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formance, § 1164; Statutes, § 279; Taxa- | venue in the county of one's residence, mentiontion, § 592; Trespass to Try Title, § 32; Trial, 88 250-253; Venue, §§ 32, 77, 78.
ed in "articles 1194, 1585, of the Revised Statutes," instead of articles 1830, 2308, as required by Rev. St. 1911, art. 1903, existed in the case, was insufficient.-Anderson, Clayton & Co. v. Terry, 167 S. W. 1.
I. FORM AND ALLEGATIONS IN
$8 (Mo.) A petition charging fraud which merely charges fraud without specifications is, as a general rule, insufficient, as stating a mere conclusion.-Lee v. Lee, 167 S. W. 1030.
§ 8 (Mo.App.) The allegation of the answer that at the time of the accident plaintiff's horse was driven in violation of the ordinance, without alleging in what respect it was being violated, is a mere conclusion of the pleader.Brickell v. Williams, 167 S. W. 607.
88 (Mo.App.) A pleading alleging that a contract is valid and binding is an allegation of a mere legal conclusion.-Bird v. Rowell, 167 S. W. 1172.
§ 8 (Tex.Civ.App.) An allegation in a plea of privilege that the suit did not come within any of the exceptions provided by law, authorizing suit to be brought in the county of Milam or outside the county of Harris, held a conclusion of law, and ineffective.-Anderson, Clayton & Co. v. Terry, 167 S. W. 1.
§ 18 (Ark.) In alleging a cause of action, the particular grounds upon which plaintiff seeks to hold defendant liable should be stated with as much certainty as possible, but more specific details are to be developed by the testimony.Kansas City Southern Ry. Co. v. Leslie, 167 S. W. 83.
§ 18 (Tenn.) Not only may plaintiff allege that the personal injury for which she sues was inflicted on or about" a certain day, but, being unable to do so, she may not be required to allege the date with greater particularity, and may recover on her testimony that the accident occurred in the month alleged, and to the best of her recollection on the day alleged. -May v. Illinois Cent. R. Co., 167 S. W. 477.
§ 21 (Tex.Civ.App.) Allegations of a petition, in an action for lumber sold, declaring upon a cause of action for lumber delivered at defendant's special instance and request, were not ambiguous nor inconsistent with allegations declaring upon a written contract, and hence defendant's exception was properly overruled.-Fink v. San Augustine Grocery Co., 167 S. W. 35.
§ 22 (Ark.) That portions of a complaint were redundant, and that it contained unnecessary details, did not render it defective.-Kansas City Southern Ry. Co. v. Leslie, 167 S. W. 83.
§ 32 (Mo.App.) Where a written contract is pleaded and set out in full, the facts are stated from which a legal conclusion follows.-Bird v. Rowell, 167 S. W. 1172.
II. DECLARATION, COMPLAINT,
§ 49 (Tex.Civ.App.) The designation of an action as one to remove a cloud does not necessarily make it such, but the character of the suit is to be determined by the facts alleged therein.-Lester v. Hutson, 167 S. W. 321.
§ 69 (Tex.Civ.App.) In an action to reform a policy by inserting the name of plaintiff as mortgagee and payee, an allegation in the petition that the person named insured was building on the premises, and had no interest therein at the time of loss or at any time, held not an admission that such insured had no interest in the building, so as to avoid the policy for want of insurable interest.-Western Assur. Co. v. Hillyer-Deutsch-Jarrett Co., 167 S. W. 816. III. PLEA OR ANSWER, CROSS-COMPLAINT, AND AFFIDAVIT OF DEFENSE.
(B) Dilatory Pleas and Matter in Abatement.
$104 (Tex.Civ.App.) A plea of privilege, re
§ (Tex.Civ.App.) On a claim of privilege it is not necessary to introduce evidence as to residence which is admitted by the pleadings of both parties.-Lester v. Hutson, 167 S. W. 321.
(C) Traverses or Denials and Admissions. § 120 (Mo.App.) An answer, in terms denying "each and every material allegation" in the petition "except such as are hereinafter specifically admitted," raises no issue except as to matters subsequently specifically alleged.— Brickell v. Williams, 167 S. W. 607.
