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em 266 (Tex.Civ.App.) Where question of as must be set aside.-Smith v. Hoffman, 201 S. sumed risk was submitted by a special charge, E. 204. fact that a paragraph of general charge requir; am 336 (Tex.Civ.App.) Where jury in action ed jury to find for plaintiff, unless they should under federal Employers' Liability Act found find for defendant upon some other paragraph lump sum verdict" for the administratrix, its of that charge, does not necessitate a reversal, apportionment of damages among her and five although it is preferable practice to incorporate children, if error, is surplusage. -Gulf, C. & S. such special charges within the general one. F. Ry. Co. v. Carpenter, 201 S. W. 270. Southern Pac. Co. v. Stephens, 201 S. W. 1076. w337 (Ky.) Though instructions may be erem 267 (4) (Ky.) A conventional contributory roneous, jury are bound, and verdict found connegligence instruction substituted for defendant trary to instructions, though erroneous, will be employer's requested instruction that plaintiff set aside.-Borderland Coal Co. v. Miller, 201 could not recover if his own negligence contrib- S. W. 299. uted to his injury, etc., held sufficiently concrete.--Bates & Rogers Const. Co. v. Flubar- (B) Special Interrogatories and Findings. ity's Guardian, 201 S. W. 10.
Om 350(1), (Tex.Civ.App.) The rule in cases (G) Construction and Operation. submitted by a general charge that each group w 295(1).(Ky.) It is duty of jury to consider of facts pleaded and supported by testimony all instructions together.-Borderland Coal Co. should be affirmatively submitted does not apv. Miller, 201 S. W. 299.
ply when the case is submitted upon special isOn 296(1) (Ky.) In action by owner of sawmill sues.-San Antonio, U. & G. R. Co. v. Dawson, against tie company for breach of contract, in- 201 S. W. 247. struction held prejudicial to defendant notwith-C350 (4) (Tex. Civ. App.). In action for standing another correct instruction.-Ayer & breach of contract of employment, where deLord Tie Co. v. Teel, 201 S. W. 466,
fendants did not plead as mitigation earnings ww296(2) (Mo.App.) Where attachment debtor by employé after termination of contract, it is secured instruction requiring creditor to estab- improper to submit that special issue to jury.
-Mindes Millinery Co. v. Wellborn, 201 S. W. lish intention of both husband and wife to leave
1059. the state, the error was not cured by giving subsequent instructions, requested by the credem 350(6) Tex.Civ.App.) Where defendant initor, which were correct.-Ware v. Flory, 201 troduced testimony that plaintiff worked interS. W. 593.
mittently for it and an independent construcem 296(3) (Mo.App.) Instruction that carrier the time he was injured he was engaged in do
tion contractor, special issue as to whether at owed passenger duty to exercise highest pràc-ing any service for defendant held material.ticable degree of care did not authorize recov: San Antonio, U. & G. R. Co. v. Dawson, 201 ery for any negligence, though not alleged in S. W. 247. the petition, where further instructions re
In railway conductor's action for injuries in stricted recovery to the negligence alleged., which defendant denied that plaintiff was workShafer v. Kansas City Rys. Co., 201 S. W. ing for it, special issue as to whether he was 611.
in defendant's employ when injured held propC296(4,5) (Tex.Civ.App.) Error, if any, in er.-Id. failing to submit in main charge issue of con A special issue as to whether plaintiff at the tributory negligence was cured by the giving of time he was injured was engaged in the dis. two requested instructions on such issue.- charge of his duties as defendant's employé Gulf, C. & S. F. Ry. Co. v. Carpenter, 201 S. was not objectionable as submitting a question W. 270.
of law.-Id. ww296(8) (Ky.) In action for injuries by coal Special issue as to whether box car which mine servant, instruction held not peremptory plaintiff was boarding when injured belonged to direction of verdict for coal company, when defendant at the time held to submit a question considered with all the instructions given.-Bor- of fact, within Vernon's Sayles' Ann. Civ. St. derland Coal Co. v. Miller, 201 S. W. 299. 1914, art. 1985.--Id. 296 (9) (Mo.) Fatal defect in instruction
Under Vernon's Sayles' Ann. Civ. St. 1914, directing verdict for plaintiff if certain facts art. 1985, special issue as to who gave plaintiff existed, but leaving out most of essentials of instructions to do work at which he was inliability, could not be cured by other instruc- jured and issues requiring finding of evidence tion.-Belfosse v. United Rys. Co. of St. Louis, of fact of employment held properly refused. 201 S. W. 860.
