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$364 (Tex.Civ.App.) A railroad company was escaped from its pasture through such fence bound to operate its train so as not to inter- and fell into a hole.- Missouri, K. & T. Ry. fere with plaintiff's enjoyment of his premises Co. of Texas v. Meyer, 161 S. W. 12. near the right of way by casting missiles from Railroad company, which made excavation on the train and injuring plaintiff.— Trinity & B. its right of way into which surface water flowV. Ry. Co. v. Blackshear, 101 S. W. 395. ed and washed a deep hole, held not bound to

$ 381 (Mo.) A person walking along a rail- guard such hole to prevent persons or animals road track in a public street along which the falling therein.-Id. tracks extended was bound, after he saw $ 414 (Tex.Civ. App.) Railroad company held train approaching, to use the care that an under no duty to keep a deep hole on its right ordinarily prudent person would have, under of way inclosed to prevent live stock falling the circumstances, used to get off the track.- therein, and not liable for the death of a cow Lueders v. St. Louis & S. F. R. Co., 161 S. which fell therein after it had moved its right W. 1159.

of way fence so as not to inclose such hole.$ 383 (Ky.) The doctrine of "stop, look, and Missouri, K. & T. Ry. Co. of Texas v. Meyer, listen" on approaching and crossing' a railroad 161 S. W. 12. track has not been adopted in Kentucky.- $ 415 (Mo. App.) Where an animal killed was Cincinnati, N. 0. & T. P. Ry. Co. v. Winning- on a public railroad crossing, the statutory. ham's Adm'r, 161 S. W. 506.

duty to ring the bell of an approaching engine $ 385 (Mo.) A traveler in a public street

was mandatory, regardless whether the trainalong which a railroad extended had the right men saw or could have seen the animal, while to rely upon the observance by the railroad of if the animal was not at a public crossing the an ordinance limiting its speed to five miles per liability for killing it rested on the common-law hour.-Lueders v. St. Louis & S. F. R. Co., 161 duty of the company to avoid injury, if reaS. W. 1159.

sonably possible after discovering the danger.

Martin v. Butler County R. Co., 161 S. W. $ 396 (Tex.Civ.App.) The res ipsa loquitur

631. doctrine will raise a presumption of negligence by defendant railroad company, where plaintiff $ 419 (Mo.App.) Where the engineer or firewhile plowing in his field about 50 feet from man saw or could have seen an animal on the the track was struck by a spike "picked up” track or coming onto it in time to have avoidby a passing freight train and thrown with ed killing the animal by either scaring it from great force into plaintiff's field.-Trinity & B. the track by an alarm, or by stopping the train, V. Ry. Co. v. Blackshear, 161 S. W. 395. the railroad company was liable for killing it.

$ 398 (Mo.) Evidence, in an action for the Martin v. Butler County R. Co., 161 S. W. 631. death of plaintiff's intestate run over by a $ 425 (Tex.Civ.App.) The negligence of a railtrain in a public street along which tracks ex- road company in obstructing a private crossing tended, held to justify a finding that the speed does not render it liable for the death of a of the train was excessive in view of an ordi- horse without any showing connecting the neglinance limiting the speed to five miles per hour, gence with the death.-San Antonio & A. P. and that the excessive speed was the proximate Ry. Co. v. Schendel, 161 S. W. 376. cause of the accident.-Lueders v. St. Louis &

$ 439 (Mo.App.) Plaintiff's right to recover S. F. R. Co., 161 S. W. 1159.

for injuries to a horse under an allegation that $ 400 (Mo.) The question whether plaintiff's railroad company failed to maintain a lawintestate, after he saw the train, used reasonableful fence held not affected by the inclusion of efforts to get off the track, was properly sub- another allegation of negligence of the committed to the jury.-Lueders v. St. Louis & S. pany's servants not sustained by the evidence.F. R. Co., 161 S. W. 1159.

