페이지 이미지
PDF
ePub

$185 (Tex.Civ.App.) In an action for commissions for the sale of cattle, evidence held to show that the possession of a letter evidencing the contract was wrongfully obtained by defendant, thus rendering secondary evidence of the contents thereof admissible without notice to defendant to produce the original.-Prieto v. Hunt, 167 S. W. 4.

VII. ADMISSIONS.

(A) Nature, Form, and Incidents in General.

$200 (Mo.) Testimony of the mother of a boy struck by an automobile that the driver "told me he would do all in his power to help me, and be responsible for all debts in the case,' properly stricken out, as the declaration was merely an offer to pay the costs of treatment.Winter v. Van Blarcom, 167 S. W. 498.

was

$213 (Mo.App.) Statements of the insurer's adjuster that they could give the insured only 50 cents on the dollar were not inadmissible where they were not in an effort to compromise, but in an interview looking to the adjustment of the loss, preparatory to making the necessary proofs, and prior to the bringing of suit.Lehmann v. Hartford Fire Ins. Co., 167 S. W. 1047.

$219 (Tex.Civ.App.) In a personal injury action prosecuted to a conclusion by attorneys, assignees of one-half interest therein, after their client had compromised, evidence of the compromise with the client is admissible as tending, unexplained, to show an admission of negligence upon the part of the railway.-St. Louis, S. F. & T. Ry. Co. v. Thomas, 167 S. W. 784.

(C) By Grantors, Former Owners, or

ies.

§ 236 (Ark.) In action under the federal Employers' Liability Act, statements of deceased employé as to the cause of the injury held not admissible upon the issue as to the right to recover damages to the widow and child from the death; there being no privity.-Kansas City Southern Ry. Co. v. Leslie, 167 S. W. 83.

VIII. DECLARATIONS.

(A) Nature, Form, and Incidents in Gen

eral.

the conference may testify that the machinery was ordered for the firm; the matter being within his own knowledge and not hearsay.Owens v. First State Bank of Bronte, 167 S. W. 798.

§ 219 (Tex.Civ.App.) In an action for fraudulent misrepresentations, testimony of a witness for the plaintiff that defendant had induced-Lester v. Hutson, 167 S. W. 321.

him to leave the state in order to prevent his testifying was admissible.-Loftus v. Sturgis, 167 S. W. 14.

$ 273 (Tex.Civ.App.) A statement of a husband prior to the incurring of a debt that certain personal property belonged to his wife was admissible in a contest between the creditor and the wife to determine the ownership of the property.-Wofford v. Lane, 167 S. W. 180.

§ 318 (Ky.) In an action against a corporation by a director for compensation for services, that part of a letter to the corporation by its counsel which placed an estimate on the cost of the services was not admissible.-Paine v. Kentucky Refining Co., 167 S. W. 375.

X. DOCUMENTARY EVIDENCE. (B) Exemplifications, Transcripts,

IX. HEARSAY.

$314 (Tex.Civ.App.) Where the members of a firm, at a conference, agreed that one partner

and

Certified Copies.

§ 348 (Tex.Civ.App.) The opinion of the Supreme Court of a sister state, not published as an opinion of the court, is admissible in evidence only as a record and judicial proceeding of the Supreme Court, and must be authenticated as prescribed by Rev. St. U. S. § 905 (U. S. Comp. St. 1901, p. 677).-Whited v. Johnson, 167 S. W. 812.

(D) Production, Authentication, and Ef

fect.

§ 368 (Tex.Civ.App.) Where an original letter was in the hands of the addressee, notice to defendant who had no right or control thereof was insufficient to obtain it for use at the trial.

XI. PAROL OR EXTRINSIC EVI-
DENCE AFFECTING WRITINGS.

§ 425 (Tex.Civ.App.) In an action for the purchase price of coal furnished a party havPriv-hotel, where the question was whether such ing charge of the heating and lighting of a purchaser was an independent contractor or the agent of the hotel proprietor, the purchaser may testify that a note given by him in connection with his business was really the obligation of the proprietor, and that it was understood the proprietor should discharge it, without violating the parol evidence rule.Kohlberg v. Awbrey & Semple, 167 S. W. 828.

(A) Contradicting, Varying, or Adding to Terms of Written Instrument.

§ 390 (Mo.) Where a deed has been delivered, it henceforth speaks for itself, unaffected by any conditions or limitations not written thereon.-Miles v. Robertson, 167 S. W. 1000.

