set up damage to its lines by storm, it was not setting up a new cause for plaintiffs in reply to deny that they were informed that the wires were down, although under section 3332 failure to give such information also entitled plaintiffs to recover a penalty.-Davis v. Western Union Telegraph Co., 202 S. W. 292. 182 (Ky.) Plaintiff must reply to new matter set up in the answer, or it stands admitted. Cook v. John N. Norton Memorial Infirmary, 202 S. W. 874. V. DEMURRER OR EXCEPTION. 192(2) (Ark.) Demurrer will not lie to petition though it states sufficiently, but imperfectly, the cause of action, but the remedy in such case is by motion to make more definite and certain.-Williams v. Memphis, D. & G. R. Co., 202 S. W. 228. 193 (3) (Ark.) A complaint, stating only a cause of which the court has no jurisdiction, is demurrable.-Ferguson v. Walchansky, 202 S. W. 826. 214(1) (Ark.) A demurrer admits allegations of complaint to be true.-Harrison v. Interstate Business Men's Accident Ass'n of Des Moines, Iowa, 202 S. W. 34. tition wholly fails to state cause of action.Anderson v. Lusk, 202 S. W. 304. PLEDGES. See Banks and Banking, 109; Factors, *mm 52. 14 (Tex.Civ.App.) If officers of debtor and creditor banks settled all terms regarding payment of drafts and giving of note and security, and nothing remained except performance, contract was within class which may be enforceable as an executory agreement.-Houston Nat. Exch. Bank of Houston v. Gregg County, 202 S. W. 805. Under agreement between officers of debtor and creditor banks for delivery of a note secured by bills receivable, where nothing remained but performance, held, that creditor bank was entitled to equitable lien, though note was not executed or the collateral sent to it -Id. 24 (Tex.Civ.App.) Where party sold piano and received purchase price, and thereafter pledged another piano, which he did not own, to secure delivery, and pledgee subsequently received notice of ownership of pledged piano, and later entered into agreement with seller 214(1) (Tenn.) All averments of the peti- to accept pledged piano in place of one he tion must be taken as true on demurrer.-bought, the pledgee was not a purchaser withCity of Bristol v. Bostwick, 202 S. W. 61. 228 (Tex. Civ.App.) Where a petition for damages for loss of trunk by innkeeper set out each item lost with its value, each item constituted a cause of action, and a special demurrer to the petition as a whole was insufficient, since each item should have been specifically excepted to.-Zeiger v. Woodson, 202 S. W. 164. out notice.-Renfroe v. Hall, 202 S. W. 218. POLICE POWER. See Municipal Corporations, 600-620. POLITICAL RIGHTS. See Elections. PONDS. See Negligence, 39. VI. AMENDED AND SUPPLEMENTAL POSSESSION. POSSESSORY WARRANT. See Statutes, 118. 310. XI. MOTIONS. 367 (2) (Ark.) A complaint held to sufficiently state a cause of action to recover personal property as against a motion to make more specific.-Collier v. Hopper, 202 S. W. 687. POWDER FACTORY. PRACTICE. For practice in particular actions and proceedings, see the various specific topics. PREFERENCES. 367(2) (Ky.) In election contest, if de- See Fraudulent Conveyances, 115, 117. fendants desired more specific allegations with respect to reasons for illegality of votes of various persons which were alleged to have PREMEDITATION. been received and counted without authority, See Homicide, 14. XIII. DEFECTS AND OBJECTIONS, PREMIUMS. See Insurance, 188, 198. PRESCRIPTION. 430(2) (Mo.App.) In action for injury when See Adverse Possession; Easements, 7-10; advantage could be taken on appeal.-Newton PRESENTATION. 225. 433(1) (Mo.App.) A petition, though defec PRESUMPTIONS. tively drawn, is good after verdict, which cures See Appeal and Error, 907-934; Evidence. all defects and irregularities, except that pe 69-83. PRINCIPAL AND AGENT. See Attorney and Client; Brokers; Evidence, 244; Factors. I. THE RELATION. (A) Creation and Existence. 20(1) (Tex.Civ.App.) The fact of agency may be shown by circumstances.