Duty of person assaulted to retreat, see Homi- See Highways; Street Railroads.
cide, § 118.
RETROSPECTIVE LAWS.
See Statutes, § 263.
Constitutional restrictions, see Constitutional
Law, §§ 190–203.
Election returns, see Elections, § 259.
In cities, see Municipal Corporations, §§ 703-
706.
Of master governing work of servant, see Mas-
ter and Servant, §§ 142, 146.
Of medical board of examiners, see Physicians
and Surgeons, § 5.
Of preliminary examination, see Criminal Law, See Sunday.
§ 244.
Of process in general, see Process, § 135.
On appeal from justice's court, see Justices of
the Peace, § 164.
To writ of habeas corpus, see Habeas Corpus,
§ 77.
SAFETY APPLIANCES.
Fenders on street cars, see Street Railroads, §§
86, 113, 118.
See Exchange of Property, § 10.
Combinations to control, see Monopolies, § 17.
Retention of possession or apparent title by sell-
er as element of fraud as to creditors or subse-
quent purchasers, see Fraudulent Conveyan-
ces, §§ 139, 143.
Validity as to creditors or subsequent pur-
chasers, see Fraudulent Conveyances.
Sales by or to particular classes of persons.
See, Railroads, § 129; Receivers, § 142.
Sales of particular species of, or estates or
interests in, property.
See Intoxicating Liquors.
Franchises or property of railroad companies,
see Railroads, § 129.
Mortgaged property, see Mortgages, §§ 280-296,
510-553.
Real property in general, see Vendor and Pur-
chaser.
Shares of corporate stock, see Corporations, §
119.
Standing timber, see Logs and Logging, § 3.
Sales on judicial or other proceedings.
By receivers, see Receivers, § 142.
Foreclosure of mortgages, see Mortgages, § 553.
Tax sales, see Taxation, §§ 627-685.
I. REQUISITES AND VALIDITY OF
CONTRACT.
§ 28. An order for goods, omitting the name
of the seller with the buyer's acceptance of
goods shipped thereunder, held to constitute a
written contract of sale.-Ady v. Barnett (Wis.)
1061.
§ 52. Evidence held to support finding that
both an order for a threshing outfit and the
purchase notes and mortgages were placed in
the possession of the seller's agent on condi-
tion. Koester v. Northwestern Port Huron | in case of severable contract.-Bamberger Bros.
Co. (S. D.) 740.
§ 52. A buyer of a horse, who in an action
for the price sets up the affirmative defense of
false representations by the seller, held to have
the burden of proving that he relied on the rep-
resentations in making the purchase.-Smith v.
Reed (Wis.) 489.
§ 52. Evidence held to support a finding that
a buyer of a horse did not rely on the seller's
false representations, precluding the buyer from
relying thereon in defense of an action for the
price.-Smith v. Reed (Wis.) 489.
$53. Evidence held to present a question for
the jury as to whether a purchase of lumber
was fraudulent, giving the seller a right to re-
scind.-Weidman v. Phillips (Mich.) 40.
II. CONSTRUCTION OF CONTRACT,
§ 62. An order for goods held an entirety, so
that there was no compliance therewith by ship-
ment of part of the order.-Bamberger Bros. v.
Burrows (Iowa) 333.
§ 62. Where shingles were sold in car load
lots, and the buyer accepted two car loads, but
refused to accept the third, the contract as to
the three cars was severable, and the seller could
sue for the price of the third.-Duluth Log Co.
v. John C. Hill Lumber Co. (Minn.) 967.
$ 79. Place of delivery of grain sold held to
be seller's place of business.-Carter v. Roberts
(Neb.) 94.
§ 81. Time may be of the essence of the con-
tract of sale; and, when time for delivery is
fixed, it is generally so regarded.-Bamberger
Bros. v. Burrows (Iowa) 333.
§ 81. Contract for the sale of grain held to
afford to the buyer a reasonable time, after the
expiration of the period for shipping, in which
to close the contract.-Carter v. Roberts (Neb.)
94.
