(G) Surprise, Accident. Inadvertence, or Mistake.
97 (Mich.) Too late to claim surprise, when no such claim made when plaintiff made elec- tion. In re Turner's Estate, 402.
(H) Newly Discovered Evidence. ›102(5) (Wis.) Motion for new trial because of newly discovered evidence held properly overruled for lack of diligence.-Seemann v. Kastner, 153..
104(3) (Minn.) Denial for newly discov ered cumulative evidence not abuse of discre- tion.-Spangenberg v. Christian, 700.
104 (3) (Wis.) Newly discovered evidence held insufficient to authorize.-Seemann v. Kast- ner, 153.
III. PROCEEDINGS TO PROCURE NEW TRIAL.
131(5) (S.D.) Clerk's failure to attach certificate to remainder of record did not re- quire judge to deny motion for new trial.- Haaser v. Englebrecht, 572.
II. PROXIMATE CAUSE OF INJURY. 56 (3) (Wis.) Causal connection between violation of statute and injury essential.- Schmidt v. Wisconsin Sugar Co., 222. 59 (Wis.) Anticipation of specific injury unnecessary.-Kausch v. Chicago, Milwaukee 163(2) (Minn.) Court in denying new trial Electric Ry. Co., 257. held not to have considered ground of newly discovered evidence.-Ricker v. J. L. Owens Co., 702.
III. CONTRIBUTORY NEGLIGENCE.
(C) Imputed Negligence.
93(1) (S.D.) Automobile driver's negligence See Dismissal and Nonsuit. not imputable to guest.-Eads v. Tiede, 823.
93(1) (Wis.) Automobile driver's negli- gence not imputed to guest.-Chase v. Ameri- can Cartage Co., 598.
93(2)(Iowa) Husband's negligence in driv- ing not imputable to wife riding.-Waring v. Dubuque Electric Co., 42.
(D) Comparative Negligence. 101 (Minn.) Railroad employé going to work within comparative negligence rule.-Sin- derson v. Payne, 237.
NUISANCE.
II. PUBLIC NUISANCES.
(A) Nature of Injury, and Liability There-
60 (N.D.) Statute authorizing injunction to abate bawdyhouse nuisance held constitutional.
101 (Wis.) Contributory negligence ground for apportionment of damages under federal-State v. McCray, 280. act.-Richter v. Chicago, M. & St. P. Ry. Co.,
IV. ACTIONS.
(B) Evidence.
121 (5) (Iowa) Proximate cause of injury must be shown.-Freeby v. Incorporated Town of Sibley, 685.
(C) Trial, Judgment, and Review. 136(5) (Wis.) Question for jury.-Isgro v. Plankinton Packing Co., 606.
136 (25) (Wis.) Proximate cause for court when clear from facts.-Schmidt v. Wisconsin Sugar Co., 222.
136 (26) (Neb.) Contributory negligence question for jury.-Kroger v. Gordon Fireproof Warehouse & Van Co., 312.
138(2) (Neb.) Instructions on burden of proof held sufficient.-Kroger v. Gordon Fire- proof Warehouse & Van Co., 312.
Statute directing seizure of property alleged a bawdyhouse nuisance held unconstitutional. -Id.
64 (N.D.) Human habitation not a nui- sance per se.-State v. McCray, 280.
(C) Abatement and Injunction. 83 (N.D.) Property not a nuisance per se may not be destroyed summarily without no- tice.-State v. McCray, 280.
OBLIGATION OF CONTRACTS. See Constitutional Law, 143.
See Judges; Justices of the Peace; Public Service Commissions; Receivers; Sheriffs and Constables.
138(4) (Neb.) Instruction on contributory negligence inapplicable.-Dirks v. Ensign Om-I. APPOINTMENT, QUALIFICATION, AND nibus & Transfer Co., 525.
NEGOTIABLE INSTRUMENTS.
See Bills and Notes.
See Criminal Law, 919-938.
(F) Verdict or Findings Contrary to Law or Evidence.
