RISK, ASSUMPTION OF. hundredweight too low, and plaintiffs accepted the offer knowing that it must have been a misSee Carriers, § 298; Master and Servant, §§ take, plaintiff could not recover for defendants' 203-226, 295. failure to perform.-Id. ROADS. See Highways; Municipal Corporations, §§ 648, the seller before cancellation by the buyer held 663, 766-821. ROBBERY. See Indictment and Information, § 171. § 17 (Tex.Cr.App.) It is not necessary that the indictment allege the denomination and kind of money stolen.-Bracher v. State, 161 S. W. 124. § 20 (Tex.Cr.App.) Where an indictment alleged that C. was robbed of $10, proof that he was robbed of $14 was not a variance.-Bracher v. State, 161 S. W. 124. $24 (Mo.) Evidence held to sustain a conviction for robbery.-State v. Sydnor, 161 S. W. 692. § 24 (Tex.Cr.App.) Evidence held to justify a conviction, notwithstanding defendant's evidence of alibi.-Bracher v. State, 161 S. W. 124. § 27 (Mo.) Robbery in the first degree includes all the elements of larceny, with the added acts of violence and putting in fear, so that, in the absence of proof of violence and putting in fear, accused is entitled to the submission of the offense of larceny.-State v. Weinhardt, 161 S. W. 1151. In a prosecution for robbery, defendant's evidence held to require a charge on the offense of petit larceny.-Id. § 28 (Tex.Cr.App.) A verdict finding accused guilty as charged, and assessing his punishment at the lowest term of imprisonment, is sufficient under an indictment charging robbery by exhibiting deadly weapons, which would have authorized the imposition of the death penalty.Dosh v. State, 161 S. W. 979. § 30 (Tex.Cr.App.) To authorize the jury to assess the death penalty for robbery, the indictment must allege that the robbery was committed by exhibiting firearms or deadly weapons. Dosh v. State, 161 S. W. 979. $53 (Ark.) Whether an order for goods obtained by a traveling salesman was accepted by for the jury.-Outcault Advertising Co. v. Young Hardware Co., 161 S. W. 142. II. CONSTRUCTION OF CONTRACT. $79 (Tex.Civ.App.) Where a defendant ordered one car of crates complete 64 f. o. b. Magnolia, the expression merely indicated that the price was to be 64 cents, including freight to Magnolia, and not that the goods were to be delivered at that place.-Burton & Beard v. Nacogdoches Crate & Lumber Co., 161 S. W. 25. § 82 (Tex.Civ.App.) Where goods are ordered delivered to a third person and charged to defendant, the purchase price cannot be collected until delivery.-Burton & Beard v. Nacogdoches Crate & Lumber Co., 161 S. W. 25. IV. PERFORMANCE OF CONTRACT. (C) Delivery and Acceptance of Goods. § 161 (Tex.Civ.App.) Where defendants ordered a car of crates to be shipped to third persons, the sellers, by delivering the shipment to the carrier in the time stipulated, comply with the contract and are entitled to recover the purchase price, even though the shipment is so delayed that the consignees refuse to receive it. -Burton & Beard v. Nacogdoches Crate & Lumber Co., 161 S. W. 25. § 176 (Ark.) Where defendant ordered a car load of cooperage by sample and, with knowledge of defects in quality, paid a part of the price and promised to pay the balance to secure an extension of time of payment, he waived right to object because of such defects.-Menasha Wooden Ware Co. v. Hudgins Produce Co., 161 S. W. 198. of lumber at a specified price per thousand feet, $177 (Tex.Civ.App.) Under contract for sale buyer could accept so much only as complied with the contract, and seller could demand that it do so, and that part of that tendered did not comply with the contract did not justify an entire refusal to accept.-Bland & Fisher Lumber Co. v. Scanlan, 161 S. W. 401. § 178 (Tex.Civ.App.) Use of small quantity of lumber by purchaser, who had refused to accept it, by mistake, held not necessarily an acceptance of the lumber.-Continental Lumber & Tie Co. v. Miller, 161 S. W. 927. § 181 (Ark.) Evidence held to show that an automobile had been delivered to plaintiff in pursuance of the contract of sale between the seller and a newspaper company offering it as a prize. Jones v. Burks, 161 S. W. 177. VI. WARRANTIES. § 279 (Mo.App.) There is no difference between a warranty that a jack is a "good breeder" and a warranty that he is a "great breeder," except possibly in degree; if there is any difference, a great breeder would be a more than ordinarily good breeder.-Perry v. Van Matre, 161 S. W. 643. § 284 (Mo.App.) Where an animal, warranted to be of sound and healthy condition, has within it, on the date of the sale, the seeds of disease, from which a condition of unfitness develops, there is a breach of the warranty.