Cr350(8) (Tex.Civ.App.) Under Vernon's VIII. CUSTODY, CONDUCT, AND DE- Sayles' Ann. Civ. St. 1914, art. 1985, undisLIBERATIONS OF JURY.
puted facts should not be submitted in special Cu 312(1) (Tex.Civ.App.) In suit to set aside issues:- San Antonio, U. & G. R. Co. v. Dawa deed, it was not erroneous for the court to
son, 201 S. W. 247. inform the jury after retirement of the legil am 35'(5) (Tex.Civ.App.) Where court subresults of their answers to issues submitted. when injured was in defendant's employ, refus
to whether plaintiff Faville v. Robinson, 201 S. W. 1061.
al of issue as to whether he was in the employ IX. VERDICT.
of an independent contractor held proper.-San (A) General Verdict.
Antonio, U. & G. R. Co. v. Dawson, 201 S. W.
247. Om 329 (Tex.Civ.App.) Where there was really Refusal of special issue as to whether box but one issue, which party was right as to the car belonged to independent contractor at time terms of the contract, and each could not have of injury held proper, where court submitted an verdict, a finding for defendant was effective issue as to whether it belonged to defendant. as disposing of issue against plaintiff, though-Id. issue was submitted in a double form.-Reed v. Cum 352(5) (Tex.Civ.App.) Special issue as to Hunter, 201 S. W. 207.
whether box car at time of accident was being Em 333 (Tex.Civ.App.) Where plaintiff was en moved by defendant in the operation of its titled to judgment for $294.74, the difference railroad or in work incidental to such operabetween contract and market prices of cotton tion, held not objectionable as submitting, two on date defendant breached delivery, or noth- issues in one.-San Antonio, U. & G. R. Co. v. ing, a verdict for plaintiff for $50, presumably Dawson, 201 S. W. 247. based upon a compromise offer before suit, is Special issue held not misleading, as assuming not responsive to either issues or evidence, and its ownership of a car and that plaintiff was
in its employ, in connection with preceding is
(C) Constructive Trasts. sues.-Id.
en95 (Tenn.) Where seller of business and X. TRIAL BY COURT.
good will who assigned lease obtained from
landlord renewal of lease, held, that he was (B) Findings of Fact and Conclusions guilty of such bad faith that constructive trust of Law.
arises.-Fine v. Lawless, 201 S. W. 160. 395(9) (Mo.) The finding of the court as to an immaterial fact does not invalidate the
IV. MANAGEMENT AND DISPOSAL
OF TRUST PROPERTY. findings, provided the other facts found are sufficient to support the judgment.-George C. Cw189 (Tex. Civ.App.) Trustees cannot sell tbe Prendergast Const. Co. v. Goldsmith, 201 S. trust estate without the express or implied auW. 351.
thority conferred upon them by the instruww396 (6) (Mo.) Where answer alleged city's ment creating the trust.-Crawford v. El Paso improper motives, finding of court that there Land Improvement Co., 201 S. W. 233. were no such motives, fraud, or oppression, ano 191(1). (Tex.Civ.App.) No particular form was directly responsive, and not immaterial. of words is necessary to create a power of George C. Prendergast Const. Co. v. Goldsmith, sale in the trustee, but it is essential only that 201 S. W. 354.
the intent to create the power appear.-Craw397 (6) (Mo.) Failure to make
ford v. El Paso Land Improvement Co., 201 S.
express finding on a proposition as to which defendants W. 233. have the burden of proof must be regarded as Cw 19! (2). (Tex.Civ.App.) Deed granting lands a finding against them thereon.-George C. to plaintiff as trustee, the habendum clause of Prendergast Const. Co. v. Goldsmith, 201 S. W. which was to the trustee, his successors, or as354.
signs, and granting other rights to the trustee
and those for whom he holds title, "and his or TROVER AND CONVERSION.
their assigns," created a power in the trustee
to sell.-Crawford v. El Paso Land ImproveII. ACTIONS.
ment Co., 201 S. W. 233.
