I. ^i ' Kf dJorn^U Slaui i>rl|flnl ICibrary CORNELL UNIVERSITY LIBRARY 924 062 470 178 Cornell University Library The original of tliis book is in tlie Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924062470178 FORMS OF INSTRUCTIONS TO JURIES IN CIVIL AND CRIMINAL CASES INCLUDING APPROVED PRECEDENTS BY DE WITT C. BLASHFIELD Author of "A Treatise on InstructTons to Juries" to Which This is a SuppIjEmentaij Volume. ST. PAUL, MINN. KEHFE-DAVIDSON CO. 1903. if^wr CopyriRlit. liHlS, KEEFE-DAVIIISOX CO. WEBB I'UBI.ISHINO CO. I'llKSS, ST. PAUL. PREFACE. This book is a companion volume to the author's former treatise, and is issued to meet a very general request for ad- ditional forms. The treatment is by topics alphabetically arranged for easy reference. The aim has been to give the greatest number of useful forms, rather than to make each particular topic exhaustive. Approved forms have been given preference. Those which have not been directly passed ■ upon are sup- ported by ei'ations, except in a few instances where it is be- lieved thct to cite but one or two authorities, when many might be given, would be misleading and serve no good pur- pose. D. C. T3. FORMS OF INSTRUCTIONS. CHAPTER I. ABDUCTION.! Manner of taking, 1, 2. Ignorance of female's age no defense, 3. Female In temporary custody of collateral relative, 4. Accomplishment of purpose not necessary, 5. Chastity of female presumed, 6. Purpose of concubinage — What constitutes, 7. Purpose of prostitution — What constitutes, 8. Negligence of parents a defense, 9. Manner of taking. (1) The court instructs the jury that to constitute abduc- tion the female must have been taken or enticed away by de- fendant and if she went of her own free will without entice- ment or persuasion by him he is not guilty, but neither force nor fraud need have been used. If the female was induced to go by solicitation and enticement it is sufficient.^ (2) The jury are instructed that if defendant induced the woman to leave her home and go with him by presents and solicitation and being moved by such inducements she did go he is guilty of "taking" her away.^ Ignorance of female's age no defense. (3) The jury are instructed that under the statute the female abducted must at the time have been less than 1 See Criminal Law for forms of instructions applicable to crimes generally. estate v. Jamison, 38 Minn. 21; People v. Plath, 100 N. Y. 590; Sencker v. People, 88 N. Y. 192; Slocum v. Same, 90 111. 274. s State V. Johnson, 115 Mo. 480. (1) Forms Inst. — 1. 4] ABDUCTION. [Ch. 1 years of age, but if the jury find that she was in fact under such age, the fact that defendant had good reason to believe and did believe that she was over such age is no defense.* Female in temporary custody of collateral relative. (4) The jury are instructed that if the female was living in the family of her uncle as a member of his family and had no parent or guardian in the state and was wholly un- der the protection and care of said uncle, then she was un- der the control of said uncle within the statute provided she was under fifteen years of age and there by the consent of her parents, which consent may be proved by the relation- ship of the family and the length of time she had been there in the absence of other testimony." Accomplishment of purpose not necessary. (5) The court instructs that if the jury believe from the evidence that the defendant took or enticed the female from the control of her parents (or from the person having law- ful charge of her) for the purpose of prostitution (or what- ever the statutory purpose may be) the offense was thereby completed and it was not needful that illicit sexual inter- course be had with her." Chastity of female presumed. (6) The jury are instructed that though it is essential to the offense that the female be of previous chaste charac- ter, her chastity is presumed, and need not be proved by the state, but the burden is on defendant to impeach it.^ Purpose of concubinage — ^What constitutes. (7) The jury are instructed that the taking must have been for the purpose of concubinage and a taking for the < State v. Johnson, 115 Mo. 480. 5 State V. Ruhl, 8 Iowa, 447; and see State v. Round, 82 Mo. 679. «Berger v. People, 86 N. Y. 369; Henderson v. People, 124 III 614. T Bradshaw r. People, 153 111. 156. (2) Ch. 1] ABDUCTION. [9 purpose of a single act of sexual intercourse is not sufficient. But no particular continuance of illicit intercourse is neces- sary to constitute concubinage. That relation is formed ■when a woman consents to unlawfully cohabit with a man generally as though the marriage relation existed between them.* Purpose of prostitution — ^What constitutes. (8) The jury are instructed that prostitution means com- mon indiscriminate sexual intercourse with men, and if de- fendant took the female from her home for the sole purpose of having sexual intercourse with her himself, he is not guilty.* Negfligence of parents a defense. (9) If the jury believe from the evidence that the parents ■of the female alleged to have been abducted encouraged her by their conduct in a lax course of life, permitted her to be out alone at night and to attend places of questionable re- pute, the enticement of the girl away from them for the pur- pose named in the statute cannot be said to be against their will though they never actually knew of or consented to it, and defendant must be acquitted.-^" 8 Henderson v. People, 124 III. 607. oCom. V. Cook, 53 Mass. 93. See State v. Stoyell, 5i Me. 24; State V. Osborn, 52 Ind. 526. 10 Approved In Reg. v. Primalt, 1 F. & F. 50. See, also, State v. Stone, 106 Mo. 1. This Instruction Is probably applicable only where the statute states that the taking must be "against the will" of the parent oi ;guardian. (3) 10] ABORTION. [Cb 2 CHAPTEK II. ABORTION.* Elements of homicide by abortion, 10. Intent to produce miscarriage an essential, 11. Threat of suicide by woman no defense, 12. Advice of physician a defense, 13. What constitutes aiding and abetting, 14. Elements of homicide by abortion. (10) The court instructs the jury that in order to the conviction of the prisoner, it must appear, beyond a reason- able doubt: First. That the deceased, next before her death, was preg- nant with child. Second. That the deceased, being so pregnant with child, the prisoner, with intent to procure a miscarriage of the de- ceased used, or caused to be used, upon the person of the de- ceased, some instrument, or administered, or caused to be administered, to the deceased some noxious drug or substance, or both used such instrument and administered such drug or substance. Third. That, by reason of the use of such instruments, or the administration of such noxious drug or substance, or by reason of both, the deceased came to her death. It is not necessary that the prosecution should show the particular kind of drug or substance administered, nor that it was cal- culated to produce the miscarriage, nor what particular kind of instrument was used. Neither is it necessary that it should appear by the evidence that the prisoner, with her own hands, used any instrument upon the person of deceased, or that, with her own hands, prisoner administered to the de- ceased any drug or substance. If prisoner furnished any in- strument to deceased or any other person with intent that deceased or any other person should use such instrument for the purpose of procuring the miscarriage of deceased, she be- ing then pregnant, or if prisoner provided any noxious dru<' * See Criminal Law for forms of instructions applicable to crlmer generally. Ch. 2] ABORTION. [13 or substance with intent that deceased, being then pregnant, should administer ilie drug or substance to herself, or that any- other person should administer it to her in order to produce the miscarriage of the deceased, prisoner thereby constituted the deceased, or the person to whom such instrument or drug was delivered or provided, her agent, and is accountable for all the acts of such person done in pursuance of the agency. And if such person, whether the deceased herself or any oth- er, used such instrument upon the person of deceased, or ad- ministered such drug to deceased with the intent to produce the miscarriage of deceased, and by reason of such treatment the deceased came to her death, the prisoner is guilty as charged in the indictment, even though she was not present at the time of the use of the instrument or administration of the drug.^ Intent to produce miscarriage an essential. (11) The jury are instructed that an intent to produce a miscarriage is essential, and therefore, if the jury believe from the evidence that defendant unlawfully assaulted and beat a pregnant woman and thereby caused a miscarriage he is not guilty if he did not intend to produce that result.^ Threat of suicide by woman no defense. (12) The jury are instructed that the danger to the life of the mother which will justify the production of a miscar- riage must be a danger arising from natural causes, and the fact that she has threatened to commit suicide unless the mis- carriage is produced is no defense though defendant believed in good faith that she would carry out such threat.* Advice of physician a defense. (13) The jury are instructed that if they believe from the 1 Approved In Solander v. People, 2 Colo. 48. By elimination of the words in paragraph three as to death i-e- sulting from the operation, the Instruction is appllcal>le to a prosecu- tion for abortion. 2 Slattery v. People, 76 111. 217. s Hatchard v. State, 79 Wis. 357. (5) 14] ABORTION. [Ch. 3 evidence that a physician advised that the production of a miscarriage was necessary to save the life of the woman, and that defendant acted in good faith on such advice he must be acquitted though the physician was in fact mistaken as to the necessity.* What constitutes aiding and abetting. (14) The jury are instructed that though they believe that an abortion was actually performed on and that de- fendant knowing of her intention to have the same performed accompanied her to the ofSce of who performed the same, remaining in an adjoining room, such acts do not con- stitute a participation in the offense, and if defendant did not in any other manner aid abet or encourage the operation he is not guilty." CHAPTEE III. ABUTTING OWNERS. Right to have street maintained free from obstruction, 16. Liability for injuries to passers-by, 16, 17. Right to have street maintained free from obstruction. (15) The court instructs the jury that if the defendants were guilty of maintaining a nuisance by obstructing the public highway as claimed, and the jury further find that the effect thereof was to prevent the free ingress and egress to plaintiff's place of business, and that this caused to the plain- tiff a loss of trade and custom in his business as a merchant then the defendants would be liable.^ « State V. Fltzporter, 93 Mo. 390. In some states the concurring opinion of two physicians Is re- quired by statute. See State v. Hatchard, 79 Wis. 367. 5 People V. McGonegal, 136 N. Y. 62. 1 Approved In Park v. Chicago & S. W. R. Co., 48 Iowa 636 (6) C . jj , ABUTTING OWNERS. [17 Liability lor injuries to passers-by. (16) The court instructs the jury that the plaintiff in this case is suing for injuries received while passing the premises of the defendant by falling into a coal-hole which had been ex- cavated under the side-walk in front of the premises of de- fendant. 'Now the court instructs the jury that the defend- ant is only held to the exercise of ordinary care and diligence with regard to such coal-hole, and in considering the qiiestion as to whether defendant has exercised ordinary care you will consider such circumstances as the location of the coal-hole; that the coal-hole was in a highway; the amount of travel upon the highway; what was the original construction of the coal-hole; whether there was a sound cover over it; whether defendant had any reason to believe that the coal- hole was out of order ; whether any complaint was ever made to him or to his agents. You will also consider how many persons were in the habit of using the coal-hole, and whether the number of persons using the hole would increase or de- crease the care required from the defendant, and after con- sidering all the circumstances as shown by the evidence you will determine whether the cover of the coal-hole was in a dangerous condition by reason of such a lack of care as should have been exercised by the defendant with reference to it.^ (17) The court instructs the jury that the defendant is only held to the exercise of ordinary care and diligence with reference to the coal-hole in front of the defendant's prem- ises, into which the plaintiff alleges he fell, and by reason of the fall sustained the injuries here sued for. The defendant had a right to use that part of his premises under the side- walk, provided he exercised due care with reference to people passing over it. The fact that the part of his premises under the side-walk was a part of the street will not prevent him from using his land, provided he use proper care for the safety of such persons as had occasion to use the side-walk, 2 Stevenson v. Joy, 152 Mass. 45. lg\ ABUTTING OWNERS. [Ch. 4 and defendant is not to be held responsible merely because of the existence of the coal-hole, nor from the fact that there was an excavation under the side-walk, but the defendant is held responsible for such care as should be exercised under the circumstances.^ CHAPTER IV. ACCORD AND SATISFACTION. What constitutes, 18, 19. Reception of less amount as satisfaction, 20. Same — ^Acceptance of check, 21. Same — ^Necessity of compliance with conditions, 22. Giving note as an accord and satisfaction, 23. Part payment and surrender of instrument, 24. What constitutes. (18) The court instructs the jury that to constitute an ac- cord and satisfaction of a claim unliquidated and in dispute it is necessary that the money should be offered in satisfaction of the claim and the offer accompanied with such acts and dec- larations as amount to a condition that if the money is ac- cepted it is to be in satisfaction, and such that the party to whom it is offered is bound to understand therefrom that if he takes it, he takes it subject to such condition.^ (19) The jury are instructed that the only issue before them is the question of settlement between the plaintiffs and the defendant, or, accord and satisfaction as set forth by the defendant in his answer, and that accord and satisfaction is an agreement between a creditor and his debtor, by which the creditor agrees to take and receive something from his debtor in lieu and satisfaction of his claim. If the property or thing » Stevenson v. Joy, 152 Mass. 45. iKingsville Preserving Co. v. Frank, 87 111. App. 586; Lang v. Lang, 83 111. App. 543. (8) Ch. 4] ACCORD AND SATISFACTION. [21 to be given by the debtof to tlie creditor is received and ac- cepted by the latter in settlement of his claim, it has the effect of payment, and extinguishes his claim. Anything valuable may be given by the debtor to the creditor, whether specific property or goods, or a transfer of claims or rights belonging to the debtor, (and if the jury believe from the evidence that in the month of or at any time since the maturity of the notes sued on in this case, the defendant and the plaintiff agreed upon a settlement, by which the de- fendant was to assign and transfer to the plaintiff a certain claim of inheritance belonging to the wife of the defendant, and if the jury further believe from the evidence that this basis of settlement was carried out by the parties ; that is to say, that the defendant and his wife executed an assignment and transfer of said claim of inheritance to plaintiff, and that the said claim of inheritance was delivered to and accepted by the plaintiff in full satisfaction of the claim of plaintiff against the defendant, then the jury will find for the defend- ant).* Eeception of less amount as satisfaction. (20) The court instructs the jury that a person cannot pay and satisfy a debt by the payment of a sum less than the debt ; but if you believe from the evidence that the plaintiff, in order to avoid a suit, of the result of which he was doubt- ful, agreed to receive any sum in full satisfaction of the amount he claimed to be due on said account, and upon such agreement the defendant paid the sum agreed upon, then such agreement and payment would completely discharge the defendant from all liability.* Same — ^Acceptance of check. (21) The court instructs the jury that the acceptance of a check for less than the sum claimed may amount to an ac- cord and satisfaction, and that if you believe from the evi- 2 American v. Rimpert, 75 111. 228. s Approved in Ogborn v. Hoffman, 52 Ind. 439. (9) 22] ACCORD AND SATISFACTION. [Ch. 4 deuce (here state facts surrounding acceptance of check, a& where check was sent and the creditors collected the check but wrote that they had agreed to accept it on account, to which defendant replied that if they retained the amount ac- cepted they would be expected to do so in full payment,) then your verdict will be for defendant.* Same — Necessity of compliance with conditions. (22) The court instructs the jury that a payment under an agreement to accept less than the whole debt if paid by a certain day, is not a discharge unless the condition is strictly complied with.'' Giving note as an accord and satisfaction. (23) The court instructs the jury that if you find from the evidence that the debtor gave his note indorsed by a third per- son as further security for a part of the debt and if you fur- ther find that the note was accepted by the creditor in full satisfaction of all demands, your verdict will be for the de- fendant.* Part payment and surrender of instrument. (24) The court instructs the jury that where there is a bona fide dispute between -the maker and payee of notes as to the date from which interest is payable under the terms of the notes which are ambiguous; and the maker pays the amount he admits to be due on the express condition that the notes and mortgages securing the same shall be cancelled and surrendered, and the payee accordingly receives the money and cancels and surrenders the mortgages, there is an accord and satisfaction.'' « Bernard v. Henry Werner Co., 19 Misc. Rep. (N. Y.) 173. » Inman v. Griswold, 1 Cow. (N. T.) 199. • Boyd V. Hitchcock, 20 Johns. (N. Y.) 76. T Storch V. Dewey, 57 Kan. 370. (10) Ch. 5] ACCOUNT STATED. [27 CHAPTER V. ACCOUNT STATED. Formal requisites in general, 25, 26. Assent to account as rendered, 27. Same — Retention of account as acquiescence, 28. Same — Failure to object to items, 29. Account stated with agent of one of the parties, 30. Opening account, 31. Same — Burden of proof to impeach, 32, 33. Formal requisites in general. (25) The court instructs the jury that no particular form of words is necessary to constitute a settlement, nor is it nec- essary to prove a promise to pay the balance found to be due^ provided a balance be found in the party's favor.'' (26) The court instrnc-.'! the jury that it is essential to an account stated that there be an examination of the claims by each party, and an agreement, express or implied, as to the correctness of the allowance of the amount of their respective claims and of the balance struck on the adjustment of the account.* Assent to account as rendered. (27) The court instructs the jury that to make an account stated there must be a mutual agreement between the parties as to the allowance or disallowance of their respective claims, and to establish such an account so as to preclude a party from impeaching save from fraud or mistake, there must be proof of assent to the account as rendered, either express or implied from failure to object within a reasonable time after presen- tation.* 1 Approved in Brewer v. Wright, 25 Neb. 805. I Stenton v. Jerome, 54 N. Y. 480; Murphy v. Ross, 26 Wkly. Dig. (N. Y.) 124; Smith v. Harris, 26 Wkly. Dig. (N. Y.) 323; Allen v. Woonsocket Co., 11 R. I. 288; Bussey v. Gant, 29 Tenn. (10 Humph.). 238. 8 Stenton v. Jerome, 54 N. Y. 480. (11) 30] ACCOUNT STATED. [Ch. Same — ^Retention of account as acciuiescence. (28) The court instructs the jury that where an account rendered is not objected to within a reasonable time, the fail- ure to object will be regarded as an admission of its correct- ness by the party to be charged, and what is a retention for a reasonable time is to be determined by all the circumstances of the case.* Same — Failure to object to items. (29) The jury are further instructed that he who has been silent as to his alleged rights when he ought to have spoken is not permitted to speak when he ought to be silent ; and if you believe from the evidence in this case that the plaintiff received, from time to time, from the defendant statements of his account with the defendant and was thereby afforded the opportunity to see the items in his bill of particulars men- tioned charged against him, and remained silent and did not object to the charge of such items against him within a rea- sonable time after each of such items was so rendered, then the defendant had the right to infer acquiescence of the plain- tiff in the correctness of such charges and the plaintiff is now estopped to deny the correctness of all such items to which he did not object in proper time ; and, as to all such items of the plaintiff's account, you must find for the defendant." Account stated with agent of one of the parties. (30) The court instructs the jury that a recovery cannot be had on the basis of an account stated made with plaintiff's agent, without proof that he was an authorized agent of the party he claimed to represent at the time, or there was a sub- sequent ratification of his act.® ♦White V. Hampton, 10 Iowa, 238; Darby v. Lastrapes 28 Lans (N. Y.) 605. o Approved in Shrewsbury v. Tufts, 41 W. Va. 212. 6Mank v. Morrison, 42 Mich. 567; Plarvey v. West Side Elevated R. Co., 13 Hun (N. Y.) 392. (12) Ch. 5] ACCOUNT STATED. [33 Opening account. ' (31) The court instructs tlie Jury that if they helieve from the evidence that from time to time the officers or agents of the plaintiff and defendant in this suit met and looked over their accounts together, and settled all matters between them and struck a balance, and agreed upon that as the amount due from one to the other, then, in the absence of mistake or fraud, neither party will be allowed to go behind that settle- ment for the purpose of increasing or diminishing the amount so agreed upon.'' Same — Burden of proof to impeach. (32) The court instructs the jury that a strong presump- tion arises that a settlement of account between parties em- braces all the items each has against the other which are due, and to overcome this presumption it devolves on the party as- serting the contrary to prove that the item was not due or that it was by consent of the parties omitted from the settlement or omitted by accident or unintentionally by the party claim- ing.* (33) The jury are instructed that the burden of proof is on the plaintiff to make out his case by a preponderance of the evidence. In this case the plaintiff's claim, according to his bill of particulars, is for commissions alleged to have been retained improperly, and not paid to him, as shown by state- ments of account rendered and filed with said bill of particu- lars; and the jury are instructed that the burden is on the plaintiff to show by a preponderance of the evidence that the items referred to in such statement of accounts, and charged in his bill of particulars, are not lawful charges against the plaintiff; otherwise he is not entitled to recover in this ac- tion and you must find for the defendant.® 'Approved in Gottfried Brewing Co. v. Szarkowski, 79 111. App. 583. 8 Straubher v. Mohler, 80 111. 21. " Approved in Shrewsbury v. Tufts, 41 W. Va. 212. (13) 34] ACCRETIONS. [Ch. 6 CHAPTEE VI. ACCRETIONS. In general, 34. Title to land created by recession of river, 35-38. In general. (34) The court instructs the jury that when the United States surveyed the land through which the Des Moines river flowed, and abutting thereon, on either side of said river, the same was treated as a navigable river, and the land along its shores was meandered on both sides of said river, and the space between the meander lines ou each shore was excluded in cal- culating the number of acres in any section or part thereof through which said river flowed ; and the purchasers of the tracts of land abutting upon said river acquired title to the meander line of said river, but at the same time became what is known in law as "riparian owners," so that the encroach- ment by the river upon their land, and washing away, would be their loss, and at Ihe same time any accretions made by the river to their land abutting upon said river would inure to their benefit and become their property, and hence, if you find from the evidence in the case that on the south side of the river, and east of the line 60 rods west of the east line of said section there have been accretions to the land in said section 16, abutting upon said river, by reason of which the quantity of land abutting thereon has been increased, then such increase would inure to the benefit of the abutting owner thereof, and if the plaintiff was such abutting owner thereof on the south side of said river it would inure to her benefit, but only to the extent to which the same was added to her land abutting thereon, and included in said southeast quarter sec- tion, east of the 60-rod line.^ 1 Approved In Dashiel v. Harshman, 113 Iowa 283 (14) Ch, 6] ACCRETIONS. [38 Title to land created by recession of river. (35) The court instructs the jury that under the law of this state, persons owning land on or bounded by the Mississippi river own to the water's edge, and when the water recedes gradually and land is made thereby, the owner of the land bounded by the river is owner of the land so made, and such owner's right to such land remains equal to his river front and such riparian rights cannot be encroached upon by ad- joining owners so running their boundary lines as to diminish such river front or accretions.^ (36) The court instructs the jury that if they believe from the evidence that the land and premises described in plain- tiff's petition and of which the defendants were in possession -at the time of the institution of this suit were and are not within the boundary line of survey 1922, nor are any part thereof, nor are any accretion thereto, but that they are within the original boundary line of Island 73 in Missouri river, and the accretions thereto, and that defendants held and hold the possession wrongfully from the plaintiff, then they will find for the plaintiff.* (37) The court instructs the jury that although they may believe that Island 73, section 6, township 44, range 1, west, at any time was washed away entirely or in part after the same was surveyed and patented by the United States gov- ernment, yet, if they further find that the land in contro- versy is a reformation of said Island on the bed of the river where such Island formerly existed, then plaintiff is entitled to recover in this action if it be shown that the defendant unlawfully detained the same.* (38) The court instructs the jury that if they believe from the evidence that a slough or arm of the Missouri river ran between Island 73 and survey 1922, at the time of making the United States survey, and that since that time the same » Approved In Benne v. Miller, 149 Mo. 228, » Approved in Buse v. Russell, 86 Mo. 209. « Approved in Buse v. Russell, 86 Mo. 209. (15) 39] ACCRETIONS. [Ch, has been filled up so as to connect the Island with the main land and make the Island and survey one continuous tract of land, then the adjacent owners of Island 73 and survey 1922 are entitled to the accretions to their respective land, but if the slough merely filled up from the bottom or by deposits within the bed of said slough and said accretions did not form on one side or the other, then the center of the slough as it was before the water deserted it is the boundary between said survey and said Island." CHAPTER VII. ACT OF GOD. Definition, 39. Same — Where accident would have befallen in any event, 40. Negligence of carrier co-operating with act of God, 41. Intervention of human agency, 42. Burden of Proof — Rule in United States, Iowa, Maryland, Massa- chusetts, Missouri, New York, and Pennsylvania, 43. Same — Rule in Alabama, Illinois, Georgia, Minnesota, Ohio, Texas, and West Virginia, 44. Definition. (39) The court instructs the jury that by the expression "act of God" is meant some destructive occurrence which could not have been occasioned by the intervention of man, but which proceeds from natural causes alone, such as the violence of the elements or natural accident. It must be such that it was impossible to be guarded against.^ And if the jury find from the evidence that the (state what the casualty was, as a "freshet") which is alleged to have occasioned the loss was (unprecedented in volume and violence),^ and was « Approved in Buse v. Russell, 86 Mo. 209. 1 Forward v. Pitard, 1 T. R. 27, per Lord Mansfield. 2 Change these words to correspond with the nature of the occur- rence which is alleged as the act of God. If, for instance it was a (10) Ch. 7] -A^CT OP GOD. [-12 not such as human foresight or human precaution could have guarded against, and if no act of man intervened as a con- tributing cause to the loss, then you will find for the defend- ant. Same — Where accident would have befallen in any event. (40) The court charges that defendant is entitled to a ver- dict if the facts show that the (state what constituted the act of God, as a "tornado") must necessarily have caused the loss in question no matter how careful defendant was ; al- though as a matter of fact you find that he was negligent in not (state what he omitted as "keeping his vessel safe and seaworthy").* Negligence of carrier co-operating with act of God. (41) The court instructs the jury that an act of God af- fords no defense to a carrier for failure to deliver the goods shipped, where the carrier's own negligence entered into and was a part of the cause of the loss, and if the jury find from the evidence that (state the facts e. g. the destruction of de- fendant's vessel was due to a violent and unprecedented storm, but that the vessel was not safe and seaworthy), and that de- fendant had not exercised the highest degree of care (state wherein he was negligent e. g. in not keeping her seaworthy), then you must find for the plaintiff.'* Intervention of human agency. (42) The court instructs the jury that if they find from the evidence that there was (state what, e. g. a violent storm) by reason of which (state what was the condition produced hitherto unknown roch: in a channel, say — "theretofore unknown to defendant and was not generally known or charted and could not have become known to defendant by extraordinary diligence on his part." 3 New Brunswick Steamboat, etc., Co. v. Tiers, 24 N. J. L. 697, 64 Am. Dec. 397; Hart v. Allen, 2 Watts (Pa.) 114. * New Brunswick Steamboat, etc., Co. v. Tiers, 24 N. J. L. 697, 64 Am. Dec. 397; Hart v. Allen, 2 Watts (Pa.) 114. (17), Forms Inst. — 2. 43] ACT OF aOD. [Ch. 7 resulting in the loss e. g. an unusually low tide was produced, and that during such low tide, the defendant's barge was sunk by coming in contact with a bulkhead which in any ordinary low tide would have been too far below the surface to come in contact with the barge) defendant is not excused from liability for the loss to plaintiff's goods, resulting from (state what happened e. g. the sinking of the barge)." Burden of proof — Eule in United States, Iowa, Maryland, Mas- sachusetts, Missouri, New York, and Pennsylvania. (43) The court instructs the jury that the burden is upon the defendant to establish by evidence that the loss or dam- age in question was caused by an act of God, and if the jury so find, then unless the plaintiff has satisfied you by his evi- dence that the defendant has been guilty of negligence enter- ing into and co-operating with the act of God in producing such loss you will find for the defendant.' Same — Rule in Alabama, Illinois, Georgia, Minnesota, Ohio, Texas, and West Virginia. (44) The court instructs the jury that the burden of proof is upon the defendant to satisfy the jury by his evidence not only that the loss or injury was occasioned by the act of God, but also that defendant exercised all due care and diligence in the performance of his duty, and was not in any manner negligent in the doing of any act that might have averted the loss.^ » The bulkhead which was a human intervention was the proxi- mate cause of the loss and the act of God was only the remote cause. New Brunswick Steamboat, etc., Co. v. Tiers, 24 N. J. L. 697, 64 Am. Dec. 397. 'Memphis, etc., R. Co. v. Reeves, 10 Wall. (U. S.) 189; Wlrtheimer V. Pennsylvania R. Co., 17 Blatch. (U. S.) 421; Denton v. Chicago, etc., R. Co., 52 Iowa, 161, 35 Am. Rep. 263; Baltimore, etc., R. Co. V. Brady, 32 Md. 333; Mayo v. Preston, 131 Mass. 304; Davis v. Wa- bash, etc.. R. Co., 89 Mo. 340; Lamb v. Camden, etc.. R. Co., 46 N. Y. 271, 7 Am. Rep. 327; Magnln v. Dinsmore, 56 N. Y. 173; CoUon v. Cleveland, etc., R. Co., 67 Pa. St. 211, 6 Am. Rep. 424. ' Steele v. Townsend, 37 Ala. 247, 79 Am. Dec. 49; Adams Exd (18) Ch. 8] ADJOINING LANDOWNERS. [47 CHAPTEB VIII. ADJOINING LANDOWNERS. Liability for Injuries to building by excavation on adjoining lot, 45, 46. game — Notice of intention to make ezcavatlon, 47, 48. Xiability for injuries to building by excavation on adjoining lot, (45) The court instructs the jury that if they believe from the evidence that the east and south walls of the house at were in a bad condition before the commencement of the digging by the contractor under the foundation wall of the defendant's house, and that the settling and cracking thereof were caused by their own inherent defects and not by the dig- ging by the defendant of his cellar in the year , then the plaintiff is not entitled to recover for any injury to her property caused by such settling and cracking.^ (46) The court instructs the jury that if they shall believe that the house at was in a ruinous and dilapidated condition before the contractor commenced work upon prem- ises of the defendant adjoining it on the east, and shall not find that by reason of such work it became more ruinous and dilapidated to an extent which impaired its rental value, then under the pleadings and all the proof in the cause, the plain- tiff cannot recover, and their verdict must be for the defend- ant.2 Same — Notice of intention to make excavation. (47) The court instructs the jury that if they shall find Co. V. Stettaners, 61 111. 184, 14 Am. Rep. B7; Berry v. Cooper, 28 Ga. 543; Shriver v. Sioux City, etc., R. C6., 24 Minn. 506, 31 Am. Rep. 353; Graliam v. Davis, 4 Ohio State, 362, 62 Am. Deo. 285; Ryan v. Missouri, etc., R. Co., 65 Tex. 13, 57 Am. Rep. 589; Brown v. Adams Exp. Co., 15 W. Va. 812. See, also. Belle v. Reed, 4 Denny (Pa.) 127, 5 Am. Dec. 398, in which It was held that a vessel owner must prove seaworthiness before he could set up the act of God. 1 Approved In Bonaparte v. Wiseman, 89 Md. 12. — 2 Approved in Bonaparte v. Wiseman, 89 Md. 12. (19) 48] ADJOINING LANDOWNERS. [Ch. 9 that the work done upon the defendant's premises by which the house known as is alleged to have been injured, was done by contractor under the written contract offered in evidence and shall further find that a reasonable time before any excavation below the foundation of said house was made, the plaintiff was notified or had actual knowledge that such excavation was about to be made, then, under the pleadings and the evidence in the cause, their verdict must be for the defendant' (48) The court instructs the jury that if they find from the evidence that a reasonable time before the contractor com- menced to dig under the foundation wall of the defendant's house next to the premises at , on the east, but sepa- rated from it by an alley about — ft. wide, the defendant notified the plaintiff of his intention to do so; and shall further find that afterwards the said contractor did dig un- der said foimdation wall upon the defendant's ground, and in so doing exercised reasonable care to prevent the ground un- der the bed of the said alley from caving in, then the plain- tiff is not entitled to recover, though the jury may believe that the east and south walls of the plaintiff's house or either of them settled and cracked by reason of the excava- tion made by the said contractor.* CHAPTER IX. ADULTERY.* Occasional acts of fornication Insufficient, 49, BO. All circumstances In evidence to be considered, 61. Occasional acts of fornication insufficient. C (49) The court instructs the jury that if they hhall find from the evidence that the defendants were not living to- » Approved In Bonaparte v. Wiseman, 89 Md. 12. « Approved In Bonaparte v. Wiseman, 89 Md. 12. • See Criminal Law for forms of instructions applicable to crimes generally. (20) Cb 9] ADULTERY. [SI gether in a state of open and notorious adultery but were sim- ply at the time charged in the information stopping together in the same room occasionally, and were only guilty of occa- sional acts of illicit intercourse, then the court should find the defendants not guilty.^ (50) The court instructs the jury that the burden of of- fense is the open, lewd, lascivious conduct of the parties liv- ing together as husband and wife. It is the publicity and disgrace, the demoralizing and debasing influence, that the law is designed to prevent. If, therefore, you find from the evidence in this case that the defendant and said C. lived to- gether in the same house, in the relation of master and serv- ant, and not as husband and wife, and that they only had oc- casional acts of sexual intercourse, and these in a secret man- ner, such facts alone would not be sufficient to constitute the crime charged against defendant in this case.* All circiunstances in evidence to be considered. (51) But the crime charged may be shown by circum- stances, in connection with the other evidence in the case, if such circumstances are sufficient in connection with such other evidence to satisfy you beyond a reasonable doubt that the crime has been committed as charged in the indictment, under these instructions; and, in determining whether said parties were or were not living together as husband and wife, it is proper for you to consider any and all acts of sexual in- tercourse, if any have been shown by the evidence ; the fact, if you find it to be a fact, that a child was born to the woman while she was living with defendant ; and all other facts and circumstances disclosed by the evidence as surrounding the parties while living together.* 1 State v. Cro-wner, 56 Mo. 147. *' 2 State V. Klrkpatrlck, 63 Iowa, 554. « State T. Klrkpatrlck, 63 Iowa, 554. (21) ADVERSE POSSESSION. [Ch. H> CHAPTER X. ADVERSE POSSESSION. I. Deiikition and Elements. In general, 52-59. Possession without title, 60. Action of trespass by one claiming title by adverse possession,^ 61, 62. II. Hostility in Inception and Continuakoe Thereof. Intention to hold adversely, 63-65. Hostility in inception, 66, 67. Holding by tenant as adverse to landlord, 68. Holding by vendee as adverse to vendor, 69. Necessity of notice of occupancy to owner, 70. Necessity of claim of title, 71. Character of proof to support, 72. III. Color and Soubce of Title. Color of title, 73-75. Claim of land as street, 76. Distinction between color of title and claim of title, 77. Conflict between paper title and rights acquired by posses' sion, 78. Source of title, 79. IV. Requisites of Actuai. Possession. In general, 80-82. Sufficiency of entry, 83. Cultivation and improvements, 84-88. Inclosure, 89-91. Use of premises for storage purposes, 92. Cutting grass or Are wood, 93, 94. Possession by tenant, 95. y< Payment of taxes, 96. V. Extent or Possession. Whether adverse holding limited to actual occupancy, 97-99. Same — ^Accretions, 100, 101. VI. Dubation of Possession in Oenebal. Continuity of possession, 102. Possession against persons under disability, 103. Tacking possession, 104-108. 122^ Ch. lOJ ADVERSE POSSESSION. [55 I. Definition and Elements. In general. (52) The court instructs the jury that the question in this part of the case is whether the defendants, and those under whom they claim, have for a period of had actual, open and exclusive adverse occupancy and possession of the land claimed to be owned by the plaintiff, such adverse pos- session being known and acquiesced in by the real owner, or 80 far notorious as to be presumptively within his knowl- edge.^ (53) The court instructs the jury that when a party claims to have acquired title to the lands of another by hav- ing held possession a length of time sufficient to bar the own- er from retaking possession, he must, to succeed, show that his possession is of that exclusive, permanent, open, hos- tile, and adverse character as to put the owner in the position of failing to assert his rights, knowing, or having reason to know, they were encroached upon, for the full period of (54) The court instructs the jury that, in order to di- vest the title to the land described in plaintiff's declaration out of the plaintiff and vest it in the defendant, by reason of his adverse possession, that possession must be actual, visible, notorious and hostile, continuous and uninterrupted, under a claim of title, for a period of (time prescribed by statute) next preceding the commencement of this suit.^ (55) The court instructs the jury that to constitute a bar to plaintiff's right to recover in this action defendants herein must show an actual occupancy of the premises in suit, clear, definite, notorious and hostile, and such occu- pancy must be continuous, adverse and exclusive during the whole period prescribed by the statute.* I Approved In Merwln v. Morris, 71 Conn. 555. " Approved In Hockmoth v. Des Grand Champs, 71 Mich. 520. » Approved v. Dalby v. Snuffer, 57 Mo. 294. * Approved In Davenport v. Sebrlng, 52 Iowa, 364. (23) 56] ADVERSE POSSESSION. [Ch. 10 (56) The court instructs the jury that the occupant who claims adverse possession must claim during the (time pre- scribed by statute) adverse to the true owner. This pos- session must be a possession imdisturbed and open and un- der the open claim of ownership and must be adverse to the owner of record. This is a question of fact for you to de- cide on all the evidence in this case — whether the defendant and the parties who owned before him and occupied the premises have peaceably, openly and under claim of owner- ship to the exclusion of the plaintiff, occupied the premises in question.^ (57) The court instructs the jury that if you find from the evidence that the defendant entered into the occupation and possession of the premises in question claiming title thereto exclusive of and hostile to any other right, and that such claim of title was made in good faith, the defendant believing that he had a good title to such land as the owner thereof, and further find that such occupation and possession was actual and continued, uninterrupted and notorious and hostile to any other right or title to said land, for a period of (the period prescribed by statute) prior to the commence- ment of this action, and that during all that time the de- fendant so claimed title to said land, that would constitute adverse possession, and would bar plaintiff's right to recover in this action and your verdict in such case would be for the defendant.' (58) The court instructs the jury if they find from the evidence that D. the ancestor of the defendants, bought at a tax sale held by the , the property in controversy in this case and paid the price bid by him at such sale and re- ceived from the a deed to said property, which was by him duly filed for record and recorded in the ■> Approved in McAvoy v. Cassivy, 60 N. T. St. Rep. 827. The use of the word "peaceably" was objected to, but held proper as limited and understood by the use of the word "undisturbed." « Approved in Bartlett v. Secor, 56 Wis. 520. (24) Ch. 10] ADVERSE POSSESSION. [60 inore than (time prescribed by statute) prior to the com- mencement of this suit ; that thereupon the said property was assessed to the said D. on the tax books of the city of W. and the taxes thereon from that time until the beginning of this suit were paid by the said D. or his successors in title, the defendants in this case; that at a period of time more than twenty years before the commencement of this suit the said property was rented on behalf of the defendants to a person who took the same and held possession thereof as tenant of the defendants for the purposes of a stone yard, paying rent therefor from the date of making such arrangement with the defendants, and that, although the said property was not inclosed by a fence, yet the person so renting the same, either upon the whole or a part thereof, during his occupancy de- posited stone used by him in the business, and that such use and possession of the said property was continued by the occupant thereof actually, exclusively, continuously, open- ly, notoriously, adversely and uninterruptedly for a period of (time prescribed by statute) next before the commence- ment of this suit, then the jury is instructed that the defend- ants are entitled to recover^ (59) The court instructs the jury that if the said defend- ant took possession of the land in dispute here sued for un- der claim of title and held and claimed it as his own adversely and continued to so hold it adversely against all the world, until the expiration of from the time of his first taking possession, then this action is barred by the statute of limitations.* Possession without title. (60) The court instructs the jury that plaintiff's adverse possession would become perfect with the lapse of (time pre- scribed by statute) even if plaintiff originally had no shadow 7 Approved in Holtzman v. Douglas, 168 U. S. 278. » Sutton V. Clark, 59 S. C. 440. The court held In this case that adverse possession for the statu- tory period confers a positive affirmative title. (25) ^jT ADVERSE POSSESSION. [Ch. 10 of title, provided such adverse possession was so open that any other person could bring suit to eject the plaintiff.' Action of trespass by one claiming title by adverse possession. (61) The court instructs the jury that if they believe from the evidence that JST. conveyed the entire boundary of land described in plaintiff's petition to W. on the — of , , and that said W. on the — of , , sold and conveyed the same property to the plaintiff H., and further believe from the testimony that in pursuance of Buch conveyance and under color thereof, they, the said W. and the plaintiffs entered into the actual possession of the lands so conveyed, claiming title thereto to the full ex- tent of the boundary and title so conveyed, and that such pos- session of said land continued for (the period prescribed by statute) previous to the defendant's entry sued for, and dur- ing such period, their possession was actual, visible and no- torious, then such possession is adverse and the jury should find for the plaintiffs and determine their damages as indi- cated in previous instructions.*" (62) The court instructs the jury that a title in fee was not essential to the maintaining of an action of trespass by one having actual possession against a stranger to the title and not in possession; and no person can purge a disseisin by an entry, who is not the true owner or who does not make the entry by authority of the true owner.** II. Hostility in Inception and Continuance Thbbeot. Intention to hold adversely. (63) The court instructs the jury that such possession must be under a claim of title or right to the land occupied ; or, in other words, the fact of possession, and the intention with which it was commenced and held, are the only tests. If, therefore, the intention of claiming the title to the land » Approved In Beecher v. Ferris, 112 Mloh. 584. 10 Approved In MaysviUe & B. S. R. Co. v. Holton, 100 Ky. 665. " Approved In Gardner v. Gooch, 48 Me 487 (26) Ch. 10] ADVERSE POSSESSION. [66 against the true ownci is wanting, the possession will not be adverse, and, however long continued, will not bar the owner'* right to recover.** (64) The court instructs the jury that on the other hand, if when the defendants took possession of the strip of land in controversy he only intended to occupy and claim the gov- ernment subdivision of the land described in his deed, but by mistake extended his possession too far north and included the disputed strip, and has since occupied and cultivated it with no intention of claiming it as his own, unless it was in fact included within the true boundaries of the land described in his deed, then his possession, however long continued, was not adverse; and if you so find, your verdict will be for the plaintiff." (65) The court instructs the jury that if at the date this suit was commenced the defendant had been in peaceful and exclusive possession of the land up to the north line of the disputed strip and cultivated and claimed it as his own, and such claim of ownership has been open, notorious and adverse to all the world for more than (time prescribed by statute), then his possession and claim has ripened into a good title, and if you so find, your verdict will be for the defendant. To be adverse, however, the holding or possession of the de- fendant must have been with the intention of insisting upon his right to the land in controversy as against all others and not by mere mistake as to the location of the line as fixed by the government survey.** Hostility in inception. (66) The court instructs the jury further that the defend- ants to make out a title by adverse possession must show that such possession was adverse in its inception, and where the 12 Approved In Davenport v. Sebrlng, 62 Iowa, 364. »' Heinz v. Cramer, 84 Iowa, 497. i« Approved In Heinz y. Cramer, 84 Iowa, 497. Provides for contingencies that statute of limitations might have been set in motion by agreement respecting line. ^7] ADVERSE POSSESSION. [Ch. 10 entry is imder the title of the legal owner, the holder can- not controvert that title without an express disclaimer, or its equivalent, and the assertion of an adverse title with notice to the owner.^" (67) The court instructs the jury that adverse possession sufficient to defeat a legal title must be hostile in its inception and continue uninterruptedly for (time prescribed by stat- ute). It must also be open, notorious, adverse and exclu- sive and must be held during all of such time under a claim of ownership by the occupant and all of these facts must be proved by a preponderance of the evidence.^* Holding by tenant as adverse to landlord. (68) The court instructs the jury that there can be no adverse possession of lands where the possession is consist- ent with the title of the true owner, as where the occupant has leased or acknowledged the title of the claimant, and a tenancy once shown to exist is presimied to continue until the contrary be proven, and no adverse possession can be set up by the tenant or anyone entering upon the land under the tenant until full notice of the denial of landlord's title is brought home to the landlord, and the statute of limita- tions only begins to run from the time the landlord had such notice.^'' Holding by vendee as adverse to vendor. (69) The court instructs the jury that if you believe, from the evidence introduced on the trial of this case, that defendants purchased the land in controversy from , by an assignment of a contract of purchase from one J., and thereby derived the first claim they ever made to the land in suit, and afterwards sued and obtained the purchase money 16 Approved in Maxwell v. Cunningham, 50 W. Va. 298. 16 Approved In Hofflne v. Ewings, 60 Neb. 729, though court sug- gests the use of another word than "hostile," as that word savors of 111 will. 1' Approved in Reusens v. Lawson, 91 Va. 226. (28) Ch. 10] ADVERSE POSSESSION. [73 paid for said land by their assignor, J., or themselves, by reason of an alleged want of title in said railroad company, then such action on the part of defendants amounts to an abandonment of all rights claimed or acquired by the defend- ants in and to the title to the land in question, up to the time of receiving such repayments of the purchase money, and their claim of title now made must commence from the date of the receipt of such purchase money, if you find sucb claim has been made by defendants.-'* Necessity of notice of occupancy to owner. (70) The court instructs the jury that the owner need not move to retake possession till he learns or ought to know that his lands are taken possession of.** Necessity of claim of title. (71) The court instructs the jury that if defendants, dur- ing the time they have held this land in dispute, only claimed to own the improvements made on said land, then no length of possession will give them title to the land in dispute; and in considering this case you will take into consideration the acts and declarations of the defendants and their state- ments of the claim made by them, and if the evidence offered upon the trial of this cause satisfies you that the claim of de- fendants was a claim for improvements only, then you must find for the plaintiffs.^" Character of proof to support. (72) The court instructs the jury that adverse possession is not to be made out by inference, but by clear and positive proof.^* ' III. Color and Source or Title. ' Color of title. (73) The court instructs the jury that if they find that i« Approved In Davenport v. Sebring, 52 Iowa, 364. i» Approved in Hockmoth v. Des Grand Champs, 71 Mich. KiO. s» Approved In Davenport v. Sebring, 52 Iowa, 364. «i Approved In Merwin v. Morris, 71 Conn. 555. (29) j-4] ADVERSE POSSESSION. [Ch. 10 the plaintiff entered into possession of the land in dispute, under the paper introduced in evidence as exhibit A, pur- porting to be signed by E. under a claim o£ ownership, and if they find that he has personally or by his tenants con- tinued in possession thereof for more than (time prescribed by statute), then the jury must find that he is presumed to have obtained a grant from the state. *^ (74) The court instructs the jury that the party who re- lies on adverse possession of land under color or claim of title, to defeat the legal right of the owner of the land must show: 1. His color or claim of title and that it covers the land, or a part of the land in controversy. 2. That he en- tered under said claim or color of title upon said land in con- troversy or some part thereof. 3. That his entry was hos- tile and adverse to the party having the legal title and was -actual, visible, and exclusive, and 4, Must have so continued hostile, actual, visible, unbroken, under said color or claim of title for (time prescribed by statute) before the com- mencement of the action to dispossess.^' (75) The court instructs the jury that defendant, S., al- leges that he went into possession of the tract of land de- scribed in the petition of that he is now living on said tract of land, and that ever since going into possession of he has been in open and notorious possession of said land, claiming the same all of the time as his own, and defendant charges that the statute of limitations is a com- plete bar to the plaintiff's claim ; and the court instructs the jury that if they believe from the evidence that the deed from W. to the defendant, S., conveying certain lands and under which deed the defendant S. claims to enter into pos- session of the lands described in the complaint, conveyed the same lands which are described in the complaint, then 22 Approved In Kolb v. Jones, 62 S. C. 193. Held not open to objection that it ignored necessity of adverse holding, as holding under claim of ownership is adverse. 2» Approved in Maxwell v. Cunningham, 50 W. Va. 298. (30) Ch. 10] ADVERSE POSSESSION. [77 it is for the jury to say whetlier the defendant, S., entered into the possession of the said lands under the said deed, and whether the subsequent possession was adverse, to the ex- clusion of plaintiff's claim.^* Claim of land as street. (76) The court instructs the jury that if they shall believe from the evidence that the defendant has been in peaceable, quiet, and uninterrupted possession of the land in question for (time prescribed by statute) or more, claiming it as a street under color of title, either by grant, contract or dedica- tion from the ovsmers thereof, and exercising acts of ownership thereover by repairing, filling in, or otherwise, they should find for the defendant.^' Diitinction between color of title and claim of title. (77) The court instructs the jury that color of title and claim of title are not in their strict sense synonomous terms. To constitute color of title a paper title, — that is, a deed or other instrument purporting to convey title, — is necessary, but a claim of title may exist wholly in parol, and may be manifested by acts as well as by words, and if you find from the evidence that the defendant S. built a house or houses and bam and other outbuildings, dug a well or wells, planted an orchard and otherwise improved and cultivated the prem- ises in controversy^ this is competent evidence tending to show claim of title on part of the defendant upon which an adverse possession may be predicated and which if continued for (the period prescribed by statute) or more would bar the plaintiffs from maintaining this action.^® 2* Approved In Sudduth v. Sumeral, 61 S. C. 276. The court held In this case that whether the land described In a particular deed Is the same land described in the complaint or some other papers is a question of fact for the jury. 25 Buntln V. City of Danville, 93 Va. 200. 2« Approved In Bartlett v. Secor, 56 Wis. 520. C81) 78J ADVERSE POSSESSION. [Lh. 10 Conflict between paper title and rights acquired by possession. (78) The court instructs the jury that the deeds and pa- pers introduced in evidence by the plaintiif in this case are sufficient to vest the legal title to the whole of the land de- scribed in the declaration in the plaintiff, and to authorize it to take possession of the whole of that tract of land, unless the defendants have shown an adverse possession to the same or some part thereof, as explained in these instructions for a period of (time prescribed by statute) or more before the commencement of this suit, or some valid legal right to the possession of the premises claimed, or some part thereof, by a preponderance of the evidence.^^ Source of title. (79) The court instructs the jury that, as a matter of law, if you believe from the evidence that the land in question in this case is a portion of the south fractional half of section twenty-nine (29), * * * that the source of title to such land is in the state of Illinois, and that in proving title to the land in question it is not necessary for the plaintiff to commence with the United States, or to go further back than • the state of Illinois as a starting point in making out its chain of title to said land.^* IV. Requisites of Actual Possession. In general. (80) The court instructs the jury that for the purpose of constituting adverse possession by a person claiming title not founded upon some written instrument or some judg- ment or decree, land shall be deemed to have been possessed and occupied in the following cases only: (1) When it has been protected by a substantial inclosure; (2) When it haa been usually cultivated and improved.^^ 2T Approved in Chicago & A. R. Co. v. Keegan, 185 111. 70. 2« Approved In Chicago & A. R. Co. v. Keegan, 185 111. 70. 2» Approved in Bartlett v. Secor, 56 Wis. 520. (32) Ch. 10] ADVERSE POSSESSION. [82 (81) The court instructs the jury that, to constitute pos- session it is not necessary that the land should be enclosed with a fence, or that the same should be cultivated, resided upon or that buildings should be erected thereon. It is suffi- cient if the acts of ownership are of such a character as to openly and publicly indicate an assumed control or use, such as are consistent with the character of the premises in ques- tion. If you find in the spring of , or the summer of that year, after getting his deed, began the exer- cise of such acts of ownership and control as are usual by owners of timber lots when used to supply a farm in the neighborhood with timber, and his acts were of such an ad- verse, open, notorious and hostile nature as to clearly indi- cate that he asserted exclusive control over it, and that he continued to do so up to the time of his selling to defendant, and that afterwards, defendant continued with like acts, you would be justified in finding that defendant had been in such possession as to bar any claim of title upon the part of the plaintiff, and your verdict should be for the defendant.^* (82) The court instructs the jury that if you believe from the evidence in the case that the land in controversy or any considerable part thereof, was susceptible of a definite occu- pation or possession, that is, that said land or any part there- of was fit for pasture or cultivation without clearing or cut- ting away the timber therein — then in order to constitute the possession of plaintiff or that of those under whom he claims, adversely, you must believe from the evidence in the case that the plaintiff or his grantor, either in person or by their tenants built permanent structures on said land or actually inclosed or cultivated said land or some part thereof for the period of (period prescribed by statute) prior to the in- stitution of this suit, and that it is not sufficient in such a case that plaintiff and his grantor paid the taxes on said land, »o Approved in Murray v. Hudson, 65 Mich. 670. (33) Forms Inst. — 3. 83] ADVERSE POSSESSION. [Ch. 10 kept off trespassers, cut timber, erected temporary structures, and pastured hogs thereon under a claim of ownership.^ ^ Sufficiency of entry. (83) The court instructs the jury that if they believe from the evidence that the grantors of defendant had no title or possession to the premises described in their deed to him of lot No. — , dated , and recorded , it could not control and ride over the recorded deed of E. to plaintiff, or affect the possession of the plaintiff of the prem.ises in dis- pute, if his possession was such, under the instructions afore- said, as would constitute a disseizin of the true owner; that the delivery and registry of the deed to the defendant of lot Wo. — , would not purge the disseizin of the plaintiff, (if the latter had acquired such a possession as constitutes a disseizin according to the foregoing instructions, or, if the disseizin was constituted by the delivery and recording of the deed of E. to him,) without an entry into some part of the disputed premises. But, if the defendant had the title to the premises in dispute, under the deed to him from and wife, or the right of entry therein, the disseizin might be purged by an entry. And, in regard to an entry, the intent with which it is made, generally determines its character, and consequently, the effect of the act. The mere act of going upon the land and cutting trees upon it, will not always constitute a legal entry sufficient to vest the seizin in him who has the legal right. In order to constitute a legal entry, the party must go upon the premises with that intents- Cultivation and improvements. (84) The court instructs the jury that if you believe from the evidence that the defendant, not less than (time pre- scribed by statute) prior to the commencement of this suit, entered into possession of the lands in controversy and culti- vated said lands or fenced the same, or erected improvements «i Approved in Cook v. Farrah, 105 Mo. 492. 82 Approved in Gardner v. Gooch, 48 Me. 487. (34) Ch. 10] ADVERSE POSSESSION. [86 of anj kind thereon or did any other acts of such a character as to clearly show that he was occupying said lands and claim- ing the same as his own, and during all of said time con- tinued to so occupy said lands, claiming during all of said time to he the owner of the same, and never during any of said period of abandoned said land, but during all of said time continued openly, notoriously, adversely and ex- clusively to occupy and claim the same as his land, then you are instructed that said acts on the part of defendant would constitute adverse possession within the meaning of the law and would entitle the defendant to a verdict at your hands. But if the defendant has failed to establish any of said acts by a preponderance of the evidence your verdict should be for the plaintiff.^* (85) The court instructs the jury that neither physical occupation, cultivation, nor residence is necessary to con- stitute actual adverse possession, when the property is so sit- uated as not to admit of any permanent useful improvement, and the continued claim of the property has been evidenced by open, visible, continuous acts of ownership, known to and acquiesced in by the real owner, or so far notorious as to be presumed to be within his knowledge.^* (86) The court instructs the jury that there is a use and occupation of land within the law where the land is used for turpentine purposes, and such use is so notorious as to attract the attention of every adverse claimant and so exclusive as to prevent actual occupation by another. If you believe irom the evidence that the trees on the land were cultivated for turpentine purposes and the timber was boxed and that for a considerable portion of the time during the year the trees were chipped and hacked and the hands were continu- ally dipping turpentine from the trees and were hauling the turpentine away and the trees were racked around to protect : 8s Approved in Hoffine v. Bwings, 60 Neb. 729. »* Approved In Merwin v. Morris, 71 Conn. 555. (35) 87] ADVERSE POSSESSION. [Ch. 10 them from fire, I cliarg© you that this would he actual pos- session if you find it to be true.*** (87) The court instructs the jury that if the tenants, un- der their respective leases from , occupied and culti- vated to the T. line, in such a manner as the owners of such land would ordinarily occupy and cultivate, and such occu- pation had continued for the period of (time prescribed by statute) it would constitute such an adverse possession as would bar the defendant's right to recover.** (88) The court instructs the jury that, if you believe from the evidence in the case that the land in controversy or any considerable part thereof was susceptible to definite occupa- tion or possession, — that is, that said land or any part thereof was fit for pasture or cultivation without clearing or cutting away the timber thereon-— then in order to constitute the pos- session of plaintiff or that of those under whom he claims adverse as required in the foregoing instruction, you must believe from the evidence in the cause that the plaintiff or his grantor M., either in person or by their tenants, built per- manent structures on said land or actually enclosed or culti- vated said land or some part thereof for the period of (the period, prescribed by statute) prior to the institution of this suit, and that it is not sufficient in such a case that plaintiff and his grantor M. paid the taxes on said land, kept off trespassers, cut timber, erected temporary structures and pastured hogs thereon under a claim of ownership.^ ^ luclosure. (89) If T. and his representative took the actual posses- sion of .the G. tract, by fencing up the whole of it, and held such possession, claiming the tract" in fee, for more than (time 80 Approved In Plannery v. Hightower, 97 Ga. 592. This instruction was held not to be open to objection of express- ing opinion on weight of evidence. See Vol. I, Chap. IV., for dis- cussion of general principle. 38 Approved in Reed v. Proprietors, etc., 8 How. (TJ. S.) 274. 37 Approved In Cook v. Farrah, 105 Mo. 492. (36) Ch. 10] ADVERSE POSSESSION. [93 prescribed by statute) prior to the entry of defendants, and those under whom they claim, such possession vested the fee in said T's representatives.*® (90) The court instructs the jury that you cannot presume that the owner of the , in going along the highway where the fence is shown to be nearly on the line, and seeing a fence extending north, has thereby notice that the fence incloses any portion of his land. On the contrary, he is jus- tified in assuming that his neighbor is only enclosing what he is entitled to.** (91) The court instructs the jury that if the plaintiff's possession of the premises in dispute was open, notorious, ex- clusive and adverse, comporting with the usual management of a farm by its owner, though a portion was woodland and uncultivated, and though not wholly surrounded by fences, or rendered inaccessible by other obstructions, it would consti- tute a disseizin of the true owner, unaffected by other facts.*" Use of premises for storage purposes. (92) The court instructs the jury that the mere piling of wood or lumber or rails or offal upon a tract of land or lot, unaccompanied by any other act denoting ownership, is not such possession of the land or lot as would constitute no- tice to a bona fide purchaser of such tract of land or lot, un- less such piling of wood or lumber should constitute, in the estimation of the jury, an open, visible and exclusive posses- sion of the lot in the person piling such wood or lumber.** Gutting grass or fire wood. (93) The court instructs the jury that an occasional use of the land, such as the occasional cutting of grass or fire wood, will not be sufficient to establish adverse possession.*^- ss Approved In Farrar v. Heinrich, 86 Mo. 521. 89 Approved in Hockmoth v. Des Grand Champs, 71 Mich. 520. 40 Approved in Gardner v. Gooch, 48 Me. 487. *i Truesdale v. Ford, 37 111. 210. ■«2 Approved in Merwin v. Morris, 71 Conn. 555. (37) 94] ADVERSE POSSESSION. [Ch. 10 (94) The court instructs the jury that if plaintiff cut the grass upon a natural fresh meadow, and carried the hay away and converted it to his own use, annually for any period of time, however long, without any other possession of the land on which it grew, or any claim of title to the land, such acts alone would not constitute an adverse possession against tiie true owner of the soil.*' Possession by tenant. (95) The court instructs the jury that the possession of the premises by said lessees, under the lease, was the posses- sion of K., the lessor, and his heirs, he claiming to have a deed which included them, and having turned M. out of pos- session, if it was of such, a character as amounted to a dis- seisin, it would in law inure to the benefit of K., and his heirs, and would be the disseisin and adverse possession of the lessor.** Payment of taxes. (96) The court instrticts the jury that so far as the claim of plaintiffs, founded upon color of title and payment of taxes for (time prescribed by statute) consecutive years while the land was vacant and unoccupied and possession thereafter taken, is concerned, to establish title on that basis it must appear, from a preponderance of the evidence, that through- out the entire period, from the first to the last of such pay- ment of taxes, the land was vacant and unoccupied.*^ V. Extent of Possession. Whether adverse holding limited to actual occupancy. (97) The court instructs the jury that if the adverse pos- session should be held as in the above instruction for (time prescribed by statute) before the commencement of the action under claim of title, the person claiming adversely will be <> Approved In Gardner v. Gooch, 48 Me. 487. 4* Approved In Reed v. Proprietors, etc., 8 How. (U. S.) 274. «» Approved in Scott v. Bassett, 186 111. 98. (38) Ch. 10] ADVERSE POSSESSION. [101 limited in the adverse holding to his actual enclosure, if under color of title then the adverse holding will extend to the boundaries contained in the deed or writing that con- stitutes his color of title.** (98) The court instructs the jury that if they believe from the evidence that plaintiff, upon receiving and recording the deed from E. to him, dated , entered upon the land therein described, and continued to have a visible possession, occupancy, and improvement of only a portion thereof, sucli occupation and improvement, uncontrolled by other facts, were a disseisin of the true owner as to the whole of the land described in the deed, though E. might not have had title thereto.*'^ (99) The court instructs the jury that if the plaintiff's possession of the premises in dispute was open, notorious, ex- clusive and adverse, comporting with the usual management of a farm by its owner, though a portion was woodland and uncultivated and though not wholly surrounded by fence or rendered inaccessible by other obstructions, it would consti- tute a disseisin of the true owner unaffected by other facts. *^ Same — ^Accretions. (100) The court instructs the jury that the term accre- tion as used in the instructions in this case means portions of soil added to that already in possession of the owner by gradual deposit caused by a change in the bed of the river, and that accretion belongs to the owner of the land, and it makes no difference whether the accretions were formed be- fore or after the ownership has accrued, and that ownership may be acquired by adverse possession as well as by deed.*" (101) The court instructs the jury that if they believe from the evidence that S. cleared and cultivated the land east of the old levee, beginning at an old stone in the southeast *« Approved in Maxwell v. Cunnlngliam, 50 W. Va. 298. *' Approved in Gardner v. Gooch, 48 Me. 487. *» Approved in Gardner v. Gooch, 48 Me. 487. *» Approved in Benne v. Miller, 149 Mo. 228. (39) 102] ADVERSE POSSESSION. [Ch. 10 eorner of the lot No. 1, of the D. tract, and running eastward- ly at right angles to said old levee toward the Mississippi river, and that he and those under whom he claims title have been in the open, notorious and adverse possession thereof, claiming title thereto for more than (time prescribed by statute) prior to the institution of this suit, plaintiff is not entitled to recover any part of the land so occupied, nor any part of the accretion thereto.^** VI. DtTEATION OF POSSESSION IN GENERAL. Continuity of possession. (102) The court instructs the jury that it is not suffi- cient to constitute the possession referred to in the preceding instruction, that the said K. should have occasionally used such property for the purposes of a printing office during a period of time equal to (time prescribed by statute) or more, but such possession, in order to bind the true owner, must have been continuous and unequivocal.'*^ Possession against persons under disability. (103) The court instructs the jury that if you believe from the evidence, that the defendant, and those through whom he obtained possession of the property sued for, had had a continuous possession thereof for twenty years next before the commencement of this suit, claiming the same as their own, — ^then they should find for the defendant as against each of the plaintiffs, who has not proved herself or himself either under twenty-one years of age, or a married woman, at the commencement of such possession; and the burden of proof is upon each of the plaintiffs claiming to have been un- der such age, or a married woman at the commencement of such possession, to prove it affirmatively; and until it be proved to the satisfaction of the jury, the contrary thereof should be presumed by the jury,"^ to Approved In Benne v. Miller, 149 Mo. 228. »> Approved in Mertens v. Kielmann, 79 Mo. 412. 82 Approved in Dessaunier v. Murphy, 33 Mo. 1S4 (40) Ch. 10] ADVERSE POSSESSION. [106 Tacking possession. (104) The court instructs the jury that, if you believe, from the preponderance of the evidence, that the grantors of the plaintiff held the open, notorious, adverse, hostile, peace- able, uninterrupted and continuous possession of the land in question for some time, under claim of ownership thereto, and that they conveyed one from another down to the plaintiff herein, and that under said conveyance the plaintiff tooK pos- session of the land in question and held the open, notorious, adverse, hostile, peaceable, uninterrupted and continuous pos- session thereof, under claim of ownership, from the time of such conveyance to the time it is alleged in the declaration that the defendant took possession thereof, and that such pos- session of the said grantors of the plaintiff and the posses- sion of the plaintiff together amount to a period of (time prescribed by statute) or more prior to the time it is alleged in the declaration that the defendant took possession thereof, then the plaintiff would be the absolute owner of the said land, if you further believe, from the preponderance of the evidence, that the defendant took and unlawfully with- held from the plaintiff the possession thereof as alleged in the declaration, then you should find a verdict for the plaintiff.^^ (105) The cotirt instructs the jury that to defeat the claim of the plaintiffs in this action upon the defense of adverse possession, the jury must find from the evidence that the de- fendants, in person or by their tenants, have for more than (time prescribed by statute) prior to the day of , 19 — , held actual, exclusive, continuous, open, noto- rious, and adverse possession of the said premises, and they cannot extend their possession by tacking it to the prior pos- session of any person who, during such prior possession, did not claim any title or right to the premises.^* (106) The court instructs the jury that if, as claimed by lis Approved In Lourance v. Goodwin, 170 111. 390. ei Approved In Holtzman v. Douglas, 168 XT. S. 278. (41) 107] ADVERSE POSSESSION. [Ch. It the plaintiff here, you shall find that the predecessors of these defendants in the chain of alleged title have admitted the title to be in the predecessors, or any of them, and you so find the title established, then it is not necessary that it ap- pear that any possession has been exercised on the part of the owner.®^ (107) The court instructs the jury that if the pogsession of — ■ , in 19 — , under K., included the demanded prem- ises, and the same possession had been continued by the sub- sequent lessees, as the evidence tended to show it had been, down to the entry of the heirs of M. and wife, in 19—, it con- stituted in law such a continuity of possessi&n as would bar the demandant's right to recover.^® (108) The court instructs the jury that if defemdants. and those under whom they claim, have had adverse posses- sion of so much of the premises described in the petition as is covered by the building of defendants, and said possession was open, notorious and hostile, under claim of title, and continuous for more than (time prescribed by statute) prior to the institution of this suit, on the day of —— 19 — , then the plaintiffs cannot recover the portion of said premises so covered by said building. ^^ CHAPTER XI. AGENCY. I. The RELATloif. What constitutes relation of principal and agent, 109, 110. Agency with regard to loan — ^Whether agent for borrower or lender, 111. Termination of agency, 112-115. »» Approved in Merwin v. Morris, 71 Conn. 555. 88 Approved in Reed v. Proprietors, etc., 8 How. (U. S.) 274. »' Approved in Dalton v. Bank of St. Louis, 54 Mo. 105. (42) Ch. llj AGENCY. [Hj<> II. Rights and Liabilities of Pkincipai, as to Thikd PnHso>'s. Authority of agent to bind principal, 116. Authority of real estate agent to make representations as to quantity of land sold, 117-119. Authority of agent to receive payment of subscriptions, 120. Implied power of agent, 121. Implied power to borrow money, 122, 123. Authority to warrant goods sold, 124. Power to collect claims, 125. Unauthorized acts of agent — Apparent authority, 126-134. Same — Acting uiion appearance of authority as essential ele- ment of estoppel, 135. Same — Violation by agent of secret instructions, 136, 137. Same — Effect of representations by agent as to his authority, 138. Apparent authority with reference to transfer of principals' property, 139. Liability of principal for torts of agent, 140. Liability for fraud of agent, 141. Ratification, 142-145. Same — Of fraudulent representations, 146. Same — Acceptance of benefits, 147-151. Same — ^By suing on contract, 152. Same — ^Knowledge of facts, 153-155. Same — Effect of ignorance of Immaterial fact, 156. Same — Of warranty made on sale of goods, 157. Same — Liability for wrongful acts of agent, 158. Ratification in part, 159. Notice to agent, 160-163. Rights of undisclosed principal as to third persons, 164, 165. Liability of undisclosed principal to third person, 166, 167. III. Rights and Liabilities of Agent as to Thtbd Persons. Liability of agent to third person, 168, 169. Rights and liabilities of agent where agency is undisclosed, 170 IV. Mutual Rights and Liabilities of Pkincipal and Agent. Skill and diligence required from agent, 171. Inability of agent to make profits at expense of principal, 172-174. Adverse interest, 175, 176. Ratification of violation of instruction — ^Knowledge of facts, 177. I. The Relation. What constitutes relation of principal and agent. (109) The court instructs the jury that the matter of being the agent of defendants is a question of fact (43) 110] AGENCY. [Ch 11 for them to determine from the testimony and in aid of their investigation they are instructed that an agent may be cre- ated by long acquiescence on the part of the principal, with knowledge of his acts as agent for said principal, as well as by express appointment; and that if by express agreement, it is so arranged between the parties that one shall be ad- vertised as the agent, but that another shall actually do the business, and this third person does transact the business, and becomes known as the agent of the principal by transacting their said business, then the said third person is their agent and the principal is estopped from denying it as to those who have acquired rights against said principal because of the acts of said agent.^ (110) The court instructs the jury that direct proof of agency may be dispensed with where the person alleged to be the principal has by his actions or words influenced the conduct of others so that a wrong would be done to those in- fluenced, if the alleged principal should be perinitted to show a state of facts inconsistent with his actions and words. And the court instructs the jury that if they believe from the evi- dence that (plaintiff had bought flour regularly from as the agent of the defendant for several years, and that the contracts made with had always been promptly com- plied with by the defendant), and if the jury believe from the evidence that ( acted as agent of defendant for several years in making sales of the class of articles which plaintiff bought, and that his contracts were always carried out by the defendant), then the jury may find that was the agent of the defendant and authorized to seU the goods described in the declaration to the plaintiff, although they may further find that was also a broker selling on commissions.* 1 Planters' Mut. Ins. Co. v. Lyons, Lindenthal & Co., 38 Tex. 253. 2 Haubelt v. Rea & Page Mill Co., 77 Mo. App. 672. (44) Ch. 11] AGENCY. |-111 Agency with regard to loan — Whether agent for borrower or lender. (Ill) The court instriicts the jury that this action is brought by plaintiff against defendant to enforce the pay- ment of two bonds and a mortgage given to secure the bonds executed by defendant and the defendant sets up the defense of payment. Defendant had entered into contracts with the city of for the building of and under this contract with the city of he was to be paid for his work when the assessments for the work should have been col- lected by the city, and defendant not having a sufficient amount of money to carry on his undertaking with the city applied to one S. to borrow money for him and a bond and mortgage were executed by the defendant to L., to be turned over to whoever should furnish the money. S. induced plaintiff to furnish the money required by the defendant and the arrangement between the defendant and S. was that the money furnished by the plaintiff should be repaid when S. should collect the assessments, and it seems that the plaintiff did not ask the delivery of the bond and mortgage which had already been drawn up and executed in favor of L., and did not insist on anything more than a general statement that the money furnished by him should be secured by mortgage. The money which was collected by S. on the assessments was not paid to plaintiff and for the purpose of this case the jury will regard such money as having been misappropriated. It was misappropriated at a time when S., was responsible for it. There is some evidence that plaintiff knew of the ar- rangement between the defendant and S. by which the moneys to be collected on assessments should be applied in payment of the loan made by the plaintiff. 'Now the court instructs the jury that it is for them to determine whether S. misap- propriated the moneys collected upon the assessment as the agent of defendant. If S. misappropriated such moneys as agent of defendant, then your verdict should be in favor of plaintiff, but if the jury find from the evidence that S. mis- (45) 112] AGENCY. [Ch. 11 appropriated the moneys collected upon assessments as the agent of plaintiff, then your verdict must be for the defend- ant.^ Termination of agency. (112) The court instructs the jury that the presumption that a fact once shown to have existed, continues, applies to the relation of principal and agent.* (113) The court instructs the jury that an agent cannot act in the business of his agency for himself and his principal at the same time and in the same transaction, and that if you believe from the evidence (that the plaintiff was employed by the defendant railroad company to purchase wood and ties for the use of the corporation and that the plaintiff accepted a commission from A., who desired to sell wood to the de- fendant, and that plaintiff advised the directors to make the purchase of A., without disclosing his interest and that under such advice defendant made the purchase at a higher price than it would otherwise have to do, then you are instructed that defendant was justified in discharging the plaintiff).* (114) The court instructs the jury that one who has dealt with an agent of another has a right to assume, if not other- wise informed, that the authority of the agent continues and revocation by the principal of the agent's authority will not affect the person so dealing with the agent unless such per- son has notice of the revocation, and if the jury believe from the evidence (that the plaintiff sold the [wood] described in the declaration to the defendant, and that under the terms of the contract the [wood] was to be delivered from time to time to the defendant, and that the plaintiff from time to time delivered the [wood] to A., the agent of the defendant, who was authorized to accept the [wood], but that before all the installments of the [wood] had been delivered the agency of « Brecht v. McParland, 187 Pa. St. 620. « Passin v. Hubbard,' 55 N. Y. 465. » Morrison v. Ogdensburg & L. C. R. Co., 52 Barb. 173. (46) Ch. 11] AGENCY. [115 A. was revoked by the defendant, but that plaintiff had no notice of the termination of the agency of A., but continued to deliver the final installments of the [wood] to A. as agent of defendant, then the jury are instructed that the acceptance of the [wood] by A. on behalf of the defendant bound the defendant).® (115) The court instructs the jury that the plaintiffs were employed by J. to work for the defendant mining corpora- tion at a time when J. was the authorized agent of the min- ing company and that plaintiffs had a right to suppose the same condition of things continued to exist after the employ- ment as existed at the time of the employment, unless they had notice to the contrary, or unless there was something in the circumstances surrounding the matter that was equivalent to notice to them, and when the defendant mining corpora- tion entered into a contract with J., by which the defendant ceased to operate its mine and J. assumed charge of the mine as an independent contractor, then it was the duty of the defendant corporation to the plaintiffs, who were in its em- ploy at the time they made the contract with J., to convey particular notice to the plaintiffs of this change. The rule is that when one has constituted and accredited another as his agent to carry on his business, the authority of the agent to bind his principal continues, even after actual revocation of such authority,^ unless notice of the revocation is given, and, as to persons who have been accustomed to deal with such an agent, until notice of revocation is brought home to them. When notice is sought to be inferred as a fact from circum- stances, it becomes a question for the jury. The court here thinks this is a question of fact and submits it to you, and the question is submitted to you as a matter of fact, whether this labor for which this suit is brought was done and per- formed under such circumstances as would operate as notice, or under such circumstances that it can be said that notice « McNellly V. Continental Life Ins. Co., 66 N. Y. 23. (47) 116] AGENCY. [Ch. 11 can be inferred on the part of these claimants of this change. If these parties had notice of this change, they cannot re- cover here, for it is undisputed that a change took place ; that the authority of J. was revoked, and he -entered into an in- dependent contract ; and the question here is, did these claim- ants have notice, or, under the circumstances surrounding them, can you infer from this evidence legitimately that they received notice? And the question is submitted to you as a matter of fact, Avhether the defendant gave such notice as a prudent man should have given.'' II. Rights and Liabilities op Pkincipai, as to Third Persons. Authority of agent to bind principal. (116) The court instructs the jury that if they believe from the evidence that the defendant gave authority to A. as his agent to sell the tract described in the declaration if a speedy sale could be effected, and that the plaintiff some two years and a half after the authority was given saw the writ- ten instructions which the defendant had given to A. and took legal advice on the effect of such instructions, and if the jury further believe from the evidence that plaintiff had been informed that if he purchased under such power he must run the risk of having his purchase confirmed by the defendant, and that accordingly the plaintiff took a bond of indemnity from A. against loss which might arise out of the purchase, then the authority conferred upon, A. by the de- fendant was not effective to convey any title to the plain- tiff.* (117) The court instructs the jury that even if they be- lieve from the evidence that S. did purchase the property for himself and L., yet if the jury believe, from the evidence, that L. did not authorize him to do so, L. is not bound by such purchase. That if the jury find that in the contract and arrangement, which resulted in the giving of the note in suit, I Touslgnant v. Shafer Iron Co., 96 Mich. S7. 8 Peabody v. Hoard, 46 111. 242. (4S) Ch. 11] AGENCY. [119 the business between L. and was done by S., and that said S. had no authority, as a general agent, from said L., beyond that resulting from their relation as general part- ners in the manufacture of , but only an authority to do that particular business, he (S.) would be, as far as this case is concerned, a special agent of L. in that business, and so far as the jury find that he (S.), in doing it, exceeded the authority and instructions given to him by L., L. would not be bound.' (118) The court instructs the jury that if they believe from the evidence that (A. was the general agent and man- ager of the defendant, and that A. had authority to execute a contract for the erection of a building in accordance with plans drafted by the architect, and that A. employed the plaintiff to act as architect, and that no person other than A. had authority to employ an architect, then the jury may find that A. had authority on behalf of defendant to employ the plaintiff as architect).*" Authority of real estate agent to make representations as to quantity of land sold. (119) The court instructs the jury that after defendant had put the matter of selling her land in Mr. S.'s hands, he had a conversation with J., the brother of defendant, in which J. suggested the propriety of employing E., who was a real estate broker, to effect the sale. Mr. S. assented read- ily to J.'s idea and gave him a more general authority, be- cause he said, "Employ two or three brokers, if necessary," and from that time forth he dismissed the same from his mind or at least took no further steps in regard to it, as de- fendant had, as she declares, dismissed it from her mind. J. then proceeded in the execution of this power to call upon E., and to acquaint him with the situation of the property, » Approved in Lytle v. Beyer, 33 Ohio St. 506. 10 Lippitt v. St. Louis Dressed Beef & Provision Co., 57 N. Y. Supp. 747, 27 Misc. Rep. 222. (49) Forms Inst.^-4. 119] AGENCY. [Ch. 11 giving him a circular which he had prepared, which contained a minute account of the property, among other things stat- ing in explicit terms that the ground contained seven acres. One of the questions in this case may be as to J.'s authority to do this much. It is not denied by the defendants, indeed, it is a part of this case or at least of their testimony, that J. was authorized to take whatever steps were necessary or to employ a real estate agent to effect the sale; but it does not necessarily follow that an authority to select a real -es- tate agent to bring about a sale will authorize the agent to take measures to effect such sale. At the same time when a man is employed to do a thing, it is generally implied or may be so, that he is to do what is requisite to render his employ- ment effectual; and without stating any proposition of law (it is a question for the jury to consider whether, if a man is told to select a real estate agent and employ him to sell a piece of property, that does or does not carry with it the duty to give a description of the property to the person so em- ployed), to some extent it would seem to be so, because he must necessarily say where the property is situated, as, for instance, whether it is in the town or in the country. It would not do to call upon a broker and say, "I want you to sell a house," without saying where the house was. Some description therefore must be given and the doubt is as to the extent. I suppose it is a matter of inference or for consid- eration by the jury, whether a person who is authorized to select a broker and employs him to sell a house, may not state the number of stories, whether it is of brick or of stone, and give him some general idea, because otherwise the broker would be comparatively uninformed of what might be mate- rial for him to know in negotiating the sale. I do not say that this would be necessary, because after the broker had been told where the buildings were he might look for himself, but on the other hand I certainly do not mean to tell the jury that a right to give some description of the property might not (50) Ch. 11] AGENCY. exist. J. certainly interpreted his authority in the largest sense. As I have already said, he gave the broker a minute de- scription of the house containing this more or less material fact, that the ground contained seven acres, and E., putting his interpretation upon the information he had received from G., as coming from a person duly authenticated by the family, pro- ceeded to advertise in the newspapers as a property of seven acres. Under this state of facts, the jury are instructed that it is for them to decide whether S., as defendant's agent so far empowered J., to act for defendant in the sale of the premises in question as to render defendant responsible for the representations of J., to the real estate broker E., and subsequent repetition of such statement by E., to the plain- tiff, that the property in question contained seven acres.-' ■' Authority of agent to receive payment of subscriptions. (120) The court instructs the jury that if the jury find from the evidence that — ; was a canvassing agent, ob- taining subscriptions for the plaintiff for books published by him and sold by subscription, and that said was re- stricted by the terms of his employment from collecting for any books or parts of books, except such as were delivered by him, — and they further find that said convassing agent never had possession of the parts and works for which this suit is brought, and did not deliver the same to the defend- ant, — ^then the court declares the law to be that the employ- ment of as canvassing agent gave him no authority to collect the money for which this suit is brought, and it de- volves upon the defendant to show that he had such author- Implied power of agent. (121) The court instructs the jury that the mere fact that 11 Griswold v. Gebbie, 126 Pa. St. 353. n Approved In Chambers v. Short, 79 Mo. 204. (51) 122] AGENCY. [Ch. 11 an agent is furnished by his principal with funds and in- structed to build a house upon lands of the principal with such funds, does not give the agent implied power to build a house upon credit.^* Implied power to borrow money. (122) The court instructs the jury that if you find that C. was an agent of defendants, but that express authority was not given to him, as such agent, to borrow money for defend- ants, then you may look to the contract between them as it may be shown, by the evidence, the nature and character of the business in which 0. was employed to act as agent, and all the transactions between them, and ascertain whether ov not it is to be fairly implied as contemplated by them or embraced in the scope of his employment as agreed on be- tween them, that he should have such power to borrow money to be used in such business.^* (123) The court instructs the jury that it is not necessary for plaintiff to show any express authority in 0. to borrow, money to render defendants liable. If money was borrowed by C. in the general course and conduct of the business of defendants, and defendants knew this fact and acquiesced in it, and the note sued on was given for money borrowed of plaintiff, by C, for the business of defendants, and the money was in good faith used in such business, and plaintiff had. no knowledge of any want of express authority on C.'s part to borrow money, then you will find for the plaintiff. ■"* Authority to warrant goods sold. (124) The court instructs the jury that if no express au- thority is given to a selling agent to warrant goods sold, it will be presumed that only such authority is conferred upon the selling agent as is in conformity to the customs and us- ages of the trade, in which the principal is engaged, and if " Proctor V. Tows, 115 111. 138. 1* Approved In Collins v. Cooper, 65 Tex. 4S0. IB Approved In Collins v. Cooper, 65 Tex. 460. (52) Ch. 11] AGENCY. ^ [126 you believe from the evidence (that the defendant gave hia agent power to sell wool oils as alleged in the declaration, and that the agent did not have express power to warrant goods sold, and if you further believe from the evidence that it was not the usage or custom of the trade or dealers in wool oils to warrant such oils on a sale, then you will find that the defendant's agent had no implied authority to sell with warranty to the plaintiff.)*' Power to collect cMms. (125) The court instructs the jury that the wife of an attorney has no implied authority to receive payment of claims put into his hands for collection and if they believe from the evidence that (during the absence of the plaintiff's attorney from home, his wife received and opened a letter ad- dressed to him containing a draft upon defendant payable to his order for collection, and that the defendant paid to the wife of the attorney the draft, and tlrat it did not appear that she had any general or special authority to act for her husband in his business affairs, then the wife of the attorney had no authority to receive payment of the draft, though the jury may believe from the evidence that the attorney had placed some individual claims for collection in the hands of the defendant and instructed him to pay over to her any mon- eys that should come to the hands of the defendant for the at- torney). ■'^^ Unauthorized acts of agent — ^Apparent authority. (126) The court instructs the jury that an agent may bind his principal within the limits of the authority with which he has apparently been clothed in respect to the subject matter of his agency and for the protection of innocent third persons. The authority of an agent is enlarged by implication when the principal permits the agent to do acts not expressly authorized and if through inattention or otherwise, the principal suffers i« Wait V. Borne, 7 N. Y. St, Rep. 113, 26 Wkly. Dig. 262. " Day V. Boyd, 53 Tenn. (6 Heisk.) 458. (53J 12?J: AGENCY. [Ch. 11 his agent to act beyond his authority without objection, he is bound to those who are not aware of any want of authority to the same extent as if the requisite power had been directly conferred.-'* (127) The court instructs the jury that in order to create an agency by representation or estoppel it is essential that the principal should have knowledge of the assumption by the agent of the powers he has exercised.^* (128) The court instructs the jury that one who deals with an agent is put upon inquiry as to the extent of the agent's authority, and assumes the risk of the agent having authority to bind his principal in the transaction in which they are engaged ; but if the principal has held out the agent as having authority to transact the business, or knowingly permitted the agent to so act, the agent will be conclusively presumed to have the authority, whether it has actually been conferred upon him or not.^" (129) The court instructs the jury that the appearance of the authority of an agent to act, which will be sufficient to estop the principal as against third persons, need not arise from transactions had between persons affected by the agent's acts and the principal. The presumption of authority ma^• be inferred from the agent's acts in other transactions.^* (130) The court instructs the jury that if they believe from the evidence that (defendant kept a grocery" store as alleged in the complaint, and that defendant's son was in and about the store, sold goods, gave orders to traveling salesmen for goods, and ordered goods from other houses in defend- ant's name, and that the defendant's son did not profess to do business on his o-mi account, and if the jury further believe i» Hanover Nat. Bank v. American Dock & Trust Co., 148 N. Y. 612. i» First Nat. Bank of Mlddletown v. Council Bluffs City Water Works, 56 Hun (N. Y.) 412. 20 Approved In Muth v. St. Louis Trust Co., 94 Mo. App. 94 4 Bank. Cas. Ann. 416, 21 Second Nat. Bank v. Pettier Mfg. Ca^JLS N. Y. St. Rep 954 (54) Ch.JlJ, AGENCY. [134 from the eviderice ■ that defendant's son ordered from the plaintiff the (cigars) in question then the jury will be war- ranted in inferring that the son had authority to bind the de- fendant by an agreement to purchase the cigars so ordered).*^ (131) The court instructs the jury that if they believe from the evidence that the defendant held (A) out to the world as his clerk and agent in buying and selling goods for the defendant and that (A) was known as such agent by the plaintiff and that the bill of goods sued for in this case was purchased by (A) from plaintiff and that (A) acted as agent in buying such goods, on account of the defendant, then de- fendant is legally liable to plaintiff for the goods so pur- chased, notwithstanding the jury may believe that defend- ant had given some private instructions to (A) limiting (A's) authority, or notwithstanding the jury may believe from the evidence that (A) appropriated the goods so pur- cha,sed to his own use.^^ (132) The court instructs the jury that where an agent is appointed for the sale of lands and his authority is a mat- ter of law and public record, persons dealing with such agent must be presumed to know the extent of the agent's authority in the premises.^* (133) The court instructs the jury that in many cases a principal is responsible for his agent's act, if it is within the general scope of the agent's employment, though it is in ex- cess of the agent's authority, but that this is only true a& between the principal and third persons when it is necessai y to apply the maxim that where one of two innocent persons must suffer a loss because of fraud or the wrongful act of a third, that one must suffer the loss whose negligence made it possible for the loss to occur.^" (134) The court instructs the jury that if they believe S2 Thurber & Co. v. Anderson, 88 111. 167. 2« Doan V. Duncan, 17 111. 272. 2* Dart V. Hercules, 57 111. 446. 2IS Clark v. Metropolitan Bank, 10 Super. Ct. (3 Duer) 241, (55) 135] AGENCY. [Ch. 11 from the evidence that plaintiffa had in their employ one A as a traveling salesman with power to solicit orders for lum- ber and to agree on the price and to direct shipment of the lumber so ordered from the yard of plaintiffs and that A had authority from plaintiffs to buy lumber from other deal- ers on the credit of A for the purpose of filling orders which he might obtain on behalf of plaintiffs, and if the jury fur- ther believe from the evidence that after A had been in plain- tiffs' employ for a number of years and had made many sales to the defendant he falsely represented that the plaintiffs had authorized him to deal on his own account in such lumber as plaintiffs did not have on hand and that the defendant be- lieved the representations of A and gave him orders which A was to fill on his own account, which A filled in part by causing lumber to be shipped from plaintiffs' yard, and if the jury further believe from the evidence that A concealed this transaction from the plaintiffs and plaintiffs never did or permitted anything which would lead the defendant to suppose that the plaintiffs permitted A to sell lumber on his own account or to corroborate A's statement to that effect, then said act of A of shipping lumber from plaintiffs' yard to fill an order which A pretended to be filling on his own account was not within the apparent scope of A's authority and plaintiffs are entitled to recover from defendant the value of the lumber so sold by A upon his own account, though defendant may have paid A for the lumber."' Same — Acting upon appearance of authority as essential ele- ment of estoppel. (135) The court instructs the jury that apparent author- ity operates only by way of estoppel and can take the place of real authority only when the person claiming benefits from the exercise of such apparent authority has acted upon the appearance and if the jury believe from the evidence that the (defendant bank took drafts from plaintiff's clerk which 2° Sage T. Shephard & Morris Lumber Co., 158 N. Y. 672. (56) Ch; 11] AGENCY. [137 had been indorsed by the clerk without authority and that the defendant bank had no knowledge of any of the circum- stances alleged by the bank to show the apparent authority of plaintilf' s clerk to indorse, but simply took the drafts upon the clerk's indorsement, then the defendant bank cannot al- lege that it was protected by the apparent authority of plain- tiff's clerk to indorse the drafts alleged to have been con- verted by the bank).^^ Same — ^Violation by agent of secret instructions. (136) The court instructs the jury that as a general rule private instructions of the principal limiting the authority of his agent will not affect one who deals with the agent in ig- norance of the special instructions and if the jury believe from the evidence that C. borrowed money from plaintiff, claiming to act as agent of defendants, and if such act of bor- rowing was within the usual and ordinary scope or purview of the business in which 0. was employed, and which he was authorized by defendants to conduct and carry on, and plain- tiff loaned the money to C. for the benefit of defendants, then defendants would be bound for such money, even if, by the private contract between defendants and C, he was not au- thorized to borrow money, unless plaintiff knew he was not so authorized when he loaned the money.^* (137) The court instructs the jury that if they believe from the evidence that the plaintiffs' fertilizers were first introduced into this community for sale 19 — , and further believe that it was the custom or usage of the farmers in this section not to buy any fertilizer, when first introduced, upon the analysis thereof, but to require a warranty that the said fertilizer be as good as any other fertilizer on the mar- ket, dollar for dollar, as crop producing, and if they further believe that S. was authorized by plaintiff to sell fertilizer and warranted the fertilizer which he sold to defendant, 2' People V. Bank of North America, 75 N. Y. 457. 28 Approved in Collins v. Cooper, 65 Tex. 460. ■(57) ISgJ i AGENCY. [Ch. 11 a^ alleged in his plea, then they are instructed that the plain- tiffs are bound by such warranty, although they may further believe that he was restricted from making such warranty by a:contract entered into between the plaintiffs and said S., un- less they further find from the evidence that the said written restriction was known to the said defendant at the time he made the said purchase.^* Same — Effect of representations by agent as to his authority. (138) The court instructs the jury that where the princi- pal has clothed his agent with power to do an act, upon its being shown that some extrinsic fact exists which fact must rest necessarily and peculiarly within the knowledge of the agent and of the existence of which fact the execution of the power is itself a representation, a third person dealing with the agent in entire good faith pursuant to the apparent power may rely upon the representations and the principal is es- topped from denying its truth to the prejudice of such third person and if the jury believe from the evidence that (de- fendant carrier through its freight agent issued a bill of lad- ing purporting to be for goods received by the defendant car- rier, and that such bill of lading was subsequently trans- ferred to plaintiff in good faith for a valuable consideration and if the jury further believe from the evidence that such bill of lading was issued by the freight agent without in fact having received the goods which the bill of lading represent- ed, then the defendant cannot allege that the freight agent had no power to issue a bill of lading without having received thci goods) .^" Apparent authority with reference to transfer of princiual's property. (139) The court instructs the ]ury that though a man cannot be deprived of his property without his consent, and 19 Reese & Co. v. Bates, 94 Va. 321. 80 Bank of Batavla v. New York, L. E. etc., R. Co., 106 N. Y. 195; New York & N. H. R. Co. v. Schuyler, 34 N. Y. 30. (58) Ch. 113j AGENCY. [114 a principal is not bound by tbe unautborized act of bis agent, yet be is bound by every act on bis own part, wbicb gives bis agent an apparent autbority upon wbicb otber persons rely to do tbe act, tbe validity of wbicb may be in question — and tberefore tbe inquiry in sucb cases is, wbetber tbe agent's possession of tbe property, or of tbe documentary evidence of title tbereto, was necessary for the ordinary business of life, or authorized by tbe custom of trade, or wbetber tbe pos- session and otber circumstances of tbe transaction, were un- usual or unnecessary, and of a nature to mislead otber persons as to tbe title to tbe property.** Liability of principal for torts of agent. (140) Tbe court instructs tbe jury tbat a principal is lia- ble for tbe torts of bis agent committed in tbe course of bis employment, altbougb tbe principal did not authorize or par- ticipate in tbe tort, and if the jury believe from the evidence that (here state tbe facts) tbe defendant sent bis servants to load tbe car described in the declaration, with lumber, and tbat while in tbe process of loading the car with lumber, tbe servants of defendant undertook to move the car, and set tbe car in motion without making any provision whatever for stopping the car, and if tbe jury further believe from the evidence that tbe car so set in motion ran against another car under wbicb plaintiff was for the purpose of making re- pairs as a servant of the railroad company, and that because of such collision the plaintiff received the injuries sued for in this case, then the jury may find tbe defendant liable for tbe injuries to plaintiff.^^ Liability for fraud of agent. (141) The court instructs tbe jury tbat if defendant em- ployed and authorized K. to sell tbe and in pursuan of that autbority E. sold tbe and induced tbe plai »i Approved In Burton v. Curyea, 40 111. 320. «2 Noble V. CuBUingbam, 74 111. 51. (59) 142] AGENCY. [Ch. 11 tifF to buy, and made false and fraudulent representations about the , upon which the plaintiff relied and which induced him to purchase, then the defendant would be re- sponsible for that fraud, notwithstanding there were no in- structions given to E. by the defendant which authorized him to make fraudulent representations, and notwithstanding the defendant did not know that he practiced those fraudulent representations. Employing him as agent, or as his agent to do that thing, he became responsible for the methods whioi his agent adopted in doing that thing. * * * jf ^he representations were false in fact, and K. had no knowledge personally of the truth of these representations, but derived his information from others upon those facts, he, or the person for whom he was acting as agent in the same would be liable to an action for deceit.*^ Ratification. (142) The court instructs the jury that if they believe from the evidence that the lot described in the declaration was placed by the plaintiff in the hands of B., as a real estate agent, to sell the same, and that said B. authorized W. to sell the same, and paid him one half of the commission for selling the lot; and if they furthermore believe from the evidence that the sale was in fact thus made, and that the plaintiff, is now seeking to enforce the said sale, then they are instructed that the plaintiff has ratified the acts of said W., and is as responsible therefor, as well as for such representations as the jury believe were made by said W., as he would have been if they had been done and made by himself.** (143) The court instructs the jury that if they believe from the evidence that (it was the duty of A to attend to the payment of rents on behalf of the defendant, and that A in the absence of funds, borrowed the amount necessary from the plaintiff as alleged in the declaration, to pay the rents on «a Approved In Haskell v. Starblrd, 152 Mass. 117. 84 Tyson v. Williamson, 96 Va. 636. (60) Ch. 11] AGENCY. [146 behalf of the defendant, and if the jury believe from the evi- dence that the money so borrowed was disbursed by A in dis- charge of his duty for the benefit of the defendant and in the payment of rents and that the benefit of the money so bor- rowed has ever since been retained by the defendant, then de- fendant is liable to the plaintiff for the money so borrowed) .*' (144) The court instructs the jury that if they believe from the evidence that (one (A) as alleged in the declara- tion entered into an agreement with defendant to submit the matters forming the subject of this litigation to arbitration, and that (A) represented that he had authority to so enter into such an agreement on behalf of plaintiff, and if the jury believe from the evidence that (A) had no such authority, yet if they believe that plaintiff was informed of the agreement to submit to arbitration and did not disafiirm, but subsequently brought suit upon the award made by the arbitrators then the agreement to submit must be deemed to have been ratified by the plaintiff) .3« (145) The court instructs the jury if they believe from the evidence that A assumed to act on behalf of the defendant and induced plaintiff to pay to the defendant moneys as al- leged in the declaration for the purchase of an interest in the land described in the declaration, and that A made the fabe representations alleged in the declaration to induce the pay- ment by plaintiff, and that plaintiff was induced by such false representations to pay over money and if the jury believe from the evidence that defendant received the money so pro- cured from the plaintiff and defendant had knowledge of the representations made by A, then the jury are instructed that the defendant ratified the sale by A and the false representa- tions made by him in regard thereto.^'' Same — Of fraudulent representations. (146) The court instructs the jury that if they believe »» Hearne v. Keene, 18 Sup. Ct. (5 Bosw.) 579. »• Connett v. City of Chicago, 114 111. 233. f LesUe v. Wylie, 47 N. Y. 648. (61) 1.47] AGENCY. [Cb. 11 from the evidence that the lot described in the declaration was placed by plaintiff in the hands of B. as his agent, for sale, and that he sold the same to W., and that W. sold it to the defendant without disclosing to defendant he was the owner, but. had defendant to execute the note, the foundation of this suit, to plaintiff ; and if they further believe that W. made representations to the defendant of material facts as induce- ments to purchase the said lot, and they believe those repre- sentations were in fact untrue, and said representations were reasonably relied upon by defendant to his prejudice, then the jury is authorized to allow the defendant such set-off against the plaintiff's demand as they deem just and proper.** Same — ^Acceptance of benefits. (147) The court instructs the jury that if they believe from the evidence that the defendant had full knowledge of all the material facts affecting his rights and liabilities grow- ing out of the agreement sought to be enforced in this suit against him by the plaintiff, and that with such knowledge, the defendant received the benefit of the agreement and that the agreement was made on his behalf by one purporting to be his agent, then the court instructs the jury that defendant is precluded by the acceptance of such benefits from question- ing the pretended agent's authority in the transaction.** (148) The court instructs the jury that to hold a prin- cipal to a contract made by an agent without authority, on the ground of a. ratification by acts of the principal, it must be shown satisfactorily that at the time of the doing of the acts relied on, the principal had full knowledge of what the con- tract was and intended his acts to relate to the performance of it. Receiving money generally and without knowledge that it is paid upon the contract is no ratification.*" ss Approved In Tyson v. Williamson, 96 Va. 636. 38 Jones V. Consolidated P. & F. Co., 100 111. App. 89. 40 Trustees, etc., ot Town of Basthampton v. Bowman, 186 N. T. 521. (62) iih. 11] AGENCY. ;£! (149.) The. court instructs the jury that if C* borrowed money, from plaintiff for the benefit of defendants., without authority from defendants, either express or implied, and if defendants, knowing that such money had been borrowed, ratified and acquiesced in the act of C, or knowing such money to be borrowed, accepted the benefit of it, then they would be held bound by the act of C, as much as if they had authorized it before it was done.*^ (150) The court instructs the jury that if the jury believe from the evidence that plaintiff, authorized C, his agent to rent the house in question to defendant, for but one year, but that said agent rented it for two years, as alleged by the de- fendant's witnesses and that the defendant held the same for two years and that during the second year of the said tenancy plaintiff treated the defendant as his tenant by receiving the rent originally agreed upon, then the jury may infer that the landlord ratified the contract for the two years lease and may find for the defendant.*^ (151) The court instructs the jury that if they believe from the evidence that the lot described in the declaration was placed by the plaintiff in the hands of B., as a real estate agent, to sell the same, and that said B. authorized W. to sell the same, and paid him one half of the commission for selling the lot; and if they furthermore believe from the evidence that the sale was in fact thus made, and that W., the plaintiff, is now seeking to enforce the said sale, then they are in- structed that the plaintiff has ratified the acts of said W., and is as responsible therefor, as well as for such representations as the jury believe were made by said W., as he would have been if they had been done and made by himself.** Same — ^By suing on contract. (152) The court instructs the jury in bringing the action *i Approved In Collins v. Cooper, 65 Tex. 460. «2 Approved in Reynolds v. Davison, 34 Md. 662. ♦3 Approved in Tyson v. Williamson, 96 Va. 636. (63) 153] AGENCY. [Ch. IJ upon these notes, the G. S. Bank and this plaintiff adopt and ratify all the acts of its agents or officers by which the notes in question came into the bank; that is, when this plaintiff seeks to recover upon these notes from this defendant, it is bound by what the evidence in the case shows to be the facts connected with the transaction.** Same — Knowledge of facts. (153) The court instructs the jury that if they believe from the evidence that A entered into an agreement on be- half of defendant to purchase the goods described in the declaration from the plaintiff, and if the jury believe from the evidence that A did not have authority to make the pur- chase on the terms on which he made the purchase, and if de- fendant was not made acquainted with the facts in the case and did not know of the agreement with the plaintiff, the mere fact that defendant accepted the goods so purchased from A will not warrant the jury in inferring ratification.*'' (154) The court instructs the jury that where the prin- cipal knows that his name has been signed to a certain bond by one assuming to act as his agent, though the principal does not know the exact terms of the bond or the extent of his lia- bility thereon, he can not escape the consequences of his silence by purposely closing his eyes to the means of informa- tion within his control regarding the details.*® (155) The court instructs the jury that if they believe from the evidence that (defendant directed his agent to get the bonds described in the declaration from plaintiff, who had refused to deliver them up and if the jury believe from the evidence that it was agreed between the agent and the plaintiff to pay the plaintiff a certain sum and to cancel a note upon which the plaintiff was liable if plaintiff would deliver up the bonds ; and that thereupon the bonds were de- ** Approved In Chicago Title & Trust Co. v. Brady, 165 Mo. 197. «BParwell v. Meyer, 35 111. 40. «6 Lynch v. Smyth, 25 Colo. 103. (64) Ch. 11] AGENCY. [157 posited by the plaintiff in escrow, and if the jury believe further from the evidence that the agent telegraphed to the defendant that the bonds would be turned over to defendant upon the signing of an agreement to be sent to defendant without stating the consideration to be paid to the plaintiff and that the defendant immediately replied directing his agent to secure said bonds, and if the jury further believe from the evidence that plaintiff had an interest in the bonds, then the jury are instructed that defendant ratified the acts of his agent in agreeing to pay the consideration which, it is alleged, he promised to plaintiff).*'' Same — Effect of ignorance of immaterial fact. (156) The court instructs the jury that the mere fact that the principal was not informed of an immaterial fact at the time of the alleged ratification, will not defeat it and that if you believe from the evidence (that the plaintiff empowered A, as his agent, to execute a lease of the premises described in the declaration, and that after the execution of the lease plaintiff accepted rent from the lessee and visited the prem- ises and witnessed certain improvements made thereon by the lessee, then you are instructed that the plaintiff cannot allege a departure from the power merely because at the time of the making of the lease, A did not disclose to the plaintiff that the lease was given upon the condition of securing the con- sent of the plaintiff).** Same — Of warranty made on sale of goods. (157) The court instructs the jury that when there is a mere special authority to sell particular property of a kind not usually sold with warranty, the buyer who alleges a war- ranty by the agent of the seller must show that the engage- ment was one he was empowered to make in behalf of his principal. The receipt of the proceeds of sale in ignorance i^ stokes V. Mackay, 46 N. Y. St. Rep. 940. 48 Clark V. Hyatt, 55 Super. Ct. (23 J. & S.) 98. (65) Forms Inst. — 5. ISS] AGENCY. [Ch. 11 of any such undertaking is not an extension of the agent's authority and if the jury believe from the evidence that (A acted on behalf of the defendant as alleged in the declaration and sold the goods described in the declaration to the plaintiff and that defendant ratified the sale, the mere fact of ratifica- tion of such sale, if A had no original authority to make it, woiild not bind the defendant by a warranty made by A, if the jury further find from the evidence that the goods so sold were not of the description usually sold with war- ranty, and that the defendant had no knowledge of the war- ranty).** Same — liability for wrongful acts of agent. (158) The court instructs the jury that any proposition made by the defendant to the plaintiff, for the purpose of compromising the suit, unless his proposition was accepted b:v the plaintiff, would not be a ratification of the alleged wrongful act of defendant's agent, for which this suit is brought, and the jury should not take any such proposition of compromise into consideration, unless they believe from the evidence that such proposition was accepted by the plaintiff.^" Batification in part. (159) The court instructs the jury that a principal can- not affirm an act of his agent in part and disaffirm as to the residue, and the defendant herein is not to be allowed to avail himself of the benefits of M's acts wherein they inure to his benefit and to ignore and disafiirm the acts of said M. when they may operate to his prejudice provided M. has acted within the scope of such agency.''* Notice to agent. (160) The court instructs the jury that notice to an agent is in general notice to the principal, if the agent acquires *» Bierman v. City Mills Co., 151 N. Y. 482. »« Paulln V. Howser, 63 111. 312. 01 Planters' Mut. Ins. Co. v. Lyons, Lindenthal & Co., 38 Tex. 253. (66) Ch. 11] AGENCY. [163 knowledge of the fact said to be brought borne to the prin- cipal while acting for the principal in the course of the very transaction which was the subject of the suit.^^ (161) The court instructs the jury that notice to an agent which would be binding on his principal must be received by the agent while engaged in the business of the principal, or if not so received must be present in his mind at the time of his acting as agent in the transaction to which the notice re- lates.^^ (162) The court instructs the jury that if the agent has no legal right to disclose a fact to his principal, the pre- sumption that the agent has communicated all material facts relating to the subject of the agency to the principal will not prevail.^* (163) The court instructs the jury that the rule that knowledge of the agent is imputable to his principal applies only so long as the agent acts within the scope of his em- ployment in good faith and in the interest of his principal, but that just as soon as the agent forms a purpose of dealing with his principal's property for his own benefit or advantage or for the benefit and advantage of other persons, who are opposed in interest, ho ceases to be an agent acting in good faith for the interest of his principal and his action there- after based upon such purpose, must be deemed to be in fraud of the rights of his principal and the presumption that he has disclosed all the facts which have come to his knowl- edge no longer prevails and if the jury believe from the evi- dence (that A was given authority by the plaintiff to deposit plaintiff's moneys as alleged in the declaration with the de- fendant and to receive checks of the defendant on behalf of the plaintiff and that A deposited the money to his own 62 Bank of V. S. v. Davis, 2 Hill (N. Y.) 451; Ingalls v. Morgan, 10 N. Y. (6 Seld.) 178; Henry v. Allen, 151 N. Y. 1. 53 Constant v. University of Rochester, 111 N. Y. 604, 17 Wkly. Dig. 161. " Henry v. Allen, 151 N. Y. L (6Y) 164] AGENCY. [Ch. U credit and entered into an agreement with the defendant that the checks should not take effect according to their legal im- port, the presumption will be that A did not disclose such agreement to the plaintiff) .^^ Rights of undisclosed principal as to third persons. (164) The court instructs the jury that if they believe from the evidence that servants of plaintiff solicited the de- fendant as alleged in the declaration for an order for (up- holstering) and that the work did not require any special knowledge or skill and if the jury believe from the evidence that defendant did not rely upon the personal services of the said servants of plantiff, then though the fact that said servants were working in the interests of plaintiff was not disclosed at the time of the giving of the order, the plaintiff may recover from the defendant for work done for him in pursuance of the order given by him.^® (165) The court instructs the jury that if they believe from the evidence that the contract in suit to furnish ma- terials and render services for defendant was made by A and that A was duly authorized by the plaintiff to make the contract, though A did not disclose the fact of his agency for plaintiff, then plaintiff may enforce such contract against the defendant on the performance of the contract subject to any defenses available against A.^' liability of undisclosed principal to third person. (166) The court instructs the jury that the liability of an undisclosed principal depends on the agent having acted in the business intrusted to him according to his power and that if the jury believe from the evidence that (the defendant furnished A money with which to make a purchase and that A bought the goods described in the declaration as alleged tBBlenenstok v. Ammidown, 155 N. Y. 47; Benedict v. Arnoux, 154 N. Y. 715; Henry v. Allen, 151 N. Y. 1. «« Wiehle v. Safford, 27 Misc. Eep. 562. »7 Van Lien v. Byrnes, 1 Hilt. (N. Y.) 133. (68) Ch. 11] AGENCY. [169 therein from the plaintiff on credit and that plaintiff had no knowledge that A was purchasing for a principal, then the plaintiff cannot recover from the defendant for the goods so sold on credit to A).*** (167) The court instructs the jury that if they believe from the evidence that A bought the goods described in the declaration from the plaintiff, and that A used the style of agent in the transaction and that A was in fact acting as agent on behalf of the defendant, though A did not disclose upon whose behalf he was acting at the time of making the contract of purchase, and if the jury believe from the evi- dence that credit was not given by plaintiff exclusively to A, then plaintiff may elect to hold defendant liable for the goods.'® III. Rights and Liabilities op Agent as to Thied Febsons. Liability of agent to third person. (168) The court instructs the jury that if they believe from the evidence that the defendant as alleged in the declara- tion, claimed to be the agent of (A) and to have authority to make the contract sued on on behalf of A and that the defendant so acting on behalf of A ordered the work, for the value of which this suit is brought, and if the jury believe from the evidence that the defendant was directed by A to order the work on the credit of and not on the credit of A, then the jury will find the defendant liable for the work so ordered.*" (169) The court instructs the jury that the liability of one who without authority assumes to act as agent to respond as a principal to the party dealing with him, is founded on his warranty as to his agency and cannot be extended to a case where the limits of his agency or the fact that he is not esLalngv. Butler, 37 Hun (N. Y.) 144; Id., 108 N. Y. 637. 59 Meeker v. Claghorn, 44 N. Y. 349; Fish v. Wood, 4 B. D. Smith (N. Y.) 327; Kayton v. Barnett, 116 N. Y. 625. eo New York Bank Note Co. v. McKelge, 31 App. Dlv. 188. (69) 170] AGENCY. [Ch. 11 an agent is known to the party with whom he deals, nor to a case where the agent is induced to enter into a contract on the suggestion of the party with whom he deals that the al- leged principal approves the transaction.^^ Eights and liabilities of agent where agency is undisclosed. (170) The court instructs the jury that the general rule ia that one who acts as agent for another in order to release himself from liability should disclose his principal because otherwise it will be presumed that he intended to bind him- self personally. It is not the duty of one dealing with an agent to find out whether he is acting in the transaction in the capacity of agent, or whether he is acting as principal, but the duty devolves upon the agent, if he desires to relieve himself of personal liability, to disclose the name of his principal in the transaction and if the jury believe from the evidence that the defendant (contracted with the plaintiff as real estate broker as alleged in the declaration to procure a purchaser for the real estate described in the declaration, and the defendant did not disclose the fact that he was acting as agent until the time of the execution of the contract of sale, then the defendant will be individually liable for the commissions of the plaintiff ).«2 IV. MuTTTAi. Rights and Liabilities of Pbincipal and Agent. Skill and diligence reciuired from agent. (171) The court instructs the jury that the agent's omis- sion to exercise skill and diligence in the performance of a duty undertaken for his principal renders him liable for re- sultant damage, even if he acted in good faith, and if the jury believe from the evidence (that the defendant in pursuance of his agency loaned plaintiff's moneys as alleged in the declaration on securities which proved to be forged and that the defendant made no inquiries of the company which pur- ei Aspinwall v. Torrence, 1 Lans. (N. Y.) 381; Id., 57 N. Y. 331. 62 Whiting V. Saunders, 23 Misc. Rep. (N. Y.) 332. (TO) Ch. 11] AGENCY. [174 ported to issue the securities as to their genuineness, but relied solely on the standing of the firm to which he loaned the moneys of plaintiff, then the jury may find the defendant guilty of negligence in loaning plaintiff's moneys on such forged securities and charge him with the amount of the loan, if the jury further find from the evidence that the loan was lost by reason of the worthless securities.)^' Inability of agent to make profits at expense of principal. (172) The court instructs the jury that if an agent makes any profits in the transactions growing out of his agency, by any concealed management in either buying or selling, or other transaction on account of his principal, the profits will belong exclusively to the principal.** (173) The court instructs the jury that if they believe from the evidence that the defendant received and accepted a power of attorney from the plaintiff to make a purchase of the land described in the declaration, then plaintiff became entitled to all of the skill, ability and industry which de- fendant possessed and could bring to bear in making an ad- vantageous purchase on behalf of plaintiff, and that plaintiff was entitled to have the property at the price at which upon the exercise of such skill, ability and industry defendant pur- chased it from the owner.*' (174) The court instructs the jury that if they believe from the evidence that defendant received a power of attorney from the plaintiff to purchase the land described in the declaration, and that defendant made a contract with R to purchase such land (at $12 per acre), and if the jury believe from the evidence that the defendant charged the plitintiff ($15 per acre) for the land which he had so purchased and received the money from the plaintiff, and if the jury further believe from the evidence that the defendant acted as agent «s Isham v. Post, 71 Hun (N. Y.) 184. 84 Cottom V. Holliday, 59 III. 176. 65 Cottom V. Holliday, 59 111. 176. (71) 175] AGBNCT. [Ch. 11 for E in the sale of the land, as well as agent for the plaintiff in the purchase, still the plaintiff will be entitled to recoyer for the difference between the price at which the defendant actually purchased the land and the price which he charged to the plaintiff if the jury believe from the evidence that de- fendant demanded and received from the plaintiff more than the actual purchase price of the land.*^ I 66 Adverse interest. (175) The court instructs the jury that an agent, in the ordinary acceptance of the term, cannot be the agent of two parties, having adverse interests, without the consent of both ; because when he is entrusted with a discretion in buying and selling, he must exercise that discretion and judgment for the beneni of the person employing him. But where he is not invested with a discretion by one of the parties, but his in- structions are fixed and determined by the one, he may then, without any violation of his duties, receive an employment from the other party having adverse interests, and negotiate the affair between the parties to a conclusion; because, as to one of *-hem, he cannot change the terms of the proposal, and, therefore, he may act for another, in accepting the terms so fijsed and determined. In such a case, his engagement is in a manner two-fold, and in this capacity he may bring about the sale or exchange desired by both parties, and claim a com- pensation from each.*^ (176) The court instructs the jury that if you shall find from the evidence, that J., plaintiff, agreed with the de- fendants, that they should take and sell for plaintiff certain of the lots, then being offered for sale by plaintiff, for a cer- tain and definite price fixed and agreed upon by and be- tween the defendants and said J., plaintiff, for which the de- fendants were to take and receive an agreed commission, viz., I 68 Cottom V. HoUlday, 59 111. 176. OT Approved in Alexander v. Northwestern Christian University, 57 Ind. 466. (72) Ch. 11] AGENCY. [177 on the purchase price, and that defendants have sold said lota for the agreed price, and have fully accounted to plaintiff for the proceeds received therefor, less the stipulated commission, then they are not liable to plaintiff in this action although they may have received from the purchasers of said lots a sum for conducting the negotiations, receiving and paying out the notes and money, and superintending the transactions, and receiving the deeds and other papers for them.** Ratification of violation of instruction — Knowledge of facts. (177) The court instructs the jury that if they believe from the evidence that the plaintiff sent the bill of lading de- scribed in the declaration to the defendant bank to be de- livered to A on the payment by A of a sight draft and the acceptance of a time draft and that defendant bank surrender- ed the bill of lading solely on the payment of the sight draft and because A claimed that the goods which he had purchased from plaintiff were not as they were warranted, with the un- derstanding that the amount of the balance due to the plaintiff was to be not the amount evidenced by the time draft but such amount as might be determined between the parties to the sale in the future, and if the jury further believe from the evidence that plaintiff accepted the proceeds of the sight draft from defendant bank with knowledge that A had refused to accept the time draft, and that the bill of lading had been de- livered, but if the jury further believe from the evidence that plaintiff knew nothing about the agreement that the bal- ance due from A should be ascertained by future adjustment, then the jury will not be warranted in inferring a ratifica- tion by the plaintiff of the act of defendant bank in surrender- ing the bill of lading without securing the acceptance of the time draft.