-American Metal Co. v. San Roberto Mining Co., 202 S. W. 360. 23(1) (Mo.App.) Evidence held to show that defendant as plaintiff's agent acquired creamery lease, so that his use of the lease for his own benefit in organizing new_company was properly enjoined.-Mountain Grove Creamery, Poultry & Produce Co. v. Willow Springs Creamery Co., 202 S. W. 1054. 25(1) (Tex.Civ.App.) A father who placed his son, who was in fact his agent for some purposes, in a position to deceive defendants, would be estopped to deny agency, defendants having in fact been deceived.-De la O v. Consolidated Kansas City Smelting & Refining Co., 202 S. W. 1027. II. MUTUAL RIGHTS, DUTIES, AND LIABILITIES. (A) Execution of Agency. 69 (1) (Mo.App.) Agent cannot reap personal benefit from transaction made on behalf of his principal.-Mountain Grove Creamery, Poultry & Produce Co. v. Willow Springs Creamery Co., 202 S. W. 1054. (B) Compensation and Lien of Agent. ←m89(11) (Ky.) A party allowed compensation as agent in respect to real property is not entitled to interest where he claimed a partnership and denied acting as agent until it was decided no partnership existed.-Fertig v. Fertig, 202 S. W. 313. (D) Ratification. edge, and without it there can be no ratifica166(1) (Ky.) Ratification implies knowltion.-War Fork Land Co. v. Marcum, 202 S. W. 668. 166 (3) (Ky.) Without knowledge of an unauthorized conveyance of land by one purporting to act under a power of attorney, there can be no ratification thereof by the owner. -War Fork Land Co. v. Marcum, 202 S. W. 668. 166(6) (Ky.) Evidence held not to show owner's knowledge or information of a conveyance of land by another purporting to be made under a power of attorney.-War Fork Land Co. v. Marcum, 202 S. W. 668. 169(3) (Ky.) A power of attorney expressly ratifying and confirming only such deeds, conveyances, etc., as are thereafter made by the attorney, does not ratify a prior conveyance by the attorney.-War Fork Land Co. v. Marcum, 202 S. W. 668. Unauthorized acts of an agent are not confirmed by his subsequent power of attorney to do such acts.-Id. PRINCIPAL AND SURETY. See Appeal and Error, 1227–1236; Attachment, 339; Bail; Bills and Notes, 245; Bonds; Guaranty; Indemnity; Replevin, 135; Sheriffs and Constables, 171. II. NATURE AND EXTENT OF LIABILITY OF SURETY. 66 (2) (Mo.) Under contract to purchase rugs and linoleum requiring half payment at seller's option before delivery, secured by bond providing for absolute liability of the surety for such payment, the purchaser's breach by failure to make such payment entitled seller to recover from surety only damages measured by profit, it would have made on the complet III. RIGHTS AND LIABILITIES AS TO ed transaction, surety's obligation not exceed THIRD PERSONS. (A) Powers of Agent. ing principal's.-Stix, Baer & Fuller Dry Goods Co. v. Ottawa Realty Co., 202 S. W. 577. 96 (Ky.) Authority under a power of at-69 (Tex.Civ.App.) Where a surety bond, torney is confined to the powers conferred by the instrument, and any person desiring to know the agent's authority must look to that. -War Fork Land Co. v. Marcum, 202 S. W. 668. 99 (Tex.Civ.App.) The power of an agent to delegate his authority, like any other power, may be implied from those powers, customs, and usages established by evidence.-American Metal Co. v. San Roberto Mining Co., 202 S. W. 360. a conditioned that a contractor would perform a building contract, stipulated that the bond should terminate and become void on August 1, 1914, such stipulation does not preclude obligee from recovering on the bond for nonperformance, though all of the work of another con tractor in doing the work had not been finished, and all payments to such contractor had not been made, at such date.-American Surety Co. v. Camp, 202 S. W. 798. is III. DISCHARGE OF SURETY. 106 (Mo.App.) Although in general builder is not liable for the architect's failure 100 (1) (Mo.) Surety on contractor's bond to return guaranty checks on rejection of bids, released only by changes in contract so exyet it may be shown that the architect was tensive as to substitute new contract.