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signce and another person united in a boud to the company, conditioned that the former should pay to it all moneys which should become due under or arise from the written agreement, and waiving notice of non-payment. Beld, that the linbility of the surety aroso on the bond, and that of the consignee on the bond or the written agreement, and that tho statute of limitations in regard to written instruments governed the case. Dison v. Holdroyd, El. & B. 90:3. Streeper v. l'ictor Sewing Machine Co. Opinion by Blatchford, J. [Decided Jan.5, 1885.]
IxsưRANCE-FIRE-CILANGE OF INTEREST, ADMISSION OF PARTNER.-A fire policy, covering merchandise belonging to a firm, provided that it should be void if the property “be sold or transferred, or any change takes place in title or possession (except ly succession by reason of the death of the insured), whether by legal process, or judicial decree, or voluntary transfer or conveyance." Subsequently, and before loss, the firm owning this property in certain pro portions made an agreement in writing with A., by which they agreed to receive him into their busines upon the following terms and condition: Said company is to become incorporated. A. is to pay into the firm for its use $5,000 forthwith, and $3,000 in two years, with interest semi-annually until paid. The name of the new company shall be determined hereafter. The property of the existing firm shall be put into the corporation to be formed as aforesaid, adding to it the $10,000 to be paid by A. The interest and shares of the several parties in the new company shall be in proportion to the amount so contributed by each to the capital stock. When a cliarter shall be procured as aforesaid, half of 1.'s stock shall be held by said company till said second sum of $5,000, with interest, shall be paid. No change in the name or charactor of the existing firm shall be made until said corporation shall be formed. Telul, that A. (lid not become a partner, or acquire any interest in the property of the partnership, before it was made a corporation. Drennen v. London Issu. Corp. Opinion by Harlan, J. [Decided Jan. :), 1885.]
PLEADING MONEY ILLEGALLY EXA('TED - NEW YORK ('ODE-ANSWER—EVIDENCE.-(1) In an action of indebitatus assumpsil, to recover money alleged to have been illegally exacted, a declaration which avers the fact of indebtedness, and a promise in consideration thereof, is suflicient on general demurrer, unless it appears that the alleged indebtedness was impossible in law. (2) To such a declaration, treated as complaint according to the New York (vde, an answer was filed, setting up as a defense an act of ('ongress to legalize the collection of head-moneys already paid, approved June 19, 1878. The ('ircuit ('ourt refused to hear evidenco in support of the plaintiff's case, and gave judgment on the pleadings in favor of the clefendant. llell, that this was error, because it did not appear from the record that the money sued for was within the description of the act of ('ongress. Lirerpool, New York, cto., Steamship Co. 7. ('ommissioners of Emigration. Opinion by Matthews, J. [D ided Jan. 5, 1885.)
PUBLIC LANDS-ACT OF ('ONGRESS-MILITARY RESERVATION-DISPOSSESSION OF OCCUPANT-PROOF NECESSARY-EVWEXCE-SCOPE AND EFFCT OF A PATENT.(1) A party who contests the title of another to land held under an act of Congress, in which an exception was reserved saving from its operation land occupied by the t'nited States for military purposes, must establish the exception, when his right to the premises depends upon its existence. 2) If by a legislative der
laration, a specific tract of land is confirmed to any ono, his title is not strengthened by a subsequent patent from the government. Such a patent would be an instrument of quiet and security to the patentee, but it would not add to the validity and completeness of tho title confirmed by the act of ('ongress. Langileau v. Ilaves, 21 Wall. 5:21; Ryan r. (arter, 93 U. $. 78; Tripp v. Spring, 5 Sawy. 209, 216. If there was any difference in the grade of the two conveyances of the government, that ly a direct legislative act, and that by oflicers acting under provisions of the statuie, it would seem that there should be greater weight and clignity attached to the legislative grant as proceeding inore immediately from the source of title than the patent. No impeachment can be had of the motives of the Legislature, whereas the motives of officers eniployed to supervise the alienation of public lands may sometimes be questionel, as in proceedings to set aside their action. Still is the law be complied with, the title passes as completely in the one case ay in the other. Montgomery v. Bevans, 1 Siwy. 677. Whitney v. Morrow. Opinion by Field, J. [Decided Jan.), 1885.]