** •» Approved In Alexander v. Northwestern Christian University, 57 Ind. 466. «» Oxford Lake Line v. First Nat. Bank, 40 Fla. 349. (73) 178] ALTERATION OF INSTRUMENTS. [Ch. 12 CHAPTER XII. ALTERATION OF INSTRUMENTS. Date of note, 178. Consideration of instrument, 179. Mode of payment, 180. Signatures and indorsements, 181. Provisions as to interest, 182-186. Attacliment of seal, 187-189. Ratification of waiver of alteration, 190, 191. Same — Extension of time, 192. Alterations made by mistake, 193. Whether alteration made is such as to excite suspicion and pro- voke inquiry, 194. Burden of proof to explain alterations, 195, 196. Sate of note. (178) The court instructs the jury that if you find from the evidence that the plaintiff (state the particular in which the alteration consisted, as changed the date of the note from Dec. 1, 1892, to Jan. 1, 1893) and if you find from the evidence that the defendant did not consent to the making of such alteration then your verdict will be for the defend- ant.-' Consideration of instrument. (179) The court instructs the jury that a change in the consideration of an instrument is a material alteration and if you believe from the evidence that (here state facts of change as to consideration of instruments, as where a woman executes a bond and mortgage and entrusts them to her hus- band for delivery, and he before delivery alters the bond by raising the amount and the mortgage by raising the consid- eration without her consent or subsequent ratification) there is a material alteration, and your verdict will be for the de- fendant.^ 1 First Nat. Bank v. Payne, 19 Ky. Law Rep. 839. 2 Cheek v. Nail, 112 N. C. 370. (74) Ch. 12] ALTERATION OF INSTRUMEN'TS. [183 Mode of payment. (180) The court instructs the jury that an alteration as to the mode of payment is a material alteration and that if you believe from the evidence (here state facts, as striking out the words "in gold or its equivalent" from a promissory note, in the clause for the payment of interest), and you believe from the evidence that the alteration was made with- out consent of the surety thereon, your verdict will be for defendant.* Signatures and indorsements. (181) The court instructs the jury that an alteration to be material so as to invalidate the instrument must change the effect of the instrument and though you may believe from the evidence that the alteration consisted in adding words of description to the name of the payee, that fact will not invalidate the instrument as the effect of the instrument is not thereby changed.* Provisions as to interest. (182) The court instructs the jury that an alteration as to the amount of a note is a material alteration and that if you believe from the evidence (here state the facts, as the addition of the words "with interest" or the insertion of the words "with interest after six months" in a note without maker's consent) then your verdict will be for the defend- ant.» (183) The court instructs the jury that if you find from the evidence that (here state the facts, as that the time whan the interest should commence to run is changed "from ma- turity" to "from date") then your verdict will be for the de- fendant.® • Church V. Howard, 17 Hue (N. T.) 5. *Casto T. Evinger, 17 Ind. App. 298. » Meyer v. Huneke, 55 N. Y. 412; Schwarz v. Oppold, 74 N. Y. 304; Kennedy v. Crandall, 3 Lans. (N. Y.) 1. • Sheeley v. Sampson, 5 Kan. App. 465. (75) 184] ALTERATION OF "INSTEUMENTS: [Ch. 12 (184) The court instructs the jury that it is claimed by B., defendant, that, after he signed a note similar in all re- spects to the one sued on, excepting that the written words, "with interest at ten per cent." were not then in the note, and since he signed the note, without his knowledge or con- sent, the said printed words were stricken out, and the said written words inserted. If such an alteration of the note was made by any holder of the note, or made with the knowl- edge of any holder of the note, without the knowledge of B., it would be a material alteration, and would release him from all liability on the note, and if the defendant B. proves this, by a fair preponderance of the evidence, the verdict must be in his favor; and it would make no difference whether A., the plaintiff, was or was not the owner of the note at the time of the alteration, if he made the alteration after B. signed it.^ (185) The court instructs the jury that if they believe from the evidence in the cause, that the promissory note, dated day of , 18 — , read and shown to the jury in this case, was made by the defendant, M., and in- dorsed by the defendant A., and delivered by him to his co- defendant, M., for the purpose of enabling M., the maker, to raise money thereon for his own use; and if they shall further believe from the evidence that, after the defendant A. had so indorsed and delivered said note to said M., the words and figures "with interest at ten per cent, per annum after maturity," now appearing in said note, were written therein without the knowledge, consent or authority of the defendant A., by said M., or by any agent or clerk of his, whether done in the presence of any officer or agent of plain- tiff, or not, and whether with or without the knowledge of the plaintiff, — ^the verdict should be for the defendant A. on the second count.* 'Approved in Brooks v. Allen, 62 Ind. 405. » Approved in Capital Bank v. Armstrong, 62 Mo. 59. (76) Ch. 12] ALTERATION OF INSTRUMENTS. [189 (186) The court instructs the jury that if they believe from the evidence in this case, that the promissory note dated day of :, 18 — , read and shown to the jury in this case, was made by the defendant M., and in- dorsed by the defendant A., and delivered by him to his co-defendant M., for the purpose of enabling the maker to raise money thereon for his own use; and if they shall fur- ther believe that after the defendant A., had so indorsed and delivered said note to said M., the words and figures "with interest at ten per cent per annum after maturity" now ap- pearing in said note, were vsrritten therein, and without the knowledge, consent or authority of the defendant A., by said M., or by any agent or clerk of his, whether done in the presence of any officer or agent of the plaintiff or not, wheth- er with or without the knowledge of the plaintiff, — ^the ver- dict of the jury should be for the defendant A., on the fir,-,c count.® Attachment of seal. (187) The court instructs the jury that if they believe, from the evidence, that the seal was attached to the note in question before the commencement of this case by the plain- tiff, without the knowledge or consent of the defendant, then the defendant is entitled to a verdict, and the jury should find accordingly.^** (188) The court instructs the jury that if they believe, from the evidence, that the seal to the note in question was attached thereto at the time of the commencement of this case and the execution of the same, then the jury should find for the defendant.*^ > i | (189) The court instructs the jury that if thqy believe, from the evidence, that the seal was appended to the note in question after its execution, and before the commencement » Approved In Capital Bank v. Armstrong, 62 Mo. 59. 10 Approved In Schwarz v. Herrenklnd, 26 111. 209. "Approved In Schwarz v. Herrenklnd, 26 111. 209. (77) 190] ALTERATION OP INSTRUMENTS. [Ch. 12 of this suit, by and with the consent of the parties there- iinto, then the plaintiff is not entitled to recover, and the jury should find for the defendant.^* Ratification or waiver of alteration. (190) The court instructs the jury that if you believe from the evidence that one of the makers of the (here de- scribe instrument, as note) distinctly and unconditionally promised to pay it, there is such a ratification of the altera- tion that it then becomes immaterial whether the alteration was a material alteration, as by such act he adopts the (in- strument, as note) as his own and is bound to pay it.^* (191) The court instructs the jury that if you believe from the evidence that the erasure in this case was of an unauthorized indorsement on the note, and you further be- lieve from the evidence that the maker of the note had knowledge of the lack of authority, you are instructed that such alteration would not be a material alteration invalidat- ing the note.^* Same — Extension of time. (192) The court instructs the jury that if you believe from the evidence that the obligors (in a bond), with knowl- edge that it had been altered by the insertion of a place of payment, offered to pay a part thereof ancT asked for time in which to pay the balance, such offer and request will con- stitute a ratification of an assent to the alteration.^^ Alterations made by mistake. (193) The court instructs the jury that if you find from the evidence that the alteration (here insert facts, as the writing of the word "paid" where there was in fact no pay- ment) was a mistake, and you further believe from the evi- 12 Approved In Schwarz v. Herrenkind, 26 111. 209. isGoodspeed v. Cutler, 75 III. 534. "Waldorf v. Simpson, 15 App. Div. (N. Y.) 297. IB Dickson v. Bamberger, 107 Ala. 293. (78) Ch. 12] ALTERATION OP INSTRUMENTS. [195 dence that the alteration was made without fraud the maker will not be discharged from his liability.^* Whether alteration made is such as to excite suspicion and provoke inquiry. (194) The court instructs the jury that although you may believe from the evidence that the note at the time it was executed by the defendant had the words "after the sale of fourteen mills," and although you may believe from the evidence that said words had been erased, yet, if you fur- ther believe from the evidence that those words were put upon the paper with such light material that they could be erased without leaving any trace upon the paper which could be detected by a prudent and careful man ; and if you fur- ther believe from the evidence that said words were erased from the paper without leaving any traces behind them to show that they had ever been upon the paper, and that said erasure was made without the knowledge of the plaintiff and before he purchased the same, — ^then the law is for the plain- tiff, and you should so find.^'' Burden of proof to explain alterations. (195) The court instructs the jury that the law imposes upon the party offering a paper in evidence the explanation of any alterations which may appear therein, and therefore if the jury believe, from the evidence, that any alteration has been made in the note in question, the burden of proof is upon the plaintiff to explain the same, and unless the jury believe, from the evidence, that such alteration has been explained by the plaintiff, the presumption of the law is that it was made by the plaintiff, and the jury should find for the defendant.^* (196) The court instructs the jury that the burden of 10 Louremore v. Berry, 19 Ala. 130; Russel v. Longmoor, 29 Neb. 209. i» Approved In Harvey v. Smith, 55 IJl. 225. 18 Approved In Schwarz v. Herrenklnd, 26 111. 209. (79) 197] ALTERATION OF INSTRUMENTS. [Ch. 13 proof is upon the plaintiff in this case, and unless the jury are satisfied, from the evidence, that the seal in question was added to the note since its execution, without the knowl- edge and consent of the parties thereunto, then they should find for the defendant.^' CHAPTEE, Xm. ANIMALS. Trespassing animals, 197. Same — Sufficiency of fence, 198, 199. Right to shoot animals destroying crops, 200, 201. Duty of owner of lands to use diligence to prevent Injuries by trespassing animals, 302-204. Communication of contagious disease, 205-208. Injuries to other animals, 209. Animals running at large within corporate limits of town, 210, 211. Cruelty to animals, 212, 213. Ownership of dog causing injury, 214. Knowledge of vicious propensity of animal, 215-222. Same — General reputation to prove propensity, 223. Same — Opinion evidence as to propensity, 224. Sufficiency of restraint of vicious animal, 225. Provocation of animal causing injury, 226. Burden of proof of negligence, 227. Trespassing animals. (197) The court instructs the jury that if you believe from the evidence that the land was the property of plain- tiff, and you believe from the evidence the land was fenced and the defendant broke it down and thereby allowed his cattle to go upon the land, or if you believe from the evi- dence that the land was fenced and the fence had been broken down without defendant's fault, and he drove hii cattle upon the land, the plaintiff will be entitled to recover.* 19 Approved in Schwarz v. Herrenkind, 26 111. 209. 1 Approved in Erbes v. Wehmeyer, 69 Iowa, 85. X80) Ch. 13J ANHiALS. [1^9 Same — Sufficiency of fence. (198) The court instriicts tHe jury that the plaintiff claims that his crop was destroyed hy defendaiit's cattle. It is important that you determine whether the crop was destroyed by defendant's cattle; whether plaintiff's fencfe was a lawful fence, four and a half feet high, with spaces sufficiently close; was the fence four and a half feet high, and such as is generally, in this country, recognized as a good fence? This is a matter entirely in your discretion. You will then inquire whether defendant's cattle broke into plaintiff's field and destroyed his crop; and if you find that the fence was such a one as comes within the meaning of the law, and such a one as is recognized as a good common fence in the country, and the defendant's cattle broke through the inclosure, the defendant is liable for all damages re- sulting from such breach. In such case, it was the duty of the defendant to keep his cattle up, and not suffer them to run at large to the danger of his neighbor's property; and if property was destroyed, he would be responsible. iTo man has the right to suffer to run at large, animals of a dangerous kind, either to the person or property of an- other; and if he does, he is responsible for all damages which result from the acts of such animals. But if the fence was not a reasonable one, such as would be calculated to protect the property, the crop, and the loss was the con- sequence of the negligence of plaintiff, and that by ordinary care and prudence he could have protected the crops, it was his duty to do so; and if he failed to do so, and the fence was such as the custom of the country and the law would not recognize as a lawful fence, he would not be entitled to recover; the loss would be a consequence of his own negli- gence and fault.* (199) The couH instructs the jury that if you find from > Approved In McManus v. Finan, 4 Iowa, 283. (81) Forms Inst. — 6. 200] ANIMALS. [Ch. 13 the evidence, that the fence, over which the stock of tho defendant entered on the lands of the plaintiff, was a parti- tion fence, dividing the lands of the parties to this suit, and that the stock of the defendant crossed over such fence at a place where it was the duty of the plaintiff to main- tain such fence, then defendant would not be liable in this case, unless the plaintiff has shown by the testimony of skillful men that the fence was such aa good husbandmen generally keep.' Eight to shoot animals destroying crops. ' (200) The court instructs the jury that if they believe from the evidence, that the relative value of the plaintiff's dogs and the portion of defendant's growing wheat which was being destroyed by said dogs, if the evidence shows that any wheat was being destroyed, was not disproportion- ate, and that the defendant to protect his property from such destruction, necessarily exercised the right to defend his property in a reasonable manner, all the circumstances surrounding the transaction being considered, then the jury will find for the defendant.* (201) The court instructs the jury that the defendant had the right to use such means as were necessary for the pur- pose of putting the dogs out of his field, and if in so doing it resulted in the mutilation of the animal in question it would not be a violation of law, and if the jury believe, from the evidence, that the defendant used such means as a reasonable man would use, all the circumstances consid- ered, to exclude the dogs from his field and from his wheat, and did no more harm to the dog than was necessary, under all the circumstances proved in the case, then the jury will find for the defendant." » Approved In Hlnshaw v. Gilpin, 64 Ind. 116. « Approved In Lipe v. Blackwelder, 25 111. App. 119. • Approved In Llpe v. Blackwelder, 25 III. App. 119. ("82) Ch. 13] ANIMALS. [205 Duty of owner of lands to nse diligence to prevent injuries by trespassing animals. (202) The court instructs the jury that a man has no right to carelessly look on at the destruction of his property. It is his duty to use reasonable care to prevent such de- struction; and if he fails to use ordinary care, he cannot recover for the injury which by ordinary care he might have prevented.® (203) The court instructs the jury that if you find that the plaintiff could, by the use of ordinary care, have pre- vented the horses and cattle from eating and destroying his hay and corn, he cannot recover for such hay and corn thus destroyed, which by ordinary diligence he might have prevented. The plaintiff, after he knew the horses and cat- tle of others were destroying his hay and corn, should have used reasonable caution to have prevented further injury, such as fencing his stacks, and fencing his corn beyond the reach of such stock, provided he could reasonably have done so.'' (204) The court instructs the jury that if you find from the evidence that the defendant's fence, with the exception of one or two small gaps, was sufficient to have turned the stock, and find that the plaintiff knew of these gaps, and that the stock would come through such gaps, and after knowing such facts, and knowing that the stock did come through said gaps, and if you find that plaintiff, with the exercise of ordinary care, could have prevented said stock from thus trespassing, and did not do so, he cannot recover for the damage which he might have thus prevented.* Communication of contagious disease. (205) The court instructs the jury that in order that plaintiff may recover in this case, the jury must believe • Approved In Little v. McGuire, 38 Iowa, 560. ' Approved In Little v. McGuire, 38 Iowa, 560. » Approved in Little v. McGuire, 38 Iowa, 660. ;c83> 206] AiilMALS. [Ch. 13 from the evidence that the defendant's (sheep) not only might, but actually did, communicate the disease in ques- tion to plaintiff's sheep, and if the preponder'aiice of the evidence fails to establish such facts or the evidence shows that it is probable that plaintiff's sheep became elsewhere infected, or that it was as likely they caught the disease elsewhere as from the defendant's sheep, then the jury should find the defendant not guilty.® (206) The court instructs the jury that if they believe from the evidence that the defendants imported Texas cattle into and that said cattle so imported and be- longing to defendants passed over the pasture where the plaintiff's cattle were grazing, and that the Texas cattle so imported by defendants and belonging to them imparted the infectious disease described in the declaration to the plaintiff's cattle and that plaintiff's cattle died of such dis- ease, and if the jury believe from the evidence that said cat- tle of defendants had power to impart the disease of -Which plaintiff's cattle are alleged to have died, then the jury shall find defendants guilty.^" (207) The court instructs the jury that, if you believe from the evidence that the defendant, A., brought or caused to be brought into — — — county. State of , Texas cattle, or cattle liable to communicate Texas, Spanish or splenic fever to the domestic cattle of this state, and that said cattle came from the country south of this state be- tween the first day of March, 1884, and the first day of No- vember, 1884, and that defendant knew or had teason to know or could by ordinary diligence have known that said cattle were diseased cattle, or were cattle liable to communi- cate Texas, Spanish or splenic fever to the domestic cattle of this state; or if the defendant knew or could with Or- dinary diligence have knovm that such cattle were diseased » Herrick v. Gfiary, 83 111. 85. 10 Newkirk v. Milk, 62 111. 172. (84) Ch. 13J ANIMALS. [208 with such disease and were liable to communicate it to the domestic cattle of this state, and such cattle so brought or caused to be brought into said county, communi- cated such disease to the domestic cattle of the plaintiff, ^nd thereby plaintiff's cattle died, you will find for the plain- tiff and the value of such cattle as she lost as shown by the eyidence." (208) The court instructs the jury that, if you find from the evidence that the defendant, A., purchased the cattle de- scribed in the petition in good faith in in this state without any knowledge that said cattle were infected with Texas, Spanish or splenic fever and that he had no reason to believe that such cattle could or would communicate to cattle of this state, Texas, Spanish or splenic fever, and that he did not know or have reason to believe or know that such cattle would or could communicate the Texas, Spanish or splenic fever to the cattle of this state, until they arrived at , and that the sheriff immediately seized such cat- tle by virtue of a process issued by W., a justice of the peace, and before the plaintiff's cattle had been exposed and were by the sheriff placed in quarantine, and the defendant A. was deprived of any control over said cattle, and that during the time the said cattle were quarantined by the sheriff, and the defendant deprived of the control of said cattle, the plain- tiff's cattle took such disease by going upon said quarantined ground either while defendant's cattle were there in the custody of the sheriff or his deputy or after they were re- moved therefrom, then the plaintiff cannot recover in the ac- tion.i^ "Approved In Pattee v. Adams, 37 Kan. 133. (Question is whether under the statute defendant must be shown to have knowledge). 12 Approved in Pattee v. Adams, 37 Kan. 133. (Question is whether under statute defendant must be sho-nn to have knowledge.) (85) 209J ANIMALS. [Ch. 13 Injuries to other animals. (209) The court instructs the jury that plaintiff is not prevented from recovering for the loss of his horse bitten by defendant's dog by reason of the fact that the horse in- jured was harnessed to a wagon and was being led tied be- hind another wagon, as plaintiff had the right to lead the horse in that manner, and the fact that he was so leading him was not evidence of negligence.'* Animals running at large within corporate limits of town. (210) The court instructs the jury that before the jury can find the defendant guilty, they must believe, from the evidence : 1st — That defendant's hogs were running at large within the corporate limits of the town of ; and 2d — That said hogs were so running at large within the corpo- rate limits of said town by sufferance of the defendant. Although the jury may believe, from the evidence, that the defendant's hogs strayed from their usual place of running, into and within the corporate limits of the town of , yet, if the jury further believe from the evidence that they were so running within the corporate limits of the said town of without the knowledge or sufferance of de- fendant, they will find the defendant not guilty.'* (211) The court instructs the jury that if they believe, from the evidence, that the defendant, , suffered his hogs to run at large outside of the corporate limits of the town of , with the expectation that they would run at large within the corporate limits of the town of , and they came within the limits of said corporation by rea- son of their being so permitted to run at large outside of the limits of said town, that then the defendant has suf- fered the said hogs to run at large in said town, within the »»Loulester v. Parsons, 151 Mass. 182. " Approved In Town of Collinsvllle v. Scanland, 58 111. 221. C86) Ch. 13] ANIMALS. [215 meaning of said ordinance, and they must find him guilty and assess a penalty within the provisions of the ordinance.^* Cruelty to animals. (212) The court instructs the jury that the Common- wealth must prove that the defendant overdrove the horse knowingly, and intentionally; that the defendant, like all other men, was presumed to know what he did, and to in- tend the natural and necessary results of his acts ; that if, in the proper exercise of his own judgment, he thought he was not overdriving the horse, he must be acquitted; and that upon these instructions the jury might come to the conclu- sion that it was a question of fact to be determined by the result of the testimony introduced by the Commonwealth and by the defense.-'' (213) The court instructs the jury that if you believe from the evidence that defendant killed the hogs while they were depredating on his crops and to protect them from de- struction and not out of a spirit of cruelty to the animals you will find him not guilty.^ ^ Ownership of dog causing injury. (214) The court instructs the Jury that if the defendant had the dog in his possession, and was harboring him on his premises as owners usually harbor their dogs, then he is the owner within the meaning of the law. If the dog was only casually upon his premises, and was not being harbored by defendant as owners usually harbor their dogs, then he was not the owner. In determining how this was at the time of the alleged attack, you will consider the defendant's former treatment of the dog, his declarations concerning him, and the habit of the dog as to staying at the defendant's place.* ^ Knowledge of vicious propensity of animal. (215) The court instructs the jury that the plaintiff has « Approved In Town ol ColllnsvlUe v. Scanland, 68 111. 221. >o Approved in Com. v. Wood, 111 Mass. 408. f Approved In Stephens v. State, 65 Miss. 329. i» Approved in O'Hara v. Miller, 64 Iowa, 462. (87) 216] 4?f?M^'^S-- [Ch- 13 alleged in each paragraph of his ^oipplaint that the steer in question was of a dangerous, and vicious disposition, in the habit of attacking mankind and animals. He has also al- leged that the defendant knew of such dangerous and vicious disposition of said steer and that he, the plaintiff, had no knowledge of such dangerous and vicious disposition. To entitle the plaintiff to recover he must have proved by a fair preponderance of the evidence not only that the steer was dangerous and vicious, but that the defendant knew that fact and the plaintiff was ignorant of it.^® (216) The court instructs the jury that though you may believe that the animal was not actually vicious up to the time of the injury and that had no knowledge of any viciousness in the bull, yet in view of the known and ordinary propensities of such an animal if you believe from the evi- dence that the manner of driving and managing the bull was negligent, then plaintiff is entitled to recover, if you believe from the evidence her conduct on the occasion was not want- ing in reasonable care and prudence in view of all the cir- cumstances and surroundings of the injury.*" (217) The court instructs the jury that one who keeps a dangerous dog, with knowledge of its vicious propensities, incurs a liability for any injury caused by it to anoth§y person.*^ (213) The pourt instructs the jury that if you belip^e from the pvidence that the owner of the horse had knowledge of one vicious act of the animal showing it to be dangerous, he is liable thereafter if he fails to properly secure th^ animal, and injury to another persqn results from failure "tfl restrain.^* (219) The court instructs the jury that before the plain: tiff can recover anything in this suit, he must establish l|y 19 Approved in Todd v. Banner, 17 Ind. ^pp. 368. , 20 Approved in Barnum v. Terpenlng, 75 Mich. 557. 21 Approved In Triolo v. Foster (Tex. Civ. App.) 57 S. W. 698. 22 Cockerham v. Nixon, 33 N. C. 269. (88) Ch. 13] ANIM4L9. [222 a preponderance of the testimony that the defendant owned the dog that did ^he injury to plaintiff; that said dog was of a ferocious, vicious, and dangerous disposition; and that defendant knew that said dog was dangerous as aforesaid. But, after the owner of a vicious dog has notice of its vicious propensities, he cannot exonerate himself by showing that he used care in keeping and restraining the animal, for after such knowledge he assumes the risk of keeping him se- curely.** (220) The court instructs the jury that it is not abso- lutely necessary that an owner should have actual kaowl- edge that the animal has injured others in a similar way in order to make him liable for the injuries, it is siifficient if the owner of the animal has seen or heard enough to con- vince ^ man of ordinary prudence of its inclination tq com- mit injuries of the class complained of by plaintiff.^* (221), The court instructs the jury th^t if the defendant's horse was at the time, trespassing in plaintiff's field, on plaintiff's land, or on the land of a third party where plain- tiff was pasturing his horse by the month, for a consideration paid by plaintiff to such owner, and there attacked and killed plaintiff's horse, defendant is liable for the injury, whether or not he knew of the vicious propensity of his horse.** (222) The court instructs the jury that if they find that the defendant's horse was in pasture on his wife's premises and while there broke over her part of the partition fence, separating her said lands from the field in which plaintiff's horse was being rightfully pastured by him, then the de- fendant's horse was unlawfully in the place where the plain- tiff's horse was on pasture, and in such case, if the jury find that he killed plaintiff's horse, the defendant is lial>le tp «» Approved In Trlolo v. Foster (Tex. Civ. App.) 57 S. W. 69?i. »* Reynolds v^ Hussey, 64 N. H. 64. IS Approved in Morgan t. Huduell, 52 Ohio St. 652. 223] ANIMALS. [Ch. 13 plaintiff for the injury, whether his horse was in fact vicious or not, and whether he knew of such viciousness or not.** Same — General reputation to prove propensity. (223) The court instructs the jury that a dog cannot be proven to be vicious and liable to bite mankind by evidence that the general reputation is that the dog is vicious and so liable." Same — Opinion evidence as to propensity. (224) The court instructs the jury that some testimony has been produced here by witnesses who have stated to you the result of their reading in natural history, and the result of the opinion expressed by hunters and sportsmen, as to the general characteristics of the deer; and it is for you to say how much is proved by that evidence. The plaintiff claims to show by that evidence that the deer at a certain season of the year is a dangerous animal. It is for you to say whether, after the cross-examination of the witnesses, you can arrive at that conclusion.** Sufficiency of restraint of vicious animal. (225) The court instructs the jury that the fact that the defendant or defendant's wife may have been able to control the dog by calling him off or speaking to him when he would run at any one, even if the jury believe this fact proven, is not such a restraining as is contemplated by the law, and would not relieve or excuse the defendant from the charge of negligence if the other facts in said cause are proven that would require the defendant to restrain his dog.*® Provocation of animal causing injury. (226) The court instructs the jury that the defendant claims that plaintiff, in passing the bull, provoked the bull 28 Approved in Morgan v. Hudnell, 52 Ohio St. 552. *7 Approved in Triolo v. Foster (Tex. Civ. App.) 57 S. "W. 698. 28 Approved in Spring Co. v. Edgar, 99 U. S. 645. 29 Approved in Doclcerty v. Hutson, 125 Ind. 102. (90) Ch. 13J ANIMALS. [227 to make the attack upon him, by striking the bull with a cane or stick, without reasonable cause. If you find that the plaintiff struck the bull, and thereby excited him to make the attack you will not assume, as a matter of law, that the plaintiff was in fault, but you will inquire whether, under the circumstances, the plaintiff had or had not rea- sonable cause to strike the bull with his cane. You will carefully notice what the plaintiff did, if anything; his situation at the time, as it appeared to him; and all the circumstances surrounding him ; and decide whether he acted as a man of ordinary prudence or not.** Burden of proof of negligence. (227) The court instructs the jury that the plaintiff has alleged in each paragraph, among other things, that he re- ceived the injury complained of without fault or negligence on his part. This is a material and necessary allegation. Without such allegation his complaint would not have been sufficient to have constituted a cause of action and before the plaintiff can recover he must have proved by a fair pre- ponderance of the evidence that he did receive said injuries, without fault or negligence on his part, directly and ma- terially contributing to the injury. It is not enough to en- able the plaintiff to recover that he shall have proved fault and negligence on the part of the defendant; he must also prove that he himself was free from such fault or negli- gence, and, if he has failed to prove by a fair preponder- ance of the evidence that he received the injury without such fault or negligence on his own part he cannot recover.*^ »o Approved In Meier v. Shrunk, 79 Iowa, 17. »i Approved In Todd v. Danner, 17 Ind. App. 368. C91) ^38] ARBITRATION AND AWARD. £Ch. 14 CHAPTEE XrV". ARBITRATION AND AWARD. Necessity of notice to parties and that award sliall Include all differences, 228. Effect of resignation of one arbitrator, 229. Setting aside award for partiality of arbitrators, 230. Necessity of notice to parties and that award shall include all differences. (228) The court instructs the jury that if you find from the evidence, that the plaintiff and defendant agreed to sub- mit their differences to arbitration, and if you find such award was made as agreed, you should find for the plaintiff for the amount found by the arbitrators in such matter, un- less you further find (1) that said award does not include all the differences in dispute between plaintiff and defend- ant at time of the alleged award; or (2) that defendant was not accorded a reasonable notice of the time of the hear- ing.* Effect of resignation of one arbitrator. (229) The court instructs the jury that if you believe from the evidence that one of the arbitrators, , was induced to resign or withdraw from the arbitration by rea- son of the agreement of the other two arbitrators, and , to withdraw and resign their authority as such ar- bitrators, and thereby the said arbitrator , so re- signing, was prevented from meeting with the arbitrators at the time of the making of the award, in such case the award is void, and you should find for the defendant.* Setting aside award for partiality of arbitrators. (230) The court instructs the jury that you are told that 1 Approved in Amos v. Buck, 75 Iowa, 651. 2 Approved In McCord v. McSpaden, 34 Wis. 64L (92) Ch. IS] ARREST. [232 this selfection of appraisiers by the parties, and tho selectibh of the umpire by the two appraisers, being shown to have been regular, it will be presumed that the award made by two of them is true and just; and this award must stand, unless the plaintiff has, by a fair preponderance of the evi- dence, shown that one or both of the parties signing it were at the time not impartial. If you believe that and , at the time they signed this award, acted impar- tially and on their best judgment as to the amount awarded, then the award should be upheld, although you may find and believe from the testimony before you that said award un- der-estimates the damages sustained by plaintiff. If you be- lieve that and , or either of them, at the time they made this award, were not impartial arbitrators, and were partial to the interests of the defendant company, and the award was the result of such partiality, then the same cannot be upheld.* CHAPTEE XV. ARREST. Liability for arrest without warrant, 231-236. liability for arrest without warrant. (231) If the jury shall find that the plaintitf, at the time she was arrested by the defendant was conducting herself in an orderly inanner, and not committing any breach of the peace, then the defendant had no right or authority to ar- rest her.^ (232) 'No officer is justified in making an arrest without a warrant, when the person whom he Arrests is peaceable • Approved In Royal Ins. Co. v. Parlln & OrendorlC Co., 12 Tex. Civ. App. 572. 1 Approved in Finkerton v. Verberg, 78 Mich. 573. (93) 233] ARREST. [Ch. 15 and not engaged in open violence, as for example, by fight-, ing, engaging in a riot, or about to escape after committing a felony.^ (233) The law does not look with favor on arrests made without a warrant, and an arrest without a warrant cannot be justified if the person arrested was not engaged in a breach of the peace, as for example in fighting or in a riot or about to escape after having committed a felony.* (234) If the jury shall find that the plaintiff, was at the time she was arrested walking on the street without molest- ing any one, then she was not committing any act that would justify the defendant in arresting her without a warrant, and his act in arresting her was unjustifiable, and the bur- den is on him to justify the act.* (235) The court instructs the jury that it is no defense to an action for false imprisonment that the sheriff sup- posed he had a capias ; nor had he any right to know there was an indictment for a misdemeanor or any other indict- ment against plaintiff. Until a capias was issued and placed in his hands, he had no right to arrest plaintiff, nor in any manner to molest him, because there had been an in- dictment, if there was any.' (236) The court instructs the jury that this is an action by plaintiff against the defendant, for the illegal arrest by defendant of plaintiff', under circumstances of aggravation, as alleged by plaintiff. Under the laws of , no civil officer has the right to arrest a citizen of unless he has a warrant, and if demanded, to exhibit same; or unless some offense against the criminal law is committed, by the person arrested, in the presence of the officer.' * Approved in Pinkerton v. Verberg, 78 Mich. 573. » Approved in Pinkerton v. Verberg, 78 Mich. 573. « Approved in Pinkerton v. Verberg, 78 Mich. 573. "Approved in Hall v. O'Malley, 49 Tex. 70. • Approved In Hall v. O'Malley, 49 Tex. 70. (94) Ch. 16] ASSAULT AND BATTERY. [338 CHAPTER XVI. ASSAULT AND BATTBRY.i Accidental injury, 237. Self-defense — Only reasonable force justifiable, 238. Same — Defendant's judgment controlling as to amount of force necessary, 239. Same — Defendant's judgment controlling as to Imminence 'of danger, 240. Explaining expression, "Every man's house Is his castle," 241. Right to eject trespasser, 242. Trespass may not be repelled by deadly weapon, 243. Chastisement of pupil — Good faith no justification of excesslTe punishment, 244. Same — Contrary doctrine, 245. Ravishment in aggravation, 246. Accidental injury. (237) The court instructs the jury that if they find from the evidence that the defendant did not assault the plaintiff, but having his pistol in his hands for a lawful purpose, and by the negligent or careless handling of the pistol or by ac- cident the pistol was discharged and the plaintiff received an injury, he cannot recover damages for that injury in this action. Again, if the plaintiff assaulted the defendant, the defendant having the pistol in his hands and the discharge of the pistol was caused by the pushing and jostling and assault of the plaintiff and it was discharged without de- sign on the part of the defendant, then the defendant would not be liable for damages for the injury consequent upon the discharge of the pistol.* Self-defense — Only reasonable force justifiable. (238) The c6urt instructs the jury that in defending himseK against an unlawful attack of another, a man is 1 See Homicide, for assault with intent to kill. Rape, for assault with Intent to ravish. For general forms of instruction, see Crim- inal Law. s Approved In Krall v. Lull, 49 Wis. 403. (95) 239] ASSAULT AND BATTERY. [Ch. 16 justified in resorting to such violence and the use of such force as the particular circumstances of the case may re- quire for his protection. Now, the degree of force to be employed in protecting one's person must be in proportion to the attack made, and must depend upon the circum- stances in each particular case, and the imminence of dan- ger as it appears to him at the time. The only purpose which justifies the employment of force against the assault is to defend one's self, that is the object to be attained; and a man is only justified in using such an amount of force as may appear to him at the time to be necessary to accom- plish that purpose. As soon as that object is attained, it is his duty to desist. * * * If he used a kind of force towards his assailant in excess or out of proportion to what may be necessary to his own defense, as it honestly ap- peared to him at the time, he is himself guilty of an as- sault.' Same — ^Defendant's judgment controlling as to amount of force necessary. (239) The court instructs the jury that it is proper for you also to consider, if you find that plaintiff made the first attack, that the defendant, being required to act thus, in the excitement and heat of affray, could not be expected to exercise that nice discretion and accredited judgment which the jury by a careful sifting of the testimony of all the wit- nesses aided by the arguments of counsel and the charge of the court, would be able to do ; and therefore his conclusion, though he acted honestly and in good faith, might not be perfectly correct and just. Therefore, this is the law, that if the defendant did use more force thah is actually neces- sary for self-protection, if you find that he sincerely be- lieved at the time that he was using only so ihuch force as was necessary for his own defense, and if you also find that he ictfed honestly and in good faith in coming td that con- « Approved In Kent v. Cole, 84 Mich. 579. ('96) Ch. 16] ASSAULT AND BATTERY. [241 elusion, and if you find also from the evidence that such a belief was a reasonable belief on his part under the cir- cumstances that surrounded him at the time and as the sit- uation appeared to him, — then he would not be guilty of an as- sault by reason of the use of such excessive violence. * * * The defendant would be justified in resorting to such reason- able force as to him seemed to be necessary in the honest exer^ cise of his judgment to protect himself from the injury which he fully believed the plaintiff was about to inflict upon him. * * * If you find such appearance justified that belief, and defendant's judgment was honestly exercised in coming to that conclusion, he would then have a right to thus repel or prevent the actual assault, using such force, and such alone as was reasonably necessary or appeared to him as reasonably necessary at the time to protect himself.* Same — Defendant's judgment controlling as to imminence of danger. (240) The court instriicts the jury that the defendant was the best judge of what was necessary to defend himself against the attack, and of the means to be used for his own protection. As a technical legal proposition this is undoubt- edly correct, and it is true not only as a matter of law, but as a matter of common sense, that the party attacked is obliged in the very nature of the case, to exercise his best judgment at the time as to what shall be done in his own defense, and his judgment is one which, if honestly exer- cised, is to a large extent controlling. It would be abso- lutely controlling unless the jury should find that his exer- cise of it at the time and under the circumstances was such an exercise as was unreasonable under all the evidence in the case." Explaining expression, "Every man's house is his castle." (241) "Every man's house is his castle." This is an * Approved in Kent v. Cole, 84 Mich. 579. » Approved in Kent v. Cole, 84 Mich. 579. (97) Instr. Juries. — 7 242] ASSAULT AND BATTERY. [Ch. 16 old expression and comes down to us from tkose feudal times when the grand people lived in large fortified houses which were called castles. In these castles they resisted any en- trance except by permission. Erom this source has come the expression that "every man's house is his castle." In ac- cordance therewith every man's abode however humble is his castle ; as is said "even though the winds of Heaven may blow through it and the rain pour into it the King of Eng- land cannot enter it."® Eight to eject trespasser. (242) The jury are instructed that though plaintiff went upon the defendant's premises to transact lawful business, he had no right to remain after defendant refused to do busi- ness with him and requested him to leave and if he refused to leave after such request defendant had the right to eject him by force provided he used no more force than was rea- sonably necessary.'' Trespass may not be repelled by deadly weapon. (243) The jury are instructed that though reasonable force may be used to eject a trespasser, the use of a danger- ous weapon is not justified in repelling a trespass which does not threaten injury to life or limb.* Chastisement of pupil — Good faith no justification of excessive punishment. (244) The jury are instructed that though a teacher may inflict reasonable and necessary corporal punishment upon a pupil, if the jury believe that the punishment inflicted was unnecessary and excessive the fact that the teacher acted honestly in good faith and without malice is no defense.' « Approved In Hammond v. Hightower, 82 Ga. 290. T ■Woodman v. Howell, 45 111. 367; and see Breitenbach v. Trow- bridge, 64 Mich. 393. • Everton v. Esgate, 24 Neb. 235. 9 Lander v. Seaver, 32 Vt. 114. (98) Ch. 16] ASSAULT AND BATTERY. [246 Same — Contrary doctrine. (245) The court instructs the jury that if they find from the evilence that the defendant did chastise W., but that at the time the defendant was a school teacher, and said W. was his pupil, and that the chastisement was administered to him by defendant because said W. had engaged in a fight at school with another pupil, or had used improper and unbe- coming language, or had in any other way violated the rules and regulations of the school; and that such chastisement was inflicted by the defendant upon said W. for the pur- pose of correcting him, and in good faith and without any intention on the part of the defendant to injure said W., and without any passion, spite or ill-will towards said W., then you will find the defendant not guilty, even though you should find from the evidence that the chastisement admin- istered was more severe than was actually necessary. ■'" Ravishment in aggravation. (246) The court instructs the jury that if they believe from the evidence, that the defendant assaulted the plaintiff, as testified to by her, by laying his hands on her, accom- panied with the threat that he would kill her, if she did not consent to sexual intercourse with defendant, this in itself will warrant the jury in finding the defendant guilty, al- though the jury may further believe, from the evidence, that she ultimately freely assented to such intercourse. If, how- ever, the jury believe that such ultimate assent was not freely given, but was yielded by the plaintiff only as a con- sequence of the preceding violence or force, then such sexual intercourse should be regarded by the jury as a part of the assault, and a ground for exemplary damages — ^that is, such as will compensate the plaintiff for any wrong to her, and to punish the defendant, and to furnish an example to deter others from like practices.'* loDowlen v. State, 14 Tex. Cr. App. 61. "Approved in Miller v. Baltliasser, 78 111. 302. (99) 247] ASSIGNMENT FOR CREDITORS. [Oh. 17 CHAPTER XVII. ASSIGNMENT FOR BENEFIT OP CREDITORS. Validity of assignment, 247, 248. Fraud in assignment, 249-253. Same — Coercing creditors or forcing compromise, 254, 255. Same — Reservation of contract by assignor, 256. Same — Selection of assignee or his incompetency as indicating fraud, 257-259. Same — Subsequent declarations and acts of parties, 260, 261. Same — Knowledge by assignee of fraud, 262. Same — Fraudulent intent of assignee, 263. Same — Knowledge by assignee of fraudulent intent of assignor, 264. Attacking assignment because of facts extrinsic to assignment, 265, 266. Assent of creditors, 267. Interpretation and effect of assignment by firm, 268, 269. Priority of execution creditor over assignments, 270, 271. Validity of assignment. (Replevin by assignee against levying sheriff.) (247) The court instructs the jury that actual fraud is not to be presumed, but should be proven by the party al- leging it. The law presumes that good faith controls busi- ness transactions; therefore, if the jury believe, from all the circumstances in evidence, that the nature and design of the assignment to plaintiff were bona fide, to secure and pay (after paying the just and reasonable expenses attending the executing the trust), the net proceeds of the property as- signed in and toward the payment of the debts of O., and that said assignment was not contrived, as a fraud on the part of 0. and the plaintiff, to cheat or hinder the creditors of O., the law is for the plaintiff ; if the jury shall also find that the assignee took possession of the property, and that such possession was continued to and at the time of the levy.^ 1 Approved in Wilson v. Pearson, 20 111. 81. These Instructions were given on behalf of plaintiff. (100) Ch. 17] ASSIGNMENT FOR CREDITORS. pJSl (248) The court instructs the jury that a debtor in fail- ing circumstances may assign his property for the benefit of creditors. An assignment when made in good faith, and accompanied and followed by possession of the property as- signed, is warranted by law. Therefore, if the jury believe, from the evidence, that the assignment in question was made in good faith, and that the plaintiff took open and actual possession of the property assigned, previous to the time when the execution in favor of W. was received by the de- fendant , then the law is for the plaintiff, and he is entitled to a verdict in his favor for a return of the property mentioned in the declaration.'' Fraud in assignment. (249) The court instructs the jury that the deed of assign- ment being in due form and regular on its face, fraud will not be presumed with reference to it, but the burden of proof is on the defendants to show it fraudulent. The presump- tion is that the deed was made in good faith and that it is untainted with fraud.' (250) The court instructs the jury that the only subject of inquiry for the jury (so far as the question of fraud ia concerned) is the intent with which the assignment was made, and acts wholly independent of the fact of assignment cannot be considered.* (251) The court instructs the jury that an assignment is not fraudulent because it may or even must operate to ob- struct or delay creditors ; for every assignment, though made in good faith, must so operate. The jury must find that the intention of the act was to defraud creditors, and not to devote the property assigned to the payment of .debts. If there was an intention to delay creditors, it would render ^t Approved in Wilson v. Pearson, 20 111. 81. These Instructions were given on behalf of plaintiff. « Approved in Guerin v. Hunt, 8 Minn. 477. ♦ Approved in Guerin v. Hunt, 8 Minn. 477. (101) 252 J ASSIGNMENT FOR CREDITORS. [Ch. 17 the instrument void, but if there was no such intention, the necessary delay attending the execution of the trust was not material.* Same. {Replevin 'by assignee against levying sheriff.) (252) The court instructs the jury that if they believe from the evidence, that the assignment from O. to plaintiff was made with intent to hinder, delay or defraud the credit- ors of 0., then the verdict should be for the defendant ; and in deciding upon the intent, the jury may take into consid- eration subsequent as well as prior circumstances, and the transactions of the parties, to explain such intent.® (253) The court instructs the jury that if they shall be- lieve from the evidence, that the assignment by 0. was made to plaintiff with the intent to hinder and delay any of his other creditors, in the collection of their debts, to enable 0., under the color thereof, to continue his business, and in pos- session of his property for his own benefit, then such assign- ment is fraudulent and void as to his creditors, and the jury should find a verdict for the defendant.'^ Same — Coercing creditors or forcing compromise. (Replevin iy assignee against levying sheriff.) (254) The court instructs the jury that if the real object or intent of , the assignor in making this assignment was not the one expressed on its face, but to induce, per- suade or force creditors to agree and consent to a compromise, which he was then attempting to make with his creditors, and to compel such creditors to accept about one-half of their claims, then and in such case, the assignment was fraudu- lent, and void as to creditors.* (255) The court instructs the jury that if the jury find Approved in Guerin v. Hunt, 8 Minn. 477. o Approved In Wilson v. Pearson, 20 111. 81. T Approved in Wilson v. Pearson, 20 111. 81. 8 Bennett v. Ellison. 23 Minn. 242. (102) Ch. 17] ASSIGNMENT FOR CREDITORS. [257 that , assignor, made the assignment with the intent and for the purpose of effecting a compromise with his cred- itors, or for the purpose of facilitating one alread;y com- menced, then the assignmftnt is void, and you must return a verdict for the defendant.* Same — Reservation of control by assignor. (.Replevin by assignee against levying sTieriff.) (256) The court instructs the jury that if they believe, from the evidence, that at or about the time of the assign- ment from O. to plaintiff, there was an understanding or stipulation between them, though not expressed in the as- signment itself, to allow O. a specified sum for his services in the management of the property assigned, and that O. should retain possession of the same for his own benefit, as agent for plaintiff, or otherwise, to enable him to control his business to the hindrance of his creditors, such stipulation or understanding is evidence of fraud, and the defendant is entitled to a verdict.'" Same — Selection of assignee or his incompetency as indicating fraud. (257) The court instructs the jury that the assignor hav- ing the choice of his assignee without consultation with or consent of his creditors, must take care that he appoints a person competent to protect the rights of all parties inter- ested imder the assignment. If it appears that the selection of an incompetent assignee was made in order to allow the assignor to control the administration of the estate, then the assignment will be declared void, because such an intent on the part of the assignor would be a fraud upon his creditors and if it should appear that the assignee was incompetent in fact from any cause, but that his selection was not made from any improper motive on the part of the assignor, then • Approved In Bennett v. E'tliSon, 23 Minn. 242. 10 Approved In Wilson v. Pearson, 20 III. 81. (103) 258] ASSIGNMENT FOR CREDITORS. [Ch. 17 the assignee would be subject to removal, and tbe assignment will be sustained. -^^ (258) The court instructs the jury that the business com- petency of the assignee is only material, so far as it tends to establish an intention on the part of the assignors to re- tain control over the property by reason of want of compe- tency, and if the jury fail to find that such was the de- sign of the assignors in the selection of , it is im- material what were his business qualifications. In the ab- sence of such fraudulent intention on the part of the as- signors the only effect of such incompetency would be to render the assignee liable to removal on the proper applica- tion of a creditor.^* (259) The court instructs the jury that incompetency in an assignee, which in law would amount to a "badge of fraud," and which would tend to invalidate an assignment, is not merely a want of ability to read or write, or of the accomplishments taught in schools, but it also implies that the assignee is wanting in the capacity to manage and con- duct the ordinary business of the assignment, and that the assigned estate must suffer neglect or be managed by the as- signee as the instrument or tool of the assignors, for their benefit, and in fraud of the rights of creditors.^* Same — Subsequent declarations and acts of parties. {Replevin by assignee against levying sheriff.) (260) The court instructs the jury that if they shall find, from the evidence, that the assignment in question was in fact made by O. to plaintiff, and that plaintiff entered into and took open, actual and exclusive possession of the goods assigned, then the subsequent declarations and actions of plaintiff, introduced in evidence in this suit, and the sub- sequent declarations and actions of O., can only be taken 11 Guerin v. Hunt, 8 Minn. 477. 12 Approved in Guerin v. Hunt, 8 Minn. 477. 18 Approved In Guerin v. Hunt, 8 Minn. 477. (104) Ch. 17] ASSIGNMENT FOR CREDITORS. [263 into consideration by the jury, for the purpose of determin- ing the intent at the time o£ the inception of the assignment, viz., whether such assignment was made with intent to hin- der or delay creditors of 0., and enable him, under cover thereof, to carry on business.^* (261) The court instructs the jury that if an assignment is bona fide, and not shown to be fraudulent as to creditors, then neither mismanagement nor fraudulent disposition of property under an assignment, by an assignee, can affect the instrument, or his title under it; they may be grounds for a removal by a court of equity, but cannot be inquired into in an action at common law, brought to try his title to the property assigned.^" Same — Knowledge by assignee of fraud. (262) The court instructs the jury that if they believe from the evidence that , the assignor, executed the assignment with the fraudulent intent of compelling his creditors to consent to a compromise which was at- tempting to make with his creditors, then the jury are in- structed that such assignment will be void as to creditors, even though they believe from the evidence that plaintiff, the assignee, had no notice or knowledge of such fraudulent intent at or prior to the time he accepted the assignment." Same — Fraudulent intent of assignee. (Replevin iy assignee against levying sfieriff.) (263) The court instructs the jury that as to the assign- ment under which the plaintiff claims in this case, there is but a single question for you to pass upon, viz. : What was the intent of the assignor and what was his purpose in mak- ing it ? The intent with which plaintiff received the assign- ment is immaterial.^ ^ 1* Approved In Wilson v. Pearson, 20 111. 81. "Wilson v. Pearson, 20 111. 81. 18 Bennett v. Ellison, 23 Minn. 242. "Approved in Bennett v. Ellison, 23 Minn. 242. (105) 264] ASSIGNMENT FOR CREDITORS. [Ch. 17 Same — Knowledge by assignee of fraudulent intent of as- signor. (.Replevin ty assignee against levying sheriff.) (264) The court instructs the jury that plaintiff, under this assignment, does not stand in the position of a pur- chaser for valuable consideration; and the fact (if such be the case) that he had no knowledge that it was , as- signor's intention, in making the assignment, to effect a com- promise with his creditors cannot cure the effect of such in- tention on , assignor's part. If such intention ex- isted on assignor's part, at the time he executed the assignment, it is void, no matter whether plaintiff knew , assignor's intention or not, and your verdict should be for the defendant.^* Attacking assignment because of facts extrinsic to assignment. (265) The court instructs the jury that the mode of man- agement of the trust by the assignee does not of itself affect the assignment. If it was valid at its inception, the acts and conduct of the parties subsequent to the assignment are only material, as they serve to throw light upon the question of the original intent in making the assignment.^® (266) The court instructs the jury that the employment by the assignee of one of the assignors in closing up the busi- ness of the assignment is not inconsistent with the objects of the trust, and is not necessarily indicative of a fraudu- lent intent in making the assignment. The jury will judge from the facts in the case whether the object was for the assignor still to retain the control over the goods, in con- nection with the question as to the original intent of the as- signor in making the assignment.*" Assent of creditors. (267) The court instructs the jury that the document 18 Approved in Bennett v. Ellison, 23 Minn. 242. i»Guerin v. Hunt, 8 Minn. 477. 20 Approved in Guerin v. Hunt, 8 Minn. 477. (106) Ch. 17] ASSIGNMENT FOR CREDITORS. [269 under which plaintiff claims in this case, provides that the assent of the creditor need not be a written assent. * * * It is only necessary that creditors should give such assent to its provisions as will recognize and affirm the acceptance and possession of the property by the assignee, as made and held for their benefit and in their behalf, in accordance with the terms of the assignment. The acquiescence is something more than negative. * * * It is acquiescence and con- sent ; a state of mind on the part of the creditor who know- ing the facts, gives the assignee to understand that he ac- quiesces in his keeping the property under the trust, and dis- posing of it accordingly. It is not necessary that the word assent should be used. It is not necessaiy that any legal formula should be employed. If the assignee informs the creditors of the facts, and makes a fair statement to them of the facts, exhibiting to them the deed of trust, if they want to see it, and they so conduct themselves towards him in what they say and do that he, a reasonable man, under- stands them to assent, and acts in good faith upon that un- derstanding, then for the purpose of this case they must be taken to have assented.^^ Interpretation and effect of assignment by firm. (268) The court instructs the jury that the assignment to the plaintiff was the joint act of B. and C, acting as co- partners under their firm name of B. & C, and purported to be a general assignment of the partnership property of that firm, and of that partnership property only.^^ (269) The court instructs the jury that the deed of as- signment does not on its face purport to convey any of the individual property of either B. or C, but leaves the same in all respects so far as it (the assignment) is concerned, subject to every debt and liability of the respective owners of such individual property.*^ 21 Approved in Nutter v. King, 152 Mass. 355. 22 Approved in Guerin v. Hunt, 8 Minn. 477. 28 Approved in Guerin v. Hunt, 8 Minn. 477. (107) 270] ASSIGNMENT FOR CREDITORS. [Ch. 18 Priority of execution creditor over assignments. (Replevin by assignee against levying sheriff.) (270) The court instructs the jury that if they find, from the evidence, that after the alleged assignment to plaintiff, and after the levy of the execution in favor of W. by the defendant, and possession taken by him, the debtor and as- signor, O., confessed a judgment in favor of plaintiff for the amount of a claim owing to plaintiff, and that plaintiff thereupon caused execution to be issued, and directed a levy upon the assigned property to be made by defendant, and that the said judgment was so confessed, and execution was so levied with the intent to abandon said assignment, then the levy under the execution in favor of W. acquired a prior- ity of lien over the goods in question, and the jury should find for the defendant.^* (271) The court instructs the jury that if they shall find from the evidence, that the assignment in question was bona fide, then, unless it is also shown by the evidence that the assignee, the plaintiff, did take actual and exclusive posses- sion of the goods before the levy by defendant under the execution in favor of W., the verdict should be for the de- fendant" CHAPTER XVm. ASSUMPSIT. Action for money had and received, 272, 273. Action for money paid, laid out and expended by plaintiff at the request of defendant, 274. Action for money had and received. (272) The court instructs the jury that the plaintiffs may recover in this suit, if the jury believe, from the evi- i* Approved In Wilson v. Pearson, 20 111. 81. s» Approved in Wilson v. Pearson, 20 111. 81. (108) Ch. 18] ASSUMPSIT. [274 deuce, that the defendant had in his possession, when this suit commenced, money which, in equity and good con- science, belongs to the plaintiffs; and if the jury believe, from the evidence, that said defendant received the proceeds of the grain described in the declaration, and that said grain belonged to the plaintiffs, then the jury will find for the plaintiffs; and if the jury so believe, and believe from the evidence, that said defendant promised to pay to the plain- tiffs the money in controversy in this case, then the jury will find for the plaintiffs.'' (273) The court instructs the jury that if the^ believe, from the evidence, that the defendant K. promised to pay the plaintiffs the proceeds of the sale of the men- tioned in the first above instruction, then the jury may take this fact into consideration in determining whether the de- fendant R. received the proceeds for the sale of said , and the jury will find for the plaintiffs if they so believe that he received the proceeds of the same.* Action for money paid, laid out, and expended by plaintiff at the request of defendant. (274) The court instructs the jury that if they believe from the evidence that (the defendant proposed to give the sum of to relieve his township from a draft and upon the condition that his sons should be relieved from liability to draft, and if the jury believe from the evidence that plain- tiff on the faith of that promise expended time and money for the purpose of relieving the township from liability to draft and succeeded, and by his efforts relieved the sons of the defendant from liability to be drafted into the military service of the United States, then the jury should find for the plaintiff for the sum of ).^ 1 Approved in Relchwald v. Gaylord, 73 111. 503. » Approved in Reichwald v. Gaylord, 73 111. 503. » Wilson v. McClure, 50 111. 366. (109) 375J ATTACHMENT. [Ch. 19 CHAPTER XIX. ATTACHMENT. Liability for wrongful attachment, 275-278. Burden of proof, 279. liability for wrongful attachment. (275) The court instructs the jury that if they believe from the evidence that the plaintiff vras removing, was about to remove, or had, within thirty days before the issuance of the said attachment, removed any of his effects from the leased premises (whether with a fraudulent purpose or not, or whether any rent was then due or not), then such re- moval, or contemplated removal, was of itself sufficient cause for the said attachment, and the plaintiff is not entitled to recover anything in this action, unless the jury believe that there was, or would have been, left on the premises property liable to distress sufficient to satisfy a year's rent.^ (276) The jury are instructed that if they believe from the evidence that there was a deed of trust on the property attached, to , trustee, made by the plaintiff after the property was carried on the leased premises, and such trustee intended to remove any of the said property from the leased premises, by sale or otherwise, not leaving suffi- cient property on the leased premises to satisfy a year's rent, and without securing to the landlord a year's rent, such intention on the part of said trustee was of itself sufficient cause for suing out the said attachment.^ (277) The court instructs you that if you believe from the evidence that the grounds set out in the affidavit for at- tachment were not true, plaintiff would be entitled to actual 1 Offterdinger v. Ford, 92 Va. 636. 2 Offterdinger v. Ford, 92 Va. 636. (110) Ch. 19] ATTACHMENT. [279 damages wliicli the proof shows he may have sustained. The affidavit recites that the plaintiff had disposed of his property for the purpose of defrauding his creditors and if you believe from the evidence that the plaintiff at, and be- fore the suing out of the attachment, had disposed of his property with intent to defraud his creditors, or if you find that plaintiff had disposed of his property and the natural effect of such disposition was to withdraw and place the property of plaintiff beyond the reach of his creditors, then you will find for defendant.* (278) The court instructs the jury that they shall in- quire into the truth or veracity of the affidavit made for the attachment alleged in this suit to be wrongful and if it be true or if the jury believe from the evidence that at the time said affidavit was made to secure the attachment, on the ground that the plaintiff in this suit was about to convert the property into money for the purpose of placing it beyond the reach of his creditors, then the plaintiff is not entitled to any actual damages against the person suing out the attach- ment and the sureties on the attachment bond, but if the jury shall believe from the evidence that the plaintiff was not about to so convert his property or a part thereof into money for the purpose of placing it beyond the reach of his creditors, then the jury are instructed that such attachment was wrongfully sued out and you will find for the plaintiff.* Burden of proof. (279) The court instructs the jury that if they believe from the evidence that the attachment sued out by defend- ants against the plaintiff, the day of , 19 — , was sued out with sufficient cause, then the jury will find a verdict for the defendants; and the burden of showing the absence of sufficient cause rests upon the plaintiff.^ » Approved in Blum v. Strong, 71 Tex. 321. io jury should find in favor of defendant).*^ (444) The court instructs the jury that if they believe from the evidence that the plaintiff was employed by the defendant to effect a sale of the property described in the declaration and that the plaintiff was allowed a reasonable time within which to procure a buyer and that the plaintiff failed to effect the sale within the reasonable time allowed him and that the defendant in good faith terminated the agency and employed other agents by means of which the "Colwell T. Tompkins, 6 App. Div. (N. Y.) 93, 158 N. Y. 690. 42 Alden v. Earle, 31 N. Y. St. Rep. 375, 121 N. Y. 688. See, also, Sibbald v. Bethlehem Iron Co., 83 N. Y. 378. (183) 4 45] BROKERS. [Ch. 26 sale was consummated, then you are instructed that the plaintiff is not entitled to commissions, although you may further believe from the evidence that the sale was in some degree aided by the previous unsuccessful efforts of the plaintiff and that the purchaser was the one whom the plaintiff had introduced.''^ (445) The court instructs the jury that to entitle a real estate broker to commissions on the sale of property, it is essential that he shall be the procuring cause of the identical contract of sale, for which commissions are claimed, and if you believe from the evidence (that plaintiff was employed by the defendant to sell the property described in the declara- tion and that no power was given to the plaintiff to finally transfer the property and that an offer to purchase was procured by the plaintiff, and submitted to the defendant who rejected the offer, then you are instructed that plaintiff is not entitled to commissions though the sale was after- wards consummated between the defendant and the person who made the offer on different terms).** (446) The court instructs the jury that one who has em- ployed a broker to sell property, may himself sell it to a purchaser procured without aid from the broker and that to entitle the broker to commissions the sale must result from his efforts and if you believe from the evidence that the plaintiff (was employed by the defendant to sell the prop- erty described in the declaration and that the plaintiff open- ed negotiations with a customer, but failed to enter into an agreement with him and abandoned the negotiations and that the defendant subsequently sold to such customer, then you are instructed that plaintiff was not entitled to com- missions).*^ ■13 Sibbald v. Bethlehem Iron Co., 83 N. Y. 378. 44 White V. Twitchlngs, 26 Hun (N. Y.) 503. « Satterthwaite v. Vreeland, 3 Hun (N. Y.) 152, 5 T. & C. (N. T.) 363. (184) Ch. 26] BROKERS. [449 (447) The court instructs the jury that if you believe from the evidence that plaintiff was employed by the defend- ant to sell the lands described in the declaration, and that a purchaser was obtained through the plaintiff's services, then you may find a verdict for the plaintiff, though you may also believe from the evidence that the purchaser was unknown to the plaintiff and that the transaction of the sale was com- pleted directly between defendant and the purchaser.** (448) The court instructs the jury that if a broker has made efforts to sell property of his principal in pursuance of his employment and his services have resulted in procuring a purchaser, he may be entitled to commissions, though the purchaser is unknown to the broker and dealt directly with the principal, and if the jury believe from the evidence (that the plaintiff was employed to make a sale of the real property described in the declaration as alleged therein and that the plaintiff advertised the property for sale, by which means a purchaser's attention was called to the land and that the pur- chaser submitted an offer to a subagent who communicated the offer to the defendant and thereafter negotiations were continued without interruption between the purchaser and the defendant personally until a sale was consummated, then you are instructed that the efforts of the plaintiff were the procuring cause of the sale and plaintiff is entitled to com- missions).*^ Withdrawal of negotiations from control or management of broker. (449) The court instructs the jury that the fact that after the broker employed by the purchaser has presented a vendor, the purchaser takes charge of the negotiations and concludes them upon the terms proposed by the broker, does not defeat the broker's claim for compensation.** "Sussdorf v. Schmidt, 55 N. Y. 319. « Doran v. Bussard, 18 App. Div. (N. Y.) 36. «8Baer v. Koch, 2 Misc. Rep. (N. Y.) 334, 51 N. Y. St. Rep. 427. (185) 450] BROKERS. [Ch. 2 > Sale to person, introduced by broker, by fictitious or intermedi- ate transfer. (450) The court instructs the jury that a broker may re- cover commissions where title is taken by a stranger to the negotiations for the purpose of defeating his commissions, but that while this is so, bad faith must be shown and if you find from the evidence that (the plaintiff was approached by A., who wished to buy a house and requested him to make exertions in that direction and that the plaintiff in- troduced A. to the defendant and informed the defendant that if A. purchased, the defendant must pay commissions, and if you find from the evidence that the negotiations failed to result in an agreement and that afterwards de- fendant conveyed his house to his brother and that sub- sequently A. bought of the brother, then you are instructed that plaintiff was not entitled to commissions, unless you further find that the transfer to the brother was in bad faith). *» (451) The court instructs the jury that if they believe from the evidence that plaintiff was employed by the defend- ant to sell the land described in the declaration as alleged in the declaration and that plaintiff's services resulted in a sale of the land to A., then you will find that plaintiff is entitled to commissions although you may further believe from the evidence that another broker on information de- rived from A., negotiated a contract of sale for the same land from the defendant to the representative of A., and that A. ac- quired the land by an assignment of the contract from his rep- resentative, and although you may further believe from the evidence that such other broker received his commissions upon the sale from the defendant, who paid him in ignorance of the facts, but without making any inquiry."^" 40 Bennett v. Kidder, 5 Daly (N. Y.) 512. BoWinans v. Jaques, 10 Daly (N. Y.) 487. (186) Ch. 26] BROKERS. [454 Fraud or bad faith of broker. (452) The court instructs the jury that if you believe from the evidence that plaintiff was employed by the de- fendant to sell the property described in the declaration, and that the plaintiff procured a purchaser on the terms pro- posed by the defendant and that the plaintiff attempted to induce defendant to take less than the price which was of- fered by the prospective purchaser, then plaintiff is not en- titled to compensation.^-^ Double commissions or employment. (453) The court instructs the jury that a real estate broker who is merely employed to find a purchaser of property upon terms and conditions to be determined by the seller when he meets the purchaser, and who is a mere middleman not vested with discretion respecting the price and terms of sale may accept a similar employment from a proposed purchaser and may be entitled to commissions from each party on the bargain being struck, although he has not in- formed either of his employment by the other.^^ Right as to commissions in absence of express contract as to amount. (454) The court instructs the jury that if they find from the evidence that plaintiff was engaged in the business of a property broker in the city of B. and that the defendant offered certain property for sale to the park commissioners of said city and that he employed the plaintiff to aid and assist him in effecting said sale, either by previous authority or the acceptance of the plaintiff's agency and the adoption of his acts, and that the plaintiff did diligently and faithfully occupy his time and render services in so aiding him to ef- fect said sale and a sale of said property to said commis- 01 Martin v. Bliss, 57 Hun (N. Y.) 157, 32 N. Y. St. Rep. 930. 62Knauss v. Gottfried Krueger Brewing Co., 31 Abb. N. C. (N. Y.) 454, 142 N, Y. 70, 58 N. Y. St. Rep. 316; Haviland v. Price, 6 Misc. Rep. (N. Y.) 372, 56 N. Y. St. Rep. 402. (187) 455] BROKERS. [Ch. 27 sioners was in a short time made and effected and that said services were of advantage and value to the defendant in effecting the said sale, then the plaintiff is entitled to re- cover such sum as the jury may find from the evidence to be a reasonable remuneration to the plaintiff for said serv- ices, and in ascertaining what is a reasonable remuneration, the jury may consider the rate of compensation, wliich they may find from the evidence was usual and customary in the said city for services of a like kind.^^ (455) The court instructs the jury that if they find from the evidence that the defendant employed the plaintiff to procure a purchaser for the property spoken of by the wit- nesses and the plaintiff did procure a purchaser for said property and the said property was sold by the defendant to the purchaser procured by the plaintiff, then the plaintiff is entitled to recover such compensation as they may find usual and customary."* CHAPTER XXVII. BUILDING AND CONSTRUCTION CONTRACTS. Authority of architect to employ persons to do work, 456. Substantial performance of contract, 457-461. Departure from original contract — Recovery for extra work and materials, 462-464. Time of performance — Waiver of delay, 465. When evidence of custom admissible, 466. Architect's certificate as condition precedent to recovery, 487- 469. Certificate of engineer as to work done and amount due under railroad construction contract, 470, 471. Liability of architect in the performance of his duties relating to the construction of buildings, 472. Rights of architect, 473. Authority of architect to employ persons to do work. (456) The court instructs the jury that if they believe i>8 Approved in Walker v. Rogers, 24 Md. 237. 5* Approved in Jones v. Adler, 34 Md. 440. (188) Ch. 27] BUILDING, ETC., CONTRACTS. [457 from the evidence that defendants (employed A. as their architect, to draw for them plans and specifications for a building to be erected for defendants and to superintend the building during its erection, and that defendants entered into a contract with B. to erect such building and complete it for a stipulated price according to such plans and specifi- cations, and if the jury believe from the evidence that the plans and specifications called for brick piers under said building and that the building so contracted for was in process of erection by B. under the contract with the de- fendants, given in evidence in this case, and that A. acted as architect under said contract, then, although the jury may further believe, from the evidence, that A. while so acting, employed the plaintiffs to remove the brick piers and put stone ones in their places, and that there was necessity for so doing, yet the court instructs the jury as a matter of law, that A. by virtue of his employment as architect, had no authority to bind defendants by employing plaintiffs to do said work and in the absence of proof that defendants au- thorized A. beforehand to do so, or had knowledge of all the facts, and subsequently ratified such act of employment, the jury should find for defendants, and the court instructs the jury that if they believe from the evidence that at the time of doing the work in question here sued for B. was construct- ing the building either by himself or his subcontractors, and" that B. was doing said work under the said special contract given in evidence, then, although the defendants, or one of them, was present at times when plaintiffs were doing the work in question, and said work was for their benefit or the benefit of the premises, still, the law will not imply an un- dertaking on the part of defendants to pay for said work) .* Substantial performance of contract. (4573 '^^^ court instructs the jury that substantial per- » Campbell v. Day, 90 111. 363. (189) 458] BUILDING, ETC., CONTRACTS. [Ch. 27 formance, as applied to a building contract, permits only sucli omissions or deviations from the contract as are inad- vertent or unintentional, are not due to bad faith, do not impair the structure as a whole, are remediable v^ithout do- ing material damages to other parts of the building in recon- structing and may without injustice be compensated for by deductions from the contract price.^ (458) The court instructs the jury that if they believe from the evidence that the plaintiff in this case entered into a contract with defendant for the construction of and that the plaintiff completed the in a workman- like and substantial manner and to the satisfaction of the engineer of the company and that the was accepted by the defendant company, then the plaintiff is en- titled to recover any sum that may be due him for said work under the contract here sued on, although the jury may believe from the evidence that the defendant company direct- ed a change in the method of doing the work.* (459) The court instructs the jury that under the writ- ten contract in evidence, the defendant was entitled to have erected such a building as was called for by the terms of the contract, and, though the jury may believe that there has been a substantial pei formance of the terms of the contract by the plaintiffs, yet nevertheless if the jury believe that the terms have not been fully complied with, the jury should allow to the defendant such sum or sums as from the evidence they may believe are reasonable and proper to enable the defendant to complete the building in the manner stipulated for in the contract.* (460) The court instructs the jury that there may be a aSpence v. Ham, 27 App. Div. (N. Y.) 379; Glacius v. Black, 50 N. Y. 145. 3 Norfolk & W. R. Co. v. Mills, 91 Va. 613. * Approved In Keeler v. Herr, 157 111. 57. 090) Ch. 27] BUILDING, ETC., CONTRACTS. [463 recovery without a literal or exact performance, as where a builder has in good faith intended to comply with the con- tract and has substantially done so, although there may be slight defects caused by inadvertence or unintentional omis- sions and (if the jury believe from the evidence that the plaintiff entered into a contract with the defendant to con- struct for defendant the building described in the declaration, and that there was a deviation from the plans constituting a part of the contract, by which the attic was made five inches lower than that called for by the plans and if the jury be- lieve from the evidence that this error was caused by a mis- take in measurement not detected by either party or by the architect until the building was completed, and that the deviation did not affect the exterior appearance of the build- ing or its usefulness or value in any respect, then the jury may find that there has been a substantial performance and in such case they will render a verdict for the plaintiff for the contract price less the damages, if any, which they may find to have resulted from the defect).'' (461) The court instructs the jury that in deciding wheth- 'er or not plaintiff was proceeding with said building in com- pliance with the contract, you are instructed that there must have been a substantial compliance in every material par- ticular in each item as called for by a fair, reasonable and practical construction of the contract, and plans and specifi- cations, taken together and where there is a conflict, if any, in these, this should be reconciled in a practical, workman- like manner, so as to arrive at the fair and reasonable in- tention of the same.® Departure from original contract — Recovery for extra work and materials. (462) The court instructs the jury that if they find from 6 Oberlies v. Bullinger, 132 N. Y. 598. 8 Approved In Linch v. Paris I^umber & Grain El. Co., 80 Tex. 23, (191) 462] BUILDING, ETC., CONTRACTS. [Ch. 27 the evidence that the defendant submitted or caused to be submitted to the plaintiffs the plan of the to be built at the , as contained in the document which was given in evidence, indorsed "— ," and the specifications of the to be built at as contained in said docu- ment, and that the plaintiffs undertook and agreed with the defendant to build said in accordance with the said plans and specifications and upon the terms set forth in the articles of agreement, dated , also in evidence; and shall further find that after the commencement of the work in question, it was found impracticable to build said in accordance with said plans and specifications and that the defendant changed the character of the from a to a and required the plaintiffs to use in the construction of the not called for by the specifications, as contained in said plan, or by said articles of agreement, and of a greater length than the called for by said papers, and that the plaintiffs built said for the defendant in accordance with said changes and that the defendant accepted said when finished and has not paid for the same; and shall further find that in conse- quence of said changes, the quantity and character of ma- terials, and the amount of labor required to be furnished and done by the plaintiffs in the construction of said — was greatly increased and the plaintiffs suffered loss from de- lays in consequence of said changes, so that the plaintiffs were put to a greater expense in constructing said as finally constructed, than they would have been, if said had been built according to the said original plans and specifications, then the plaintiffs are entitled to recover such sum as the jury may estimate such increase of labor and materials and such loss to amount to; in making such estimate the jury will be guided by the price named in said (192) Ch. 27] BUILDING, ETC., CONTRACTS. [465 original contract, so far as the same may be applicable to the work and materials as done and furnishedJ (463) The court instructs the jury that if they find from the evidence the facts set forth in plaintiff's first prayer and shall further find that any portions of said were built by the plaintiffs for the defendant, according to the said original plans and specifications, and said articles of agreement, and that said defendant has not paid for the same, then the plaintiffs are entitled to recover for such por- tions at the rates of compensation named in said agreement.* (464) The court instructs the jury that under the terms of the contract sued on in this case, the could be changed in any manner at any time, if the engineer of the defendant company considered such change necessary or expedient and that in case of any such change, no claim of an increase of price for the on the part of plaintiff on that account would be valid or be required to be considered by the defendant, unless such claim should be made in writ- ing before the work, under the plans as altered, should be commenced.* Time of performance — ^Waiver of delay. (465) The court instructs the jury that the parties to an agreement for the construction of a building may by their conduct waive the provisions contained in it and may extend the time of its performance and (if they believe from the evidence that plaintiff entered into a contract for the con- struction of the building described in the declaration, the building to be constructed in a certain time and that extra work was done by the plaintiff not called for by the contract, at the request of the defendant, and if the jury believe from f Approved in Annapolis & B. Short Line R. Co. v. Ross, 68 Md. 310. 8 Approved in Annapolis & B. Short Line R. Co. v. Ross, 68 Md. 310. » Norfolk & W. R. Co. v. Mills, 91 Va. 613. . . . (193) 466] BUILDING, ETC., CONTRACTS. [Ch. 27 the evidence that the work called for by the contract would have been done in time if it had not been for the extra work, then the jury are instructed that the defendant cannot insist on the performance of the contract in the time specified in the contract as being absolutely essential).^** When evidence of custom admissible. (466) The court instructs the jury that if they believe from the evidence that (the plaintiff was employed as an architect to make plans and diagrams of the building, de- scribed in the declaration, to be erected by the defendant, and if the jury believe from the evidence that there was a custom in the building trade, of long standing, and well known to the public that the employment of an architect to make plans and designs for a building, carries with it an employment to superintend the construction of the build- ing, and if the jury further believe from the evidence that plaintiff was prevented by the defendant from superintend- ing the construction of the building, then the jury are in- structed that the plaintiff was excused for thereafter aban- doning the contract and may recover for the services which he actually performed, notwithstanding such abandon- ment).^^ Architect's certificate as condition precedent to recovery. (467) The court instructs the jury that if they believe from the evidence that the plaintiff made a contract with the defendant for the erection of the building described in the declaration, and that the contract provided that the plaintiff should erect the building in accordance with the plans and specifications of the architect in a good and work- man-like manner to the satisfaction and under the direction of the architect, to be testified by a certificate under the hands of the architect, and if the jury believe from the evi- 10 Van Buskirk v. Stow, 42 Barb. (N. Y.) 9. "Wilson y. Bauman, 80 111. 493. (194) Ch. 27] BUILDING, ETC., CONTRACTS. [469 dence that before any payments were to be made to plaintiff by defendant plaintiff should obtain a certificate from the architect, then the jury are instructed that the mere fact that plaintiff completed the contract according to its terms, will not entitle him to recover payment, but that he must pro- duce the architect's certificate of compliance with the terms of the contract unless he can show fraud, collusion or bad faith, and that it is not sufficient to excuse the production of the certificate that the architect unreasonably withheld it.^^ (468) The court instrvicts the jury that if they believe from the evidence that plaintiff entered into a contract with the defendant for the construction of the building described in the complaint, payment to be made by the defendant to the complainant upon production of a certificate of per- formance by the architect and if the jury believe from the evidence that plaintiff applied to the architect for the cer- tificate of performance in accordance with the contract. and that the architect refused to give it, not on the ground of non- performance by the plaintiff, but because defendant had told the architect not to give the certificates and that if the jury believe from the evidence that plaintiff had fulfilled his agreement, then the jury are instructed that plaintiff can recover notwithstanding the refusal or failure of the archi- tect to deliver the certificates, if they find that the architect did refuse or fail to give the certificates.^^ (469) The court instructs the jury that if they believe from the evidence that plaintiff entered into a contract with defendant to construct a building for defendant as alleged in the declaration and that by the terms of the contract plaintiff was not to receive payment until the architect should have given a certificate of performance, and if the jury believe from the evidence that plaintiff substantially fulfilled his contract, though unintentionally he was guilty of slight 12 Schenke v. Rowell, 7 Daly (N. Y.) 286. IS Anderson v. Meislahn, 12 Daly (N. Y.) 149. (195) 470] BUILDING, ETC., CONTRACTS. [Ch. 27 defects in the performance and that he has acted in good faith and to the best of his ability in carrying out the contract, and if the jury believe that the architect refused to give the certificate of performance, then the jury are instructed that such refusal was ^unreasonable, and plaintiff may re- cover notwithstanding such refusal.''* Certificate of engineer as to work done and amount due under railroad construction contract. (470) The court instructs the jury that under the terms of the contract sued on in this case, the monthly esti- mates, ir order to be valid, must be accompanied by the cer- tificates of the chief engineer of the Company ap- proving the same, and declaring that the work done and ma- terials furnished, as therein stated, are according to the con- tract, and that the charges for the same are according to the contract and without such certificate no payment could be demanded by the plaintiffs, and in all questions connected with such estimates, and the amounts payable thereby and thereunder, the decision of the said engineer is final and con- clusive on both parties. And the court further instructs the jury, that if they believe from the evidence that the price fixed for the mentioned in the plaintiffs' declaration was fixed in the monthly estimates provided for in said con- tract, and that said estimates were afterwards approved by the said engineer, and his certificates appended thereto, as provided in said contract, then the price so fixed for all the work included in said estimates must be considered by the jury as the correct prices, unless the jury further be- lieve from the evidence that, in approving said estimates and in making his decision in reference thereto, and in giving the certificate approving the same, the said engineer was guilty of intentional fraud, or of such gross mistake as to necessarily imply bad faith on his part.^* " Demarest v. Haide, 52 N. Y. Super. Ct. (20 J. & S.) 398; Nolan v, "Whitney, 88 N. Y. 648. 16 Norfolk & "W. R. Co. v. Mills, 91 Va. 613. (190) Cii. 27J BUILDING, ETC., CONTRACTS. [473 (471) The court instructs the jury that if the jury be- lieve that the estimates provided for in the contract were proper, and show the correct amounts due the plaintiffs, then, before the plaintiffs could institute suit to recover the re- served percentage, they were bound to tender to the defendant the release stipulated for in the contract. But if the jury believe that the estimates were not proper because fraudulent, then the tender of such release was not necessary in order to give the plaintiffs the right to sue.*® Liability of architect in the performance of his duties relating to construction of buildings. (472) The court instructs the jury that if a person em- ploys an architect to draw plans for him and superintend the proper erection of the buildings and such architect is made the superintendent in the contracts between the owner and the contractors, and he only undertakes to give such su- perintendence as an architect usually gives, it is the duty of such architect to exercise such care and skill in the super- intending of work on such buildings, as is customarily re- quired from architects, and if the jury believe from the evidence that the defendant did not exercise the skill and care which architects are customarily required to exercise, and damages resulted to plaintiff from the failure to exer- cise such care and skill, then the jury should find for the plaintiff." Eights of architect. (473) The court instructs the jury that if they believe from the evidence that plaintiff was employed by defendant as architect to superintend the erection of the building de- scribed in the declaration and that plaintiff had control of the workmen employed in the construction of the building and that the workmen were to be paid in installments as the 18 Norfolk & W. R. Co. v. Mills, 91 Va. 613. " Vigeant v. Scully, 20 111. App, 437. (197) 474] BUILDING, ETC., CONTRACTS. [Ch. 28 building progressed and on production of the architect's cer- tificates, and that plaintiff suffered a substantial defect in the work to pass uncorrected, which ordinary vigilance coul^ have prevented, then the jury are instructed that plaintiff cannot recover for his services.^* CHAPTER XXVIII. BUILDING AND LOAN ASSOCIATIONS. Action by stockholder on paid-up stock, 474-479. Action by stockholder on paid-up stock. (474) The court instructs the jury that the plaintiff alleges that he became in due process the owner of certain shares of stock in the defendant building and loan associa- tion on condition that he was to pay an admission fee of a certain amount, and then pay installments on his stock for seventy-eight months. He alleges that the defendant build- ing and loan association agreed with him, that upon the payment by him of these seventy-eight installments together with the membership fee, it would then repay to him the full amount of $100 upon each and every of the said shares of stock. Under that arrangement he took twenty-five shares of the stock. He alleges that he performed all the condi- tions and terms of the contract on his part, and that the seventy-eight months have elapsed, the seventy-eight pay- ments have been made, and that he is entitled to his $2,500 — that is to say, $100 for each and every share of stock so held by him. He sets up in the complaint, that some years subsequent to the time of entering into this contract, he borrowed under a distinct and definite agreement with the defendant building and loan association a certain amount 18 Peterson v. Rawson, 15 N. Y. Super. Ct. (2 Bosw.) 234. C198) Ch. 28] BUILDING AND LOAN ASS'NS. [475 of money, and that ke pledged as security for the loan which he thus obtained from the defendant, the shares of stock he abeady held in the association, and that he was bound by the loan to do certain things; — that is, to pay the interest and premiums, and that he did pay these charges ; and now admits that the defendant is entitled to offset this loan which he procured from it against the amount due on his original contract, to wit: the sum of $2,500; and only claims that the defendant is bound to pay him the balance, after de- ducting the amount of his loan from the amount of the original contract. The amount of the loan being $937.50, and deducting that amount from $2,500, which he claims to be due on his original contract, leaves the sum of $1,- 562.50, which he claims is now due him from the defend- ant; and for this he brings his suit, together with the in- terest from the time he alleges it became due and payable and was refused payment.^ (475) The court instructs the jury that the defendant does not deny that there was a contract between the plain- tiff and defendant ; does not deny that he is a stockholder or member of the defendant association, but it sets forth a dif- ferent contract from that which the plaintiff seta forth. It alleges that instead of the period of seventy-eight months and seventy-eight monthly payments being limited as com- pleting the performance of the contract by the plaintiff, that the contract was that he became a member of the defendant building and loan association, subject to all of its by-laws and rules and regulations, its; charter and everything else governing the association; and claims further that under that arrangement he was bound to pay not only a definite, limited number of seventy-eight payments, but was bound to pay any additional payment which would be necessary, 1 Approved in "Williamson v. Eastern Building & Loan Ass'n, Syra- cuse, N. T., 62 S. C. 390. (199) ^76] BUILDING AND LOAN ASS'NS. [Ch. 38 taken together with the profits on his payments, to mature his stock to the par value of $100 for each share.^ (476) The court instructs the jury that the point at issue between the two parties is whether or not the contract was a definite, limited contract — limited to the payment of sev- enty-eight installments by the plaintiff, and the absolute obli- gation of the defendant arising thereon to pay him $100 a share; or whether it was, on the other hand, a contract by which the plaintiff was to keep on paying until by the books of the association or in some other way — ^whatever way they arrived at such conclusion — until his shares would arrive at the value of $100 each. The certificate of stock and the other matters that enter into the contract, as spe- cifically set forth in the certificate, are to be taken in con- nection with whatever representations the defendant actu- ally made at the time the contract was entered into ; and if it did make any representations in addition to those matters which led to the making of a different contract from that expressed by its by-laws and its articles of incorporation, that special contract governs rather than the general con- tract "which would result from its by-laws and articles of in- corporation in connection with the certificate of stock. It is for you to determine in the first instance, whether or not this defendant did induce the plaintiff by literature, by writ- ten or printed representations, or by verbal representations in addition to those contained in its certificate of stock and by-laws and other matters mentioned in the certificate to enter into this contract; whether it induced him to believe that it was a contract for a limited number of payments, and that upon the completion of those payments it would be a ful- fillment by the plaintiff of his side of the contract, and an absolute obligation on the part of the defendant to pay the amount of $100 a share. And if the evidence in the case 2 Approved In Williamson v. Eastern Building & Loan Ass'n, Syra- cuse, N. Y., 62 S. C. 390. (200) Ch. 28] BUILDING AND LOAN ASS'NS. [478 satisfies you that the defendant did bold out Buch repre- sentations, then those representations are binding on the defendant and fix the terms of the contract.^ (477) The court instructs the jury that the defendant in addition to its claim that it was an estimated period instead of a definite limited period sets up the further defense, that if it had undertaken to make a contract of the character that the plaintiff claims, that is a definite, fixed number of pay- ments, that it would have been acting beyond its powers aa a corporation under the laws that existed; and that, there- fore, such an act on its part would have been void — ^that such a contract would have been void as being in excess of the powers it possessed to make. The supreme court in con- sidering this case has laid down the principle that where the act that is alleged to be beyond the power of a corporation is not an immoral act, nor expressly forbidden by some law then the court will not allow the corporation to claim that it was ultra vires, or beyond its powers. So the principle of ultra vires cannot enter into this case.* (478) The court instructs the jury that defendant's re- maining defense is that the plaintiff waived the provisions of the contract when he entered into a subsequent contract by which he made a loan with the association. So that by the defendant's contention, if you should conclude that the plaintiff did have a definite contract with the defendant by which after the plaintiff had made seventy-eight pay- ments he would be entitled to receive $2,500, still, if you should also conclude that he entered into the loan contract, the contention of the defendant is that he waived his rights under the original contract and became bound by whatever changes had been made in the by-laws of the association sub- » Approved In Williamson v. Eastern Building & Loan Ass'n, Syra- cuse, N. Y., 62 S. C. 390. • Approved in Williamson v. Eastern Building & Loan Ass'n, Syra- cuse, N. Y., 62 S. C. 390. (201) 479] BUILDING AND LOAN ASS'NS. [Ch,. 28 sequent to the making of the original contract and up to the time of the making of this loan contract. A person may waive the right which he has especially a right arising omt of contract. And so, the plaintiff, even though he had the defendant bound by this original contract which he al- leges, had the power and right if he chose to waive the benefits accruing to him or the rights growing in his favor out of the original contract, and so release the defendant from the performance of it. A defendant relying on such a defense is bound to establish the facts necessary to show the truth of the defense by a preponderance of the evi- dence that the plaintiff did cast aside his rights and benefits which had accrued to him already under the contract and thereby release the defendant from its performance. If the defendant has offered evidence, satisfactory to your mind, of a waiver, it constitutes a good defense to the plaintiff's re- covery in this case. The plaintiff is not bound to show any- thing vidth reference to that matter unless in reply to any- thing which the defendant may show as going to establish the waiver. I charge you that where a man has a valid claim against another, he may afterwards pledge that claim to the other party in any transaction — any subsequent trans- action — and yet by that act of pledging not waive any right which he may have had under the original transaction. The mere act of pledging the shares of stock does not amount to a waiver of any right which the plaintiff had under the original contract." (479) The court instructs the jury that if you believe from the evidence that the plaintiff has established his con- tract, and it does not appear to be an unreasonable or im- moral contract, in which case the court would not allow him to set it up, he is entitled to recover on it, unless the de- fendant has shown something that would defeat it; and it » Approved in WUllamson v. Eastern Building & Loan Ass'n, Syra- cuse, N. y., 62 S. C. S»0. (202) Cli. 29] BUILDINGS. [480 only remains for you to dietermine whether or not he has established his contract. He is bound to prove it by the preponderance of the evidence ; and if he has so established it, then it remains for you to determine what your verdict will be in his favor, unless the defendant may have shown some matter which goes to defeat his right. The plaintifE is suing on a specific, definite claim, which must be the amount which he claims or nothing at all. He claims that his stock is paid-up stock, that he is not suing to recover from the defendant an amount due on stock which was not paid up. He claims that his stock was fully matured or paid up, and that he is entitled on the terms of the con- tract to have the full amount due on his contract — less the offset of the loan which you have heard mentioned. So your verdict must be in favor of the plaintiff for the full amount he claims, or else in favor of the defendant. There is no ground for you to give a compromise verdict, to give him a few hundred or a greater number of dollars, but you must either give the plaintiff the full amount he claims or give a verdict in favor of the defendant.® CHAPTEll XXIX. BUILDINGS. Liability for personal injuries sustained because of defects In public building, 480. Personal injuries sustained because of latent defects, 481. Iiiability for personal injuries sustained because of defects in public building. (480) The court instructs the jury that if they believe, from the evidence, that the defendants were the proprietors of the said grounds, and selected or adopted a plan for « Approved in Williamson v. Eastern Building & Loan Ass'n, Syra- cuse, N. Y., 62 S. C. 390. (203) 4J1] BUILDINGS. [Ch. 29 the building of said , including the quantity, size, quality and strength of the materials to be used, and that the was constructed upon such plan, and shall fur- ther believe, from the evidence, that the said structure was, in fact, weak, insufficient and dangerous to the lives or limbs of those who might go upon it, and that, before it was used by the visitors and patrons of said , the defend- ants, or any of them, were informed that it was weak, in- sufficient or dangerous, and did nothing to render it more secure, and, further, that said , or any part of it, did give away, break and fall, in consequence of such weak- ness and insufficiency, and plaintiff, as a visitor, and patron of said , without fault on his part, was injured in consequence thereof, such defendants should be held respon- sible to the plaintiff in damages.^ Personal injuries sustained because of latent defects. (481) The court instructs that those latent defects which are either concealed in defective workmanship, or are inci- dent to the ordinary wear and tear of houses, are among the casualties which no man can avoid without the extraor- dinary care and vigilance which the law does not impose. If you believe from the evidence that the platform was con- structed in a good and substantial manner, and gave no in- dication of being unsafe, up to the accident, then the de- fendant was under no legal obligations to have the said plat- form inspected from time to time; and if you find from the evidence that the defect in said platform was secret, and unknovrai to defendant and was incident to the ordinary wear and tear of said platform, then you will find a verdict for defendant.^ 1 Approved In Latham v. Roach, 72 111. 179. 2 Baddeley v. Shea, 114 Cal. 1. (204) Ch. 30] BURGLAilY. [483 CHAPTER XXX. BURGLARY.i Elements of the offense, 482. Necessity of breaking, 483. What constitutes breaking, 484. Same — Opening of closed screen door a breaking, 485. Same — Unlocking or opening of door a breaking, 486. Same — Entry by one having a right to enter, 487. Same — Entry at a time not authorized a burglarious breaking, 488. Necessity of entering, 489. What constitutes an entry, 490. Necessity of felonious Intent, 491. Intention must be Independently proven, 492. Felonious intent must accompany both the breaking and the entry, 493. Intent may be inferred from circumstances and conduct, 494. Direct proof of intent not necessary, 495. Intent need not be executed, 496. Carelessness of owner in securing premises no defense, 497. Elements of tlie offense. (482) The court instructs that before defendant can be convicted of burglary, the state must prove (1st) the break- ing (2nd) the entering (3rd) that the house broken and entered into was a dwelling house (4th) that the breaking and entering was in the nighttime (5th) that the breaking and entering was with the intent to commit a felony. In all these particulars, there must be proof satisfactory to the minds of the jury, and if the state fails upon any one point, the defendant is entitled to acquittal.* Necessity of breaking. (483) The court instructs that to constitute burglary, 1 See Criminal Law for forms of instructions applicable to crimes generally, including possession of stolen property as evidence of guilt. 2 State V. Whit, 4 Jones (N. C.) 349. (205) 484] BURGLARY. [Ch. 30 there must be an entry effected by means of a breaking of the dwelling house itself, and an unlawful entry through an open door or window, does not constitute burglary.' What constitutes breaking. (484) The court instructs that when it is said that a breaking of a dwelling house is necessary to constitute burg- lary, the word 'Tareaking" is used in a technical rather than a literal sense and it is not necessary that any part of the dwelling house be actually fractured to constitute a break- ing, but the removal or putting aside of some part of the house which is relied upon as security against intrusion, as by the opening of a closed door which is not locked or by the removal of a netting from an open window, is sufficient.* Same — Opening of closed screen door a breaking. (485) The court instructs that where the outer door of a building was open and a screen door was closed, but not fas- tened, the pushing open of such screen door, whereby entry into the house was effected, is a sufficient breaking to con- stitute the entry a burglarious one, if it was made with the intention required by law.' Same — ^Unlocking or opening of door a breaking. (486) The jury are instructed that the mere unlock- ing or opening of a door is a breaking, within the meaning of the statute.® Same — Entry by one having a right to enter. (487) The court instructs that if the defendant had a right to enter the building, as where he was one of the occupants thereof, or where the building was one open to the general use of the public, it is not a burglarious breaking for him to sMcGrath v. State, 25 Neb. 780. * Dennis v. People, 27 Mich. 151; Com. v. Stevenson, 8 Pick. (Mass.) 354. » State V. Conners, 95 Iowa, 485. « State V. Tutt, 63 Mo. 595. (206) Ch. 30] BURGLARY. [491 enter such building in a usual and ordinary manner, though the entry was made with an intention then entertained to commit a crime in such building, and not for any legitimate purposed Same — Entry at a time not authorized a burglarious breaking. (488) The court instructs that though defendant was em- ployed during the day-time, at the building, with the entry of which he is charged, and had during the day in the course of his employment, the fuU right to enter there, if he had during the night-time no duties about the building, and was not called upon or authorized in the course of his employ- ment to enter in the night-time, his entry during the night- time with the intent to commit a crime would be a burglarious entry, though it was effected by means of a key intrusted to him in the course of his employment.* Necessity of entering. (489) The court instructs that to constitute the crime of burglary, there must be not only a breaking, but an actual entry into the building.® What constitutes an entry. (490) The court instructs that to constitute an entry it is not necessary that the defendant should have brought his en- tire body within the building, but if any part of his body, even a finger, be brought within the interior of the building, it is sufficient to satisfy the requirements of -the law.^" Necessity of felonious intent. (491) The court instructs that though the jury believe from the evidence that defendant broke into and entered the dwelling house mentioned in the indictment in the night time, and that such breaking and entry were unlawful, he is not I Clark V. Com., 25 Gratt. (Va.) 908; State v. Moore, 12 N. H. 42. 8 Lowder v. State, 67 Ala. 39. » State v. McCall, 4 Ala. 643. 10 Com. V. Glover, 111 Mass. 395. (207) 492] BURGLART. [Ch. 30 guilty of burglary, unless at the time of such breaking and entry, he entertained an intention to commit a felony in such dwelling house.^-' Intention must be independently proven. (492) The court instructs that the felonious intent fc commit a crime within a building is a separate element of the offense and in order to convict of a burglary there must bo proof of some fact or circumstance or some act or declaration of the defendant in addition to the proof of a mere breaking and entering from which the jury can find such an inten- tion.i2 Felonious intent must accompany both the breaking and the entry. (493) The court instructs that in order to constitute burg-' lary, both the breaking and the entering must have been' made with the intention to commit a crime, and though the jury believe that defendant unlawfully broke and entered a dwelling house in the night-time, and that at the same time during such breaking and entering, he entertained a design to commit a felony within such dwelling house, or even if he actually did commit such felony, the offense is not burglary, if such design was not formed until after he had broken into and entered the house or if he committed the breaking with- out any such design, and thereafter with such design entered through the breach which he had previously made.-'^ Intent may be inferred from circumstances and conduct. (494) The court instructs that though the intent to com- mit a felony within a dwelling house entered is an essential of the offense, existence of such intention may be and usually must be inferred from the circumstances and from the con- duct of the person making the entry. The commission of an 11 Price V. People, 109 111. 109. "People V. Marks, 4 Park. Or. Rep. (N. Y.) 153. 13 State V. Moore, 12 N. H. 42. (208) Ch. 30] BURGLARY. [497 offense is strong but not conclusive evidence that the entry was for that purpose, and on the other hand an intention to commit an offense may be inferred from the circumstances of the entry and from the absence of other motives therefor, though no felony was in fact committed.-'* Direct proof of intent not necessary. (495) The intent with which an act is committed being but a mental state of the party accused, direct proof of it is not required, but it is generally derived from and established by the attendant facts and circumstances as shown by the evidence; so in this case the intent with which defendant entered the dwelling house of G. if you find that he did enter it, must be determined by you from all the evidence in the case.^'' Intent need not be executed. (496) The court instructs that to constitute the crime of burglary, it is necessary that the breaking and entering should be with the intent to commit a felony within the building, but it is not necessary that such intent should be can-ied out, and if the jury are convinced by the evidence that defendant did break and enter into the dwelling house mentioned in the indictment, and that he then and there entertained an intent to commit a felony therein, the jury should convict, though as a matter of fact, no crime of any kind was actually com- mitted by defendant within such dwelling.^^ Carelessness of owner in securing premises no defense. (49T) The court instructs that if the jury believe from the evidence that defendant entered the building mentioned in the indictment by breaking into the same, as breaking has been defined to you by the court, the fact that the owner or 14 Com. V. Hope, 22 Pick. (Mass.) 1; State v. Boon, 13 Ired. (N. C.) 244; Steadman v. State, 81 Ga. 736. 15 State V. Maxwell, 42 Iowa, 210. 16 Harvick v. State, 49 Ark. 514. Instr. Juries. — 14. (209) 497] CARRIERS. [Ch. 31 llis servants might by the use of reasonable care have so se- cured the building with its fastenings that no such breaking or entry would have been possible, and that defendant's entry was made possible only by the carelessness of the owner in failing to fasten his doors, is no defense.^ ^ CHAPTER XXXI. CARRIERS. L Ik Genebai. Duties of carriers by stage-coach, 498. Injury to passenger attempting to aligM from steamboat, 499-501. Carriers of baggage — Connecting carriers — Burden of proof, 502. Same — Liability for loss — ^Acts of public enemy, 503. II. Cabbiebs of Fbeioht. Failure to transport goods — Property subject to quarantine, 504. Liability as warehousemen — Goods received for immediate shipment, 505. Conclusiveness of bill of lading as to receipt of goods in good order, 506. Delay exposing goods to unprecedented flood, 507, 508. Destruction of freight by fire, 509, 510. Validity of limitation of liability of connecting carrier, 511. Damages, 612. Liability for special damages, 513. Duty of consignee to prevent further injury after delay, 514. Recovery back of freight, 515. Lien for freight on replevin by shipper to recover goods, 516. III. Cabbiebs of Live Stock. Failure to furnish cars for transportation, 517. " Lyons v. People, 68 111. 271. (210) Ch. 31] CARRIERS. Liability for delay, 518. Implied contract to deliver at a certain time, 519. Liability for damage resulting from concealment of condi- tion of cattle, 520. Duty of connecting carriers to deliver, 521. Liability of connecting carrier — Contributory negligence of plaintiff in loading stock, 522. Limitation of liability of connecting carriers, 523. Duty to make claim for damages within reasonable time, 524. rv. Caeeiers or Passengees. A. CABS RIXjniBBD IN QENEBAL. Degree of care required in general, 525-530. Duty to exercise highest degree of care and caution, 531. Liability of carrier as insurer, 532, 533. Liability for mere accident where there is no neglect of duty, 534, 535. Definition of negligence, 536, 537. Duty required of carriers' employees, 538. Duty as to control and discipline of servants, 539. Duty to protect passenger from improper and unnecessary violence of servant, 540. Liability for unauthorized acts of servants, 541. Duty to anticipate passenger's negligence, 542. Care in construction and inspection of cars, 543. Liability for detective cars of other companies, 544. Duty to foresee accident, 545-547. Instruction eliminating contributory negligence, 548, 549. Liability to person traveling free, 550-552. Negligence in the operation of trains over tracks which passenger must cross in order to change cars, 553, 554. B. THE RELATION OP CABRIEK AND PASSENGER. Person coming to station to board train, 555. Effect of leaving train open for reception to passengers, 556. Persons taking freight trains on which there is a custom to carry passengers, 557. Right of mail clerk to recover for negligence, 558. Express messenger — Injury from explosion of locomotive boiler, 559. Person attempting to ride on ticket purchased from scalper, 560-562. (211) CARRIERS. [Ch. 31 Where it Is contended that plaintiff's Intestate was a tres- passer, 563. Through contract of transportation — Liahility for accident on connecting line, 564. When relation terminates, 565, Burden of proof, 566. C. EJECTION or PASSENQEBS. Ejection of passenger refusing to pay fare, 567. Ejection of passenger on failure to exhibit ticket, 568. Reasonableness of rule requiring surrender of ticket, 569. Reasonableness of regulation requiring payment of extra charge where tickets are not procured, 570. Effect of requiring extra charge as increasing extra fare be- yond statutory limit, 571. Duty to stop freight train at passenger station, 572. Questions lor jury as to proper place for stopping train, 573. Expulsion of passengers on freight train who have not se- cured tickets, 574. Bight of carrier to make rules concerning stops and to eject passenger from train not stopping at his point of desti- nation, 575. Bight of passenger having through ticket to stop over, 576. Manner and place of expulsion, 577. Liability for injury to passenger sustained in resisting ex- pulsion, 578. Bight to expel disorderly passenger and secure arrest after expulsion, 579. Question of fact as to existence of carrier's rules, 580. D, TAKING ON PASSENGERS. Discharge of carrier's duty by drawing up in usual man- ner, 581. Making misleading stop before final stop at station, 582, 583. Directions of employees Inducing passenger to attempt to board train, 584. Duty of passenger to obey warnings of carrier's servants, 585. Duty to assist passenger to board train, 586. Taking on passengers at out-of-the-way places, 587. Effect of train being behind time, 588. Duty to protect passenger from injury from trains on ad- joining tracks, 589. Starting while passenger is en route to seat, 590. Invitation to passenger to cross the tracks at station, 591. (2i2y Ch. 31] CARRIERS. E. OAKB AS TO STATIONS, TRACKS AND EQUIPMBITti Necessity of furnishing platform, 592. Requisite length of platform, 593. Duty to protect persons on platform, 694. Duty to light platform, 595, 596. Effect of long-continued use of platform, 597. ' Construction and inspection of bridges, 598. Duty to Inspect and replace ties, 599. Accident resulting from sudden thaw, 600. Broken rail caused by extreme cold, 601. Duty to provide seats, 602. Duty to provide seat in particular part of car, 603. F. SUTTINQ DOWN PASSENGEBS. Notice of arrival at station, 604. Duty of passenger to be in readiness to alight, 605. General liability, 606. General duty — Instruction framed for defendant, 607. Degree of care required to protect passenger while alighting, 608, 609. Drawing up to the platform, 610. Starting after temporary stop — Right of passenger to as- sume that first stop is at platform, 611, 612. Duty to sufficiently light platform, 613. Necessity of bringing train to complete stop, 614. Duty to afford time to alight, 615, 616. Definition of reasonable time to alight, 617. Additional duty imposed by infirmity of passenger, 618. Duty to assist feeble passenger, 619. Duty of passenger to hasten to alight, 620. Starting train while passengers are in act of alighting, 621, 622. Use of unsafe box or device to assist in alighting, 623. Effect of startling passenger, 624. Liability for acts of brakeman in attempting to assist passen- gers to alight, 625. Injuries received after alighting, 626, 627. Instruction submitting issue of contributory negligence, 628. Q. OONTBIBUTORT NEGLIGENCE Off PASSENQBE. Definition of contributory negligence, 629, 630. Doctrine of comparative negligence, 631-635. Liability of carrier to use ordinary care to avoid conse- quences of plalntiif's negligence, 636. Degree of care required of passenger, 637, 638. (213)' CAHRIBRS. [Ch. 31 Duty of passenger to exercise ordinary care, 639. Definition of ordinary care, 640-642. j Risks assumed by passenger, 643. Attributed negligence of plaintiff's husband, 644. ■ Instructions of carriers' servants justifying acts of pas- ; Sanger, 645. Matters wblch may be considered In determining Question of negligence, 646. Use of intoxicating liquors, 647, 648. Standing on platform, 649-651. Riding on platform on account of lack of accommodations inside, 652. Passing from one car to another, 653-656. Statutory provision requiring that contributory negligence must be criminal, 657. Criminal negligence where sufficient time to alight Is not afforded, 658, 659. Under statute requiring that act when not criminally negli- gent must be in violation of a known rule of the company, 660, 661. Mail agent projecting head from car, 662. Allowing arm to project from car window, 663, 664. Postal clerk riding in mail car, 665. Passenger leaping to avoid sudden danger, 666. Alighting when train has not stopped at platform, 667, 668. Failure to take note of arrival at station, 669. Duty of passenger to exercise reasonable diligence while alighting, 670, 671. Jumping from car steps to platform, 672. Neglect of passenger to avail himself of railing, 673. Passenger alighting from moving train, 674-676. Matters controlling negligence in attempt to leave train In motion, 677. Consideration of youth of plaintiff in determining question of negligence, 678. Stepping from moving train where carrier has failed to make sufficient stop, 679-681. Passenger alighting from moving train by direction of car- rier's servant, 682-686. Passenger pulled from moving train by conductor, 687. Leaving moving train to avoid being carried by station, 688, 689. Burden of proof of contributory negligence, 690, 691. Burden of establishing freedom from contributory negli- gence. 692. (214) Ch, 31] CARRIERS. [499 H. STIDENCJ! AOT> B0EDES OV PBOOF IH ACTI01S8 SOB INJURY IP PASSENGER. Where burden lies in general, 693. Burden of proof of negligence, 694. Presumption of negligence from happening of Injury, 685- 698. Shifting of burden, 699. Burden of proof of invitation to alight, 700. Effect of failure of evidence as to cause of injury, 701, 702. Duties of carriers by stage-coach. (498) The court instructs the jury that, it is the duty of stage proprietors who run a line of coaches for the convey- ance of passengers, to provide good coaches, harness and horses, and good, skillful and careful drivers; and should they fail to do so, and their passengers are injured by such failure, the proprietors are responsible. They are not only to furnish good coaches, harness, horses, and skillful and careful drivers, but they are to keep them in good repair, and are to see that their drivers drive with the utmost skill and prudence. Carriers of passengers for hire are bound to exert the utmost skill and prudence in conveying their passengers and are responsible for the slightest negligence or want of skill either in themselves or their servants. They are bound to use such care and diligence as a most careful and vigilant man would observe, in the exercise of the ut- most prudence and foresight.^ Injury to passenger attempting to alight from steamboat. (499) The court instructs the jury that if they believe from the evidence that the boat of defendant had stopped at a point intermediate the point of the departure of the boat and the destination of plaintiff, and if they believe from the evidence that a staging had been run out so that pafjsengers could pass to and from the boat, and that the boat was to stop at the said point several hours and if they fur- ther believe from the evidence that it was not dangerous 1 Approved in Sales v. Western Stage Co., 4 Iowa, 547. (215) 500] CARRIBHS. [Ch. 31 nor perilous so far as a prudent person could discover to attempt to leave the boat, then if the plaintiff while attempt- ing to leave the boat over the staging, and vi^hile in the exer- cise of ordinary care was injured, through the lack of ordi- nary care on the part of defendant's servants, plaintiff may recover.'' (500) The court instructs the jury that in an action to recover damages for an injury sustained by plaintiff, against the defendant, for negligence, the injury complained of must have been occasioned by the negligence or carelessness of the defendant; and if the jury believe from the evidence, that the injury complained of was occasioned by the plaintiff, on leaving defendant's boat, in jumping ashore and striking some hard substance concealed under the snow on the wharf or landing, and thereby produced the injury, and that said hard or uneven substance occasioning the injury was not placed there by or known to the defendant, and that the land- ing was made at the usual place of landing passengers, then this is not such negligence, on the part of defendant, as will entitle the plaintiff to recover against them. That the neg- ligence or carelessness contemplated by the law to render the defendant liable for the injury complained of, must be a want of care and vigilance on the part of the employees of the defendant, and they cannot be held liable for acci- dents occurring, by which an injury is sustained by a per- son, from causes not under their control or care.^ (501) The court instructs the jury, if the jury believe, from the evidence, that even if the jury should believe, from the evidence, that the captain of the boat told the plaintiff to jump off the boat at the time he jumped off, that he could do so with safety, yet left it voluntary with the plaintiff to jump or not, then what the captain might have said at the time (if the jury believe, from the evidence, anything 2 Keokuk Northern Line Packet Co. v. True, 88 111. 608. 3 Northern Line Packet Co. v. Binninger, 70 III. 571. (216) Ch. 31] CARRIERS. [503 A?as said) did not release the plaintiff from the duty of ex- ercising reasonable judgment and caution as to whether it was safe to get off or not ; and if the jury believe, from the evidence, that, under all the circumstances existing at the time, a man of ordinary prudence, situated as plaintiff was, would not have jumped off, then the jury should find for defendant.* Carriers of baggage— Connecting carriers— Burden of Proof. (502) The court instructs the jury that if they find from the evidence that the trunk in question was in the posses- sion and under the control of the defendant at P., then the burden of proof is on the defendant to show that the said trunk was carried in safety by the defendant to their ter- minus in M., and that it was there delivered by the defend- ant safely to the railroad company, which the jury may find was the company that ought to have carried the trunk to N., if the journey had not been interrupted, for the pur- pose of having it transported to N., and that unless the jury find that the said trunk was so delivered, the plaintiff is entitled to recover the value of the said trunk and its contents provided the jury find that the said trunk was never delivered to the plaintiff and that a demand for the said trunk was made by the plaintiff or her agent as proved by the plaintiff's witnesses." Same — ^Liability for loss — Acts of public enemy. (503) The court instructs the jury that if they shall find from the evidence in the case, that the plaintiff procured, in the city of B. on the day of , 19 — , a through ticket to the city of N. and that she started in the train of that morning and in one of the cars of the defendant with a certain trunk as a part of her baggage, for which she had * Northern Line Packet Co. v. Binnlnger, 70 111. 571. B Philadelphia, W. & B. R. Co. v. Harper, 29 Mo. 330; Harper v. Philadelphia, W. & B. R. Co., Id. (217) 503] CARRIERS. [Cb. 31 received a baggage check marked 'No. -■- — — , and shall find from the evidence that such through ticket was of the form and character as the through ticket which has been off^ed in evidence in this case, and shall further find from the evi- dence in the cause that such through ticket was issued by the authority of the defendant, of the ™— ^^ R. E. Co., and of the Eailroad & Transportation Co., in virtue of an arrangement before that time made, and then subsisting between said companies, and shall further find, that said several companies were separate and independent compa- nies ; and shall further find from the evidence in the case that the prompt transportation of the plaintiff and her baggage from B. to 1^. was prevented by an incursion of the public enemy on said date by which the train was stopped at M. and the baggage removed from the cars and that the cars themselves were destroyed by fire and that much of the bag- gage was carried off and part thereof greatly injured, and shall further find that afterwards and without any ueglect or unavoidable delay on the part of the defendant or its servants or agents, except such delay as the jury may find from the evidence in the case was occasioned by the incur- sion of the public enemy as above stated, the baggage of the plaintiff so far as not carried off by the public enemy or others was forwarded over the road of the defendant and was carried safely by the defendant to their terminus at P. and that it was there delivered by the defendant safely lo the railroad company which the jury shall find was the com- pany that ought to have carried the trunk to N., if the jour- ney had not been interrupted, for the purpose of having it transported to IST., and that the defendant had not before or at the time of the commencement of this suit, since a deliv- ery of said trunk as aforesaid (if the jury shall find such delivery) any possession of or control over, said trunk of the plaintiff, then the plaintiff is not entitled to recover in (218) Ch. 31] CARRIERS. [5O5 this case as against this defendant the value of said trunk and its contents.* 11. Cabeiees or Fbbiqht. Failure to transport goods — Property subject to quarantine. (504) The court instructs the jury that if the jury be- lieve from the evidence that defendant could not ship the cotton on account of yellow fever or any consequences aris- ing from reports of the same, and if they further believe from the evidence that defendant knew it could not be ship- ped at the time the' cotton was received and the bill of lad- ing issued, and if they further find from the evidence that the defendant did not notify plaintiff at the time the cot- ton was received of such inability to ship the cotton and if they believe that plaintiff has been injured and that such injury would not have been received had the cotton been rejected, the jury should find for plaintiff.'^ Liability as warehousemen — Goods received for immediate ship- ment. (505) The court instructs the jury that if they find from the evidence that the goods were delivered to defendant for the purpose of immediate transportation, and without await- ing further orders from the shipper, that the carrier in hold- ing the goods in question in storage does so as a carrier and not as a warehouseman ; but if the jury finds from the facts that the goods were not to be immediately shipped, but were to be held for shipment until some future time, or until fur- ther orders were given, then the carrier in holding such goods in storage is a warehouseman and not a carrier.® e Philadelphia, W. & B. R. Co. v. Harper, 29 Mo. 330; Harper v. Philadelphia, W. & B. R. Co., Id. 'Alabama & V. R. Co. v. Hayne & Co., 76 Miss. 538. sFitchburg v. Hannah, 6 Gray (Mass.) 539; Goodbar v. Wabash R. Co., 53 Mo. 434; Pittsburgh R. Co. v. Barrett, 36 Ohio St. 448; Clark v. Needles, 25 Pa. St. 338; St. Louis R. Co. v. Knight, 122 U. S. 79; Bannon v. Bldridge, 100 Mass. 457; Watts v. Boston R. Co., 106 Mass. 467. (219) 506] CARRIERS. [Ch. 31 Conclusiveness of bill of lading as to receipt of goods in good order. (506) The court instructs the jury that if they believe, from the evidence, that the defendant received the grain claimed to be in a damaged condition when it arrived, and gave bills of lading acknowledging the receipt of such grain in apparent good order, then such bills of lading are prima facie evidence that the grain mentioned in such bills of lad- ing was, at the time it was shipped, in good order and con- dition, and is binding on the defendant unless rebutted and to overcome such prima facie evidence, it is incumbent on the defendant to introduce such evidence as will show, to the satisfaction of the jury, that such grain was not, in fact, in good order and condition.* Delay exposing goods to unprecedented flood. (507) The court instructs the jury that if the jury find from the evidence before them that the defendant, its agents or employees, received the (car load of wheat) testified to in this case at (Shenandoah Junction) on (Wednesday, May 29th,) to be transported by defendant over its road from said (Shenandoah Junction) to (Washington in the district of Columbia) and at said (Washington) to be de- livered by the defendant for the plaintiffs to W., subject to the terms and conditions of the printed contract offered in evidence and further find that said defendant, its agents or employees, transported said (car load of wheat) from said (Shenandoah Junction) to (Washington Junction) and at said (Washington Junction) side tracked said (car load of wheat) and further find that while said (car load of wheat) was standing upon said side track, said defendants, its agents or employees, had warning of the approaching flood whereby the (wheat) was damaged and further find 9 Approved In Illinois Cent. R. Co. v. Cobb, Blaisdell & Co., 72 111. 148. ^220^ Ch. 31] CARRIERS. [-508 that said defendant, its agents or employees, notwithstand- ing such warning of danger, did not exercise ordinary skill, prudence, diligence and foresight to save said (car load of wheat) from being injured and damaged by the flood, and further find that by reason of said failure upon the part of said defendants, its agents or employees, to exercise said ordinary skill, prudence, diligence and foresight, said (car load of wheat) was caught and submerged by the flood and injured and damaged on (June 1st) then the plaintiffs are entitled to recover to the extent of the injury sustained.