72 (Wis.) Granting new trial on ground verdict was against weight of evidence held not abuse of discretion, though court on appeal had intimated different opinion.-John v. Pierce,
(F) Term of Office, Vacancies, and Hold- ing Over.
54 (Wis.) Hold office until successor qual- ifies.--State v. Johnson, 729.
(G) Resignation, Suspension, or Removal. 702 [New, vol. 17 Key-No. Series]
(N.D.) Secretary of State exercises duty and discretion concerning sufficiency of recall petitions.-State v. Hall, 284.
No objection made, presumption is that Sec- retary of State performed duty and exercised discretion as to recall election.-Id.
702 [New, vol. 17 Key-No. Series] (S.D.) Recall provisions of Primary Election Law construed.-Burns V. Circuit
For cases in Dec.Dig. & Am.Dig. Key-No.Series & Indexes see same topic and KEY-NUMBER
III. RIGHTS, POWERS, DUTIES, AND
erty sold by partner to defraud partner.-Scott v. Mundy & Scott, 207.
119 (Neb.) Pleadings held to sustain dis-296 (3) (Iowa) Evidence held to show pri- missal of suit to recover salary paid to officer. ma facie a sale of half of partners' interest in oil leases.--Scott v. Mundy & Scott, 207. -Reigle v. Cavey, 323.
Evidence as to a sale of firm property held to show that if made by a partner it was un- authorized and intended to defraud his copart-
13 (Iowa) Governor may commute sen- ner.-Id. tence.-State v. Olander, 53.
II. ACTIONS FOR PARTITION. (A) Right of Action and Defenses. 12(1) (Minn.) Partition should be made subject to estate in severalty for life or years. -Heintz v. Wilhelm, 305.
19 (Minn.) Cotenant in remainder may compel partition although life tenant in pos- session. Heintz v. Wilhelm, 305.
(B) Proceedings and Relief. 63(3) (Minn.) Findings sustained as not clearly against the weight of the evidence. Wilson v. Wilson, 126.
63 (3) (Minn.) Evidence held insufficient to establish defense of misrepresentation in pay- ment of price.-Page v. McCurdy, 134.
100 (Minn.) Sale of homestead properly made subject to widow's life estate.-Heintz v. Wilhelm, 305.
PARTNERSHIP.
1. THE RELATION.
(A) Creation and Requisites. 5 (Neb.) Agreement between owner and another for procuring threshing contracts and doing the work held not a partnership.-Gillis- pie v. Bohling, 85.
(D) Actions for Dissolution and Account- ing.
336(3) (Minn.) Referee's finding on counts held sustained by evidence.-Sons v. Sons, 809. PAYMENT.
See Subrogation; Tender.
IV. PLEADING, EVIDENCE, TRIAL, AND REVIEW.
68 (Iowa) Evidence insufficient to show direction to apply payments on amount due under mortgage.-Barendregt v. Brink, 449.
4(9) (Mich.) Limitation to grandchildren after two life estates is void.-Rozell v. Rozell, 489.
Limitations to heirs of grandchildren held too remote.-Id.
7(2) (Wis.) Residuary gift held to require conversion into personal property and hence not to violate rule.-In re Smith's Will, 180.
PHYSICIANS AND SURGEONS. 6(11) (Mich.) Instruction defining "prac- tice of medicine" should recognize exceptions. -People v. Sekelyn, 479.
For pleadings in particular actions or proceed- ings, see also the various specific topics. For review of rulings relating to pleadings, see Appeal and Error.
I. FORM AND ALLEGATIONS IN GENERAL. 8(6) (Wis.) Allegations of violation penal statute, and death as proximate result thereof, held mere conclusions.-Schmidt v. Wisconsin Sugar Co.. 222.
III. MUTUAL RIGHTS, DUTIES, AND LIA-34 (7) (N.D.) Complaint first challenged on
BILITIES OF PARTNERS.
(A) Firm Property and Business. 78 (Iowa) Partner liable to the firm or copartner for fraud and concealment of a mis- appropriation.-Scott v. Mundy & Scott, 207. 83 (Mian.) Partner's claim for compensa- tion sustained where it can be fairly implied that compensation was intended.-Sons v. Sons, 809.
