Contempt

60(3) (Ill.) Evidence held to show attorneys intentionally sought to embarrass and obstruct administration of justice.-People v. Burr, 147 N. E. 47.

65 (Ind.) Motion to discharge rule to show cause in contempt proceeding calls in question sufficiency of information.-State v. Lanphar,

147 N. E. 328.

dis

940

II. CONSTRUCTION AND OPERATION. (A) General Rules of Construction. 169 (Mass.) Circumstances considered in determining sense in which particular words of indefinite meaning were used.-Taxi Service Co. v. Gulf Refining Co., 147 N. E. 863.

(D) Place and Time.

66(2) (Ind.) Sustaining motion to charge rule to show cause why defendant should 212(2) (III.) Law fixes reasonable time for not be punished for contempt held not final judg- performance of contract which does not fix any time for its performance.-Smith v. Gray, ment.-State v. Lanphar, 147 N. E. 328. 147 N. E. 459.

66(6) (1.) Facts constituting contempt set out in judge's order considered as true.Kneisel v. Ursus Motor Co., 147 N. E. 243.

66 (9) (Ind.App.) Recovery against surety on bond given on appeal from judgment adjudicating principal in contempt for failure to pay maintenance for children held limited to amount found due on rendition of judgment, with interest and costs.-Maryland Casualty Co. v. Kerr, 147 N. E. 285.

Husband's evasive conduct and unwise modification of original decree ordering payment of maintenance for children held not grounds for affirming erroneous judgment against surety on husband's appeal bond.-Id.

I. REQUISITES AND VALIDITY. (A) Nature and Essentials in General. 9(1) (Mass.) Nature and extent of obligations of contract must be certain.-Knowles v. L. D. Griswold Land Co., 147 N. E. 560. care for 9(2) (Ind.App.) Agreement to aged couple, in consideration of gift of farm, not void for uncertainty.-Neal v. Baker, 147 N. E. 635.

Acceptance. 26 (Mass.) Correspondence held not sufficiently distinct and unequivocal to establish contract.-Stewart v. Johnson, 147 N. E. 850.

(B) Parties, Proposals, and

(E) Validity of Assent.

93(2) (Mass.) In absence of fraud, ignorance of contents of contract, voluntarily signed, not ground for setting it aside.-Farrell v. Chandler, Gardner & Williams, 147 N. E. 822

III. MODIFICATION AND MERGER.

re

237 (2) (III.) Supplemental contract, quiring additional time and money for construction, held supported by valid consideration.Smith v. Gray, 147 N. É. 459.

Promise to do that which promisor is already bound to do is not sufficient consideration for agreement modifying contract.-Id.

248 (III.) Whether supplemental contract between hotel owner and contractor was supported by sufficient consideration held for jury.. -Smith v. Gray, 147 N. E. 459.

248 (Mass.) When questions of modification of terms of contract are for jury stated. -Taxi Service Co. v. Gulf Refining Co., 147 N. E. 863.

V. PERFORMANCE OR BREACH. 285(2) (N.Y.) Arbitrator may determine his own jurisdiction, if parties submit such question to him.-In re Kelley, 147 N. E. 363. 2922 [New, vol. IIA Key-No. Series] (N.Y.) Provision in contract to settle by arbitration dispute thereafter arising enforceable. In re Kelley, 147 N. E. 363.

300(3) (Mass.) Charge that well driller's delay in completing contract caused by owner's failure to make payments was not chargeable to driller held without error.-Gray v. Currier, 147 N. E. 567.

303 (1) (Mass.) Plaintiff not relieved from its express written contract, even though performance insuperable.-Beacon Tool & Machine Co. v. National Products Mfg. Co., 147 N. E. 572.

