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BILLS AND NOTES PAYMENT: Not necessary to prove demand at time and place fixed in the note, but if funds for payment were there for the purpose, non-presentation of the note relieves maker of costs; deposit of funds by maker of a note payable at bank, does not discharge the obligation, unless holder has deposited note in the bank for collection. Page 15a, No. 1399. Complainant's failure, due to his own efforts, to receive payment of one of four notes secured by a mortgage which provided that on non-payment of any one at maturity all became due, held that he was not entitled to foreclose for the whole debt. Page 15a, No. 1399. Where the maker of a note paid the amount thereof to the original payee without requiring the production of the note, such payment is at the risk of the maker and does not discharge the note as against a transferee thereof. Page 148a, No. 1476. BILLS AND NOTES PRESENTATION:

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BOUNDARIES:

The call for quantity may be resorted to, to aid in locating descriptions which would otherwise be uncertain. Page 166a, No. 1490.

BROKERS:

Where agreement with broker to sell real estate is invalid unless it or a memorandum is in writing, letters of owner authorizing sale are sufficient. Page 32a, No. 1408. Where a broker was given power to sell land for cash, whereby part of the purchase price was to be paid at the time of entering the contract, and the remainder upon delivery of the deed, was within his powers and binding on the principal. While, upon proper pleadings, equity will relieve a person from a written contract entered into through fraud or mistake, vendors of land who entered into a contract giving a broker an agency for its sale cannot, where the contract was a continuing one, be relieved from a sale made by him merely because they understood that the agency was to expire at a given time; their understanding being im material to the interpretation of the contract. Page 166a, No. 1490.

BROKERS-CONTRACTS:

A contract, whereby vendors appointed brokers to enter into a written contract for the sale of land, with the provision that if they should withdraw the property from sale before 1905 the brokers should receive certain compensation, does not, by its terms, expire in 1905. Page 166a, No. 1490.

CARRIERS:

Unlawful discrimination for a railway to refuse delivery of freight to a plant on its belt line, even though the plant be connected by a spur track. Page 21a, No. 1402. The burden of proof is on the carrier who fails to deliver live stock in good condition when so received, that such failure is due to inevitable accident or some cause inherent in the live stock. Page 23a, No. 1403. A railway, though a private carrier, was held liable for injuries caused by negligence, resulting in the death of a person riding on a pass, which stipulated that the holder waived all claim for damages for agreement being injuries, such against public policy, and no contract could relieve the carrier of the exercise of ordinary care. Page 24a, No. 1404.

A clause releasing a carrier for liability for loss of goods, will not include its negligence; provision in a ticket that liability for baggage shall not exceed fifty dollars will relieve carrier of liability for negligence; shipment at reduced rates limiting liability to a specific valuation covers loss arising from negligence. Page 23a, No. 1413.

A carrier acts at its peril in the delivery of freight, and neither fraud nor mistake will excuse a delivery to one not the consignee. Page 57a, No. 1424.

Under the rule that the owner of property set apart to a public use impliedly agrees to be governed by such reasonable regulations as the public may adopt to promote the common convenience and general welfare, the State may enact reasonable regulations fixing the rates for transportation of freight and passengers, or prescribing any reasonable rules as to service, if such regulations do not interfere with interstate commerce, or take property for public use without just compensation, or violate any express charter provision granted by the State to the corporation. Page 59a, No. 1425.

Where a common carrier undertakes to transport merchandize, the presumption is that he does it subject to the common-law liability, and this presumption remains until it is overcome by proof of a special agreement. Page 107a, No. 1454. Where goods are accepted for shipment, whether intended to be immediate or remote, the placing of the

CARRIERS

Continued.

goods upon its platform renders a carrier responsible for any damages thereto from fire originating within its right of way, unless released from liability by the shipper. A carrier's rule that it assumed no risk for cotton placed upon its platform unless tendered for immediate shipment may be waived, and where it accepts cotton intended for shipment at some future time, the cotton will be upon its platform with the carrier's "consent," under Civ. Code (S. C.) 1902, § 2135, making a carrier responsible for loss by fire originating on its right of way, except for property which has been placed upon its right of way illegally or without its consent. In an action against a carrier for the loss of cotton destroyed by fire while on defendant's platform, the question whether it had been placed there by defendant's consent as cotton tendered for immediate shipment, notwithstanding a rule that the carrier assumed no risk for cotton put upon its platform, unless tendered for immediate shipment, held for the jury. Page 108a, No. 1455.