IV. RIGHTS AND LIABILITIES AS TO THIRD PERSONS.
(D) Actions by or Against Firms or Part-pal
VI. AMENDED AND SUPPLEMENTAL PLEADINGS AND REPLEADER.
235 (Iowa) Jurisdiction over action gives jurisdiction to permit amendment.-Goode v. Adams Express Co., 68.
only as to 236(1)(Iowa) Discretion amendments authorized by statute.-Stewart v. Stewart, 833.
236 (7) (Minn.) Refusal to allow amend- ment of answer by setting up set-off or coun- terclaim in midst of trial within court's discre- tion.-Stannard v. National Land Agency, 792.
236 (7) (Wis.) Refusal late in course of trial to allow amendment pleading new defense held not abuse of discretion.-Ehlers v. Gold, 596.
248(1) (Iowa) Amendment setting up new cause of action not permitted.-Stewart v. Stewart, 833.
279(4) (Iowa) Supplemental pleading may not set up new cause of action.-Stewart v. Stewart, 833.
X. FILING, SERVICE, AND WITHDRAWAL. 340 (Iowa) Substitution proper where lost. --Shuck v. Conway, 858.
XI. MOTIONS. 356(1) (Iowa) Amendment to answer after amendment of petition held erroneously strick- en.-Bringolf v. Parkhurst Auto Co., 11.
359 (Minn.) Answer alleging agreement for deferring time of payment held properly strick- en as sham.-Naftalin v. La Salle Holding Co., 128.
360 (3) (Minn.) Plaintiff held not to have sustained burden of showing defendants' answer to be sham, false, and frivolous, so as to au- thorize striking it.-Henning v. Carlson, 799. XIII. DEFECTS AND OBJECTIONS, WAIV- ER, AND AIDER BY VERDICT OR JUDGMENT.
432 (Wis.) Consent judgment waives de- fects in pleadings and irregularities.-Duras v. Keller, 149.
ity has implied authority to warrant.-Pioneer Electric Co. v. McCurdy, 776.
(D) Ratification. of benefits 171(1) (Minn.) Acceptance without inquiry held ratification of agent's un- authorized acts.-Pioneer Electric Co. v. Mc- Curdy, 776.
171(4) (Minn.) Principal held to have rati- fied unauthorized warranty of quality by agent. -Pioneer Electric Co. v. McCurdy, 776.
173(1) (Neb.) Burden of showing ratifica- tion is on one alleging it.-W. T. Rawleigh Co. v. Bunning, 331.
PRINCIPAL AND SURETY.
III. DISCHARGE OF SURETY.
125 (Minn.) Note holder's failure to pre- sent in probate court for payment from mak- er's estate does not release surety.-Manches- ter Sav. Bank v. Lynch, 794.
I. NATURE, ISSUANCE, REQUISITES, AND
19 (Neb.) Transitory action may be brought against two defendants jointly liable in any county where one of them may be served with summons, and summons may issue to other county. First State Bank of Whitman v. In- grum, 334. II. SERVICE.
(B) Substituted Service.
72 (S.D.) Service by leaving copy of sum- mons at dwelling can only be made on resident.
36 (Minn.) Evidence held not to justify find--Johnson v. Bruflat, 877. ing of fraud.-Giller v. First Nat. Bank, 816.
See Municipal Corporations, ~614-625.
(C) Publication or Other Notice. 84 (Iowa) Notice by publication construc- tive only.-Curtis v. Hoyt, 460.
85 (Iowa) Statute directing service by pub- lication to be strictly observed.-Curtis Hoyt, 460.
For practice in particular actions and proceed-87 (Iowa) Publication service on actual ings, see the various specific topics.
See Adverse Possession; Limitation of Actions.
PRINCIPAL AND AGENT.
See Attorney and Client; Brokers; Factors.
II. MUTUAL RIGHTS, DUTIES, AND LIABILITIES.
(A) Execution of Agency.
resident a nullity.-Curtis v. Hoyt, 460.
