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lice power, on these facts the same liability
sum of $24,000 additional compensation and was imposed upon the city as if it were the amount of the monthly retainer fixed by business plant.
contract with the trustee. See 270 Fed. 710. The judgment entering a nonsuit must be I think that justice to all concerned would reversed.
require that this statement be made in an
early issue of your publication. Note.--Liability of Municipality in Operation
Yours truly, of Waterworks.-In furnishing water to private
Max ISAAC. consumers, a city is acting in a private business capacity, and is bound to exercise ordinary care,
HUMOR OF THE LAW.
“My son, you should learn to practice selfMass. 501, 107 N. E. 416; Henry V. Lincoln,
restraint." 93 Neb. 331, 140 N. W. 664; Coleman v. La Grande, 73 Oreg. 521, 144 Pac. 468; Bjork v. “That's old stuff, Dad. Don't you know that Tacoma, 76 Wash. 225, 135 Pac. 1005.
the reformers are doing all the restraining that "It has been repeatedly held in the application anybody could possibly need."-Judge. of the well-settled distinction between public and private functions, that the establishment and maintenance of a system of water supply in part
A college education was deemed worthy of for the use of inhabitants who pay for the son of a profiteer, and when he came home necessity thus supplied is a commercial venture,
for the holidays he was questioned by his fond and that for negligence in connection therewith the city or town is liable as a private corpora
parents as to the nature of his studies. tion would be in performing a similar service.
"Well, father,” said the son, “I've been learn. Pearl v. Revere, 219 Mass. 604, 107 N. E. 417. ing arithmetic." Thus, a waterworks system owned and operated "Yes, well,” said the father impatiently, a by a municipality renders the city liable for neg
little disappointed. ligent mismanagement thereof resulting in injury, and this is true, it has been held, where
"And French, German, Euclid,” went on the damage resulted from the bursting of a water main due to negligence of the city's servants, "Ah, yes," returned the father joyfully, notwithstanding such main was used for fire pro
"that's better. Now just tell me the Euclid tection, where it appeared the fire department had no control over the waterworks system. Nor | for 'good morning'.”—Exchange. does it change the liability in the least, although a portion of the water is used in part for pub
Maud Muller on a summer's day lic purposes. 8 McQuillin, Mun. Corp., sec. 2680, citing Blake-McFall Co. v. Portland, 68 Oreg.
Went on a strike for higher pay. 126, 135 Pac. 873; Simon v. New York, 82 Misc. So laying down her trusty rake, 454, 143 N. Y. Supp. 1097.
She gave the harvest field the shake.
And said that times were getting hard.
The cost of living was so high
That she was hardly getting by.
TURNED A BANKRUPT BUSINESS IN- Would justify a raise in pay.
And if refused her just demands,
She'd call out all the hired hands. Editor, CENTRAL LAW JOURNAL:
The farmer who in anger roared, There were several errors regarding the Referred her to the Labor Board, amounts of the allowance in your story of the Who passed the buck to Warren G., case of the Yaryan Rosin & Turpentine Com- Who passed it to a commit-tee, pany (92 Cent. L. J. 405). They are traceable Composed of wise and learned men, to the error in the newspaper article I sent Who promptly passed it back again. you. The trustee in bankruptcy received $15,- Whereat Maud Muller said, "Oh, fudge!". 000, and in addition thereto received, during And got herself elected judge. the administration in bankruptcy, $16,000, mak- And now besides her princely pay ing a total of $31,000. The counsel for the trus- She gets her rake-off every day. tee in bankruptcy (the writer) received the
-L. C, Davis, Post-Dispatch.
Weekly Digest of Important Opinions of the
State Courts of Last Resort and of the Federal Courts.
Copy of Opinion in any case referred to in this digest may be procured by sending 25 cents to us or to the West Pub. Co., St. Paul, Minn.