SHIP AND SHIPPING – CILARTER-PARTY — STIPULATION AS TO SAILING.---i stipulation in the charterparty of a steamer, that she is “now sailed, or about to sail from Renizas with cargo for l’hiladelphia,” is a stipulation that she has her cargo on board and is ready to sail. It is a substantive part of the contract, and not a mere representation, and is not an independe ent agreement, serving only as a foundation for an action for compensation in damages. A breach of it by one party justifies al repudiation of the contract by the other party, if it has not been partially executed in his faror. The case falls within the class of which Glaholm v. Ilays, :: Man. & G. 277; Ollive v. Booker, 1 Exch. 116; Oliver v. Fielden, 4 id. 1:35; Gorrissen v. Perrin, 2('. B. (V. S.) 081; (roockewit. r. Fletcher, 1 Ilurl. & N. 8); Seeger v. Duthie, 8 ('. B. (V. 5.) 13); Behn v. Burness, 3 Best & s. 751; Corkling 1. Massey, 1. R., 8('. P. 393; and Lowber v. Bangs, Wall. 7:28, are examples; and not within the class illustrated by Tarrabochia v. Ilickie, 1 llurl. & N. 18); Dimech v. Corleit, 1.2 Moore P. ('. 199; and (lipsham 1. Vertue, 5 Q. B. 205. It is apparent, from the vorments in the pleadings of the charterers, of facts which are established by the findings, that time and the situation of the vessel were material and essential parts of tho contract. Construing the contract by the aid of and in the light of the circumstances existing at the time it was made, arerred in the pleadings and found as facts, we have no difficulty in holding tho stipulation in question to be a warranty. See Abb. Shipp. i11th ed.) by Shee, 2:27, 228. But the instrument must be construed with reference to the intention of tho parties when it was made, irrespective of any erents afterward occurring; and we place our decision on the ground that the stipulation was originally intended to be, and by its terms imports al condition precedent. The Whickham. Opinion by Blatcliford, J. [Decided Jan. 5, 1885.]
UNITED ST:ITES CIRCUIT (OURT B
CARRIER -- OBLIGATIONS TO PASSENGER-INJURY BY FELLOW' PASSENGER-DUTY OF EMPLOYEES. common carrier of passengers for hire is bound to see that no harm comes to a passenger from a fellow passenger, whose conduct and condition clearly show that he is a daugerous person and likely to injure his fellow pas
* Appearing in Tederal Reporter
sengers. Where the conduct of a passenger is such as Ex’rs of Smith, 20 Johns. 33; Leopard v. Pitney, 5 to clearly show that he is dangerous, it becomes the Wend. 30; Demarest v. Wynkoop, 3 Johns, Ch. 129; duty of the employees of the company in charge of the Sacia v. De Graaf, 1 Cow. 356; Backlin y. Ford, 5 train to keep him in close custody and disarm him, or Barb. 393; Woodbury v. Shackleford, 19 Wis. 55; remove him from the train. By the common law, and Lindsay v. Fay, 28 id. 177; Encking v. Simmons, id. especially by the statutes of this State, ample powers 272. Cir. Ct. W. D. Wis., Aug., 1884. Amy v. City of in these respects are conferred upon conductors and Watertown. Opinion by Bunn, J. other railroad employees. Vinton v. Middlesex R. Co., 11 Allen, 301; Railroad Co. v. Anthony, 43 Ind. CHATTEL MORTGAGE-MORTGAGOR IN POSSESSION 183; Railroad Co. v. Van Houten, 48 id. 90; Railroad WITH POWER TO SELL-QUESTION OF FRAUD ONE OF Co. V. Vandyne, 57 id. 576; Railroad Co. v. Griffin, 68 FACT. – Provisions in a chattel mortgage that the mortIll. 506; Ind. Rev. Stat., 1881, SS 1702, 2091, 3922-3924. gagor shall continue in possession of the property and These powers, whether conferred by statute or de dispose of it in the ordinary course of his business, duced from the principles of law, are given for the keeping the stock replenished as nearly as might be, safety of those who travel by railroad, and any failure and that the mortgage shall cover subsequently-acin a proper case to exercise them, contributing to the quired property, and secure present and future indebtinjury of a passenger, is a breach of the carrier's con edness for goods bought of the mortgagee on credit, tract, for which damages may be allowed. This con do not render the tgage executed to a creditor in clusion is strougly supported by decisions made in an Michigan void on its face as to other creditors of the alogous cases, cited in argument of which see the fol mortgagee. Gay v. Bidwell, 7 Mich. 519; Wingler v. lowing: Railroad Co. v. Hinds, 53 Penn. St. 512; S.C., Sibley, 35 id. 231; Fry v. Russell, id. 229. The rule in ñ Am. Law Reg. (N. S.) 14; Railroad Co. y. Pillow, 76 this State is that the question of fraud is one to be dePemu. St. 510; S. C., 18 Am. Rep. 424; Flint v. Trans termined from all the facts and circumstances bearing portation Co., 34 Conn. 551; S. C., 6 Blatchf. 158; Rail upon the good faith of the transaction. Robinson v. road Co. v. Burke, 53 Miss. 200; S. C., 24 Am. Rep.