Em 193 (Tex.Civ.App.) If a trustee is empow. (A) Right of Action and Defenses.
ered by the instrument creating the trust to C 16 (Ark.) Plaintiff in conversion must sell the estate, he may be compelled to specificshow title in the property, and a landlord lien ally perform.-Crawford v. El Paso Land Imis not enough.-Security Bank & Trust Co. v. provement Co., 201 S. W. 233. Bond, 201 S. W. 820.
VII. ESTABLISHMENT AND EN(B) Jurisdiction, Parties, Preliminary
FORCEMENT OF TRUST.
(A) Rights of Cestuj Que Trust as against ww32(2) (Tex.Civ.App.) In an action for conversion of a note, an allegation of its facem 347 (Tenn.) That lease assigned by one value is a sufficient allegation of its value. - who sold business and good will prohibited asFarmers' State Guaranty Bank v. Pierson, 201 signment without assent, and renewal lease obS. W. 424.
tained by seller contained similar provision, (C) Evidence.
held not to prevent constructive trust against Cw39 (Tex.Civ.App.) In action for conversion seller, though he could not enforce lease of note, contract under which it could have been against landlord.-Fine y. Lawless, 201 S. W. exchanged for equity in land held relevant. 160. material, and admissible.-Farmers' State
(C) Actions. Guaranty Bank v. Pierson, 201 S. W. 424.
362 (Tenn.) Seller of business who assignww 40(6), (Tex.Civ.App.) Finding that plained lease and conveyed good will cannot avoid tills could have realized face value of note con constructive trust, on obtaining renewal lease, verted by defendant, held not contrary to the on ground that landlord refused to lease premevidence.-Farmers' State Guaranty Bank v. ises to or for benefit of buyer.-Fine v. Law. Pierson, 201 S. W. 424.
less, 201 S. W. 160. (D) Damages.
En 371(2) (Tex.Civ.App.) An amended petition,
alleging that an attorney, who had purchased C50 (Tex.Civ.App.). The measure of dam- property sold for taxes, had done so as to reages for the conversion of a negotiable note tain it for his client, defendant, but which fails is the amount prima facie due on the face of to allege defendant's ownership and right of the note. - Farmers' State Guaranty Bank v. possession, or any consideration for the agreePierson, 201 S. W. 424.
ment, does not show an enforceable trust
Ivey v. Teichman, 201 S. W. 695.
See Negligence, Om39.
See Deeds, Cum 211; Wills, w155.
UNION DEPOT. trust must be clear and satisfactory.-Faville See Municipal Corporations, Omw 721. v. Robinson, 201 S. W. 1061. 44(2) (Tex.Civ.App.) Evidence held not to
UNITED STATES. show that grantee in a deed held the land in trust for the grantor.-Faville v. Robinson, See Courts, C264. 201 S. W. 1061.
I. GOVERNMENT AND OFFICERS. (B) Resulting Trusts.
www50 (Tenn.) Private contractor, building dam ww89 (5) (Mo.) In an action seeking to hold to be deeded to the United States in navigable plaintiff's attorney employed to foreclose a stream under direction and according to speci. deed of trust as trustee on his obtaining title fications of the United States, is liable only to thereto in his own name, evidence held not the same extent as the government, which is sufficient to sustain plaintiff's burden of proof. not liable for the consequential damages to a -Thorn v. Poynor, 201 S. W. 830.
tenant at will of one who has been compensat
ed for land taken, by alternative overflow and notes did not render chattel mortgage for $2,recession of water, causing. stagnation and 400 usurious.-Huber Mfg. Co. v. Ellis, 201 breeding mosquitoes which infected plaintiff S. W. 931. and his family with malaria.-Chattanooga & m88 (Ark.) If contract was usurious in its Tennessee River Power Co. v. Lawson, 201 S. inception, no subsequent offer to remit usury W. 165.
can give it validity.-Habach v. Johnson, 201 Private contractor, building dam to be deeded S. W. 286. to the United States in navigable stream under Although debtor testified that it was his purdirection and according to specifications of the pose to pay debt, less usury, such purpose United States, is liable only to the same extent cannot be given effect by rendering judgment as the government, which is not liable for the for sum due, less usury; debtor's statement tort of failing to remove obstructions and rub: being purely voluntary and without considerabish after each overflow, since the United tion.-id. States is not liable for torts.--Id.