§ 88. In an action for price of goods evidence
held to present a question for the jury whether
the contract was entire or severable.-Bamberger
Bros. v. Burrows (Iowa) 333.
III. MODIFICATION OR RESCISSION
OF CONTRACT.
(A) By Agreement of Parties,
$94. Though the time for delivery of goods
sold may be waived or a new time fixed, this
does not make a new contract, and performance
must be had according to the new arrangement.
-Bamberger Bros. v. Burrows (Iowa) 333.
(C) Rescission by Buyer.
§ 121. Receipt of part of stock of goods or-
dered, and their retention without objection
held not a waiver of the buyer's right to rescind
for failure to deliver within the time fixed.
Bamberger Bros v. Burrows (Iowa) 333.
§ 121. A buyer, seeking to reject an arti-
cle as not in accordance with the contract, must
do nothing after he discovers the true condition
inconsistent with the seller's ownership of the
property.-Duluth Log Co. v. John C. Hill
Lumber Co. (Minn.) 967.
§ 128. To constitute rescission of a contract
of sale, the buyer need not expressly repudiate
it. but, if his acts clearly show such intention,
and this is known to the other party, it is suff-
cient.-Bamberger Bros. v. Burrows (Iowa) 333.
IV. PERFORMANCE OF CONTRACT.
(C) Delivery and Acceptance of Goods.
Delivery of gift to carrier as delivery to donee,
see Gifts, 22.
$1682. Evidence held to show an accept-
ance by defendant of a lighting plant, render-
ing him liable for the full contract price.-Lei-
termann v. Barnard (Wis.) 655.
$177. Evidence held insufficient to show
breach of contract by purchaser of piano.—
Smith & Nixon Piano Co. v. Lydick (Minn.)
637.
§ 179. On an entire contract of sale, the buyer
may waive a default as to part, keep the part
shipped, and become liable therefor.-Bamberger
Bros. v. Burrows (Iowa) 333.
§ 182. Whether a buyer waives a default as
to part of an entire contract of purchase is
generally for the jury.-Bamberger Bros. v. Bur-
rows (Iowa) 333.
§ 182. In an action for price of goods, evi-
dence held to present a question for the jury
whether any part of the goods was delivered
within the time fixed or as extended by agree-
ment.-Bamberger Bros. v. Burrows (Iowa) 333.
§ 251. Where defendant sold plaintiff a horse
without a warranty and it proved unsound, if
plaintiff had any remedy, it was for fraud and
deceit.-Sockman v. Keim (N. D.) 64.
§ 261. Evidence held not to show warranty
on sale of a horse.-Sockman v. Keim (N. D.)
64.
§ 262. Representations by the seller of a
horse that the horse is sound held not to amount
to a warranty, unless relied on.-Smith v. Reed
(Wis.) 489.
§ 262. Where an express warranty is given
in express terms as a part of the contract of
sale, the buyer need not prove reliance thereon.
-Smith v. Reed (Wis.) 489.
§ 266. Where a mere representation of fact
relating to a contract of sale is proved, reli-
ance must be shown.-Smith v. Reed (Wis.) 489.
VII. REMEDIES OF SELLER.
(E) Actions for Price or Value.
$347. Evidence held to show failure of con-
sideration for notes sued on.-Smith & Nixon
Piano Co. v. Lydick (Minn.) 637.
§ 348. The acceptance of goods by a buyer is
not a waiver of his right to set up a counter-
claim for failure to deliver in time.-Bamberger
Bros. v. Burrows (Iowa) 333.
§ 359. In an action to recover a balance
claimed to be due for coal shipped, evidence
held insufficient to show that the coal in ques-
tion was ordered by defendant at the market
price on the 1st of the following month.-North-
western Fuel Co. v. Central Lumber & Coal Co.
(Minn.) 981.
§ 363. In an action for the price of goods
sold, which defendant refused to accept, the
burden was on plaintiff to show affirmatively
that defendant's subsequent dealing was incon-
sistent with plaintiff's ownership.-Duluth Log
Co. v. John C. Hill Lumber Co. (Minn.) 967.
