§ 321. In an action for injuries to plaintiff's thumb sustained while the conductor was attempting to pull her onto a moving street car, an instruction as to the company's liability if the injury was accidentally caused by the conductor in discharging his duty for plaintiff's protection_held proper under the circumstances. -South Covington & C. Ry. Co. v. Raymer (Ky.) 281. CASE ON APPEAL. Making and settlement, see Appeal and Error, CAUSE OF ACTION. CAVEAT EMPTOR. $321. In an action against a railroad for See Action; Malicious Prosecution, §§ 16, 24. injuries to plaintiff, a shipper of horses, while in the car feeding the horses, the refusal of an instruction requested by defendant held error.-Bruce v. Chicago, B. & Q. Ry. Co. (Mo. App.) 447. § 321. A charge held not to impose on a carrier the absolute duty of keeping its depot platform and premises properly lighted.-Texas Cent. R. Co. v. Wheeler (Tex. Civ. App.) 83. § 321. In an action against a street car company for injuries sustained while alighting, an instruction held to fully and fairly present the issues, and not misleading as instructing that it was the conductor's duty to use care to aid plaintiff in alighting. Northern Texas Traction Co. v. Danforth (Tex. Civ. App.) 147. § 321. Evidence held sufficient to warrant a charge submitting the question whether defendant's train had stopped at the time of the injury to a passenger.-St. Louis & S. F. R. Co. v. Sizemore (Tex. Civ. App.) 403. (E) CONTRIBUTORY NEGLIGENCE OF PERSON INJURED. § 323. A street car company would not be liable for injuries to a passenger caused by the concurrence of its own and the passenger's negligence.-Oliver v. Ft. Smith Light & Traction Co. (Ark.) 204. § 331. The care required of a street car company toward passengers riding on the foot board, stated.-Oliver v. Ft. Smith Light & Traction Co. (Ark.) 204. $331. A contract with a railroad for the transportation of horses, which permitted the shipper to accompany the horses and to look after and feed them, held not to make the stock car a place for his transportation when not caring for the horses.-Bruce v. Chicago, B. & Q. Ry. Co. (Mo. App.) 447. Application of doctrine, see Sales, § 41. CERTIFICATE. Certified copies, see Evidence, § 343. CERTIORARI. To bring up appeal record, see Appeal and Error, $ 660. II. PROCEEDINGS AND DETER MINATION. § 64. In certiorari where the record and original papers show that the court had jurisdic tion in a proceeding to procure a dramshop license, and that the application was verified as required by Rev. St. 1899, § 2993 (Ann. St. 1906, p. 1717), amended by Laws 1907, p. 255. held, that the record and original papers are conclusive.-State, ex inf. Keller, v. Leonard (Mo. App.) 14. CHALLENGE. To juror, see Jury, §§ 116-136. CHAMPERTY AND MAINTENANCE. § 7. One must be in the actual possession of land at the time of its purchase by another to avoid the latter's purchase and deed on the ground of champerty.-Brown v. Wallace (Ky.) 763. § 343. In an action against a carrier for in- See Equity. juries to a passenger in boarding a train, evidence of an announcement that anybody wishing to board the train must hurry held admissible CHANCERY. CHANGE OF VENUE. on the issue of plaintiff's alleged contributory Of civil action, see Venue, § 45. § 346. In an action against a street car company for injuries sustained in alighting from a car, evidence held not to show that plaintiff was negligent.-Northern Texas Traction Co. v. Danforth (Tex. Civ. App.) 147. $348. In an action against a railroad for injuries to plaintiff, a shipper of horses while in a car feeding the horses, defendant held entitled to a certain instruction as to plaintiff's contributory negligence.