-City of acting for the builder in such a way as to bind Kennett v. Katz Const. Co., 202 S. W. 558. the builder.-Fairbanks, Morse & Co. v. Mer-100(4) (Mo.) Where bond of contractor chants' & Consumers' Market House Ass'n, 202 S. W. 596. 120(1) (Tex.Civ.App.) Scope of authority of agent may be shown by circumstances.American Metal Co. v. San Roberto Mining Co., 202 S. W. 360. 123(7) (Ky.) Evidence held not to show owner's consent to a conveyance of land by another purporting to be made under a power of attorney. War Fork Land Co. v. Marcum, 202 S. W. 668. 137(2) (Mo.App.) Relative to right of purchasers of land to rescind, the vendor, who made false representations and referred the purchasers to another for corroboration with assurance that they could rely on him, is bound by his misstatements, irrespective of his agency. Hayes v. Wyatt, 202 S. W. 584. provided that alterations in the work should not violate the bond nor discharge the surety, though made without its consent, changes in the work at contractor's request did not release the surety.-City of Kennett v. Katz Const. Co., 202 S. W. 558. 108(2) (Tex.Civ.App.) Contract for extension of time for payment of a note for a definite period, when the debt bears interest, is on a valuable consideration, and binding on the parties; thus discharging the surety not consenting thereto.-Scarborough v. McKinnon, 202 S. W. 223. 117 (Tex.Civ.App.) Building contractor's surety held not discharged by building owner, after abandonment of work by contractor, making installment payments to materialmen without certificate of architect, provided for by contract.-Williams v. Baldwin, 202 S. W. | order sustaining exceptions to an account of 975. an executrix.-State ex rel. Knisely v. Jones, 202 S. W. 1117. Provision of building contract that final certificate be made on completion of the building applies only when the contractor completes the building.-Id. IV. REMEDIES OF CREDITORS. 143 (Ark.) Since, when the principal obligation fails because of failure of consideration, the collateral surety ship also fails, the surety in an action on the note can join the principal in a plea of failure of consideration for the note.-Troxler v. Wilson, 202 S. W. 819. See Appearance; Arrest; Attachment; Execution; Garnishment; Injunction; Mandamus; Prohibition; Quieting Title; Quo Warranto. II. SERVICE. (C) Publication or other Notice. 84 (Tex.Civ.App.) That personal service of citation on defendant is difficult to obtain does not dispense with its necessity.-Gordon v. Reeder, 202 S. W. 983. mm 85 (Tex.Civ.App.) Statutes authorizing constructive service of citation are strictly construed.-Gordon v. Reeder, 202 S. W. 983. 87 (Tex. Civ.App.) Service by publication as on a transient person gives the court no jurisdiction over her person, unless she is in fact a transient.-Gordon v. Reeder, 202 S. W. 983. Woman who had no fixed place of residence, but lived around over state with her three or four children, though she could not call either of her children's homes her own, was not a "transient person" within Rev. St. 1911, art. 1874, authorizing service by publication on such a person.-Id. See Partnership. PROFITS. PROHIBITION. See Intoxicating Liquors. I. NATURE AND GROUNDS. 3(1) (Mo.) Prohibition lies to prevent the allowance of an appeal from exceptions to an executrix's report. where other remedies could not prevent delay and violation of statutory provisions.--State ex rel. Knisely v. Jones, 202 S. W. 1117. III. DISPOSAL OF LANDS OF THE STATES. 173(21) (Tex.Civ.App.) Land commissioner has no authority to cancel a sale of public free school lands for collusion.-Schauer v. Schauer, 202 S. W. 1010. Since state could recover from a substituted purchaser of public free school lands only by a direct suit, an attempted forfeiture of sale by land commissioner for collusion was void.