§ 128. Evidence held to present a question
for the jury whether a buyer's acts and cor-
respondence constituted a rescission of the pur-
chase.-Bamberger Bros. v. Burrows (Iowa) 333.
§ 129. On an entire contract of sale, failure
to deliver a part of the goods within the time
fixed held to authorize rescission, but otherwise 827.
(F) Actions for Damages,
§ 384. In an action for breach of a contract
to execute notes for machinery sold, plaintiff
held entitled to recover damages to the amount
of the notes.-Geiser Mfg. Co. v. Holzer (Minn.)
VIII. REMEDIES OF BUYER.
(A) Recovery of Price.
See Compromise and Settlement; Payment; Re-
lease.
Of mortgage, see Mortgages, § 319.
§ 391. A cause of action in favor of a buyer
against a seller for an overpayment held to
arise immediately upon the discovery of a short-
age in the shipment after payment.-Scheer v.
Clinton Falls Nursery Co. (N. D.) 1115.
$392. A buyer held not required to rescind See Banks and Banking, § 301.
the contract of sale as a condition to his recov-
ery of an excess payment made thereon.-Scheer
v. Clinton Falls Nursery Co. (N. D.) 1115.
$396. A complaint in an action to recover
as for money had and received as an overpay-
ment on goods purchased held to state a cause
of action.-Scheer v. Clinton Falls Nursery Co.
(N. D.) 1115.
(C) Actions for Breach of Contract.
404. Where the seller fails to make deliv-
Scandalous matter in brief on rehearing as con-
tempt of court, see Contempt, § 6.
To tax deeds, see Taxation, § 765.
SECONDARY EVIDENCE.
ery on the date fixed therefor, the buyer may See Criminal Law, § 401; Evidence, § 183.
rescind or recover damages for the seller's breach
of contract.-Bamberger Bros. v. Burrows (Iowa)
333.
§ 405. On a severable contract of sale though
the buyer cannot refuse to pay for part of the
goods which he has accepted, he has an action
for failure to deliver the residue.-Bamberger
Bros. v. Burrows (Iowa) 333.
See Chattel Mortgages; Mortgages; Principal
and Surety.
Indemnity to sheriff or constable, see Sheriffs
and Constables, §§ 148, 149.
On appeal or writ of error, see Appeal and Er-
ror, §§ 390, 468.
§ 416. Market price of grain at the seller's
place of business, which was the place of deliv-
ery, held relevant in determining damages in an
action for breach of contract.-Carter v. Rob- Of towns or townships, see Towns, § 31
erts (Neb.) 94.
§ 418. Damages recoverable for breach of
contract to deliver corn is the difference between
the purchase price and the market price on the
last day on which it might have been delivered.
-H. D. Wetmore & Co. v. Henry (Iowa) 791.
§ 418. A buyer of corn to fill orders is not
entitled to commissions for the purchase of
goods elsewhere to fulfill contracts which he had
canceled.-H. D. Wetmore & Co. v. Henry
(Iowa) 791.
Defense to prosecution for homicide, see Homi-
cide, §§ 118, 276, 300.
SELF-SERVING DECLARATIONS.
As evidence, see Evidence, § 271.
§ 418. A buyer of grain, on seller's breach of See Criminal Law, § 995.
contract, held not bound to purchase grain in
the markets to which the grain purchased was
to be consigned.-Carter v. Roberts (Neb.) 94.
§ 418. Only nominal damages for breach of Of married woman, see Husband and Wife, §§
contract of sale held authorized.-Anderson v.
Savoy (Wis.) 1053.
(D) Actions and Counterclaims for Breach
of Warranty.
§ 439. In an action for the price of a light-
ing plant, defendant held not entitled to set
Of husband and wife, see Divorce.
SEQUESTRATION.
off his damages against the purchase price. Of property of corporation, see Corporations, §
Leitermann v. Barnard (Wis.) 655.
§ 473. A vendor in a conditional sale failing See Master and Servant.
to file the contract, as authorized by Cobbey's
Ann. St. 1909, § 6045, cannot interfere with a
bona fide purchaser of the property sold.-Math-
ews Piano Co. v. Markle (Neb.) 1129.
