as an incident to his riparian lands, may now be sold and conveyed, and be enjoyed by the purchaser. It is for the interest of the riparian owner that he be allowed to dispose of or use his private property at his own discretion. It is for the interest of the public that such property be subject to purchase and use, where the owner may be incapable of improving it. No one is interested in opposing such unrestricted alienability and use. Although we have become convinced that the better reason is opposed to our former decision upon this point in Land Co. v. Emerson, 38 Minu. 406, we should have deemed it better that a rule of property, although so recently declared, should not be disturbed, were it not that it is supposed that the result of that decision, if adhered to would be very seriously prejudicial to the tenor of a large amount of very valuable property, which for a long time has been deemed and treated as alienable and enjoyable apart from the riparian lands, and which, according to our present opinion, was rightfully so treated prior to our decision in the Emerson Case. The case before us shows that in front of the riparian land described in the complaint the reclaimable submerged land extends into the bay of St. Louis about eight hundred and fifty feet to a dock line legally established under the authority of the State (subsequent however to the condemnation by the railroad company), and this condition of things is understood to be very general along the shores of the navigable waters about Duluth. Such lands have been platted and sold to various persons, and have been to a considerable extent improved, and so far as the State is concerned, have practically become private property. No one but the owners of the original riparian estate can question the rights of the purchasers; and in the case of Miller v. Mendenhall, 44 N. W. Rep. 1141, which was submitted, and is decided, in connection with this case, we hold, that notwithstanding the decision in the Emerson Case, a grantor may be estopped by his covenants from disputing the title of his grantee in respect to such lands. We think that we ought to go further, and hold that the riparian right to improve, reclaim and occupy such premises is transferable.

[Omitting unimportant matter.]

NEW YORK COURT OF APPEALS AB-
STRACTS.

CONTRACT--RESCISSION - DIVISIBLE.- An owner of land agreed to sell the same, with the apartment houses then in course of erection thereon, for a specified sum to be paid and secured at the times and in manner meutioned, the last payment to be made on the 1st of May next, if the houses were then completed, or at such time as they should be finished, and in the mean time the conveyance was to be executed and delivered, and the several other payments made and secured. Held, that the covenants to give and accept the conveyance, and pay and secure the portion of the purchase-money, were independent of the undertaking to complete the buildings and pay the additional amount of the price at a later day, and that a failure to put fire-escapes on the buildings was a mere partial failure of consideration, which did not justify a court of equity in annulling the contract so far as executed, or in cancelling the conveyance and mortgages, the remedy of the purchaser being the liability of the vendor in damages for his failure to perform his undertaking to complete the buildings. Second Division, April 15, 1890. De Kay v. Bliss. Opinion by Bradley, J. Affirming 42 Hun,

659.

CONVERSION-UNAUTHORIZED SALE OF STOCK-EVIDENCE.-Plaintiff purchased, by an order to defendant's agent, one hundred shares of Union Pacific rail

way stock, on margins. A few days later, by the unau thorized order of the agent, it was sold at a profit, and thereafter various dealings in Union Pacific stock were made in good faith, by defendants, upon such unauthorized orders. Several months after the original purchase, plaintiff ordered his stock sold, which was done at a loss. But learning of the unauthorized transaction, he sought to adopt the first sale, and sued as for a balance due under it. Defendants offered to prove that at all times they had held enough Union Pacific stock above all claims of other customers to meet a demand by plaintiff for one hundred shares. Held, that since all shares of such stock were of equal value, if defendants could meet plaintiff's demand, as alleged, there was no conversion of his shares, and the evidence was erroneously excluded. One share of stock is not different in kind or value from every other share of the same issue and company. They are unlike distinct articles of personal property which differ in kind and value, such as a horse, wagon or harness. The stock has no ear-mark which distinguishes one share from another so as to give it any additional value or importance. Like grain of a uniform quality, one bushel is of the same kind and value as another. This doctrine appears to be well sustained by authority. In the case of Horton v. Morgan, 19 N. Y. 170, it was held that where the broker is to advance a portion of the purchase-money upon the security of the stock purchased, he may properly take title in his own name, and in such case he is not bound to keep it separate from other stock of the same kind owned by him, but fulfills his duty if he keeps in his possession, ready for delivery to his principal on demand, an amount of stock equal to that purchased by him. In the case of Stewart v. Drake, 46 N. Y. 449-453, Allen, J., in delivering the opinion of the court, says that the duty of the brokers was fully performed "if they had at all times stock on hand to meet the demand of the plaintiff when called upon, or when required by the exigencies of the dealings between the parties. The stock purchased for the plaintiff had no ear-mark, and one share being of equal value with every other share of the same stock, the defendants were not bound to deliver, or to have on hand for delivery, any particular shares, or the identical shares purchased for the plaintiff." See also Taussig v. Hart, 58 N. Y. 425; Levy v. Loeb, 85 id. 365; Nourse v. Prime, 4 Johns. Ch. 490; 7 id. 69. Second Division, April 15, 1890. Caswell v. Putnam. Opinion by Haight, J. Reversing 41 Hun, 521.