§ 127 (Tex.Civ.App.) Where a paragraph of the petition alleged that the defendant had stated that plaintiff had stolen all he raised on defendant's place, and was a thief, an answer denying the language used as set forth in that paragraph, but pleading the truth of any charge made that the plaintiff had been guilty of fraudulent acquisition of property and conversion thereof to his own use, is not an admission of the speaking of the words charged.-Burkhiser v. Lyons, 167 S. W. 244.
(E) Set-Off, Counterclaim, and Cross-Complaint.
§ 147 (Tex.Civ.App.) A cross-action must contain allegations which, given every reasonable intendment, would justify evidence of facts essential to be shown to obtain a judgment.— Reserve Loan Life Ins. Co. v. Benson, 167 S. W. 266.
$180 (Ky.) Where the petition, in an action to enforce a lien for reconstructing a vessel, showed that the sum claimed was due under three contracts of March, May, and August, 1911, and that the contract of March provided for extra work, a reply to the answer, relying exclusively on the contract of March, was not a departure, and a judgment for plaintiff was not in violation of Civ. Code Prac. §§ 98, 101.PE-Rounds v. Cloverport Foundry & Machine Co., 167 S. W. 384.
IV. REPLICATION OR REPLY AND
§ 174 (Mo.App.) Where an answer alleged the execution of a contract and set out the contract, and then alleged that it was binding on both parties thereto, a reply specifically admitting the contract, followed by a general denial, did not deny the legal conclusion of the validity of the contract, but to do so the reply must set up the facts showing invalidity.-Bird v. Rowell, 167 S. W. 1172.
V. DEMURRER OR EXCEPTION. § 193 (Ark.) Where the complaint was sufficient to inferentially show that the land in suit was the homestead of plaintiff's ancestor, the defect that it did not directly allege that fact cannot be questioned by demurrer.-Jarrett v. Jarrett, 167 S. W. 482.
§ 193 (Mo.App.) The causes of action, joined in a single count of a petition, being such as, by separate counts, might, under Rev. St. 1909, § 1795, be properly united in the petition, demurrer, under section 1800, "that several causes of action have been improperly joined" will not lie.-De Field v. Harding Dredge Co., 167 S. W. 593; Wilkinson v. Same, Id. 595.
§ 205 (Tex.Civ.App.) Where the causal connection betwen the negligence of the master and the injury to the servant is sufficiently shown by reasonable deduction from the facts set up in the petition, the petition is good against general demurrer, although a special exception to its
well taken.-Hotel Dieu v. Armendariz, 167 S., fective in not showing causal connection beW. 181. tween the master's negligence and the injury, an answer, which alleged that the proximate cause of the injuries, if any, was the negligence of fellow servants, cured the defect in the petition.-Hotel Dieu v. Armendariz, 167 S. W. 181.
§ 406 (Mo.App.) Where, in an action for a nuisance, prosecuted after plaintiff's death by her administrator, both parties tried the case on the theory that plaintiff's death did not result from the nuisance, the defect in that the petition did not show that her death did not result therefrom was cured.-Roth v. City of St. Jo
§ 214 (Mo.) On demurrer, the truth of all matters well pleaded in a petition is admitted. -State ex rel. Garesche v. Roach, 167 S. W. 1008; Same v. Drabelle, Id. 1016.
$214 (Tex.Civ.App.) Defendant, demurring or pleading to the jurisdiction of the court, admits the facts charged in plaintiff's petition to be true, and only denies that they present a case within the jurisdiction of the court.-Key v. Key, 167 S. W. 173.
$214 (Tex.Civ.App.) A general demurrer admits the truth of the allegations of a petition.-seph, 167 S. W. 1155. Lastinger v. Toyah Valley Irr. Co., 167 S. W. 788.
VI. AMENDED AND SUPPLEMENTAL
§ 262 (Ky.) Where an amended answer setting up additional damages under a counterclaim was filed several months before trial, plaintiff could not successfully claim surprise.-Louis P. Hyman & Co. v. H. H. Snyder Co., 167 S. W. 146.