303(4) (III.) Performance by one party excused where prevented by opposite party.Ginter v. Heco Envelope Co., 147 N. E. 42. waive contractor's undue delay of performance 305(1) (III.) Owner of building did not for want of consideration.-Smith v. Gray, 147 by being forced into supplemental contract void E. 459. 305 (1) (Mass.) Parties may waive right to 94(1) (III.) "Fiduciary relation" is found-treat nonperformance in original time ed in trust, and same remedy exists therein breach.-Taxi Service Co. v. Gulf Refining Co., against wrongdoer as against trustee by cestui 147 N. E. 863. que trust.-Niland v. Kennedy, 147 N. E. 117.319(1) (Mass.) Plaintiff, having failed to When "fiduciary relation" exists, stated.-Id. perform express written contract, cannot reNational Products Mfg. Co., 147 N. E. 572. Fiduciary relation does not necessarily arise cover thereon.-Beacon Tool & Machine Co. v. from blood relationship.-Id.

94(1) (III.) When "fiduciary relation" ex-N. ists, stated.-Feeney . Runyan, 147 N. E.

114.

98 (Mass.) Contract induced by fraud or deceit is voidable and not a nullity. In re Opinion of the Justices, 147 N. E. CS1.

99(I) (III.) Burden on person in confidential relation with incompetent person to prove legitimacy of transactions.-Parks v. Hooper,

147 N. E. 44.

on beneficiary to 99(1)(II.) Burden is show actor acted on own volition or independent advice.-Feeney v. Runyan, 147 N. E. 114. 99(3) (Mass.) Evidence held not to justify finding of fraud practiced on plaintiff in procuring her signature to contract.-Farrell v. Chandler, Gardner & Williams, 147 N. E. 822.

(F) Legality of Object and eration.

of Consid

137(1) (III.) Entire contract void where invalid provisions not separable.-Lyons Schanbacher, 147 N. E. 440.

V.

For cases in Dec.Dig. & Am.Dig. Key-No.Series & Indexes see same topic and KEY-NUMBER

334 (Mass.) Absence of averment of consideration held fatal.-Davis v. H. S. & M. W. Snyder, 147 N. E. 30.

Consideration must be alleged unless contract itself implies it.-Id.

335(1) (III.) Plaintiff must allege performance of condition precedent or excuse for nonperformance.-Feder v. Midland Casualty Co., 147 N. E. 468.

353(8) (1.) Instruction pertaining to owner's waiver of contractor's delay held erroneous, where waiver not pleaded.-Smith v. Gray, 147 N. E. 459.

CORPORATIONS.

See Banks and Banking; Carriers; Joint-Stock
Companies and Business Trusts; Municipal
Corporations: Public Service Commissions;
Railroads; Street Railroads.

II. CORPORATE EXISTENCE AND

FRANCHISE.

VII. CORPORATE POWERS AND

LIABILITIES.

(A) Extent and Exercise of Powers in General.

383 (Mass.) Corporations can only act by agents duly authorized.-Morrison v. Tremont Trust Co., 147 N. E. 870.

388 (2) (Ohio) Corporation, receiving benefit of other corporation's ultra vires contract, estopped to question its validity.-London & Lancashire Indemnity Co. of America v. Fairbanks Steam Shovel Co., 147 N. E. 329.

391 (Mass.) Corporation refusing to conduct its business in accordance with valid laws cannot complain if its right to transact business is suspended or revoked.-In re Opinion of the Justices, 147 N. E. 681.

(B) Representation of Corporation by Officers and Agents.

404 (1) (Mass.) Position of secretary does not itself confer authority to sell, demise, or dispose of corporation's property.-American Congregational Ass'n v. Abbot, 147 N. E. 895.

38 (Mass.) Corporate charters granted after March 11, 1831, are subject to amend-426(10) (Ohio) Corporation retaining benment or alteration.-In re Opinion of the Jus-efit of indemnity contract unreasonable time after notice thereof, held estopped to deny its validity.-London & Lancashire Indemnity Co. of America v. Fairbanks Steam Shovel Co., 147 N. E. 329.

tices, 147 N. E. 681.

39 (Mass.) Corporate charters granted after March 11, 1831, are subject to amendment or alteration, and corporations organized thereafter subject to laws affecting their rights and duties. In re Opinion of the Justices, 147 N. E. 681.

(D) Contracts and Indebtedness. 457 (Ind.App.) Stock in corporation valuable consideration for transfer of property to it.