(D) Privileges and Exemptions. 120 (Neb.) One defendant cannot claim privilege of exemption from summons for a codefendant.-First State Bank of Whitman v. Ingrum, 334.
(E) Return and Proof of Service. 135 (S.D.) Judgment roll held to show prima facie lack of jurisdiction.-Johnson v. Bruflat, 877.
72 (Wis.) Agent investing principal's mon- ey in his own name held guilty of conversion.-138 (Iowa) Proof required for notice by publication element of jurisdiction.-Curtis v. Regas v. Helios, 165. Hoyt, 460.
79(3) (Neb.) Agent failing to take bond as requested, but taking another security, held not guilty of conversion, but liable for princi- pal's actual damages.-Bourquin v. Atlanta State Bank, 986.
138 (S.D.) Testimony of publisher held to remove prima facie truth of affidavit of pub- lication.-Johnson v. Bruflat, 877.
PROMISSORY NOTES.
79(5) (Wis.) Evidence held to show princi- pal did not acquiesce in agent's misappropria- See Bills and Notes. tion of funds.-Regas v. Helios, 165.
79(9) (Neb.) Agent paying fund contrary to principal's direction liable for actual dam- ages sustained.-Bourquin v. Atlanta State Bank, 986.
(B) Compensation and Lien of Agent. 89(9) (Iowa) Whether subagent released bonus to limited agent held for jury.-Babb v. Herring Motor Co., 672.
III. RIGHTS AND LIABILITIES AS TO THIRD PERSONS.
(A) Powers of Agent. 104(2) (Minn.) Agent authorized to sell property usually subject to warranty of qual-
6 (Iowa) Status of person as to taking rights in another's property fixed by law of domicile.-Webster v. Modern Woodmen of America, 659.
PUBLIC IMPROVEMENTS. See Municipal Corporations, 323-502. PUBLIC. SERVICE COMMISSIONS.
6 (Mich.) Jurisdiction must affirmatively appear in the statute.-Taylor v. Michigan Pub- lic Utilities Commission, 485.
For cases in Dec.Dig. & Am,Dig, Key-No.Series & Indexes see same topic and KEY-NUMBER
PUBLIC SERVICE CORPORATIONS.
See Carriers; Electricity; Gas;
(G) Injuries to Persons on or near Tracks. (S.D.) Independent contractor's —355(5) employee visiting cinder pit_held a trespasser. -Polluck v. Minneapolis & St. L. R. Co., 830.
381 (2) (S.D.) Independent contractor's employee visiting cinder pit_held negligent.- Polluck v. Minneapolis & St. L. R. Co., 830. (H) Injuries to Animals on or near Tracks.
430 (Iowa) Notice of loss essential to re- covery of double damages for killing stock.- Lister v. Chicago, R. I. & P. Ry. Co., 8.
Excessive demand defeats recovery of double damages for killing stock.-Id.
Verdict for double damages for killing cows held to show excessive claim in notice of loss.
443 (1) (Iowa) Owner of cattle killed not bound to show negligence beyond reasonable doubt.-Lister v. Chicago, R. I. & P. Ry Co., 8.
443 (2) (lowa) Killing of cattle by cars provable by circumstantial evidence.-Lister v. Chicago, R. I. & P. Ry. Co., 8.
Evidence held to show killing of cattle by train.-Id.
446 (2) (Iowa) Proximate cause of injury to animals question for jury.-Lister v. Chicago, R. I. & P. Ry. Co., 8.
II. PROSECUTION AND PUNISHMENT. (B) Evidence.
40(3) (Minn.) Proof of illicit relations with others competent.-State v. Perry, 310.
42 (Minn.) In prosecution for statutory rape, evidence that girls under 18 frequented defendant's place of business and rode about with him held incompetent.-State v. Friend. 241.
51(4) (S.D.) Evidence held to sustain con- viction in the first degree.-State v. Campbell, 952.
33 (2) (Minn.) Service of process on solicit;51(7) (Neb.) Evidence held sufficient to ing agent of foreign railway valid.-Farmers' identify the defendant as the offender.-Porter Co-op. Equity Co. v. Payne, 130. v. State, 1006.