§ 349 (Mo.App.) Where, in an action by a broker for damages caused by defendant preventing the collection of a commission from a third person, earned in procuring defendant and the third person to contract for the exchange See Corporations, § 123. of their lands, the answer alleged the execution of a binding contract of exchange, and that defendant was financially able to perform, and the broker by reply admitted the execution of See Constitutional Law, § 81. the contract and defendant's financial ability to comply therewith, but denied every other allegation, defendant was entitled to judgment on the pleadings.-Bird v. Rowell, 167 S. W. 1172. See Insurance.
XII. ISSUES, PROOF, AND VARIANCE.
§378 (Tex.Civ.App.) A general denial puts in issue every material fact alleged in the petition.-Wilkerson & Satterfield v. McMurry, 167 S. W. 275.
§ 367 (Ark.) Where the complaint was sufficient to inferentially show that the land in suit
was the homestead of plaintiff's ancestor, the See Licenses, § 7.
§ 399 (Ky.) Under the express provisions of Civ. Code Prac. § 131, if the allegation to which the proof is directed be unproved, not in some particular or particulars only, but in its general scope and meaning, it is not a case of variance, but a failure of proof.-Prestonsburg Coal Co. v. Wallen, 167 S. W. 395.
8423 (Ky.) Though under Civ. Code Prac. § 120, the proper practice is to file any evidence of indebtedness, upon which an action is founded, failure to do so does not invalidate the judgment where no objection was made.Hughes v. Grogan, 167 S. W. 381.
XIII. DEFECTS AND OBJECTIONS,
§ 432 (Tex.Civ.App.) The objection of variance cannot be raised after verdict.-Western Union Telegraph Co. v. Taylor, 167 S. W. 289.
§ 402 (Tex.Civ.App.) Allegations in a supplemental petition will not cure defects or omissions in the original petition, but such defects must be cured by amendment.-Fink v. San Augustine Grocery Co., 167 S. W. 35.
§ 433 (Mo.App.) Where defendant, prior to the rendition of verdict, does not question the sufficiency or form of the complaint, any defects therein, not vital, are cured by the verdict.-Falloon v. Fenton, 167 S. W. 591.
$368 (Mo.App.) Where causes of action, join- See Evidence, § 12. ed in a single count of a petition, are such as, by separate counts, might, under Rev. St. 1909, § 1795, be properly united in the petition, the remedy is by motion for separate statement.De Field v. Harding Dredge Co., 167 S. W. 593; Wilkinson v. Same, Id. 595.
§ 403 (Ky.) Where error in a petition was corrected by answer, and plaintiff by reply accepted the correction, any variance between the petition and the proof, which corresponded to the allegations of the answer, was immaterial.-Chesapeake & O. Ry. Co. v. Jesse, 167 S. W. 407.
See Adverse Possession; Mechanics' Liens, § 59; Officers, §§ 81, 82; Tenancy in Common, § 11.
$403 (Tex.Civ.App.) Where a servant's petition for damages for injuries sustained was de
For practice in particular actions and proceedings, see the various specific topics.
See Appeal and Error, §§ 1029-1072; Criminal
See Insurance, §§ 186, 198.
See Adverse Possession; Limitation of Actions.
See Appeal and Error, §§ 907-934; Evidence, §§ 59-83.
See Elections, § 126.
PRINCIPAL AND AGENT.
See Appeal and Error, § 1050; Attorney and Client; Brokers; Carriers, § 47; Corporations, §§ 283, 333, 410; Counties, $89; Estoppel, § 56; Evidence, § 427; Injunction, § 114; Insurance, §§ 76, 186, 378, 379, 388; Railroads, § 17.
I. THE RELATION.
(A) Creation and Existence.
§3 (Mo.App.) One who burned down an old mill, standing partly on the railroad right of way and partly on his own ground, in consequence of which a shipper's ties were burned, did not act as agent of the railroad company merely because, being anxious to get it away, he wrote the company that he would do So, and he was told to do it.-Eads v. St. Louis, Í. M. & S. Ry., 167 S. W. 577.
(B) Compensation and Lien of Agent. § 84 (Mo.App.) One suing for commissions for the sale of oils in certain territory was not obliged to account for sales måde by another representative of defendant on credit; plaintiff merely making the deliveries and payment being made direct to defendant.-Whitaker v. Bell Oil Co., 167 S. W. 619.
§ 89 (Mo.App.) Evidence in an action for commissions, in which defendant set up a counterclaim, held to support a verdict for plaintiff in the amount claimed.-Whitaker v. Bell Oil Co., 167 S. W. 619.