§ 427 (Tex. Civ.App.) In an action prosecuted by attorneys, assignees of one-half the cause of action, after their client had compromised, where the written contract between the client and the attorneys expressed only the agree ment to pay one-half the recovery and not the fact of the assignment, the client was properly permitted to testify to a conversation with defendant's agent at the time of the compromise. in which he told the agent of the interest of the attorneys; it not varying the written contract. St. Louis, S. F. & T. Řy. Co. v. Thomas, 167 S. W. 784.

(C) Separate or Subsequent Oral Agreement.

§ 273 (Tex.Civ.App.) In an action in the nature of trespass to try title, where the issue was whether the possession of plaintiff's intestate was that of owner or tenant, the fact of his possession and claim of ownership and his declarations with reference to improvements, to his effort to borrow money on security of the land, though self-serving and hearsay, held admissi-sentation by the person taking the subscription ble.-Lester v. Hutson, 167 S. W. 321. shall annul the contract, unless reduced to writHis declarations as to his purchase, the bal-ing, may not, in the absence of fraud, accident, ance due, etc., were not admissible to show an equitable title.-Id.

scription contract which recites that no repre§ 441 (Tex.Civ.App.) One signing a stock sub

or mistake, show by parol an agreement not embodied in the contract.-Cattlemen's Trust Co.

v. Beck, 167 S. W. 753.

In an action to recover an interest in land, self-serving and hearsay declarations of plaintiff's intestate contained in a letter to a third person held incompetent as against the defendant.-Id.

§ 442 (Tex.Civ.App.) Where a contract of sale was made by correspondence, a letter from the seller containing a warranty must be considered in determining the contract, though the buyer's letter ordering the goods was subsequently written.-A. S. Cameron Steam Pump Works v. Lubbock Light & Ice Co., 167 S.

(D) Construction or Application of Lan-
guage of Written Instrument.
$450 (Mo.App.) Where a contract for the
transfer of a railroad right of way obligated
the railroad company to construct its embank-
ment along a creek above high-water mark,
plaintiff was entitled to show high-water mark
by the marks on certain trees on which the
mark appeared; the term, as used in the con-
tract, not being limited to the point at which
high water extended when no freshets occurred.
-Coffman v. Saline Valley R. Co., 167 S. W.
1053.

[blocks in formation]

as to their condition.-International & G. N. Ry. Co. v. Sharpe, 167 S. W. 814.

§ 501 (Mo.) The opinion of a nonexpert as to the mental capacity of one to execute a deed is admissible only in connection with the facts which the opinion is based.-Lee v. Lee, 167 S. W. 1030.

on

[blocks in formation]

EXAMINATION.

EXCEPTIONS.

§ 501 (Tex.Civ.App.) Where, in an action up- See Evidence, § 553; Witnesses, §§ 255-270. on a benefit certificate, defendant had shown that insured had had an attack of malaria, contradicting her statement to the contrary in her application, plaintiff, her husband, was prop- See Appeal and Error, § 267; Pleading, §§ 193erly permitted to testify that, in his opinion, she recovered in a few days; he stating the facts upon which the opinion was based.-Modern Brotherhood of America v. Jordan, 167 S. See Appeal and Error, § 305; Criminal Law,

214.

EXCEPTIONS, BILL OF.

W. 794.

$$ 695, 1090, 1091, 1092, 1111, 1120; Trial, §§ 84, 279.

(B) Subjects of Expert Testimony.

IN GENERAL.

8505 (Tex.Civ.App.) In an action by a shipper for injuries to two horses due to alleged I. NATURE, FORM, AND CONTENTS rough handling, a railroad man who had handled many similar shipments was properly permitted to testify whether the horses were in a condition that horses would be in if properly transported, witness having testified in detail

§8 (Tex.Civ.App.) Bills of exceptions complaining of the admission of testimony, not showing what testimony was objected to, were too indefinite to be considered.-Stone & Web

ster Engineering Corporation v. Goodman, 167 | IV. COLLECTION AND MANAGEMENT S. W. 10. OF ESTATE.

$13 (Tex.Civ.App.) A bill of exception to evidence not separating the inadmissible from the admissible evidence will be overruled.-Lester v. Hutson, 167 S. W. 321.

II. SETTLEMENT. SIGNING, AND

FILING.

§ 43 (Mo.App.) Under Laws 1911, p. 139, it was not a valid objection to a bill of exceptions that it was not filed within the time granted by the trial court, where it was filed before ap--Id. pellant was required to serve its abstract of record. Spaulding v. Missouri Lumber & Mining Co., 167 S. W. 663.

