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The decree of the circuit court, in equity, , maintain the bill, moved the court to dismiss is affirmed.

the same. The court, holding that the matAffirmed.

ter of Grace Minchener's alleged insanity

and of Annie K. Pennington's right to mainANDERSON, C. J., and SOMERVILLE tain the bill on her behalf should not be deand BOULDIN, JJ., concur.

termined on ex parte affidavits, denied the motion, whereupon Grace Minchener applied to this court for its writ of prohibition as aforesaid.

Upon this application the sole question preEx parte MINCHENER. (4 Div. 115.)

sented for adjudication is whether the cir(Supreme Court of Alabama. April 24, 1924.) cuit court of Pike, sitting in equity, has ju

risdiction to proceed with the hearing of the 1. Equity Ow32—Bill to set aside conveyance bill notwithstanding the inotion to dismiss properly filed in county where land situated.

made by the party on whose behalf it was A bill in equity filed on behalf of com- filed. Ex parte Greene, 29 Ala. 57; Ex parte plainant to set aside a conveyance was prop-Peterson, 33 Ala. 76; Ex parte Boothe, 64 er filed in county where land was situated, Ala. 317. Upon authority and the reason of under Code 1907, § 3054, though complainant and defendants resided outside of state.

the matter the court here is of opinion that

the trial court is not without jurisdiction in 2. Prohibition Om5(3)~Jurisdiction of bill by the premises, and that the writ 'prayed for next friend not destroyed by motion to dis.

should be denied. miss on ex parte affidavits of complainant,

[1] Grace Minchener, Kent, and Wales all A circuit court, sitting in equity, had jurisdiction of a bill to set aside a conveyance, not- reside in the state of Florida, but the bill in withstanding motion to dismiss on ex parte af- equity filed by Mrs. Pennington involves the fidavits of alleged insane complainant, on whose title to lands in the county of Pike, and, so behalf it was filed by next friend, since court far as concerns the territorial jurisdiction of was under duty to determine for itself mental the court, was properly filed in that county. capacity of complainant, and hence prohibition Code, $ 3054. would not lie.

[2] Whether Mrs. Pennington should be al

lowed to maintain her suit on behalf of her Original petition by Grace Minchener for a writ of prohibition to Hon. W. L. Parks, as mental capacity of the latter to direct that

daughter, Grace Minchener, depends upon the Judge of the Circuit Court, Piko County, to matter for herself. There has been no inprohibit his further proceeding in a cause

quisition of lunacy; complainant's right as pending in said court. Writ denied.

next friend rests thus far upon her own averA. G. Seay, of Troy, for petitioner.

ment that her daughter is non compos mentis. Wilkerson & Brannen and T. L. Borom, all In Beall v. Smith, L. R. 9 Ch. 85 (1873), it of Troy, and James J. Mayfield, of Montgom- was said thatery, for respondent.

"The law of the court of chancery undoubtSAYRE, J. This is an original petition in edly is that in certain cases, where there is a

person of unsound mind, not found so by inthis court for a writ of prohibition, to be di- quisition, and therefore incapable of invoking rected to Hon W. L. Parks, as judge of the the protection of the court, that protection may circuit court of Pike county, prohibiting and in proper cases, and if and so far as may be restraining him from proceeding further in necessary and proper, be invoked on his bea cause pending in the said circuit court half by any person as his next friend." wherein Annie K. Pennington, suing as next

And in Whetstone v. Whetstone's Ex'rs, 75 friend of Grace Minchener, is complainant, Ala. 499, this court followed the law of Beall and W. C. Kent and T. F. Wales are defend

v. Smith as being beyond question, but by ants. Mrs. Pennington, who is the mother of

way of caution and limitation added the fol. Grace Minchener, alleging her daughter to be lowing quotation, which it may be well to non compos mentis, filed her bill against Kent

repeat: and Wales to set aside a conveyance of property made to them by the daughter on the

“Every person so constituting himself offi.

ciously. the guardian, committee, and protector ground that the same had been procured by of a person of unsound mind does so entirethe fraud and undue influence of the gran ly at his own risk, and he must be prepared tees. Grace Minchener, undertaking by ex to vindicate the necessity and propriety of his parte affidavits to show to the court that for proceedings, if they are called in question, and two years next before the filing of the bill on to bear the consequences of any unnecessary her behalf and at the time of the execution and improper proceedings. He takes the risk, of the conveyance in question she had resided moreover, of having his proceedings wholly rein the state of Florida, that the averments pudiated by the lunatic, if he should recover his

reason." of the bill were untrue, that she was not of unsound mind, and that her mother, Annie It follows that, when its jurisdiction is K. Pennington, had no authority to begin or challenged on the ground the complainant on

