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by him; and if it appears that the vessel, shortly after securing to the new concern the good will and business sailing, became leaky, unfit to perform the voyage, or advantages possessed by the former one. The practiBank without enconuteriug any peril or storm, this is cal arrangements by which such a change is effected uspresumptive evidence of uuseaworthiness. 2 Arn. Ins. ually include the taking by the limited partnership 1345. The facts presented bring the case within the of the assets of the general partuership. rule above stated, and it is very manifest that upon no The special partner cannot put in his stock in the old sonud priuciple of law can it be held that under the concern upon a valuation as his capital, because the circumstauces presented the vessel was seaworthy. statute requires it to be paid in in cash. But the statute Although the question has never been decided iu this does not prohibit the limited partnership from purcourt, yet the distinct point was presented in Wright chasing in good faith of the former firm, or from payv. Orient Mut. Ius. Co., 6 Bosw. 269. In that caso, ing for it out of capital contributed by the special where a vessel sailed in the morning, and was soon af partner, although it may happen that the latter is enter found to be leaking, and in the afternoon put back abled to receive the greater part or the whole of the to port, the jury having found a verdict for the plaint- purchase-money, and is placed in substantially the iffs, no violent storm or extraordinary peri] being sanie position as if he originally had put in the stock shown, the court set the verdict aside, as contrary to as capital instead of money. The transaction is not a evidence and law, and in violation of the presumption with ving of the capital of the special partner. It of uuseaworthiness arising on such facts. In the case is the employment of that capital in the business of the considered there was no evidence introduced on the limited partnership. If the purchase of the stock was part of the plaintiffs directly showing that the vessel made a condition of his contribution of capital, a difwas seaworthy, even when she started on her voyage. ferent question would be presented. But where a limThe claim of the plaintiffs to the contrary is without ited partnership is at liberty to purchase the stock, or merit. The testimony of Mr. Lawrence, that he to use the fund for any other partnership purpose, bad thought the boat was capable of carrying what coal she faith in constituting the partnership is not a legal iuhad on, does not establish that the boat was seawor ference from such a transaction, and this, although thy. This was not enough iu the face of the fact that the expectation that the new firm would make the within twenty-four hours after she started, without purchase existed when the partnership was formed. any apparent cause or reason, she sank at the dock The case of Lawrence v. Merrifield, decided in the New where she was moored. Nor does the fact that she York Superior Court, and reported in 10 J. & S. 36, and performed other voyages safely prove her seaworthi- affirmed in this court (73 N. Y. 590), tends to support ness in contradiction of the testimony showing her the conclusion wo have reached upon this branch of loss and destruction. It cannot be said that a vessel the case. Iprovision of the partnership articles that which, after a voyage of two or three hours, without the special partner should bear a proportionate share encountering any danger or peril, sinks and disap. of the losses, is not violative of said act, as there is pears, was sound and seaworthy. As the case stood nothing therein prohibiting the general partner from upon the evidence given, it is very clear that the court extending his liability by agreement with his partners were entirely justified in dismissing the complaint. or assuming risks beyond the loss of capita). An omisVan Wickle v. Mechanics', etc., Ins. Co. Opinion bysion to state in the notice published all the details of Miller, J. [See 26 Am. Rep. 129; 11 Eng. Rep. 206, the partnership is not a failure to comply with the pro252.-ED.]

vision requiring publication of the terms of the part[Decided Nov. 25, 1884.)

nership if it contains all the facts required, the provis

ion is satisfied by a publication of the terms of the LIMITED PARTNERSHIP-CONTRIBUTION MUST BE IN

certificate. The name of one of the newspapers in CASH-MAY DEAL WITII SPECIAL PARTNER-CHIANGET

which notice directed to be published was TO LIMITED-PROVISION AS TO SIIARE OF LOSSES

changed after publication was commenced. Helu, that OMISSION IN NOTICE-NAME OF NEWSPAPER CHANGET). -(1) It is well settled that under the Limited Partner

this did not affect the validity of the publication; that sbip Act the contribution of capital by the special

the identity of the paper was not lost by the change of

name. lletropolitan Val. Bank of New York v. Sirret. partner must be made in cash, and that payment in