EMINENT DOMAIN-ELEVATED RAILROAD-DAMAGES. (1) In view of the fact that the decision in the Story Case, 90 N. Y. 122, that an abutting owner is entitled to damages caused by an elevated railroad in the street, is not broad enough to necessarily cover the case of an abutting owner whose only property in the street is an easement of light, air and access, the failure of an elevated railroad company to institute condemnation proceedings along its whole line, within two years after that decision, is not of itself such a wanton and oppressive act as to entitle an abutting owner to punitive damages. The right of such owners to maintain actions for damages was not finally set at rest until the decision in Lahr v. Railway Co., 104 N. Y. 268. (2) In an action by an abutting owner for damages arising from the construction of the road, an instruction that the jury may award punitive damages cannot be regarded harmless error when the verdict, although within the estimate given by some of the witnesses, is largely in excess of the estimate of others. Second Division, April 15, 1890. Powers v. Manhattan Ry. Co. Opmion by Brown, J.

JUDGMENT-CANCELLATION-DISCHARGE IN INSOL VENCY — NOTICE.- An order cancelling a judgment under Code of Civil Procedure of New York, section 2182, because of the debtor's discharge in insolvency

SALE-CONSTRUCTION OF CONTRACT.-A contract for the sale of goods which calls "for shipment within thirty days by steam or sail" does not require a clearance of the vessel within the period allowed for ship-id. 153; Pope v. Mead, 99 id. 201: Bostwick v. Beach, ment, when the goods sold do not constitute a full cargo, and is complied with if, within the specified time, the goods are put on board a vessel bound for the intended port, and which the sellers have good

reason to believe will sail within a reasonable time after shipment. Distinguishing Tobias v. Lissberger, April 15, 1890. Ledon v. Havemeyer. Opinion by Ruger, C. J. Reversing 47 Hun, 616.

valid execution of the power, though no such power be referred to therein. Feb. 25, 1890. Mutual Life Ins. Co. v. Shipman. Opinion by Ruger, C. J. Reversing 3 N. Y. Supp. 684.

ABSTRACTS OF VARIOUS RECENT
DECISIONS.

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ciple, like the one before us. The action was by a washerwoman in the employ of the tenant, against the landlord, and the court held that where there is no fraud, faise representations or deceit; and in the absence of an express warranty or covenant to repair, there is no implied covenant in favor of the tenant; and as the plaintiff stood in his place, there was no liability on the part of the landlord to her. The authorities are abundant sustaining the doctrine that the owner cannot create a nuisance on his premises, and relieve himself of liability to a third person injured thereby, by leasing. It is also the law that he would be liable to a stranger where the defective structure causing the injury is on the premises when they are leased; but such liability would not exist in favor of the tenant, where there is no contract by the landlord to repair and no fraud, because he does not owe the tenant the duty of repairing, as he does the public and strangers. The cases cited by plaintiff, holding the landlord liable, are cases where the injury was to third persons lawfully upon the rented premises, or where the landlord owed a duty to the public to repair. Albert v. State, 7 Atl. Rep. 697; Rankin v. Ingwersen, 10 id. 545; Joyce v. Martin, id. 620; Dalay v. Rice, 12 N. E. Rep. 841. The promise to repair was merely gratuitous, not made at the time of the lease, and was no