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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(100 So.) whose behalf the bill is filed is competent to Appeal from Circuit Court, Walker Councare for his own interests, the court has the ty; Ernest Lacy, Judge. right and is under duty to determine for it

Petition of Mrs. J. W. Christian for writ self the question of the mental capacity of of mandamus to Lucian Jones, as Superinthe beneficial complainant by a report from tendent of the Jasper Public Schools. From the register, by submitting the question to a

a judgment dismissing the petition, petitionjury, or otherwise as the court may direct.

er appeals. Transferred from court of ApThe courts and text-writers so hold. Whet

peals under Acts 1911, p. 449, 8 6. Affirmed. stone v. Whetstone's Ex'rs, supra; Isle v. Cranby, 199 Ill. 39, 64 N. E. 1065, 64 L. R.

W. F. Finch, of Jasper, for appellant.
A. 513, note; Holland v. Riggs, 53 Tex. Civ.

A. F. Fite, of Jasper, for appellee.
App. 367, 116 S. W. 167; Dan. Ch. Pl. & Pr.
(6th Ed.) star p. 83; Story, Eq. Pl. (10th Ed.)

GARDNER, J. Appellant filed this peti-
$ 66. The reason for the rule is stated in tion for mandamus against appellee, who is
substance as follows: To require the dismiss- superintendent of the public schools of the
al of a bill filed on behalf of a person alleg- city of Jasper, Ala., for the reinstatement of
ed to be incompetent at the mere dictation of her child in said school. Respondent's de-
the latter would permit serious wrong to him murrer to the petition was sustained, and to
or his property without remedy--would prac review such ruling petitioner has prosecuted
tically destroy the power of the court to care this appeal.
for the interests of persons who are unable Relator's daughter was a pupil in the pub-
to care for themselves.

lic school of Jasper. It was also desired We have said enough to determine the that she be given music lessons. A music question of the trial court's jurisdiction teacher is provided in the school building, against the contention of petitioner. The though music is not a part of the course, and court had jurisdiction to proceed with the the patrons pay tuition therefor to the teachcause, and the writ of prohibition must be er. Relator, however, preferred another denied.

teacher (a Mrs. Cheatham), not connected We will not be understood as holding that with the school, and whom she had previousan appeal from a final decree against the de ly patronized. Mrs. Cheatham's studio was fendants in the equity cause will afford ade only a few hundred feet from the school, and quate relief against error in its determination petitioner desired her daughter to be perof the mental capacity of Grace Minchener, mitted to leave the school during school or that mandamus, serving the purpose of an hours and go to Mrs. Cheatham's studio for emergency appeal, will not lie to review such musical instructions. The board of educaruling in advance of a final decree, the evi- tion of the city would not permit this, and dence being properly presented. As the case the rule was established that pupils should stands, the court had jurisdiction to deter- not leave the school grounds for instructions mine the issue of lunacy or other incompe during school hours. Petitioner, in violation tency vel non, and its determination cannot of this rule, had her daughter to leave the be reviewed by the writ of prohibition or school during school hours, and attend her otherwise on the record before us.

music lessons at Mrs. Cheatham's studio. Writ denied.

Respondent, the school superintendent, sus

pended petitioner's daughter on account of ANDERSON, C. J., and GARDNER and the violation of this rule and leaving school MILLER, JJ., concur.

without permission, hence this litigation.

The Legislature (Acts 1919, p. 567) has clothed the city board of education with authority to prescribe rules and regulations for

the conduct and management of the schools, CHRISTIAN V. JONES, Superintendent of

and the superintendent is the executive offiPublic Schools. (6 Div. 109.)

cer of the board, who is to exercise super(Supreme Court of Alabama. April 24, 1924.) vision and control over the schools, and the

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duty is enjoined upon the superintendent to Mandamus 79-Schools and school districts

see that the rules and regulations of the Few 172—Board of education did not abuse discretion in rule against pupils leaving board are carried into effect. Section 6 of grounds; and mandamus would not lie to com

article 8 of the above-cited act reads as folpel reinstatement of pupil suspended by such lows: board.

“The city board of education is hereby vestBoard of education did not abuse the dis- ed with all the powers necessary or proper cretion vested in it under Acts 1919, p. 567, for the administration and management of the in adopting rule forbidding pupils to leave free public schools within such city subject to school grounds during school hours to receive the provisions of this act.” instruction elsewhere, and hence mandamus will not lie to compel reinstatement of pupil

It thus appears that a very broad discre. suspended for violating it.

tion is vested in the city board as to the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

d 7 .

