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Q:68 (Mo..App.) Subsequent mortgagor of furniture, who escaped conviction for selling it as unincumbered on plea that he signed papers on understanding that they related to other property, could not set up that such papers were a new note and mortgage in substitution for the first note and mortgage.—Western Auction & Storage Co. v. Shore, 179 S. W. 769. C>93 (Tex.Civ.App.) An abutting owner held estopped to claim damages for the construction of a railroad past his property by subscribing to a fund to induce such construction and for relinquishment of damages therefor-Quanah, A. & P. Ry. Co. v. Dickey, 179 S. W. 69.
(E) P1eading, Evidence, Trial, and ReVie W.
<>107. (Tex.Civ.App.). One claiming title by estoppel must plead and prove the facts creating.
use, was admissible as to the capacity of freight #–McLaughlin v. Terrell Bros., 179 S. W.
&= 185 (Tex.Civ.App.) Where, in suit to foreclose vendor's lien, plaintiff alleged the original deed was in defendant's possession, and that the latter had been duly notified to produce it and had failed, there was a proper predicate for secondary evidence of its contents.—Stewart v. Thomas, 179 S. W. 886.
(A) Nature, Form, and Incidents in General.
6:21 1 (Mo..App.) The testimony of the predecessor in title of plaintiffs in unlawful detainer, bearing on the issue whether such predecessor verbally rented the premises to defendant, given in a prior suit for rent, was admissible.—McCracken v. Schuster, 179 S.W. 757.
(C) By Grantors, Former Owners, or Privies.
&=231 (Mo..App.) In replevin for furniture claimed under a chattel mortgage, defendant was not bound by the mortgagor's admissions after he conveyed the title to one from whom defendant took title.—Western Auction & Storage Co. v. Shore, 179 S. W. 769.
(D) By Agents or Other Representatives.
&=248 (Tex.Civ.App.) Admissions of divorced wife in pleadings and evidence that goods purchased during marriage were necessaries held not conclusive against the husband.—Trammell v. Neiman-Marcus Co., 179 S. W. 271.
C>253 (Ry.) Declarations of a conspirator made after the purposes of the conspiracy are terminated cannot be proved against a CO-Conspirator.—Cole v. Collins, 179 S. W. 607.
(E) Proof and Effect.
C=258 (Ky.) In an action against a railroad and trainmen for a death caused by an engine step, testimony that witness heard testimony at inquest of person said to be one of the trainmen that the engine step was loose before the accident held inadmissible, unless the witness identified the trainmen.—Cincinnati, N. O. & T. P. Ry. Co. v. Frogg's Adm’r, 179 S. W. 1062.
C>260 (Ky.) In a civil proceeding founded on conspiracy the conspiracy must be proved otherwise than by the testimony of a conspirator before his acts and declarations are admissible against a co-conspirator.—Cole v. Collins, 179 S.
C: 130 (Tex.Civ.App.) It is not error to ex- W. 607
clude from evidence a letter written to defendant by its agent in regard to plaintiff's claim for damages, for the letter is res inter alios acta.—Missouri, K. & T. Ry. Co. of Texas V. A. E. Want & Co., 179 S.W. 903.
&= 143 (Tex.Civ.App.) In trover and conversion, testimony as to market value of certain grass seed held inadmissible as being too weak to be considered.—First Nat. Bank of Plainview v. McWhorter, 179 S.W. 1147.
Q: 155 (Ky.) Where defendant denied signing note for alleged loan and sought to show that plaintiff did not have the means to make the loan, testimony of bank cashier as to plaintiff’s de#t therein held competent.—Shelby V. Grable, 179 S. W. 1.
V. BEST AND SECONDARY EVIDENCE.
<> 158 (Tex:Civ.App.) In an , action for the price of wood in which defendant claimed shortage, a copy of the American Railway Equipment Register, with testimony to its general
6:265 (Mo..App.) That person claiming to have been struck by defendant's automobile told him that she was not hurt, and later that she had no grievance against him, held not conclusive against her, but only a circumstance for the jury’s consideration.—Ginter v. O’Donoghue, 179 S. W. 732.
Q:314 (Tex.Civ.App.) Except in cases of pedigree, relationship, marriage, death, age, and boundaries, hearsay evidence is inadmissible.— #rabeck v. Griffith & Griffith, 179 S. W.
3:2317 (Tex.Civ.App.) In action against brokers for share of commission, defendant’s testimony that party who brought in purchaser stated plaintiff had not sent him held hearsay and inadmissible.—Pulkrabeck v. Griffith & Griffith, 179 S. W. 282.