There was no error in admitting evidence in an action for commissions as to plaintiff's right to a certain commission, where the claim was admitted in the answer.-Id.
There was no error in permitting plaintiff, in an action for commissions, to inquire of defendant's auditor concerning certain correspondence, where he did not undertake to testify as to its contents, stating that he could not do so. -Id.
In an action for commissions for selling oils, wherein defendant set up a counterclaim for sales and oil not accounted for, evidence as to freight and rent paid by plaintiff for defendant was admissible without being alleged, as bearing on the counterclaim.-Id.
III. RIGHTS AND LIABILITIES AS TO THIRD PERSONS.
(A) Powers of Agent.
$101 (Mo.App.) Where plaintiffs authorized their agent to deliver certain cattle to defendant, the agent, in the absence of any agreement between the parties, had apparent authority to state the terms on which the cattle were so delivered.-Cotton v. Gorrell, 167 S. W. 1187.
$104 (Ky.) A sales agent of a foreign corporation held apparently authorized to warrant
§ 171 (Tex.Civ.App.) Where the owner of a who transferred it without authority, the fact note directed its delivery to her brother-in-law, that she received a portion of the proceeds, not knowing the money was from such source, did Sloan v. Gilmore, 167 S. W. 1089. not estop her to deny the brother's authority.
and agent more is required than between the § 175 (Mo.App.) While as between principal principal and third persons dealing with the agent to show ratification, an agent violating his instructions is not liable, if the principal, with knowledge of the facts, ratifies, expressly or impliedly, his acts.-Title Guaranty & Surety Co. v. Drennon, 167 S. W. 1181.
PRINCIPAL AND SURETY.
See Appeal and Error, § 1152; Bail; Estoppel, $63; Guaranty; Injunction, §§ 239, 252; Landlord and Tenant, § 291; Limitation of Actions, §§ 22, 25; Mechanics' Liens, § 315.
II. NATURE AND EXTENT OF LIABILITY OF SURETY.
§ 86 (Mo.App.) A bond, indemnifying a surety on a contractor's bond saving harmless the owner from any liens for work or material, does not require the surety thereon to incur expenses of actions on liens and claims; but, if satisfied that a claim is correct, he may pay it and recover from a cosurety a contribution.-Sinclair v. Wismann, 167 S. W. 580.
III. DISCHARGE OF SURETY.
§ 101 (Ark.) Where a maker falsely represented to the payee that the sureties had agreed to an alteration of the note by raising the interest rate in consideration of extension of time, the sureties were not discharged unless the payee acted under the agreement after learning that the sureties refused to assent thereto.-Waugh v. Cook, 167 S. W. 103.
raising the interest rate in consideration of an Where a payee, suing on a note as altered by representation of the maker, did not know that extension of time, in reliance on a fraudulent a surety had not assented to the alteration, she could repudiate rights under the note as altered note.-Id. and file an amended complaint on the original
IV. REMEDIES OF CREDITORS. $161 (Ky.) In an action on a demand note, evidence held insufficient to show that the holder, in accepting payments of interest from the maker, agreed to extend the time of payment, thereby discharging the surety. Southern Nat. Bank v. Schimpler, 167 S. W. 148.
V. RIGHTS AND REMEDIES OF SURETY.
(C) As to Cosurety.
§ 194 (Ky.) Where A. and B., willing to assume two thirds of the liability on an official bond and sign as sureties, and C., willing to contract by which C. assumed one-third of the assume one-third, but refusing to sign, made a liability, and the negotiations did not contemplate that a third person should sign as surety, A. and B., making up a shortage of the principal, could recover a third from J., who also signed as surety, after deducting the amount paid by C.-Jefferson's Adm'r v. Bogard's
$194 (Mo.App.) Where a claim within a bond to indemnify against claims went to judgment, and was then paid by a surety, the latter could recover a contribution from a cosurety.-Sinclair v. Wismann, 167 S. W. 580.
See Chattel Mortgages, §§ 144, 150; Mortgages § 151.
See Nuisance, §§ 48, 50.
See Witnesses, §§ 191, 220.
See Courts, § 198.
