sidered as held in trust by such parent for such children. Schmitt v. Schnell. 657.
Where several parties plaintiff file a petition asking for foreclosure of a mortgage made by defendant, to secure payment of notes given by him to them severally and also asking for a reformation of the mortgage on the ground that the land intended to be mortgaged was not correctly described therein: Held, that as the petition set up a claim for the reformation of the mortgage in which the plaintiffs were directly interested, therefore, they were entitled to join as plain- tiffs and there was no misjoinder of parties plaintiff. Collins V. Mansfield. 445.
When, on the face of a petition in error there appears to be a mis- joinder of parties plaintiff, which could only be taken advantage of by special demurrer, and such de- murrer is not filed the defendant Iwaives the objection under the pro- visions of sec. 5064, Rev. Stat., but he may properly raise the question by answer. PARTNERSHIPS-
Where a partnership sues in its firm name, it not being shown that it was entitled to thus sue and prosecute its action, and it does not affirmatively appear in the record that it was a partnership, formed for the purpose of carrying on a trade or business, or holding property in this state, then such action does not come within the purview of sec. 5011, authorizing such partnership to sue by the usual or ordinary name, which it has as- sumed, or by which it is known, and therefore such partnership has no legal capacity to sue, and unless the pleading is demurred to on this specific ground, the objection is waived. Beers & Co. v. Gurney. 411.
W., intending to erect a building on his lot, entered into a parol agreement with H, the owner of the adjoining lot, for construction of a party wall. The wall was to be located and constructed, one-half on each side of the division line, to be completed and cost of construction borne by W, and H, was not to be liable for any portion of such cost until he used it in the construction of an adjoining building on his lot, when he was to become liable for
the payment of one-half such cost. The wall was completed by W, in 1874, in accordance with the stipula- tions of said agreement, and in 1894, H made use of the wall in the con- struction of a building on his ad- joining lot: Held, that there was such performance of the agreement as relieved it from the operation of the statute of frauds. Hall v. Geyer. 436.
The wall was and is real estate; so the contract had reference to and was for and concerning an interest in real estate, and its covenants were of such character and import as to run with the land. Ib.
Upon the completion of the wall, the stipulation for H, to become lia- ble for one-half the cost of it, when used for the purpose of a building on the adjoining lot, unless severed from its context and made inde- pendent, became an appurtenance of the said real estate and passed to the assignee thereof. Ib. PAYMENT—
The burden of proof regarding a payment made on a note barred by the statute of limitations, is upon the party relying on such payment. Keel, Exr. v. Rudisell.
Endorsement of credit on a note is not prima facie evidence of payment. Ib.
Where one of the joint makers of a promissory note makes a partial payment, such payment will not prevent the running of the statute of limitations as to the other makers, but applies only to the person making the payment. Ib. PLEADING
In an action to recover compen- sation for lands entered upon by a railway, defendant filed an answer claiming that the action did not accrue within six years next before it was begun; to this defense plain- tiff demurred: Held, that the de- murrer to the answer searches the record and the court is warranted to look to the petition and see when the cause of action did arise, and if it finds that it arose within six years prior to the commencement of the suit, it will not be error in sustaining the demurrer to this de fense. W. & L. E. Ry. Co. v. Fries et al. 297.
In an action against a village or city to recover for the value of ma terials and labor furnished its board of gas trustees, the petition must allege that such board had authority from the village council
or otherwise to enter into such contracts, and also that when the contracts were made the neces- sary money required for the pay. ment of such materials was certi- fied by the clerk to be in the village treasury to the credit of the fund from which it was to be drawn and was not appropriated for no other purpose. Kerr v. Village of Belle- fontaine. 93. The power which rests in the court, given by the statute granting it the power to extend the time for filing any pleading, or to give leave at any time to file a pleading, is a power given to the court which may be exercised at any time and in any manner it pleases, unless ob- jection be made at the time or sub- sequently and exception taken to that order or rule. Parker V. Haight.
Necessary averments in a pe- tition in an action by a servant against his master for injuries re- ceived while operating defective machinery. Barbour v. Miles. €82.
In an action to vacate and set aside a judgment or order of the probate court, discharging the sure- ties on an executor's bond, which cause of action is based on the ground that the judgment or order of discharge was procured by fraud successfully practiced on the court, and the petition definitely states all the facts constituting the fraud, such petition stats a good cause of action and is good as against a general demurrer. Howenstine v. Sweet. 498.
A departure in pleading is de- fined to be the statement of matter in a replication or subsequent pleading, as a cause of action or de- fense, which is not pursuant to the previous pleading of the same party, and which does not support or for tify it. State ex rel. v. W. H., M. & P. Road Co. 453.
Where the reply in a quo war- ranto proceeding sets up the partic ular facts which, it is claimed, show that defendant company is now ex- ercising franchises and privileges which it may once have had, but which it does not now possess, such reply does not constitute a de- parture from the petition, but supports and fortifies it, and there- fore, it is not demurrable. PRACTICE-
Where there has been a finding of facts separately from
Where a court of common pleas reverses on error, a judgment rendered by a justice, it is the duty of the court, under sec. 6733 Rev. Stat. to retain the case for trial and final judgment as in cases of appeal. Bradley v. Wacker. 565.
