Parties.

2. A subcontractor who has failed on ac

count of defective notice to foreclose a mechanics' lien is not entitled to a personal judgment against the owner, as there is no privity between them.-McMillan v. Phillips, (Dak.) 349.

Unilateral contract.

3. A written instrument, upon its face importing a complete contract, signed by or in behalf of one party only, but in such form that evidently no other signature is contemplated, the same being accepted and acted upon as a contract by the other party, is to be regarded as expressing and constituting the contract of the parties.-Griffin v. Bristle, (Minn.) 523. Interpretation.

4. Defendant published a circular stating the site, and generally describing the build ing it proposed to erect, and inviting architects to submit designs. The designs were to be passed on by a board of experts, and the author of the accepted design was to the author of the accepted design was to be employed to complete a full set of plans. It was provided that the examining board need make no award if it deemed none of the designs worthy. Held, that whether the examining experts should make their examination separately or as a board was within the discretion of defendant, and that defendant might, after taking the opinions of the experts, ignore their action and erect such building as it chose.-Donaldson v. Detroit Museum of Art, (Mich.)

33.

5. A clause in a contract to deliver logs bound the contractors to place logs "upon the skids at the mill, keeping those of particular lengths by themselves." There were 13 different lengths cut and but 2 skid-ways provided. The lumber was generally sawed in two classes, usual and customary lengths, and particular lengths for special bills. Held, that the clause only provided for the separation of logs intended for these two classes of sawing, and not ed for these two classes of sawing, and not that only logs of precisely the same lengths should be placed together.-Maltby V. Plummer, (Mich.) 3. Performance.

6. Under a contract to deliver for defendant such of his logs as he may deem fit for a certain market, it is defendant's duty to designate such logs; and if, under general instructions, he leaves the question to the judgment of the other parties or their agents, he cannot complain of the fair exercise of their judgment.-Id.

7. An architect who, under a contract for plans and specifications for a building to cost $10,000, furnishes plans for a building

tain reductions, making the plans apply to a building that would not cost over $10,000, has complied with his contract.-Marquis v. Lauretson, (Iowa,) 73.

Rescission.

8. Defendants charged that a contract to furnish lumber to plaintiff, a corporation, was procured by fraud, through the false representations of plaintiff's president that the corporation was worth a certain amount, and its paper was readily current. Four bankers testified that plaintiff's financial standing was good, and its paper promptly met, and defendants admitted that they knew of no failure of plaintiff to promptly meet its obligations, and that a commercial agency informed them that plaintiff's standing was good. It appeared that during the continuance of the contract, and while defendants knew some facts on which they charged fraud, they furnished plaintiff other lumber on its acceptances, which were promptly met, and it was not shown that defendants ever complained to plaintiff's officers that they could not float its paper, and in their notice of rescission they alleged no fraud, but simply claimed that plaintiff had "breached" the contract. On hearing that another officer of plaintiff had stated that the company was running on small capital, defendants had inquired of the president, who denied the statement, when defendants renewed and modified the contract, though they had previously been informed by several persons that plaintiff's paper was not

current. At the time of rescinding the conthat the charge of fraud was not sustained, tract, lumber was rising in price. Held, so as to justify defendants in rescinding, though plaintiff several months afterwards assigned for benefit of creditors, the assignment being caused by failure of another firm, and it not being probable that defendants would have lost thereby.-Dennis v. Leaton, (Mich.) 753.

evidence that a man recommended by plain9. Nor is a charge of fraud sustained by tiff's president, and accepted by defendants, to grade the lumber, fraudulently assorted it in favor of plaintiff, where it appears that defendants made no complaint that he was grading unfairly; that they allowed him to inspect other lumber outside of the agreement, and kept him assorting a long time after they knew he was doing it unfairly.-Id.

10. The contract provided that defendants should keep the lumber insured, the insurance running to plaintiff. Defendants claimed that they had made a verbal agreement with plaintiff's agent that the insurance should run to the bank discounting plaintiff's acceptances but the agent de

nied this, and it was not shown that he was authorized to make such an arrangement, and plaintiff was not notified thereof. Heid, that plaintiff did not violate the contract, so as to give defendants a right to rescind. -Id.