McClaskey y. Quincy, O. & K. C. R. Co., 161

S. W. 277. H) Injuries to Animals on or near Tracks.

$ 441 (Mo.App.) In an action for negligently $ 407 (Mo.App.) Engineer of train standing blowing locomotive whistle, frightening horse, near overhead crossing while waiting for clear burden of pleading and proving a negligent track held not negligent in blowing the custom- breach of duty held to be with plaintiff to the ary blasts of the whistle as a signal to the end of the case.--Pontius v. Chicago, R. I. & rear brakeman who had gone back to

warn P. Ry. Co., 161 S. W. 292. other trains, though the horse of a waiting for the train to move before crossing a finding that the horse killed entered on the

$ 443 (Tex.Civ.App.) Evidence held to sustain the bridge was thereby frightened.- Pontius v. track at a point where railroad employés putChicago, R. I. & P. Ry. Co., 161 S. W. 292. $ 411 (Mo. App.) Under Rev. St. 1909, $8ing in the fence.-Texas & N.°O. R. Co. v.

ting in a new crossing negligently left an open3145, 3146, statutory remedy for failure to Cunniff, 161 S. W. 396. fence railroad held not available, where horse went on track and fell into trestle bridge with- $ 446 (Ky.) In an action for value of a horse out being injured, frightened, or run by a lo- struck by a train, a peremptory instruction for comotive or train. - McClaskey v. Quincy, o. defendant held properly refused, though those & K. C. R. Co., 161 S. W. 277.

in charge of the train testified that they used Under Rev. St. 1909, $8 3145, 3146, owner care to avoid the accident; the burden placed of horse which went on railroad track because upon defendant by Ky. St. $ 809, to disprove of absence of fence and cattle guards, though not negligence not being overcome.-Chesapeake & injured, frightened, or run by a locomotive or 0. Ry. Co. v. Burton, 161 S. W. 1116. train, held entitled to

for injuries

$ 447 (Mo.App.) An instruction, in an action caused by falling into a bridge;, the statutory against a railroad company for the killing of an remedies not being exclusive.-Id.

animal, held defective for failing to state what Under Rev. St. 1909, $ 3145, proprietor of facts, if found, constituted actionable neglirailroad crossed by private road held to owe to gence.-Martin v. Butler County R. Co., 161 S. the owner of a horse living at some distance W. 631. the duty of providing a lawful barrier to pre

(I) Fires. vent the horse straying from a public road to the railroad by the way of the private road. $ 481 (Tex.Civ.App.) In an action for burning -Id.

plaintiff's goods, where its witnesses testified 8 411 (Tex.Civ.App.) Railroad company held that the engines were equipped with the best not bound to maintain a fence extending from spark arresters, plaintiff can show that the enits track to the right of way fence after mov- gines threw sparks and started fires.--St. Louis ing the right of way fence closer to the track, Southwestern Ry. Co. of Texas v. Benjamin, and not liable to the owner of a cow which / 161 S. W. 379.



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For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and section (8) NUMBER


that by inadvertence there was a misdescription

in the real estate intended to be conveyed by See Criminal Law, § 1186; Evidence, g 116; the grantors and received by the beneficiary, Indictment and Information, $ 125.

there was a mutual mistake of the parties jus

tifying reformation.-Id. I. OFFENSES AND RESPONSIBILITY

§ 23 (Ark.) Where defendants purchased THEREFOR.

land from a railroad company and relied upon $14 (Ark.) Failure to resist or make out the railroad company's agent to insert the de. cry because of fear held not to prevent crime scription in their application for the purchase, constituting rape, and instruction requiring defendants are not estopped from securing a prosecutrix to use only such means to prevent reformation of their deed because they did not accused accomplishing his purpose as was con- examine the description and ascertain that it sistent with her safety was proper.-Threet v. failed to include the land they sought to buy.State, 161 S. W. 139.