V. RIGHT OF WAY AND OTHER INTER-
52(1) (Minn.) Evidence held to sustain conviction of statutory rape.-State v. Friend, ESTS IN LAND. 241. to sustain 75(3) (Iowa) City's consent to interurban 52(1) (Minn.) Evidence held railway's spur track necessary.-Interurban Ry. conviction for statutory rape.-State v. Dahl, 580. Co. v. City of Des Moines, 654.
(B) Statutory, Municipal, and Official Regulations.
225 (Minn.) Agent service required by stat- ute.-Citizens of Hines v. Minnesota & I. Ry. Co., 797.
(C) Trial and Review.
59(3) (Neb.) Instruction as to corrobora- tion of prosecutrix, referring to denial of accu- sation, held error.-Porter v. State, 1006.
Order to enlarge depot and provide agent See Partition; Quieting Title. service justified.-Id.
(D) Injuries to Licensees or Trespassers in General.
2732 (S.D.) Duty to employee of inde- pendent contractor stated.-Polluck v. Minne- apolis & St. L. R. Co.. 830.
282 (9) (Minn.) Evidence that defects in brake on freight car handled caused injury held to justify directed verdict.-Benedict v. Chi- cago, B. & Q. R. Co., 296.
(F) Accidents at Crossings.
1. NATURE AND GROUNDS OF RECEIVER- SHIP.
(B) Grounds of Appoiutment of Receiver.
16 (Mich.) Appointment of receiver for creamery company's real estate and income by trial court held proper, on account of complex- ity of property.-National Bank of Commerce v. Corliss, 717.
350 (3) (Iowa) Evidence of negligence as to automobile driver insufficient for jury.-Ma-153 (Iowa) Not liable for invalid tax as- sessed against corporation after appointment. garian v. Chicago, B. & Q. R. Co., $37. 350(7) (Iowa) Negligence in starting train-Union Petroleum Co. v. Indian Petroleum striking automobile held for jury.-Seaton v. Co., 439. Western Asphalt Paving Corporation, 458.
350 (7) (Mich.) Signal question for jury. See Appeal and Error, 500-695; Criminal Kosnicki v. Pere Marquette Ry. Co., 493.
350(15) (Iowa) Contributory negligence of automobile driver making detour around end of train held for jury.-Seaton v. Western As- phalt Paving Corporation, 458.
See Arbitration and Award.
II. REFEREES AND PROCEEDINGS.
75 (Minn.) Referee has substantially same See Vendor and Purchaser. powers as a trial judge where appointed to re- port a judgment but may not entertain motion for new trial.-Sons v. Sons, 809.
III. REPORT AND FINDINGS.
92 (Minn.) Referee has substantially same powers as a trial judge where appointed to report a judgment, and may amend or revise his findings until judgment is entered.-Sons v. Sons, 809.
99(4) (Minn.) Referee has substantially same powers as a trial judge where appointed to report a judgment, and his report of facts has the effect of a special verdict.-Sons v. Sons, 809.
REFORMATION OF INSTRUMENTS.
1. RIGHT OF ACTION AND DEFENSES. 16 (Iowa) Rule of relief by equity, where contract fails to express true intention stated. -Costello v. Stokely Grain Co., 842.
25 (Iowa) Where all facts equally within knowledge of parties, equity will not reform.- Costello v. Stokely Grain Co., 842.
II. PROCEEDINGS AND RELIEF. 44 (Iowa) Parol evidence rule held not to apply to actions for reformation.-Costello v. Stokely Grain Co., 842.
45(1) (Iowa) Degree of proof must pro- duce belief of truth of facts asserted to au- thorize. Costello v. Stokely Grain Co., 842.
45(2) (Minn.) Evidence held to support verdict upon special issues.-Carlson v. Kroe- ger, 705.
Evidence must not only preponderate for party seeking reformation, but must be con- vincing.-Id.