$

neces

management and conduct , of the public ( as to market conditions, inducing defendant not schools.

to exercise a contractual right to cancel and We quote with approval the following rescind, held insufficiently established to warfrom Wilson v. Board of Education, 233 11. rant denial of the affirmative charge as to such

issue. 464, 84 N. E. 697, 15 L. R. A. (N. S.) 1136, 13 Ann. Cas. 330:

2. Appeal and error on 1040(13)-Overruling

demurrer to plea which amounted to but "The power of the board of education to con

plea of general issue hold not prejudicial, trol and manage the schools and to adopt rules and regulations necessary for that purpose which amounted to but plea of general issue

Overruling demurrer to defendant's plea is ample and full. The rules

held not prejudicial. sary to a proper conduct and management of the schools are, and must necessarily be, left to the discretion of the board, and its acts Appeal from Circuit Court, Jefferson will not be interfered with nor set aside by County ; Richard V. Evans, Judge. the courts, unless there is a clear abuse of the power and discretion conferred."

Action on common counts by Meyer Fri.

bush and others against D. Friedman. -and, as said by the Iowa court in Kinzer From judgment in insufficient amount, plainv. Directors, 129 Iowa, 441, 105 N. W. 686, tiffs appeal. Transferred from Court of Ap3 L. R. A. (N. S.) 496, 6 Ann. Cas. 996: peals under Acts 1911, p. 449, $ 6. Reversed

“The presumption is in favor of the rea- and remanded. sonableness and propriety of the action of the

Ritter, Wynn & Carmichael, of Birmingboard.”

ham, for appellants. Numerous cases are cited in the note to Beddow & Oberdorfer, of Birmingham, for 35 Cyc. 1134, and State ex rel. Kelley v. appellee. Ferguson, 95 Neb. 63, 144 N. W. 1039, 50 L. R, A. (N. S.) 266, but a review of these au- GARDNER, J. Suit by appellants against thorities would serve no useful purpose. appellee on common counts to recover the

That the rule adopted by the board was purchase price of certain merchandise, well within their power and discretion is amounting in the aggregate to $2,018.75. not questioned. In view of this broad dis- From a judgment in favor of the plaintiffs cretion vested in the board, this court can for only $987.01, the plaintiffs have proseonly interfere in the event of an arbitrary cuted this appeal. exercise or abuse thereof. Very clearly such There appears to have been no controvera case is not here presented. The fact that sy as to the goods furnished or the price to inconvenience, or even some hardship, may be paid therefor, and the amount of recovresult to petitioner and others who desire to ery was evidently reduced by the jury upon patronize a music teacher outside the school consideration of the pleas of recoupment and is but a mere incident, and does not of itself set-off interposed by the defendant. Plea 2a argue the unreasonableness of the rule or is a plea in recoupment. We construe this abuse of discretion of the board. As a mat- plea just as the plaintiffs construed it, and ter of precedent it may be easily seen that find ourselves in accord with the contention to permit what petitioner here seeks might of counsel for appellants as to the refusal of in the course of time prove detrimental to the the affirmative charge requested thereto. orderly conduct of the school. In any event, This plea alleges that this cause of action the board has so determined, and no abuse arose from the purchase of certain suits and of their discretion appears, and respondent, cloaks for ladies on March 2 and 3, 1920, as superintendent, was but carrying into for delivery May 15 and June 1, 1920, with effect the regulations of the board in sus- the agreement that at any time prior to the pending petitioner's child.

date of shipment, to wit, prior to May 15 The trial court correctly ruled, and the and June 1, 1920, the defendant reserved the judgment will accordingly be here affirmed. right to cancel said order; that a large porAffirmed.

tion of the goods were shipped prematurely,

plaintiffs knowing that the market was fall. ANDERSON, C. J., and SAYRE and MIL- ing, and upon defendant protesting, induced LER, JJ., concur.

defendant to forbear cancellation of said order by falsely and fraudulently representing to defendant that the prices had not dropped

and would not do so, although there had FRIBUSH et al. v. FRIEDMAN. (6 Div. 96.) been a decline of 40 per cent. in the market,

all of which the plaintiffs well knew. (Supreme Court of Alabama. April 24, 1924.)

