Perpetuities PERPETUITIES. 1158 125 (Or.) Conclusions require no denial.— 4(11) (Kan.) Devise to trustee for years, after which contingent interests to vest, void.-Kirkpatrick v. Kirkpatrick, 146. PHYSICIANS AND SURGEONS. 10 (Cal.App.) Statute relating to professional conduct of physicians and surgeons requires doctor to practice in own name.-Berry v. Alderson, 836. Denial that a certain sum had not been paid insufficient to raise issue.-Id. Denial as to one count in view of exception insufficient to raise, issue.-Id. (D) Matter in Avoidance. 136 (Wash.) Affirmative defense bank su11(3) (Cal.App.) Evidence held sufficient to sustain revocation of physician's license.-pervisor acted capriciously in levying assessment held covered by denial.-Duke v. Johnson, Berry v. Alderson, $36. 710. 13 (Mont.) Physician's guaranty that operation will be successful must be supported by a consideration.-Wilson v. Blair, 289. -Id. (E) Set-Off, Counterclaim, and Cross-Complaint. V. DEMURRER OR EXCEPTION. Physician's guaranty that operation will be successful, not made until patient agreed to pay149 (Or.) Relief may be obtained by one for operation, void for want of consideration. defendant against another.-Huson v. Portland & S. E. Ry. Co., 897. Evidence held to prove physician's warranty as to success of operation was made after patient had agreed to pay for operation.-Id. 14(3) (Mont.) Surgeon who agrees to per-193(1) (Wash.) Complaint, though ambigon different theories.-Greenwood v. Internaform operation does not guarantee results.- uous held not demurrable as being predicated tional Harvester Co., 727. Wilson v. Blair, 289. general demurrer independently of form of action.-Mac-193 (7) (Mont.) Complaint good as against prayer, if facts alleged entitle plaintiff to any relief.-O'Neill v. Montana Elevator Co., 222. 18(4) (Cal.App.) Complaint for malpractice held not to state cause of Keown v. Baldwin, 477. PLEADING. For pleadings in particular actions or proceed- 205(1) (Mont.) Complaint stating cause of action on any theory sustained on general demurrer.-Awbery v. Schmidt, 346. 205 (1) (Okl.) General demurrer should not be sustained when pleading states any facts entitling pleader to relief.--Good v. First Nat. I. FORM AND ALLEGATIONS IN GENERAL. Bank, 1051. 8(1) (Or.) Conclusions ineffective.-Pear-205(2) (Okl.) General demurrer to petition son v. Richards, 167. 17 (Colo.) Allegation that plaintiff "believes" certain matter properly stricken.-Hart v. Zaitz, 391. as not stating cause of action sustained only where petition considering all the facts alleged 205(4) (Kan.) Joinder of claim for servis insufficient.-Ross v. Breene, 417. 34(1) (Kan.) Pleading liberally construed ices with claim for injuries from negligence and sustained, although uncertain and indefi- held not to justify sustaining demurrer for inlee v. Hawley, 129. nite, where only attack is for insufficiency of sufficient statement of cause of action.-Hebrfacts.-Hebrlee v. Hawley, 129. contentions clearly 205 (5) (Cal.App.) Allegation that convey34(1) (Kan.) Where disclosed, merits considered regardless of tech-ance was made on wife's promise to reconvey and relied on such promise as against objection nical defects in pleadings.-Goldberg v. Mc-held sufficient averment that husband believed Naghten Inv. Co., 157. 34(1) (Okl.) When challenged by general by general demurrer.-Kohn v. Kempner, 805. burning of goods in transportation, though in demurrer, liberally construed in favor of plead-205(5) (Kan.) Petition for injury from er.-Ross v. Breene, 417. general terms held sufficient as against demur214(1) (Okl.) Demurrer admits truth of rer challenging facts.-Hebrlee v. Hawley, 129. allegations.-Ross v. Breene, 417. 34(1) (Okl.) When challenged by general demurrer, pleading liberally construed in favor of pleader. Good v. First Nat. Bank, 1051. 34 (6) (Or.) Entitled to every reasonable intendment after decree.