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lows that such an irregularity exists in
the judgment roll in the present case.
The motion to set aside the judgment.
for the irregularity aforesaid will, there-
fore, be granted.

Findlay v. Gordon, et al.
Sept. 10, 1875.

Philadelphia Common Pleas. A loss from a fulse representation of the kind of goods sold will be deducted from a judgment on the note for the goods. In an action on a promissory note for the price of lumber, the defendants set up in their affidavit of defense that the plaintiff "represented and declared that the lumber in question was all three-inch hemlock plank, except 4,000 or 5,000 feet, which was two-inch," on which they relied; that 35,000 feet was two-inch plank, and they offered to pay the note less $120, actual loss on the two-inch plank.

Plaintiff argued that a representation was not a warranty, and that caveat emptor applies in the absence of a warranty.

Held: The Court. The judgment must
be for the amount admitted to be due.
Crary v. Hoffman et al.
Sept. 28, 1875.

A misnomer in the præcipe and a variance in defendant's name between the præcipe and the summons, it being correct in the summons, not a sufficient de fense.

An affidavit of defense set up that in the præcipe, defendant's firm name was Souder & Co., and in the summons that it was J. T. Souder & Co., which was the correct firm name. And it was argued

that there was a misnomer and a variance.
Held, The Court. The affidavit does
not show a sufficient defense.
must be judgment.

There

4 judgment entered after the death of defendant will be stricken off.

A scire facias was issued against the executors of a judgment debtor, ou the same day that the judgment was entered.

Held, The Court. The judgment and the scire facias thereon must be set aside.

Tobias v. Dorsey.
Sept. 25, 1875.

Sufficiency of allegation of fraud in an affi lavit of defense.

An affidavit of defense in a suit to recover the price of a mule set up that the animal fell dead two days after the sale, and that from its condition, as shown by a post mortem examination, plaintiff must have known that it was unsound.

Held, The Court. That the affidavit
shows an allegation of fraud.
Nichols v. Fleming.
Sept. 25, 1875.

New York Court of Appeals.

PRINCIPAL AND AGENT. Where an agent says that he did not make a purchase for his principal, as he looked for lower prices, it cannot be claimed that that was an admission that the purchase could be made. Any negligence of the agent must be proved by the principal, and it is a question for the jury.

This action was brought to recover damages for an alleged breach of duty upon the part of defendants as plaintiffs' agents. Upon a former appeal a judgment in favor of defendants was reversed by the Court of Appeals and a new trial ordered. (50 N. Y., 27.) It appeared that the plaintiffs sent to defendants, who were their agents in China, an order to invest £5,000 in silk, at the prices named, and according to the terms of a letter of credit which required bills to be

Megargee v. Souder et al., trading, etc., drawn prior to July 1st. Defendants

Sept. 15, 1875.

failed to comply with the order, and, in

answer to plaintiffs' complaints for not New York Supreme Court-Gen'l Term. purchasing within the time specified,

First Dep't.

sumed to be continued when the former place of business was burned down.

Complaint for goods sold. Answer. General denial.

wrote, stating as an excuse for not pur- The agency of a person is not to be prechasing, that they expected prices would be lower, and therefore waited until prices advanced beyond their limit, and expressing regret for their error in judg ment. The letter of credit was extended by a note which reached defendants July 6th, and which increased the price they were authorized to pay. On July 11th prices advanced beyond the new limit. On August 7th the fund was otherwise disposed of. Defendants' counsel requested the Court to charge, in respect to the period between July 6th and August 7th, that unless it appeared that prior to the last date defendants could, with reasonable diligence, have purchased and shipped the silk at the price, and of the quality specified, they were not guilty of negligence in failing so to do, and the burden of proving this was on the plaintiffs. The Court refused so to charge, but instructed the jury that the burden of proof had been shifted from plaintiffs to defendants by said letter of

defendants.

Prior to July, 1867, defendant was the owner of two stores-one at Great Bend and another at Meadville, Pa. The Meadville store was carried on and goods purchased for it by defendant's brother, as his agent. Shortly prior to July, 1867, the Meadville store burned, and this fact came to plaintiffs' knowledge in that month. No store was carried on at Meadville when plaintiffs' employee went to settle this indebtedness. After the fire plaintiff revoked his brother's authority. The goods sued for were purchased more than a year after the fire. The Judge submitted the question to the jury whether the knowledge of the burning of the Meadville store was such as to give the plaintiff notice of the revocation by defendant of his brother's authority, and whether the knowledge of such burning, coupled with no further dealings between plaintiff and defendant from July, 1867, to the Fall of 1869, was

Held, error, first: That the excuse given in said letter was only for not purchasing before July 1st, and there was no admission, expressed or implied, therein, that not sufficient to put him upon inquiry. the defendants could have purchased thereafter, and the letter was, therefore, not even prima facie evidence to that effect.