Opinion by Andrews, J. [(1) See ante, 181.] any thing else will not satisfy its requirements. Van Ingen v. Whitman, 62 N. Y. 513; Durant v. Abendroth, [Decided Nor. 25, 1881.] 69 id. 148. (2) There is nothing in the Limited Part INSURANCE-GENERAL LANGUAGE OF POLICY-SPECnership Act which prohibits a limited partnership from IAL INDORSEMENTS T() ('ONTROL-LIABILITY OF COMdealing with or buying goods for its business from the

P’ANY FOR LOSS.-Defendant and others issued an open special partner. Transactions between the firm and policy of marine insurance, which consisted of a the special partner may be fraudulent in fact as to the printed form which provided that its general language creditors of the firm. But there is no disability to en should be controlled by indorsements of special risks, gage in such dealings imposed by the terms of the act, as made from time to time, "touching the adventures nor are such dealings, fairly conducted, inconsistent and perils " insured against. The policy declared that with the purposes or objects of a limited partnership. “in this voyage they are of the seas, * and all That such dealing is permitted has been decided other perils, losses and misfortunes that have or shall by the Supreme Court of Pennsylvania, under a stat come to the hurt, detriment or damage of the said ute almost identical with our own, and the same prin- goods and merchandise, or any part tèereof." A subciple is recognized in the French law, from which the sequent provision however declared that “ vegetables principle of limited partnership is derived. Mcknight and roots

and all other articles that are perv. Ratcliff, 44 Penn. St. 156; Troubat Lim. Partu., ishable in their own nature

are warranted 307. (3) There is nothing in the letter nor in the pol- by the assured free from arerage unless general.” It icy of the Limited Partnership Act to prevent a change was further provided that the adventure shall continue of an existing partnership into a limited one. The and endure until the said goods and merchandise sbail practical convenience of such a proceeding in many be safely landed at

aforesaid. Plaintiff's ascases is manifest. It enables a general partner, who signor was insured by indorsement upon said policy by reason of age or infirmity, or upon any other upon a quantity of potatoes, “said to contain 1615 bargruuud, desires to withdraw from the active manage- rels,” shipped in bulk on

a canal

boat named, ment of the business, to place it in the hands of his co “from New York to Youkers F. P. A.,” which ini. partners, risking only his capital, and at the same time tials, it was conceded, meant that the risk was free



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, nust be subordinated to those which are written, and that the latter are presumed, from the circumstance of their special aud deliberate insertion by the parties, to embrace their real intent and meaning. Leeds v.Mechan. Ins. Co., 8 N. Y. 351; Harper 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, and the effect of the coustruction would be to defeat the main intent of the contracting parties in making it. We think such a repugnancy exists in this case. Chadsey v. Guion. Opinion by Ruger, C. J. [Decided Nov. 25, 1884.)


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 consiguees 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 landed, 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 insurance 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. Ing. Co., 1 Wheat. 219; De Peyster v. Sun Mut. Ins. Co., 19 N. Y. 277. It was held in the case of Wadsworth v. Pacifio 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 article 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. Ius. 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 asBurers, and there is no rule of construction, wbich 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, and 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 wo are thereby required to nullify other provisions contained

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

ange will owned by him, and the back-water from the mill-pond formed by the dam renders 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-pond 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 provisious 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. Wbere 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 road way 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 desiguedly 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 appellauts are guilty. And if we go further, and say that in order to convict the appellants of willful obstruction, they must have conmitted 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.) 130. 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.