-Heacock v. Loder, 950. Cross-complaint held sufficient after decree. -Id. pleadings for purpose of determining their legal 214(8) (Ariz.) Demurrer admits truth of effect.-Worsley v. Board of Sup'rs of Cochise County, 561. 216(2) (Okl.) It is error to sustain a de34(7) (Cal.App.) Denial of damages held murrer to a petition where, together with the sufficient when objected to on appeal. Shurtleff exhibits, it constitutes a cause of action.-Wood v. Chapman, 396. v. Marcus Land & Investment Co., 244. convey 216 (2) (Okl.) On general demurrer, alle34 (7) (Cal.App.) Allegation that ance was made on wife's promise to reconveygations construed with attached exhibits.-Ross held sufficient averment that husband believed v. Breene, 417. and relied on such promise as against objection on appeal.-Kohn v. Kempner, 805. 36(3) (Idaho) Affirmative allegation that VI. AMENDED AND SUPPLEMENTAL 236 (6) (Idaho) Not error to refuse amendment directly contradicting allegation of which party must have had knowledge when verified.— Webster-Soule Farm v. Woodmansee's Adm'r, 1090. 236 (6) (Kan.) Permitting amendment to petition during trial, discretionary.-Macy v. City of Rosedale, 131. (C) Traverses or Denials and Admissions. For cases in Dec.Dig. & Am.Dig. Key-No.Series & Indexes see same topic and KEY-NUMBER of discretion.-Senate Silver Mining Co. v. Hackberry Consol. Mining Co., 564. 236 (7) (Mont.) Refusal to permit amendment of answer at close of plaintiff's case held within discretion of trial court.-Dietz v. Rabe, 343. III. RIGHTS AND LIABILITIES AS TO THIRD PERSONS. (A) Powers of Agent. 101(4) (Cal.App.) Architect authorized to receive bids not authorized to contract.-Albert Steinfeld & Co. v. Broxholme, 473. Authority of architect stated.-Id. 238(3) (Colo.) Detial of leave to file amended answer on insufficient affidavits held not an abuse of discretion.-Andrew v. Benight-103(7) (Cal.App.) Possession of agent unLatcham Carpet Co., 378. 249 (1) (Kan.) Amended petition elaborating facts alleged in original petition held not to change nature of action.-Emerson v. Western Automobile Indemnity Ass'n, 622. der circumstances usually accompanying authority to sell gives apparent authority.-Carter v. Rowley, 267. 122(1) (Utah) Declarations of agent as to scope of authority held inadmissible in absence of other evidence of authority.-Booth v. Nelson, 985. 279(4) (Cal.App.) Relief held erroneous as based on supplemental complaint based on contract subsequent to commencement of action.-123(1) (Cal.App.) Evidence held not to Miles v. Bybee, 251. show authority to enter into contract.-Albert Steinfeld & Co. v. Broxholme, 473. No relief on supplemental complaint where plaintiff had no cause of action when original complaint was filed.-Id. XI. MOTIONS. 343 (Okl.) Judgment on pleadings not favored; judgment on pleadings.-Good v. First Nat. Bank, 1051. 345(1) (Okl.) Judgment on pleadings proper only where no cause of action or defense is stated and pleading not susceptible of amendment.-Good v. First Nat. Bank, 1051. Motion for judgment should not be sustained when pleading states any facts entitling pleader to relief.-Id. (C) Unauthorized and Wrongful Acts. 148(2) (Cal.App.) Statement to purchaser principal must sign transfer does not give notice agent had no authority to sell.-Carter v. Rowley, 267. PRINCIPAL AND SURETY. See Guaranty; Indemnity. 1. CREATION AND EXISTENCE OF RE LATION. (A) Between Individuals. 345(1) (Wash.) Whether stockholders at 6 (Mont.) Contract of "guaranty" distinmeeting owned controlling amount of stock guishable from one of "surety."-Emersonheld not admissible on motion for judgment on Brantingham Implement Co. v. Raugstad, 305. pleadings.-State v. La Vergne, 734. for 350 (3) (Okl.) Motion judgment pleadings admits all facts well pleaded by opposite party. Good v. First Nat. Bank, 1051. on 358 (Cal.) Allegations merely shadowing forth semblance of cause of action not sham and frivolous.-McClung v. Watt, 17. 