-Bruce v. Chicago, B. & Q. Ry. Co. (Mo. App.) 447. (H) PALACE CARS AND SLEEPING CARS. Sleeping car companies as employers, see Master and Servant, §§ 150, 158. CARRYING WEAPONS. See Weapons. CHARACTER. Of criminal prosecutions, see Criminal Law, §§ Of accused in criminal prosecutions, see Crim- CHARGE. By carrier, see Carriers, § 12. To jury in civil actions, see Trial, §§ 192-296. CHARTER. Of municipal corporations, see Municipal Corporations, § 12. CHASTITY. Imputation of want of, as slander, see Libel and Slander, § 144. Particular modes of discharging contracts. See Compromise and Settlement; Payment; Release. I. REQUISITES AND VALIDITY. § 1. An agreement between competent persons, on a sufficient consideration to do, or not to do, a particular thing, is a contract.-Weinsberg v. St. Louis Cordage Co. (Mo. App.) 461. § 4. The law will not imply a contract where there is an actual contract, though it is not expressed in words.-Weinsberg v. St. Louis Cordage Co. (Mo. App.) 461. § 4. A contract implied by law and a contract implied from the facts distinguished. Weinsberg v. St. Louis Cordage Co. (Mo. App.) 461. (C) FORMAL REQUISITES. $ 41. Though a written contract be not signed by both of the parties, the acceptance by one of the performance by the other validates the instrument.-Sunbury v. Aaron (Mo. App.) 431. (D) CONSIDERATION. Of release of claim to damages for injuries to employé, see Master and Servant, § 100. (E) VALIDITY OF ASSENT. $ 98. A voidable contract is valid until avoided.-Jordan v. Missouri & Kansas Telephone Co. (Mo. App.) 432. § 138. No right of action can be predicated on a contract that is contrary to public policy. -Chesapeake & O. Ry. Co. v. Maysville Brick Co. (Ky.) 1183. II. CONSTRUCTION AND OPERA TION. (A) GENERAL RULES OF CONSTRUCTION. § 143. If not opposed to good morals or public policy, the contract furnishes the rule by which the respective rights of the parties are to be determined.-l'ittsburg Bridge Co. v. St. Louis Transit Co. (Mo. App.) 467. § 146. Facts held not to justify a recovery for noncompliance with an accepted bid for cornice work on a building on the ground that plaintiff made a contract with the general contractor on the faith of defendant's proposition. -Grainger & Co. v. Louisville Cornice Roofing & Heating Co. (Ky.) 753. § 147. Rule as to construction of contracts stated.-Bright v. J. Bacon & Sons (Ky.) 268. $152. Rule for interpreting words in a contract stated.-Spring Garden Ins. Co. v. Imperial Tobacco Co. of Kentucky (Ky.) 234. § 164. Instruments used in negotiations for purchase of patent right held to be construed as contemporaneous writings.-Mann v. Urquhart (Ark.) 219. § 169. Where the court can determine the meaning of the language of a contract, though inaccurate, without any other guide than a knowledge of the simple facts on which from (F) LEGALITY OF OBJECT AND OF CON- the nature of language in general its meaning SIDERATION. Effect of constitutional amendment guaranteeing freedom of contract, see Constitutional Law, § 89. Validity of contract by parents of minor employé waiving claims for damage in case of minor's death, see Death, § 25. § 103. Parties cannot bind themselves that contracts which the law allows to be in parol shall not be valid unless in writing.-Northwestern Nat. Ins. Co. of Milwaukee v. Avant (Ky.) 274. § 108. A contract, binding a purchaser from the state of school lands to execute to another a bond for title and complete the statutory period of occupancy necessary to perfect title, is not void as contrary to public policy.-Johnson & Moran v. Buchanan (Tex. Civ. App.) 875. § 114. A contract exempting a wrongdoer from liability for criminal negligence is contrary to public policy and void.-Galveston, H. & S. A. Ry. Co. v. Pigott (Tex. Civ. App.) 841. § 129. A witness held not entitled to recover money placed in another's hands to be paid him when he carried out an agreement to leave the state, and not to appear on the trial of a pending case.-Feltner v. Feltner (Ky.) 1196. § 131. A transaction by which the cashier of plaintiff bank deposited his personal note with defendant bank, which defendant credited to plaintiff merely for the purpose of making it appear solvent when it made its report to the State Auditor, held illegal.