INDEX.

ACCORD AND SATISFACTION

ΤΟ

ACCORD AND SATISFACTION.

ACTIONS

Set-off: Part payment. Where a party concedes indebtedness to
the full extent of a claim against him, he cannot set off against
the same an alleged indebtedness to him growing out of an entirely
different matter, and upon payment of the balance claim full
settlement; but the creditor may retain the same and insist on
payment of the balance. Cartan v. Tackaberry Co., 586.

ACCOUNTING. See PARTNERSHIP.

ACQUIESCENCE. See BOUNDARIES.

ACTIONS.

Action to quiet title: Forum. An action to quiet title is an equi-
table one and should not be tried to a jury. Bradley v. Burk-
hart, 323.

Commencement of actions: Notice. Where two actions are in-

stituted on the same day between the same parties, the one in
which the notice is first served will be treated as commenced
first. Keller v. Harrison, 383.

Consolidation of actions. An action in ejectment should not be
consolidated with one to quiet title; but if otherwise refusal to
consolidate is so largely a matter of discretion that the order
will not be interfered with on appeal. Idem.

Transfer to equity. Where the decision of issues in an action of
ejectment would be decisive of those raised in a counterclaim,
asking that the title to disputed land be quieted, refusal to trans-
fer the cause to the equity calendar was not erroneous. Idem.
Certiorari: Who may institute proceedings. While it may be the
general rule that certiorari will not issue at the suit of one not

ACTIONS Continued

a party to the action in which the judgment or order sought
to be reviewed was entered, still if the petitioner was a party in
substance, though not in form, or if the matter to be reviewed
affects the public in general, or if the petitioner suffers an in-
jury peculiar to himself, he may invoke the remedy. Hemmer
v. Bonson, 210.

Same: Liquor nuisance: Review of decree. Any citizen may
bring an action to enjoin a liquor nuisance on behalf of the pub-
lic, but he has no power to consent to an unauthorized decree;
and having done so if he fails or refuses to ask its correction
any other citizen, designated by the statute as having a personal
interest in the conduct of the business where located, may have
the same reviewed under a writ of certiorari. Idem.

Same: Review of judgments: Construction. In reviewing a de-
cree upon certiorari the court will not consider the oral state-
ments of the respondent at the time of entering the decree, nor
the construction placed upon it by the parties, but will look en-
tirely to the decree itself and the pleadings upon which it is
based, and give it the construction which the usual significance
of the language employed requires. Idem.

Husband and wife: Limitations. Both at common law and under
the Revision of 1860, a wife had a right of action against her
husband for a debt due her, and the statute of limitations began
to run against same at the date of its maturity. Rice v. Crozier,
629.
Same. No person has a vested right in a particular remedy, pro-
vided an adequate remedy be given; so that if a wife had no
right of action against her husband for her separate property
prior to the Code of 1873, but was confined to presenting her
claim against his estate upon his death or insolvency, such right
of action became complete with the adoption of that Code and
the statute of limitations as against an existing claim was then
set in motion. Idem.

Misjoinder. Where the landowner and his tenant joined in an ac-
tion for injury to land and crops for certain years, by reason
of an insufficient opening through a railroad grade, to enjoin
the nuisance causing it and for a passageway under the tracks
of defendant, any objection that there was a misjoinder of
parties and causes of action was obviated by an assignment of
the tenant's claim to the landlord before trial, a dismissal of
the claim for an underground crossing, and judgment for dam-
ages only. Steber v. Ry. Co., 153.

AGENCY

ACTIONS Continued

Removal of causes.

ΤΟ

If the petition and bond for the removal of
a cause from the state to the federal court are sufficient, the
state court has no jurisdiction to try an issue arising thereunder
but the cause must be transferred. Wisecarver v. Ry. Co., 596.

Same: Identification of petitioner. Where an action is brought
against a properly designated railway company and the same com-
pany files a petition for removal of the cause to the federal
court, it is sufficient identification of the defendant in the main
action as the petitioner. Idem.

Same: Sufficiency of petition. To entitle a party to an order re-
moving his cause to the federal court he need only allege diverse
citizenship; he is not called upon to negative every defense which
may be made to the petition. Idem.

Towns: Capacity to sue and be sued. A civil township cannot
sue or be sued. Theulen v. Township of Viola, 61.

ADVERSE POSSESSION.

AGENCY.

See BOUNDARIES - REAL PROPERTY.

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Contract for agency: Specified territory: Breach. A contract of
agency for the sale of goods in certain territory which neither
in express terms nor by implication creates an exclusive agency,
although amounting to an agreement not to compete therein,
is not violated by a sale through another to a resident in such
territory; especially where the principal had no notice or know-
ledge that the goods were going into the agent's territory until
after the sale and delivery were complete. Auto & Supply Co.
v. Jeffrey & Co., 7.

Same: Rescission: Waiver. Assuming that an agent for the sale
of goods may repudiate his contract and refuse to accept and
pay for goods ordered, because of the principal's refusal to
manufacture and furnish new and improved types as agreed,
still it is his duty to disclose his intention to rescind promptly
when notified that the principal's promise will not be fulfilled;
and a tontinuance of the relation with such knowledge will
amount to a waiver of the objection. Idem.

Same: Partial payment: Recovery. The right to a return of a
partial payment for goods ordered is dependent upon the right
to abandon and refuse to carry out the contract of purchase;
as where plaintiff under an agency contract for the sale of de-

AGENCY Continued

fendant's automobiles in certain territory, made a cash deposit
with his order for a stated number, it stood in the relation of
a buyer who had paid a portion of the price in advance of de-
livery, and could not, except for good cause, refuse to consum-
mate the deal. Idem.

Brokers: Neglect of principal: Damages. Where one as a broker
negotiated a contract for the sale of goods subject to approval
of samples to be sent by the seller, which he failed to furnish,
there was not a completed contract and the broker cannot recover
damages for such failure. Cartan v. Tackaberry Co., 586.
Same: Implied agreement to pay commission. Where the owner
of premises knew, or is charged with knowledge, that a broker
is negotiating a sale of the same for his benefit and permits him
to go on and complete the transaction, there is an implied promise
to pay for the service; but in the instant case the evidence is
held insufficient to support a judgment for plaintiff notwithstand-
ing the verdict for defendant. Latta v. Lockman, 626.
Same: Evidence. Where there is an implied agreement to pay
a broker for his services, evidence of the expectation of either
party in regard thereto is immaterial. Idem.

Same: Conclusion. Refusal to permit the broker to testify to a
conversation with defendant relative to an offer for her property
is held erroneous, but without prejudice, as the conversation in-
quired about had been fully detailed. Idem.

Commissions: Joinder of causes of action: Parol agreement:
Evidence. Plaintiff suing for a commission for the sale of land
may allege a written contract in relation thereto in one count
and an oral agreement to the same effect in another, and he
may recover on either count which is sustained by the evidence;
and if he fails to show that the writing was concurred in so as
to make it a binding contract, still it is competent evidence of
the oral agreement, the parol evidence rule having no applica-
tion to such a state of facts. Hendrix v. Letourneau, 451.
Commission for sale of land: Right of recovery. Under a con-
tract to pay a commission for the sale of land providing for its
payment when the agent had made a written contract of sale for
the owner, or had produced a purchaser, ready, able and wil-
ling to buy on the terms specified, the right of the agent to re-
cover is not dependent upon his having closed the sale, where
he is relying for his recovery on the fact that he produced a
qualified purchaser. McDermott v. Mahoney, 292.