-Perry v. Van Matre, 161 S. W. 643. VII. REMEDIES OF SELLER. § 334 (Mo.App.) Defendants, to whom onion sets had been shipped, with draft attached to bill of lading, having requested a reduction of 10 per cent., held bound to ascertain from the breeder, and plaintiff secured an instruction predicated upon only one-half of such warranty, an instruction given for defendant, and covering the entire warranty, was not erroneous as conflicting with plaintiff's instruction.-Id. bank plaintiffs' action in that regard, and, hav- I double, that the animal was sound and a good ing failed to do so, plaintiffs' sale of the sets for defendants' account within a reasonable time after plaintiffs' refusal was valid.-Leesley Bros. v. A. Rebori Fruit Co., 161 S. W. 861. § 335 (Mo.App.) Where the court was justified in finding that onion sets, on being refused, were resold by the seller at a fair price, the buyer could not object that, because part of the sets were sold to plaintiff's agent, the sale was no criterion for determining defendant's liability. -Leesley Bros. v. A. Rebori Fruit Co., 161 S. W. 861. (E) Actions for Price or Value. $347 (Ark.) If the purchaser was induced by false and fraudulent statements by the seller to purchase a jack and execute his note therefor, and the purchaser was injured by such false representations in that the jack did not breed, the seller could not recover the price.Warden v. Middleton, 161 S. W. 151. § 359 (Ark.) Evidence in an action on a note for the price of a jack purchased from plaintiff held not to show that defendant's wife, who signed the note, was interested in the purchase of the animal.-Warden v. Middleton, 161 S. W. 151. (F) Actions for Damages. § 388 (Ark.) On an issue of false representations in the making of a contract of sale, the court properly charged that if plaintiff's agent obtained the contract by material false representations defendant would avoid the contract. -Outcault Advertising Co. v. Young Hardware Co., 161 S. W. 142. VIII. REMEDIES OF BUYER. (A) Recovery of Price. Where the warranty set up in the answer was double, an instruction which, though purporting to cover the case and directing a finding, covered only one-half of such warranty was erroneous.-Id. An instruction to find for defendant if plaintiff warranted the animal to be sound and a good breeder, and he was not such, was not erroneous for failure to fix any time at or within which the warranty must be found to be operaSATISFACTION. tive.-Id. $97 (Ky.) The board of education in cities of the first class has no authority to issue school 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 v. City of Louisville, 161 S. W. 564. as to it, offered to return it and rescind the contract, he could sue the seller for all damages sustained by such fraudulent misrepresentations.-Warden v. Middleton, 161 S. W. 151. (D) Actions and Counterclaims for Breach of Warranty. § 425 (Mo.App.) On a breach of warranty of sale, the buyer may keep the chattel and sue for the difference between the chattel as warranted and its actual value, or he may return the chattel and sue for the full amount paid on the price.-Excelsior Stove Mfg. Co. v. Million, 161 S. W. 298. $ 428 (Mo.App.) Where a buyer did not elect to rescind on acquiring knowledge of a breach of warranty, he became liable for the contract price, and could set up his damages for breach of warranty by way of counterclaim.-Excelsior Stove Mfg. Co. v. Million, 161 S. W. 298. $ 441 (Mo.App.) Evidence, in an action for the price of a jack, wherein the defense was breach of a warranty that the animal was sound and a good breeder, held to sustain a finding that the animal, on the date of sale, was diseased, and thereby rendered unfit for breeding purposes.-Perry v. Van Matre, 161 S. W. 643. § 446 (Mo.App.) Instructions on warranty, in an action for the price of a jack, held not erroneous, though they failed to assume evidentiary facts which were pleaded in the answer, and were in issue; the evidence thereon being in conflict.-Perry v. Van Matre, 161 S. W. 643. Where defendant testified that plaintiff represented the jack as a great breeder, it was not error to use the term "great breeder" in an instruction on the warranty, though the warranty as pleaded in the answer was that the jack was a "good breeder and a sure foal-getter."-Id. Where the warranty set up in the answer was An election to authorize a school bond issue by the city of Louisville under Act March 15, 1912 (Laws 1912, c. 90), was not invalid because 10 days' notice of the election required by an ordinance adopted to carry the act into effect was not given; the ordinance having been published nearly three months before the election was held.