^" (508) The jury are instructed that if .they find from the evidence before them that the damage to the (wheat) for which this action is brought was occasioned by a sudden high and extraordinary freshet in the (Potomac) river, which occurred the (last of May or the first of June, 1889,) overflowing and submerging the railroad track of the de- fendant at the (Washington junction of the Metropolitan branch road) where the (wheat) was then in a car on the tracks of said road, and that said freshet was the immediate and direct cause of the damage to the (wheat) as testified to by the witnesses, then the plaintiffs are not entitled to recover for such damage to the (wheat) although there may have been undue and unnecessary delay by the defendant in the transportation of said (wheat) to its place of destina- tion previous to the occurrence of such damages thereto by the freshet, unless the jury believe from the evidence be- fore them that the defendant could by reasonable exertion and diligence in the use of the means at its command after discovering the impending danger to the (wheat) from the rising flood, have saved the (wheat) from the injury by the water by moving the car to a place of safety or by the rea- sonable use of any other means in its power, have prevented such damage, but that the burden of proof of the want of diligence and care in this respect on the part of defendant i» Approved in Baltimore & O. R. Co. v. Keedy, 75 Md. 320. (221) 509] CARRIERS. [Ch. 31 rests with the plaintiffs. If, by the use of reasonable care and diligence after the freshet had subsided, the (wheat) or any portion thereof, could have been saved from ruin, it was the duty of the defendant so to save the same, and if any portion of the (wheat) was lost or ruined that could have been so saved, the defendant is liable therefor.^* Destruction of freight by fire. (509) The court instructs the jury that if they believe, from the evidence, that defendant held the leather for ship- ment by its usual and customary route for shipping freights to P., and that such arrangement for shipment was reason- ably prudent, and if the jury believes from the evidence, that defendant exercised reasonable care and diligence in keeping it for such shipment, then plaintiff is not entitled to recover, and the jury must find for the defendant.^^ (510) The court instructs the jury that the law did not reqviire the defendant to inform the plaintiff of the route over which it would ship the leather, and if the plaintiff did not give the defendant instructions over which route to ship the leather, then the law gave the defendant the right to ship the leather over the usual and customary route the defendant used to ship the goods from Gr. to P., if such route was rea- sonable and prudent.^ ^ Validity of limitation of liability of connecting carrier. (511) The court declares the law to be, that if they be- lieve from the evidence that the plaintiff at the time of de- livering the package in question to the defendant's agent received a receipt for the said package wherein it was ex- pressly stipulated that the defendant would not be responsi- ble for the same beyond the station of defendant nearest to M., to which place plaintiff desired the package to go and "Approved in Baltimore & 0. R. Co. v. Keedy, 75 Md. 320. 12 Approved in Louisville & N. R. Co. v. Gidley, 119 Ala. 523. 13 Approved in Louisville & N. R. Co. v. Gidley, 119 Ala. 523. (222) Ch. 31] CARRIERS. [511 plaintiff's attention was called to or he knew of such under- written limitation at the time, and that when it reached that point defendant was to deliver the package to others, and that S. was the nearest point on the route of defendant to M., and that defendant carried said package safely and in good order to S., and there delivered it to the — - — in good order to complete the transportation, then defendant was not liable any further, and the issues must be found for de- fendant. The court declares the law to be that if they believe from the evidence that the plaintiff, at the time of delivering the package in question to the defendant's agent, received a re- ceipt for the said package, wherein it was expressly stipu- lated that defendant would not be responsible for the same beyond the station of defendant nearest to M., to which place plaintiff desired the package to go and that when it reached that point defendant was to deliver the package to others to complete the transportation, and that S. was the nearest point on the route of defendant to M., and that defendant carried said package to S. safely and in good order, and then delivered it to the in good order to complete the transportation, the defendant was not liable any further, and the issues must be found for defendant. The court instructs the jury that the defendant in this case, being a common carrier, had the right to limit its responsibility by special contract, and if the jury believe from the evidence that the defendant made a special contract with the plaintiff, whereby it accepted said package upon the express condition that it was not to be responsible for the same beyond its line, and if they' find that defendant car- ried said package safely to S., the terminus of its route, in the direction of M., the destination of the package and then delivered it to another responsible forwarder and carrier, then its responsibility ceased, and defendant is not respon- sible for any loss happening after that time.^* 1* Approved In Snider v. Adams Exp. Co., 63 Mo. 376. (223) 512] CARRIERS. [Ch. 31 Damages. (512) The court instructs the jury that, you are further charged at the request of the defendant, that, if you believe from the evidence that if the plaintiff sustained any damages by any of said trees becoming wholly worthless before they arrived and were tendered to plaintiff at A., if not after they were so tendered, and while they were being transported to that place, or by any of said trees being partially dam- aged by reason of their delay in transportation while in defendant's hands, then the jury will estimate such dam- ages as the evidence shows the plaintiff to have sustained, if any damages are shown, and return a verdict for such amount; but if the jury believe from the evidence that only a portion of said trees were damaged, and that within a reasonable time after said trees arrived at A. they were ten- dered to plaintiff, then it was the duty of plaintiff to accept said trees, and if you believe such tender was made to plain- tiff, then he can only recover damages for such trees as were shown to have been totally worthless and damages for such other trees as were damaged at the time, if any were dam- aged. ^^ Liability for special damages. (513) The court instructs the jury that, in order that the defendant may be rendered liable for the special damages claimed, that is the price which various persons had con- tracted to pay for the goods shipped on the delivery at sought to be recovered in this case, the facts of the sale of such goods by plaintiff should have been brought to the attention of the defendant at the time such goods were delivered to it for shipment, and unless you find from the evidence, that defendant was so notified, or knew at the time said goods came into his hands of the special circumstances which made a quicker delivery necessary, or unless you find 15 Approved in St. Louis S. W. R. Co. v. Gates, 15 Tex. Civ. App. 135. (224) Ch. 31] CARRIERS. [515 from tlie evidence of the nature of the character of the freight, that defendant was charged with knowing that a quicker and speedy delivery thereof was important and necessary, you should not allow plaintiff the special dam- ages claimed by him.-^* Duty of consignee to prevent further injury after delay. (514) The court instructs the jury at the request of de- fendant, that if you believe from the evidence in this case that the trees in question were tendered to plaintiff aftei' their arrival at A., and that if plaintiff had received them he could have preserved tJiem, or any part of them, by the use of proper care and attention, it was his duty to have done so, and if he suffered loss on account of such failure to preserve said trees, he cannot recover for such loss.-''' Recovery back of freight. (515) The court instructs the jury that if they find from the evidence in this case that the defendant filed with the interstate commerce commission its tariff rates on (hay) and that said tariff rates so filed with the said interstate com- merce commission covered the tariff rate on (hay) from the station of (Cale, Indian Territory, to the city of St. Louis, Missouri,) and that said tariff rate on (hay) was printed and publicly posted at said station of (Cale) for the infor- mation and inspection of the public, and that in accordance with such tariff rate so filed with said interstate commerce commission, and so printed and posted, the rate on (hay) was fixed and established at (25 cents per 100) with a mini- mum weight of (20,000 pounds per car), and that such tariff rate was on file with the said interstate commerce commis- sion at the time the (hay) in controversy was shipped, and that there had been no reduction in said tariff rate for a 16 St. Louis S. W. R. Co. v. Cates, 15 Tex. Civ. App. 135. 17 Approved In St. Louis S. W. R. Co. v. Cates, 15 Tex. Civ. App. 135. (225) Instr. Juries. — 15. 516] CARRIERS. [Ch. 31 period of three days before the shipment of the hay in con- troversy was made, and if you further find the defendant only collected from plaintiff an amount of money not ex- ceeding the rate of (25 cents per 100, with a minimum of 20,000 pounds per car,) then you must find for the defend- ant in this case.^* Lien for freight on replevin by shipper to recover goods. (516) The court instructs the jury that if the jury find the bill of lading offered in evidence, it was the duty of the master to unload the cargo on the wharf of the plaintiff, and until his duty was performed, the vessel's lien upon the cargo for the freight was only inchoate and conditional and if the jury find that after the arrival of the vessel at the plaintiff's wharf and before the cargo was so unloaded, the vessel was without notice to the plaintiff removed to a dis- tant wharf of defendant for the purpose of being there un- loaded, then the defendant had no such special property in the wood as to defeat this action and the plaintiff is enti- tled to a verdict and to recover such actual damage as the jury may find from the evidence he has sustained in con- sequence of such removal.^* III. Caeeiebs or Live Stock. Failure to furnish cars for transportation. (517) The court instructs the jury that if the jury be- lieve, from the evidence, that the defendant received from the plaintiff, on the , his cattle and hogs for trans- portation to, and delivery at, B., and that, at the time of the receipt of the stock, the road of defendant, and its con- necting lines running to B. were so crowded with freight that they were unable to furnish cars within the usual time for the transportation of plaintiff's stock, then such crowded 18 Approveijn Missouri, K. & T. Ry. Co. v. Bowles (Ind. Ter.) 40 S. W. 899. 19 Approved In McCuUough v. Hellweg, 66 Md. 269. (226) Ch. 31] CARRIERS. [519 condition of said road or roads would furnish no excuse for the defendant if plaintiff's stock was not delivered at B., in a reasonable time, if the jury believe the defendant was so bound to deliver.^" liability for delay. (518) The court instructs the jury that if you find from the testimony that said defendant, Railway Com- pany — ^ received the cattle of plaintiff, as alleged, to be transported to and you further find that while being so transported some of said cattle died and others were injured and damaged, and you further find that said de- fendant failed to transport said cattle over its line of road within a reasonable time, or failed to use ordinary care in the handling and transportation of said cattle, and you fur- ther find that such failure, if any, was negligence, and that such negligence of said defendant, if any, was the proximate cause of the injury and damage, if any, to plaintiff's cattle, then you are instructed to find for plaintiff, unless you find for defendant under instructions hereinafter given you.^^ Implied contract to deliver at a certain time. (519) The court instructs the jury that a common car- rier does not guarantee the delivery of live stock received by it for transportation on any particular market, that is, on any particular market day.^* 20 Approved In Toledo, W. & W. R. Co. v. Lookhart, 71 111. 627. 21 Approved in Missouri, K. & T. Ry. Co. of Texas v. Chittlm, 24 Tex. Civ. App. 599. 22 Approved in Norfolk & W. R. Co. v. Reeves, 97 Va. 284. This Instruction is properly given where the declaration does not allege notice to the carrier that the stock shall be shipped for a particular market, and in the case at bar, under such plead- ings it was held that an amendment by the insertion of the words "Unless notified that the shipment was made for that market" was erroneous. (227) 520] CARRIERS. [Ch. 31 Liability for damage resulting from concealment of condition of cattle. (520) The court instructs the jury that when the plain- tiff offered his cattle to the defendant for shipment, it was the right of defendant's agent to make any inquiry as to their physical condition which he saw iit, and if upon such inquiry heing made the plaintiff concealed facts relating to their physical condition, and thus preventing the defendant from exercising the care which the cattle of plaintiff in their peculiar physical condition were entitled to, plaintiff can- not recover, if the jury believe from the evidence that the injuries here sued for were caused partly by the peculiar and physical condition of the cattle of plaintiff.^* Duty of connecting carriers to deliver. (521) The court instructs the jury that under the bill of lading read in evidence in this case, it was the duty of the defendant, upon the arrival of the (apples) at E., to deliver them to a connecting carrier, to be transported to their destination ; and if the jury believe, from the evidence, that the defendant transported said (apples) to E. without unreasonable delay, and there delivered them to the Company, a connecting carrier, for transportation to S., the place of their destination then the jury will find for the de- fendant.^* Liability of connecting carrier — Contributory negligence of plaintiff in loading stock. (522) The court instructs the jury that the defendant, Company , would only be liable for damages and injury, if any, done to said cattle by reason of the neg- ligence, if any, of said company while said cattle were in 23McCune v. B. C. R. & N. R. Co., 52 Iowa, 600. 2* Approved in Wabash, St. L. & P. R. Co. v. Jaggerman, 115 111. 407. It would be Improper to leave to the jury the question of what the contract was. (228) Ch. 31] CARRIERS. [523 possession of said company and on its own line of road. The court instructs you that if you believe from the evidence that the plaintiff negligently overloaded the cattle in the cars for transportation to T., and that his negligence in that particular, if any, contributed to the damage suffered by his said cattle, if any, then you vi^ill return your verdict for the defendants, even though you may believe from the evidence that the defendants were negligent in handling plaintiff's cattle.2' Limitation of liability of connecting carriers. (523) The court instructs the jury that if they find from the evidence that plaintiff delivered to the Express Company in a parcel for delivery at , where the charges for carriage were to be paid, and if they find from the evidence that plaintiff received and agreed to the terms of a bill of lading by which the Express Com- pany agreed to forward the goods to their agency most con- venient to the destination, and there to deliver them to other parties to complete the transportation, and that such bill of lading limited the liability for injury to the sum of dollars, unless the value of the goods was otherwise therein expressed, and if they find from the evidence that no value was given, and that the goods were turned over by the Express Company to defendant, and by it delivered at , and found to be injured to the sum of dollars, then, if the jury find such facts from the evidence, that the bill of lading was a through contract, and that defendant is entitled to the benefit of all exemptions contained in it, and not liable for a greater damage than the amount stipulated therein.^* 25 Approved In Missouri, K. & T. Ry. Co. of Texas v. Chlttlm, 24 Tex. Civ. App. 599. 20 White V. Blair, 33 App. Div. 145. (229) 524] CARRIERS. [Ch. 31 Duty to make claim for damages within reasonable time. (524) The court instructs the jury that if they helieve from the evidence that the plaintiffs in this case entered into a written contract with the defendant to transport said stock in question (which was consigned to Media, Lancaster and Philadelphia, Pa.) to the terminus of its road, and there to deliver it to the connecting carrier, and that it was agreed between plaintiffs and said defendant in said contract that in case of loss and damage whereby any legal liability or responsibility should or might be incurred by the terms of said contract, that that company alone should be held re- sponsible therefor in vphose actual custody the live stock might be at the happening of such loss or damage, and if the jury further believe from the evidence that the north- ern terminal of the defendant's railroad is in H., Md., and that it safely and in a reasonable time delivered the said stock there to the C. V. railroad, and that the damage, if any, occurred after it had been so delivered to the connect- ing carrier, then they will find for the defendant, unless they believe from the evidence that the plaintiffs or their agents did, within a reasonable time after said delay or dam- age, if any, make demand upon the said defendant for satis- factory proof that said delay or damage did not occur while the said stock was in its possession.^^ 2T Approved in Norfolk & W. Ry. Co. v. Reeves, 97 Va. 284. This instruction is based on the provision in the bill of lading and on Code Va. § 1295: "When a common carrier accepts for transportation anything directed to a point of destination beyond the terminus of its own line or route, he shall be deemed thereby to assume an obligation for its safe carriage to such point of des- tination, unless at the time of such acceptance such carrier be released or exempted from such liability by contract in writing, signed by the owner or his agent; and although there be such contract in writing, if such thing be lost or injured, such com- mon carrier shall himself be liable therefor, unless within a rea- sonable time after demand made he shall give such proof to the consignor that the loss or injury did not occur while the thing was in his charge." (230) Ch. 31] CARRIERS. [528 IV. Cabeiees of Passengees. A. CABE BEQUTBED IN GENEBAL. Degree of care required in general. • (525) The court instructs the jury that a common carrier of passengers is bound to use the utmost care and diligence for the safety of passengers, and is liable for an injury to h passenger occasioned by the slightest neglect against whicli human prudence and foresight might have guarded.''* (526) The court instructs the jury that the defendam is not an insurer of the safety of its passengers, and if the jury shall believe from the evidence that the defendant had provided reasonable facilities for the transportation of such passengers as might reasonably be expected to apply to bo carried from on the occasion in question, and that the cars were such as are in general use, and in good order and condition; that the track, switches, and frog at the point where the plaintiff was injured were in proper order and condition, and that the employees in charge of the train were experienced and competent men, and that the train in ques- tion was carried safely from to , no negli- gence can be imputed to the defendant.^' (527) Railway companies, in transporting passengers upon their trains operated and managed by their employees, must, while thus transporting such passengers, exercise a high degree of care in order to avoid accident or injury to such passengers, and the failure to exercise such care as a person of ordinary prudence under like circumstances would use, is negligence.*" (528) The court instructs the jury that, it was the duty of the railroad company to use that high degree of care to avoid injury to the plaintiff, when she was about to alight from its train at M. on the occasion in question, which very 28 Reynolds v. Richmond & M. Ry. Co., 92 Va. 400. 2!> Chesapeake & O. Ry. Co. v. Clowes, 93 Va. 189. so Approved In Gulf, C. & S. F. Ry. Co. v. Wilson, 79 Tex. 371. (231) 529] CARRIERS. [Ch. 31 prudent, cautious and competent persons usually exercise un- der the same or similar circumstances as those then existing. It is a question of fact fo:t; the jury to determine whether the defendant's employees were guilty of the acts of which plain- tiiis complain and whether such acts show that said em- ployees failed to use the degree of care above defined or not.^^ (529) If the injury to plaintiff was occasioned without her fault, by the least negligence or want of skill or pru- dence on the part of the defendant or its employees in charge of the train, the company is liable.^^ (530) The court instructs the jury that the law, in ten- derness to human life and limb, holds railroad companies lia- ble for the slightest negligence, and compels them to repel by satisfactory proofs every imputation of such negligence. When carriers undertake to convey passengers by the power- ful but dangerous agency of steam, public policy and safety require that they be held to the greatest possible care and diligence. Any negligence or default in such case will make such carrier liable.*^ Duty to exercise highest degree of care and caution. (531) The court instructs the jury as a matter of law that it is the duty of a railroad company to use the highest degree of care and caution consistent with the practical op- eration of the road to provide for the safety and security of passengers while being transported.** Liability of carrier or insurer. (532) The court instructs the jury that railroad compa- nies are not insurers of their passengers and are not liable for injuries which their passengers may receive while being carried, unless the carrier is guilty of negligence which was 81 Approved in Houston & T. C. R. Co. v. Dotson, 15 Tex. Civ. App. 73. 32 Approved In Curtis v. Detroit & M. R. Co., 27 Wis. 158. 33 Approved in Shienandoah Val. R. Co. v. Moose, 83 Va. 827. 34 Approved In West Chicago St. R. Co. v. Jonlison, 180 111. 285. (232) Ch. 31] CARRIERS. [535 the proximate cause of the injury received and the passenger was free from negligence which contributed proximately to the injury of which he complains.^ ^ (533) The duty of a carrier is to safely carry passengers. It is true that a carrier of passengers is not an insurer of the safety of those whom it undertakes to carry, against all the risks of travel, but, nevertheless, there rests upon such car- rier this general duty of safely carrying.^* Liability for mere accident where there is no neglect of duty. (534) The court instructs the jury that a railroad com- pany, in the conduct and management of its trains, is re- quired to employ skillful and competent agents, and to use such means and foresight in providing for the safety of passengers, as persons of the greatest care and prudence usu- ally exercise in similar cases; and should an injury result to a passenger from a failure to use such a degree of care and prudence, the company will be responsible for such in- jury, unless it appears that the passenger so injured, by the use of ordinary care and prudence (that is, the ordinary care and prudence usually exercised by persons of ordinary cau- tion in his condition and circumstances), could have avoid- ed the injury. But a railroad company is not responsible for an injury to a passenger which is the result of a mere accident or casualty, where there is no want of care or skill on the part of the company or its agents.*^ (535) The court instructs the jury, that if they believe from the evidence that the injury to plaintiff in this suit happened to her by mere accident, without any fault on the part of defendant or its employees, then the plaintiff cannot recover in this action, and they will find for the defendant.*^ 85 Approved in Houston & T. C. R. Co. v. Dotson, 15 Tex. Civ. App. 78. "8 Approved In Louisville, N. A. & C. R. Co. v. Wood, 133 Ind. 644. 87 Approved in Houston & T. C. R. Co. v. Gorbett, 49 Tex. 573. 88 Approved in Georgia Pac. R. Co. v. West, 66 Miss. 310. (233) 536] CARRIERS. [Ch. 31 Definition of negligence. (536) The court instructs the jury that, negligence when applied to carriers of passengers, means the absence in the performance of a duty imposed by law for the protection of others, of that high degree of care in acting or refraining from acting which very cautious, prudent and competent per- sons usually exercise under the same or similar circumstan- ces.^^ (537) The court further instructs the jury that while the plaintiff was a passenger on defendant's train the defend- ant owed to her the duty to exercise that high degree of care for her personal safety that a very prudent person would ex- ercise under the circumstances, and a failure, if any, to use such care would be negligence in the sense that the word "negligence" is used in the foregoing portions of this charge.** Duty required of carrier's employees. (538) The court instructs the jury that, it is the duty of a railroad company to convey its passengers safely, and it is the duty of the employees of the railroad company to exercise care and diligence in the exercise of their respective duties and any omission or failure to discharge fully all the obligations incumbent on said employees, is negligence, and if a passenger suffers injury by such negligence, the rail- road company is liable therefor.*' Duty as to control and discipline of servants. (539) The court instructs the jury that if they believe from the evidence that the plaintiff was a passenger on the defendant's train at the time of the alleged injury, then it 3» Approved In Houston & T. C. R. Co. v. Dotson, 15 Tex. Civ. App. 73. *o Approved in Missouri, K. & T. Ry. Co. of Texas v. White, 22 Tex. Civ. App. 424. 41 Approved In International & G. N. R. Co. v. Eckford, 71 Tex. 274. (234) Ch. 31] CARRIERS. [541 was the duty of defendant by its ofEcers and employees to use the utmost practicable care and diligence to carry plain- tiff safely and securely to his destination, and the court fur- ther instructs the jury that defendant was bound to use all reasonable and practicable care and diligence to maintain among its employees, such a decree of order and discipline as might be requisite for the personal safety and security of the plaintiff and other passengers traveling on the same train and that said defendant was bound to have due supervision and control over the employees upon said train by its prop- er officers.*^ Duty to protect passenger from improper and unnecessary vio- lence of servants. (540) If the plaintiff was a passenger upon defendant's road in one of defendant's coaches, as charged in her com- plaint, the defendant's obligation was to carry her safely and properly; and if the defendant intrusted this duty to the servants of the company, the law holds the defendant re- sponsible for the manner in which they execute it. The car- rier is obliged to protect its passengers from improper and unnecessary violence at the hands of its own servants. And it is the established law that a carrier is responsible for the negligence and wrongful conduct of its servants, suffered -or done in the line of their employment, whereby a passenger is injured.** liability for unauthorized acts of servants. (541) A carrier of passengers for pay is responsible for injuries sustained by a passenger through the neglect, reck- lessness and carelessness of the servants of such carrier, while such servants are engaged in the general scope of their em- <2 Keokuk Northern Line Packet Co. v. True, 88 111. 608. 43 Approved In Louisville, N. A. & C. R. Co. v. Wood, 133 Ind. 544. (235) 542] CARRIERS. [Ch.' 31 ployment, whether the act was or was not, authorized by the master.** Duty to anticipate passenger's negligence. (542) The court instructs the jury that the law did not require defendant to anticipate or presume that plaintiff might be negligent. Defendant might lawfully presume the contrary; and might act upon the assumption that plaintiff would observe all due and proper precaution, according to the circumstances surrounding him.*" Care in construction and inspection of cars. (543) The court instructs the jury that if you find, from the evidence, that the plaintiff's decedent, B., was a postal agent in charge of the United States mails, being carried by the defendant on its railroad, and that the car in which said B. and said mail was being carried ran off the railway track, and thereby killed said B. without any fault on his part, such facts would make a prima facie case of negligence, and would entitle the plaintiff to a verdict, unless you find that the defendant and those from whom it procured its cars, had used due care in constructing its cars, and had from time to time carefully inspected said cars to see if they remained in proper order, and had failed to find any defects in the same which contributed to said injury.*' Liability for defective cars of other companies. (544) The court instructs the jury that if they find from the evidence that the car in which the plaintiff was injured was not the car or the actual property of the defendant, but was the property of another corporation and if they further find from the evidence that the car composed a part of the train in which the plaintiff and other passengers were to be "Approved In Louisville, N. A. & C. R. Co. v. Wood, 133 Ind. 544. *o Approved in Curtis v. Detroit & M. R. Co., 27 Wis. 158. *o Approved in Ohio & M. Ry. Co. v. Voight, 122 Ind. 288. (236) Ch. 31] CARRIERS. [548 transported upon their journey, and the plaintiff was in- jured while in that car, without any fault of his own, and by reason either of the defective construction of the car or by some negligence on the part of those having charge of the car, then the defendant is liable.*'' Duty to foresee accident. (545) The court instructs the jury that, if you find from the evidence that the accident was occasioned by a condition of things which the company could neither foresee nor provide against, then you should find for the defendant.** (546) What the law demanded of the defendant is only that which men of skill and vigilance are capable of exer- cising before the happening of an accident, and not the adop- tion of extraordinary and prophetic measures of precaution, which the peculiar circumstances of the event may afterwards show might have prevented it.*® (547) The court instructs the jury that, it is for them to determine from the evidence whether defendant, prior to the accident, could reasonably have foreseen that it might happen, that in determining whether defendant was guilty of negligence the jury must consider whether prior to the accident, defendant had reasonable or probable ground to anticipate any accident at that point, to a passenger properly descending step by step from the platform of the car to the station platform.^" Instruction eliminating contributory negligence. (548) The court instructs the jury that if, in view of all the facts and circumstances in evidence in this case, you be- lieve the plaintiff was a passenger on defendant's train of cars and was injured, as alleged in his petition, and that said in- *i Approved In Pennsylvania Co. v. Roy, 102 U. S. 451. <8 Approved in Bedford, S., O. & B. R. Co. v. Ralnbolt, 99 Intl. B51. *» Approved in Curtis v. Detroit & M. R. Co., 27 Wis. 158. ooDelamatyr v. Milwaukee & P. R. Co., 24 Wis. 578. (237) 549] CARRIERS. [Ch. 31 jury was caused without any fault of his but on the contrary by the fault, Qarelessness and negligence of the agents and employees of the defendant in manner and form as set forth and charged in plaintiff's petition, you will find for the plain- tiff, and you will state in your verdict the amount of dam- ages you find from the evidence the plaintiff has sustained by reason of such wrongful act.^* (549) If plaintiff did not receive the injuries complained of by any contributing act of negligence or fault of her own, but was injured at the time complained of by the careless- ness and negligence or fault of the defendant's servants, or one of them, committed in the general scope of employment as such servants or servant, the defendant is liable for such damages as she may have sustained by the injuries thus re- ceived. ^^ Liability to person traveling free. (550) The court instructs the jury that if the defend- ants, by their servants, undertook to convey the plaintiff along the Railroad, in the car , and whilo so conveying him, through the gross negligence of the serv- ants of the company then and there employed on the said rail- road the collision occurred, by which the plaintiff was in- jured, that the defendants are liable for the injury done to the plaintiff by such collision, although no compensation was to be paid to the company for such conveyance of the plain- tiff." (551) The court instructs the jury that if the plaintiff was lawfully upon the railroad of the defendants at the time of the collision, by the license of the defendants, and was then and there injured by the negligence or disobedience "Approved in International & G. N. R. Co. v. Eckford, 71 Tex. 274. 02 Louisville, N. A. & C. R. Co. v. Wood, 133 Ind. 544. 63 Approved in Philadelphia & R. R. Co. v. Derby, 14 How. (55 U. S.) 468. (238) Ch. 31] CARRIERS. [553 of orders of the company's servants, then and there employed on the said railroad, the defendants are liable for the injury done to the plaintiff by such collision.^* (552) The court instructs the jury that if the collision, by which the plaintiff was injured, was occasioned by the locomotive L. then driven negligently or in disobedience of orders upon the said road by , one of the company's servants, then having control or command of the said loco- motive, that the defendants are liable for the injury to the plaintiff, caused by such collision.^ ^ Negligence in the operation of trains over tracks which passen- ger must cross in order to change cars. (553) The court instructs the jury that if they find from the evidence that on the day of 19 — , was a passenger in the cars of defendant with a ticket en- titling him to ride from to , that he took the train at and rode thereon to where it be- came necessary for him to change cars, and if they find from the evidence that in alighting from the train on which he was and passing over certain tracks of defendants' road, to take the tra,in by which he was to continue his journey to , he was killed by the locomotive and cars of a freight train of the defendant while operated by defendant's agents on its road, and if they find from the evidence that his killing resulted directly from the want of the exercise of or- dinary care and prudence upon the part of the agents of the defendant, and not from the want of ordinary care and prudence of the deceased contributing to the accident, then plaintiffs are entitled to a verdict. ''® 64 Approved in Philadelphia & R. R. Co. v. Derby, 14 How. (55 U. S.) 468. 85 Approved in Philadelphia & R. R. Co. v. Derhy, 14 How. (55 U. S.) 468. ise Approved in Baltimore & 0. R. .Co. v. State to use of Hauer, 60 Md. 449. (239) 554] CARRIERS. [Ch. 3) (554) The court instructs the jury that though they find from the evidence that was guilty of the want of ordinary care and prudence in crossing the track of defend- ant to take the train to his point of destination, yet if they further find from the evidence that if the agents of defend- ant had used in and about the running of the freight train that injured ordinary prudence and care in giving reasonable and usual signals of its approach, in keeping a reasonable look-out and in heeding the danger signals from the station at , if they find that such signals were given, or in giving the danger signal to the approaching freight train, that such said accident would not have oc- curred, then plaintiffs are entitled to recovery.^^ B. THB BELATION OT CARRIER AHD PASSENGER. Person coming to station to board train. (555) The court instructs the jury that to become a pas- senger and entitled to protection as such, it is not necessary that a person shall have entered a train or paid his fare, but he is a passenger as soon as he comes within the control of the carrier at the station through any of the usual ap- proaches, with the intent to become a passenger, and the court therefore further instructs the jury that if they be- lieve from the evidence that the plaintiff, on the — day of went to the defendant's depot at the town of — • by one of the usual routes thereto, for the purpose and with the intention of taking the next train, and stepped upon the platform of said depot with the intention and purpose of becoming such passenger, the plaintiff then became, in contemplation of law, a passenger of the defend- ant, provided she came to said depot and platform within 67 Approved In Baltimore & 0. R. Co. v. State to use of Hauer, 60 Md. 449. This instruction was In an action for the killing of plaintiff's Intestate and should be given in connection with instruction show- ing plaintiff's equitable right to recover. (240) Ch. 31] CARRIERS. [557 a reasonable time before the time for the departure of said train, whether or not she had purchased a ticket from the defendant or its agent.^^ Effect of leaving train open for reception of passengers. (556) The court instructs the jury that if you should find from the testimony that the night freight train in question was usually made up and started from the place where it stood when the party having charge of the plaintiff attempt- ed to go on board, and that the defendant company, its agents or servants, had previous to and about that time, carried such passengers in this night train, to and from , as went aboard of their own accord, or upon ap- plication to some person having charge of the train, collect- ing from such person the usual fare of passengers, and fur- ther find that the caboose on the night in question, and at the time the party having charge of the plaintiff went aboard, was open for passengers, you will be warranted in finding a verdict for plaintiff; if you still further find the absence of negligence upon the part of said party in the care be- stowed upon the boy, and the existence of negligence at the time upon the part of the employees of the defendant hav- ing charge of the train."® Persons taking freight trains on which there is a custom to carry passengers. (557) The court instructs the jury that if they find from the evidence that previous to and upon the night in question, 68 Approved in Barker v. Ohio River R. Co., 51 W. Va. 423. 50 Approved in Lucas v. Milwaukee & St. P. Ry. Co., 33 Wis. 41 This Instruction as given also contained the following addition' "And I will here add, that unless you do find the existence of the facts to which I have above alluded, I hardly see how, in view of the evidence, you are to find a verdict for the plaintiff, unless you find that they went aboard by direction of an employee of the defendant, having authority to give such direction, without negligence on their part." .(241) Instr. Juries. — 16. 558] CARRIERS. [Ch. 31 this train had been and was carrying passengers and re- ceiving fare, and if the jury should believe from all the facts and circumstances that the party, in consequence of it, went there to take it, they were neither trespassers nor outlaws. And if they were conducting themselves in a prudent manner in attempting to get aboard the train, and the boy was in- jured in consequence of the want of ordinary skill and care upon the part of the employees of the defendant, the defend- ant is liable.®" Right of mail clerk to recover for negligence. (558) If you find and believe from the evidence that on the day of , or at any time within one year next before the day of , 19 — , a train of cars operated by the defendant company, its agents, servants or employees was wrecked in B. county, T., near V., and that at the time of such wreck, the plaintiff was traveling upon said train of cars as postal or mail clerk in the employment of the United States government, and in charge of the mail matter of such train, then he would be entitled to recover of defendant company for such injuries as he may have received, provided they are such as are set forth in his pe- tition, as resulted from the negligence (if there was negli- gence) of said company's servants, agents or employees, not to exceed the amount of either kind of injury alleged in the different allegations in the plaintiff's petition.®^ Express messenger — Injury from explosion of locomotive boiler. (559) The court instructs the jury that if they believe from the evidence that the defendants were negligent in the transportation of passengers from S. to P. and from P. to S., before and during the month of , A. D. 19 — , that during the same periods of time, W. & Co., employed the plaintiff to carry their express matter between said place and •"Approved in Lucas v. Milwaukee & St. P. Ry. Co., 33 Wis. 41. 01 Approved In Gulf, C. & S. F. Ry. Co. v. Wilson, 79 Tex. 371. (242) Ch. 31] CARRIERS. [56C paid the defendants to transport said express matter for a certain sum of money per month, and said plaintiff and said defendant entered upon said arrangement and were engaged in the same during said period of time and that it was un- derstood and agreed between said defendants and W. & Co., that the plaintiff as their messenger should be transported with their said express matter from S. to P. and from P. to S. during said period of time, and that the defendants made such transportation by cars propelled by steam and a steamer and that said cars started from the town of P.; that while thus engaged the plaintiff during said period of time came to said cars, at the depot thereof, for the purpose of going to S., that he was standing on the platform of said defend- ants, near said cars for the purpose of stepping into a car of defendants (and that said platform was usually used by passengers departing or arriving by said cars) when the boiler of the locomotive attached to said cars exploded through the negligence or carelessness of the engineer em- ployed by the defendants, who was then in charge of said locomotive, and the plaintiff was injured thereby (the plain- tiff not being guilty of any negligence which contributed to his injury) then the plaintiff is entitled to recover damages for such injury.®^ Person attempting to ride on ticket purchased from scalper. (560) The court instructs the jury that, if you find from the testimony that the ticket in question in this case was a third class or "emigrant" ticket, which had been sold at a reduced rate to a person in San Francisco other than the plaintiff, and said ticket was by its terms not transferable, and the purchaser thereof in San Francisco, in part consid- eration of such sale at a reduced price, agreed that it should not be transferable, and you further find that the plaintiff 62 Approved in Yeomans v. Contra Costa Steam Nav. Co., 44 Cal. 71. (243) 561] CARRIERS. [Ch. 31 purchased in Omaha from some person other than defend- ants or their authorized agent, and offered and attempted to use it as entitling him to passage from Omaha to Chicago, on the defendant's road and refused to pay his fare on the defendant's road, and did not pay his fare, then the defend- ants are not under obligations to allow the plaintiff to ride upon such ticket and upon such refusal to pay fare, had a right to require plaintiff to leave the train and he can recover no damages based on the fact that he was so required to leave.^* (561) The court instructs the jury, that the taking up of the plaintiff's ticket, however, was a wrongful act on the part of the defendants for which they are liable to plaintiff.®^ (562) The court instructs the jury that the measure of damage to which the plaintiff is entitled for the taking of such ticket would be the value thereof, which would not exceed the price of a third class or emigrant passage from Omaha to Boston with interest on the first day of this term.*^ Where it is contended that plaintiff's intestate was a trespasser. (563) The court instructs the jury that the right of the plaintiff to recover in this case will be submitted to you from two aspects, viz: (1) Was , at the time, a pas- senger on defendant's train? or (2) was he a trespasser? The law imposes upon the defendant company the duty of exercising the highest degree of care towards him, if he was a passenger for pay on defendant's cars at the time ; but, if he was a trespasser on the defendant's train, the law im- poses only the duty of ordinary care for his safety after dis- covering that he was such trespasser. Now, if, from aU the facts and circumstances before you, you find that at the time was killed, he was a passenger on defendant's cars, and that his death was caused or occasioned by the careless- 83 Post V. Chicago & N. W. R. Co., 14 Neb. 110. 04 Approved in Post v. Chicago & N. W. R. Co., 14 Neb. 110. 05 Approved in Post v. Chicago & N. W. R. Co., 14 Neb. 110. (244) Ch. 31] CARRIERS. [564 ness of those in cliarge of the train at the time (that is, if you find that the head-end collision which resulted in 's death was brought about through the carelessness and negligence and want of proper care on the part of those operating the trains at the time), then the defendant company would be liable in this case. If you find and believe that at the time was a trespasser on defendant's train ; that he at the time was riding on what is commonly known as the "blind baggage," endeavoring to travel without paying for his passage; and you further find and believe that a person of ordinary prudence and caution would not have been in such position, and would not have acted as did at the time he boarded the train, — then, if you find this to. be the case, the defendant company would not be liable, un- less you further find and believe that the servants and agents of the defendant company knew of his position before the accident, and could have prevented the accident by the ex- ercise of ordinary care. The law devolves upon the plain- tiff the duty and burden of making out her case as alleged, and showing her right to a recovery by a fair preponderance of the evidence. When she has done this, then the burden is upon the defendant company to show that the deceased at the time did not act as a person of ordinary prudence and caution would have acted, or was in a place or position where an ordinarily prudent and cautious person would not have been, before plaintiff could be denied a recovery.^' Through contract of transportation — ^Liability for accident on connecting line. (564) If you find from the evidence in this case that the plaintiff, or her husband in her behalf, applied to the agent or person in charge of the station ofiice situated on the de- fendant's right of way at W. for a ticket for her transporta- «8 Approved In Southerland v. Texas & P. Ry. Co. (Tex. Civ. App.) iO S. W. 193. (245) 565] CARRIERS. [Ch, 31 tion to E., and that such agent or person so in charge of said station office, in response to such applicatioti, sold her, or her husband in her behalf a local book ticket for her trans- portation to E., and that she boarded a passenger car run- ning upon defendant's line of road, in pursuance of the direc- tion of persons in charge of said car, the ordinary carriage of passengers riding over said road, or of the train of cars, and that the same was used for and continued in said car without changing cars until she reached her destination at Elkhorn, such facts would constitute a valid and binding contract and undertaking by the defendant to safely carry the plaintiff from W. to E., notwithstanding the fact that E. is not situ- ated upon defendant's line of railroad, and is situated upon the Railroad at a point several miles beyond the terminus of the defendant's road and the liability of this defendant in such case would be the same, neither greater nor less than if such injury had occurred at a station, on their own line of road.®^ When relation terminates. (565) A railroad company, carrying passengers for hire, has not discharged its duty or relieved itself from liability to them till it has stopped at the end of their journey a rea- sonable time for them to get off the train in safety.*^ Burden of proof. (566) The court instructs the jury that the plaintiff can- not recover as a passenger of defendant without showing that he occupied that relation to the defendant.®* C. BJEOTION OV PASBEKOBBS. Ejection of passenger refusing to pay fare. (567) The court instructs the jury that if they believe «7 Approved In Omaha & R. V. Ry. Co. v. Chollette, 33 Neb. 143. 68 Approved in Louisville, N. A. & C. R. Co. v. 'Wood, 133 Ind. 644. 88 Approved in Lucas v. Milwaukee & St. P. Ry. Co., 33 Wis. 41. (246) Ch. 31] CARRIERS. [569 from the evidence, that the plaintiff had not paid or offered to pay his fare from to , and if the jury be- lieve from the evidence that at the time of the refusal to pay his fare, the train upon which plaintiff was traveling was in motion, then the jury are instructed that defendant would not be warranted in throwing plaintiff from the train in a way to endanger his life or limbJ" Ejection of passenger on failure to exhibit ticket. (568) The court instructs the jury that if the jury believe from the evidence that plaintiff took a seat on the train from M. to R. on the day of 19 — , and refused to pay the usual fare or to furnish the con- ductor the usual ticket entitling him to one seat from M. to R., but claiming a seat by virtue of a special contract with the defendant company, which he failed to exhibit to the conductor and was in consequence thereof expelled from the train by the conductor, using no unnecessary force to do so, then they must find for the defendant/^ Reasonableness of rule requiring surrender of ticket. (569) The court instructs the jury that the regulation of the defendant requiring the delivery of their tickets by pas- sengers on demand of the conductor, without furnishing to the passenger surrendering his ticket a check or some other evidence of his right to passage, is a reasonable one, and if the jury believe from the evidence that the plaintiff refused to surrender his ticket upon demand of the conductor, un- less some evidence was given to him of his right to continue as &. passenger, and on refusal of the plaintiff to obey the regulation, the conductor required the plaintiff to leave the train at the next station, using no unnecessary violence, then the jury are instructed that defendant is not liable.''^ 70 Michigan S. & N. I. R. Co. v. Shelton, 66 111. 424. '1 Approved In Knopf v. Richmond, F. & P. R. Co., 85 Va. 769. 72Vedder v. Fellows, 20 N. Y. 126. (247) 570] CARRIERS. [Ch. 31 Eeasonableness of regulation requiring payment of extra charge where tickets are not procured. (570) The court instructs the jury that railroad compa- nies have the right to adopt reasonable rules as to the meth- ods of paying fare by passengers who use their passenger trains for the purpose of being transported from one place to another and to discriminate between fares paid on board their trains and at stations, and to remove from their cars in a proper manner and at a proper place persons who re- fuse to comply with such regulations ; and the court instructs the jury that a regulation is reasonable which requires pas- sengers who do not procure tickets at stations where tickets are sold before boarding their trains and commencing their journey to pay an extra amount of fare, and which provides that coupons shall be given the passenger on which he may collect the extra fare from any agent at a station, and which exempts from its operation such passengers as board their trains at stations where tickets are not sold.^* Effect of requiring extra charge as increasing rate of fare be- yond statutory limit. (571) The court instructs the jury that railroad compa- nies may make regulations requiring payment of an extra charge where passengers do not procure tickets before board- ing their trains, provided passengers are given a convenient place and sufEcient opportunity to procure tickets previous to boarding the train to become passengers, and that such reg- ulations are not unreasonable or oppressive or open to ob- jection that the excess so imposed as a part of the fare makes the fare charged higher than the rate alleged by law whicli in this state by statute is cents per mile.''* Duty to stop freight train at passenger station. (572) The court instructs the jury that if they believe " Kibler v. Southern Ry. Co., 62 S. C. 252. ti Approved In Kibler v. Southern Ry. Co., 62 S. 0. 252. (248) Cll. 31] CARRIERS. [574 from the evidence that plaintiff procured a first-class ticket from to and entered defendant's freight train on which passengers were carried by defendant for the purpose of being carried from to and that plaintiff did not have a ticket permitting him to travel upon the freight train as provided by the regulations of defendant and plaintiff was ejected by the conductor at the usual stop- ping place for passengers on freight trains and the defend- ant used no unnecessary violence in requiring the plaintiff to leave the train, you will find for the defendant and the jury are instructed that what is the usual stopping place for passengers on a freight train is a question for the jury to decide and that unless it appears from the evidence that it was the custom of freight trains on defendant's line to re- ceive and discharge passengers on the platform of the pas- senger depot, defendant was not under obligation to eject plaintiff at the passenger depot. '^^ Questions for jury as to proper place of stoppings train. (573) The court instructs the jury that if they believe from the evidence that plaintiff procured a first-class ticket from to and entered defendant's freight cars, on which passengers were usually carried by defendants, for the purpose of being carried from to and plaintiff did not have a ticket permitting him to travel aa a passenger upon the freight train as required by the reg- ulations of defendant, and that plaintiff was ejected by the conductor at a place other than the usual stopping place for passengers, you will find for the plaintiff, and it is for the jury to say whether the passenger platform was the usual place of getting on and off of the freight train.''* Expulsion of passengers on freight train who have not secured tickets. (574) The court instructs the jury that railroad compa- TB Illinois Cent. R. Co. v. Nelson, 59 111. 110. 78 Illinois Cent. R. Co. v. Nelson, 59 111. 110. (249) 575] CARRIERS. [Ch. 31 Dies as carriers of passengers can adopt all reasonable rules and regulations necessary and proper for the management of their roads, among which are rules requiring passengers to obtain from depot agents tickets entitling them to transporta- tion, or to pay the usual fare to the conductor on the train and upon the failure or refusal of the passenger to comply with either one of those requirements, they have a right to expel them from the train, using no more force than may be necessary to do soJ^ Eight of carrier to make rules concerning stops and to eject passenger from train not stopping at his point of destina- tion. (575) The court instructs the jury that the proof shows that the railroad company runs two daily trains between points named in plaintiff's ticket and the regulation that one of these trains shall not stop at all stations is a reasonable regulation and one they had a right to make. A passenger who travels on said road with notice of such regulation can- not get on a through train and demand to be carried to a point at which said through train does not stop, even if he has a ticket to such point, unless he goes on the train by direction of the railroad company's agents. If the person who acted as agent, and sold tickets, directed the plaintiff to get on the through train, he had a right to get on said train and travel upon it; but if, after getting on, he was at a regular station notified that the train would not stop at E., his destination, it was his duty then to get off and take the proper train; for if the railroad agent at J. his point of de- parture made a mistake, the railroad had a right to correct the mistake at any regular stopping station for that train. If, then, he was informed at P. of the mistake, it was his duty to get off and if he did not do so, the conductor had a right to put him off in a proper manner.'^* " Approved In Knopf v. Richmond, P. & P. R. Co., 85 Va. 759. 78 Approved in I. & G. N. R. Co. v. Hassell, 62 Tex. 256. (250) Ch. 31] CARRIERS. [577 Eight of passenger having through ticket to stop over. (576) The court instructs the jury that if the jury shall find from the evidence that the plaintiff on the first day of , 19 — , purchased at 'N, a through ticket from that place to B. over the N. railroad and P. W. & B. E. railroad, and on that day proceeded on his journey as far as P., on the last-named road, where he left the train, and if the jury shall further find that after passing 0. , the then con- ductor of the train took up said through ticket and gave plain- tiff a check in lieu thereof, which has been offered in evi- dence ; and if the jury shall further find that the plaintiff on the day of said got upon the defendant's train for B. at H., and the then conductor refused to take said check, but informed the plaintiff that he must pay his fare to B., or he would be obliged to stop the cars and put him off, and that the defendant refused to pay said fare, and the said plaintiff was then put off, then the plaintiff is not en- titled to recover in this case, provided the jury shall find that no more force than was necessary was used in putting said plaintiff off the train, even if the jury shall further find, that on arriving at P. on the train, on the said first day of , the plaintiff inquired from a man at the window of the ticket ofiice of the defendant at that place, whether said check would be good to take him to B. another day and was told by said man that it would.^* Manner and place of expulsion. (577) The court instructs the jury that railroad compa- nies have the right to demand and receive legal rates of fare from persons traveling on their trains ; and, in the event of the refusal of a passenger to pay his fare or show a ticket, conductors of a train have a right to eject such a passenger from the train, without using any more force or violence than may be necessary, to overcome any unlawful resistance which 70 Approved In McClure v. Philadelphia, W. & B. R. Co., 34 Md. 532. (251) 578] CARRIERS. [Ch. 31 such passenger may offer. It is the duty of the conductor to bring the train to a full stop before compelling the party to be ejected to step from the train, and exercise such ordinary care in ejecting him as an ordinarily prudent man would ex- ercise under similar circumstances as connected with this case. In this state it is not necessary that the train should be at a station in order to justify the ejection of a person refusing to pay fare, but a conductor has the right to eject such a person between stations at points where the sit- uation of the ground is such as not to expose the person eject- ed to special risks of danger.®" Liability for injury to passenger sustained in resisting expul- sion. (578) The court instructs the jury that passengers must observe proper decorum and submit themselves to all reason- able rules established by the company and that passengers cannot interpose resistance to every trivial imposition to which they may feel themselves or imagine themselves ex- posed by the employees of the carrier and that it is due to good order and the comfort of the other passengers that a passenger should submit himself for the time being to what he may believe to be annoyances and redress his grievances, whatever they may be, by a civil action, and if the jury be- lieve from the evidence that the plaintiff was called upon to pay his fare by the conductor of the defendant and that the plaintiff had actually paid his fare to the destination to which he wished to go, and that defendant's conductor hon- estly believed that plaintiff had not paid his fare, then it was plaintiff's duty to pay the fare to defendant and if the jury believe from the evidence that plaintiff refused to pay and interposed physical violence to prevent his ejection from the train by the conductor of the defendant on his refusal to pay his fare, then the jury are instructed that for any injuries 80 Approved In Brown v. C, R. I. & P. R. Co., 51 Iowa, 235. (252) Ch. 31] CARRIERS. [580 which the plaintiff may have suffered because of such inter- position of physical force, plaintiff cannot recover.*^ Eight to expel disorderly passenger and secure arrest after ex- pulsion. (579) The court instructs the jury that it was the duty of the plaintiff to behave in a quiet and orderly manner while a passenger on the train of the defendant and that it was the duty of the conductor to sustain order on said train, and if the plaintiff was acting in a disorderly manner on said train, the conductor could eject him from said train; and if the jury find that the plaintiff, while a passenger on said train, was acting in a disorderly manner and was threatened with expulsion from said train by the conductor, and that on ac- count of the companionship of the plaintiff with other per- sons, who were also disorderly and riotous, the conductor could not properly make the attempt to expel the plaintiff from the train, as the plaintiff and his companions stated that they would resist any attempt to expel them from the train, that then the conductor was justified in requesting the first police officer whom he could find to arrest the plaintiff ; and if the jury find that the police officer at the W. Depot was the first police officer the conductor saw, and that the conductor used due diligence in procuring a police officer, and that the conductor directed the police officer to arrest the plaintiff for said disorderly conduct, that the defendant is not liable for this arrest and the verdict of the jury must be for the defendant.®^ ftuestion of fact as to existence of carrier's rules. (580) The court instructs the jury that they must deter- mine from the evidence whether there was a regulation re- quiring an extra charge from passengers not procuring tick- ets before boarding defendant's trains, and they must find 81 Chicago, B. & Q. R. Co. v. Griffin, 68 111. 499. 82 Approved in Baltimore & 0. R. Co. v. Cain, 81 Md. 87. (253) 581] CARRIERS. [Ch. 31 how long it had been in operation, if it had been in operation at all, and whether its posting if it bad been posted, was such as to advise the traveling public of its existence, these being questions of fact which the jury are to determine from the evidence.^* D. TAKING ON PASSEHGBBS. Discharge of carrier's duty by drawing up in usual manner. (581) If the evidence shows defendant to have moved the train to the station in the mode usual upon the well-regulated roads of the country, and practiced by good conductors and engineers, the observing of such usual mode cannot be deemed an act of negligence.^* Making misleading stop before final stop at station, (582) It is not necessarily an act of negligence on the part of defendant to suffer a momentary arrest of motion of ihe cars in bringing the train to the station and to its prop- er and convenient location. If such temporary arrest of mo- tion is incident to the careful management of a mixed train like the one in question, then to suffer it would not be an act of negligence.*^ (583) If a train, in being brought up to the station, came to a stop in such a manner as to induce the belief, on the part of the passengers in waiting on the platform, that it had stopped for the reception of passengers, and then, when the passengers, acting on this belief, were going aboard, start- ed again without caution or signal given, that would consti- tute an act of negligence on the part of the defendants ; and it would make no difference whether, in so starting the train, it was intended to proceed to the next station, or merely to locate it more conveniently at the same station.*' ssKibler v. Southern Ry. Co., 62 S. C. 252. 84 Approved in Curtis v. Detroit & M. R. Co., 27 Wis. 158. 85 Approved in Curtis v. Detroit & M. R. Co., 27 Wis. 158. 86 Approved in Curtis v. Detroit & M. R. Co., 27 Wis. 158. (254) Oh. 31] CARRIERS. [586 Directions of employees inducing passenger to attempt to board train. (584) If you believe from the evidence that the train had not come to a full stop, but that the stop during which the plaintiffs attempted to go on board, was one which resulted from cheeking the speed of the train in bringing it up to the station, yet if the passengers were directed to go on board by the men in charge of the train, the plaintiffs had a right to assume that the train was ready for their reception, and cannot be charged with negligence in following that direction, provided the train, where they attempted to enter, was actu- ally still at the time; and if the cars were not ready for the reception of passengers, it was a clear act of negligence in the company's servant to tell them to go on board.^'^ Duty of passenger to obey warnings of carrier's servants. (585) If the conductor warned the passengers to keep away from the train, it was the plaintiff's duty to have heeded • such warnings and if she attempted to board the train be- fore it had apparently reached its location at the platform, and when it was apparent that it had not reached said loca- tion, she was guilty of negligence, and cannot recover.** Duty to assist passenger to board train. (586) Whether it was the duty of defendant's agent to have assisted plaintiff in getting on the car, is a question for you to determine (from the instructions here given), from the evidence in the case; and, to this end, it is proper for you to consider the train and the car, their distance from the platform and depot, the facility with which access could be had, the sex, the age and inexperience of the plaintiff, if these were known to defendant's agent, and all the facts and circumstances surrounding the case.** 81 Approved In Curtis v. Detroit & M. R. Co., 27 Wis. 158. 88 Approved in Curtis v. Detroit & M. R. Co., 27 Wis. 158. 8» Approved In Allender v. C. R. I. & P. R. Co., 43 Iowa, 276. (255) 587] CARRIERS. [Ch. 31 Taking on passengers at out-of-tlie-way places. (587) The court instructs the jury that when the carrier of passengers by railway does not receive passengers into the car at the platform erected for that purpose, and suffers or directs passengers to enter at out-of-the-way places, it is its duty to use the utmost care in preventing accidents to pas- sengers while entering. And if you find in this case that the defendant's agents were negligent, within the meaning of this instruction, and that plaintiff was injured thereby, still the question remains whether or not the plaintiff on her part contributed by her own negligence to the injury, and if you find she did so contribute she cannot recover. If she did not contribute she can recover.^" Effect of train being behind time. (588) The circumstance that the train was behind its usual time has no significance or relevancy in this case, un- less that circumstance directly or proximately contributed to the accident and injury complained of.^^ Duty to protect passenger from injury from trains on adjoining tracks. (58&) When a railroad company receives its passengers from a space between parallel tracks, it is bound to provide such safeguards as will protect passengers in the exercise of ordinary care from injury from a passing train, and if it fail to do this, whether its negligence consists in its failure to provide proper platforms, or failure to notify passengers who have gone between its tracks to enter its cars on the approach of a train on a track parallel to that on which a passenger train is standing, and an injury result from said failure to one of its passengers who is about to enter its car, without contributory negligence on the part of said passen- ger, the company is liable therefor.*^ 80 Approved in Allender v. C. R. I. & P. R. Co., 43 Iowa, 276. »i Curtis V. Detroit & M. R. Co., 27 Wis. 158. »2 Approved in Union Pac. Ry. Co. v. Sue, 25 Neb. 772. (256) Ch, 31] CARRIERS. [592 Starting while passenger is en route to seat. (590) The court instructs the jury that it was not the duty of defendant to wait hefore starting its car until plain- tiff had walked to the forward part of the car, if there was a seat for plaintiff nearer than tliat.®^ Invitation to passenger to cross the tracks at station. (591) The court instnicts the jury that if they find from the evidence that it was necessary for the deceased in order to take the train to the point of his destination then on the south track of defendant's road at to cross the north track of defendant's road, and that the train which he desired to take was engaged in receiving and discharging passengers, all of whom were compelled to cross said north track in go- ing either to or from said train, and if the jury find from the evidence that passengers were passing and did pass across said north track, then the deceased had the right to consider that these circumstances amounted to an implied invitation on the part of the defendant to the deceased to cross the said north track and to imply assurance that it would be safe for him to do so.^* E. OARE AS TO STATIONS, TRACKS, AND EQUIPMENT. Necessity of furnishing platform. (592) The court instructs the jury that if they believe from the evidence that at the time of the plaintiff's being injured there was no platform or other proper landing-place at the train's stopping place at , and the defendant's servants did not assist the plaintiff to alight, and, for want of such platform or landing-place and assistance in alighting, the plaintiff was injured, without fault on her part, then the jury must find for the plaintiff.^** 88 Dougherty v. Missouri R. Co., 97 Mo. 647. »4 Approved in Baltimore & O. R. Co. v. State to use of Hauer, 60 Md. 449. »** Approved In International & G. N. R. Co. v. Eckford, 71 Tex. 274. (274) Oh. 31] CAEKIERS. iprt defendants, the plaintiff was injured, tlie jury should find for the defendants."' Attributed negligence of plaintiff's husband. (644) The court instructs the jury that before the plain- tiffs can recover in this action, it must appear that defendant was guilty of some act of negligence which directly contrib- uted to the accident. It must also appear that plaintiff was without the least fault or negligence on her part which in any wise contributed to the accident ; and it is the same whether what she did was of her own volition or by the advice or guidance of her husband.^*® Instructions of carriers' servants justifying acts of passenger. (645) The court instructs the jury that a passenger is warranted in obeying the directions of the servants and agents of the carrier, when given within the scope of their duty, un- less such obedience leads to a known peril which a prudent person would not encounter.-'*'^ Matters which may be considered in determining question of negligence. (646) The court instructs the jury that in considering the question of negligence, it is competent for the jury, in connec- tion with the other facts and circumstances of the case, to infer the absence of fault on the part of the deceased, from the general and known disposition of men to take care of them- selves, and to keep out of the way of difficulty and danger.''*^ Use of intoxicating liquors. (647) The court instructs the jury that if they find from the evidence, that the deceased, on the night of , and "6 Galena & C. U. R. Co. v. Fay, 16 111. 55S. "6 Approved in Curtis v. Detroit & M. R. Co., 27 Wis. 158. "7 Approved in Louisville, N. A. & C. R. Co. v. Wood, 133 Ind. 544. i-*8 Approved In Baltimore & 0. R. Co. v. State to use of Hauer, 60 Md. 449. (275) 648] CARRIERS. [Ch. 31 the morning of , had used intoxicating drink, as testi- fied to by conductor P., and witnesses Y. and H., but shall further find, that he was not drunk when he crossed the de- fendant's track at W., such use of intoxicating drink, is not evidence from which the jury may infer the want of ordinary care and prudence on his part.-^** (648) The court instructs the jury that intoxication on the part of the plaintiff, if the jury believe that the plaintiff was intoxicated, is not, as a general rule, in itself, as a matter of law, such negligence or evidence of such negligence as will bar his recovery in this action. The law refuses to impute negligence as of course to a plaintiff from the bare fact that at the moment of suffering the injury he was intoxicated. Intoxication is one thing and negligence sufficient to bar an action for damages quite another thing. Intoxicated per- sons are not removed from all protection of law. If the plain- tiff' used that degree of care incumbent upon him to use, un- der the circumstances of this case, as explained to you in a previous instruction, then his intoxication, if you believe from the evidence he was intoxicated, had nothing to do with the accident. When contributory negligence is one of the is- sues, as in this case, it must appear that the plaintiff did not exercise ordinary care, and that, too, without reference to his inebriety. The question is whether or not the plaintiff's con- duct came up to the standard of ordinary care — ^not whether or not the plaintiff was drunk.^^" Standing on platform. (649) The court instruct:, the jury that the fact that a passenger at the time of sustaining the injury for which he sues was standing on the platform of a moving coach does not per $e show negligence of the passenger in taking such a posi- tion, but all the circumstances of the case are to go to the jury 1*8 Approved In Baltimore & 0. R. Co. v. State to use of Hauer, 60 Md. 449. 150 Approved In Denver Tramway Co. v. Reid, 4 Colo. App. 53, (276) Ch. 31] CARRIERS. [652 and it is for them to determine whether the carrier is liable in damages." ^^ (650) The court instructs the jury that a passenger upon a railroad train, after said train has stopped at a regular sta- tion, has a right to go upon the platform of said coach in which said passenger may be, and within the time allowed by the rules of the company for the stopping of said train at said station, so that said passenger being upon said platform does not interfere with the proper management of said train, or with passengers alighting therefrom or getting thereon, and that it is not per se negligence so to do, and that the mere fact of a passenger being upon the platform under such circum- stances does not constitute negligence upon the part of said passenger."'" (651) The court instructs the jury that if they believe from the evidence that the defendant, by its servants in charge of its car, on the day of , received the plaintiff as a passenger and that plaintiff rode upon the rear platform of the car, and that plaintiff was carried as a pas- senger on such rear platform and plaintiff paid his fare to the defendant's conductor in the charge of the car and if the jury believe from the evidence that plaintiff was riding as such passenger upon the said platform at the time of the collision in which plaintiff alleges he was injured, then the jury are instructed that the question as to whether such riding upon the platform was negligence on the part of the plaintiff is one of fact for the jury to decide.*^^ Eiding on platform on account of lacli of accommodations in- side. (652) The court instructs the jury that if they believe from the evidence that under the circumstnnces of the case there wsa a reasonable necessity, either real or apparent, for isiDoolittle V. Southern Ry., 62 S. C. 130 162 Approved In Southern Ry. Co. v. Smith, 95 Va. 187. 1511 St. Loals, B. & S. Co. v. Hopkins, 100 111. App. 567. (277)' 653] CARRIERS. [C|]. 31 the plaintiff to travel on the platform of the car, and that he made such effort to obtain accommodations inside of the car as an ordinarily prudent man wonld have made under sini- ilar circumstances, then he was not guilty of negligence by reason of standing or traveling on the platform.^^* Passing from one car to another. (653) The court instructs the jury that if they believe from the evidence that while the train was in motion, the said plaintiff, for his own convenience, left the inside of the car in which he had been riding, and went upon the platform for the purpose of riding there, or of passing into the next car in search of a seat, they are instructed that the plaintiff assumed all risk of falling or being thrown from the said train by rea- son of the motion or oscillation thereof whether caused by speed, curves, frogs, or switches, and they must find for the defendant.^ ^^ (654) The court instructs the jury that if they believe from the evidence, that previous to taking passage upon the cars of the defendant at the depot in the plaintiff was directed by the conductor to take his place in the baggage car because there was no room for him in the first-class passenger car, and that the plaintiff went into the said baggage car in pursuance to the direction of the conductor, and while on the way from to he left the baggage car without any reasonable cause, and passed carelessly from one car to another, and if the jury believe from the evidence that the injury to the plaintiff happened in consequence of his so leav- ing the car and so passing carelessly from one car to another, then the plaintiff cannot recover.^^® (655) The jury are instructed that if they believe from the evidence that the pla intiff, after getting on the car he first 154 Approved in Highland Ave. & B. R. Co. v. Donovan, 94 Ala. 299. IBS Approved in Chesapeake & 0. Ry. Co. v. Clowes, 93 Va. 189. 150 Galena & C. U. R. Co. v. Pay, 16 111. 558. (278) Ch. 31] CARRIERS. [656 entered, was unable to fin(i a seat therein by reason pf its crowded condition, that he was told by the conductor of the train that he might find a seat in the forward car; that he went forward after receiving such suggestion and attempted to pass from that car to the next one ; that when he got out on the platform he did not remain there, but attempted to pass into the next car with reasonable promptness ; that while so passing he exercised reasonable care and caution under the circumstances ; that while so passing he was thrown from the car by reason of the defendant's train being run over the switch, and along the curve mentioned in the declaration, at a dangerous rate of speed, they must find for the plaintiff. The burden of proving these facts is upon the plaintiff. But if the jury shall believe that he did not receive any such sug- gestion from the conductor, or that if he received it, and in passing from one car to the other, or in loitering upon the platform, or in the selection of the time when he undertook to so cross the platform in any other particular, he did not exer- cise such care and caution as a reasonably prudent man under all the circumstances should have exercised for his own pro- tection, they should find for the defendant. If the jury find for the plaintiff, they may, in assessing his damages, take into consideration his expenses in a,l tempting to be cured, his loss from being kept from transacting his business, his pain and suffering up to the present time, and also any pain or distress he may suffer by reason of his impaired hearing.^®^ (656) The court instructs the jury that if they believe from the evidence, that the plaintiff, while on his passage from to was guilty of carelessness, and un- necessarily exposing himself to danger by wrestling or scuf- fling on the cars, or by imprudently and unnecessarily passing from one car to another while the cars were in motion, and that such carelessness or i]pnprudence contributed in any way to produce the injury, then the plaintiff cannot recover.^^* 167 Approved In Chesapeake & 0. Ry. Co. v. Clowes, 93 Va. 189. 158 Galena & O. U. R. Co. v. Fay, 16 111. 558. (279) 657] CARRIERS. [Ch. 13 statutory provision requiring that contributory negligence must be criminal. (657) Bj section 3, article 1 of chapter 72 of our Com- piled Laws, it is provided as follows : "Every railroad com- pany as aforesaid shall be liable for all damages inflicted upon the person of passengers while being transported over its road, except in case where the injury done arises from the criminal negligence of the persons injured, or when the in- jury complained of shall be the violation of some express rule or regulation of the said road actually brought to his or her notice." The term "criminal negligence," as it is used in the statute above quoted, is defined to be gross negligence. . It is such neg- ligence as would amount to a flagrant and reckless disregard of her own safety and amount to a willful indifference to the injury liable to follow. Should you find from the testimony that the train on which the plaintiff was riding did not stop at the station a sufficient time to permit plaintiff to alight therefrom, and that she afterwards attempted to step or leap therefrom while said train was in motion, you should next determine whether she was, in trying to alight while the train was in motion, guilty of such gross or criminal negligence as is defined in the last paragraph. Should you, however, find that the plaintiff had a reason- able and sufficient time to alight from said train and reach the depot platform in safety while said train was at rest, then the defendant would not be liable in the action, and you should so find. Should you find that plaintiff did not have a sufficient time to alight from the said train as above explained, but that she was guilty of gross or criminal negligence in alighting while the train was in motion, you will find for the defendant. ■'''® 150 Approved in Omaha & R. V. Ry. Co. v. ChoUette. 33 Neb. 143. (280) Ch. 31] CARRIERS. [660 Crhninal negligence where sufficient time to alight is not af- forded. (658) If, from the evidence in this case, you find that the defendant's train did not stop at the station at E. long enough to enable the plaintiff to leave the car in which she was riding, and reach the platform while the train was standing and be- fore it was again started, and that she was thrown or precipi- tated therefrom, or that she stepped therefrom onto the depot platform after the train was started and was in. motion, it is for you to say, upon consideration of all the evidence upon that question, whether she was guilty of criminal negligence as elsewhere defined in these instructions.-^*" (659) You are instructed that a passenger upon a railroad train, is entitled to a reasonable time to leave or alight from the car in which he is riding, when a train is stopped for that piirpose, and when reasonable time is not in fact given in which to alight in safety, if, in attempting to do so, injuries result to him, he is entitled to recover from the railroad com- pany for such injuries, unless in doing so he is guilty of crim- inal negligence, as elsewhere defined in these instructions, or imless in doing so, he is violating some express rule or regula- tion of said railroad actually brought to his notice.^** Under statute requiring that act when not criminally negligent must be in violation of a known rule of the company. (660) The court instructs the jury that should you find that defendant's train did not stop at station long enough to enable the plaintiff to alight from the car in which she was riding, and that she was not guilty of such gross or criminal negligence as here defined in attempting to alight while the train was in motion, you should next determine from the testimony whether or not the plaintiff, at the imme- diate time of the injury in question, was guilty of violating i«» Approved In Omaha & R. V. Ry. Co. v. Chollette, 33 Neb. 143. 181 Approved In Omaha & R. V. Ry. Co. v. Chollette, 33 Neb. 143. (281) 561] CARRIERS. ich. 31 anj express rule or regulation of defendant company for the safety of passengers upon its train, and whether she had ac- tual notice of such rule or regulation.^^^ (661) The court instructs the jury that if you find that at and prior to the time in question ther§ existed an express rule or regulation of the defendant company that passengers should not stand upon the platform of the cars while the train was in motion, and that such rule or regulation was actually before that time brought to plaintiff's knowledge by means of notices posted upon the doors of defendant's cars, and if she went upon the platform of the moving train in violation of such express rule or regulation and attempted to step there- from to the depot platform, she could not recover in this case ; but if she was in the act of leaving the train at the time the train started then the standing upon such platform would not be violation of such rule or regulation, although the train may have been in motion.-'®? Mail agent projecting head from car. (662) If you believe, from the evidence, that it was neces- sary for , in the discharge of his duty, to project his head from the car at station, but that he put his head out before it was actually necessary, on account of the dis- tance of the train from the passenger platform, this would not prevent the plaintiff from recovering if otherwise entitled, if you believe that the acts of defendant's servants in charge of the train were such as would reasonably induce the said , situated as he was, to believe that he was at the usual place for ejecting his head in performance of his duty.'"* Allowing arm to project from car window. (663) The court instructs the jury that if they find that plaintiff was injured as charged in the petition, while being 162 Approved in Omaha & R. V. Ry. Co. v. Chollette, 33 Neb. 143. . 103 Omaha & R. V. Ry. Co. v. Chollette, 33 Neb. 143. i«* Houston & T. C. Ry. Co. v. Hampton, 64 Tex. 427. (282) Ch. 31] CAKRIBKS. [6^4 transported as a passenger in defendant's car from t|ie city pf to the town of , and ttat it was caused by the carelessness of defendant's agents and servants in running, conducting and managing said car or the train to which it was attached without any fault, misconduct or negligence on the part of plaintiff immediately contributing thereto, then they must find for the plaintiff. Although plaintiff may have failed to exercise ordinary care and prudence while a passenger on defendant's car which may have contributed remotely to the injury complained of, yet, if the employees of defendant were guilty of negligence which was the direct and immediate cause of the injury and might have prevented it by the exercise of prudence and care, the defendant is liable. That although the plaintiff was injured by having his arm broken, yet if at the time of said injury, plaintiff by negli- gence or carelessness had his arm out of the window of said car, and that such negligence or carelessness contributed di- rectly to the happening of such injury, the verdict should be for the defendant.^ ®^ (664) The court instructs the jury that if you believe that plaintiff was injured while a passenger on defendant's car, and that he failed to use ordinary care and prudence while a passenger on said car, in having his arm protruding outside the car, but that such negligence was slight, and con- tributed only remotely to the injury complained of ; and you believe that the defendant's agents or employees left a car on the switch near the main track of said defendant where the train on which the plaintiff was, had to pass, and that said car or some object thereon came in contact with plaintiff's arm and caused the injury complained of; and you believe that leaving said car in said position was an act of negligence on the part of defendant which was the direct and immediate cause of the injury, and that the defendant might have pre- 105 Barton v. St Louis & I. KI. R. Co., 52 Mo. 253. (283) 665] CARRIERS. [Ch. 31 vented it by the exercise of prudence and care, tlien defendant is liable, and you will find a verdict in favor of plaintiff for such actual damages as you believe he has sustained.^®* Postal clerk riding in mail car. (665) If the plaintiff was riding in the mail car composing a part of said train, and in his proper place in said car, then the fact, if such be a fact, that it was a more dangerous place in which to travel than other cars composing said train would in no way affect the right of plaintiff to recover in this cause.' "^ Passenger leaping to avoid sudden danger. (666) The court instructs the jury that if they believe from the evidence, that by reason of the omission or neglect of the defendants or any one of their servants, the cars were thrown off the track while under way, and the plaintiff was thereby put in danger, and, to save himself, leaped from the car, and thus received the injury, the defendants cannot ex- cuse themselves from responsibility by reason of any act of the plaintiff, unless they show first, that such act helped to produce the injury, and secondly, that such act was so impru- dent, rash or heedless, that the exercise of such prudence as the average of mankind possess, would have prevented the plaintiff from doing the act.*** Alighting when train has not stopped at platform. (667) The court instructs the jury that if the jury find that the defendant's cars passed the platform of the station where the plaintiff, a passenger, was to have gotten off and stopped some distance beyond said platform and the said plaintiff then and there voluntarily and without any direction or command of any of the persons in charge of said train got off the car with the assistance of the conductor and brakeman, 106 Gulf, C. & S. F. Ry. Co. v. Danshank, 6 Tex. Civ. App. 385. 1S7 Approved In Gulf, C. & S. P. Ry. Co. v. Wilson, 79 Tex. 371. 188 Galena & C. U. R. Co. v. Fay, 16 111. .558. (284) Ch. 31] CARRIERS. [670 and was not injured in thus getting off, the plaintiffs are not entitled to reeover.^^^ (668) The court instructs you that it was the duty of the plaintiff, in seeking to alight from the cars of the defendant company, to wait until such cars came to a full stop, or were moving so slowly that, under all the circumstances, including the time of night, her sex and condition, it was safe for her to step off ; and if she sought to alight from the car before such time, although unless she did so she might be carried by the point where she desired to get off she was negligent and can- not recover in this case.^^" Failure to take note of arrival at station. (669) The court instructs the jury that it is the duty of a passenger on a railroad train to use his senses and take notice of the usual announcement of stations, and if by reason of his negligence the passenger fails to hear notice of the arrival of the train at his place of destination, and remains on the train and is carried beyond, the fault is the passenger's, and the car- rier is not liable therefor ; if, therefore, you believe from the evidence that defendant's servants in charge of the train gave the usual announcements of stations as the train approached , and if by reason of plaintiff's negligence he failed to hear such announcenient, and plaintiff remained on the train and was carried beyond, the fault was the plaintiff's and the defendant is not liable therefor, and you should return a verdict in its favor.'''^ Duty of passenger to exercise reasonable diligence while alight- ing. (670) It was the duty of the plaintiff to exercise reason- able diligence in alighting from the train upon its arrival at the station ; and if you believe the train stopped long enough 160 Approved in Baltimore & 0. R. Co. v. Leapley, 65 Md. 571. .170 Approved In Denver Tramway Co. v. Owens, 20 Colo. 107. 171 Approved in St. Louis S. W. Ry. Co. of Texas v. Ricketts, 22 Tex. Civ. App. 515. (285) 671] CARRIERS. [Ch 31 to enable her to have alighted by the exercise of reasonable diligence, you will find for the defendant.^ ^^ (671) The court instructs you that it was the duty of the plaintiff to use ordinary care as hereinbefore defined, as to her own protection in alighting from defendant's car, and if she was guilty of negligence contributing to the injuries of which she complains, then she cannot recover. That is to say, if the defendant, by its servants, was guilty of negligence, and the plaintiff was also guilty of negligence contributing to her in- juries, then the plaintiff cannot recover in this action.-^'^* Jumping from car steps to platform. (672) The court instructs the jury that if they find from the evidence that plaintiff attempted to jump from the car steps to the station platform and received the injury in ques- tion, in consequence, then plaintiff cannot recover.^''* Neglect of passenger to avail himself of railing. (673) The court instructs the jury that, if the accident re- sulted from plaintiff's neglecting to steady herself down the platform steps by means of the railing, then plaintiff cannot recover.^ '^^ Passenger alighting from moving train. (674) The court instructs the jury that if they believe from the evidence, that the plaintiff leaped from the defend- ants' baggage car, while said car, and the locomotive and ten- der were upon the track, and while the cars were moving slowly, these are facts from which the jury may presume that the plaintiff was guilty of imprudence and carelessness in leaping from said cars.-'''^® (675) The court instructs the jury that if they believe 1" Little Rock & Ft. S. R. Co. v. Atkins, 46 Ark. 423. 173 Approved In Denver Tramway Co. v. Owens, 20 Colo. 107. iTiDelamatyr v. Milwaukee & P. R. Co., 24 Wis. 578. 176 Approved in Delamatyr v. Milwaukee & P. R. Co., 24 Wis. 578. 1T6 Galena & C. U. R. Co. v. Fay, 16 111. 558. (286) Ch. 31] UAKRIBRK. [678 from the evidence, that the plaintiff leaped from the cars of the defendants when he was in no peril, and leaped carelessly and recklessly, and that his careless and reckless manner of jumping contributed to produce the injury, then the plaintiff cannot recover.-^ ^'^ (676) The court instructs the jury that if they believe from the evidence, that the plaintiff leaped from the cars of the defendants, under circumstances that would not have justified such an act on the part of a prudent, careful man, and that the injury was the result of such leaping, then the plaintiff cannot recover.^ ^* Matters controlling negligence in attempt to leave train in motion. (677) The court instructs the jury that if they believe from the evidence that the plaintiff attempted to step from the platform of the coach of defendant to the platform at B., while the train of defendant was in motion, and that under the circumstances of this case, the train being in motion, the age, sex of plaintiff, and other surrounding circumstances, the attempt to get from the train was hazardous, and not one that a person of ordinary prudence under similar situation or cir- cumstances would have made, they will find for the defend- ant.1^3 Consideration of youth of plaintiff in determining question of negligence. (678) The court instructs the jury that in determining the question of whether plaintiff was guilty of negligence they may consider the fact that plaintiff was a mere youth, and may determine whether he possessed discretion to know what his conduct ought to have been and the judginent to conduct himself with the prudence that older persons would have used under the circumstances.-'^'' 1" Galena & C. TJ. R. Co. v. Fay, 16 111. 558. ITS Galena & C. U. R. Co. v. Fay, 16 111. 558. 179 Approved In Georgia Pac. R. Co. v. West, 66 Miss. 310. 180 Dixon V. Mobile & G. R. Co., 80 Ga. 212. (287) 679] CARRIERS. [Ch. 31 Stepping- from moving train where carrier has failed to make sufficient stop. (679) If the jury find from the evidence in this cause that the defendant's train did not stop at the station at K. long enough to enable the plaintiff to leave the car and reach the platform while the train was stationary, and that she stepped off therefrom on the platform while the train was in motion, it is a question for the jury to say whether she was guilty of negligence, as above defined, and barred thereby from a recov- ery for the injxiries received.-'*-'- (680) The court instructs the jury that the fact, if they find it to be a fact, that the defendant's train did not stop at the station long enough to enable plaintiff to alight therefrom, would not of itself excuse plaintiff or justify her stepping from the train while in motion. '*- (681) The court instructs the jury that if from the evi- dence you believe that the defendant's servants were guilty of negligence in starting the train too soon, as alleged, yet, if from the evidence you believe that plaintitf was also guilty of negligence in starting the train too soon, as alleged, yet, if and that he would not have sustained any injury, if you be- lieve that he did sustain such injury, if he had not himself been guilty of negligence which directly contributed to the al- leged injury, then you will find for the defendant, although you may believe that the train did not stop long enough for the plaintiff to get off.'^s Passenger alighting from moving train by direction of carrier's servant. (682) The court instructs the jury that if in this ease they believe, from a fair preponderance of the evidence, that the plaintiff obeyed the defendant's conductor in charge of the 181 Approved in Little Rock & Ft. S. R. Co. v. Atkins, 46 Ark. 423. 182 Approved in Omaha & R. V. Ry. Co. v. Chollette, 33 Neb. 143. 183 Approved in Gulf, C. & S. F. Ry. Co. v. Rowland, 90 Tex. 365. (288) Cll. 31] CARRIERS. [685 train upon whicli she was a passenger, in getting off of the train, and if she was not then apprised of any peril that she would encounter thereby, she would not be guilty of contribut- ing to any injuries received by her in thus alighting from the train.18* (683) The court instructs the jury that if they find from the evidence that the plaintiff was ordered or directed by the defendant's conductor or employees to get off the train, and told to hurry up, and such orders and directions would cause a man of ordinary reason to believe that he must leave the train, or submit to the inconvenience of being carried past the station, and that the plaintiff in getting off the train was in- jured, the defendant is liable ; provided that they find that the act of getting off the train was a careful and prudent act, and not a rash and careless exposure to peril and hazard.^^^ (684) Before the jury can find for the plaintiff, on the ground that the agent or other employee of the defendant di- rected or advised the plaintiff to get off the train, they must find from the evidence that such directions or advice were given at a time and in a manner that would have induced the belief in the mind of a man of ordinary reason that such agent meant and intended that he should get off at the time and un- der the circumstances existing at the time he did get off.^*' (685) If the jury find from the evidence that the plaintiff was a passenger on defendant's train for K., and, on arriving there, the conductor or agent called out the name of the sta- tion, and directed the plaintiff to get off said train without first stopping it, and that the platform at that station is un- safe, and of insufficient length for the safe landing of passen- gers, and that the plaintiff got off the train under the direc- 184 Approved in Louisville, N. A. & C. R. Co. v. Wood, 1S3 Ind. 544. 185 Approved in St. Louis, I. M. & S. R. Co. v. Cantrell, 37 Ark. 519. 186 Approved in St. Louis, I. M. & S. R. Co. v. Cantrell, 37 Ark. 519. (289) Instr. Juries. — 19. 686] CARRIERS. [Ch. 3] tions of the defendant's conductor, agent or employee, and, in doing so, was injured, on account of not stopping said train in time, or on account of such unsafe or insufficient platform, the defendant is liable.^*'' (686) If the jury find from the evidence that the plaintiff was ordered or directed by the conductor or agent of the de- fendant to get off the train, he had a right to rely upon such advice or directions, provided he took no more risk in getting off the train than a prudent man would have taken under the same circumstances.^ ^^ Passenger pulled from moving train by conductor. (687) The court instructs the jury that if the fact he that the defendant's conductor, having charge of the train upon which plaintiff was a passenger, seized hold of her while the train was in motion and was moving on, and pulled her from the platform of the coach by the exercise of physical force, and thereby caused her to strike the ground or other hard sub- stance below, whereby she was injured, she would not be guilty of contributing to injuries received thereby.^** Leaving moving train to avoid being carried by station. (688) If the jury believe from the evidence that the train of cars upon which the plaintiff had taken passage had stopped a sufficient time for the plaintiff to have left them upon the platform where passengers leaving the defendant's cars usually land, and had again started on their course, and had passed the platform provided by the defendant for passen- gers to get out of the oafs upon, and that the plaintiff then left the platform of the car rather than be carried by, he was guilty of earelessness, and cannot recover in the action.^ ^^ 187 Approved in St. Louis, I. M. & S. R. Co. v. Cantrell, 37 Ark. 519. 188 Approved in St. Louis, L M. & S. R. Co. v. Cantrell, 37 Ark. 519. 181 Approved in Louisville, N. A. & O. R. Co. v. Wood, 133 Ind. 544. leo Approved in Davis v. Chicago & N. W. Ry. Co., 18 Wis. 175. (290) Ch. 311 CARRIERS. [692 (689) The court instructs the jury that if you find from the evidence that defendant's train stopped a sufiBcient length of time to enable plaintiff to leave it, and further find that plaintiff n^lected to leave while so stopped, but carelessly and negligently jumped from it after it was put in motion, and that by reason of so leaving the train, the injury (if any) was caused, then he would not be entitled to recover.^*^ Burden of proof of contributory negligence. (690) The court instructs the jury that although the bur- den of proving that the plaintiff contributed to the injury complained of is upon the defendant, yet if the jury shall be- lieve from all the evidence in the case, whether such evidence was offered by plaintiff or defendant, that there is a prepon- derance of testimony that the plaintiff was guilty of any negli- gence which contributed directly to producing the injury com- plained of, then the burden of proof is satisfied and the ver- dict of the jury must be for the defendant.**^ (691) The court instructs the jury that the presumption is that the plaintiff used ordinary care and prudence at the time of the alleged injury, and it is incumbent upon the defendant to prove that the plaintiff did not use such ordinary care and prudence, and to prove that the want of such ordinary care and diligence on the part of the plaintiff was the immediate and not the remote cause of the injury complained of.-"* Burden of establishing freedom from contributory negligence. ( 692) The court instructs the jury that the law requires of a passenger on a railroad, the exercise of ordinary care and caution by him, to avoid injury from the accidents to which that mode of travel exposes him, and before he can recover damages against the railroad company for an injury received 191 Approved in Gulf, C. & S. P. Ry. Co. v. Rowland, 90 Tex. 365. 192 Approved In Philadelphia, W. & B. R. Co. v. Anderson, 72 Md. 519. 19S Approved in Denver Tramway Co. v. Reld, i Colo. App. 53. (291) 693] CARRIERS. [Ch. 31 by him, while so traveling, he must show, by evidence, not only negligence or improper conduct on the part of the com- pany or its agents or employees, but also that he himself was guilty of no want of ordinary care to avoid the injury from such negligence or improper conduct.-'®* H. BVIDESrOffi AND BURDBN Or PBOOr IN ACTIONS FOB INJURY TO PASSENGER. Where burden lies in general. (693) The burden of proof is on the plaintiff to establish by a preponderance of the evidence the facts necessary to a verdict in his favor under these instructions, except upon the issue concerning the exercise of ordinary care by plaintiff. As to that issue the burden of proof is on the defendant to show the want of such ordinary care on the plaintiff's part.-'^^ Burden of proof of negligence. (694) The court instructs the jury that, in order for the plaintiff to recover, he must show that the personal injury re- ceived was the result of some act of negligence on the part of the railway company, or its servants. The mere fact of an in- jury is not enough without proof of negligence on the part of the defendant, and the burden of proof to establish such neg- ligence is upon the plaintiff. But the jury should consider the whole evidence in the case on both sides in reaching a conclu- sion as to the fact of-negligence.^** Presumption of negligence from happening of injury. (695) The court instructs the jury that where a passenger is injured on a railroad while traveling thereon as a passenger through some agency or instrumentality of the railroad, there is, from that fact alone, prima facie evidence of neglect in the management of the road, which evidence defendants are 19* Illinois Cent. R. Co. v. Simmons, 38 111. 242. 106 Approved in O'Connell v. St. Louis Cable & W. R. Co., 106 Mo. 482. iM Reynolds v. Richmond & M. Ry. Co., 92 Va. 400. (292) Ch. 31] CARRIEKW. [098 bound to rebut or they will be held liable in damages for the injury. The presumption is not conclusive and the jury must determine the negligence of the company from all the facts and circumstances of the case.^^^ (696) The court instructs the jury that it is not sufficient in this case for plaintiff to prove the injuries alone, but it de- volves upon her to show negligence on the part of the defend- ant, and that unless they believe from the evidence that de- fendant, its servants or employees, were negligent in deliver- ing plaintiff at , they will find for defendant.^** (697) The burden of proof is upon the plaintiffs to show negligence on the part of the defendant. If they fail to show any facts which in law would be deemed negligence, then the plaintiffs cannot recover, and the fact or circumstance relied on must have contributed to the injury complained of; and in this connection the jury will also understand that they must be convinced from the evidence that the plaintiffs were guilty of no fault or negligence on their part.^^* (698) The court instructs the jury that if they believe from the evidence that the plaintiff was a passenger on one of defendant's cars, and while exercising reasonable care and diligence with respect to his own safety, the car started with a sudden and violent jerk, causing the injury now being in- quired into, then the burden is thrown upon the defendant to show, to the satisfaction of the jury, that the horses hitched to the car were suitable for the service in question, or that the accident was not due to the horses, and that the servant of de- fendant managing the car exercised the utmost care, skill and foresight in the management of the same, or that the accident occurred by reason of some cause not under the control of de- fendant, or its servants and employees ; and unless the defend- i»7 Doolittle V. Southern Ry., 62 S. C. 130. 108 Approved In Georgia Pac. R. Co. v. West, 66 Miss. 310. M» Approved in Curtis v. Detroit & M. R. Co., 27 Wis. 158. (293) 690] CARRIERS. [Ch. 31 ant has so satisfied the jury, their verdict should be for t\w plaintiff.**"' Shifting of burden. (699) The court instructs the jury that when injury or damage happens to a passenger (on a railroad) by a collision^ or by any other accident occurring on the road, the prima facie presumption is that it occurred by the negligence of the railroad company, and the burden of proof is on the company to establish that there has been no negligence whatsoever, and that the damage has been occasioned by inevitable casualty, or- by some cause which human care and foresight could not pre- vent.2" Burden of proof of invitation to alight. (700) The court instructs the jury that, the proof must show affirmatively that the plaintiff was a passenger upon the road of the defendant, and as such passenger was injured by the acts and negligence of the defendant and the employees of the defendant ; the proof must also show that the plaintiff was^ induced to believe from the acts or words of the employees of the defendant, that it was intended the plaintiff should alight from the train at the time and place when and where he had alighted from said train of cars.^"* Effect of failure of evidence as to cause of injury. (701) The court instructs the jury that defendant is not required to prove what caused the train to get beyond the con- trol of the train men ; and even if the jury cannot find from the evidence the exact cause, or if such cause is unknown and has not been shown, still if after considering all the testimony in the case not only that offered by defendant, but also that offered by plaintiff, yet even if there was not any negligence- 2*0 Approved in Dougherty v. Missouri R. Co., 97 Mo. 647. 201 Approved in Shenandoah Val. R. Co. v. Moose, 83 Va. 827. a«a Approved in International & G. N. R. Co. v. Eckford, 7.1 Tex. 274. (294) (Jh. 32] CHATTEL MORTGAGES. [703 on the part of defendant of the character submitted to your consideration, then the defendant must have the verdict that (Feary) its passenger received his injury without any fault upon its part.''"* (702) The court instructs the jury that, if the jury does not believe from the evidence that the plaintiff's employees were guilty of negligence as hereinbefore defined in the par- ticulars specified and charged as acts of negligence in plain- tiff's petition, or if plaintiffs were guilty of such negligence, or if you do not find that plaintiff received any such injuries as she complains of or that such injuries, if received, were not caused by such negligence, on the part of defendant's employees, you will return a verdict for the defendant.^"* CHAPTER XXXII. CHATTEL MORTGAGES. Nature of transaction, 703. Sufficiency of description of property covered, 704, 705. Mortgages to secure future advances, 706. Effect of partial invalidity of mortgage, 707. Retention of possession by mortgagor as evidence of fraud, 708- 711. Possession after condition broken, 712, 713. Right of possession under insecurity clause, 714. Liability of mortgagees for wrongfully taking chattels from pos- session of mortgagor, 715, 716. Same — Burden of proof, 717. Priority between chattel mortgage and agister's lien, 718, 719. Priority between chattel mortgage and execution, 720-722. Renewal, 723. Nature of transaction. (703) The court instructs the jury further that the foun- ds Approved in Feary v. Metropolitan St. Ry. Co., 162 Mo. 75. This instruction was given where petition charged that the acci- dent was caused by defendant's negligence. so* Approved in Houston & T. C. R. Co. v. Dotson, 15 Tex. Civ. Ap». 7S. (295) 704] CHATTEL, MORTGAGES. [Ch. 32 dation of the mortgage is the note therein described; that the mortgage is a mere security for the payment of the note, and the plaintiff cannot recover in this suit, unless he has proven the existence of the note described in the mortgage, if any is described; and if the note described in the mortgage has not been introduced in evidence, nor its absence ac- counted for, and there is no evidence showing the existence of such a note, the plaintiff cannot recover, and the jury will find for the defendant.* Sufficiency of description of property covered. (704) The court instructs the jury that the property cov- ered by a chattel mortgage is sufficiently described where it can be rendered sufficiently definite by evidence of the facts as to the property, and if you find that there was no fraud in the giving of the mortgage the fact that the property is de- scribed as (here insert description, as all the dry goods, boots and shoes, millinery goods and gentlemen's furnishing goods and stock in trade now in the store occupied by the mort- gagor) will not invalidate the mortgage if you further find that the property can be identified by other evidence.^ (705) The court instructs the jury that a person claiming property under a chattel mortgage, must see to it that the property is correctly and truly described, so that others may not be deceived. The mortgage must speak for itself, and it is for the jury to determine whether the property therein de- scribed is the same property replevied in this suit, and if it is not, then plaintiff cannot recover.* Mortgages to secure future advances. (706) The court instructs the jury that a mortgage may be given to secure a future advance, and if you find that the 1 Approved in Bell v. Prewitt, 62 111. 361. . This Is an action of replevin by the chattel mortgagee. 2 Conklin v. Shelley, 28 N. T. 360. 8 Approved in Bell v. Prewitt, 62 111. 361. This is an action of replevin by the chattel mortgagee. (296) Ch. 32] CHATTEL MORTGAGES. [7O9 mortgage was given to secure a debt actually due, the fact that it was also intended to secure future advances to the mort- gagor on credit wiU not invalidate the mortgage to the extent of any advances actually made in good faith before any third person acquired a subsequent title to or lien on the goods.* Effect of partial invalidity of mortgage. (70T) The court instructs the jury that if the mortgage authorizes the mortgagor to sell a part of the property for his own benefit it is void as to all the property embraced in it, and if you believe from the evidence that (here insert the facts partially invalidating the mortgage, as that the mort- gage covered the stock and fixtures of a saloon, and by its terms permitted the mortgagor to remain in possession there- of and sell the stock for his own benefit) then the mortgage is void as to all the property embraced in it.^ Retention of possession by mortgagor as evidence of fraud. (708) The court instructs the jury that the fact that the mortgagor is in possession raises the legal presumption ^f fraud which becomes conclusive unless you believe from the evidence that the retention was made in good faith and with- out any intent to defraud the creditors of the mortgagor.* (Y09) The court instructs the jury that a chattel mort- gage not accompanied by immediate delivery or followed by an actual or continued change of possession of the chattels mortgaged, and executed on an agreement that the mortgagor may remain in possession and sell the property and use the avails in substantially the same manner as before the execu- tion of the mortgage, is void as against the creditors of the mortgagor, and you are further instructed that the term "creditors" includes all persons who were such while the * Carpenter v. Blote, 1 B. D. Smith (N. Y.) 491. » Hangen v. Hackemeister, 114 N. Y. 566. • Sperry T. Baldnnr, 46 Hun (N. Y.) 120. (297) 710] CHATTEL MORTGAGES. [Ch. 32 chattels remained in possession of the mortgagor under the agreement^ (710) The court instructs the jury that fraud in the mort- gage may he cured by delivering possession, and though you find that the chattel mortgage be void by reason of the con- duct of the parties thereto with respect to the mortgaged property, that fact will not invalidate the mortgage as against the mortgagor's creditors where there is shown a subsequent delivery of the possession of the property by the mortgagor to the general assignee of the mortgagees to secure or satisfy the claim secured by the mortgage.* (711) The court instructs the jury that a chattel mort- gage containing a condition that the mortgagor shall remain in possession thereof, and continue to sell the same in the or- dinary course of business, is void as to other purchasers, in good faith, and subsequent creditors of the mortgagor. But when the mortgage contains no such condition, the presump- tion of good faith attaches when the mortgagee is in posses- sion, and the burden of proving fraud is upon him who al- leges it.* Possession after condition broken. (712) The court instructs the jury that the mortgagee to retain his lien after condition broken on the property, which under the contract has remained in possession of the mortgagor, must take possession within a reasonable time after default, and you are further instructed that in deter- mining what is a reasonable time you may take into consid- eration the situation of the parties and all the circum- stances.*" (713) The court instructs the jury that where the mort- gagee has a right by the terms of the mortgage to take pos- 7 Mandel v. Avery, 124 N. Y. 376. 8 Bowdlsh V. Page, 153 N. Y. 104. 9 Pike T. Colvin, 67 111. 227. 10 Read y. Barnes, 19 111. t>94; Case v. Perkins, 23 III. S82. (298) Ch. 32] CHATTEL MORTGAGES. [716 session whenever he feels unsafe or insecure, he is the sole judge of the happening of the contingency, but the right to take possession must be exercised only in good faith on rea- sonable grounds of a belief that there is danger.^ ^ Right of possession under insecurity clause. (714) The court instructs the jury that defendant justi- fying under a mortgage containing the clause that in case the mortgagee should at any time deem himself unsafe it should be lawful for him to take and sell the property for payment, it is enough to show that he deemed himself unsafe in good faith, and it is not incumbent on him to show actual dan- ger. ^^ Liability of mortgagee for wrongfully taking chattels from possession of mortgagor. (715) The court instructs the jury that under the mort- gage defendant had the right to take possession of all the property therein described, at any time he chose to do so, and no damage could be assessed against him for such taking. He did not, however, have any right to sell said property before the debt secured thereby became due. In other words, while he would have a right under said mortgage, to take possession of all the property therein described, for the purpose of pre- serving the same until the debt became due, he would have no right to sell the said property unless the debt secured by said mortgage, or some part of it, was due ; and, if he did sell said property, or any part of it, before the debt secured thereby became due, or any part thereof, then he is liable to account to the plaintiffs for the fair and reasonable value of the prop- erty so sold, without reference to the amount for which the sale was made.^* (716) The court instructs the jury that this is an action of replevin by plaintiff against the defendant 11 Roy v. Goings, 96 111. 361. 12 Allen T. Vose, 34 Hun (N. Y.) 67. IS Approved In Koster v. Seney, 100 Iowa, 558. (299) 717] CHATTEL MORTGAGES. [Ch. 32 to recover the possession of property described in the affida- vit, writ and declaration. The plaintiff claims that he was in the lawful possession of the property and that defendant wrongfully took and unjustly detained the sama The de- fendant claims a right to the possession of the property un- der a chattel mortgage which he held upon the property. The court instructs the jury that to entitle the plaintiff to recover in this action, it is only necessary for him to show that the property was taken wrongfully from his possession by the defendant or by some one acting for the defendant, that is, to justify the taking by the defendant, there must have been a violation of some of the conditions of the mortgage by the plaintiff and if the jury believe from the evidence that the property was wrongfully taken by the defendant from the plaintiff and that the conditions of the mortgage were not vio- lated, then you will find the defendant guilty.-^* Same — Burden of proof. (717) The court instructs the jury further that the bur- den of proving his case is on the plaintiff, and in order to re- cover in this suit, he must prove, by a preponderance of the evidence, that the defendant wrongfully took the cattle in controversy, or that he wrongfully detained them after de- mand made by the plaintiff. ^^ Priority between chattel mortgage and agister's lien. (718) The court instructs the jury that if they believe from the evidence, that the defendant, P., pastured certain cattle and other stock for C. (mortgagor) during the summer of 19 — , and that on or about took away a portion of the stock and then agreed that a portion of the cattle should remain in P.'s possession as a pledge or security for the pay- ment of the pasturage on the entire lot of stock ; and that if " Mathews v. Granger, 71 111. App. 467. " Approved In Bell v. Prewitt, 62 111. 361. This Is an actioa of replevin by the chattel mortgagee. (300) Ch 32] CHATTEL, MORTGAGES. [721 the said pasturage was not paid by the , that in that case P, was to be the owner of the cattle, and they were to be taken for lie pasturage; and if they further believe, from the evidence, that the pasturage was not paid, and that the cattle were the same replevied, then the law is that P. is the owner of the cattle, and the jury will so find, and will find, as a part of their verdict, that the same defendant is the owner of the cattle in controversy.^* f719) The court instructs the jury that if they believe from the evidence, that the defendant. P., pastured certain stock during the summer of , for 0., and if they fur- ther believe, from the evidence, that, on or about the day of , 19 — , the said C. took any or part of the stock under an agreement with said P. ; that a portion of the steers should remain in P.'s possession as a pledge or security for the payment of the pasturage for the entire lot of stock ; and if they further believe, from the evidence, that the pas- turage was, and still is, unpaid, and that the cattle thus pledged are the same as those replevied in this suit, then the law is, that P. had a special property in the cattle pledged until the payment of the account for which they were pledged, and the jury will find for the defendant.^'' Priority between chattel mortgage and execution. (720) The court instructs the jury that under a mortgage like the one in evidence before the jury in this case, the mort- gagee is entitled to the immediate possession of the property mortgaged, and may take the same, and reduce the same into possession, at any time before the rights of creditors, or third persons, attach by purchase, or by lien under execution.^* (721) The court instructs the jury that if they believe " Approved in Bell v. Prewltt, 62 111, 361. This is an action of replevin by a chattel mortgagee. IT Approved in Bell t. Prewitt, 62 111. 361. This is an action of replevin by the chattel mortgagee. " Whisler v. Roberts, 19 111. 274. (301) 722] CHATTEL MORTGAGES. [Ch. 32 that the property in question was voluntarily delivered to the plaintiff, as mortgagee to remain in his possession before the issuance of the executions against the mortgagor, S., and de- livery thereof to the defendant, and that afterwards, and while the executions were in the hands of the defendant, it was voluntarily surrendered by the plaintiff to S., then the plaintiff would waive his right to claim the property, as against the creditors of S., and the executions in the hands of the defendant would become a lien on the property.-'^ (722) The court instructs the jury that if they believe from the evidence, that the only claim by the plaintiff to the property in question was derived from the mortgage in evi- dence, and that the property was retained in the possession of the mortgagor, S., after the expiration thereof, and that while it was in his possession the execution described in the answer was placed in the hands of the defendart, then the law is, that the property was liable to such execution.^" Renewal. (723) The court instructs the jury that it is the duty of a mortgagee to re-file the chattel mortgage at the close of one year from its filing, and if you find that the mortgage was not so filed then one purchasing the chattels in good faith and for value will obtain a clear title to such chattels, and this is the rule though the purchaser bought the chattels before the close of the year.^^ "Whisler v. Roberts, 19 III. 274. zowhisler v. Roberts, 19 111. 274. SI Beskin v. Feigenspean, 32 App. Div. (N. Y.) 29. (302) Ch. 33] CIVIL DAMAGE ACT. [725 CHAPTER XXXIIL CIVIL DAMAGE ACT. Liability where liquors producing Intoxication were sold by dif- ferent dealers, 724-731. Notice to liquor seller, 732. Sale by successor of licensee, the license not having been trans- ferred, 733, 734. Recovery against seller for homicide committed by Intoxicated person, 735. Effect of purchase and use of liquors by wife on her right to recover, 736. Right of wife to sue where liquors bought by wife for husband's use, 737. Loitering, 738. Burden of showing that liquors sold by defendant caused intoxi- cation complained of, 739. Presumptions as to place where liquors were obtained, 740. Damages recoverable, 741, 742. Same — Recovery for nursing husband, 743. Same — ^Amount dependent on expectancy of life and probable earnings, 744, 745. Same — Amount as dependent on station In life of wife, 746, 747. 747. Admission of execution of dealers' bond by failure to deny in answer, 748. liability where liquors producing intoxication were sold by different dealers. (T24) The court instructs the jury that whatever the fatal cause of the death of the said was, if it was inspired or contributed to by the state of intoxication caused in whole or in part by said traffic of the defendants and the sale or giving to the said intoxicating liquors, then the de- fendants would be liable.'' (725) The court instructs the jury that if from the evi- dence they believe that the said was intoxicated at the time he upset and overturned his sled and lost his team, 1 Approved In Scott v. Chope, 33 Neb. 4L (303) 726] OIVIL DAMAGE ACT. [Ch. 33 and that the defendants sold any part of the liquors that pro- duced such intoxication, and that he upset his sled and lost his team in consequence of such intoxication, and that in endeavoring to reach home on foot he became exhausted, and that such exhaustion was caused by reason of his being com- pelled to walk, and that he was unable to reach home and was frozen to death, the defendants would be liable.^ (726) The court instructs the jury for the plaintiff, that if they believe, from the evidence, that , the husband of the plaintiff, came to his death on account of his intoxica- tion, and that said intoxication was caused, wholly or in part, by intoxicating liquor sold or given to the said by the defendants, then the verdict of the jury should be for the plaintiff, with such damages as, in the judgment of the jury, from the evidence, the plaintiff is entitled to recover, not ex- ceeding in the aggregate the amount claimed in the declara- tion.^ (727) The court instructs the jury that if you are satis- fied, under the evidence and the law as given you by the court, that these parties did either of them sell or furnish the liquors, and that the sale or furnishing contrib- uted to the death of this man, then give the plaintiff such a judgment as you think she is entitled to, not exceeding the amount claimed in the declaration. If, on the other hand, you find that they, or either of them, did not sell or furnish him the liquor, then, no matter how unfortunate she may have been, she has no claim upon them for a judgment in this case.* (728) The court instructs the jury that this action is brought against two separate dealers in intoxicating liquors and their respective bondsmen, not because it is claimed that 2 Approved in Scott v. Chope, 33 Neb. 41. » Flynn t. Fogarty, 106 111. 263. * Moreland v. Durocher, 121 Mich. 398. Approved and held not to authorize recovery against all defend- ants on proof of sale by one only. (304) Ch. 33] CIVIL DAMAGE ACT. [730 such dealers are or were associated together in business, but upon the ground that each sold intoxicants to , the husband of the plaintiff, that helped to produce the intoxica- tion it is claimed he was laboring under at the time he re- ceived the injuries that resulted in his death. You cannot lawfully render a judgment against all of these parties unless you find that the deceased had received intoxicating liquor from both and (liquor dealer defendants), and that the liquors so received contributed to the intoxica- tion that he was laboring under at the time he received his inj-ury.? (729) The court instructs the jury that where several liquor dealers furnish the intoxicating liquors, the use of which results in intoxication and damage, that each dealer is equally liable, and that in case one dealer furnished the first draught Avhile the user thereof was perfectly sober and the liquor Avhich intensified and completed the intoxication was furnished by other parties, the dealer furnishing the first draught is equally liable with the others for the damage re- sulting from such intoxication.' (730) The court instructs the jury that the amount of a sale is not material, nor is it material that the sale should be the one which produced the final intoxication ; but the saloon- keeper or the person furnishing intoxicating liquors is re- sponsible for all damages which may accrue as the result of his sales, if a person obtains but one drink and then drinks at other places sufficient to intoxicate him. And, if the death is established as a result of sales by more than one person, you are not required to find which one furnished the liquor that caused the death.'' 6 Moreland v. Durocher, 121 Mich. 398. 6 Dolan V. McLaughlin, 46 Neb. 449. I Approved in Scott v. Chope, 33 Neb. 41. (305) Instr. Juries — 20. 731] CIVIL, DAMAGE ACT. [Ch. 33 (V31) The court instructs the jury that it is not necessary that the liquor which caused the intoxication alleged in the complaint should have been all sold to the husband of plain- tiff by the said defendant, if the defendant sold the husband of plaintiff liquor which contributed or helped to bring about the intoxication alleged in the complaint, this would be suffi- cient to make defendant liable for injuries resulting from such intoxication. If from the evidence you believe that hus- band of plaintiff while intoxicated, injured or destroyed any of plaintiff's household goods you will say whether or not the intoxicating liquor by which his intoxication at that time was produced, if you believe from the evidence that plaintiff's husband was intoxicated, was caused in whole or in part by liquor sold him by defendant. If defendant contributed to such intoxication he would be liable.* Notice to liquor seller. (732) The court instructs the jury that the question of the sufficiency of this notice is partly a question of law and partly a question of fact. I think a notice in any given form of words might be legally sufficient under some circumstances and with the existence on the part of the defendant of certain knowledge of facts, which under other circumstances and with ignorance of those facts might not be. It seems to me in connection with this notice that the plaintiff must satisfy you that at the time the notice was given, the defendant knew or he then reasonably ought to have known that the person whose name was signed to the notice in signing and giving notice was acting as the daughter of (the party to whom sale was made). It is not necessary, as a matter of law, that he should have had personal acquaintance with her.' » Approved in Kearney v. Fitzgerald, 43 Iowa, 580. » Sackett v. Ruder. 152 Mass. 397. (306) Ch. 33] CIVIL DAMAGE ACT. [735 Sale by successor of licensee, the license not havinif been trans- ferred. (733) The court instructs the jury that it would be the duty of a person going out of the saloon business, selling and transferring his property, to return his license under which he was transacting business to the authority granting the license and have the same canceled, and if he did not do this, that he would be held liable for all damages accruing as the result of the sales of intoxicating liquors by his successor in business.'"' (Y34) The court instructs the jury that an individual or partnership taking out a license for the sale of intoxicating liquors cannot sell and transfer that license to another person or party; and if they do sell and transfer their business, to- gether with their rights under the license, the purchaser would be holden to their agent and they would be liable for all sales made by him under and by virtue of such license. And if the bondsmen of such license holder knew of such sale and transfer and took no steps to relieve themselves from lia- bility, their liability will continue.-'^ Eecovery against seller for homicide committed by intoxicated person. (735) The court instructs the jury that if you should find from the evidence that the deceased came to his death by vio- lence inflicted by any other person, and should further find that the person inflicting the violence was intoxicated at the time and that he obtained the liquors which caused his intoxi- cation from the defendants, or either of them, and that he would not have used the violence that caused the death except as a result of such intoxication, then, and in that case, such of the defendants and their bondsmen as furnished such in- toxicating liquors would be equally liable.^* 10 Approved In Scott v. Chope, 33 Neb. 41. 11 Approved in Scott v. Chope, 33 Neb. 41. 12 Approved in Scott v. Chope, 33 Neb. 41. (307) 736] CIVIL DAMAGE ACT. [Ch. 33 Effect of purchase and use of liquors by wife on her right to recover. (736) The court instructs the jury that it is claimed that the plaintiff was accustomed to purchase intoxicating liquors of the defendant and of others, and to take it to their home. If this be so, it becomes important to inquire for what pur- pose she bought and used such liquors. If it was bought and taken to the house for medical purposes only, and was in good faith prepared and used as a medicine for existing phys- ical ailments, such purchase and use would be lawful and in- nocent, and ought not to operate to the prejudice of the plain- tiff. If, however, it was not bought for such purpose, but was purchased and intended and used as a beverage for her- self and the said , her husband, the case assumes a dif- ferent aspect. If the said , her husband, was in the habit of getting intoxicated, and the plaintiff, knowing this habit, voluntarily drank intoxicating liquors with the said , her husband, at the bar of the defendant, and volim- tarily bought of defendant intoxicating liquors to be taken to their home and to be drank by herself and the said , her husband, as a beverage, this would not only be encoura- ging the said , her husband, in his intemperate habits, but would be an apparent sanctioning on her part of the sales of liquor by the defendant to the said , her husband. This law is intended to furnish redress and compensation to innocent sufferers, and not to those who have, by their acts and conduct vohmtarily and knowingly encouraged and con- tributed to bring about a state or condition in another who, while in such state or condition, does the wrongs of which they complain. If the plaintiff and the said , her hus- band, voluntarily drank at the bar of the defendant, and if the plaintiff voluntarily bought liquor of defendant to be drank by her and the said , her husband, she would not be placed in the attitude of an innocent sufferer, and as such entitled to the redress which the statute designs.*' IS Kearney v. Fitzgerald, 43 Iowa, 5S0. Criticism on use of -n-MM^^^^^'"""" ''"* '""ot-rnr.tlnn aoDroved, (308) Ch. 33] CIVIL DAMAGE ACT. [740 (737) The court instructs the jury that if, however, such drinking, either at the bar or at home, was not voluntary on her part, or if she bought and took intoxicating liquor to their home not with the view of her own drinking, but for the sole purpose of keeping her husband at home, and of keeping him from squandering his time and money in saloons, she would forfeit none of the benefits which the statute gives.^* loitering. (738) The court instructs the jury that you must notice that under the count for loitering, as under the counts for sales in the declaration, you are only to allow damages for a particular occasion, — some particular occasion proved other than the occasion when sales were made. If you find your- self led to the conclusion in which you award damages to the plaintiff, you must not go upon the idea that (the party loitering) was allowed to loiter there from day to day, from time to time, other than from to (the period alleged), and that the plaintiff is entitled to recovery under these counts for what you might call a general loiter- ing from day to day. It is only for specific occasions.-"* Burden of showing that liquors sold by defendant caused in- toxication complained of. (739) The court instructs the jury that before defendants can be held liable it must appear that the liquors furnished by them were the efficient and proximate cause, either wholly or in part, of the intoxication complained of.^* Presumptions as to place where liquors were obtained. (740) The court instructs the jury that if a man addicted to drinking goes to a saloon where intoxicating liquors are sold, apparently sober, and having remained there a sufficient 14 Approved In Kearney v. Fitzgerald, 43 Iowa, 580. ii> Approved in Sacljett v. Ruder, 152 Mass. 397. le O'Halloran v. Kingston, 16 111. App. 659. (309)' 741] CIVIL DAMAGE ACT. [Ch. 3S time, is found intoxicated, the fair presumption would be that his intoxication is due in part, at least, to intoxicating liquor procured at such saloon.^ ^ Damages recoverable. (741) The court instructs the jury that if you believe that the plaintiff had been for the last ten years the wife of ; that for several years previous to the commencement of this suit he was habitually intoxicated; that within two years before the commencement of this action the defendant sold or gave to him intoxicating liquor, and thereby caused his intoxication in whole or in part; that by reason of said intoxication the said was rendered incapable of per- forming and transacting his ordinary business; that the plaintiff was dependent upon him for support ; that in conse- quence of said intoxication she has been injured in means of support, then you will return a verdict for the plaintiff for such damages as from the evidence you may believe she has sustained in consequence thereof not exceeding $ , the amount set out in the complaint. ^^ (742) The court instructs the jury that under this decla- ration damages can be assessed only once for any sale. The declaration in specific counts alleges single sales on December 3, 4, 5, and then the general allegation for sales covering a period from March to December. Now as to the allegation from March to December, although it covers the same period as that covered by the other counts, yet you might allow dam- ages under that count for a sale if proved, provided it is not a sale for which you allow damages under any other count ; but there must be only one allowance of damages for one sale, and only one sale allowed for under any count. In order to entitle plaintiff to recover it is not necessary that the plain- tiff should prove that the sales were made on the particular " Approved In Kearney v. Fitzgerald, 43 Iowa, 580. « 18 Approved in Jockers v. Borgman, 29 Kan. 109. (310) Ch. 33] OlVIIi DAMAGE ACT. [745 dates set out in tlie declaration. In order to recover under the counts covering a period of time the plaintiff must show a sale within the period named. Under counts where partic- ular dates are set out, the plaintiff might recover for injuries which she suffered by reason of a sale made on any day not used as a basis for recovery under any other count. -^^ Same — Recovery for nursing husband. (743) The court instructs the jury that if they should be- lieve from the evidence that the plaintiff took care of her hus- band and spent her time in nursing and taking care of him, yet she cannot, in this suit, recover for the time so spent, and the jury in making up their verdict will entirely disregard the time so spent as an element of damage, unless the loss of time thus spent injured her in property or means of support. (This latter clause is only to be added in case there is evi- dence showing that the time so spent did injure the wife in her property or means of support.)