GUARANTY-CONTINUING.-Plaintiff wrote defendant stating that it had recently "opened trade" with F. & Co., "who claim to be backed by you. Will you kindly tell us if this is so- - if we can consider you as having responsibility for the debts, or intending to see that they are paid?" and received a reply from defendant stating that he was assisting F. & Co. "in a small way financially, and in a measure directing their efforts. And I have advised them to pay their bills promptly at maturity, and if they find they are unable to do so at any time,' to let me know. If they fail to, please let me know, and I will see that you are taken care of." Plaintiff replied: "We are much obliged for the assurance given regarding F. & Co., and on the strength of it will be glad to continue the trade." Held, that the correspondence showed a continuing guaranty by defendant that F. & Co. would pay at maturity any debts they might incur with plain-part of the original contract. It was without considtiff, and an acceptance thereof by plaintiff. Mass. Sup.eration and could not be enforced. There is a case Jud. Ct., April 2, 1890. Dover Stamping Co. v. Noyes. similar to this, where the suit was brought by the tenOpinion by Knowlton, J.

LANDLORD AND TENANT-DANGEROUS PREMISES-A landlord, who does not covenant to repair, is not liable to a servant of the lessee injured by the falling of a cistern caused by decayed and insufficient supports, though he knew of the defect, and had promised to repair, as such promise was without consideration. The landlord is liable only when he had contracted or is under obligation to keep the tenement in repair or has been guilty of fraud or deceit which would release the tenant from his implied obligation to repair. "It is a general rule," says Mr. Thompson in his work on Negligence (vol. 1, p. 323, § 3), that in the absence of fraud or deceit, there is no implied covenant that the demised premises are fit for occupation, or for the particular use which the tenant intends to make of them

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** Therefore the tenant has no remedy against the landlord for suffering the premises to get out of repair, * * * and this rule extends to servants and others entering under the tenant's title." In Jaffe v. Harteau, 56 N. Y. 401, the court states the doctrine as announced in the foregoing quotation, and say: "The question must be regarded as settled by authority." The action in that case was against the landlord for an injury of the wife of the sublessee, and referring to the case of Godley v. Hagerty, 20 Penn. St. 387, which held a contrary doctrine, say that in that case, some importance was attached to the fact that the building was erected by the defendant. This may have been regarded as proper in that case, as tending to show him guilty of fraud;" and the court proceeds to show that cases where one erects a nuisance on his premises, and afterward parts with the possession, have no application to the case under consideration; and then concludes, that "there is no reason for holding the lessor, in the absence of any agreement or fraud, liable to the tenant for the present or future condition of the premises, that would not be equally applicable to a similar liability sought to be imposed by a grantee in fee upon his grantor." The following cases, besides those cited in the foregoing case, assert the same doctrine, that there must be an express covenant or agreement by the lessor to keep in repair, in order to make him liable to the tenant. Scott v. Simons, 54 N. H. 431; Brewster v. De Fremery, 33 ('al. 341; O'Brien v. Capwell, 59 Barb. 497. The last case cited is, in prin

ant. He had requested the landlord to repair a privy attached to the tenement, and the landlord agreed to do so. He, with some common laborers, attempted to make the repairs. Reported to the tenant's wife that the privy was safe. She went into it the same evening, when the floor fell through, and she was precipitated into the vault and injured. The court, discussing the case, say: "In the ordinary contract between landlord and tenant, there is no implied warranty on the part of the former that the demised premises are in tenantable condition. He is under no obligation to make repairs, unless such a stipulation makes a part of the original contract; and any promise to do so, founded merely on the relation of the parties, and not one of the conditions of the lease, would be without consideration, and for that reason would create no liability. But although a gratuitous executory contract of that kind would not be binding upon him, he would place himself in a very different position if he should see fit to treat it as binding, and actually enter upon its fulfillment. He is at liberty to repudiate it, or to perform it at his option; but if his choice should be to perform it, he comes under some degree of liability as to the manner of its performance." Gill v. Middleton, 105 Mass. 478, 479, and authorities cited. We have quoted freely from this case, because it is the law of the point under consideration in the case before us, and is decisive of it. The reasoning is sound and well presented, and saves us the trouble of further discussion. Tex. Sup. Ct., Feb. 4, 1890. Perez v. Raybaud. Opinion by Collard, J.