-Kentucky & Indiana Bank v. Globe Bank & Trust Co. (Ky.) 792. § 138. A transaction by which defendant bank credited plaintiff bank with a certain sum upon receipt of a note from the latter's cashier in order to make plaintiff appear solvent in its report to state officials being illegal, neither party could enforce any apparent liability arising out of it.-Kentucky & Indiana Bank v. Globe Bank & Trust Co. (Ky.) 792. depends, the language is not ambiguous.-Donovan v. Boeck (Mo.) 543. § 169. The court in construing a contract held required to arrive at its meaning as gathered from its terms.-Donovan v. Boeck (Mo.) 543. § 176. Where the terms of a contract of sale are evidenced by letters and telegrams, the court should construe the contract.-Mann v. Urquhart (Ark.) 219. § 176. The construction of a valid contract inaccurately drawn, but unambiguous and complete in itself, set out in a pleading as the_basis of the cause of action, is for the court.-Donovan v. Boeck (Mo.) 543. V. PERFORMANCE OR BREACH. $300. Failure of the owner to do preliminary work, such as erecting a foundation, to enable the contractor to complete the work within the time limit, operates as a waiver of the time provisions.-Pittsburg Bridge Co. v. St. Louis Transit Co. (Mo. App.) 467. $ 300. Stipulation for an extension of time for completion of work by a building contractor held reasonable and just, and to impose no obligation on the part of the contractor to proceed until the owner had completed the foundation and given notice thereof.-Pittsburg Bridge Co. v. St. Louis Transit Co. (Mo. App.) 467. § 303. In a suit for money due under a contract for excavating, held, that plaintiffs could show that in the course of the work defendant notified their representative to omit compliance with the specifications in certain respects.Sundmacher v. Lloyd (Mo. App.) 12. $319. Plaintiffs can recover for excavating if they performed their contract according to defendant's direction, though they omitted to comply with part of the specifications.-Sundmacher v. Lloyd (Mo. App.) 12. VI. ACTIONS FOR BREACH. Venue of action, see Venue, § 7. § 328. Mere notice by a party to a contract to the other party that the party giving the notice intends to violate the contract is no defense to an action for damages for the breach. -Chesapeake & O. Ry. Co. v. Maysville Brick Co. (Ky.) 1183. § 346. In an action on express contract, no recovery can be had on an implied contract or on quantum meruit.-C. W. Hahl & Co. v. Southland Immigration Ass'n (Tex. Civ. App.) 831. § 353. In an action for being deprived of the opportunity of carrying out a contract to supply structural steel for the alteration of a building, an instruction held to properly submit the issues.-Lynch v. Snead Architectural Iron Works (Ky.) 693. § 353. In an action for being deprived of the opportunity of carrying out a contract to supply structural steel for the alteration of a building, an instruction held erroneous for ignoring evi dence.-Lynch v. Snead Architectural Iron Works (Ky.) 693. CONTRADICTION. Of witness, see Witnesses, §§ 405, 406. CONVERSION. § 15. Will construed, and held to convert a widow's share into personalty.-Ross v. Ware's Adm'r (Ky.) 241. CONVEYANCES. Contracts to convey, see Vendor and Purchaser, §§ 145, 146. In fraud of creditors, see Fraudulent Convey ances. Registers, see Registers of Deeds. Conveyances by or to particular classes of per sons. See Guardian and Ward, §§ 92-114. See Easements, § 1; Homestead, § 118. Particular classes of conveyances. CONVICTS. Pardon, see Pardon. CORPORATIONS. Quo warranto, see Quo Warranto. Particular classes of corporations. See Building and Loan Associations; Municipal Corporations; Railroads; Religious Societies; Street Railroads. Banks, see Banks and Banking, § 78. Insurance companies, see Insurance. benefit held primarily liable, though the stockholders gave their individual notes therefor.