-Id. Where a statute authorizing an election for the issuance of school bonds did not provide for notice, and such notice as was provided by ordinance was not given, the size of the vote cast could be considered in determining whether the notice actually given was sufficient.-Id. § 103 (Tex.Civ.App.) Acts 31st Leg. c. 12, § 1 amending Acts 29th Leg. c. 124, § 58, relative to notice of election to vote on school taxes to supplement state school fund, held neither strictly nor substantially complied with by posting two notices within the district and one notice outside the district.-Cochran v. Kennon, 161 S. W. 67. Where one of the notices of an election to vote on a school district tax required by Acts 31st Leg. c. 12, § 1, amending Acts 29th Leg. c. 124, § 58, was posted outside the district, subsequent annexation of territory, including the place where it was posted, to such district, held not to render the notice sufficient.-Id. § 107 (Tex.Civ.App.) Under Acts 31st Leg. c. 12, § 1, amending Acts 29th Leg. c. 124, § 58, the validity of an election to vote on a school tax to supplement the state school fund may be attacked for failure to give the statutory notice in a suit to enjoin the collection of the tax.Cochran v. Kennon, 161 S. W. 67. In suit to enjoin collection of school tax for failure to give notice of election, as required by Acts 31st Leg. c. 12, § 1, amending Acts 29th Leg. c. 124, § 58, burden held on defendants to show that all or a substantial majority of the qualified voters had actual knowledge of the election.—Id. For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and section (§) NUMBER (G) Teachers. SENTENCE. § 135 (Ark.) Knowledge and conduct of school See Criminal Law, §§ 992, 1206. directors who had employed plaintiff to teach under an invalid contract held a ratification of the contract.-School Dist. No. 56 v. Jackson, 161 S. W. 153. (H) Pupils, and Conduct and Discipline of Schools. § 169 (Ky.) Except as to the parental right of control, the power of school authorities over pupils extends to all acts detrimental to the best interest of the school, whether committed in school hours or after the pupil's return home. -Gott v. Berea College, 161 S. W. 204. SEARCHES AND SEIZURES. SEPARATE ESTATE. See Husband and Wife, § 138. SEQUESTRATION. $20 (Tex.Civ.App.) In trespass to try title, where plaintiffs after sequestration obtained possession by filing a replevin bond held that on judgment for defendant they were liable for unlawfully cutting and removing timber belonging to the defendants.-Adams v. Burrell, 161 S. W. 51. SERVICE. SERVICES. § 2 (Ark.) Kirby's Dig. § 1742 (Rev. St. 1837, See Process, §§ 66, 142. c. 44, div. 6, art. 3, § 9), requiring a sheriff on notice of violations of the gaming law to give notice to a judicial officer, held not to violate Const. 1874, art. 2, § 15, providing that no search warrant shall issue except on probable cause supported by oath or affirmation.-State v. Williams, 161 S. W. 159. SECONDARY EVIDENCE. See Criminal Law, §§ 400, 403. SEDUCTION. II. CRIMINAL RESPONSIBILITY. § 44 (Mo.) Evidence that, during the period fixed by prosecutrix as the period during which accused kept company with her, he kept company with other girls was properly limited to the particular dates fixed by prosecutrix as the dates accused was in her company.-State v. Bruton, 161 S. W. 751. § 46 (Mo.) Where prosecutrix testified to an engagement in May, 1910, a letter written by accused to her in July following, wherein he asked her if she would marry, did not corroborate promise of marriage, as required by Rev. St. 1909, § 5235.-State v. Bruton, 161 S. W. 751. The evidence to be corroborative within Rev. St. 1909, § 5235, must be evidence of material circumstances corroborative of the testimony of the prosecuting witness as to the promise of marriage.-Id. § 46 (Tex.Cr.App.) There must be some fact, independent of the testimony of the prosecutrix, tending to connect accused with the offense, to justify a conviction.-James v. State, 161 S. W. 472. See Work and Labor. SET-OFF AND COUNTERCLAIM. See Action, § 25; Executors and Administra- I. NATURE AND GROUNDS OF $3 (Tex.Civ.App.) Rev. Civ. St. 1911, art. 1325, relating to counterclaims, was enacted to avoid a multiplicity of suits and should be liberally construed.-Reeves v. White, 161 S. W. 43. II. SUBJECT-MATTER. § 28 (Tex.Civ.App.) Under Rev. Civ. St. 1911, arts. 1325, 1329, prescribing the claims which may be set off, held that, in an action on a note by his former partner, the defendant might set off a debt due from the plaintiff.-Reeves v. White, 161 S. W. 43. 