license, in violation of a city ordinance, he may be prosecuted and
fined, but this would not invalidate his contracts. Hence, the rule
that an action cannot be maintained which is predicated on a trans-
action prohibited by statute has no application to such contracts.
(Murray v. Doud, 297.)
3. BROKERS-BUYING AND SELLING STOCKS-SETTLE-
MENT BY PAYMENT OF DIFFERENCES-EVIDENCE OF IN
TENTION AS TO DELIVERY.-The intention of parties to a con-
tract for the purchase and sale of stocks in the future is a question
of fact to be established, not merely by their assertions, but from the
circumstances of the transaction, such as the mode of dealing be
tween the parties, the pecuniary ability of the party purchasing,
and the fact that the party making the purchase, or broker, never
calls upon the party ordering the purchase for the purchase money,
but only for margins. Similar transactions between the parties, set
tled by the payment of differences, may also be considered. (Jamie
son v. Wallace, 302.)
4. BROKERS-BUYING AND SELLING STOCKS-PECUNI-
ARY ABILITY OF PURCHASER-EVIDENCE OF INTENTION
AS TO DELIVERY.-If a purchase of stocks, ordered through
broker, is much larger in amount than the purchaser is able to pay
for, and this fact is known to the broker, it is a strong circumstance
indicating no intention of receiving the property, but rather an in-
tention to settle the difference between the market price and the
contract price. (Jamieson v. Wallace, 302.)
5. BROKERS--BUYING AND SELLING STOCKS-SALE OF
SECURITIES-RELIEF IN EQUITY.-If a person enters into a
mere gambling contract with his broker for the purchase and sale
of stocks in the future, and deposits securities with the broker to
cover losses, the broker, in case of loss, is a "winner" of such se
curities, within the meaning of a criminal statute authorizing a pro-
ceeding in chancery to recover from the "winner" money or property
lost to him by a gambling transaction. A bill in equity, therefore,
lies to compel him to account for securities sold to refund the
amount thereof, and to return the unsold collaterals. (Jamieson ▼.
Wallace, 302.)
BUILDING AND LOAN ASSOCIATIONS.
See Associations, 5.
BURDEN OF PROOF.
See Animals, 6; Insurance, 19.
CRIMINAL LAW-POSSESSION OF STOLEN PROPERTY
In a prosecution for burglary in entering a house and stealing chick
ens, the possession by the accused of chickens stolen from the same
owner at the same time is not evidence of his guilt of the crime
charged, where it does not appear that the chickens of which he was
so in possession were any part of those taken from the house. (King
v. State, 251.)
See Associations, 8, 4; Corporations, 3; Insurance, 35.
1. CARRIERS-LIVESTOCK-CONTRACT LIMITING LIABIL
ITY. A common carrier of livestock cannot, by contract with the
shipper, relieve itself, either in whole or in part, from liability for its
own negligence, which results in personal injury, to the shipper while
traveling on a free pass and caring for his stock in transit. (Mis-
souri Pac. Ry. Co. v. Tietken, 526.)
2. CARRIERS-INTERSTATE COMMERCE, RIGHT TO LIMIT
LIABILITY.-By the laws of Congress a carrier engaged in inter-
state or foreign commerce may, by contract, limit its liability in cases
where it is not shown to have been guilty of negligence, and such
limitation is effective, though by the state laws it is not permissible.
(Houston etc. Navigation Co. v. Ins. Co. of N. A., 17.)
3. CARRIERS-LIVESTOCK-LIABILITY FOR NEGLIGENCE.
While a shipper of livestock, who travels on a free pass and cares
for his stock in transit, assumes the risks incidental to taking care
of his stock, this does not exonerate the carrier from liability to the
shipper for personal injuries negligently caused by the employés of
the carrier, as where they urgently direct him, while he is eating
lunch at a station, to board a moving train, or be left, and, in trying
to carry out the hazardous undertaking, the shipper is injured.