See Appearance; Dismissal and Nonsuit, § 26;
See Intoxicating Liquors.
1. NATURE AND GROUNDS.
§3 (Mo.App.) Where the county court was disregarding a census of a town taken under Rev. St. 1909, § 7239, showing it to have a population entitling it to a local option election, the town was entitled to a writ of prohibition against the court, not having adequate remedy by way of election contest.-State ex rel. City of Elvins v. Marshall, 167 S. W. 1050.
See Bills and Notes.
See Insurance, §§ 533-560.
See Adverse Possession; Animals; Constitutional Law, §§ 81, 107, 252-309; Fixtures; Logs and Logging.
$4 (Tex.Cr.App.) In a prosecution for procuring a female to leave the state for the purpose of prostitution, evidence that the defendant had taken the prosecuting witness to a certain place in another state was admissible to prove that he had procured her to leave the state.-Hewitt v. State, 167 S. W. 40.
In a prosecution for procuring a female to leave the state for the purpose of prostitution, where the defendant contended that he endeavored to persuade the girl to return home, evidence that the defendant had borrowed money from the girl's father to enable him to search for her, when he already knew where she was, was admissible as contradicting his defense.-Id.
PUBLIC WATER SUPPLY.
See Commerce, § 48; Criminal Law, §§ 507, See Waters and Water Courses. 1169.
§3 (Tex.Cr.App.) An indictment under Acts
32d Leg., c. 23, which makes it a felony to pro
cure a female to leave the state for the purpose See Criminal Law, § 1206; Injunction, § 231.
of prostitution, need not allege the state into
being complete though there was no particular See Work and Labor.
PUBLIC SERVICE CORPORATIONS. See Carriers; Railroads; Street Railroads ; Taxation, § 165; Telegraphs and Telephones.
See Indictment and Information, § 137.
QUESTIONS OF LAW AND FACT. See Criminal Law, § 749; Trial, §§ 139-143.
See Judgment, § 256; Pleading, § 49.
II. PROCEEDINGS AND RELIEF. $29 (Mo.) Where plaintiffs, having but an equity in certain land in controversy, waited for more than 12 years after it had been purchased at a foreclosure sale by their mother, 8 years after the youngest of them became of age, and 4 years after the land had been platted, and many residences erected thereon by in
In a prosecution for procuring a girl to leave the state for the purpose of prostitution, evidence held insufficient to show that the defendant had such purpose.—Id.
nocent purchasers, they were barred of their right to relief, by laches.-Terry v. Groves, 167 S. W. 563.
§ 52 (Ky.) A judgment that a party is the owner of land which he did not claim is erroneous.-Parsons v. Dills, 167 S. W. 415.
See Adverse Possession, § 10; Appeal and Error, §§ 171, 877, 1050, 1056; Assignments, § 23; Carriers; Commerce, § 27; Constitutional Law, §§ 62, 297; Damages, § 44; Evidence, §§ 450, 471, 481, 483; Fixtures, 21: Injunction, § 26; Justices of the Peace, § 36; Mandamus, § 176; Master and Servant; Municipal Corporations, § 845; Negligence, 22; Principal and Agent, § 3; Street Railroads; Trial, §§ 191, 194, 296.
II. RAILROAD COMPANIES.
§ 17 (Tex.) Under Rev. St. 1911, art. 6445, vesting all the corporate powers of a railroad corporation in its directors, and article 6446, providing that the president shall perform such duties as the directors may require, the presi
dent could not contract for the maintenance of the road, its offices and station on certain land, in the absence of express authority from, or ratification by, the directors.-Logue v. Southern Kansas Ry. Co. of Texas, 167 S. W. 805.
§ 22 (Tex.) "Residence," within Rev. St. 1911, art. 1830, subd. 26, defining the venue of actions against railroad corporations for personal injuries, means living in a particular locality, as distinguished from "domicile," which means living in such locality with intent to make it a fixed and permanent home.-Pecos & N. T. Ry. Co. v. Thompson, 167 S. W. 801. A laborer who went from place to place in search of work, and working at short intervals, and who obtained work as a brakeman at a town, and continued in such employment for something over a month to the time of an injury, was either a resident or a transient, and an action for his injury must be brought in the county in which it occurred or in the county in which he resided, as required by Rev. St. 1911, art. 1830, subd. 26.-Id.