833 (Tex.Civ.App.) Where plaintiff was individually indebted to defendant upon a claim not founded upon a tort or breach of covenant, defendant might set off such debt against his individual debt to the plaintiff, founded on a note, and it was immaterial that defendant's demand arose out of former partnership transactions.-Reeves v. White, 161 S. W. 43. § 44 (Tex.Civ.App.) The rule that set-offs or counterclaims must be due in the same right and that a separate debt cannot be set off by a joint debt does not prevent the setting off of a separate individual debt from one of two partners to the other.-Reeves v. White, 161 S. W. 43. SETTLEMENT. Letters purporting to have been signed by accused did not corroborate the testimony of prosecutrix, where there was no testimony except hers to show that they came from accused.-Id. $50 (Tex.Cr.App.) An instruction as to cor- See Arbitration and Award; Payment; Release. roboration held erroneous, and that the court should have charged that the jury must find prosecutrix's testimony to be true, and also See Eminent Domain, § 2. that there was evidence, independent of her testimony, tending to connect accused with the crime. -James v. State, 161 S. W. 472. Court held to have erred in giving and refusing instructions because the jury were not pointedly told that letters claimed to have been written by accused could not be considered as corroborative evidence, unless there was evidence, other than hers, tending to show that he wrote them.-Id. SEIZURE. See Searches and Seizures. SELF-DEFENSE. See Homicide, §§ 188, 300; Mayhem, §§ 2, 6. SELF-SERVING DECLARATIONS. See Criminal Law, § 413. SEWERS. SHERIFFS AND CONSTABLES. III. POWERS, DUTIES, AND LIABILI- § 153 (Ark.) Under Kirby's Dig. § 1742 (Rev. St. 1837, c. 44, div. 6, art. 3, § 9), held, that in each case it was for the jury in a prosecu tion of the sheriff for nonfeasance to determine whether the sheriff had such knowledge or prob able cause to give notice.-State v. Williams, 161 S. W. 159. Although Kirby's Dig. § 1742 (Rev. St. 1837, c. 44, div. 6, art. 3, § 9) requiring the sheriff to give notice to certain judicial officers of violations of the gaming law, does not say how such notice shall be given, a proper practice requires it to be in writing.-Id SIDEWALKS. clear and convincing as to leave no reasonable doubt of its existence and terms.-Hersman v. See Municipal Corporations, §§ 663, 768, 772, Hersman, 161 S. W. 800. 794-816. SIGNALS. See Master and Servant, § 103. SIGNATURES. See Appeal and Error, § 361; Deeds, § 31; Municipal Corporations, §§ 292, 325. SLANDER. See Libel and Slander. SLAUGHTER HOUSES. See Municipal Corporations, §§ 591, 611. SNOW. See Municipal Corporations, § 772. SODOMY. Evidence, in a suit for specific performance of an oral contract to convey, held not to show that defendant promised to convey to plaintiff in consideration of services to be rendered by her to her and defendant's parents.-Id. STARE DECISIS. See Courts, §§ 89, 90. STATEMENT. See Appeal and Error, § 1133; Criminal Law, §§ 1090, 1097-1102; Witnesses, §§ 379-410. STATES. See Constitutional Law, § 129; Licenses, § 6; Municipal Corporations, §§ 64-73; Physicians and Surgeons, § 11; Public Lands, § 176. II. GOVERNMENT AND OFFICERS. 85 (Mo.) Rev. St. 1909, § 4726, punishing § 66 (Tex.Cr.App.) In a popular sense a every person committing the crime against na- "state officer" is one whose jurisdiction is coture with the sexual organs or with the mouth extensive with the state, while in a more enenlarges the common-law offense, and the acts larged sense a "state officer" is one who reby which the crime is committed must be desig- ceives his authority under the laws of the state. nated at least in a general way.-State v. Well--Ex parte Preston, 161 S. W. 115. man, 161 S. W. 795. DEBT, AND SECURITIES. An information alleging that accused com- IV. FISCAL MANAGEMENT, PUBLIC mitted the crime against nature by having sexual intercourse with prosecutrix with his mouth does not charge the crime as defined by Rev. St. 1909, § 4726, notwithstanding the statute of jeofails (section 5115).-Id. SPECIAL LAWS. See Statutes, § 79. SPECIFICATION OF ERRORS. See Appeal and Error, §§ 724, 732. SPECIFIC PERFORMANCE. II. CONTRACTS ENFORCEABLE. $42 (Mo.) Acts claimed to have been done in part performance of an oral contract to convey must be referable only to the contract, and not explainable on any other theory than that they were done in part performance of the contract. -Hersman v. Hersman, 161 S. W. 800. $51 (Mo.) To authorize a decree of specific performance of an oral contract to convey, where there has been part performance, the consideration of the contract must have been fair.