^" Same— Amount dependent on expectancy of life, and probable earnings. (744) The court instructs the jury that they may esti- mate, from all the evidence in the case, the prospective length of life of the husband of said plaintiff had he not been killed (if he was so killed on the day of , 19 — ), and may take this estimate into consideration, together with all ocher facts and circumstances shown in evidence, in fixing the amount of the plaintiff's damages, in case the jury finds for the plaintiff.^^ (745) The court instructs the jury, that if you find for the plaintiff, then in estimating the plaintiff's damages, if any, in this case, you may take into consideration not only the wages and earnings of the plaintiff's husband for any 19 Approved in Sackett v. Ruder, 152 Mass. 397. 20 Meldel v. Anthis, 71 111. 241. 21 Approved in Betting v. Hobbett, 142 111. 72. (311) 746] CIVIL DAMAGE ACT. [Ch. 33 given period as shown by the evidence, so far as you may be- lieve, from the evidence, that such wages and earnings fur- nished a means of support for the plaintiff, but also the prob- able length of the life of said husband till terminated by nat- ural causes, if, and so far as, it may be shown by the evi- dence, from the day of , 19 — , had he not been killed upon that day.^^ Same — Amount as dependent on station in life of wife. (•746)" The court instructs the jury that the law requires that a husband shall provide for his wife reasonable support according to her rank and station in society ; and to this end she is entitled with her husband and family to share his prop- erty and proceeds of his labor. ^^ (747) The court instructs the jury that it is the duty of the husband to furnish his wife with support and mainte- nance in a manner corresponding with their circumstances and condition in life. And it is the duty of the husband to provide for his wife reasonable support according to her rank and station in society and to that end she is entitled with her husband and family to share his property and the proceeds of his labor. It is not to be understood that a husband is only obligated to furnish a bare subsistence to his wife, that is food and clothing, but to the extent of his ability, he is under an obligation to provide those comforts and surroundings rea- sonable and necessary in the society in which she lives, and the jury in considering the damages to be recovered by plain- tiff, if they find for plaintiff, will therefore consider the sta- tion in life in which the plaintiff and her husband moved.** Admission of execution of dealers' bond by failure to deny in answer. (748) The court instructs the jury that every material al- legation in the petition not controverted and denied in the an- 22 Approved In Betting v. Hobbett, 142 111. 72. 28 Approved in Thill v. Pohlman, 76 Iowa, 638. 2* Thill V. Pohlman, 76 Iowa, 638. (312) Ch. 34] COMPROMISE AND SETTLEMENT. [750 swer is to be taken as true ; and further, that the allegation in the petition that the defendant (surety) signed the bond of (dealer) is not controverted or denied in the answer, and therefore is to be taken as true.^* ICHAPTER XXXIV. COMPROMISE AND SETTLEMENT. Compromise as consideration for note, 749. Settlement between parties without knowledge of attorney, 750. Binding effect of compromise, 751-753. Compromise as consideration for note. (749) The court instructs the jury for the plaintiff, that if they believe from the evidence, that the plaintiff, in the month of , 19 — , in good faith supposed he had a cause of action against the defendant, on account of personal injuries which he believed resulted from the conduct of the defendant, and thereupon threatened to sue the defendant on account thereof, and thereupon the difference between them was compromised, and the defendant executed the note sued on in consideration that the plaintiff would not sue him for such injuries, and the plaintiff accepted such note in settle- ment of such claim, such compromise and settlement is a good and lawful consideration for such note.* Settlement between parties without knowledge of attorney. (T50) The court instructs the jury that when parties have gone to law about a matter, they may settle between them- selves with the intervention of an attorney on either side, or with an attorney on one side, if they see fit to do so ; but after an action is commenced, and the parties appear with an attor- 26 Approved in Scott v. Chope, 33 Neb. 41. 1 Parker v. Enslow, 102 III. 272. Use of word "supposed" instead of "believed" upheld. (313) 751] COMPROMISE AND SETTLEMENT. [Ch. 34 ney in court, any settlement of the claim out of court without the knowledge or consent of the attorney is to be viewed with suspicion. If there is any fraud in the case, such a settle- ment may be set aside.* Binding effect of compromise. (751) The court instructs the jury that if these two men made an unfounded claim (they claim here this lum- ber was not ■ according to contract), and made that know- ingly, knowing there was no color of right to it, but asserted an unjust claim, and induced the parties to compromise, un- der the circumstances, in order to avoid litigation, etc., it would not be binding on the company here ; but, if these two men did find fault with the lumber, and had good reason for finding fault, if it did not comply with the contract, and they talked about it, and they finally made this offer in good faith, and these parties said, "We will take the money," and took it, they are bound by the contract, because, in that case, there would be a valid dispute between the parties, settled up by agreement. On the other hand, if it were a fraudulent scheme on the part of these parties to beat defendant out of money, it would not be binding.* (752) The court instructs the jury that if they find that the parties met and this matter was all settled up, and was so understood by the parties, each party presenting a claim against the other, and the pretended settlement was not a myth, but a reality, that constitutes a good defense to this ac- tion, and the verdict must be for the defendants.* (753) The court instructs the jury that there is no fraud, in ordinary cases, in refusing to pay or settle without litiga- tion ; and if the jury believe from the evidence that the agent of defendant disputed the claim of plaintiff, and told the plaintiff that he could not recover against the defendant in 2 Approved in PalconiO' v. Larsen, 31 Or. 137. » Approved in Nash v. Manistee Lumber Co., 75 Mich. 351. * Approved in Doyle v. Donnelly, 56 Me. 26. (314) Ch. 35] CONCEALING BIRTH. [754 this case, and gave it as his opinion that he (plaintiff) had no legal rights, as against the defendant, on which he could re- cover, and the plaintiff had the same means of knowledge with the agent of defendant, and he believed said agent and relied upon the representations thus made by the agent of the defendant, and then and there made a hasty settlement with the agent, and that the settlement was made under threat that no payment would ever be made without long and costly liti- gation, then the jury are instructed that this is not fraud of such a character as would avoid a settlement thus made, al- though the amount received by plaintiff was but nominal. Plaintiff was bound by his own interest to inform himself of his rights, before acting, and to stand upon those rights, and if he failed to do so, and settled at a much smaller sum than he was entitled to, he himself is responsible for his loss, and cannot recover an additional sum over and above the sum al- ready received. It makes no difference that the payment was made by draft on the defendant ; if plaintiff took the draft, and never presented it for payment, it is his fault, and not the fault of the defendant, that the draft is not paid." CHAPTER XXXV. CONCEALING BIRTH.i What constitutes offense, 754. No defense that concealment was only to avoid shame, 755. Immaterial whether child born alive, 756, 757. What constitutes offense. (754) The court instructs the jury that if they believe from the evidence, that the defendant, at any time within three years next before the finding of this indictment was 5 Aetna Ins. Co. v. Reed, 33 Ohio St. 283. 1 See Criminal Law for forms of instructions applicable to crimes generally. (315) 755] CONCEALING BIRTH. [Ch. 35 pregnant witli child, and was then and there delivered of said child, and that said defendant, after being so de- livered of said child, did, within the time and at the county aforesaid, knowingly and willfully endeavor privately to con- ceal the birth of said child by secretly partly burning the body thereof, or by secretly hiding the body of the said child so that it was not and could not be known, then and there, whether the said child was bom alive or not, then they will find her guilty.* No defense that concealment was only to avoid shame. (755) The court instructs the jury that though they may believe from the evidence that defendant felt great shame and mortification at the birth of said child, still such feelings are no defense to this prosecution, and the jury should not ac- quit on such grounds.* Immaterial whether child bom alive. (756) The court instructs the jury that the question as to whether said child was born dead or alive is not submitted to the consideration of the jury; the crime under this indict- ment being complete, if the jury shall believe from the evi- dence that defendant within the time, and at the county aforesaid, was pregnant with and delivered of a child, as charged in the indictment, and that after being so deliv- ered of said child, she then and there, knowingly and will- fully, that is to say, understandingly and intentionally, en- deavored privately to conceal the birth of said child by se- cretly partly burning the body of said child, or by secretly hiding the same, so that it was not and could not be known, then and there, whether the said child was born alive or not.* (757) The court instructs the jury that this is not a prose- cution for the murder of said child, nor is it material to the finding of a verdict of guilty that the jury should know 2 State V. White, 76 Mo. 96. 3 State v. White, 76 Mo. 96. 4 State V. White, 76 Mo. 96. (316) Ch. 36] CONSIDERATION. [758 whether said child was killed, or whether said child was born dead or alive. It is sufficient, under this indictment, if the jury shall believe from the evidence that the defendant was pregnant with, and delivered of a child, and after being so de- livered, in manner and form as charged in the indictment, endeavored privately to conceal the birth of said child, and that by such endeavor to conceal such birth she then and there destroyed the means of knowing or ascertaining whether said child was born alive or not.^ CHAPTER XXXVI. CONSIDERATION. Sufficiency of consideration, 758. Same — Consideration for suretyship, 759. Action on note, consideration of whicli is certain letters patent, 760-763. Compromise as consideration, 764. Dismissal of suit as consideration, 765. Sufficiency of consideration. (758) The court instructs the jury that they must find from the evidence that the defendant received a valuable con- sideration from the plaintiff, which induced him to make the contract sued upon in this case, as a naked promise is void. If the jury find from the evidence that the defendant desired to aid in the support of his sister, and agreed with the plain- tiff that if the plaintiff would take care of his sister, he would pay the plaintiff the charges and expenses of the support and care of defendant's sister, then the plaintiff will be entitled to recover what such support and care was reasonably worth considering the situation in life, occupied by the sister and the plaintiff, if the jury believe from the evidence that the B state V. White, 76 Mo. 96. (317) 759] CONSIDERATION. [Ch. 3b plaintiff in reliance upon the promise of the defendant, ren- dered services in the support and care of the sister.^ Same — Consideration for suretyship. (759) The court instructs the jury that if a party sign a note as surety for another, in consideration that the principal shall receive the benefit thereof, such consideration is a valid consideration in law, and the signer thereby becomes liable to the lender as the principal, and in this case it is immaterial hov7 much, if any, benefit the defendant received for signing said note, provided he signed it in consideration that should receive credit for the amount of the same, and that by reason thereof did receive such credit.^ Action on note, consideration of which is certain letters patent. (760) The court instructs the jury that the specification accompanying the letters patent read in evidence, must in, and of itself, contain a full, clear and exact description of the invention, and if the object of the alleged patent for cannot be obtained v^hen the specifi- cation is clearly followed out by competent workmen of or- dinary skill and proficiency in the art of , with- out invention or addition of their own, or if in order to at- tain the object of the patent, information must be derived from other sources than the specification, as by experiments or from using other ingredients to make the thing described ; or if it requires the solution of a problem ; then and in either of said cases the letters patent are void, and the note sued on is without consideration and the jury must find for the de- fendants.* (761) The jury are instructed that the inventor should confine his specifications to substances which he knows will answer the purpose for which they are used ; that the speci- 1 Ho-we V. Hyde, 88 Mich. 91. 2 Approved in Broadwell v. Sanderson, 29 III. App. 384. 3 Approved in Keith v. Hobbs, 69 Mo. 84. ("318) Ch. 36] CONSIDERATION. [764 fication accompanying the letters patent read in evidence makes use of the general term "water;" and if the jury believe from the evidence that the waters of the in general use will not accomplish the end for which water is used in the said composition, either by reason of or otherwise, then the specification is not sufficient and the let- ters are void; there was no consideration for the note sued on and the verdict must be for the defendants.* (762) The jury are instructed that if they believe from the evidence that the alleged improved is worthless and cannot be beneficially used for the purpose of , or if the jury should be satisfied from the testimony that any one or more of the ingredients mentioned in the specifi- cation as essential, is either disadvantageous or utterly use- less, then, and in either of said cases, the letters patent are void and the verdict should be for the defendants." (763) The jury are instructed that the letters patent are priina facie evidence that the plaintiffs are the joint in- ventors of the so-called improved composition, yet, if that fact may be disproved, and if the jury should be satisfied from the testimony that said composition was invented by the plaintiff K. alone, and not by K. and E. jointly, the let- ters patent are void ; there was no consideration for the note sued on, and the verdict must be for the defendants.* Compromise as consideration. (764) The court instructs the jury that the abandonment and discontinuance of a suit or action brought to enforce a doubtful right or claim, is a sufiieient consideration for a promise and so is the compromise of a disputed claim made bona fide even though it ultimately appears that the claim compromised was wholly unfounded. If therefore, you should believe and find from the evidence that the note sued on in this case was given in consideration of a compromise * Approved In Keith v. Hobbs, 69 Mo. 84. 6 Approved in Keith v. Hobbs, 69 Mo. 84. « Approved In Keith v. Hobbs, 69 Mo. 84. (319) 765] CONSIDERATION. [Ch. 36 of the suit instituted by plaintiffs on tlie $ note, and that said suit was dismissed by plaintiffs, and that said agree- ment of compromise was carried out by the parties thereto, then you are instructed that said agreement forms a sufficient consideration for the note sued onJ Dismissal of suit as consideration. (765) The court instructs the jury that, if you believe and find from the evidence that L., defendant herein, in 19 — , executed and delivered to plaintiffs, H., E. & Co., the $ note introduced in evidence, and that plaintiffs had brought suit on said note in the court of County, , and had in such suit attached certain prop- erty of said defendant and that L., defendant, after the in- stitution of said suit and while the same was still pending and undisposed of, agTeed with plaintiff on the amount that was still due on said note for $ , and that in order to and for the purpose of procuring the dismissal of the suit then pending and a release from the attachment of property which had been levied on, or in order to and for the purpose of procuring an extension of the time of payment of the amount still claimed to be due by plaintiffs on said $ note, agreed with plaintiffs or with their attorneys on a set- tlement of the differences existing between them as to the amount still due on said note, and in pursuance of said agree- ment the defendant in this suit, executed and delivered to the plaintiffs the note herein sued on, and the plaintiffs thereupon in consideration of the execution of said note, did in fact dis- miss their suit on said $ note and released the prop- erty which had been levied on in that case, and accepted in lieu of said note, the note herein sued on, then you are in- structed that said agreement and the subsequent compliance therewith by the parties thereto, is a sufficient consideration for the note sued on, and you will find for plaintiffs.* I Approved In Hunter, Evans & Co. v. Laniua, 82 Tex. 677. » Approved in Hunter, Evans & Co. v. Lanius, 82 Tex. 677. (320) Ch. 37] CONTRACTS. CHAPTER XXXVII. CONTRACTS. I. Formation of Costkact and Offeh and Acceptance. Offer and acceptance, Y66. Acting on offer, 767. Mutuality and certainty, 768. Special and implied promise, 769. Unsigned contract, 770. Contract by correspondence, 771-773. Liability for building material furnished by plaintiff on the order of a third person, 774. II. Legalitt op Contract. : In general, 775. Necessity that contract should be in writing, 776. Public policy, 777. Rights of parties to illegal contract, 778. III. Interpretation and Effect. In general, 779-783. Interpretation of contract partly in writing, 784, 785. Instructions where extrinsic evidence is necessary to aid Inter- pretation, 786. Recovery upon oral contract, 787. Must abide by terms of contract, 788. Interpretation of phrase "ready for occupancy," 789. Intent or understanding of parties, 790-792. IV. Performance of Contract. Necessity of performance by plaintiff, 793. Necessity of tender of performance, 794. Sufficiency of performance in general, 795, 796. Substituted performance, 797-799. Substantial performance, 800-802. Failure to furnish article on demand, 803. Performance of agreement not to do business In a certain lo- cality, 804. Action on note payable when railroad shall be completed, 805- 807. Joint adventure of purchase and resale of lands, 808. Action on contract to construct water-wheels, 809. (321) Instr. Juries — 21. 766] CONTRACTS. [Cli. 37 Violation of agreement to make loan, 810. Delay in performance, 811. Recovery for part performance or imperfect performance of con- tract, 812, 813. Same — Recovery for work and labor, 814, 815. Waiver of rights under contract, 816, 817. Waiver of breach, 818. Waiver of delay in performance, 819. Acceptance of performance, 820. Excuse for nonperformance, 821-823. In general, 827-829. Burden of proof, 825, 826. V. Modification of Conteact. In General, 827-829. I. FoEMATioN OP Contract and Offer and Acceptance. Offer and acceptance, (766) The court instructs the jury that if they believe from the evidence that the lease of was signed and left with the defendant for the purpose of procuring a written guar- anty, and signed by S., and then to be forwarded to P., and that the same was not to become a binding contract between the parties until the same was so guarantied, then before P. was bound to regard the contract as completed he was enti- tled to a valid and binding lease guarantied by S. ; and if not made in a reasonable time, or on notice by the defendant that he could not procure the guaranty of S., and that he might regard the contract at an end unless he would let him have it without security, this would end the contract, unless P. afterwards agreed to let him have it without security.* Acting on offer. (767) The court instructs the jury that if one person makes a proposition to another and without any formal ac- ceptance the latter proceeds to avail himself of the proposi- tion, this will constitute a virtual acceptance, and he will be as fully bound as if he had in terms accepted the offer.'* 1 Approved in Jordan v. Davis, 108 HI. 336. = Miller V. McManls, 67 III. 126. (322) Ch. 37] CONTRACTS. [770 Mutuality and certainty. (768) The court instructs the jury, that if they find, from the evidence in this case, that in the defendant, by its agent or agents, made a contract with the plaintiff, b}' which the defendant agreed to sell and deliver to the plain- tiff, on the cars, at , sufficient of its own man- ufacture, for the then current season's supply (ending ) of the plaintiff's business, at the price of $ per ton, to be delivered on plaintiff's orders or requisitions, from time to time, as fast as needed to keep up such supply, the plaintiff agreeing, in consideration thereof, to purchase said of the said defendant, and to order the same as so needed, and to pay defendant therefor, at the price aforesaid, upon the delivery of each car load at , such a contract would be valid in law, and mutually binding upon the respective parties thereto.* Special and Implied promises. (769) The court instructs the jury that this is an action upon a contract ; that to support the action the contract must be proved ; that a contract consists of mutual promises ; that two kinds of promises are recognized in proof of contracts. One is a special promise and the other an implied promise. That the special promise is shown where the parties definitely and specifically fix the terms and conditions of their contract. The implied promise is a promise implied and arising from the acts and circumstances proved in a case where no special promise is proved. They consist of such acts and circum- stances as raise in law an implication of those promises neces- sary to complete a contract.* Unsigned contract. (770) The court instructs the jury that the unsigned con- 3 Approved in National Furnace Co. v. Keystone Mfg. Co., 110 111. 427. * Noyes t. Loring, 55 Me. 408. (32.^) 771] CONTRACTS. [Ch. 37 tract offered in evidence cannot be regarded as the contract of the defendant, upon which the plaintiff can recover as upon a written contract signed by him. It at the most can only be considered as a part of the transaction at the time of the ne- gotiation and agreement between the parties. If said paper was read over to the defendant accurately and fully and fairly understood by him, and he assented and agreed to the terms therein stated, he is bound by said terms, and his liability will be determined accordingly.^ Contract by correspondence. (771) The court instructs the jury that if they believe from the evidence that the only contract between the plaintiff and defendant is expressed in letters from the defendant to the plaintiff bearing date on the — - — — ■ and days of , 19 — , inclosing a printed circular mentioned therein and in letters from plaintiff to defendant bearing date on the and days of , 19 — , and if the jury further believe from the evidence that the plaintiff by the let- ter dated the day of , 19 — , accepted the terms proposed to him by the defendant as shown by letters and cir- culars aforesaid without anything other or further in relation thereto between them, then such letters ajid circular consti- tute the contract between plaintiff and the defendant; and the parties are bound by the terms thereof, except as far as the same may have been subsequently modified by mutual agreement of the plaintiff and of the defendant, if, from the evidence, the jury believe that any such modification was sub- sequently made.® (772) The court instructs the jury that if the jury believe that the contract between the plaintiff and the defendant con- sisted of letters and the circular mentioned in the last instruc- tion above, then such contract was a contract in writing and B Approved in Osborne & Co. v. Simmerson, 73 Iowa, 509. « Approved in Shrewsbury v. Tufts, 41 W. Va. 212. (324) Ch. 37] CONTRACTS. [775 it bears date from the acceptance by the plaintiff of tne terms proposed by the defendant in the year .'' {11Z) The court instructs the jury that if the jitry believe from the evidence that the plaintiff made a contract with the defendant and that such contract is expressed in letters or in several writings, and a printed circular, and is the only contract between them, then the contract between the plaintiff and the defendant is a contract in writing and the partiens are bound by the terms of the written contract.* Liability for building material furnished by plaintiff on the order of a third person. (774) The court instructs the jury that if they find from the evidence that a contract existed between plaintiff and A. to furnish the goods in question for the house of the defendant, then such contract did not bind the defendant to pay plaintiff for them, unless the jury first find, from the evi- dence, that defendant subsequently assumed A.'s contract, and promised plaintiff to pay him for the same ; and that if the jury find such to be the case, defendant cannot be held liable to pay for any goods delivered before defendant made such agreement with plaintiff, for the reason that there is no consideration for such agreement, and the jury should give defendant credit itv all money paid by him, to be applied in payment for goods furnished subsequently to such agreement by defendant with plaintiff.* II. LeqaI/Itt or Contract. In general. (775) The court instructs the jury that if you believe from the evidence that the defendant agreed with the plain- tiff that he would pay to the plaintiff a certain sum, if the plaintiff would stay with and care for the parents of the de- 1 Approved in Shrewsbury v. Tufts, 41 W. Va. 212. 8 Approved in Shrewsbury v. Tufts, 41 W. Va. 212. » Owen V. Stevens, 78 III. 462. (325) 776] CONTRACTS. [Ch. 3> fendant and of the plaintiff, such an agreement, if you find there was such an agreement, would be a lawful one.^" Necessity that contract should be in writing. (776) The court instructs the jury that one person has a right by word of mouth to employ another to work for a third person, and such person may properly do such work upon the credit of the party making such employment, and not upon the responsibility of the party for whom the work is done, if there be a consideration therefor, and that if the jury believe from the evidence that defendant employed the plaintiff verbally to work for A., and the plaintiff performed services for A. in pursuance of the employment by defendant, then the plaintiff has a right to recover from defendant whatever the services rendered for A. were reasonably worth ; and the contract of employment need not be in writing ; and the pro- visions of the statute of frauds which provides that contracts of suretyship for another shall be in writing, will not be a defense.'^ Public policy. (777) The court instructs the jury that a promissory note given in consideration of an agreement on the part of the one to whom it is given that he will obstruct the course of public justice or suppress proceedings under a criminal complaint is void and cannot be enforced by the one to whom it is given. This, however, is not because the law seeks to favor the defendants in such a transaction, the law looks upon the parties as entirely at fault and refuses to lend its aid to either in a case where both are guilty of trying to impede the course of public justice. It is therefore not sufficient to defeat the plaintiff's action for the defendants to show that they gave the note in question upon their understanding that by so doing, the party complained of as having committed a crim- 10 Waldron v. Alexander, 136 111. 550. 11 Moshier v. Kitchell. 87 111. 18. (326) Ch. 37] CONTRACTS. [779 inal offense would be discharged from custody and the prose- cution against him dropped. The defendant must show also that this understanding and arrangement was participated in by the plaintiff.-'^ Eights of parties to illegal contract. (778) The court instructs the jury that if they believe from the evidence that the plaintiff has never been paid for the services here sued for and that the plaintiff executed the release introduced in evidence in this case and that at the time he executed such release, he knew the purpose for which it was executed to be to , then the plaintiff is particeps criminis to an immoral and unlawful act and plain- tiff cannot recover. The services having been fully performed by the plaintiff, and the release having been executed by him, importing a consideration, neither law nor good morals will permit the parties to invalidate the release by showing the moral turpitude of the parties signing it.^* III. Interpketation and Effect. In general. (779) The court instructs the jury that if they believe from the evidence that plaintiff made the contract alleged in the declaration with the defendant to "shell the defend- ant's corn," then the jury are instructed that under such contract the plaintiff had no right to keep on shelling no mat- ter whether the corn was fit to shell or not, and if the jury believe from the evidence that after plaintiff commenced shelling defendant's corn, he was repeatedly stopped from work by defendant's orders, on account of the corn not being in a fit condition to ship and that after the plaintiff had dis- continued shelling because of the orders of defendant, the defendant had promised to pay plaintiff for time lost during such suspension of work, then the jury are instructed that laFosdick v. Van Arsdale, 74 Mich. 302. 13 Harvey v. Tama Co., 53 Iowa, 228. (327) 780] CONTRACTS. [Ch. 37 such promise is not binding for want of consideration, and plaintiff cannot recover upon it.^* (780) The court instructs the jury that the main ques- tion is whether plaintiff has complied with the terms of the contract on his part to be performed and that it becomes a material inquiry whether according to the terms of the modi- fied or verbal contract for delivery of (barley), the (barley) was to be paid for as each load was delivered or whether it was not to be paid for until the delivery of all the (barley) which was the subject of the sale, and the court instructs the jury that as the modification of the contract of sale was verbal, and the parties differ as to its terms, the question of the construction of the modified contract is a question for the jury to decide.^® (781) The court instructs the jury that the principal question in this case is whether the agreement between plain- tiff and defendant was that plaintiff was to take in exchange for his farm as part payment from the defendant a debt or obligation which A. was to give the defendant to secure the payment of the purchase money of the property described in the complaint and which was sold by the defendant to A., or whether the plaintiff was to take the property described in the complaint as sold by the defendant to A., aiid the debt as an incident. If the agreement was that plaintiff was to take the debt or obligation of A., then it became the duty of the defendant as a part of the contract to procure the obliga- tion and deliver it in payment, and if he did not do so, then defendant has failed to perform on his part and plaintiff may maintain this action to recover the amount of the obligation. The jury are further instructed that if the agreement was that defendant was to give to the plaintiff, or transfer to 14 Belden v. Woodmansee, 81 111. 25. It would not have been proper In this case to have submitted to the jury what the rights of plaintiff were under the contract. 10 Gardner v. Clark, 17 Barb. (N. Y.) 538. (328) Ch. 37] CONTRACTS. |-784 him, not the property sold by defendant to A., but a demand or debt created or to be created by the purchase by A. from the defendant of the said property, then upon such an agreement the risk of A.'s refusing to carry out his agree- ment and give the obligation to the defendant was upon the defendant and not upon the plaintiff and plaintiff cannot be prejudiced by A.'s refusing to complete the purchase and give the defendant his debt, unless such refusal was by the plaintiff's interference or procurement.-'® (782) The court instructs the jury that by the written contract between plaintiff and defendant, read in evidence, the- said defendant bound himself, unconditionally, to pay to plaintiff dollars on the day of , and the jury will find a verdict for the plaintiff for said sum with interest from —^—^ — , at per cent., unless they further believe from the evidence that the amount so agreed to bo paid has been paid, satisfied or released.^ ^ (783) The court instructs the jury that the clause in the policy immediately following under the head of "Conditions" should be construed to refer to those provisions and conditions of the policy which enter into and form a part of the contract of insurance, and are essential to make it a binding contract between the parties, and which are condi- tions material to the risk and not those stipulations which are to be performed after a loss has occurred, such as giving notice and furnishing proof of death. ^* Interpretation of contract partly in writing, (784) The court instructs the jury that this is an action by plaintiff against defendant to recover the value of an en- gine ordered of the plaintiff by the defendant and that there was a writing between the parties consisting of an order by plaintiff for the machinery, which purported to embody some 18 Thomas v. Dickinson, 23 Barb. (N. Y.) 431. " Edwards v. Smith, 63 Mo. 119. 18 Approved in Travelers' Ins. Go. v. Harvey, 82 Va. 949. (329) 785] CONTRACTS. [Ch. 37 of the provisions of the contract between plaintiff and the defendant. No parol evidence can be heard to change the agreement so far as the parties have put their agreement into writing, but plaintiff is allowed to show that all stipulations entered into between the parties were not put into the con- tract and that all the representations which the plaintiff made at the time of entering into the contract of sale were not put into the contract. The order for machinery and the evidence together show that a particular engine was in the minds of both parties. The court instructs the jury that if rep- resentations were made by plaintiff to defendant respecting this particular engine which were material and operated to influence the defendant to make the contract of purchase, they must be made good, in the engine which is furnished by the plaintiff as fulfilling the contract of sale, and if any of the representations made by the plaintiff as to the character of the engine were not true substantially, that is, such rep- resentations as were material and operated to influence de- fendant to make the contract of purchase, then defendant would not be under obligations to accept the engine.^* (785) The court instructs the jury that this is an action by plaintiff against defendant to recover the value of an engine ordered of plaintiff by the defendant and that there was a writing between the parties consisting of an order by the defendant for machinery and that this order purports to embody at least some of the provisions of the contract be- tween the parties. It is claimed by the defendant that the writing does not embrace all the representations made by plaintiff as to quality, character and kind of engine that was to be furnished, but the jury are instructed that so far as the writing does provide for the kind and character of engine which should be furnished, it must control and nothing in the evidence outside of the contract can stand as against the contract itself; that is so far as the evidence may conflict with 19 Palmer v. Roath, 86 Mich. 602. (330) Ch. 37] CONTRACTS. [787 the written provisions of the contract, the writing must con- troL^o Instructions where extrinsic evidence is necessary to aid inter- pretation. (786) The court instructs the jury that plaintiff and de- fendant entered into a contract by which the plaintiff agreed to sell to the defendant his house, farm and premises situat- ed in containing about together with all fixtures belonging to the "fulling mill and carding ma- chine" and if the jury believe from the evidence that there was a building on the farm so sold by plaintiff to defendant which had been used in the wool-carding and cloth-dressing business and that it was called and known, at the date of the contract, as the "fuRing mill" or "carding machine," but that the building had not been used for that business for sev- eral years prior to the date of the contract of sale of the land described in the declaration to the defendant and that the carding machine itself had been taken from the building, before the contract was made and stored in a grist mill sit- uated upon the farm, then the jury are instructed that it is a question for the jury to determine whether the words "card- ing machine and fulling-mill" as used in the contract of sale do not mean the building on the farm in which the business of carding wool and dressing cloth had been carried on and if so, whether the phrase "fixtures belonging to the fulling mill and carding machine" does not mean the carding ma- chine in question and other machinery that had been used in said building, though the jury may find that it was de^ tached from said building and housed and stored, in some other place on the farm, at the date of the contract.^^ Eecovery upon oral contract. (787) The court instructs the jury that this is an action 20 Palmer v. Roath, 86 Mich. 602. 21 Martin v. Cope, 3 Abb. Ct. App. Dec. (N. Y.) 182. (331)' 788] CONTRACTS. [Ch. 37 upon a contract and that the contract being an oral one, if any contract was made, it is a question for the jury to find what that contract was.^^ Must abide by terms of contract. (788) The court instructs the jury that if they believe from the evidence that there was a special contract between plaintiff and defendant, by which plaintiff was to look to a third person for pay for his work, and the parties were le- gally competent to make a contract, then they must abide by the terms of it, and though the jury may believe from the evidence that the services rendered by plaintiff, operated to the benefit of defendant, this fact does not relieve the parties from the legal effect of their special contract.^* Interpretation of phrase "ready for occupancy." (789) The court instructs the jury that the question of the proper construction and interpretation of a contract is one of law for the court to decide. The alleged contract here sued on provides that the plaintiff shall finish a house for defendant "ready for occupancy" and then proceeds to state the details as to a portion of the work. As far as the man- ner of doing the work and kind of work is specified, the work must be done as thus specified, and the only difficulty arises as to the work not specified, but which is required to be done by that provision of the contract which says that the house must be finished "ready for occupancy." The court cannot as a matter of law give you the details which the parties have omitted but instructs you that plaintiff would under this provision of the contract be bound to do all things that would be reasonably necessary and proper to make a house ready for occupancy, taking into consideration, in determin- ing what should be done, the character of the house he was to finish ; and if the jury find that he omitted anything spec- 22 Noyes v. Loring, 55 Me. 408. 23 Noyes v. Loring, 55 Me. 408. (332) Ch. 37] CONTRACTS. [791 ified in the contract or omitted any other thing that was rea- sonably required to have such house as is referred to and described in the contract, ready for occupancy, then he has not performed his contract and cannot recover upon it.^* Intent or understanding of parties. (790) The court instructs the jury that if they believe from the evidence that (the plaintiff sold to defendant a specified number of hogs as described and alleged in the declaration, and that from the language used in the contract of sale the plaintiff had a right to consider that he V7as sell- ing the hogs to the defendant at the defendant's risk as to the moving of said hogs to the defendant's farm, then the jury may find a verdict for the plaintiff for the entire num- ber of hogs sold, though they may further find that defend- ant understood that plaintiff was to be at the risk of moving the hogs to the defendant's farm, and though they may fur- ther find that some of the hogs perished from the heat while being driven to defendant's farm.)-^ (791) The court instructs the jury that the plaintiff en- tered into a contract with the defendant for the construction of and plaintiff contends in this suit that he is entitled to more than , the amount of money which defendant paid plaintiff for the work done and which de- fendant claims is all the plaintiff is entitled to and the court instructs the jury that in determining the question whether or not plaintiff acquiesced in the construction of the contract on the part of the defendant by which the defendant paid and plaintiff received dollars per for the material in the in dispute, they are to look to all the circumstances of the case and plaintiff will not be con- sidered as acquiescing in defendant's construction of the contract, unless the plaintiff neglected to assert his own con- struction thereof, to the defendant or its agents for such 2* Cunningham v. Washburn, 119 Mass. 224. 25 Nichols V. Mercer, 44 111. 250. (333) 792] CONTRACTS. [Ch. 37 length of time as to warrant the defendant in believing that he had waived or abandoned his right to demand more than dollars per .^° (792) The court instructs the jury to disregard all the evidence of the construction put upon the contract involved in this suit and given in evidence in this case by 0., the agent of the defendant, at the time this contract was entered into, unless the jury believe that the said construction of the contract by C. was communicated by C. to plaintiff and was acquiesced in by him or unless plaintiff put the same con- struction on said contract at said time, and though the jury may believe from the evidence that immediately prior to and about the time the contract here in suit was written and signed by the plaintiff, the probability was discussed be- tween C. and the plaintiff as to , yet such discus- sion cannot be considered by the jury as sufficient to change, modify, or add to the provisions and terms of said contract, but only for the purpose of ascertaining the circumstances connected with the subject-matter of the contract at the time it was made and the object and purpose of the parties as avowed at the time they entered into the contract.^'' IV. Pebfobmanoe of Contract. Necessity of performance by plaintiff. (793) The jury are instructed by the court that the plain- tiff in this case seeks to recover under the agreement made by the defendant, L., dated , which has been offered in evidence as "Plaintiff's Exhibit A" ; that in order to en- title him to recover it must be shown by the plaintiff, by a preponderance of the evidence, that he has fully and com- pletely carried out and performed all of his obligations in said agi-eement.^® •b^ 28 Norfolk & W. R. Co. v. Mills, 91 Va. 613. " Norfolk & W. R. Co. V. Mills, 91 Va. 613. =8 Approved in Lawrence v. Rhodes, 188 111. 96. (334) Ch. 37] CONTRACTS. [796 Necessity of tender of performance. (794) The court instructs the jury that it is incumbent on the defendants under the contract alleged in plaintiff's decla- ration to show an offer to perform, or some sufficient excuse for nonperformance on their part, in order to excuse them- selves from liability to pay damages, if the evidence shows that the plaintiffs were ready and willing to perform their part of the contract.^^ Sufficiency of performance in general. (795) The court instructs the jury that if they believe from the evidence that plaintiff entered into a contract with the defendant to (dig a well number of feet deep unless the plaintiff should strike water at a less depth, and that the plaintiff made efforts to find water and failed, and that plaintiff did not dig the well to the depth designated by the contract), then the jury are instructed that plaintiff can- not recover for his services.^" Same. Action on subscription. (796) The court instructs the jury for the defendant, that in regard to the item for the (map) sued on in this case, if the jury find, from the evidence, that the plaintiff, at the time the defendant subscribed for said (map), agreed to in- sert in the said (map) a business card for the defendant, and as a part of the consideration of said subscription, and that it was agreed that the card should properly describe the place of business of defendant, then, in law, to enable the plaintiff to recover on said item, they must have inserted said business card substantially as agreed upon, and properly described the place of business of the defendant substantial- ly as agreed upon. And if the jury find, from the evidence, that the defendant's place of business was incorrectly de- scribed as in another and different part of the city of 29 Approved in Bird v. Forceman, 62 111. 212. 30 Lawrence v. Van Deventer, 51 N. Y. 676. (335) 797] CONTRACTS. [Ch. 37 from wkere the defendant's place of business actu- ally was, the jury should find for the defendant as to such item, if they further believe the mistake was made by the plaintiffs, and not by the defendant in giving the description of the place of business.^^ Substituted performance. (797) The court .instructs the jury that one who employs an artist to paint a portrait is entitled to his personal skill, and is not required to accept a painting produced by an- other.^ ^ (798) The court instructs the jury that if they believe from the evidence (that plaintiff contracted with defendant to secure the publication of an advertisement in certain pa- pers published at designated places, and that the advertise- ment was not published by plaintiff in the newspapers se- lected at the given locations, but that the advertisement was published in other newspapers at other locations, then plain- tiff cannot recover for publishing such advertisements, al- though the newspapers selected in which plaintiff published the advertisement were a better advertising medium than those designated in the contract) .^^ (799) The court instructs the jury that in order that the contract shall bear the impress of being a personal contract or one which involves personal considerations, something must appear upon it or it must inevitably suggest that a per- sonal confidence or trust was reposed in the person contracted with, and if the jury believe from the evidence (that the plaintiff was employed by the defendant as supercargo and was to be paid certain commissions on the proceeds of the cargo, and that no personal trust was reposed in the plaintiff, and that plaintiff was taken sick and employed others iu his place who were to be paid from his own commissions, 81 Approved in Andreas v. Ketcham, 77 111. 377. 82 Francois v. Ocks, 2 E. D. Smith (N. Y.) 417. 33 Dauchey v. Drake, 85 N. Y. 407, 9 Daly, 31. (336) Ch. 37] CONTRACTS. [801 and that the substituted supercargo fully performed the duties which the plaintiff was to perform, then the plaintiff is entitled to the stipulated commissions).^* Substantial performance. (800) The court instructs the jury that plaintiff in this case sues to recover under a contract by which he was to furnish to defendant a monument, the cap of which monu- ment should be the same as that upon a monument erected iipon the grave of one T. It appears from the evidence that the monument erected by plaintiff for defendant in this case was a smaller monument than the one erected on the grave of T. The court instructs the jury that to entitle plaintiff to recover, it is not necessary that the cap on the monument in question should be of the exact proportion and size as that upon the T. monument. It is sufficient if it be shown to be substantially the same in style and finish and of such proportions as to present the same general appearance as that upon the monument of T., and so to be of such propor- tions as to properly correspond with the monument on which it is placed, and if from the evidence, the jury shall find that plaintiff has thus substantially complied with his contract, you will find for plaintiff. If you do not so find, you will find for defendant.^^ (801) The court instructs the jury that by the terms of the agreement introduced in evidence in this case, the de- fendant contracted with the plaintiff to have the plaintiff elected a member of the company and a manager of said company within sixty days from the time when the contract was entered into. This contract was based upon a good and sufiicient consideration (here state the facts con- stituting the consideration) and the object and purpose of the contract was to put the plaintiff in a position where he SI Gray v. Murray, 3 Johns. Ch. (N. Y.) 167. , 80 Prior v. Schmeiser, 100 Iowa, 29'9. (337); Instr. Juries — 22. 802] CONTRACTS.. [Ch. 37 could find out all about the company, since as a member and manager he would have the right to investigate all the con- tracts of the company its books and papers, and he \70uld have something to say in the management and control of the company in that way. The plaintiff was willing to risk his money in the enterprise, if he was put in a position to have something to say in the control and management of the business. Soon after the contract was entered into, the plain- tiff took possession of the business of the company and it appears from the evidence that he exercised all the rights of manager, he controlled the entire business of the company, made contracts in its behalf and did everything except . The court instructs the jury that it is for them to say, and it is the only question left for their determination in this case, whether plaintiff by his acts or conduct acquiesced in the condition of affairs as they existed and was satisfied with his position, instead of being formally elected a member of the company and a manager; it is for the jury to say from the evidence whether plaintiff was con- tented with his being allowed to have absolute control of the business, and whether he was anxious that there should be a literal compliance with the terms of the contract. If the plaintiff was satisfied with the condition of affairs, it is too late for him, after the enterprise has failed, to complain that there was not a strict literal compliance with the terms of the contract, in respect to formally electing him a member and manager of said company.*® (802) The court instructs the jury that by the terms of the agreement introduced in evidence in this case, the defend- ant contracted to have the plaintiff elected a member and a manager of the company, within sixty days from the time when the contract was entered into. It appeared from the evidence that plaintiff was not formally elected a member and manager of the company within the prescribed 30 Chalfant v. Goldbeok, 173 Pa. 354. (338) Ch. 37] CONTRACTS. [803 sixty days, and at no time afterward. At the expiration of the sixty days, when the plaintiff found that he was not formally elected as a member and manager of the company, he could then have demanded of defendant, a strict, and literal compliance with the contract, he had a right to ask for a return of money which he had paid as consideration of the contract. He could have, at least made complaint of some kind to the defendant that the contract had not been literally carried into' effect and could have shown that he considered a literal compliance with the terms of the con- tract to be of importance. It does not appear from the evi- dence that plaintiff did any of these things, and it does ap- pear from the evidence that the plaintiff was put in abso- lute control of the affairs of the company and that he not only managed the business almost exclusively, but that he was the only person connected with it or interested in the business, who received any money out of it, so that in effect plaintiff was placed precisely in the position he would have been in, if there had been a literal compliance with the contract with respect to formally electing him as manager of the company, and it is for the jury to say whether plain- tiff waived a strict and literal compliance with the terms of the contract. If the jury shall find from the evidence that plaintiff acquiesced in the performance of the contract by the defendant as above stated and made no protest until after the enterprise failed, and that plaintiff suffered no loss from the failure of defendant to literally comply with the contract with respect to formally electing plaintiff as manager and member of the company, then the jury will find for defend- ant." Failure to furnish article on demand. (803) The court instructs the jury that the defendant was bound by the contract to furnish at the . ST Chalfant v. Goldbeck, 173 Pa. 354. (339) 804] CONTRACTS. [Ch. 37 The plaintiffs claim that the defendant failed and refused to furnish such and that by reason thereof they ■were damaged $ and they claim that they demanded such under the contract of the defendant. If the defendant failed and refused to furnish such and the plaintiffs were damaged thereby, they will be entitled to recover such damages as they have sustained, if they have sustained any on this account.*^ Performance of agreement not to do business in a certain lo- cality. (804) The court instructs the jury that if they believe from the evidence that defendant entered into an agreement with the plaintiff on a sufficient consideration, (not to prac- tice medicine or surgery within the limits designated in the declaration, and that the contract entered into between de- fendant and plaintiff prohibited the compounding of medi- cine or advising or visiting any person sick or disabled, or performing any act by the laws of the state required to be done by a person qualified to practice medicine or surgery, and if the jury believe from the evidence that the defendant attended with other physicians upon a person in extremis, but charged no fee for this service, and that defendant oc- casionally recommended certain patent medicines to persons coming to a drug store in which he was interested,) the jury are instructed that such acts do not constitute a violation of defendant's agreement.*' Action on note payable when railroad shall be completed. (805) The court instructs the jury that the execution of the written instruments in suit is admitted, and if you find from the evidence that the Railroad was built and completed from to , and the cars running thereon to the depot at • , within years from the 88 Approved in Eaves v. Cherokee Iron Co., 73 Ga. 459. a» areenfield v. Oilman, 140 N. Y. 168, 55 N. Y. St. Rep. 427. (340) Ch. 37] CONTRACTS. [807 day of , 19 — , then the plaintiff is entitled to re- cover the full amount named in said instruments, with in- terest thereon at the rate of per cent, per annum from the time the road was thus completed to the present time, unless you find that the defendant has maintained his de- fense of failure of consideration as hereinafter explained, by a preponderance of testimony.*" (806) The court instructs the jury that if they believe from the evidence that the plaintiff company since the exe- cution of the notes in suit has issued a large amount of ille- gal stock certificates and that such illegal stock certificates are beyond the control of plaintiff company and that the illegal certificates of stock so issued (if the jury find that they were issued) cannot be distinguished from the genuine stock, and that it is now beyond the power of the plaintiff railroad company to deliver to defendant valid stock certif- icates upon his payment of the notes, then this will constitute a good defense to this action on the note.*^ (807) The court instructs the jury that this is an action upon a note given by defendant payable when plaintiff shall have constructed its railroad from to and the defense set up in this case is that the plaintiff company issued more certificates of stock than it was authorized by law to do, and the court instructs the jury that if they find from the evidence that plaintiff built its railroad from to within years, and if the illegal stock issued by the plaintiff has been canceled and destroyed and plaintiff is able and willing to deliver genuine stock to the defendant when the defendant shall pay the notes in suit, then the defense is invalid and your verdict must be for plain- tiff. To make out his defense, the defendant must show that the illegal stock alleged to have been issued could not be dis- " Approved In Merrill v. Reaver, 50 Iowa, 404. 41 Merrill v. Reaver, 50 Iowa, 404. (341) 808] CONTRACTS. [Ch. 37 tinguished from the genuine and that the illegal certificates are outstanding.*^ Joint adventure of purchase and resale of lands. (808) The court instructs the jury that if they believe from the evidence that the plaintiff and defendant made the contract described in the declaration, by which contract the defendant was to purchase the public lands described in the declaration and the plaintiff was to plat, survey and subdi- vide the lands so purchased, and the plaintiff was to dispose of the same either at private or public sale for the joint bene- fit of plaintiff and defendant, and if the jury believe from the evidence that the plaintiff performed the alleged contract on his part by platting and surveying and subdividing the land described in the contract at his own expense, that he advertised and sold a part of the lots with the concuiTcnce of defendant and at plaintiff's own expense and was willing and offered to advertise and sell the balance and could have sold the same, but was prevented by defendant from making a further sale thereof without any just or reasonable ex- cuse, and defendant without such excuse refused to make bonds for deeds to purchasers upon payment and security as provided by the contract between plaintiff and defendant, then the jury will find for plaintiff and assess damages which they may find from the evidence he has sustained by the violation of the contract.** Action on contract to construct water-wheels. (809) The court instructs the jury that the plaintiff in this case sues on a contract by which plaintiff undertook to construct water-wheels for defendant, which with their ap- purtenances and fixtures should be able, when employed by defendants in running their mill to work up to 110 horse power; that they should be capable of effecting a saving of *2 Merrill v. Reaver, 50 Iowa, 404. "Robinson v. Stow, 39 111. 568. (342) Ch. 37] CONTRACTS. [810 20 per cent, of water over the wheel previously in use, and that the wheel should he completed by , unless the plaintiffs were prevented from completing the same on or before said by circumstances over which plaintiff had no control, and the court instructs the jury that even if they shall find from the evidence that the wheels as construct- ed by plaintiff with their appurtenances and fixtures were able to work up to 110 horse power and were capable of ef- fecting a saving of 20 per cent, of water, but shall also find that said work was not completed on or before the day of and that the plaintiffs were not prevented from completing said wheels on or before said day by cir- cumstances over which they had no control, then the defend- ant is entitled to a credit of dollars for each and every day during which said work remained uncompleted after said day of .** Violation of agreement to make loan. (810) The court instructs the jury that if they believe from the evidence that the plaintiff's farm in coun- ty was about to be sold in foreclosure proceedings instituted by one E., who held a mortgage against the plaintiff and that the defendant made a proposition to the plaintiff that if the plaintiff was desirous of saving his farm from being sold under foreclosure proceedings, he, the defendant, would loan and advance to the plaintiff the sum of to pay upon the first or cash payment when the same should be required by the mortgagee and would indorse the plain- tiff's note for the deferred payments and would loan and ad- vance to the plaintiff the several sums of money necessary to pay off and take up the said several promissory notes, when they should become payable, and would guaranty to save the plaintiff from loss by reason of such loans and advances until after the said plaintiff could well dispose of such farm ** Conner v. Mount Vernon Co., 25 Md. 55. (343) Sllj CONTRACTS. [Ch. 37 without loss, and if the jury further believe from the evi- dence that the defendant made this proposition in considera- tion that the plaintiff would — — — , and if the jury believe from the evidence that the plaintiff agreed to this proposition of defendant and that the plaintiff bought in the said prop- erty at the said foreclosure sale and performed his part of the agreement, and that the defendant loaned and advanced to plaintiff the said sum of to pay upon said first or cash payment on said farm and indorsed the promissory note of the phiintiff for the deferred payments and if the jury shall further believe from the evidence that afterwards the defendant refused to loan and advance to plaintiff the bal- ance of the cash payments when demanded by the mortgagee and to loan and advance to plaintiff the several sums neces- sary to take up the said promissory notes or either of them and that by reason of said refusal of the defendant to so advance the money, if they shall find such refusal, the said farm of plaintiff was resold and said plaintiff thereby suf- fered loss, if the jury shall so find, then the verdict of the jury must be for plaintiff and for such amount of damages as they shall find from the evidence the plaintiff sustained by reason of said default of said defendant.*^ Delay in performance. (811) The court instructs the jury that where one party demands strict performance as to time by another party, he must perform on his part all the conditions requisite in or- der to enable the other party to perform his part, and that a failure on the part of the party demanding performance to do the preliminary work required in order to enable the other party to complete his part during the time limited, operates as a waiver of the time provision in the contract, and that if the jury believe from the evidence (that plaintiff entered into a contract with the defendant to set up a 45 Horner v. Frazier, 65 Md. 1. (344) eh. 37] CONTRACTS. [813 machine within days, and that the defendant agreed to furnish a proper foundation for the structure, and if the jury believe from the evidence that defendant did not fur- nish the foundation in time so that plaintiff could set up the machine within the time stipulated, then the failure of plaintiff to comply with his agreement within the time speci- fied, will not defeat his right to recover).*^ Recovery for part performance or imperfect performance of contract. (812) The court instructs the jury that if they believe from the evidence that plaintiff willfully abandoned the work sued for in this case leaving the house which he contracted with defendant to build not finished according to the con- tract, then plaintiff cannot recover in this action. But if a party in good faith proceeds under a special contract, doing what he reasonably supposes is required and substantially completes it and the other party accepts the benefit of the work, although the contractor may not have done all that was really his duty or in the exact manner required, still the contractor may maintain an action to recover the value of his labor and materials, but he will not necessarily recover the cost of his materials or the ordinary price of the labor. The party for whom the work is done is entitled to have de- ducted from the contract price, the difference between the value of the work as done and its value, if it had been done in accordance with the contract.*'^ (813) The court instructs the jury that if they believe from the evidence that there was a special contract between plaintiff and defendant (as for instance in relation to quarry- ing stone) and that the contract was not performed by either party, yet if plaintiff eventually delivered some stone to de- fendant and the defendant accepted and appropriated the same to his own use, plaintiff is entitled to recover the con- *8 Dannat v. Fuller, 120 N. Y. 554, 31 N. Y. St. Eep. 825. «7 Approved in Cunningham v. Washburn, 119 Mass. 224. (345) 814] CONTRACTS. [Ch. 37 tract price of the stone and deduct therefrom any damages sustained by the defendant through failure of plaintiff to deliver the same according to the contract and any payment made on the same.** Same — Recovery for work and labor. (814) The court instructs the jury that if they believe from the evidence, that the defendant employed the plaintiffs to thresh his for dollars per , then they, the plaintiffs, were bound in law to do it in a workman-like manner. And should the jury further believe, from the evidence, that the plaintiffs, through negligence, want of care or skill, performed such threshing in a wasteful, sloven- ly manner, whereby the defendant was damaged in an amount equal to or greater than the sum claimed for the threshing, then the law is for the defendant, and the jury should so find." (815) The court instructs the jury that if they should believe, from the evidence, that the plaintiffs were the own- ers of a machine, which they ran about the county for hire, and that the defendant employed them to thresh his seed at dollars per bushel, and that they, the plaintiffs, knowingly undertook and performed said threshing with a machine, defective and out of repair, either in the huUer or otherwise, whereby the defendant was dam- aged in an amount equal to or greater than the sum claimed for the threshing then the law is for the defendant, and the jury should so find.^" Waiver of rights under contract. (816) The court instructs the jury that a pei-son may waive a right which has arisen under a contract, and in this case, the plaintiff could, if he chose, waive benefits accruing *« McClelland v. Snider, 18 111. 58. *» Approved in Garfield v. Huls, 54 111. 427. eo Approved in Garfield v. Huls, 54 III. 427. (346) Ch. 37] CONTRACTS. [817 to him or the rights accruing in his favor out of the original contract with the defendant and so release the defendant from the performance of the original contract, but if the defendant comes into court relying upon the defense of waiver, the defendant is bound to establish the facts neces- sary to show the truth of the defense and the defendant is bound to prove by a preponderance of the evidence that the plaintiff has waived his rights and benefits accruing to him under the contract and has released the defendant from per- formance of the contract. If the defendant has offered evi- dence satisfactory to your mind, of a waiver of the original contract by the plaintiff, it constitutes a good defense to plaintiff's recovery in this case, but the plaintiff is not bound to show anything with reference to the matter of waiver, un- less in reply to something which the defendant may show as going to establish the waiver.^^ (817) The court instructs the jury that plaintiff entered into a contract with defendant for the construction of and that the plaintiff claims that he has not received all the money to which he is entitled under the contract for work done by him, and the court instructs the jury that if they believe from the evidence, that plaintiff received from the defendant company compensation for at the rate of and that at the time of receiving such payments from the defendant, he was told by defendant's agent that the de- fendant would adjust everything to the plaintiff's satisfac- tion, if anything more was due to plaintiff for the work done by him, and that plaintiff relied upon his ability to adjust the matter satisfactorily with the defendant and that plaintiff had the right reasonably to so rely, then the acceptance of such payment is not to be taken as a waiver of plaintiff's rights under the contract or as acquiescing in the construc- tion placed upon the contract by the defendant, and the jury 51 Williamson v. Eastern Building & Loan Ass'n of Syracuse, N. Y., 62 S. C. 390. (347) 818] CONTRACTS. [Ch. 37 must determine from all the facts and circumstances of the case whether plaintiff has by his conduct waived any of the rights under said contract or has acquiesced in the construc- tion placed upon the contract by the defendant.^* Waiver of breach. (818) Although you may believe from the evidence that plaintiffs did sublet a portion of the work and that a part of the work sued for was done by subcontractors under such sub- letting, yet, if such subletting was done with the knowledge and consent of the defendant by his express promise to hasten the work, the plaintiffs are entitled to recover for all work done under said contract, so far as any defense is concerned, based upon the fact of such subletting, and especially if the plaintiffs were to and did give the work their personal at- tention and oversight; and whether the defendant assented to such subletting or not, should be determined from all the evidence, facts and circumstances in the case, and you are the sole judges of the evidence and credibility of the witness, and may give to each such credit as you may deem proper."** Waiver of delay in performance. (819) The court instructs the jury that although where by the terms of a contract time is made of the essence, the failure of the contractor to complete the work within the time limited will defeat his right to recover anything under the agreement, yet if the jury believe from the evidence (that plaintiff entered into a contract with defendant to excavate on the property described in the declaration, time to be of the essence, and that the plaintiff did not finish the excava- tion within the time specified, but defendant permitted plain- tiff to continue and finish the work after the time stipulated, then defendant cannot insist upon the delay as a defense to this suit to recover the price of the work)."* ■ia Norfolk & W. R. Co. v. Mills, 91 Va. 613. 53 Approved In Bean v. Miller, 69 Mo. 384. 54 Dunn V. Steubing, 120 N. Y. 232, 30 N. Y. St. Rep. 653. (348) Ch. 37] CONTRACTS. [823 Acceptance of performance. (820) The court instructs the jury that if they should believe from the evidence that the defendant employed plain- tiffs to thresh his and that the defendant accepted the work as done by the plaintiffs, without having an opportunity of inspection and made no complaint at the time, yet the defendant may show the actual condition or the defects of plaintiff's machine, and carelessness of the plaintiffs ; and if the jury are satisfied, from the evidence, that the defendant was injured or damaged, and such damage was the result of defective machinery, or a careless manner of working such machine, the jury may deduct the amount of such damage from the value of the threshing, as fixed by the parties.^" Excuse for nonperformance. (821) The court instructs the jury that when a person makes a contract to do a thing that is possible to be done, he will be liable for a breach of such contract, notwithstanding it was beyond his power to perform it.^^ (822) The court instructs the jury as a matter of law, that where two parties enter into a lawful contract upon suf- ficient consideration, and one of the parties is ready and willing to perform, and makes preparations to perform on his part, but is prevented from performing by the other party, the party so ready and willing to perform can recover all damages suffered by him by reason of the default of the other party, including necessary expenses incurred in making such preparation.*' Action 62/ contractor for work done in clearing right of way. (823) Under the contract it was not the duty of the plaintiffs to procure the right of way ; and if you find from BB Approved In Garfield v. Huls, 54 111. 427. 08 Kenwood Bridge Co. v. Dunderdale, 50 111. App. 581. 57 Approved in Kenwood Bridge Co. v. Dunderdale, 50 111. App. S81. (349) 824] CONTRACTS. [Ch, 37 the evidence that the plaintiffs entered upon the performance of their part of the contract by grubbing, clearing, grading, etc., as therein stipulated, and that they were prevented from completing their part of the contract because the right of way had not been obtained from the owners of the land through which the road ran, and where the work was to be done, who forbade and refused to permit the plaintiffs to enter and do the work, this would be a sufficient excuse for the failure of the plaintiffs to perform the work, where such right of way had not been obtained.^* Same — ^Breach of contract by other party. (824) If you believe from the evidence that the plain- tiffs entered upon the performance of their part of the said contract and performed work under it, according to its terms, and if you further find that the made out monthly proximate estimates of the work done by plaintiff at the end of each month which were returned and brought to the notice of the defendant, and that the defendant, upon the request of the plaintiffs, after the expiration of days from the return of any such estimate refused and neglected to pay plaintiffs the amount due according to the amoimt in such estimate, such failure or refusal of the defendant to pay was a breach of his part of the contract, and the plaintiffs were not bound to go on and complete all the work, but might suspend or quit the work until payment was made, and if you find that payment has not been made and the work has been sus- pended, the plaintiffs will be entitled to recover in this suit for all work done under said contract at the rates therein stip- ulated.*** Burden of proof. (825) The court instructs the jury that to entitle the plaintiff to recover in this action the burden of proof is upon es Approved In Bean v. Miller, 69 Mo. 384. 0' Approved in Bean v. Miller, 69 Mo. 384. (350) Oh. 371 CONTRACTS. [827 him to show to the satisfaction of the jury the existence of the contract sued on and also such a breach thereof as entailed loss upon the plaintiff.*" (826) The court instructs the jury that by the terms of the contract offered in evidence the plaintiffs cannot re- cover, unless the jury shall find from all the evidence in the case that the constructed by the plaintiffs with their appurtenances and fixtures as arranged by the plaintiffs were able when employed by defendants in running and driving their to work up to horse power, with a full head of water and were capable of effecting a saving of per cent, of water over the wheel that was previously in use and that the burden of proof is on the plaintiffs to establish said facts. *^ V. Modification of Conteact. In general. (827) The court instructs the jury that if they believe from the evidence that the defendant made the contract for the sale of to the plaintiff as alleged in the declara- tion and that the letter of plaintiff offered in evidence was not designed by plaintiff or understood by defendant as varying or changing the terms of such alleged contract of sale, nor as giving defendant the license to decline its per- formance, it did not discharge the defendant from its fulfill- ment, and both are still bound by the contract of sale, and if the jury find that such contract was made, such letter will in that case constitute no defense to this action, and if the jury believe from the evidence that the terms of the letter offered in evidence did indicate a proposed change in the terms of the contract of sale, but that the defendant made no reply to such letter, either verbally or by letter, such act and conduct on the part of defendant is proper evidence to 00 Approved in Burt v. Myer, 71 Md. 467. •1 Approved in Conner v. Mount Vernon Co., 25 Md. 55. (351) 828] CONTRACTS. [Ch. 37 be considered by the jury as tending to show that the propo- sition of the letter was not objected to by the defendant, and if it was acquiesced in by the defendant, whether the terms of payment mentioned in the letter were a part of the original bargain or not, the defendant Avas not thereby released from the contract of sale, if the jury find from the evidence that the contract of sale was made.*^ (828) The court instructs the jury that if they believe from the evidence that the defendant on agreed to pay to the plaintiff the sum of per year as rental for the premises described in the declaration, but that subse- quently plaintiff told defendant that he might occupy the property in question for a fair or reasonable rent for the year from to and defendant consented there- to, then defendant is not liable to pay the sum of which it is alleged he had previously agreed to pay, if the rent of the premises described in the declaration was not reasonably worth the sum so agreed to be paid for said year.*' (829) The court instructs the jury that if they believe from the evidence that the arrangement was simply for a postponement of the execution of the contract, and the execu- tion of the contract, under the terms of the postponement, might have been accomplished within one year from its date by its terms, the plaintiff cannot, in this action, recover be- cause in that case, the contract which he has made, which is made by the subsequent agreement, is a different con- tract from that upon which he declares and seeks to re- cover at your hands. If, upon the other hand, the con- tract, by its terms, by the terms of the oral agreement be- tween the parties, the contract alleged to have been made could not be performed within one year from the date of the oral agreement in relation to it, it would not be good 62 Chichester v. Whiteleather, 51 III. 259. «5 Price V. Pittsburg. Ft. W. & C. R. Co., 34 111. 13, (352) Ch. 38] CONVERSION. [832 as a contract. It might be treated by the parties as a waiver of the right upon either side to insist upon the im- mediate performance of the contract, but it would not be good as a contract to take the place of the original contract.** CHAPTER XXXVIII. CONVBRSION. What constitutes conversion, 830-834. What constitutes conversion. (830) The court instructs the jury that if they believe from the evidence, that the in controversy was the property of the plaintiffs, and that the defendants had the possession of it, and that the plaintiffs, by their duly-author- ized agent, demanded the of the defendants, and that the defendants refused wrongfully (that is, without right) to deliver the same, this is evidence of a conversion, by the defendants, of the to their own use.^ (831) The court instructs the jury that if they believe from the evidence, that the defendants took the from the store formerly occupied by K., without any authority from the plaintiffs or from K. so to do, and then undertook to keep the same from the plaintiffs, as security for a debt which K. owed them, after a demand by the plaintiffs for the same, then they are guilty of a conversion of the , if the same belonged to the plaintiffs.* (832) The court instructs the jury that if they believe, from the evidence, that the defendants refused to deliver up the goods, unless an amount larger than what they were entitled to should be paid them, and so told the plaintiff «4 Barton v. Gray, 57 IMicli. 622. 1 Hale V. Barrett, 26 111. 195. » Hale V. Barrett, 26 111. 195. Tnstr -TnriAK — 9?. 833] CONViflKHioN. [Ch. 38 or his agent, then no tender was necessary, if the plaintiffs ■were ready and offered to pay the amount actually due, as the law does not require a party to do a useless thing.^ (833) The court instructs the jury that if defendant was called upon by plaintiff to surrender plaintiff's goods which were then in defendant's possession, and if defendant had received possession of such goods as bailee from a third person, and defendant did not dispute plaintiff's right to the goods, nor set up a claim to them against the plaintiff, but merely declined to turn them over to plaintiff imtil defend- ant first had an opportunity of inquiring into the true own- ership, or until plaintiff should produce an order from the bailee, then defendant coTntnitted no conversion. If, how- ever, defendant's refusal to surrender the goods was evasive, or if his delay in turning over the goods was not made in good faith, then the plaintiff will recover.* (834) The court instructs the jury that if they believe, that when the plaintiff called upon the defendant for the corn that was to have been received by the plaintiff upon the contract, and the defendant pointed to a crib, and said, "There is your corn, take it," and thereupon the plaintiff, after consulting with the witness D., as to whether, in his opinion, there was three hundred bushels, as the contract, if proved, was that the plaintiff was to receive, and upon the witness giving his opinion there was, he went without objec- tion and took two loads of the corn, which was not measured by the parties, and M. was not even present, and that after- wards, when the plaintiff came for the balance, the defendant would not let him have it, that then the defendant is guilty of a conversion of the balance of the corn, unless the jury believe it was the intention of the parties that the com was not, by their acts, to be the property of the plaintiff.' » Hale v. Barrett, 26 III. 195. * Carol V. Mix, 51 Barb. 212. » Approved In May v. Tallman, 20 111. 443. (354) Ch. 391 CORPORATIONS. [368 CHAPTER XXXIX. CORPORATIONS. Action on Bubscription, 835, 836. Same — Defense of illegal increase of capital stock, 837, 838. Action on subscriptions. (835) The court instructs the jury that if they find that the defendant subscrihed to ten shares of the stock of the Company and paid $ thereon, still if they further find that said subscription was made upon the terms and conditions contained in the prospectus, offered in evi- dence, and upon the faith of representations contained there- in and verbally made to him by a certain , a director of said company, as to facts of a nature to induce said sub- scription, and shall further find that said representations were false and fraudulent as to said facts, and that the de- fendant learned of the fraudulent nature of said representa- tions and prospectus, and within a reasonable time thereafter, and while the company was still a going concern, notified said company, that he would make no further payments upon his subscription, then their verdict should be for the defend- ant, unless they shall further find that the defendant failed to exercise reasonable diligence, under all the circumstances of the case, in ascertaining the fraudulent nature of said representations or that he failed to finally repudiate his said contract after acquiring knowledge of said fraudulent repre- sentations.'' (836) The court instructs the jury that if they shall find from the evidence that the Company was a cor- poration formed on or about , 19—, and that the defendant subscribed to 10 shares of the capital stock of the 1 Approved in timer v. Sollenberger, 89 Md. 316. (355) 837] CORPORATIONS. [Ch. 39 said company, payable, except as to the first 20 per cent, thereof, at such times as the board of directors might pre- scribe, and that more than $ of the common stock of such company was subscribed for, and that on or about the day of , 19 — , the board of directors of the said company by resolution called for the payment of 20 per cent, of the amount of said subscription payable on the • Jay of , 19 — , and that notice of said call was promptly made to said defendant, addressed to his address in and that subsequently the Com- pany executed the deed of trust offered in evidence to , trustee, and shall further find that the defendant executed the proxy dated the day of •, 19 — , and offered in evidence, then the plaintiff is entitled to recover, even though the jury shall further find that the defendant was in- duced to make his subscription by the fraudulent representa- tions of the promoters and agents of the Company, offered in evidence.^ Same— Defense of illegal increaseof capital stock. (837) The court instructs the jury that if they shall believe from the evidence that at the time the defendant signed the subscription paper, the capital of the plaintiff was to be but $50,000, and that it was then so written in such paper, and the same was at any time afterwards changed by an interlineation so as to make it read $150,000 and that •defendant did not know of such change and never assented to the same, then the defendant cannot be required to pay the same and is exonerated from his subscription and the verdict is to be found for him.' (838) The court instructs the jury that under the arti- cles of incorporation the board of directors had no power to increase the capital stock of the company; at least they 2 Approved In Urner v. Sollenberger, 89 Md. 316. • Approved In Hughes v. Antletam Mfg. Co. of Washington Co., 34 Md. 316. (356) Ch. 40] COUNTIES. [840 ha'd no such power at a meeting of whicli there had been no notice given, and at which all of the directors were not pres- ent. Therefore, if you find that no notice was given of the meeting of directors of , 19 — , and all of the di- rectors were not present at such meeting, then their action in attempting to increase the capital stock of the company was invalid, and consequently the stock issued in excess of the original capital stock of the company was illegally issued, and was invalid.* CHAPTER XL. COUNTIES. Liability for negligence of agents or servants, 839, 840. Liability for injuries caused by the carrying away of bridge, 841-843. Enforcement of claim against, 844. liability for negligence of agents or servants. (839) The court instructs the jury that there is no law authorizing a recovery, by a private individual in a suit against a county, for injuries committed by the servants of the county. While railroads and other private corporations are liable for the negligence of their servants, a county is not so liable.-' (840) The court instructs the jury, for defendant, that no action by a private individual against the county can be maintained for injuries resulting from the careless or negligent conduct of any agent of the county; and in this case, though the jury should believe, from the evidence, that the property of plaintiff was burned by fire, originating on the poor-farm, carelessly left by the agent or agents of the • Approved In Merrill v. Reaver, 50 Iowa, 404. 1 Symonds v. Board of Supervisors of Clay Co., 71 111. 355. (sen 841] COUNTIES. [Ch. 40 defendant, yet such facts do not establish the liability of the defendant.^ Liability for injuries caused by the carrying away of bridge. (841) The court instructs the jury that if they find that on the day of , 19 — , the plaintiffs were the owners of the property situated on Creek, de- scribed in offered in evidence, with buildings and mill-dam as part thereof, and which has existed for over years, and that up to the year the stream was crossed by the county road at a ford below the dam, and that about that year the defendants changed the location of the county road so as to cross the stream by an iron bridge set upon abutments connected by wing walls with the banks on either side of the stream, and if the jury shall believe from the evidence that said abutments or either of them were improp- erly and insecurely erected for the purposes for which they were designed, and that in building said abutments they were not built as high, or with such space between as was reason- ably necessary in times of freshet, and that owing to such defective construction (if they find such) or insufficient space provided for venting the water one of said abutments gave way and the bridge was carried off on the of , 19 — , and was lodged upon the plaintiffs' mill-dam, and that thereby said mill-dam was washed out and injuries sustained by the said mill and by the washing away of their buildings, then the plaintiffs are entitled to recover the losses occasioned thereby and sustained by them in the destruction of their property and business, notwithstanding the jury may be of the opinion that the water, at the time was higher than usual in times of freshet.* (842) The court instructs the jury that even if they find that the flood which carried away the bridge was of « Symonds v. Board of Supervisors of Clay Co., 71 111. 355. » Approved In County Com'rs of Hartford Co. v. Wise, 71 Md. 43. (358) Ch. 40] COUNTIES. [844 unusual or unprecedented height, still if they further find that hut for the improper and negligent construction or con- dition of the bridge, if they so find, the disaster would not have occurred, then the unusual or unprecedented height of the flood is no defense.* (843) The court instructs the jury that if they find that the bridge above was carried away by a flood on the day of , 19 — , and in passing down the stream carried away plaintiffs' dam, then plaintiffs are en- titled to recover such sum as will compensate them for the injury sustained and loss suffered, provided the jury also find that the location, construction or condition of the bridge was negligent, and that the carrying away of the bridge was in consequence of such location, construction or condition." Enforcement of claims ag^ainst. (844) The court instructs the jury that under our stat- ute before any action can be brought against any county upon an unliquidated demand the same must have been presented to the board of supervisors of such county and payment demanded. In the case at bar the claim is an un- liquidated claim, and there being no evidence showing or tend- ing to show that the claim was presented to the board of supervisors of the county of before the commencement of this suit and payment demanded, you are directed to return a verdict for the defendant.* * Approved in County Com'rs of Hartford Co. v. Wise, 71 Md. 43. » Approved in County Com'rs of Hartford Co. v. Wise, 71 Md. 43. • Approved in County of Cerro Gordo V. County of Wright, 50 Iowa, 439. (859) CRIMINAL LAW. [Ch. 41 CHAPTER XLI. CRIMINAL LAW.i I. Pbesumption of Innocence and Degbee of Proof. Presumption of innocence, 845. Evidence to be reconciled with Innocence If possible, 846. Reasonable doubt — In general, 847. Substantial doubt, — not a mere possibility, 848. Doubt as between two persons, 849. A doubt for which a reason can be given, 850. A doubt which would cause a reasonable man to hesitate, 851. Negative definition, 852. Doubt as to degree of offense, 853. II. EVIDENTIABT PRESUMPTIONS. Absence of motive, 854. Flight, 855-858. Failure to produce evidence, 859. III. Circumstantial Evidence. Weight and sufficiency in general, 860, 861. Every hypothesis of Innocence to be excluded, 862-865. Each link In chain of circumstances to be established, 866. IV. Crbdibilitt of Witnesses and Probative Effect of Evidenck, Considerations in determining credibility, 867, 868. Effect of willfully false testimony, 869. Effect of Impeachment, 870, 871. Credibility of informers and detectives, 872. Effect of discrepancies and contradictions, 873. V. Credibilitt of Defendant. Not to be disbelieved because he Is defendant, 874. Interest In event to be considered, 876, 876. VI. Cbedibii-itt of Accomplice. Evidence to be received with great caution, 877. Nature of corroboration required, 878. 1 See titles of particular crimes for forms of instructions peculiar thereto. (360) Ch. 41] CRIMINAL LAW. [846 VII. Insanity and Intoxication. What constitutes — Irresistible impulse, 879. Frenzy — Intoxication, 880. VIII. Chabactee Evidence. Cannot prevail against clear proof of guilt, 881, 882. IX. Alibi. In general, 883. Reasonable doUbt on whole evidence, 884. Reasonable doubt raised by evidence of alibi, 885. X. Admissions and CoNrEssioNS, Weight to which entitled, 886, 887. Admissions to be taken as a whole, 888, 889. I. Peesumption of Innocence and Degree of Pkoof.* Presumption of innocence. (845) The jury are instructed that the defendant at the outset of the trial is presumed to be an innocent man. He is not required to prove himself innocent or to put in any evi- dence at all upon that subject. In considering the testimony in the case you must look at that testimony and view it in the light of that presumption which the law clothes the de- fendant with, that he is innocent, and it is a presumption that abides with him throughout the trial of the case until the evidence convinces you to the contrary beyond all reasonable doubt.* Evidence to be reconciled with innocence if possible. (846) The jury are instructed that the defendant must be presumed to be innocent until his guilt is fully established by legal evidence. The presumption of innocence prevails throughout the trial and it is the duty of the jury, if pos- sible, to reconcile the evidence with this presumption.* 2 See volume 1, chap. XXVIII, for discussion of instructions on this subject. 8 Approved In People v. Arlington, 131 Cal. 231. * Castle V. State, 75 Ind. 146. (361) 847] CRIMINAL LAW. [Ch. 41 Seasonable doubt — In general. (847) Then, what is reasonable doubt ? It is a term often used, probably pretty well understood, but not easily defined. It is not mere possible doubt ; because everything relating to human affairs and depending on moral evidence is open to some possible or imaginary doubt. It is that state of the case, which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that con- dition that they cannot say they feel an abiding conviction, to a moral certainty, of the truth of the charge. The burden of proof is upon the prosecutor. All the presumptions of law independent of evidence are in favor of innocence; and every person is presumed to be innocent until he is proved guilty. If upon such proof there be reasonable doubt re- maining, the accused is entitled to the benefit of it by an acquittal. Eor it is not sufficient to establish a probability, though a strong one arising from the doctrine of chances, that the fact charged is more likely to be true than the contrary; but the evidence must establish the truth of the fact to a rea- sonable and moral certainty, — a certainty that convinces and directs the understanding, and satisfies the reason and judg- ment, of those who are bound to act conscientiously upon it. This we take to be proof beyond reasonable doubt; because if the law should go further than this, and require absolute certainty, as it mostly depends upon considerations of a moral nature, it would exclude circumstantial evidence altogether.* Substantial doubt, — not a mere possibility. (848) The court instructs the jury that before they can convict the defendant that they must be satisfied of his guilt, beyond a reasonable doubt; such doubt to authorize an ac- quittal upon reasonable doubt alone, must be a substantial doubt of the defendant's guilt with a view to all the evidence » Com. v. Webster, 5 Gush. 295. (362) Ch. 41] CRIMINAL LAW. [853 in the case and not a mere possibility of the defendant's in- nocence."' Doubt as between two persons. (849) That when two persons had the same opportunity to commit the offense, and if upon the whole evidence in the case there remains a reasonable doubt as to which of the two committed it, then neither of the two can be convicted.^ A doubt for wMch a reason can be given. (850) The jury are instructed that the doubt which will entitle defendant to an acquittal must be a reasonable doubt, not a conjured-up doubt, such a doubt as you might conjure up to acquit a friend, but a doubt that you could give a rea- son for.^ A doubt which would cause a reasonable man to hesitate. (851) The jury are instructed that a reasonable doubt is such a doubt as exists in the mind of a reasonable man after a full, free and careful examination and comparison of all the evidence. It must be such a doubt as would cause a careful, considerate and prudent man to pause and consider before acting in the grave and most important affairs of life.* Negative definition. (852) A reasonable doubt is not a possible doubt, not a conjectural doubt, not an imaginary doubt, not a doubt of the absolute certainty of the guilt of the accused, because every- thing relating to human affairs and depending upon moral evidence is open to conjectural or imaginary doubt, and be- cause absolute certainty is not required by law.''" Doubt as to degree of offense. (853) If the jury believe from all the evidence in the • Approved In State v. Darrah, 152 Mo. 522. 7 Approved in Vaughan v. Com., 85 Va. 671. 8 Approved in Vann v. State, 83 Ga. 44. Approved in State v. Crockett, 65 Pac. 447. 10 Dunn v. People, 109 111. 635. (363)' 854] CRIMINAL LAW. [Ch, 41 case beyond a reasonable doubt that the defendant is guilty of murder, but have a doubt as to the degree of offense of which the defendant is guilty, whether it is murder in the first degree, murder in the second degree or manslaughter, the jury will give defendant the benefit of such doubt and find him guilty only of the lowest offense as to which they are in doubt.* ^ II. Evidentiary Prbsumptions.i2 Absence of motive. (854) The court instructs the jury that the absence of all evidence of an inducing cause or motive to commit the crime, when the fact is in reasonable doubt as to who com- mitted it, affords a strong presumption of innocence.** Flight. (855) The court instructs the jury that if they believe from the evidence that defendant, after he was charged with the crime alleged in the indictment, fled from justice, or while under recognizance forfeited the same on account of said charge, such conduct on the part of defendant is evidence to be considered by the jury in determining his guilt or inno- cence.'* (856) The court instructs that if the jury find from the evidence that defendant at or about the time the charge con- tained in the indictment was preferred against him fled to a distant place and that such flight was induced by the charge they may consider the same in determining the guilt or inno- cence of defendant.** 11 Approved in State v. Anderson, 86 Mo. 309. 12 See volume 1, chap. XXX, for discussion of Instructions on this subject. 18 Approved In Vaughan v. Com., 85 Va. 671. i* Approved In State v. Hayes, 78 Mo. 307. 15 State V. Thomas, 68 Kan. 805. An instruction that flight "Is evidence of guilt" is error. Pox v. People, 95 111. 71. Any circum- stances explanatory of the flight which the evidence may show should be Incorporated. State v. Falrlamb, 121 Mo. 137. (364) Ch. 41] CRIMINAL LAW. [860 (857) The flight of a person immediately after a crime is committed with which ho is charged is a circumstance in es- tablishing his guilt ; not sufficient in itself to establish guilt but a circumstance which the jury may consider. The weight to which that circumstance is entitled is a matter for the jury to decide in connection with all the facts shown in the case.^' (858) The jury are instructed that the flight of a person immediately after a crime is committed with which he is charged is a circumstance in establishing his guilt, not suffi- cient of itself to establish gTiIlt, but a circumstance which the jury may consider. The weight to which that circumstance is entitled is a matter for the jury to determine in connection with all the facts in the case.-'^ Failure to produce evidence. (859) The jury are instructed that where evidence which would rebut or explain certain facts and circumstances of a grave and suspicious nature is peculiarly within the defend- ant's knowledge and right, and he makes no effort to procure it, the jury may properly take such fact into consideration in determining the defendant's guilt or innocence, but no in- ference of guilt is to be drawn from the omission of the de- fendant to testify.-'* III. ClECUMSTANTIAI, EVIDBNCE.19 Weight and sufficiency in general. (860) The jury are instructed that circumstantial evi- dence is to be regarded by the jury in all cases, and is many times quite as conclusive in its convincing power as direct and positive evidence. When it is strong and satisfactory, the jury should so consider it, neither enlarging nor belittling 18 People V. Forsythe, 65 Cal. 102. IT Approved In People v. Forsythe, 65 Cal. 101. 18 State V. Grebe, 17 Kan. 458. 19 See volume 1, chap. XXIX, for discussion of instructions on this subject. (365) 861] CRIMINAL LAW. [Ch. 41 its force. It should have its just and fair weight with you ; and if when it is taken as a whole, and fairly and candidly weighed it convinces the guarded judgment, you should con- vict, and on such conviction you are not to fancy situations or circumstances which do not appear in the evidence, but you are to make those just and reasonable inferences from circumstances proven which the guarded judgment of a rea- sonable man would ordinarily make under like circumstances. And if in connection with the other evidence before you, you then have no reasonable doubt as to the defendant's guilt, you should convict him, but if you then entertain such doubt you should acquit him.^" (861) To warrant a conviction on circumstantial evidence, each fact necessary to the conclusion sought to be established must be proven by competent evidence beyond a reasonable doubt, and all the facts necessary to such conclusion must be consistent with each other and with the main fact sought to be proved ; and the circumstances taken together must be of a conclusive nature, leading on the whole to a satisfactory conclusion and producing a reasonable and moral certainty that the accused and no other person committed the offense charged. The mere union of a limited number of independ- ent circumstances, each of an imperfect and inconclusive char- acter will not justify a conviction, they must be such as to generate and to justify full belief according to the standard rule of certainty. It is not sufficient that they coincide with and render probable the guilt of the accused, but they nrast exclude every other reasonable hypothesis. 'Ro other conclu- sion but that of the guilt of the accused must fairly and rea- sonably grow out of the evidence, but the facts must be abso- lutely incompatible with innocence, incapable of explanation, upon any other reasonable hypothesis than that of guilt.^^ 20 Approved In State v. Seymour, 94 Iowa, 699. !i Villereal v. State, 61 S. W. 715. (366) Cb. 41] CRIMINAL LAW. [865 Every hypothesis of innocence to he excluded. (862) The court further instructs the jury that circum- stances of suspicion, no matter how grave or strong, are not proof of guilt, and the accused must be found not guilty un- less the fact of his guilt is proven beyond every reasonable doubt to the actual exclusion of every reasonable hypothesis of his innocence consistent with the fact proven.^^ (863) The jury are instructed that to warrant a convic- tion, each fact necessary to establish the guilt of the accused must be proven by competent evidence beyond a reasonable doubt, and the facts and circumstances proven should not only be consistent with the guilt of the accused, but inconsistent with any other reasonable hypothesis or conclusion than that of guilt to produce in your minds a reasonable and moral certainty that the accused committed the offense.^* (864) The jury are instructed that to warrant a convic- tion the circumstances must be proved to your entire satisfac- tion, and when the circumstances are established, they must point conclusively to the person charged and must be incon- sistent v;ith any other reasonable hypothesis.^* (865) The jury are instructed that in order to convict the defendant upon circumstantial evidence, it is necessary not only that all the circumstances concur to show that he com- mitted the crime charged, but that they are inconsistent with any other reasonable conclusion. It is not sufficient that the circumstances proven coincide with, account for, and render probable the hypothesis sought to be established by the prose- cution, but they must exclude, to a moral certainty, every other hypothesis but the single one of guilt, or the jury must find the defendant not guilty.^" 22 Approved In Henderson v. Com., 98 Va. 794. 28 Chltlster v. State, 36 Tex. Cr. App. 635. , 24 Approved In State v. Milling, 35 S. C. 16. 25 Approved in People v. Anthony, 56 Cal. 397. '(367)' 866] CRIMINAL LAW. [Ch. 41 « Each link in chain of circumstances to be established. (866) The jury are instructed that each circumstance, es- sential to the conclusion of the defendant's guilt should be fiiUy established in the same manner and to the same extent as if the whole issue rested upon it. You must be satisfied that each link in the chain of circumstances, essential to the conclusion sought to be established by the prosecution has been fully proven beyond a reasonable doubt and to your en- tire satisfaction, otherwise you must acquit.^* IV. Ceedibimty or Witnesses and Pkobative Effect of Bvidenoe.2' Considerations in determining credibility. (867) The jury are instructed that they have a right to consider the circumstance and condition of any witness as proven to have been at the time of the incidents about which said witness testifies. They may consider such condition of any witness as to soberness and the surroundings of such wit- ness in determining whether or not such witness was in a con- dition to see and understand what was occurring.^* (868) The court instructs the jury that the jury are the sole judges of the credibility of witnesses and the weight and value to be given to their testimony. In determining as to the credit you will give to a witness, and the weight and value you will attach to a witness' testimony, you should take into consideration the conduct and the appearance of the wit- ness upon the stand ; the interest of the witness, if any, in the result of the trial; the motives of the witness in testifying, the witness' relation to or feeling for or against the defend- ant, or the alleged injured party; the probability or the im- probability of the witness' statements, the opportunity the witness had to observe and to be informed as to matters re- 26 People V. Ah Chung, 55 Cal. 398. The authorities are conflicting as to the correctness of this rule; see volume 1, §§ 319, 320. !7 See volume 1, chapter XXV, for discussion of instructions on this subject. 28 Approved In Wheeler v. State, 112 Ga. 43. (368) Ch. 41] CRIMINAL LAW. [871 specting which such witness gives testimony, and the inclina- tion of the witness to speak the truth or otherwise as to mat- ters within the knowledge of such witness. All these mat- ters being taken into account, with all the other facts and cir- cumstances given in evidence, it is your province to give to each witness such credit and the testimony of each witness, such value and weight as you deem proper.^^ Effect of willfully false testimony. (869) If the jury believe from the evidence that any wit- ness who has testified in this case has knowingly and willfully testified falsely to any material facts they may disregard the whole testimony of such witness, or they may give such weight to the evidence of such witness on other points as they may think it entitled to. The jury are the exclusive judges of the weight of the testimony.^" Effect of impeachment. (870) The jury are instructed that where it is shown that the reputation of the defendant for truth is bad, his evidence is not necessarily destroyed, but it is to be considered under all the circumstances described in the evidence, and given such weight as the jury believe it entitled to, and to be dis- regarded if they believe it entitled to no weight.*^ (871) The jury are instructed that if they believe from the evidence that any witness has been successfully im- peached, if by reason of bad reputation for truth and veracity or by reason of statements made out of court conflicting with statements made on the witness stand, or if they find that any witness has willfully sworn falsely in regard to any matter or thing material to the issues in the case, they will be jus- tified in disregarding the whole testimony of such witness, ex- cept in so far as they may find corroborated by other credible 20 Approved in State v. Darrah, 152 Mo. 522. 80 Approved in State v. Thompson, 21 W. Va. 746. »i Approved in State v. Muller, 53 Iowa, 210. (369) 872] CRIMINAL LAW. [Ch. 41 evidence in the case, or by facts and circumstances proved on the trial.^^ Credibility of informers and detectives. (872) The jury are instructed that greater care should be exercised in weighing the testimony of informers, detectives and other persons specially employed to hunt up evidence against the defendant, than in the case of witnesses who are wholly disinterested.^* Effect of discrepancies and contradictions. (873) The court instructs that partial variances in the testimony of different witnesses, on minute and collateral points, are of little importance, unless they be of too promi- nent and striking a nature to be ascribed to mere inadvert- ence, inattention, or defect of memory ; that it so rarely hap- pens that witnesses of the same transaction, perfectly and en- tirely agree on all points connected with it, that an entire and complete coincidence, in every particular, so far from strengthening their credit, not unfrequently engenders a sus- picion of practice and concert ; and that in determining upon the credence to be given to testimony, by the jury, the real question must always be, whether the points of variance and discrepancy be of so strong and decisive a nature as to render it impossible, or at least difficult, to attribute them to the ordinary sources of such variance, viz., inattention or want of memory.** V. Credibility op Dbfendant.3i> Not to be disbelieved because he is defendant. (874) The jury are instructed that the defendant is a competent witness on his own behalf, and the fact that he is »2 Approved in State v. Ormiston, 66 Iowa, 143. 88 Approved In Sandage v. State (Neb.) 85 N. W. 281. 84 Approved In State v. Shelledy, 8 Iowa, 477. 85 See volume 1, §§ 225-230, for discussion of instructions on this subject. (370) Ch. 41] CRIMINAL LAW. [877 the defendant is not of itself sufEeient to impeach or discredit his testimony, though the jury are entitled to take into con- sideration his interest in the event of the prosecution in de- termining his credibility.^^ Interest in event to be considered. (875) The court instructs the jury that the defendant is a competent witness in this case, and you must consider his testimony in arriving at your verdict, but in determining what weight and credibility you will give to his testimony in making up your verdict, you may take into consideration, as affecting his credibility, his interest in the result of the case, and that he is the accused party on the trial testifying in his own behalf.^'' (87G) The court instructs the jury, that under the law the defendant, in this case, is a competent witness in his own behalf, and the jury are the sole judges of the credibility of all the witnesses and the weight to be given to their testi- mony, and in passing on and considering the evidence in the case, the jury may consider the fact that he is the defendant on trial, together with any other fact or circumstance affect- ing the credit to be given the testimony of any of the witnesses in the case.^* VL Credibility or Accomplice.ss Evidence to be received with great caution. (877) The jury are instructed that while it is the rule of law that a person may be convicted upon the uncorroborated testimony of an accomplice, still a jury should always act upon such testimony with great care and caution, and subject it to careful examination in the light of all other evidence in the case, and the jury ought not to convict upon such testi- 86 Approved in State v. Metcalf, 17 Mont. 417. ST Approved In State v. Darrah, 152 Mo. 522. 38 Approved in. Stats v. Wisdom, 84 Mo. 177. 39 See volume 1, §§ 215-224, for discussion of instructions on this subject. (371) 878] CRIMINAL LAW. [Ch. 41 mony alone, unless, after a careful examination of such tes- timony, they are satisfied beyond all reasonable doubt of its truth.*" Nature of corroboration required. (878) The jury are instructed that the corroboration ought to be sufficient to satisfy the jury of the truth of the evidence by the accomplice. If the jury are satisfied that he speaks the truth in some material part of his testimony in which they see him confirmed by unimpeachable evidence, this may be a ground for their believing that he also speaks the truth in other parts as to which there may be no confirmation, but the corroboration ought to be as to some fact connecting the prisoner with the offense, the truth or falsity of which would go to prove or disprove the offense charged against the pris- oner.*^ VII. Insanity and Intoxication. 42 What constitutes — Irresistible impulse. (879) The court instructs the jury that the nature, char- acter, and degree of insanity, which exonerates a party from criminal responsibility, is not easily explained or understood. It is not necessary that it should be shown by the evidence, that the defendant at the time of the commission of the act did not know right from wrong, as to her acts in general. The inquiry must be directed to the act charged. If you believe from the evidence that the defendant's act in shooting W. (if she did shoot him) was caused by mental disease or un- soundness, which dethroned her reason and judgment with 40 Approved In State v. Coates, 22 Wash. 601. See volume 1, §§ 216-220, for collection of cases as to right to convict on uncorrob- orated evidence of accomplice. 41 Approved in Jackson v. State, 64 Ga. 345. Proper only where rule obtains that no conviction can be had on uncorroborated tes- timony. 42 See volume 1, S§ 338-342, for discussion of instructions on this subject. (372) Ch. 41] CRIMINAL LAW. [880 respect to that act, whicli destroyed her power rationally to comprehend the nature and consequences of the act, and which, overpowering her will, inevitably forced her to its commission, then she is not in law guilty of any crime, and your verdict as to her should be, not guilty. But if you believe from all the evidence and circumstances in the case, that she was in the possession of a rational intel- lect or sound mind, and from some real or fancied injury she allowed her passion to escape control, then, though passion or revenge may, for the time have driven reason from its seat and usurped it, and urged the defendant, with a force at the moment irresistible, to desperate acts, she cannot claim for such acts the protection of insanity, and she is guilty. The practical question for you to determine from all the evi- dence is, whether passion and revenge or insanity, was the ruling force and controlling agency which led to the com- mission of this act. If you believe that the shooting was the direct result or offspring of insanity, you should acquit ; if of passion or revenge, you should convict. You should indulge in no prejudice against the defense, but give it thoughtful, thorough, and dispassionate consideration, and yet the inter- ests of society and the welfare of the state demand that this defense ought not to be regarded as sufEcient to exculpate, unless you believe from the evidence that the propensity to commit the act existed in such violence as to subjugate the in- tellect, control the will, and render it impossible for the de- fendant to do otherwise than to yield to the insane impulse. In other words, it should appear not only that the mind of the accused was insane, but that the act for which she is in- dicted was the direct offspring of such insanity. This being shown, responsibility is annulled but not otherwise.*^ Frenzy — Intozication. (880) The court instructs the jury that frenzy arising sole- from the evidence that notwithstanding the fact that de- 20a Approved in Bennett Water Co. v. Millvale Borough, 200 Pa, 613. (394) Ch. 44] DAMAGES. [927 fendants have failed to keep open the ditch for the time al- leged, yet if from the or from other causes, the cut- ting and keeping open of said ditch during such time would not have drained the lands of the plaintiffs, or enabled the plaintiffs to do so, then the jury ought not to find damages resulting from the said failure as usually given.^® Breach of contract of sale — ^Liability of seller. (926) The court instructs the jury that on a breach of contract in failing to deliver chattels or other commodities, the measure of damages is the difference between the contract price and the market value of such articles at the time they should have been delivered by the contract, and that if they believe from the evidence (that a contract was entered into by the defendants as alleged in the plaintiff's declaration for the sale of at the price of , and that the plain- tiff demanded said and the defendants refused to de- liver the same, then you will first ascertain from the evi- dence when said demand and refusal occurred and what the market price of said was at the time of said demand and refusal, and if at the time of said demand and refusal the market price was higher than the price named in the con- tract, then you will give a verdict for the plaintiff for the difference between such market price and the price agreed upon and interest at from the time of such refusal.^'^ (927) The court instructs the jury that if they believe from the evidence that the defendants contracted to deliver to plaintiffs a certain number of (hogs) at the time and man- ner stated in the declaration and that plaintiffs were ready and willing to pay for the (hogs) at the time and place so stated in the declaration at the price agreed upon and that 26 Approved in Michie v. Cochran, 93 Va. 641. 27 Sleuter v. Wallbaum, 45 111. 43. It would be erroneous in the instruction above given to allow the jury to consider the market price for a reasonable time after the demand and refusal, as such a rule would be Indefinite and uncertain. (395) 928] DAMAGES. [Ch. 44 defendants without sufScient excuse failed to deliver the hogs (in accordance with the terms of the contract) then the jury are instructed that they will find for the plaintiff and that the measure of damages in this case will be the difference between the contract price of the (hogs) and what the (hogs) were actually worth in the market at where they were to be delivered.^* Same — ^Liability for breach of contract to sell grain to be deliv- ered in future. (928) The court instructs the jury that if, in this case, the jury find for the plaintiff, they will assess the plaintiff's damages at the difference between the contract price of the grain in question and the price and value of grain in , where the grain was to be delivered at the date of the breach of contract, if the jury believe, from the evidence, that there has been a breach of said contract.^* Same — ^Liability of seller for breach of warranty. (929) The court instructs the jury that if you believe, from the evidence, that the defendant, , represented to the plaintiff, , that the (hams) in question were first-class hams, equal in quality to any brand of hams made in this market, and that such representation was made by defendant with the intention thereby of warranting the hams to be of such quality, and to induce the. plaintiff to buy the same, and that plaintiff purchased said hams relying upon such representation as a warranty of the quality, and that at the time of purchasing the hams they were not of the qual- ity represented, but were of a poor, inferior and bad quality, then your verdict will be for the plaintiff. And upon the question of damages, the court instructs you that, if you be- lieve from the evidence plaintiff, at the time of such sale to him, had a contract for the resale of said hams to one D., 28 Bird V. Forceman, 62 111. 212. 20 Sanborn v. Benedict, 78 III. 309. (396) Ch. 44] DAMAGES. [930 , and that he had sold the same as hams of the quality aforesaid, and that, at the time of the sale to the plaintiff, the defendant had knowledge of such contract of resale, and knew that the plaintiffs purchased said hams to fulfill said contract of resale, and that the hams were shipped to before the plaintiff had any notice of their quality, and that upon their arrival at the said D. refused to receive or pay for the same for the reason that they were not, at the time of their shipment to him, of the quality he had bargained for, then you will award to the plaintiff as damages such sum of money as you may believe, from the evidence, the plaintiff had sold said hams to said D. for, less such sum as you may believe, from the evidence, said hams were actually worth at the time of their purchase by the plaintiff, and you will further allow the plaintiff such sum of money if any, as you may believe from the evidence, he was obliged to pay- out on account of the transportation of said hams to said (930) The court instructs the jury that plaintiff will be entitled to the amount of damages directly and naturally resulting from the alleged breach of contract by the defendant and if the jury believe from the evidence that (here state the facts) defendant sold oil to plaintiff to be used in the manu- facture of carpets, the oil warranted to be of a certain quality and the oil was not of the quality represented and warranted by the defendant, and the plaintiff sold carpets after he be- came aware of the vicious quality of the oil and the sales were made under circumstances which left no liability on the part of plaintiff to the purchaser, then the measure of damages to be recovered by the plaintiff would be only the difference be- tween the price actually received from the purchaser and the value of the carpets as they would have been if the oil had been as recommended.^^ so Thorne v. McVeagh, 75 111. 81. 81 Waite V. Borne, 123 N. Y. 592. (^97) 931] DAMAGES. [Ch. 44 (931) The court instructs the jury that if they believe from the evidence that the defendant sold to plaintiff a cer- tain article (as certain coloring matter) to be used by plain- tiff for a purpose known to defendant (as for coloring cer- tain kinds of ice cream which plaintiff manufactured) and if the jury further believe from the evidence that said article so sold to the plaintiff did not fulfill the warranty or the pur- pose known to the defendant (but that such coloring matter contained arsenic which caused the customers of the plaintiff to become sick) then plaintiff may recover as damages not merely the difference between the value of the goods sold if they had been as represented and their value as they actually were, but may recover the value of the ice cream destroyed because of the arsenical compound and also the loss of busi- ness caused to the plaintiff by selling the poisonous ice cream and the expense thereby occasioned.^^ Same — Liability of buyer. (932) The court instructs the jury that if they believe from the evidence that plaintiff was to furnish to defendant certain quantities of goods for use by the defendant in defend- ant's factories for a certain period as alleged in the complaint and that subsequently defendant refused to take any more goods from plaintiff as he had agreed to do and upon receiv- ing notice plaintiff ceased to manufacture under the contract, then the plaintiff may recover as damages, if the jury should find that there was no market value for the article which plaintiff was to furnish to defendant, the difference between the cost of the production of the article which defendant re- fused to take and the contract price.^* (933) The court instructs the jury that if they believe from the evidence that the defendant refused to accept the goods which he had agreed to buy from the plaintiff as alleged in the declaration and if the contract price of the goods and 32 Swain v. Schleffelin, 134 N. Y. 471. 33 Todd v. Gamble, 148 N. Y. 382. (398) Ch. 44] DAMAGES. [937 the market price are the same, then the plaintiff can only recover nominal damages.** (034) The court instructs the jury that if under the court's instructions the jury shall find for the plaintiff, the measure of damages is the profit which tJiey shall find from the evidence he vs^ould have made if the contract had been fully performed by him.*'* Liability of vendor of land for breach of contract to convey. (9,35) The court instructs the jury that if defendant made a contract to convey the premises described in the declara- tion to the plaintiff as alleged in the declaration, and that after the making of the contract and before the time of per- formance he sold the property to one other than the plaintiff, the defendant will be liable for substantial damages.^* Liability for breach of covenant against incumbrances. (936) The court instructs the jury that if they believe from the evidence that the defendant made a conveyance to the plaintiff of the premises described in the declaration and covenanted against incumbrances, and that there are incum- brances upon such premises in violation of the covenant, but that such incumbrances do not interfere with the enjoyment by plaintiff of the premises, plaintiff can only recover nominal damages.*'' (937) The court instructs the jury that if they believe from the evidence that the incumbrances which are alleged to constitute a breach of defendant's covenant against in- cumbrances are of a permanent nature, such as plaintiff can- not remove, he should recover a just compensation for real in- jury resulting from the continuance of the incumbrance.*^ s< Ellitliorpe A. B. Co. v. Sire, 41 Fed. 662; Foes v. Sabin, 84 111. 564. SB Approved In Baltimore & 0. R. Co. v. Brydon, use of Davis & Co., 65 Md. 198. 80 Tracy V. Gunn, 29 Kan. 508. 87 Harlow v. Thomas, 15 Pick. 66. 88 Harlow v. Thomas, 15 Pick. 66. (399)' 938] DAMAGES. [Ch. 44 (938) The court instructs the jury that if they believe from the evidence that the defendant violated, as alleged in the declaration, his covenant against incumbrances in his conveyance to plaintiff, and that plaintiff has extinguished the incumbrance alleged to constitute a breach of covenant, then plaintiff should recover the expenses necessarily in- curred in extinguishing such incumbrance.^* Liability for breach of contract to buy land. (939) The court instructs the jury that if they believe from the evidence that defendant refused to accept a con- veyance of land which he had agreed to buy as alleged in the declaration, the measure of damages to be recovered by the plaintiff will be the difference between the price plaintiff was to receive under his contract with defendant and the value of the land which was left on plaintiff's hands.*" (940) The court instructs the jury that if they believe from the evidence that the defendant has refused to take the land which he agreed to buy from plaintiff as alleged in the declaration, although the plaintiff has tendered a deed of the land which tender has never been withdrawn, plaintiff may recover as damages the contract price.*^ Measure of damages for failure of defendant to procure a deed to a piece of land from a third person. (941) The court instructs the jury that if they believe from the evidence that the defendant did not act in bad faith either in making the contract to procure the deed or in failing to perform his contract, and if the jury further believe from the evidence that plaintiff was informed of the defendant's inability to procure a deed from , then the measure of damages will not exceed the value of the premises to be con- so Harlow v. Thomas, 15 Pick. 66. *» 3 Sedgwick, Damages, § 1023. « Alma V. Plummer, 4 Me. 258; Goodpaster v. Porter, 11 Iowa, 161. (400) Ch. 44J DAMAGES. [944 veyed by at the time when plaintift' was informed by the defendant of his inability.*^ liability for breach of constrration contract. (942) The court instructs the jury that if they believe from the evidence that the contract was made as alleged in the declaration by the defendant to build the house described in the declaration for plaintiff and that defendant did not fol- low the specifications contained in the contract but departed therefrom in building the house, then the measure of dam- ages of plaintiff will be the difference in the value between the house as it was in fact finished by the defendant and as it would have been if he had accurately carried out the provi- sions of the contract and the plaintiff cannot recover such an amount as would be necessary to make the building con- form to what the specifications required.** Liability of client for wrongfully discharging attorney. (943) The court instructs the jury that if they believe from the evidence that defendant retained plaintiff to take charge of the litigation described in the declaration and that thereafter defendant wrongfully discharged plaintiff, the measure of damages will be the full amount of compensation agreed upon less the expenses which would have been incurred by plaintiff in carrying out the agreement and that plaintiff was not under obligation to seek other employment for the time in which he would have been employed by defendant if he had carried out his agreement.** liability for breach of promise of marriage. (944) The court instructs the jury that in cases of this kind the damages are always in the discretion of the jury and in fixing the amount they have a right to take into consid- 42 Gale V. Dean, 20 111. 320, *3 Morton v. Harrison, 52 N. Y. Super. Ct. (20 J. & S.) 305. "Hunt V. Test, 8 Ala. 713; Brodie v. ^Vatkins, 33 Ark. 545; My- ers V. Crockett, 14 Tex. 257. ;(4oi) 945] DAMAGES. [Ch. 44 eration the nature of the defense set up by the defendant, and if the jury believe from the evidence that the defendant promised marriage to the plaintiff and then refused to carry out his promise, and if the defense set up by the defendant in this case is not sustained by the evidence (the defense being injurious to the reputation of the plaintiff) then the jury will be justified in giving exemplary damages.*' (945) The court instructs the jury that, if you find the contract was made, and has been broken, and consider the question of damages you may take into consideration the character of the plaintiff. If it is subject to any criticism on your part, and if she is a woman of coarse manners, coarse in her associations, and imprudent, careless and reckless in regard to her conduct and demeanor, these circumstances you may take into consideration in assessing damages ; such a wo- man is not injured to the same extent by a breach of promise of marriage that one more confiding, retiring, and modest would be. Understand that I am passing no judgment upon tlie plaintiff or suggesting that you shall pass any judgment upon her, but I wish you to understand that if you think she deserves consideration of that kind, it is your privilege and duty to give such consideration to that phase of the matter as you think it deserves.*^ III. LlABILITT OP CAKBIBR AND TELEGRAPH COMPANIES. liability of carrier for refusal to transport goods. (946) The court instructs the jury that if they believe from the evidence that defendant vsTongfully refused to transport the goods of plaintiff, the measure of damages to be recovered by plaintiff will be the difference between the value of the goods at the place of shipment and the value at the place where they were to be delivered, when they *s Southarrl v. Rextora, 6 Cow. 254. «8 Approved in Kelley v. Highfield, 15 Or. 277, (402) Ch. 44;] DAMAGES. [94S ffhould have arrived, after deducting freight or price of carriage.^^ liability of carrier for injuries to live stock. (947) The court instructs the jury that if you believe from the evidence that the cattle in question wero by the negligence of defendant injured during transportation, then you are instructed that the measure of damages vs^ould be the difference in the market value of such cattle at the place of destination at the time they arrived there in their injured condition, if injured, and their market value at such place of destination in the condition they would have been in when they should have arrived there, but for such injuries.*^ liability of carrier for wrongfully directing passenger to leave car at place of danger. (948) The court instructs the jury that if they find for plaintiff in this case, they will give her such amount of damages as in the judgment of the jury will compensate her for any physical injuries directly resulting from the negli- gence complained of, as well as mental suffering resulting therefrom. This does not include punitory damages, but does include such pain, suffering in body and mind as you may find from the evidence she has suffered from the neg- ligence of defendant and without her fault and which is directly the result of such negligence.*^ *' Galena & C. U. R. Co. v. Rae, IS 111. 488; Bridgman v. The Emily, 18 Iowa, 509; People v. New York, L. B. & W. R. Co., 23 Hun, 533. *8 Approved in Gulf, C. & S. F. Ry. Co. v. Miller, 24 Tex. Olv. App. 430. 49 Stutz v. Chicago & N. W. R. Co., 73 Wis. 147. In this case the plaintiff was directed to leave the cars several hundred feet from the platform and in order to reach the highway, it was necessary for plaintiff to walk along the side track some distance and in doing so plaintiff fell into an open culvert and while struggling to extri- cate herself from the culvert, plaintiff was frightened by cars ap- proaching, although they did not come nearer than 100 feet. The .(403) 949] DAMAGES. [Oh. 44 liability of carrier for ejection of passenger. (949) The court instructs the jury that if they shall under the evidence, find the defendant guilty of the tres- pass charged against it, then in assessing plaintiff's dam- ages, the jury are at liberty, not only to assess the damages at such a sum as to compensate plaintiff for such pecuniary injury as he has suffered, in consequence of such trespass, if the jury believe from the evidence that plaintiff has sui^'^mi any ps^cuniary injury, but also to compensate plain- tiff for the fceli.1^3 of shame or liumiliation which he en- du'-rd, in o n«equ-0jc« of being thus put off and expelled f r >m a public a.n'i'cvance, provided the jury shall believe from the evide/ice, th»!, pl.vintiff did in fact endure and ex- p-irl«nc6 s: eh fcnlings of shame and humiliation in conse- q »*!n.e of S''-h tr'^tiiient by defendant.^" (3iO) The court initmcts the jury that, in the first place, if the pla'otiff is eayil-*! to r»x)ver any damages, he is ent tl-d to such dnji^gra as h" has actually suffered; and, in estimating tlie amount they will not be limited to what he has I's* in dollars and cents; that they may prop- erly consid'r th» injury to his feelings, his wounded pride, hi* wounded self-r-spect, his mental pain and suffering oc- ca.'^ioneu by the a^^saulr., ajxJ the feeling of degradation that necessarily rcsLilt«-4 imm it; that a man's feelings, self- respect, and pride oi cli^racter arc as much under the protec- tion of the l-Jw in »«;i eaae as his property; that, in esti- mating the damages iof a personal assault attended with opprobri'w.w and insul'ing language, the jury have a right to coiAj'd'-r the chara'Ser and standing of the person as- saulted, and the injury to h's fw.liTies as well as the injury lo his p«r»ii5, und tlitm to gT« ii'iu 4iich damages as, in the view 0^ all th» circntnstances, w;vuln (1030) The court instructs the jury that if you believe from the evidence that defendant instigated this prosecu- tion, or refused bail, because of a personal ill will or because of any sinister motive towards this plaintiff, then you may find for the latter not only such damages as will compensate him for the injuries he has sustained but such damages as will punish the defendant for an act so grossly in violation of his duties.^^^ False imprisonment. (1031) The court instructs the jury that if you find that defendants did not act in good faith, and were actuated by ill will or malice, and took advantage of what occurred, you may go beyond actual compensation and award such other damages, usually called exemplary damages or smart money, as you may think proper under the circumstances. There is no limit to it, except the reasonable discretion of the jury. You have a right, if you find that the defendants acted ma- 120 Chicago, B. & Q. R. Co. v. Bryan, 90 111. 126. 130 Bell V. Matthews, 37 Kan. 686. 131 Approved in Grohman, by next friend, v. Klrschman, 168 Pa. St. 189. (438) jh. 44] DAMAGES. [1033 liciously to go beyond the actual compensation, and award such damages as you think right and proper.^*^ Action against saloonkeeper under civil damage act. (1032) The court instructs the jury that if they believe from the evidence that the defendant in good faith instructed his employees not to sell or furnish liquor to , the husband of the plaintiff, and if the jury further believe from the evidence that the defendant himself refused to furnish liquor, but that the employees of the defendant through mis- take or caprice furnished the liquor to , the jury will have no right to give exemplary damages or sihart money.^'* (1033) The court instructs the jury, as a matter of law, that in a suit brought by a wife or widow to recover for an injury to her means of support caused by the intoxication of her husband, produced, in whole or in part, by intoxi- cating liquor sold or given to him by the defendant or de- fendants (if such facts are shown by the evidence), if it fur- ther appears, from the evidence that in consequence of such act of causing such intoxication, and as a proximate result or consequence of such intoxication so caused, she has sus- tained actual and real damages to her means of support, then the jury may, in addition to the actual damages shovsm, give exemplary or vindictive danlages, unless it shall appear, from the evidence, that such liquor was sold or given to the hus- band, not by the defendants, but by their agents or servants, and that the defendant or defendants had forbidden his or their said agent or agents to sell or give liquor to such hus- band, and did not know of or permit such sale or gift when 182 Brushaber v. Stegemann, 22 Mich. 265. 188 Brantigam v. White, 73 111. 561. It would be error in this case not to positively instruct the jury that they would have no right to give exemplary damages, and it would be error to frame the instruc- tion in such a manner that they would be allowed to consider the facts set out in the instruction upon the question of exemplary dam- ages. (439) 1034] DAMAGES [Ch. 45 made, in which case the defendants would not be liable to ex- emplary or vindictive damages.^** (1034) The court instructs the jury that under our stat- ute, if the jury believe from the evidence that the defendant in selling liquor to plaintiif's husband acted in willful dis- regard of her rights, the jury may allow exemplary dam- ages. Exemplary damages are punitive in their character and designed to punish the defendant for some positive wrong he has inflicted upon the plaintiff or for some very gross neglect of her rights in furnishing liquor to her hus- band at the time alleged in the declaration and the jury must exercise a sound discretion in determining the amount they will award.^^^ (1035) The court instructs the jury that if you find the plaintiff entitled to actual damages under the law, it is your duty to add thereto an amount as exemplary damages. Usu- ally these damages are discretionary with a jury; that is, the jury may allow them or not, as they think best. In this case, under our statute, if actual damage is given, exemplary damage must be added; but of the amount to be given you are the judges, keeping in view the fact that they are given as a punishment for the wrong done, and as an example that may prevent others from doing a like wrong.^^* CHAPTER XLV. DEATH BY WRONGFUL ACT. In general, 1036, 1037. Self-defense as justifying homicide, T.0.38-1040. Apprehension of bodily harm to another as justifying homicide, 1041. Contributory negligence, 1042. 13* Approved in Betting v. Hobbett, 142 111. 72. 186 Larzelere v. Kirchgessner, 73 Mich. 276. 