Alabama Arkansas Georgia Illinois. Iowa Kansas. Kentucky Maine.. Michigan. Mississippi. Missouri. Montana.. New York, North Dakota. Ohio Oregon Pennsylvania. South Carolina South Dakota. Texas... United States C. C. A. United States D. C.. Utah Washington. Wisconsin
.4, 12, 32, 55, 63
2 .9, 22, 31, 47 .44, 45, 64
........18 -5, 29, 51
.23, 37, 66 .11, 13, 25, 38, 56
..7, 24 -21, 30, 52
...10, 39 .8, 14, 16, 35, 36, 41, 61
46 ....6, 54 42, 65
60 -53, 62
..15, 33, 49 .1, 19, 26, 28, 43, 48
.40 -57, 58 .17, 27
not in the nature of a penalty, and it is competent for contracting parties, not only to stipulate for a reasonable attorney's fees to be paid by the maker of a note in the event of collection by an attorney after default, but to fix the amount of the reasonableness of such fee; the prima facie presumption being that an amount fixed by them is reasonable.--Vinyard v. Republic Iron & Steel Co., Ala., 87 So. 552.
5.-Corporate Note.-A stockholder who is also an officer and director in a Missouri corporation, and who, without receiving any direct consideration therefor and without
any language of qualification, signs his name on the back of a note given in Missouri by the corporation to itself to be negotiated for the purpose of procuring money for the corporation, is liable under the Missouri Negotiable Instruments Law as an indorser, and is entitled to notice of dishonor on non-payment of the note. -Crane v. Downs, Kans., 196 Pac. 600.
6. Purchaser Before Maturity.-If a note did not contain an acceleration clause, and had not matured because of failure to pay accrued interest, a purchaser thereof in good faith for value was a purchaser before maturity for value.-Taylor v. Buckner, Ore., 196 Pac. 839.
7. Brokers — Expenses. While no commissions are recoverable by a broker, where they are based on the amount received for the land by the owner, and the sale has failed through no fault of the owner, the broker may nevertheless recover expenses incurred by the owner's authority in securing options to cancel leases to enable the owner to deliver possession to the prospective buyer.-Lee v. Greenwood Agency Co., Miss., 87 So. 485.
8. Carriers of Passengers--Loss of Baggage. --Where a passenger, about to enter a Pullman car, was detained about two minutes outside to have his ticket examined, while a station porter carrying his hand bag entered the car, the carrier cannot be held liable, his bag not having been found, on the theory that its servants should have kept their eyes on it, for such vigilance is not required of the carrier.-Sneddon v. Payne, N. Y., 187 N. Y. S. 185.
9.- Pullman Conductor not a "Passenger" or “Employee."-One in the employ of the Pullman Company as conductor, under a contract whereby he ratified a contract between his employer and the railroad company and agreed that he should not have the rights of a passenger, and that it should not be liable for any injuries sustained by him, was not an "employee" or a "passenger" of the railroad company, but sustained a special contractual relation; the liability for injuries to the Pullman company's employees, not pertaining to the public duty resting on the railroad company as a common carrier, but arising solely from the contract.Cato v. Southern Ry, Co., Ga., 106 S. E. 272.
10. Res Ipsa Loquitur.-Where passenger's injury resulted from slipping on a small piece of ice on the step box on which she stepped when alighting from the car, the doctrine of res ipsa loquitur did not apply to throw the burden of showing freedom from negligence on the carrier, no contention being made that the step box was defective, and it appearing by plaintiff's own witness that there was no ice on the box when it was placed on the platform. -Heck v. Northern Pac. Ry. Co., Mont., 196 Pac. 521.
11.- -Schedule of Rates. The filing of a proposed schedule of rates with the Railroad commission by a road prior to enactment of Pub. Acts 1919. No. 382, did not authorize an increase of rates in excess of those fixed in the franchise in view of Pub. Acts 1909, No. 300, $ 3, subd. (c), 2 Comp. Laws 1915, § 8109 et seq., declaring that it does not authorize the Commission to impair any existing franchise.-Humphrey v. Detroit, M. & T. S. L. Ry., Mich., 181 N. W. 975.
12. Chattel Mortgages--Annulment of Sale.Where the mortgage gave no authority to the mortgagee to purchase at his own sale, a foreclosure sale at which the mortgagee was the
1. Bankruptcy-Petition to Revise.-A petition to revise opens only questions of law, and the appellate court cannot review the decision of the District Court on a question of fact. Yaryan Rosin & Turpentine Co. v. Isaac, U. S. C. C. A., 270 Fed. 710.