St. Louis, I. M. & S. Ry. Co. v. McConnell, 161


8 25 (Ark.). Where defendants purchased land (C) Trial and Review.

from plaintiff and went into possession, erecting 8 59 (Ark.) Where prosecutrix made no dis- structures thereon, they will not be denied a closure for about 60 days, and, in the mean- reformation of their deed to include the land time, voluntarily had sexual intercourse with purchased, on the ground that the parties canaccused and others, refusal of instructions that not be placed in statu quo.-St. Louis, I. M. & this might be considered in determining wheth- S. Ry. Co. v. McConnell, 161 S. W. 496. er the act charged was against her will held er

II. PROCEEDINGS AND RELIEF. ror.-Threet v. State, 161 S. W. 139.

§ 36 (Mo.) A petition for the reformation of III. CIVIL LIABILITY.

an instrument on the ground of mutual mistake 866 (Mo.App.) Where the petition stated a

need only set forth the substantive facts neccause of action for damages for an assault with essarily showing mutuality of mistake.-Wolz intent to rape, and the evidence merely 'tended

v. Venard, 161 S. W. 760. to establish a simple assault, the variance was

A petition for the reformation of a deed of immaterial.-Marts v. Powell, 161 S. W. 871. trust by correcting the misdescription of land,

which alleges that the grantor agreed to conRATE.

vey by deed of trust two tracts, that pursu.

ant to the agreement a deed was executed, See Electricity, § 1; Ferries, $ 31; Interest, 8 wherein the land was misdescribed, because the 31; Telegraphs and Telephones, § 26.

draftsman inserted the wrong description,

states, when liberally construed, as required by REAL ACTIONS.

Rev. St. 1909, $ 1831, a cause of action based

on mutual mistake.-Id. Ejectment; Forcible Entry and Detainer;

8 45 (Ark.) Before a written instrument will artition; Quieting Title; Trespass to Try be reformed for mutual mistake, the evidence of Title.

the mistake must be clear and convincing.–St. REASONABLE DOUBT.

Louis, I. M. & S. Ry. Co. v. McConnell, 161 S.

W. 496. See Criminal Law, $ 789.

Where defendants filed a cross-complaint seek

ing a reformation of their deed, evidence held RECEPTION OF EVIDENCE.

sufficient to support a decree of reformation. See Criminal Law, 88 676, 678.



See Witnesses, 8 257.
See Bail.


See Appeal and Error, $ 835; New Trial.
See Adverse Possession, $ 79; Appeal and Er-
ror, $8 173, 499–714, 760, 901, 1133; Certi-

REINSTATEMENT. orari, & 64; Chattel Mortgages, $ 204; Criminal Law, $8 1081, 1086–1124; Deeds, g 59. See Insurance, 8 761. REDIRECT EXAMINATION.

See Witnesses, $ 286.

See Payment.


§ 17 (Ark.) One who signed a release of a L NATURE, GROUNDS, AND ORDER claim for personal injuries, in reliance on false OF REFERENCE.

statements by the agent of the wrongdoer, with$ 8 (Ky.) An account was peculiarly one for by.–St. Louis, 1. M. & S. Ry. Co. v. Reilly, 161

out reading the release, was not bound therereference to a commissioner where there were

S. W. 1052. 433 issues of fact involving charges for services and countercharges.-Garvey v. Garvey, 161

8.17 (Tex.Civ. App.) Where the release of a S. W. 526.

claim for a personal injury was obtained on the representation that only a railroad company was

released, a telegraph company could not rely on REFORMATION OF INSTRUMENTS. the release which in fact discharged all com

panies because of the failure of the person inI. RIGHT OF ACTION AND DEFENSES. jured and her husband to read the release before

819 (Mo.) The mistake which constitutes a signing.- Western Union Telegraph Co. ground for the reformation of an instrument Walck, 161 S. W. 902. must be mutual, and, where the parties agree

III. PLEADING, EVIDENCE, TRIAL, to accomplish a particular object by an in

AND REVIEW. strument to be executed, and the instrument does not do so, a court of equity may reform $ 57 (Ark.) Evidence, in a passenger's action the instrument.-Wolz v. Venard, 161 S. W. against a railroad company for personal in700.

juries, held to sustain a finding that plaintiff's Where the parties to a deed of trust admitted signature to a release of her claim against de

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fendant was obtained by fraud.–St. Louis, I. tions was not delivered to him, he could not M. & S. Ry. Co. v. Reilly, 161 S. W. 1052. maintain replevin; but, where it was delivered

§ 58 (Tex.Civ.App.) Evidence held to require with the consent of the party selling it to the submission of the issue whether a release in- newspaper and participating in the scheme, he cluding the company was procured by fraud. - could recover.-Jones V. Burks, 161 S. W. 177. Western Union Telegraph Co. v. Walck, 161 88 (Tex.Civ.App.) In an action by two perS. W. 902.

sons to recover mules, or their value, which RELEVANCY.

were claimed to have been converted by defend

ant, the question whether plaintiffs were partSee Evidence, 88 106–117.

ners and whether one plaintiff had paid the oth

er for his interest therein was immaterial.RELIGIOUS SOCIETIES.