Elliott was decided under the statute of Indiana, 689; Britton v. Railroad Co., 88 N. C., 536; S. C., 43 where the point had not been passed upon by the State Am. Rep. 749; Railroad Co. v. Flexman, 103 Ill. 546; court, so that the Supreme Court of the United States Stowart v. Railroad Co., 90 N. Y. 588; S. C., 43 Am. say it was at liberty to consider the question for itself Rep. 185. Cir. ('t., Dist. Ind., Dec. 1884. King v. Ohio, as to what the Legislature intended. Argall v. Seyetc., R. Co. Opinion hy Woods, J.
mour, 4 McC'rary, 56, asserts the rule laid down in
Robinson v. Elliott, but the case is not disposed of unSTATUTE OF LIMITATIONS-PROPER INQUIRY UNDER
der the doctrine of that case, I think. Mr. Judge LowPLEA OF.— The inquiry under a plea of the statute of limitations is always properly limited to a few simple
ell, in Brett v. Carter, 2 Low. 458, in a well considered topics; as (1) when did the cause of action arise ?
case, expresses different views. But independently of Manifestly in a case like this, wher the bond or cou
these cases, we think the Supreme Court of the United pon fell due and was not paid, though it is claimed by
States would promptly hold, in a case arising under a the plaintiffs that it did not arise so long as the plaint
chattel mortgage executed in this State, that the rule
of interpretation, as held by the Supreme Court of Michi ffs were prevented by the action of the defendant's officers from getting service on the mayor. By the
igan, must control as a rule of property. Robinson . same contention, if the maker of a note should conceal
Elliott, 22 Wall. 513; Argall v. Seymour, 4 McCrary, 56, bimself for a week after his note fell due, so that sum
distinguished. Cir. Ct. W. D. Mich., Nov., 1884. mons could not be served upon him, the cause of ac
Morse v. Rib!et. Opinion by Withey, J. tion would not arise until he should come out from his MONEY HAD AND RECEIVED-BREACH OF CONTRACT. hiding place so that service could be had. Nobody is -In May, 1883, tho Mexican National Construction capable of maintaining such a proposition. (2) How ('ompany sought subscriptions to a loan of $2,000,000 to long a period has elapsed from the time the cause of aid in constructing the Mexican National Railway, action aroso to the time when suit was commenced? and plaintiff subscribed $20,000 upon the terms of a By limiting the inquiry to these simple questions which contract, whereby the construction company agreed to was no doubt the intention of the Legislature, the ap deposit in trust securities of the nominal value of plication and operation of the statute is made certain $:20,000,000 as collateral for the repayment of the $2,and uniform, and its effect salutary. See the follow 000,000 loan on or before September 15, 1884. Ocing casos: Dupleix v. De Roven, 2 Vern. 540; Hall v.
tober 1, 1883, plaintiff paid the installments of his subWybourn, 2 Salk. 420; Beckford v. Wade, 17 Ves. 87; scription as called by the company, and received reTunter v. Gibbons, Ilurl. & N. 459; Brown v. Ilow ceipts therefor, which, under the contract, were not ard, 4 Moore, 508; Imp. Gaslight & ('oke (o. v. London transferable without consent of the company, but Gaslight ('0., 18 Jur. 497; S. (., 2 C. L. Rop. 1230; Mc could be exchanged for formal certificates of interest Iver v. Ragan, 2 Wheat. 25; Bank of the State of Ala in the loan, authenticated by the trustee. Before pay. bama v. Dalton, 9 Ilow. 522; Bowman v. Wathen, 1 ment of the last installment the company transferred id. 189; Kendall v. U. S., 107 U. S. 123; Wood v. to the trustee the securities by indenture, prescribing Carpenter, 101 id. 135; National Bank v. Carpenter, id. the powers and duties of the trustee, and providing 567; Andreae v. Redfield, 98 id. 2:25; Leffingwell v. that he should execute, as requested by the company, Warren, 2 Black, 599; Gaines v. Miller, 111 U. S. 395 ; certificates of interest entitling the registered holders Fisher v. Harnden, 1 Paine, C. C. 61; U. S. V. Mail to an interest in the securities, or the proceeds of the lard, 4 Ben. 159; U.S. v. Muhlenbrink, 1 Woods, 569; sale thereof, bearing the same proportion to the whole Cocke v. McGinnis, Mart. & Y. 361; York v. Bright, 1 as the amount of each certificate bore to the $2,000,000; Ilumph. (Tenn.) 312; Miles