III. CORPORATE NAME, SEAL, DOMICILE, -Jordan v. Lynch Land Co., 147 N. E. 318.

BY-LAWS, AND RECORDS.

53 (III.) Officers bound by by-laws adopted prior to appointment or election.-Ginter v. Heco Envelope Co., 147 N. E. 42.

By-laws part of contract between corporation and officers, in absence of special agreement.-Id.

57 (III.) Officers of corporation are presumed to know by-laws adopted before their appointment or election.-Ginter v. Heco Envelope Co., 147 N. E. 42.

XI. DISSOLUTION AND FORFEITURE OF
FRANCHISE.

597 (Mass.) Corporation refusing to conduct its business in accordance with valid laws cannot complain if its right to transact business is suspended or revoked.-In re Opinion of the Justices, 147 N. E. 681.

XII. FOREIGN CORPORATIONS.

636 (Mass.) State may do with foreign corporation, admitted to do business within its borders that which it might do with corporations of its own creation.-In re Opinion of the Justices, 147 N. E. 681.

640 (N.Y.) Existence of foreign corporation, capacity to sue, and right of directors to represent it determined according to charter and laws of corporate domicile.-Russian Reinsurance Co. v. Stoddard, 147 N. E. 703.

Whether foreign corporation has transferred rights or property determined according to law regulating transfer or devolution.-Id.

~661(1) (N.Y.) Corporation organized under laws of recognized foreign state can ordinarily assert rights in New York courts.-Russian Reinsurance Co. v. Stoddard, 147 N. E.

VI. OFFICERS AND AGENTS. (A) Election or Appointment, Qualifica- | 703. tion, and Tenure.

COSTS.

II. PERSONS ENTITLED.

284 (111.) Employee's acceptance of office to which he has been elected by board of direc-91 (Mass.) Whether tors creates new contract.-Ginter v. Heco Envelope Co., 147 N. E. 42.

294 (III.) President's dismissal of other officer a nullity where by-laws vest power of removal in directors.-Ginter v. Heco Envelope

Co., 147 N. E. 42.

defendants or single bill of costs be allowed separate costs to rests in discretion.-Fuller v. Trustees of Deerfield Academy and Dickinson High School, 147 N. E. 878.

V. AMOUNT, RATE, AND ITEMS.

172 (Mass.) Nominal counsel fee only held allowable as costs.-Fuller v. Trustees of Deerfield Academy and Dickinson High School, 147 N. E. 878. COUNTERCLAIM.

(C) Rights, Duties, and Liabilities as to Corporation and its Members. 308(6) (III.) Officer, who terminated employment on unauthorized dismissal by president without notice to directors, not entitled See Set-Off and Counterclaim. to salary for unexpired portion of term.-Ginter v. Heco Envelope Co., 147 N. E. 42. ~310(1) (1.) New contract created between employee and corporation by acceptance of office to which employee has been elected by board of directors did not prevent continued performance of duties originally prescribed.-122 (2) (Ind.) Public policy forbids officers of counties from being interested in public con

Ginter v. Heco Envelope Co., 147 N. E. 42.

COUNTIES.

III. PROPERTY, CONTRACTS, AND

LIABILITIES.

(B) Contracts.

tracts.-Marion Tp. of Boone County v.. How-running with the land, and an "incumbrance." ard, 147 N. E. 619; Jackson Tp. of Boone -Bennett v. Sheinwald, 147 N. E. 28. County v. Bowman, 147 N. E. 621.

90 (1) (Mass.) Former opinion, holding that injury by slipping on street did not arise 18 (III.) Burden of proving notice of out of employment, is binding.-Whitley's Case, building line restriction is on person seeking to enforce it.-McGovern v. Brown, 147 N. E. 664.

220(3) (Ind.) Decision of Appellate Court, that evidence set out was sufficient, not con-24 (Mass.) Men are presumed to have intrary to rulings of Supreme Court or decision tended natural consequence of their own acts. of new question.-Julian v. Bliss, 147 N. E. Commonwealth v. Morrison, 147 N. E. 588. 148.