SALE-IMPLIED WARRANTY-EVIDENCE-A written contract of sale of varnish, etc., provided: "These goods to be exactly the same quality as we make for" certain third persons, “and as per sample barrels delivered;" and continued: "Tupentine copal varnish at sixty-five cents per gallon; turpentine japan dryer at fifty-five cents per gallon." Held, that the latter terms were but stipulations as to price, and imported no warranty that the goods delivered should be articles known to the trade by those names, and of a certain standard of quality. There is good authority for the proposition that if the contract of sale is in writing, and contains no warranty, parol evidence is not admissible to add a warranty. Van Ostrand v. Reed, 1 Wend. 424; Lamb v. Crafts, 12 Metc. 353; Dean v. Ma

son,

Trusty, No. 49," that being the appellation of a convict. The trial is for murder of a gambler by a man who was cheated by him at cards:

Entering the court-room on a warm morning-such a morning as that which saw the conclusion of the case of the State of Arkansas v. Muckwrath - the first impression is of cool dampness. The room is long and scantily lighted, unplastered and unpainted. The authorities have removed, as unseemly, the rosy damsels who lent their charming presence to praises of starch and baking powder, but the public is still informed by three-foot letters on the joists that "Oliver Chilled Plows are the best; " and still can read a small placard spared by the hand of reform-perhaps for its wholesome moral-affirming that if you pay as you go then you won't owe. Decorations of a more legal cast are not lacking; from estray notices, advertisements of sheriff's sales and delinquent tax lists, to embossments of tobacco quids and gum. The lawyers sit around a rude pine table, the judge presides in a pine arm chair, and there are chairs without arms for the officers of the court; the rest of the world must content itself with benches. There is a fiction of inclosing the prisoner according to the venerable usage, an uncertain structure of fence palings guarding his chair and giv

itself and his heels swing up to the top.