v. Berry, 1 Hill (S. ('.), but that he shou mot sell the securitie to satisfy the 2996; Howell v. Ilair, 15 Ala. 191; Arrowsmith v. Durell, loan unless the holders of certificates representing 25 21 La. Ann. 295; Yale v. Randle, 23 id. 579; Somerset per cent of the whole amount requested, and that the (!). v. Vegite, 4+ N. J. L. 500; Colelui v. Willi, 46 holders of a majority in interest might waive default Mo. 236; (allis v. Waddy, 2 Munf. 511; Corner v. in payment of the loan,or extend the time of payment, Goodman, 104 III. 365; Stato Bank v. Morris, 13 Ark. or suspend or postpone the sale of the collaterals at 291; Foe v. Fee, 10 Ohio, 469; Favorite v. Booher's their discretion. Plaintiff had no knowledge of the Adm'r, 17 Ohio St. 548; Smith v. Bishop, 9 V. 110; terms of this indenture, and demanded a certificate, as Peoria M. & F. Ins. Co. v. Hall, 12 Mich. 202; Troup v. provided in the contract, and on a refusal to deliver
the same brought suit for money bad and received. carrier will exercise due care; but the degree of Held (1), that the deposit of the collaterals under the care to be exercised in any particular case is usually a terms of the trust indenture was a breach of the sub question of fact for the jury. Where a passenger in a scription contract; (2) that inasmuch as the defendant street car, while in the act of taking his seat, rested had put it out of its power to perform an executory his hand on and partially over the base of an open wincontract with the plaintiff, the latter had the right to dow, and the same was immediately struck and iutreat the contract as terminated; (3) that the plaintiff jured by an upright sewer plank standing in close could at his election sue upon the agreement and re proximity to the passing car, held, that the question cover damages for a breach, or treat it as rescinded of contributory negligence on his part was for the jury. and recover back the money he had advanced. The de A passenger is to be allowed a reasonable measure of fendaut could maintain a suit against each subscriber liberty in the position assumed by him in taking or upon his failure to pay the amount of the subscrip occupying his seat. He is expected to exercise caro tion; and it must follow that each subscriber has al commensurate with the danger to which he may be corresponding right of action against the defendant exposed; but the decree of care to be exercised on a for any breach of the contract on its part toward him. particular occasion is generally a question of fact for Similar contracts have been frequently adjudged to the jury. Stackus v. Railroad ('0., 79 N. Y. 467. Thus confer a several liability and a several right of action whether the act of standing on the platform of a on the part of each subscriber. Thomp. Liab. Stockh., street car, or of getting on or off such car while in mo$ 114; Whittlesey v. Frantz, 74 N. Y. 150. It is a fa tion, is negligence, is held usually to be for tho jury miliar rule that when one party to an executory CON under the circumstances of eacb case. Whart. Neg. tract puts it out of his power to perform it, the other 365, 370; Meesel v. Railroad ('.., 8 Allen, 234; Eppenmay regard it as terminated, and has an immediate dorf v. Railroad (0., 69 N. Y. 195 Shear. & R. Neg., s right of action to recover whatever damages he has 282. So in Brophy v. Germantown R. (., Pem. Sup. sustained. Ford v. Tiley, 6 Barn. & ('. 325; Bowdell ('t., 1883, it was held not negligence per se for a passenv. Parsons, 10 East, 359; Ileard v. Bowers, 23 Pick. ger to rest his arm on a window sill, “which is sub455-460; Shaw v. Republic Life Ins. Co., 69 N. Y. 293 ; stantially tho top of the back of the seat," whence by U, S. v. Behan, 110 U. S. 339; Lovell v. St. Louis Mut. a jolt of the car his arm was thrown out of the winLife Ius. ('0., 111 id. 264. The plaintiff was under no dow and injured; the court saying: “In the absence obligation to tonder his receipts. They were merely of collision with an external object his arm was in 110 vouchers. They were to be exchanged for formal cer danger of injury. He was under no legal obligation to tificates, but when the defendant had put it beyond assuno or anticipate that the company would run anits power to deliver the proper certificates, the plaintiff other car against