Coody v. Shawyer, 161 S. W. 935. See Constitutional Law, $ 205; Escrows, $ 8.

REPORT. 82 (Ky.) Ky. St. $319,. prohibiting any See Highways, $ 41. church or society of Christians from taking more than 50 acres of land, applies to all religious organizations of whatever faith, and not

to societies of Christians only, and hence is not See Negligence, 8124.
discriminatory against Christians.-Compton v.
Moore, 161 S. W. 540.


See Trial, 88 255–267.
See Husband and Wife, 8 15; Life Estates;

RESALE. Wills, 88 229, 634. $16 (Ky.) In a proceeding to sell real prop

See Sales, 88 334, 335. erty for reinvestment, under Civ. Code Prac. 8 491, contingent remaindermen held bound by

RESCISSION. the proceedings by representation, and were not | See Exchange of Property, 8 8. necessary parties.-Goff v. Renick, 161 S. W. 983.

RES GESTÆ. Where contingent remaindermen are necessary parties to a proceeding to sell land for rein. See Criminal Law, § 364; Evidence, 88 122– vestment and join as plaintiffs, it is not neces- 126. sary to make them defendants.-Id. Under Civ. Code Prac. 88 543–547, the court

RESIDENCE. properly permitted the taking of proof by affi- See Constitutional Law, $ 205; Gaming, $ 72. davit in a proceeding to sell property devised for life, subject to contingent remainders for re

RES IPSA LOQUITUR. investment for the benefit of all parties in interest, who were plaintiffs in the proceeding.- See Carriers, 88 316, 320; Railroads, 8 396. Id. § 17 (Mo.) The statute of limitations does not

RESTRAINT OF TRADE. run against remaindermen who take after a life See Contracts, $ 117; Monopolies, $ 12. tenant until the determination of the life estate.--Armor v. Frey, 161 S. W. 829. In view of the analogy between suits to quiet

RESULTING TRUSTS. title and those for partition under Rev. St. 1909, $8 2572, 2575, the failure of a remainder: See Trusts, $ 81. man, entitled to take after the determination of a life estate, to institute a suit to quiet title

RETURN. before the termination of the preceding estate, See Process, $ 142. will not start the running of limitations against him, though the life tenant asserted he owned the fee.-Id.


See Taxation.
See Venue, 88 36–72.


See Criminal Law, $ 1186.
See Quieting Title.


See Landlord and Tenant, 88 55, 61.
See Ejectment, $ 135; Landlord and Tenant, $8

REVIEW. 209–246; Limitation of Actions, $ 28; Mortgages, $ 199.

See Appeal and Error; Certiorari; Criminal

Law, 1017-1186; Taxation, $ 463.
See Landlord and Tenant, $$ 125, 150.


See Judgment, § 866.
See Statutes, $ 159.


See Arbitration and Award.
See Carriers, 57; Partnership, § 218; Trial,

RIGHT OF WAY. $ 252.

See Railroads, 88 72, 76, 113, 236. I. RIGHT OF ACTION AND DEFENSES.

RIPARIAN RIGHTS. $8 (Ark.) Where the automobile which plaintiff won in a contest for newspaper subscrip- See Waters and Water Courses, $ 38.

For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and section (8) NUMBER

RISK, ASSUMPTION OF. hundredweight too low, and plaintiffs accepted

the offer knowing that it must have been a misSee Carriers, 8 298; Master and Servant, 88 take, plaintiff could not recover for defendants' 203–226, 295.

failure to perform.-Id. ROADS.