(D) Covenants Running with the Land. 53 (III.) Test whether covenant runs with 276 (Mass.) Issues of fact of plea to jurisland, stated.-Keogh v Peck. 147 N. E. 266. diction not required to be determined before 69 (2) (Mass.) Reservation in deed and hearing on indictments.-Commonwealth stipulation to build party wall held covenant i Marsino, 147 N. E. 859.

deceased, alleged to have been victim of lar(A) Judicial Notice, Presumptions, and ceny, held competent.-Commonwealth v. Orler, 147 N. E. 548.

For cases in Dec. Dig. & Am.Dig. Key-No.Series & Indexes see same topic and KEY-NUMBER

X. EVIDENCE.

Burden of Proof.

308 (Ind.) Presumption of innocence con-442 (Mass.) Inference that letters foltinues until close of trial.-Sims v. State, 147 lowed ordinary course held to justify their admission.-Commonwealth v. Orler, 147 N. E.

N. E. 520.

(C) Other Offenses, and Character of Accused.

369 (3) (III.) Proof that revolver found on defendant was stolen from witness held erroneous.-People v. Williams, 147 N. E. 443.

371 (3) (Mass.) Evidence of former completed transaction held admissible, in prosecu tion for attempt.-Commonwealth v. Morrison, 147 N. E: 588.

(D) Materiality and Competency in General.

386 (Mass.) Telegram and resulting telephone conversation with one giving defendant's name held admissible.-Commonwealth v. Morrison, 147 N. E. 588.

548.

(L) Evidence at Preliminary Examination or at Former Trial.

393(1) (Ohio) Receiving in evidence accused's admissions while testifying voluntarily in civil suit held not compulsory self incrimina-542 (Mass.) Evidence of what deceased tion. Harrison v. State, 147 N. E. 650. person testified to at former trial held compe394 (Ind.) Persons lawfully arrested for tent.-Commonwealth v. Glassman, 147 N. E. misdemeanor in officer's presence may be 833. searched without warrant, and facts discovered 547 (3) (Mass.) Admitting testimony in are admissible against them.-Haverstick V. proof of testimony of deceased witness held State, 147 N. E. 625. without error.-Commonwealth v. Glassman, 147 N. E. 833.

Articles found in possession of persons lawfully arrested for one offense may be used as evidence in prosecution for other offense.-Id.

394 (Ind.) Employee could not lease to another employer's house for which he paid no rent. Snedegar v. State, 147 N. E. 918.

(M) Weight and Sufficiency.

562 (Mass.) Defendant not entitled to acquittal because evidence equally consistent with commission of different offense.-Commonwealth v. Goms, 147 N. E. 345.

395 (11.) Liquor seized under illegal search warrant inadmissible in evidence.-Peo-564 (1) (Ind.) Proof of commission of ofple v. Elias, 147 N. E. 472.

When evidence of result of examination of books may be given by competent persons, stated.-Id.

fense at place charged in affidavit sufficient.Coger v. State, 147 N. E. 624.

564 (1) (Ind.) Evidence held sufficient to prove venue.-Davis v. State, 147 N. E. 766. 564 (3) (Ind.) Venue sufficiently proved where place of commission of crime may be inferred from facts proved.-Davis v. State, 147 N. E. 766.

Venue may be established from inferences from the evidence.-Id.

(F) Admissions, Declarations, and Hear-564 (8) (Ind.) Evidence held sufficient to

say.

406 (4) (Ohio) Accused's admissions while testifying voluntarily in civil suit held competent. Harrison v. State, 147 N. E. 650.

406 (7) (Mass.) Testimony that defendant had previously admitted possession of liquors with intent to sell held not incompetent.-Commonwealth v. Klosowski, 147 N. E. 577.

409 (Mass.) Evidence held sufficient to justify inference that defendant was the man who did not deny accusation that his truck struck woman at crossing.-Commonwealth v. Goldberg. 147 N. E. 597.

409 (Mass.) Issue as to whether defendant stole bonds from national bank and if he did so with aid of bank's president properly submitted. Commonwealth v. Marsino, 147 N. E. 859. 421 (1) (1.) Proof of what people in defendant's neighborhood said about him after homicide held prejudicial error.-People v. Williams, 147 N. E. 443.