the one in which he was sitting." was not bound to tender them. No demand of the cer But if instearl of resting his arm on the window-sill, tificates was necessary after defendant had incapaci he had taken hold of it as did the plaintiff', his hand tated itself from giving them. Whero money is ac oxtending, say, less than an inch beyond the car, the vanced upon au executory contract, which the con same suggestion might be made (notwithstanding the tracting party fails to perform, it is in the election of additional fact) in considering the question of negli. tho other party either to sue upon the agreement and gence. Whart. Neg., § 362; Ilutch. Cair., § 639; recover damages for a breach, or to treat the contract Thomp. ('arr. 258; Fordham v. Railroad ('0., L. R., 3 as rescinded, and recover back his money as paid upon ('. P. 37.2; Ang. (arr. (5th ed.) 511, noto; Seigel v. a consideration which has failed. Hill r. Rewee, 11 Eisen, 11 (al. 109; Miller v. St. Louis R. ('0., 5 Mo. App. Metc. 271; Brown v. Harris, 2 Gray, 359; Wheeler v. 471; Spencer v. Railroad Co., 17. Wis. 457. That is to Board, 12 Johns. 363; Lyon 1. Annable, 4 l'om. 350; say, whether the position or conduct of the passenger Appleton v. Chase, 19 Me. 74; Shepherd v. Hampton, in such cases is reasonably prudent considering the 3 Wheat. 200; Smethurst v. Woolston, 5 Watts & S. circumstances, and the probability that the carrier 106. If there had been a part performance of the con will exercise due care, is not necessarily a question for tract by which the plaintiff received some benefit, and the court (though in clear cases it of course would be), the defendant could not be restored to the previous but may be and ordinarily is for the jury. It must situation, the plaintiff's only remedy would have been also be considered that in order to the successful opefor breach of the agreement, and his damages would ration of cars there must be a reasonable space on each be measured by his loss. Hunt v. Silk, 5 East, 1-19; side between them, and any structures or obstacles in Foss r. Richardson, 15 Gray, 306; Nash v. Lull, 102 the street to accommodate their movements, caused Mass. 60. flo has received nothing howerer under the by irregularities or impediments on the track, and contract, and the law implies a promise on the part of that as respects danger from collision with such structhe defend:unt to pay back what it has received. ('ir. tures it is ordinarily easily averted in the case of (t., S. D. N. Y., Dec., 1881. Reusens v. llit. Nat. street cars, which run at a moderate rate of speed, and Const. Co. Opinion by Wallace, J.
are readily controlled. Lynam F. 'uion R, ('0., 11:4 Mass. 88; Thomp. (arr. 278, 146. The question of the
passenger's negligent conduct must be largely affected MINNESOT SUPREME COURT ABSTRACT. by the circumstances of each case, including any indi
cations of dauger from obstructions or interruptions, NEGLIGENCE-IIANI) ON BASE OF OPEN WINDOW OF from whaterer cause, which might influence the conCAR-QUESTION FOR JURY.-A street railway company duct of a prudent person. But in Todd r. Railroad as a carrier of passengers is bound to exercise the high (o., 3 Allen, 18; 7 id. 207, it was unqualifiedly ruled est care in the management of its cars in approaching that voluntarily suffering an arm, or any part of it, by and passing structures and obstacles in the street situa a passenger to extend beyond the external surface of a ted unreasonably close to the track. The position which cir was negligence per se'. And in Pittsburg R. ('0, F. a passenger in a street car mas reasonably be allowed Mc('lurg, 56 Penn. St. 291, it is assumed by the court to assume, when taking or occupying a seat is subject that such conduct by a passenger is wholly unauthorto uo arbitrary rule. lIe is to exercise a degree of care ized and presumptirely negligent. These cases growconimensurato with the danger to which he may be ing out of accidents arising upon steam railways hare exposed, and such as men of common prudence would been followed by the courts of several other States. exercise in a like situation, having regard to all the cir The same rule was also applied in Lauderbach v. Peocumstances, and considering tho probability that the ple's R. ('o., Penn. Sup. ('t., 1881-a street car case.