— Russell's Adm'r v. Frankfort & Suburban Ry. Co. (Ky.) 289; Brawner's Adm'r v. Frankfort & Versailles Traction Co., Id. ration, who received nothing from a sale of its § 227. A stockholder of an insolvent corpoassets to another company, held not liable to the insolvent company's judgment creditors.-Russell's Adm'r v. Frankfort & Suburban Ry. Co. (Ky.) 289; Brawner's Adm'r v. Frankfort & Versailles Traction Co., Id. (C) VI. OFFICERS AND AGENTS. RIGHTS, DUTIES, AND LIABILITIES § 316. Where certain corporate conveyances tion will be required to refund the purchase were invalid, but not fraudulent, the corporaprice as a condition to the cancellation of the conveyances.-Nueces Valley Irr. Co. v. Davis (Tex. Civ. App.) 633. § 316. A corporation held not estopped to sue to set aside illegal conveyances of its property authorized by former directors because other persons acquired the corporation's stock with notice.-Nueces Valley Irr. Co. v. Davis (Tex. Civ. App.) 633. § 316. Where a prior board of directors of a corporation illegally transferred certain of its Property, a ratification of such transactions by a new board not consisting of all the stockholders did not validate the conveyances.— Nueces Valley Irr. Co. v. Davis (Tex. Civ. App.) 633. § 316. Directors of a corporation held not entitled to authorize its president to convey the corporation's property to such directors and to his wife.-Nueces Valley Irr. Co. v. Davis (Tex. Civ. App.) 633. § 316. While a corporation at its mere option cannot avoid a contract with one of its directors, it may avoid a trade affecting its interests made by and with directors acting for both parties.-Nueces Valley Irr. Co. v. Davis (Tex. Civ. App.) 633. § 316. A director of a corporation cannot act in the matter in which his interest is adverse to the corporation.-Nueces Valley Irr. Co. v. Davis (Tex. Civ. App.) 633. § 320. Where the directors of a corporation illegally conveyed its property to themselves and others, a nonassenting stockholder could require the corporation to sue to vacate the conveyances, and on its failure could sue in his own name.-Nueces Valley Irr. Co. v. Davis (Tex. Civ. App.) 633. VII. CORPORATE POWERS AND LIABILITIES. (B) REPRESENTATION OF CORPORATION BY OFFICERS AND AGENTS. § 398. When one corporation makes use of another as its instrument, the principal corpora Telegraph and telephone companies, see Tele- tion is represented by the agents of the subgraphs and Telephones. corporation, and its liability is the same as if it had done the business in its own name.-St. Louis & S. F. R. Co. v. Sizemore (Tex. Civ. App.) 403. turing corporation has implied authority to $407. The president of a domestic manufac employ a physician at the expense of the corporation to attend an employé injured in the line of his employment.-Weinsberg v. St. Louis Cordage Co. (Mo. App.) 461. $407. The right of a physician, employed by the president of a manufacturing corporation to treat an injured employé, to recover 218. Property of a corporation pledged to secure the payment of money borrowed for its from the corporation held unaffected by the corporation's freedom from negligence.-Weinsberg v. St. Louis Cordage Co. (Mo. App.) 461. (D) CONTRACTS AND INDEBTEDNESS. § 448. A corporation is not liable for debts, incurred before its incorporation, which it does not assume.-Modern Dairy & Creamery Co. v. Blanke & Hauk Supply Co. (Tex. Civ. App.) 153. $ 448. Rule as to the presumption of the assumption of debt by a corporation formed by a partnership stated.-Modern Dairy & Creamery Co. v. Blanke & Hauk Supply Co. (Tex. Civ. App.) 153. § 487. A firm composed of two corporations or of a corporation and a natural person held entitled to recover on obligation made to them in their firm name.