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LANDLORD AND TENANT-POSSESSION ABANDONED keep the buildings and fences in as good repair as they LEASE NOT REVIVED.-A tenant of real estate, at the now are, damage by the elements excepted. And it is end of his term, removed his fences and improve- mutually agreed between the parties that they bind ments, and abandoned and quit the possession. Some their heirs, executors and assigns, as well as thenitime afterward he again went into the possession of selves, to the faithful performance of these covethe property under a claim of title adverse to his for-nants, ”creates the relation of landlord and tenant bemer landlord. Held, that such abandonment was a tween G. and S.; and in an action under the forcible surrender of the possession under the lease, and the and unlawful detainer statute against S., after the exrelation of tenant to the person from whom he ob-piration of the term specified, he is estopped from detained possession was thereby terminated, and that he dying the title of G., or setting up title in himself to did not, by afterward taking possession, revive the the premises, or any part thereof, or to show that G. lease or extend the term under it, and was not liable had no possession to give, or that he did not hold the for rent under it. Douglass v. Geiler. Opinion by possession from G. The principle that the tenant canHurd, J.

not dispute and is estopped from denying the title of INJUNCTION-PUBLIC OFFICER-RESTRAINING EXER

his landlord has been established by too many decis. CISE OF POWERS—,-Plaintiff claiming to be the duly

ions of this court, and of all courts, and is too elemeneleoted, qualified and acting county attorney of Saline tary to require the citation of authorities; but wo may couuty, brings his suit in this court, against the de.

not ignore the true legal character of this instrument fendant, to obtain a judgment prohibiting him froin

as a lease, and the true relation of the parties to it as exercising or attempting to exercise any power or duty landlord and tenant. By all the later and most apof the office of such county attorney, and asks for a

proved authorities, in most all the States, as in New restraining order pending the suit. On motion of the York, this instrument is a lease, and the defendant defendant to dismiss the action, held, that this court

may be, and was, properly proceeded against as a tenhas no jurisdiction of the subject-matter, or power to

ant holding possession after the expiration of the term grant the relief demanded, and that such action can

fised therein, under the old provisions of the statute. not be maintained in this court. Foster v. Moore.

This instrument is drawn with great formality, and Opinion by Hurd, J. [See 23 Eng. Rep. 91.]

the language is apt and pertinent: “The party of the

first part does hereby lease her farin,” etc. One-third NEGOTIABLE INSTRUMENT-STATUTE OF LIMITATION of the grain, roots and hay is to be delivered. The -DUE-BILL-NO DEMAND NECESSARY TO SET STATUTE tenant has all the buildings on the premises, and is to RUNNING.–A due-bill or contract in the following keep them in repair. The term is one year, from Determs: “Leavenworth City, October 22, 1873. Duo cember to December-a longer time than a cropping J. C. Douglass $500, in brick-work at $10 per thousand, season merely. There is no possession reserved to the measured in the usual way. (Signed] Sargent & Bro.," landlord during the term, or any control over the is payable at once and without demand, so that the premises. It is under seal and is made to bind heirs, statute of limitations runs from its execution; and an executors and assigns. The intention is clear enough action thereon against the makers is barred by the that the instrument should be and have all the effect statute if not brought within five years after its date. of a lease, if it can be determined from any such an Code, $ 18, sub. div. 1. The case of Auld v. Butcher, instrument. In Fry v. Jones, 2 Rawle, 11, there was 22 Kans. 400, is not applicable. That was an action a formal lease of a grist-mill, and a house and lot with for the wrongful conversion of a city bond, a case of it, the lessee to render one-third of the toll of the mill. pledge or trust in which a demand was necessary. The question was whother there could be distress for Here on the face of the due-bill sued upon, the de this rent. It was objected that it was no lease, befendants owed the plaintiff $500 in brick-work at the cause the rent was uncertain. It was held that such date thereof. The obligee in the contract was bound rent was sufficiently certain, because it could be rento receive performance of the work whenever offered, dered certain. Il ccrtum est quod certum reddi potest; whether before or after it was specially demanded by and the distress was sustained. It was held in that plaintiff. Upon contracts of the kind sued upon, it State subsequently, in Burns v. (Cooper, 31 Penn. St. would not do to say that the statute does not begin to 426, and in Ream v. Ilarnish, 45 id. 376, that an agreerun until after demand. As a demand is optional with ment to let a farm for a certain term for a share of the the creditor, no performance or tender could be made grain to be delivered to the landlord was a lease, and which would bind him, and he could keep the duo-bill the landlord had no ownership of or interest in the or contract alive for an indefinito period. Such a con crops whilo growing which he could convey; and if he struction would not carry out the intention of the died before his share was ready for delivery it would parties. Palmer v. Palmer, 36 Mich. 487, and cases go to his heirs, and not to his executors. It is held in cited; Herrick v. Woolverton, 41 N Y. 581; Wheeler Massachusetts that under such a lease the landlord has v. Warner, 17 id. 519; Stover v. Hamilton, 21 Gratt. no property in the crops until they are divided (Geer 273; Bowman v. McChesnoy, 22 id. 609. Douglass v. v. Flemming, 110 Mass. 39; Darling v. Kelly, 113 id. Sargent. Opinion by Horton, ('. J.

