5. If the vendor notifies the purchaser that he regards the contract as
forfeited, and that he will not receive any money from him, the latter
is not required, as a condition of his right to specific performance, to
make tender of the purchase price. It is sufficient if he offer in his
bill to bring the money into court. Ib.
6. A note for the purchase price of land is made payable at a particular
time and at a particular bank. The payor is ready at such time and
place to pay, and offers to pay, but the bank has not received the note
for collection; Held, (1) The bank is not authorized to receive the
money for the payee by reason simply of the fact that the note is pay-
able there; (2) The tender of payment is not payment; (3) A decree
of specific performance should not become operative until the money
is brought into court; (4) The payee is not entitled to interest unless
it appears that the payor, after the tender, realized interest upon the
money. lb.
7. M. contracted with a bridge company to construct the road for a rail-
way, according to specifications and profile, from the end of its bridge
to Evansville, about six miles. The road was to run on bottom lands,
with an uneven natural surface, and the profile showed part trestle
and part embankment. It was contemplated that the material for
the embankments was to be taken from borrow-pits along the line.
The specifications fixed prices for excavation, for filling and for tres-
tling, and provided that the relative amounts of trestle and earthwork
might be changed at the option of the engineer without prejudice. Dur-
ing the progress of the work the company decided to modify the plan by
abandoning the trestling in the line of the road, substituting for it a con-
tinuous embankment, and by making a draining ditch along the whole
line, running through the borrow-pits. In order to serve its intended
purpose this ditch was required to be of a regular downward grade, with
properly sloping sides. Some of the borrow-pits were found to be
too deep, and others too shallow, and it was found that they had been
excavated without reference to the slope at the sides. There were
highways and private roads crossing the line at grade. The contract
did not indicate how the approaches of these roads were to be con-
structed; but when the change was determined on, it was decided to
make them of trestle. This work was more expensive than the tres-
tle provided for in the contract. The company directed its engineer
to have these modifications carried out, and the contractor was noti-
fied of this. He made no objection to the substitution of embank-
ment for trestling; but as to the ditch, he objected that it was not in
the contract. A conversation followed, in which the contractor under-
stood the engineer to say that it would be paid for at excavation
prices from the surface down, but the company claimed that it was
only intended as an expression of the opinion of the engineer, which,
it said, was made without authority. As to the trestle approaches
the contractor was informed that he would be paid what was right.
The work was constructed in all respects according to the modified
plans. In settling, the contractor claimed to be paid for the ditch as
excavation from the surface down. The company claimed that the
material taken from the borrow-pits should be deducted from the
total. There were about 2800 feet in all of the trestle approaches.
The contractor accepted payment for 2100 feet at the contract price,
and as to the remaining 700 feet claimed to be paid according to what
the trestles were reasonably worth. The company claimed that they
should be paid for at the contract price; Held, (1) That the construc-
tion of the ditch was outside of the original contract; (2) That the
fact that it passed through borrow-pits did not modify that fact; (3)
That the engineer had authority to agree with the contractors that
they should be paid for it as excavation from the surface down; (4)
That it was right to leave it to the jury to determine whether such an
agreement was made between the contractors and the local engineer,
acting for the company; (5) That it was properly left to the jury to
decide whether the company agreed to pay for the trestle approaches
what they were reasonably worth; (6) That as the agreement was to
pay, not a fixed price, but what the trestling was reasonably worth,
which the law would have implied, it was immaterial whether the
agent of the company had or had not authority to make it. Hender-
son Bridge Co. v. McGrath, 260.
8. If a contract of sale is in writing and contains no warranty, parol
evidence is not admissible to add a warranty. De Witt v. Berry, 306.
9. If a contract of sale in writing contains a warranty, parol evidence is
inadmissible to show a warranty inconsistent with it. Ib.
10. An express warranty of quality in a sale excludes any implied war-
ranty that the articles sold were merchantable. Ib.
11. A warranty cannot be implied in a sale when there is an express war-
ranty of quality, accompanied by the delivery and acceptance of a
sample, as such. Ib.
12. The party who seeks to establish that words are used in a contract in
a different acceptation from their ordinary sense must prove it by
clear, distinct and irresistible evidence. Ib.
13. When parties have reduced their contract to writing, without any
uncertainty as to the object or extent of the engagement, evidence
of antecedent conversations between them in regard to it is inadmis-
sible.
See CONSTITUTIONAL LAW, 15;
RAILROAD, 1.
1. A corporation in debt cannot transfer its entire property by lease, so as to
prevent the application of it, at its full value, to the satisfaction of the
debts of the company; and when such transfer is made under circum-
stances like those shown in this case, a court of equity will decree the
payment of a judgment debt of the lessor by the lessee. Chicago, Mil-
waukee &c. Railway v. Third Nat. Bank, 276.
2. A misappropriation of money by a corporation being proved, and an
equitable claim against the wrongdoer being established, and it appear-
ing that the pleadings raise no issue as to the amount of the misap-
propriation, and that the officers of the corporation can furnish no
information on this point, it is no error to hold that it was in excess
of the claim. Ib.
3. An officer in a corporation who is leading in its management, who is
active in securing the passage of a resolution authorizing an issue of
preferred stock, who subscribes for such stock and pays his subscrip-
tion and takes his certificate and votes upon it at shareholders' meet-
ings for over two years, and induces others to take such stock, cannot,
when the company becomes insolvent, recover back the money paid by
him on his subscription, on the ground that the statutes of the State
only authorized an issue of general shares. Banigan v. Bard, 291.