§ 53 (Ark.) Whether an order for goods ob

tained by a traveling salesman was accepted by See Highways; Municipal Corporations, 88 648, the seller before cancellation by the buyer held 663, 766–821.

for the jury.-Outcault Advertising Co. v. ROBBERY.

Young Hardware Co., 161 S. W. 142. See Indictment and Information, $ 171.

II. CONSTRUCTION OF CONTRACT. § 17 (Tex.Cr. App.) It is not necessary that $ 79 (Tex.Civ.App.) Where a defendant order. the indictment allege the denomination and ed one car of crates complete 634 f. o. b. Jag. kind of money stolen.--Bracher v. State, 161 nolia, the expression merely indicated that the S. W. 124.

price was to be 634 cents, including freight to § 20 (Tex.Cr.App.) Where an indictment al- Magnolia, and not that the goods were to be leged that C. was robbed of $10, proof that he delivered at that place.-Burton & Beard v. was robbed of $14 was not a variance.—Bracher Nacogdoches Crate & Lumber Co., 161 S. W. v. State, 161 S. W. 124.

25. $ 24 (Mo.) Evidence held to sustain a convic $ 82 (Tex.Civ.App.) Where goods are ordered tion for robbery.-State v. Sydnor, 161 S. W. delivered to a third person and charged to de 692.

fendant, the purchase price cannot be collected 8 24 (Tex.Cr.App.) Evidence held to justify a until delivery.-Burton & Beard v. Nacogdoches conviction, notwithstanding defendant's evi. Crate & Lumber Co., 161 S. W. 25. dence of alibi.-Bracher v. State, 161 S. W. 124.

8 27 (Mo.) Robbery in the first degree in- IV. PERFORMANCE OF CONTRACT. cludes all the elements of larceny, with the (C) Delivery and Acceptance of Goods. added acts of violence and putting in fear, so that, in the absence of proof of violence and

8161 (Tex.Civ.App.) Where defendants orderputting in fear, accused is entitled to the sub- ed a car of crates to be shipped to third per. mission of the offense of larceny.-State v.

sons, the sellers, by delivering the shipment to Weinhardt, 161 S. W. 1151.

the carrier in the time stipulated, comply with In a prosecution for robbery, defendant's evi- the contract and are entitled to recover the dence held to require a charge on the offense purchase price, even though the shipment is so of petit larceny.-Id.

delayed that the consignees refuse to receive it. 828 (Tex.Cr. App.) A verdict finding accused Lumber Co., 161 S. W. 25.

—Burton & Beard v. Nacogdoches Crate & guilty as charged, and assessing his punishment at the lowest term of imprisonment, is suffi- load of cooperage by sample and, with knowl

$ 176 (Ark.) Where defendant ordered a car cient under an indictment charging robbery by exhibiting deadly weapons, which would have edge of defects in quality, paid a part of the authorized the imposition of the death penalty.- price and promised to pay the balance to seDosh v. State, 161 S. W. 979.

cure an extension of time of payment, he waived 8 30 (Tex.Cr.App.) To authorize the jury. to asha Wooden Ware Co. v. Hudgins Produce Co.,

right to object because of such defects.-Jenassess the death penalty for robbery, the indict- 161°s. W. 198. ment must allege that the robbery was committed by exhibiting firearms or deadly weapons.- of lumber at a specified price per thousand feet;

$ 177 (Tex.Civ.App.) Under contract for sale Dosh v. State, 161 S. W. 979.

buyer could accept so much only as complied RULES.

with the contract, and seller could demand that

it do so, and that part of that tendered did not See Colleges and Universities, $ 9.

comply with the contract did not justify an en

tire refusal to accept.-Bland & Fisher Lumber RULES OF COURT.

Co. v. Scanlan, 161 S. W. 401.

$ 178 (Tex.Civ.App.) Use of small quantity of See Courts, $$ 78, 85.

lumber by purchaser, who had refused to accept

it, by mistake, held not necessarily an acceptSAFE PLACE TO WORK.

ance of the lumber.-Continental Lumber & Tie See Master and Servant, $$ 101-129.

Co. v. Miller, 161 S. W. 927.