-Id. Purpose of Acts 29th Leg. c. 29, §§ 1, 2 (Rev. St. 1911, arts. 5458, 5459), barring suit by one claiming right to purchase public school lands theretofore sold to another in one year, is beneficent and should be liberally construed. -Id. 176 (2) (Tex.) A subsequent patent inures to transferee of right to land grant or certificate, though transfer or assignment does not expressly show intention to convey land or contain covenant of warranty.-Cagle v. Sabine Valley Timber & Lumber Co., 202 S. W. 942. was 178(2) (Tex.Civ.App.) Where sale of public free school lands to original purchaser was valid, a substituted qualified purchaser, who an actual settler upon land at time of purchase from original purchaser, acquired title by original purchaser's conveyance, although transfer and substitute obligation was not filed in general land office.-Schauer v. Schauer, 202 S. W. 1010. Where forfeiture of sale to A. of public free school lands by land commissioner was unauthorized, a suit by B., subsequent purchaser from A. against C., a prior purchaser from A.. not filed until more than a year after award to A. and to B., and more than a year after Acts 29th Leg. c. 29, §§ 1, 2 (Rev. St. 1911, arts. 5458, 5459), became effective, would be barred.-Id. 15 (Mo.) The holder of a judgment classified as a claim against the estate of a decedent held to have sufficient interest to maintain a suit for a writ of prohibition to prevent the allowance without bond of an appeal from an See Nuisance. PUBLIC NUISANCE. QUIETING TITLE. II. PROCEEDINGS AND RELIEF. 31 (Mo.App.) Where service in suit to quiet title was had by publication, and none of defendants entered appearance, for suit to have curative effect on title, notice by publication must have been strictly in compliance with statute.-Downing v. Anders, 202 S. W. 297. 34(5) (Mo.App.) Under Rev. St. 1909, § 1776, in suit to quiet title against nonresident defendants, general allegation of petition and order of publication that unknown defendants derived their claims as heirs, etc., named known defendants held sufficient.-Downing v. Anders, 202 S. W. 297. 41 (Mo.App.) Joinder of two causes of action in one suit to quiet title, such causes being similar, does not render proceeding void, but merely renders it vulnerable to attack by parties proceeded against by filing demurrer. -Downing v. Anders, 202 S. W. 297. 44(3) (Mo.) Evidence in action to determine title to land held sufficient to sustain finding of identity of grantee as plaintiffs' ancestor. Newbrough v. Moore, 202 S. W. 547. See Abatement and Revival, 42; Carriers; Commerce, 27; Eminent Domain; Street Railroads; Trial, 194, 252. I. CONTROL AND REGULATION IN GENERAL. 9(1) (Mo.) Under Laws 1913, p. 600, § 64, relator railroad was not entitled to notice and a hearing upon question whether Public Service Commission should direct a suit to be brought by its counsel to compel relator to furnish cars as required by law.-State ex rel. and to Use of Missouri Pac. R. Co. v. Garesche, 202 S. W. 400. restraining orders and temporary injunctions in suit thereunder.-Id. II. RAILROAD COMPANIES. 27 (Ky.) Under Act Cong. March 21, 1918, known as "Federal Control of Railroads Bill," and proclamation of President of December 27, 1917, right of levying executions, attachments, or other process against property of common carriers under federal control is suspended, but litigant is not prevented from bringing action against carrier, nor court from granting him relief in form of judgment or otherwise. -Louisville & N. R. Co. v. Steel, 202 S. W. 878. Fact that, under Federal Control of Railroads Bill, whatever plaintiff receives from defendant carrier upon his judgment against it may be paid according to Interstate Commerce Commission's classification of accounts out of moneys derived by government from operation of railroad cannot militate against plaintiff's right to have his demand determined by judgment.