138 Approved In Thill v. Pohlman, 76 Iowa, 638. (440) Ch. 45] DEATH BY WRONGFUL ACT. [1037 Damages recoverable In general, 1043-1046. Recovery for neglect in selling poison, 1047. Earnings, mental sufferings of survivors, loss of society, and superintendence of education of children, 1048-1055. Expectancy of life and probable earnings, 1056-1061. Determination of present value, 1062, 1063. Pecuniary or physical condition of survivors as affecting amount of recovery, 1064-1066. Recovery by next of kin. 1067, 1068. In general. (1036) The court instructs the jury that if you should consider that the defendant was in default in this case, then of course you would have to consider the question of com- pensation. As has been stated to you by both counsel origi- nally there was no right of action to a survivor in a case of this character. The person who was injured had a right to damages for pain and suffering and anguish which he had gone through. The legislature, however, have changed the old common law, and the representative, the widow, now has a right to bring a suit for the pecuniary loss which she sus- tained. 'Ifow of course in all these cases nobody pretends that thesp. companies act maliciously — do this on purpose. They operate enliroly through their agents, and if their agents are negligent, they are undoubtedly obliged to suffer for it just as an individual would be. Just as a man driving your carriage, if he negligently ran into some one else, you would be responsible for what he did, because he was your servant, and your agent and performing the duty for which you had employed him. Therefore there ought to be a reasonable compensation.* (1037) The court instructs the jury that if they believe, from the evidence, that on the day of , 19 — , D. came to his death, while in the exercise of ordinary care for his own safety, in the manner and by the means set forth in the amended declaration filed herein; and if the jury 1 Approved In Connor v. Electric Traction Co., 173 Pa. 602. (441) 1038J DEATH BY WRONGFUL ACT. [Ch. 45 further believe from the evidence, that the death of sa:id D. was caused by the negligence of the defendant, com- pany, as charged in the declaration; and if the jury further believe from the evidence that the said D. left him surviving a v^idow and children, as charged in the declaration, and that such v?idow and children, by the death of the said D., have been and are deprived of their means of support, then, in law, the plaintiff is entitled to recover.^ Self-defense as justifying homicide. (1038) The court instructs the jury that if they believe from the evidence that the defendant had no reasonable cause to apprehend that deceased intended to take defend- ant's life, or do him any other great bodily harm, and that thereupon the defendant fired the pistol shot in revenge, or in a reckless and vindictive spirit, then there is no self-de- fense in the case, and the jury cannot find for the defend- ant on that ground.* (1039) The court instructs the jury that although you may believe from the evidence that deceased took hold of the defendant and held him, and may believe from the evidence that he attempted to follow him, when released, with the intention of again taking hold of him, yet that would not justify the defendant in taking his life, unless the jury be- lieve from all the evidence before them, that the defendant had reasonable cause to believe that the deceased was then about to take his life, or do him some other great personal injury.* (1040) The court instructs the jury that to justify the killing of W. by the defendants or either of them, there must have been some act then done by him or some words then spoken coupled with his acts sufficient to produce upon the minds of the defendants or either of them a reasonable 2 Approved in Economy Light & Power Co. v. Stephen, 187 111. 137, 8 Approved in Nichols v. Winfrey, 90 Mo. 403. * Approved In Nichols v. Winfrey, 90 Mo. 403. (442) Ch. 45] DEATH BY WRONGFUL ACT. [1042 apprehension that they or one of them, were in immediate danger of losing life or of suffering serious bodily injury at the hands of W. and the killing must have been done while such danger or apparent danger existed, for if the killing was done after such or apparent danger had ceased, then it would be illegal and wrongful." Apprehension of bodily harm to another as justifying homicide. (1041) The court instructs the jury that if they find that , the deceased, was related to the equitable plaintiff as charged in the declaration, and that on the day of , 19 — , said , the deceased, and (a clerk in the employ of defendant) were engaged in a fight near the defendant's store at , and that the defend- ant came out of his store and seeing said fight ran up to within a short distance of said , deceased, and fired his pistol toward him and shot and killed him, then their verdict must be for the plaintiff, unless they are satisfied by preponderating proof that said shooting was done for the purpose of preventing the said , the deceased, from killing said (a clerk in the employ of defendant) or inflicting upon hiin great bodily harm, and that the facts at the time of the shooting were such as to warrant reason- ahle belief in his mind in the exercise of his judgment that there was no other reasonably possible — or at least prob- able — ^means of preventing said injury ; and that his act was one of necessity.' Contributory negligence. (1042) The court instructs the jury that if they believe from the evidence that , the husband of plaintiff, was guilty of any negligence which contributed to the injury which resulted in his death, then the jury must find a verdict for the defendant, although they may further believe that 6 Approved in Wallace v. Stevens, 74 Tex. 559. • Approved In Tucker v. State, to use of Johnson, 89 Md. 471. (443) 1043] DEATH BY WRONGFUL ACT. [Ch, 46 the plaintiff's husband was killed by negligence as charged in the petition.^ Damages recoverable in general. (1043) The court instructs the jury that if the jury find for the plaintiff, they will assess her damages at such a sum as in their judgment will be a fair and just compensation to her for the loss of her husband, not exceeding the sum of $5,000.« (1044) The court instructs the jury that if they should believe from the evidence that the defendant was guilty of the wrongful act, neglect or default as charged in the plain- tiff's declaration, and that the same resulted in the death of , then the plaintiff is entitled to recover in this ac- tion for the benefit of (designate the persons for whose ben- efit the statute authorizes the action to be brought) such dam- ages as the jury may deem, from the evidence and proofs, a fair and just compensation, with reference to the pecuniary injuries resulting from such death (to the class of persons previously designated) not exceeding (if there is a statutory limit).® (1045) The court instructs the jury that if they believe from the evidence that the plaintiff is entitled to recover, in estimating the damages the jury should find the sum with reference : First. To the pecuniary loss of the widow and child, at a sum equal to the probable earnings of the deceased, con- sidering his age, business, capacity, experience, habits, en- ergy, and perseverance during his probable life. T Approved in Le May v. Missouri & P. R. Co., 105 Mo. 361. 8 Approved In Browning v. Wabash W. Ry. Co., 124 Mo. 55. Chicago, B. & Q. R. Co. v. Payne, 59 111. 534; Chicago, M. & St. P. Ry. Co. V. Dowd, 115 111. 659. It is not necessary in the above in- struction to say anything as to the care required of the deceased or to in any way go into the question of negligence and contributory negligence. (444) Ch. 45] DEATH BY WRONGFUL ACT. [1047 Second. In ascertaining the probability of life reference may be had to the scientific tables on that subject. Third. They may consider the loss of his care, attention, and society to his widow and child. Eourth. They may add such sum as they deem fair and just by way of solace and comfort to his widow for the sor- row, suffering, and mental anguish occasioned by his death, provided they do not find over ten thousand dollars.^" (1046) The court instructs the jury that if they should believe from the evidence that defendant was guilty of the wrongful act, neglect or default, as charged in the plaintiff's declaration, and that the same resulted in the death of plain- tiff's intestate, then plaintiff is entitled to recover in this action for the benefit of the next of kin of said intestate, such damages as the jury may deem, from the evidence and proofs, a fair and just compensation with reference to the pecuniary injuries resulting from such death, to such next of kin, not exceeding .^* Eecovery for neglect in selling poison. (1047) The court instructs the jury that, if you find for plaintiffs, you will find for them such damages as you may think proportionate to the injury resulting from the death of the child not to exceed, however, the sum expended in an effort to have her relieved from the effects of the morphine and the reasonable value of the services of the child from the time of her death until she would have attained the age of twenty-one years, not to exceed the sum sued for. jSTeither physical nor mental suffering of the deceased child nor the mental anguish of the parents in consequence of the death of their child, are items or elements of damages to be consid- ered by you. And the value of the child's services during the period of her minority (if you should find for plaintiffs), is to be ascertained by you as best you can from your own i» Approved in McDonald v. Norfolk & W. R. Co., 95 Va. 98. 11 Chicago, B. & Q. R. Co. v. Payne, 59 111. 534. (4,15) 1048] DEATH BY WRON035TJL ACT. [Ch. 45 judgment, good sense and sound discretion and the evidence before you. If (the druggist clerk) did not sell the drug to at all, or if he did sell it to him, yet he sold to him the article called for, then the plaintiffs cannot re- cover. The burden of proof is on the plaintiffs to show that the drug was purchased from defendants and that quinine was asked for and that it was sold and represented to be quinine.** Earniags, mental sufferings of survivors, loss of society, and superintendence of education of children. (1048) In ascertaining the amount of damages plaintiff is entitled to recover in this case, if any, the jury will take into consideration : First. By fixing the same at such sum as would probably be equal to the earnings of the deceased, taking into consid- eration the age, business, capacity, and experience and hab- its, health, energy and perseverance of the deceased, during what would probably have been his lifetime if he had not been killed. Second. By adding thereto the value of his services in the superintendence, attention to and care of his family, of which they have been deprived by his death. Third. The physical pain of the deceased, as well as the mental suffering of the surviving members of his family. Fourth . The loss to his family in reference to his moral and intellectual training.'* (1049) The court instructs the jury that if you find for the plaintiff, and find that the next of kin of deceased has sustained any damages by reason of his death, in estimating such damages the jury cannot consider the mental sufferings or grief of the surviving kindred, or loss of domestic or so- cial happiness, or culpability of the defendants, but the jury, if they find for the plaintiff, must be governed solely by the 12 Approved in Brunswig & Co. v. White, 70 Tex. 504. 13 Approved in Baltimore & 0. R. Co. v. Few's Ex'r, 94 Va. 82. (446) Ch. 45] DEATH BY WRONGFUL ACT. [1053 actual pecuniary loss that the next of kin of deceased have sustained by reason of his death.'* (1050) The court instructs the jury that if they believe from the evidence that the defendant was guilty of the wrong- ful act charged in the plaintiff's declaration, and that the same resulted in the death of , then the plaintiff is entitled to recover such damages as the jury may deem from the evidence and proof a fair and just compensation there- for, having reference only to the pecuniary injuries resulting from said death to the plaintiff and (such other persons as the statute entitles to share in the damages) not exceeding the amount claimed in the declaration. Sorrow or grief for the deceased, or any pain caused to the next of kin by the manner of his death, is not to be considered by the jury and the pecuniary value of the life of deceased to (the persons designated in the statute as entitled to bring the action) is all for which damages can be assessed.'^ (1051) The court instructs the jury that the plaintiff's damages can only be estimated for the pecuniary loss suf- fered by the death of deceased, without taking into account the mental anguish or bereaved affections of plaintiff, and that the jury must make their estimate of such pecuniary damage from the facts proved, and that it is not necessary that any witness should have expressed an opinion as to the amount of such pecuniary loss.-'* (1052) The court instructs the jury that if they believe from the evidence that came to his death by the wrongful act of the defendant as alleged in the declaration in estimating the pecuniary injury which (the persons des- ignated in the statute as entitled to the damages) have sus- tained, the jury have a right to take into consideration the support of the said (widow and minor children of the de- " Approved In Wabash R. Co. v. Smith, 162 111. 583. 15 Pennsylvania Co. v, Marshall, 119 111. 399. 18 City of Chicago v. Major, 18 111. 349. (447) 10S3] DEATH BY WRONGFUL ACT. [Ch. 45 ceased) and the instruction, and physical, moral and intel- lectiial training, of the minor children of the deceased, and also the ages of the said minor children and the pecuniary condition of the said minor children and widow of the de- ceased in determining the amount of damages, if they he- lieve from the evidence that the deceased left a widow and minor children.* '^ (1053) The court instructs the jury that if they should find for the plaintiff, in ascertaining his damages they may consider the loss of the Services of the deceased to his father until he would have become twenty-one years of age ; compensation for the loss of his care, attention, and society to his father. And they may add such further sum as they deem fair and just by way of solace and comfort to his father for the sorrow, suffering and mental anguish occasioned to him by his death. But the entire damages must not exceed $10,000.18 (1054) The court instructs the jury that in assessing dam- ages they are to estimate the reasonable probabilities of the life of the- deceased and give the equitable plaintiffs such pecuniary damages as the jury may find that they have suffered or will suffer as the direct consequence of the death of the said ; that for his children these prospective damages may be estimated to their majority; and as to the widow to such probability of life as the jury may find rea- sonable under the circumstances.*® (1055) The court instructs the jury that if they find, under the first instruction, a verdict for the plaintiff, then in assessing the damages they are not to take into consid- 17 Illinois Cent. R. Co. v. Weldon, 52 111. 290. This Instruction only to be given, of course, In case there is evidence showing that the de- ceased was fitted to furnish to his children the instruction or moral, physical or intellectual training. 18 Approved In Richmond & M. R. Co. v. Moore's Adm'r, 94 Va. 493. 19 Approved in President, Managers, and Company of the Balti- more & R. Turnpike Road v. State, 71 Md. 573. (448) Ch. 45] DEATH BY WRONGFUL, ACT. [1058 eration the mental pain and suffering of the plaintiff's cestui que use in consequence of the death of the child, and are not to give against the defendants, punitive, vindictive or ex- emplary damages, but in estimating the damages they are confined to the pecuniary damage sustained by the plaintiff and are to give such a sum as they may believe from all the evidence in the case will be adequate compensation for the loss of her son's services from the time of his death to the period when, if he had lived, he would have attained the age of 21 years.^" Expectancy of life and probable earnings. (1056) The court instructs the jury that if you find for the plaintiff, you will look to the evidence and determine from that how much you will find. You will, in arriving at a conclusion, look to the evidence as to the age of plaintiff's husband, the probable length of his life, the amount that he earns or would probably earn during his life, and the state of his health.^* (1057) The court instructs the jury that if you believe from the evidence that the capacity of plaintiff's husband would be decreased by reason of advancing years, then it would be your duty to diminish the amount that you may find for the plaintiff accordingly.^^ (1058) The court instructs the jury that in making this calculation as to the amount plaintiff would be entitled to recover, you would have the right and it would be proper for you to consider whether or not the capacity of the plain- tiff's husband to labor and earn money would have, by reason of advancing years, decreased, and if you believe under the evidence that it would have decreased in the same proportion 20 Approved in State of Maryland, use of Coughlan, v. Baltimore & 0. R. Co., 24 Md. 84; Baltimore & 0. R. Co. v. State of Maryland, use of Coughlan, Id. 21 Approved in Georgia R. Co. v. Pittman, 73 Ga. 325. =2 Approved in Georgia R. Co. v. Pittman, 73 Ga. 325. (449) Instr. Juries — 29. 1059] DEATH BY WRONGFUL ACT. [Ch. 45 as you believe his capacity to labor and earn money would have diminished, in the same proportion would it be proper and right that your verdict and finding would be dimin- ished.^^ (1059) The court instructs the jury that if under all the evidence the jury find for the plaintiff, the proper measure of damages is the pecuniary loss suffered by her and her two children ; and that loss is what her husband would have prob- ably earned by his labor in- his business during his lifetime, and which would have gone for the benefit of the plaintiff and her two children, taking into consideration his age, abil- ity, and disposition to labor, and his habits of living and ex- penditure.^* (1060) The court instructs the jury that if you find for the plaintiff, you will estimate the damages to which he is entitled; and in so doing, you will not allow anything for pain and suffering of deceased, nor wounded feelings, nor grief of his relatives, nor anything by way of exemplary damages or punishment of defendant, nor infer any fortui- tous circumstances whereby the income or fortune of de- ceased might be increased or improved had he lived. This suit is brought only to recover a pecuniary loss, namely, what the estate of the deceased had lost in consequence of his untimely death, and no more. And, in determining what amount you will allow, you should take into consideration the age of the deceased, his occupation, the wages he was re- ceiving, the condition of his health, his ability, if any, to earn money, his expenditures and habits as to industry, so- briety and economy, the amount of property which he had accumulated at the time of his death, if any, the probable duration of his lifetime, and all these in connection with all the evidence before you, throwing light on this question and 23 Approved in Georgia R. Co. v. Pittman, 73 Ga. 325. 24 Approved in Huntingdon & B. T. R., etc., Co. v. Decker, 84 Pa. 419. (450) Ch. 45] DEATH BY WRONGFUL ACT. [1063 determine therefrom the probable pecuniary loss to the estate caused by his death and allow the plaintiff such sum and such only as will compensate the estate for such loss.^^ (1061) The court instructs the jury that the Carlisle ta- bles have been offered in evidence, but you are not to regard such tables as proving that plaintiff is to recover for forty and three-fourths years of life. You are to bear in mind that was liable to die at any time, and that there was no certainty that he ever would have lived until he was twenty- one years old. You are not to presume that he would be dil- igent in acquisition of property or successful in saving what he might acquire.^® Determination of present value. (1062) The court instructs the jury that the measure of damages in this case is the present value of the amount of money which the plaintiff and the minor children, during the continuance of the deceased's life would have received from her had she lived. The present valuation of a sum of money payable in the future is what that sum is worth if paid presently — paid now. For example the present value of $1.00 at 6% at the end of one year is found by dividing $1.00 by $1.06; and the present value of $1.00 at the end of two years is found by dividing $1.00 by $1.12.^'' (1063) The court instructs the jury that if you shall find for the plaintiff, it would not be proper to find the amount that you may believe from the evidence that he earned each year, and then add those amounts together and find a verdict for that sum, but it would be your duty to find the value of the annuity. That is to say, what sum paid to him now in cash would represent the yearly payments if the deceased had 25 Approved in Spaulding v. Chicago, St. P. & K. C. R. Co., 98 Iowa, • 205. -« Approved in Andrews v. Chicago, M. & St. P. Ry. Co., 86 Iowa, 677. 27 Approved in Nelson v. Lake Shore & M. S. R. Co., 104 Mich. 582. (451) 1064] DEATH BY WRONGFUL ACT. [Ch. 45 lived. You will perceive that any recovery that may be had would be paid now, and that you arrive at what sum you should pay him by first determining the length of time he would live, and this sum, as it would have been paid to his wife, as she would have been entitled -to it yearly, it would be improper to give her the amount that you may find that he earned yearly added together. A book has been intro- duped in evidence to aid you in making a calculation, in or- der to find out the present value of the annuity. You can use the rules in that book, or you can take any other rules or information that you may possess, that refers to making cal- culations under the rules of law that I have given you, and from all the information, the best information you can com- mand, find the present value of the annuity. As an illus- tration and as an illustration only, if you believe from the evidence that the plaintiff is entitled to recover, suppose, for example, that she is entitled to recover on the basis of five hundred dollars, or one hundred dollars, say one hundred dol- lars, and yet if you find that the one hundred dollars would not be due, as an illustration, for five, eight or nine years, you should find an amount, its present value to date, as put at interest would make the one hundred dollars at the end of five, eight or nine or any other number of years you may believe from the evidence the husband of plaintiff would probably have lived.^* Pecuniary or physical condition of survivors as affecting amount of recovery. (1064) The court instructs the jury that the pecuniary circumstances of the plaintiff at the time of and since the death of deceased, cannot increase or diminish the amount of damages which the plaintiff is entitled to recover in the suit, in case the jury find the issue for the plaintiff, and if the jury so find, they are instructed in the assessment of 28 Approved In Georgia R. Co. v. Pittman, 73 Ga. 325. (452) Ch. 45] DEATH BY WRONGFUL ACT. [1067 damages to disregard all the testimony as to the pecuniary circumstances of the plaintiff at the time of and since the death of deceased.^* (1065) The court instructs the jury that if they believe from the evidence that the plaintiff at the time of the death of deceased, was a cripple or was disabled through some de- formity or some mental condition, and if the jury further believe that such physical or mental weakness had existed from the time of plaintiff's birth, such fact cannot increase or diminish the amount of damages which the plaintiff will be entitled to recover in this suit in case the jury should find the issue for the plaintiff, and if the jury should find the issue for the plaintiff, they are instructed in the assessment of damages to disregard all the testimony in the case, as to such physical or mental defects.^'' (1066) The court instructs the jury that the pecuniary circumstances of the plaintiff and her infant daughter, at the time of and since the death of said , cannot in- crease or diminish the amount of damages, which the plain- tiff is entitled to recover in this suit, in case the jury find the issue for her, and if the jury so find, they are instructed, in the assessment of damages, to disregard all the testimony as to the pecuniary circumstances of said plaintiff and her infant daughter, at the time of and since the death of said Eecovery by next of kin. (1067) The court instructs the jury that if they find for the plaintiff, in estimating the damages sustained by the next of kin of the deceased by reason of his death, the jury can only estimate the damages to the brothers and sisters of deceased at such a sum as the evidence shows they have sustained by the death of deceased, and can only estimate the damages to 20 Illinois Cent. R. Co. v. Baclies, 55 111. 379. so Illinois Cent. R. Co. v. Baches, 55 111. 379. 31 Approved in Illinois Cent. R. Co. v. Baches, 55 111. 379. (453) 1068] DEATH BY WRONGFUL ACT. [Ch. 46 the father of deceased upon the basis of what the son's serv- ices would have been worth to his father from the date of the injury to the time he would have arrived at the age of twenty-one years, deducting therefrom the costs and expenses of the father in his support and maintenance during that time; and if the evidence does not show the ages of said brothers and sisters, nor that they were receiving support from him or were in condition to require it, then the jury ran only estimate the damages to said brothers and sisters at a nominal sum."^^ (1068) The court instructs the jury that if they believe from the evidence that the deceased (the wife of plaintiff) met her death through the wrongful act of the defendant as charged in the declaration, in assessing damages, while they must assess with reference to pecuniary injuries sustained by the next of kin in consequence of the death of the wife, they are not limited to loss actually sustained at the precise period of her death, but may include also prospective loss, provided they are such as the jury believe from the evidence, will actually result to the next of kin as the proximate dam- ages arising from the death of the wife.^^ CHAPTER XLVI. DEEDS. Enforcement of conditions of deed by grantor, 1069-1071. Notice of unrecorded deed, 1072. Enforcement of conditions of deed by grantor. (1069) The court instructs the jury that this action is brought to recover the farm in question by the plaintiffs, the heirs at law of S., deceased. The defendant H. claims title under a deed executed by S. and wife, dated . This 82 Approved in Wabash R. Co. v. Smith, 162 111. 583. 33 Tilley v. Hudson River R. Co., 29 N. Y. (2 TifE.) 252. (451) :h, 46.J DEEDS- [1071 deed, if it was executed by tHe grantors and delivered to the grantees, showed upon its face a sufficient consideration to pass the title to the defendant H., if accepted by the defend- ant H., and was binding upon the parties thereto at the time of its delivery and acceptance; that if the defendant H. had failed to perform the conditions of the deed, then and in that case the deed became void, and the plaintiffs would be en- titled to recover ; but if the jury were satisfied from the evi- dence that the conditions of the deed had, in all respects, been substantially performed by the defendant H., then the plaintiffs were not entitled to recover. If the jury believed S. was satisfied with his treatment and so expressed him- self, it would be a waiver of a strict performance of that which might otherwise be insisted upon as a forfeiture, if the evidence would warrant it. If defendant H. intended in good faith to perform all the conditions of the deed, and has substantially performed them, it will be sufficient, for the law under such circumstances leans against forfei- tures, but it is your duty to see whether there has been a sub- stantial or intentional neglect on the part of H. to keep the conditions of the deed; and if there has been such neglect the plaintiffs are entitled to recover.' (1070) The court instructs the jury that to entitle plain- tiffs to recover, inasmuch as the defendant had given con- siderable evidence tending to show performance, and inas- much as the effect of non-performance was a forfeiture of the title, under the deed, there ought clearly to appear from the evidence a breach on the part of the defendant of the condi- tion mentioned in the deed described in the declaration to be kept and performed by the defendant.^ (1071) The court instructs the jury that if they believe from the evidence that the plaintiff, the grantor in the deed described in the declaration, was in fact satisfied and ex- 1 Spaulding v. Hallenbeck, 39 Barb. 79. 2 Spaulding v. Hallenbeck, 39 Barb. 79. (455) 1072] DEEDS. [Ch. 47 pressed himself satisfied with the manner in which he was treated, it was to that extent a waiver of a strict performance by the defendant of the condition of the deed.* Notice of unrecorded deed. (1072) The court instructs the jury that the informa- tion which will charge a person with knowledge of a prior unrecorded deed ought to be of that character that a prudent person, by the exercise of reasonable and ordinary diligence could, upon inquiry and investigation, ascertain the fact that a prior conveyance has been made.* CHAPTER XL VII. DEPOSITARIES. Loss of gratuitous deposit — Measure of damages, 1073, 1074. Failure to redeliver — Liability, 1075. Loss of gratuitous deposit — Measure of damages. (1073) The court instructs the jury that if the jury shall find from the evidence that the plaintiff on or about (the 22d day of January, 1866), deposited for safe-keeping with defendants (thirteen United States bonds for $1,000 each, bearing interest payable in gold on the first days of May and November in each year) ; that the defendants were then do- ing business in the city of Washington, as bankers and bro- kers, under the name and firm of M. & Co., and the said deposit was made with them as such bankers and brokers and was gratuitously deposited, for the keeping of which they were not to receive any compensation, and that such bonds were lost and abstracted from the possession and keeping of the defendants so that the plaintiff did not and could not recover the same, and that said loss and abstraction occurred s Spauldlng v. Hallenbeck, 39 Barb. 79. < City of Chicago v. Witt, 75 III. 211. (456) Oh. 47] DEPOSITARIES. [1074 through the failure of the defendants to use such care in the custody and keeping of such bonds as persons of common pru- dence in their situation and business usually bestow in the custody and keeping of similar property belonging to them- selves, then the plaintiff is entitled to recover, and that the measure of damages is the value of the said bonds at the time of said demand and also the value of the gold interest thereon on the (first days of November, 1866, May, 1867, JSTovember, 1867, May, 1868), less sums the jury shall find were actually paid to and realized by the plaintiff in cash paid and money received from securities placed in her hands, with interest on the value of the several instalments of gold interest due (in each six months as aforesaid) and interest on the principal sum from the (first of ITovember, 1868).-^ (1074) The court instructs the jury that if the jury shall find from the evidence that the plaintiff did on or about (the 22d of January, 1866), deposit with the defendants for safe- keeping (thirteen bonds of the United States for $1,000 each bearing interest payable in gold on the first day of May, and the first day of November, in each year), and that said deposit was made on the terms of (the agreement set out in the paper marked "A" which has been given in evidence) and that the defendants were then doing business (in the city of Washington) as bankers and brokers (under the name and firm of M. & Co.), and that afterwards, on or about (the first day of May, 1866), the plaintiff demanded such (bonds) from the defendants, and they were not then, and have not since, been returned to the plaintiff, then the plaintiff is en- titled to recover, unless the jury shall further find that the (bonds) in question were lost or abstracted from the posses- sion and keeping of the defendants and that such loss or abstraction did not occur from any failure on the part of said defendants to use such care as persons of common prudence 1 Approved in Maury & Osbourn v. Coyle, by Coyle, his guardian, 34 Md. 235. (457) 1075] DEPOSITARIES. [Ch. 47 in their situation and business usually bestow in the cus- tody and keeping of similar property belonging to them- selves and that the measure of damages is the value of the (bonds) at the time of the said demand and also (the value of the gold interest thereon on the first days of November, 1866, May, 1867, November, 1867, May, 1868 and Novem- ber, 1868), less the sum the jury shall find were actually paid to and realized by the plaintiff in cash paid to her, and money received by her from securities placed in her hands; with interest on the value (of the several instalments of gold interest due in each six months as aforesaid) and interest on the principal sum from the first day of November, 1868.* Failure to redeliver — ^Liability. (1075) The court instructs the jury that if they believe from the evidence that the plaintiff deposited with the de- fendant the United States bonds described in the receipt introduced in evidence by the plaintiff of the par value of $ , and that after making such deposit, the defendant gave a receipt to the plaintiff acknowledging that the bonds had been left with him as a special deposit and that after- wards and prior to the commencement of this suit the plain- tiff demanded of the defendant the bonds, and that the de- fendant refused to deliver them up or to settle therefor, and that the defendant never returned the bonds, then the plain- tiff is entitled to recover the value of the bonds at the time of such demand and refusal together with the interest less such interest as had been received by the plaintiff.* 2 Approved in Maury & Osbourn v. Coyle, by Coyle, his guardian, 34 Md. 235. s Approved in Cushman v. Cogswell, 86 111. 62. (458) Ch. 48] DIVORCE. £1078 CHAPTER XLVIII. DIVORCE.i Cruelty. 1076-1078. Cruelty. (1076, 1077) The court instructs the jury that if they he- lieve from the evidence in the ease that the defendant has been guilty of extreme and repeated cruelty, under the in- structions above given, they shall give a verdict for plain- tiff, unless they find that such cruelty was occasioned by the complainant's own misconduct, and that it is not sufficient to show misconduct, in no way proportioned to the cruelty of the defendant, and which could not have caused it.^ (1078) The court further instructs the jury, for the com- plainant, that if they believe from the evidence, that during the existence of the marriage relation between the parties to this suit, the defendants made threats against the life or per- son of the complainant, and that he constantly carried a re- volver in day time, and kept such revolver under his pillow at night; and that such threats were repeated from time to time, by defendant, either to the complainant or to other persons, who communicated them to complainant ; and, if the jury further believe, from the evidence, that the defendant was guilty of repeated acts of personal violence towards the complainant; and if the jury further believe, from the evi- dence, that the complainant, from such threats and acts of defendant, had a reasonable apprehension of bodily hurt from 1 It Is deemed unwise to attempt to give many forms under this title, because, first, divorce trials are not usually to a jury, second, the causes being defined by statute precedents would be of local value only, third, the differences are ofttimes so narrow that confusion and mistake would result from the collection of many forms. The precedents here given are under a statute making "extreme and re- peated" cruelty a cause for divorce. 2 Von Glahn v. Von Glahn, 46 111. 134. (459) 1079] DIVORCE. [Ch. 49 the defendant, which shows a state of personal danger in- compatible with the duties of married life, then such threats and acts amounted to extreme and repeated cruelty, under the statute.* CHAPTER XLIX. DOWER. Determination of amount, 1079, 1080. Determination of amount. (1079) The court instructs the jury that it is their duty to ascertain from the evidence in this cause the annual value of the dower of the complainant in the land in which she has in this suit been adjudged to be entitled to dower, and that by such annual value is meant the sum of money per year which is equal to one-third of the net productive value of said land after deducting from such, one-third of the an- nual taxes, repairs and insurance, and one-third of the in- terest of all incumbrances that were on any of the land at the time of the death of .* (1080) The court instructs the jury that it is their duty in this cause to inquire into and ascertain the damages to which the complainant is entitled for the detention and re- fusal to assign reasonable dower; that such damages are to be inquired into and determined since the time of the filing of the petition in this cause ; that the complainant is entitled as such damages to one-third of what the jury shall find from the evidence to have been the yearly value of the rent of the premises in which she has dower, for the period that has accrued subsequent to the filing of the petition in this cause, deducting therefrom one-third of the annual taxes as- 8 Approved in Tantum v. Tantum, 5 111. App. 598. 1 Approved in Walker v. Walker, 5 111. App. 289. (400) Ch. 50] DRUGGISTS. [1082 sessed on said land during the same period, and also one- third of the interest on any incumbrances on a parcel of said land for the same period and paid by the defendants or any of them, and also one-third of all insurance and repairs so paid for any building and improvements in which the said complainant has dower.^ CHAPTER I. DRUGGISTS. Violation of statute regulating sales — Negligence of clerk, 1081. Contributory negligence in use of drug, 1082. Necessity that use of drug be proximate cause of sickness, 1083. Violation of statute regulating sales — Negligence of clerk. (1081) The court instructs the jury that if in the put- ting up of this drug (and I say to you that a part of the put- ting up is the matter of labeling it), this statute was vio- lated, then there was negligence on the part of F. which would make the defendant, if you find that F. was his agent, liable for the injury resulting therefrom, unless negligence of others contributed as I will hereafter explain.'- Contributory negligence in use of drug. (1082) The court instructs the jury that notwithstanding defendant's neglect to label, and that plaintiff was ignorant of the drug being acid, yet, if you believe from the evi- dence that he, before the application to his ear, became pos- sessed of knowledge or any facts which would put an ordi- narily prudent man on inquiry as to the character of the drug, and nevertheless used it, he was guilty of contribu- tory negligence, and may not recover.^ 2 Approved in Walker v. Walker, 5 111. App. 289. 1 Approved in Davis v. Guarnieri, 45 Ohio St. 470. 2 Approved in Fisher v. Gollady, 38 Mo. App. 531. (401) 1083] DRUGGISTS. [Ch. 51 Necessity that use of drug be proximate cause of sickness. (1083) The court instructs the jury that if you find from the evidence that croton oil was by defendant administered to plaintiff in dangerous quantity, as is alleged, then you will consider whether or not it was the proximate cause of plaintiff's sickness and injury, as alleged; and if you find that it was not the proximate cause thereof, or if the plain- tiff was sick at the time of administering the croton oil, if any was administered, and the same did not increase the sickness or pain, or the duration thereof, then you should find for the defendant.* CHAPTER LI. DRUNKARDS. What constitutes intoxication, 1084. What constitutes one a common drunlcard, 1085. What constitutes intoxication. (1084) The court instructs the jury that a person is in- toxicated in contemplation of law, where the use of intoxi- cating liquors has affected his reason or his faculties or has rendered him incoherent of speech or has caused him to lose control in any manner or to any extent of the action or mo- tions of his person or body.^ What constitutes one a common drunkard. (1085) The court instructs the jury that the defendant is charged in the complaint to have been a common drunkard from to . Upon this charge he is presumed to be innocent; that is, he is presumed not to be a common drunkard; but the jury are not to be instructed that be- cause it is proved that a defendant was drunk five times in 3 Approved in Rabe v. Sommerbeck, 94 Iowa, 656. 1 Approved in State v. Huxford, 47 Iowa, 16. (462) Ch. 52] DURESS. [1087 four montlis, and no proof is given of his condition the re- mainder of the four months, it is to be presumed that he was sober and not intoxicated during the remainder of the time. The question is, whether the facts proved satisfy the jury beyond a reasonable doubt, that during the time specified in the complaint he was a common drunkard. One way to state it is this: Can the facts proved be true, on the suppo- sition that he was not, during that time, habitually a drunk- ard?* CHAPTER LII. DURESS. When will render contract voidable, 1086-1088. When will render contract voidable. (1086) The court instructs the jury that a contract made under compulsion may be avoided by the party by whom it was executed. Compulsion, however, to have this effect, must amount to what the law calls duress. Mere angry or profane words, or strong earnest language, cannot constitute such compulsion as will amount to duress, or enable a party to be relieved from his contract. There may, however, be duress by threats. Duress by threats does not exist, wherever a party has" entered into a contract under the influence of a threat, but only where such threat excites, or may reasonably excite, a fear of some grievous wrong, as bodily injury or unlawful imprisonment.^ (1087) The court instructs the jury that to constitute duress which would avoid the deed, it is not necessary that the threats be of physical injury alone; but if the plaintiff, the wife of T., was induced to execute the deed by the treats of T., her husband, that he would separate from her as her hus- s Com. V. McNamee, 11^ Mass. 285. 1 Approved in Adams v. Stringer, 78 Ind. 180. (463) JOSS] DURESS. [Ch. S3 band, and not support her, it is duress and would avoid the deed. The threats must be such as she might reasonably ap- prehend would be carried into execution, and the act must have been induced by the threats. It is not necessary that the threats be made at the time, or immediately before sign- ing, if it was within such time, and the circumstances sat- isfy you that the threat or its influence properly continued and influenced the plaintiff.^ (1088) The court instructs the jury that if the payee of the note surrendered it to the maker voluntarily, in liquida- tion of a just debt then due from him to them, the note was fully canceled by the surrender ; but if the note was obtained from wrongfully and unlawfully by threats and du- ress, it was not canceled by the surrender, and the plaintiff can maintain an action for the amount due thereon, if she is the owner thereof.' CHAPTER LIII. EJECTMENT. Necessity that plaintiff recover on the strength of his own title, 1089, 1090. Acquisition of title and adverse possession, 1091. Defenses — Outstanding title, 1092. Same — Forfeiture for nonpayment of taxes, 1093. Same — Adverse possession, 1094. Burden of proof, 1095. Necessity that plaintiff recover on the strength of his own title. (1089) The court instructs the jury that the right of the plaintiffs to recover in this case rests on the strength of their ovm title, and they cannot recover by showing defects in the title of the defendant.-* 2 Approved In Tapley v. Tapley, 10 Minn. 458. 8 Approved in Koehler v. Wilson, 40 Iowa, 183. 1 Buntin v. City of Danville, 93 Va. 200. (4(54) Ch. S3] EJECTMENT. [1093 (1090) The court instructs the jury that if they believe from all the evidence that the boundaries of the grant to plaintiff are in such doubt and uncertainty that they can- not say whether or not they embrace the land in controversy, they must find for the defendants.^ Acquisition of title and adverse possession. (1091) The court instructs the jury that the law assumes that those in possession of land are rightfully in possession, and he v^ho claims that the persons in possession are unlaw- fully in possession must satisfy the jury by a preponderance of the evidence that he has a good title and a better title than the defendant. The plaintiff must recover upon the strength of his own title.' Defenses — Outstanding title. (1092) The court instructs the jury that an outstanding title in another to defeat the action of ejectment must be a present, outstanding, operative, and available legal title on M'hieh the owner could recover against either of the contend- ing parties if asserting it by action.* Same — Forfeiture for nonpayment of taxes. (1093) The court instructs the jury that in an action of ejectment the general rule is that a plaintiff must recover upon the strength of his own title and not upon the weak- ness of the defendant's title ; for the reason that the defend- ant is not required to give up possession until the true owner demands it and the right to show in defense a substituting outstanding title rests upon the same principle. So if the title of the plaintiff, , to the acres of land claimed by him in this suit became forfeited to the state of for any five consecutive years before bringing this suit for the nonpayment of taxes thereon, or for the failure 2 Reusens v. Lawson, 96 Va. 285. 3 Approved In Sutton v. Clark, 59 S. C. 440. * Reusens v. Lawson, 91 Va. 226. (465) 1094] EJECTMENT. [Ch. S3 of the said or any one under whom he claims to have said lands entered on the land books of any county in which part thereof is situated where they are located for the pur- pose of taxation, then the said plaintiff cannot recover in this action and the jury must find for the defendant.' Same — Adverse possession. (1094) The court instructs the jury that although they may believe from the evidence that the land in controversy is covered by the deeds under which the plaintiff claims, yet if they further believe from the evidence that the de- fendants and those under whom they claim have been in the honest, peaceable, continuous, and adverse possession of said land, paying taxes on the same, under color of title, for years prior to the institution of this suit, they must find for the defendants.* Burden of proof, (1095) The court instructs the jury that if they believe from the evidence that the grant, under which the plaintiff claims includes within its exterior boundaries lands which were excepted from the operation of said grant, then it is incumbent on the plaintiff to show, by preponderance of evidence, that the lands of the defendants are not within the excepted lands.^ 6 Approved in Davis v. Living, 50 W. Va. 431. Approved in Reusens v. Lawson, 91 Va. 226. 7 Reuaens v. Lawson, 96 Va- 285. (466) Ch. 541 JELBCTRICITY. [1097 CHAPTER LIV. ELECTRICITY. Liability for accidental contact witli live wire, 1096. Degree of care on account of dangerous nature of element, 1097. Act of God, 1098, 1099. Proximate cause of injury, 1100. Sudden fracture of wire, 1101. Contributory negligence, 1102. Knowledge of fracture, 1103. Duty to repair after fall of wire, 1104, 1105. liability for accidental contact with live wire. (1096) The court instructs the jury that if they believe from the evidence that the defendant was negligent, accord- ing to the definitions given above, and that, in consequence of such negligence, the plaintiff accidentally came in contact with wires charged with electricity, operated and controlled by defendant, and was injured thereby, then the plaintiff would be entitled to recover.^ Degree of care on account of dangerous nature of element. ,(1097) The court instructs the jury that the degree of care, which the law requires, in order to guard against in- jury to others, varies greatly according to the circumstances of the case, and if the jury believes that electricity was the power used by the defendant in its business, and is a highly dangerous agency to life, unless exercised with constant and extreme care, then, to such extent, a high degree of care in its supervision, management and use, is required of defend- ant, and a failure on its part to exercise such high degree of care would be negligence.^ 1 Approved in Mitchell v. Charleston Light & Power Co., 45 S. C. 146. 2 Approved in Mitchell v. Charleston Light & Power Co., 45 S. C. 146. (467) 1098] ELECTRICITY. [Ch. 54 Act of God. (1098) The covLvt instructs the jury that if they find that the wire was broken by some object such as a slate or tile hurled upon it by a storm, the wire being in good condition, the break would be attributed to the act of God. I charge you that; but it would be the duty of the defendant to use precautionary measures not to allow the wire to remain on the streets. The negligence complained of in this case is that the wire remained on the streets after it was broken ; and if it remained there longer than a reasonable time, and could have been removed sooner by a due exercise of care, then that was negligence, and the defendant would be responsible.^ (1099) The court instructs the jury that an injury is said to be caused by an act of God, when it results immediately from a natural cause without the intervention of man, and could not have been prevented by the exercise of prudence, diligence, and care by the party charged with liability, by reason of his negligence in permitting said injury to occur; and a defendant so charged with liability, if he invokes the act of God as a defense, has the burden of proof upon him to show, not only that the act of God was the cause but that it was the entire cause of the injury, because it is only when the act of God is the entire cause of the injury, and said injury could not have been prevented by the exercise of pru- dence, diligence, and care by defendant, that the said de- fendant can be shielded. I charge you that, as I have al- ready explained to you. For instance, the law would re- quire the company to guard against ordinary wind storms when he erects an electric wire in a public thoroughfare.* Proximate cause of injury. (1100) The court instructs the jury that there is no evi- 8 Approved In Mitchell v. Charleston Light & Power Co., 45 S. C. 146. 4 Approved In Mitchell v. Charleston Light & Power Co., 45 S. C. 146. (468) Ch. 54] ELECTRICITY. [1102 dence of any other cause of death of plaintiff's intestate, except from the electricity coming from the wire of the de- fendant; therefore if the jury find from the evidence that the death of the intestate was caused by the current of the electricity passing into his body from the charged wire of the defendant, the jury will find that the negligence of de- fendant was the proximate cause of the death of intestate of plaintiff.' Sudden fracture of wire. (1101) The court instructs the jury that the law does not require impossibilities of any person, natural or artificial, nor does it require that the defendant should have ready for service at every moment and every point of exposure, an ade- quate force to overcome a sudden fracture of wire or any other like casualty in the shortest possible time. All that it can be required to do in this connection is to maintain an efficient system of oversight, and to be prepared with a com- petent and sufficient force ready to furnish, within a reasona- ble time, a proper remedy for all such casualties, defects, and accidents, as from experience there was any reasonable ground to anticipate might occur.^ Contributory Negligence. (1102) The court instructs the jury that although they may believe from the evidence in this cause that the said defendant company was guilty of negligence in the manner of constructing or maintaining its electric wire over and above the track of the Railway Company, still plaintiff had no right to attempt to pass from one car to another while the cars were passing under the said wire if in so doing he in- creased the danger of an accident from the said wire, and if from the evidence in the case they believe that the said plain- tiff did attempt to pass from one car to another while passing under said wire, and by so doing did increase the danger and 6 Approved in Mitchell v. Electric Co., 129 N. C. 166. « Approved in Mitchell v. Charleston Light & Power Co., 45 S. C. 146. (469) 1103] ELECTRICITY. [Ch. 54 chance of the accident, he cannot recover in this case, and the jury must find for the plaintiff.^ Knowledge of fracture. (1103) The court instructs the jury that if you helieve that the defendant company was notified by telephone from ofiice that there was trouble with its wires, and failed to take immediate steps to investigate such trouble and rectify the same, if trouble existed ; and if a sufiicient time between the notice to the defendant of the trouble to its wires and the accident to the plaintiff for its investigation and attention had elapsed, and thereafter, by reason of the failure of the defendant to attend to its said wires, such wire or wires charged with electricity, hung suspended over the scene of the accident so as to become dangerous to persons on the street, then the defendant would be guilty of negligence. I charge you that, which, in plain words, is, that if the company was notified that its wires were down, and did not take steps in a reasonable length of time to repair them, it would be guilty, if an accident occurred, in not repairing their wires in a reasonable length of time.* Duty to repair after fall of wire. (1104) The court instructs the jury that if they find that between the time when the defendant received the notice of the breaking of the wire and at the time -at which the plain- tiff came in contact therewith, there was not reasonable time in which the defendant could have repaired the wire or could have removed it out of the way of persons using the streets, then their verdict must be in favor of the defendant.' (1105) The court instructs the jury that the defendant was entitled to a reasonable time after the fall of the wire, ' Approved in Danville Street Car Co. v. Watkins, 97 Va. 713. 8 Approved in Mitchell v. Charleston Light & Power Co., 45 S. C. 146. 9 Approved in Mitchell v. Charleston Light & Power Co., 45 S. C. 146. (470) Ch. 55] EMINENT DOMAIN. [1106 to repair it or remove it out of the way of persons using the street, and if you find that the injury to the plaintiff occurred before the expiration of such reasonable time, then the plain- tiff is not entitled to recover anything in this action. If they removed or repaired the wire in a reasonable time, and were not negligent in allowing it to lie upon the streets, then they would not be liable, because want of due care would not be established.-"' CHAPTER LV. EMINENT DOMAIN. Measure of damages for taking or damaging property, 1106- 1111. Purposes for wliich land may be used — ^Value fixed as of what time, 1112. Price obtained for land adjoining that taken, 1113. Liability of railroad company, 1114-1119. Recovery by abutting owner for occupation of street by rail- road, 1120-1130. Recovery by abutting owner for construction of viaduct in street, 1131. Cautionary instruction, 1132. Form of verdict, 1133. Measure of damages for taking or damaging property. (1106) The court instructs the jury that while it is prop- er for witnesses in making their estimate of damages to be allowed the defendant, to take into consideration any use to which they believe from the evidence the property in ques- tion may be profitably appropriated, yet the jury are not bound to base their verdict upon the supposition that it would be appropriated to a use other than that to which it is now devoted.^ 10 Approved In Mitchell v. Charleston Light & Power Co., 45 S. C. 146. 1 Snodgrass v. City of Chicago, 1&2 111. 600; Phillips v. Town of Scales Mound, 195 111. 353. (471) ^l()-j-\ EMINENT DOMAIN. [Ch. 55 (1107) The court instructs tlie jury that tbey are not to consider the price -which the property would sell for im- der special or extraordinary circumstances, but its fair cash market value if sold in the market, under ordinary circum- stances, for cash, and not on time, and assuming that the owners are willing to sell and the purchaser is willing to buy.2 (1108) The court instructs the jury that just compensa- tion for the taking and damaging of property means the payment of such sum of money as will make the defendant whole, so that on receipt by the defendant of the compensa- tion and damages awarded he will not be poorer by reason of his property being taken or damaged.* (1109) The court instructs the jury that the owner of property to be condemned is entitled to its actual value for its highest or best use to which the property, in the condi- tion it was at the filing of the petition, could be put, and if the jury believe from the evidence, that the property de- scribed in the petition and sought to be condemned had an actual value for a specified use, and that such property was devoted and adapted to such use, then the owner is entitled to such value. In this case, the property sought to be con- demned has a market value and the jury are instructed that they are to find from the evidence what such market value is, and the jury are instructed that the market value of the property sought to be condemned is the same as the value of the property for said specified use, if the jury find from the evidence that the property had a value for a specified use.* (1110) The court instructs the jury that no remote or 2 Brown v. Calumet River Ry. Co., 125 111. 600; Calumet River Ry. Co. V. Moore, 124 111. 329; Kiernan v. Chicago, S. F. & C. Ry. Co., 123 111. 188; Phillips v. Town of Scales Mound, 195 111. 353. 3 Metropolitan West Side El. Ry. Co. v. Stickney, 150 111. 362; Phil- lips v. Town of Scales Mound, 195 111. 353. 4 Chicago & B. R. Co. v. Jacobs, 110 111. 414. (472) Oh. 55] EMINENT DOMAIN. [1112 speculative damages can be allowed in the action, but only such as are the natural and .proximate effect of defendant's acts.^ (1111) The court instructs the jury that you have had the benefit of viewing this property and you have heard the testimony of all these experts and it will be for you to say after carefully weighing this testimony, whether this prop- erty was damaged by the opening of C. street in 19 — , or whether it was benefited. If the property was damaged by the opening of C. street and if its market value was less immediately after the opening, than it was immediately be- fore, then you ought to give the plaintiffs damages for the dif- ference. If, however, after careful consideration you find that this property was not damaged at all by the opening of C. street at that date, or that it was benefited, then your verdict ought to be for defendant. The court instructs the jury if they find that plaintiffs are entitled to a verdict and if they believe from the evidence that the property in question was depreciated by the opening of the street on and if the plaintiffs are entitled to any compensation by reason of the opening of street through their property in , then the jury may take into account that the plaintiffs have lost the use of the amount they are enti- tled to as compensation for a period of and if the jury find a verdict for plaintiffs they may in determining the compensation allow damages for the detention by the defend- ant of the payment of such compensation.* Purposes for wliich land may be used — ^Value fixed as of what time. (1112) The court instructs the jury that in this case it is proper for you to take into consideration the proximity of this land to and its contact with the city of . And it is proper for you to take into consideration any fact which « Approved In Blesch v. Chicago & N. W. Ry. Co., 48 Wis. 168. Provident Life & Trust Co. v. Philadelphia, 202 Pa. 78. (473) 1113] EMINENT DOMAIN. [Cll.SS may tend to add a value to that land. If any part of it was then valuable as building lots, and that fact added a valtie to the land, it is proper for you to take that into considera- tion, and if the location and construction of the defendant's railroad across this land destroyed it in part, or took away any part of this land which might have had or had value for that purpose, it is proper for you to take that fact into con- sideration. It is not proper for you in determining the value, or the amount of damages sustained by the plaintiff, to take the estimate of any one as to how many lots might be laid out upon the premises, and what these lots might have sold for in the event of their being sold. That would be fixing a measure of damages not as of the date of entry but as of a future time, but your duty is to fix the measure of the damages sustained by the plaintiff at the time of the entry, and as we have said, anything that then added Value to the land and any injury then sustained, must be taken into consideration by you.^ Price obtained for land adjoining that taken. (1113) The court instructs the jury that you are entitled to consider what the petitioner sold the tract adjoining the property taken by the defendant for, but you are not bound to act upon that alone, and you ought not to act upon that alone, but in connection with the other evidence. The pe- titioner had the right if he wished to give that land to the defendant, or sell it for what it was worth, or less than it was worth, or more than it was worth, if he could get it, so what the petitioner got for the said adjoining tract is not binding upon you in determining the value of the property taken and made the subject of this suit, but the price ob- tained for the adjoining tract is only an item of evidence in arriving at what you believe from the whole evidence T Approved In Reiber v. Butler & P. R. Co., 201 Pa. 49. (474) Ch. 55]l EMINENT DOMAIN. [1115 to be the actual value or the actual market value of the prop- erty now in question.* Liability of railroad company. (1114) The court instructs the jury that plaintiff's action is for damages caused to his property by the construction and operation of railroad tracks of defendant in the immedi- ate vicinity of the plaintiff's property. The special dam- ages claimed are on account, or by reason of, the construction of defendant's road, the jarring of his house occasioned by passing trains, and from the smoke, ashes and cinders de- posited upon plaintiff's premises by the engines of defend- ant, and damages resulting from other causes incident to the operation of a railway, and the court instructs the jury that plaintiff cannot recover any damages occasioned by the operation of defendant's road, such as damages occasioned by smoke, ashes or cinders deposited upon the plaintiff's premises, except for the time laid in and covered by the dec- laration, that is, from the time of construction of the tracks to the commencement of this suit, to-wit, on the , and such damages, if any, they must find from the evidence, and the court instructs the jury that while the deprecia- tion of the value of the property resulting from mere incon- venience in approaching or leaving the property, or the noise and confusion in the vicinity, cannot be included in Ihe damages, yet the depreciation of the value of plaintiff's property resulting from the jarring of plaintiff's building, and the throwing of cinders, ashes and smoke upon the plain- tiff's premises, may be included in the damages.® (1115) The court instructs the jury, on the part of the defendant, that the said defendant is entitled to compensa- tion for land taken for right of way of petitioner over aE"" across the lands of said defendant, and the jury should hx 8 West V. Milwaukee, L. S. & W. R. Co., 56 Wis. 318. » Chicago, M. & St. P. R. Co. v. Hall, 90 111. 42. 1116] EMINENT DOMAIN. [Ch. 55 the amount of such compensation at what they believe, from the evidence, to be a fair value for the land so taken.^" (1116) The court instructs the jury that if they believe, from the evidence, that the defendant is entitled to damages by reason of the construction and use of said petitioner's railway over and across defendant's lands, then the jury should so find, and, in ascertaining the amount of such dam- ages, should deduct therefrom such amount, if any, as the jury believe, from the evidence, the said defendant will be benefited by reason of the construction and use of said rail- way over and across said land of said defendant.^ ^ (1117) The court instructs the jury that if you find from the evidence that the plaintiff's farm consisted of about acres of improved lands, and the right of way of defendant cut the same in such a manner as to injure the value of the same by throwing it open and dividing it into pieces, you are at liberty to consider such circumstances and the effect upon the land, if any, by reason of the location upon the land of the railroad, and of the inconvenience di- rectly caused by the railway, in determining the effect the same would have upon the market value of the lands, and it is the depreciation in the market value of the premises which is the true measure of damages and which you are to allow for, and not the matters 'which would cause such de- preciation.^^ (1118) The court instructs the jury that the interrup- tion of plaintiff in the use and cultivation of his land, or any inconvenience he may have been put to in its cultiva- tion and use as a live stock farm, or otherwise, according to his peculiar taste in farming, since the appropriation of the right of way, if any, cannot be considered by the jury 10 Peoria, A. & D. R. Co. v. Sawyer, 71 III. 361. 11 Peoria, A. & D. R. Co. v. Sawyer, 71 111. 361. 12 Approved in Hartshorn v. Burlington, C. R. & N. R. Co., 52 Iowa, 613. Plaintiff was landowner. (476) Ch. 55] EMINENT DOMAIN. [1120 as forming an element of damages in his favor, and your inquiry must be confined to the marketable value of plain- tiff's land before and after the right of waj was appropri- ated, taking into accoupt, in this connection, the number of acres taken for the right of way, the manner of its location, the way his land is cut by the railroad and the like, so as to be able to estimate the true market value of his land, affected by the location of the railroad before and after such location; the difference in the market value of the land af- fected by the appropriation of the strip for the right of way before, and then again after the right of way is assert- ed, will form or constitute his true measure of damages.-'* (1119) The court instructs you that respondent railway company cannot recover any damages against the petitioner in this case on account of having to stop and start their re- spective trains at the proposed crossings of the different rail- road tracks, in order to comply with the law of the state, and the jury will find no damages against the petitioner on account of any annoyance, damage, delay or expense caused simply by so being compelled by law to stop before passing any of the proposed crossings.^* Recovery by abutting owner for occupation of street by rail- road. (1120) The court instructs the jury that if the running of defendant's cars and locomotives on the street in front of plaintiff's premises created smoke and cast it on the prem- ises, so as materially to impair the reasonable use and en- joyment thereof, they might allow plaintiff' reasonable com- pensatory damages therefor. The damages you find, if any, on this ground, must be the actual damages, and you must say what the plaintiff ought to have in money, and what the 13 Approved In Hartshorn v. Burlington, C. R. & N. R. Co., 52 Iowa, 613. Plaintiff "was landowner. 14 Approved in Peoria & P. U. R. Co. v. Peoria & P. R. Co., 105 111. no; (477) 1121] EMINENT DOMAIN. [Ch. 55- defendant ought to pay, if anything, in view of the discomfort or annoyance to which the plaintiff has been subjected by reason of such smoke during the period between the construc- tion of this railroad in front of his premises and the com- mencement of this action, avoiding all speculative and fanci- ful annoyances as grounds of damages. If you find that any damages were sustained by the plaintiff from these causes, you may include it in your estimate of the depreciation of the annual value of the premises under other instructions.^'* (1121) The court instructs the jury that they may con- sider the purposes for which the premises were used, wheth- er for the business or the residence of plaintiff and his fam- ily, and the extent to which the obstruction and operation of the railroad, by impairing plaintiff's right of property in the street, interfered with the use and enjoyment of the premises; but that they are to consider the business trans- acted by the plaintiff on the premises only for the purpose of determining the annual rental value.^® (1122) The court instructs the jury that the measure of these damages is the difference between the annual value of plaintiff's premises with the railroad constructed and op- erated as it was, and what such annual value would have been had not the railroad been on said street diiring that time; and that in determining such diminution in the annual value, they may consider the manner in which the road was built along said street in front of said premises, the manner in which and the extent to which it was used and occupied at that place by defendant's cars and locomotives, the situa- tion of the premises in reference to that portion of the road, and the effect which defendant's occupation and use of that portion of the road had upon the reasonable use and enjoy- ment of the premises and of the improvements thereon." IB Approved in Blesch v. Chicago & N. W. Ry. Co., 48 Wis. 168. " Approved in Blesch v. Chicago & N. W. Ry. Co., 48 Wis. 168. " Approved in Blesch v. Chicago & N. W. Ry. Co., 48 Wis. 168. (478) Ch. 55J EMINENT DOMAIN. [1125 (1123) The court instructs the jury that if defendant's said right of property was materially impaired, they must allow him the damages resulting therefrom from the date of the building of the road in front of his premises until the commencement of the action.''* (1124) The court instructs the jury that at the time of the construction of the road plaintiff had a vested private right of free access to and egress from his said lots and the buildings thereon, over and along street in front of the lots, "as the same was and would have continued to be according to the mode of its original use and appropriation by the public," and that this was a right of property which could not be materially impaired or destroyed without plain- tiff's consent, except upon payment to him of due compensa- tion; and therefore, if defendant's road changed the mode of the original use of the highway, or if it was thereby ap- propriated by the public to new vehicles and methods of transportation, so as to materially impair plaintiff's said right, he was entitled to recover such damages as would com- pensate him for the in jury. ""^ (1125) The court instructs the jury that the testimony shows that the effect upon the plaintiff's property rights, as hereinbefore defined, would have been the same whether the railroad actually encroached upon the western side of the street or not. You will therefore assess the damages, if any you find, according to the foregoing instructions, how- ever you may find upon the question of encroachment, which you will determine as a separate question. That is to say, if you find the plaintiff has been injured in his property right, under the foregoing instructions, you will determine the damages for such injury upon the principles hereinbefore stated, whatever you may think as to whether the railroad is upon the western side of the center of the street. You 18 Approved in Blesch v. Chicago & N. W. Ry. Co., 48 Wis. 168. i» Approved in Blesch v. Chicago & N. W. Ry. Co., 48 Wis. 168. (479) 1126] EMINENT DOMAIN. [Ch. 55 will then determine whether the railroad, or any portion of it, is on the western side of the center of the street ; and, if so, how much.^" (1126) The court instructs the jury that if the plaintiff enjoyed any peculiar benefits from the railroad being on this street, such benefits must be deducted from his damages; but that benefits common to the whole community are not to be considered.^^ (1127) The court instructs the jury that if the construc- tion and operation of defendant's road in front of plaintiff's premises had depreciated their annual value, the jury can not apportion the damages for these injuries according to the width of the strip actually taken and occupied, but must award damages to compensate plaintiff for the whole amount of injuries sustained.^^ (1128) The court instructs the jury that plaintiff had a right to put any lawful improvements on the property after the railroad was built on his land in the street; and that, if any such improvements were made, they are to be consid- ered in determining the subsequent rental value of the prem- ises.^* (1129) The court instructs the jury that in no event must the damages exceed the sum which would be obtained by de- termining the difference between the annual rental value of the property with the railroad constructed and operated as it was, and what that value would have been if there had been no railroad on P. street during that time.^* (1130) The court instructs the jury that the damages al- lowed to plaintiff must not in any case exceed the market value of his premises when the railroad was constructed.^* 20 Approved in Blesch v. Chicago & N. W. Ry. Co., 48 Wis. 168. 21 Approved in Blescit v. Chicago & N. W. Ry. Co., 48 Wis. 168. 22 Approved in Blesch v. Chicago & N. W. Ry. Co., 48 Wis. 168. 2s Approved in Blesch v. Chicago & N. W. Ry. Co., 48 Wis. 168. 24 Approved in Blesch v. Chicago & N. W. Ry. Co., 48 Wis. 168. 25 Approved in Blesch v. Chicago & N. W. Ry. Co., 48 Wis. 168. (480) Ch. 55] EMINENT DOMAIN. [1133 Recovery by abutting owner for construction of viaduct in street. (1131) The jury are instructed that the plaintiffs herein are not entitled to recover because of any alleged injury re- sulting to the fair cash market value of said premises because of any alleged diversion of traffic off from street, in front of said premises, by reason of the construction of said viaduct, even if they believe, from the evidence, that any such diversion of traffic has in fact resulted from such cause.** Cautionary instruction. (1132) The court instructs the jury that in assessing dam- ages, if any, however, they must be careful not to include any item more than once, and must give plaintiff actiial com- pensation for his injury, but no more.^^ Form of verdict. (1133) The court further instructs the jury that the form of their verdict in this case may be as follows : We, the jury, find for the defendant, and fix the compensation for land taken for right of way at dollars. We fur- ther fix the damages sustained by the defendant, by reason of the construction and use of petitioner's railway over de- fendant's said land, at dollars; filling the blanks in accordance with the foregoing instructions.*® 20 Approved In City of Chicago v. Spoor, 190 III. 340. " Approved in Blesch v. Cliicago & N: W. Ry. Co., 48 Wis. 168. 28 Peoria, A. & D. R. Co. v. Sawyer, 71 111. 361. '.481) Instr. Juries — 31. 1134] ESTATES OF DECEDENTS. [Ch. 56 CHAPTER LVI. ESTATES OF DECEDENTS. Settlement of administrator's accounts, 1134-1136. Replevin against one claiming right of possession as adminis- trator, 1137. Liability of estate for services rendered decedent, 1138-1142. Settlement of administrator's accounts. (1134) The court instructs the jury that if you believe from the evidence that anything has been paid upon the share of the widow, and received by her upon that share, then the administrator should have credit for such payment, and it does not make any difference whether he immediately turned around and borrowed the money from the widow. The true test is what was the understanding of the parties and if you believe from the evidence that either by the terms of the con- tract, or by their tacit acquiescence afterwards, that the money of the estate was so used, then it should be allowed to the administrator, but if it was paid without her direction or consent either tacit or expressed, then it should not be allowed. As a general rule an administrator is not allowed to loan the money of the estate. It is his duty to get the money and distribute it. Loans are sometimes permitted where all the parties interested acquiesce. And in this case, if the widow received her share from the administrator either by the payment of money to her, or by an arrangement to do so, and so treated it or any portion of the estate as her share or part of her share, and then authorized the administrator to loan it, he would have a right to do so.^ (1135) The court instructs the jury that no loan by the administrator should be allowed him in his account unless you find that the circumstances were such as to warrant you 1 Approved in Ward v. Tinkham, 65 Mich. 695, (482) Ch. 56] ESTATES OP DECEDENTS. [1137 in coming to the conclusion that the arrangement by which the money was loaned was with the understanding that it was to be treated as the property of the widow herself. If yoii believe from the evidence that such an arrangement as that was made, then it should be allowed in his account here, and she would have to seek her remedy elsewhere for loss occa- sioned by injudicious conduct.^ (1136) The court instructs the jury that the administra- tor has the burden of proof to establish his right to have items allowed him in his account. The law requires good faith on the part of the administrator, and you are not to imply a consent to treat money as an advancement unless it is made to appear plainly that such was the intention of the party, and it must also appear that the arrangement if tacit was made with the full understanding on the part of the widow. There must on the part of the administrator be shown a freedom from fraud and a freedom from con- cealment.* Replevin against one claiming right of possession as adminis- trator. (1137) The court instructs the jury that the defendant':^ plea of property in himself as administrator and not in his individual right has the force and effect in this action of pleading property in a third person, and if the jury believe from the evidence that the defendant obtained the lawful possession of the property sought to be recovered in this suit in his trust capacity as an administrator of the estate of as part and parcel of the personal effects of the said decedent, and sold the same as in said trust capacity, and if the jury believe from the evidence that the right of the property in the sought to be recovered in the suit 2 Approved In Ward v. Tinkham, 65 Micli. 695. » Approved in Ward v. Tinkham, 65 Mich. 695. '(483) ESTATES OF DECEDENTS. [Ch. 56 was in the estate of the said decedent then the plaintiff is not entitled to recover in this action.* liability of estate for services rend:red decedent. (1138) The court instructs the jury that the plaintiii' sues to recover a sum of money which he says is due him for six years' services, rendered one , who has since deceased. The services were rendered the last six years be- fore his death. And the simple question is, did he render such, or any services to the testator, under such circum- stances as to entitle him to pay, and if so, how much ? That there were some services rendered does not seem to be de- nied. The amount of services, however, seems to be dis- puted. The plaintiff claims for but six years, and, of course, can recover for no more. In order to ascertain whether he is or not entitled to recover, it becomes important, in the first place, to ascertain whether he rendered the services, and also the kind of services, for he would be entitled to recover a reasonable compensation, considering the circum- stances. He has proved to you that he has rendered some services, how much, of course, is for you to decide. Hav- ing found he has rendered more or less services, he will be entitled to recover a reasonable compensation for these serv- ices, unless the proof satisfies you from some reason or other, that he is not entitled to recover. (1139) The court instructs the jury that the real point in the case is, has the defendant satisfied you that the plaintiff performed these services, be they more or less, without any expectation of pay, other than what he was to receive by will as a gift, or performed them as a gratuity. If he did so perform them, he is not entitled to recover. If he did not so perform them, he is entitled to recover. (1140) The court instructs the jury that the ordinary rule of law is, when services have been rendered to another, which 4 Rose V. Cash, 58 Ind. 278. (484) Ch. 56] ESTATES OP DECEDENTS, [1141 are valuable to him by bis consent or with his knowledge, and without any objection on bis part be is liable for such services rendered. Eor the law implies a promise on the part of the one receiving services to pay for them. So that if this case rested here there would be no question about his right to recover. But the defendant says, that these serv- ices were rendered without any expectation of pay; that he rendered them with the expectation of receiving a portion of the testator's property by his will. The burden of proof is upon the defendant, to satisfy you of this fact. If they were rendered as a gratuity, and so understood by the par- ties, it would be too late for him to turn round and ask pay for them. That there was a legacy to this plaintiff, is not denied and the will has been introduced before you. This will is in writing and, therefore, it becomes my duty to give it a construction as matter of law. We find in this will an absolute, unconditional legacy to the plaintiff, whether of more or less value is not material in this case. The legal construction is, that it was a gift, nothing more and nothing less. (1141) The court instructs the jury that if it had been intended as a payment, then there should have been a con- dition attached to the legacy, providing -that the legatee should receive it in payment, or full discharge of all claims against the estate. Then if the plaintiff had received it, he could not recover in this suit. But there is no such condition at- tached, it is a bare, naked legacy, and is, therefore, a naked gift. The result is, there is no proof in the will that this was to be payment or compensation in any way for services rendered. If one person renders service to another, and that other voluntarily makes him a present, he may have various reasons for doing it, but the person rendering the service is just as much entitled to receive bis compensation as though he had not received the gift. Whether the legacy is of little or great value is of no consequence. Then it is (485) 1142] ESTATES OF DECEDENTS. [Ch. 56 said that these services were rendered as a gratuity, with the expectation of receiving in some way, a legacy for them. If the services were rendered as a gratuity then he would not he entitled to recover ; for no person, after having made a present to another, can afterwards, in a court of law, re- cover compensation for it. Therefore, if these services were rendered as a gratuity, plaintiff not expecting or intending to claim pay for them, although he may have been expecting favors in return, he cannot recover. It therefore becomes important under this state of the case for you to examine the testimony and see how far it will sustain such a view of the case. The burden of proof is upon the defendant to satisfy you upon this point. It is possible you may view that will as of some weight on this ground ; that if it was to be~ a compensation for his services, or a gratuity rendered in consideration of a gratuity having been received from this plaintiff, whether the testator would not have been likely to mention it in the will. He has left it a mere naked gift.'' (1142) The court instructs the jury that you will have to determine from this testimony whether whatever services this plaintiff rendered to the deceased lady were the acts of courtesy, kindness and friendship, which all of us receive and many of us render every day of our lives or whether they were that kind of services which was the result of a contract and which entitled her to compensation. Of course, if you find that whatever she did for this deceased lady was simply the ordinary, kindly and courteous acts of people living in the same house -that were rendered without ex- pectation of receiving pay and without expectation of being paid for, your verdict ought to be for the defendant, and the plaintiff ought not to receive any verdict, but if, on the other hand, her services were the result as is claimed, of a contract, then she is entitled to receive for the period that "Approved in Rumrill v. Adams, 57 Me. 565. The foregoing in- structions (1138-1141) are to be taken as a series and as sucli were approved. (48G) Ch. 37] ESTOPPEL. [1144 is not barred by tbe statute of limitations such compensation as you believe ber services are reasonably worth, according to the market price of such services.® CHAPTER IVII. ESTOPPEU Reliance on representations, 1143, 1144. Failure to claim right, 1145, 1146. Knowledge by party to be estopped, 1147. Reliance on representations. (1143) Tbe court instructs tbe jury tbat if you find from tbe evidence tbat plaintiff wben be was informed of tbe mat- ter disclaimed baving any interest in tbe property, and you believe from tbe evidence tbat defendant relied on sucb dis- claimer, and you furtber believe from tbe evidence tbat de- fendant relying on sucb disclaimer bougbt tbe premises, and tbat injury will result to bim if plaintiff be permitted now to claim tbe property, tben there is an estoppel in pais and plaintiff may not claim sucb property.* (1144) Tbe court instructs tbe jury that if the con- versation tbat took place at tbe time, by ber language and ber acts, amounted to a representation on ber part, made by ber with tbe intention of influencing this man B. to make the sale upon the idea or impression produced by those state- ments, that J. was the owner of tbe stock, or if, from what transpired at tbat time, he would so reasonably believe, and tbe statement would therefore influence him to make the sale to J. as tbe proprietor of the store, then, in tbat case, if you should so find tbat B. in consequence of any acts or repre- sentations or statements made by M., under the belief that J. was the owner of tbe stock, sold tbe stock to him and •> Approved in Hughes v. Keichline, 108 Pa. 115. 1 Jamison v. Miller, 64 Iowa, 402. (487) 1145] ESTOPPEL. [Ch. 57 gave him credit for it, then she would be estopped to deny that fact, because it would be through her act that the credit was obtained; and if you should so find, then your verdict should be for the defendant.* Failure to claim right. (1145) The court instructs the jury that if before P. had obtained his deed from G. and B. for the land in con- test and before he had paid for the same P. went to K. and asked him if he had any claim on such land, and he told him that he did not claim any land on the south side of , and he was induced to take the deed and pay for said land by reason of said statement by K., then R. is barred of now setting up claim to said land against P.'s vendee, the plaintiff.* (1146) The court instructs the jury that if about ten months after the said house was burned and the said lot was vacated and uninclosed, the plaintiff, by his acts and statements, indicated and made known to the defendant that he, plaintiff, made no claim of any kind to the said lot and had no claim or interest in the same, and you believe from the evidence that plaintiff made the disclaimer of interest in the property with the intention or expectation that de- fendant would act on it, and you believe from the evidence that defendant went upon and fenced the same in conse- quence of such disclaimer, then the said plaintiff is estopped from asserting any right or claim contrary to such acts and statements and cannot maintain the action.* Knowledge by party to be estopped. (1147) The court instructs the jury that to constitute an equitable estoppel of the rights of the plaintiffs in this ac- tion, it must be shown that the plaintiffs were apprized of 2 Borkenhagen v. Paschen, 72 Wis. 272. » Approved in Ratclife v. Bellfonte Iron Works Co., 87 Ky. 559. 4 Approved In Ford v. Fellows, 34 Mo. App. 630. (488) Ch. 58] EVIDENCE. [1148 each sale to innocent vendees, before it was made, so thai, they might have had an opportunity to inform the purchaser of their interest in the property sold." CHAPTER LVIII. EVIDENCE. Presumption from rendering incorrect account, 1148, 1149. Admissibility of evidence, 1150-1152. Admissibility of expert testimony, 1153. Admissibility of parol evidence, 1154. Proof of handwriting, 1155, 1156. Province of court and jury with reference to written evidence, 1157-1160. Preponderance of evidence, 1161-1166. Same — Instruction to be given in case of special verdict, 1167- 1170. Weight of admissions, 1171. Effect of documentary evidence, 1172. Jury exclusive judges of weight of testimony, 1173. Instruction to disregard evidence, 1174, 1175. Presumption from rendering incorrect account. (1148) The jury are instructed, that, in considering and weighing the testimony of the plaintiff, C, they are entitled to consider, from the evidence, whether the bill, as rendered by him, and which is in evidence in this case, was just and true or not, and if any overcharges or errors are contained therein, whether the same were intentionally and knowingly made or adopted by him ; and the jury are further entitled, in the same connection, to consider the book which is in evi- dence in this case, and whether the same was truly and cor- rectly kept or not, and if not, how far the said C. is respon- sible for any errors that the jury may, from the evidence, find therein.* ■> Approved In Cox v. Matthews, 17 Ind. 367. » Approved in Lonergan v. Courtney, 75 111. 580. This was an ac- tion on the common counts. (489) 1149] EVIDENCE. [Ch. 58 (1149) The jury are instructed, that if they find, from thjB evidence, that errors occurred in the bill rendered to tlie defendant, or in the book, both of which are in evidence in this case, and that the witness, A. (or the plaintiff, 0.) had any connection therewith, the jury are entitled to consider their connection, with any such errors, and the nature of such connection, in considering and weighing their testimony in this case (together with the other evidence in the case; and the jury are further instructed, that they are the judges of the credibility of the witnesses, and the weieht of the testi- mony on both sides of the case.)^ Admissibility of evidence. (1150) The court instructs the jury that counsel for the plaintiff have agreed that the accounts offered by the defend- ant in evidence and taken from his books, shall have the same effect as though the books themselves had been duly proved and produced in court; but unless the jury believe from the evidence that the books from which said accounts were taken were books of original entry, then same are not evidence in favor of the defendant on this trial.^ (1151) The court holds that no rule of law requires all the evidence, or the strongest evidence of the matters in dis- pute, but only that is excluded which, from the nature of the case, supposes evidence superior in quality or grade be- hind, in the power of the party whose duty it is to produce the same, — ^that is to say, the party whose duty it is to prove a fact must produce the best evidence which, from the nature of the case, must be supposed to exist, of such fact, and to be within the control of the party.* 2 Approved in Lonergan v. Courtney, 75 III. 580. a Approved in Shrewsbury v. Tufts, 41 W. Va. 212. * Vigus V. O'Bannon, 118 111. 334. TMs instruction is proper whero the case is tried by the court, but it is proper to refuse such an in- struction in a case tried before a jury, although the Instruction is corrpct as an abstract principle of law. (490) Ch. S8] EVIDENCE. [1551 (1152) The court instructs the jury that the statements or declarations of persons who are dead may be used as tending to locate a corner of an old survey, but the persons ■who made the declaration must be such as had peculiar means of knowing the fact of which they speak, such as the sur- veyor or chain carrier who were engaged on the original sur- vey, or the owner of the tract or of an adjoining tract call- ing for the same boundaries; or the declarations must be those of tenants, processioners, and others whose duty or in- terest would lead them to diligent inquiry and accurate in- formation of the fact, in controversy.^ Admissibility of expert testimony. (1153) The court instructs the jury that in determining the question as to whether the fence was sufficient to turn hogs, horses, sheep and cattle, the jury have a right to take the testimony of farmers who are acquainted with fences.* Admissibility of parol evidence. (1154) The court instructs the jury that, what the con- tract was between these parties is to be determined by the writing, — the note itself. This is not to be controlled or altered or varied by proof of any parol or verbal agreement or understanding between them at or before the time of sign- ing the note.'' Proof of handwriting. (1155) The court instructs the jury that, although a wit- ness may swear that he has seen the defendant write, yet this is not proof of the execution of an instrument in writ- ing, purporting to be executed by the defendant, unless the witness is able to distinguish the signature to said instrument as that of the defendant, according to the belief of the wit- 5 Reusens v. Lawson, 91 Va. 226. « Approved in Illinois Cent. R. Co. v. Swearlngen, 47 111. 206. ' Approved in Cook v. Brown, 62 Mich. 473. (491) 1156] EVIDENCE. [Ch. .8 ness, founded on his previous knowledge of the handwriting of the defendant.* (1156) The court instructs the jury that the proof of the signature of the defendant to the note in question, can- not be made by comparison with other signatures, but the burden of proof of his handwriting must be made by wit- nesses who have seen defendant write, and are familiar with his signature, or who have seen letters or documents which the defendant had, in the course of business, recognized or admitted to be his own handwriting.* Province of court and jury with reference to written evidence, (1157) The court instructs the jury that the evidence upon this question (whether ) is mainly record evidence or written evidence, and under the law it is the duty of the court to construe such instruments, and to state the effect of such evidence, and it is the duty of the jury to receive and to accept the instructions so given; and this is so even though you may think the instructions here given are wrong.^" Preponderance of evidence. (1158) The court instructs the jury that the preponder- ance of the evidence in a case is not alone determined by the number of witnesses testifying to any fact or facts, but, in determining where the preponderance is, the jury must take into consideration the facts and circumstances proved in the case and also must consider the opportunities or occasion of the witnesses seeing, knowing or remembering what they testify to or about, the probability or improbability of its truth, the relation or connection, if any, between the witness- es and the parties, their interest or lack of interest in the result of the case, and their conduct and demeanor while so testifying.^ ^ 8 Approved in Putnam v. Wadley, 40 111. 346. » Approved in Putnam v. Wadley, 40 111. 346. 10 Approved In Merrill v. Reaver, 50 Iowa, 404. 11 Approved in Meyer v. Mead, 83 111. 19. (492) Ch 58] EVIDENCE. [1161 (1159) The court instructs the jury that the burden is upon the plaintiff to make out her case by a preponderance of the evidence, and if she has not done so, you will find for the defendant.-'^ (1160) The court instructs the jury that the burden of proof is upon the plaintiff, and that it is incumbent on her to establish her ease by a preponderance of evidence, and that, unless they believe that she has done so from all the evidence in the case, they vyill find for the defendant, and the court further instructs the jury that if they believe that the evidence in this case is equally balanced, then they will find for the defendant.^* (1161) The court instructs the jury that the issue in this case is whether or not the defendant delivered the . The plaintiffs having brought their suit, the law casts upon them the burden of making out their case by a fair prepon- derance of the evidence. There is no technical meaning to the term preponderance of the evidence, it simply means that the burden is cast upon them to support their claim by a greater weight of evidence than the evidence adduced against their claim by the defendant, that is, the evidence brought by the plaintiffs must in your judgment weigh at least a little more than the evidence produced by the defendant against that claim. If the evidence in your judgment, is just even- ly balanced, the plaintiff would not be entitled to recover. Their evidence must weigh a little more at least than the evidence on the part of the defendant, then, with this rule in mind, this is the question for you to determine in this case and find your verdict accordingly, — was there a deliv- 12 Approved in Missouri, K. & T. Ry. Co. of Texas v. White, 22 Tex. Civ. App. 424. It is error to require proof to tlie satisfaction of tlie jury as tliis imposes a higher degree of proof than the law requires. Rolfe V. Rich, 149 111. 436. 13 Approved in Georgia Pac. R. Co. v. West, 66 Miss. 310. (493) 1162] EVIDENCE. [Ch. 58 ery by the defendant of these according to the con- tract between himself and the plaintiffs ?^* (1162) The court instructs the jury that "the plaintiff holds the affirmative of the issue, or, what is called the bur- den of proof rests upon him, the defendant having denied the charges alleged against it in the declaration. The plain- tiff must satisfy you by what is called a preponderance of the proof, that the wrong complained of was committed by the servant of the defendant, in manner and form as charged in the declaration. By a preponderance of proof, the court does not mean the largest number of witnesses on a given point; four or five witnesses may testify to a fact, and a single witness may testify to the contrary, but under such circumstances and in such manner and with such an air and appearance of truth and candor as to make it the more sat- isfactory or convincing to you that the one witness, with the opportunity of knowing the facts testified to, has told the truth of the matter. When you are thus satisfied that the truth lies with a single witness or any other number, you are justified in returning a verdict in accordance there- with. This is what is meant by a preponderance of proof. It is that character or measure of evidence which carries con- viction to your minds. "^^ (1163) By mentioning "the burden of proof" and "pre- ponderance of evidence" the court intends no reference to the number of witnesses testifying concerning any fact, or upon any issue in the case, but simply by way of expressing the rule of law, which is that, unless the evidence as to such issue appears in your judgment to preponderate, in respect to its credibility, in favor of the party to this action on whom 1* Approved in Noyes, French & Pickett v. Parker, 64 Vt. 379. 10 Approved in North Chicago City R. Co. v. Gastka, 27 111. App. 518. (494) Ch. 58] EVIDENCE. [1166 the burden of proof as to such issue rests, then you should find against such party on said issue.^* (1164) The court instructs the jury that while the pre- ponderance of the evidence does not consist wholly in the' greater number of witnesses testifying the one way or the other, yet the number of credible and disinterested witiiesses testifying on the one side or the other of a disputed point is a proper element for the jury to consider in determining where lies the preponderance of the evidence.-'^ (1165) The court instructs the jury that they are to con- sider all the testimony and it is plaintiff's duty to estab- lish his case by a preponderance of the evidence, and the jury will return a verdict for defendant if the evidence is clearly balanced, or if it preponderates for defendant, or if they are in doubt as to the preponderance. The burden of proof is not on defendant and if the preponderance does not show (an act alleged which is essential to recovery) the verdict of the jury should be for the defendant.** (1166) The jury are instructed that the preponderance of evidence in a case is not alone determined by the number of witnesses testifying to a particular fact or state of facts. In determining upon which side the preponderance of the evidence is, the jury should take into consideration the op- portunities of the several witnesses for seeing or knowing the things about which they testified; their conduct and de- meanor while testifying, their interest or lack of any inter- est, if any, in the result of the suit; the probability or im- probability of the truth of their several statements, in view of all the other evidence, facts and circumstances proved on the trial, and from all these circumstances determine upon which side is the weight or preponderance of the evidence. 18 Approved In O'Connell v. St. Louis Cable & Western R. Co., 106 Mo. 482. " West Chicago St. R. Co. v. Lieserowltz, 197 111. 607. 18 North Chicago St. Ry. Co. v. Fitzgibbons, 180 111. 466, 54 N. B. 483. (495) 1167] EVIDENCE. [Cb- 58 The court instructs you as a matter of law that where two witnesses testify directly opposite to each other on a material point, and are the only ones that testify directly to the same point, you are not bound to consider the evidence evenly bal- anced on such point; you may regard all the surrounding facts and circumstances proved on the trial and give credence to one vTitness over the other, if you think such facts and cir- cumstances warrant it. Same — Instruction to be given in case of special verdict. (1167) The court instructs the jury that the burden rests upon the plaintiff of proving the material facts averred in the complaint. "Whether the facts are material, however, need not cause you trouble as that is a question of law for the court. You find what facts have been proven and in de- termining what have been proven, it will be necessary for you to consider what facts have been attempted to be proved, and by whom, that is, by which party. If the plaintiff as- serts a fact and offers evidence to prove it, and the defendant offers evidence to disprove it, you will then weigh all of the evidence on that point. If you find that the evidence of the plaintiff outweighs that of the defendant, you should find the facts proved, and it should become a part of your ver- dict. If the evidence of the defendant upon that point out- weighs that of the plaintiff, you will leave that fact out of your verdict, and it may arise that you will find the evidence entirely placed upon a fact asserted by the plaintiff, that is, you will find that after you have gravely considered all of the evidence upon such fact upon both sides, you are unable to determine which side has the preponderance. In such case, you should omit the fact asserted from your verdict. These remarks apply to the facts asserted and upon which proof was offered by the plaintiff; the same will apply to facts asserted by the defendant. After plaintiff has made proof of facts to entitle her to recover, her recovery may be defeated by other facts proved which avoid the effect of the (496) Ch. b«J iilVlDBNCB. [1171 facts so proven by the plaintiff. These facts are averred by the defendant and constitute a part of the defense. The bur- den of proving such facts is upon the defendant by a fair preponderance of the evidence.^® Same — Positive and negative testimony.' (1168) The court instructs the jury that when one wit- ness testifies that a certain fact took place, or that certain words were spoken, and several other witnesses equally cred- ible testify that they were present at the time and place where the fact took place or where the words were spoken, and had the same means of information, and further testify that such fact did not exist or that the words were not spoken, it is their province to weigh the testimony and give a ver- dict according to the weight of testimony as it may prepon- derate on either side.^" (1169) The court instructs the jury as a matter of law that the affirmative testimony of witnesses that the bell was rung and whistle sounded at a given time and place is of greater force and weight than the negative testimony of wit- nesses of no greater credibility, and who had no better op- portunity of hearing, that the bell was not rung or the whistle sounded, or that they did not hear them.^^ (1170) The court instructs the jury that where witness- es testify that certain facts took place, and other witnesses of equal credibility having equal means of knowledge, testi- fied that such facts did not take place, the jury should hear all the testimony and give a verdict as the weight prepon- derates.** Weight of admissions. (1171) The court instructs the jury that the admissions i» Approved in PlttslDurgh, C, C. & St. L. R. Co. v. Burton, 139 Ind. 357. 20 Approved In Frizell v. Cole, 42 111. 362. 21 Atchison, T. & S. F. R. Co. v. Feehan, 149 111. 202. 22 West Chicago St. R. Co. v. Mueller, 165 111. 499, 46 N. E. 373. (497), Instr. Juries — 32. 1172] EVIDENCE. [Ch. 5& of the deceased shortly before his death will be considered by the jury with great care, and all the circumstances iu con- nection therewith, his suffering, whether he was in such con- dition as to speak with mature consideration and due delib- eration, and whether he spoke in regard to his legal rights, or whether he referred to and meant that defendant was not to blame for any willful intention to injure him or cause said accident, and then give his admission such meaning as you believe from all the circumstances he intended it to have, and give such weight to his statement or admission as in your judgment it may be entitled to. And the admission of deceased will not be conclusive as to what he states. But you will consider all the testimony in relation thereto as in your judgment the whole evidence will justify.^* Effect of documentary evidence. (1172) The court instructs the jury, as a matter of law, that the certificate of the secretary of state of , under the great seal of state, is conclusive evidence, as against any and all papers in the case, that the title to the lands described in the was, on the day of last, in the state of , and not in any other person or persons.** Jury exclusive judges of weight of testimony. niTS) The court instructs the jury that you are the ex- clusive judges of the weight of the evidence before you, and of the credit to be given to the witnesses who have testified in the case. If there is any conflict in the testimony you must reconcile it if you can. If not, you may believe or dis- believe any witness or witnesses as you may or may not think them entitled to credit. In civil cases juries are authorized to decide according as they may think the evidence prepon- derates in favor of one side or another.^" 28 Approved In Cooper v. Central Railroad of Iowa, 44 Iowa, 134. " Approved in Ryan v. Brant, 42 111. 78. 2» Approved in Liverpool & L. & G. Ins. Co. v. Ende, 65 Tex. 118. (498) (Jh. 5S] EVIDENCE. [1175 Instruction to disregard evidence. (11Y4) The court instructs the jury that there is no legally sufificient evidence in the case to show that defendants in the formation or incorporation of the Company and the issue of certificates of stock thereof to the defendants M., H., and T. upon a valuation of their interest in the assets of , as mentioned in the evidence, conspired together to deceive or defraud the plaintiff as charged in the declara- tion in this case, and the jury are therefore not entitled to consider this action or proceeding on the part of defend- ants as any evidence v^hatever tending to prove or sustain said charges.^* (1175) The court instructs the jury as a matter of law that his Honor, Judge , in overruling the filed by the plaintiff and others to the , in the court of , and offered in evidence, determined that the Company was a corporation duly and legally in- corporated under the laws of the state of , and that the certificates of stock therein held by the defendants were issued to them bona fide and for a valuable consideration and the jury therefore are not entitled to consider the forma- tion of said corporation or the issue of said stock to the de- fendants as aforesaid, as any evidence whatever tending to prove the charges made by the plaintiff in the declaration filed in this case.^'' *« Approved in Robertson v. Parks, 76 Md. 118. »' Approved in Robertson v. Parks, 76 Md. 118. (499) 1176] EXECUTION OF INSTRUMENTS. [Ch. 59 CHAPTER LIX. EXECUTION OF WRITTEN INSTRUMENTS. Corporate note, 1176. Validity of instrument signed by another at grantor's reauest, 1177, 1178. Authority to sign promissory note, 1179. Proof of handwriting, 1180, 1181. Knowledge of contents hy signer, 1182, Corporate note. (1176) The court instructs the jury that if you find that , the treasurer, had express authority to sign the notes and checks and effect the loan in question, or if you find that these acts were within the apparent scope of his authority, or within the scope of the authority which he was accustomed to exercise without objection by these de- fendants, your verdict should be for the plaintiff; but if you find that borrowing this money in the way testified to and giving this paper was not within the authority expressly given to him, or within the apparent scope of the authority which he was accustomed to exercise, then your verdict should be for the defendants, and if you find that this money bor- rowed, or received for the paper in suit, was not for the use of the defendants, and the plaintiff knew or had good cause to know the fact, or if for any other reason the plain- tiff did not in good faith trust the credit of the defendants, then your verdict should be for the defendants.* Validity of instminent signed by another at grantor's request. (1177) The court instructs the jury that under the laws of it is not necessary in order for husband and wife to make a valid mortgage, that they or either of them should actually sign their names with their own hands, but if they appear before a proper officer and acknowledge the 1 Approved in Rowland v. Apothecaries' Hall Co., 47 Conn. 384. (500) Ch. 59] EXECUTION OF INSTRUMENTS. [1180 execution as the law provides and the ofiBcer attaches his cer- tificate as the law provides, then this is sufBcient, so far as the signing of the names to a mortgage is concerned.^ (1178) The court instructs the jury that if they find from the evidence that the certificate is true, then they will find for the plaintiff, and it can make no difference whether J. M. and R. M. actually did or did not sign their names to the mortgage with their own hands.* Authority to sign promissory note. (1179) The court instructs the jury that even if they should believe from the evidence in this case that defendant A and defendant B had money in bank standing to the credit of one of them, and that each had authority from the other to check in the other's name on such money, it does not fol- low from this fact alone that B gave to A authority to sign B's name to promissory notes, and the court instructs the jury that should they believe from the evidence that B had signed several notes for A as security, B signing his own name to such notes, this fact alone does not show authority in A to sign B's name to other notes.* Proof of handwriting. (1180) The court instructs the jury that, although a wit- ness may swear that he has seen the defendant write, yet this is not proof of the execution of an instrument of writ- ing, purporting to be executed by the defendant, unless the witness is able to distinguish the signature to said instrument as that of the defendant, according to the belief of the wit- ness, founded on his previous knowledge of the handwriting of the defendant." « MeClendon v. Equitable Mortg. Co., 122 Ala, 384. " Approved in MeClendon v. Equitable Mortg. Co., 122 Ala. 384. It is to be borne in mind that the threis foregoing iustructloiui are applicable to the laws of Alabama. ( * Hefner v. Palmer, 67 111. 161. e Putnam v. Wadley, 40 111. 346. (501) 1181] EXECUTION OP INSTRUMENTS. [Ch. 59 (1181) The court instructs the jury that the proof of the signature of the defendant to the note in question, cannot be made by comparison with other signatures, but the bur- den of proof of his handwriting must be made by witnesses who have seen defendant write, and are familiar with his signature, or who have seen letters or documents which the defendant had, in the course of business, recognized or ad- mitted to be his own handwriting.* Knowledge of contents by signer. (1182) The court instructs the jury that it is no defense to this note that the defendant when he signed the same did not understand the legal effect of signing it as he did or that he supposed his liability would be that of an indorser merely. His mistake of law, if there was such a mistake, would be no defenseJ CHAPTER IX. EXEMPTIONS. Waiver of exemption, 1183-1185. Farm animals, 1186. Waiver of exemption. (1183) The court instructs the jury that a. man may waive an exemption privilege by words, he may do it by acts, he may do it by words and acts both, or he may so conduct himself at the time that by his acts he may give the attaching officer to understand that he does not claim any privilege of exemption, but rather assents that the prop- erty may be attached.'' (1184) The court instructs the jury that if you believe from the evidence that plaintiff said to the attaching officer, • Approved in Putnam v. Wadley, 40 111. 346. ' Cook V. Brown, 62 Mich. 473. 1 Fogg V. Littlefield, 68 Me. 52. (502) Ch. 60] FACTORS. [H86 "There all that property in that yard, comprising these oxen and those eows are mine, and you can take the oxen or any of the rest of them you see fit," there will be a consent amount- ing to a waiver, but if you believe from the evidence that what plaintiff said to the officer was, "You perform your duty according to law and I will attend to my business," you are warranted in the conclusion that there was not a waiver of plaintiff's exemption rights." (1185) The court instructs the jury that the exemption of a pair of cattle is a personal privilege to the owner and the owner has a right to waive it if he sees fit. He may voluntarily waive his privilege of exemption and give an express consent that the ofiicer may attach the exempt prop- erty and sell it for his debt, and evidence sufficient to estab- lish that fact is introduced where the jury is satisfied that that was the intention of the parties at the time.' Farm animals. (1186) The court instructs the jury that you may with- out positive evidence infer that the horse levied upon was a plow horse, and if you believe from the evidence before you that he was adapted to this business that is sufficient without showing that he was so used.* CHAPTER LXI. FACTORS.i Creation of agency, 1187. Good faith to principal, 1188. Same — Adverse interest, 1189. Keeping principal informed, 1190. 3 Fogg T. Littlefleld, 68 Me. 52. « Fogg v. Littlefleld, 68 Me. 52. * Approved In Matthews v. Redwine, 26 Miss. 99. 1 See, also, "Agency," "Brokers," for forms on more general or analogous principles of law. (50.3) 2^]^87]' FACTORS. [Ch. 61 Notice of authority to purchaser, 1191. Duty in selling— Errors of judgment, 1192. Same — As to time of sale, 1193. Same — Cash or credit sales, 1194, 1195. Same — ^Usage of trade, 1196. Eeshipment and forwarding, 1197. Warranties, 1198, 1199. Fidelity to instructions, 1200. 'Same — Instructions vague or uncertain, 1201, 1202. Same — Time, terms, or manner of sale, 1203-1205. Same — Excuse for not following, 1206, 1207. Power to pledge, 1208, 1209. Receiving payment, 1210. Liability of factor to shipper for price, 1211. Reimbursement of factor, 1212. Same — Sale to repay advances, etc., 1213, 1214. Sale In violation of Instructions to repay advances, etc. — In- struction given before or at time of consignment, 1215. Same — Those given after consignment or advances made, 1216. Lien, 1217-1220. Same — On proceeds, 1221. Same — What secured, 1222. Set-off, 1223, 1224. Damages, 1225. Creation of agency. (1187) The court charges that in order to constitute de- fendant a factor or commission merchant for the plaintiff, it is necessary 'or you to find that there was both an ap- pointment as commission merchant by the plaintiff and an acceptance of such appointment by defendant; but the jury may find that such appointment and acceptance were made if they find facts from which an appointment and its accept- ance may be inferred, and if you find that (here state facts from which the inference arises, as, defendant's sole business was to sell goods as a commission merchant and that plain- tiff shipped to him goods of the kind which defendant was accustomed to sell and that the goods so sent were sold by defendant), then the jury may find that defendant assumed the relation of a factor to plaintiff.* 2 Dow8 V. McCleary, 14 111. App. 137. Delegation of authority, see post, 1197, "Reshipment." (504) Ch. 61] FACTORS. [1190 Good faith to principal. (1188) You are instructed that it is tlie duty of a com- mission merchant wlio undertakes to sell goods consigned to him to exercise toward his principal who consigns such goods, good faith in all his dealings.' Same — Adverse interest. (1189) If you find from the evidence that defendant so conducted the sale in question as to make a profit to himself out of the bargain, or if he sold so as to obtain a persona] interest in the property, it is a departure from the duty of the defendant towards plaintiff for which defendant will be held liable.* Keeping principal informed. (1190) The court instructs the jury that a commission merchant who undertakes to sell goods consigned to him is under the duty of keeping the consignor advised of all facts and circumstances materially affecting the gooda consigned or their sale, which facts may make it necessary for him to give instructions to the commission merchant or to take measures to safeguard such consignor's interests, and if the jury find as a fact that circumstances did arise which affected the plaintiff's interests, and that defendant did not inform plaintiff when he reasonably might have done so, defendant will be liable for any loss which has resulted from failure to give such information.® » Evans V. Potter, 2 Gall. (U. S.) 13; Babcock v. Orbison, 25 Ind. 75. * Hammond v. Olmstead, 10 Fed. 223; Thayer v. Hoffman, 53 Kan. 723; KeigMer v. Savage Mfg. Co., 12 Md. 383. 6 Forrestier v. Boardman, 1 Story (U. S.) 43, where a purchaser on credit subsequently became insolvent; Harvey v. Turner, 4 Rawle (Pa.) 223, -where the factor omitted to notify the principal that a note given for the price of the goods was not met at maturity; Spruill v. Davenport, 116 N. C. 34, where the factor was unable to sell as Instructed; Given v. Lemolne, 35 Mo. 119, where a factor au- thorized to sell at discretion was held obliged to furnish information of the state of the market. (505) 1191] FACTORS. [Ch. 61 Notice of authority to purchaser. (1191) You are instructed that if you find that plain- tiff at the time he bought the goods of defendant had no other reason to suppose that defendant was acting for an- other than the mere knowledge that defendant's business was that of a commission merchant then you will find for the plaintiff.* Duty in selling — Errors of judgment. (1192) The court instructs the jury that although they may find from the evidence that defendant sold the plain- tiff's goods at a time when the market price was advancing, and although the jury find that by waiting a larger price might have been obtained, yet defendant is not liable if the jury find as a fact that in selling when he did, defendant was acting in good faith and without negligence was exer- cising the best of his judgment.'' Same — As to time of sale. (1193) The court instructs the jury that in the absence of any instructions from plaintiff to defendant as" to the time of sale, defendant should sell the goods within a reasonable time, exercising a sound discretion, and defendant is not lia- ble unless the jury find as a fact that the sale in question was (unreasonably delayed).^ Bliss V. Bliss, 7 Bosw. (N. Y.) 399; Hogan v. Shorb, 24 Wend. (N. Y.) 458. 7 Jarvis v. Hoyt, 2 Hun, 637. See, also, Ward v. Bledsow, 32 Tex. 251, where the sale was at the bottom of a fluctuating market, and Lockett V. Baxter, 3 Wash. Terr. 350, where there was a failure to sell upon a falling market. sFelld V. Parrington, 10 Wall. (U. S.) 141. If the loss was from prematurely selling when a better price could have been obtained by holding instead of the parenthetical words say (prematurely made by defendant, and that in making it he failed to exercise discretion or judgment in not foreseeing that a higher price could have boen obtained by holding). (506) iCh. 61] FACTORS. [1190 Same — Cash or credit sales. (1194) The court instructs tlie jury that defendant in selling the goods of plaintiff upon credit was bound to use- reasonable care and diligence to ascertain the financial re- sponsibility of the purchasers, and if the jury finds as a fact that defendant did make reasonable inquiries and use rea- sonable diligence to ascertain whether the parties were re- sponsible persons, and did not give credit to any purchasers who were of doubtful responsibility, or who were apparently insolvent, the loss, if you find there was any loss resulting from sales to irresponsible or insolvent persons, will fall upon the plaintiff.® (1195) It is the law that unless instructed to the contrary by the shipper or unless there is a usage or custom of the trade requiring cash sales, a commission merchant is authorized to sell goods upon a reasonable credit, and unless you find from the facts that such a usage did not exist or that an under- standing existed or instructions were given to sell only for cash, then defendant is not liable for a sale on a reasonable credit." Same — Usage of trade. (1196) The court instructs the jury that if they find from the facts that at the time of receiving and selling the goods in question there was at the place where defendant did bus- oBurrill v. Phillips, 1 Gall. (U. S.) 360; Durant v. Fish, 40 Iowa, B59; Foster v. Waller, 75 111. 464, where It was held that a "high" degree of diligence was necessary where credit sales were made on the board of trade. 10 Joslin v. Cowee, 52 N. Y. 90. In this case the factor was in- duced to sell to an insolvent purchaser by fraud, which he did not discover in time to protect the consignor, and it became impossible to follow the goods. In a few states it is held that no authority to sell on credit exists unless the usage of the place permits. See Baboock v. Orbison, 25 Ind. 75; Durant v. Fish, 40 Iowa, 559; Furth v. Miller, 67 Mo. App. 241; James v. McCredle, 1 Bay (S. C.) 294; Harbert v. Neill, 49 Tex. 143. (507) 1197] FACTORS. [Ch. 61 iness an established usage or custom in the trade to (here state what the usage was), then a sale by defendant according to such usage is a proper performance of his duty, for the conse- quences of which sale he is not liable.** Reshipment and forwarding. (1197) The court instructs the jury that if you find that defendant did not sell the goods but reshipped them to an- other market to be there sold, he will be liable to plaintiff for any loss thereby resulting, unless defendant was express- ly authorized by plaintiff to make such reshipment.*^ Warranties. (1198) The court instructs the jury that (A. B., the fac- tor) in Selling these goods for (defendant, the owner) had authority to warrant the condition and quality of the goods at the time of sale and could thereby bind (defendant, the owner),** unless you find that according to usage of the (state what trade, as the cotton trade) a warranty does not ordinarily accompany a sale.** (1199) The court instructs the jury that although a com- mission merchant has an implied authority to warrant the present condition and quality of the goods sold by him, yet he cannot bind the owner by warranties respecting future events, and if you find that as a part of the sale the factor warranted that (state what the warranty was, e. g. the flour would not spoil during the voyage) then defendant (the seller of the goods) is not bound to the plaintiff (purchaser).*^ " Phillips V. Moore. 69 111. 155; Hopgood v. Batcheller, 4 Mete. (Mass.) 577; Cotton v. Hiller, 52 Miss. 7; Burke v. Prye, 44 Neb. 223; McConnlco v. Curzen, 2 Call (Va.) 358, 1 Am. Dec. 540. laPhy V. Clark, 35 111. 377; Wootters v. Kauffman, 73 Tex. 395; Pugh V. Porter Bros. Co., 118 Cal. 628; Burke v. Prye, 44 Neb. 223. 13 Schuchardt v. Aliens, 1 Wall. (U. S.) 359. 1* Pickert v. Marston, 68 Wis. 465, 60 Am. Rep. 877. i» Upton V. Suffolk County Mills, 11 Cush. (Mass.) 586, 59 Am. Dec. 163. (508) Ch. 61] FACTORS. [1202 Fidelity to instructions. (1200) The court instructs the jury that if they find from the evidence that plaintiff instructed defendant to (here state what were the instructions given) it was the duty of defend- ant to faithfully follow out such instructions, and if the jury find that defendant did not follow them, but (here state the particular in which it is alleged that the instructions were departed from) then defendant will be liable for all losses caused by such departure.''* Same — Instructions vague or uncertain. (1201) The court instructs the jury that an instruction given by one who consigns goods to a commission merchant for sale must in order to bind the commission merchant be express and positive, and if the jury find from the evidence that statements were made by plaintiff to defendant respect- ing the manner or mode of sale or its terms, and that such statements were not directions but were mere expectations or wishes, then defendant will not be liable for departing from them.^'' (1202) The court instructs the jury that the directions given by one who consigns goods to a commission merchant to be sold must in order to bind the commission merchant be unambiguous and certain in meaning, and if you find from the evidence that directions as to the manner, mode and terms of sale were given, but that such directions were not couched in clear and understandable language, the loss which is en- tailed through inability of the defendant to follow such in- structions must fall upon the plaintiff who gave them.'* "Dunbar v. Miller, 1 Brock. (U. S.) 85; Jones v. Marks, 40 111. 313; Leveriok v. Meads, 1 Cow. (N. Y.) 645. " Jarvis v. Hoyt, 2 Hun (N. Y.) 637; Harper v. Kearm, 11 Serg. 6 R. (Pa.) 280. isCourcier r. Rltter, 4 Wash. (U. S.) 549; Mann v. Lains, 117 Mass. 293; Jarvis v. Hoyt, 2 Hun (N. Y.) 637. This instruction should be followed if necessary by instructions telling the jury whether particular directions are, as a matter oi (509) 1203] FACTORS. [Ch. 61 Same — Time, tenns, or manner of sale. (1203) The court instructs the jury that if they find from the evidence that directions were given by plaintiff to defend- ant, fixing the time at which sale should be made, then for failure to sell at that time defendant will be liable for any loss which has resulted.-^* (1204) The court instructs the jury that a commission merchant who is directed to sell for cash must actually re- ceive the payment at the time the goods are delivered, and if the jury find that a sale was made by defendant to be paid for in days, the defendant will be liable for any loss thereby resulting unless the jury also find from the evidence that it was the common usage of defendant's trade in his vicinity to make delivery in cash sales without immediately receiving payment.^" (1205) You are instructed that if you find that defend- ant sold in violation of plaintiff's instructions and if you find that by refraining from so selling defendant would have been enabled to sell at a higher price plaintiff may recover an amount equal to the difference between the price obtained and the highest market price which the goods would have commanded at any time between the time of sale and a rea- sonable time thereafter within which plaintiff might have brought action.*^ law, ambiguous; for Instance It was held that an instruction to sell on arrival was not ambiguous. Evans v. Route, 7 N. Y. 186. "Courcler v. Ritter, 4 Wash. (U. S.) 549: Pulsifler v. Shepard, 36 III. 513; Johnson v. Wade, 2 Baxt. (Tenn.) 480. If necessary an instruction should be added requiring the jury to find that the departure from the instructions was the proximate cause of the loss. See Lehman v. Pritchard, 84 Ala. 512. 20 Bliss V. Arnold, 8 Vt. 252; Clark v. Van Northwick, 1 Pick, (Mass.) 343. It has also been held that receiving a check in payment Is a vio- lation of an instruction to sell for cash. Hall v. Stores, 7 Wis. 253. 21 Whelan v. Lynch, 60 N. Y. 469, 19 Am. Rep. 202; Baker v. Drake, 53 N. Y. 211, 13 Am. Rep. 507, 66 N. Y. 518. (510) Ch. 61] KACTORS. [120S Same — Excuse for not following. (1206) The court instructs the jury that although it be proven that defendant did not follow the instructions given him by plaintiff as to the mode, manner and terms of sale, yet if the jury find from the evidence that the instructions were not followed by reason of defendant's inability to do so, using all reasonable diligence, then defendant is not liable for his failure to sell as directed ;^^ but defendant's inability to comply with the instructions, if you find such to be the fact, will not excuse him from the conseqtiences of a depart- ure from the directions given by plaintiff.^* (1207) The court instructs the jury that a failure to sell in the manner directed by plaintiff would be excused by a sudden emergency or necessity, or other unexpected event, requiring a deviation from the directions given, and if the jury find as a fact that plaintiff instructed defendant to (here state what directions were given, as to the mode of sale or as to other matters), and if they find that (here state what emergency or other cause required the deviation) then de- fendant is not liable to plaintiff for failing to follow the di- rections given.** Power to pledge. (1208) The court instructs the jury that a commission merchant has no general authority to pledge property con- signed to him, but the authority lo pledge may be implied when it is necessary to effect the selling of the goods, and if you find from the facts that the pledge in question was made to (state for what purpose, as, raise money wherewith 22 Evans v. Route, 7 N. Y. 186, where It was impossible to sell tha goods upon arrival as directed. 23 Pomeroy v. Sigerson, 22 Mo. 477. 2* Frothingham v. Bverton, 12 N. H. 239, where the goods were per- ishable; Dusar v. Perit, 4 Bin. (Pa.) 361, where by accident a ves- sel was obliged to unload before she reached the port at which sale was to be made. (511) 1209] FACTORS. [Ch. 61 to discharge customs duties for which the goods in question ■were at the time held) then for so pledging defendant sus- tains no liability to plaintiff.^"* (1209) (In place of the enclosed words may be substituted "raise money wherewith to meet drafts drawn by the plain- tiff")-** Eeceiving^ payment. (1210) The court instructs the jury that as an incident to the ordinary power of the factor to sell goods, he may re- ceive payment from the purchaser, and it makes no difference whether the sale was for cash or upon credit.^^ Liability of factor to shipper for price. (1211) The court instructs the jury that if they believe, from the evidence, that defendant, E.., as the commission merchant of plaintiffs, received, on account of the grain in question shipped to him, as mentioned in the foregoing in- struction, the money arising from the proceeds of the sale of such grain, or a check as money, of his own volition, which he had not paid over to plaintiffs, on demand made before commencement of this suit, then the jury should find for the plaintiffs.^* Reimbursement of factor. (1212) The court instructs the jury that if they find from the evidence that defendant expended his own money for the purpose of (here state what was the object of the ex- penditure by the factor) and if the jury find that such ex- penditure was necessary to protect the plaintiff's interests or to properly effect a sale of the goods, then plaintiff mtist answer to defendant for the amount of money which you find to have been so expended.^® 20 Evans v. Potter, 2 Gall. 13. s« Citizens' State Bank v. Abbott, 80 Iowa, 646. 3T Adams v. Fraser, 82 Fed. 211. 88 Approved In Reichwald v. Gaylord, 73 111. 503. 20 Brander v. Lund, 11 La. Ann. 217 (purchase of cotton); Brown (512) Ch. 61] FACTORS. [1214 Same — Sale to repay advances, etc. (1213) The court instructs the jury that if the jury find from the evidence that goods were consigned by the defend- ants, J. E. & Co., to the garnishees, W., B. & Co., on which the said W., B. & Co. had made advancements prior to the issuing and service of the attachment in this case and that also prior thereto the said W., B. & Co., had accepted an order drawn by the said J. E. & Co., in favor of a certain D. W. S., and shall further find that the said goods were sold by the said W., B. & Co., and there remained no balance on the sales thereof in their hands after reimbursing them- selves for their advancements and deducting proper char- ges and commissions for the said sales, and the discharge of the order before mentioned, then, that the plaintiff is not entitled to recover, provided the said garnishees used reason- able skill and ordinary diligence in effecting the sales of said goods and sold the same at the dates shown by the accounts offered in evidence by the garnishees and for the best rates then obtainable for said goods in the market.^" (1214) The court instructs the jury that if the jury find from the evidence that the goods were consigned by the de- fendants J. E. & Co., to the garnishees, W., B. & Co., on which the said W., B. & Co. had made advancements prior to the issuing and service of the attachment in this case, and also prior thereto, the said W., B. & Co., had accepted an order drawn by the said J. R. & Co., in favor of a certain D. W. S., offered in evidence by the garnishees and shall further find that the said goods were sold by the said W., B. & Co., and that neither at the time of serving such attach- ment nor since did there remain any balance in their hands upon said sales after the reimbursement of themselves for their advancements, and deducting the proper charges and V. Clayton, 12 G-a. 564 (expenses of sale and of fitting damaged goods for market). 30 Approved In Whitney v. Wyman, 24 Md. 131. (513) Instr. Juries — 33. 1215] FACTORS. • [Ch. 61 commissions and the discharge of the order before men- tioned, then the plaintiff is not entitled to recover.'^ Sale in violation of instructions to repay advances, etc. — ^In- struction given before or at time of consignment. (1215) The court instructs the jury that the fact that de- fendant had made advances of money to the plaintiff upon the security of the goods in question gave defendant no au- thority to sell such goods in violation of directions given by plaintiff as to the manner, mode or terms of sale, provided you find from the facts that such directions were given at the time when the consignment was made to defendant or were given before the time when the advancements were made.*^ Same — Those given after consignment or advances made. (1216) The court instructs the jury that if they find from the evidence that plaintiff did instruct defendant as to the manner, mode and terms of sale, but that such instructions were not given to the defendant at the time when the goods were consigned to him, and were not given until after de- fendant had advanced money to the plaintiff or for the plain- tiff's benefit, on the security of the goods consigned, then de- fendant had the right to sell such goods for the purpose of reimbursing himself for the amount advanced, even though in so selling he followed the instructions given him by the plaintiff.^s Lien. (1217) The court instructs the jury that a person who as a commission merchant receives goods from another to be SI Approved in Whitney v. Wyman, 24 Md. 131. 32Loraine v. Cartwright, 3 "Wash. (U. S.) 357; Bell v. Paulner, 6 Cow. 128. 33 Howard v. Smith, 56 Mo. 314, where the consignor subsequently fixed a minimum price; Weed v. Adams, 37 Conn. 381, where there was a rising market and an immediate sale would not have satisfied the advances and charges of the factor. (514) Ch. 61] . FACTORS. [1220 sold has a right to retain the possession of such goods as a security for all commissions, advances and expenditures incident to the sale of such goods, and if the jury find as a fact that commissions were earned by the defendant, or that the advances or expenditures were made by him for the plain- tiff's benefit, then defendant is not liable for refusing to surrender possession of the goods upon the plaintiff's de- mand until plaintiff should pay or satisfy such commissions and charges.^* (1218) The court charges you that in order that (defend- ant, the factor), may establish his right as a commission merchant to hold the goods (or money) in question as secur- ity for (repayment of moneys advanced to plaintiff) it is necessary for you to find from the evidence that defendant was and is in possession of (those goods). ^^ (1219) (If the validity of the factor's possession is in is- sue add to the foregoing this) : And you must also find that defendant came into possession after (here state any con- dition, as, paying a draft drawn against the goods if you find as a fact that it was intended that defendant should pay the draft before acquiring any right to the goods ).^^ (1220) (If constructive possession is involved in issues, add this) : It is not necessary, however, for the jury to find that (defendant) was personally in possession or that he was physically in possession. It is sufficient if from the evidence you find that (here state what constructive possession was re- lied on, as, defendant's agent held possession of the goods). ^'^ s^Sewell V. Nichols, 34 Me. 582; Brown v. Clayton, 12 Ga. 564 j> Winne v. Hammond, 37 111. 99. 35 Warren v. Columbus First Nat. Bank, 149 111. 9, where goods were sent direct to 'customers by the consignor; Hodges v. Kimball, 49 Iowa, 577, where goods were seized by third persons before they had left the consignor's possession. so Winter v. Coit, 7 N. Y. 288, 57 Am. Dec. 522; Rochester Bank v. .Tones, 4 N. Y. 497, 55 Am. Dec. 290. ■■>- Bun-US V. Kyle, 56 Ga. 24. (515) [221] FACTORS. {_Ch, 61 Same — On proceeds. (1221) The court instructs the jury that it is the right of a commission merchant who has sold goods consigned to him to retain the proceeds of such goods or the evidences of indebtedness given for the purchase price of the goods until the person consigning such goods shall reimburse the com- mission merchant for all advances or expenditures properly made and for such commissions as shall have been earned.^* Same — ^What secured. (1222) The court instructs the jury that a commission merchant may retain possession of the goods or proceeds thereof not only to secure commissions, advances and ex- penditures relating to the sale of the goods in question, but also to secure a general balance due to the commission mer- chant on account running between him and the consignor.** Set-off. (1223) The court instructs you that if you find that plain- tiff sold the goods in question as a commission merchant and that the goods were the property of (A. B., the owner) and that at that time, or subsequently but before (the day of , , state the day when action was brought J A. B. was indebted to defendant in a sum then due equal to or greater than the purchase price of the goods plaintiff cannot recover.** (1224) If the factor claims a lien, conclude thus: Plain- tiff can recover only so much as equals the amount which you find was advanced by him to A. B. together with nec- essary expenditures on A. B.'s behalf and the amount of commissions earned by plaintiff. 