That a private contractor building dam to (B) Rights and Remedies of Parties. be deeded to the United States in navigable en 117 (Ark.) Evidence held to warrant findstream under direction and according to specifi- ing that agreement to pay commission to one cations of the United States retained an inter- who had nothing to do with negotiating loan est in the surplus water for power production
was a subterfuge adopted for purpose of givdid not render it liable for merely consequential ing color to transaction which would otherwise damages to residents of the vicinity by reason
have been usurious on its face.-Habach v. of creation of unhealthful and malarial con- Johnson, 201 S. W. 286. ditions.-Id.
(C) Rights and Remedies of Third PerII. PROPERTY, CONTRACTS, AND LIABILITIES.
127 (Mo.App.) The holder of a third trust Om67 (2) (Tenn.) Under agreement of private deed could not invoke the plea of usury against contractor building dam to be deeded to the one who sought subrogation to the rights of United States in navigable stream under direc- the first trust deed holder, having paid the tion and according to specifications of the Unit- amounts due under such trust deed, and reed States, to save the United States harmless tained a commission, since he was a stranger.on account of any damage, the contractor was State Sav. Trust Co. v. Spencer, 201 S. W. 967. liable only to the same extent as the United States.-Chattanooga & Tennessee River Power Co. v. Lawson, 201 S. W. 165.
VACATION. ww78 (Tenn.) Where a dam was erected for See Judgment, 341-401. the United States in navigable stream, and alternate Overflow and recession caused a stagnant pool on land of private owner, the United
VACCINATION. States was not liable for failure to drain the pool, since it had no right to go upon private See Constitutional Law, ew274; Schools and land for such purposes.-Chattanooga & Ten School Districts, m158. nessee River Power Co. v. Lawson, 201 S. W. 165. UNLAWFUL DETAINER..
See Criminal Law, Om 814.
See Appeal and Error, m1039; Bills and See Customs and Usages.
Notes, Om 489; Indictment and Information,
Om171; Pleading, Om387.
VENDOR AND PURCHASER. | (Mo.App.) Under Rev. St. 1909, $ 7886, suit for use and occupation, based merely upon See Exchange of Property; Execution, use and occupation, cannot be maintained unless relation of landlord and tenant, express or
266; Judgment, 682; Sales; Specific
I. REQUISITES AND VALIDITY OF
CONTRACT. er as trespasser, law does not imply agreement on his part to pay for use and occupation.-36(1) (Tex.Civ.App.) Assertion that land Id.
was best in county and was bargain at certain Om2 (Mo.App.) Where
of land has price and could be sold was mere opinion.served trespasser with notice that if he con
Binder v. Millikin, 201 S. W. 239. tinues his trespass he will be charged for use Cu 43(2) (Tex.Civ.App.) Where purchaser was and occupation, law will not imply agreement in possession and could have known of falsity to pay on part of trespassr from his mere si- of all representations, but made no claim for lence.-Young y. Home Telephone Co., 201 S. damages or to rescission for more than five W. 635.
years, he waived any claim arising from mis
representations.-Binder v. Millikin, 201 S. W. USURY.
239. I. USURIOUS CONTRACTS AND
II. CONSTRUCTION AND OPERATION TRANSACTIONS.
OF CONTRACT. (A) Nature and Validity.
Ono 46 (Tex. Civ.App.) In construing contract m12 (Ark.) Form of a contract is immaterial for sale of land, court must look to all parts if intent exists at time contract is made to take of instrument and surrounding circumstances and receive usurious interest.-Habach to ascertain intention of parties in making use Johnson, 201 S. W. 286.
of particular words and phrases and in making 34 (Mo.App.) That vendor offered to sell contract as whole.-Bailey v. Burkitt 201 s. machinery for $2,100 cash or $2,400 on time / W. 725.