$ 181 (Ark.) Evidence held to show that an SALES.

automobile had been delivered to plaintiff in

pursuance of the contract of sale between the See Alteration of Instruments, $ 4; Appeal and seller and a newspaper company offering it as

Error, 1066 ; Carriers, $ 57; Chattel Mort- a prize.—Jones v. Burks, 161 S. W. 177.
gages, &$ 220–222, 225; Corporations, ss 116,
121; Execution, $$ 272, 275; Husband and

Wife, & 267; Logs and Logging, § 3; Lotter-

$ 279 (Mo.App.) There is no difference beies, $ 12; Remainders, $ 16; Vendor and Pur

tween a warranty that a jack is a "good breedchaser.

er" and a warranty that he is a "great breeder," I. REQUISITES AND VALIDITY OF

except possibly in degree; if there is any difierCONTRACT.

ence, a great breeder would be a more than or

dinarily good breeder.-Perry v. Van Matre, 161 8 23 (Ark.) Where a written contract was but S. W. 643. an order for goods, it was subject to cancella $ 284 (Mo.App.) Where an animal, warranted tion before acceptance by the seller, though it to be of sound and healthy condition, has withexpressly provided to the contrary.-Outcault in it, on the date of the sale, the seeds of disAdvertising Co. v. Young Hardware Co., 161 ease, from which a condition of unfitness develS. W. 142.

ops, there is a breach of the warranty.-Perry $36 Tex.Civ.App.) The rule that when v. Van Matre, 161 S. W. 643. mistake is not mutual courts will not relieve the party making it, does not apply where the par VII. REMEDIES OF SELLER. ty accepting an offer knows of the mistake and seeks to take advantage of it.-Barteldes Seed

(D) Resale. Co. v. Bennett-Sims Mill & Elevator Co., 161 $ 334 (Mo.App.) Defendants, to whom onion S. W. 399.

sets had been shipped, with draft attached to Where by a clerical error the price at which bill of lading, having requested a reduction of defendants offered to sell seed was a dollar per 10 per cent., held bound to ascertain from the


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bank plaintiffs' action in that regard, and, hav- double, that the animal was sound and a good
ing failed to do so, plaintiffs' sale of the sets breeder, and plaintiff secured an instruction
for defendants' account within a reasonable predicated upon only one-half of such warranty,
time after plaintiffs' refusal was valid.-Leesley an instruction given for defendant, and covering
Bros. v. A. Rebori Fruit Co., 161 S. W. 861. the entire warranty, was not erroneous as con-

$335 (Mo.App.) Where the court was justified flicting with plaintiff's instruction.-Id.
in finding that onion sets, on being refused, were Where the warranty set up in the answer
resold by the seller at a fair price, the buyer was double, an instruction which, though pur-
could not object that, because part of the sets porting to cover the case and directing a find-
were sold to plaintiff's agent, the sale was no ing, covered only one-half of such warranty was
criterion for determining defendant's liability. erroneous.-Id.
-Leesley Bros. v. A. Rebori Fruit Co., 161 S.

An instruction to find for defendant if plain-
W. 861.

tiff warranted the animal to be sound and a

good breeder, and he was not such, was not er(E) Actions for Price or Value.

roneous for failure to fix any time at or within $ 347 (Ark.) If the purchaser was induced by which the warranty must be found to be opera

tive.--Id. false and fraudulent statements by the seller to purchase a jack and execute his note there

SATISFACTION. for, and the purchaser was injured by such false representations in that the jack did not See Payment; Release. breed, the seller could not recover the price.Warden v. Middleton, 161 S. W. 151.

SCHOOLS AND SCHOOL DISTRICTS. $ 359 (Ark.) Evidence in an action on a note for the price of a jack purchased from plain- See Colleges and Universities; Elections, 88 60, tiff held not to show that defendant's wife, who

65; Statutes, § 141. signed the note, was interested in the purchase of the animal.-Warden v. Middleton, 161 S. W.