The hand of a passenger holding on to the window of tract bears upon its face the character of a contract a car was caught by a colliding car on a narrow street, between the plaintiffs' priucipal, executed through whero tho cars necessarily grazed in passing. No ref them as agents, and the purchasers. In an action upon erence is there made to any supposed distinction be the contract parol evidence would be admissible if any tween the case of street and steam railroad cars. The proof was necessary to disclose the defendant as the court assume that the protruding hand or arm is in an principal in whose behalf the contract was made. unlawful place if in any degree outside of the car by Rowell v. Olson, 20 N. W. Rep. 227, and cases cited. the voluntary act of the party, thus cutting off discus Having bound the parties by an authorized contract, sion as to whether, in the absence of any regulations any inability or refusal of the principal to consummate on the subject, such conduct in a passenger would be the contract which he had authorized should not affect condemned as careless by men of ordinary prudence. the agents' rights to compensation. Mooney'v. Elder, The opposite doctrine is maintained as to street cars 56 N. Y. 238; Delaplaine v. Turnley, 44 Wis. 31; Phein Miller v. Railroad Co., supra; Seigel v. Eisen, supra. lau v. Gardner, 13 Cal. 306; Nesbitt v. Helser, 49 Mo. We do not undertake to speak as to the application of 383. Goss v. Slevens. Opinion by Dickinson, J. the rule to other than street railways, but confining [Decided Nov. 29, 1884.] ourselves closely to the facts of this case as presump
VENDOR AND VENDEE-FRAUDULENT REPRESENTAtively found in plaintiff's favor by the jury, we are of the opinion that the case was properly submitted to
TIONS AS TO VALUE.-An action will lie for fraudulent them. Dahlberg v. Minneapolis, etc., R. Co. Opinion
representations made by the vendor of land as to its by Vandenburgh, J.
value and situation, the land being at a distance from [See 29 Alb. L. J. 222, 444. -En.
the place of sale, the vendee being ignorant as to the
value and situation, and being purposely and by a [Decided Nov. 12, 1884.]
fraudulent device induced to purchase, relying upon PRINCIPAL AND AGENT CONTRACT TO SELL LAND the truthfulness of such representations. Under ordiCOMPENSATION-RATIFICATION OF CONTRACT. Tho nary circumstances an assertion by an owner of propplaintiffs seek to recover a stipulated compensation erty offered for sale as to its value, although false, does for their services as agents for the defendant in selling not charge the vendor with legal responsibility, for the real property of the latter. At the trial, upon the reason that it will rarely occur that a party to a conplaintiff's case being closed, the court dismissed the tract of sale has been induced without culpable negliaction. appeal is from an order refusing a new gence on his own part to enter into it in reliance upon trial. It appeared upon the trial that the defendant, the expressed opinion of the adverse party as to the by a written memorandum, authorized the plaintiffs value of the property. Misrepresentations, in order to to sell for him a certain tract of land upon terms as to constitute actionable fraud, must be as to material price and manner of payment particularly set forth; facts of a nature to affect the conduct of others, and and promised upon the salo of the property to pay generally a mere statement of an opinion is not plaintiff's a stated commission. The evidence went to enough. But where one having, or assuming to have, show that after this authorization the plaintiffs agreed knowledge of the value of property, negotiates for the with certain parties (Avery and Walters) for the salo sale of it with one who is known to be ignorant of it, of the property to them, upon terms materially ditler and without equal means of knowledge with the other ent from those prescribed by the defendant; and that party, and who is purposely induced by that other the plaintiffz, asagents, executed with the purchasers party to rely upon his fraudulent representations as to a writing embodying a statement of the contract of its value', an action will lie for the deceit. 2 Pom. Eq. sale and a specific agreement on the part of Avery and Jur., $ 878; Wilder v. De ('ou, 18 Minn. 470, 474 (Gil. Walters to purchase the property on the terms stated 421); Haygarth v. Wearing, L. R., 12 Eq. Cas. 320; therein. In the body of this instrument the plaintiff's Simar v.Canaday, 53 N.Y. 298, 306; Chrysler v.Canaday, are rccited to have made the sale as “authorized 90 id. :272; ('ruess v. Fessler, 39 Cal. 336; Kost v. Benagents," and to their signature aro added the words, der, 25 Mich. 515; Picard r. McCormick, 11 id. 68. “Agents of L. N. Stevens." Tho plaintiffs having And especially is thero liability, where by some trick proved the execution of this contract, and having of or artifice the vendee has been induced to trust in fered evidenco going to show that tho defendant had such representations. Burr v. Willson, 22 Minn. 206; ratified it, offered the contract in ovidence. This was Chrysler v. ('anaday, supra; Van Epps v. Harrison, 5 rejected. We think the