ligious training so provided for, and he cannot be heard to say that the well-being of the children demands the violation of such agreement Luck, In re.
1 But after such agreement has been annulled or disregarded by the father as surviving parent, having custody of the children, and for years, since the death of the mother, the nurture of the children has been away from such training, no such estoppel, upon the death of the fath- er and in a contest between relatives of the father and mother, can be al. lowed to prevail over conditions which may materially affect the wel. fare of the children.
Ib. Under circumstances above stated, where it appears that the mother's relatives seeking guardian- ship of children of the ages (at date of application) of six and seven years, made no application therefor until more than four years after the mother's death, and that the chil. dren have grown into the affections of the father's relatives, with whom they have been allowed to remain, and no preponderating circumstances appear establishing that the best in- terests of the children will be sub- served by a change, they should be allowed to remain with the father's relatives although under such guard- ianship their religious training will be in violation of the marriage agreement above referred to. Ib.
See OFFICES WRONGFUL DEATH.
PARTITION-
Partition may be had where the life tenant consents to a sale free of the life estate and it appears to the court that a sale will not be prej. uicial to the interests of the re- maindermen. Helmig Merer.
and the burden is his, that all debts and claims have been paid or secur- ed to be paid. Schneider v. Cordes- man.
PARTNERSHIPS-
A partnership at will may be dissolved by agreement of partners, and it is immaterial whether it be done by an express agreement, or by acts and conduct of its members, or one of them, showing an intention, with acts carrying it into effect, to terminate the relation. Dun & Co. v. Insurance Co.
667 The fact that one member of a firm, organized for the purpose of carrying on a banking business, pur- chased in good faith, goods for the firm in consideration for and in sat- isfaction of a judgment held by the firm against the owner thereof, with- out consulting with the other mem- ber or getting his consent thereto, and kept the store, containing these goods as a stock, open as a going concern, and sold goods from time to time, will not operate, as a de- fense of dissolution of the firm. Ib.
The fact that one member of a firm went out of the state to live and gave no further personal attention to tlie firm business, but left it to the resident partner, does not in itself work a dissolution thereof. Ib.
An association of corporations under the name of the Golden Eagle Buggy Company, without incorpora. tion or partnership contract, which does not show such a mutual agen- cy, common ownership or profit sharing as is necessary to constitute a partnership. Merchant's Nat'l Bk. v. Wagon Co.
81 See also INSURANCE-FIRE.
fringed where the matter in refer. ence to which the pleading is said to be uncertain, is peculiarly within the knowledge of the opposing party.
Ib. Less certainty is required in set- ting out matters of inducement, than in setting out the gist of the .action; therefore, a plaintiff will not be compellel to set forth the names of individuals, copartnerships, and corporations, organized as, a trust, under a certaine name, for the pur- pose of “freezing" him out of a cer- tain line of business.
Ib. The filing and determination of a demurrer to a pleading on the ground of insufficiency, is a waiver of the right to file a motion to strike out from such pleading or to make the came definite and certain. Mont- gomery v. Thomas.
290 A petition in an action on an in- junction bond, alleging that a tem- porary restraining order was grant- ed and a bond given; that plaintiff was restrained and prevented from completing his building for some time and that he was caused expense in procuring the restraining order to be dissolved and the petition in the original action to be dismissed, by a fair inference amounts to a suffi- cient allegation of the fact that the court decided that the injunction ought not to have been granted, al- though the better course would have been to have stated more directly the action of the court as to the re- straining order. Tarbell v. Ennis.
346 The defendant in a suit upon a promissory note who pleads a want of consideration may be required, by motion to make more definite and certain, to set forth the specific facts upon which such defense is based. Eagle Ins. Co. v. Blymyer.
417 Section 5091, Rev. Stat., substi- tuted an averment of performance, generally, for the specific averments of the common law, but in no way broadened the effect of such an aver- ment. It is still limited to, and is to be read in connection with the conditions precedent, pleaded by plaintiff as part of the defendant's contract. Lauer v. Life Assurance Society.
397 At common law it was the rule that a performance of each condi- tion precedent set fort as a part of the promise must be averred spe-
PLEADING-
A party cannot allege want of knowledge of matters of record. These should be ascertained and def- initely set out. Wentzel v. Zinn. 97
Material averments and entire causes of action can not be stricken out on motion. They must be met by demurrer or answer.
Ib. A motion to make an allegation more definite and certain will not lie where such allegation, though in itself uncertain, is explained in a subsequent part of the pleading. Barron v. Plate Glass Co.
114 The object of the rule requiring certainty in pleadings is not in.
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PLEADING--Continued.
cifically; but these averments of per- formance related and referred to, and were required of, those condi- tions alone which plaintiff averred as a part of the defendant's con- tract.
Ib. The time when the contract was made, if material, must be stated and laid truly; but if not material, any time antecedent to the bringing of the suit, within the statute of lim- itations, will suffice. The place of making the contract need not, as a general rule, be averred; place, how- ever, may become material in a par- ticular case, and the burden of plead- ing it, whether upon the plaintiff or defendant, will depend upon the circumstances of such case. Ib.