4 Conn. 432; Reed v. Wood, 9 Vt. 285; 1 Pars. Cont. (6th ed.) 589. If it be true that the failure of a vendee to exact a warranty when he takes a written contract precludes him from showing a warranty by parol, a multo fortiori when his written contract contains a warranty on the identical question, and one in its terms inconsistent with the one claimed. In the case of The Reeside, 2 Sum. 567, Mr. Justice Story said: "I apprehend that it never can be proper to resort to any usage or custom to control or vary the positive stipulations in a written contract, and a fortiori not in order to contradict them. An express contract of the parties is always admissible to supersede or vary or control a usage or custom, for the latter may always be waived at the will of the parties. But a written and express contract cannot be controlled or varied or coutradicted by a usage or custom; for that would not only be to admit parol evidence to control, vary or contradict written contracts, but it would be to allow mere presumptions and implications, properly arising in the absence of any positive expressions of intention, to control, vary or contradict the most formal and deliberate written declarations of the parties." The principle is that while parol evidence is sometimes admissible to explain such terms in the contract as are doubtful, it is not admissible to contradict what is plain or to add new terms. Thus, where a certain writ-ing him infinite trouble if the habit of a lifetime assert ten contract was for "prime singed bacon," evidence offered to prove that by the usage of the trade a certain latitude of deterioration, called "average taint," was allowed to subsist before the bacon ceased to answer that description, was held to be inadmissible. 1 Greenl. Ev., § 292, note 3; Yates v. Pym, 6 Taunt. 446; Barnard v. Kellogg, 10 Wall. 383; Bliven v. Screw Co., 23 How. 420; Oelricks v. Ford, id. 49. There are numerous well-considered cases that an express warranty of quality excludes any implied warranty that the articles sold were merchantable, or fit for their intended use. Pavement Co. v. Smith, 17 Mo. App. 264; Johnson v. Latimer, 71 Ga. 470; Cosgrove v. Bennett, 32 Minn. 371; Shepherd v. Gilroy, 46 Iowa, 193; McGraw v. Fletcher, 35 Mich. 104. Nor is there any conflict between these authorities and others like them on the one hand, and those on the other, which hold that goods sold by a manufacturer, in the absence of an express contract, are impliedly warranted as merchantable or as suited to the known purpose of the buyer. Dushane v. Benedict, 120 U. S. 630, 636, and cases there cited. It is the existence of the express warranty, or its absence, which determines the question. In the case at bar there was such an express warranty of quality in terms. Not only that, but there was a sample delivered and accepted as such. The law is well settled that, under such circumstances, implied warranties do not exist. Mumford v. McPherson, 1 Johns. 414; Sands v. Taylor, 5 id. 395; Beck v. Sheldon, 48 N. Y. 365; Parkinson v. Lee, 2 East, 314. In Jones v. Just, L. R., 3 Q. B. 197, quoted by Mr. Benjamin in his work on Sales, section 657, Mellor, J., delivering the opinion of the court, laid down, among others, the following rule: Where a known, described and defined article is ordered of a manufacturer, although it is stated to be required by the purchaser for a particular purpose, still, if the known, described and defined thing be actually supplied, there is no warranty that it shall answer the particular purpose intended by the buyer." Chanter v. Hopkins, 4 Mees. & W. 399; Ollivant v. Bayley, 5 Q. B. 288. U. S. Sup. Ct., March 17, 1890. De Witt v. Berry. Opinion by Lamar, J.

This morning the room was crowded, for it was known that Phillipson was to conclude his argument, and he had a reputation as an orator, to which, rather than to the intrinsic attraction of the case, was due a sprinkling of the gentry of the region among the shirtsleeves and sun bonnets. Immediately after the court was opened Phillipson rose. He had a fascinating voice -sonorous, musical, flexible. Convinced of the pris oner's guilt, he spoke with magnetic fervor. The jury were palpably impressed, while the prisoner's pale wife grew paler and the prisoner nervously chewed gum. He was a tall mau and well built, although this was concealed by his ungainly posture, crouched over the fence railing, his feet squeezed between the palings, his elbows on his knees. His long, curling auburn hair fell over his collar. His eyes were bright violet intint and of a very gentle expression. His face was one common in Arkansas among the renters, where the loosely hung mouth will often seem to contradict fine brows and straight noses and shapely heads. One could see that he was wearing his poor best in clothes, namely, a new ill-fitting brown coat, blue trousers, rubber bobts, and a white shirt with a brass stud, but

no necktie.

When the lawyer pictured in glowing metaphors and more glowing statistics the incomparable natural gifts of Arkansas, her genial climate, her wonderful forests, her rich mines and richer soil, her mountains and rivers and healing springs, the prisoner listened with an air of relief and interest. When Phillipson, on tiptoe, swung his fist and shouted that the Black River country was "the best poor man's country in the world," he nodded cordially "That's so!" to the deputy at his side, adding, "Looks like he ar' lettin' up on me an' talkin' 'beout the croaps." But in a second his expansive manner collapsed; his jaw fell, and he leaned over the palings, his lean fingers gripping them hard. Phillipson was demanding why a State so beautiful, so fertile, so attractive to every class of emigrants, is neglected.

"Why is it, gentlemen?" cried the lawyer, waving his white hands at the jury. "I will tell you. It is because the old taint of blood and crime clings to our garments still. Years ago Arkansas in very truth was a 'dark and bloody ground.' Murder stalked unpun ished through our smiling cotton-fields and noble

forests. that, is past. Today

knows, gentlemen, that there is not in all this broad