The gravamen of this plea is that the 1. Sales Emo 53 (3)-Seller's fraud inducing pur. plaintiffs fraudulently deprived the defendchaser not to rescind held not established. ant of his contract right to rescind or can

In action for purchase price of merchan-cel the order for goods, and that the defenddise, seller's alleged fraudulent representations ant was induced to forbear the exercise of

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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(100 So.) such right by reason of plaintiffs' fraudulent, have been given, as requested by the plainrepresentations.

tiffs. It is insisted by counsel for appellants Plea 4a is a plea of set-off. It sets up, in that as a matter of fact the defendant did, substance, the sale of certain goods by plainunder the undisputed evidence in the case, tiffs to the defendant in March, 1918, the exercise his right of cancellation and make sale being by sample and an implied agreechanges in the orders. Upon cross-examina- ment that the goods would correspond with tion the defendant does state (speaking of the sample in quality, style, and workmanthese orders and the changes made in refer- ship; that about half the quantity of goods ence thereto) that "he canceled out some of was delivered, but that said goods did not them, and some of them I [he] increased correspond with the sample in quality, style

some orders were enlarged and and workmanship, being greatly inferior, to some cut out entirely, and some reduced." defendant's damage. This plea was not sub

It may be questioned, however, that theject to any assignment of demurrer inter-
affirmative charge was due the plaintiff up- posed thereto. McCaa V. Elam Drug Co.,
on this plea upon the theory that defendant 114 Ala. 74, 21 South. 479, 62 Am. St. Rep.
exercised his right of cancellation, for the 88.
reason that it might be open for the jury to We are of the opinion the evidence was
find the defendant would have exercised the sufficient for submission of the issue of fact
right more freely and to a greater extent. there presented to the jury for determina-

Under this plea, however, the fraudulent tion, and that the affirmative charge was
representations of the plaintiffs constituted properly refused as to said plea.
its very foundation. We are persuaded on Plea 5a is also a plea in set-off, and rests
examination of this record that this charge upon the transaction of March, 1918, alleg.
of fraud depends for its proof upon a letter ing a failure to deliver a large portion of
written by plaintiffs to the defendant from the goods ordered and an advance in price,
Baltimore on June 18, 1920, in which the to the defendant's damage. The observa-
plaintiffs insisted that the coats bought tions as to plea 4a are likewise applicable to
could not be purchased "any cheaper-in

this plea.
fact, some of them had advanced, and that

[2] The only criticism as to plea 6a by it was only newspaper talk that caused peo- counsel for appellants is that in fact it is ple to believe merchandise had declined;

but a plea of general issue, and clearly that there bad in fact been no decline in plaintiffs suffer no injury by the court over

ruling the demurrer to such a plea, which piece goods and labor, and that labor was

only presents the general issue. advancing." To revert to the allegations of

For the error indicated, in refusing the af. the plea, it is to be noted that the right of firmative charge as to plea 2a, the judgment cancellation was a contract right, and one to will be reversed, and the cause remanded. be exercised by the defendant at his own Reversed and remanded. option. It bore no relation to a rescission of the order for cause--a right which would

ANDERSON, C. J., and SAYRE and MILarise by law—and it is expressly averred LER, JJ., that it related to the right to cancel the order at any time prior to May 15th and June ist, which were to be the dates of shipment. EDWARDS v. BEARD. (7 Div. 466.) Clearly, the fact that a large portion of the (Supreme Court of Alabama. April 17, 1924. goods were prematurely shipped could have

Rehearing Denied May 15, 1924.) no effect upon this contract right, either limiting or extending the same. During that 1. Sales Cow 434-Complaint against seller on period no fraudulent representations on the

warranty of title held to show claim litigated

by buyer with third person was title superior part of the plaintiffs are shown, and in the

to seller's. very nature of things the fraud relied upon

Complaint of buyer against seller on imcannot be rested upon the letter of June 18th. plied warranty of title held to sufficiently show

[1] The argument of counsel for appellee that what had been litigated on the merits by
in regard to the right of defendant to return buyer with third person, with seller's knowl-
the goods after their receipt within a rea- edge and consent, was such person's claim of
sonable time evidently rests upon the doc- title paramount to seller's,
trine of rescission above referred to. It is 2. Sales C263—Implied warranty of ti.
no answer, however, to the question here un tle, where seller in possession.
der consideration, which relates solely to a In the absence of anything to the contrary,
contract right to cancel the order by a given there is an implied warranty of title, at least
date

. We are therefore of the opinion that where seller is in possession of chattel.
the defendant has failed to show any fraud-3. Salos 263—Implied warranty of title,
ulent representations inducing him to aban where seller in apparent possession.
don the contract right set up in plea 2a, and There is an implied warranty of title of
that affirmative charge as to this plea should 'corn, where seller is in apparent possession of

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

to

00 nd 2 Lis ad

Concur.