Under the proviso of Rev. St. 1911, art. 1830, subd. 26, that a nonresident may sue a railroad company in any county in which it operates its road, or has an agent, must show that he was a resident of some other state, territory, or
try at the time of the accident.-Id.
IV. LOCATION OF ROAD, TERMINI, AND STATIONS.
$58 (Tex.Civ.App.) Gen. Laws (2d Extra Sess.) 31st Leg. c. 10 (Rev. St. 1911, Arts. 6695, 6696), relating to the construction of union depots and the powers of the Railroad Commission with reference thereto, held constitutional. -Gulf, C. & S. F. Ry. Co. v. State, 167 S. W. 192.
(F) Accidents at Crossings.
$301 (Ky.) Where a railroad crosses a public highway the railroad company and the public must each exercise the right to use the crossing so as to subject the other to as little inconvencoun--Harvey v. Illinois Cent. R. Co., 167 S. W. ience as is practicable under the circumstances.
An order by the Railroad Commission under Gen. Laws (2d Extra Sess.) 31st Leg. c. 10 (Rev. St. 1911, arts. 6695, 6696), for the construction of a union depot by two railroad companies, whose lines intersected in a town, held not too vague for enforcement because it left to the railroad companies the right to determine
for themselves the location and the character of the depot. Id.
§ 72 (Tex.) The grantee of a tract upon which a railroad located its right of way and a station was entitled to the benefit of any contract with his grantor for the permanent maintenance of the same thereon.-Logue v. Southern Kansas Ry. Co. of Texas, 167 S. W. 805.
A corporation purchasing a railroad was only charged with such conditions as attached by law, and no presumption could arise from the mere occupancy of land under deed that there was a private agreement with the president of the railroad that the road, its offices and station, should be permanently located thereon. Id.
V. RIGHT OF WAY AND OTHER INTERESTS IN LAND.
§ 72 (Ark.) A deed of land to a railroad for the erection and maintenance of a section house thereon, providing that when it should cease to be used as such the title to the land should revert to and vest in the grantor, held not an absolute conveyance, but to express a condition subsequent, upon the happening of which the title reverted to and vested in the grantor.-St. Louis Southwestern Ry. Co. v.
§ 246 (Ky.) Under Ky. St. § 768, subsec. 5, if a train which has blocked a crossing for five minutes is not ready to move, the crossing must be cleared by cutting the train in two, or by some other method.-Harvey v. Illinois Cent. R. Co., 167 S. W. 875.
Where a railroad company is under the duty of clearing a highway crossing under Ky. St. § 768, subsec. 5, it must do so in such manner as to leave the entire right of way of the road open for travel.-Id.
(C) Companies and Persons Liable for Injuries.
$259 (Ky.) Under Const. § 203, lessor of railroad held liable for death of brakeman knocked from passing train by depot shed constructed dangerously close to the track by lessee.-Chesapeake & O. Ry. Co. of Kentucky v. Vaughan's Adm'x, 167 S. W. 141.
Under ordinary circumstances railroad trains have the right of way over other vehicles at highway crossings.-Id.
§ 305 (Ky.) Where a railroad crosses a public highway, the railroad company has no more authority than other persons to place obstructions likely to frighten horses upon or near the public road, unless necessary in the use, repair, or construction of the road.-Harvey v. Illinois Cent. R. Co., 167 S. W. 875.
3, requiring the bell or whistle of a train to be § 307 (Tenn.) Shannon's Code, § 1574, subsec. sounded when approaching a city or town, etc.. applies to through trains which do not stop at a town.-Southern Ry. Co. v. Griffin, 167 S. W.
§ 324 (Tex.Civ.App.) The driver of an automobile which was injured in turning to avoid a locomotive at a crossing was guilty of negligence per se in approaching at from 15 to 25 miles per hour in violation of Pen. Code 1911, art. 815, in the absence of any showing that a reater speed was permitted by ordinances.Houston Belt & Terminal Ry. Co. v. Rucker, 167 S. W. 301.
§ 332 (Ky.) Driver of gentle horse accustomed to trains held not negligent in attempting to cross a track where a train had been cut in two, though the horse became frightened.-Harvey v.