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Of trusts, see “Trusts,” $ 2.
Estates for years, see "Landlord and Tenant.”
By judgment, see "Judgment,” $ 3.
To allege error on appeal or writ of error, see "Appeal and Error," 5.
To deny validity of county bonds, see "Counties," 8 2.
To rescind contract of sale, see "Sales," § 2.
§ 1. Equitable estoppel.
In a suit to foreclose a mortgage, given to complainant by his son,
against a grantee of the property, it appeared that defendant and the
mortgagor were partners in a manufacturing business, and owners as ten-
ants in common of the real estate used in the business. They entered
into a contract by which the mortgagor retired as an active partner, but
remained for a term of five years as a silent partner, leaving the most of
his capital in the business, and also making defendant a loan to be used
in the business and accounted for subject to its risks. He also conveyed
his interest in the real estate to defendant "as a basis of credit," but took
a bond for its reconveyance at the end of the partnership term. About
that time he and defendant became involved in litigation respecting the
latter's accounting under the partnership agreement, which did not, how-
ever, involve or affect the real estate. Pending such litigation, and after
he had become entitled to a reconveyance of the real estate but had not re-
ceived it, he executed the mortgage in suit to complainant, covering his
interest in such real estate, to secure a valid indebtedness, which mortgage
was duly recorded. . Subsequently a settlement of the litigation was ef-
fected between the parties by which defendant paid the mortgagor a sum
of money in full of his interest in the business and the loan and received
a quitclaim deed to the mortgagor's interest in the real estate. Nothing
was said in regard to the mortgage, and defendant had no actual knowl-
edge of it. Complainant, who resided in another state, hearing of the
pending settlement, visited his son, and, on completion of the settlement,
received part payment of the mortgage debt from the proceeds, a portion
of which he gave to his son to be invested for the benefit of his family. It
was in dispute whether he arrived before or after the completion of the
settlement, but in any event he took no part therein. Held, that there was
nothing in such facts or in complainant's conduct which created an equi-
table estoppel to prevent him from enforcing his mortgage against the
property for the balance due him.
-Clark v. Lyster, 155 Fed. 513........ .........84 C. C. A. 27
As to particular facts or issues.
See "Damages," § 1.
In actions by or against particular classes of persons.
See "Attorney and Client," § 2; “Brokers," § 2; "Carriers," $ 2.
In particular civil actions or proceedings.
See "Negligence," & 2.
For broker's commission, see "Brokers," $ 2.
For death caused by operation of railroad, see "Railroads," $ 3.
For infringement of patent, see "Patents," $ 5.
For personal injuries, see “Master and Servant,” 8 5.
For services of attorney, see "Attorney and Client,” $ 2.
For unfair competition, see “Trade-Marks and Trade-Names," 8 2.
On insurance policy, see "Insurance," & 3.
In criminal prosecutions.
See “Conspiracy,” | 1; "Criminal Law,” 88 549; “Larceny," § 1; "Perjury,"
For keeping disorderly house, see “Disorderly House.”
Review and procedure thereon in appellate courts.
Harmless error in rulings on, see “Appeal and Error," $ 9.
Presentation in lower court of grounds of review, see "Criminal Law," 8 12.
Preservation in lower court of grounds of review, see “Appeal and Error," $ 2.
Review of discretionary rulings on, see "Criminal Law," § 13.
Review of evidence in general, see "Appeal and Error,” 8 8.
8 1. Burden of proof.
In an action by a corporation against its agent to charge him with a
balance of money advanced to him to be used for plaintiff and not ac-
counted for, where the receipt of the sums alleged to have been so advanced
was put in issue by defendant, the burden of proving such advances rested
upon the plaintiff, and was not sustained by the introduction in evidence
of defendant's account as shown on plaintiff's books, where its secretary
testified that many of the debit items in such account were entered by him
on hearsay and without any knowledge on his part as to their correctness;
nor was the defendant in such case called upon to introduce evidence to
impeach the correctness of such entries.
--Rosenthal v. Pine Hill Consol. Min. Co., 157 Fed. 83...
84 C. C. A. 587
§ 2. Relevancy, materiality, and competency in general.
The petition in an action against the lessee of a theater for a personal
injury alleged that among the appliances of the theater of which defend-
ant had control was a fire extinguisher which was kept on the sill of an
open window at the side of the stairway leading to the gallery of the
theater; that it was unsecured, and was in a place where men and boys,
in crowding down the stairway, as was usual at the close of a perform:
ance, were likely to knock it out of the window, as they in fact did, and
that it fell and injured plaintiff, who was on the walk below. Held, that
evidence was admissible to show that the descending crowd had several
times previously dislodged the fire extinguisher from its place in the
window, and that such fact was known to defendant, as material in de-
termining whether or not the fire extinguisher was in an unsafe and dan-
gerous place, and whether defendant was negligent in placing and per-
mitting it to remain there on the occasion in issue.
-Stair y. Kane, 156 Fed. 100.....
...84 C. C. A. 126
8 3. Admissions.