§ 54 (Tex.Civ.App.) Under Rev. St. 1911, art. 2067, relating to the bystanders' bill of exceptions, the bill must be prepared, sworn to, and filed at the time of the occurrence of the matters to which it relates.-Kenedy Mercantile Co. v. Western Union Telegraph Co., 167 S. W. 1094.

EXCESSIVE DAMAGES. See Damages, §§ 132, 138.

EXCHANGE OF PROPERTY.

See Frauds, Statute of, §§ 110, 116.

88 (Tex.Civ.App.) Where an exchange of land was made without reference to the number of acres the land contained, and the value received by each was about equal, a recovery for shortage cannot be had.-Barnum v. Howard, 167 S. W. 745.

EXCLAMATIONS.

See Evidence, § 127.

EXECUTION.

See Courts, § 480; Deeds, & 45; Fraudulent Conveyances, § 237; Judicial Sales; Wills, $ 120.

VII. SALE.

(A) Manner, Conduct, Validity, and

firming or Vacating.

216 (Ky.) Under Civ. Code Prac. § 667, a jailer has no authority to sell land under an execution issued to the sheriff, and a deed made pursuant thereto is void.-Parsons v. Dills, 167 S. W. 415.

§ 256 (Mo.) Where an execution debtor was present at the sale, in the hope that, by an arrangement with defendant, the successful bidder, the property could be made to yield nothing for his creditors, and the successful bidder at the sale was there to assist him, equity would not at the debtor's suit set aside the sale. Ferguson v. Robinson, 167 S. W. 447.

(B) Title and Rights of Purchaser. § 271 (Tex.Civ.App.) A purchaser at an execution sale has a superior title to the heirs of a grantee who claim under a prior unrecorded deed.-Gosch v. Vrana, 167 S. W. 757.

(A) In General.

$111 (Mo.App.) The court, on final settlement of an administrator, may allow reasonable attorney's fees for services rendered the estate. -In re Whitlow's Estate, 167 S. W. 463.

An administrator cannot, as a general rule, be allowed counsel fees for services in defense of his own personal interest, or where the litigation is in reality between the beneficiaries and not for the benefit of the estate as a whole.

EXECUTORS AND ADMINIS-
TRATORS.

See Courts, 88 155, 198; Descent and Distribu-
tion; Evidence, $$ 580, 581; Limitation of
Actions, §§ 22, 102; Partnership, &$ 251, 252;
Trusts; Wills; Witnesses, §§ 140, 159, 178.

II. APPOINTMENT, QUALIFICATION, AND TENURE.

§ 29 (Mo.App.) One acting as administrator under a valid appointment, good until set aside, has a qualified title to the assets, and he holds the property as trustee for those entitled to share therein.-In re Whitlow's Estate, 167 S.

(B) Presentation and Allowance.

§ 223 (Ark.) Act May 10, 1911 (Laws 1911, p. 256), providing a new period of limitation for the foreclosure of mortgages and deeds of trust, does not revive the right to foreclose a mortgage given by a decedent which was barred by the statute of nonclaim before its enactment. Con--Hicks v. Hicks, 167 S. W. 95.

The court on final settlement of an administrator should, in determining the question of allowance of counsel fees, distinguish between counsel fees chargeable against the estate and those for which the administrator is personally liable.-Id.

(B) Real Property and Interests Therein.

§ 131 (Ark.) Where a lease by an executor of property devised by a will was ratified by the devisees, the devisees, and not the executor, are entitled to collect the rents if they are not necessary to pay debts.-Phillips v. Grubbs, 167 S. W. 101.

§ 150 (Ark.) Where an executor assuming to act as agent for the beneficiaries, made a fiveyear lease of property belonging to the estate, the acceptance by the beneficiaries of rents under the lease was a ratification of the lease if it was not previously authorized by them.— Phillips v. Grubbs, 167 S. W. 101.

VI. ALLOWANCE AND PAYMENT OF CLAIMS.

VII. DISTRIBUTION OF ESTATE. $314 (Ky.) Where testatrix directed a sale of real estate to pay all indebtedness her son owed her daughter-in-law, and provided for the disposition of the surplus, the daughter-in-law was but a legatee, and she could sue, under Ky. St. § 3860, within 9 months after the administrator had qualified, and her cause of action did not depend on a sale of the real estate by the administrator of testatrix.-Baugh's Adm'x v. Baugh's Adm'r, 167 S. W. 124.