-Hersman v. Hersman, 161 S. W. 800. $80 (Mo.) A contract between distributees to meet and divide the property, and, if they failed to agree, to select arbitrators to appraise each acre held not a proper subject for specific performance.-Ferrell v. Ferrell, 161 S. W. 719. An agreement to name arbitrators cannot be specifically enforced.-Id. IV. PROCEEDINGS AND RELIEF. 8114 (Tex.Civ.App.) A petition held to allege such performance on the part of the vendor as entitles him to specific performance, even if the contract was not in writing.-Fahey v. Benedetti, 161 S. W. 896. $121 (Mo.) In an action for the specific performance of an alleged oral contract, evidence held to sustain a finding of the making of the contract and of performance of the consideration. Merrill v. Thompson, 161 S. W. 674. § 121 (Mo.) To authorize a decree compelling specific performance of an oral contract to convey, upon proof of part performance, the contract to convey must be shown by evidence so whom is imposed the duty of disbursing the § 137 (Tenn.) The officers of the state upon public funds can question the validity of an appropriation made by the Legislature.-State v. Woollen, 161 S. W. 1006. STATUTES. For statutes relating to particular subjects, see the various specific topics. I. ENACTMENT, REQUISITES, AND VALIDITY IN GENERAL. $5 (Tenn.) Under Const. art. 3, § 9, authorizing an extraordinary session by proclamation for stated purposes, the Governor could qualify the general subject "appropriations" by "necessary to maintain the state's institutions."State v. Woollen, 161 S. W. 1006. An appropriation of $25,000 to the National Conservation Exposition Company, made by the Legislature in extraordinary session called to not embraced within the call of the Governor, make appropriations for state institutions, held and void under Const. art. 3, § 9, prohibiting an extraordinary session from entering on any business except that embraced within the call.-Id. II. GENERAL AND SPECIAL OR LOCAL LAWS. residents from registration of motor vehicles, 879 (Ky.) Act 1910, c. 81, § 7, exempting nonpayment of the license tax, etc., where they have already complied with similar laws of their own state, does not discriminate against the citizens of the state within state Const. § 60.-City of Newport v. Merkel Bros. Co., 161 S. W. 549. IV. AMENDMENT, REVISION, AND CODIFICATION. § 141 (Ky.) Under Const. § 51, forbidding the amendment of an act without re-enactment and publication at length, and Act March 16, 1906 (Laws 1906, c. 29), entitled an act to amend St. 1903, § 4425, relating to the examinations and certificates of teachers, held, that the amendatory act was not an addition thereto, not having republished any of the former section, but was a substitute for it, so that the former section was no longer in force.-Flynn v. Barnes, 161 S. W. 523. For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and section (8) NUMBER V. REPEAL, SUSPENSION, EXPIRA- | therewith, such construction will be followed.— § 159 (Ky.) A statute will not be construed VI. CONSTRUCTION AND OPERA TION. (A) General Rules of Construction. §§ 174, 175 (Mo.) All laws must receive a rational and not an arbitrary construction.-State ex rel. Spriggs v. Robinson, 161 S. W. 1169. § 188 (Mo.) Even in construing statutes, the plural is generally included in the singular number, and the masculine gender is construed to include the feminine.-Garrett v. Wiltse, 161 S. W. 694. § 194 (Mo.) Where a law designates several matters to be governed by its provisions, and by general language includes other acts not specifically named, it must be construed to apply only to things of the same general nature as those set out.-State ex rel. Spriggs v. Robinson, 161 S. W. 1169. § 220 (Ky.) Where the Legislature has long acquiesced in the construction of a statute, and has framed its legislative policy in accordance § 230 (Mo.) In the interpretation of amended statutes, the state of the old law, the mischiefs arising thereunder, and the remedies provided therefor in the new law, are to be considered.Armor v. Lewis, 161 S. W. 251. (B) Particular Classes of Statutes. § 241 (Mo.) Where the penalty is onerous, no one can be held to have violated the provisions of a penal statute unless his acts come within both the letter and the spirit of the law.-State ex rel. Spriggs v. Robinson, 161 S. W. 1169. (C) Time of Taking Effect. § 253 (Ark.) Acts 1911, p. 275, relative to liability of railroad companies for failure to keep a lookout, though approved May 26, 1911, held not in force until 90 days after adjournment of the legislature, June 2, 1911. and not applicable to an accident on May 29, 1911.St. Louis, I. M. & S. R. Co. v. Roddy, 161 S. W. 156. |