A carrier receiving property for transportation to a point on another line in another State is conclusively treated as having made a through contract of carriage, rendering it liable for the other carrier's negligent failure to deliver the shipment to the consignee.

Proof of delivery of an interstate shipment to the initial carrier, and of failure to deliver the same to the consignee, raises a presumption of negligence, so as to give rise to the liability for loss or damage caused by it or any other carrier in the chain of transportation, and casts upon it the burden of proving that the loss resulted from some cause for which such initial carrier was not responsible in law or by contract. Page 000a, No. 1480.

Where in an action for injuries to a street car passenger, required to leave the car to board another car because of excavations at a point where the street was rough and uneven and filled with loose dirt and stones, she slipped, and was injured, a special verdict that there was nothing to prevent her from seeing the condition of the street, did not show contributory negligence sufficient to overcome a general verdict in her favor.

CARRIERS- Continued.

A general verdict in her favor is not overcome, under the rule that, where answers to questions of fact are inconsistent with or contradictory of each other, the special findings do not overthrow the general verdict. The duty of a carrier of passengers to exercise the highest degree of care for its passengers applies to street railroads.

The rule which requires only ordinary care of railroad carriers in maintaining safe places for the ingress and egress of passengers at regular stopping places does not apply to the obligation imposed to alight from a car to board another, the requirement to alight being brought about by the company. Page 152a, No. 1479.

CARRIERS-BILL OF LADING: "Where a bill of lading is attached to a draft drawn on a third person, it will be treated as security for the draft, and neither title to the goods nor right to the bill of lading, will pass to the drawee until, as required therein, he accepts, or accepts and secures, or pays the draft, as the case may be." While the general rule is that where

one orders goods to be shipped by a common carrier, and the order is accepted and the goods shipped, a delivery to the carrier is a delivery to the purchaser, the carrier being the agent of the purchaser to receive them, and when this is done the title passes from the vendor to the vendee, this general rule, however, is subject to exception. If for any reason the seller, at the time of the shipment, and delivery of the goods to the common carrier, takes a bill of lading to his own order, and attaches thereto a draft for the purchase money, he thereby expresses his intention to retain the title until the draft is paid, or accepted, and secured; and, where this method of shipment is adopted, the carrier becomes the agent of the seller or consignor, and would be authorized to deliver the goods only on a surrender to it of the bill of lading. Page 105a, No. 1453.

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Where the shipper accepted in silence from an express company a shipping receipt containing an express limitation of the company's liability to fifty dollars, and it appeared that the shipper did not assent to such a limitation, and did not know that the receipt contained such a limitation. Held, that the trial judge, sitting as a jury, was justified in concluding, as matter of fact, that the limitation to fifty dollars was not a part of the contract between the parties. Page 107a, No. 1454. CARRIERS-LIMITATION OF LIA

BILITY:

The burden of showing an agreement, limiting the common-law liability of a carrier, rests upon the carrier. Page 107a, No. 1454. CHATTEL MORTGAGE:

The mortgagee in a chattel mortgage need not give notice of his intention to take possession; upon taking possession he is not required to assume, perform or complete the contracts of the mortgagor; he does not get absolute title to book accounts, though included in the mortgage, by statutory foreclosure; he is not required by law to collect them; he is not required to perform acts to perfect title to the property even though it be lost through omission to do so.

When the mortgage secures several debts which it is insufficient to pay, the mortgagee may elect to which debts it shall be applied; bringing suit on some of the debts, is an election to apply the mortgaged property to those not put in suit. Page 27a, No. 1405.

The essentials of a chattel mortgage are the existence of a debt, legal liability, or obligation, and an intent to secure the same by some form of conveyance.

Though an instrument purports to be an absolute transfer of chattels, a defeasance may be proved by parol, and thus establish a chattel mortgage; but the evidence must be clear and convincing. Page 61a, No. 1426.