Cm 65 (Tex.Civ.App.) A contract to convey a \ records for prior instruments affecting the title. hotel plainly means to convey the land upon | --Kobbe v. Harriman Land Co., 201 S. W. 762. which the hotel is situated. --Crawford v. El Com 231(4) (Tenn.) As in proceeding in which Paso Land Improvement Co., 201 S. W. 233.
land in question was attached and sold C78 (Mo.App.) Time is not of the essence property of K. only such title as was possessed of a contract of sale, and it is sufficient if ven- by him could be passed by decree, notice from dor suing for a balance due shows title re- recording of such decree would be ineffectual quired by the contract at time of trial, and as to parties claiming under deed superior to hence it is immaterial that deeds and evidences K.'s.-Kobbe v. Harriman Land Co., 201 S. W. of title not previously submitted are exhibited. 762. --Hobson v. Lenox, 201 S. W. 964.
em 231(9) (Tenn.) Registration of deed in M. ww79 (Tex.Civ.App.) Contract for sale or county at time when land conveyed was lease, whereby seller promised he would make longer a part of such county was wholly indeed only on buyer's making specified pay-effective to give notice.-Kobbe v. Harriman ments, which in fact were never made, was Land Co., 201 S. W. 762. not "deed of conveyance," and conditional Immediate purchaser from one having deed obligations of buyer to pay sums mentioned containing clause excluding older and better tiwere not "vendor's lien notes" within Vernon's tles would not be bound to search records of Sayles'. Ann. Civ. St. 1914, art. 5694, bar- M. county after land embraced by deed had ring action to recover realty in certain cases in been transferred by Legislature to a new counfour years.--Bailey v. Burkitt, 201 S. W. 725. ty.-Id.
Contract for sale or lease of land held not to em 231(10) (Tenn.) Recording a deed after require that vendor give buyer notice in writing and has been conveyed by registered deed to as prerequisite to his right to declare contract
a bona fide purchaser is without efficacy.null and void for buyer's failure to perform. Kobbe v. Harriman Land Co., 201 S. W. 762. -Id.
231 (11) (Tenn.) In all cases subject to IV. PERFORMANCE OF CONTRACT. the registration laws, the deed first register
ed has priority over constructive notice of lis (A) Title and Estate of Vendor.
pendens.-Hammock v. Qualls, 201 S. W. 517. Om 140 (Mo.App.) The purchaser on receiving am 232(8) (Tex.Civ.App.) Plaintiff taking a an abstract of title should examine it within a deed from vendor's executor to land of which reasonable time and point out defects for cor defendants had visible and continuous possesrection, and this rule also applies to further sion for more than 30 years was put on notice examination after vendor in good faith attempts as to defendant's interest therein, and was not to cure defects and asserts he has by a new
a bona fide purchaser, although defendant's or supplemental abstract.-Hobson v. Lenox, deed from such deceased vendor was not re201 S. W. 964.
corded.-Boedefeld v. Johnson, 201 S. W. 1027. (B) Conveyance,
ww232 (10) (Tex.Civ.App.) Although the pos
session by a tenant in common is consistent 158 (Tenn.) Where title is defective, deliv- with the recorded title, that does not relieve a ery of warranty deed to one who has gone into purchaser from the duty to inquire from the possession on representation of good title under possessor the nature of his claim and possescontract providing for "apt and proper deed sion.-Boedefeld v. Johnson, 201 S. W. 1027. with covenants of general warranty" does not233 (Tenn.) An unregistered deed, though render the contract executed, so as to prevent good between immediate parties, is incomplete rescission of contract.-Cross y., Buskirk-Rut- in law, and incapable of conveying title as ledge Lumber Co., 201 S. W. 141. Under contract for warranty deed, delivery of | have had actual notice. Kobbe v. Harriman
against subsequent purchasers not shown to warranty deed where title of grantor depends Land Co., 201 S. W. 762. on parol evidence of adverse possession is not sufficient to render contract executed, in ab- in title was an attorney for G., common source,
238 (Tenn.) That defendant's predecessor sence of waiver.-Id.