88 Bradley v. Richardson, 2 Blatchf. 343; Vail v. Durant, 7 Allen (Mass.) 408; Chappel v. Cady, 10 Wis. 111. 89 Chapman v. Kent, 3 Duer (N. Y.) 334; Brlce v. Brooks, 26 Wend. (N. Y.) 374, where It was held that there need not have been a gen- eral agency. 40 McCobb V. Lindsay, 2 Cranch, C. C. 215. (516) Ch. 62] FALSE IMPRiSONiMENT. [1227 Damages. (1225) You are instructed that if you find that defend- ant without authority (reshippcd the goods to another mar- ket plaintiff may recover an amount equal to the difference between the market price where sale was to be made and the price actually obtained).*^ CHAPTER IXII. FALSE IMPRISONMENT. LSability of officer, 1226, 1227. Liability of individual for acts of officer, 1228. Joint liability for illegal arrest, 1229, 1230. Liability of police commissioners for ordering arrest of one for wearing badge contrary to rules, 1231, 1232. Inference of improper motives, 1233. Liability of officer. (1226) The court instructs the jury that if defendant, being then the sheriff of county, without having in his hand any warrant for the arrest of plaintiff, arrested him and put him in the custody of his jailor, with instruc- tions to take him to jail, and if afterwards, and after said jailor had released the prisoner, under a suggestion that there was no capias, nor offense committed in the sheriff's presence, defendant, in an insulting and unlawful manner, again, without any capias, arrested plaintiff and maltreated him, then find for plaintiff, and assess such a sum, by way of and for damages, as you deem adequate and proper, con- sidering the nature of the facts proved.^ (1227) The court instructs the jury that drunkenness of the officer is no excuse, but may be received by the jury as an aggravation; but the jury will consider the whole facts, and «i Comer v. Way, 107 Ala. 300. » Approved in Hall v. O'Malley, 49 Tex. 70. 517 1228] FALSE IMPRISONMENT. [Ch. 2 from them find such damages as you deem adequate and proper.* Liability of individual for acts of officer. (1228) The court instructs the jury that if they believe J>rom the evidence that defendant merely stated facts to the policeman, without wishing an arrest to be made, he is not liable for the action of the policeman in making the arrest complained of in this suit or for the imprisonment of the plaintiff, and the jury should find for the defendant.* Joint liability for illegal arrest. (1229) The court instructs the jury that if the jury be- lieve, from the evidence, that the plaintiff has not committed any offense alleged in the defendants' pleas, and that both of the defendants concurred in laying hands on him and ar- resting him, then the jury are instructed that they should find both the defendants guilty, and assess the plaintiff's damages.* (1230) The court instructs the jury that if they believe from the evidence and under the instructions herewith given, that the defendants, H. and M., were both engaged in the common purpose of unlawfully arresting the plaintiff, and that H. had laid hold of the plaintiff, and that M. immedi- ately afterwards, in pursuance of said common purpose of unlawfully arresting said plaintiff, struck said plaintiff with a club, and that said striking was done in the presence of H., and that H. did not try to prevent the same, but, on the con- trary thereof, adopted and approved said act of M. in strik- ing said plaintiff, then the jury are instructed that said H. is as responsible in this action for said striking as is M.° 2 Hall v. O'Malley, 49 Tex. 70. 8 Reno V. Wilson, 49 111. 95. * Approved In Mullin v. Spangenberg, 112 111. 140. 5 Approved In Mullin v. Spangenberg, 112 111. 140. (518) Cb. (.3 1 FENCES. [1234 Liability of police commissioners for ordering arrest of one for wearing badge contrary to rules. (1231) The court instructs the jury that the defendants acting as a board of police commissioners, or a majority thereof, had no right to order the arrest of the plaintiff for publicly wearing the uniform and badge prescribed by said board for the police force.® (1232) The court further instructs the jury that if they shall believe from the evidence that the defendants, whether acting as the board of police commissioners or as individuals did issue an order for the arrest of the plaintiff for so wear- ing such uniform, and that because of such order, so issued, the said plaintiff was arrested and imprisoned, then they must find for the plaintiff.'' Inference of improper motives. (1233) The court further instructs the jury that an im- proper motive may be inferred from a wrongful act based upon no reasonable ground; and that such improper motive constitutes malice in law. And to constitute such malice it is not necessary that such wrongful act should be prompted by anger, malevolence, or vindictiveness ; but such inference of malice may be removed by the evidence in the case.^ CHAPTER LXIII. FENCES. Right to remove boundary fences, 1234. Adjudication by fence viewers of expenses of rebuilding fence, 1235-1237. Criminal prosecution for injuries to fence, 1238, 1239. Right to remove boundary fences. (1234) The court instructs the jury that the main ques- « Bolton V. Vellines, 94 Va. 393. 1 Bolton V. Vellines, 94 Va. 393. « Bolton V. Vellines, 94 Va. 393. (519) 1235] FENCES. [Ch. 63 tion is where the line between the parties ran and upon whose side of it was the alleged trespass committed. If the fence was on the defendant's side of the line, he had a right to move it and do what he pleased with it ; but if upon the plaintiff's side he had not the right to interfere with it. If, however, the jury should find from the evidence in the case that the fence was made and kept up jointly by the defendant and the plaintiff, or those under whom they claimed, immediately upon the line between them, then the defendant has the right to remove his portion of it, upon giving to the plaintiffs reasonable notice of his intention to do so.'' Adjudication by fence viewers of expenses of rebuilding fence. (1235) The court instructs the jury that it was not nec- essary that the adjudication of the fence viewers, as to the sufficiency of the fence as rebuilt, should have been reduced to writing.^ (1236) The court instructs the jury that it was not nec- essary to entitle the plaintiff to recover that the certificate of the fence viewers, of the value of the fence, or a copy thereof, should have been served upon the defendant, or presented to him, before, or at the time of, demand of the sum cer- tified.* (1237) The court instructs the jury that it was not nec- essary that the notice of the fence viewers to plaintiff and defendant, of the time they would examine the fence, should have been given for any definite time or number of days be- fore such examination. The law required due notice to be given. By the term due notice, is meant reasonable notice; and the notice to the defendant was due and reasonable, if after the notice was given he had a reasonable time to go from the place where it was served and be at the examination of the fence at the time specified in the notice.* 1 Approved in Glowers v. Sawyers, 38 Tenn. 156. ■'■ Approved In Tubbs v. Ogden, 46 Iowa, 134. 3 Approved in Tubbs v. Ogden, 46 Iowa, 134. (520) Ch. 63], FENCES. [1239 Criminal prosecution for injuries to fence. (1238) The court instructs the jury that if W. told the defendant, J., to move his fence back off his (W.'s) land, and in so moving the fence it became necessary to withdraw his fence from the fence of said W., such a tearing loose and withdrawing would not be unlawful, and for so doing de- fendant would be guilty of no offense. And you are also in- structed that every entry upon the land of another without lawful authority is a trespass. If you should find that W. constructed any part of his fence upon the land of defendant without his consent, he would be a trespasser upon defend- ant's land, and defendant would have the right to remove so much of W.'s fence as was constructed upon the land of de- fendant, provided he, in doing so, provoked no breach of the peace.' (1239) The court instructs the jury that if you believe from the evidence of the witnesses that had leased the farm of W. for the year 19 — , that he was for the time owner of said premises, and had the right to use the premises for his own convenience so that he did not use them to the in- jury of another, and in the use of the same he had a right to open the fence for his own convenience, and if you believe from the evidence that defendant cut the fence of W. for his own convenience, and not maliciously for the purpose of in- juring W., you will acquit. If you have a reasonable doubt as to defendant's guilt you will acquit.® • Approved in Tubbs v. Ogden, 46 Iowa, 134. This and the two preceding Instructions are based on a local statute. • Approved In Jones v. State (Tex. Cr. App.) 20 S. W. 926, • Approved in White v. State, 27 Tex. App. 638. (521) 1240J FIDELITY BONDS. [Ch. 64 CHAPTER LXIV. FIDELITY BONDS. Liability on bond of town treasurer, 1240. Liability of sureties dependent on whether loss occurred while oflScer acting without scope of his employment, 1241-1243. liability on bond of county treasurer. (1240) The court instructs the jury that township treas- urers under the laws of this state are puhlic officers, ap- pointed by the board of trustees in their respective town- ships; that such treasurers, after they are so appointed and qualified, are the legal custodians of all books, papers, notes, due bills, mortgages, moneys and all other evidences of in- debtedness to the townships, of which they are treasurers, subject to the control of the board of township trustees ; that such treasurers are bound by law to make full and complete reports and exhibits of all books, papers, notes and other evidences of indebtedness, to said board of township trus- tees, for their inspection, and that the treasurer is at aU times subject to removal by said board for any failure on his part to perform any of the duties required of him by law or by the by-laws, resolutions, orders or instructions of the said board ; that while the treasurer is the custodian of such funds and securities, the township trustees are the guardians of the same, and at all times have the legal authority to control and manage the same, and if the jury believe from the evidence that the defendant (acting under the orders and req^nsitions of the township trustees entered upon the rec- ords, and signed by their president and clerk, made misap- plication or misuse of such funds of the township on behalf of whom the plaiiitiiT has brought this suit for the alleged misapplicaticns, then the jury are instructed that the trus- tees of such township and plaintiff in this suit, arc personally (522) Ch. 64] FIDELITY BONDS. [1342 liable for the misapplication of such funds, and that under such circumstances defendant would not be liable.* Liability of sureties dependent on whether loss occurred while officer acting without scope of his employment. (1241) The court instructs the jury that defendant con- tends that the loss in this case is not covered by the bond. It is said that section 7 of the by-laws does not provide that the general manager shall receive or handle money, and it is also claimed, and is a fact, that there is another by-law which prescribes the duties of the treasurer in reference to receiving money. It says: "It shall be the duty of the treasurer to receive all moneys due the association and to keep an account of the same," with some other duties, and on that it is contended on behalf of the defendant that the loss that occurred here, occurred not in connection with the duties of the general manager; that they did not agree to be responsible for the dishonesty of the general manager out- side of his duties as general manager, and it is claimed that those are defined in this section 7 of article 2 of the by-laws.^ (1242) You will have to determine the question as to whether the loss in this case is, or is not, in whole or in part, covered by this contract ; for while it is the duty of the court to construe written contracts, yet in this case the language is so general, and by its very terms, is in such a way made to depend upon statements outside of itself, that the court can- not determine the question whether the loss that occurred in this case is covered by this contract or not. The court can construe the meaning of the terms of the contract but it is for the jury in this case to apply the subject-matter of the controversy here and determine whether it is covered by 1 Approved in Board of Trustees of Township 13 S., R. 3 W., v. Misenheimer, 78 111. 22. z Approved in Harrisburg Savings & Loan Ass'n v. United States Fidelity & Guaranty Co., 197 Pa. 177. (523) 1343] FIDELITY BONDS. [Ch. 65 the contract or not, and you will have to determine that from all the facts in this case that bear upon this question.' (1243) The court instructs the jury that you will have to determine whether, and in connection with all the other evi- dence heard, the loss that has been shown to have occurred here, is covered by this contract or not; whether the parties were contracting in the first place about the loss of money at all; whether there is anything in section 7 of article 2, de- fining the duties of the general manager about the handling of money, whether the defendant was relying upon that as specifying and including all the duties of the general man- ager, or whether these statements contained in this, as to the way in which the money was handled, etc., whether that was notice to them that the plaintiffs understood, and whether it was notice from which they are assumed to have under- stood, that they were guarantying against the handling of money, it is a matter which you have to determine.* CHAPTER IXV. FIRES. Care required, 1244. Liability of municipality for destruction of made lots by fire communicated from inflammable material in streets — Example of series of instructions, 1245-1259. Care required. (1244) The court instructs the jury that fire is an agent of exceedingly dangerous and unruly kind, and the necessi- ties of society require that in its use, care, skill and dili- gence should be used by the person using it, and to prevent injury to others by it, and the law requires of those who use s Approved in Harrisburg Savings & Loan Ass'n v. United States Fidelity & Guaranty Co., 197 Pa. 177. * Approved in Harrisburg Savings & Loan Ass'n v. United States Fidelity & Guaranty Co., 197 Pa. 177. (524) Ch. 65] FIRES. [1246 it as a propelling power, or for the purpose of generating steam, the utmost care in the use of all reasonable and prop- er means to prevent damage to the property of third per- sons, together with all such means and products as skill and science have discovered, provided its means under the cir- cumstances should reasonably have been adopted by the de- fendant.-' liability of municipality for destruction of made lots by fire communicated from inflammable material in streets — Exam- ple of series of instructions. (1245) The court instructs the jury that in this case the plaintiff seeks to recover damages from the borough of for negligently, as the plaintiff contends, destroying his lots or lot, situate on street. It seems the plaintiff is the owner of some land adjoining this new bridge, which you have viewed, some ninety-seven feet in front, separated into two parts by a forty-feet lot owned by another party. The contention of the plaintiff is that these lots were in good condition, were up level with the street, free from fire, and that the borough, acting through its officers, negligently caused fire to, be communicated to his lots or lot, and destroyed them, both by the fire and digging in the lots to prevent the fire from spreading to other property. (1246) The court instructs the jury that the gist of this action is negligence. It is contended that the borough of has been careless in the management of the streets in that neighborhood, and that it was by reason of this care- lessness that the fire was communicated to the property of the plaintiff. The land in this neighborhood was a cinder dump, according to the testimony of all the witnesses, ex- tending along the banks of the river. There had been iron mills in operation a number of years ago, and the ashes from the pii'ldling and heating furnaces were hauled out upon this > Repd V. Moise, 34 Wis, 215. (525) 1-47] FIRES. [Ch. 65 dump, and evidently considerable material containing carbon was in it. Plaintiff's lots were composed of the same mate- rial. The dump extended on eastward from his property. (1247) The court instructs the jury that the plaintiff's contention is that these lots were in good condition ; that by the negligent act of the borough ofEcers, in filling up a part of old street, they allowed ashes and garbage con- taining about everything you could name that could come from the town, to be dumped upon this street, much of it being inflammable matter ; that burning material was hauled and dumped there and covered over by a man leveling the dump, who, one of the witnesses characterized as "the bor- ough man." It is contended by the plaintiff that this was the cause, the origin of the fire, and that the borough, having knowledge of the material of which this dump was composed, and also of the road which they were making, was negligent, in the first place, in causing the fire, and in the second place, in allowing it to continue. (1248) The court instructs the jury that if you find that the borough started or caused the fire, it would be responsible for the result of it. (If you find that the borough did not start the fire, but it was carelessly and negligently allowed by it to be communicated to the property of the plaintiff, it would be responsible for that, and should respond in dam- ages to whatever amount the plaintiff has sustained.) (1249) The court instructs the jury that the first ques- tion, we apprehend, you will have to determine will be where the fire started and how. We do not propose to recite to you the testimony of the witnesses. You have heard them all, and we have been assisted by able counsel in this case all the way through; they have thoroughly discussed the matter before you, and I have no doubt rendered all the assistance in their power to have you arrive at a proper conclusion as to the origin of the fire, the plaintiff contending that it was caused by this burning material hauled out upon the dump, (526) Ch. 65] FIRES. [1250 the defendant contenamg that was not the cause of the fire at all, but that the fire had been in this dump many years, one witness going back to the fifties, another to 1879, and another placing the fire along the line of the river farther on and where the dump was made by the borough. You will have to take the testimony of all these witnesses and de- termine where it was that that fire started and how. If you find as we have said, that the fire was started by the bor- ough, then it is responsible. If it was not started by the borough, then you go a step further and ascertain whether or not the borough was careless and negligent in the handling of it. (1250) The court instructs the jury that the plaintiff contends that this fire was of small size and known to the officials, as the supervisor was about there, and that, as one witness put it, it could have been put out in a few hours' time. It is necessary for that knowledge to be brought home to the officers of the borough unless it actually, through its agents, caused the fire. If the officials had knowledge of this fire, did they act as prudent, careful men would under the circumstances? That is the rule which guides all people, borough officials and men in private sta- tion. If you seek to hold a man guilty of negligence, you must show that he has not acted as a careful, prudent man would under the circumstances, that is, an ordinarily prudent and careful man. . So you will have to take into considera- tion all the circumstances connected with the fire, the charac- ter of the material on the land, the distance from other prop- erties, and the knowledge which an ordinary man would have of putting a fire out of that kind. This was not an ordinary fire such as we have fire apparatus to combat, as buildings, but it was a subterranean fire running under the surface of the ground. It will be for you to say whether or not this borough council acted as careful, prudent men would under the circumstances, in the extinguishment of the fire. If it (527) 1251] FIRES. [Ch. 65 did, then the borough is not responsible for the spread of the fire. (1251) The court instructs the jury that the evidence on the part of the defendant is that when this fire was discov- ered in 1893 (it was discovered in N'ovember, 1892, by the plaintiff's witnesses), operations were commenced with a view to extinguish it by water; that they opened fire plugs in the town and conducted the water there by hose ; that they dug trenches and ran the water in those and used means of this kind for months; that they were unsuccessful, and the fire still continued to work its way westward, and finally came upon the plaintiff's property. (1252) The court instructs the jury that if the fire got into the plaintiff's property without any fault of the bor- ough, we should say to you that it had a perfect right to go there and remove his property, dig it out, haul it away, or do any other thing that was necessary, and that would ac- complish the object of putting out the fire and preventing its spread to neighboring properties. The evidence is that there were some twenty-one houses that were endangered by the spread of the fire direct. Besides, the smells that arose from it constituted an annoyance to the whole neighborhood and a nuisance to the town. The borough would have the right if free from fault, to go upon the property and do as it did to cut off the fire. (1253) The court instructs the jury that you understand the reason for that. Suppose in a row of houses connected together the end house should start to burn. When the fire company would come there, that is the borough acting through a fire company, it would have a perfect right to destroy the second house in order to save the balance of the row. The reason of that is plain. If it was not destroyed by tearing down, it would be by burning. There it is a matter of public necessity. The building is destroyed and the owner must suffer the loss without remedy against the borough. (528) Ch. 65] FiKES. [1256 So here plaintiff must stand this loss, if this fire was in his lot without the negligence of the borough. The great ques- tion for you to determine is, did the borough set it on fire ? Or, second, did it carelessly or negligently allow it to ap- proach his lot ? If it was through its negligence that it got into his lot, the digging of his lot away would not relieve it from responsibility for its acts. (1254) The court instructs the jury that the defendant's contention as we stated it, is that the fire did not originate as the plaintiff says ; that it had been there for years, that it originated on the lots, and was communicated from there through underneath the surface to the property of the plaintiff, and that the borough exercised all the care and diligence that a reasonably careful and prudent man would under the circumstances. Lastly the borough claims that even if the property was burned, that the plaintiff has sus- tained no damage, because his lots are now worth as much, if not more, than they were before. (1255) The court instructs the jury that if they find that the defendant is responsible for this fire and the destruction of the property, you come then to the last question in the case, what are his damages ? There is evidence on the part of plaintiff that the property was worth $2,500, and that now it is worth nothing. W. testifies it was worth $300 for a twenty-foot lot, now worth nothing. D. said it was worth $2,500, now worth nothing. K. testifies it was worth $1,500 to $2,000, now worth nothing. That is only part of the testimony in the case ; we do not pretend to cite it all ; we simply cite some of the witnesses and recall it to your memory. You will remember all that has been testified on that subject. (1256) The court instructs the jury that one of the de- fendant's witnesses stated that the property had no value before, and now it has some value, because the inflammable laaterial was off the property, burned off, and it is now safe (529) 1257] FIRES. [Ch. 65 for a man to build a house there, which it was not before. M. thought the property was worth $10 a foot, ^nd now it is worth nothing. S. thought it was worth $300, but was worth more afterwards than before the fire. He gave, we believe, as a reason, that a foundation could be secured to build upon the property. O. thought it was worth from $10 to $12 a foot. (1257) The court instructs the jury that there is evidence on the part of the defendant that this property could be re- stored to its former condition without cost to the plaintiff. That is a question you will have to determine. The plaintiff claims it could not be restored at all, and that even if it were filled up with earth from excavations of cellars, it would require years for it to settle so that a safe foundation could be erected upon it; also, that the fire is there surrounding the property oh two sides ; that therefore, it is not at all de- sirable for building purposes, and that a man would not, un- der the circumstances, erect a building upon the property. The burden in all cases rests on the plaintiff to prove to a jury that the defendant is negligent, and also to prove the amount of his damages ; in other words, when a man comes into court, he should show by the weight of the testimony that his contention is worthy of belief. (1258) The court instructs the jury that if you find the plaintiff has sustained damages and that the defendant is liable for those damages, then you must assess them, and the measure of those damages would be the cost of the res- toration of those lots by plaintiff if they can be restored, un- less that cost equals or exceeds the depreciation in the value of the property, in which event the depreciation would be the measure of damages. If the lots cannot be restored, then the depreciation or the value of the property destroyed would be the measure, and whether they can or not is a question for you to decide under all the testimony in the case. (1259) The court instructs the jury that this fire occurred (530) Ch. 66] FORMER ADJUDICATION. [1261 some years ago, and the testimony of the witnesses was neces- sarily not consistent. If you go back five or six years it ia very difficult for honest, well-meaning people to agree on dates and times for the happening of certain events. We have found that illustrated in this case. It is for you to say which of these men have told the truth. Many of them may have supposed they were telling it, but there are discrepan- cies in the testimony which it is necessary for you to recon- cile, or to determine who of them you will believe and who not. The credibility of the witnesses is always for the jury, and with that the court has nothing to do.^ CHAPTER IXVI. FORMER ADJUDICATION. In general, 1260, 1261. In general. (1260) The court instructs the jury that the judgment rendered in the circuit court of the United States in favor of and against the Insurance Company is conclusive as to the liability of the defendant in this case upon its policy of reinsurance, unless the jury, from all the evidence in the case believe, that such judgment was ob- tained by fraud, or collusion between said and said insurance company.* (1261) The court instructs the jury that fraud or collu- sion cannot be presumed, but must be proved by evidence satisfactory to the jury; and the burden of such proof is on defendant, but need not be made by direct testimony, but may be inferred by the jury from all the facts and circum- stances shown in the cause.* 2 Series approved in Grow v. Pottsville Borough, 197 Pa. 337. 1 Approved in Strong v. American Central Life Ins. Co., 4 Mo. App. 7. 2 Approved in Strong v. American Central Life Ins. Co., 4 Mo. App. 7. (531) 1262] FRATERNAL ASSOCIATIONS. [Ch. 67 CHAPTER LXVn. FRATERNAL AND MUTUAL BENEFIT ASSOCIATIONS. Concealment of facts by insured, 1262. Expulsion of member, 1263. Concealment of facts by insured. (1262) The court instructs the jury that if they shall find from the evidence, that the deceased, the plaintiff's intes- tate, was before and at the time of his admission as a mem- ber of the defendant association in a bad state of health, and that the deceased knew that he was in such state of health and concealed such fact of his bad health from the defendant, then the plaintiff is not entitled to recover in this action, provided the jury shall find from the evidence that the inability of the deceased to attend to business during the time for which benefits were claimed in this suit, was the result of his diseased condition and bad state of health ex- isting at the time of his admission as a member of the defend- ant association.-' Expulsion of member. (1263) The court instructs the jury that if they find the facts stated in the defendant's first prayer, which is made a part of this, and shall further find that charges were made against said E., as stated in the record of said defend- ant read in evidence to the jury, and that a committee was appointed to investigate such charges, and that proceedings were thereupon had, in accordance with the constitution and by-laws of the said defendant and that said R. was found guilty of said charges, and the said E. was expelled from said defendant, and said E. had notice of such charges and proceedings, and of his expulsion, and shall further find 1 Osceola Tribe No. 11 of the Improved Order of Red Men v. Rost, 15 Md. 295. (532) Ch. 68] FRAUD. [1263 that the constitution and by-laws of said society provided for and authorized said E. to appeal from said decision to the , and that E. did not appeal, then plaintiff is not entitled to recover in this action.* CHAPTER LXVIII, FRAUD. What constitutes actionable fraud or deceit, 1264-1271. False representations by a purchaser as to his financial ability, 1272. False representation as to financial ability of another, 1273- 1275. False representations concerning profits of business, 1276. Puffing, 1277. Concealment In attempting a compromise of a litigation, 1278. In sale of corporate stock, 1279-1282. Action by purchaser against vendor for fraud In misstating amount of land sold, 1283. Fraud as defense to action on contract, 1284. Concealment from other party of certain terms of contract, 1285- 1287. Intent, 1288-1293. Falsity of representations, 1294-1297. Knowledge of falsity of statement, 1298-1303. Scienter or bad faith, 1304. Statements recklessly made, 1305, 1306. Reliance on representations, 1307. Materiality of facts misrepresented or concealed, 1308. Right of plaintiff to rely upon statements, 1309. Duty to investigate the truth of statements, 1310-1317. Same — Statements as to financial responsibility of third person, 1318. Representations as to the law, 1319. Benefits accruing to defendant from fraud, 1320. Privity of parties to transaction, 1321, 1322. Fraud by one who occupies a fiduciary relation, 1323. Representations concerning future events, 1324. 2 Osceola Tribe No. 11 of the Improved Order of Red Men v. Rost, 15 Md. 295. (533) 1264] FRAUD. [Ch. 68 Same — In sale of corporate stock, 1325. Sufficiency of evidence, 1326-1330. What constitutes actionable fraud or deceit. (1264) The court instructs the jury that if they believe from the evidence that defendant made the representations alleged in the declaration, and plaintiff relied upon such representations as true to his pecuniary injury, and if the jury further believe from the evidence that such statements were false and that defendant knew of their falsity at the time of making them, and that plaintiff had no opportunity of ascertaining the truth, plaintiff is entitled to recover.* (1265) The court instructs the jury that it is not es- sential that false assertions be made in express words, but that fraud may be accomplished by encouraging and tak- ing advantage of a delusion known to exist in the minds of others.^ (1266) The court instructs the jury that the intentional misrepresentation of a material fact or the production of a false impression for the purpose of misleading, defrauding or obtaining an undue advantage of another, constitutes actionable fraud, and that in order to constitute misrepresen- tations for which an action will lie, there need not be actual words or positive assertions, but such misrepresentations may consist of acts or artifices intended and calculated to mis- lead.* (1267) The court instructs the jury that if you find that the defendant P. in making the contract for the lease to plaintiff made positive statements as to the character of the farm, the number of acres of plow land, or the character of the marsh or the number of acres of good marsh and made such statements without knowing them to be true, and 1 Richardson v. Gilson, 55 N. H. 623. 2 Busch v. Wilcox, 82 Mich. 315, 46 N. W. 940. s Bank of North America v. Crandall, 87 Mo. 208. (534) Ch. 68J FRAUD. [1297 they were not true, and were relied upon by the plaintiffs, to his injury, then the plaintiffs are entitled to recover.* (1268) The court instructs the jury that mere "dealing talk" which is not accompanied by some artifice to deceive the purchaser, or throw him off his guard, or some conceal- ment of intrinsic defects not easily detected by ordinary care and diligence, does not constitute a cause of action in favor of plaintiff." (1269) The court instructs that it is incumbent on the person asserting the fraud to show not only a false state- ment or representation, but that such representation was made with intent to deceive, and that such deception was the result of the reliance of the person asserting the fraud upon the representation.® (1270) The court instructs that if defendant made a false representation of a material fact susceptible of knowl- edge, knowing the statement to be false, or if he made such false statement as of his own knowledge when he does not know whether it is true or false with intention to induce plaintiff, in reliance upon such statement, to do or refrain from doing something affecting his pecuniary interests, and if the jury should further believe from the evidence that the plaintiff acted with reasonable prudence and did rely upon such false statement to his pecuniary hurt, they may find a verdict for plaintiff.'' (1271) The court instructs that plaintiff must show that the representations constituting the cause of action alleged by him were false, that defendant knew that such represen- tations were false when he made them, that he made them with intent to deceive, that plaintiff acted in reliance ujjon such representations having a right to so r&lj, and 'hai, * Mlddleton v. Jerdee, 73 Wis. 39. » Reynolds v. Palmer (C. C.) 21 Fed. 433. « Mclntyre v. Buell, 132 N. Y. 192, 43 State Rep. 715. ' Busterud v. Parrington, 36 Minn. 320, 31 N. W. 360. (535) 1272] FRAUD. [Ch. 68 plaintiff in reliance upon such representations was thereby induced to change his position to his pecuniary damage.* False representations by a purchaser as to his financial ability. (1272) The court instructs the jury that where a person who knows himself to be insolvent, by means of fraudulent pretenses or representations obtains possession of goods under a pretense of purchase, with the intention not to pay for them but with the design to cheat the seller out of such goods, a fraud is perpetrated on the seller, which will enable him to sue for damages for the. value of the goods.® False representation as to financial ability of another. (1273) The court instructs the jury that if a person makes an untrue statement to another, knowing it to be untrue, and the person to whom it is made has no knowledge of its un- truth, but relies on such statement as true and acts upon the same, and is injured thereby, the person so making such statement is liable for the damages accruing to the party thus acting.^" (1274) The court instructs the jury that if they believe from the evidence that the defendant made representations as to the solvency of A., in answer to inquiries made by plaintiff and defendant knew that the plaintiff made such inquiries with a view to selling goods to A., and such repre- sentations were false and defendant knew they were false and plaintiff acted upon such representations to his harm, the verdict of the jury should be for the plaintiff.^* (1275) The court instructs the jury that if they find « Babcock v. Libbey, 53 How. Prac. 255. 9 Flower v. Parwell, 18 111. App. 254. 10 Approved in Bndsley v. Johns, 17 111. App. 46G. This Instruction should perhaps not be given except where the false representation made, if one was made, is admitted to be about a material fact and is made in answer to an inquiry by the plaintiff suing for the fraud. In such case the instruction need not state the necessity of care or prudence being exercised by the plaintiff. 11 Endsley v. Johns, 17 111. App. 466. (536) Ch. 68J FRAUD. L1278 from the evidence that defendant was inquired of by plaintiff with regard to solvency of A., and defendant knowingly suppressed the fact that A. was indebted to him in an amount nearly equal to thg amount of A.'s property, or if they should find from the evidence that defenjiant spoke of such debt as a mere trifle in a manner calculated to quiet appre- hension, they may find against the defendant for the value of goods sold on credit on the faith of such representations.** False representations concerning profits of business. (1276) The court instructs the jury that the fact that plaintiff did not and could not make any profits in operating the business during the time he owned and operated it, does not of itself prove the representations of defendant that he had, while he owned the business, made a certain amoimt of profits, to be false.** Puffing. (1277) The court instructs the jury that statements made by a seller of property as to its value or good qualities, how- ever exaggerated they may be do not constitute fraud or de- ceit." Concealment on attempting a compromise of a litigation. (1278) The court instructs that one who is trying to settle a litigation with his adversary has a right to keep his opinioii on the merits to himself. The parties deal with each other at arm's length, and a party is not guilty of a fraud where he neither withholds nor misstates the facts, simplj because the courts finally decide the law to be other than he claims it to be while engaged in litigation over the sub- ject." 12 Viele V. Goss, 49 Barb. 96. la Markel v. Mundy, 11 Neb. 213, 7 N. W. 853. " Noetling V. Wright, 72 111. 390. w Trustees of Amherst College v. Ritch, 151 N. Y. 282. (5371 1271] FRAUD. [Ch. 68 In sale of corporate stock. (1279) The court instructs the jury that if they find from the evidence that the plaintiff paid the sum of $- — to the Company for certain shares of stock in said company and shall find that the said plaintiff was induced to purchase said shares of stock in said company by the false representations and statements of the defendant, to the effect thai the said shares of stock in said company were a safe and sure investment and would pay a high rate of interest and shall further find that such representations and statements were false and fraudulent and known to be false and fraudulent by said defendants and that plaintiff relied upon these said false and fraudulent statements and repre- sentations and was thereby induced to purchase said shares of stock, the plaintiff is entitled to recover, if the jury further find that the said plaintiff suffered loss and damage by reason of said false and fraudulent representations and statements.^" (1280) The court instructs the jury that in order to entitle the plaintiff to recover in this case the jury must find from the evidence that the defendants, with a view to induce the plaintiff to subscribe to or purchase the stock in the Company, made representations to him with respect to, the value of their assets and extent of their business, which were false in fact when made and that defendants had no reasonable ground to believe the same to be substantially correct when made and also that the same were made with the fraudulent intent to cheat and deceive the plaintiff and tliat the plaintiff had not at hand the means of verifying the truth of such representation and that in subscribing to or purchasing said stock, the plaintiff relied on such repre- sentations and would not have made such purchase except upon the faith of the same and that in consequence thereof he was misled and injured.-''' JO Approved in Robertson v. Parks, 76 Md. 118. V Approved In Robertson v. Parks, 76 Md. 118. (538) Ch. 68] FRAUD. [1281 (1281) The court instructs the jury that if the jury be- lieve from the evidence that in the year the defend- ants T. and P., formed a copartnership in the city of under the name of , for the purpose of carrying on the business and that thereafter the said firm of dissolved for the purpose of continuing said business under the management of a company and to that end, on the day of , 19 — , the defendants together with H. formed a copartnership, known as the Company, under the general incorporation law of the state for the object and pur- poses contained in the certificate of incorporation and the prospectus of said company offered in evidence and that after the organization of said company and the issue of stock to the defendants , , and , as mentioned in the evidence, the directors of said company inserted in the on the day of , 19 — , the adver- tisement offered in evidence, soliciting subscriptions to the stock of said company, inviting an investigation of its affairs as therein mentioned, and that the plaintiff in response to said advertisement and with a view of purchasing stock therein, made inquiry into the extent and development of the business in the city of and also as to the financial responsibility and standing of the defendants and thereafter visited the office of said corporation on street and at his request the defendant placed at his disposal all the ledgers, books of account, collection books and other records containing the transactions of said company, for the purpose of making examination of the same; and shall fur- ther find that the plaintiff is an expert bookkeeper or account- ant and that he devoted two or three weeks to the examination of said books and records, and shall further find that defend- ant offered to the plaintiff any assistance or information which he might need in the examination or understanding of said books or records and that plaintiff declined said offer and preferred to raake said examination without the assist- (539) 1282] FRAUD. [Ch. 68 ance of the defendants; and shall further find that after finishing the examination of said books and records, the plaintiff subscribed to fifty shares of the stock of said com- pany; and shall further find that said books and records showed the assets and liabilities of said company, and also ■what part of said assets consisted of open accounts and bills receivable, over due and placed in the hands of attorneys or collection agents for collection, then the plaintiff is not entitled to recover in this action with respect to any repre- sentations made by defendants or any of them as to the char- acter, consideration or value of such assets, accounts or biUs so overdue and in course of collection as aforesaid.** (1282) The court instructs the jury that if they find from the evidence that the defendants acted in their dealing with the plaintiff openly and in good faith and the plaintiff purchased shares of stock in the Company, a corporation in which the defendants were officers and fur- ther find that loss and damage resulted to the plaintiff by reason of such purchase of stock, the plaintiff cannot recover in this suit even should the jury believe from the evidence that said loss and damage was the direct result of the subse- quent management of said corporation by the defendants.** Action by purchaser against vendor for fraud in misstating amount of land sold. (1283) The court instructs the jury that after the de- fendant had put the matter of selling his land in the hands of S., S. gave J. authority to employ brokers, if necessary, to effect the sale and J. gave to E., a real-estate broker, a circu- lar containing a minute account of the property, which among other things stated in explicit terms that the land to be sold contained seven acres, and E. proceeded to advertise the property in newspapers as containing seven acres. This 18 Approved In Robertson v. Parks, 76 Md. 118. i» Approved In Roliertson v. Parks, 76 Md. 118. (540) Ch. 68] FRAUD. [1283 advertisement brought plaintiff in this case to E.'s o£Ice and E. handed said circular to plaintiff as containing such infor- mation as he had received from J., at the same time telling the plaintiff that if he would go to the property that day he would find J. there ready to receive him and to show him whatever was to be seen. Information given by a seller or his agent through an advertisement in a newspaper or even a circular prepared for the purpose of being exhibited to the purchasers is not always to be regarded by the buyers, if they are reasonably cautious, as containing the exact truth, but statements which exceed the boundary of truth and relate to material facts should be avoided and in all such cases there are two questions to be considered — first, that the seller said what was not true, and second, that the buyer relied upon what was said. When the plaintiff met J., he proceeded to question J. explicitly and asked whether the premises in question contained the seven acres spoken of. J. replied that they contained more rather than less, and the question was again asked subsequently and answered in the same way. The offer made by plaintiff for the property was accepted by the defendant and the conveyance was executed. On this state of facta there arises three principal questions to be decided by the jury : in the first place, did S., as defendant's agent so far empower J. to act for defendant in the sale of the premises as to render defendant responsible for what J. said and did; second, did J. state what he did not know to be true and what was in fact false, without having any rea- sonable ground for believing it; third, was this statement credited and believed by plaintiff, did it influence him in buying and induce him to give a larger sum than he other- wise would have consented to pay. Unless all three of these propositions are found affirmatively by the jury, they should render a verdict for defendant; if they are so found, the jury may give a verdict for plaintiff, if upon the other particulars of the case, they find in favor of plaintiff.^" 20 Griswold v. Gebbie, 126 Pa. 353. (541) L284] FRAUD. [Ch. 68 Fraud as defense to action on contract. (1284) The court instructs the jury that as regards the defense set up in this case that the contract sued on was ob- tained from the defendant by false and fraudulent represen- tations, the court instructs the jury that to defeat a recovery on that ground, the jury must believe, from the evidence, that the alleged representations weie made as charged, and that they were false when made, and that the plaintiff knew them to be false, — that they were such as a man of ordinary prudence would be likely to rely upon, and that the defendant did rely upon the truth of them, and was induced thereby to execute the contract in question.^^ Concealment from other party of certain terms of contract. (1285) The court instructs the jury that the plaintiff sues to recover the sum of $ , alleged to be due plaintiff from defendant as a balance due upon a certain contract. The defendant claims a set-off under a certain alleged pro- vision of the contract. The plaintiff replies and says that the particulars of the contract under which defendant asserts his set-off were not read to plaintiff by defendant when plain- tiff signed the same. That plaintiff relied upon defendant to read said contract and that defendant practiced a fraud upon him and that plaintiff did not read the contract himself. (1286) The court instructs the jury that, if you are sat- isfied from the evidence that defendant failed to read the part of said articles of , and thereby inten- tionally deceived the plaintiff and plaintiff relied upon said reading as correct and did not know that the articles con- tained said , or should contain said , and was thereby deceived and induced to sign said articles, when otherwise plaintiff would not have so signed said articles, then you may be justified in disregarding and should disregard defendant's claim on account of said and your verdict 21 Approved in Grier v. Puterbaugh, 108 111 602 (542) Ch. 68] FRAUD. [1290 should be for the plaintiff for the $ with interest from the date it was payable at per cent, per annum to the first day of his term.^^ (1287) The court instructs the jury that, on the contrary, if you are not satisfied by the evidence that the defendant intentionally omitted to read the part of said papers constituting the contract, then the presumption is that de- fendant read the whole of the contract and you should find for defendant. And if beyond this you are satisfied from the evidence that defendant read all the parts of said contract before and in the hearing of plaintiff, and plaintiff signed said contract without informing himself as to the meaning of all the terms of the contract, and defendant intended no fraud on plaintiff, then you should find for de- fendant, as plaintiff should not have so signed without being informed and should suffer from his own error.^* Intent. (1288) The court instructs the jury that the intent to de- ceive may be inferred from the fact that tie representations made by the defendant were known by him to be false, or from the fact that the defendant had no reason to believe that his representations were true.^* (1289) The court instructs the jury that every party must be deemed to have intended the natural and inevitable consequences of his acts, and where his acta are voluntary and necessarily operate to defraud others, he must be deemed to have intended a fraud.^° (1290) The court instructs that if the jury should be- lieve from the evidence that defendant made a false repre- sentation respecting property sold to plaintiff, without rea- 22 Riley V. Melquist, 23 Neb. 474. 23 Approved In Riley v. Melquist, 23 Neb. 474. 2*Prlsbee v. Fltzslmons, 3 Hun, 674; Johnson v. Wallower, 18 Minn. 288. 25 Coursey v. Morton, 132 N. Y. 556, 43 State Rep. 673. (543) 1129] FRAUD. [Ch. 6S sonable and probable cause for believing it to be true and witb intent to induce the purchase, they may find the repre- sentation to be fraudulent, unless the defendant shows that he was led into making the representation by mistake. (1291) The court instructs that if the jury believe from the evidence that defendant made false and fraudulent representations respecting the credit and circumstances of another, and that by reason of such representations plaintiff was induced to give credit to such person, they may find for plaintiff, though defendant may not have had an intent to defraud plaintiff.^* (1292) The court instructs the jiiry that even if the jury believe that the was insolvent on the of , 19 — , and shall further find that at said date the defendant represented to the plaintiff that it was solvent, the plaintiff is not entitled to recover by reason of any such representations unless they find that such representation was falsely made for the purpose of practicing a fraud upon the plain tift'.^^ (1293) The court instructs the jury that it is necessary for the plaintiff to show knowledge on the part of defendant of the falsity of the representations alleged to have been made by him to plaintiff and relied upon as a cause of action, or else a reckless disregard of the consequences of his state- ments or culpable omission to investigate the truth of such statements, and that the issue is whether the representations alleged to have been made were false and fraudulent, but that if the jury believe from the evidence that fraudulent misrepresentations were made to plaintiff by defendant and plaintiff acted upon such representations to his damage, the 28 Body's Ex'rs v. Browne, 6 Pa. (6 Barr) 310. 27 Approved in Suscuehanna Fertilizer Co. of- Baltimore City v. White & Co., 66 Md. 444. (544) Ch, 68J FRAUD. [1297 plaintiff may recover though there is no direct evidence of an intent to deceive.^* Falsity of representations. (1294) The court instructs the jury that the mere fact that a representation is literally true affords no excuse to the party making it, if made with the intention to deceive another, and such other is deceived and thereby receives an injury.** (1295) The court instructs that if the jury believe from the evidence that the defendant made the alleged false repre- sentations, and plaintiff relied upon such representations fo his pecuniary prejudice, they may find for the plaintiff though the defendant professed to rely upon representations of others and gave the source of his infonnation, if he knew, or had reason to believe that his statements were untrue.^" (1296) The court instructs the jury that in order to es- tablish a case of false representations, it is not necessary that things which are false should be stated as if they were true, but where the presentation of that which is true creates an obvious impression which is false, one who seeks to profit by the misapprehension thus produced, may be found guilty jf having made false representations.^^ (1297) The court instructs the jury that if they believe from the evidence that the defendant made the alleged rep- resentation, whereby plaintiff was induced to give credit to (A), then the jury must further believe in order to find for plaintiff, that the defendant stated as true what was not true, or that the facts and circumstances as known to defendant 28 Schoefleld Gear & Pulley Co. v. Schoefleld, 71 Conn. 1, 40 Atl. 1046. 29 Denny v. Gllman, 26 Me. (13 Shep.) 149. 80 Hanscom v. Drullard, 79 Cal. 234, 21 Pac. 736. «iLomerson v. Johnston, 47 N. J. Eq. (2 Dick.) 312, 20 Atl. 675, 24 Am. St. Rep. 410. (545) Instr. Juries — 30. 1298] FRAUD. [Ch. 68 were insufficient to induce a reasonable man to believe the statements made to be true.'* Knowledge of falsity of statement. (1298) The court instructs the jury that to constitute a fraudulent representation, the party making it must know it to be untrue, or must represent as true, of his own knowl- edge, matters as to the truth or falsity of which he has no knowledge, or must represent as true that which is false, and the truth or falsity of which he is presumed to know.^* (1299) The court instructs the jury that every false af- firmation does not amount to fraud. Knowledge of falsity of representations must rest with the party making the state- ment and he must use some means to deceive or circumvent.'* (1300) The court instructs the jury that if they believe from the evidence that the defendant at the time of making the representations alleged as a cause of action, knew such representations were false, or had no knowledge of their truth or falsity, or did not believe them to be true, or, if the jury believe from the evidence that defendant having no knowl- edge of the truth or falsity of the statements, yet represented them to be true of his own knowledge, or if the defendant without asserting knowledge in express terms presumed to have it and speak from it, or intended to and did convey the impression that he had actual knowledge of the truth, though conscious that he had not, then the jury should find against defendant.^"* (1301) The court instructs that if the jury believe from the evidence that defendant had reason to believe that the statements made by him to plaintiii and alleged as the cause of action were false, the fact that he had such reason to so 32 Sims V. Elland, 57 Miss. 607. as Brooks V. Hamilton, 15 Minn. 26. 3* "Walker v. Hough, 59 111. 375. 30 Bullitt V. Parrar, 42 Minn. 8, 43 N. "W. 566, 18 Am. St. Rep. 485, 6 L. R. A. 149. (546) Approved in Wadsworth v. Walliker, 51 Iowa, 605. > Lapham v. Marshall, 51 Hun, 36, 3 N. Y. Supp. 601. -♦Greeleaf v. Edes, 2 Minn. 264 (Gil. 226). (559) 1341] FRAUDULENT CONVEYANCES. [^h. 70 tion, is fraudulent and void as against such creditojs, or any creditors who have been thus hindered or delayed." Constructive fraud. (1341) The court instructs that fraud in law consists in acts which though not fraudulently intended, yet amount to actual fraud because of their tendency to defraud cred- itors by vesting the property of the debtor in his grantee.* Badges of fraud. (1342) The court instructs the jury that an assignment of all a man's property, when he is largely in debt, naturally excites suspicion of fraud, and is therefore evidence of fraud. If there be a judgment just ripening for execution at the time of the assignment, this increases the suspicion, and adds to the weight of the evidence. If the transaction is between relatives, the transaction is still more suspicious because the grantee is supposed to be better acquainted than other people with the embarrassed circumstances of the gran- tor. Yet you may think it not unreasonable that a relative should buy out one who is succeeding badly in the business in which he is engaged.'^ (1343) The court instructs that fraud is never pre- sumed, but must be proved by the party asserting it. It is very seldom that fraud can be established by direct evi- dence, and it is usually shown, if at all, by circumstantial evidence. There are certain facts or things which the law denominates badges of fraud; for instance, if a party in failing circumstances or largely indebted should make a sale of his goods to a near relative; or, if he should sell for a price greatly inadequate in value; or, if a sale should bo made on an unusually long credit or to an irresponsible per- son without being secured ; or, if made in unusual haste and B Approved In Nelson v. Smith, 28 111. 495. McKibbln v. Martin, 64 Pa. (14 P. F. Smith) 352, 3 Am. Rep. 588. 7 Forsyth v. Matthews, 14 Pa. 100. (560) Ch. 70] FRAUDULENT CONVEYANCES. [1347 not made in the manner in which men of ordinary care and prudence usually transact their own affairs, — these and sim- ilar acts are badges of fraud. They are not fraud, but may he considered, when they exist, by the jury, as facts and circumstances which may tend to show fraud. A person greatly indebted and in failing circumstances may sell and give a good title to his property. It would be a great mis- fortune if such persons could not, as that is often the only means they have of paying honest debts. The law forbids such sales only as are made for the purpose of and with the intent of either hindering, delaying or defrauding creditors.* (1344) The court instructs the jury that if they believe from the evidence, that a written bill of sale was given on the transfer of personal property (a conveyance of which is attacked by the plaintiff as fraudulent as to him) then the jury may take into consideration the giving of such written bill of sale, upon the question of whether the con- veyance was fraudulent or not, although the items of proper- ty were numerous and valuable.® (1345) The court instructs the jury that though they believe from the evidence, that a written bill of sale was given on the transfer of the personal property (attacked by the plaintiff as fraudulent) yet such fact does not neces- sarily indicate that the transfer was fraudulent.*" Secrecy. (1346) The court instructs that if the sale was secret and no means were taken to apprise the public of it, such secrecy is a fact which throws suspicion upon the transac- tion, but does not conclusively prove fraud.-'* Form of transfer. (1347) The court instructs that for a debtor to convey • Moon V. Heifer, 25 Kan. 140. » Mattingly v. Wulke, 2 111. App. 169. »o Mattingly v. Wulke, 2 111. App. 169. " Warner v. Norton, 61 U. S. (20 How.) 448, 15 L. Ed. 950. (561) 1^348] FRAUDULENT CONVEYANCES. [Ch. 70 his property in a mode so unusual as to exicte suspicion is a badge of fraud.*^ Transactions not in nsual course of business. (1348) The court instructs that where a transfer of prop- erty is made outside of the usual course of one's business, by one who is insolvent and who is known to be so by the parties to whom he transfers and with whom he has confi- dential business relations, it will be considered as prima facie evidence against the parties to the transfer that a fraud was intended, and the facts and circumstances surrounding such transfer impose upon the party to whom the transfer is made the active duty of inquiring into the debtor's finan- cial situation and the number of his creditors.-' ' (1349) The court instructs that the fact that an insolvent debtor disposes of or conveys his property in an unusual way, differing from the manner in which such disposition or con- veyance is usually made, is a badge of fraud.'* (1350) The court instructs that in order to render a con- veyance prima facie fraudulent, as not in the usual course of business, it must appear that the transaction was not according to the usual course of business of the particular person whose conveyance is attacked. It is not sufficient to show that such transactions are unusual in the general con- duct of business throughout the community.^** (1351) The court instructs that though the sale of prop- erty by a debtor not made in the ordinary and usual course of business is prima facie fraudulent as against creditors, the question of fraud is one of fact for the jury.^* (1352) The court instructs that the law presumes that 12 Hotter V. Gladden, 75 Ga. 532. i» Judson V. Courier Co. (C. C.) 15 Fed. 541. 1* Hoffer V. Gladden, 75 Ga. 532. It Is not necessary for the court to say what Is usual and what would excite suspicion. " Bliss V. Crosier, 159 Mass. 498, 34 N. E. 1075. 18 State ex rel. Peirce v. Merrltt, 70 Mo. 275. (562) Ch. 70] FRAUDULENT CONVEYANCES. [1356 every man intends the necessary consequences of his acts, and where the conduct of the debtor necessarily results in defrauding his creditors, he is presumed to have foreseen and intended such result.^ ^ Financial condition of grantor. (1353) The court instructs that whether a conveyance like the one at issue is fraudulent or not, is a question of fact to be determined upon under all the circumstances un- der which it was made, and especially the condition of the grantor's property and the amount of his debts at the time of the conveyance; that the conveyance cannot be properly adjudged to have been made in fraud of creditors if the grantor was possessed of a large property and substantially free from debt, whose sole motive was to withdraw the estate conveyed from the hazard of business enterprise for the bene- fit of his family.^* (1354) The court instructs that a voluntary transfer of property by a person deeply indebted, whose property is not sufficient or barely sufficient to pay his debts, affords strong presumptive evidence of fraud. ^* (1355) The court instructs the jury that an intent actual- ly to defraud creditors is to be legally inferred from the grantor's being insolvent at the time, or greatly embarrassed ; and if, therefore, the jury believe, from all the evidence in this case, that W. was insolvent at the time of the sale by him to the plaintiff, they would be justified in finding that the intent of W., in making that sale, was to hinder and de- lay his creditors.^" Indebtedness of grantor. (1356) The court instructs that the mere fact that the grantor was indebted at the time of the conveyance, does not " Williams v. White, 53 Pa. 890. 18 Winchester v. Charter, 102 Mass. 272. IS Winchester v. Charter, 102 Mass. 272. 2» Approved in Nelson v. Smith, 28 111. 495. (563) 1357] FRAUDULENT CONVEYANCES. [Ch. 70 render the conveyance fraudulent in law as against existing creditors.^^ (1357) The court instructs that the fact that one is in- debted will not prevent him from selling his property to any one he pleases for an honest and fair consideration, though the effect of the sale will be to prevent creditors from reaching the property .^^ Change of possession. (1358) The court instructs the jury that the law pre- sumes the transfer of the property unaccompanied by deliv- ery and continued change of possession, to be fraudulent and void as against the creditors and subsequent purchasers in good faith of the vendor, that is to say, the law under such circumstances presumes that the transfer was without suflScient consideration, and also that there was intent to defraud purchasers or creditors.^' (1359) The court instructs that a sale by a debtor is void as to creditors unless accompanied by immediate, open, visi- ble and continued change of possession, and that it is" for the jury to determine under all the evidence whether there was such immediate delivery and such actual change of posses- sion as was necessary to a valid transfer.^* (1360) The court instructs that where there is a sale of personal property by a debtor, there must be a delivery and change of possession before the purchaser can acquire title as against the creditor of the seller, though the sale may be made in good faith and for an adequate consideration. The delivery may be actual or constructive, but it must be sub stantial and not a mere formal and temporary change of possession.^' 2iKoster v. Hiller, 4 111. App. (4 Bradw.) 21. 22 Hessing v. McCloskey, 37 111. 341. 28 Thompson v. Blanchard, 4 N. Y. 303. 24 Shauer v. Alterton, 151 U. S. 607, 14 Sup. Ct. 442, 38 L. Ed. 28(; 25 Plckard v. Hopkins, 17 111. App. 570. (564) Ch, 70] FRAUDULENT CONVEYANCES. [12b4 (1361) The court instructs that a party may be in pos- session of property by his agent (»s well as by himself, and if the goods were sold for a valuable consideration, and the possession delivered to the purchaser, it is not necessary that he should remain in the actual possession of the property sold, to guard his title; but such possession may be by an agent or agents, and such agent may be the seller of the property, if such possession is such as to advise creditors of the change in the title of the property.*® (1362) The court instructs that a sale by a debtor will be deemed fraudulent as to creditors unless it is accompanied by an actual and continued change of possession, and if the vendor of a stock of goods is allowed to continue in posses- sion and sell as the agent of the purchaser, and if the jury find that the vendor was left in charge of the goods as a mere figure head, and there was not an honest and open transfer, there is not the actual and continued change of possession which the law requires.*^ (1363) The court instructs the jury that possession of certain kinds of personal property cannot be changed by manual delivery, and in such case the question arises wheth- er the grantee in the conveyance has taken such possession of the property as he could. Everything in the power of the party should be done to indicate the change in the possession. The question for the jury is: "Was there such a delivery and change of possession as the nature of the property was capable of?" If the grantee took such possession as the nature of the property was capable of, he must be held entitled to it.** (1364) The court instructs that although a delivery of property sold is necessary to pass the title thereto, yet such delivery need not be an actual and manual one, but anything 26 Warner v. Carlton, 22 111. 415. " Hopkins v. Bishop, 91 Mich. 328, 51 N. W. 902. 28 Chase v. Ralston, 30 Pa. 539. (565) 1365] FRAUDULENT CONVEYANCES. [Ch. 70 which clearly shows a surrender of ownership by the seller and assumption of ownership by the purchaser, accompanied by such circumstances as would ordinarily advise the world of such change of ownership, is all that is necessary.''* Consideration. (1365) The court instructs that if the price paid was grossly inadequate, such fact should be considered in deter- mining whether the transaction was fraudulent, its weight being affected by the other circumstances of the transao- tion.ao (1366) The court instructs that the jury should consider the fact that the mortgage attacked covered a large amount of property, and if the jury find that the property covered is largely in excess of the debts secured, they should consider this as a circumstance with other facts proven as bearing upon the bona fides of the parties.^^ Transactions based on consideration. (1367) The court instructs that a transfer of property with an intent to defraud creditors will be void although there may be an adequate consideration. Proof of considera- tion does not decisively preclude a presumption of fraud as the intention of the parties is the test by which the trans- action is to be judged.'* Conveyance to satisfy debt. (1368) The court instructs the jury that, if they believe from the evidence that K. conveyed said goods to the claim- ants before the levy, and that the claimants openly received said goods, and the same were taken solely for the purpose of securing their debt and not for the purpose of covering up said goods or their proceeds for the benefit of K. to the so Warner v. Carlton, 22 111. 415. 80 Bickler v. Kendall, 66 Iowa, 703, 23 N. W. 518. 81 Ganong v. Green, 71 Mich. 1, 38 N. W. 661. 82 Alexander v. Todd, Fed. Cas. No. 175 (1 Bond, 175). (566) Ch. 70] FRAUDULENT CONVEYANCES. [1372 prejudice of the other creditors, and no more goods were received than were reasonably sufficient to discharge their debt, then they shall find for the claimants.*' (1369) The court instructs that a conveyance of property made by the debtor with the intent of hindering or delaying some of his creditors, is fraudulent so far as the debtor is concerned, though the debtor by reason of such conveyance liquidates a just debt.'* (1370) The court instructs that though the jury believe from the evidence that the mortgage attacked as in fraud of creditors was given to secure a debt, yet if it was also given to hinder and delay creditors, and the intent with which the mortgage was given was known at the time of the execution of the mortgage to the mortgagee, and if the jury believe further from the evidence that the mortgagee par- ticipated in the fraudulent intent of the mortgagor, the mortgage would be fraudulent as to creditors.'* Same — ^Absence of evidence of debt. (1371) The court instructs that the jury may consider upon the question of the genuineness of the debt, along with all other circumstances, the fact that no notes were given to the alleged creditor, nor any charges made by him and that there were no other contemporaneous evidences of the debt alleged to have been secured by the conveyance.'* Dealings between relatives. (1372) The court instructs that a man has a perfect right to deal with his friends and relatives, and the presump- tion of law is that dealings between relatives are fair and »a Brown & Co. v. Leasing, Solomon & Rosenthal, 70 Tex. 544. «* Strauss v. Abrahams {C. C.) 32 Fed. 310. «5 Swofford Bros. Dry-Goods Co. v. Smlth-McCord Dry-Goods Co. (Ind. Ter.) 37 S. W. 103. ••Hinchman v. Parlin & Orendorft Co. (C. C. A.) 81 F. 157. C567) 1373] FRAtTDULBNT CONVEYANCES. [Ch. 70 honest without a wrongful or fraudulent intent, and no pre- sumption of fraud attaches to such dealings.^^ (1373) The court instructs that the mere fact of rela- tionship between the parties to the conveyance attacked, is not a badge of fraud. Notwithstanding such relationship, the law presumes good faith and honest intention, and if the evidence is evenly balanced on the question of intent, the transfer must be upheld.^* (1374) The court instructs the jury that if you believe from the evidence that the conveyance was between (father and daughter) the transaction should be scanned with care and caution, if the jury further find from the evidence that other badges of fraud than the mere fact of the relationship appear.'® Conveyance by husband to wife. (1375) The court instructs the jury that gross inadequacy of consideration, if it exists, is a badge of fraud and a cir- cumstance which may be considered by the jury in deter- mining whether the conveyance by A. to his wife, Mrs. A. (claimant) was fair and honest or pretended and fraudulent. Transactions between Husband and wife should be scanned carefully when the rights of creditors are to be affected thereby. The law requires them to exercise good faith and you should be satisfied that they have done so before sustain- ing any transaction which would defeat a creditor in the col- lection of his debt. You should be satisfied of the actual ex- istence of a just debt due from A. to Mrs. A., and that it was the consideration of the deeds to her ; and that the considera- tion was not inadequate before you would be authorized to sustain the title against creditors. All dealings between hus- band and wife which are injurious to creditors should be scru- tinized closely and their bona fides must be clearly estab- 87 Schroeder v. Walsh, 120 111. 403. 88 Shauer v. Alterton, 151 U. S. 607, 14 Sup. Ct. 442, 38 L. Ed. 286,, so Hicks V. Sharp, 89 Ga. 311, 15 S. B. 314; Sharp v. Hicks, Id. (568) Ch. 70] FRAUDULENT CONVEYANCES. [1376 lished, and in such case, the burden of proof is on them as to this." (1376) The court instructs the jury that the property involved in this suit and claimed by plaintiff was attached by defendant to satisfy a debt owing by plaintiff's husband to defendant; that it is claimed that before the attachment the plaintiff and her husband were in occupation of certain premises as a homestead; that the husband desired to sell the homestead of the parties upon which they resided; that plaintiff refused to sign the deed unless he would make over to her one-third of the money derived from the sale; that he did so, and that all of the said property was purchased with that money. Now, it is not very material that you should understand what the rights of a married woman in the homestead are for the purpose of considering the ques- tions that will be submitted to you, but I will state in a gen- eral way what I understand her rights to be in the home- stead. The husband cannot sell or dispose of it during the lives of both, so long as it remains a homestead, without her signature, in fact can pass no title whatever. If she survives him, and they have no issue, she inherits the prop- erty absolutely; it goes to her and her heirs, as I understand it. If there is issue, she retains the use of it during widow- hood, if the widowhood continues during her life; if not, up to the time that she marries, this being her right in the homestead. She claims that she refused to sign the deed unless her husband would settle upon her one-third of the proceeds, and that was a reasonable settlement in view of her rights in the homestead. I charge you, as a matter of law, that a relinquishment by the plaintiff of her rights in the homestead to secure for herself the money received upon such consideration as a settlement postnuptial or after the marriage, is a valid consideration for the purpose of keeping " Approved In Almond v. Gairdner & Arnold, 76 Ga. 699. (569) 1377] FRAUDULENT CONVEYANCES. [Ch. 70 the property that may afterward be obtained with the money from the hands of creditors. This is her claim in regard to the property claimed by the plaintiff in this suit, and it is a .question of fact for you to determine from all the facts and circumstances proved, whether the claim is well founded, and whether such a transaction occurred.*-^ Conveyance of exempt property. (1377) The court instructs the jury that it is conceded that the books made the subject of this replevin suit were exempt as a library of the debtor C, and that C. had a right to sell such books to any one for a valuable consid- eration and when so sold they would not become liable to seizure and sale for debts; the court further instructs the jury that the debtor had a right to donate his books to his children in consideration of his love and affection for them and if that gift was followed by actual and manual de- livery to them, the property continued to be exempt from sale on execution by his creditor, and if the jury be- lieve from the evidence that the books in this case were exempt to the debtor prior to any transfer or pretended transfer he had a right to sell or donate them and it is per- fectly immaterial whether he designed to defraud creditors or not. But if he changed the library into a stock in trade and placed these books with others for sale as stock in trade, and not for sale as a library, then they were no longer ex- empt as a library.*^ (1378) The court instructs the jury that while it is the general rule that one who has exempt personal chattels may give them away or sell them in good faith without impairing the rights of creditors, yet, if one having exempt chattels, abandons or is about to abandon the use of them, on which the exemption rests, and for the purpose of keeping them out " Allen V. Perry, 56 Wis. 178. 42 Carhart v. Harshaw, 45 Wis. 340. r570) Ch. 70] FRAUDULENT CONVEYANCES. [1382 of reacli of his creditors, makes a colorable gift or sale of them for his own use, the fraudulent intent will avoid the gift or sale as against creditors ; so, too, if the fraud against creditors involved also a fraud on the exemption law, as where one having a team exempt by law, makes a colorable gift or sale of it for his own use for the purpose of acquiring another team for his exemption, and of holding both teams for his own use, the one by way of exemption and the other under a fraudulent gift or sale.** Knowledge of grantee, or fraudulent participation by him in fraud. (1379) The court instructs that if the jury believe from the evidence that the grantor executed the conveyance with intention to defraud creditors, and the grantee had knowledge of the fraud and participated therein, the conveyance may be set aside as in fraud of creditors.** (1380) The court instructs that though the jury should believe from the evidence that the object and purpose of (A., the debtor) in making the sale was to hinder, delay or defraud his creditors, yet unless the jury are satisfied from the proof that the plaintiff (or defendant) knew that fact and bought the goods with such knowledge, the jury cannot find the sale fraudulent because of the intent of the debtor.*^ (1381) The court instructs that a conveyance or sale of property made with intent on the part of the vendor known to the grantee and participated in by him to delay, defeat, hinder or defraud a particular creditor and prevent him from obtaining his debt, though such conveyance is made for a valuable consideration, is fraudulent as against such cred- itor.*' (1382) The court instructs the jury that, if the sale was *s Per Ryan, C. J., in Carhart v. Harshaw, 45 Wis. 340. " Fro|t V. Mason, 44 S. W. 53. u Warner v. Carlton, 22 111. 415. M Nelson t. Bmitb, 28 111. 495. (571) L383] FRAUDULENT CONVEYANCES. [Ch, 70 made by 0. to tlie plaintiff G. with intent to hinder, delay or defraud his creditors, and that G. at the time of the pur- chase knew of such intent on the part of C, to hinder, delay or defraud his creditors, or if he knew such facts or circum- stances as would have put a man of ordinary prudence upon inquiry, and which by the use of ordinary diligence on his part would have led to a knowledge on his part, that feuch was the intention of C. in selling the goods to him, then such sale as between plaintiff and defendant is fraudulent and void.*^ (1383) The court instructs the jury that although you should find that C. made one or both sales to plaintiff, with intent to hinder, delay and defraud his creditors, yet if he paid a valuable consideration for the goods, such intent on the part of C. would not alone make the sale void. In order to invalidate the sale it must further appear from the evi- dence that the plaintiff, at the time he bought and paid for ilie goods, had notice of such intent on the part of C. or that he had knowledge of facts or circumstances such as would have put an ordinarily prudent man upon inquiry, which by the use of proper diligence on his part would have led to a knowledge of such intention on the part of 0.** (1384) The court instructs that if a debtor makes a sale of property with a view of hindering or delaying creditors, and the indebtedness of the seller together with his intent is known to the purchaser, the transaction is one which the law will not uphold and is void.*® (1385) The court instructs the jury to find for the (grantee) unless the debtor made the sale to the grantee with intent to hinder, delay or defraud his creditors and the grantee knew of such indebtedness and intention, or might have known of them by the use of ordinary diligence, which " Approved In Dodd v. Gaines, 82 Tex. 429. «8 Approved In Dodd v. Gaines, 82 Tex. 420 «o Evans v. Rugee, 57 Wis. 623, 16 N. W. 40. (572) Ch. 70] FRAUDULENT CONVEYANCES. [1388 diligence is sucli diligence as an ordinarily prudent man would use or be expected to use in the conduct of his busi- ness affairs."" (1386) The court instructs that if the buyer of goods from a debtor pays a fair price, the jury must find in his favor unless the seller made the sale to hinder or defraud creditors, and the buyer had notice or information sufficient to charge him with notice of the intent of the seller.'* II. Operation and Effect. In general. (1387) The court instructs the jury that under the laws of , every gift, grant, conveyance, assignment or transfer of or charge upon any estate, real or personal, or right or thing in action, or any rent or profit thereof, made with the intent to disturb, delay, hinder or defraud cred- itors or other persons, and every bond or other evidence of debt given, suit commenced, decree or judgment suffered with the like intent, shall be void as against creditors or other persons."^ Inability to recover on notes given as consideration of fraudu- lent conveyance. (1388) The court instructs the jury that if they believe from the evidence that the conveyances to the defendant in evidence were made for the purpose of hindering, delaying or defrauding the creditors of the said plaintiff or any of them, and that the notes sued on herein were executed and delivered by defendant to plaintiff in pursuance of such unlawful agreement, and upon no other consideration, then you are instructed that such unlawful purpose precludes any recovery by the plaintiff against the defendant upon any 60 Ratto V. Bluestine, 84 Tex. 57, 19 S. W. 338. 01 Skipper V. Reeves, 93 Ala. 332, 8 South. 804. 12 Approved in Riedle v. Mulhausen, 20 111. App. 68. (573) 13S9] FRAUDULENT CONVEYANCES. [Ch. 70 notes so given upon such unlawful and fraudulent considera- tion, and your verdict should be for the defendant.'*' (1389) The court instructs the jury that if the jury be- lieve from the evidence adduced that the conveyance from the plaintiff to the defendant was for the purpose of hinder- ing, delaying or defeating the creditors of the plaintiff in any attempt they might make to enforce their claims against the plaintiff, and that was the understanding and agreement between the plaintiff and defendant, and that the notes in suit were given in pursuance of this agreement between plaintiff and defendant, then the jury are instructed as a matter of law that the said agreement between the plaintiff and the defendant was illegal and cannot be enforced and the jury must find for the defendant.®* Rights of purchaser from fraudulent grantee. (1390) The court instructs the jury that if the jury believe, from the evidence, that the contract between S. and B. was of the fraudulent character mentioned in the above instruction, then the pretended sale between S. and B. would be void as against S.'s creditors, and such creditors could at- tach and hold said property in the hands of B. for the sat- isfaction of their demands ; and in like manner said creditors could attach and hold said property in the hands of the plaintiffs, if the plaintiffs only purchased said property of B., and before and at the time of their purchase had full knowledge of the void character of said B.'s title on account of such fraud."" (1391) The court instructs the jury that if they believe from the evidence, that the sale of the property, the title to which is in controversy, in this suit made by A. to B., was made for the purpose of hindering, delaying or defrauding ss Approved in Riedle v. Mulhausen, 20 111. App. 68. »* Approved In Riedle v. Mulhausen, 20 111. App. 68. 55 Approved in Waggoner v. Cooley, 17 111. 239. (574) Ch. 70] FRAUDULENT CONVEYANCES. [1393 the creditors of said A. in the collection of tkeir demands against A., and that B. participated in the said fraudulent intent of A. in making his, said B.'s, purchase of the said property; and if the plaintiffs only have sho'wn a title to said property acquired through B., and if the jury believe, from the evidence, that said plaintiffs purchased from B. with a full knowledge of the said fraudulent contract be- tween A. and B., then the plaintiffs have shown no better title to said property as against the rights of A.'s other cred- itors than B. had thereto at the time when he sold the same to the plaintiffs."* (1392) The court instructs the jury that if the property is conveyed for the purpose of hindering, delaying or de- frauding the creditors of the seller, and such property is attached by such creditors, such property is considered as still the property of the seller in favor of his creditors' rights."'' III. Peestjmptions and Sufficibnoy of EvnjENOE. Burden of proof as to fraud. (1393) The court instructs the jury that, if you find there was a sale by to plaintiff of the property in controversy then you will inquire into and determine the character of this sale; that is, determine from the evidence whether or not it was fraudulent. It is alleged by defend- ants that it was and is fraudulent and you are instructed that the burden of proving the same rests upon the defend- ants and they must do so by a fair preponderance of the evi- dence; and you are instructed that the law presumes that all persons transact their business honestly and in good faith, until the contrary appears from a preponderance of the evidence; and in this case if you find there was a sale as claimed, it will be presumed that plaintiff and the »« Approved In Waggoner v. Cooley, 17 111. 239. " Approved in Waggoner v. Cooley, 17 111. 239. (575) 1394] FRAUDULENT CONVEYANCES. [Ch. 70 acted honestly and in good faith in making the same, until such time as the defendants, who allege the contrary, estab- lish the same by a fair preponderance of the evidence; and if the case is left in equipoise then the defendants must fail as to the fraud ; and fraud will never be imputed when the facts upon which the charge is predicated, are or may be consistent with honesty and purity of intention,** Burden of proof as to notice to grantee. (1394) The court instructs the jury that the plaintiff seeks to recover the proceeds of the policy issued by the Insurance Company to the defendant for the purpose of applying such proceeds upon the debt owing by defendant to the plaintiff. It is shown without any conflicting evi- dence that the policy whose proceeds plaintiff seeks to re- cover was transferred before the bringing of this suit to C, for a valuable consideration. The court instructs the jury that the burden of proof is upon the plaintiff to show by a preponderance of the evidence that the transfer of said policy was made with intent on the part of defendant to hinder, delay and defraud creditors, and further that said C. had notice of such intent and that he had notice of such facts as would have excited in the mind of a person of ordinary prudence a suspicion of such intention."® Presumption as to fraud. (1395) The court instructs that fraud is never to be pre- sumed, but must be affirmatively proved by the party alleging the same. The law presumes that the dealings of men are without intention to disturb, cheat, hinder, delay or defraud creditors, and if any transaction called in question is equally capable of two constructions, one that it is fair and honest and the other that it is dishonest, the presumption will be that the transaction is honest and fair.*" »s Approved in Sunberg v. Babcock, 66 Iowa, 515. 69 Martin Brown Co. v. Cooper, 82 Tex. 242. 60 Schroeder v. Walsh, 120 III. 403. (576) Cll.70] FRAUDULENT CONVEYANCES. [1400 SufSciency of evidence. (1396) The court instructs that in order to find for (the party attacking the conveyance as fraudulent) the jury must find the existence of fraud from the evidence as thej' would any other fact, and will not be permitted to guess, suspect or presume fraud.*-' (1397) The court instructs that evidence which merely creates a doubt of the fairness of the transaction is not suffi- cient to overturn a sale and deprive parties of title to property which they seem to have acquired in the usual course of busi- ness.** (1398) The court instructs that fraud in the purchase by a creditor of the goods of an insolvent debtor, must be proved either directly and affirmatively by the party alleging it, or by such facts and circumstances as are sufficient to establish it to the satisfaction of the jury. It is not to be presumed.*' (1399) The court instructs the jury that a party alleging fraud must prove it by satisfactory evidence. Fraud will never be imputed when the facts upon which a charge is pred- icated, are, or may be, consistent with honesty and purity of intention.** Same — ^Action by alleged fraudulent grantee against levying sheriff. (1400) The court instructs the jury that the defendant sheriff has alleged fraud in the making of the oral lease be- tween plaintiff and H., and if, in your opinion, he has failed to clearly establish the same, you must find for plaintiff. The burden of proving the truth of the allegations of fraud rests on the defendant, and the contract of lease between the plaintiff and H. is presumed to be a fair and honest contract. ei Schroeder v. Walsh, 120 111. 403. «2 Waterman v. Donalson, 43 111. 29. esHanchett v. Goetz, 25 111. App. 445. «< Approved in Prichard v. Hopkins, 52 Iowa, 120. (577) Instr. Juries — 37. 1401J FRAUDULENT CONVEYANCES. [Ch. 71 Fraud is never to be presumed, but must be clearly proved to the satisfaction of the jury.®' (1401) The court instructs the jury that fraud is never to be presumed. The allegations of fraud in defendant's an- swer must be by him affirmatively established by the evidence, and will not be presumed from acts of the parties which may be accounted for on the basis of honesty and good faith. The defendant must establish the existence of fraud by a prepon- derance of the testimony before you can find for the defend- ant, for unless you are satisfied from the evidence that the de- fendant has clearly proved the existence of fraud in the lease from H. to plaintiff, then you must find for the plaintiff.®' CHAPTER LXXI. GAMBLING CONTRACTS. Recovery by broker for services in conducting gambling transac- tion, 1402. Action between partners engaged in booknmking, 1403. Action to recover from stakeholder money placed in his hands as -wager upon result of an election, 1404. Becovery by broker for services in conducting gambling trans- action. (1402) The court instructs the jury that if they shall find from the evidence that when the defendant gave to the plaintiffs the several orders offered in evidence for the pur- chase and sale of stocks, it was mutually understood between them that the defendant was not to deliver any of the stocks that he ordered to be sold, or to accept any of the stocks that he ordered to be bought, but that all of said transactions in «5 Prlchard v. Hopkins, 52 Iowa, 120. H. was debtor. Defendant as sheriff levied the execution. Plain- tiff was the supposed fraudulent grantee. 66 Approved in Prlchard v. Hopkins, 52 Iowa, 120. (578) Ch. 71] GAMBLING CONTRACTS. [1404 stocks were to be settled and adjusted by the payment or re- ceipt as the case might be, of differences between the price at which said stock should be bought and at which they should be sold, and if the jury shall further find that in pursuance of said mutual understanding, the plaintiffs in their own names, transmitted to their correspondents for execution, said orders of the defendant and that said orders were executed by the said correspondents of the plaintiffs upon the credit of the plaintiffs and upon security furnished by them, then the plaintiffs are not entitled to recover in this action for services rendered or advances made by them in furthering and con- ducting said transactions for the defendant.-' Action between partners engaged in bookmaking. (1403) The court instructs the jury, as a matter of law, that if they believe from the evidence that the plaintiff and the defendant were copartners in the business of making books on horse races, and that the money given the defendant by the plaintiff, and which is the subject of this suit, was in furtherance of said partnership business of book making on horse races, then the jury will find for the defendant.^ Action to recover from stakeholder money placed in his hands as wager upon result of an election. (1404) The court instructs the jury that a wager upon the result of an election is an illegal contract and that an action upon such a contract cannot be maintained by the winning party against a party losing the bet, but that if the money has been paid over to the winning party by the consent of the losing party, the loser cannot maintain an action against the former to recover back money so paid over, and that if the money was, as in the present case deposited with the stake- holder, either party may forbid his paying over money wagered to the other party and after proper proofs they may 1 Approved in Stewart v. Schall, 65 Md. 289. 2 Approved in Shaffner v. Pinchback, 133 III. 410. (579) 1404] GAMBLING CONTRACTS. [Ch. 71 maintain an action against the stakeholder to recover money so deposited with the stakeholder, and the action may be maintained against the stakeholder, even after he has paid the money to the winner, if he has paid it over after his authority to do so has been revoked or after he has been di- rected by the loser not to pay it over. In this case there is no dispute as to the amount of money deposited with the de- fendant nor as to the person with whom, or the terms upon which the deposit was made, and the only question of fact for the jury to pass upon is as to whether the defendant paid over to the party winning the bet, with or without the consent or permission of the plaintiff, the sum deposited with the de- fendant. The fact, if it is a fact, that the parties agreed to submit the question of the right of the winner of the bet to the money deposited with the defendant to arbitration, did not legalize the wager, but the jury may consider this fact, if it be a fact, in connection with the other evidence in the case, as bearing upon the question whether the money was paid over by the defendant to the said with the con- sent or permission of the plaintiff and if upon all the evi- dence, the jury shall find that the money was paid with the consent or permission of the plaintiff, they shall return a verdict for the defendant, but if they shall upon the evi- dence find that the money was paid over without the consent or permission of the plaintiff and after the plaintiff had di- rected the defendant not to pay over, they shall return a ver- dict for the plaintiff.' 8 Fisher v. Hildreth, 117 Mass. 558. (580) Ch. 72] GIFTS. [1407 CHAPTER LXXII. GAS. Presumptions and burden of proof based on dangerous nature of element, 1405. Damages caused by seepage of gas, 1406. Liability for explosion, 1407-1411. Presumptions and burden of proof based on dangerous nature of element, 1405. (1405) The court instructs the jury that if you find from the evidence that defendant brought into the street an in- flammable and explosive fluid, capable of escaping in such a way as to produce the casualty complained of, and that such casualty actually occurred, then the facts thus found may be treated as sufficient to justify the inference that the casualty was due to the agency or negligence of the defendant, in the ;ibsence of proof that it was otherwise caused.-^ Damages caused by seepage of gas. (1406) The court instructs the jury that, as you will doubtless thoroughly understand from the evidence which has been given, and the arguments of counsel, and from the instructions which I have already given you, the question in tlie case is whether this accident was due to the negligence of tlie employes of the defendant gas company, and whether through that negligence the gas found its way into the man- bole and was in some manner ignited and caused the explo- sion and caused the flame to come out and set the boy's cloth- ing on fire." liability for explosion. (1407) The court instructs the jury that there are con- ditions upon which persons suffering injury to their property may recover damages of the gas company. Those conditions are, that the plaintiff who seeks to recover the damages shall show affirmatively, the burden of proof being upon him, that 1 Approved in Tiehr v. Consolidated Gas Co., 51 App. Dlv. 446. » Approved in Tiehr v Consolidated Gas Co., 51 App. Div. 44'' (581) 1408] GAS. [Ch. 72 the injury was occasioned by tlie negligence of the servants of the defendant company ; and that in no material degree did the negligence of the tenant of the plaintiff contribute to that injury ; and if those facts are established upon the whole evi- dence, by a fair preponderance of the evidence, the plaintiff has a right to recover ; if not, he has not. — Recovery by landlord against third person. (1408) The court instructs the jury that the question is, Was either of these parties negligent, or not? If either, which ? For, if it was a pure accident, and nobody negligent, then the loss must fall where Providence sent it. This is not a case where the plaintiff can recover, if he has been reck- lessly negligent himself, or if the tenant of plaintiff was guil- ty of negligence contributing to the injury. It is entirely set- tled that, if the tenant was recklessly negligent, the landlord cannot recover, if that negligence contributed in a material degree to the explosion and injury. (1409) The court instructs the jury that the case stands, under the general principle which I have stated, in this way: that the plaintiff in this case must offer to show, and must satisfy you, upon the whole evidence, by a fair pre- ponderance of the evidence, that he was in the exercise of due care, of such care as a prudent man might reasonably be ex- pected to exercise under the circumstances, and that the ex- plosion was caused by the negligence of the defendant. (1410) The court instructs the jury that if the defend- ant's servants, the officers of the company, did not know, and by the use of due care could not ascertain, that the gas was escaping into plaintiff's house, or had reasonable cause to be- lieve that it was not, and no notice was given by the inmates of the house to them that gas was in the house, the de- fendant is not liable. But if the defendant's servants did know, or if, with their knowledge of the condition of the street they had reasonable cause to suspect, that the gas had entered into or under the plaintiff's house in dangerous quantities, (582) Ch. 73] GIFTS. [1412 or was then entering into the plaintiff's house in sueh quan- tities, and gave no notice to the inmates, and made no request to be admitted into the house for the purpose of examining, the company is liable in damages, if the plaintiff's tenant was in the exercise of due care. (1411) The court instructs the jury that if they are satis- fied that the tenant, , having discovered the presence of gas in an unusually large quantity in the house, or in a room of the house, did not take reasonable means and precautions to remove and exclude the gas, or, not knowing what such precautions were, did not notify the servants of the defendant that gas was escaping, or make some reasonable effort to no- tify them that gas was escaping into the house, and if he recklessly brought the flame of the candle into contact with the gas and air of the room, his want of care will prevent re- covery on the part of the plaintiff in this case, although the jury may believe that the defendant was negligent.' CHAPTER IXXHL GIFTS. In general, 1412. Language to support parol gift, 1413. Retraction of gift by donor, 1414. What constitutes gift causa mortis, 1415. In general. (1412) The court instructs the jury that if the defendant intended the note to be a gift to the plaintiff, it was given without any legal consideration therefor, although the plain- tiff may have supposed the note to be in payment for a prior indebtedness, unless the defendant by his words or conduct jave the plaintiff reasonable cause to believe, and the plaintiff was thereby led to believe, that the note was given in settle- 8 Approved in Bartlett v. Boston Gaslight Co., 122 Mass. 209. (583) 1413J GIFTS. [Ch. 73 ment of her claim against the estate of the wife for services, or of some claim in controversy between the plaintiff and the defendant.* Language to support parol gift. (1413) The court instructs the jury that as no consider- ation passes from the donee to the donor, the law requires every parol gift to be a sedate, deliberate act, and therefore incautious expressions, or expressions used in a state of in- ebriety, would not be sufficient.* Retraction of gift by donor. (1414) The court instructs the jury that if they find from afl the evidence in the case that , grandfather of the plaintiff, was the owner of the horse in contest when a colt, and gave or sold the same to the plaintiff, and placed the same in possession of the plaintiff, and if afterwards sold or transferred said horse to another without the consent of the plaintiff, then they will find for the plaintiff said horse, if to be had ; if not to' be had, then his value at the time, with reasonable value for the use of said horse from the bringing of this suit till the present time, which value and use will be fixed by the jury.* What constitutes gift causa mortis. (1415) The court instructs the jury that if A. (the donor) when sick and not expecting to get well gave the money in dispute in this case to her husband and afterward recovered from such sickness and repossessed herself of said money then such gift would be void.* 1 Approved in Nye v. Chaoe, 139 Mass. 379. 2 Approved in Morisey v. Bunting, 12 N. C. 3. 3 Approved in Dixon v. Labry, 16 Ky. Law Rep. 522. * Marsh v. Prentiss, 48 III. App. 74. The court above held that It was not necessary to add to this instruction a statement informing the jury that such a gift as described was in law known as "donatio causa mortis." ^.584) Ch. 74] HIGHWAYS, [1417 CHAPTER IXXIV. HIGHWAYS. I. Public Hiohwats. Establishment of highway, 1416-1420. Same — Prescription or user, 1421-1427. Duty to safeguard defects In highway, 1428. Law of the road — Injuries caused by careless driving, 1429, 1430, 1431, Injuries caused by runaway horse, 1432, 1433. Injuries to bicycle riders, 1434-1438. Liability of private person for injuries caused by excavation In highway, 1439. Criminal prosecution for destruction of bridge part of highway, 1440-1445. II. TUBNPIKEB. Liability for Injuries caused by defects In roadwa,y, 1446-1448, Burden of proof, 144&. I. Public Highways. !E|stablislmieiit of highway. (1416) The court instructs the jury that to constitute a dedication of private property as a street, the owner thereof must have intentionally dedicated the same by voluntary aet, or that the public has used as a common highway the prop- erty for such a length of time as that the law presumes acqui- escence in such use by the owner of the property,* (1417) The court instructs the jury that if they believe from the evidence, that the plaintiff, about the year 19 — , fenced out a strip of his land, intending that it should be taken by the public for a highway, of which strip the place in question is a part; that the public accepted said strip of land by working and improving the same under the direction of the public highway officers, and by using the same as a public highway, and that plaintiff, well knowing such im- provement and use, acquiesced therein for about eighteen 1 Buntln V, City of Danville, 93 Va. 200. (585) 1418]- HIGHWAYS. [Ch. 74 years without objection, then the place in question has been dedicated to the public and the jury must find the defendant not guilty. If, however, there was a laid out road sixty feet wide, with the section line as the centre line of the road, and if the road was fenced by the plaintiff with intent to fence on the north line of said laid out road, and if by mis- take the fence was placed between twenty and thirty feet too far north, then the dedication would be of the north thirty feet in width of the road along the section line of plaintiff's land, — if he only intended to dedicate the north half of the road as laid out on the south thirty feet only of his land north of the section line.^ (1418) Although the jury may believe from the evidence that after the fence on the land in the petition mentioned was moved in so as to leave a strip of thirty feet between said fence and the line of the right of way of the railway company, the said strip was with the knowledge of and her children used by all persons desiring to pass over the same in going to and from , and although the jury may further find that and her children passed over said strip in going to and from , such use of said strip does not operate in law as a dedication of said strip to the public use as a public highway.* (1419) The court instructs the jury that if they shall be- lieve from the evidence that any owner of the fee of the land in question at any time before the same passed to , dedicated or appropriated the land in question for a street, and the same was accepted as a street by the corporate au- thorities of , then such dedication was irrevocable, and the jury should find for the defendant. And the couri further instructs the jury that such dedication of the land 2 Approved in Manrose v. Parker, 90 111. 581. These instructions ■were given in a suit by one claiming title to the land covered by the alleged highway against a commissioner of the highway who tore down a fence erected by the plaintiff. 3 Approved In McBeth v. Trabue, 69 Mo. 642. (686) Ch. 74] HIGHWAYS. [1421 may be inferred from any acts of the owner or circumstances evidencing an intent on the part of the owner so to dedicate, accompanied by the use of the land by the public as a high- way for a long space of time, and the acceptance by the cor- poration may be inferred from the exercise by the cor- porate authorities of acts of control and management such as repairing, grading or otherwise treating the land as a public street.* (1420) The court instructs the jury that highways may be acquired by dedication. And in this case, if the jury be- lieve from the evidence, that, after the highway in contro- versy was located, defendants set their hedges back, leaving room for the highway and removed their fence from said highway, and permitted the public to use the same for a, high- way, — these facts, if proven, may be considered by the jury in determining whether the defendants had dedicated this land to the public for a highway." Same — ^Prescription or user. (1421) The court instructs the jury that in considering the evidence in this case with reference to the issue joined upon the defendant's third plea of common and public high- way, the jury are instructed that long use never ripens into such a right of way or easement unless it be an adverse and uninterrupted enjoyment of such use under a claim of right for the full period of 20 years ; and the jury are further in- structed that if the user is by permission, leave, license, or indulgence of the party over whose land such use is enjoyed, or can in view of all the evidence, be placed upon any other footing than a claim or assertion of the right, it will repel any presumption of a grant and will be what is called a pre- carious use, and such precarious use never ripens into an ad- verse use, no matter how long it continues.* * Buntin v. City of Danville, 93 Va. 200. ' » Approved in Wragg v. Penn Township, 94 111. 11. • Approved in District of Columbia v. Robinson, 14 App. D. C. 512. (587) 1422] HIGHWAYS. [Ch. 74 (1422) The court instructs the jury that if they believe from the evidence that the public used road as a pub- lic highway whenever it saw fit, without leave of the owner and without objection from him, this is adverse, and uninter- rupted adverse enjoyment for 20 years constitutes a title which cannot afterwards be disputed. Such enjoyment, without evidence to explain how it began, is presumed to be in pursuance of a full and unqualified grant. '' (1423) The court instructs the jury that if they believe from the evidence, that a public road had been used by the public over the place of obstruction in question, for twenty years without interruptions, and that the owners of the land acqiiiesced therein, the law presumes a dedication of the ground upon which the road runs to the use of the public, for such purpose.* (1424) The court instructs the jury that if they be- lieve, from the evidence, that a public road was laid out over the place of obstruction in question, that it was used and trav- eled by the public as such, and that it was recognized and kept in repair as such by the public authorities, then proof of these facts furnishes a legal presumption, liable to be rebutted, that such road is a public highway.® (1425) The court instructs the jury that the acquiescence by the owner in the use of his land by the public for twenty years as a street or highway will in itself afford sufficient evidence of an intention to dedicate the land as a street or highway.-^* (1426) The court instructs the jury that the exercise of ownership or control over the property claimed to have been dedicated by acquiescence in its use and occupation, such as the occupancy of, or the interposition of obstacles and bar- '.Approved in District of Columbia v. Robinson, 14 App. D. C. 512. 8 Approved in Daniels v. People, 21 111. 439. » Approved in Daniels v. People, 21 111. 439. 10 Buntin v. City of Danville, 93 Va. 200. (588) Ch. 74] HIGHWAYS. [1428 riers by the original owners of the property to the general and public user of the same, precludes and refutes the idea of dedication and acquiescence by the owner in the use of th(i public ; and the law will not in such cases presume a dedica- tion of the property.^^ (1427) The court instructs the jury that when at the timo of the purchase of real estate, there is a road or right of way used by the public, such as a public highway, or a road used so long that there may be a presumption of a dedication to the public, the purchaser takes the land subject to such right.* ^ Duty to safeguard defects in highway. (1428) The court instructs the jury that the way in ques- tion was a highway which the defendant was bound to keep in repair, and was liable to the plaintiff if he was injured by a defect in it while he was traveling over it and using due care. The defendant had a right to repair the road and to put the mound of earth where it was for that purpose, but would be bound to fence or guard it in some manner so as to prevent travelers from injury by means of it. The defend- ant could protect travelers from injury and the town from liability in either of two ways : First, by placing and keep- ing a sufficient guard or barrier at the place where the mound was, so as to keep travelers away from it ; second, by placing and keeping a suitable and sufficient fence or barrier across the highway at the end of the part that was being constructed, so as to notify travelers that the way was not for use and to prevent the using of it. If the defendant placed a proper and sufficient fence or barrier across the way at the east end, the direction the plaintiff came, sufficient and suitable to no- tify a person of ordinary prudence that the way was not for use, and such fence or barrier was there in place at the close of the day of the accident the defendant would not be liable. " Buntin v. City of Danville, 93 Va. 200. 12 Buntin V. City of Danville, 93 Va. 200. (589) 1429J HIGHWAYS. [Ch. 74 It is for the jury to say whether the fence which was placed across the way at the east end was suitable and sufficient. If the town attempted to close the whole road by barriers, and knew or had reason to know that those barriers had been con- stantly and repeatedly taken down or left down, that knowl- edge is to be considered by the jury in determining whether the defendant's precautions were such as were reasonable.^^ Law of the road— Injuries caused by careless driving. (1429) The court instructs the jury that if they believe from all the evidence in the case that the defendant was driv- ing his horse in a run, and racing with a bicycle at a danger- ous and unnecessary speed, upon one of the streets of the city of , that would constitute negligence ; and, if the jury further believe that the injuries complained of were received by plaintiff as the direct result of such negligence on the part of the defendant, the plaintiff is entitled to recover in this suit. Again, if the evidence shows that the defendant knew of the excavation upon the side of street, upon which he was then driving, he was, in passing by such excavation, bound to use greater care -than would have been required of him at some point at which there was no such place of danger.-** (1430) The court instructs the jury that the driver of a horse upon a public highway must use ordinary care in its management, and is liable for all damages occasioned by his careless driving. Greater care is required of one driving along a crowded street or thoroughfare within a tovm or city than upon an ordinary pubKc road, where there is no such crowded condition. Therefore, if the jury believe from the evidence in the case that the defendant was driving, at the time of the accident, negligently and recklessly, and without 13 Approved In Howard v. Inhabitants of Mendon, 117 Mass. 585. 1* Approved In Ford v. Whiteman, 7 Am. Neg. Rep. 212, citing Pierce v. City of Wilmington, 2 Mary. 306, 43 Atl. 162; Williins v. City of Wilmington, 2 Marv. 132, 42 Atl. 418. (590) Ch. 74] HIGHWAYS. [1432 ordinary care, taking into consideration all the facts and cir- cumstances surrounding tlie accident, and, as a result of sucb want of ordinary care, inflicted upon the plaintiff the injuries complained of, the verdict should be for the plaintiff. Ordi- nary care in driving a horse and vehicle means such care as prudent men ordinarily use in like circumstances, taking into consideration the time, the place, the conditions of the high- way, the possible dangers, the known obstructions, and the damage likely to result from driving carelessly at that par- ticular time and place.-^^ (1431) The court instructs the jury that even if they should believe from the evidence that the defendant was not, at the time of the injury complained of, driving at an unusual rate of speed, still, if they further believe from the evidence that the defendants did commit the injury upon the plaintiff, as charged in the declaration, while she was using due and proper care, and the defendants might by using ordinary and proper care at the time, have avoided committing such in- jury, and that in consequence of a want of such reasonable and ordinary care on the part of the defendants the plaintiff received the injuries complained of, then the jury should find the defendants guilty, and assess the plaintiff's damages at such sum as they may think from the testimony will com- pensate her for the injuries so sustained by her, not to ex- ceed the amount claimed in the declaration.-'* Injuries caused by runaway horse. (1432) The court instructs the jury that even should you find from the evidence that the horse driven by the defendant at the time of the accident became at the time and at the place of the accident unmanageable, and beyond the control of the 15 Approved in Ford v. Whiteman, 7 Am. Neg. Rep. 212, citing Clark V. Barrington, 41 N. H. 44; Tucker v. Henniker, 41 N. H. 317. 18 Approved In Sclimidt v. Sinnott, 103 111. 160. This Instruction was objected to on account of the use of the words "due and proper care" Instead of "ordinary care." (591) 1433] HIGHWAYS. [Ch. 74 defendant, yet, if you further find from the evidence that the defendant's loss of control of the horse was due to the rapid and careless driving thereof by the defendant, then for such careless and reckless driving on the part of the defendant the plaintiff is entitled to recover. If the jury shall believe froni the evidence that the horse was running away, and beyond the control of the defendant, such running away not being occasioned by any fault of the defendant, the case comes under the head of unavoidable accident, and the plaintiff can- not recover. Again, if the jury shall believe from the evi- dence that the defendant did all that a reasonably prudent man would have done under the circumstances to avert the accident, the plaintiff cannot recover.^^ (1433) The court instructs the jury that the owner or driver of the horse being driven along the highway is not re- sponsible for the consequences of his horse running away or for injuries inflicted while his horses were out of his control, provided he has used reasonable care in driving and con- trolling them. I charge you that the horses and truck of the defendant were being lawfully used upon the highway at the time of the collision with plaintiff's buggy; and if the collision occurred while the driver had temporarily lost control of the horse by reason, — if you should find that he was thrown from the truck in the manner that he has de- scribed, but if his loss of control was not the result of want of care on his part, the collision must be regarded as acci- dental, and the plaintiff could not under those circumstances Injuries to bicycle riders. (1434) The court instructs the jury that should they be- 17 Approved In Ford v. Whlteman, 7 Am. Neg. Rep. 212, citing Ben- net v. Ford, 47 Ind. 264; Shawhan v. Clarke, 24 La. Ann. 390; Bigelow v. Reed, 51 Me. 325; Benoit v. Troy & L. R. Co., 3 Am. Neg. Rep. 717, 48 N. B. 524. '"Approved in Silsby v Michigan Car Co., 95 Mich. 204. (592) Ch. 74] HIGHWAYS. [1437 lieve from the evidence that the plaintiff was not expert, or was inexperienced in the use of the wheel, yet, she had a legal right to use the bridge in question, with her wheel, and it was the duty of the county commissioners to have anticipated such use and provided for the same; and their failure to do so was negligence and the plaintiff is entitled to recover, pro- vided she was not guilty of contributory negligence.-'® (1435) The court instructs the jury that the plaintiff in the use of her bicycle on the bridge in question was not bound to use the carriage drive, but had the right to go over any part of the bridge open for travel.^" (1436) The court instructs the jury that it is the law of that persons using bicycles on the public high- ways and bridges of the state are entitled to the same rights and subject to the same restrictions in the use thereof as are prescribed by law in the case of persons using carriages drawn by horses.^^ (1437) The court instructs the jury that the county com- missioners were bound to foresee and reasonably provide against a common danger to ordinary travel on the bridge. It may be taken as a well-known fact that bicycles when they strike obstructions in their path, even in the control of expert riders, are apt to deviate from their course and take a sudden and erratic direction, unexpected by the riders ; just as no one can fofetell the conduct of a frightened horse. The presence of guard rails or barriers at the point of the accident would have been a protection from the danger of going over the bridge, no matter what the movements of a bicycle would be. The aptness of bicycles to deviate from their course and to take sudden and imexpeeted directions when meeting obstruc- tions in their path was ordinary knowledge and to be expect- ed. If it were otherwise it would be extraordinary, because i» Approved in Strader v. Monroe, 202 Pa. 626. *» Approved in Strader v. Monroe, 202 Pa. 626. 21 Approved in Strader v. Monroe, 202 Pa. 626. (593) Instr. Juries — 38. 1438] HIGHWAYS. [Ch. 74 contrary to common observation and experience. The county commissioners should have guarded against that -which was to be expected, and it will not excuse the negligence of the com- missioners, or make that negligence the remote cause to assert that they could not foresee the peculiar aptness or freak of a bicycle to take sudden and unexpected courses when meeting obstacles in its path. The injury in the case must be the natural and probable consequence of the neglect to have had up guards or barriers, and the consequence is such as, under the surrounding circumstances of this case, might and ought to have been foreseen by the county commissioners.^^ (1438) The court instructs the jury that if the plaintiff knew of the existence of the obstruction, the plank on the bridge, or saw it before she reached it, or was careless in not observing it, and then carelessly or imprudently ran into it or on it and the accident resulted from such carelessness and imprudence, then she cannot recover. She must show you that she was reasonably careful and prudent as she rode across that bridge at the point of the accident. She must satisfy you of that first. If she has, then you may proceed to the second question.^* liability of private person for injuries caused by excavation in highway. (1439) The court instructs the jury that any person who makes an excavation in a public highway or street and who carelessly and negligently fails to provide proper safeguards for the protection of the public passing along said highways or streets is liable in damages to any person injured by reason of such excavation, if such person had no knowledge of the excavation, and such person was, at the time of the injury, in the proper use of the highway or street.^* " Approvel in Strader v. Monroe, 202 Pa. 626. 25 Approved In Strader v. Monroe, 202 Pa. 626. 2* Braslngton v. South Bound R. Co., 62 S. C. 326. (594) Ch. 74] HIGHWAYS. [1443 Criminal prosecution for destruction of bridge part of highway. (1440) The court instructs the jury that before you can convict you must be satisfied from the evidence beyond a rea- sonable doubt of the truth of the following propositions : 1. That the bridge in question was a public bridge. 2. That the road upon which it was placed was a public road at the time of the alleged destruction. 3. That the said road was properly established by the proper legal authorities, or was a public road by user, and was such public road at the time of the alleged destruction. 4. That the defendant, , willfully and unlawfully and maliciously did cut and destroy the said bridge with in- tent to injure the same.^** (1441) The court instructs the jury that if you shall be satisfied beyond a reasonable doubt that the portion of the road on which the bridge was placed had been totally aban- doned as a public road for a period of five years next prior to the establishing and placing thereon the bridge in question, then it ceased to be a public road and no conviction can be had.2« (1442) The court instructs the jury that if the portion of the road upon which the said bridge alleged to have been de- stroyed was placed had not been totally abandoned as a road for a period of five years next prior to the destruction charged against the defendant, then you may find that said part of the road was a public road, provided you further find that the said road was in the original instance properly established, or has been in public use for a period of ten years next prior to the alleged destruction of said bridge.^^ (1443) The court instructs the jury that the county com- missioners had no authority to vacate the road in question unless there was first filed in the proper office the petition re- 26 Approved in O'Dea v. State, 16 Neb. 241. 2« Approved In O'Dea v. State, 16 Neb. 241. >i Approved In O'Dea v. State, 16 Neb. 241. (595) 1444] HIGHWAYS. [Ch. 74 quired by law, properly published or posted, and any order they might make without first filing the petition and the pub- lication or posting of the required notice would not vacate said road.^* (1444) The court instructs the jury that you may, in en- deavoring to learn whether or not the defendant knew the bridge was a public one and located upon a properly estab- lished public road, consider that the defendant received damages from the county of W. for the land taken to con- stitute the part of the road upon which the bridge was lo- cated.^® (1445) The court instructs the jury that a public road may be properly established by user, and if the county at- tempted to establish the road in question and their proceed- ings were void, yet if the said road or the part thereof upon which the bridge was located was used as a public road, with the knowledge of the defendant, for the term of ten years just prior to the alleged destruction of said bridge, then the said road was properly established.*" II. Tdbnpikes. liability for injuries caused by defects in roadway. (1446) The court instructs the jury that if they find from the evidence that the injury complained of was caused by the defective, improper and dangerously unsound condition of the defendant's road, and but for such condition would not have occurred and that such condition was known or might by the exercise of ordinary diligence have become known to the defendant a sufficient time before the accident to have prevented the same and might have been prevented by the exercise of ordinary care on the part of the defendant, then the plaintiff is entitled to recover, unless the jury shall also 28 Approved In O'Dea v. State, 16 Neb. 241. 29 Approved in O'Dea v. State, 16 Neb. 241. 80 Approved In O'Dea v. State, 16 Neb. 24L (596) Ch. 7.] HIGHWAYS. [1448 find that the plaintiff's own negligence contributed in any degree to cause his misfortune, that is to say, unless the jury shall find : 1. That he was driving a horse not ordinarily gentle and well hroken, and that the accident would not have occurred had the horse answered to that description. 2. Or that he was driving with one hand so disabled from a previous ailment as to interfere with the proper manage- ment of his team and that the accident would not have oc- curred had the plaintiff had ordinary use of himself in that particular. 3. Or, that the plaintiff was wanting upon the occasion in question in that degree of attention, circumspection, skill and care to avoid accident, which ordinarily careful and com- petent drivers habitually employ, or might reasonably be ex- pected to employ in similar circumstances.^^ (1447) The court instructs the jury that if they shall find that the turnpike road of the defendant at the place in question was reasonably safe and fit to be driven upon with a team of two horses which were ordinarily gentle and man- ageable, and that one of the horses of the deceased was fright- ened at an object which would not ordinarily have frightened a gentle and well-broken horse, and that in consequence of which the horse got beyond the control of the plaintiff, and that the wagon was upset and the injuries to plaintiff were caused by his loss of control over said horse, then the verdict must be for the defendant.*^ (1448) The court instructs the jury that if they believe from the evidence that defendant corporation owned and kept open for public travel the turnpike road spoken of in evi- dence, then it was the duty of defendant to make its said 31 Approved in Baltimore & Liiberty Turnpike Co. v. Cassell, 66 Md. 419. S2 Approved In President, Managers & Company of the Baltimore & R. Turnpike Road v. State, 71 Md. 573. (597) 1449] HIGHWAYS. [Ch. 75 road in such manner and in such condition as to make it safe for persons traveling over the same, using ordinary care and caution while so traveling ; and if they shall further find that the defendant negligently permitted a part of its road to be in an unsafe and perilous condition for persons using same with ordinary care and caution, and that plaintiff while travel- ing over said road and said part and using ordinary care and caution, Avas injured by the upsetting of the vehicle in which he was traveling, as described in the evidence; and shall further find that the said accident was caused by the negli- gence of the defendant corporation in having its said road in an unsafe and pverilous condition for public travel at the place of accident, and not by any negligence of the said plaintiff directly contributing thereto, then the plaintiff is entitled to recover.** Burden of proof. (1449) The court instructs the jury that the burden of proof was on the plaintiff to show that the injury complained of was caused by the defendant's negligence, and that but for such negligence the injury would not have happened; and further that unless the jury should find from the preponder- ance of the testimony that the death of was caused solely by the defendant's negligence, the plaintiff was not en- titled to recover.** CHAPTER LXXV. HOMESTEAD. Occupation of premises as homestead, 1450. Abandonment, 1451, 1452. Occupation of premises as homestead. (1450) The court instructs the jury that if you believe »» Approved in President, Managers & Company of the Baltimore & R. Turnpike Road v. State, 71 Md. 573. 3* Approved in President, Managers & Company of the Baltimore & R. Turnpike Road v. State, 71 Md. 573. (598) Ch. 75] HOMESTEAD. [1452 from the evidence that the premises described in the petition of the plaintiff as the homestead of himself and wife were in fact used, occupied and enjoyed by said plaintiff and his said wife as their homestead up to the death of the wife, then in that case the plaintiff is entitled to recover, and your verdict will be for the plaintiff as to the homestead.'^ Abandonment. (1451) The court instructs the jury that if you believe from the evidence that defendant had abandoned the lot in controversy for home use and appropriated it for other than home purposes, then you will iind for plaintiff, unless you believe that at the time of the levy the defendant had re- appropriated said lot for homestead purposes and was using and occupying the same with the intention of permanently using and occupying the same as a home, then in that event you will find for defendant. If you believe from the evi- dence that defendant had abandoned the lot in controversy for the purpose of a home, and that at the time of the levy he was using and occupying it as a sham and pretext to shield it from his creditors, then you will find for plaintiff.^ (1452) The court instructs the jury that if you believe from the evidence that the plaintiff abandoned his wife, and left her to shift for herself, and that he failed to support his wife, and that he voluntarily and without cause left the prem- ises used and occupied as a homestead, and that he absented himself from said house and continued said abandonment up to the death of his said wife, — ^then and in that event you will find your verdict in favor of the defendant.* I Approved in Hector v. Knox, 63 Tex. 615. ■■' Approved In Mllburn Wagon Co. v. Kennedy, 75 Tex. 212. » Approved in Hector v. Knox, 63 Tex. 615. (599) HOMICIDE. [Ch. 76 CHAPTER IXXVI. HOMICIDE. I. The KnxiNo. Causal connection between injury and death — Killing of person mortally diseased, 1453, 1454. Same — As to contributing causes of death, 1455. Same — ^Absence of medical attention does not relieve defendant of responsibility, 1456. Same — Improper medical treatment, 1457. Same — Acceleration of death by defendant's act, 1458. As to the causal connection between the act or omission of ac- cused and the death, 1459. Willful exposure to weather, 1460. On the presumption of cause of death, 1461. As to the liability of defendant for a death caused In an at- tempt to suppress his unlawful conduct, 1462. Where the fatal weapon was discharged by the resistance of de- ceased, 1463. Death resulting from attempt to escape unlawful violence, 1464. II. MUBDEE AND ItS INCIDENTS. Premeditation — Act committed in the heat of passion, 1466. Time of premeditation, 1467, 1468. Intent to kill — As to the presumption of intent to kill from the infliction of a mortal wound, 1469-1471. Same — Person presumed to intend the natural consequences of his own acts, 1472. Same — Time within which intent to kill must be formed, 1473, 1474. Same — Effect of intoxication, 1475, 1476. Same — Where one person is killed In an attempt to kill another, 1477. Same — As to homicide committed by a person who is engaged In the commission of a crime, 1478, 1479. Same — As to a killing with a weapon not necessarily deadly, 1480. Same — As to whether the weapon used was deadly, 1481. Definition of malice aforethought, 1482, 1483. Implied malice, 1484-1487. Willfulness— Definition, 1488, 1489. (600) Ch. 76] HOMICIDE. in. Manslauqetek. Definition of manslaughter, 1490. Distinction between murder and manslaughter, 1491. Nature of manslaughter, 1492. Murder or manslaughter — Sudden combat, 1493. Same — Weapon prepared in anticipation of combat, 1494, 1495. Adequate cause for anger — The distinction between murder and manslaughter, 1496. As to the nature of provocation to reduce homicide to man- slaughter, 1497. As to sufSciency of provocation to reduce the homicide to man- slaughter, 1498. Same — Consideration of weapon used as determining sufficiency of provocation to reduce to manslaughter, 1499. Words insufficient to constitute adequate provocation, 1500. Provocation by words Inducing mutual combat, 1501. Manslaughter and mutual combat Induced by trespass upon land, 1502. Nature of passion sufficient to reduce homicide to manslaughters 1503. Passion which will mitigate a homicide need not be irresistible, 1504. Existence of cooling time, 1505, 1506. What is sufficient cooling time, 1507. IV. JUSTlriCATION AND EXCUSE. Right to kill in self-defense — In general, 1508, 1509. As to the nature of the danger which would justify the taking of a life in self-defense, 1510, 1511. As to the requirement that the danger must be imminent, 1512. Upon the rule that a danger need not be real, but only apparent^ 1513-1515. As to the requirement that the appearance of danger must b« such as to make a reasonable man believe himself in immi- nent danger, 1516. Previous threats, not accompanied by any overt act, insufficient, 1517. Threats to be considered In connection with acts of deceased, 1518. Bad character of deceased to be considered on issue of self-de« fense, 1519. As to the duty to retreat or escape before resorting to forcible defense, 1520. Same — Retreat not feasible, 1521. Same — Exception as to one assaulted in his own home, 1522. Same — Exception as to peace officer, 1523. (601) i453J HOMICIDE. LCh. 76 As to the requirement that defendant use no more force than la reasonably necessary, 1524. As to the right to kill for the prevention of a felony, 1525. Right to kill in defense of habitation, 1526, 1527. As to the right of an officer to kill in making an arrest, 1528- 1530. As to self-defense by aggressor, 1531-1533. As to right to kill in resistance of an unlawful arrest, 1531. Accident, 1535. Coercion by husband, 1536. I. The Killing. Casual connection between injury and death — Killing of person mortally diseased. (1453) The court instructs that if the jury believe that defendant did unlawfully strike deceased as charged and if they believe that at the time of such striking deceased was and for some time prior thereto had been suffering from (peritonitis), and was then mortally ill, yet if the jury be- lieve that the death of deceased was hastened by the blow struck by defendant, the fact that deceased was suffering from (peritonitis) and that such disease would probably have been fatal, does not extenuate defendant's guilt.-' (1454) The court instructs that though deceased was mor- tally wounded or was incurably diseased, yet if he retained any spark of vitality and the act of defendant cut short his existence and accelerated his death, defendant is responsible for the death to the same extent as if the deceased had been at the time in full health and vigor.'' Same — ^As to contributing causes of death. (1455) The court instructs that if the jury believe from the evidence that defendant inflicted upon deceased a mortal wound which was the proximate cause of his death, he is r& 1 People V. Lanagan, 81 Cal. 142. 2 Jackson v. Com., 100 Ky. 239; People v. Ah Fat, 48 Cal. 6X. (602) Ch. 76] HOMICIDE. [145S sponsible for such death, though other causes contributed thereto.* Same — Absence of medical attention does not relieve defendant of responsibility. (1456) The court instructs that if the jury believe frouj the evidence that defendant unlawfully inflicted upon de- ceased a wound not necessarily fatal and which might, h} proper and skillful medical care, have been cured, and thai the death of deceased from such wound resulted from the ab- sence of such medical treatment and care, defendant is none the less liable for such death, and if no new, independent and proximate cause between such wound and the death shall ap pear other than the absence of proper medical attention, de fendant is liable to the same extent as though death had re suited immediately from the wound inflicted by him.* Same — ^Improper medical treatment. (1457) The court instructs that if the jury believe from the evidence that defendant unlawfully inflicted upon de- ceased a wound from which he thereafter died, he is respon- sible, though such wound was aggravated by improper and unskillful medical treatment, and the death would not have resulted in the absence of such unskillfulness." Same — ^Acceleration of death by defendant's act. (1458) The court instructs that thoueh the death of de- ceased was not caused solely by the act of the defendant, and though such act would not have been by itself sufficient to cause death, if such act accelerated the death, defendant is liable therefor to the same extent as if death had been caused solely by his act.* 'Com. V. Fox, 7 Gray (Mass.) 586; Burnett v. State, 14 Lea (Tenn.) 439. * State V. Smith, 10 Nev. 106; State v. Lane, 158 Mo. 572. "Com. y. Hackett, 2 Allen (Mass.) 136; Sharp v. State, 51 Ark. 147; State v. Murphy, 33 Iowa, 270. « Hackett T. People, 54 Barb. 370; Tldwell v. State, 70 Ala. 33. (603) i459] HOMICIDE. [Cb. 76 As to the cansal connection between tbe act or omission of ac- cused and tbe death. (1459) The court instructs that defendant is not respon- sible for the death of deceased unless it was caused by his own act or omission, or the act or omission of some other person for which he is lawfully responsible, and if the act or omission of defendant was merely a condition incident to the death and not a proximate cause thereof, he is not respon- aibleJ Willful exposure to weather. (1460) The court instructs that if the jury believe thai deceased was defendant's wife ; that she was in such condition as to be unable to reach shelter or protect herself, and de- fendant, knowing of her condition, and, from the state of the weather and the length of time he left her, having reason to believe that leaving her there would endanger her life, did willfully leave her and that her death was caused by such exposure, then he is guilty of murder.* On the presumption of cause of death. (1461) The court instructs that if it is shown by the evi- dence that defendant inflicted an injury capable of causing death, and that the deceased person thereafter and within a year and a day died, it will be presumed that the death re- sulted from the injury so inflicted.* As to the liability of defendant for a death caused in an at- tempt to suppress his unlawful conduct. (1462) The court instructs that though defendant was at the time of the killing of deceased engaged in a breach of the peace, and a duly authorized peace officer in attempting to 'Com. V. Campbell, 7 Allen (Mass.) 541; People v. Rockwell, 39 Mich. 503. 8 Territory v. Manton, 18 Mont. 95. » Edwards v. State, 39 Pla. 753; Smith v. State, 50 Ark. 545. (604) Ch. 76] HOMICIDE. [1465 suppress the same or to arrest defendant, accidentally shot and killed an innocent third person, the acts of defendant were not the proximate cause of such killing, and he cannot be held responsible therefor.