Actions on contracts.

11. A petition on account for labor performed in the construction of a building under a certain contract, which alleges the execution of a contract, the performance of the labor thereunder by plaintiff, the acceptance of the work by defendant and the amount due thereon, with the usual prayer for judgment, is good on demurrer. -Davenport v. Jennings, (Neb.) 952.

12. In an action on a contract for commissions on the price paid by defendants for pine lands whereon plaintiffs' testator had furnished defendants estimates, defendants, having denied the existence of the contract, and asserted that they relied, in buying, on the estimates of the seller's agent, and had long since discarded all treaties with plaintiffs' testator on the subject, should be allowed to ask said agent whether he received anything from them in exchange for the estimates furnished, since, one of the parties to the alleged contract being dead, and the other precluded from testifying, its existence or non-exist ence may be shown by circumstantial evidence.-Webster v. Bearinger, (Mich.) 772. 13. In an action on a note for a consider 13. In an action on a note for a consider ation arising out of a contract to saw lumber for a specified price per thousand, "as evidenced by measurement of the same when shipped," evidence of what logs were

cut is inadmissible where the lumber was

measured both when loaded for shipment and when discharged.-Eastman v. Cleaver, (Mich.) 238.

14. Testimony as to the method of measurement at the place of shipment, by a witness who showed no knowledge qualifying him to correct or explain such measurement, is inadmissible.-Id.

15. The seller having testified that plaintiffs' testator made the estimates for him, and was paid for them by him, and that he never received permission to use the estimates, a question asked another witness, as to whose property estimates are,-that of the man who has had them made and paid for them, or the land-looker's,-though following others on the subject of custom, is properly excluded as calling for a legal conclusion.-Webster v. Bearinger, (Mich.)

772.

16. A witness having testified that defendants made a contract with plaintiffs' testator in his presence, it was proper to ask one of the defendants whether he ever made a bargain in regard to the matter in question with plaintiffs' testator in said

witness' presence, since, though the bargain were equally in the knowledge of deceased, defendants were not bound by said witness' testimony.-Id.

17. The seller having testified to a conversation with plaintiffs' testator, in which the latter said that he had had nothing to do with the sale, it was proper to ask him what, if anything, plaintiffs' testator said as to making an affidavit to that effect, this matter having been spoken of in a conversation about the agent's efforts to get his commissions from the seller, and being relevant as negativing a portion of the services alleged by plaintiffs.-Id.

18. It was competent to show that defendants first received information as to the lands and the amount of timber thereon from another than plaintiffs' testator.-Id.

Contributory Negligence.

See Negligence, 2, 3; Railroad Companies, 14.

CORPORATIONS.

See, also, Horse and Street Railroads; Insur-
ance; Municipal Corporations; Railroad
Companies; Towns.
Corporate existence.

1. In an action against a corporation for a balance due on a contract for sale of lumber, where defendant admits the purchase, it cannot allege that it did not make the contract, because it was not organized as a corporation when the contract was executed.-Williams v. Stevens' Point Lumber Co., (Wis.) 154.*

force a contract, an allegation of the an2. In an action by a corporation to enswer denying plaintiff's corporate character is immaterial. St. Paul Land Co. v.

Dayton, (Minn.) 66. Officers.

3. In an action on a note, defendant pleaded that stock in a corporation of which plaintiff was an officer was delivered to secure the note; that by plaintiff's negligence and misconduct as such officer the stock depreciated in value, to defendant's damage. Held, that this defense was not available, as it would in effect be an action against a corporate officer by a stockholder, to hold him responsible for his official misconduct, without request and refusal of the corporation to bring the action.-Palmer v. Hawes, (Wis.) 676.

4. An allegation in the answer that after plaintiff obtained the stock as security he falsely represented to defendant that the affairs of the company were in good condition states no defense; defendant not having parted with value on the strength of the representations.-Id.

Contracts.