Plaintiff, in his petition, has the right to state his view or conception of the matter or contract, and if de. fendant does not agree with him, he then interposes his defense to sus- tain his own view or destroy plain- tiff's. But the court cannot under- take, on mere motion, to make plain- tiff plead a view of the contract not in harmony with defendant's no- tions, as the court cannot take ju- dicial notice of what the contract really may be.
Ib. An insurance policy is a written instrument within the meaning of sec, 5085, Rev. Stat., above referred to, and when sued upon, copy thereof should be attached to the pe- tition; and if a copy of the applica- tion for insurance constitutes a part of the policy, it should also be at- tached; otherwise it is not required.
Ib. In declaring upon a contract the primary rule is that the promise, the obligation, of the defendant, must he fully, truly and accurately set forth; hence, if the promise or obli- gation be dependent upon conditions precedent, such conditions form an integral part of the promise or obli- gation of the defendant, and must be fully, truly and accurately plead- ed.
Ib. A written instrument as evi. dence of indebtedness, under sec. 5085, Rey. Stat., comprises any in- strument in writing which witnesses a promise, whether conditional or unconditional, on the part of the maker thereof, to pay a certain fix- ed, liquidated si of money; when sued upon, a copy of such instru-
tition contained such averments as to interest due, which, when taken in connection with the recital in gen- eral terms of a subsequent agree- ment, made it uncertain whether plaintiff counted on the agreement or a note, the pleader should be re- quired to reform such pleading. Ed- wards v. Daller.
531
PUBLICATION-
Publication, when a daily paper is selected, once each week and on the same day, for three consecutive weeks, constitutes a compliance with sec. 2502, Rev. Stat., relating to pub- lic notice of ordinances granting rights to street railway companies. It is not necessary that the notice should appear on every secular day for three weeks. Smith v. Railway Co.
441
RAILROADS-
Section 3365, Rev. Stat., impos- ing upon railroad companies the duty of blocking guard-rails, except upon bridges, applies to trestles. Johns v. Railway Co.
348 If data are furnished by which the speed of a railroad train can be determined, the question whether the train was running at an unlaw. ful rate of speed should go to the jury. If not, it is then a question of law for the court. Watson V. Railroad Co.
454 The mere fact that a railroad train was running at an unlawful rate of speed at a public crossing, does not, of itself, constitute negli- gence. There must be some other element in the situation to consti- tute negligence.
Ib. Under circumstances stated in preceding paragraph, the question whether the whistle was blown with- in the prescribed distance from the crossing in question can not be prov- ed by mere opinions of witnesses, that it was blown for one crossing or the other; such fact must be proved by showing that the train was within the limits and the whistle was or was not blown. Ib.
The engineer of a railroad train is required to use ordinary care to ascertain if a person at public crossing is in danger; and by the ex- ercise of that care to save him if he can, but it is also the duty of a per- son at the crossing to exercise ordi. nary care on his part to avoid in. jury when he finds himself in a crit- ical place or can ascertain by the ex- ercise of ordinary care that he is in imminent danger. The two propo- sitions form the complement of the law on the subject.
Ib. A man has the right to rely up- on performance of duties which the law imposes upon a railroad com- pany at crossings, whenever it is not
RAILROADS-Continued.
apparent, to one exercising ordinary care, that the company has not com. plied with its duty. But where a look would have revealed the fact, and that danger was imminent, as where, in broad daylight, at a cross- ing where the track
straight and the view unobstructed, and the whistle of an approaching train was blown for another crossing but could be distinctly heard and the train plainly seen from the crossing in question, a person injured under these circumstances cannot recover.
Ib. The statute makes the failure to blow the whistle within the pre- scribed distance from a public cross- ing a ground of recovery, but where, within the statutory distance from a crossing there is another crossing, so that necessarily, in order to com- ply with the law, the minimum dis- tance at which the whistle could be blown for the crossing in question would be beyond the other crossing, this fact puts the plaintiff upon proof that a whistle blown beyond the first crossing was not blown within the statutory distance from the crossing in question.
the northern boundary line to the south bank of Mad river, "at low water mark," when the water in the river is at its average and ordinary stage, during the entire year, with- out reference to the extraordinary freshets of the winter and spring or the extreme droughts of the summer or autumn.
Ib. A board of education is liable for damages where by its acts there has been an invasion of the property rights of a private party, as where such board causes excavations to be made to a greater depth than nine feet, as provided in sec. 2676, Rev. Stat., and thereby causes injury to the foundations, walls or buildings of an
adjoining property owner. Volk v. Board of Ed.
35 The right conferred by sec. 2676, Rev. Stat., of having the foundations and walls and buildings secured against damages resulting from ex. cavations on adjoining property to a greater depth than nine feet, is in the nature of a property right; and, therefore, whoever causes injury to the foundation, walls or buildings of another, invades or takes a property right expressly given by statute.
The indebtedness of a devisee of specific realty is not, without judg. ment and levy by the executor, a charge upon or set-off against the realty so specifically devised. Wood- ruff v. Snowden.
123
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