court crred. There was abu Ilill, 63. The facts as determined by the verdict bring daut evidence to entitle the plaintiffs to go to the jury this case within the rule of liability. The circuniupon the question of ratification, going to show that stances warranted the jury in believing that the bring. the defendant, after he had been advised as to the ing in of this stranger was a fraudulent trick to deceive terms of the contract which had been made by his the plaintiff by means of apparently disinterested agents in his behalf, acquiesced in and confirmed their statements regarding the value of the land from one acts. Since the agents might have been orally author who was in reality an agent of the defendants, and ized to make the sale (Brown y. Eaton, 21 Minu. 409; that the representations of the defendants themselves Dickerman v. Ashton, id. 538) thcir unauthorized acts wero fraudulent. It is just that they should respond done in defendant's behalf might be ratified in any in damages. A further ground of liability is the mismanner expressing his assent thereto. It was not nec representation as to the situation of the lot. Porter essary that the ratification be in writing. Brown v. v. Fletcher, 25 Minn. 493 ; Perkins v. Partridge, 30 N. Eaton, 21 Min. 409, 410. Ratification of the unan J. Eq. 82; Van Epps v. Harrison, supra. Griffin v. thorized sale would relate back to the acts of the agent Furrier. Opinion by Dickinson, J. [Ante, 287.] and be equivalent to prior authority. Stewart v. [Decided Nov. 29, 1884.] Mather, 32 Wis. 311; Nesbitt v. llelser, 49 Mo. 383. This contract, is ratified by the defendant so as to cure the variance from the prescribed terms of sale, would WISCONSIN SUPREME COURT ABSTRACT. have been prima fucir proof of the plaintiff's right to recover. It bound the purchasers to take the property MUNICIPAL CORPORATION-STREETS AND ALLEYSupon the terms stated, and this constituted a sale of
EJECTMENT.--A city cannot maintain ejectment to rethe property within the meaning of the agreement be
cover a public alloy or street. Its interest therein is a tween the plaintiff's and the defendant. Goss v. Broom,
mere casement, and it is not entitled to the possession 31 Mim, 481; Rice v. Mayo, 107 Mass, 550, The con
of the premises within the meaning of the statute. In
the rule of Bierbach v. Goodyear Rubber Co., 54 Wis. 208-213. In that case the instruction which was held erroneous was this: “Of course if the witnesses are equally credible, and they so present themselves to the mind of the jury, then the greater number of witnesses on one side or the other would be entitled to the greater weight.” In this case there was no question of positive and negativo testimony, as in the present case. In that case Justice Lyon says of the instruction: “It makes no distinction between tho relative weight of positivo and negativo testinuony, a distinction well ostablished in the law (33 Greenl. Ev., $ 375; Ralph v. Railway ('0., 32 Wis. 177), and it takes no account of the possible fact that some of the wit nesses may have had better facilities for knowing the facts than others, or remembered them more distinctly. In the instruction excepted to in this case, both these considerations are presented to the jury. We do not consider the instruction in conflict with the rule stated in the cases of t'rbanek v. Railway Co., 17 Wis. 59; Eilert v. Railroad ('o., 18 id, 606. Druper V. Bulier. Opinion by Taylor, J. [Decided Nov. 27, 1881.)
Kimball v. Kenosha, 4 Wis. 3:21, it was settled that in this State a grantee of a lot bounded by a street in a village or city, laid out, plattes, and recorded in conformity with the statute, takes to the center of the street on which the lot abuts, subject to the public easement. Tho feo of the street is in the abutting owner, aud the interest of tho public therein, which the city or village holis in trust for it, is not a fee, but a more easenient. Goodall v. Milwaukee, 5 Wis. 3:.; Milwaukee v. Milwaukeo & B. R. Co., ñ id. 8; Ford v. Chicago & N. W. R. ('0., 11 id. 609. In Gardiner v. Tisdale, 2 id. 1.53, and again in Weisbrod v. Chicago & N. W. R. ('0., 21 id. 60:2, it was held that the owner of the fee of a street might maintain ejectment against a permanent incumbrancer or occupier, incorsistent with or repugnant to the purpose of the public easement. The above rules have never been shaken, and are firmly imbedded in the jurisprudence of this State. These rules aro decisive of this action, for no one will contend that an action of ejectment will lie to recover a mere right of way. Such an easement is incorporeal in its nature (Washb. Ease. ij), and ejectment lies only to recover things corporeal, which may be the subjects of seisiu, entry, and possession. There can be no seisin of an incorporeal hereditament, and it cannot be the subject of entry or possession. It "lieth in grant, and not in livery.” Sedg. & W. Tr. Title Land, $$ 9.5-18, 116, and cases cited. The plaintiff has an amplo remedy under its charter. It may suunarily remove obstructions to its streets, and doubtless has other remedies, but it cannot maintain ejectment. Racine v. ('rotsenbery. Opinion by Lyon, J. [Decided Nov. :25, 1881.]