&=317 (Tex.Civ.App.) In trover by a wife for grass seed seized for her husband's debts, evidence by plaintiff as to the value of such seed, based upon information received by her through others, was inadmissible as hearsay.—First Nat. # of Plainview v. McWhorter, 179 S. W. 4. ©=318 (Tex.Civ.App.) In an action for wood sold f. o. b. cars at A., in the absence of evidence as to the correctness of the statement in freight bills of the railroad as to the number of cords of wood on arrival at H., the exclusion of such bills was proper.—McLaughlin v. Terrell Bros., 179 S. W. 932. In an action for the price of wood, in which defendant claimed shortage, a copy of the American Railway Equipment Register, with testimony to its general use, was admissible as to the capacity of freight cars.—Id. A railway equipment register as to the dimensions of cars being admissible, it was proper to admit a memorandum, condensing the information desired, from the book.—Id.
&=323 (Ark.) A witness may testify as to the market value of fruits at a given time; his information being based on market reports.—St. Louis, I. M. & S. R. Co. v. Laser Grain Co., 179 S. W. 189.
X., DOCUMENTARY EVIDENCE. (C) Private Writings and Publications.
8:352 (Mo...App.) In a switchman's action for injuries while coupling cars under the Federal Employers' Liability Act, railroad records as to the movement of the car held admissible, where their identity and correctness had been properly attested.—Trowbridge v. Kansas City & W. B. Ry. Co., 179 S.W. 777.
Q=354 (Tex.Civ.App.) In an action for the price of lumber sold, plaintiff's daybook, or journal, containing the first permanent entry of sales items taken from slips made out by yardmen, held admissible as a book of original entry.-Scruggs v. E. L. Woodley Lumber Co., 179 S. W. 897. Books of account are not admissible under the rule admitting accounts kept by the parties, where they do not contain items and charges made in the regular course, of business.–Id. In action for price of lumber, addition to name of party charged of the word “residence” held not such an alteration as to render plaintiff's account book inadmissible.—Id.
“3:359 (Tex.Civ.App.) Explanation of evidence of physician attending plaintiff switchman, injured while in the employ of the defendant, by X-ray photographs of plaintiff's anatomy after injury, is admissible, if preliminary evidence has established the correctness of the photographs.-Pecos & N. T. Ry. Co. v. Winkler, 179 S. W. 691.
(D) Production, Authentication, and Effect.
<>366 (Tex.Civ.App.) In an action for damages for negligent transportation of stock, it is not error to exclude government reports of tests of shrinkage of stock in transportation, where there is nothing to show that they are accurate, authentic, or that the tests embraced therein were made under similar conditions.— Missouri, K. & T. Ry. Co. of Texas V. Dale Bros. Land & Cattle Co., 179 S.W. 935.
C=368 (Ky.) Refusal to order production of books of bank after cashier had testified without objection from a memorandum concerning a deposit in the bank held not error.—Shelby V. Grabble, 179 S. W. 1.
&:383 (Tex.Civ.App.) A pamphlet or other document, purporting to have been used by the government or under the authority of some department of the government, has, prima facie, no more weight as evidence, nor greater authenticity, or verity, than documents issued by other authority.—Missouri, K. & T. Ry. Co. of W', 5. Dale Bros. Land & Cattle Co., 179 S.
XI. PAROL OR EXTRINSIC EVIDENCE AFFECTING WIRITINGS.
(A) Contradicting, Varying, or Adding to - Terms of Written Instrument. 6:397 (Ky.) Prior negotiations and agreements are merged by the execution of a written contract deliberately covering the subject-matter, and, in the absence of fraud or mistake, parol or extrinsic evidence is not admissible to vary or contradict its terms.—Citizens' Trust & Guaranty Co. v. E armers' Bank of Estill County, l (9 S. W. 29. The written contract which will merge prior agreements and render inadmissible parol evidence varying its terms need not be in any particular form, contained in one paper, or signed by both parties.—Id. &400 (Tex.Civ.App.) A seller may by written contract limit his warranty of the article sold, and, in the absence of fraud, accident, or mistake, parol evidence is not admissible to vary or contradict this contract.—Bolt v. State Sav#, Bank of Manchester, lowa, 179 S. W.
&=419 (Tenn.) In a suit to recover for a deficiency in a parcel of land, the price per acre
may be shown by parol, though not stated in the deed; the real contract between the parties £rning-Caughton v. Stinespring, 179 S.W. 52.
Q=419 (Tex.Civ.App.) Parol evidence of the real consideration of a written contract is admissible, although it contradicts the consideration named in the contract.—Blair & Hughes Co. v. Watkins & Kelley, 179 S. W. 530. C:423 (Mo..App.). Under Rev. St. 1909, § 100.33, the legal effect of a blank indorsement cannot be changed by parol evidence.—First Nat. Bank of Grant City v. Korn, 179 S.W. 721.