4. When, by general law, a lien is given to a corporation upon the stock
of a stockholder in the corporation for an indebtedness owing by him
to it, that lien is valid and enforceable against all the world; and a
sale of the stockholders' stock to any person ignorant of the lien will
not discharge it, and thus authorize the purchaser to demand and
receive a transfer of it so discharged. Hammond v. Hastings, 401.
5. A state statute which confers upon a judgment creditor of a corpora-
tion, when execution on a judgment against the corporation is returned
unsatisfied, the power to summon in a stockholder who has not fully
paid the subscription to his stock, and obtain judgment and execution
against him for the amount so unpaid, in no way increases the liability
of the stockholder to pay that amount; and, inasmuch as he was
before then liable to an action at law by the corporation to recover
from him such unpaid amount at law, as well as to a suit in equity, in
common with other similar stockholders, to compel contribution for
the benefit of creditors, no substantial right of the stockholder is vio-
lated. Hill v. Merchants' Ins. Co., 515.
See CONSTITUTIONAL LAW, 17, 18;
EQUITY, 7.
1. The only contention between the parties in this action of ejectment was,
whether the centre of a street in the village of Hyde Park was the
southern boundary line of the plaintiff's land, or whether that line ran
twenty-three feet further south. The court in its charge to the jury
said: "In 1873 the village of Hyde Park laid out and opened 41st
Street sixty-six feet wide from Grand Boulevard to Vincennes Avenue,
the centre of which was a line equidistant from the north and south
lines of the quarter section, on the theory that this line was the true
east and west boundary between the four quarters of the quarter
section and the true southern boundary of the McKey tract;" and
then directed the jury thus: "If you believe from the evidence that
the centre of the street is the centre east and west line of the quarter
section, then you are also instructed that it was and still is the true
boundary line, and that the plaintiff is not entitled to the land de-
scribed in the declaration on the theory that the Greeley survey was
correct;" Held, that this was erroneous as it in effect directed the jury
to find that the plaintiff was not entitled to recover; and, as the evi-
dence was conflicting, that was a question to be determined by the
jury. McKey v. Hyde Park, 84.
2. When there is no evidence to warrant a verdict for the plaintiff, so that
if such a verdict were returned it would be the duty of the court to set
it aside, a verdict may be directed for the defendant. Gunther v. Liver-
pool and London Ins. Co., 110.
3. It is settled law in this court that when the evidence given at the trial,
with all the inferences that the jury could justifiably draw from it, is
insufficient to support a verdict for the plaintiff, so that such a verdict,
if returned, must be set aside, the court is not bound to submit the
case to the jury, but may direct a verdict for the defendant; while, on
the other hand, the case should be left to the jury, unless the conclu-
sion follows, as matter of law, that no recovery can be had upon any
view which can be properly taken of the facts which the evidence
tends to establish. Louisville & Nashville Railroad Co. v. Woodson, 614.
1. Section 5467 of the Revised Statutes creates two distinct classes of
offences: the one relating to the embezzlement of letters, etc.; the
other relating to stealing their contents. United States v. Lacher, 624.
2. Section 3891 and 5467 of the Revised Statutes are to be construed
together the offences of secreting, embezzling or destroying mail
matter which contains articles of value being punishable under the
one, and like the offences as to mail matter which does not contain
such articles being punishable under the other. Ib.
In Illinois the inference that an owner of land has dedicated it to the pub-
lic for use as a street can only be drawn from acts which show an
actual intention to so dedicate it, or from acts which equitably estop
the owner from denying such intention. McKey v. Hyde Park, 84.
See ACCRETION;
HUSBAND AND WIFE, 1, 2;
The Supreme Court of the District of Columbia at special term confirmed
a sale of real estate by a trustee without notice having been given to
interested parties. Those parties subsequently appeared, and on their
motion, after notice and hearing, the sale was vacated and the trustee
at whose request it was made was removed; Held, that an appeal lay
from that decree to the general term of the court. Kenaday v. Ed-
wards, 117.
EMBEZZLEMENT.
See CRIMINAL LAW, 1, 2;
INDICTMENT.
1. Where, in a court of equity, an apparent legal burden on property is
challenged, the court has jurisdiction of a cross bill to enforce, by its
own procedure, such burden. Chicago, Milwaukee & St. Paul Railway
v. Third National Bank, 276.
2. The court which denies legal remedies, may enforce equitable remedies
for the same debt; and an application for the latter is not foreign to
å bill for the former. Ib.
3. A cross bill may be amended so as to work a change in the ground of
the relief sought, when the proofs which make it necessary are fur-
nished by the original complainant in support of allegations in his
bill. Ib.
4. A lessee of a railroad, receiving money to be expended on the leased
property, and misappropriating it by spending it on another property,
cannot, by afterwards spending an equal amount of its own money on
the leased property, deprive a creditor of the lessor of an equitable
right growing out of the misappropriation. Ib.
5. When a Circuit Court of the United States in Illinois obtains jurisdic-
tion in equity of a proceeding to establish title to real estate under
the act of the legislature of that State of April 9, 1872, known as the
"Burnt Records Act," in a case within the provisions of the act, it
may, following the decisions of the courts of the State, proceed to
adjudicate and determine in equity all the issues between the parties
relating to the property, as well those at law as those in equity; and
it is entirely within its discretion whether it will or will not send the
issues at law to be determined by a jury. Gormley v. Clark, 338.
6. It is no error in a court of equity to order buildings removed from a
tract of land over which a party to the record has a right of way for
ingress to and egress from his own property. Ib.
7. An insolvent corporation, with large properties scattered in different
States, having, for the purpose of keeping those properties together as
a whole, assented to the filing of a creditors' bill by three creditors,
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