VIII. SALES AND CONVEYANCES UNDER ORDER OF COURT. (B) Application and Order.

§ 333 (Mo.) Where an order for the adminis published and once renewed, the entry of an trator's sale of real property had been duly order of sale at a subsequent term which recited that the previous order of publication had been duly published amounted to a second renewal of the order of sale, and no application or order of publication was necessary.-Hicks v. Watson, 167 S. W. 533.

§ 346 (Mo.) Where a deed to a portion of the premises had been given under a prior order of sale, a subsequent order for the sale of the entire tract which made no reference to the former sale is good as to the land which had not been previously sold.-Hicks v. Watson, 167 S. W. 533.

§ 349 (Mo.) A recital, in an order for the sale of real property, that the order of publication had been duly published is presumed to be true, in the absence of a showing to the contrary.

(C) Sale.

§ 360 (Tex.Civ.App.) Under Acts 12th Leg. c. 81, $250, providing that if the administrator shall fail to sell realty, ordered to be sold, at the time specified in the order, he shall report the facts to the court or judge, who may appoint See Brokers. another day for the sale, and so on from time to time until the property is sold, an order postponing an administrator's sale was valid though made in vacation.-Vineyard v. Heard, 167 S. See Homicide, & 55; Malicious Prosecution. W. 22.

FALSE IMPRISONMENT.

$362 (Mo.) An order of publication for an administrator's sale of real property, published in 1864, which notified all persons interested the estate of the facts required by Rev. St. 1855, c. 22, art. 3, § 25, was sufficient notification to the heirs under the law then existing.Hicks v. Watson, 167 S. W. 533.

8376 (Tex.Civ.App.) Heirs who received the full benefit of the proceeds of a sale of property by an administrator are estopped to deny the validity of the sale.-Vineyard v. Heard, 167 S. W. 22.

X. ACTIONS.

$ 453 (Ky.) Where the vendors brought suit on a note for the price, in which the payee of the note joined as party plaintiff, and pending the appeal one of the vendors died, and the payee was substituted as his administrator, a judgment for the purchaser for amount due because of a deficiency in the quantity should be rendered against the payee only as administrator.-Rust v. Carpenter, 167 S. W. 873.

XI. ACCOUNTING AND SETTLEMENT. (C) Charges and Credits.

§ 482 (Mo.App.) The court, on the final settlement of an administrator, properly refused a credit taken by him for the premium paid on his bond as administrator.-In re Whitlow's Estate, 167 S. W. 463.

(E) Stating, Settling, Opening, and Re

EXPERT TESTIMONY.

EXPLOSIVES.

See Evidence, §§ 505-553.

See Fish; Statutes, § 1102.

FACTORS.

FEDERAL LIABILITY ACT.

§ 384 (Mo.) Where the record of entry approving the report of sale by an administrator See Death, § 95. does not show to whom the sale was made or describe the land, but a deed was made conveying the land which could have been sold, it will be presumed that the report showed that See Master and Servant, §§ 177, 189, 279, 311.

FELLOW SERVANTS.

the grantee purchased the land which was conveyed to her.-Hicks v. Watson, 167 S. W. 533.

See Courts, § 366.

FINAL JUDGMENT.

FINDINGS.

§ 388 (Tex.Civ.App.) A sale of land by an ad- See Appeal and Error, §§ 70-84. ministrator of a wife, who was also executor of the husband, was valid, and conveyed the interest of both the husband and wife, where part of the money received from the sale was See Appeal and Error, §§ 997-1011. used in paying community debts and the children accepted the proceeds of the property.Vineyard v. Heard, 167 S. W. 22.

FIRES.

FEDERAL COURTS.

FEDERAL EMPLOYERS' LIABILITY

ACT.

See Evidence, § 236; Master and Servant, 88 204, 228; Removal of Causes, § 3; Trial, § 48.

§ 511 (Mo.App.) Where, on final settlement of an administrator, the principal question litigated involved the distribution of assets re- See Rape. maining in his hands, and on the facts dis

closed the objector to the settlement was enti

tled to all thereof, the administrator was not entitled to counsel fees for defending the settlement. In re Whitlow's Estate, 167 S. W. 463.

See Damages, § 112; Railroads, §§ 480, 485;
Trial, § 84.

FISH.

$13 (Mo.) That the offense of using explosives and poisons to kill fish is defined as a felony under Rev. St. 1909, §§ 6538, 6546, does

not render such sections in conflict with section 6537 in the same article, defining the use of explosives in waters without permission as a misdemeanor; the offenses being distinct.State v. Hurley, 167 S. W. 965.

view.