II. PUBLIC SCHOOLS. 151. (F) Actions for Damages.

(C) Government, officers, and District

Meetings. $388 (Ark.) On an issue of false representations in the making of a contract of sale, the directors convene and act together as a board

8 56 (Ark.) It is only when the board of school court properly charged that if plaintiff's agent that they bind the district by their acts.obtained the contract by material false repre- School Dist. No. 56 v. Jackson, 161 S. W. 153. sentations defendant would avoid the contract. -Outcault Advertising Co. v. Young Hardware (E) District Debt, Securities, and TaxaCo., 161 S. W. 142.

$ 97 (Ky.) The board of education in cities of VIII. REMEDIES OF BUYER.

the first class has no authority to issue school (A) Recovery of Price.

bonds or levy a tax for school purposes; such $ 391 (Ark.). Where the purchaser of a jack, power vesting exclusively in the general council. upon discovering the falsity of representations -Stuessy y. City of Louisville, 161 S. W. 564.

An election to authorize a school bond issue
as to it, offered to return it and rescind the
contract, he could sue the seller for all damages by the city of Louisville under Act March 15,
sustained by such fraudulent misrepresenta- 1912 (Laws 1912, c. 90), was not invalid be
tions.-Warden v. Middleton, 161 S. W. 151.

cause 10 days' notice of the election required
by an ordinance adopted to carry the act into

eifect was not given; the ordinance having
(D) Actions and Counterclaims for Breach
of Warranty.

been published nearly three months before the

election was held.-1d. $ 425 (Mo.App.) On a breach of warranty of Where a statute authorizing an election for sale, the buyer may keep the chattel and sue the issuance of school bonds did not provide for for the difference between the chattel as war notice, and such notice as was provided by orranted and its actual value, or he may return dinance was not given, the size of the vote cast the chattel and sue for the full amount paid on could be considered in determining wbether the the price.- Excelsior Stove Mfg. Co. v. Million, notice actually given was sufficient.-Id. 161 S. W. 298.

$ 103 (Tex.Civ.App.) Acts 31st Leg. c. 12, § 1 $ 428 (Mo.App.) Where a buyer did not elect amending Acts 29th Leg. c. 124, $ 58, relative to rescind on acquiring knowledge of a breach to notice of election to vote on school taxes to of warranty, he became liable for the contract supplement state school fund, held neither price, and could set up his damages for breach strictly nor substantially complied with by postof warranty by way of counterclaim.-Excelsior ing two notices within the district and one noStove Mfg. Có, v. Million, 161 S. W. 298. tice outside the district.-Cochran v. Kennon,

$ 441 (Mo.App.) Evidence, in an action for 161 S. W. 67.
the price of a jack, wherein the defense was Where one of the notices of an election to
breach of a warranty that the animal was vote on a school district tax required by Acts
sound and a good breeder, held to sustain a 31st Leg. c. 12, § 1, amending Acts 29th Leg.
finding that the animal, on the date of sale, was c. 124, § 58, was posted outside the district,
diseased, and thereby rendered unfit for breed- subsequent annexation of territory, including
ing purposes. -Perry v. Van Matre, 161 S. W. the place where it was posted, to such district,

held not to render the notice sufficient.-Id.
$ 446 (Mo.App.) Instructions on warranty, in 107 (Tex.Civ.App.) Under Acts 31st Leg. c.
an action for the price of a jack, heid not er- 12, § 1, amending Acts 29th Leg. c. 124, $ 58,
roneous, though they failed to assume eviden- the validity of an election to vote on a school
tiary facts which were pleaded in the answer, tax to supplement the state school fund may be
and were in issue; the evidence thereon being attacked for failure to give the statutory notice
in conflict.-Perry v. Van Matre, 161 S. W. in a suit to enjoin the collection of the tax.-

Cochran v. Kennon, 161 S. W. 67. Where defendant testified that plaintiff repre- In suit to enjoin collection of school tax for sented the jack as a great breeder, it was not failure to give notice of election, as required by error to use the term "great breeder" in an in. | Acts 31st Leg. c. 12, § 1, amending Acts 29th struction on the warranty, though the warranty Leg. c. 124, § 58, burden held on defendants to as pleaded in the answer was that the jack was show that all or a substantial majority of the a "good breeder and a sure foal-getter."-Id. qualified voters had actual knowledge of the

Where the warranty set up in the answer was I election.-Id.

For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and section (8) NUMBER

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