(Missouri Pac. Ry. Co. v. Tietken, 526.)
4. CARRIERS, PROPERTY, WHEN COMMENCECS TO BE IN
TRANSIT OR IN DEPOT.-If, while cotton is in possession of a
compress company for the purpose of being compressed, a common
carrier issues a bill of lading binding himself to transport it to a
place designated, it cannot be regarded as “in transit," or "in depot"
while it remains on the platform of the compress company. (Amory
Mfg. Co., v. Gulf etc. Ry. Co., 65.)
5. CONFLICT OF LAWS.-THE LIABILITY OF A CARRIER
for injuries to its employès, alleged to have resulted from negligence,
should be determined by the laws of the country in which the claim
originated. (Mexican etc. Ry. Co. v. Jackson, 28.)
CERTIORARI.
See Courts of Probate, 1.
1. WILLS.-A DEVISE FOR A CHARITABLE USE is not sc
vague, indefinite, and uncertain as to the objects and beneficiaries of
the use as to be void where it is to a church, for the tuition of poor
children. (Dye v. Beaver Creek Church, 724.)
2. WILLS-DEVISE FOR CHARITABLE USE, WHO MAY
TAKE.-A church, though it is an unincorporated association, is
capable of taking and holding land as a devise for the tuition of poor
children. (Dye v. Beaver Creek Church, 724.)
1. MORTGAGES.-BOOKS OF ACCOUNT MAY BE MORT-
GAGED, in Iowa, like other personal property, subject to the same
requirements as to certainty of description as are mortgages of other
personal property. (Davis v. Pitcher, 392.)
2. MORTGAGE OF CHATTELS, TESTS OF SUFFICIENCY
OF DESCRIPTION.-That description which will enable third per-
sons, aided by inquiries which the instrument itself indicates and
directs, to identify the property is sufficient. (Davis v. Pitcher, 392.)
3. MORTGAGES OF CHATTELS-DESCRIPTION.-A mortgage
of chattels specifying the building in which they are, and purporting
to include all books of account, and accounts and notes, contracted
and to be contracted from the sale of merchandise kept in such
building sufficiently describes the books of account and the accounts
of the mortgagor subject to the mortgage. (Davis v. Pitcher, 392.)
COMMON LAW.
See Animals, 1; Execution, &
See Carriers, 5; Corporations, 21; Interstate Commerce, 2, 3.
of a state constitution which renders meaningless any of its provi sions should not be adopted. (State v. Hostetter, 515.)
See Actions, 8; Elections, 1, 2.
1. CONTEMPTS-POWER OF JUSTICES TO PUNISH FOR. At common law and under the statute a justice of the peace has power to punish for contempts committed in his presence while sit ting officially, the only difference being that the statute fixes a limitation upon the amount of the punishment. (Coleman v. Roberts, 111.)
2. CONTEMPTS-POWER OF JUSTICES TO PUNISH FOR.— All persons present in a court of a justice of the peace while ne is acting judicially, whether in obedience to process or voluntarily as mere bystanders or spectators, are subject to the jurisdiction of the court in so far as is necessary for the preservation of its order and decorum, and if any one of them does any act tending to disturb or obstruct the administration of justice, or to interrupt the due course of the trial, or to impair the respect due the court, he may be thereupon adjudged guilty of contempt of court and forthwith punished without the issue of process or any further examination or proof. (Coleman v. Roberts, 111.)
3. CONTEMPT-FAILURE TO ENTER JUDGMENT-COLLATERAL ATTACK.-If a justice of the peace finds a bystander guilty of contempt during judicial proceedings, and thereupon sentences him, issues a warrant of commitment, and the offender is placed in custody, the fact that such judgment or sentence is not entered on the docket of the court prior to adjournment is a mere error or irregularity not affecting the validity of the judgment, when drawn into question collaterally. (Coleman v. Roberts, 111.)