Second: That it was error in any view to refuse to charge that the burden of proving negligence was upon plaintiffs, as plaintiffs had the affirmative on this question throughout the trial. 46 N. Y.

71.

Judgment of General Term, affirming judgment in favor of plaintiffs, reversed and new trial granted.

Heineman et al., Respts, v. Heard et al.,
Applts.

Opinion by Church, Ch. J.

Sept. 21, 1875.

Held, That the plaintiffs could not recover if the circumstances proved required them, in the exercise of good faith, to inquire whether the power of the agent continued, before they sold him goods on the supposition that it did.

That to procure a new store and commence business in it required the act or authority of the defendant, and the previous position and duties of the agent justified no one in supposing such power

had been given him.

Claflin et al. v. Lenheim.

Opinion by Daniels, J.; Brady, J., concurring.

August 24, 1875.

Supreme Court of Penn. STATUTE OF FRAUDS. What must be proved to take a parol contract for the sale of lands out of the Statute. Contract will not be enforced when compensation can be made. The sufficiency of the evidence to take the contract out of the Statute for the Court. Profit to one improving property under contract to be deducted.

Ejectment for a lot and half a house erected thereon.

he advanced. These the Court refused to c. arge.

There was judgment for plaintiffs, except for the land covered by the house.

On appeal by plaintiffs they argued that no price or quantity of land was fixed, and that the contract was contingent on the marriage of defendant; that defendant's possession was not contemporaneous with the contract, and exclusive, and that there was not such part

Defendant claimed title under plain- performance as cannot be compensated tiff's grantor.

The defendant's case was that he had an agreement with his brother, the grantor of the plaintiffs, by which he was to have the property. The defendant testified: "We got some money from Germany; I thought of investing the money in a lot on Third street; I asked my brother if he did not think it best to do so; he said he thought not; I had better go in with him, and we would build a double house on his lot on Mulberry street. He proposed that I should put my money in, and we should build a double house, and if I got married I should have the one part, and he should take the other." He also testified that he had contributed between $1,200 and $1,300.

The grantor testified that defendant had not put in over $250, and that he had made no such agreement with him, but that defendant offered to put the money in the house.

Defendant married in 1864, from which time he rented, and drew the rent with grantor's consent, until he occupied it himself five years afterwards. From 1865 to 1871 the property was assessed to defendant by the direction of the grantor, and he paid the taxes.

in damages, and therefore the contract is not excepted from the Statute of Frauds,

Defendant urged that the payment and improvements made took the case out of the statute, and that there was a contract; payment of most of the cost of building; possession and retention since 1865, and that the case properly went to the jury. And further, that if there was not a sufficient parol contract there was such an agreement that it would be a fraud on defendant to allow plaintiffs, who were not innocent purchasers for value, to disturb his possession.

Held, 1. The rule is well settled that to take a parol contract for the sale of land out of the Statute of Frauds and Perjuries, the contract must be distinctly proved; the land must be clearly desig nated, and there must be open, notorious and exclusive possession under the contract.

2. Such a contract will not be en forced if compensation can be made, no matter how clear the proof.

3. The sufficiency of the evidence as to the contract as affected by the statute is for the Court, and the Court below erred in refusing to pass on the evidence.

4. The evidence is not sufficient to take the contract out of the statute.

Plaintiff's main points on the trial 5. The Court erred in refusing to were: 4th. If defendant's evidence be charge plaintiffs' seventh point, for they true there was no parol contract for the were entitled to a verdict if defendant land. 7th. That plaintiffs should recover had received, by the occupancy of the if the defendant has received from the premises or otherwise, more than he had occupancy and other sources the amount advanced.

Judgment reversed, and a venire facias defendant seven days in which to ande novo awarded.

Overmeyer and Wife v. F. Koerner.
Opinion by Paxson, J.

April 2, 1875.

swer, stating that such a provision would leave the plaintiffs sufficient time to notice the cause for trial at the November Circuit.

The effect of a stay would practically be to set at naught the order of the Ap

New York Supreme Court-At Cham- pellate Court, made after a full examina

bers.

STAY OF PROCEEDINGS.

tion of the case, and after hearing the parties. So far as the application relates

A stay will not be granted at Chambers to the order affirming the order of Mr. when conditions imposed at General Term would be qualified or modified. An order granting to defendant a bill of particulars, etc., was reversed by the General Term of First Department of the Supreme Court; and defendant, after having served notice of appeal, made a motion at Chambers for:

First: An order staying all proceedings until the defendant appeals to the Court of Appeals from the orders made by the General Term herein, on the 8th and 9th of October, 1875, shall be heard and determined, &c.