Where plaintiff sued defendant, a banker, for losses sustained through
an agent, on the ground that defendant knowingly permitted the agent
to deposit money advanced to him by plaintiff to his own credit in vio-
lation of his contract, an allegation in the answer that plaintiff had pre-
viously sued the agent for such losses and recovered judgment for a much
smaller sum than that demanded from defendant was not an admission
by defendant of his liability for the amount of such judgment, to which he
was not a party.
-Harris & Co. v. Chipman, 156 Fed. 929; Chipman v. Harris & Co.,
...84 C. C. A. 429
§ 4. Parol or extrinsic evidence affecting writings.
Where the provisions of a written contract of sale are clear and intelli-
gible, parol evidence of prior conversations between the parties is not
admissible to prove an intention inconsistent with the writing.
-Noyes v. Marlott, 156 Fed. 753...................84 C. C. A. 409
Where the provisions of a written contract of sale are clear and unam-
biguous, they cannot be changed or affected in meaning by proof of a cus-
tom at variance therewith.
-Noyes v. Marlott, 156 Fed. 753...................84 C. C. A. 409
EXCEPTIONS, BILL OF.
Necessity for purpose of review, see “Appeal and Error," $ 2.
Duties, see "Internal Revenue.”
EXECUTORS AND ADMINISTRATORS.
Testamentary trustees, see “Trusts."
of bankrupt, see "Bankruptcy,” $ 5.
Jurisdiction of United States court in Alaska, see “Criminal Law," $ 1.
To constitute the crime of obtaining money under false pretenses, the
alleged false representation must be of some past or existing fact, and an
information charging that a defendant obtained money from persons nam-
ed as rental for a building, by means of false representations that the
municipal authorities svould permit gambling games to be played therein
during a race meeting to be held in the future, is insufficient to charge an
-Biddle v. United States, 156 Fed. 759..............84 C. C. A. 415
Ground for jurisdiction, see "Courts,” $ 2.
In bankruptcy, see "Bankruptcy,” § 8.
Of attorney, see "Attorney and Client,” 8 2.
See “Master and Servant,” s 2.
of protest by importers, see “Customs Duties,” 8 2.
Review on appeal or writ of error, see "Appeal and Error," § 8.
FOLLOWING TRUST PROPERTY.
Bar to prosecution, see "Criminal Law," $ 3.
Power of municipal corporation to grant, see "Municipal Corporations," $ 1.
See "False Pretenses."
As ground for relief against judgment, see "Judgment,” $ 2.
Effect on limitation, see "Limitation of Actions," $ 1.
In adjustment of general average, see "Shipping," 8 2.
In release, see "Release,” 1.
8 1. Deception constituting fraud, and liability therefor.
Where no other means were employed to induce a plaintiff to accept a
proposition for a sale of bonds than the language contained in a writ-
ing, plaintiff cannot be heard to say that, because of his or her inaptness
in comprehending on examination the ordinary import and common ac-
ceptation of the terms employed, they must be made to mean more or
other than what they express.
-Kimber v. Young, 157 Fed. 199......
..84 0. C. A. 647
Allegations in the complaint in an action for fraud and deceit that
plaintiff was induced to buy certain bonds of a corporation by false rep-
resentations are not supported by a letter, written by defendant to plain-
tiff, in which he gave her the numbers of the bonds to be sold, stated that
the bond issue was arranged so that one-tenth would fall due each year
and the maturity of each bond was stated on its face, that the bonds of-
fered came in before those owned by defendant and bis associates, and
that, "indeed, you may be said to hold the preferred place on the list";
the only representation made which could in any event be actionable being
that as to the preferential character of the bonds offered, which, con-
strued in the light of the other statements, clearly meant no more than
that they matured before those bearing higher numbers in the series, and
which was not shown to be untrue, there being no allegation in respect
to any bonds owned by defendant and his associates.
-Kimber v. Young, 157 Fed. 199....... .....84 C. C. A. 647
§ 2. Actions.
An action for fraud and deceit must be predicated on existing facts
and not of matters possible to arise, and the plaintiff's pleading must
allege that the representations were false and that plaintiff was misled
thereby to his injury.
-Kimber v. Young, 157 Fed. 199......
...84 C. C. A. 647
Where the complaint in an action for fraud and deceit alleged that the
representations made were in writing and made to plaintitf, oral state-
ments made by defendant to a third person are not admissible in support
of such complaint.
-Kimber v. Young, 157 Fed. 199...................84 C. C. A. 647
$ 1. Real property and estates and interests therein.
A parol agreement by which one party agreed to locate and mark mining
claims and prepare the notices of location which were to be recorded
by and at the expense of the other parties, the first party to have a half
interest in the claims, and the second parties the other half interest, was
one for a joint venture, to which both parties were to contribute personal
services and money for their joint and equal benefit, and is not within
the statute of frauds.
-Cascaden v. Dunbar, 157 Fed. 62; Dunbar v. Cascaden, Id...
84 C. C. A. 566
§ 2. Requisites and sufficiency of writing.
A promissory note by which the makers promised to pay a stated sum
to the payee on a future date on surrender of certain shares of stock of
a corporation, accepted by the payee, is a written contract to take and
pay for such shares, and is not within the statute of frauds.
-In re Neff, 137 Fed. 57..........................84 C. C. A. 561
By bankrupt, see "Bankruptcy," 8 2.