All that is necessary where there has been a finding of facts separately from the conclusion of law, under sec. 5205, to entitle the reviewing court to pass upon the questions of law, is an exception to the judgment of the court. Mither v. Douglas. 715.
QUO WARRANTO-
If an action cannot be brought against a municipal corporation to oust it from the exercise of a fran- chise, which it is exercising under an alleged unconstitutional act, then such action cannot be brought against the officers appointed or elected to perform the duties im- posed by such act. State ex rel. Strimple v. McBride et al. 522.
An action to oust the members of the sinking fund commissioners of Cleveland from office which action is based on the ground of the al- leged unconstitutionality of the act of 1862, creating such office, cannot be maintained where the powers and franchises of such office have been exercised for over a period of twenty years since the right of action accrued. Ib.
An action to oust the members of the park board because of the un- constitutionality of the statute cre ating the appointing board is a collateral attack upon the validity of such statute, and cannot be made in a quo warranto proceeding. Ib.
Jurisdiction in quo warranto exists to oust a municipal corpora- tion assuming to exercise a franchise not conferred on it by law, provid- ing such proceeding is brought against the corporation within the time limited. Ib.
When an information in the nature of a quo warranto is filed against a corporation by its cor- porate name, calling upon it to show by what warrant it claims to be a corporation, to exercise corpo- rate powers, and defendant pleads an act of the legislature granting to it the franchises named in the in-
formation, it is competent for the relator by way of replication to aver cause of forfeiture, and to pray for a judgment of dissolution. State ex rel. v. W. H. M. & P. Road Co. 453.
In an action against a railroad company for damages for stock killed, because of alleged negligence in failing to construct necessary and proper cattle guards: Held, that such omission, was
negligence as to warrant a verdict against the company, when the evi dence showed that it was necessary for the proper use of the station yards as maintained on each side of the station proper, to omit such guards. Pierce v. Andrews. 105.
Where a city by ordinance con. tracts with a railroad, giving such company the privilege of taking and using
such portions of certain streets as said company shall deem expedient for the purpose of build- ing its railroad: Held, that, under the contract, the company did not take the exclusive use of such streets, but could use them only so far as it was necessary for the railroad to use them, and not so far as it should deem necessary. L. S. & M. S. Ry. Co. v. Elyria. 312.
It was the duty of the railroad to restore such streets to their former state of usefulness, and fail- ing to do so the city cannot be in- terfered with in thus restoring them. Ib.
A railroad company permitting crude oil to accumulate and remain for an unreasonable time upon its side tracks, where brakemen are ac- customed to go in coupling and un- coupling cars, and whereby such work is made dangerous, is guilty of negligence, and answerable therefor in damages to a brakeman who, while in the performance of his duty, slips upon such oil and is injured. C. H. & D. R. R. Co. v. Criss. 632.
Such tracks being used to transfer cars from another railroad to defendant's railroad in pursu- ance of a traffic arrangement between the companies owning such roads, the owner of such transfer tracks is liable for such negligence re- sulting in an injury to a brakeman not in its employ, but in the employ of such other company, if at the time he receives such injury, he, in the discharging of his duty, is assisting in such transfer of cars.
The owner of a grist mill and appurtenances, situate upon village lots abutting upon a street, may re- cover from a railroad company which occupies a part of such street with its tracks, damages resulting to such property from a diminution of the value thereof caused by sparks, cinders, smoke or noise produced by the operation of loco- motives while upon such track, and within the limits of the street, if such place is near to his property; though it may not abut upon that part of the street so occupied by such track. W. & L. E. R. R. Co. v. McLaughlin. 647.
The object of having a signboard or caution post at or near the crossing of a railway and highway is to notify travelers of the exist- ence of the crossing, and if the jury find that the company was negligent in not having such board at the crossing where the accident occurred, such omission would not render the company liable to a person familiar with the crossing and who knew of the existence of the railway at the time of the accident. C. C. & I. Ry. Co. v. Reiss. 450.
In order to convict a person charged with an assault with intent to rape, it must appear from the evidence that an assault was made upon the prosecutrix, and that what was done was done against her will. Martin v. State. 564. REPLEVIN—
Where goods are sought to be replevined on the ground that they have been fraudulently purchased, and the party replevying them claims to be the general owner, an allegation that, "the defendant wrongfully detains from plaintiffs the following goods and chattels of the plaintiffs," will be held to be a sufficient allegation of ownership on the part of plaintiffs. V. Lyon & Co.
A person who obtains goods by false pretense does not lawfully
Where a person fraudulently purchased a quantity of goods and executed a note for the same, and afterwards the seller rescinds the sale and replevins the goods: Held, that it is not necessary for the seller to first turn the note to the pur- chaser before bringing the suit in replevin. It is sufficient if the seller has the note in his possession at the commencement of the suit, and brings the same into court, subject to whatever the court might do with it. Ib.