(B) Invalidating Written Instrument.
C>433 (Tex.Civ.App.) Where transfer of partner's interest in business was not intended to cover only part of the transaction, and omission of a transfer of claims resulted from mistake, held that such transfer could not be shown by parol.—City of Brownsville v. Tumlinson, 179 S. W. 1107. C:434 (Ark.) Where the defendant alleges fraud and misrepresentations in the procurement of a contract, parol evidence is admissible to show the deceit, although it varies the written contract.—Barker v. Lack, 179 S. W. 493. G->434 (Tex.Civ.App.) Where fraud is alleged in the answer to an action on a note with respect to the plaintiff's representation as to the application of collateral, parol evidence of the agreement was admissible.—First State Bank of Amarillo v. Cooper, 179 S. W. 295.
Q=434 (Tex.Civ.App.) Parol evidence of fraudulent representations inducing an order for goods held admissible, although the order stipulates that all its conditions appear upon its face.—Blair & Hughes Co. v. Watkins & Kelley, 179 S. W. 530. C:434 (Tex.Civ.App.) Purchaser sued for purchase price, in support of plea of failure of consideration, held entitled to show by parol material misrepresentations.—Bolt v. State Sav#, Bank of Manchester, Iowa, 179 S. W. 1119.
(C) Separate or Subsequent Oral AgreeIn t int.
&=441 (Ark.) A note absolute on its face cannot be varied by parol agreement, that satisfaction should be sought out of mortgaged property.—Smith v. McLaughlin, 179 S. W. 496. &=441 (Ky.) In action to recover purchase price of goods sold, answer setting up collateral parol agreement held bad for failure to allege its omission through fraud or mistake from purchase contract.—Louisville Trust Co. v. Bayer Steam Soot Blower Co., 179 S. W. 1034.
<>441 (Tex.Civ.App.) The terms of a promissory note are conclusive of the contract, and cannot be changed by parol evidence of an understanding that it was never to be paid.— Lockney State Bank v. Damron, 179 S. W. 552. Q:441 (Tex. Civ. App.) Written warranty of horse, executed as part of contract of sale, held to exclude any warranty not therein contained, as well as evidence of fraudulent representations.—Bolt v. State Savings Bank of Manchester, Iowa, 179 S. W. 1119.
<>442 (Tex. Civ. App.) Evidence held insufflcient to show that written transfer of partner's interest in business purported to express only a part of the transaction so as to authorize parol proof of a transfer of the claim sued on. I'' of Brownsville v. Tumlinson, 179 S. W.
(D) Construction or Application of Lans guage of Written Instrument.
<>459 (Ky.) Where contract was in the name of a company, it might be shown by parol who the members of the alleged company were and whom it was intended to bind.—Geary v. Taylor, 179 S. W. 426. <>462 (Mo..App.) Manufacturing company’s advertisement for agent, and correspondence leading up to contract with resident of South Carolina, could be considered to resolve ambiguity in the contract as to whether it appointed a sales agent or provided for the sale of goods.— Watkins v. Donnell, 179 S.W. 980.
XII. OPINION EVIDENCE.
(A) Conclusions and Opinions of Wit
messes in General. &:471 (Tex.Civ.App.) In an action on a note, where one of the issues of fact and law was whether one M. was a principal or a surety, his statement that he was a surety involved a legal conclusion.—First State Bank of Amarillo v. Cooper, 179 S. W. 295. <>471 (Tex.Civ.App.) Admission of portion of answer of witness, which, taken alone, appeared to be opinion as to meaning of a third person's statements, but which, in view of the entire answer, merely stated what such third person had said, was proper.—Postal Telegraph Cable Co. of Texas v. De Krekko, 179 S. W. 525. C:471 (Tex.Civ.App.) A question inquiring of defendant whether he had any agreement with plaintiff whatever, or gave him any right to the property in controversy, was not objectionable as calling for a conclusion.—Hall v. Ray, 179 S. W. 1135. G:472 (Tex.Civ.App.) In an action on a note, where one of the issues of fact and law was whether one M. was a principal or a surety, his statement that he was a surety invaded the province of the jury.—First State Bank of Amarillo v. Cooper, 179 S. W. 295. &=474 (Tex.Civ.App.) Plaintiff who testified to his familiarity with conditions and knowledge of the market value held competent to testify as to the market value of his property, though he became confused on cross-examination as to difference between market and actual value.—Houston Belt & Terminal IRy. Co. v. Vogel, 179 S. W. 268.
