§ 2. Pleading, evidence, trial, and review.
In an action on an accident insurance policy in which a formal release
of the claim executed by defendant for a stated consideration was pleaded
as a defense, a replication which in effect denied that plaintiff executed
a release but alleged that if she did it was procured by fraud and deceit
in that defendant's agents represented to her that defendant was not liable
on the policy and read affidavits to her purporting to state facts, known
to them to be untrue, in support of such representation, whereby she was
induced to accept a sum of money from defendant which purported to be
a gift, does not state such a case of fraud as would avoid the release at
law.
-Pacific Mut. Life Ins. Co. of California v. Webb, 157 Fed. 155.....
84 C. C. A. 603
Of evidence in civil actions, see "Evidence," § 2.
Effect on jurisdiction of equity, see "Equity," § 1.
REMOVAL OF CAUSES.
§ 1. Citizenship or alienage of parties.
Every corporation of every state has the absolute right to remove to
the federal courts its suits in any other states in the cases and on the
terms prescribed by the acts of Congress.
-Butler Bros. Shoe Co. v. United States Rubber Co., 156 Fed. 1...
84 C. C. A. 167
of statute, see "Statutes," § 1.
Cancellation of written instrument, see "Cancellation of Instruments."
Of contract for sale of goods, see "Sales," § 2.
RETROSPECTIVE LAWS.
Constitutional restrictions, see "Constitutional Law," § 1.
See "Customs Duties"; "Internal Revenue"; "Taxation."
See "Appeal and Error”; “Criminal Law," §§ 12, 13.
Bill in equity, see "Equity," § 4.
Assumed by employé, see "Master and Servant," §§ 3, 5.
Streets in cities, see "Municipal Corporations," § 1.
In bankruptcy proceedings, see "Bankruptcy," § 3.
Of corporate stock, see "Corporations," § 1.
Of logs, see "Logs and Logging."
Parol or extrinsic evidence affecting contract of sale, see "Evidence," § 4.
Receiver's sales, see "Receivers," § 1.
§ 1. Construction of contract.
In accepting an offer made by plaintiff to furnish a quantity of cotton,
defendant wrote as follows: "We understand this cotton is to be full
1% inch staple, same as the staple in the 25 bale sample lot you shipped
to us. the grade to be average strict middling, nothing middling. We de-
sire that you be particular in the selection of this cotton as nothing less
than full 1 inch, same type as the sample lot will be suitable to us." Held.
that the contract so made required the cotton sold to be of the same grade
as the sample lot of 25 bales, and that, where plaintiff admitted that
the cotton shipped thereunder was not of such grade, it could not recover
for breach of the contract by defendant in refusing to accept the same.
-Lydia Cotton Mills v. Prairie Cotton Co., 156 Fed. 225..
84 C. C. A. 129
Defendant sold and agreed to deliver to plaintiff 100,000 barrels of
cement, and plaintiff to receive and pay for the same. One-half was to
be delivered the first year, and the remainder the following year, at ei-
ther one of two ports on Lake Superior, at plaintiff's option. The contract
contained the following provision: "Shipments to be made [by defend-
ant] after navigation opens and continue throughout the season in 5,000
to 10,000 barrel lots as required by said second party [plaintiff]; shipments
to be made on or before October 15th of each year. Said second party
shall give 30 days' notice of shipments to be made, in advance." Held,
that such provision contemplated shipments by water in 5,000 to 10,000
barrel lots throughout the season; that the provision for notice was for
the benefit of both parties, and required plaintiff to give 30 days' notice
in advance of each of such shipments, especially in view of another pro-
vision for tests of the cement requiring 28 days' time, and the taking of
samples for such tests at the factory "approximately on the date that no-
tice of shipment is given."
-Alpena Portland Cement Co. v. Backus, 156 Fed. 944..
§ 2. Modification or rescission of contract.
Defendant sold and agreed to deliver to plaintiff 100,000 barrels of
cement, and plaintiff to receive and pay for the same. One-half was to
be delivered the first year, and the remainder the following year, at ei-
ther one of two ports on Lake Superior, at plaintiff's option. The con-
tract contained the following provision: "Shipments to be made [by de-
fendant] after navigation opens, and continue throughout the season, in
5.000 to 10,000 barrel lots, as required by said second party [plaintiff];
shipments to be made on or before October 15th of each year. Said sec-
ond party shall give 30 days' notice of shipments to be made, in ad-
vance." Held, that the failure of plaintiff to order and give the notices
provided for, covering the quantity deliverable the first season, at least
30 days before October 15th, was equivalent to a failure to take and
receive, and justified defendant in rescinding the contract.
-Alpena Portland Cement Co. v. Backus, 156 Fed. 944..
84 C. C. A. 444
Defendant was not estopped to rescind because of letters written after
plaintiff's default in ordering, expressing a desire for performance dur-
ing the following season, where plaintiff did not accede, but insisted up-
on immediate further shipment without the notice to which defendant
was entitled.
-Alpena Portland Cement Co. v. Backus, 156 Fed. 944..
A manufacturing corporation of New Jersey made annual contracts
with a Colorado corporation, engaged in the wholesale business in that
state, whereby it agreed to send to the corporation in Colorado rubber
goods for sale, which the latter agreed to store and to sell in its name as
consignee, and to pay for the goods, when sold, certain prices, which were
so much less than its selling prices that it secured thereby the expenses
of the business and a liberal commission. The contracts provided that
the latter was the agent of the former to sell the goods; that the latter
should make advances when requested; that to the amount of its profits
it guaranteed the sales; that the goods and their proceeds, until the lat-
ter paid the agreed prices, should be the property of the former; and that
the latter assumed the risk of the receiving, handling, and selling. The
manufacturing corporation shipped its goods. It had no office or place of
business in Colorado, and neither incurred nor paid any of the expenses.