CHATTEL MORTGAGE - Continued. The provisions of the contract that the dealer should repossess any instrument sold under agreement when necessary, and to resell the same for an amount equal to the balance due, with interest, or, in default, to replace the same or any deficiency with cash, etc., applied only to cases where the purchasers of pianos failed to keep up pay. ments, and the dealer found it necessary to repossess the instruments, and they did not make the contract a chattel mortgage.

The provision that the dealer should carry insurance did not make the contract a chattel mortgage, and prevent it from vesting in defendant title to pianos procured. Page 61a, No. 1426.

Even at law, a tender of the debt by the mortgagor after the law day, but before seizure of or demand for the chattels, revests legal title in him. Page 111a, No. 1457. In a prosecution for disposing of mortgaged property, evidence of accused's possession of the property prior to the time of disposition is admissible. The progeny of mortgaged animals, born after the making of the mortgage, are subject to its lien; and in a prosecution for disposing of mortgaged animals evidence of the birth of such progeny is admissible. Under Alabama Code, making it an offense to sell any mortgaged personalty, where an indictment charged the disposition of a number of mortgaged animals, proof, showing an unlawful disposition of one of them, was sufficient for conviction. Page 154a, No. 1481.

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CHATTEL MORTGAGES
Continued.

Evidence of the practical construction
placed by the parties on a contract
between a retail piano dealer and
defendant, who furnished the money
to pay the makers for pianos bought
by the dealer, held to show that the
contract was intended to pass title
to the pianos to defendant, and not
to be merely a mortgage to secure
advances. Page 61a, No. 1426.
A contract between a retail piano
dealer and defendant provided that
defendant, paying for pianos pur-
chased by the dealer for himself,
should consign them to the dealer
for sale, and that the dealer should
accept, on consignment, such pianos
at prices and on conditions agreed
on; that the dealer should report
all sales and settle for cash sales
immediately; that lien notes should
be indorsed to defendant until the
amount due for the instruments
represented was settled, with in-
terest; that the dealer's commission
should be the amount for which
instruments were sold in excess of
the cost thereof, and represented by
consignment receipts, reciting that
the instruments should remain the
property of defendant; and that the
dealer should make all collections,
and carry insurance to cover cost of
instruments in stock, and to sur-
render to defendant, on thirty days'
notice, unsold instruments held an
consignment Held, that the contract
vested in defendant the title to
pianos purchased from manufactur-
ers and paid for, and was not a
chattel mortgage to secure defend-
ant, the term "to consign" meaning
to transfer to a factor for sale, and
the term "consignment" indicating
title in the consignor.

SALES

The stipulation for commissions to the dealer did not prevent the contract from vesting title in defendant and to make the dealer his agent in selling pianos, for, in the absence of a special agreement, a factor is entitled, on the performance of services, to the customary commissions on the amount of goods sold, and commissions need not be on a percentage basis.

The fact that sales of pianos were made in the name of the dealer did not prevent the contract from vesting title in defendant; it being customary for commission merchants to sell in their own names. Page 61a, No. 1426.

Under the facts stated in the opinion, it is held that the sale of a span of

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CONSTITUTIONAL LAW -Continued. cilities. Section 22 requires every railroad to provide and maintain suitable depot buildings and clean toilet rooms at its regular stations. Section 28 provides that upon complaint of any person that any service is inadequate the commission may notify the company that complaint has been made, and, after giving it ten days' notice, may investigate the charge, compelling the attendance of witnesses, etc.; and, if the service is found insufficient, may make such orders in regard thereto as are reasonable. Section 53 imposes a penalty for neglecting any order of the commission. Held, that the Railroad Commission Act did not violate Const., art. 3, by empowering the commission to determine whether railroad companies had complied with their statutory duties as to service, etc., and to prescribe what was a reasonable service, in case they were not rendereing such service. Page 59a, No. 1425. A savings bank, so far, at least, as its rights are involved in those of its depositors, may raise the objection that property is taken without due process of law by Mass. Laws 1907, c. 340, providing that deposits which have remained inactive and claimed for thirty years, where the claimant is unknown or the depositor cannot be found, shall be paid to the treasurer and receiver general, to be held by him as trustee for the true owner or his legal representatives. No. 1442.

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