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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.
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.
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.
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-
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.
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.
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
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.
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.
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.
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.
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
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-
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.
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.
The object of the rule requiring
certainty in pleadings is not in.
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-
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.
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.
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-
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.
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
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.
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.
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-
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.
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
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
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.
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
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
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
adjoining property owner.
Volk v. Board of Ed.
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.