-Id. 33 (2) (Tex.Civ.App.) Where several railroads were under one management and each operated trains over the road of the other, the court had jurisdiction of the subject-mat ter and the parties and properly overruled a plea of privilege to be sued in county where it had an agent of one of the companies whose road was out of the state but which was operating its trains over the road of the other within the county when it injured plaintiff.Louisiana Western R. Co. v. White, 202 S. W. 794. V. RIGHT OF WAY AND OTHER INTERESTS IN LAND. en 72 (5) (Ky.) Conditions for railroad tering city, that it make and maintain improvebinding on successor in title and its lessee.ments, held a covenant running with land, Illinois Cent. R. Co. v. Meacham Contracting Co., 202 S. W. 859. 72(8) (Ky.) For breach of condition in ordinance for railroad entering city, that it shall make and maintain suitable means for draining under its track, the city, on company's denying duty and refusing to act, may contract for the work, and charge the company with the cost.-Illinois Cent. R. Co. v. Meacham Contracting Co., 202 S. W. 859. (C) Companies and Persons Liable for Injuries. Laws 1913, p. 600, § 64, providing that counsel of Public Service Commission, when so directed, shall institute suit against a railroad 265 (Tex.Civ.App.) Railway company after violating its duty, etc., excludes issuance of termination of receivership, was not liable for no_right of way fence between track and road. -Dabbs v. Kansas City Southern Ry. Co., 202 S. W. 276. loss or damages to shipment of household goods occurring during receivership, where it was not shown that receiver operated at a profit, and that sufficient net earnings to pay 419(1) (Tenn.) Thomp. Shan. Code, $ all claims incurred by receiver had been paid 1574-1576, as to duties of railroads on perceivover to the company on termination of receiving animals on track, held not intended to be ership, or that court appointing receiver made his debts a charge upon corpus of the property, or that, when receivership terminated, the debts incurred were made a charge against railway company.-Ft. Worth & R. G. Ry. Co. v. Zidell, 202 S. W. 351. applied for protection of unregistered female dog running at large, declared to be public nuisance by section 2853a2.-Cincinnati, N. O. & T. P. R. Co. v. Ford, 202 S. W. 72. 424 (Tenn.) Under Thomp. Shan. Code, § 2853a, providing it shall be unlawful to allow dog to go upon highway, etc., owner of female dog, who allowed her to go upon track of railroad where she was killed, was guilty of contributory negligence, and could not recover her value.-Cincinnati, N. O. & T. P. R. Co. v. Ford, 202 S. W. 72. (G) Injuries to Persons on or near Tracks. 376(4) (Tex.Civ.App.) Where operatives of a train discovered presence of a trespasser on tracks in a perilous position, they are only required to exercise ordinary care in use of all means within their power consistent with safe-441 (6) (Mo.App.) Where plaintiff made a ty of train to avoid injuring him, and are not required to do everything in their power to stop the train.-San Antonio & A. P. Ry. Co. v. McGill, 202 S. W. 338. 384 (Mo.) An experienced engineer, familiar with all the conditions, who left his cab prima facie case that fence could have been erected between track and parallel road from which steer entered without encroaching upon road, burden was on defendant to show that fence would have endangered its employés.— Dabbs v. Kansas City Southern Ry. Co., 202 S. W. 276. and sat down three feet from the rail of a switching track, on which switching was be-443 (5) (Mo.App.) In suit under double ing done, and was struck by cars which could not have struck him had he not moved toward the rail, was negligent as a matter of law. Huddleston v. Terminal R. Ass'n of St. Louis, 202 S. W. 370. damage statute for killing steer by collision with railroad train, where railroad was required to fence, evidence held to justify finding that crossing where animal was killed was farm crossing necessary for use of adjoining 394 (6) (Tex.Civ.App.) Petition, in an ac- iandowner within Rev. St. 1909, § 3145, not tion against a railroad company for the death public crossing.