29; Warner v. Abbey, 112 id. 3555), thus establishing it
as a technical lease, under which the tenant has exclu-

siro possession. The case of Jordan r. 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 LANDLORD AND TENANT-WORKING FARM ON SHARES

no right of occupancy for any purpose during the term

has no property in the crops until divided, because -FORCIBLE ENTRY AND DETAINER-STATUTE-ESTOP

the landlord reserved the possession for certain purPEL-DENYING LANDLORD'S TITLE.- A written instru

poses. In Ilarrisou r. Ricks, 71 N. ('

.ñ, "A. rents a ment duly executed by G. and S., whereby G. “docs lease uuto S. her farm for the term of one year, date feed the teams, and to find the farming utensils to

farm from B. for one year, agreeing to furnish and to commence December 1, 1882 [describing the land).

make the crops, and furnish and pay for the labor, and * * * S. to give one-third of all grain or roots

give B. one-half of the crop als rent.” It was held to raised, to be delivered in the half-Lushel, and one

be a lease. That case is not so clear a tenancy as the third of all the bay cut in the stack; to furnish all

one in this case, and yet the court held that A. was seed and tools, and pay all threshing expenses; and to

tenant, and not a cropper, and had the right to con*Appearing in 21 Northwestern Reporter.

vey the crop, subject to the right of the landlord to his

share as rent. It is stated in the opinion that “the dif be regarded as a sufficient consideration. Snell v. ference between a tenant and a cropper is: a tenant Bray, 56 Wis. 156. It is urged that if the defendant has an estate in the land for a term, and consequently made such oral promise, then it was within subd. 2, $ has a right of property in the crops. It is he who di- | 2307, Rev. Stat., and hence void. But the assumption vides off the landlord his share, and until such di that the promise was oral, and not in writing, is wholly vision the right of property and of possession in the unwarranted by any thing contained in the record. A whole crop is his.” On a similar lease and to the same promise and agreement being alleged, we are bound effect is Sargent v. Courrier, 66 Ill. 245; Lacy v. Wea- | to assume that they are valid rather than invalid, even ver, 49 Ind. 373; Rinebart v. Olwine, 5 Watts & S. if such oral promise would be within the statute. But 157; and Doremus v. Howard, 23 N. J. Law, 390. L'n we are by no means prepared to say that such oral der such a lease the lessee can bring trespass against promise would have been within the statute. In fact an intruder upon the land or a disturber of the crops the decision in Weisel v. Spence, 59 Wis. 301, seems to without joining his landlord, for the exclusive posses hold that it would not. In fact the case is stronger, sion of both are in him. Larkin v. Taylor, 5 Kan. 133. because it is alleged not only that the lien was released, In Walls v. Preston, 25 Cal. 59, the contract was sub but that the original debtor was discharged, while in stantially the same as in this case, and it was held in that case the original debtor was not released. Grislaw a lease. It is held in one of these cases that the i wold v. Wright. Opinion by Cassoday, J. use of the words “deliver to the landlord” his share, [Decided Oct. 14, 1881.] is strong ground for holding the agreement a lease.