-Stahr v. Hickman Grain Co. (Ky.) 784. (F) CIVIL ACTIONS. Amendment of affidavit as to names of parties, see Attachment, § 122. Amendment of bond as to names of parties, see Amendment of sheriffs' return as to names of VIII. INSOLVENCY AND RECEIVERS. 542. Const. § 203, did not make corporate debts a lien on its assets nor prevent an insolvent corporation from selling its property in good faith to pay debts.-Russell's Adm'r v. Frankfort & Suburban Ry. Co. (Ky.) 289; Brawner's Adm'r v. Frankfort & Versailles Traction Co., Id. XII. FOREIGN CORPORATIONS. Act providing for, forfeiture of license issued to corporations violating anti-trust laws as abridging privileges and immunities of citizens of the United States, see Constitutional Law, § 206. Act providing for forfeiture of license issued to corporation violating anti-trust laws as denial of equal protection of the laws, see Constitutional Law, § 247. Act providing for forfeiture of license issued to corporation violating anti-trust laws as impairing obligation of contracts, see Constitutional Law, § 130. Process in action against foreign railroad company, see Railroads, § 33. Violation of anti-trust laws, as ground for forfeiture of license, see Monopolies, § 26. Foreign insurance companies, see Insurance, § 17. $639. A foreign corporation accepts a license permitting it to do intrastate business on transacted in accordance with the laws of the the implied condition that the business shall be state and that the licenses may be forfeited for violation thereof.-State ex inf. Hadley v. Standard Oil Co. (Mo.) 902. CORPUS DELICTI. Proof of, in prosecution for homicide, see Homicide, § 153. CORRECTION. Of judgment, see Judgment, § 326. Of record on appeal or writ of error, see Appeal and Error, §§ 635-660. CORROBORATION. XI. DISSOLUTION AND FORFEITURE Of witness in general, see Witnesses. OF FRANCHISE. COSTS. Element of damages, see Damages, § 68. In probate proceedings, see Wills, § 405. Act providing for forfeiture of charter of corporation violating anti-trust laws as abridging privileges and immunities of citizens of the United States, see Constitutional Law, § 206. Act providing for forfeiture of charter of corporation violating anti-trust laws, as denial of equal protection of the laws, see Constitution- I. NATURE, GROUNDS, AND EXTENT al Law, § 247. Act providing for forfeiture of charter of corporation violating anti-trust law, as impair ing obligation of contracts, see Constitutional Law, § 130. Violation of anti-trust laws as ground for forfeiture of franchise, see Monopolies, § 26. Original jurisdiction of appellate court, see Courts, $207. Joinder of co-defendant in quo warranto proceedings, see Quo Warranto, § 39. Plea or answer in quo warranto proceedings, see Quo Warranto, § 50. Proceedings for forfeiture of franchise of corporations violating anti-trust laws, see Monopolies, § 26. Sufficiency of information in quo warranto proceedings, see Quo Warranto, § 48. § 592. Acts of a corporation, resulting in the restriction or stifling of competition, held contrary to public policy, and ground for forfeiture of its franchises, without proof of evil intent or actual injury to the public.-State ex inf. Hadley v. Standard Oil Co. (Mo.) 902. § 592. That the franchises of a corporation are subject to forfeiture at the instance of the state for misuser or nonuser is a tacit condition attached to the granting thereof.-State ex inf. Hadley v. Standard Oil Co. (Mo.) 902. OF RIGHT IN GENERAL. tended to permit defendant to escape costs in § 42. 1 Ann. St 1906, § 1575, held not inactions wherein the common law required no previous demand.-Downs v. Pacific Express Co. (Mo. App.) 9. III. PERSONS, PROPERTY, AND § 101. Under the facts, held it could not be said there was an abuse of discretion in awarding all the costs against one defendant.