ASSAULT AXI) BATTERY EVIDENCE REPUTED WEALTII
DEFENDANT INSTRUCTION POSITIVE AND VEGATIVE TESTIMOVY.-In an action for assault and battery, whero pumitory damages are recoverable, the financial condition of the defendant may be shown by evidence of his reputed wealth. Stanwood v. Whitmore, 63 Me. 209); Kuiffen v. McCona nell, 30 N. Y. 285; Whito V. Murtland, il Ill. :.30-261 ; 1 Suth. Dam. 711, 715. See also Johnson v. Smith, 61 Me. 553. An instruction that “positive testimony of a small number of withesses that they saw or heard a given thing occur will outweigh the uerativo testimony of a greater number of witnesses that they did not see or hear it, provided the witnesses are equally credible; but in connection with this instruction should be considered the relative means or opportunity of the several witnesses to see or hear the occurrence, and it should be carefully kept in mind that it. only applies when the witnesses are equally credible," held to have been proper where several witness testified that they saw the defendant spit upon the plaintiff, and several witnesses testified either that they did not see him upit upon her, or that he did not spit upon her. The evidence of the defendant's wit. nesses was essentially negative in its character, and the rule laid down by this court in the case of Ralph v. Railway ('0., 32 Wis. 177-181, is clearly applicable. Justice Lyon in that caso says: "Tho testimony of Todd is affirmative. Deswears positively to the fact that he delivered the rope in the freight-room of the depot by direction of Miss Brown. There is but little room in this testimony for failure of memory. llo either did so or he has probably committed perjury. The testimony of Miss Brown, although somewhat positive in form, is negative in fact. It means but little more than that she has no recollection of the transaction to which Twd testified." So in the case at bar, the witnesses of the defendant who stato that the defendaut did not spit upon the plaintiff reason very little more than those who testitied they did not see him spit upon her. This case does not come within
NUISANCE-KEEPING STOCK YARI)—R. S., 3180, 3181 ---ACTION AT LAW -· DAMAGE - COXTINTING.-No party is liable to another as and for a nuisauce simply because he keepsal stock-yard, if it is kept in such a place and in such a manner as not to contaminato tho atmosphere to such an extent as to substantially in terfere with the comfort or enjoyment of others, nor impair the 1503 of their property In other words, the comfort, enjoyment, or use-must bematerially affected or impaired. Pennoyer v. Allen, 56 Wis. 511; S. ('., 11 N. W. Rep. 609. The same view is supported by several cases not there cited. Sturges v. Bridgman, 13:2 Moak Eng. Rep. 537; Baltimore & P. R. ('o. r. Fifth Baptist Church, 108 1'. S. 3317; Ippeal of Penn. L. ('0., 96 Penn. St. 116; Fish v. Dodge, 17 Am. Dec. 231. It is concerted that the action was brought wder rectious 3150 and 5181, Revised Statutes. Such action, by il private person, to recover damages for and to abato the nuisance is necessarily an action at law. In so far as these sections authorizeel jugment of abatement in such action at law by a private party, this court has frequently held that they had the effect to abrogate the remedy in equity to abate such private nuisance. Remington 1. Fosier, 1'? Wis. 605; (ohn v. Wausau Boom (0., ti iil. 311; 5. (., X. W. Rep. 510; Pennoyer v. Illen, 51 Wis. 360; S. C., & N. W. Rep.:368; Lohmiller v. Indian Ford W. P. ('o., 51 Wis. (48; Demner 1. Railway ('o., 57 il. 5:21; S. ('., 1.1 V. W. Rep. 158. Such abatement under those sections was, in the absence of the requisite certificate of the court, a legiul consequence of the plaintiil"s recovery in the action at law, and could be had ouly when the plaintifs prevailel. "Evidently to obviate that dilliculty, the statute was amended by chapter 190, Laws 1882. That amendment restores equitable jurisdiction in the particular cases therein name. To bring the cases within such jurisdiction the essential fucts should be atlirmatively alleged in the complaint. Here it is enough to say that the complaint fails to state facts suflicient to bring the case within any of the provisions for equitable relief in that amendment.” Den ner v. Railway ('o., ji Wis. 2:21. It follows that this action must be treated as one at law and not in equity. In such action at law the plaintiff' could only recover for such damages as accrued before the commencement of the action. Such damages as might accrue after the commencement of the action, and before the verdict, could only be recovered in an action subsequently brought. Cobb v. Smith, is Wis. 12. This is ou the ground that every continuance of a nuisance is,