PRACTICE-AMENDMENT TO PLEADING-DISCRETION See also to the same effect, Alwood v. Ruckman, 21

-REFUSAL TO EXERCISE DISCRETION ERROR.—The alIll. 200; Blake v. Coats, 3 G. Greene, 548; Hoskins v.

lowance or disallowance of an amendment to a pleadRhodes, 1 Gill & J. 266; Moulton v. Robinson, ✓ Fost.

ing setting up statute of limitations or a plea of us(N. H.) 530; Aikin v. Smith, 21 Vt. 180; Hatch v. Hart, 40 N. II. 98; Tayl. Landl. & Ten., $ 23, and note 6. By under all the circumstances of the case. In accord

ury, rests in the sound discretion of the trial court, the strong current of authority this agreement is in

ance with that principle, this court has frequently sus. every essential a lease, and the relation of the parties as landlord and tenant precludes the tenant from de- amendment. Fogarty v. Ilorrigan, 28 Wis. 14%; Eld

tained orders of the trial court refusing to grant such nying the title of the plaintiff or setting up title in

red v. Oconto Co., 30 id. 206; Meade v. Lawe, 32 id. himself to the premises, or any part of them. It would 261; Dehnel v. Komrow, 37 id. 336; Plumer v. Clarke, be a violation of tho same principle to allow the do

59 id. 6:16. It has also sanctioned the right of the trial fendant to show that plaintiff had no possession to

court in the exercise of such discretion, to grant such give, or that he did not hold the possession from the

amendment. Newman v. Kershaw, 10 Wis. 340; Jones plaintiff. He is equally ostopped by his lease from de

v. Walker, 22 id. 220; Orton v. Noonan, 25 id. 676; nying the possession as the title of the plaintiff, for

Baker v. Supervisors, 39 id. 441; Wisconsin Cent. R. thereby he has acknowledged both. Struin v. Gard- | Co.v. Lincoln Co.,57 id. 138. Where such discretionary ner. Opinion by Orton, J.

power bas in fact been exercised by the trial court in [Decided Oct. 14, 1881.]

a given case, this court, in the review of such exercise, CONTRACT-CONSIDERATION-RELEASE OF DOUBTFUL

only determines whether there has been an abuse of

such discretion. Dehnel v. Komrow, supra; Capron CLAIM.—A materialman, who after filing a notice of a lien for material furnished a contractor to build a

v. Supervisors, 43 Wis. 617; Plumer v. Clarke, supra; house, releases his claim and discharges the contractor

The Phoenix v. Walrath, infra; Willis v. White, infra; in consideration of a promise by the owner to pay him Jones v. Evans, 28 Wis. 168. In the case at bar the the amount due for such material, may maintain an

trial court expressly refused to exercise such discreaction against the owner on such promise. The dis

tion on the asserted assumption that it had no such continuance of an action brought in good faith upon a

power. This was error. Where a trial court has, in doubtful claim has always been held to be a good con

the exercise of a sound discretion in a given case, sideration for a promise to pay the amount of the

power to do or not to do a certain act, a refusal to exclaim. So a compromise of a doubtful claim is a good ercise such discretion, upon the expressed assumption consideration for a promise to pay money, and it is

that it has no such power, is an error of law which no answer to an action brought upon such promise to

eliminates from the case the question whether there show that the claim was invalid. Crans v. Flunter, 28

was any abuse of discretion. Wallis v. White, 58 Wis. N. Y. 389; McKinley v. Watkins, 13 111. 140; Draper v.

28, 29; Phanix Ins. ('o. v. Walratb, 53 id. 669; King v. Owsley,57 Am.Dec. 218. IIere the claim was not doubt: Justices, 11 East, 395; Russell v. Conn., 20 N. Y. 83; ful. The defendant's promise to pay was an implied Tracey V. Altmyer, 46 id. 598; Tilton v. Beecher, 59 id. confession that she was then indebted tollire in at least

170; Attorney-General v. Insurance Co., 88 id. 77; the amount she then promised to pay to the plaintiff.