-Themas v. Ellison (Tex.) 1141. V. AMOUNT, RATE, AND ITEMS. § 148. Where attorneys in partition agree to take a specified amount as attorney's fees to be taxed in the action, but induce the court to tax a much larger amount, the court on retaxation of costs should reduce the amount to the amount agreed upon.-Baldauf v. Peyton (Mo. App.) 27. § 148. The trial court may tax an attorney's fee in a partition suit in an amount agreed upon between plaintiffs and their attorneys, but cannot increase such amount.-Baldauf v. Peytou (Mo. App.) 27. $172. Costs in a partition suit held taxable in favor of a foreign attorney.-Baldauf v. Peyton (Mo. App.) 27. and an amount allowed held to have been properly brought against the county, but not against the members of the fiscal court.-Breathitt $172. A bank joined in an action to deter-County v. Noble (Ky.) 777. mine the ownership of a fund represented by a check on the bank held entitled to attorney's fees.-Newton v. Dickson, Moore & Smith (Tex. Civ. App.) 143. VI. TAXATION. 218. The right of a foreign attorney to appear in a case cannot be first raised on a motion to retax the costs.-Baldauf v. Peyton (Mo. App.) 27. VII. ON APPEAL OR ERROR, AND ON NEW TRIAL OR MOTION THEREFOR. § 233. Under Civ. Code Prac. § 764, on appeal from a superseded judgment for the recovery of personalty, etc., appellee held entitled to damages on affirmance.-Cunningham v. Clay's Adm'r (Ky.) 299. § 256. Appellant held not entitled to have the cost of a stenographer's transcript, made out in form of question and answer, taxed as costs in the case.-Routledge v. Elmendorf (Tex. Civ. App.) 156. § 260. Where plaintiff in error does not appear, and it appears that the writ of error was sued out for delay, a motion for affirmance with damages will be granted.-Montgomery v. Buckskin Breeches Co. (Tex. Civ. App.) 139. II. GOVERNMENT AND OFFICERS. (C) COUNTY BOARD. Jurisdiction to fix salary of county judge, see Judges, § 22. III. PROPERTY, CONTRACTS, AND LIABILITIES. (B) CONTRACTS. § 111. A contract by a county for improvesion to meet the debt, as required by Const. art. ment of a courthouse executed without provi sufficient to pay the current expenses and the 11, § 5, held void; the general fund not being amount called for by the contract.-Ault v. Hill County (Tex.) 359. (C) COUNTY EXPENSES AND CHARGES AND STATUTORY LIABILITIES. Disbursement by sheriff for expenses incident to his office, see Sheriffs and Constables, § 64. Janitor's service for office of Recorder of Deeds, see Registers of Deeds, § 3. IV. FISCAL MANAGEMENT, PUBLIC DEBT, SECURITIES, AND TAXATION. § 192. Under Const. art. 8, § 9, when no improvements were contemplated by a county, a tax levy made ostensibly for the improvement fund, but with intent to transfer the fund derived thereby to the general fund and for the purpose of meeting a deficiency therein, held illegal.-Ault v. Hill County (Tex.) 359. VI. ACTIONS. $ 210. As the county judge's salary is regulated by statute (Ky. St. 1909, § 1072), the rule allowing suits on other claims against a county does not apply to such salary.-Monroe County Court v. Miller (Ky.) 272. § 213. In an action by a sheriff against the county for reimbursement for expenses, held not essential that the claim be audited and allowed by the circuit court.-Harkreader v. Vernon County (Mo.) 523. COURSES AND DISTANCES. Description of boundaries, see Boundaries, § 6. COURT COMMISSIONERS. § 2. An allowance to a master commissioner held in excess of the statutory allowance (St. 1909, § 1740), and improperly granted, in view of section 396.-Harding's Adm'r v. Harding (Ky.) 305. COURT HOUSES. Mandamus to annul order of fiscal court fixing COURTS. See Court Commissioners. Judicial power, see Constitutional Law, §§ 67- Objections to jurisdiction for purpose of review, see Appeal and Error, § 185. Province of court and jury, see Trial, §§ 192, 194. Review of decisions, see Appeal and Error. Right to trial by jury, see Jury, §§ 12-34. Trial by court without jury, see Trial, § 382. |