8 477. Action by vendor of property condi-
tionally sold in suing for the debt held a waiv-
er of the conditions of the sale.-Mathews Pi-
ano Co. v. Markle (Neb.) 1129.
party to them.-Constantine v. Rowland (Iowa)
189.
Additional servitude, see Eminent Domain, levying attachment held not entitled to more
119.
SET-OFF AND COUNTERCLAIM.
Burden of proof, see Evidence, § 96.
§ 149. Under Code, §§ 3991, 3992, officer
than compensatory damages in an action on
an indemnifying bond.-Constantine v. Rowland
(Iowa) 189.
In action by surety against creditor, see Prin- See Navigable Waters; Wharves.
cipal and Surety, § 172.
In action for price or value of goods sold, see
Sales, § 348.
In suit to enforce mechanics' liens, see Mechan-
ics' Liens, § 254.
Pleading matter of set-off or counterclaim, see
Pleading, § 144.
Assessment for public improvement, see Munici-
pal Corporations, § 513.
Judgment, see Judgment, §§ 139-145, 343, 344.
Verdict, see New Trial.
V. LIABILITIES OF VESSELS AND
OWNERS IN GENERAL.
Liability for injuring dock, see Wharves, § 22.
SHOWS.
See Theaters and Shows.
SIDEWALKS.
Injuries from defects or obstructions, see Mu-
nicipal Corporations, §§ 812-821.
See Compromise and Settlement; Payment; From trains, see Railroads, § 415.
To memorandum of contract within statute of
frauds, see Frauds. Statute of, §§ 115, 116.
To resolutions, see Municipal Corporations, §
302.
Withdrawal from petition for local option elec-
tion, see Intoxicating Liquors, § 32.
Conveyances and transactions in fraud of cred-
itors, see Fraudulent Conveyances.
SINKING FUNDS.
Sinking fund tax, see Taxation, § 23.
Of corporate stock, see Corporations, §§ 84, 119. See Libel and Slander.
I. APPOINTMENT, QUALIFICATION, See Attorney and Client.
AND TENURE.
(C) Deputies and Assistants, Substitutes,
and Special Officers.
Duty of coroner to draw jury, see Jury, § 66.
III. POWERS, DUTIES, AND LIABILI-
TIES.
Liability for false imprisonment, see False Im-
prisonment, § 7.
SPECIAL APPEARANCE.
See Appearance, § 9.
SPECIAL FINDINGS.
See Trial, §§ 350-359.
SPECIAL INTERROGATORIES.
See Trial, §§ 350-359.
§ 118. Where an officer has levied upon
goods, which are subject to levy, and he re-
leases them, he becomes liable to the cred-
itor.-McCausey v. Hoek (Mich.) 570.
§ 139. Under Code, §§ 3991, 3992, claimant See Statutes, §§ 71-93.
in attachment held not entitled to recover ex-
emplary damages in action on indemnifying
bond.-Constantine v. Rowland (Iowa) 189.
§ 139. In an action on an indemnifying bond
given in attachment proceedings, a claimant can-
not recover attorney's fees charged in interven-
tion
proceedings.-Constantine" V. Rowland
$148. Under Code, §§ 3991, 3992, any lia-
bility of attaching officer held to arise, not from
levy of attachment, but from acts outside the
line of his duty as an officer, for which the at-
taching plaintiff would not be liable unless a
SPECIAL PRIVILEGES.
Grant of special privileges or immunities, con-
stitutional prohibition, see Constitutional Law,
$ 205.
SPECIAL PROCEEDINGS.
See Certiorari; Habeas Corpus; Mandamus';
Prohibition; Quo Warranto.
Bastardy proceedings, see Bastards, §§ 35-92.
Condemnation proceedings, see Eminent Do-
main, §§ 169–263.
Establishment of boundaries, see Boundaries, §§
33, 36.
Review of final orders, see Appeal and Error,
§ 83.
SPECIAL VERDICT.
See Trial, §§ 350-359.
SPECIFICATION OF ERRORS.
In assignment of errors, see Appeal and Error,
§§ 732, 733.