The Colorado corporation sold the merchandise at its own expense, in
consideration of the factorage. Held, that the agreements were factorage
contracts and not conditional sales.
-Butler Bros. Shoe Co. v. United States Rubber Co., 156 Fed. 1...
84 C. C. A. 167
SET-OFF AND COUNTERCLAIM.
Pleading matter of set-off or counterclaim, see "Pleading,” § 3.
Under a charter party which required the owner to provide the crew,
and provided that, in case of loss of time from deficiency of men, the hire
should cease during the detention, the charterer is entitled to a deduction
of charter hire during the time the vessel was detained at quarantine in
consequence of the illness and infection of the crew, and the requirement
of the quarantine officers that a new crew should be shipped before she
was permitted to enter the port.
-Tweedie Trading Co. v. George D. Emery Co., 154 Fed. 472.....
84 C. C. A. 253
While the parties to a shipping contract may by clearly expressed terms
either enlarge or limit the carrier's liability in respect to general average,
it is the settled rule that stipulations in bills of lading, exempting the car-
rier from liability for damage or losses arising from certain specified
causes, do not affect his liability in general average contribution, although
the loss may occur from one or more of the excepted causes.
-The Santa Ana, 154 Fed. 800......
If a master fails to retain the lien which by law he has on the goods of
all shippers for their just proportion in a general average contribution,
and delivers the goods without requiring payment or a general average
bond or other security for the payment thereof, he and the shipowner be-
come personally liable for the full amount of the general average con-
tribution, which all interests should pay to the persons suffering loss.
-The Santa Ana, 154 Fed. 800....
.84 C. C. A. 312
An adjustment in general average, made by an adjuster selected by the
vessel, on proofs submitted by all parties, held not impeached by the ves-
sel owner for fraud.
-The Santa Ana, 154 Fed. 800.....
Where a libel was filed to enforce a general average award made by an
adjuster, and only asked for a readjustment in case objections made to
the validity of the award by defendant should be sustained, the libelant
cannot complain that a readjustment was not made, where such objections
were overruled, and the award made by the adjuster accepted.
-The Santa Ana, 154 Fed. 800..
Of vessels, see "Collision," § 2.
For municipal indebtedness, see "Municipal Corporations," § 2.
By witness inconsistent with testimony, see "Witnesses," § 3.
Judgment in state court as bar to suit in United States court, see "Judgment,"
§ 3.
Public lands, see "Public Lands," § 1.
Regulation of interstate commerce, see "Commerce," § 1.
State legislation affecting jurisdiction of United States courts, see "Courts,"
Adoption by United States courts of state laws as rules of decision, see
"Courts," § 2.
Validity of retrospective or ex post facto laws, see "Constitutional Law,"
§ 1.
Provisions relating to particular subjects.
See "Action," § 1; "Adverse Possession," § 1; "Appeal and Error," § 1;
"Bankruptcy," § 4; "Carriers," § 1; "Collision," § 1; "Conspiracy," § 1;
"Copyrights," § 2; "Corporations," § 3; "Counties," §§ 1, 2; "Courts," § 2;
"Criminal Law," § 1; "Customs Duties"; "Death," § 1; "Disorderly
"House"; "Divorce," §§ 1, 2; "Indictment and Information," § 1; "Limita-
tion of Actions" § 1; "Master and Servant," §§ 2, 5; "Mines and Miner-
als," § 1; "Mortgages," § 1: "Municipal Corporations," § 1; "Patents,"
88 1-3; "Perjury," § 1; "Post-Office," § 1; "Public Lands," § 1; "Railroads,"
§ 1; "Witnesses," § 1.
Revenue laws, see "Internal Revenue."
Statute of frauds, see "Frauds, Statute of."
§ 1. Repeal, suspension, expiration, and revival.
A clause generally repealing "all laws and parts of laws in conflict
with" the act of which it is part repeals nothing that would not be
equally repealed without it.
-Great Northern Ry. Co. v. United States, 155 Fed. 945.
84 C. C. A. 93
The rule that a later act, covering the whole subject of a prior one and
embracing new provisions, plainly showing that it was intended as a sub-
stitute, operates by implication to repeal the prior act, is subject to the
qualification that where the later act expresses the extent to which it is
intended to repeal prior laws, as by a clause repealing all laws and parts
of laws in conflict therewith, it excludes any implication of a more ex-
tended repeal.
-Great Northern Ry. Co. v. United States, 155 Fed. 945..
84 C. C. A. 93
To establish a supersession or repeal of a statute by implication, it is
not sufficient to show merely that a later statute, making no mention of
the particular subject of a prior one, employs language broad enough to
cover some part or all of it; for, as words are sometimes employed with
less than their largest literal meaning, it must also appear that the two
statutes cannot stand together, reasonable purpose and operation being
accorded to each. Particularly is this true if the prior statute expresses
a settled policy in legislation.
-Great Northern Ry. Co. v. United States, 155 Fed. 945..
Statute law is not abrogated or annulled by mere re-enactment or
repetition; and when, for purposes of enlargement, contraction, or other-
wise, a statute is re-enacted or repeated with amendments, the amendatory
act is to be regarded as an affirmation and continuation of the prior law,
in so far as in substance and operation it is the same, and is to be regarded
as new legislation only in so far as in substance or operation it differs
from the prior law.
-Great Northern Ry. Co. v. United States, 155 Fed. 945.
Construction and operation.
When a legislative act is general in its terms, the title may be resorted
to for the purpose of ascertaining its proper limitations.
-United Shoe Machinery Co. v. Duplessis Shoe Machinery Co., 155
Fed. 842...
...84 C. C. A. 76
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