2. Banks and Banking-Forged Check. If a depositor is guilty of negligence in not discovering and giving notice of a forgery, then the bank might thereby be prejudiced because it is prevented from taking steps, by the arrest of the criminal, or by attachment of his property, or any other form of proceedings, to compel restitution; and it is for the jury to say whether the bank has been deprived of or delayed in the exercise of any rights, the practical effect of which will enable it to protect itself.-Bank of Black Rock v. B. Johnson & Son Tie Co., Ark., 229 S. W. 1.
3.--Status Apart From State.-Pursuant to constitutional and statutory enactments, the Bank of North Dakota, as an agency of the sovereign power, engaged in the banking business, has a distinct status separate and apart from that of the state itself. This status permits it to function as a distinct and separate agency of the sovereign power.-Sargent County State, N. D., 182 N. W. 270.
Bills and Notes--Attorney's Fee-A stipulation for payment of a reasonable attorney's fee, if the obligee in a contract should employ an attorney to enforce or defend his rights thereunder by reason of the obligor's breach, is ultimate grantees had legal right to sue the first grantor on his covenants of warranty to his grantee, or to sue such grantee, their own grantor, on the covenants contained in his deed to them.-Martin v. Jones, Mo., 228 S. W. 1051.
purchaser, and at which much of the mortgaged property was not present, some of it being in the adjoining county, and at which all the property was sold en masse for a lump sum, was properly set aside and annulled, and the mortgagor allowed to exercise his equity of redemption.—Chenault V. Milan, Ala., 87 So. 537.
13. Commerce - Liquor Transportation. — By the Reed Amendment, Congress reassumed exclusive jurisdiction over regulation of interstate liquor transportation.-People v. Keeley, Mich., 181 N. W. 990.
14. Contracts-Pawnbroker.---Where plaintiff seller intrusted a prospective purchaser with possession of a watch for the purpose of making a sale, the purchaser must be deemed the true owner thereof, to the extent that her contract of pledge with a pawnbroker is binding on the seller. -Kupchick v. Levy, N. Y., 187 N. Y. S. 192.
15.- Test of Water Well.-In view of Acts 36th Leg. (1919) c. 130, where plaintiff contracted to bore for defendant a water well yielding sufficient water to fill 30 barrels each day, the word "barrel" as used in the contract meant a barrel of 3112 gallons, the standard United States measure except as to barrels of petroleum, and the provisions of the contract giving defendant right to test the capacity of the well for not exceeding 90 days did not give her absolute power to determine unappealably whether there was insufficient water.-Pope v. Joschke, Tex., 228 S. W. 986.
16. Corporations-Certificate to do Business. General Corporation Law, § 15, requiring foreign corporations to procure a certificate authorizing the doing of business in the state, is repugnant to the commerce clause of the Federal Constitution, and void as applied to transactions in interstate commerce. - Publicker Commercial Alcohol Co. v. Roberts, N. Y., 187 N. Y. S. 178.
17.--Provision of Charter. -Under St. 1919, § 1776, providing that the directors of stock corporations shall choose a president and such other officers as the corporate articles and bylaws require, all officers designated by the articles or by-laws are to be elected by the directors, and a provision of the corporation's charter for their election by the stockholders is in conflict with the statute which governs the election.-State v. Rosenow, Wis., 182 N. W. 324.
18.- Rescission of Contract.--Stock subscriber, by demanding stock and advertising it for sale, did not waive the right to annul notes given for a portion of the purchase price retained by the corporations which failed to issue the stock or return notes for the balance of the purchase price, where suit to rescind was brought within five days after the corporation had returned another of his notes.-Lynch , Des Moines Life Finance Co., Iowa., 182 N. W. 21
22. Criminal Law-Disorderly Conduct.--It was "disorderly conduct" for one, called to the door of her home at night by police officers making inquiry about matters in their line of duty, to curse them, slam the door, and order them away.-Whitten v. Mayor and Aldermen of Savannah, Ga., 106 S. E. 302.
23. Damages—Mental Anguish.-Defendant's carelessness and negligence, in publishing a picture of plaintiff's son in connection with a report of the death of a person having the same name, gave no right of action for the mental pain and anguish suffered by plaintiff from the supposed death of her son, where the publication of the picture was not done wantonly or from wrong motives or in willful disregard of plaintiff's parental feelings.--Herrick v. Evening Express Pub. Co., Me., 113 Atl. 16.