(G) Acts and Declarations of Conspirators

and Codefendants.

warrant conviction for assault and battery with intent to commit rape within county.Eckert v. State, 147 N. E. 150.

641 (I) (III.) Sending vessels containing intoxicating liquors, seized at defendant's home, to jury room, held violative of constitutional right to be represented by counsel.-People v. Elias, 147 N. E. 472.

641(1) (Ind.) Conviction not reversed on mere suspicion that defendant not efficiently defended.-Castro v. State, 147 N. E. 321.

641 (3) (Ind.) Imperative duty of trial court to see that accused pauper is properly defended. Castro v. State, 147 N. E. 321.

424 (2) (III.) Statements of alleged confed-655(5) (Mass.) Court should correct miserate in presence of accused and officers not competent against accused.-People v. Hanley,

147 N. E. 400.

Confession admissible against confederate who acknowledged it.-Id.

(H) Documentary Evidence and Exclusion of Parol Evidence Thereby.

429 (2) (Mass.) Defendant's testimony in contest for appointment of administrator for

leading arguments of counsel and direct jury's attention to vital issues.-Commonwealth v. Taschetta, 147 N. E. 553.

(C) Reception of Evidence.

662 (2) (III.) Sending vessels containing intoxicating liquors, seized at defendant's home, to jury room, held violative of constitutional right to confront witnesses.-People v. Elias, 147 N. E. 472.

670 (Mass.) Statement of offer of proof to show witness' prejudice must disclose facts which, if established, would show interest or prejudice.-Commonwealth v. Sansone, 147 N.

E. 574.

778(4) (Ind.) Refusal of instruction on presumption of defendant's innocence, and that jury should reconcile all evidence with such presumption, held error.-Hubbard v. State, 147 N. E. 323.

673(4) (III.) Admission of confession made 778(4) (Ind.) Instruction on presumption by defendant implicating codefendant held not of innocence held inaccurate but harmless to deerroneous.-People v. Young, 147 N. E. 425. fendant.-Sims v. State, 147 N. E. 520. ~683(1) (III.) Rebuttal testimony that ac-784(7) (Ind.) Refusal to instruct as to test cused was seen on night after robbery with confederate, and that he had gun, competent.People v. Hanley, 147 N. E. 400.

of sufficiency of circumstantial evidence held
error.
:.-Beemer v. State, 147 N. E. 276.

785(12) (Ind.) Instruction warranting jury in considering evidence of ill-feeling between defendant and state's witnesses held misleading.-Hubbard v. State, 147 N. E. 323.

(D) Objections to Evidence, Motions to Strike Out, and Exceptions. 693 (III.) Defendant, not objecting to ques-790 (Mass.) Court may state in charge tion until after answer, nor moving to exclude legislative purposes of act on which indictment latter, held not entitled to complain.-People v. based.-Commonwealth v. Sansone, 147 N. E. Daniels, 147 N. E. 662.

574.

696 (2) (11.) Defendant, not objecting to 799 (Mass.) Charge of court correcting erquestion until after answer, nor moving to ex- roneous argument of counsel as to matter reclude latter, held not entitled to complain.- quired to be proven by commonwealth held People v. Daniels, 147 N. E. 662. not expression of opinion or prejudicial.-Commonwealth v. Taschetta, 147 N. E. 553. Counsel.8082 (Mass.) Charge quoting from opinion in decided case held proper.-Commonwealth v. Sansone, 147 N. E. 574.

(E) Arguments and Conduct of

726 (111.) Reference of state's attorney to failure of defendants to testify held erroneous. 814(1) (Ind.) Court not required to give -People v. Young, 147 N. E. 425.

(F) Province of Court and Jury in General.

736 (2) (Mass.) Whether defendant heard another make claim that he was employed by defendant held for jury.-Commonwealth V. Klosowski, 147 N. E. 577.

741(1) (Ind.) Weight of evidence primarily for jury.-Lowery v. State, 147 N. E. 151.

742(1) (Ind.) Jury's province to determine what evidence they will believe.-Cazak v. State, 147 N. E. 138.