Second: That an order be made extending the time for said defendant to answer until the said appeals shall be heard, &c.

Third: The notice of motion is also

Justice Barrett, I feel myself obliged to deny the motion, on the ground that the General Term has, by its opinion and decision above referred to, left me no alternative. As I cannot grant the stay without assuming to qualify or modify conditions deliberately imposed by the General Term after hearing, I am obliged to deny the motion.

The following order was thereupon entered:

It is ordered that the motion for a stay be denied, with $10 costs, but without prejudice to a further application for a stay, to be made at the Circuit if the defendant shall be so advised.

The People of New York v. Tweed.
October 14, 1875.

for such other and further order as may Philadelphia Common Pleas In Equity. be just.

Held, Lawrence, J.: An order for a stay in aid of an appeal, which the Appellate Court in similar cases has frequently declared it would not entertain, would seem to be an unwarrantable exercise of power.

TRADE MARK.

Similar device. Like name. Injunction. The manufacturer of an article for polishing stoves adopted as his trade mark an orb, with rays of light, rising over a body of water, with the words "Rising Sun Stove Polish."

Again, the General Term of this deThe defendant adopted a similar device partment, in the opinion delivered on the settlement of these orders, has expressed of an orb rising over a body of water, its opinion virtually upon the question with the words "Rising Moon Stove submitted for my consideration. It has Polish." declared that as there was no stay of proceedings by the order appealed from, the strict legal result of the reversal of that order was that the defendant's time to answer or demur had expired, and, after discussion on the settlement of the order, the General Term granted to the

The answer admitted the fact, but denied intentional imitation, or sufficient resemblance to cause deception.

Held, the Court: The imitation is plain. Injunction granted against the name "Rising Moon," and also against the use of an orb rising over a body of water, or

any similar imitation of complainant's veyed; that as grantee with others of

trade mark.

Morse v. Cornwell.

Sept. 25, 1875.

New York Court of Appeals. WAY. Deeds which refer to a map of the land on which a street is laid down, give the grantees a right of way over the land designated by the street, although it has not become a public highway.

This was an action to compel defendant to remove a barn from a street designated on a map of defendant's land as "John street," and along which plaintiffs owned lands purchased of defendant. It appeared that defendant had conveyed 1ots to plaintiffs, and one B., on each side of said street, referring in the deeds therefor to the map, specifying the lots as laid down thereon, and mentioning John street, though not by that name, and agreeing to convey, and actually conveying to the centre of it. The defendant claims that a deed to the plaintiff, J. S. Taylor, made subsequent to the other deeds, in which he, defendant, reserves 12 feet and 6 inches, being a part of the south line of the lot conveyed, the whole of which abuts on John street, for the use of himself "as long as the barn stands there; and if the barn is removed, the line to be the centre of the street," was an agreement on the part of the plaintiff's that the barn should be allowed to remain. It did not appear that the public authorities ever accepted John street as a public highway.

Held, That defendant by his deeds gave to plaintiffs and B. a right of way to their lots over the land designated on the map as John street, although it had not become a public highway, and they were entitled to have the same remain open as a street. 3 Paige, 252; 4 id., 510; 9 N. Y., 246; 45 id., 557; 27 id., 61; 36 id., 120.

Also held, That the servation in the deed to John S. Taylor could only affect aim as owner of the lot thereby con.

other premises, as to them he acquired the same rights which the others did.

Evidence was received against defendant's objection, that defendant had agreed orally with plaintiffs to remove the barn.

Held, That this evidence did not create or increase defendant's liability, and could not have injured him.

Judgment of General Term affirming judgment at Special Term for the plaintiffs, affirmed.

A

Taylor et al., Respts., v. Hepper, Applt. Opinion by Folger, J.

Sept. 21, 1875.

Eng. L. R. Probate and Divorce. WILL. testamentary paper without a formal attestation clanse, and with no affirmative evidence that the deceased's name was on it, though deceased requested the witnesses to sign, will not justify the Court in drawing the inference that it was signed by testator.

Propounding of will and first codicil. In opposition; that the will and first codicil had been revoked. And a second codicil was propounded.

Elizabeth Hogg caused her will to be prepared in January, 1869, which she executed, and it was duly attested. In September, 1871, she executed a codicil, which had been prepared and that was duly attested. In May, 1873, deceased requested two of her servants to sign a paper for her. They could not say that the signature of the deceased was on the paper.

The signature to the will and to the first will had been crossed out by the deceased, and she wrote on them that they were null and void.

All of these papers were propounded, Held, Sir J. Hannen: 1. The document of May, 1873, was not valid.

2. The will and the codicil of September, 1871, have not been effectually re voked.

Fisher et al. v. Popham et al.
L. R., 3 Probate and Divorce, pp
246-250. May 25, 1875

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