$510 (Mo.App.) A credit allowed by the probate court on final settlement of an admin-moval of a fixture from land which had revert$35 (Ark.) Evidence, in an action for the reistrator for moneys advanced to the estate ed to the grantor, held to sustain a verdict for must be presumed to be proper, in the absence $200.-St. Louis Southwestern Ry. Co. v. Curof any evidence to the contrary.-In re Whit- tis, 167 S. W. 489. low's Estate, 167 S. W. 463.

FORCIBLE DEFILEMENT.

FIXTURES.

§ 21 (Ark.) Under a deed of land to a rail road for the erection and maintenance of a section house thereon, on condition that when it ceased to be used as such it should revert, a section house erected thereon and used as such held a fixture reverting with the land.St. Louis Southwestern Ry. Co. v. Curtis, 167 S. W. 489.

EXEMPTIONS.

FORECLOSURE.

See Charities, & 45; Fraudulent Conveyances, § See Chattel Mortgages, §§ 287, 290; Mechanics' 52; Homestead; Taxation, § 242. Liens, 277, 415-587.

FORCIBLE ENTRY AND DETAINER.

See Judgment, §§ 408, 451; Landlord and Tenant, § 290.

FOREIGN CORPORATIONS.

See Corporations, §§ 636–666.

FOREIGN RECEIVERSHIP.

See Receivers, § 210.

FORFEITURES.

See Insurance, §§ 146, 322-335, 558, 726, 748756; Landlord and Tenant, §§ 108, 291.

FORGERY.

See Carriers, § 57; Deeds, § 45.

FORMER ADJUDICATION.

See Judgment, §§ 565-717.

FORMER JEOPARDY.

See Criminal Law, §§ 169-200.

FORNICATION.

See Prostitution.

FRAUD.

See Bills and Notes, §§ 494, 497; Deeds, §§ 70, 196, 211; Dower, § 44; Election of Remedies, $3; Equity, § 39; Evidence, §§ 135, 219, 441, 471; Frauds, Statute of; Husband and Wife, 86; Insurance, §§ 553, 645, 818; Judgment, § 143; Limitation of Actions, §§ 33, 91, 99; Mortgages, $84; Pleading, 88; Sales, 88 40, 97, 126, 404; Vendor and Purchaser, $93, 108; Wills, §§ 155, 163; Witnesses, $ 414.

I. DECEPTION CONSTITUTING FRAUD, AND LIABILITY THEREFOR.

$27 (Tex.Civ.App.) Fraudulent misrepresentations by the vendor that there was upon the land a well containing 10 to 12 feet of water justify a recovery by the vendee of the damages arising therefrom.-Kallison v. Poland, 167 S.

W. 1104.

II. ACTIONS.
(C) Evidence.

§ 53 (Tex.Civ.App.) In an action for fraudulent misrepresentations as to the receipts from theaters which plaintiffs leased from defendants, testimony by plaintiffs' manager that he had quit plaintiffs' employ because of the improper management by plaintiffs held material on the issue of the truth of the representations. -Loftus v. Sturgis, 167 S. W. 14.

Testimony by a witness for defendant that the statements by defendant as to the expense of conducting such theaters were correct held material.-Id.

Testimony of such witness that the statements of defendant as to the expenses were true held to refer to the statements made by defendant before the execution of the lease.-Id.

Evidence that a witness, who testified as to the truth of representations made by the defendant which were alleged by the plaintiff to be fraudulent, which tended to show that the witness did not and could not know what the statements were, affects the weight of the testimony, but not its admissibility.-Id.

Evidence that, after the plaintiff took charge of the theaters, the performers were dissatisfied which had a tendency to hurt business, was admissible in rebuttal of plaintiff's testimony that the shows were properly conducted.-Id.

§ 58 (Ky.) Evidence, in an action for the amount of a note and mortgage, the execution of which by plaintiff to an innocent party was alleged to have been fraudulently procured by defendant, held to support a verdict for plain

[blocks in formation]

§ 116 (Mo.App.) Under the statute of frauds, Rev. St. 1909, §§ 2783, 2784, a contract for the exchange of real estate for a stock of merchandise, signed by the owner of the real estate and by an authorized agent of the owner of the stock, acting under a parol contract of agency, is valid.-Tracy v. Berridge, 167 S. W. 1176.

« 이전계속 »