362 (2) (Colo.) Should at least be based on information and belief.-Hart v. Zaitz, 391. XII. ISSUES, PROOF, AND VARIANCE. 376 (Cal.) Burden of proving payment on defendant under pleadings admitting original liability.-Janeway & Carpender v. Long Beach Paper & Paint Co., 6. XIII. DEFECTS AND OBJECTIONS, WAIV- 403 (4) (Utah) Omissions in complaint cured by answer.-Massachusetts Bonding & Insurance Co. v. Cudahy Packing Co., 706. PRACTICE. For practice in particular actions and proceedings, see the various specific topics. PRESCRIPTION. See Adverse Possession; Limitation of Actions. PRINCIPAL AND AGENT. See Attorney and Client; Brokers. I. THE RELATION. (A) Creation and Existence. 25(3) (Cal.App.) Rule that one receiving benefits of contract cannot question authority of agent construed.-Albert Steinfeld & Co. v. Broxholme, 473. II. MUTUAL RIGHTS, DUTIES, AND LIA BILITIES. (A) Execution of Agency. 60 (Colo.) Liability for failure to follow instructions stated.-Leven v. Lolcama, 870. II. NATURE AND EXTENT OF LIABILITY OF SURETY. 59 (Utah) Bond given to secure contract construed with contract.-M. H. Walker Realty Co. v. American Surety Co. of New York, 998. Intent of parties gathered from provisions of building and elevator contracts and bond. -Id. Contract construed in favor of voluntary surety without compensation.-Id. Contract construed against surety making insurance a business.-Id. III. DISCHARGE OF SURETY. 100(1) (Utah) Changes not injurious to surety did not release it.-M. H. Walker Realty Co. v. American Surety Co. of New York, 998. 100(4) (Utah) Change of contract, where provided for by surety's contract, does not release surety.-M. H. Walker Realty Co. v. American Surety Co. of New York, 998. 117 (Utah) Elevator contract, providing that no payments made thereunder were admission that contract had been complied with, construed as respects surety's rights.-M. H. Walker Realty Co. v. American Surety Co. of New York, 998. Payment for elevators after refusal of surety to consent not a discharge of surety.-Id. Surety bound to keep informed of financial condition of principal during continuance of work.-Id. IV. REMEDIES OF CREDITORS. 136 (Utah) Owner of building could enbuilding and elevator companies for installation force indemnity for breach of contract between and upkeep of elevators.-M. H. Walker Realty Co. v. American Surety Co. of New York, 998. Owner of building not deprived of right to enforce contract between elevator and building companies because of precaution taken to be expressly named in bond.-Id. PROCESS. VALIDITY. 79(5) (Colo.) Evidence held to sustain I. NATURE, ISSUANCE, REQUISITES, AND judgment for damages for agent's failure to obtain first mortgage on property.-Leven v. 35 (Or.) Published summons, stating relief Lolcama, 870. demanded in words of complaint, held sufficient ess PROHIBITION. See Intoxicating Liquors. I. NATURE AND GROUNDS. ~~3(1) (Ariz.) Adequate remedy held not to exist, where court wrongfully proceeding for contempt after termination of cause.-Van Dyke v. Superior Court of Gila County, 576. Farm 54(3)(Idaho) Purchase under agreement to evade constitutional limitation of school. lands invalid.-Webster-Soule Farm v. Woodmansee's Adm'r., 1090. (I) Proceedings in Land Office. 106(1) (Mont.) Circulars and decisions of Land Department, though not binding on courts in construction of public land statutes, are entitled to consideration.-Montana Manganese Co. v. Ringeling, 333. (J) Patents. 110 (Cal.App.) Vested right to patent held equivalent to patent issued.-Davis v. Fell, 30. (M) Conveyances, Contracts, and Exemptions. 135(4) (Idaho) Purchaser not prohibited from selling interest to one already owning acreage limited by Constitution.-WebsterSoule Farm v. Woodmansee's Adm'r., 1090. 3(2) (Wash.) Writ issues where court PUBLIC SERVICE COMMISSIONS. lacks inherent jurisdiction though appeal lies.19(1) (Wash.) Department of Public Works -State v. Superior Court of Cowlitz County, has no discretion to reopen final order after 764. 