1. CONTRACT, CONSTRUCTION OF LANGUAGE AGAINST THE PARTY USING IT.-If a written contract reasonably admits of two constructions, that is to be adopted which is least favorable to the party whose language it is. This rule is especially applicable against carriers in construing bills of lading issued by them. (Amory Mfg. Co. v. Gulf, etc. Ry. Co., 65.)
2. CONTRACTS-COMPLETE PERFORMANCE NECESSARY FOR RECOVERY ON ENTIRE CONTRACT.—If the subject matter of an entire contract has been destroyed by fire, or otherwise, without the fault of either party, before the contract is fully per formed, there can be no recovery, on a quantum meruit, or other wise for a part performance thereof. (Huyett etc. Co. v. Chicago Edison Co., 272.)
3. CONTRACT IS ENTIRE, WHEN.-A contract to put in and complete a ventilating system for a given sum of money, all of
which is to be paid in thirty days after acceptance of the work, is
an entire contract. (Huyett etc. Co. v. Chicago Edison Co., 272.)
4. CONTRACTS, CONSTRUCTION OF.-PUNCTUATION is a
most fallible standard by which to interpret a writing, but it may
be resorted to when other means fail. (Amory Mfg. Co. v. Gulf etc.
Ry. Co., 65.)
5. CONTRACTS, ILLEGAL, RECOVERING MONEYS AD-
VANCED UNDER.-If two or more persons enter into a scheme or
contract, immoral, or against public policy, and one gives to the
other property to be used in the furtherance of their illegal plan and
for the purpose of Lribing persons in high official station, and the
receiver does not use it for that purpose, but applies it to his own
use. he is answerable therefor to the person of whom he thus ob-
tained such property. (Wasserman v. Sloss, 209.)
6. CONTRACTS.-IGNORANCE OF LEGAL OBLIGATIONS
and effects of contracts, into which parties voluntarily enter, fraud
not intervening, and of which there is no averment, is not ground
for the avoidance of such contracts. (Georgia Home Ins. Co. v.
Wharton, 129.)
7. CONTRACTS-FAILURE TO READ-AVOIDANCE.-Writ
ten contracts cannot be avoided by parties signing them on the
ground that they did not read them before signing, when an oppor-
tunity to read them has been afforded. (Georgia Home Ins. Co. v.
Wharton, 129.)
8. BROKERS-BUYING AND SELLING STOCKS.-TO IN-
VALIDATE A CONTRACT for the purchase and sale of stocks in
the future, it must appear that neither party has the intention to
deliver the property, and that both parties have the intention of set-
tling only the differences. (Jamieson v. Wallace, 302.)
9. BROKERS-BUYING AND SELLING STOCKS-UNLAW-
FUL ACT-AGENCY.-There is no such thing as agency in the do-
ing of an unlawful act. Hence, both parties to a gambling contract
made with a broker to buy and sell stocks are principals. (Jamie-
son v. Wallace, 302.)
10. BROKERS-BUYING AND SELLING STOCKS-GAM-
BLING CONTRACT.-A contract with a broker, authorizing him to
buy and sell stocks for the other party in the future, is a gambling
contract, and not enforceable, where the parties have no intention
of receiving or delivering the property, but do intend to settle ac-
counts by the payment of differences between the contract price of
the stocks and their market price when sold. (Jamieson v. Wallace,
302.)
11. CONTRACTS-RATIFICATION OF ILLEGAL CONTRACTS.
The right to avoid a contract on the ground of fraud is a privilege
given to the injured party for his own protection, and it may be
waived; but he cannot ratify and give validity to an illegal con-
tract. (Henry Christian B. & L. Assn. v. Walton, 636.)
12. CONTRACTS-RATIFICATION OF ILLEGAL CONTRACTS.
If a transaction is contrary to good faith, and the fraud affects indi-
vidual interests only, ratification is allowed, but, when the fraud is
of such character as to involve a crime, the adjustment of which is
forbidden by public policy. ratification of the act from which it.
springs is not permitted. (Henry Christian B. & L. Assn. v. Walton,
636.)