In motion for new trial, see New Trial, § 128.
SPECIFIC PERFORMANCE.
I. NATURE AND GROUNDS OF REM-
EDY IN GENERAL.
Enforcement in name of principal of contract
made with agent, see Principal and Agent, §
183.
Review of discretion of court, see Appeal and
Error, § 941.
§ 8. Specific performance of a contract for
the sale of land rests largely in the discretion
of the court.-Furse v. Lambert (Neb.) 146.
17. One of several parties to whom an-
other contracted to convey land held not enti-
tled to enforce specific performance thereof to
himself alone.-Hammond v. Northwestern Con-
struction & Improvement Co. (N. D.) 838.
§ 22. If a person contracts to sell land, and
sells to another, the first person may compel the
purchaser to convey to him, providing the pur-
chaser was chargeable with notice.-Barney v.
Chamberlain (Neb.) 482.
II. CONTRACTS ENFORCEABLE.
§ 31. Certain telegrams between the owner
of real estate and certain brokers held not to
constitute a contract of sale of which the pros-
pective purchaser could enforce specific per-
formance.-Kinman v. Botts (Iowa) 773.
$ 43. Where the purchase:, under a parol
contract has been placed in possession, and has
made valuable improvements and paid part of
the price, the contract is taken out of the stat-
ute.-Mitchell v. Knudtson Land Co. (N. D.)
$49. A contract for a quitclaim deed of prop-
erty by the grantee of a purchaser of a void ju-
dicial sale held not to specify so small a consid-
eration that a court of equity would not enforce
it.-Barney v. Chamberlain (Neb.) 482.
§ 51. In an action for specific performance
of a contract, that a cash payment was small
and the land sold the only security for the de-
ferred payment held not to justify a denial of
specific performance in view of other matters.
-McCluskey v. Scott (Iowa) 796.
§ 51. An agreement to exchange lots held not
inequitable or unfair so as to prevent its spe-
cific enforcement.-Hunholz v. Helz (Wis.) 257.
§ 53. Under the rule that specific perform-
ance of a contract will be denied, where it
would be inequitable to compel performance,
held, that defendant will not be compelled to
specifically perform his contract with plaintiff
to exchange land.-Haack v. Scott (Iowa) 1068.
IV. PROCEEDINGS AND RELIEF.
§ 121. Specific performance will not be
granted unless a case is made out by clear and
satisfactory evidence.-Kinman v. Botts (Iowa)
773.
§ 128. In an action for specific performance,
where the refusal to perform appears, the court
may retain jurisdiction and award damages.-
Mitchell v. Knudtson Land Co. (N. D.) 946.
130. Upon decreeing specific performance
of a contract to exchange lots, defendant held
properly allowed taxes paid by him as stated.—
Hunholz v. Helz (Wis.) 257.
§ 134. Where plaintiff was ready, willing,
and able to carry out a contract to exchange
lots with defendant, and defendant refused to
perform, upon decreeing specific performance for
plaintiff, costs were properly awarded_against
defendant.-Hunholz v. Helz (Wis.) 257.
Of horses and vehicles on streets, see Municipal
Corporations, § 706.
SPIRITUOUS LIQUORS.
Regulation of manufacture and sale, see In-
toxicating Liquors.
Of instruments, see Alteration of Instruments.
STALE DEMANDS.
Laches in general, see Equity, § 71.
STARE DECISIS.
See Banks and Banking, §§ 2, 3, 85, 114, 142,
301.
Admissions, see Evidence, §§ 207, 292.
Annual statement of insurance companies, pen-
alty for failure to make, see Insurance, § 27.
By parties or other persons as part of res gestæ,
see Evidence, §§ 123, 127.
By witness inconsistent with testimony, see Wit-
Declarations, see Criminal Law, §§ 422, 424;
nesses, $ 383.
Evidence, 271.
Hearsay, see Evidence, § 317.
Of grounds for new trial, necessity for purpose
of review, see Appeal and Error, § 301.
Of loss under insurance policy, see Insurance, §
559.
Of mechanic's lien, see Mechanics' Liens, §§ 122,
132.
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