4 (Ariz.) When issuance of writ is dis- claim has become barred.-Northern Pac. Ry. cretionary.-Van Dyke v. Superior Court of Co. v. Department of Public Works, 876. Gila County, 576. 28 (Wash.) Order reopening cause is re10(1) (Colo.) Writ may issue from Su-viewable final order.-Northern Pac. Ry. Co. v. preme Court only to correct excess of jurisdic- Department of Public Works, 876. tion.-People v. Morley, 643. 10(1) (Wash.) Writ not issued, where question is whether court acquired jurisdiction. State v. Superior Court of Cowlitz County, 764. 10(2) (Ariz.) Jurisdiction of contempt proceeding not lost by requiring contemnors to file sworn answers.-Van Dyke v. Superior Court of Gila County, 576. 1 (Ariz.) Writ not ordinarily used as process for review and correction of errors.-Van Dyke v. Superior Court of Gila County, 576. Mere errors, irregularities, or mistakes do not justify resort to writ.-Id. II. JURISDICTION, PROCEEDINGS, AND RELIEF. 28 (Colo.) Disobedience of judgment not a question in proceeding for prohibition to prevent punishment for such disobedience.-People v. Morley, 643. 29 (Colo.) Not assumed that court will punish relators for contempt, if innocent.-People v. Morley, 643. PROMISSORY NOTES. See Bills and Notes. PROPERTY. 4 (Cal.) Water used in irrigation is not personal property.-Fawkes v. Reynolds, 449. PUBLIC LANDS. See Mines and Minerals, II. SURVEY AND DISPOSAL OF LANDS OF (B) Entries, Sales, and Possessory Rights. Where mining claim was conveyed to General Land Office employé, who conveyed to third party, he acquired no right, conveyance to Land Office employé being invalid.-Id. (E) School and University Lands. 54(1) (Idaho) Original purchaser of school lands cannot call for more acreage than limited 30 (Okl.) Appeal from the Corporation Commission to Supreme Court must be by petition in error.-In re Quinton Relief Oil & Gas Co., 493. PUBLIC SERVICE CORPORATIONS. For cases in Dec.Dig. & Am.Dig. Key-No.Series & Indexes see same topic and KEY-NUMBER (H) Injuries to Animals on or near Tracks. | agreement on ground of either mistake or 411(1) (Ariz.) Obligation to fence implied. fraud.—Hazard v. Warner, 732. -Payne v. Clifford, 566. 411(1) (Okl.) Fence required.-New v. Elliott, 1025. 411(3) (Ariz.) Negligence basis of action under statute for killing stock.-Payne v. Clifford, 566. 411(3) (Okl.) Company liable for injury to stock on unfenced right of way, regardless of negligence.-New v. Elliott, 1025. 411(5) (Ariz.) Negligence basis of recovery for injuring live stock where fencing is not required.-Payne v. Clifford, 566. 411(18) (Ariz.) No action lies under fencing statute for killing stock at highway crossing.-Payne v. Clifford, 566. 439(3) (Ariz.) Complaint under fencing statute for killing live stock held sufficient. Payne v. Clifford, 566. RAPE. 1. OFFENSES AND RESPONSIBILITY 7 (Or.) Slight penetration sufficient on nine year old child.-State v. Chase, 920. II. PROSECUTION AND PUNISHMENT. 34 (5) (Okl.Cr.App.) Physical acts constituting assault with intent to rape should be pleaded in information.-Haun v. State, 1060. REAL ACTIONS. See Forcible Entry and Detainer; Quieting Title. sustain II. PROCEEDINGS AND RELIEF. 45(7) (Nev.) Evidence held to court's finding deed did not conform to oral agreement.-Wainwright v. Dunseath, 1104. Evidence held to sustain finding of mistake by plaintiff and unconscionable conduct by defendant.-Id. 45(15) (Or.) Evidence held to show only three-fifths, not whole, of crop intended to be transferred.-De Wolfe v. Kupers, 927. REPLEVIN. 1. RIGHT OF ACTION AND DEFENSES. (Okl.) Gist of the action stated.-Chadwell v. Brown, 410. 8(5) (Mont.) Plaintiff's right to possession of chattel must be exclusive.-Agricultural Credit Co. v. O'Rourke, 200. Co-owner's mortgagee's assignee, whose only claim to possession was under mortgage, cannot bring replevin for possession.