Tolman v. Railway, 92 id. 353. Smith v. Duggert. This being so, her block was then charged with the Opinion by ('assoday, J. payment of the plaintiff's claim. The subsisting obli- [Decided Oct. 14, 1884.] gation of the defendant to pay the claiin, or have it enforced out of her block was a sufficient consideration to support the promise of payment. Cook v. Bradley,

MARYLAND COURT OF APPEALS ABSTRACT.* ✓ Conn. 57; Burr v. Wilcox, 13 Allen, 209. In Rippey v. Friede, 26 Mo. 5:23, it was held that the forbearance

AGENCY-DURATION OF EMPLOYMENT.-The B. & of a subcontractor to take the necessary steps to en

W. Co., engaged in the manufacture of steam boilers force his lien under the mechanics' lion law of that

in the city of New York, entered into an agreement State was a good consideration for the promise of the

with M. “in regard to selling boilers iv Baltimore and owner of the building to pay the claim. The case is vicinity,” signed by both parties, and dated Decem

ber 9, 1881, and containing the following terms: “Mr. even stronger than this, for there the question whother the defendant made the promise was disputed, while

M. to open an office in Baltimore to represent the B. & here it is confessed that the defendant not only prom

W. Co., and work for their best interest in every thing. ised, but that the plaintiff had actually given the re

On all sales made by him, he is to take charge of quisite notice of lien, and then released the lion, and

erecting, and collecting money and remit same to us; also discharged the principal contractor in considera

all contracts to be subject to the approval of home tion of such promiso. Such release and discharge must

*To appear in 62 Maryland Reports.

ler, J.


do so.

office. The B. & W. Co. to pay office rent and inci pointment of an attorney by the infant being nugadental expenses of same, necessary travelling exped tory, bis dismissal of the suit was simply void. The ses, and $25 per week to Mr. M., charging the same to court was therefore in error when it refused to re-inBaltimore office; five per cent on all sales by Mr. M. to state the case. This case has been compared in the be credited to Baltimore office, and any surplus credits argument to a nonsuit regularly entered. We do not at end of year to be paid to Mr. M.Held, that this so regard it. When the plaintiff in a cause submits to contract is to be construed as continuing for a year, a nonsuit, it is well settled that he has no right of apand the company had no right to discharge M. during peal. This is an appeal from an order of the court rethat time, merely because the sales effeeted in the fusing to correct an entry of nonsuit, made against Baltimore district did not in their judgment warrant the will of the only person who had the right to aua continuance of his employment for that period. thorize it. The prochein ami had as much right to the Babcock, etc., Co. v. Moore. Opinion by Mil protection of the court in this particular as in any

other. The erroneous entry subjected her to a liabilCONTRACT-BREACH-DAMAGES-COMPOSITION- AC

ity for costs, and an error of the court in refusing to TION FOR DAMAGES BARRED.-T. made a contract

relieve her ought certainly to entitle her to redress. It with H. for the purchase of a large number of shooks,

has been settled by many decisions of this court, that to be delivered and paid for in different quantities and

appeals may be taken from refusals to strike out at specified intervals between the 1st of Oct., 1875, and

judgments, as well as from orders striking them out. the last day of Feb. 1877. On the 26th of April, 1876,

In Montgomery v. Murphy, 19 Md. 576, this court enT. wrote to H. not to send him any more shooks.

tertained an appeal from the refusal of the court beHeld, that this action amounted to a repudiation of

low to strike out a judgment by confession errothe contract, and it entitled the seller to consider it

neously entered, and being satisfied of the error, entirely at an end. Whether it entitled the injured

ordered the judgment by confession to be stricken party to an immediate action to recover damages in

out. In Powhatan Steamboat Co., Garnishee, etc., v.

Potomac Steamboat Co., 36 Md. 238, the appeal was respect to each and every future delivery stipulated in the contract, quaere? (2) On June 9, 1876, T. made

from an order refusing to strike out and set aside a

judgment of condemnation in attachment; and the a composition with certain of his creditors, including

order below was reversed. In Johnson LemH., by wbich he agreed to pay in cash, to every credi.

mon, 37 Md. 336, there

a similar appeal tor accepting the agreement, one-fourth of his claim,

and a reversal in this court. We do not think and to deliver to him two indorsed notes, each for one other fourth; it being stipulated that said cash and

that the circumstances of the case show luches on the

part of the prochein ami in applying to hare the entry notes should be accepted by the creditors in full satis.

stricken out. It is stated that the infant, after she faction of their respective claims. The claim of H., as stated by him was duly settled according to the

arrived at the age of twenty-ono, ratified and approved terms of the composition, and did not include any

the act of her attorney. It was not in her power to damages for the breach of the contract for the shooks.