*" Where the fatal weapon was discharged by the resistance of deceased. (1463) The court instructs that if the jury believe from the evidence that defendant was endeavoring by the use of a deadly weapon to take the life of deceased, and in the effort of deceased to dispossess defendant of such weapon, he acci- dentally discharged the same and was thereby killed, defend- ant is liable for the death to the same extent as though the shot had been intentionally fired by him.** Death resulting from attempt to escape unlawful violence. (1464) The court instructs that if the jury believe from the evidence that defendant wrongfully made a violent and unlawful assault upon deceased, and deceased being then un- der a well-founded and reasonable apprehension of immediate injury, fled from the assault and in his flight accidentally fell and received injuries resulting in his death, defendant is liable for his death.*^ (1465) The court instructs that if the jury believe from the evidence that the defendant, and others, conspired to take the life of the said deceased, whether by hanging, or other- wise; that with such premeditated design they took deceased into their custody ; that they then bound his arms so as to ren- der him helpless, forced him into a hack, and started wdth him to the timber on the river, with the avowed design of hanging him; that while in their custody, and thus bound, 10 Butler v. People, 125 111. 641; Com. v. Campbell, 7 Allen (Mass.) 541. 11 Murphy v. People, 37 111. 447. "Thornton v. State, 107 Ga. 683. (605) 1460] HOMICIDE. [Ch. 76 and when on the bank of said river, the said deceased, from a well-founded apprehension that his life was in danger — either hoping to escape, or from a choice as to the manner of death — jumped from said hack into said river, and was drowned; and that the said defendant and others engaged with him, stood by, and permitted him to drown, making no effort to rescue said deceased, then, and in that case, the fact that the said defendant, and others engaged with him, de- signed to take the life of the said deceased, by hanging or otherwise, and not by drowning, is utterly immaterial, and cannot reduce tte criminal nature of the act to murder in the second degree.'* II. M0EDEB AND ItS INCIDENTS. Premeditation — Act committed in the heat of passion. (1466) The court instructs that to constitute murder the act must be perpetrated not only with intent to kill, but with deliberation and with premeditation. If defendant inflicted the wound which caused death in a sudden transport of pas- sion, excited by what the defendant then said, or disturbed by preceding events, which for the time disturbed his reasoning faculties and deprived him of the capacity to reflect, or while under the influence of some sudden and uncontrollable emo- tion, the act is not murder.'* Time of premeditation. (1467) The court instructs that the law knows no specific time within which an intent to kill must be formed so as to make it murder. If the will accompanies the act a moment antecedent to the act itself which causes death, it is as sufii- eient to make the offense murder as if it were a day or any other tima'° (1468) The court instructs the jury that "deliberately" "State V. Shelledy, 8 Iowa, 477. 14 People V. Barberi, 149 N. Y. 256. See, also, post, subd. 3. 15 State V. Anderson, 2 Overt. (Tenn.) 6. (606) Ch. 76] HOMICIDE. [1471 means in a cool state of the blood. It does not mean brooded over or reflected upon for a week, a day, or an hour, but it means an intent to kill, executed by the defendant, in a cool state of the blood, in furtherance of a formed design to grat- ify a feeling of revenge, or to accomplish some other unlaw- ful purpose, and not under the influence of a violent passion, suddenly aroused by some provocation.*® Intent to kill — As to the presumption of intent to kill from the infliction of a mortal wound. (1469) The court instructs that the killing must have been willfully done to constitute the offense murder, but willfully means intentionally, not accidentally, and in the absence of qualifying facts, the law presumes that a person intends the natural and probable result of his acts, so that if the jury be- lieve from the evidence beyond a reasonable doubt that de- fendant being armed with a revolver shot the deceased in a vital part and killed him, they should find that defendant in- tended to kill, until the facts show a contrary intent.-*^ (1470) A mortal wound given with a deadly weapon in the previous possession of the slayer, without any, or upon very slight, provocation, is prima facie willful, deliberate, and premeditated killing, and throws upon the accused the necessity of proving extenuating circumstances. ■** (1471) The court instructs the jury that if they believe from the evidence that the defendant willfully, that is inten- tionally, used upon deceased, at some vital part, a deadly weapon, as a loaded revolver or pistol, in the absence of qual- ifying facts, defendant must be presumed to know that the effect is likely to be deadly, and knowing this must be pre- sumed to intend death, which is the probable and ordinary consequence of such an act, and if such deadly weapon ia used without just cause or provocation he miist be presumed " State V. Gee, 85 Mo. 647. 1' State V. Silk, 44 S. W. 764. 18 Gray v. Com.. 92 Va. 772, (607) 1472] HOMICIDE. [Ch. 76 to do it wickedly, or from a bad heart, and if the jury believe that defendant took the life of deceased by shooting him in a vital part with a revolver or pistol with a manifest design to use such weapon upon him, and with sufficient time to delib- erate and fully form the conscious purpose to kill, and with- out sufficient reason, or cause or extenuation, then such kill- ing is murder in the first degree, and whilst it devolves on the state to prove the willfulness, deliberation, and malice aforethought, all of which are necessary to constitute mur- der in the first degree, yet these need not be proved by direct evidence, but may be deduced from all the facts and circum- stances attending the killing, and if the jury are satisfied and reasonably infer their existence from all the evidence, they will be warranted in finding defendant guilty of murder in the first degree.''* Same — Person presumed to Intend the natural consequences of Ms own acts. (1472) The court instructs that a person must be pre- sumed to intend to do that which he voluntarily and willfully doe." in fact do, and he must be presumed to intend all the natural, probable and usual causes of his own acts.*" Same — Time within which intent to kill must be formed. (1473) The court instructs that the time for deliberation and premeditation need not be long. If it furnishes room and opportimity for reflection, and the facts show that such reflection existed, and that the mind was busy with its de- sign, and made the choice with full chance to choose other- wise, there is sufficient deliberation.*^ (1474) The court instructs that all the law requires is that there should be some reflection and some thought preceding the blow. If there is thought, if there is reflection on the act " State v. Wisdom, 84 Mo. 177 20 Com. V. Webster, 5 Cush. (Mass.) 295. 21 People V. Beckwlth, 103 N. Y. 360. (608) Ch. 76] HOMICIDE. [1476 and if there is a choice and a determination as the result of these mental actions, then there is sufficient deliberation with- in the law.^^ Same — Effect of intoxication. (1475) The court instructs that though the fact of intoxi- cation at the time of the commission of a crime is no excuse or justification therefor, yet where it is essential to the crime charged in the indictment that a particular and specific in- tent be at the time entertained, the fact of intoxication is ma- terial upon the capacity of the defendant to entertain such an intent. And in this case if the jury believe from the evi- dence that at the time of the commission of the homicide, de- fendant was by reason of intoxication incapable of entertain- ing an intent to kill, he cannot be convicted of murder, but if at all only of some degree of homicide, to which such an in- tent is not material.^* (1476) The court instructs the jury that if they believe from the evidence beyond a reasonable doubt, that the pris- oner gave the deceased the wound from which she died, as charged in the indictment, and that though he was at the time of committing the act so intoxicated as to render him incapa- ble of forming a willful, deliberate and premeditated pur- pose, yet if they believe from the evidence, beyond a reason- able doubt, that the prisoner, before becoming intoxicated, or while he was, though drinking, still in a condition in which he was capable of forming a willful, deliberate and premedi- tated purpose, had formed a willful, deliberate and premedi- tated purpose to kill the deceased, and that he af+prwards in pursuance of that purpose, so formed, gave the deceased the wound from which she died as charged in the indictment, then they are instructed that such an act upon the part of the prisoner, though he may have been intoxicated at the time of 22 People V. Hawkins, 109 N. Y. 408. 23 People V. Fish, 125 N. Y. 136. (609); Instr. Juries^ — 39. 1477] HOMICIDE. [Ch. 76 oommitting it, constituted in the eye of the law a willful, de- liberate and premeditated killing and as such is murder in the first degree.^* Same — ^Where one person is killed in an attempt to kill another. (1477) The court instructs that if defendant willfully and with malice aforethought fired the fatal shot with intent to kill a person other than deceased, and deceased was actually killed thereby, the crime is murder, though there was no ac- tual intent to produce the result.^* Same — As to homicide committed by a person who is engaged in the commission of a crime. (1478) The court instructs that if two or more persons engage together in the commission of a crime and in the exe- cution thereof, or in an effort to resist arrest, one of them shall commit a homicide, all are responsible therefor to the same extent as if such homicide had been originally contem- plated.^* (1479) The court instructs that where two or more per- sons combine to do an unlawful act, and death happen to an- other party in the prosecution of the unlawful act designed, it is murder in all who thus conspire, whether they were present at the time of the death or not. If the unlawful act, contemplated or designed, was to take the life of a human being, or to commit arson, burglary, mayhem, or robbery, it is murder in the first degree. If the design or intention was to commit any unlawful act, it is murder in the second de- gree, or manslaughter, according to the circumstances.^^ Same — ^As to a killing with a weapon not necessarily deadly. (1480) The court instructs that if you believe from the evidence that the defendant killed the deceased by striking 21 Reed v. Com., 98 Va. 817. 25 Dunaway v. People, 110 111. 333. MRitzman v. People, 110 111. 362; McMahan v. People, 189 111. 222. 27 State V. Shelledy, 8 Iowa, 477. (610) Ch. 76] HOMICIDE. [148i him on tlie head with a stick, that the size of the stick was such, that in the hands of a man of ordinary strength, strik- ing a violent blow with it on the head, it was a dangerous weapon, and that the necessary consequence of the blow strucl- by the defendant, with such a stick, upon the head of the dc ceased, was to destroy his life, and that his death was caused by such a blow, you should find defendant guilty of murder.^* Same — As to whether the weapon used was deadly. (1481) The court instructs that if you believe, from the evidence, that the stick in question was a large one, and that the necessary consequence of a violent blow with it on the head, by a man of ordinary strength, would be to destroy hu- man life, the law regards such a stick, when used in striking a fellow creature, as a deadly weapon ; and if you further be- lieve, from the evidence, that defendant struck deceased with such a stick upon the head, and thereby caused his death, he is guilty of murder.^' Definition of malice aforethoug:ht. (1482) The court instructs that murder is the killing of any person with malice aforethought, either express or im- plied by law. Malice in this definition is used in a tech- nical sense including not only anger, hatred and revenge, but every unlawful and unjustifiable motive. It is not confined to ill will toward one or more individual persons, but is in- tended to denote an action flowing from any wicked or corrupt motive and thing done malo animo, where the act has been attended with such circumstances as to carry in them the plain indications of a heart regardless of social duty and fa- tally bent on mischief, therefore, malice is implied from any deliberate or cruel act against another, however sudden.*" (1483) The court instructs the jury that maliee, as used 28 Davis V. People, 19 111. 73, 75. 29 Davis V. People, 19 111. 73, 75. »<>Com. V. Webster, 5 Cush. (Mass.) 295. (611) 1484] HOMICIDE. [Ch. 76 in the indictment, does not mean mere spite, ill ■will, or dis- like, as it is ordinarily understood, but it means that condi- tion of the mind which prompts one person to take the life of another without just cause or justification, and it sig- nifies a state of disposition which shows a heart regardless of social duty, and fatally bent on mischief. Malice afore- thought means that the act was done with malice and premedi- tation.*^ Implied malice. (1484) The court instructs that implied malice exists when there is no actual intent to kill any person, but death is caused by conduct which the law regards as showing such an abandoned state of mind as to be equivalent to an actual intent to kill. From such conduct the law implies malice.*^ (1485) The court instructs that malice is implied by law where there was a voluntary act of killing not induced by any apparent or apprehended danger to defendant and without such provocation as is calculated to excite irresistible pas- sion.*' (1486) The court instructs that malice includes not only anger, hatred and revenge, but any other unlawful and un- justifiable motive, and thing done with a wicked mind and attended by such circumstances as plainly to indicate a heart regardless of social duty and fatally bent on mischief, show malice. Hence malice is implied by law from any cool and deliberate act against another, however sudden, which shows an abandoned and wicked heart.** (1487) The court instructs that where a person commits an act wantonly and with a total disregard of the lives of oth- ers, malice will be imputed to such act, though there was no »i State V. Gee, 85 Mo. 647. S2 Hadley v. State, 55 Ala. 31. »3 Peri V. People, 65 111. 17. »< State V. Dolan, 17 Wash. 499. (612) Ch. 76] HOMICIDE [1489 actual malice entertained against the person injured there- WillfTihiess — ^Definition. (1488) The court instructs the jury that the word willful, as used in the indictment and in these instructions, means, intentionally, that is, not accidentally} deliberately means in a cool state of the blood, that is, not in the heat of passion ; premeditated means thought of beforehand for any length of time however short; malice in the instructions does not mean hatred or ill will, as it commonly does, but it means the intentional doing of a wrongful act ; heat of passion, as used in these instructions, means a condition of quick anger or sudden injury, engendered by a real or supposed grievance suffered at the time, and in order to reduce the crime from murder in the first to murder in the second degree, the kill- ing must be done upon the instant the provocation is given, before the blood has had time to cool and reason to resume its sway, before the mind has time to consider the character and gravity of the act about to be done, and not from hatred or for pre-existing revenge.^® (1489) The court instructs the jury that the word "will- fully," as used in these instructions, means intentionally, not accidentally. "Deliberately" does not mean brooded over, considered or reflected upon for a week, a day or an hour, but it means an intent to kill, executed by the defendant in a cool state of the blood in furtherance of a formed design to grat- ify a feeling of revenge or to accomplish some other unlaw- ful purpose and not under the influence of a violent passion suddenly aroused by a real or supposed grievance amounting to a temporary dethronement of reason. A heated state of the blood produced by no legal or adequate cause of provoca- tion is discarded, but when produced by such a provocation, it is by the law denominated passion or excitement of mind. S5 Mayes v. People, 106 111. 306; Davison v. People, 90 111. 221. 80 State v. Jones, 78 Mo. 278. (613) 14^0] HOMICIDE. [Ch. 7b When the mental excitement or passion is suddenly produced by an adequate cause of provocation such as opprobrious epi^ thets and the like, and is produced to such a degree as to ma- terially impede or interfere with the reason or judgment, then there can be no legal deliberation in an act done under its immediate and sudden influence, and when this passion is produced by an assault or personal violence not provoked by the defendant, and such passion thus aroused is so violent as to render one not unconscious of the act, but deaf to the voice of reason, and under the control of such a passion he suddenly acts, it is not an act of deliberation or of malice. "Premeditatedly" means thought of beforehand, for any length of time however short. "Malice" as used in the in- dictment, does not mean, in the legal sense, mere spite, iU will or dislike, as it is ordinarily understood, but it means that condition of mind which prompts one person to take the life of another, without just cause or justification, and signi- fies the state of disposition which shows a heart regardless of social duty and fatally bent on mischief; and malice afore- thought means that the act was done with malice and pre- meditation.^^ III. Manslaughtee. Definition of manslaughter. (1490) The court instructs that manslaughter is the un- lawful killing of another without malice and may be either voluntary, as where the act is committed with a real design and purpose to kill, but through the violence of sudden pas- sion occasioned by some great provocation, which in tender- ness for the frailty of human nature, the law considers sufii- cient to palliate the criminality of the offense, or involuntary, as where the death of another is caused by some unlawful act not accompanied with any intention to take a life.** 37 state V. Thomas, 78 Mo. 327. 38 Com. V. Wetster, 5 Cush. (Mass.) 295. (614) Cia. 76] HOMICIDE. £1493 Distinction between murder and manslaughter. (1491) The court instructs that from the definition giv- en, it will be perceived that the characteristic distinction be- tween murder and manslaughter is the existence of malice, express or implied. It therefore becomes necessary in every case of homicide to ascertain with some precision the nature of legal malice and what evidence is requisite to establish its existence. The rule is that the implication of malice arises in every case of intentional homicide, and the fact of killing being first proved, all the circumstances of accident, neces- sity or infirmity are to be established by the party charged, unless they arise out of the evidence produced against him to prove the homicide, where the fact of killing is proved by . satisfactory evidence and there are no circumstances disclosed tending to show justification or excuse, and there is nothing to rebut the natural presumption of malice. This rule is founded on plain and obvious principles that a person must be presumed to intend that which he voluntarily and will- fully does, and that he must intend all the natural, probable and usual consequences of his own acts. On the other hand, if death, though willfully intended, appears to have been in- flicted immediately after provocation given by deceased, which provocation is deemed by law adequate to excite sudden and angry passions, this fact rebuts the presumption of ma- lice, but the homicide is stiB unlawful, because a man is bound ta curb his passions and the offense is accordingly man- slaughter,'* Nature of manslaughter. (1492) The court instructs that the true nature of man- slaughter is that it is a homicide mitigated out of tenderness to the frailty of human nature. Every man when assailed with violence or great rudeness is inspired with a sudden im- pulse of anger, which puts him upon resistance before time s»Com. V. Webster, 5 Gush. (Mass.) 295. (615) 1493] HOMICIDE. [Ch..76 for cool reflection ; if during that period be attacks his assail- ant with a weapon likely to endanger life and death ensues, it is regarded as done through heat of blood and violence of anger and not through malice. The same rule applies to a homicide in mutual combat which is attributed to sudden and violent anger occasioned by the combat, and not to ma- lice. Where two meet, not intending to quarrel and angry words suddenly arise and a conflict springs up, in which blows are given on both sides, it is a mutual combat, without much regard to who is the assailant, and if no unfair advantage be taken in the outset, and an occasion is not sought for the pur- pose of gratifying malice, and one seizes a weapon and strikes a deadly blow, it is regarded as homicide in the heat of blood, and though not excusable, it is not murder, but manslaughter only.*» Murder or manslaughter — Sudden comliat. (1493) The court instructs that if two persons meet and hot words follow, and that is followed by a combat, which is calculated to stir the blood and arouse the passions, and that in the midst of that struggle, one takes the life of the other, such killing is manslaughter and not murder.*^ Same — ^Weapon prepared in anticipation of combat. (1494) The court instructs that if the jury believe from the evidence that defendant and deceased mutually engaged in a personal combat without weapons, but that defendant in anticipation of such combat had without the knowledge of deceased provided himself with a deadly weapon and in the course. of the combat so mutually agreed upon, did kill de- ceased by the use of such deadly weapon, the offense is mur- der and not manslaughter.*^ (1495) The court instructs the jury that although they m the defendant by his consent without a separate maintenance being- given to her, and that the defendant's wife piipchased necessaries of the plaintiff while so living apart from the de- fendant, then defendant is liable for such necessaries, and what are necessaries must be ascertained from the circum- stances of the defendant.^^ (1553) The court instructs the jury that if the husband and wife part by consent, and he secures to her a separate maintenance suitable to his condition and circumstances in life, and pays it according to agreement, he is not answerable even for necessaries; and the general reputation of the separa- tion will, in that case, be sufficient to protect the husband from liability to tradesmen selling goods to the wife.^^ (1554) The court instructs the jury that if they believe from the evidence that the wife of defendant was treated by the defendant with such abusive cruelty that she was in- formed by her attending physician that it would not be safe for her to continue to live with the defendant, and if the jury further believe from the evidence that in consequence of such ill-treatment and in consequence of the advice so given, de- fendant's wife separated from him and lived apart from him, and if the jury further believe from the evidence that defend- ant's wife was justified in so living apart, then the jury may find the defendant liable for necessaries furnished to the wife by the plaintiff while she was so living apart from the defendant.-** (1555) The court instructs the jury that if they believe from the evidence that the defendant had provided a home for his wife, together with the necessaries of life suitable to de- fendant's condition and his financial circumstances, and that if the jury further believe from the evidence that defendant's loPomeroy v. Wells, 8 Paige, 406. i» Le BoutilUer v. Piske, 47 Hun, 323, 13 State Rep. 439. «8 Wilson T. Bishop, 10 111. App. 588. (639) 1556] HUSBAND AND WIFE. [Ch. 78 wife received good treatment from him, and notwithstanding this voluntarily and without sufficient cause deserted him and lived apart from him, then the defendant will not be liable for necessaries furnished to the wife by the plaintiff while so living apart from defendant.^* (1556) The court instructs the jury that tradesmen who sell goods to a wife upon her husband's account after notice from him not to do so, cannot recover from him therefor, unless they show a subsequent promise by him to pay or that the goods sold were necessary and suitable to her condition in life and that she was not otherwise provided for by the de- fendant.2» (1557) The court instructs the jury that to entitle the plaintiff to recover in this action, he must show that the de- fendant neglected to furnish necessaries to his wife.^* CHAPTER LXXVIII. IMPLIED CONTRACTS. Promise implied from conduct of parties, 1558-1560. Between members of family to pay for board, services, etc., 1561, 1562. Where special promise exists, 1563, Promise implied from conduct of parties. (1558) The court instructs the jury that a promise would not be implied from the fact that the plaintiff, with the de- fendant's knowledge, built the and the defendant used it, but it might be imjplied from the conduct of the par- ties. If the jury find that the plaintiff undertook and com- pleted the building of the with the expectation that the defendant would pay him for it, and the defendant had reason to know that the plaintiff was so acting with that ex- pectation and allowed him to so act without objection, then loBevler v. Galloway, 71 111. 517. 20 Theriott v. Bagioli, 22 Super. Ct. (9 Bosw.) 578. 21 Arnold v. Allen, 9 Daly, 19S. (640) (jh. 78J IMPLIED CONTRACTS. [1516 the jury might infer a promise on the part of the defendant to pay the plaintiff.* (1559) The court instructs the jury that if they believe from the evidence in the case that the plaintiff rendered the services here sued for to the defendant, and that under all the circumstances of the case the services were of such a char- acter as to lead to a reasonable belief that it was the under- standing of the plaintiff and the defendant that pecuniary compensation should be made for them, then the jury may find an implied promise, and the plaintiff is entitled to recov- er what the jury may believe from the evidence in the case, such services were worth.* (1560) The court instructs that if one sees another doing work for him beneficial in its nature, and has reasons to be- lieve that the party doing the work supposes that he is doing the work for the party who receives the benefit thereof, and by his agent overlooks the work as it progresses, and does not interfere to forbid it, and does not act to undeceive the party so doing the work, the work being necessary and use- ful, and appropriates the work to his own use, he is liable on an implied promise to pay the value of the work, unless an express contract exists in the premises.* Between members of family to pay for board, services, etc. (1561) The court instructs that if the jury find from the evidence that the defendant is the mother of the plaintiff, and that, for the time mentioned in plaintiff's petition, the defendant lived with the plaintiff as one of his family, as- sisting in performing the ordinary duties of the household, and there was no express contract that the defendant was to pay for her board, and no understanding by either party that eueb board was to be paid for, then I charge that, as between 1 Day V. Oaten, 119 Mass. 513. 2Boulc V. Maught, 76 Md. 440. 8 Chicago V. Great Eastern R. Co., 41 111. 108. (641) Instr. Juries — 41. 1562] IMPLIED CONTRACTS. [Ch. 78 mother and son, there is no implied promise to paj for such board, and the plaintiff cannot recover in this case.* (1562) The court instructs the jury that if the plaintiff, after she arrived at full age, continued to live vsrith her father, as she had done previously, with no new duties or responsi- bilities assumed in the family by her, and was provided with necessaries, etc., as one of the family, she would not be en- titled to recover for such services, imless there was an express understanding between her and her father, before these serv- ices were rendered, that she should receive such compensa- tion; and if the note was given for such past services, and there was no such understanding existing between them, she cannot recover. But if the note was given for such past serv- ices, the fact that it was given, will raise a presumption that there had been a previous understanding or agreement be- tween the plaintiff and her father that such compensation was to be made, and unless such presumption is overcome by evidence that no such understanding existed, the plain- tiff will be entitled to recover.' Where special promise exists. (1563) The court instructs the jury that where there is a special contract founded upon a special promise, the law does not imply promises inconsistent with such special promise. The special promise excludes the idea of an implied one. Where the parties have seen fit to make their ovsna terms and engagements, the law confines the parties to such terms.' i Ayres v. Hull, 5 Kan. 419. Pitts' Adm'r v. Pitts, 21 Ind. 314. 8 Noyes v. Loring, 55 Me. 408, (642) Ch. 79] INCOMPETENCY. [1567 CHAPTER LXXIX. INCOMPETENCY. Competency to execute deed or to enter Into contract, 1564-1567. Insane delusions, 1568, 1569. Intoxication, 1570. Competeacy to execute deed or to enter into contract. (1564) The court instructs the jury that in order to en- able a man to make a deed of his property so as to pass the title, he must have sufficient mental capacity to understand the nature of the act in -which he is engaged in its full extent and effect, and the capacity must exist at the time of the act performed ; if it does not then exist the act would not be valid although the party might thereafter recover such capacity un- less he acquiesced in it or ratified it afterwards.-' (1565) The court instructs the jury that the law cannot undertake to measure the validity of contracts by the greater or less strength of the understanding; but if the defendant was at the time of signing the notes so insane or destitute of reason as not to know the consequences of the act, then it is void. If he did know what he was doing, and understood the consequences of his contract, then he is liable, and your verdict should be for the plaintiffs in case you so find.^ (1566) The court instructs the jury that should you find from the evidence, under the instructions given, that defend- ant was so insane as to be incapable of making a contract, then the fact that the plaintiffs had no knowledge of such fact would be immaterial, except as showing that the plaintiffs did not exercise any undue influence or fraud upon him.* (1567J The court instructs the jury that it does not require 1 Approved in -Wessell v. Rathjohn, 89 N. C. 377. > Approved in -Van Patton v. Beals, 46 lo-wa, 62. « -Van Patton v. Beals, 46 lo-wa, 62, (643) 1568] INCOMPETENCY. [Ch. 7^ a higli degree of mental power to make a binding agreement. One who has enough of mind and reason to clearly and fully understand the nature and consequences of his act in making a deed must be considered sane. One who has not this capac- ity is to be considered insane. If the defendant was insane, but had lucid intervals, he would during the lucid intervals have a right to make a contract, and if the jury believe from the evidence that the defendant was at times insane and that the contract here sued upon was made by defendant during lucid intervals, then the jury are instructed that such contract was binding upon the defendant.* Insane delusions. (1568) The court instructs the jury that if defendant, though knowing that he was making a deed and what it? effect would be, yet was rendered entirely indifferent to prop erty by an insane delusion that he was about to perish, or thai others who would be affected injuriously were about to per ish, so that he was incapacitated from a rational care for his own interest or theirs, then the deed may be avoided.' (1569) The court instructs the jury that it is not ever\' kind or degree of insanity that will relieve a party from th"^ effect or consequences of his acts, but the insanity must either be general, or if special, have relation to the act from whieli the party seeks to be relieved ; and in case the jury believe, from the evidence, that the insanity of , if existing at all, was on account of and confined to domestic troubles, and the real or supposed interference of his wife and friends, an'l that on the subject of business and property, and of his owii condition, relations and necessities in respect thereof, he wa-' of sound mind, then the jury will hold the contract valid, and will find for the plaintiff.® * Norman v. Georgia Tran. & Trust Co., 92 Ga. 295. 5 Approved In Bond v. Bond, 89 Mass. (7 Allen) 1. « Emery v. Hoyt, 46 111. 258. (644) Ch. 80] INFANTS. [1S71 Intoxication. (1570) The court instructs the jury that if they believe from the evidence that the plaintiff was intoxicated at the time of the making of the contract, which plaintiff seeks to rescind, hut that plaintiff was not so intoxicated that he did not know what he was doing at the time of making the con- tract, and if the jury believe from the evidence that no per- son connected with the making of the contract aided in or procured the intoxication of plaintiff, then the jury are in- structed that plaintiff cannot be relieved from the contract on the ground of intoxication.'' CHAPTER IXXX. INFANTS. Ratification after attainment of majority, 1571. Ratification after attainment of majority. (1571) The court instructs the jury that if they believe from the evidence that , after she became twenty-one years of age and before marriage, with knowledge that she, on account of infancy, was not liable to plaintiff for any pur- chases she may have made of him, expressly promised that she would pay for any portion of the articles mentioned in the bill of particulars, such a promise would be a ratification of the previous contract to the amount she promised to pay. If she promised to pay all, it would render her liable for all. If she promised to pay a part, or a certain sum, it would render her liable for such part, or for such certain sum ; and if she, after such promise paid any money to plaintiff, it would go as a credit on the amount for which she made her- self liable on the new promise.* ' Bates V. Ball, 72 111. 108. » Approved in Ogborn v. Hoffman, 52 Ind. 439. (645) 1572] INNS AND INNKEEPERS. [Ch. 81 CHAPTER LXXXI. INNS A.ND INNKEEPERS. Holding out as innkeeper, 1572. Necessity ttiat business be regular business of party sought to be charged, 1573. Innkeeper also boarding-house keeper, 1574. Restaurants and eating houses, 1575. Right to refuse entertainment to drunken persons, 1576. Who are transients, 1577. When relation ceases, 1578. Removal of objectionable guest, 1579. Property of guest for which Innkeeper Uahle — Money, 1580, 1581. Same— Goods, 1582. Care required, 1583, 1584. Custody of guest's property, 1585. Loss caused by elements, 1586. Duty to provide fire escapes, 1587. Holding out as iniikeeper. (1572) The court instructs the jury that it is not necessary for them to find as a matter of fact that defendant exhibited any sign indicating his occupation to be that of an innkeeper, but it is sufficient if from the facts it appears that by any word or act or otherwise he held himself out to the general public as an innkeeper readj to receive guests.^ Necessity that business be regular business of party sought to be charged. (1573) The court instructs the jury that in order to find that defendant was an innkeeper within the meaning of the law, the evidence must show that the keeping of an inn for the entertainment of the general public was the regular busi ness of defendant. It will not be sufficient to find that he has sometimes furnished travelers with the accommodations of an inn, and on the other hand it is not incumbent on plain- iLyon V. Smith, 1 Morris (Iowa) 184; Kisten v. Hildebrand, 9 B. Mon. (Ky.) 74, 48 Am. Dec. 416; Dickerson v. Rogers, 4 Hump. (Tenn.) 179, 40 Am. Dec. 642; Pinkerton v. Woodward, 33 Cal. 567; Howth V. Franklin, 20 Tex. 798, 73 Am. Dec. 218. (646) Ch. 81] INNS AND INNKEEPERS. [157S tiff to prove that innkeeping was the sole and exclusive occu- pation of defendant, nor that he was not at the same time engaged in any other kind of business.* Innkeeper also boarding-house keeper. (1574) The court instructs the jury that though they find from the facts that defendant at the time in question and at various times received and entertained guests as permanent occupants of his house and upon a monthly charge for board and lodging, they are, nevertheless, not precluded from find- ing that with respect to plaintiff, defendant sustained the character of an innkeeper, if the facts further show that de- fendant kept and maintained a house for the entertainment of such of the general traveling public as might apply trans- iently for entertainment and shelter, and if they further find that defendant held himself out to the public as keeping and conducting such a place of entertainment, and also that plain- tiff was so accommodated and entertained as a transient.^ Restaurants and eating houses. [151&) The court instructs the jury that if they find from the evidence that defendant provided only a restaurant or eating house for the entertainment of the general public, and did not in connection therewith provide, or offer to provide, lodging for such of his guests as might apply, then the de- fendant is not an innkeeper and he cannot be held liable as such.* 2 Kisten v. Hildebrand, 9 B. Mon. (Ky.) 72, 48 Am. Dec. 416; Lyon v. Smith, 1 Morris (Iowa) 184; State v. Matthews, 2 Dev. & B. L. 19 N. C. 424, also see Minor v. Staples, 71 Me. 316, where other business was conducted by the inn-keeper at the same time. 8 Poster V. State, 84 Ala. 451; Bullock v. Adair, 63 111. App. 30; Lusk V. Belote, 22 Minn. 468; Cromwell v. Stephens, 2 Daly (N. Y.) 15; Lawrence v. Howard, 1 Utah, 23. *Blum V. Southern Pullman Palace Car Company, 1 Flipp, U. S. 500; Shaeffler v. Willoughby, 163 111. 518, 54 Am. State Rep. 483; Car- penter V. Taylor, 1 Hilt. (N. Y.) 193; People v. Jones, 54 Barb. (N. y.) 311; Montgomery v. Ladjlng, 61 N. Y. Supp 840; Kelly v. Excise (G47) 1576] INNS AND INNKEEPERS. |(Jli_ g^ Eight to refuse entertainment to drunken persons. (1576) The court instructs the jury that if they find from the evidence that plaintiff at the time when he requested en- tertainment at defendant's inn was intoxicated and disorderly in his conduct, then defendant was justified in refusing plain- tiff entertainment in the inn, and is not liable in damages for so refusing." Who are transients. (1577) The court instructs the jury that the law does not regard defendant as an innkeeper in his dealings with the plaintiff, unless the jury find from the evidence that plaintiff entered the house of defendant as a transient and for a more or less temporary stay, but in order to be a transient, it is not necessary that the evidence should show plaintiff to be a person coming from a distance.* When relation ceases. (1578) The court instructs the jury that if they find from the facts that on the day in question, plaintiff was a guest in defendant's inn, and that on that day plaintiff paid his bill and departed from the inn, the defendant thereupon ceased to sustain the character of innkeeper and was not liable as an innkeeper for the loss of plaintiff's baggage, which he pei^ mitted to remain in the inn, notwithstanding facts show that at the time of his departure plaintiff intended to return to the inn.'' Eemoval of objectionable guest. (1579) The court instructs the jury that, having elim- inated from the case the question as to whether this man went Commissioners, 54 How. Pr. (N. Y.) 329; Kopper v. Willis, 9 Daly, 460. 5 Hutchlns V. Durham, 118 N. C. 457; McHugh v. Schlosser, 159 Pa. St 480; 39 Am. St. Rep. 699. ' « Walling v. Potter, 35 Conn. 183. 7 Miller v. Peeples, 60 Mass. 819; 45 Am. Rep. 423. (648) Ch. 81] INNS AND INNKEEPERS. [1S81 of his own motion, after a request, or whether he was thrust out, and assuming that you have decided that he was thrust out (because under my instructions, unless you do find that you cannot go any further), then the question is, was this man thrust out as a drunken man who was persisting in dis- orderly conduct in that hotel, or was he a sick man whose annoyance, if his conduct was annoying, came from his sick- ness. And for that purpose it doesn't make any difference whether his sickness if he was actually sick, came from the abuse of liquor or from any other cause. Simply because a man has made himself sick with liquor, if he is a sick man, , a hotel keeper cannot treat him as a willful wrongdoer ; he must treat him as a sick man and regulate his conduct ac- cordingly.* Property of guest for which innkeeper liable— Money. (1580) The court instructs the jury that if they find from the evidence in the cause, that the plaintiff was a guest of the defendant, as alleged in the declaration in this cause; that the trunk of the plaintiff was brought by him into the hotel of the defendant, while the plaintiff was a guest in said hotel; that the said trunk contained the bank-notes testified to by the plaintiff, and that said trunk and its contents were lost while so in said hotel, the plaintiff cannot recover for said bank-notes in this action, unless they shall also find that the said bank-notes were designed by the plaintiff for his use while on his journey or while a guest in said hotel, or unless they shall find that they were lost by the fraud or negligence of the defendant.* (1581) The court instructs the jury that if they find the facts stated in the above prayer, and also find that the plain- tiff had on his person at the time of his arrival at the hotel of defendant four or five hundred dollars in money of this • Approved In MeHugh v. Schlosser, 159 Pa. 480. « Approved in Treiber v. Burrows, 27 Md. 130. (649) 1582] INNS AND INNKEEPERS. [Ch. 81 country, and that the money in the trunk was in Canada money, they may find that the money of this country was intended by him for use on his journey, and was sufficient for that purpose, and if they do so find, then the plaintiff cannot recover for the money in the trunk, unfess they find it was lost by the fraud or negligence of the defendant.*" Same — Goods. (1582) The court instructs the jury that the plaintiff left and came to C, and brought the caddy or box of tea in controversy with him, and that said caddy or box had not been opened when he arrived at C, and that he intended renting a house and going to housekeeping in C, they may find that said tea was not intended for use while on his journey or while he was a guest in the hotel of the defendant (if they find he was such guest), and if they do so find, then the plaintiff cannot recover for said tea in this action, unless they also find that it was lost by the fraud or negligence of the defendant.*^ • Care required. (1583) The court instructs the jury that if they find from the facts that the plaintiff had left defendant's inn intending not to return, but had left in the inn certain property in care of defendant, in that case the duty of the defendant was no longer to protect the goods absolutely, but was only to exer- cise slight care in respect to tliem, and defendant is not to be held liable, unless the jury find that he was guilty of gross negligence. ^^ (1584) The court instructs the jury that it is the duty of an innkeeper to keep the goods of his guests safely, night and day, so that no loss shall happen through his fault or 10 Approved in Treiber v. Burrows, 27 Md. 130. " Treiber v. Burrows, 27 Md. 130, 12 Wear v. Gleason, 52 Ark. 64; 20 Am. St. Rep. 186; Murray v. Marshall, 9 Col. 482; 59 Am. Rep. 152; Whltemore v. Haroldson, 2 Lea (Tenn.) 312. (650) Ch. 8J] INNS AND INNKEEPERS, [1587 through that of his servants or others for whose presence in the inn the innkeeper is responsible, and if the facts show that the innkeeper was guiltj of any breach of his duty in these respects, then the guests may recover for the loss sus- tained. Custody of guest's property. (1585) The court instructs the jury that unless they find from the evidence that at the time of the loss or injury the plaintiff's goods were in the custody of the defendant, as a keeper of a house for the entertainment of the traveling public, he would not be absolutely liable for injury to the goods ; but it is not necessary that the jury find that the plain- tiff's goods were strictly within the building used as the inn, nor that the goods were in the special keeping or physical custody of the defendant. It is sufilcient if the facts show that the plaintiff's goods were in a place provided for that purpose, or that they were delivered to an authorized serv- ant of the defendant.^ ^ Loss caused by elements. (1586) The court instructs the jury that if they find from the facts that the loss in question was due to the violence of the elements and the violence was unusual and such as no hu- man foresight and the exercise of extraordinary care could have averted, then the defendant is not liable for any loss thereby resulting and the jury will find for defendant, or if the jury find from the evidence that the loss was caused by the destructive forces of the elements, and that the plaintiff himself was negligent in failing to exercise the proper pre- caution for the safety of his own property, in that case also they will find for the defendant. Duty to provide fire escapes. (1587) The court instructs the jury that it is by statute IS Piper V. Manny, 21 Wend. (N. Y.) 282;; Packard v. Northcraft, 2 Mete. (Ky.) 442; Norcross v. Norcross, 53 Me. 163. (651) 1588] INNS AND INNKKEPERS. [Ch, 82 made the duty of an innkeeper to provide safe and sufficient fire escapes upon the building occupied as an inn, and if the jury find from the facts that defendant did not equip his building with a sufficient number of sufficiently large fire escapes, or if they find that the fire escapes provided were not so placed upon the building as to be readily accessible to guests, the plaintiff may recover for any injury sustained by reason of defendant's negligence. CHAPTER LXXXn. INSANE PERSONS, Liability for assault, 1588. Liability for assault. (1588) The court instructs the Jury that if the act of in assaulting the party, which is admitted to consti- tute a breach of the bond, Avas caused by mental disease or unsoundness which dethroned his reason and judgment with respect to that act, — ^which destroyed his power rationally to comprehend the nature and consequence of that act, and which overpowering his will irresistibly forced him to its commis- sion, then he is not legally answerable therefor. But if you believe from all the evidence and circumstances that he was in possession of a rational intellect and soimd mind, and al- lowed his passions to escape control, then though passion may for the time being have driven reason from her seat and usurped it, and have urged him with a force at the moment irresistible to desperate acts, he cannot claim for such acts the protection of insanity.* 1 Approved In State v. Geddls, 42 Iowa, 264. Court holds that there is no distinction between civil and criminal causes. (652) Ch. 83] INSURANCE. CHAPTEE LXXXin. INSURANCE. I. General Peinotples. Fraudulent representations by insured, 1589, 1590. Honest disclosure of material facts, 1591-1593. Distinction between representation and warranty, 1594. Knowledge by insurance company of hazardous character of risk, 1595. Authority of agent of insurance company, 1596. Authority of agent of Insurance company to receive notice of ad- ditional Insurance, .1597. Authority of agent to waive terms of policy, 1598. Incorrect statement by Insurer's agent — ^Responsibility of In- surer therefor, 1599. II. Life Insueance. Insurable interest, 1600, 1601. Warranties, 1602-1605. Necessity that false statement should be fraudulent In order to avoid policy, 1606. Materiality of misrepresentations or fraudulent statements by the insured, 1607-1609. Same — ^Warranties, 1610. Misrepresentations in application as to occupation of insured, 1611, 1612. Misrepresentations by the insured as to his health, 1613, 1614. Misrepresentations by applicant as to attendance of physician, 1615, 1616. Misrepresentations by insured as to having consulted physicians, 1617. Misrepresentations or false statements as to existence of con- sumption among relatives of applicant, 1618, 1619. Misrepresentations by insured as to previous applications for insurance, 1620, 1621. Misrepresentations by third persons, 1622. Defense, to action on premium note, of misstatement by agent of insurance company, 1623. Estoppel to insist upon forfeiture of policy, 1624, 1625. Waiver of right to avoid policy for misrepresentations, 1626. Notice and proof of death, 1627, 1628. Same — Effect of refusal to pay policy, 1629, 1630. Burden of proof, 1631. (053) INSURANCH. [Ch. 83 III. Accident Insueanoe. Representations by applicant as to occupation, 1632. Unnecessary exposure to danger, 1633. Notice and proof of injury, 1634. Time within which action may be brought, 1635. IV. FiKB Insurance. Mistalce in description — Materiality, 1636. Avoidance of policy because of misrepresentations and fraud of the insured, 1637-1641. Misstatements made through fault or negligence of agent of in- surer, 1642, 1643. Same — Representations as to condition and occupancy of prem- ises insured, 1644. Materiality of representation as to keeping watchman, 1645. Duty to disclose particular circumstances of peril, 1646. Character of property — Generation of Illuminating gas, 1647. Avoidance of policy for misrepresentations by insured as to na- ture of title, 1648-1650. Misrepresentations as to amount of incumbrance on property in- sured, 1651-1653. Avoidance of policy because of overvaluation of property in- sured, 1654, 1655. Violation of condition of policy as to occupancy of premises, 1656-1664. Avoidance of policy because of increase of risk, 1665-1667. Condition in policy against other Insurance, 1668. Avoidance of policy for failure to give notice of subsequent In- surance, 1669. Written consent to other Insurance, 1670-1672. Forfeiture of policy for violation of condition with regard to care of property, 1673. Prohibited articles — Keeping gasoline on premises, 1674. Forfeiture of policy for breach of agreement as to watchman, 1675. Keeping books and papers In safe, 1676, 1677. Defense that fire was caused by plaintiff, 1678. Losses covered by policy, 1679. Renewal of policy, 1680, 1681. V. Waivbb op Right to Avoid oe Fobfbit Fibb Insurance Poliot. In general, 1682-1684. Waiver of condition that watchman should be kept, 1685, 1686. Waiver of right to avoid policy for misrepresentations in appli- cation, 1687. Waiver of condition requiring consent of insurer to other In- surance, 1688. (654") Ch. 83] INSURANCE. [1591 Same — Parol waiver, 1689. Waiver by demanding proofs of loss, 1690, 1691, Prohibition against operating factory at night — Estoppel to as- sert, 1692. VI. ProoFS OF Loss by Fire. Malting of proofs by agent, 1693. Time of making proofs of loss, 1694-1696. Proof as to cause of- loss, 1697. Waiver of proof of loss, 1698, 1699. VII. Marine Insurance. Losses covered, 1700. Abandonment, 1701-1706. I. General Principles. Fraudulent representations by insured. (1589) Contracts of insurance may be avoided for false and fraudulent representations, or other fraud, by which they were induced, the same as other contracts; and such a de- fense requires no other elements or stronger evidence of fraud in cases of insurance than in any other.' (1590) The court instructs the jury that the burden of proof to establish the materiality of the concealment or mis- representation relied upon by the defendant as avoiding the policy here sued on as well as the alleged fraudulent intent, is upon the defendant.^ Honest disclosure of material facts, (1591) The court instructs the jury that each party to a contract of insurance must communicate to the other in good faith all facts within his knowledge which are or which he believes to be material to the risk and which the other has not the means of ascertaining and as to which no warranty is made, and if specific information is required by the in- surer on any point he deems material, it must be fully and correctly communicated.* 1 Ryan v. Springfield Fire & Marine Ins. Co., 46 Wis. 671. s Elliott, Insurance, § 118. sValton V. National Fund Life Assur. Co., 20 N. Y. 32; Norwich Fire Ins. Co. v. Boomer, S2 111. 442; Elliott, Insurance, § 83. (655) 1592] INSURANCE. [Ch. 83 (1592) The court instructs the jury that neither party to a contract of insurance is required to communicate informa- tion except in answer to inquiries of matters which the other or his duly-authorized agent, knows, or matters of which, in the exercise of ordinary care, the other, or his duly-authorized agent, ought to know, and of which the applicant has no rea- son to believe he is ignorant, or of matters of which informa- tion is waived, or of matters which prove or tend to prove the existence of a risk excluded by a warranty, and which are not otherwise material, or of matters which relate to a risk excepted from the policy and not otherwise material or of mere matters of opinion or belief.* (1593) The court instructs the jury that it is the duty of an applicant for insurance to answer fully and fairly all inquiries made with reference to the risk, but if such ques- tions are not answered or are incompletely answered, and the insurer without further inquiry or investigation, issues a policy, he will be held to have waived his right to a more complete answer and to have elected to accept the risk with the information actually given." Distinction between representation and warranty. (1594) The court instructs the jury that an express war- ranty in the law of insurance is a stipulation inserted in writ- ing upon the face of the policy, on the literal truth or fulfill- ment of which the validity of the entire contract depends. The stipulation is considered to be on the face of the policy, although it may be written in the margin or transversely, or on a subjoined paper referred to in the policy. A represen- tation, as distinguished from a warranty in the law of in- surance, is "a verbal or written statement made by the as- sured to the underwriter, before the subscription of the policy, as to the existence of some fact or state of facts tending to induce the underwriter more readily to assume the risk by * Elliott, Insurance, § 83. B Phoenix Ins. Co. v. Raddin, 120 XJ. S. 183. (650) Ch. 83] INSURANCE. [1596 diminishing the estimate he would otherwise have formed of it." In the law of insurance a warranty is always a part of the contract, — a condition precedent upon the fulfillment of which its validity depends. A representation, on the other hand, is not a part of the contract, but is collateral to it. The essential difference between a warranty and a representation is that in the former it must be literally fulfilled, or there is no contract, the parties having stipulated that the subject of the warranty is material and closed all inquiry concerning it ; while in the latter, if the representation prove to be untrue, still, if it is not material to the risk, the contract is not avoided.® Knowledge by insurance company of hazardous character of risk. (1595) The court instructs the jury that if an insurance company issue a policy upon a risk greater than an ordinary one, with a full knowledge of all the facts, it cannot escape the binding obligation of its contract by pleading such fact, for this would simply be allowing insurers to commit a de- liberate fraud upon the insiired.^ Authority of agent of insurance company. (1596) The court instructs the jury that the same rules apply to insurance companies as apply to individuals, and a person who is clothed with power to act for them at all is treated as clothed with authority to bind them as to all matters within the scope of his real or apparent authority, and if the jury believe from the evidence that the agent who received plaintiff's application was charged with the duty of receiving and forwarding to the defendant applications for insurance, he must be deemed the agent of the defendant to • Missouri, etc., Trust Co. v. German Nat. Bank, 77 Fed. 117; Mutual Ben. Life Ins. Co. v. Robison, 58 Fed. 723; Elliott, Insurance, § 102. 7 Miller v. Mutual Ben. Life Ins. Co., 31 Iowa, 216. (657) Instr. Juries— 42. 1597] INSURANCB5. [Ch. 83 receive a disclosure of facts, although the defendant privately instruct the agent to regard himself, in taking the application, as the agent of plaintiff.® Authority of agent of insurance company to receive notice of additional Insurance. (1597) The court instructs the jury that whether M. was the agent of defendants, is a question of fact for them (the jury) to determine from the testimony ; and, in aid of their investigation, they are instructed that an agent may be cre- ated by long acquiescence on the part of the principal, with knowledge of his acts as agent for said principal, as well as by express appointment; and that if, by express agreement, it is so arranged between parties that one shall be advertised as the agent, but that another shall actually do the business, and this third person does transact the business, and becomes known as the agent of the principals by transacting their business, then the said third person is their agent, and the principal is estopped from denying it as to those who have acquired rights against said principal because of the acts of said agent A corporation cannot affirm an act of its agent in part, and disaffirm as to the residue. And the defendants herein are not to be allowed to avail themselves of the bene- fits of M.'s acts, wherein they inure to their benefit, and to ignore and disaffirm the acts of said M. when they may operate to their prejudice, provided he has acted within the scope of such agency. When there is no evidence of the writ- ten appointment of an agent, the fact and extent of his agency must be determined by what he testifies and did, and also by the acts of the company recognizing him. If either party must suffer from the mistake of an agent, it must be the party whose agent he is. If the plaintiffs procured the writ- ten permission of the agent to get other insurance, and the agent neglected to indorse the same on the policy, or inform » Vanderhoef v. Agricultural Ins. Co. of Watertown, 46 Hun, 328, 12 State Rep. 341. (658) Ch. 83] INSURANCE. [1599 the company, then the plaintiffs cannot be affected by such neglect, if such agent had authority to give the permission, which is. a question of fact for the jury.* Authority of agent to waive terms of policy. (1598) The court instructs the jury that on accepting the policy her« sued on, the plaintiff was bound to inform him- self of the terms and restrictions therein contained, and that the nature and extent or limitations on the authority of K., the agent of defendant, are to be found from all the evidence before you, and if the jury believe from the evidence that K. had the authority to act as a general agent of the defendant and that within the scope of such agency he was authorized to receive notice of additional insurance in other companies and that he did in fact receive such notice, then such notice would be notice to the defendant, but if from the evidence the jury believe that K.'s agency was only to procure risks and take premiums, and then deliver policies, his agency would in that event be a particular as distinguished from a general agency and in such case his authority would not ex- tend to waiving any of the terms of the policy. •''' Incorrect statement by insurer's agent — Eesponsibility of in- surer therefor. (1599) The court instructs the jury that if you find that the plaintiff was asked to and did sign the application in blank and the agent of the defendant filled it up on his own motion without knowledge of plaintiff as to what the answers were; or if you should find that the plaintiff made true. and correct answers, but the agent, in writing the answers, for any reason, wrote incorrect answers, the plaintiff will not be re- sponsible for the acts, mistakes or wrongs of such agent.-' ^ » Approved in Insurance Co. v. Lyons, 38 Tex. 258. 10 Insurance Co. v. Lyons, 38 Tex. 256-258. " Approved In Kingston v. Aetna Ins. Co., 42 Iowa, 46. (659) 1600] INSURANCE. [Ch. 83 II. Life Insueanck. Insurable interest. (1600) The court instructs the jury that if you shall find, from the evidence, that the applications for insurance bear- ing date and , oilered in evidence, and pur- porting to have been made by J., were really, in substance, the application of P. for insurance on the life of his father, J., then you will inquire whether P. had an insurable interest on the life of his father which would support a policy for . In determining this question, you will inquire whether, from the evidence, it appears that, at the time of making such applications, said P. had any pecuniary interest, as creditor or otherwise, in the life of his father, or any rea- sonable expectation of profit or advantage which might be thwarted by his father's death, for the law will not enforce policies of insurance procured for mere gambling or wager purposes upon lives, on the continuance of which the assured cannot be deemed to have an insurable interest ; and the mere relation of father and son, where both parties are of mature years, and live apart, in independent pecuniary circumstan- ces, and mutually entirely independent of each other, and having no business relations with each other, does not create an insurable interest in the son on the life of the father ; and, in deciding whether, in this case, P. had such an interest in his father's life as will support the insurance procured, you will take into account all the evidence as to the respective ages and situations in life of the father and son, and theii business and social relations and all other facts which tend to show whether, as above defined, the son had an insurable interest in his father's life, at the date of his application aforesaid.-'* (1601) The court instructs the jury further that thougl a party may have some insurable interest in the life of an- 12 Approved in Guardian Mut. Life Ins. Co. of N. Y. v. Hogan, 8( 111. 35. (660) Ch. 83] INSUHANOB. [1603 other, as creditor or otherwise, yet, if the amount of insurance procured upon such life appears palpably to be very largely iu excess of any possible loss the assured can suffer from the death of the insured, then the presumption of a gambling or wager insurance arises, which calls upon the assured to show that such insurance was not procured as a mere cover for gambling, or a wager upon the life of the insured; and, in this case, if you believe, from the evidence, that the plaintiff had some interest of an insurable character, as already de- fined, in his father's life, at the date of his several applica- tions for policies on his father's life and here sued on, yet, if you find, from the evidence, that the amount procured was vastly disproportionate in its excess to any probable loss which plaintiff might suffer from his father's death, such circum- stance has a tendency to prove that the insurance was pro- cured for mere purposes of speculation, and as a cover for gambling, and if, from the evidence, you shall find that such was the fact, then the plaintiff can not recover in this action.^* Warranties. (1602) The court instructs the jury that the statements in the application which are made a part of the policy, are warranties of the truth of the statements therein contained, and if they believe from the evidence that any of said state- ments are untrue in any respect, whether material or imma- terial, they avoid the policy, and the plaintiff cannot recover. The truth of the statements contained in the application which are made part of the policy is the basis of the contract be- tween the parties to this controversy, and if they believe from the evidence that any of said statements in said application are untrue then they must find for the defendant.^* (1603) If the jury believe from the evidence that said C. made a written application to the defendant for a policy of 18 Approved In Guardian Mut. Life Ins. Co. of N. Y. v. Hogan, 80 111. 35. " Union Cent. Life Ins. Co. v. Pollard, 94 Va. 146. (661) 1604] INSURANCE. [Cn. 83 insurance for the benefit of the plaintiff, and that said ap- plication contains a condition in which said C. uses the following language: "I also agree that all the foregoing statements and answers, as well as those I make to the com- pany's medical examiner in continuation of this application are by me warranted to be true, and are offered to the com- pany as a consideration of the contract, which I hereby agree to accept as issued by the company in conformity with this application, and which shall not take effect until the first premium shall have been paid, and the policy shall have been delivered, during my continuance in good health," then the court instructs the jury that every part of said clause is ma- terial in this case, and that the words, "which I hereby agree to accept as issued by the company in conformity with this application, and which shall not take effect until the first premium shall have been paid, and the policy shall have been delivered, during my continuance in good health," create a condition precedent, which must be performed before the plaintiff can recover in this action.^^ (1604) The jury are further instructed that E. stipu- lated in his application, that his answers and each of them to the said several interrogatories propounded to him by the medical examiner, were full, true, and complete, and a failure on his part to make a full, complete, and true answer to any of the said questions so propounded avoids the policy and there can be no recovery.^* (1605) All the questions and answers are to be con- sidered as of the day of the application, none of them so far as they are referred to in the evidence have reference to any future condition or state after that date. And all the evi- dence which has been introduced, which has reference to any condition or state of E. subsequent to that date, is to be con- is Oliver v. Mutual Life Ins. Co. of New York, 97 Va. 134. i« Home Life Ins. Co. v. Sibert, 96 Va. 403. (662) Ch. 83] INSURANCE. [1607 Bidered &nly in so far as it tkrows light upon his condition, as of, or previous to, that day.^^ Necessity that false statement should be fraudulent in order to avoid policy. (1606) The answer to question No. , viz., "Are you in perfect health, so far as you know and believe ?" to which the answer is recorded "Yes," does not avoid the policy unless the answer was not only false, but designedly false. Questions which are general and indefinite in their terms are interpreted according to the usual and ordinary significance of the terms and words used, and the jury must interpret whether the answer is full, true, and complete in such reasonable informa- tion as the question naturally called for. To constitute an answer not full or not complete, E. must have suppressed some fact, which the question reasonably called for, and which fact was material to the risk.^* If the jury believe that each of the answers to the said several interrogatories were true, full, and complete, and the answer to No. was not fraudulently made, then they should find for the plaintiff the amount of the insurance, with interest from the day the same became payable, and if, on the other hand, the answer to any of the interrogatories was not true, full, and complete, then the jury must find for the defendant, the answer to No. being excepted, which, as stated above, to avoid the policy must be not only false, but fraudulent. materiality of misrepresentations or fraudulent statements by the insured. (1607) The court instructs the jury that if they be- lieve from the evidence that any of the answers made by Mr. •^ in his application for this insurance were untrue in a material particular, that the defendant acted upon these an- swers, believing them to be true, that the company did not 17 Home Life Ins. Co. v. Sibert, 96 Va. 403. IS Home Life Ins. Co. v. Sibert, 96 Va. 403. (663) 1608] INSURANCE. [Ch. 83 know they were untrue, and would not have issued the policy if it had not relied upon such answers, then there can be no recovery upon the policy, and your verdict must be for the defendant.** (1608) The court instructs the jury that an untrue or fraudulent statement, or denial, made by the applicant, of a fact material to the risk, to induce the issuance of a policy, will prevent the policy from taking effect as a valid contract, unless the insurer has in some way waived or estopped him- self from relying upon such misstatement to avoid the policy. If you find that made an untrue or fraudulent state- ment of a fact material to the risk in the application for the policy, then you should find for the defendant, unless you further find that the defendant was informed of and knew the truth in regard to such fact, and after knowing such fact fully, received the application, the premium money and notes, and issued the policy, in which case you should find for the plaintiff.2" (1609) The court instructs the jury that fraudulent rep- resentations made by an applicant for life insurance on a point which is material in the judgment of the insurer, and induces him to take the risk, will avoid the policy, although it is not material to the risk. It is not necessary that the misrepresentation should affect the nature of the risk. It is enough that it induced a confidence without which the in- surer would not have acted and if the jury believe from the evidence that the deceased on making application for life in- surance to the defendant represented that the applicant was the moneyed man of the firm of which he was a member, and this representation induced the defendant to issue the policy' here sued on, then such representation, if the jury find it to be fake, avoids the policy and plaintiff cannot recover.*^ IB Union Cent. Life Ins. Co. v. Pollard, 94 Va. 146. 10 Miller V. Mutual Ben. Life Ins. Co., 31 Iowa, 216. it Valton ▼. National Fund Life Assur. Co., 20 N. Y. 32. (664) Ch, 83] INSURANCE. [1611 Same — ^Warranties. (1610) The court instructs the jury that misrepresenta- tion, to be such as to avoid a life policy, must, in the absence of fraud, be in respect to some circumstance or fact material to the contract, by which the insurer was induced to under- take the risk, but that a warranty must be literally true, whether the fact warranted be material or not. In the case of a warranty, the question, how far the fact was or was not material, is not to be considered. Knowledge on the part of the agent of the falsity of a warranty will not relieve the assured from the forfeiture incurred by reason of a false war- ranty.^* Defense, tc action on preminm note, of misstatement by agent of pation of insured. (1611) The court instructs the jury that the truth of all the answers to the application by deceased for insurance was warranted by the policy here sued on, and if the jury be- lieve from the evidence that the application by deceased for a policy in the defendant company contained a question as to whether the deceased was engaged in or connacted with the manufacture or sale of any beer, vsdne or other intoxi- cating liquors and that the deceased answered "No" to this question, and that deceased had been engaged for years in the business of keeping a hotel and that during that period he regularly and systematically sold wines and liquors in bottles of various sizes, bearing the name of his hotel blown into the glass, to such of his guests as desired them, and if the jury believe from the evidence that he kept a wine or liquor room in which was stored a large supply of wines and liquors and carried both a state and federal license which authorized the deceased to carry on the business of selling beer, wine and liquors at retail, to be drunk upon his prem- ises, then the jury are instructed that the answer of deceased to the above-recited question was false, though the jury »« Barteau v. Phoenix Mut. Life Ins. Co. of Hartford, 67 N. Y. 595. (665) 1612] INSURANCE. [Ch. 83 may further believe from the evidence t' ' deceased k&pt no bar and did not sell to persons who were not his guests and the jury are instructed that the falsity of such answer forfeits the policy here sued on and that plaintiff cannot recover.^* (1612) The court instructs the jury that if they believe from the evidence that deceased on applying for the policy here sued on in answer to a question stated that he had never directly or indirectly been engaged in the sale of wines or liquors and that deceased during a period of ten years, end- ing five years before the application was made, had been en- gaged in business as a druggist and that in connection with such business he had sold considerable quantities of liquors, then if the jury believe from the evidence that the statement of deceased was made willfully and with intent to deceive, and was relied on and did deceive, the policy is forfeited, though such statement was immaterial, but if the jury believe from the evidence that the statement was made incidentally, without reckless intent, and without having in mind the dis- tinction between the traffic in liquors as a traffic by itseK and as one incidental to the druggist's business, and that the state- ment is not material to the risk, then the policy is not for- feited."* Misrepresentations by the insured as to Ms health. (1613") The court instructs the jury that the policy here sued on warrants that the applicant for insurance shall an- swer the questions put to him in the application fully and truly, and if the jury believe from the evidence that deceased did not answer truly a question propounded to him concern- ing his health, then the jury are instructed that such answer forfeits the policy here sued on and plaintiff cannot recover, though the jury may further believe that the deceased an- swered the question in good faith.** 28 Dwlght V. Germanla Life Ins. Co., 103 N. Y. 341. 24 Hadley v. Provident Sav. Life Assur. Soc, 90 Fed. 390. 25 Mayer v. Equitable Reserve Fund Life Ass'n, 49 Hun, 366. (666) Ch. 83] INSURANCE. [1615 (1614) The court instructs the jury tliat by the policy in this case here sued on, the statements in the application are made warranties, and that one of the statements in the appli- cation is that deceased was in good health at the time of the application for the policy of life insurance, and the applica- tion further states that the policy should only be delivered in the lifetime of the insured and when he was in good health, and if the jury believe from the evidence that the insured was ill with typhoid fever at the time of making answer to the questions and that he stated that he was in good health and that on the day on which deceased died of such fever, the agent of defendant called upon the employer of the de- ceased and advised him to pay the premium, though the agenl was informed that deceased was sick at home, and the em- ployer paid the premium, the jury are instructed that this would not make out a waiver of the stipulation, even if the agent had authority to waive such stipulation.^® Misrepresentations by applicant for life insurance as to attend- ance of physician. (1615) The court instructs the jury that the policy here sued on made the answers in the application by the insured for a policy of insurance in defendant company, warranties, and if the jury believe from the evidence that the deceased in answer to a question in the printed application stated that he had not been attended by a physician, nor consulted one for two years, and that the applicant had been attended by a physician within two months before making the application, who treated the applicant for , then the jury are in- structed that a breach of the warranty is established which forfeits the policy here sued on and that plaintiff cannot re- cover although the jury may further believe that the appli- cant was not in fact afflicted with the disease for which he was treated.*^ 2» Maloney v. NorthweBtem Masonic Aid Ass'n, 8 App. Dlv. 575. »T Roche v. Supreme Lodge, Knights of Honor, 21 App. Dlv. 599. (667) 1616] INSURANCE. [Ch. 83 (1616) The court instructs the jury that although repre- Bentations by the person insured are not necessarily war- ranties, as in the case of marine fire insurance, yet the policy would be avoided by an intentional concealment or misrepre- sentation of any material fact, and if the jury believe from the evidence that the deceased on applying for the policy of insurance in defendant company here sued upon represented that he had no regular doctor and that there was no physician to whom he could refer for information and if the jury be- lieve from the evidence that the deceased had been occasion- ally treated for serious illness by a certain physician and that he had been examined by the medical adviser of another in- surance company, and had been rejected, then the jury are instructed that this would constitute a fraudulent conceal- ment which would forfeit the policy here sued on.^* Iilisrepresentations by insured as to having consulted physi- cians. (1617) The court instructs the jury that the application made by the deceased for the policy here sued on required the plaintiff to give the name of his family physician, for what the physician had treated him and whether he had con- sulted any other physician, and the policy warranted that the answers should be in fuU, and the court instructs the jury that if they believe from the evidence that the deceased stated that he had no family physician and gave the name of a physician as having treated him, and he had consulted several physicians, then the jury are instructed that the fail- ure of the deceased to state the name of the other physicians, \vas not a breach of the warranty, as deceased had the right to construe the question in the application as not requiring liim to state the names of all the physicians consulted by him.^^ -s Horn V. Amicable Mut. Liit'e Ins. Co., 64 Barb. SI. 2!> Billings V. Metropolitan Life Ins. Co., 41 Atl. 516. (668) Ch. 83] INSURANCE. - [1618 Misrepresentations or false statements as to existence of con- sumption among relatives of applicant. (1618) The court instructs that has brought suit against Insurance Company to recover $ on a policy issued to , which the evidence indicates was for her beneiit and on which she paid the dues, premiums, assess- ments or whatever they may be. The policy is dated the day of , 19 — , and insures the life of for $ under the conditions therein stated. died on the day of , 19 — , and it is admitted that the proofs of death were made. The important defense, and one that counsel for defendant has argued to the jury, is this, that misrepresentations were made in the application, the leading one being that none of the relatives of the applicant had died of consumption, whereas the proofs of death and the evidence indicate that the father and mother had each died of consumption, one at thirty-eight and the other at thirty- nine years of age, their ages at death being given in the appli- cation as seventy and seventy-five. The policy provides that the warranties and agreement in the printed and written ap- plication are to be made part of the contract and are to be treated as warranties. We instruct you that they are not in this ease to be considered because, the act of assembly pro- vides as follows : "All life and fire insurance policies upon the lives or prop- erty of persons within this commonwealth shall contain, or have attached to said policies, correct copies of the applica- tion as signed by the applicant; and unless so attached and accompanying the policy, no such application shall be re- ceived in evidence in any controversy between the parties to or interested in the said policy nor shall such application be considered a part of the policy or contract between such par- ties." This application was not attached to nor is it part of the policy; and therefore, even though it is in evidence as we (669) 1619] INSURANCE. [Ch. 83 construe the law, it is not a warranty, and there is the more reason for it in this case because the beneficiary — the one from whom the premiums were taken, and for whose use the policy is made — did not sign the application. There is no evidence that she ever heard or read or that she saw or knew what it contained. The application is produced by the com- pany today, it having been in their possession. But never- theless, this is not without its significance in this case. A policy obtained by fraud or knowingly misrepresenting some important fact would be void as to the company if they did not take money on account of it after they knew of the fraud or did not do something to estop them from setting it up. Now if you find that the parents of this man died, at this early age, of consumption, and that was an important essen- tial and material fact, the misrepresentation of which re- sulted in the obtaining of this policy, and the company was deceived thereby without fault of its own, and that it did not receive money on the policy after it knew the facts, then it would avoid the policy whether such misrepresentation was made by the deceased or by the plaintiff, and the plaintiff cannot recover.^" (1619) The court instructs the jury that they cannot say as a matter of law in the present state of medical science, that the statement that none of the applicant's relatives had died of consumption, though the proofs show that the father and mother of the applicant died of consumption at about the age of forty years, is a material misrepresentation. By proper care, consumption may be prevented and people de- scending from consumptive parents may reasonably be ex- pected to live out a fair period of life. Whether the misrep- resentation is material is for the jury to say, and in determin- ing the question, they are simply to take into consideration the fact that in the application the defendant asked these questions concerning the existence of the disease of consump- 20 Approved in Weber v. Meti-opolitan Life Ins. Co., 172 Pa. 111. (670) Ch. 83] INSURANCE. [1621 tion, that in the policy the defendant speaks of consumption and provides against paying the full amount of the policy, if death occurs from that cause within a year. It seems to the court that the misrepresentation was concerning a material fact; still that is for the jury to say.*^ Misrepresentations by insured as to previous applications for insurance. (1620) The court instructs the jury that if they believe from the evidence that the deceased on applying for the policy here sued on stated in answer to a question in the application that he had never made application for insurance to any com- pany, association or society, on which a policy had not been issued, and that some years before the issuance of the policy here sued on deceased applied for membership in another company than the defendant, and that such company was a secret, social and beneficial order in which some kind of bene- fit was paid and that the application of deceased was reported on favorably by the examining physician but was rejected by the chief medical examiner on account of a fact shown by the examination, and that such fact in itself did not constitute good ground for rejection, and never affected the health of the deceased and did not exist at the time of the issuance of the policy in suit and if the jury believe from the evidence that the applicant was never informed that he had been rejected on account of his health, then the jury are instructed that the above-recited answer of the deceased to the question concern- ing previous applications for insurance must be regarded as immaterial to the risk and not ground for forfeiture of the policy. ^^ (1621) The court instructs the jury that by the policy here sued on the answers to the questions in the printed applica- tion for the policy were made a part of the contract and if 31 Weber v. Metropolitan Life Ins. Co., 172 Pa. 111. 32 Fidelity Mut. Life Ass'n of Philadelphia, Pa., v. Miller, 92 Fed. 63. (671) 1622] INSURANCE. [Ch. 83 false, invalidated the contract, and that if the jury believe from the evidence that the application contained a question as to v^hether the deceased had made any other applications for insurance and what were the result of such applications and that the deceased answered that he had maJe application for other insurance and that he had never been rejected, then if the jury believe from the evidence that the deceased had previously presented a written application to the agent of an- other insurance company and that the medical examiner of such other insurance company stated that the deceased was not insurable and that thereupon the application to such other insurance company was destroyed, the jury are instructed that the answer above recited by the deceased to the question as to his application to other insurance companies, is false and that the policy here sued on is forfeited.^^ Misrepresentations by third persons. (1622) The court instructs the jury that the defendant avers that there were certain untrue and fraudulent state- ments contained in the application by A., and insists that only his statements in regard to his health and habits should be inquired into. But, as the contract was based upon the statements of the insured's physician and friends as well as his own, the statements of all three should be considered in de- termining the question of fraud.'* Defense, to action on premium note, of mistatement by agent of insurance company. (1623) The court instructs the jury that you are instructed as a matter of law that if R., in answering the question as to what his occupation was, said to the agent of the plaintiff, that he was engaged in the yards of Railroad Com- pany as a switchman, making up trains and doing general work about the yards there in connection with trains, and V. «8 Edlngton v. Aetna Life Ins. Co., 77 N. Y. 564. 84 Miller v. Mutual Ben. Life Ins. Co., 31 Iowa, 216. (672) Ch. 83] INSURANCE. [1625 put in his application, which was the foundation for the is- suing of the policy, the statement that he did not go near the cars, or do switching, then, that would be such a misstatement or fraud practiced upon the insured here, so that he would be entitled to have the policy and notes set aside. You will take all these circumstances into consideration and if he did know it, but afterwards acted on the policy as if it was in force, and he was bound by it and the company was bound by it, then he could not assert the defense which he is seeking to assert here or, if V., the agent of plaintiff, put into this ap- plication, the language as used by the defendant in stating what his occupation was, as he claims that he did, why then, of course K. would not have the right to assert that by way of defense to this note, because, if there was any fraud then, it would be fraud of the defendant and not the fraud of the company or its agent.^" Estoppel to insist upon forfeiture of policy. (1624) The court instructs the jury that where an agent of an insurance company having real or apparent authority to receive an application for insurance is truly informed by the assured of the facts relating to the risk, but incorrectly states them in a written application for insurance prepared by him, and without the knowledge or consent of the assured, the insurance company is estopped from insisting upon a for- feiture of the policy issued upon such application on account of such statement.^® (1625) The court instructs the jury that where an agent of an insurance company having real or apparent authority to receive an application for insurance is truly informed by the assured of the facts relating to the risk, but incorrectly states them in a written application for insurance prepared by him, and without the knowledge or consent of the assured, the in- 35 Approved in Michigan Mut. Life Ins. Co. v. Reed, 84 Mich. 524. 30 Royal Neighbors of America v. Boman, 75 111. App. 566. (073) Intstr. Juries — 43. 1626] INSURANCE. [Ch. «3 surance company is estojDped from insisting upon a forfeiture of the policy issued upon such application on account of such statement, and if the jury believe from the evidence that the agent of the defendant who solicited the application of the deceased knew that the deceased was foreman of a switch crew in a railroad yard and that the agent had been with the deceased when he was doing his work and that in making out the application, the agent wrote in the blank furnished by him in answer to the question as to what the occupation of deceased was "Foreman of H. E. yards," and if the jury believe from the evidence that the policy here sued on was issued on such application so filled in by the agent and signed by the insured, then if the jury be- lieve from the evidence that the deceased correctly stated his occupation to the agent, the jury are instructed that the de- ceased had the right to rely upon the statement as written by the agent as sufficiently accurate and that the inaccurate an- swer did not avoid the policy.*'' Waiver of right to avoid policy for misrepresentations. (1626) The court' instructs the jury that the statements made by the applicant for the life insurance policy here sued on were by the terms of the application made the sole basis of the contract, and that the policy provided that no verbal statement by whomsoever made should modify the contract, and if the jury believe from the evidence that a. statement was made by the applicant in answer to questions in the print- ed application, that he did not use spirits, wines or malt liquors, except two or three glasses of beer a day, and that he was a temperate man, and that this answer was false and if the jury believe further from the evidence that the applicant made true statements to the agent and that the agent wrote them down incorrectly, then the jury are instructed that the defendant was not bound by any verbal statements made by 3T Triple Link Mut. Indemnity Ass'n v. Williams, 26 So. 19. (674) Ch. 83] INSURANCE. [1629 tlie applicant to the agent wkieh did not appear in the ap- plication.^® Notice and proof of death. (1627) The court instructs the jury that a substantial compliance with the conditions of the policy of insurance as to the manner and mode of giving notice of the death of the insured to the defendant is all that can be required on the part of the plaintiff in giving such notice.^* (1628) The court instructs the jury that under the policy of insurance in this case no particular form of notice was re- quired ; and that if they believe from the evidence that the let- ter written by plaintiff on the , was intended by the plaintiff to give the required notice to the company, and that upon receipt of said letter the company sent its agent to the city of , the place of the death of the insured, for the purpose of investigating the facts and circumstances con- nected with the said death, and that such investigation was made immediately thereafter, then no further proof could be required in this case before the suit was brought.*" Same — Effect of refusal to pay policy. (1629) The court instructs the jury that if they believe from the evidence that the plaintiff wrote to the defendant the letter dated , giving notice of the death of B. TI., the insured, and that after receipt of said letter, and in conse- quence thereof, the company sent its agent, 0., to inquire and ascertain all the facts in reference to said death, and that the said agent came to , the place of said death, and in- vestigated the facts as to the death and the cause thereof, and that after making such investigation the said agent, upon the sole ground of at the time of the accident, told the plaintiff "that he had no case, and that in his opinion the 38 Hamilton v. Fidelity Mut. Life Ass'n, 27 App. Div. 480, 50 N. Y. Supp. 526. s» Approved in Travelers' Ins. Co. v. Harvey, 82 Va. 949. *o Approved in Travelers' Ins. Co. v. Harvey, 82 Va. 949. (675) 1630] INSURANCE. [Ch. 83 company ouglit not to pay, and would not pay, the policy," and that such denial of liability was not because the formal proofs of the death had not been given, then it was not in- cumbent on the plaintiff to furnish any further proof of said death, and the plaintiff had the right at any time thereafter to institute this suit.*^ (1630) The court instructs the jury that if they believe from the evidence that 0., the agent of the defendant, had no authority to refuse the payment of the policy to the plain- tiff, and that the plaintiff was informed that he had no such authority and that the said 0. did no act or made no state- ment which induced the plaintiff to believe that he had such authority, then no expression of opinion on the part of said O. that he did not think the company would pay said policy would be binding on the company or amount to a refusal on its part to pay said policy.*^ Burden of proof. (1631) The court instructs the jury that the burden of proof is on the plaintiff to prove the death of E. ; that the company received proof of his death, and any other prereq- uisite required by the policy before payment of the insur- ance money, or that such prerequisite has been waived by the defendant, but the burden of proof is on the defendant to show that the policy is avoided by virtue of the failure of E. to answer the questions propounded to him by the medical examiner in accordance with the stipulations of his applica- tion.*s III. Accident Instjeance. Bepresentations by applicant as to occupation. (1632) The court instructs the jury that if they believe from the evidence that the plaintiff on applying for an acci- dent insurance policy in the defendant company represented «i Approved In Travelers' Ins. Co. v. Harvey, 82 Va. 949. « Approved In Travelers' Ins. Co. v. Harvey, 82 Va. 949. « Home Life Ins. Co. v. SIbert. 96 Va. 403. (676) Ch. 83] INSURANCE. [1634 that his occupation was that of switchman, such representa- tion did not require plaintiff to remain in such occupation as switchman, the policy here sued on containing no provision against change of occupation.** Unnecessary exposure to danger. (1633) The court instructs the jury, that if they believe from the evidence in this case, that the plaintiff suffered the injury in question through violent, external and accidental means, which were not the result of any unnecessary exposure to dangers on his part, then you will find the issues for the plaintiff'; but if you should believe from the evidence that said injury was the result of an unnecessary exposure of himself to danger (not in any attempt to save human life), then your verdict should be for the defendant.*^ Notice and proof of injury. (1634) The court instructs the jury that one of the condi- tions of the policy is that "immediate notice of any accidental injury o,r accidental death for which claim is to be made under this contract, shall be given in writing to the secretary of the company at , with full particulars of the accident and injury, and unless affirmative and positive proof of death or injury and that the same resulted from bodily injuries cov- ered by this contract, shall be furnished to the company with- in six months of the happening of such accident, in case of such injuries resulting fatally, then all claims based thereon shall be forfeited to the company ; and the court instructs the jury that the preliminary proofs of claim are conditions pre- cedent; what constitutes them is determined by the contract. The proofs being in writing, their sufficiency is a question for the court, and the court instructs that the proofs made by the plaintiff in this case are a substantial compliance with the requirements and conditions of the policy.** ** Provident Life Ids. Co. of CWcago v. Pennell, 49 III. 180. 4B Approved in Travelers' Preferred Ace. Ass'n v. Stone, 50 III. App. 222. <« Approved In Braymer v. Commercial Mut. Ace. Co. v. 199 Pa. 259. (677) 1635} INSURANCE. ^Ch. 83 Time within which action may he brought. (1635) The court instructs the jury that if they believe from the evidence that O. was a general agent of the defend- ant for the purpose of effecting policies of insurance and ad- justing losses, and if they further believe from the evidence that the said agent declined to pay the policy here sued on upon the sole ground that the insured was intoxicated at the time of the accident, or that he so acted as to warrant the plaintiff in believing that the payment by the company would be resisted upon that ground, then the plaintiff has the right to institute this suit although ninety days had not expired from the death of the insured, as required by the policy.*^ IV. PiBE INSUEANOE. Mistake in description — Materiality. (1636) The court instructs the jury that the plaintiff claims that the insurance effected by him was applied for on (block 609) in the town of , and written down by mis- take of the agent of the defendant as (block 309). The de- fendant claims the error to have been made by the plaintiff. If the j iry believe from the evidence, that the plaintiff in- accurately stated the block either by design or accident, and that such error was material, and that the company would not have issued the insurance if the block had been correctly stated, and that the company did not subsequent- ly, during the continuance of the policy and before the fire, know correctly the actual situation of the property of plaintiff insured, with reference to other property insured by the company, the jury may find for the defendant. But if the jury believe, from the evidence, that the error in the number of the block was in fact immaterial, or that the mistake was caused by the agent of the company, or that subsequently to the issuance of the policy, and before the fire occurred, the president or age^t of the company became aware of the loca- «' Approved In Travelers' Ins. Co. v. Harvey, 82 Va. 949. (678) Ch. 83] INSURANCE. £1639 lion of plaintiff's property, with reference to otter property insured by the company, and took no step to cancel said policy, the jury must find for the plaintiff. The jury must judge, from the evidence, how far the mistake of the number of the block was material to the defendant.** Avoidance of policy liecause of misrepresentations and fraud of the insured. (1637) The court instructs the jury that if they believe from the evidence that the plaintiff in his application for in- surance, made a false or untrue statement as to the value or ownership of the property insured, as an inducement to the company to enter into the contract of insurance, and that the company relied upon such statement and was induced thereby to enter into such contract of insurance, here sued on, then such contract is voidable, by its terms and conditions, by the defendant, and cannot be enforced against it, and the verdict should be for the defendant, unless the jury further believe from the evidence that defendant, after it had full knowledge of such representations, waived its right to a forfeiture pf the policy on the ground of such false statements.** (1638) Representations of existing facts in respect to the property insured may be false and fraudulent and material in praesenti, and avoid the policy of insurance, although not in writing, nor intended nor construed as warranties, and hav- ing no reference to future conditions of the property so as to be continuing repi^esentations or promissory warranties.** (1639) The court instructs the jury that by one of the conditions of the policy herein sued upon, the applicant must state whether the property covered by the policy was incum- bered, and if so to what amount and if the applicant has any less estate than a fee, the nature of such estate, and the court « Approved In Home Ins. & Banking Co. of Texas v. Lewis, 48 Tex. 622. i» German Fire Ins. Co. of Peoria v. Grunert, 112 111. 68. «» Ryan v. Springfield Fire & Marine Ins. Co., 46 Wis. 671. (C79) 1640] INSURANCE. [Ch. 83 instructs the jury tliat if they believe from the evidence that the agent of the defendant filled up the printed application furnished to agents for the purpose of making contracts of insurance and that in such printed application no questions were asked as to incumbrances, and plaintiff was not inquired of as to the particular nature of his title, and on the face of such application so filled out by defendant's agent, defendant issued the policy here sued on, then they are instructed that the above-recited condition of the policy could not be relied upon by defendant to avoid the policy.^^ (1640) The court instructs the jury that the plaintiff in this suit is bound by the terms and conditions of the policy of insurance introduced in evidence, so far as the same relate to him, and that by the terms of the policy the application of the plaintiff for insurance, which has been introduced in evi- dence, became, by the terms and conditions of the policy, a part of the policy and contract of insurance and warranty by the plaintiff that any false overvaluation of property, or any misrepresentation whatever in said written application or otherwise, should render the policy void and of no effect, and if you believe from the evidence that in said application the, plaintiff falsely represented the value of the property covered by the policy, with intent to deceive defendant and did there- by deceive defendant, then you will find a verdict for the de- fendant, unless you further believe from the evidence, under the law, as explained in these instructions, that defendant has waived its right to have the policy forfeited on that ground.'^ (1641) The court instructs the jury that it is no defense to a recovery in the suit that the plaintiffs, or any of them, either, at the time of obtaining the policy sued on, represented the value of the buildings on said premises greater than their »i Dohn V. Farmers' Joint-Stock Ins. Co., 5 Lans. 275. 52 Approved in German Fire Ins. Co. of Peoria v. Grunert, 112 IlL 68. It would be perhaps better to make specific reference to the other instructions explaining what constitutes a waiver. 03 Bersche v. Globe Mut. Ins. Co., 31 Mo. 546. (680) Ch. 83] INSURANCE. [1644 real value, or after the loss represented the value of the property insured or the extent and amount of the loss, greater than it really was, unless the same was done knowingly and willfully by plaintiffs, and with a fraudulent design.'* Misstatements made through fault or negligence of a^ent of insurer. (1642) The court instructs the jury that an agent, au- thorized to take applications for insurance, should be deemed to be acting within the scope of his authority, where he fills up the blank application for insurance, and if, by his fault or negligence, it contains a material misstatement, not author- ized by the instructions of the party who signs it, the wrong should be imputed to the defendant, and not to the assured.^* (1643) The court instructs the jury that if they believe from the evidence that the surveyor and agent of defendant, on being applied to for an insurance policy upon the plaintiff's mill, went to see the mill, and made a survey thereof, and that the plaintiff did not accompany the agent but left the agent to transact the business and do whatever was necessary and that the agent then made out the application for the plaintiff to sign and used the printed blank furnished to agents for that purpose and that the agent was informed at this time by plaintiff that there was a mortgage on the premises, then the jury are instructed that though the application made no men- tion of any incumbrance, such failure was not a breach of the warranty or concealment of important matters affecting the risk, though the application required the applicant to state whether the property was incumbered, by what, and to what amount, and though the by-laws of the defendant made the person taking the survey the agent of the applicant.^' Same — ^Representations as to condition and occupancy of prem- ises insured. (1644) The court instructs the jury that if they believe, »4 Rowley V. Empire Ins. Co., 36 N. Y. (9 Tiff.) 550. »» Masters v. Madison County Mut. Ins. Co., 11 Barb. 624. (681) 1645] INSURANCE. [Ch. 83 from the evidence, that at the time of the making of the ap- plieation in this case, the plaintiff gave full and exact in- formation to E., the agent of defendant, as to the number of tenants in the occupancy of the building in question, and the use thereof by each; that with such information furnished, the agent himself filled up the application in question as the same now is, and induced, by mistake or otherwise, the plain- tiff to sign the application and survey ; then, though the jury should find, from the evidence, that the building was occupied by more tenants, and for other business than named in the application, the defendant is estopped from making such ob- jection, to prevent fraud and injustice, and the plaintiff will be entitled to recover.^ ^ Materiality of representation as to keeping watchman. (1645) The court instructs the jury that even if the jury shall believe from the evidence that at the time the insurance was applied for by the plaintiffs or their agent, the plain- tiffs or their agent represented that a watchman was kept and would be kept upon said premises insured, and that no watchman was then or afterwards kept thereon, yet, unless the jury believe that the said representation was one of the causes why defendant took the risk, and without such watch- man being then kept and continuing to be kept, the said de- fendant would not have taken the risk or issued the policy, then the fact that no watchman was kept will constitute no defense to this action.^'' Duty to disclose particular circumstances of peril. (1646) The court instructs the jury that actual fraud al- ways vitiates the contract, and that an applicant for insurance must communicate all knowledge which he has or is required by law to have of extraordinary circumstances of peril to B8 Approved in Howard Fire & Marine Ins. Co. of Philadelphia v. Cornick, 24 111. 455. 51 Bersche v. Globe Mut. Ins. Co., 31 Mo. 546. (682) Lh. 83} INSURANCE. [1648 which the property is exposed, when the same could not, with reasonable diligence be known by the insurer or reasonably an- ticipated by him as the foundation of suitable inquiries and if the jury believe from the evidence that the applicant for the policy here sued on knew that an attempt had been made to burn the building sought to be insured and described in the declaration, prior to his application, then it v/as the duty of the applicant to have made known this circumstance to the defendant, and if the evidence discloses such fact, if it be a fact, it will preclude the plaintiff from recovering in this suit.^* Character of property — Generation of illuminating gas. (1647) The court instructs the jury that the policy here sued on contains a clause prohibiting, unless by special agree- ment indorsed on the policy, the generating or evaporating within the building insured or contiguous thereto of any sub- stance for a burning gas or the use of gasoline for lighting, and the court instructs the jury that if they believe from the evidence that plaintiff constructed works fifty feet from the building insured and covered by this policy for the manu- facture of gas from gasoline which was conducted to the build- ing insured through pipes, then the jury are instructed that such gas works, if they believe from the evidence that they were so constructed, were not contiguous to the building with- in the meaning of the policy."* Avoidance of policy for misrepresentations by insured as to nature of title. (1648) The court instructs the jury that if they believo from the evidence that the plaintiff disclosed to the agent of the defendant all the facts bearing upon her title to the property covered by the policy here sued on, and the agent receiving the application of plaintiff inserted in the applica- «8 Elliott, Insurance, § 84; Walden v. Louisiana Ins. Co., 12 La. 134. e» Arkell v. Commerce Ins. Co., 69 N. Y. 191. (683) i649] INSURANCE. [Ch. 83 tion what purported to be a description of the kind of title which plaintiff had to the property insured describing the title as one in fee simple and received the payment of the premium, then the jury are instructed that the fact that plaintiff did not own the property insured in fee simple will not avoid the policy.®" (1649) The court instructs the jury that by the policy here sued on the answers to the questions contained in the application for the insurance policy were made warranties and that if the jury believe from the evidence that the plain- tiff in answer to a question in the printed application stated that he was the owner in fee simple of the premises described in the declaration and covered by the policy and the plaintiff was not the owner of the fee simple of the property covered by the policy, but was only a tenant for life, then the jury are instructed that the policy by its terms is void, though the jury may believe from the evidence that the agent taking the appli- cation of plaintiff had notice of the nature of the interest of plaintiff in the insured premises.*^ (1650) The court instructs the jury that the policy here sued on was issued to the plaintiff as the owner of the personal property described in the declaration and that the language used in such policy imported that the plaintiff warranted that he was the owner of the property insured at the time of taking out such policy and if the jury believe from the evidence that the plaintiff was only the possessor of the property insured un- der a' contract of purchase, on which he had made payments, but that the plaintiff had informed the defendant insurance company of the facts at the time of his application for the policy and that the defendant, after such information, wrote out the application, stating that the plaintiff was the owner of the property insured and received the premium from the plaintiff and the policy was thereupon issued to the plaintiff, «o Rockford Ins. Co. v. Nelson, 75 III. 548. 01 Pierce v. Empire Ins. Co., 62 Barb. 636. (684) Ch. 83] INSURANCE. [1651 then the jury are Instructed that the defendant cannot defend upon the ground that the plaintiff's interest in the property insured was not truly stated in the application.*^ Misrepresentations as to amount of incumbrance on property insured. (1651) The court instructs the jury that one fact for you to determine in this case is whether the plaintiff correctly informed the agent of the defendant as to the actual amount of incumbrance on the premises covered by insurance in this case. If you find from the evidence that plaintiff correctly stated the amount of incumbrance to defendant's agent, you will then determine whether the agent inserted the recital in the application as to the amount of incumbrance understand- ingly or not. You will also determine whether the recital was inserted by the agent by mistake. If plaintiff correctly informed the agent as to the amount of incumbrance, and a statement in the application tha't the incumbrance was $ was inserted by the agent knowing the true amount or through mistake, and the application was then presented for plaintiff to sign, but plaintiff did not read the application, understanding by the acts and conduct of the agent that the application correctly stated the answer which he had made to the question concerning the incumbrance, and plaintiff so signed it, then the claim of fraud made by the defendant with regard to statements of the incumbrance cannot be maintain- ed, and the policy will not be void on that account. But if plaintiff understood the amount of incumbrance that was re- cited in the application, and defendant's agent misunder- stood the statement of the plaintiff, either through deafness or some other reason, and if plaintiff knew the amount stated in the application to be wrong and signed the application so «2 Lasher v. Northwestern Nat. Ins. Co., 55 How. Pr. 318. Observe that In this case the Instruction is predicated upon the hypothesis that the defendant (not merely the agent) had knowledge of the facts. (685) 1(,S2] INSURANCE. [Ch. 83 knowing, then this will avoid the policy. It is for the jury to determine how the amount of incumlwance recited iu the application came to be so recited and what the parties knew and understood in regard thereto.®* (1652) The court instructs the jury that if plaintiff had an offer to read that application and neglected to do so on her own motion, of her own will, not misled by the acts or conduct of the agent, or lulled into silence as to what it con- tained by his acts and conduct, in preparing the application, and all the circumstances surrounding the preparation of it, and plaintiff's failure to read was a mere act of carelessness or neglect on her own part, — then, under those circumstan- ces, the policy would be void, and she could not recover in this case.®* (1653) The court instructs the jury that the policy here sued on made the application for insurance a part of the contract of insurance and was made subject to the rules of the company, which provided that the policy should be void if the application should not contain a full, fair, substantial and true representation of all the facts and circumstances respect- ing the property insured so far as within the knowledge of the insured and material to the risk, and the court instructs the jury that if they believe from the evidence that the plaintiff on application for the policy here sued on stated that she was the owner of the land upon which the building stood and that she was a widow and that her only title was a life estate un- der the will of her husband, which contained no disposition of the remainder, and that her husband left two children not named in the will and that they had not during the period of twelve years that had elapsed since the probate of the will, and during the period of six years before the application for the insurance was made, claimed the share to which they would have been entitled if the husband had died intestate, «» Approved In Tubbs v. Dwelling-House Ins. Co., 84 Mich. 646. «* Approved in Tubbs v. Dwelling-House Ins. Co., 84 Mich. 646. (686) Ch. 83" INSURANCE. [1656 then the jury are instructed that the answer of the plaintiff was a sufficient description of her interest.®^ Avoidance of policy because of overvaluation of property in- sured. (1654) The court instructs the jury that where a policy of insurance is silent in regard to an overvaluation of prop- erty insured, the statement of the value of the property in the application for insurance, is not one which the assured war- rants to be true, and where the agent of the insured knows, or can judge of the value of the property himself, and accepts an application without objection to the statement therein of the value, even if such valuation is higher than it should be, such overvaluation will not avoid the policy.^® (1655) The court instructs the jury that if they believe, from the evidence, that plaintiff in his application for insur- ance, made a false or untrue statement as to the value or own- ership of the property insured as an inducement to the com- pany to enter into the contract of insurance, and that the company relied upon such statements, and was induced there- by to enter into such contract of insurance, then such contract is voidable, by its terms and conditions, by the company, and cannot be enforced against it, and the verdict should be for defendant, unless you further believe from the evidence that, defendant, after it had full knowledge of such representations, waived its right to a forfeiture of said policy on that ground.*^ Violation of condition of policy as to occupancy of premises. (1656) The court instructs the jury that if the premises described in the policy sued upon or any part thereof, were, at the time of the issuing of said policy, occupied by other ten- 's Allen v. CharlestowE, etc., Ins. Co., 5 Gray (Mass.) 384. «« Insurance Co. of North America v. McDowell & Brown, 50 111. 120; Merchants' Ins. Co. of Chicago v. Same, Id.; Lumberman's Ins. Co. V. Same, Id. " Approved In German Fire Ins. Co. of Peoria v. Grunert, 112 IlL fi«l. CfiSY) 1657] INSURANCE. • [Ch. 83 ants than said plaintiffs, then said policy was Yoid, and the plaintiffs cannot recover in this action, unless the proof estab- lishes, to the satisfaction of the jury, a state of facts estopping the defendants from taking advantage of the condition in the policy. (Here state the facts which would create an estop- pel. )«» (1657) The court instructs the jury that the policy sued upon in this case was (upon the plaintiff's saw mill, water power, and upon his fixed and movable machinery, mill tools and implements contained in the mill and contained a condi- tion that if the premises should become vacant and unoccu- pied the policy should become void. This condition must be construed in view of the situation and character of the property insured. The mill covered by the policy was a saw mill. Delays and interruptions incident to the business of conducting a saw mill, though involving the temporary dis- continuance of the active use of the mill for sawing purposes, would not make the mill "vacant and unoccupied" within thr meaning of the condition of the policy, and unless the jurv believe from the evidence that the saw mill had become va cant and unoccupied and that the plaintiff had ceased to usi the saw mill for the purpose of sawing timber, the jury mus: find that the policy did not become void because of the above recited condition).®^ (1658) The court instructs the jury that the policy here sued on contains a condition that if the house of plaintill covered by the policy should become vacant by the removal of the owner, the policy would be void, and the court instructs the jury that if they believe from the evidence that plaintiff did not permanently remove from the premises insured and abandon the premises insured as a place of residence, then the jury must find that the above-recited condition of the policy "Approved In Howard Fire & Marine Ins. Co. of Philadelphia v. Cornick, 24 III. 455. 89 Whitney v. Black River Ins. Co., 72 N. Y. (27 Slckels) 117. (688) Ch. 83J ■ INSURANCE. [1660 was not violated, though the jury may believe from the evi- dence that the plaintiff temporarily went away upon a jour- ney leaving his furniture and effects in the house and intend- ing to return to it as his place of residence.'"' (1659) The court instructs the jury that the policy here sued on contains a condition against the building insured be- coming vacant and unoccupied, and this condition must be construed in the light of the situation and character of the property insured and the ordinary incidents and contingencies affecting the use to which it and other property of similar character in the same use is subject, and if the jury believe from the evidence that the plaintiff in his application for in- surance described the building to be insured as his dwelling house and that the plaintiff during the life of the policy moved out of the dwelling house described in the policy here sued on and left no person in the occupation of the house, then the jury are instructed that the house became vacant or un- occupied within the meaning of the condition above recited and plaintiff cannot recover if the jury believe from the evi- dence that defendant did not waive such condition.^^ (1660) The court instructs the jury that the policy here sued on by its terms becom,es void, if the building described in the policy be or become vacant and unoccupied and so re- main for ten days without the consent of the defendant, and if the jury believe from the evidence that the building cov- ered by the policy here sued on was insured as plaintiff's dwelling house and that plaintiff, after the beginning of the risk ceased to use the dwelling as his family residence, but still continued to store his household goods in the building ready for use and if the jury believe from the evidence that the building covered by the policy continued to be occupied by one or more members of the family or a tenant having access to the entire building for the purpose of earing for the same '"Cummins v. Agricultural Ins. Co., 67 N. Y. (22 Sickels) 260. '1 Hotchkiss V. Phoenix Ins. Co., 76 Wis. 269. (689) Instr. Juries — 44. 1661] INSURANCE. [Ch. 83 and that the building was cared for and some use made of it as a place of abode, then the jury are instructed that the build- ing did not become vacant and unoccupied within the mean- ing of the condition of the policy above recited and plaintiff is not precluded from recovery by reason of having ceased to use the building as a family residenceJ^ (1661) The court instructs the jury that although the policy in this case specifies that the premises were occupied by a tenant, still if the agent of the company knew that, as a matter of fact, when the policy was issued, the premises were not occupied by a tenant, then the plaintiff may recover, not- withstanding such vacancy of the premises.''^ (1662) You will take all the testimony into considera- tion and see whether there was a representation that these premises were occupied at that time, and if there was a repre- sentation that they were so occupied, and the premises were afterwards destroyed while they were vacant, the plaintiff is not entitled to recover.''* (1663) The court instructs the jury that by the terms of the insurance policy sued on in this case and which we have read to you, we discover the intention of the defendant to be, to insure occupied property, and if the jury believe from the evidence that when the policy was originally taken out or at any subsequent time when the policy was renewed or contin- ued, there was a representation made that the premises cov- ered by the policy were occupied and subsequently they be- came unoccupied and were destroyed while they were so un- occupied and neither the agent nor the defendant had any knowledge that the premises in question were unoccupied, 72 Moody V. Amazon Ins. Co., 52 Ohio St. 12. What constitutes va- cancy or nonoccupancy of a building Is a question of law. T3 Aurora Fire & Marine Ins. Co. v. Kranich, 36 Mich. 289. T4 Aurora Fire & Marine Ins. Co. v. Kranich, 36 Mich. 289. (690) Ch. 83] INSURANCE. ;i665 then the jury are instructed that the plaintiff so far as this point has any bearing, will not be entitled to recover/* (1664) The court instructs the jury that the defendant in- sists that the condition of the policy has been broken by the assured by reason of which the policy became void and be- cause the building was left unoccupied for a space of time in- consistent with the ordinary use of the building, such as increased the risk and that this was without notice to the company and without defendant's consent. It is stipulated in the policy that if the premises become unoccupied with- out the consent of defendant indorsed on the policy, the policy shall be void. It will be for you to say whether the house has been occupied in such manner as was reasonable and might have been reasonably anticipated by the parties to the policy, and if so, then this defense will not avail the de- fendant, and if you find that the same became unoccupied for an unreasonable time under the circumstances, then the de- fense upon this point will defeat the plaintiff. This clause in the policy has a meaning but the jury must determine whether considering the character of the house and the busi- ness carried on within it, there has been such a breach of the contract in this regard as to render the policy void, and the court cannot properly indicate any view that it may take of the case.''* Avoidance of policy because of increase of risk. (1665) The court instructs the jury that a condition in the policy against any increase in the risk must be given a rea- sonable construction and is not broken by every act which in any degree increases the risk, and though the jury believe from the evidence that the building of plaintiff described in the declaration and covered by the policy here sued on and insured as a dwelling house was used for the illegal sale of '5 Aurora Fire & Marine Ins. Co. v. Kranich, 36 Mich. 289. '6 Approved in East Texas Fire Ins. Co. v. Dyches, for use of Mc- Dannell & Co., 56 Tex. 565. (691) 1666] INSURANCE. [Ch. 83 intoxicating liquors, yet this fact, if it be a fact, does not, as a matter of law, increase the risk so as to avoid the policy, but that it is for the jury to say whether the risk has been in- creased so as to preclude plaintiff from recovery.''^ (1666) The court instructs the jury that a policy of in- surance is rendered void if the hazard be increased by any means within the control or knowledge of the insured, without the consent of the insurance company, and if the jury believe from the evidence that a grocery store was erected by (A) near the property of the plaintiff described in the declaration and covered by the policy here sued on, and that such erection of the grocery store created a substantial increase in the risk covered by the policy, then the jury are instructed that plain- tiff is precluded from recovering on this policy, unless the de- fendant consented to continue the policy after acquiring knowledge of the increase in the risk.''^ (1667) The court instructs the jury that this action is upon a policy of insurance against loss by fire issued by the defendant to cover merchandise contained in (a brick store ITo. 360 street). The policy on which the action is brought contains a clause avoiding the policy in case of an increase of the risk and provides that a manufacturing estab- lishment or workshop shall be considered as hazardous and extrahazardous, and the court instructs the jury that by the word "premises" as used in the policy must be understood the place in which the plaintiff represented his property to be and which the defendant described in the policy to be the place where the property insured was stored, and if the jury believe from the evidence that at the time of taking out the insurance, plaintiff was the proprietor of the basement and first story of the building at (360 street), and not of the whole store, but that the insurance obtained by the plain- tiff covered goods in any part of the store, and if the jury be- 'I Martin v. CSapltal Ins. Co., 85 Iowa, 643. 78 Jauvrln v. Rockingham, etc., Ins. Co., 46 Atl. 686. (692) th. 83] INSURANCE. [1669 lieve from the evidence that plaintiff had stored goods in the fifth story of the building, then the jury are instructed that such goods so stored would be protected by the insurance as much as if they had been stored in the cellar, and if the jury believe from the evidence that plaintiff permitted A to occupy the upper stories of the store with a manufactory, then the jury are instructed that the risk was increased within the- terms and conditions of the policy above recited and the police- is forfeited." Condition in policy against other insurance. (1668) The court instructs the jury that where the agent of an insurance company at the time he writes a policy, has knowledge of an incumbrance on the property insured or thai the insured has procured or arranged to procure concurrent insurance on the premises, his knowledge binds the company in the absence of fraud, and the company is estopped to claim the invalidity of the policy on such grounds, notwithstanding any provisions of the policy in that regard.^" Avoidance of policy for failure to give notice of subsequent in- surance. (1669) The court instructs the jury that by one of the conditions annexed to the policy here sued on the defendant may elect, at any time and for any cause, to terminate the in- surance, by giving notice to the assured and returning a due proportion of the premium, and it was also one of the con- ditions of the policy that notice should be given with reason- able diligence of any subsequent insurance and the court in- structs the jury that if they believe from the evidence that the plaintiff took out other insurance than the policy here sued on after the taking out of such policy and that plaintiff failed to give notice for more than twenty days of such sub- 's Appleby V. Firemen's Fund Ins. Co., 45 Barb. 454; Same v. Aster Fire Insurance Co., Id. so McBlroy v. British America Assur. Co. of Toronto, Canada, 94 Fed. 990. (693) 1670] INSURANCE. [Ch. 83 sequent insurance, the jury are instructed as a matter of law that the policy was forfeited. ^^ Written consent to other insurance. (1670) The court instructs the jury that if they believe that the defendant gave its written consent to plaintiffs to get other insurance, and that such writing has been lost or mislaid by the agents of the defendants, and without any fault upon the part of plaintiffs, then the plaintiffs ought not to suffer thereby.*^ (1671) The court instructs the jury that if the plaintiffs procured the written permission of the agent to get other in- surance and the agent neglected to indorse the same on the policy, or inform the company, then the plaintiffs cannot be affected by such neglect, if such agent had authority to give the permission, which is a fact for the jury.** (1672) It is the duty of a holder of a policy of insurance to inform the company or its agent of any change of the status of the thing or risk ; in like manner it is his duty, with- in a reasonable time, to duly notify the company in which the first policy was taken out, of any additional security by additional insurance, in order that said company may inquire into the solvency and standing of the companies, which, in case of loss, must share such loss. Where it is in evidence that the insured obtained further insurance in other com- panies, contrary to the stipulations of policy sued on, such policy is vitiated. By the terms of the policy sued on, con- sent in writing on the policy itself is requisite; but if such consent in writing were in fact given by the defendant com- pany, or by some agent who had the authority to give such written consent, after plaintiffs obtained additional insur- ance in other companies, they having previously notified the agent, who, according to the terms of his agency, was 81 Mellen v. Hamilton Fire Ins. Co., 3 Smith, 609. 82 Planters' Mut. Ins. Co. v. Lyons, Llndenthal & Co., 38 Tex. 253. 83 Planters' Mut. Ins. Co. v. Lyons, Llndenthal & Co., 38 Tex. 253. (694) Dh. 83] INSURANCE. [1674 charged with the duty of receiving such notice, then such written consent is binding upon the company ; but the burden of proof is upon plaintiffs, and plaintiffs must satisfy the jury by proof that M. did give the written consent, after he was informed of the amount of additional insurance, and the company in which such additional insurance was so obtain- ed; and furthermore, plaintiffs must prove that M. had the authority to give such consent. 'No presumption of such au- thority arises, but such an authority must be proved by plaintiffs.8* Forfeiture of policy for violation of condition with regard to care of property. (1673) The court instructs the jury that the policy here sued on requires plaintiff to keep at all times ready for use in case of fire four buckets of water in the basement story of the biiilding insured and eight buckets of water on the middle floor, and that if the jury believe from the evidence that the buckets of water could not be kept in the (mill) filled with water all the time in accordance with the literal provisions of the policy, because of the danger of freezing, then a literal compliance with the said provisions of the policy concerning buckets was not required and could not have been in con- templation of the parties when the policy was made, but all that was required of plaintiff in order to comply with said stipulation, was to have the required number of buckets in good and serviceable condition at the proper place ready for instant use.^^ Prohibited articles — Keeping gasoline on premises. (1674) The court instructs the jury that the policy here sued on by its terms covers the stock of goods kept in plain- tiff's store, such as is usually kept in country stores, and that the policy contains a condition that it shall be void if gasoline 8* Planters' Mut. Ins. Co. v. Lyons, Lindentbal & Co., 38 Tex. 253. «5 Aurora Fire Ins. Co. v. Eddy, 55 111. 213. (695) 1675] INSURANCE. [Ch. 83 is kept, used or allowed on tlie premises, and if tlie jury be- lieve from the evidence that gasoline is an article usually kept in country stores, and that the plaintiff kept gasoline on the premises insured and covered by the policy here sued on as a part of his stock of merchandise for sale, and that it was the intention of the defendant -to insure gasoline if it was an article usually kept in country stores, then the jury are in- structed that the fact that plaintiff kept gasoline upon his premises as part of his stock of merchandise, will not prevent the plaintiff recovering on this policy.*® Forfeiture of policy for breach of agreement as to watchman. (1G75) The court instructs the jury that the survey ac- companying and made a part of the fire policy here sued on stating that a watchman was kept on the premises of plaintiff all night and at all times when the workmen were absent amounted to a warranty that plaintiff would keep a watchman on the premises all night, and the court instructs the jury that if they believe from the evidence that the night before the fire which occasioned the loss here sued for, the sheriff levied upon the insured premises and excluded all persons from it, but his deputy, and that the plaintiff remained up to the dis- covery of the fire at an office about two rods from where the fire occurred, but without keeping watch, then the levy by the sheriff did not excuse the plaintiff for breach of warranty to keep a watchman on the premises and that the policy here sued on was forfeited by reason of such facts, if the jury find them to exist.*^ Keeping books and papers in safe. (1676) The court instructs the jury that the policy here sued on required the plaintiff to keep the books containing 68 Yoch V. Home, etc., Ins. Co., Ill Cal. 503. 87 First Nat. Bank of Ballston Spa v. President & Directors of Insurance Company of North America, 50 N. Y. 45. (696) Ch. 83] INSURANCE. [1678 a record of his business together with his last inventory, se- curely locked in a fireproof safe at night or in some secure place not exposed to a fire, which might destroy the house where plaintiff's business was carried on and if the jury be- lieve from the evidence that the plaintiff on the approach of the fire to his building, which is alleged to have caused the loss here sued for, removed his books in the night from the safe to a place of safety away from the building, and that during such removal the inventory was accidentally lost, then the jury are instructed that such removal and loss did not for- feit the policy.** (1677) The court instructs the jury that the policy here sued on required plaintiff to keep a set of books and inventory in a fireproof safe during closing hours of business and if the jury believe from the evidence that the plaintiff made entries of sales in a blotter, which were thereafter transferred to a ledger, and that he made no entries in the ledger of sales cov- ering the four days before the loss occurred, and that the blot- ter, which was the only record of these sales, and of merchan- dise used by the plaintiff for three months preceding the al- leged loss was not placed in an iron safe and was burned, then the jury are instructed that there was not a substantial com- pliance of plaintiff with the condition of the policy requiring the keeping of a set of books and inventory in a fireproof safe during closing hours and iba.t the policy is forfeited, vn- less the forfeiture was waived by defendant.*® Defense that fire was caused by plaintiff. (1678) The jury is instructed that one of the questions submitted to them is, whether the fire originated by any ae" design or procurement on the part of the plaintiff, or.througL any evil practice done or suffered by his privity, or with hi'* consent. In deciding this question, the jury must take into accoimt every fact and incident connected with the fire and 88 Liverpool & London & Globe Ins. Co. v. Kearney, 94 Fed. 31*. 80 Georgia Home Ins. Co. v. Allen, 24 So. 399. (697) 1679] INSURANCE. [Ch. 83 subsequent transactions, as detailed in evidence before tkem, and decide according to what they consider the most probable conclusion. The rule in civil cases, like the present, is dit ferent from what it is in criminal cases. In criminal cases the question is as to the guilt or innocence of a crime, and there the jury must be satisfied that the offense was com- mitted beyond a reasonable doubt by the person accused. In criminal cases, if any reasonable doubt remains in the minds of the jury, they are bound to give the accused the benefit of such doubt. But in civil cases like the present, there is no question whether any crime has been committed. The ques- tion in this case is merely a question of greater or less proba- bility, and the jury in order to find a verdict for the defend- ant need not be satisfied of the complicity of the plaintiff in the burning in any Other way, or with any different degree of satisfaction, than if the question was an ordinary question in a civil case.®* Losses covered by policy. (1679) The court instructs the jury that the policy here sued on excepts from the risk loss occasioned by the failure of this plaintiff to use reasonable care to save and preserve his property at and after a fire or when the property is en- dangered by fire existing in the neighborhood, and if the jury believe from the evidence that plaintiff neglected to use all possible efforts to save or preserve the property from the consequences of the fire alleged to have occasioned the loss here sued for, then the jury are instructed that plaintiff can- not recover for any loss, or damage occasioned by such failure to use all possible efforts to save or preserve his property.®' Renewal of policy. (1680) The court instructs the jury that if you find that previous to , 19 — , the defendant company had issued 00 Rothehild v. American Cent. Ins. Co., 62 Mo. 356. 91 Ellsworth V. Aetna Ins. Co., 89 N. Y. 186; Elliott, Insurance, § 231. (6^8) Oh. 83] INSURANCE. [1081 a policy of insurance upon the building and stock in question whicli would expire on that date, and that about the time of its expiration the agent of the company for and in its behalf agreed with the plaintiff or his authorized agent to renew the said policy, and that he, the agent of the company, would at- tend to it right away ; and that their minds met as to the terms of such agreement ; and that there was nothing further to be done between the parties except that the agent of the defend- ant should make out and deliver to the plaintiff or his agent, the renewal receipt or evidence of renewal, and that the plain- tiff or his agent should then or at some subsequent time pay the premium, then I instruct you that such an agreement would bind the defendant company to renew the policy and they could only avoid liability upon such contract by tender- ing the renewal and demanding the premium and the failure of the plaintiff to pay the same ; or by giving the plaintiff or his agent notice that the defendant company had refused to carry the risk ; and such tender of the renewal and demand of the premium or the giving of the notice as before stated, in order to relieve the defendant from liability, must be done before loss occurred and before they knew of the loss.®^ (1681) The court instructs the jury that if you firjd from the evidence that the parties agreed that the insurance should be renewed without a payment of a premium and their minds met and they fully understood the terms of such renewal in all respects and nothing remained to be done thereto except to make out the renewal receipt on the part of the company, and the payment of the premium by the plaintiff, notwithstanding this was a verbal agreement, it was nevertheless a valid con- tract for the renewal of the policy, and the defendant is lia- ble for the loss to the amoimt of the insurance.