576, this court entertained an appeal from the refusal of the court below to strike out a judgment by confession erroneously entered, and being satisfied of the error, ordered the judgment by confession to be stricken out. In Powhatan Steamboat Co., Garnishee, etc., v. Potomac Steamboat Co., 36 Md. 238, the appeal was from an order refusing to strike out and set aside a
judgment of condemnation in_attachment; and the
order below was reversed. In Johnson V. Lemmon, 37 Md. 336, there was a similar appeal and a reversal in this court. We do not think that the circumstances of the case show luches on the part of the prochein ami in applying to have the entry stricken out. It is stated that the infant, after she arrived at the age of twenty-one, ratified and approved the act of her attorney. It was not in her power to do so. Her act in appointing an attorney was void, and in violation of the rights of her prochein ami. It is in the power of the court to remove the prochein ami, but while she sustains such relation, she must have the entire control of the conduct of the suit. Wainwright v. Wilkenson. Opinion by Bryan, J.
DEED-REFORMATION-MISTAKE-MUST BE MUTUAL -DAMAGES -- MINING - UNINTENTIONAL TRESPASS.
D. and the Maryland Coal Co., by deed of exchange conveyed to each other certain adjoining parcels of coal land. D. afterward conveyed by deed to the Atlantic and George's Creek Consolidated Coal Co., the same land obtained by him from the Maryland Coal Co. Subsequently the M. C. Co. sued the A. and G. C. C. C. Co. for mining coal on the land conveyed to the M. C. Co. by D. Whereupon the A. and G. C. C. C. Co. filed a bill against the M. C. Co. for an injunction to restrain the prosecution of said suit, and for specific performance, and other relief. The A. and G. C. C. C. Co. claimed that the land conveyed to D. did not contain the quantity and quality of coal it was intended he should receive, and that by mistake the land conveyed to D., as described in the deed of exchange, did not include the locus in quo, and that by a true location the alleged trespasses complained of in the suit at law were committed on the land that should have been originally conveyed by the M. C. Co. to D. It was alleged by the complainant that it had been agreed that the M. C. Co. by R., its agent, should survey and lay off for D. the land to be conveyed to him, and that in conducting its operations after the purchase from D., the boundaries of the land not being sufficiently marked by visible calls in R.'s survey, S. the complainant's engineer, applied to R. to show him the outlines, in order that no trespass might be committed, and that R. (since dead), in the capacity of agent of the M. C. Co., pointed out the lines, and that the coal which was the subject of the action of trespass was taken within the lines of the complain