24. Divorce - Alimony. - Alimony may be awarded the wife in a divorce proceeding. although the husband is without property and must support himself and pay the alimony out of his future earnings.-Ramsay v. Ramsay, Miss.. 87 So. 491.
25.- Clean Hands.--- Where the court found that plaintiff was guilty of the same misconduct she had charged against defendant, a dismissal of the bill for divorce was proper; a а divorce not being granted under a rule ot comparative rectitude or turpitude.-Hatfield v. Hatfield, Mich., 181 N. W. 968.
26. Fish-Ownership.-- Rev. St. Mo. 1909, $ 0508, providing that “the ownership of and title to all birds, fish and game * * * not now held by private ownership, legally acquired, is hereby declared to be in the state, and no fish, birds or game shall be caught, taken or killed, * * or had in possession, except the person so catching, taking, killing or having in possession shalı consent that the title of said birds, fish and game shall be and remain in the state of Missouri for the purpose of regulating and controlling the use and disposition of the same after such catching," etc., is a statute of regulation oniy, and leaves private ownership unimpaired, except as to the right of the state to prescribe the seasons and conditions under which fish and wild game may be taken, used, and disposed of. -Gratz v. M'Kee, U. S. C. C. A., 270 Fed. 713.
27. Fixtures Removal. Where buildings were placed on the leased premises by the tenant and continuously assessed as personalty and lhe taxes paid by the tenant, who kepi the buildings insuredthe structures erected and the machinery contained in the buildings being suitable for and devoted to a business purpose, the tenant without express stipulation in the lease, had the right to remove all of such fixtures and the machinery contained in them at or before lawful expiration of his term.---Dougan v. H. J. Grell Co., Wis., 182 N. W. 350.
28. Injunction Violation of Contract. Equity has jurisdiction to enjoin violation of a contract relating to personalty, where special circumstances are alleged showing that the remedy at law is not adequate.-Hawaiian Pineapple Co. v. Saito, l'. S. C. C. A., 270 Fed. 749.
Insurance Default of Mortgagee. Where a mortgagee was made a defendant but defaulted and it appeared that a prospective purchaser had paid two-thirds of the mortgage, the insurer cannot defeat recovery on the ground that payment should be made to the mortgagee.-Ellis v. Home Ins. Co., Kan., 196 Pac. 598.
30. -Liability for Payment by Insured.Where plaintiff partnership, carrying liability insurance with defendant surety company, had contracted to indemnify the mining company, whose mine the partnership leased, against loss, damages, or negligence, and the mining company, having settled suits against it for deaths of miners resulting from the operation of the mine by the partnership, sued and recovered
19. Valid obligations.- Where the treasurer of a coal company contracted for the purchase of all of its stock, and pursuant to the contract took over the management of its business on behalf of himself and his associates in the purchase, but owing to default in payment the contract was not carried out, notes given by him in the name of the company. without authority of the directions for money advanced by one of his associates, which was not used in the business of the company, but was paid for stock under the contract, held not to be valid obligations of the corporation. -Murray v. Shipman Koal Co., U. S. C. C. A., 270 Fed. 740.
20. Counter-Road Bond Issue.- Where the fiscal court of a county, in calling an election on a road bond issue, directed that the proceeds of the bonds to be voted should be used to construct or reconstruct roads, bridges were necessarily included.-Crick v. Rash, Ky., 229 S. W. 63.
21. Covenants-Warranty:- Where land was conveyed twice with a deficiency in acreage, the
judgment against the partnership for
the amount paid by the mining company for which it recovered judgment against the partnership. -Harndon v, Southern Surety Co., Mo., 229 S. W. 291.
31.-Time Limit.--A condition in an insurance policy providing that no recovery shall be had thereon unless suit is brought within two years from the time within which proof of loss is required by the policy" is valid, and no recovery can be had on a policy containing such a condition when the action is not brought within the time specified in the policy, unless the provision is waived or there is valid excuse for delay.-Gallivitoch v. Provident Life & Accident Ins. Co., Ga., 106 S. E. 319.
32. Intoxicating Liquors--Insufficient Bill.Though Acts 1915, p. 31, defines prohibited liquors and beverages, a bill seeking condemnation of automobile alleged to have been used for transportation of prohibited liquors and beyerages is sufficient, and not too general, though not averring whether they were spirituous, malt, or vinous.-Black V. State, Ala., 87 So. 527.