-Id. IV. PLEADING AND EVIDENCE. 67 (Mont.) Insufficiency of complaint because of affirmative showing that plaintiff could not bring action not waived by defendant's failure to demur specially.-Agricultural Credit Co. v. O'Rourke, 200. 72 (Okl.) Evidence held sufficient to show conversion by defendants of property prior to action.-Chadwell v. Brown, 410. VI. TRIAL, JUDGMENT, ENFORCEMENT OF JUDGMENT, AND REVIEW. 85 (Utah.) Extent of jurisdiction of court after seizure, where no complaint filed, stated. III. TITLE TO AND POSSESSION OF PROP--Bankers' Commercial Sec. Co. v. District Court of Box Elder County, 187. RECEIVERS. ERTY. 72 (Utah) Must bring action for property claimed; court cannot order delivery to them. -Keyser v. Erickson, 698. RETROSPECTIVE LAWS. REVENUE. 77 (4) (Colo.) Receiver held not entitled to See Statutes, 263. possession of securities pledged by insolvent. -Hendrie & Bolthoff Mfg. & Supply Co. v. Beck, 365. VI. ACTIONS. See Taxation. REVIEW. 182 (Utah) Receiver seeking restraining order must give bond as others.-Keyser v. See Appeal and Error; Certiorari. Erickson, 698. RECEIVING STOLEN GOODS. 4 (Okl.Cr.App.) Continuation of asportation of stolen property by accused does not constitute him receiver of stolen property.— Shacklett v. State, 1063. RECORDS. REVIVAL. See Abatement and Revival, ~71. RIPARIAN RIGHTS. See Waters and Water Courses, 35-42. See Appeal and Error, 502-704; Criminal See Highways. REFERENCE. See Arbitration and Award. REFORMATION OF INSTRUMENTS. I. RIGHT OF ACTION AND DEFENSES. 16 (Wash.) Seller held entitled to reformation of written contract to conform to oral agreement. Hazard v. Warner, 732. 17(2) (Idaho) Equity will reform instrument to conform with intention of parties clearly appearing.-Barnhardt v. Hansen, 438. 18 (Wash.) Mistake of law defeating parties' intentions should be corrected.-Hazard v. Warner, 732. 20 (Nev.) Failure to correct known mistake of grantor is unconscionable conduct. Wainwright v. Dunseath, 1104. 20 (Wash.) Seller held entitled to reformation of written contract to conform to oral ROADS. ROBBERY. 8 (Cal.App.) "Robbery" and "extortion" distinguished.-People v. Anderson, 254. 14 (Cal.App.) Return of property held not to relieve act of criminality.-People v. Anderson, 254. 15 (Cal.App.) Conspirator may be guilty of conspiracy to rob although not actually present and participating.-People v. Anderson, 254. 24(1) (Cal.App.) Evidence held to sustain conviction.-People v. Anderson, 254. 24(1) (Okl.Ĉr.App.) Evidence held insufficient to sustain conviction.-Weaver v. State, 1062. 24 (3) (Okl.Cr.App.) Evidence held sufficient to sustain a conviction of assault with intent to rob.-Bates v. State, 438. 26 (Cal.App.) Instruction authorizing conviction of defendant's wife as a conspirator held not erroneous as not based on evidence.People v. Anderson, 254. Sales SALES. 1162 288(1) (Utah) Warranty in contract to purchase tractor held waived.-Anglo-California See Taxation, ~686–689; Vendor and Pur- Trust Co. v. Hall, 991. chaser. I. REQUISITES AND VALIDITY OF CON- owner 288(6) (Utah) Building did not waive right of action for breach of warranty in elevator contract by accepting elevators with 1(4) (Okl.) Accepted order for purchase knowledge of their defects.-M. H. Walker Reof coal held enforceable contract.-Southwest-alty Co. v. American Surety Co. of New York, 998. purchase ern Coal Co. v. Gunn, 398. 7 (Mont.) Primary test as to character of contract is the intention of the parties.-Butte price held not to waive breach of warranty.— Greenwood v. International Harvester Co., 727. Floral Co. v. Reed, 325. 17 (Utah) Facts held to show sale by plaintiffs' intestate and not by corporation.Wall v. Eccles, 702. 288 (6) (Wash.) Payment of VII. REMEDIES OF SELLER. 38(3) (Cal.App.) Whether representations are expressions of opinion depends on facts.-353 (4) (Cal.) Hall v. Mitchell, 853. 