CONTRACTS-RESCISSION.-MISREPRESENTATION
MATERIAL FACTS, on which the party acting relies, and has a
right to rely, whether made willfully and intentionally, or innocently
from ignorance, inadvertence, or mistake, avoids a contract which
It may have induced, but, in the absence of a relation of trust or
confidence, a misrepresentation of matter of law, or of judgment,
equally open to the observation or inquiries of both parties, or of
mere opinion, is not a fraud and not ground for avoiding a contract.
(Georgia Home Ins. Co. v. Wharton, 129.)
14. AN ELECTION TO RESCIND A CONTRACT WAIVES the
right to sue upon it. Kearney etc. Co. v. Union Pac. Ry. Co., 434.)
15. ELECTION.-A CONTRACT OF SALE OBTAINED BY
FRAUD is not void, but voidable, and the contract continues until
the party defrauded has determined his election by avoiding it, and,
when once rightfully determined, it is determined forever, and the
bringing of an action to recover the property sold is such an election.
(Kearney etc. Co. v. Union Pac. Ry. Co., 434.)
16. EMPLOYER AND EMPLOYÉ-CONTRACT FOR FIXED
TERM-STATUTE OF FRAUDS.-A contract to employ a person
for a fixed term is not illegal nor against public policy, nor is it with-
in the statute of frauds. (Louisville etc. R. R. Co. v. Offutt, 467.)
17 DAMAGES-BREACH OF CONTRACT TO BUY GOODS-
INTEREST.-"Bought and sold notes" constitute a written contract,
and, upon the buyer's breach thereof to buy goods, the seller may
recover legal interest on the amount of money found to be due.
(Murray v. Doud, 297.)
18. EVIDENCE OF CONTRACT. — “BOUGHT AND SOLD
NOTES," executed by a broker, in the regular course of business,
in negotiating a sale, are competent evidence of a contract. (Mur-
ray v. Doud, 297.)
See Agency, 3; Brokers, 1, 2; Damages, 2; Evidence, 1; Fraud, 1;
Master and Servant, 4; Vendor and Purchaser, 2, 3.
CONVERSION.
See Execution, 7.
1. CORPORATIONS — OBLIGATIONS OF.-Promissory notes
signed "York Butter and Cheese Company, by F. A. Bidwell, presi-
dent, J. D. White, secretary," are obligations of the corporation, and
not of individual members thereof. (Nebraska Nat. Bk. v. Ferguson,
522.)
2. CORPORATIONS, DUTY, WHEN NOT IMPOSED UPON BY
GRANT OF A PRIVILEGE.--If by a statute, charter, or ordinance
a corporation is granted the privilege of doing something, the duty
of doing it is not thereby imposed so as to authorize the issuing of a
writ of mandamus to compel the exercise of the privilege. (San
Antonio Street Ry. Co. v. State, 834.)
LIMITING LIABILITY OF
STOCKHOLDERS.-A by-law of a corporation seeking to limit the
liability of its stockholders to its creditors contravenes the consti-
tution and law of the state, and is therefore void. (Wells v. Black,
162.)
4. CORPORATIONS.-THE BORROWING OF MONEY by a cor.
poration for the purpose of purchasing its own stock must be treated
as ultra vires, at least, as against lenders who knew of such purpose.
(Adams etc. Co. v. Deyette, 751.)
5. CORPORATIONS.-THE PURCHASE OF ITS OWN STOCK
by a corporation is necessarily a reduction of its capital, condemned
by the plainest dictates of sound policy. (Adams etc. Co. v. Dey-
ette, 751.)
6. CORPORATIONS-POWER TO TAKE STOCK AS COLLAT-
ERAL SECURITY.-A corporation authorized to loan money on real,
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