33.-State Laws.-There is nothing in the Constitution of the state of Texas which denies to the Legislature the power to enact laws forbidding the manufacture or sale or intoxicating liquor, or even liquors with insufficient alcoholio content to produce intoxication.-Russell v. State, Tex., 228 S. W. 948.
34.--Unlawful Search. --Liquor found and seized by a prohibition agent through an unlawiul search of
a private garage cannot be used as evidence to convict the owner of the garage of an offense, or for the forfeiture 01 his property if petition for its return is presented to the court before trial, and the fact that city police officers aided in the search is immaterial.- United States v. Slusser, U. S. D. C., 270 Fed. 818.
35. Landlord and Tenant-Portion of Premises.--W here the lessor of a store building delivered to the tenant keys to the basement, and occupancy of the basement was essential to enjoyment of the store building, the tenant cannot be ousted from possession arter occupancy for Several years,
the theory that he Was a squatter with respect to the basement, but the basement will be deemed to have passed with the lease of the store.-Fiorgus Reaily Corporation v. Reynolds, N. Y., 187 N. Y. S. 188.
disengage the switch on the elevator when it stopped between the floors, an award under the Workmen's Compensation Act was justified on the theory that the accident occurred 'in the course of employment."— Twin Peaks Canning Co. v. Industrial Commission, Utah, 196 Pac. 853.
41. "Hazardous Occupation."-A schoolteacher, carrying on che nical experiments prescribed by the Education Law, is not engaged in "hazardous occupation," within the meaning of Workmen's Compensation Law, under Const. art. 1, $ 19.--Beeman 1. Board of Education of Penn Yan, N. Y., 187 N. Y. S. 213.
42.--Injury in Parade.- Where decedent was driving a team in a parade in honor of employees who had enlisted in the military seryice as his voluntary act and his individual contribution towards the parade, and it was not held during working hours and he was not under pay at the time, compensation for his death from falling under the wheels of his wagon was properly disallowed.-Hutno v. Lehigh Coal & Navigation Co., Pa., 113 Atl. 68.
43.-Interstate Commerce. An employe working in an ash pit in railroad yards, cleaning engines used in both interstate and intrastate business, who, on leaving his work, instead of taking a stairway to the street provided by the railroad company, for his own convenience walked across the yard and tracks, as other employees did, but following no defined way, and was struck and killed by a train on a main track, held to have ceased his employment in "interstate coinmerce' within the meaning of Employers' Liability Act, š 1 (Comp. St. $ 8657), when he left his work and deviated from the way provided for his departure.—Krysiak v. Pennsylvania R. ('o., C. S. C. C. A., 200 Fed. 758.
44. Partial Incapacity.-An injured employee was not entitled to recover under Workmen's Compensation Act for partial incapacity after the date on which he became able to earn in a suitable employment an amount equal to that earned before the injury, although his physicians advised him to do light work, for the reason that it would be beneficial and helpiul in restoring him to health. - Voight v. In dustrial Commission, 111., 130 N. E. 470.
36.-—-Summary Proceeding.- Where, in summary proceedings, the landlord incurred expenses in removing the tenant's property from the premises, by paying men hired by the marshal to put him in possession, and sought to recover such expenses, such facts held not to make the landlord responsible for the acts or the marshal or those employed by him in damaging property; the writ under which the marshal acted being valid.--Ide 1. Finn., N. Y., 187 V. Y. S. 202.
37. Master and Servant-Bonus.-Bonus of year's wages to servant of decedent should be computed on wage scale at time of death.-Gray V. Richards, Me., 113 Atl. 9.
38.--Amount of Compensation.--The fact that an injured employee received more wages since the injury than he was earning at the time of the injury does not preclude compensation if he has been unable, by reason of the injury, to follow the particular employment he was engaged in when injured.--Woodcock v. Dodge Bros., Mich., 181 N. W. 976.
39.- Contributory Negligence.-An elevator operator, who left his elevator at the street floor of a building and, upon his return, after another operator had moved the elevator, ran to the shaft, pushed open the door, and stepped in, held as matter of law guilty of contributory negligence proximately causing his death.-Page v. New York Realty Co., Mont., 196 Pac. 871.