-Hawkins v. St. Louis & San of one run down by a train, held, as against Francisco Ry. Co., 202 S. W. 1060. general demurrer, to sufficiently aver discovery 447 (1) (Tex. Civ.App.) In action for inof peril.-San Antonio & A. P. Ry. Co. v. Mc-juries to mule on railway track, instruction Gill, 202 S. W. 338. that railroad must provide reasonable approach to freight unloading points, and that plaintiff, hauling material from cars, had a right to use the most reasonable and convenient approach, whether provided by the railroad or not, was erroneous.-St. Louis Southwestern Ry. Co. of Texas v. Rea, 202 S. W. 812. 400 (8) (Tex. Civ.App.) In action for death of one run down while on defendant railroad company's tracks, evidence of negligence of those in charge of company's trains held sufficient to go to the jury.-San Antonio & A. P. Ry. Co. v. McGill, 202 S. W. 338. 400(10) (Mo.) In action for injuries in railroad yards, if facts are undisputed and rea-447(4) (Mo.App.) Where plaintiff showed sonable men cannot differ in their inferences that a fence could have been built within six therefrom, the issue of contributory negligence feet from rails without encroaching upon paris one of law.-Huddleston v. Terminal R. allel road, defendant railroad, which did not Ass'n of St. Louis, 202 S. W. 370. undertake to show that fence so built would be dangerous to employés, could not complain that jury was not instructed as to whether such fence would be dangerous to employés.-Dabbs v. Kansas City Southern Ry. Co., 202 S. W. 276. 401(7) (Tex. Civ.App.) In action for death of trespasser run down by defendant's train, instruction that if the engineer, after discover ing deceased and knowing his position of peril, exercised ordinary care to avoid striking deceased, verdict should be for defendant, was improperly refused.-San Antonio & A. P. Ry. Co. v. McGill, 202 S. W. 338. (H) Injuries to Animals on or near Tracks. 409 (Tex.Civ.App.) Railroad's duty to make freight unloading points as safe as reasonable care will make them does not make it liable for injury to animal resulting from the unsafe condition of parts of the premises not intended for public use, and into which the public is not invited. St. Louis Southwestern Ry. Co. of Texas v. Rea, 202 S. W. 812. 411(8) (Mo.App.) Statutory requirement as to fencing railroad is not solely for benefit of adjacent landowner, but for benefit of public in general, being police regulation for safety of passengers, trainmen, etc., so that agreement with landowner dispensing with fences at place required by statute is binding only on landowner, and not on his successor in title.Hawkins v. St. Louis & San Francisco Ry. Co., 202 S. W. 1060. 411 (18) (Mo.App.) Defendant railroad held liable under double-damage statute for killing steer which came upon its track from public road parallel therewith, where there was ❘ (I) Fires, 456 (Ky.) Under Ky. St. § 790, railroad was liable for destruction of barn by fire communicated by sparks from engine properly equipped with spark arresters and operated with reasonable care, which sparks ignited combustible matter negligently allowed on right of way.-Ohio & K. Ry. Co. v. Whitt, 202 S. W. 899. 481 (4) (Ky.) In action against railroad for destruction of property by fire, evidence of starting of other fires along right of way in similar way, not too remote in time is competent to show railroad did not employ most reliable spark arresters, etc.-Ohio & K. Ry. Co. v. Whitt, 202 S. W. 899. 482 (4) (Ky.) In action against railroad for destruction of barn by fire communicated from engine, evidence held to justify finding railroad was negligent in failing to have engine properly equipped with spark arrester.-Ohio & K. Ry. Co. v. Whitt, 202 S. W. 899. 482 (5) (Ky.) In action against railroad for destruction of barn by fire communicated from engine, evidence held to justify finding railroad was negligent in failing to keep right of way free from inflammable materials.-Ohio & K. Ry. Co. v. Whitt, 202 S. W. 899. |