1. REQUISITES AND VALIDITY OF CON- TRACT.
1(4) (Neb.) Contract not void for indefi- niteness if requirements can be reasonably esti- mated.-C. W. Hull Co. v. Westerfield, 992.
23 (3) (Wis.) Written acknowledgment of verbal order, when accepted by buyer, held to constitute contract.-Stark v. Burnham Bros. Brick Co., 151.
38(1) (Iowa) Principal's promise to fur- nish experienced salesman held not fraudulent representation.-Security Sav. Bank v. Capp, 927.
52(6) (Minn.) Finding that contract with warranty was between plaintiff and defendant, and not between defendant and third person, sustained.-Pioneer Electric Co. v. McCurdy,
Finding that notes were given to third per- son as part of plaintiff's financing scheme, sus- tained.-Id.
II. CONSTRUCTION OF CONTRACT.
82(2) (Neb.) Cash sale presumed where no time of payment stated.-Edwards v. Has- tings Distributing Co., 980.
85(1) (Wis.) Contract held to contain no implied obligation that buyer would use brick only on a particular job.-Stark v. Burnham Bros. Brick Co., 151.
III. MODIFICATION OR RESCISSION OF CONTRACT.
(A) By Agreement of Parties, 89 (Wis.) Contract held not modified by check sent in response to seller's proposal to extend time of performance.-Quaker Maid 45 (9) (Iowa) Evidence held to show true Corporation v. New Holstein Canning Co., 590. intent of lease that landlord would tile 7092 (Iowa) Rescission arises only by mutual acres of land.-Costello v. Stokely Grain Co., consent.-Bringolf v. Parkhurst Auto Co., 11. 842.
I. REQUISITES AND VALIDITY. 16 (Neb.) Mutual mistake, to avoid, must relate to present or past facts and not to opin- ion as to future results of known facts.-Simp- son v. Omaha & C. B. St. Ry. Co., 1001.
Mistake as to future development of known injury is one of opinion, and not of fact.-Id. Held not to bar action for injuries unknown to either party.-Id.
III. PLEADING, EVIDENCE, TRIAL, AND REVIEW.
55 (Wls.) Burden of proving settlement in personal injury action stated.-Hanley v. Hines, 602.
57(1) (Wis.) Duly executed and signed re- lease can only be overcome by clear and con- vincing evidence by plaintiff.-Hanley v. Hines,
Evidence held insufficient to overcome release in passenger's action for injuries.-Id.
58(5) (Neb.) Whether there was mutual mistake may be submitted to the jury.-Simp- son v. Omaha & C. B. St. Ry. Co., 1001.
RETROSPECTIVE LAWS.
See Constitutional Law, 193-197.
(C) Rescission by Buyer.
130(1) (Neb.) Suit after rescission for purchase money held not one on guaranty.— Phelps v. Shuck, 313.
IV. PERFORMANCE OF CONTRACT. (C) Delivery and Acceptance of Goods.
174 (Neb.) Buyer not entitled to posses- sion until price is paid.-Edwards v. Hastings Distributing Co., 980.
Buyer's refusal to pay for goods delivered relieved seller of obligation to make further de- liveries. Id.
181(11) (Iowa) Compliance with condi- tions of installing smokeless furnace not shown. McMillan v. Jaeger Mfg. Co., 849. 181 (11) (Iowa) Evidence held not to show failure to deliver.-Security Sav. Bank v. Capp, 927.
181(12) (lowa) Evidence held to show plaintiff not responsible for damage to car of eggs.-Iowa City Produce Co. v. Bell-Jones Co., 445.
(D) Payment of Price.
188 (Wis.) Buyers, by taking goods from carrier after notice to seller of rejection, held not liable for more than actual value.-Green- berg v. Perlson, 161.
V. OPERATION AND EFFECT. (A) Transfer of Title as Between Parties. 202(6) (S.D.) Delivery of goods held not waiver of obligation to return trade acceptanc- es.-Rubber Corporation of America v. Brooks Tire & Battery Co., 953.
2182 (S.D.) Obligation to return trade acceptances held not waived as matter of law.- Rubber Corporation of America v. Brooks Tire
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