Demand is only required before replevin proceedings are commenced when necessary to terminate de- fendant's right of possession confer the right of possession upon plaintiff. Ib.
Where the purchaser of goods has made a representation as to a material matter, relied and acted upon by the other party, which the latter was authorized to rely upon, and which the person to whom such representation is made is authorized to rescind the contract and take the property by replevin proceedings, as he might do in a case of actual fraud. King V. Hopkins. 362. RECEIVERS-
In an action by plaintiff upon certain notes executed by defendant corporation, for which plaintiff asks judgment and for the appointment of a receiver. Such action is on the note for which he asks judgment and is not a case for the appointment of a receiver before judgment, and therefore, it is error for the court to appoint such receiver in such action. Callahan et al. v. Con- sumers Ice & Refrigerating Co. 349.
To appoint a receiver in an action at law for money, would be in effect granting an attachment, which cannot be done.
Mistakes of whatsoever kind or nature will, by courts possessing and exercising general equity powers and jurisdiction, be corrected and re- lieved against, by a decree ordering the reformation of an instrument or deed into which the error or mistake has crept. Cook v. Prosser. 619.
In an action for the purchase price of goods it is competent for the vendee to show that the quality was such that they could not be sold in vendee's market for goods of the grade for which they were bought, but that they had to be sold as a lower grade. Tillyer et al. v. Glass Co. 209.
Where the vendor agrees to sell certain glass, the quality to be "second and third," such language amounts to a warranty, and not merely a description of the kind and character of the glass sold.
To constitute a warranty, no particular form of words is neces sary in the sale of personal property, and while a mere expression of opinion is not sufficient to consti- tute a warranty, any clear, positive affirmation by the vendor during the negotiation will be construed as an express warranty. Ib.
An affirmation at the time of the sale is sufficient, provided the affirmant really intended to warrant -not simply to express an opinion. An honest expression of opinion does not amount to a warranty. Affirmation by a vendor upon which he intends the vendee to rely, and upon which the vendee does rely, are warranties. Ib.
Where goods have been pur- chased by fraud from a merchant, and the latter undertakes to rescind the sale and replevin the property, the title of such merchant in such goods will be that of a general owner and not that of a special owner. Wilmot V. Lyon & Co. 394.
Where goods have been obtained by fraud, the right of possession never passes to the purchaser at all If the sale is elected to be rescinded, it is because there was no right on the part of the purchaser in the out- set to the possession of such goods. Ib.
When a person buys goods, be- ing insolvent, knowing that he is insolvent, and not intending to pay for those goods, such sale is fraud- ulent and void. Ib.
Upon a sale of a stock of mer- chandise, by S. to E. on credit, pos- session thereof was delivered to E. with authority to sell therefrom at retail, but it was agreed that he should not allow the stock to be- come reduced, but should keep it intact by supplying goods in the
stead of those retailed, and should not sell or transfer the stock of goods until the same had been paid for on payment secured to the sat- isfaction of S, and afterward, and when the value of the stock was not greater than the amount of the indebtedness therefor, it was traded by E. for land, the title of which was taken to E, with the consent of S. but upon the promise of E. that upon the consummation of such trade he would convey said land to S, which he subsequently refused to do: Held, that E held the title to the land in trust for S, and that the conveyance thereof agreed upon might be required by a court of equity. Schaff v. Ensley. SAVING SOCIETIES-
The deposits in such societies are the property of the depositors; the societies are merely incorporated agencies for the depositors as prin cipals to receive, loan and invest the savings of the latter. Collett, Treas., v. Savings Society. 146.
The depositors are required to return and pay taxes upon the value of their interest in the society, and the society to return and pay taxes upon the remainder of the property not the reciprocal of such interests. The surplus, undivided profits, real estate and furniture do not add to the taxable value of the depos- itor's interests, and a complete tax- ation of all taxable property is af- fected by requiring the depositors to pay upon the value of their interests and the society to pay upon the surplus, undivided profits, real estate and furniture.
The control and management of schools in this state is given to boards of education by statute, and they cannot be interfered with by the court unless there is a gross abuse of the discretionary powers given. Youmans v. Board of Edu cation. 269.
Where the minute book, con- taining a record of the proceedings of a board of education shows that all the members were present, and that on motion they proceeded to elect a teacher, showing the yea and nay vote but does not state that the roll was called, such election will be considered to be in substantial compliance with sec. 3982, Rev. Stat. Ib. Under the section of the stat ute requiring that boards of edu catica shall not employ teachers
The sheriff is the executive of ficer of the court, and when the court pronounces sentence upon a prisoner, the sheriff is his rightful custodian, and when he obtains cus. tody of such prisoner, in whatever manner, his authority to restrain him evidenced by the sentence of the court is complete. In re Moore. 575.
SPECIFIC PERFORMANCE—
Specific performance is not an absolute remedy, but is, in all cases discretionary with the court, and ought to be refused-if the contract lacks the essential element of mu tuality; or, if the parties to it, were not standing on an equality and deal. ing at arm's length; or, if the con- tract was not fair and free; or, if performance would be harsh, op-
« PreviousContinue » |