40.- Course of Employment.-Where 15-year old boy entering a freight elevator to return to his work from a floor visited during an interval of leisure was killed by the movement of the elevator when he turned on the power, previously shut off by himself as a joke on companion who was coming up and failed to
15.-Right to Choose Physician.--An injured servant has the right to choose his own physician under the Workmen's Compensation Act.-Snyder v. Industrial Commission, nl., 130 N. E. 517.
16.--Student of Telegraphy.- When the operator and agent in charge of a railroad station requests the superintendent to employ a helper, and is refused, but is subsequently given permission to take a young man into the office to learn telegraphy and to assist in the performance of the duties in and about the office, who does in fact so assist under the orders and direction of such agent, the relation of master and servant is thereby created and the doctrine of respondeat superior applies.--Schnable V. Cleveland, C., C. & St. L. Ry. Co., O., 130 N. E. 510.
47.---Tort of Servant.--"Every person shall be liable for torts committed by his * * * Servant, by his command or in the prosecution and within the scope of his business, whether the same be by negligence or voluntary." Civil Code 1910, $ 4413. Where a servant departs from the prosecution of his business and commits a tort while acting without the scope of his authority, the person employing him may still be liable if he failed to exercise due care in the selection of his servant.--Renfroe 1. Fouche, Ga., 106 S. E. 303.
48. Monopolies--Conditional Sale.--The provision of Clayton Act, § 3, making it unlawful to lease or make a sale, or contract for sale, of goods on condition that the lessee or purchaser shall not deal in the goods of a com: petitor of the lessor or seller, is limited to contracts of lease or sale by the clear meaning of its terms, and especially in view of its purpose to make invalid certain contracts of lease or sale of patented articles which the Supreme Court had shortly before held to be valid.-Curtis Pub, ('0. v. Federal Trade Commission, U. S. ( C. A., 270 Fed. 881.
49. Municipal Corporations--Abolishing Corporate Existence.--If the provision of Vernon's Sayles' Ann. Civ. St. 1914, art. 1079, that, at an election as to abolishing the corporate existence of a municipality, all legally qualified voters, who are resident taxpayers, “as shown by the last assessment roll," shall be entitled to vote, is invalid, its invalidity does not destroy the entire statute.-Bonham V. Fuchs, Tex., 228 S. W 1112.
50.--Violation of Gas Contract.-An inhabitant of a city, who suffers damages because of gas company's violation of contract with city specifying the quantity and pressure of gas to be furnished to the inhabitants of the city, may sue the company in his own name; the contract having been made for the use and benefit of the inhabitants of the city as well as for the city itself.-Humphreys v. Central Kentucky Natural Gas Co., Ky., 229 S. W. 117.
51. Negligence-Invitee.-Damages may be recovered by a person who is injured while seeking employment in a manufacturing establishment, if he goes to the superintendent of the establishment to procure employment and is directed by him to see the foreman and is told where to go, and, while attempting to find the foreman at the place indicated, is injured through negligence for which the establishment is responsible.-Zeigler v. Oil Country Specialties Mfg. Co., Kan., 196 Pac. 603.
52. Partnership -- Division of Profits. ---Contractors, one of whom agreed to bid on a contract and procure the contract, furnish bond and the necessary capital, and the other of whom was to do the work and employ all the men, the profits to be divided, held partners.Minter V. Gidinsky, Mo., 228 S. W. 1075.
53. Physicians and Surgeons-Honest Mistake.--Where a surgeon possesses the requisite qualification and applies his skill and judgment with ordinary care and diligence to the diagnosis and treatment of the patient, he is not liable for an honest mistake or for an error of judgment in making a diagnosis or in prescribing a mode of treatment, where there is ground for reasonable doubt as to the practice to be pursued.-Kelly V. Hollingsworth, S. 1., 181 N. W. 959. 54.
Principal and Agent-Authority of Agent. A traveling salesman or drummer ordinarily has no ostensible or implied authority to make a binding contract without the approval of his principal; the extent of his authority being merely to solicit orders and transmit the same to his princpal for acceptance.-Bagot v. InterMountain Milling Co., Ore., 196 Pac. 824.
55. Railroads-Lookout.-It is the duty of those in charge of a train backing on an interchange track in railroad yards to keep a lookout for laborers required to be on the track, Alabama, T. & N. R. Co. v. Huggins, Ala., 87 So. 547.