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it, offering it on the land of another, of whom The suit was for $750 damages, and the he claimed to have bought it, and turns over to claim for special damages is as follows: buyer the key of the crib; no notice being given buyer of any adverse possession.

“And the plaintiff further avers that in and

about the prosecution of said detinue suit as 4. Sales Om 263–Implied warranty of title in aforesaid he has been caused to expend the sum sale by agent.

of, to wit, four hundred fifty ($450) dollars, There is an implied warranty of title in sale and that the defendant, although requested by by agent of one in possession with delivery of the plaintiff so to do, has wholly failed to pay possession.

to the plaintiff any of the above amounts." 5. Judgment Om682(2)—Seller notified that The jury returned a 'verdict for $693.46,

third person had taken property under claim and there was judgment thereon by the of superior title, concluded by judgment in court. Defendant moved for a new trial asaction by buyer against such person. signing as ground, among others, that the

Buyer notifying seller that the property verdict was excessive in the sum of $100. has been taken by third person under claim of Plaintiff entered a remittitur for said title superior to seller's, and seller treating notice as invitation to protect buyer's title, and amount, and the motion was overruled. declining to do so, and throwing responsibility

Harrison & Stringer, of Talladega, for apon buyer, seller is concluded by the judgment pellant. for third person in detinue thereafter brought Earle Montgomery, of, Talladega, for apagainst that person by buyer with seller's pellee. knowledge. 6. Sales C 442(12)-Costs and attorney's fees BOULDIN, J. The suit is for damages for

of buyer, in action against third person tako breach of an implied warranty of title in the ing possession under claim of superior title, sale of chattels. The subject-matter is a crib elements of damage for breach of warranty of of corn. title.

[1] The complaint alleges that subsequent Costs and reasonable attorney's fees of to the sale a third person laid claim to the buyer in his unsuccessful action against third corn, assumed physical dominion over 'it, person, who has taken the property under claim of title superior to seller's, are proper elements claiming title paramount to the title of plainof damage for seller's breach of implied war

tiff's vendor; that plaintiff made demand ranty of titie.

on the claimant to surrender the possession

and upon her refusal brought suit in detinue 7. Appeal and error Om 1140(3)-Error in therefor with the knowledge and consent of

judgment including an item of damage cured the defendant, plaintiff's vendor; that upon by voluntary remittitur.

a trial on the merits judgment went for Any error in including an item of damage claimant, the defendant in the detinue suit. in judgment is cured by plaintiff, after judg. The costs and attorneys' fees incurred in the ment rendered, voluntarily remitting amount detinue suit are claimed as special damages. of item.

The first point made in argument is that the

complaint does not sufficiently show that Appeal from Circuit Court, Talladega Mrs. Sailors, the defendant in detinue, deCounty; A. P. Agee, Judge.

fended and held the corn under title paraAction for breach of warranty by J. B. mount to the title of plaintiff's vendor. The Beard against George M. Edwards. Judg- complaint shows her sole claim of title under ment for plaintiff, and defendant appeals. which possession was taken was adverse and Transferred from Court of Appeals under paramount to that of plaintiff's vendor. Acts 1911, p. 449, 8 6. Affirmed.

Taken as a whole, we think this is the claim The complaint alleges that plaintiff pur- of title alleged to have been litigated on the chased from defendant a quantity of corn, merits with the knowledge and consent of and it is a verred that,

the vendor.

In the case of Salle v. Light's Ex'rs, 4 Ala. “Thereafter one Mrs. S. B. Sailors laid claim 700, 39 Am. Dec. 317, the property had to said corn, and assumed physical dominion over the same, basing her said claim thereto passed from the vendee to a subvendee, and solely upon title in herself to said corn, para- the suit was by a third party against the mount to, and adverse to, the title of plaintiff's suvvendee. There was no privity of convendor, the defendant, George M. Edwards, to tract between the original vendor and the the same; and that of this the plaintiff advised subvendee. In such case it was held the the defendant. And plaintiff further avers that complaint should show the third party rehe then made demand upon the said Mrs. S. B. | covered on a title paramount to that of the Sailors for possession of said corn, and that, original vendor, and not on a title acquired upon her refusal to deliver the same to him, after it passed out of him. That case is not the plaintiff did, with the knowledge and approval of the defendant, commence his suit in analogous to this on the point in question. detinue in the circuit court of Talladega coun

In passing upon the questions raised on the ty, Ala., against the said Mrs. S. B. Sailors, issue of implied warranty, the effect of a for the recovery of said corn," etc.

į judgment as evidence of breach, and the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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