5. One who was book-keeper, cashier, and corresponding clerk of a lumber company called upon a customer to collect a bill for lumber, and was refused; the customer claiming damages for failure to ship lumber in fulfillment of a previous order. He then offered to ship a car-load, which, if satisfactory, was to be the basis of an order, and, if unsatisfactory, he agreed to make no charge therefor, and cancel the former bill. Held, that the charter and bylaws of the company not defining the duties of a cashier, and no evidence of usage being given, the agreement was unauthorized, and did not bind the company.-Delta Lumber Co. v. Williams, (Mich.) 940.

Stock subscriptions.

6. In an action by a corporation to recover the amount of a subscription to its capital stock, the complaint alleged that defendant and others entered into a certain agreement with J. S. M., in contemplation of the organization of the corporation for manufacturing purposes, and subscribed certain sums to constitute the capital stock; that in pursuance of the agreement the corporation was organized by the defendant and the other subscribers; that such stock subscriptions were transferred to the corporation; that all the conditions of such agreement have been fulfilled, as thereby required; that calls have been made for the payment of such subscriptions, and due notice given to defendant to pay the same, prior to the commencement of this action. Held, sufficient to make a prima facie case of liability against the defendant.-Minneapolis Thresher-Machine Co. v. Crevier, (Minn.) 507.

COSTS.

On pleading over, see Pleading, 4. Right to, see Mortgages, 11.

Right to costs.

1. Petitions were filed by the relator and others, with the proper county officers of Cheyenne county, praying the submission of the question of its subdivision and the erection of new counties. The defendant board of county commissioners refused to act upon relator's petition, and he obtained from the supreme court a writ of manda. mus to compel action upon the submission of an interlocutory question. It was held by the court that it was their duty to act. Afterwards, the board acted upon the petition, finding that it was not signed by the requisite number of electors to entitle them to its submission. The other proposition being submitted, the county was subdivided, without regard to the question mentioned in the petition named. Held that, the objects of the writ of mandamus being

only to compel action, relators were not entitled to the writ, but that they were entitled to recover all costs made on account of the proceeding for mandamus prior to the action of the county board. -State v. Neumann, (Neb.) 603. Taxation.

2. Under Comp. St. Neb. c. 28, 33, which provides that the sheriff shall not be entitled to receive, on mesne or final process, any fees, unless the particular items of such charge are returned upon the process, it is error on the dissolution of an attachment to tax the sheriff's fees "for care, preservation, and custody of attached property, where the charge was neither itemized nor

contained in the sheriff's return.-Reed v. Smith, (Neb.) 591. Costs on appeal.

3. On appeal by defendant in replevin by a mortgagee against a mortgagor, for a in possession, where there are exceptions stock of goods of which the former had been to the failure of the trial court to find that another stock of goods purchased by plaintiff while in possession of the mortgaged therewith stock had been so commingled there with that the stocks could not be separated for the purpose of an accounting, and the supreme court finds that the purchased stock the judgment on that ground, defendant is was covered by the mortgage, and reverses properly allowed costs as the prevailing there are no specific exceptions to the omisparty, under Rev. St. Wis. § 2949, though sion of the trial court to include the purchased stock in the mortgaged goods.— Burr v. Dana, (Wis.) 635.

4. Under Rev. St. Wis. § 2921, costs may allowed for drawing a bill of exceptions.Schwalbach v. Chicago, M. & St. P. Ry. Co., (Wis.) 579.

Costs in criminal cases.

5. Code Iowa, § 4381, provides that, on change of venue in a criminal case, the expenses shall be paid by the county from which the change was taken; but provision is made in sections 3781-3790 and 3811 for the payment of jurors, and in certain cases. of the clerk and sheriff, out of the county treasury where the case is tried; and section 3841 gives an action to such county against the one from which the change was taken to recover such expenses. Held, that the county in which the trial was had is primarily liable for the expenses incurred.-Lockhart v. Montgomery County, (Iowa,) 104.

COUNTIES.

Apportionment of railroad tax, see Railroad Companies, 6.

Claim against state, see Taxation, 10.