56. Sales-Countermand of Order.-An order for the purchase of goods, containing the words, "not subject to countermand," may nevertheless be countermanded at any time before acceptance, for, until accepted by the salesman's principal, it is simply an offer to purchase, and in no way creates a binding agreement.--Night Commander Lighting Co. v. Brown, Mich., 191 N. W. 979. 57.
Subsequent Agreement.--In an action for the balance of sale price of books where the original contract provided that upon payment of a specific amount the books could be turned, and after offer to return after payment of such amount, another agreement was made whereby the purchaser made further payment of installments, held that the further agreement was made in view of preserving all rights under the former contract, including that of election to return the books, and that the purchaser made timely offer thereof.--Edward Thompson Co. v. Dillon, Wash., 196 Pac.
58.— Severable Contracts. Defendants agreed to sell five cars of potatoes and two cars of onions, different prices being specified. It was arranged that plaintiff should have on deposit sufficient money to pay for the shipments on presentation to bank of bill of lading. Held,
that the sale of the potatoes and of the onions was severable, and,' though at the time the potatoes were loaded plaintiff did not have on deposit sufficient funds to pay therefor on presentation of bill of lading, yet, as sufficient funds were deposited on the following day, defendants, who had loaded no onions, were not justified in treating the contract as broken and refusing to deliver onions.-Weatherred v. Hirai, Wash., 196 Pac. 572.
59. Searches and Seizures--Waiver of Objection to Search.—Consent of the owner that a person announcing himself a prohibition agent showing a badge and demanding the right might search premises held not a waiver of constitutional right to protection against unreasonable search.-United States v. Slusser, U. S. D. C., 270 Fed. 818.
60. Telegraphs and Telephones -- Interstate Message.-A telegraph message between two points in the state, unnecessarily transmitted through another state, is an interstate message, and not subject to state law permitting damages for delay of death message, preventing receiver from attending relative's funeral.- Son
Western Union Telegraph Co., S. C., 106 S. E. 507.
61. -Recovery of Property.-Where a telephone company without authority ran its line over plaintiff's property, plaintiff may maintain an action to recover his property and compel the removal of the line, notwithstanding the government for temporary war purposes had taken control of telegraphs and telephones, for the possession of the government did not afford any reason why the landowner should not have his rights adjudicated, particularly as he could not interfere with the government's possession, and at the time of trial the government had returned the property to private ownership. McPhillips v. New York Telephone Co., N. Y.. 187 N. Y, S., 183.
62. Vendor and Purchaser-Innocent Purchaser.-If one purchased land for a valuable consideration without knowledge that fraud had been practiced by his vendor upon the parties from whom the land was secured and without knowledge of facts and circumstances sufficient to put an ordinarily prudent man upon inquiry as to the manner in which vendor procured the land, such purchaser must prevail over vendor's predecessors in title.-Whitford v. Dodson, S. D., 181 N. W. 962.
63.- Laches.--Vendor's lien does not become stale until 20 years after due.--Salvo V. Coursey, Ala., 87 So. 519.
.64. Wills-Restraint on Marriage.-A husband may rightfully provide for forfeiture of a devise on subsequent marriage of his wife, notwithstanding the general rule that a tes tator may not impose a total restraint on marriage as a condition of a devise.-Glass v. Johnson, Ill., 130 N. E. 473.
65.- -"Surviving 'Children."--Under a will, "I give to my beloved wife all my real estate and personal property of whatsoever nature, kind or effect, *** and after her death all my real estate and personal property shall be equally divided between my surviving children, each to share and share alike," held, that the words “surviving children" included grandchildren and heirs at law of deceased children, and meant those surviving the testator's death, and not that the funds should be distributed to sons and daughters of testator, who survived death of the widow.-In re Morris' Estate, Pa., 113 Atl. 61.
66.------Testamentary Capacity:- Where testator directed his trustees to pay annually to his nephew and his sister $500 if they should be incapacitated, etc., declaring that the trustees may act on their own judgment, but that a certificate of the attending physician should be accepted as proof of the incapacity, the certificate of the attending physician is conclusive; for the word "proof" should be given its technical significance-that is, a deduction from evidence that produces a conviction-and should not be construed as meaning "evidence," which is merely a medium of proof.—Dupont v. Pelletier, Me., 113 Atl. 11.