would not prevent him from lawfully acquiring (C) Quantity of Land and Appurtenances. title of grantee having prior registered deed, 165 (Tex.Civ.App.) Where land is convey- deed from G.-Kobbe v. Harriman Land Co.,
even though he had knowledge of unrecorded ed in gross, the purchaser takes the risk as to | 201 S. W. 762. the acreage and cannot recover a shortage without allegation and proof of fraud or mutual Ewa 239 (3) (Tenn.) Ordinary negligence in mistake.-Read v. Blaine, 201 S. W. 415.
procuring a sheriff's deed, unexplained, should
defeat the title of the execution purchaser as V. RIGHTS AND LIABILITIES OF against one who buys in good faith and without PARTIES.
notice of the title claimed by the execution pur
chaser.-Hammock v. Qualls, 201 S. W. 517. (C) Bona Fide Purchasers.
Where the purchaser at a sale under conC230(1) (Tenn.) It is duty of one who pur-demnation by the circuit court after levy of a chases under deed containing clause excluding justice's judgment delayed getting a sheriff's older and better titles to explore the land for deed for over eight years, a subsequent puradverse possessions.--Kobbe v. Harriman Land chaser without notice who recorded his deed Co., 201 S. W. 762.
had superior title, though the purchaser finally Cow230(2) (Tenn.) Under Shan. Code, $$ 3749- took a deed, such'deed not relating back to the 3752, purchaser, claiming under deed exclud- levy.--Id. ing older and better titles, would not be oner-Cm 242 (Tenn.) Purchaser under deed conated with duty of making inquiry or investi- taining exclusion clause is conclusively pregation for prior conveyances outside of and sumed to know whatever could have been disbeyond registration books, in absence of actual covered from public records or from investiganotice.-Kobbe v. Harriman Land Co., 201 S. tion for adverse possessions.-Kobbe v. HarriW. 702
man Land Co., 201 S. W. 762. In absence of actual notice or notice by record Burden of showing that purchaser under or registration books or by actual adverse occu- deed containing exclusion clause had actual pation of land, purchaser, notwithstanding notice of prior unrecorded deed was on party clause in a deed in his chain of title excluding asserting such fact.--Id. older and better titles, has right to rest in security.-Id. ww231(2) (Tenn.) It is duty of one who pur
VENIRE. chases under deed containing clause excluding older and better titles to search public See Jury, Omw 70.
1150; Insurance, Om618; Mandamus, om
WATERS AND WATER COURSES.
United States, 50, 67, 78.
See Easements; Highways.
Evidence, 207, 265; Executors and Ad-
6 (Mo.) Half interest in lands held by hus-
II. TESTAMENTARY CAPACITY.
S. W. 28.
m50 (Ky.) Testamentary capacity is suffi-
cient mental capacity to take a survey of one's
property, know its value, the objects of his
1070: Criminal Law, C878; Trial, property according to a fixed purpose of his
own.-Robinson v. Davenport, 201 S. W. 28.
IV. REQUISITES AND VALIDITY.
Om Ill(3) (Ky.) Ky. St. § 1828, requiring
name of testatrix to be subscribed to will, was
sufficiently complied with by subscription,
"Nancy Wilson X Whaley," instead of testa-
trix's correct name, Nancy Wilson Hendrix,
where identity of testatrix was not questioned.
-Reed v. Hendrix's Ex'r, 201 S. W. 482.
Om 118 (Kr.) Under Ky. St. § 4828, where
testatrix acknowledged will in presence of wit-
nesses, execution was complete, although she
did not subscribe in presence of witnesses.-
Reed v. Hendrix's Ex'r, 201 S. W. 482.
(F) Mistake, Undue Influence, and Fraud.
Cum 155(4) (Ky.) Any reasonable influence ob-
tained by acts of kindness or appeals to feeling
surance, Cw:388-396; Sales, Cmw 255; Ven- cy, is not undue influence.-Robinson v. Daven-
port, 201 S. W. 28.