742 (1) (Ind.) Credibility of evidence primarily for jury.-Lowery v. State, 147 N. E. 151.

742 (2) (N.Y.) Whether witness, on whose uncorroborated testimony conviction rested, was accomplice held for jury under evidence.People v. Demasco, 147 N. E. 710.

745 (Ind.) Inferences to be drawn from facts proved are primarily for jury.-Lowery v. State, 147 N. E. 151.

7552 (Ind.) Instruction held to limit jury's constitutional right to determine law and facts.-Hubbard v. State, 147 N. E. 323.

instructions not pertinent to issues joined nor evidence heard.-Gillenwater v. State, 147 N. E. 714.

814(1) (Ind.) Insertion in instruction of word omitted from indictment not error, where indictment not vitiated by such omission.-Davis v. State, 147 N. E. 766.

814(18) (Mass.) Requested ruling as to necessity for corroboration held properly denied, when prosecutrix corroborated.-Commonwealth v. Taschetta, 147 N. E. 553.

822(1) (II.) Sufficient if instructions as series fully state law.-People v. Scimeni, 147 N. E. 484.・

That instructions, substantially and fairly present law sufficient for affirmance.-Id.

822(1) (Ind.) Error in instruction not reversible unless it vitiates whole charge and is misleading.-Alyea v. State, 147 N. E. 144.

823(1)(III.) Incomplete instruction may be supplemented by others which are in harmony. People v. Scimeni, 147 N. E. 484.

823 (4) (Ind.) Error in instruction as to maintenance of common nuisance within Prohibition Law held not to require reversal.-Alyea v. State, 147 N. E. 144.

761(1) (Ind.) Court in instructions should 823 (4) (Ind.) Refusal to give requested innot assume that material fact in issue has been struction held not erroneous in view of given established by evidence.-Hubbard v. State, 147 instructions.-Gillenwater v. State, 147 N. E. N. E. 323.

714.

~~761(6) (Ind.) Instruction held error as as-823(6) (III.) Self-defense instruction held suming that liquor in question was intoxicating not prejudicial in view of supplementary inand that it was same as that which witnesses structions.-People v. Scimeni, 147 N. E. 484. saw defendant giving away.--Hubbard v. State, 823 (9) (Ind.) Inaccurate instruction on 147 N. E. 323. presumption of innocence held harmless in view of other instructions.-Sims v. State, 147 N. E. 520.

762(3) (Mass.) Instruction, if jury believed commonwealth's evidence, then to convict, held not expression of opinion.-Commonwealth Goms, 147 N. E. 345.

V.

(H) Requests for Instructions.

762 (5) (Mass.) Charge of court correcting 825(1) (Ind.) In absence of request, failerroneous argument of counsel as to matter ure to give further instructions was not reversrequired to be proven by commonwealth held ible error.-Haverstick v. State, 147 N. E. 625. not expression of opinion or prejudicial.-Com-825(2) (Ind.) Omission from instruction monwealth v. Taschetta, 147 N. E. 553. no ground for complaint, in absence of request 763, 764(10) (Ind.) Refused instructions for more complete instruction.-Cazak v. State, in prosecution for conspiracy to embezzle held 147 N. E. 138. to invade jury's province.-Sims v. State, 147829 (1) (Ind.) Refusal of instructions covN. E. 520. ered by instructions given held not error.Alyea v. State, 147 N. E. 144.

766 (Ind.) Instruction that statute was vague and that jurors were judges of law, held 829(7) (Ind.) Refusal to give further reproperly refused.-Haverstick v. State, 147 N. quested instruction on alibi held not error.Pindell v. State, 147 N. E. 711.

E. 625.

(G) Necessity, Requisites, and Sufficiency of Instructions.

(1) Objections to Instructions or Refusal Thereof, and Exceptions.

778(3) (Ind.) Court on proper request 844(1) (Mass.) Errors must be specifically should instruct jury to reconcile evidence with pointed out, and exception to whole charge as presumption of innocence if possible.-Sims prejudicial is not well taken.-Commonwealth v. State, 147 N. E. 520. v. Taschetta, 147 N. E. 553.