(B) Subjects of Expert Testimony.
G->506 (Mo..App.) In an action against street railroad for personal injury from a collision, offer of the facts which an expert medical witness had discovered on his examination, and his admissible opinions as an expert, held not objectionable as invading the province of the jury.—Michaels v. Harvey, 179 S.W. 735.
(D) Examination of Experts.
<>553 (Mo..App.) In an action for injuries to an occupant of a wagon in a collision at a street crossing, it was not error to predicate
V. STAY, QUASHING, VACATING, AND RELIEF AGAINST EXECUTION.
3: 172 (Tex.Civ.App.) In a suit to restrain a sale under execution, evidence held to justify a temporary injunction and refusal to dissolve it. —Whitaker v. Hill, 179 S. W. 539.
VI. CLAIMS BY THIRD PERSONS.
Q: 184 (Tex.Civ.App.) Amendment of claimant's oath, setting up claim to property levied on under execution to include allegation that he was also acting for his minor brother, held W' permitted.—Grisham v. Ward, 179 S.
Q: 201 (Tex.Civ.App.) On trial of claim to property levied on under execution, agreement by claimants to pay the judgments by the delivery of such property held enforceable.—Grisham v. Ward, 179 S.W. 893.
EXECUTORS AND ADMINISTRATORS.
See Descent and Distribution; Wills; Witnesses, 3:138.
II. APPOINTMENT, QUALIFICATION, - AND TENURE.
&: I 1 (Tenn.) Under Shannon's Code, § 3935, an administrator of a nonresident may be appointed in a county in which there are no assets except a cause of action for wrongful death in that county.—Sharp v. Cincinnati, N. O. \, T. P. Ry. Co., 179 S. W. 375. “Estate,” as used in Shannon's Code, § 3935, subd. 4, as to appointment of administrator where any suit is to be brought or defended in which the estate is interested, defined.—Id. &: I 1 (Tenn.) Administrator to sue for wrongful death of nonresident killed in another state held appointable wherever defendant may be
found in the state.—Howard v. Nashville, C. & |
first being raised by objection to evidence, held sufficient.—Biggerstaff v. Riley, 179 S. W. 744.
See Homestead; Taxation, ©:241, 242.
See Insurance, 3:549.
See Evidence, Ç:506, 553.
EXPLOSIVES. See Master and Servant, @:107, 190, 265.
C:28 (Tex.) A member of a city fire department, injured by one of a series of explosions constituting a continuing negligent act on defendant's part, held not negligent in entering upon the premises.—Houston Belt & Terminal Ry. Co. v. Johansen, 179 S. W. 853.
See Malicious Prosecution.
I. CIVIL LIABILITY.
(A) Acts Constituting False Imprisonment and Liability. Therefor.
C> 15 (Ky.) A railroad responsible for the appointment of a special police officer could not regard him as a de facto officer after his office was vacated by failure to take the oath, etc., since it was bound to know that he was an officer de jure before he was given employment on its trains.—Cincinnati, N. O. & T. P. Ry. Co. v. Cundiff, 179 S. W. 615.
Railroad employé summoned by special railway police officer without authority and assisting in ejecting and arresting a passenger held liable as a trespasser.—Id.
In view of Ky. St. § 3755, railroad held responsible for acts of special police officer whose office had been vacated for failure to take oath, etc.—Id.
&=>24 (Ky.) In an action against a carrier and its special police officer for wrongful arrest, where the evidence justified compensatory damages only, evidence as to the officer's motive in making the arrest was inadmissible.—Cincinnati, N. O. & T. P. Ry. Co. v. Cundiff, 179 S. W. 615.
&=35 (Ky.) Where defendant carrier's special police officer and another employé used no unnecessary force or any insulting language, etc., in ejecting and arresting a passenger, punitive damages were not recoverable.—Cincinnati, N. O. & T. P. Ry. Co. v. Cundiff, 179 S.W. 615. <>36 (Ky.) Verdict of $4,000 for passenger's wrongful ejection and arrest without excessive force or brutal treatment held excessive.-Cincinnati, N. O. & T. P. Ry. Co. v. Cundiff, 179 S. W. 615.
FALSE PRETENSES. See Criminal Law, @:372.
<>7 (Ark.) To make out the offense of obtaining money by false pretenses, the pretense must be of a past event or of a present fact, and not a future promise.—Lawson v. State, 179 S.W. Where defendant falsely represented himself to be a revenue officer, that, it was his power and duty to arrest witness, but that he would end the matter on payment to him of $300, which was given him he was guilty of obtaining money by false pretenses.-Id.