38 (7) (Colo.) That false fact representations may furnish ground for rescission they must have induced the sale.-Parks v. Bucy, 638. 38 (9) (Cal.App.) Misrepresentations not harmful not grounds for action to rescind contract.-Hall v. Mitchell, 853. 52(5) (Mont.) Evidence held to prove defendant sold truck to plaintiff and was not plaintiff's agent in purchasing from third person.-Butte Floral Co. v. Reed, 325. II. CONSTRUCTION OF CONTRACT. held divisible.62 (Wash.) Contract Greenwood v. International Harvester Co., 727. III. MODIFICATION OR RESCISSION OF (A) By Agreement of Parties. 93 (Cal.App.) Evidence held to show abandonment of written contract.-Shimizu v. Nojiri, 40. (C) Rescission by Buyer. 120 (Wash.) Action for rescission held maintainable irrespective of fraud.-Greenwood v. International Harvester Co., 727. 130(2) (Cal.App.) No particular phraseology necessary in allegation of intent to deceive. Hall v. Mitchell, 853. to charge defendant as buyer for specified value if 358 (4) (Cal.App.) Evidence of net returns VIII. REMEDIES OF BUYER. (A) Recovery of Price. 390 (Mont.) Buyer on breach of warranty could either rescind contract and sue for purchase price or retain property and sue for breach of warranty.-Butte Floral Co. v. Reed, 325. (C) Actions for Breach of Contract. 418(2) (Idaho) Measure of damages for breach of contract to deliver hay stated.-Snook v. Olinger, 559. for nondelivery 418(2) (Okl.) Damages difference between contract and market price when breach occurs.-Southwestern Coal Co. V. Gunn, 398. 418(7) (Idaho) Cost of securing another place to feed hay purchased as substitute for hay undelivered by breach of contract, element of damages.-Snook v. Olinger, 559. of 130(312) (Cal.App.) Finding that defend-421 (Okl.) Instructions ant "made untrue statements" held insufficient damages for seller's breach held erroneous and to enable court to determine whether reliance incomplete.-Southwestern Coal Co. v. Gunn, 398. thereon was warranted.-Hall v. Mitchell, 853. on measure Findings that representations were knowing- (D) Actions and Counterclaims for Breach ly false and intended to deceive necessary to warrant annulment of contract.-Id. of Warranty, Specific finding of damage necessary to war-441(2) (Mont.) Evidence held to prove that seller warranted truck to be a two-ton rant award.-Id. truck and to be in first-class condition.-Butte Floral Co. v. Reed, 325. IV. PERFORMANCE OF CONTRACT. held to prove 441(3) (Mont.) Evidence breach of warranty as to capacity and condition of truck.-Butte Floral Co. v. Reed, 325. con-441 (4) (Idaho) Evidence held insufficient to support verdict for plaintiff, in action for breach of warranty of seed wheat.-Nelson v. Intermountain Farmers' Equity, 550. 191 (Cal.) Acceptance of trade acceptances necessary for payment under option in tract.-Janeway & Carpender v. Long Beach Paper & Paint Co., 6. VI. WARRANTIES. or 255 (Wash.) Warranty disclaimer of warranty of personal property does not operate for or against purchaser's assignee.-Jolly v. C. E. Blackwell & Co., 748. Purchaser of seed without warranty cannot assert such absence of warranty against his vendee.-Id. 260 (Mont.) That article was known to be secondhand does not prevent express warranty. -Butte Floral Co. v. Reed, 325. or <264 (Wash.) Goods sold by name scription impliedly warranted true to name.Jolly v. C. E. Blackwell & Co., 748. de 266 (Cal.App.) Conditional agreement to sell does not imply warranty.--Silverthorne v. Simon, 26. 442(6, 7) (Mont.) Cost of body placed by buyer on truck held recoverable as special damages for breach of warranty as to condition of truck.-Butte Floral Co. v. Reed, 325. Expenditures by buyer in attempting to use truck recoverable in action for breach of warranty as to its fitness for such use.-Id. 442(12) (Mont.) Elements to be considered in proving damages for failure of title to building sold as personal property stated.— Lewis v. Lambros, 212. |