Fler act in appointing an attorney was void, In an action subsequently brought by II. against T. to

and in violation of the rights of her prochein ami. It recover said damages, it was beld that the action was

is in the power of the court to remove the prochein

ami, but while she sustains such relation, she must barred by the composition proceedings. Payler v.

bave the entire control of the conduct of the suit. Homersham, 4 Maule & Sel. 423. Textor v. Ilutchings.

Wainwright v. Filkenson. Opinion by Bryan, J. Opinion by Bryan, J.

PAYMENT-APPLICATION OF.-A continuous account DEED-REFORMATION-MISTAKE-MUST BE MUTCAL between the plaintiffs and J. D., extending from the

-DAMAGES -- MINING — UNINTENTIONAL TRESPASS.4th of February, 1880, to the 30th of March, 1882, was

D. and the Maryland Coal Co., by deed of exchange kept by the plaintiff's alone. A draft drawn on and conveyed to each other certain adjoining parcels of accepted by the plaintiffs, and signed by J. D. for coal land. 1). afterward conveyed by deed to the whose accommodation it was drawn, and by the de Atlantio and George's Creek Consolidated ('oal ('0., fendant's intestate, as surety for J. I)., was charged in the same land obtained by him from the Maryland the acoount on 7th of June, 1880, as one of the debits Coal Co. Subsequently the M. C. Co. sued the A. and against J. D. The credits were more than sufficient to

G. C. C. C. ('0. for mining coal on the land conveyed extinguish the draft and all the debits antecedent to it.

to the M. ('. Co. by D. Whereupon the A. and G. C. In an action against the administrator of the surety,

('. C. Co. filed a bill against the M. C. ('o. for an into recorer a balance due on the draft, it was held that junction to restrain the prosecution of said suit, and the credits should be applied to the settlement of for specific performance, and other relief. The A. the earlier items on the debit side of the account; and

and G. C. ('. C. ('o). clained that the land conveyed to the draft was therefore in point of law paid. Harnnett

D. did not contain the quantity and quality of coal it 5. Dudley. Opinion by Bryan, J. [See 16 Eng.

was intended he should receive, and that by mistake Rep. 273.]

the land conveyed to D., as described in the deed of

exchange, did not include the locis in quo, and that ISFAXT-PROCHEIN AMI-ATTORNEY--RATIFICATION. by a true location the alleged trespasses complained -An infant brought a suit by her prochein ami, in a of in the suit at law were committed on the land that court of law. Afterward she employed an attorney, should have been originally conveyed by the M. C. Co. and requested him to dismiss the suit, which was ac to D. It was alleged by the complainant that it had cordingly done. A motion was subsequently made in been agreed that the M. ('. Co. by R., its agent, should the name of the infant by her prochein ami, asking the survey and lay off for D. the land to be conveyed to court to strike out the entry of “ off," which had been him, and that in conducting its operations after the made in the case, and re-instate it on the docket for

purchase from D., the boundaries of the land not betrial. On appeal from the order of the court overrul ing sufficiently marked by visible calls in R.'s surrey, ing this motion, it was held that the infant, until she S. the complainant’s engineer, applied to R. to show reached the age of twonty-one years, was incompetent him the outlines, in order that no trespass might be to appoint an attorney, or to take any step in the suit committed, and that R. (since dead), in the capacity which could bind her rights. Greenwood v. Green

of agent of the M. C. ('o., pointed out the lines, and wood, 28 Md. 386; DeFord F. State, 30 id. 200; Balti that the coal which was the subject of the action of more & Ohio R. Co. v. Fitzpatrick, 30 id. 624. The ap trespass was taken within the lines of the complain

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