^* 82 King v. Hekla Fire Ins. Co., 58 Wis. 508. »3 King v. Hekla Fire Ins. Co., 58 Wis. 508. (699) 1682] INSURANCE. [Ch. 83 V. Waiver of Right to Avoid ob Forfeit Fire Insurance Policy. In general. (1682) The court instructs the jury that to establish a waiver of any of the rights of the insurer, it must be shown that there was knowledge on the part of the insurer of the act or omission on the part of the insured which it claimed to have dispensed with or waived. Knowledge of a waiver need not be expressly shown, but may be implied, when the act of commission or omission is of such a character as fairly to pre- clude the idea of ignorance.®* (1683) The court instructs the jury that if they believe from the evidence that the defendant for a month or more after becoming aware of the fact that the policy here sued on was forfeited by reason of the violation of one of the con- ditions of the policy, and until the proofs of loss were furnish- ed, remained silent and inactive, but that upon receiving the proofs of loss the defendant immediately notified the plaintifE that the policy was forfeited and that after such notification the defendant performed no acts inconsistent with such claim of forfeiture, then if the jury believe from the evidence that the plaintiff was in no way misled by any act or statement of the defendant to his prejudice, the jury are instructed that the waiver of such forfeiture is not established.*' (1684) The court instructs the jury that the policy here sued on contained a warranty by the plaintiff that a continu- ous clear space of one hundred and fifty feet should be main- tained between the property covered by the policy and a cer- tain building, and if the jury believe from the evidence that the agent of the defendant company who received the applica- tion of plaintiff for the policy here sued on, knew at the time of the application that the existing facts were otherwise, and that there was not such a continuous clear space of one hun- 91 Roby V. American Cent. Ins. Co., 120 N. Y. 510. 95 Gibson Electric Co. v. Liverpool & London & Globe Ins. Co., 159 N. Y. 418. (700) Ch. 83] INSURANCE. [1686 dred and fifty feet and that it was not in the power of plain- tiff to change the facts and if the jury believe from the evi- dence that notwithstanding such knowledge, the agent accept- ed the premium and issued the policy, then the court instructs the jury that the right to insist that the policy was forfeited by reason of the breach of such warranty, is gone.®* Waiver of condition that watchman should be kept. (1685) The court instructs the jury that although they may believe that at the time of making the application for the policy sued upon by plaintiffs, or their agents, it was rep- resented by them, or their agents, that a watchman was and would be kept in charge of the premises insured, and that the matter was regarded by the agents of defendant as material to the risk, that is, without such representations, the risk would not have been taken, or a higher rate of premium would have been charged therefor ; and that the building was damaged or lost by fire, and at the time there was no watch- man in charge of the premises ; and that the defendant, by its authorized officers and agents, knew these facts, and with such knowledge the defendant alone, or in conjunction with other companies, agreed to make good the loss by rebuilding the premises and notified plaintiffs thereof, and failed or refused to rebuild and made no objection to make good the loss on the ground that no watchman was in charge of the premises at the time of the fire until after the institution of this suit ; then from these circumstances the jury are authorized to infer that defendant waived the matter and in such case it constitutes no defense to this suit.®^ (1686) The court instructs the jury that if the jury be- lieve from the evidence that the defendant gave to plaintiffs the notice of their intention to rebuild the premises destroyed by fire given in evidence by the plaintiffs and at the time of giving notice, the defendant knew that no watchman had been 80 Michigan, etc., Co. v. State, etc., Ins. Co., 94 Mich. 38 87 Bersche v. Globe Mut. Ins. Co., 31 Mo. 546. (701) 1687] INSURANCE. [Ch. 83 kept upon said premises from the time of the issuing of Said policy to the time of the happening of the loss, then the jury may infer that the defendants waived their right to inter- pose that fact as a defense to the right of plaintiffs to recover under the policy, and the burden of proof is on the defendant to satisfy the jury that at the time of giving such notice the defendant was ignorant of that f act.^* Waiver of right to avoid policy for misrepresentations in ap- plication. (1687) The court instructs the jury that the policy herein sued on contains a clause that he who procured the insurance should be held to be the agent of the insured, and also another clause, that the application must be made out by an authorized agent of the insurer and if the jury believe from the evidence that plaintiff signed a blank form of application for the in- surance policy here sued on in defendant company, and that such blank form was filled up by the agent of the defendant company without any knowledge or dictation of the plaintiff and that this application so filled up contained false answers and statements caused by the carelessness, mistake or inad- vertence of the agent, and not through any false representa- tions of the plaintiff, then the jury are instructed that the false answers inserted in the application by the agent, if the jury find that they were so inserted by the agent, do not for- feit the policy.®" Waiver of condition requiring consent of insurer to other in- surance. (1688) The court instructs the jury that by the terms of the policy here sued on the consent of the defendant to other insurance must be obtained and indorsed upon the policy, and if the jury believe from the evidence that the local agent who issued the policy for plaintiff gave a mere oral permission to 88 Bersche v. Globe Mut. Ins. Co., 31 Mo. 546. 98 Sprague v. Holland Purchase Ins. Co., 69 N. Y. 128. (702) Ch. 83] INSURANCE. [1691 plaintiff to take out other insurance and that in pursuance of such oral permission plaintiff did take out other insurance, then the court instructs the jury that the consent of the agent so given is not binding upon the company and does not pre- vent a forfeiture of the policy, the policy providing that no agent shall have power to waive any provisions or conditions except by writing attached to the policy. ■'''° Same— Parol waiver. (1689) The court instructs the jury that if they believe from the evidence that the condition in the policy here sued on against other insurance was violated by the plaintiff by taking out of further insurance without the knowledge of the company and that the taking out of such other insur- ance was made the subject of a verbal communication to an agent of the defendant, then the jury are instructed that the policy is forfeited, the policy prescribing that consent to such other insurance must be written upon the policy in the mode prescribed.-' "■' Waiver by demanding proofs of loss. (1690) The court instructs the jury that if they believe from the evidence that defendant had knowledge of the for- feiture of the policy here sued on by reason of the violation of the conditions of the policy by plaintiff and that the de- fendant remained silent after acquiring such knowledge, and that the defendant put the plaintiff to the inconvenience and expense of preparing proofs of loss, then the jury are in- structed that the forfeiture of the policy was waived.^ "^ (1691) The court instructs the jury that if they believe from the evidence that defendant knew that misrepresenta- tions had been made by plaintiff in his application for the 100 Elliott, Insurance, § 249. 101 Baumgartel v. Providence-Washington Ins. Co., 136 N. Y. 547, 10 Misc. 157. 102 Thompson v. Phenix Ins. Co., 136 U. S. 287. Observe that in this case the insurance company required proofs of loss. (703) 1692] INSURANCE. [Ch. 83 policy of insurance here sued upon, and after the knowl- edge of such alleged misrepresentations, demanded of plain- tiff that he make and deliver proofs of loss from the fire alleged to have destroyed the property covered hy the policy sued on, then as a matter of law, the defendant will he pre- svxmed to have waived any defense which it may have had by reason of such misrepresentations.^"* Prohibition against operating factory at night — Estoppel to assert. (1692) The court instructs the jury that the policy here sued on contains this language: "This entire policy, un- less otherwise provided by agreement, shall be void, if the insured now has, or shall hereafter make or procure any other contract of insurance, or if the subject of insurance be a manufacturing establishment, and it be operated in whole or in part, at night later than ten o'clock." .Now, the testimony in this case shows that this establishment was operated at night and the loss actually occurred at three or four o'clock in the morning. I charge you, however, that if at the time this policy was delivered by the agent to the insurance company, he knew that the manufactory was be- ing operated at night, the company is estopped from mak- ing this claim, that is to say, the company, under such cir- cumstances as that, must be assumed to have that knowledge, and to make the insurance with it. So that, in the disposi- tion of that question, the simple thing for you to determine is whether or not the agent had the knowledge at the time he delivered the policy. If he did, then the policy is valid ; if he did not, the policy is void.-^"* 103 German Fire Ins. Co. of Peoria v. Grunert, 112 111. 68. 104 Improved Match Co. v. Micblgan Mut. Fire Ins. Co., 122 Mich. 256. (704) Ch. 83] INSURANCE. [1695 VI. Proofs of Loss by Fire. Making of proofs by agent. (1693) The court instructs the' jury that if the insured does not make the proofs as required by the policy, a valid reason therefor should be shown, and it is sufficient that the insured is nonresident, dead, or was absent or insane at the time when the loss occurred, and did not return in time to make the proofs, and the coiirt instructs the jury that if they believe from the evidence that plaintiff was at the time of the fire (giving date) absent from his home in — — — and could not be found so as to make the proofs of loss with- in the time specified by the policy, then in that case such proofs of loss could be made by the agent of the plain- tiff.105 Time of making proofs of loss. (1694) The court instructs the jury that if they believe from the evidence that there was a loss of the property de- scribed in the declaration in this suit, as therein set out, then they are authorized to determine for themselves, from all the facts and circumstances of this case as developed from the evidence, whether or not, after said loss, the plaintiffs gave immediate notice thereof in writing to the defendant as required by the policy sued on.^"' (1695) The court instructs the jury that if" they believe from the evidence that there was a loss of the property de- scribed in the declaration in this suit as therein stated, and that after the said loss, the plaintiffs did not give immedi- ate notice thereof in writing, and did not give notice of the loss in the time required by the policy here sued on, and if the jury believe from the evidence that after the time expired for the giving of notice, plaintiffs submitted to de- fendants proofs of loss, and defendants accepted the proofs 105 German Fire Ins. Co. of Peoria v. Grunert, 112 111. 68. 100 Knickerbocker Ins. Co. v. Gould, 80 111. 388. (705) Instr. Juries — 45. 1696] INSURANCE. [Ch. 83 and retained the possession of tliem, and did not make any objection that the plaintiffs had not given proofs of loss within the time required by the policy, then the jury are instructed that such retention of proofs without raising an objection as to failure to give notice within the time required by the policy was not a waiver of the failure to give such notice within the time so stipulated.^*"^ (1696) The court instructs the jury that if you find, from the evidence, that the defendant insurance company issued to the plaintiff the policy mentioned in the declara- tion in this case, and that while said policy of insurance was in full force and effect a portion of the property mentioned in and insured by said policy was, on September 8, 19 — , destroyed by fire, while the same was the property of the plaintiff, and without the fault of the plaintiff, and that the plaintiff was absent at the time of such loss, and unable to make proof of the same, and that the agent of the plain- tiff, who in the plaintiff's absence had full charge, manage- ment and control of plaintiff's business, and who had pos- session of the property insured by said policy, as such agent, in the absence of the plaintiff, made out and delivered to the defendant insurance company, on or before September 23, 19 — , a written notice and proofs of loss, and that on Sep- tember 23, 19 — , the defendant returned such notice and proofs of loss, with objections thereto, and that the same agent of the plaintiff made out an amended notice and proofs of loss, and delivered the same to the defendant insurance company, and that said defendant insurance company on October 4, 19 — , returned such amended notice and proofs of loss, with objections thereto, and that such notice and proofs of loss were again amended by the same agent of the plaintiff, so that the same substantially complied with the conditions of said policy, and delivered the same to said de- fendant insurance company, and that on October 26, 19 — , lOT Knickerbocker Ins. Co. v. Gould, 80 III. 388. (706) Ch. 83] INSURANCE. [1698 said defendant again returned said notice and proofs of loss, with objections thereto, and that said defendant, at none of the times it returned said notice and proofs of loss, objected that the plaintiff had not made out and delivered such notice and proofs of loss within the time mentioned and provided in said policy, then said defendant insurance company thereby waived all objections that said notice and proofs of loss were not delivered to said defendant within the time provided for in said policy; and if you further find, from the evidence, that plaintiff complied with all the other conditions of said policy, then you should find for the plaintiff.'"* Proof as to cause of loss. (1697) The court instructs the jury that if you believe from the evidence before you that the building described in the policy sued on was not destroyed by fire, you will find for defendant. In this connection you are instructed that before the plaintiff can recover, it must appear from the evi- dence to your satisfaction, that the fire caused the destruc- tion of this building. If the building fell down before it was burned, and the fire occurred after the building fell down, and if you so believe from the evidence before you, you will find for the defendant. If the evidence satisfies you that the building was on fire before it fell, and that such fire caused the fall of the building, then you should find for plaintiff as previously explained in the first paragraph of these instructions.'"® Waiver of proof of loss. (1698) The court instructs that the proof of loss required by the terms of this policy is to be furnished within a certain time. This time having been fixed, and the parties agreeing 108 Approved In German Fire Ins. Co. of Peoria v. Grunert, 112 111. 68. This instruction was criticised because it did not tell the jury they must believe from the evidence that the agent was properly qualified to make the proofs of loss. i»8 Approved in Liverpool & L. & G. Ins. Co. v. Ende, 65 Tex. 118. (707) 1699] INSURANCE. [Ch. 83 to it, they were bound by it, and if the party fails to abide by the terms of his agreement, then he forfeits his right under the contract. He must be bound by the terms of the contract, as he made it. But notwithstanding this obligation on the part of a party to furnish the proofs within the proper time, and the right of the company to insist upon it in case of in- surance, there may be a waiver. This is a right adopted for the benefit of the insurance company, and if the com- pany chooses to waive it, it can do so.^^" (1699) Mere silence is not to be taken as a waiver of the right of the insurance company to insist upon a strict compliance with the contract. But where there are other acts done, as acts have been done here, either by the com- pany or its agents, you may take these acts into considera- tion, in order to discover whether there has been any waiver. In this case certain acts are relied upon by counsel for the plaintiff. One of these acts is what was said by Mr. D., as the agent of the company. The act with which Mr. D. is most immediately connected is simply a statement on his part, when informed of the loss here, that the company would not pay, because the premises were not occupied. In other words, as they claim, the statement was substantially this: "You have not carried out the terms of the contract provid- ing for the occupancy of the premises, and we shall rely upon that as our defense." If that was the effect of it, and if that was intended to be the effect of the statement, then you may consider that as a waiver, or take the fact into considera- tion as a waiver of the right to insist upon proof at the prop- er time. On the other hand, if such is not, in your view, the fair inference to be derived from the statement, — I say, if the facts as they actually occurred do not lead to that in- ference, — then there was no waiver of this right, and they had a right to insist upon the terms of the policy being car- ried out as to the proofs.*^* 110 Aurora Fire & Marine Ins. Co. v. Kranlch, 36 Mich. 289. 111 Aurora Fire & Marine Ins. Co. v. Kranlch, 36 Mich. 289. (708) Ch. 83] INSURANCE. [1702 VII. Marine Insurance. losses covered. (1700) The court instructs the jury that the plaintifl's under the pleadings in this case cannot recover, if the jury shall find from the testimony that the shipped by thfe plaintiffs tb their consignees in , were damaged or destroyed from — caused by their inherent infirm- ity."^ Abandonment. (1701) The court instructs the jury that an abandonment not accepted might be waived by the party making it; that the fact that the mortgagee W. had taken possession of thp boat and sold her because of his interest, would not have effect of waiving abandonment, if he took possession on nn- tice by the insurers, that they would no longer be responsi ble for her, and after her abandonment by the mortgagor H. did so to protect the interests of all concerned ; and that this was a question of intention to be judged by the acts and dec- larations of said W., done and made at the time.'^* (1702) The court instructs the jury that if the mortgagor was in possession and command of the boat as captain, and the mortgages were forfeited, perhaps neither he nor the mortgagee alone could make an abandonment; but if there ^\'as a right to abandon, and the mortgagor having the com- mand and control of the boat as master did abandon or ofier to abandon to the defendants; and they knew of the ex- istence of the mortgages and did not reject the abandonment on account of the mortgages; and if the mortgagee shortly afterwards when the offer of abandonment by the mortgagor was still unrevoked, and the boat was still at the disposal "2 Approved in Providence & Washington Ins. Co. of Providence, R. I., V. Adlef, 66 Md. 162. "3 Approved In Fultdn Ins. Co. v. Goodman, 32 Ala. 108. Befura insurance wafe takeil out, H. mortgaged his interest to W. (709) 1703] INSURANCE. [Ch. 83 of the defendants so far as the mortgagor was concerned, assented to and approved of the abandonment by the mort- gagor and made known to the defendants his assent and approval — an abandonment so made, if in other respects good, would be valid.^^* (1703) The court instructs the jury that if the injury to the boat was such that her repairs would cost more than half her value when repaired at the port of repair, then the assured had the right to abandon ; and in estimating the ex- pense of repairs the jury should take into consideration the amount paid by the insurance companies for raising the boat and bringing her to if, fairly expended; that it was not necessary that the expense of repairs should amount to half the sum named in the policy as the agreed value of the boat, but it was sufficient if equal to half of her value in fact when repaired.^^^ (1704) The court instructs the jury that if the condition of the boat was such that in the opinion of practical men the great probability appeared to be that she could not be raised and repaired, it was sufficient to justify an abandon- ment as for a total loss, though she was afterwards raised and repaired at a cost of less than half her value. ■'^* (1705) The court instructs the jury that although it was the duty of the master and crew to labor for the recovery of the vessel, they were not bound to do impossibilities; and that if it appeared to practical men that the vessel could not be saved, they would be justified in abandoning her, and were not bound to wait for the decision of the underwriters on the offer to abandon.*'^ (170C) The court instructs the jury that the parol aban- donment was sufficient and when once rightfully made it 1" Approved in Fulton Ins. Co. v. Goodman, 32 Ala. 108. w» Approved in Pulton Ins. Co. v. Goodman, 32 Ala. 108. 116 Approved in Fulton Ins. Co. v. Goodman, 32 Ala. 108. "'Approved in Fulton Ins, Co. v. Goodman, 32 Ala. 108.- (710) Ch. 84] JOINT LIABILITY. [1707 fixed the rights of the assured and could not be forfeited by any subsequent event without the assent of the assured.*^* CHAPTEE IXXXIV. JOINT LIABILITY, Liability for joint -wrong, 1707. liability for joint wrong. (1707) The court instructs the jury that for joint wrongs by two or more wrongdoers, each must assume and bear the responsibility of the misconduct of all, — ^the law permits the injured party to treat all whose wrong or negligence co- operated in producing the injury as constituting together one party, by their joint co-operation accomplishing certain in- jurious results and holds them liable to respond to the in- jured party in a gross sum as damages, and if the jury be- lieve from the evidence (that plaintiff was a passenger on the train of cars of one of the defendants, the Com- pany, and that through the negligence of such defendant cooperating with the negligence of the other defendant, the Company, the train of cars on which plaintiff was riding collided with an engine operated by the defendant, the Company, and that through such joint negli- gence of the above-named defendants, the plaintiff was in- jured, then the plaintiff may recover from the two defend- ants a gross sum as damages).^ 118 Approved in Fulton Ins. Co. v. Goodman, 32 Ala. 108. 1 West Chicago St. R. Co. v. Home, 100 111. App. 259. The use of the word "gross" in the above instruction as meaning a lump sum is not objectionable. (711) 1708] JOINT-STOCK COMPANIES. [Gh. 85 CHAPTER LXXXV. JOINT-STOCK COMPANIES. Liability on subscription contracts, 1708, 1709. liability on subscription contracts. (1708) The court instructs the jury that if they find that the defendant was induced to subscribe by the statement of the plaintiff company or its agent, that there were no pro- moter's profits, when in point of fact there were such profits, that it became the duty of the defendant to elect on the discovery that there were such profits to rescind his contract of subscription or else he was bound by it, and they must find for the plaintiff on the special plea.* (1709) The court instructs the jury that if they find that the defendant, after discovery that there were such profits, treated the contract of subscription as a subsisting contract, they must deem that the defendant waived his right of re- pudiation and that a promise to pay a call after such a dis- covery is an act showing that he did treat the contract as a subsisting contract and is a waiver of his right to re- pudiate it, and they must find for the plaintiff on the spe- cial plea.* ' West End Real Estate Co. v. Claiborne, 97 Va. 734. 2 West End Real Estate Co. v. Claiborne, 97 Va. 734. (712) Cb. 86] iiANDLORD AND TENANT. [1710 CHAPTER LXXXVI. LANDLORD AND TENANT. I. THB RBLATlON-^DtjEATlON AND TERMINATION. Termination of relation, 1710-1716. Same-^Termlnatlbn of tenancy at will, 1717. Same— Waiver of forfeiture, 1718. II. Renewal, Holding Over, Etc. Option of tenant to renew lease-^Notlee of intention to renew, 1719, 1720. Same — Action by tenant against subtenant fot use and occupa- tion, 1721, 1722. Extension or renewal by holding over, 1723-1725. Terms, as to rent, etc., of holding over, 1726, 1727. in. Inabilities of Landloed to Tenant. Trespass by tenant against landlord, 1728. Right of landlord to enter upon premises, 1729. Injuries to tenants or occupants-^Landlord's knowledge ol de- fects, 17S0-1732. Same-^lnjuries from contagious diseases, 1733. IV. Defenses to Action tor Rent. In general, 1734, 1735. Defense of change in condition of premises, 1736. Fraud of landlord as defense to action for rent, 1737. Eviction as defense to action for rent, 1738-1744. game-^Retaking possession of part of premises, 1745-1747* Same — Lease of part of premises to third person, 1748. Action for rent based upon verbal lease, 1749. Right to set oft value of improvements against rent, n&i. V. Rights and Liabilities as to Third Persons. Liability of landlord for injuries to strangers, 1751, 1762. Liability Of tenant for injuries to third persons, 1753-1755. Trover by landlord against third persons purchasing grain from tenant, 1756. I. The Relation — Duration and Termination. Termination of relation. (1710) The court instructs the jury that a surrender ex- ists by operation of law when the parties, without any ex- (713) 1711] LANDLORD AND TENANT. [Ch. 86 press surrender, do something so inconsistent witL. the re- lation of landlord and tenant as to imply it, as by entering into the relation of vendor and purchaser, payment of a part of the purchase money, agreeing to pass a conveyance, and ceasing to pay or demand rent, and the court instructs the jury that if they believe from the evidence that the defend- ant took a lease of the premises described in the declaration from the plaintiff for a term of two years and that the de- fendant sublet a part of the premises, described in the dec- laration and covered by the lease and that the defendant subsequently gave possession of the remainder to (A.) who was accepted as a tenant by the plaintiff and that A. paid rent for the whole premises with the consent of the defend- ant, then the jury are instructed that this transaction con- stitutes a surrender of the premises by operation of law and that it is a good defense to this suit for rent by the plaintiff.* (1711) The court instructs the jury that while a sur- render of the lease may be by agreement, express or implied, or by operation of law, yet the facts must be such as to es- tablish an acceptance by the landlord or an intention on his part to terminate the tenancy and if the jury believe from the evidence that after the alleged surrender of the prem- ises described in the declaration by the defendant plaintiff draped an empty show window and occupied the floor of the building constituting the subject of the lease in a way not to interfere with its use by defendant, then the jury are instructed that this is not sufficient to show, as a matter of law, an acceptance by the landlord of the alleged surrender or an intention on his part to terminate the tenancy.^ (1712) The court instructs the jury that while a sur- render of a lease may be by agreement, express or implied, or by operation of law, yet the facts must establish an ac- ceptance by the landlord of the alleged surrender and if 1 Kedney v. Rohrback, 14 Daly, 54. 2 Requa v. Domestic Pub. Co., 11 Misc. 322, 65 State Rep. 220. (714) Ch. 86] LANDLORD AND TENANT. [I714 the jury' believe from the evidence that (the agent of plain- tiff told the defendant that there was a certain person who would take the premises off of the hands of the defendant, if the defendant would deliver up the premises described in the declaration immediately and that in reply to this the defendant said, "All right, of course it is short notice," and that the defendant said further he would see what he could do, and if the jury believe from the evidence that de- fendant gave the keys to the clerk of the agent of the plain- tiff two days later, then the jury are instructed that this is not sufficient to establish an accepted surrender, so as to release the defendant from the payment of rent, if the jury further believe from the evidence that no communication was made to the agent after the first interview alleged to have been had).* (1713) The court instructs the jury that if they believe from the evidence that the plaintiff executed to the defend- ant a written lease for three years and that more than a year before the lease was to expire agreed with the defend- ant to accept as tenant (A.) who had purchased the defend- ant's interest and that A. agreed to take the place of de- fendant and to pay rent for the remainder of the term speci- fied in the lease to defendant and that plaintiff agreed to release the defendant from liability, and if the jury believe further from the evidence that such agreement was followed by an entry by A. and payment of rent upon his part, then the jury are instructed that this constitutes a valid defense to this action for rent by plaintiff against the defendant.* (1714) The court instructs the jury that mere acceptance by a landlord of the key of the demised premises from the tenant who abandons possession during the term, is not an acceptance of the surrender if the landlord states that he re- ceives the key and not the premises.** 3 Kelly v. Noxon, 64 Hun, 281, 46 State Rep. 87. 4 Vandekar v. Reeves, 40 Hun, 430. "Townsend v. Alters, 3 N. Y. (E. D. Smith) 560. (715) 1715] LANDLORD AND TENANT. [Ch. 86 (1715) The court instructs that where a teaant at -vrill, be- fore the expiration of his tenancy, quits the premises and of- fers to surrender the key to the landlord, and upon his refus- ing to receive it, throws it down, and after the tenant has left, the landlord takes it up and retains it, but the premises re- main unoccupied during the remainder of the term, the land- lord thereby waives no rights, and thfe tenancy is not de- termined.* (1716) The court instructs the jury that if they believe from the evidence that the defendant sought to terminate his tenancy before the expiration of his lease by substitut- ing a third person, and that the defendant on leaving the demised premises tendered the rent due up to the time of leaving and also tendered the key of the premises and that plaintiil declined to receive the key unless defendant would agree to make good the rent of the unoccupied premises un- til plaintiff should have an opportunity of renting them, then the jury are instructed that such conditional acceptance of the key did not have the effect of terminating the tenancy and that defendant remained liable under the lease until the termination thereof.'' Same — Termination of tenancy at will. (1717) The court instructa the jury that the defendant in this case was a tenant at will of the plaintiff, and if the jury believe from the evidence that plaintiff on (June 24th) gave notice to the defendant that the premises described ii! the declaration would be required (July 3d) and on (Au- gust 7th) gave a second notice in writing for the defendant to surrender the premises (September 9th) and then took possession on (August 16th) while the defendant was ab^ sent and forcibly ejected the defendant when he returned, then the jury are instructed that th«ugh the plaintiff might have relied upon the first notice by waiting until thirty days had expired, and then claiming possession though the notice 8 Withers v. Larrabee, 48 Me. C70. ' Nelson v. Thompson, 23 Minn. 508. (716) Ch. 86] LANDLORD AND TENANT. [_i7i9 specified a shorter tijne, yet plaintiff by the second notice waived the first one and admitted tha,t the tenancy still ex- isted and plaintiff was not entitled to a surrender until thir- ty days after the second notice had expired and the action pf plaintiff in forcibly ejecting the defendant on August 16th was therefore wrong-ful.* Same — ^Waiver of forfeiture. (1718) The court instructs the jury that any act done by a landlord who knows of a cause of forfeiture by his tenant which affirms the existence of the lease and recognizes the lessee as his tenant, is a waiver of such forfeiture. The re- ceipt from the tenant, by the landlord, of rent accruing is such an act, and the court instructs the jury that if they believe from the evidence (that the lease by plaintiff to defendant of the premises described in the declaratioH con- tained a covenant on the part of the defendant not to assign and providing for a forfeiture in case of a breach of its covenant, and if the jury further believe from the evidence that the defendant assigned the lease to A. and that subse- quently to such assignment, plaintiff acquired knowledge of the assignment, and with such knowledge accepted from the defendant rent accruing after the assignment, then the jury are instructed that this constitutes a waiver of the assign- ment and that A. has the power to transfer a good title to the lease without the consent of the plaintiff).* II. Renuwai,, Holding Ovee, Etc. Option of tenant to renew lease — Notice of intention to renew. (1719) The court instructs the jury that the lease by the plaintiff to the defendant of the premises described in the declaration contains a provision for renewal in two years, upon the defendant giving a written notice three months be- fore the expiration of the term named in the lease of the 8 Morgan v. Powers, 83 Hun, 298, 64 State Rep. 749. « H. Koehler & Co. v. Brady, 78 Hun, 443, 61 State Rep. 49. (717) 1720] LANDLORD AND TENANT. [Ch. 86 desire of the defendant to extend the lease for a further period of two years, and if the jury believe from the evi- dence that the defendant gave notice as specified in the lease of his desire to extend the lease for a further period of two years and that defendant suggested that he would accept a renewal for two years and a half, and that plaintiff refused to grant the extra six months' extension but acknowledged the right of defendant to renew for two years, then the jury are instructed that this constitutes a sufficient expression of intention that defendant desired to renew his lease for two years and a sufficient exercise of the option to renew and that the defendant is liable upon the lease for the full period of two years from the expiration of the original term.*" (1720) The court instructs the jury that the lease of the premises described in the declaration in this suit was for a period of six months and contained a provision that de- fendant should have the privilege of continuing the lease for two years, at a higher rental than that named in the lease for the first six months upon the giving of a written notice within a specified time prior to the expiration of the six months, and if the jury believe from the evidence that the de- fendant did not give any written notice, but that defendant continued in possession of the leased premises after the ex- piration of the six months, for four months longer paying the higher rental which was to be paid upon renewal of the lease, then the jury are instructed that this constitutes a waiver of the provision requiring written notice of the option to renew and that defendant must be deemed to have elected to hire the premises for a further term of two years.^^ Same — Action by tenant against subtenant for use and occupa- tion, (1721) On the part of the defendant the court instructs the jury, that if they believe, from the evidence, that one 10 Chamberlain v. Dunlop, 126 N. Y. 45, 36 State Rep. 373. " Long v. Stafford, 103 N. Y. 274. (718) Ch. 86] LANDLORD AND TENANT. [1724 S. owned the premises in question, and executed a lease there- for to the plaintiff for one year, with the privilege of re- newing for one or more years, provided said S. did not sell the premises before the , and if they further believe, from the evidence, that the premises were sold by said S. before the , then they should find for the defend- ants.'* (1722) The court instructs the jury as a matter of law, that in order to constitute a sale of real estate within the meaning of the clause in the lease introduced in evidence by plaintiff, it is not necessary that a deed should actually be executed and delivered, but any written agreement by or under which a party may enforce the making and deliv- ery of a deed of conveyance, and in pursuance of which a deed is subsequently executed and delivered, is, in the eyes of the law, a sale, within the meaning of said clause in said lease.-'* Extension or renewal by holding over. (1723) The court instructs the jury that the rule which permits a landlord at his election to treat a tenant who holds over after the expiration of his term as holding for another year, rests upon legal implication derived from the wrong- ful act of holding over, but if the jury believe from the evi- dence that the defendant was obliged to retain a room in the building described in the declaration as having been leased by the plaintiff to the defendant for a short time in order to avoid the peril of endangering the life of a mem- ber of his family who was seriously sick, then the jury are instructed that such act of retaining possession for such pur- pose is not a holding over within the meaning of the law.'* (1724) The court instructs the jury that if they believe from the evidence that plaintiff notified defendant before "Approved in Sutherland v. Goodnow, 108 111. 528. IS Approved in Sutherland v. Goodnow, 108 111. 528. " Herter v. Mullen, 159 N. Y. 28, 6 Ann. Cas. 329. (719) 1735] LANDLORD AND TENANT. [(Jh. 86 the expiration of the lease described in the declaration, that if the defendant should hold over and continue in posses- sion after (May 1st) the rent would be increased to ■- — , and that the defendant did not complete moving out of the premises until (May 3d) and that upon May 3d defendant tendered the keys but the surrender of defendant was not accepted by plaintiff, then the jury are instructed that de- fendant became liable for a year's rent at the rate of , since it was the duty of the defendant to make a full sur- render of the premises on (May 2d)/^ (1725) The court instructs the jury that if they believe, etc., that the defendants occupied the lots in question from May 1, 1901, to May 1, ,1902, under a lease for that year from the then owners of the lots, and that defendants con- tinued to hold over and occupy the premises after May 1, 1902, with the assent of such owners, without any agree- ment before that time as to how they should occupy the lots, the defendants would be entitled to hold the premises for another year from May 1, 1902, and in the absence of any understanding or agreement permitting it, the plaintiff could not lawfully expel or dispossess them until May 1, 1903.i« Terms, as to rent, etc., of holding over. (1726) The court instructs the jury that where a tenant holds over after the expiration of his term, with the implied assent of the lessor, it will be upon an implied undertaking, or liability, to pay rent thereafter, on the same terms as to amount and times of payment, as in the original lease.* ^ (1727) The court instructs the jury that if the landlord duly notifies his tenant, who is holding by the year, and before the expiration of the year, that if the tenant occu- pies the premises another year, he must pay a certain in- 10 Frost V. Akron Iron Co., 12 Misc. 348, bb State Rep. 785. 18 Price V. Pittsburg, Ft. W. & C. R. Co., 34 111. 13. " Clapp V. NobJe, 84 111. 62. (720) Ch. 86] LANDLORD AND TENANT. [1729 creased rent and the tenant does not surrender possession tut continues to occupy them, the tenant must be deemed to have acquiesced in the new terms and in the increased rent, and if the jury believe from the evidence that the plain- tiff on , which date was some two months before the expiration of defendant's tenancy, notified defendant that if he continued to occupy the premises after he would be required to pay rent at the rate of — , and that the defendant continued to occupy the demised premises after , then the jury are instructed that defendant is liable at the increased rent named in the notice given by plain-tiff on .!« III. Liabilities of Landloed to Tenant. Trespass by tenant against landlord. (1728) The court instructs the jury that the defendants cannot be held liable in the action unless the plaintiff shows that they directed or approved the issuing of the distress warrant of , and the seizure and detention of the plaintiff's property thereunder, or became aware of the seiz- ure and failed to repudiate it, and if they believe from the evidence that the plaintiff has not shown that any one of the defendants did thus direct and approve the issuing of the distress warrant and the seizure and detention of the property of the plaintiff thereunder, or that after knowl- edge of the seizure (failed) to repudiate it, then the jury must find such defendants not guilty.-'* Right of landlord to enter upon premises. (1729) The court instructs the jury as a matter of law that if a landlord has a tenant in possession under a lease expiring at a certain time and executes to a third person a lease of the premises to begin at the expiration of the term 18 Higgins V. Halligan, 46 111. 173. i» Fishburne v. Bngledove, 91 Va. 548. (721) Instr. Juries — 46. 1730] LANDLORD AND TENANT. [Ch. 86 of the tenant in possession, then the right to the possession vests at the expiration of the first lease in the second lessee, and if the jury believe from the evidence that plaintiff re- ceived a lease of the premises described in the declaration dated and was in possession under it on the , and continued in such possession until after the time of tho alleged trespass by the defendant described in the declara- tion, and that on the the defendant signed another lease to A. and that A. executed such lease intending to be- come a tenant of the defendant, then upon termination of the lease to the plaintiff A. became entitled to the posses- sion of the premises described in the declaration, and if the jury believe from the evidence that the lease to A. continued in force at the time of the alleged trespass described in the declaration, then the jury are instructed that the defendant or his agents had no right of possession at the time of such alleged trespass, no matter what conditions were in the lease to the plaintiff.^* Injuries to tenants or occupants — Landlord's knowledge of de- fects. (1730) The court instructs the jury that to render a land- lord liable for injuries to his tenant arising from the de- fective condition of premises leased, it must appear that the landlord had some notice of the defective condition of the premises or that circumstances existed which will raise a pre- sumption of notice to the landlord, such as an unreasonable omission to ascertain the condition of the premises, or the failure of the landlord to make necessary repairs or changes called for by the condition of the premises or in certain ex- igencies, and if the jury believe from the evidence (that de- fendant leased the building described in the declaration to plaintiff and that the boiler in the building exploded and that through such explosion plaintiff was injured, and that 20 Beidler v. Fish, 14 111. App. 29. (722) Ch. 86} LANDLORD AND TENANT. [1732 the boiler had been in use for a considerable time without any imperfection or defect being discovered except a slight break, and that the defendant had employed a skilled me- chanic to repair this slight break, then the jury are instruct- ed that defendant is not liable for the injuries alleged to have been sustained by the plaintiff from the explosion of the boiler, though the jury may further believe from the evi- dence that the mechanic did not repair the break in a proper manner).^-' (1731) The court instructs the jury that (a clothes pole is one of those common structures or appurtenances used in and about dwellings that, unless so old as to cause suspicion of unsoundness, are never subjected to more than cursory examination, and if the jury believe from the evidence that the life of a pole is ordinarily about eight years, that the defendant had erected upon the premises described in the declaration and leased to the plaintiff, a pole apparently sound and that after such pole had been in use for about five years, it broke, causing the injuries to plaintiff here sued for, and that at the time of the accident the pole had rotted al- most through about an inch from the ground and that dur- ing the period in which such pole was in use, no one had no- ticed the defective condition of the pole or any weakness or instability in it, then the jury are instructed that no notice is to be imputed to the defendant of the defective condition of the pole, and if they further believe from the evidence that defendant had no actual notice, the jury must find a verdict for the defendant). ^^ (1732) The court instructs the jury that if (they believe from the evidence that defendant leased the apartment in 21 Perkins v. Eighmle, 6 N. Y. Supp. 156, 2 Silv. Sup. Ct. 497, 24 State Rep. 728. 22Lenz v. Aldrlch, 6 App. Div. 178, 39 N. Y. Supp. 1022. There was a dissenting opinion in this case which held that the question of negligence on the facts recited in the hypothesis should have been left to the jury. (723) 1733] LANDLORD AND TENANT. |,Ch. 86 the tenement house described in the declaration to the plain- tiff, and that the defendant placed upon the roof of the ten- ement house a platform for the common use of the tenants in hanging out clothes and that through the breaking of a board in the platform so placed by the defendant, the plain- tiff, while engaged in hanging out clothes, was injured, and that the defect in the board which caused the breaking was not apparent upon an ordinary examination, and that de- fendant had no actual notice of the defect, then the jury are instructed that defendant is not liable for the injuries so sustained by plaintiff, if the jury find that the injuries were so sustained, and the jury must render a verdict for the de- fendant).^* Same — Injuries from contagious diseases. (1733) The court instructs the jury that the general rule of law is that a landlord who lets premises knowing that they are contaminated with infectious disease, without noti- fying the tenant, is liable for damages in case the disease is communicated to the defendant or bis family, and if the jury believe from the evidence that the premises described in the declaration were leased by plaintiff to defendant, and at the time of the lease the premises were infected by a con- tagious disease with the knowledge of the plaintiff, and that the disease because of such infection of the premises was communicated to the defendant, then the jury are instruct- ed that defendant is entitled to recover damages arising from communication of such disease, though the jury may believe from the evidence that the fact of the infection of the prem- ises by the contagious disease was communicated to defend- ant by A. before defendant went into possession of the prem- ises, if the jury further believe from the evidence that plain- tiff denied the truth of the statement by A.^* 28 Alperin v. Earle, 55 Hun, 211, 27 State Rep. 806. 21 Snyder v. Gorden, 46 Hun, 538, 12 State Rep. 556. (724) Ch. 86] LANDLORD AND TENANT. [1735 IV. Defenses to Action fok Rent. In general. (1734) The court instructs the jury that the wrongful act of a landlord will not bar him from a recovery of rent, unless the tenant, by reason of such wrongful act, has been deprived in whole or in part of the possession, either actu- ally or constructively, or unless the premises have been ren- dered useless by the wrongful act of the landlord. ^^ (1735) The court instructs the jury that if they believe from the evidence that plaintiff, the lessor of the defend- ant, by himself or his agents, at the time of the making of the lease, agreed with the defendant that if the defendant would lease the premises described in the declaration of said ■ plaintiff, and enter into the said lease, dated , and take the same, that the said plaintiff would not let or lease any other part of the said premises or building for a saloon, or for saloon purposes, and that in consideration of such agreement as last aforesaid, the defendant did enter into and take said lease; and if the jury further believe from the evidence that thereafter, before said lease expired, said plaintiff without the consent or acquiescence of the defend- ant did let a part of said building described in the declara- tion, and a portion of which building was occuj)ied by the defendant in pursuance of his tenancy, for a saloon, and per- mitted the use of a portion of the building for- saloon pur- poses, then the jury are instructed that defendant may re- cover any damages which they may find from the evidence defendant sustained from the breach by plaintiff of his agree- ment, if they find that plaintiff made such agreement not to lease any portion of the building in which defendant was to be a tenant for the purposes of a saloon.^® 25 Chicago Legal News Co. v. Browne, 103 111. 317, 26 Chicago Legal News Co. v. Browne, 103 111. 317. It was held In the above case that the violation of the agreement to refuse to lease for saloon purposes was not a defense to the action for rent. (725) 1736] LANDLORD AND TENANT. [Ch. 86 Defense of change in condition of premises. (1736) The court instructs the jury that a tenant who continues to occupy the whole of the demised premises dur- ing the whole period for which rent is claimed, is not re- leased from payment of such rent by the acts of the land- lord, which diminished the beneficial enjoyment of the prem- ises during the period for which rent is sought to be recov- ered.^'^ Fraud of landlord as defense to action for rent. (1737) The court instructs the jury that if the landlord is guilty of fraud in leasing premises, either in making a false statement as to their condition or in concealing some- thing which would make the premises untenantable or unfit for the purpose for which they were rented, or render them unfit for occupancy, the tenant may abandon the premises without liability for rent and if the jury believe from the evidence that (at the time of making the lease of the prem- ises described in the declaration, the plaintiff made a rep- resentation to the defendant that the building leased would sustain an engine which defendant desired to place in the building for the purpose of the tenancy and that the build- ing leased would not sustain the engine, then the jury are instructed that defendant is not liable for rent, though the plaintiff did not have actual knowledge as to the truth of his representations, and though the jury may believe from the evidence that the defendant remained for a time after the building proved insuificient to sustain the engine, if the jury further find from the evidence that plaintiff promised that the walls of the building would be strengthened).^* Eviction as defense to action for rent. (1738) The court instructs the jury that physical and 27 Academy of Music v. Hackett, 2 Hilt. 217; Cable v. Bonnell, 9 Mlso. 154. 28 Myers v. Rosenback, 13 Misc. 145, 68 State Kep. 18. (726) Ch. 86] LANDLORD AND TENANT. [1741 forcible expulsion is not necessary to produce an eviction, but any act on the part of the landlord -which deprives the tenant of the beneficial enjoyment of the premises, amounts to an eviction. This is so, if the act was done in violation of the rights of the tenant.^* (1739) The court instructs the jury that a physical evic- tion is not necessary to exonerate the tenant from payment of rent, but if the landlord's acts are of so pronounced and offensive a character as to create a nuisance, which prevents the reasonable use of the premises by the tenant, such acts will justify an abandonment of the premises and will defeat an action for subsequent rent.*" (1740) The court instructs the jury that the principle upon which a tenant is required to pay rent, is the bene- ficial enjoyment of the premises, unmolested in any way by the landlord; and if the jury believe from the evidence in this case that the plaintiff took possession of any part of the premises leased by her to the defendant against the con- sent of the defendant, with the intention of depriving the defendant of the enjoyment of the demised premises, then this constitutes an eviction and will release defendant from the payment of any more rent, and the jury will find for de- fendant.'* (1741) The court instructs the jury that if the tenant loses the benefit of the enjoyment of any portion of the de- mised premises by the act of the landlord, the rent is there- by suspended, and that if the jury believe from the evidence that plaintiff, after leasing the premises described in the declaration to the defendant, put (a water pipe through one corner of the store, about one foot from the walls, and put in a pump and sink in the upper room, which he had rented 29 Approved In Price v. Railroad Co., 34 111. 17. 3» Sully V. Schmitt, 147 N. Y. 248, 69 State Rep. 527. ai Walker v. Tucker, 70 111. 527. Approved in Smith v. Wise, 58 111. 143. (727) 1742] LANDLORD AND TENANT. [Ch. 86 to the defendant, against the consent and without the knowl- edge of the defendant, and that the defendant kept an eat- ing house immediately under the room in which the sink and pump were placed, and that the water leaked through and injured the room below, then it is for the jury to de- termine whether such acts amounted to an eviction reliev- ing defendant from the payment of rent).*^ (1742) The court instructs the jury that to constitute an eviction, it is not essential that the acts of the landlord should be committed with intent to compel the tenant to leave the property or deprive him of the beneiicial enjoy- ment thereof. If the acts of the landlord are calculated to and do make it necessary for the tenant to move they con- stitute an eviction, and if the jury believe from the evidence that the plaintiff leased the premises described in the dec- laration to the defendant (and agreed to remove a body of stagnant water which flowed upon the premises leased, and if the jury believe from the evidence that the plaintiff failed to perform this duty and that through the failure to perform said duty the premises leased to plaintiff became untenant- able, the jury are instructed that this constitutes an eviction and plaintiff is precluded from recovery of rent).** (1743) The court instructs the jury that if the landlord, before the expiration of the lease or tenancy, against the consent of the tenant, evicts or expels the tenant from all or any substantial part of the premises leased, the tenant is discharged from the payment of any rent from the time of such eviction, and is not bound to payment for what he con- tinues to occupy after such eviction. If there is no agree- ment to the contrary, the tenant is entitled to the possession of the premises without interruption or molestation by the landlord, and if the jury believe, etc., that defendant was 32 Lyncli V. Baldwin, 69 111. 210. Telling the jury that the above- recited facts amount to an eviction Is reversible error. 33 Tallman v. Murphy, 120 N. Y. 345, 31 State Rep. 483. (728) Ch. 86] LANDLORD AND TENANT. ri744 tenant from year to year, and entitled to the possession of the premises in question from , to , and that against defendant's consent, and in the absence of any un- derstanding or agreement permitting it, the plaintiff wrong- fully took possession of part of said lots for their , and continued to hold and use the same until , and evicted defendant therefrom, then such an eviction by the plaintiff works an extinguishment of all rent for said prem- ises from the time of its occurrence, notwithstanding defend- ant continued to occupy the residue of said lots until ■. But if it was the understanding that the plaintiff might put its across the lots in the event of its electing to do so on , and defendant held under that understand- ing, then putting down the after such would not amount to an eviction.** (1744) The court instructs the jury that an eviction which will terminate a tenancy and relieve a tenant from liabil- ity for rent, must consist of acts constituting more than a trespass. The acts which will constitute an eviction must be of a grave character done by the landlord with the inten- tion of depriving the tenant of the enjoyment of the demised premises, and if the jury believe from the evidence that plain- tiff during the life of the tenancy of the defendant took pos- session of the building on the demised premises which had been erected by defendant for purposes of his own and that plaintiff used such building as a "stable" and the premises on which the stable stood as a "cattle yard" without the consent of the defendant, then it is for the jury to say whether these acts amounted to an indication of an inten- tion on the part of the plaintiff that the defendant should no longer continue to hold the premises, and whether these acts therefore constituted an eviction.^ ^ »4 Price V. Pittsburg, Ft. W. & C. R. Co., 34 111. 13. 85 Hayner v. Smith, 63 111. 430. The question of what constitutes a constructive eviction is lor the jury. (729) 1745] LANDLORD AND TENANT. [Ch. 86 Same — Betaking possession of part of premises. (1745) The court instructs the jury that it is an evic- tion to take from the tenant some part of the demised prem- ises of which he was in possession; and if the jury in this case believe, from the evidence, that the plaintiff, without the consent of the defendants, took possession of any ma- terir.l part of the demised premises, then the defendants are released from the payment of all rent, and the jury will find for the defendants.^ ^ (1746) The court instructs the jury that if they believe, from the evidence in this case, that the premises leased by the plaintiff to the defendants, or a part of the same, were enclosed by a fence, and had on the same a brick building, and that the plaintiff took possession of said building and used it as a stable, and took possession of the yard and used it as a cattle yard, without the consent of the defendants, then, in law, it is an eviction, and releases the defendants from the payment of any more rent; and they will find for the defendants.*'' (1747) The court instructs the jury that, although they may believe, from the evidence, that the defendants have never been disturbed in, or evicted from the main building on the leased premises, and that they have had the use and enjoyment of the same, still if they further believe from the evidence, that the plaintiff had taken possession of any material part of said demised premises, without the consent of the defendants, then the law is, that it is an eviction, and the defendants are not bound to pay any rent for the part of the said premises they used and occupied; and the jury will find for the defendants.*^ Same — Lease of part of premises to third person. (1748) The court instructs the jury that, if they believe, 86 Approved in Smith v. Wise, 58 III. 143. 87 Approved In Smith v. Wise, 58 111. 143. 88 Approved In Smith v. Wise, 58 HI. 143. (730) Ch. 86] LANDLORD AND TENANT. [1750 from the evidence in this suit, that the plaintiff, after leas- ing the premises to the defendants, leased a part of said prem- ises to one H., who has taken possession of the same, then, in law, this is an eviction, and releases the defendants from the payment of all rent, and the jury will find for defend- ants.^* Action for rent based upon verbal lease. (1749) The court instructs the jury that plaintiff's ac- tion is based upon a verbal lease and the dispute between the parties has relation to the terms on which the land in question was rented to the defendant, each party assert- ing a number of claims against the other arising under the lease. The court instructs the jury that the terms of the leasing of the plaintiff's farm to defendant are material in this suit and that plaintiff must prove to the satisfaction of the jury by a preponderance of evidence that the terms of the lease were such as plaintiff claimed them to be. If the jury shall find that the evidence preponderates in the slightest decree in favor of the defendant or is equally bal- anced, then the law is for the defendant and plaintiff can- not recover.*** Eight to set off value of improvements against rent. (1750) The court instructs the jury that if they believe from the evidence that by the terms of lease in this case the defendant was to be allowed out of the rent to become due the costs to him of permanent improvements in adapt- ing the building in controversy to his uses, then he had a right to claim the payment of said costs out of said rents. And if they believe from the said evidence that by said contract said defendant was to be paid said costs before pay- ing any rent and was. not so paid, then he had the right to claim the same thereafter at any time he might see prop- 89 Approved In Smith v. Wise, 58 111. 143. , «o East V. Crow, 70 111. 91. (731)' 1751] LANDLORD AND TENANT. [Ch. 86 er, and if they believe from said evidence that by said con- tract it was not provided when said costs were to be taken out of the rents, then the defendant had the right to elect to take said costs out of said rent whenever he saw proper so to do.*' V. Rights and Liabilities as to Third Peesons. Liability of landlord for injuries to strangers. (1751) The court instructs the jury that if they believe from the evidence that defendant leased the premises de- scribed in the declaration to (A.) and that (A.) took en- tire possession and assumed entire control over the prem- ises so leased, and that defendant reserved no control over the premises, and that defendant had constructed a vault under the sidewalk adjoining the premises so leased, by the consent of the city and that (A.) was negligent in leav- ing the vault open, whereby plaintiff sustained the injuries here sued for, then the jury are instructed that defendant is not liable for the injuries so sustained by the plaintiff in so falling into the vault, if the jury find that the in- juries were so sustained.*^ (1752) The court instructs the jury that if they believe from the evidence that the defendant leased the premises described in the declaration to (A.) and that the defend- ant had knowledge at the time of the leasing, that the prem- ises were in a dangerous condition and constituted a nui- sance to the public, and if the jury believe from the evi- dence that plaintiff was the owner of adjoining premises, and that the dangerous condition of the premises leased by the defendant to A. constituted a nuisance to the plain- tiff, and that the plaintiff sustained the personal injuries here sued for on account of the dangerous condition of the premises so leased, then the jury are instructed that it was 41 Pishburne v. Engledove, 91 Va. 548. "Jennings v. Van Schaick, 108 N. Y. 530. (732) Ch. 86] LANDLORD AND TENANT. [1754 defendant's duty to enter upon the premises, repair the same or adopt some steps to avoid the danger, and if the jury believe from the evidence that defendant failed to da this, then the jury will find for the plaintiff, if the jury further find from the evidence that plaintiff vsras not guilty of any lack of reasonable diligence to avoid the injuries alleged to have been sustained.** Lial)ility of tenant for injuries to third persons. (1753) The court instructs the jury that if they shall find from the evidence in this case, that the defendants en- tered upon the said demised premises in pursuance of the lease declared on, and which is in evidence, and shall fur- ther find that they used and occupied the said premises, and that during said term or tenancy, and while the de- fendants were so in possession of said premises, they used the said building or warehouse as persons of ordinary care and prudence would have done, looking to its character, size, apparent construction and strength, and that the said house fell down during said tenancy in consequence of some defect in the structure of the same or on account of a want -of a proper thickness of the wall, or on account of inferior materials used or on account of the ordinary decay of the materials used in the erection of said building, all of which was unknown to the defendants, and shall further find that the same could not have been discovered by reasonable and ordinary diligence, then the plaintiffs are not entitled to recover in this action, and the verdict must be for the de- fendants.** (1754) The court instructs the jury that if they find that the injury shown by the evidence to have been sus- tained by the building in question, occurred while the same was in the occupation of the defendants under a lease 43 Timlin v. Standard Oil Co., 126 N. Y. 514, 37 State Rep. 906. 44 Approved in Machen v. Hooper, 73 Md. 342. (733) 1755] LANDLORD AND TENANT. [Ch. 86 oifered in evidence and that the said injury is attributed to the alterations made in the building by the defendants in connection with the use thereafter made of it by them, then the plaintiffs are entitled to recover in this action the damages which the jury may find from the evidence they have hereby suffered.*^ (1755) The court instructs the jury that if they find that the defendants entered into possession of the build- ing in question under the lease in evidence, and made such alterations as they thought fit in order to adapt it to their purpose under the aiithority given in the lease, and after- wards stored a large quantity of heavy goods therein, and that owing to the excessive quantity of said goods, if they shall find such quantity was excessive, or the manner in which they were stored by the defendants, a large part of the building was caused to fall down, then the plaintiffs are entitled to recover.*® Trover by landlord against third persons purchasing grain from tenant. (1756) The court instructs the jury that if they believe from the evidence that the defendants purchased the grain raised upon the land described in the declaration and al- leged to have been rented by A. from plaintiff with notice of the lien of plaintiff upon the grain as landlord of A., then the jury should find for plaintiff, the lien extending to the crop grown for the current year, and the court fur- ther instructs the jury that the notice of the lien of the plaintiff upon the crops of his tenants need not necessarily be in writing, and if the jury believe from the evidence that the defendants knew that A. rented from the plaintiff the land on which the grain in controversy was raised, and neglected and failed to inquire into the facts regarding the *5 Approved In Machen v. Hooper, 73 Md. 342. <« Approved in Machen v. Hooper, 73 Md. 342. (734) Ch. 87] LARCENY. fi7£7 plaintiff's lien thereon, to the extent that reasonably pni- dent men should, under the circumstances, do, then the jury should find for the plaintiff.^^ CHAPTER LXXXVII. LARCENY. Necessity ttat the article stolen be of value, 1757. Not necessary that the taking should have been secret, 1758. Finding of lost goods, 1759. Same — Owner known at time of finding, 1760. Same — Intent to steal not existing at the time of finding, 1761. Necessity of intent to deprive owner of property, 1762. Same — Taking in jest or for temporary use, 1763. Same — Intent to hold property for a reward, 1764. Lueri causi not necessary, 1765. Subsequent repentance and restitution, 1766. Taking under claim of right, 1767, 1768. Carelessness of owner in securing property no defense, 1769. Genuineness of stolen money must be proved, 1770. As to the necessity of asportation, 1771. What is sufficient asportation, 1772, 1773. Intent to permanently retain property may be inferred from cir- cumstances, 1774. Necessity of animo furandi at time of taking, 1775. Fact that goods taken were used in unlawful business no de- fense, 1776. Unlawful character of possessor's title no defense, 1777. Presumption from possession of stolen goods, 1778, 1779. Necessity that the article stolen be of value. (1757) The court instructs that it is one of the essen- tials of the offense charged th^t the property taken be a thing of value, and unless it shall have been proved that such article was of some value the jury must acquit, but that it was of the slightest value is sufficient.* *' Prettyman v. Unland, 77 111. 206. I "Wolverton v. Com., 75 Va. 909. (735) 1758] LARCENY. [Ch. 87 Not necessary that the taking should have been secret. (1758) The court instructs that it is not necessary to constitute larceny that the taking should have been done secretly and by stealth. If property is taken openly that fact is to be considered by the jury in determining whether it was taken with an intent to steal or under an honest claim of right, but if the jury are convinced by the evi- dence beyond all reasonable doubt that the taking was with an intent to steal, the fact that the taking was open is no defense.^ Finding of lost goods. (1759) The court instructs that if the goods with the larceny of which defendant is charged, were lost and were found by him, and he did not, at the time of finding them, know who was the owner, and had no reasonable means then available of discovering the owner, he is not guilty of larceny in taking and retaining the same, though he subsequently discovered the owner and refused to surren- der the goods, and though at the time of the finding and taking possession of them he fully intended to appropriate the same to his own use and not to restore them to the owner if he should be subsequently discovered.* Same — Owner known at time of finding. (1760) The court instructs that if the goods charged to have been stolen were lost and were found by defendant, and that defendant at the time of finding the same knew who was the owner, or had reasonable means of knowing him, as where there were marks upon the property known to him, by which the owner could be ascertained, or other circumstances which would reasonably suggest to him the ownership, and if the jury further believe that at the time of finding and taking possession of such goods the defend- 2 2 Clark & M. Grimes, 685. 8 Bailey v. State, 52 Ind. 466; State v. Dean, 4a Iowa, 73. (736) Ch. 87J LARCENY. ["1763 ant then appropriated tlie same to bis own iise, and did not return them to the owner, he is guilty of larceny.* Same — Intent to steal not existing at the time of finding. (1761) The court instructs that if the jury believe from the evidence that at the time of finding the goods men- tioned in the indictment defendant knew who was the owner thereof, or had reasonable means of discovering the owner, but further believe that at the time of taking possession of the goods defendant did not intend to appropriate them to his own use, but intended to restore them to the owner as soon as opportunity afforded, he is not guilty of larceny, although he afterward, and before he had taken any step toward restoring them to the owner, changed his mind and decided that he would appropriate them to his own use and would not return them.^ Necessity of intent to deprive owner of property. (1762) The court instructs that the mere taking of prop- erty with knowledge that it belongs to another is not suffi- cient to constitute the crime of larceny. Before the de- fendant can be convicted the jury must be convinced by the evidence beyond all reasonable doubt that in taking the property he then and there intended to deprive the owner of his property and deprive him of it permanently.® Same — Takiag in jest or for temporary use. (1763) The court instructs that to constitute larceny property must be taken with intent to permanently deprive *Com. V. Titus, 116 Mass. 42; State v. Weston, 9 Conn. 526. 6 Hunt V. Com., 13 Grat. 757; Ransom v. State, 22 Conn. 153. The rule Is otherwise by statutes existing in many jurisdictions. In the last-mentioned case an instruction that if defendant at the time of finding the goods knew or had means of knowing the owner, and did not restore the goods to him, he was guilty of lar- ceny, was held erroneous because not including the essential that the intent to steal must have existed at the time of the taking. « Johnson v. State, 36 Tex. 375. (737) Instr. Juries — 47. 1764] LARCENY. [Ch. 87 the owner thereof, and though the defendant had no right to take the property, if he took it merely by way of jest or with intent to use it for a short time and return it to the owner, the taking is not larceny and the jury must acquitJ Same— Intent to hold property for a reward. (1764) The court instructs that though an intent to de- prive the owner of his property is requisite, an intent to deprive him of any part of its value, is sufficient, and ac- cordingly if the jury believe from the evidence that defend- ant took the property mentioned in the indictment, not with intent to permanently retain it, but with the intent to re- turn it to the owner on the payment of a reward by him for such return, he is guilty of larceny.* Lucri causi not necessary. (1765) The court instructs that if the taking was with intent to permanently deprive the true owner of his prop- erty, it is not essential that it should have been with any intent or expectation of deriving any benefit for the taker, and accordingly if the jury believe that defendant wilfully took and carried away the property mentioned in the in- dictment, not with intent to appropriate the same to his own use, but with intent to destroy the same out of malice or spite against the owner, he is none the less guilty of lar- ceny.* Subsequent repentance and restitution. (1766) The court instructs that if the jury believe from the evidence that defendant took or carried away the prop- erty mentioned in the indictment with the intention of per- manently depriving the ovmer of his property therein, the ' Vmphrey v. State, 63 Ind. 223; Cain v. State, 21 Tex. App. 662. 8 Com. V. Mason, 105 Mass. 163. • Delk V. State, 63 Miss. 77; State v. Ryan, 12 Nev. 401. (738) Ch. 87] LARCENY. [1770 fact that he subsequently repented of such design and re- stored the property, is no defense.^* Taking under claim of right. (1767) The court instructs the jury that though they be- lieve from the evidence that defendant took and carried away the property mentioned in the indictment, and that such prop- erty belonged to the person therein stated, yet if defendant in taking such property believed in good faith that he owned the property or had a legal right to take it, he cannot be convicted though his claim of ownership or right was en- tirely without legal foundation.^^ (1768) The court instructs the jury that if they believe from the evidence that the defendant took the hogs char- ged in the indictment, yet that he so took them with an honest belief, although he may have been mistaken in such belief, that he had the right or the authority to so do, or i I' the evidence on this point is such as to raise in your minds a reasonable doubt as to whether the defendant did be- lieve he had the right to take such hogs, then in such case you will give him the benefit of such doubt and acquit him.^ ^ Carelessness of owner in securing property no defense. (1769) The court instructs that the fact that the owner of the property alleged to have been taken, or his servants, were negligent in their care of the property, and left it ex- posed to easy access is no defense to one who wrongfully took and carried the same away.-*^ Genuineness of stolen money must be proved. (1770) The court instructs that the jury must be sat- isfied by the evidence that the money produced as that al- io state V. Davis, 38 N. J. Law, 176. "Phelps V. People, 55 111. 334; People v. Schultz, 71 Mich. 815. 12 Lawrence v. State, 20 Tex. Ct. App. 536. 18 Lyons v. People, 68 111. 271. (739) 1771] LARCENY. [Ch. 87 leged to have been stolen, is genuine and not counterfeit, before they can convict.-** As to the necessity of asportation. (1771) The court instructs that before defendant can be convicted of larceny it must be established that with intent to steal he took and carried away the property mentioned in the indictment. Unless the evidence shows that defend- ant succeeded in actually reducing such property to his pos- session and carrying it away he cannot be found guilty of larceny.^' What is sufficient asportation. (1772) The court instructs that though it must be shown by the evidence that the property was actually taken and carried away by defendant, it is not necessary that it should have been carried to any particular distance or retained in his possession for any particular length of time.'*® (1773) The court instructs the jury that the taking of wheat from its place in the granary and filling the same into sacks, and the tying of the sacks so containing such wheat, is a suflBcient carrying away to constitute larceny within the meaning of the indictment, if such acts be done with the felonious and unlawful purpose of stealing such wheat. ^^ Intent to permanently retain property may be inferred from circumstances. (1774) The court instructs that though an intent to per- manently retain the property must be established, such in- 14 Collins V. People, 39 111. 233. IB Thompson v. State, 94 Ala. 535. loEckles V. State, 20 Ohio St. 508; Harrison v. People, 50 N. Y. 618. 17 state V. Hecox, 83 Mo. 531. It was held that these instructions should be accompanied with an instruction submitting the question whether the facts assumed were true. (740) Cll. 87] LARCENY. rjy^y tent may be inferred from conduct, and if the jury took tlic property and retained or used it in a manner indicating an intent to permanently retain it, the jury are authorized to infer that he so intended.^* Necessity of animo furandi at time of taking. (1775) The court instructs that to constitute larceny it is necessary not only that defendant should have taken the property willfully without mistake or claim of right and with intent to permanently retain it, but the willfulness and felonious intent must have existed at the time of the taking. If defendant took the property under a claim of right or an honest mistake, or for a jest or for temporary use, he is not guilty of larceny, though he subsequently changed his mind and formed and executed a design to convert it to his own ^permanent use.^® Fact that goods taken were used in unlawful business no de- fense. (1776) The court instructs that though the property charged to have been taken was intoxicating liquors kept for sale by the owner, and that the owner had no license to engage in the sale of intoxicants so that the sale thereof by him was unlawful, such fact does not prevent the felonious taking of such liquors from him from being larceny.^** Unfawful character of possessor's title no defense. (1777) The court instructs that if the jury find from the evidence that defendant took the property mentioned in the indictment from the possession of the person charged, it is no defense that such person had acquired his possession thereof unlawfully and had, in fact, no rightful claim to 18 People V. Phelps, 49 How. Pr. (N. Y.) 437. 18 Wilson V. People, 39 N. Y. 459. This was the rule at common law, but is changed by statute in many jurisdictions. 20 Com. V. Coffee, 9 Gray (Mass.) 139. (741) 1778] LARCENY. [Ch. 87 the possession as against the true owner, provided that de- fendant was not himself such true owner.^^ Presumption from possession of stolen goods. (1778) The court instructs that if the jury believe from the evidence that the property mentioned in the indict- ment was stolen from the ovraer, and that shortly there- after the same was found in the possession of defendant, and defendant has failed to explain how he obtained such possession, his failure to make such an explanation may be considered by the jury and given such weight as they deem proper, in connection with the other evidence tending to show the' guilt of defendant (or such possession is prima facie evidence of defendant's guilt unless explained to the satisfaction of the jury).^^ (1779) The court further instructs the jury that the pos- session of money by the prisoner, when arrested, cannot be considered as sufficient proof that he stole the same from the firm of S. & H., or that he committed the crime charged in the indictment, but if the jury believe from the evidence that the prisoner did have money on his person when ar- rested, that is a fact which the jury have a right to consider in connection with all the other evidence adduced before them, and it is for the jury, upon consideration of the whole of the evidence introduced by the commonwealth and for the prisoner, to say whether or not the prisoner is guilty of the crime with which he is charged beyond any reasonable doubt. 2» 21 Com. V. Rourke, 10 Gush. (Mass.) 397. 22 The form first given is proper under the rule obtaining in some states (Hall v. State, 8 Ind. 439), while that last given expresses the rule as elsewhere held (State v. Kelly, 57 Iowa, 645). 28 Henderson v. Com., 98 Va. 794. (742) Ch. 88J LIBEL AND SLANDER. CHAPTER IXXXVIII, LIBEL AND SLANDER. I. Definition and Elements. Definition, 1780-1782. Effect of provocation, 1783. "Words spoken In friendly conversation, 1784. Certainty — Reference to person slandered, 1785. Necessity that charge be definite and understood, 1786, 1787. Publication — Dictation to stenographer, 1788. Liability of corporation for libel published by its agents, 1789. Words spoken after date laid in the complaint, 1790. Province of court and jury, 1791. II. Chabges Actionable Pek Se. Charges of murder, 1792. Charges of false swearing — Interpretation of language, 1793. Charge of larceny, 1794. Imputation of hog stealing, 1795. Meaning of- word "thief," 1796. Charge of keeping blind tiger, 1797. Charges detrimental to professional capacity, 1798. Charges of insolvency or matters Injurious to business, 1799. Charging a woman with lack of chastity, 1800. III. Peivileged Communications. Matter published In course of judicial proceedings, 1801. Information in insanity proceedings, 1802. Definition — Communications between parties in interest, 1803. Letters written In due course of business, 1804. Necessity of finding of actual malice where publications are in course of judicial proceedings, 1805. IV. Justification. Articles libelous per se — Necessity of justification, 1806. Necessity of proving guilt beyond a reasonable doubt, 1807. Sufllciency of evidence to sustain a justification, 1808. Effect of failure to plead justification — Defenses admissible, 1809. V. Evidence, Presumptions, and Burden of Proof. Burden of proof, 1810, 1811. Same — Elements of offense, 1812. Presumption of malice, 1813, 1814. Inference of malice from falsity of charge, 1815, 1816. (743) ]^7S0] LIBEL, AND SliANUEK. [Qh. 88 Inference of malice -where communication is privileged, 1817. Implication of malice in filing information in insanity, 1818. Implication of damages, 1819. Presumption of falsity of charge, 1820, 1821. Burden of proof of justification, 1822. Rebuttal of presumption of malice — Mitigation of damages, 1823. Words imputing larceny — Substantiation of one charge, 1824. Duty to prove exact words, 1825. VI. Damages. Compensatory and exemplary damages, 1828. Right to punitive damages, 1827. Effect of bad reputation of plaintiff, 1S2S. Unsupported plea of justification, 1829. Mental suffering and future Injury, 1830. Attendant circumstances operating as mitigation, 1S31. Effect of belief in truth of charge as mitigation of damages, 1832. Mitigation of damages by showing that charge was a repetition of a rumor, 1833. VII. Cbiminai Liability. Charge that person has been a convicted felon, 1834. Presumption of malice, 1835. Burden of proving malice — Definition of malice, 1836. Right of the jury to judge the law, 1837. Justification under statute for Imputation of unchastlty, 1838. I. Definition and Elements. Sefinition. (1780) The court instructs the jury that our statute de- fines a libel to be the malicious defamation of a person, made public by any printing, writing, sign, picture, repre- sentation or effigy, tending to provoke him to wrath or ex- pose him to public hatred, contempt or ridicule, or to de- prive him of the benefits of public confidence and social in- tercourse, and if, therefore, you believe and find from the evidence that the article admitted to have been published by the defendant corporation of and concerning the plain- tiff, had a tendency to provoke him to wrath, or expose him to public hatred, contempt or ridicule or to deprive kim of (744) Ch. 88] LIBEL AND SLANDER. [1784 the benefits of public confidence and social intercourse, then the article in question is libelous under the statute.' (1781) The court instructs the jury that slander may be defined to be the false, willful, and malicious speaking or publishing of another any defamatory words, charging him with being guilty of a felony or crime.^ (1782) The court instructs the jury that libel is. defined by our statute, so far as applicable to this case, as the ma- licious defamation of a person, made public by any print- ing or writing tending to provoke him to wrath, or expose him to public hatred, contempt or ridicule, or to deprive him of the benefits of public confidence and social inter- course.* Effect of provocation. (1783) The court instructs the jury "that anger is no justification for the use of slanderous words, and it ought not to be considered even in mitigation of damages, unless the anger is provoked by the person against whom the slanderous words were used, and in this case, if the jury believe from the evidence that the defendant spoke of plain- tiff any of the slanderous words charged in the petition, then it matters not who commenced the conversation and that the defendant was angry at the time, unless her anger was wrongfully provoked in whole or in part by the acts or language of the plaintiff herself."* Words spoken in friendly conversation. (1784) The court instructs the jury that confidential communications, made in the usual course of business, or of domestic or friendly intercourse, should be liberally view- ed by juries; they should look whether the words were 1 McCloskey v. Pulitzer Pub. Co., 152 Mo. 339. 2 Approved in Stallings v. Newman, 26 Ala. 300. » Approved In Dever v. Clark, 44 Kan. 745. * Approved In Boldt v. Budwig, 19 Neb. 739. (745) J785] LIBEL AND SLANDER. [Ch. 88 spoken witli intent to defame, or in good faith to communi- cate facts interesting to one of the parties.® Certainty — Reference to person slandered. (1785) The court instructs the jury that it is not neces- sary in order to make an article lihelous and slanderous, that the name of the person should be mentioned, provided such article -refers to time, place and other circumstances ■with such certainty as to enable any person to know to whom the article had reference.* Necessity that charge be definite and understood. (1786) The court instructs the jury that if the language of the defendant under the circumstances did not charge the plaintiff with larceny and if none of the hearers under- stood it as charging him with larceny, then the defend- ant is not guilty.'' (1787) The court instructs the jury that , the plaintiff, did not commit the crime of larceny in taking this ice and no one now claims in this case that he did. And if defendant's language used on the occasion complained of, taken as a whole and all of it, did not according to its fair meaning under the circumstances charge plaintiff witli larceny, or if the hearers did not understand that it charged him with larceny, but that it simply charged him with do- ing some unfair or improper or dishonest thing, not amount- ing to larceny, as the hearers understood it, then defend- ant is not guilty, for then he would not charge plaintiff with crime and the charge of crime is the gist of the alleged slander.* Publication — Dictation to stenographer. (1788) The court instructs the jury that if they find ■> Approved in Stallings v. Newman, 26 Ala. 300. 8 Approved In Houston Printing Co. v. Moulden, 15 Tex. Civ. App. 674. ' Approved In Ellis v. Whitehead, 95 Mich. 105. 8 Approved In Ellis v. Whitehead, 95 Mich. 105. (746) Ch. 88] LIBEL AND SLANDER. [1789 from the evidence that on the day of , 19 — , the witness was in the employ of the defendant as a stenographer and typewriter in the office and business of the defendant, and on said day said defendant dictated to the witness the typewritten words and figures in the letter of date of , and set out in the first count of the declaration and offered in evidence, and that said wit- ness took down said dictation in shorthand char- acters upon paper, and thereafter and on the same day copied the same upon a typewriting machine upon the busi- ness paper of the defendant, and in the form and manner appearing in said letter offered in evidence, and after said letter was thus typewritten the defendant subscribed his name thereto in his proper handwriting, and thereafter saiM letter was copied by a letter-press machine into the letter book of the defendant by the witness in the course of her said employment in the business of the defendant, then such action in law constitutes a writing and publica- tion by said defendant of the matters and things appear- ing in said letter, and if the jury further find that the per- son therein mentioned and referred to is the plaintiff, then the plaintiff is entitled to recover under the first count of the declaration.® liability of corporation for libel published by its agents. (1789) The court instructs the jury that if they find from the evidence that the agent or agents of the defendant corporation showed and exhibited the publication in ques- tion to the public or to any individuals constituting the pub- lic, but did so without instructions or authority from their principal, the defendant corporation is not responsible for such circulation of the publication.^' » Approved in Gambrlll v. Scliooley, 93 Md. 48. 10 Approved in Schulze v. Jalonlck, 18 Tex. Civ. App. 296. (747) j^90] LIBEL AND SLANDER.. [Ch. 88 Words spoken after date laid in the complaint. (1790) The court instructs the jury that in making up their verdict in this case, they must not take into considera- tion any evidence of any v^ords spoken by defendant after the day of , 19—." Province of court and jury. (1791) The jury are instructed that they are the sole judges as to whether the article complained of is libelous.*^ II. Charges Actionable Feb Se. Charges of murder. (1792) The court instructs the jury that to charge one of murder in killing another is actionable and slanderous, and, falsely and maliciously spoken, warrants a recovery of such damages as the jury may think the party has sus- tained, commensurate with the injury sustained.-'* Charges of false swearing — Interpretation of language. (1793) The court instructs the jury that if they find, from the evidence or the admissions of the defendant in his answer, that the defendant, on or about the day above named in the plaintiff's complaint, did, in the presence of divers persons or even one person, say of and concerning the plain- tiif such words as are set forth in the complaint, "that the plaintiff had sworn to a lie," or used such words as amount to charging the plaintiff with swearing falsely, or did utter or publish words of or to or concerning the plaintiff,, which in their common acceptation would amount to such a charge, the words are actionable of themselves, and no special dam- age need be proven, and you will find for the plaintiff. And the words spoken by the defendant of and concerning the plaintiff are to be taken to mean what is apparent the 11 Approved In Lewis v. McDaniel, 82 Mo. 577. 12 Approved in McCloskey v. Pulitzer Pub. Co., 152 Mo. 339. i' Approved in Stallings v. Newman, 26 Ala. 300. (748) C 88] LIBEL AND SLANDER. [1796 defendant intended them to mean, according to the com- mon understanding of language in its common acceptation and use.^* Charge of larceny. (1794) The court instructs the jury that if they find from a preponderance of the evidence given in this cause, that the defendant spoke the words, in substance, as alleged in the complaint, that he intended in the use of said words to say and charge that the plaintiff had been guilty of the crime of larceny, and that said words were spoken maliciously and in the presence of some person other than the plaintiff, then they should find for the plaintiff.-"* Imputation of hog stealing. (1795) The court instructs the jury that if they be- lieve from the evidence that the defendant spoke of and concerning the plaintiff in the presence and hearing of , or others as mentioned, the words in the petition alleged to wit: " killed my hogs, and I can prove it, and he is the biggest thief on this creek, and I can prove by and his boys that he has stolen my hogs;" or that enough of the words stated in the petition have been proven to (substantially) constitute the charge imputed to plaintiff, then the jury must find for the plaintiff.^* Meaning of word "thief." (1796) The court instructs the jury that the word (thief) may be so used, qualified or explained as to show that it was intended to have a different and unusual meaning and not to mean larceny or any crime at all.^'' i« Approved in Stalllngs v. Whittaker, 55 Ark. 494. 15 Approved in Durrah v. Stillwell, 59 Ind. 139. 18 Approved In Lewis v. McDaniel, 82 Mo. 577. The court Intimates that the omission of the word "substantially" would have been pref- erable. 17 Approved in Ellis v. Whitehead, 95 Mich. 105. (749) 1797] LIBEL AND SLANDER. [Ch. 88 Charge of keeping blind tiger. (1797) The court instructs the jury that to carry on what is termed a "blind tiger" in a comnaunity where the sale of liquor is prohibited by law is a criminal offense, and a publication charging a person with committing such offense constitutes libel, and would entitle the person thus charged to damages.^^ Charges detrimental to professional capacity. (1798) The court instructs the jury that although the plaintiff alleges in his petition that he has, on account of the publications complained of, sustained a damage of one thousand dollars on account of each of said publications, it is not necessary for him to prove any specific damage; for the law presumes the reputation of the plaintiff to be good, as also it presumes that his official duties as a public oificer were honestly performed, and his professional obliga- tions properly discharged; and an article which tends to hold him up to the public view as an unskilled lawyer and an incompetent officer, is libelous per se (per se meaning of itself), and entitles the plaintiff to damages, unless the de- fendant establishes the truth of said publication by a pre- ponderance of the evidence.^* Charges of insolvency or matters injurious to business. (1799) The court instructs the jury that to write or pub- lish anything that imputes insolvency, inability to pay one's debts, the want of integrity in his business, or personal in- capacity or pecuniary inability to conduct it with success, or which in any other measure are prejudicial to him in the way of his employment or trade, is libelous per se, if without jus- tification.^" 18 Approved in Schulze v. Jalonlck, 18 Tex. Civ. App. 296. 19 Approved In Dever v. Clark, 44 Kan. 745. so Approved in Brown v. Durham, 3 Tex. Civ. App. 244. This must be given in connection with instructions requiring the jury to find the lalsity of the charge. (750) Ch. 88] LIBEL AND SLANDER. [1802 Charging a woman with lack of chastity. (1800) The jury are instructed that words charging a wo- man with being a whore are actionable in themselves, and the law presumes that a party uttering them intended malicious- ly to injure the person against whom they are spoken, unless the contrary appears from the circumstances, occasion or manner of the speaking of the words ; but all that the plain- tiffs are bound to prove in the case to entitle them to recover, is the speaking by the defendant of enough of the slanderous words charged in the petition to amount to a charge that the plaintiff was a whore, the express malice or ill will need not be proved; but, if the jury believe from the evidence that plaintiff has failed to prove enough of the words to amount to a charge that plaintiff was a whore, then plaintiff cannot recover, and your verdict should be for the defendant. ^^ IIL Peivileged Communications. Matter published in course of judicial proceedings. (1801) The court instructs the jury that if they be- lieve from the evidence that the libelous matter, complained of by the plaintiff, was composed and published in the due course of judicial procedure by the defendants, and that said defendants had reasonable cause for belief, and did actually believe, that the said matter was pertinent to the case they sought to make, and the relief they prayed for, then the jury will find for the defendants.^^ Information in insanity proceedings. (1802) The court instructs the jury that the real question for you to determine first in this case is, was the informatioi: made by the defendant and filed by him honestly and in good faith, upon probable cause, he believing at the time that the plaintiff was insane, or laboring under an insane delusion, and was the act done for a laudable purpose, to protect him- 21 Approved in Boldt v. Budwig, 19 Neb. 739. 22 Approved In Johnson v. Brown, 13 W. Va. 71. (751) 18C3] LIBEL AND SLANDER. [Ch. 88 self, his property, or society ? And if you find from the pre- ponderance of the credible evidence in the case, that it was so done, then your verdict should be for defendant.'** Definition — Communications between parties in interest. (1803) The court instructs the jury that a communication made in good faith upon any subject-matter in which the party communicating has an interest, or in reference to which he has a duty to perform, public or private, moral or social, if made to a person having a corresponding interest or duty, is privileged. Communications within the privilege are not actionable merely because they are false and defamatory, but express malice must be shown.^* Letters written in due course of business. (1804) The court instructs the jury that the letter signed by , dated , 19 — , mentioned in the declara- tion, was a privileged communication by the defendant for the protection of its avm business, and as such the defendant company is not liable in this action; and whether the state- ments therein contained were true or not, if the jury believe from the evidence that , as president of said company, acted without malice in writing and sending said letter to the Company, and for the purpose of collecting the debt therein mentioned, believing the language to be true, then they must find for the defendant. ^^ Necessity of finding of actual malice where publications are in course of judicial proceedings. (1805) The court instrvicts the jury that if they be- lieve from the evidence that the libelous matter, complained of by the plaintiff, was regularly composed and published by the defendants in the due course of judicial procedure, 23 Approved in Comfort v. Young, 100 Iowa, 627. No objection made by appellant. 2* Approved in Schulze v. Jaloniclc, 18 Tex. Civ. App. 296. 26 Reusch V. Roanoke Cold Storage Co., 91 Va. 534. (752) Ch. 88] LIBEL, AND SLANDER. [180V they will find for the defendants, unless they are satisfied from the evidence that such composing and publishing was done by the defendants with actual malice towards the plain- tiff.2« IV. Justification. Articles libelous per se — Necessity of justification. (1806) The court instructs the jury that both of the arti- cles complained of by the plaintiff in his petition, copies of which articles are attached to said petition, are libelous in themselves and unless the defendant proves them to be true, by a preponderance of the evidence, then the plaintiff would be entitled to recover such damages as he has sustained by the publication of said articles.^'' Necessity of proving guilt beyond a reasonable doubt. (1807) The court instructs the jury that evidence intro- duced under a plea of justification charging the plaintiff with having committed a crime, tending to prove his guilt, but not establishing his guilt beyond a reasonable doubt, can- not constitute a complete defense and bar to the action, but may be considered in mitigation of damages.^* Sufficiency of evidence to sustain a justification. (1808) The court instructs the jury that the testimony, to sustain that plea (justification), should be as certain and conclusive as would be required to justify a conviction for the larceny, if the plaintiff were indicted for the offense, — such as leaves no doubt in the minds of the jury of the truth of the charge. ^^ Effect of failure to plead justification — Defenses admissible. (1809) The court instructs the jury that in this case there 2« Approved in Johnson v. Brown, 13 W. Va. 71. " Approved in Dever v. Clark, 44 Kan. 745. 28 Approved in Tucker v. Call, 45 Ind. 31. 29 Approved in Wonderly v. Notes, 8 Blackf. (Ind.) 589. (753) Instr. 'Juries — 48. 1810] LIBEL AND SLANDER. [Ch. 88 is no justification pleaded, but only a general denial and a plea of mitigation, and the publication is admitted in the pleadings. Under the evidence and the pleadings the defend- ant can only mitigate the damages.^" V. Evidence, Pkesumptions, and Bueden of Pboop. Burden of proof. (1810) The court instructs the jury that in this action, to authorize the plaintiff to recover, it is necessary for him to prove that the defendant, maliciously and falsely, spoke, of and concerning the plaintiff, the words charged in his declara- tion, or some of them ; and when plaintiff proves, to the sat- isfaction of the jury, that defendant, falsely and maliciously, spoke or uttered, of and concerning plaintiff, the words char- ged in the declaration, then he may recover such damages as he has sustained.'^ (1811) The court instructs the jury that the defendant is charged by plaintiff with speaking of plaintiff the following words: "J. killed my hogs, and I can prove it; he is the biggest thief on this creek, and I can prove it by M. and his boys that he has stolen my hogs ;" and with speaking of plain- tiff the following words : "J.'s water gates were traps to steal other people's stock in;" and unless they believe from the evidence that defendant spoke of plaintiff the said words, or so much of the said words as may be sufficient to constitute a charge that the plaintiff stole hogs, or was a hog thief, they must find the issue in this cause for the defendant.** Same— Elements of offense. (1812) The court instructs the jury that in order to en- title the plaintiff to recover, it must reasonably appear from a preponderance of the evidence, first, that the alleged charge is libelous in its nature; second, that the defendant did pub- »« Approved In Jones v. Murray, 167 Mo. 25. »i Approved In StalUnga v. Newman, 26 Ala. 300. »2 Approved In Lewis v. McDaniel, 82 Mo. 577. (754) Ch. 88] LIBEL. AND SLANDER. [1816 lish and circulate it as alleged; third, that plaintiff was in- jured thereby, as alleged.*' Presumption of malice. (1813) The court instructs the jury that if in this case the jury find that defendant spoke the slanderous words as charged in the second and third counts of plaintiff's petition, then the law presumes they were spoken maliciously, and it is not necessary to prove any express malice in order to war- rant a verdict for plaintiff.^* (1814) The court instructs the jury that malice is es- sential to the support of an action for slanderous words ; but if one, falsely, wrongfully, and willfully charges another with a felony, the law will imply malice until the contrary is sho^vn.^' Inference of malice from falsity of charge. (1815) The court instructs the jury that a man intends the natural consequences of his acts. If, therefore, the jury believe and find from the evidence that the natural conse- quence of the publication complained of was to defame and injure plaintiff in his reputation and character or expose him to ridicule or contempt, you may properly infer such was the intention of defendant, and if you further believe and find from the evidence that the publication complained of was libelous and false, you may infer that it was ma- liciously made.^® (1816) The court instructs the jury that if they believe from the evidence that the libel alleged to have been pub- lished by the defendants concerning the plaintiffs was pub- lished in the manner alleged in the declaration, and if they further find that the matter contained in the alleged libel »» Approved in Schulze v. Jalonick, 18 Tex. Civ. App. 296. «* Approved In Lewis v. McDanlel, 82 Mo. 577. «5 Approved in StalUngs v. Newman, 26 Ala. 300. « McCloskey v. Pulitzer Pub. Co., 152 Mo. 339. (755) iyi7] LIBEL, AND SLANDER. [Ch. 88 was false, the jury must find for the plaintiffs ; and that so far as malice was necessary to a right of action it was prop- erly inferable, from the falsity of the words charged in the complaint as libelous, and the principal question for the jury is as to the truth or falsity of the matter contained in the alleged libel.^^ Inference of malice where communication is privileged. (1817) The court further instructs the jury that the let- ter in question being a privileged communication, malice will not be inferred from its publication by the defendant, but it is incumbent on the plaintiff to prove that the defend- ant company was actuated by malice against the plaintiff in vTriting and sending the same to the " Company."** Implication of malice in filing information in insanity. (1818) The court instructs the jury, that if you find that the information was made and filed without probable cause, or without honestly believing that the statements therein were true, but was done to injure the plaintiff in his good name and reputation or for some advantage over him, then the law would imply malice and you should find for the plaintiff.*' Implication of damages. (1819) The court instructs the jury that in actions for slander, the law implies damages from the speaking of ac- tionable words, and if the jury believe from the evidence that the defendant was guilty of the slander alleged in the decla- ration, then the jury are instructed that the defendant in- tended the injury the slander was calculated to effect, and a' Lewis & Herrick v. Chapman, 19 Barb. 252. This Instruction, of course. Is to be given where the matter con- tained In the alleged libel, is libelous per se. 38 Reusch V. Roanoke Cold Storage Co., 91 Va. 534. 89 Approved in Comfort v. Young, 100 Iowa, 627. No objection made by appellant. (756) Ch. 88] LIBEL AND SLANDER. [1824 the jury will find from all tlie facts and circumstances in the case what damages ought to be given and are not confined to mere pecuniary loss or injury.*** Presumption of falsity of charge. (1820) The court instructs the jury that slanderous words are presumed to be false until their truth has been proven.** (1821) The court instructs the jury that the charge must be falsely made; but the falsity of the accusation is to be implied until the contrary is shown. *^ Burden of proof of justification. (1822) The court instructs the jury that the defendant, as already stated, pleads as a defense, that the matters pub- lished by him and complained of by the plaintiff are true, and it devolves upon him to prove, by a preponderance of the evidence, the truth of said matter ; and if he has succeed- ed in establishing the truth of the matter charged as de- famatory in the plaintiff's petition, by a preponderance of the testimony, then your verdict must be for the defend- ant.** Rebuttal of presumption of malice — ^Mitigation of damages. (1823) The court instructs the jury that for the purpose of rebutting and repelling the idea of malice, the defendant has the right to prove and explain all the facts and circum- stances surrounding the speaking of the words; also, he has the right to show and explain all the facts and circumstances surrounding the speaking of the words in mitigation of dam- Words imputing larceny — Substantiation of one charge. (1824) The court instructs the jury that if they find from <» Baker v. Young, 44 111. 42. *i Approved in Tucker v. Call, 45 Ind. 31. *2 Approved In Stallinga v. Newman, 26 Ala. 300. *3 Approved in Dever v. Clark, 44 Kan. 745. -- [Ch. 92 of ordinary care could have known of tl e existence of said facts."« (1977) The '^-ourt instructs the jury that if the alleged dangers ' nd improper condition of the track and the situation of the car on t'e sidetrack was plain to be seen by plaintiff, or if he ought, as an ordinarily prudent person, to have seen or known of it, then there can be no recovery, and if he had reasonable opportunity to see or know of the situation as touching the alleged condition of the tracks and car on the sidetrack, then he is, in law, held to such knowledge; or if on or before the occasion of the injury he had knowledge or reasonable means of knowledge as a man of ordinary prudence of the. condition of the track and car on the sidetrack, and in- curred the danger with such knowledge or means of knowl- edge, then there can be no recovery.^ "^ (1978) The court instructs the jury that if they shall find from the evidence that plaintiff entered the employ of def end- a' t as a freight brakeman on or about the day of , 19 — , and continued .therein in that capacity until his injury on , 19 — , and during all that time was passing through the uunnel mentioned, generally twice a day ai.d often more frequently and that it required only a few days to become acquainted with the tunnel and the condi- • 1 ons of work therein and that after such opportunity of knowing the same he continued in such employment as afore- said, then he took the risk of such employment and the plain- tiff cannot recover in this action even though the jury shall lurther find that the accident was caused by the defective construction of the tunnel or lack of ventilation of the same.*"* (1979) The court instructs the jury that if you believe ^rom the evidence in this case that plaintiff was a baggageman on the defendant's passenger train and that it was his duty »o» Approved in Gorham v. Kansas City & S. R. Co., 113 Mo. 408. 107 Approved in Pennsylvania Co. v. McConnack, 131 Ind. 250. 108 Approved In Baltimore & P. R. Co. v. Maryland, 75 Md. 152. (820) Ch. 92] MASTER AND SERVANT. [1980 to assist in making up tlie train and that he had been in the employment of defendant for over two years at the time of the injuries here sued for and had assisted in making up the train nearly every day during that time, and that the injuries here sued for were caused by the plaintiff being knocked off a car by a coal platform standing near the track and if the jury believe from the evidence that the proximity of said coal platform to the track and to the cars as they passed was plain and apparent and the liability to injury therefrom manifest, and that the plaintiff knew of such proximity or by the exercise of ordinary care to avoid injury to himself might have known and with such knowledge or opportunity for knowledge remained in defendant's employ and continued to work in the vicinity of such coal platform without objection or protest and without promise of amendment by the defend- ant, then plaintiff cannot recover in this action.^"' Same — Minority of servant. (1980) The court instructs the jury that, if you believe from the evidence that the plaintiff knew or had the same means of knowing as his employer, of the danger to which he would be exposed in performing services at said place, and further find from the evidence that the plaintiff failed to exercise that degree of care that a man of ordinary prudence would have used under the circumstances, to avoid injury from such danger, and that by reason of his omission to ob- serve that measure of caution, he was injured, he cannot recover; unless, however, you believe from the evidence that at the time plaintiff was hurt he was a youth of immature judgment and inexperienced in the business in which he was ■employed and that the perils of his undertaking were not communicated or known to him, and that by reason of such immaturity of judgment and inexperience and want of in- formation as to the perils of the employment he was incapable 100 perlgo V. Cedar Rapids, I. & P. R. Co., 52 Iowa, 276. (821) 1981] MASTER AND SERVANT. [Ch. 92 of understanding tlie nature and extent of tHe hazard to wiicb he was subjected ; in which event in order to prevent a re- covery by him, you must believe that he failed to exercise that degree of care that persons of his age, undeveloped judg- ment and want of information would ordinarily use under such circumstances. From what has been stated you will perceive that it is not the mere fact of plaintiff's minority at the time he was hurt that would relieve from the care demanded of an adult, but such immaturity of judgment, in- experience and lack of information as has been defined to you, would be necessary to relieve him from that degree of care. You are further instructed that the fact that plain- tiff's father did not consent to his employment by said defend- ant, does not affect this case one way or the other.* ^* Promise of master to remedy defect, (1981) The court instructs the jury that if the drawbar was defective, and the plaintiff had knowledge of it, and made objection thereto, and was induced to remain in the defend- ant's employment by promise or assurance of its repair, and within a reasonable time, and before its repair, and nbt hav- ing waived the objection, he was injured by reason of such defect, and he did not contribute to the injury, by his own fault or negligence, he will be entitled to recover, but in such case greater care will be required of him than if he had not known of the defect.*** Negligence of fellow servant. (1982) The court instructs the jury that although the plaintiff assumed the risks which are ordinarily incident to the services in which he was engaged and the risk of such defective appliances as were obvious or known to him, he did not assume the risk of being injured by the negligence of oth- er employes of the defendant, if the jury believe from the "» Approved In Texas & P. R. Co. v. Brick, 83 Tex. 598. Ill Approved in Belair v. Cliicago & N. W. R. Ca, 43 Iowa, 662. (822) dh. 92] MASTER AND SERVANT. [1986 evidence that employes other than defendant were negligent, tonless such other employes were fellow servants as defined in the instruction given upon that question.*^' VHI. C!ONTMBUTOEY NeGUGENCE OF SeBTAKT. Care required of servant in general. (1983) If you find under the above instructions that plain- tiff and defendant were both guilty of negligence which con- tributed to bring about the accident to plaintiff, then plaintiff cannot recover herein and you will find for defendant. If you find that neither plaintiff nor defendant was guilty of such negligence then you will also find for defendant.**' (1984) The court instructs the jury that if you find from the evidence that the plaintiff at the time he received hi? in- juries was sitting on the hand-car, and that the manner in which he was sitting was negligence, and that such negligence approximately contributed to his injury, he cannot recover in this case.*** (1985) The court instructs the jury that to find for plain- tiff you must believe from the evidence that defendant was guilty of negligence which caused the injuries to plaintiff, and in addition that plaintiff on his part was not guilty of any negligence which contributed to bring about the accident to himself.**"* (1986) The court instructs the jury that the defendant was under no greater obligation to care for the safety of plaintiff than he was to take care of himself ; that while the company was under obligation to use care for the safety of plaintiff he was under a like obligation to use ordinary care for his own safety, and to observe the machinery with which he operated.**' 112 Mobile & O. R. bo. v. Uealy, 100 111. App. 586. lis Gulf, C. & S. F. R. Co. v. Silllphant, 70 Tex. 623. 114 Galveston, H. &. S. A. R. CJo. v. Parrlsh, 40 S. W. 191. lis Gulf, C. & S. F. k Co. v. Slliiphant, 10 Tex. 623. ii» Approved In McDonald v. Norfolk & W. R. Co., 95 Va. 98. (823) 1937] MASTER AND SERVANT. [Ch. 92 (1987) The court instructs the jury that if they believe, from the evidence, that at the time the plaintiff uncoupled the cars, there was a combination car on v?hich there was a railing, and a flat car which did not have any railing, and that the plaintiff in uncoupling the cars should have re- mained on the combination car, and run it out on the switch, and that if he had done so he would not have been injured, but instead of remaining on the combination car he remained on the flat car, and was thrown off the same and injured, then the jury must find for the defendant, as he was injured through his own carelessness and negligence.*'^ (1988) The court instructs the jury that if they believe from the evidence that plaintiff (was in the employ of the defendant railroad company and while so in such employ- ment, and in the course of his duties, was struck by an en- gine, and that the plaintiff had actual, timely notice of the approach of the engine which struck him, that is, sufficient notice to enable him to get out of the way, by the exercise of ordinary care, whether such notice was received by him from a bystander or by hearing or seeing the engine as it ap- proached, then it makes no difference in this case whether the bell of the engine was ringing or not).*'* (1989) The jury are instructed, as a matter of law, that it was the duty of the plaintiff, before attempting to uncouple the car in question, to use ordinary and reasonable care to ascertain whether it was safe to do so or not while the train was in motion ; and if the jury believe from the evidence, that it was not safe for the plaintiff to uncouple said car at the time he attempted it, and that the plaintiff knew or might by the exercise of ordinary care have known, that it was not safe to attempt it, then the plaintiff cannot recover, and the verdict should be for the defendant.*" 1" Approved in Chicago & A. R. Co. v. Rush, 84 III. 570. 118 Bast St. Louis Connecting R. Co. v. Eggmann, 71 111. App. 32. ii» Approved in Chicago, B. & Q. R. Co. v. Warner, 108 III. 538. The Instruction set out above was expressly approved by the (824) Ch. 92] MASTER AND SERVANT. [1993 Knowledge of defects or dangers. (1990) The court instructs the jury that the defendant was under no obligation to keep the loose boards picked up and it was plaintiff's duty to observe when and upon what he was stepping, and if his fall was due to his stepping upon a loose board near the runway, or where he was working, then your verdict should be for the defendant.*^" (1991) The court instructs the jury that it was the plain- tiff's duty to be careful, and to guard against accidents; and if you believe from the evidence that the plaintiff knew the manner in which the board upon which he claims to have stepped was laid, or if the condition of the board was ap- parent, and plaintiff by looking and using ordinary care, could readily have discovered the danger, then your verdict should be for the defendant.*^* (1992) The court instructs the jury that although they may believe from the evidence that H. was not a capable man to run the mine machine referred to in the evidence in this cause, and did not run such machine in a capable manner at the time of the injury to B., yet, if they believe from the evidence that the said B. had knowledge of the danger of said machine when in motion, and could have avoided the injury to himself by the use of ordinary care upon his part, he, the said B. would be guilty of contributory negligence and the jury should find for the defendant. •'^^ (1993) The court instructs the jury that it is the duty ■of one engaged in a hazardous employment to keep a con- stant lookout for the danger that besets him, and if he re- court as applicable to the facts in the case. The instruction actu- ally given hy the court used the words, "in attempting to uncouple the car in question while the train was in motion, to exercise great care and caution to prevent being injured." While the instruction refused and instruction given have a superficial resemblance, they are in tact radically different. 120 Approved in Doyle v. Missouri, K. & T. Trust Co., 41 S. W. 255. "1 Approved in Doyle v. Missouri, K. & T. Trust Co., 41 S. W. 255. "2 Approved in McVey v. St. Clair Co., 49 W. Va. 412. (825) MASTER AND SERVANT. [Ol. 92^ ceive an injury because of a danger to which he is exposed, of which he had equal advantages and opportunities with the master to know, and fully undei'stand, he cannot recover for an injury as a result of such danger.^^' (1994) The court instructs the jury that if said handle ^as reasonably safe and suitable when the car was furnished to the plaintiff then defendant was not guilty of negligence in furnishing it. If said handle was defective as to material,^ rotten or out of repair when so furnished, if its defects were unknown to defendant and defendant could not by the use of reasonable diligence have discovered its said defects, then in such case defendant would not be guilty of negligence in fur- nishing the car with such handle. If said handle was so de- fective and if plaintiff did not know of the defects in it, and if he did not voluntarily take a dangerous position on said car, then he would not be guilty of contributory negligence.*** Injury to servant where absent from post of duty. (1995) The court instructs the jury that, if the evidence should show that the plaintiff was injured by such explosion as alleged, yet if it also appears that plaintiff at the time of such injury, was away from the place at which his duties required him to be (if you find that he was in defendant's employment) and that he voluntarily placed himself in a po- sition of danger and in consequence thereof received the in- juries complained of, then he could not recover, no matter whether such boiler was defective or the engineer in charge was incompetent or not.''^^ (1996) The court instructs the jury that, if you find from the evidence that plaintiff was rightfully at the pk'ce of the Explosion and you further find that he left his engine and went to the boiler that exploded, and you find that he had no i2s Approved In Baltimore & O. S. W. Ry. Co. y. Spaulding, 21 Ind. App. 323. 12* Gulf, C. & S. P. R. Co. V. SUliphant, 70 Tex. 623. 126 Approved in East Line & Red River R. Co. v. Scott, 71 Tex. 703. (826) Ch. 92] MASTER AND SERVANT. [1997' reason to believe that said boiler was in dinger of explosion,- knd in bo goiilg near it he did what was usual in such a case on the part of trainmen, and there was no apparent danger in so doing, and it was such an act as a man of ordinary prudence and caution would commit, then the same would not defeat his right to recover if he was otherwise entitled to recover, under the evidence and the instructions hereiu given.*''* (1997) The court instructs the jury that where a servant who has been assigned to work at a particular place, without any reasonable or proper cause for so doing, voluntarily goes away from his post of duty, and is injured in consequence thereof, he has no remedy against his employer. And if the- jury shall believe from the evidence that plaintiff was em- ployed by the defendant company to work at drilling earth on top of a bank at its mines, and that his duty was, with a drill, pick, or shovel, to drill a hole in said earth and that it was a safe position ; and if the jury shall further believe from the evidence that the said plaintiff voluntarily, and without the direction of the defendant company or its agents, and without any reasonable or proper cause for so doing, left said position to which he was assigned, and voluntarily ex- posed himself to known danger, by going to a fire at which dynamite was being thawed by other servants of the defendant company, and that the said plaintiff was injured by an ex- pldsion of said dynamite at said fire to which he went volun- tarily, and without the direction of the defendant company or its servants, and without any reasonable or proper cause for so doing ; and if the jury further believe from the evidence that the said plaintiff in so doing was guilty of negligence ^hich proximately contributed to his injury, then the saitf plaintiff cannot recover for an injury thus caused.*^^ i** Approved In East Line & Red River R. Co. v. Scott, 71 Tex. 703 i'»T Bertha Zinc Co. v. Martin's Adm'r, 93 Va. 791. '(827) 1998] MASTER AND SERVANT. [Ch. 93 Disobedience of rules and orders. (1998) The court instructs tlie jury that if they believe from the evidence that, at the time of the injury to the plain- tiff, there was in force a rule of the company, known to him, that required a brakeman to use a coupling stick in coupling cars ; that the plaintiff had such stick, but in disregard of such rule and without special direction so to do he made the coup- ling by which he was injured with his hand instead of such stick, and that if he had used a coupling stick instead of his hand, he would not have been injured, he was the author of his own misfortune, and the jury must find for the de- fendant. (1999) The court instructs the jury that the plaintiff in the performance of his duties as conductor of the train of defendant, assumed all the usual and ordinary risks incident to his business, and if injured by any accident arising from these risks, the defendant is not liable to him therefor ; if you believe from the testimony that plaintiff created an extraor- dinary risk for himself by permitting the train to run at an imusually rapid rate of speed and was injured on that ac- <3ount, your finding will be for defendant.*** (2000) The court instructs the jury, that, if you believe from the testimony that plaintiff was an experienced railroad man, both as engineer and conductor, at the time of the accident, and that he permitted the train under his charge to be run at an unusual and reckless rate of speed, and that said unusual and reckless rate of speed of the train was the prox- imate cause of the accident, and that, but for such rate of speed, the accident would not have happened, notwithstand- ing defects (if there were any) of the track or cars or man- ner of loading the cars of the defendant, then the plaintiff cannot recover, and your finding will be for defendant.*** 128 Approved In Gorham v. Kansas City & S. R, Co., 113 Mo. 408. 128 Approved In Gorham v. Kansas City & S. R. Co, 113 Mo. 408. <828) Oh. 92] MASTER AND SERVANT. [2004 Disregard of warning. (2001) The court instructs the jury that if they believe from the evidence that B.'s death was caused directly by failing to recognize the signals to stop, if any were given, and to stop or check the speed of his train in response thereto, then your verdict must be for the defendant.^^" IX. Evidence to Establish Liabiutt. Burden of proof. (2002) The court instructs the jury that the only charge of negligence made in the petition against this defendant, which you are to consider, is concerning the removal of the brake staffs from the flat cars, which were loaded with steel, and it devolves upon the plaintiff to prove that the removal of said brake staffs was an act of negligence. The jury cannot presume that it was a negligent act from the fact, if it be a fact, that the cars escaped from the side track onto the main track, and there collided with B.'s train.^^* (2003) The court instructs the jury that the burden of proof is upon the plaintiff and he cannot recover unless he proves to your satisfaction and by the greater weight of evidence, each and every fact material of his case.-'^^ (2004) The court instructs the jury that while an employe of a railroad company assumes the risks ordinarily incident to the service in which he is employed, yet he does not assume the risks which result from the negligence of the master. Plaintiff must, however, in order to recover, show to the jury by a preponderance of the evidence that his injuries were caused as alleged in the declaration by defendant's negligence in permitting its cars to be run, etc., and that such injury, if any, was caused by such negligence, if it existed and that plaintiff did not and by the exercise of ordinary care and ISO Approved In Browning v. Wabash W. Ry. Co., 124 Mo. 55. "3 131 Approved in Browning v. Wabash W. Ry. Co., 124 Mo. 55. 132 Approved In Doyle v. Missouri, K. & T. Trust Co., 41 S. W. 255. (823) :20aS] MASTER AND SERVANT. [Qh. 92 diligence could not know of such negligence. If plaintiff has •not shown this by a preponderance of evidence, then you will find for the defendant.^*' (2005) The court instructs the jury that, if you find from the evidence that the plaintiff was injured in the manner as alleged, and that at the time of the injury he was in the em- ploy of the defendant as night watchman, and that his duties as such were performed at a different place from that at which the injury occurred, then before plaintiff can recover, he must show that he was properly at the place where the injury •occurred, and that his presence there was in the performance of a service for defendant.-''* (2006) The court instructs the jury that it is for them to determine upon all the facts and circumstances in evidenjce whether the explosion of the boiler was or was not caused by the want of a reasonable degree of skill of one in the em- ploy of said company, or whether said explosion was or was -not caused by the failure of said employe in charge of said boiler to use a reasonable degree of care and caution to pre- vent said explosion.^*' (2007) The court instructs the jury that to recover dani- ages in this action, plaintiff must not only show by a pre- ponderance of evidence that there was negligence on the part •of defendant, but plaintiff must also show by a preponder- ance of testimony that the injury complained of was the result of jsuch negligence. Now the only injury of which plaintiff complains in this case is that defendant did not provide a on the machine upon which plaintiff was working known as a and if therefore plaintiff has bailed to show by a preponderance of the testimony that der Pendant failed to provide a as alleged and that such i»8 International £ G. N. R. Co. v. Emery, 40 S. W. 149. 18* Approved In East Line & Red River R. Co. v. Scott, 71 Tex. 703. 185 Approved in Smith v. Warden, 86 Mo. 382. <830) €h. 93] MASTER AND SERVANT. [2010 failure was negligence and th^t such negligence caused the injury here sued for, the verdict -will be for defendant^** Sufficiency of evidence. (2008) The court instructs the jury that whenever a claim for damages is asserted the injury must be shown by tiie plaintiff to have been caused by the negligence of the de- fendant, and the happening of the accident, without addition- al proof that it was caused by the negligence of the defendant, is not sufficient to establish the liability of defendant.**^ X. TiTABn.ITY FOB INJUBIES TO THIBD FeBSONS. In general. (2009) The court instructs the jury that if they shall be- lieve from the evidence that at the time of the collision, which resulted in the injuries to the plaintiff of which he complains in this action, E., as section master of the defendant compaBv on that part of said company's road on which the collision oc- curred, was on the hand-car involved in said collision, and in the control and management of the same, and that the plaintiff was then and there on said hand-car by permission ■of said E., and without knowing that it was contrary to the rules of the defendant company for him to be on said hand- car, and that the injuries sustained by the plaintiff in said collision resulted from the gross negligence of the defendant company, or of its agents or any of them, whilst the plaintiff was on said hand-car, then the court instructs the jury that the defendant company is liable to the plaintiff in this action for said injuries.^*^ (2010) The court instructs the jury that if they believe from the evidence that when the collision occurred between the hand-car and the train, which resulted in the injuries to the plaintiff for which he seeks to recover in this action, E. 136 Lowrimore T. Palmer Mfg. Co., 60 S. C. 153. 1" Approved In Richmond & D. R. Co. v. Burnett, 88 Va. 638. 138 Approved In Tyler v. Chesapeake & O. R. Co., 88 Va. 389. (831) 2011] MASTER AND SERVANT. [Ch. 92 was the section master of the defendant company on that part of said company's road upon which said collision took place, and that, as such section master, he was then on the aforesaid hand-car, and in the actual control and manage- ment of the same and of the laborers thereon, and was in the hab't of employing and discharging and controlling the la- borers under him, and did, on the day upon which the collision occurred, and but an hour or two before its occurrence, agree with the plaintiff that he would take him on said hand-car with his force from S. to L., a point on defendant's road, three miles west of said starting point, and bring him back on said hand-car in a short time on the same day, upon the condition and understanding that the plaintiff would aid in loading scrap iron along the track at and near L., on said hand-car, to be brought to S., and that the plaintiff, in ig- norance of any regulation of the company which forbade his being on the hand-car, so under the control of said E., did go thereon to L., and did, according to his undertaking, aid in loading scrap iron on said hand-car, and that, in returning from L. on said hand-car, the plaintiff, by reason of the gross negligence of the defendant company, or of its agents and representatives, in permitting the aforesaid collision to take place, was seriously and permanently injured, then the court instructs the jury that the plaintiff is entitled to recover of the defendant for such injuries.^^' (2011) The court instructs the jury that if you find from the evidence that certain persons were employed to run and operate a train upon the railroad of defendant, and that these persons while so employed and while engaged in running a train, committed an assault and battery upon the person of plaintiff, he, the plaintiff, at the time not being a passenger upon or in any way connected with defendant or its train, bui was simply a stranger or citizen passing on or along its railroad track, or that the persons so employed attempted by i3» Approved in Tyler v. Chesapeake & O. R. Co., 88 Va. 389. (832) Ch. 92] MASTER AND SERVANT. [2013 force and did kidnap him, and this was done without any di- rection or authority or knowledge of the defendant other than such employment, then the defendant is not liable for any damages sustained by reason of such acts.'^'"' (2012) The court instructs the jury that if they believe that the motorman in charge of the defendant's car after he had seen the plaintiff's carriage and had completely stopped his car, wantonly and maliciously and to gratify some private purpose and not because it was necessary that he should again start said car, in pursuance of his employment again started said car and ran into the plaintiff's carriage and frightened the plaintiff's horse and caused the accident, that then the defendant is not responsible for such acts on the part of the motorman, and the verdict of the jury must be for the de- fendant.^** (2013) The court instructs the jury that if they believe that the plaintiff drove upon that portion of street exclusively used by the defendant's cars and occupied by its "T" rail tracks and stone ballast on a dark and rainy night, and drove his horse down said track for over 200 yards, and that the motorman in charge of the defendant's car, after he discovered that the plaintiff was on the track, used every due and proper effort to stop his car before he should strike the plaintiff's carriage and frightened the plaintiff's horse, which ran away and caused the accident, then there is no negligence on the part of the defendant, and the verdict of the jury must be for the defendant.-**^ 1*0 Approved In Porter v. Cedar Rapids, I. & P. R. Co., 41 Iowa, 358. m Approved In Baltimore Consolidated Ry. Co. v. Pierce, 89 Md. 495. 142 Approved in Baltimore Consolidated Ry. Co. v. Pierce, 89 Md. 495. (833) Instr. Juries — 53. 201 MESNE PROFITS. [Ch. 93 CHAPTER XCin. MESNE PROFITS. Trespass for mesne profits of mining land recovered In former ejectment suit, 2014-2019. Trespass for mesne, profits of mining land recovered in former ejectment suit. (2014) The court instructs the jury that ■whether fast or loose, all the machinery of an ore bank which is necessary to constitute it such and without which it would not be an ore bank equipped and ready for use as such, are a part of the freehold and a recovery of the land by the plaintiffs in the action of ejectment gave to them the ore banks on it with all the machinery, whether fast or loose, and necessary to con- stitute them such equipped and ready for use.-' • (2015) The court instructs the jury that if they believe from the evidence that the machinery, building and appli- ances for mining ore placed by the defendants upon the land of the plaintiffs were for temporary use only, and not struc- tures of a lasting and permanent character, then they are not such improvements as entitle defendants to credit against plaintiff's demand in this action, but the jury are instructed that such structures are of a lasting and permanent character if they are annexed to and made a part of the freehold and give an increased value to it.^ (2016) The court instructs the jury that the royalty named in the lease given in evidence in this case is not the absolute measure of the value of the ore in place on the lands of the plaintiffs, but is the measure of such value only in connection with the locatioii of the lands and their natural surroundings. The value of the ore in place you will ascer- iBge v. Kllle, 84 Pa. 333. 2 Ege V. Kllle, 84 Pa. 333. (834) Ch. 93] MESNE PROFITS. [2018 tain in estimating tlie cost of mining, cleansing and putting the ore into market and then deducting this cost from the value of the ore in market, and the difference will be the value in place.* (2017) The court instructs the jury that if they believe from the evidence that the defendant was hot skilled in min- ing ore and he gave no personal attention to mining opera- tions and that the price paid by him for superintending such operations was per month and that such price was -extravagant and unnecessary, then the jury are instructed that no extravagant and unnecessary expenditures should be allowed to the defendant, but only such or so much thereof as are proper and legitimate expenditures should be taken into account in ascertaining the real or legitimate cost of mining or the value of the ore in place.* (2018) The court instructs the jury that plaintiffs are ■entitled to recover from defendants in this case as damages the value in place of all the ore, timber, etc., taken from the premises described in the declaration by the defendants or by their lessees with interest from the time it was taken, and the defendants are entitled to credit against the value of the -ore so taken only for such improvement upon plaintiffs' land by defendants or by their lessees as the jury may believe are of a lasting and permanent character, adding a permanent increase of value to the land and being of a lasting and per- manent benefit to it and the jury are instructed that the improvements are of a lasting and permanent character when they are annexed to and made part of the freehold and -give an increased value to it. The increase is a permanent increase if the value of the land has been increased by the permanent improveifients made and put tipon it and if such 8 Ege V. Kille, 84 Pa. 333. ^Bge V. Kllle, 84 Pa. 333. (835) 2019] MESNE PROFITS. [Ch. 94 improvements have increased the value of the land, they are of lasting and permanent benefit to it.'* (2019) The court instructs the jury that the engines, boil- ers, washers, pans, drums, pumps, ropes, cars and all other matters necessary to convert unimproved land into ore banks opened and ready to operate as such, are permanent improve- ments to the property, whether they are leased a limited number of years or not, provided they be necessary parts of the machinery and fixtures erected and put upon the land for that purpose and provided also such machinery and fix- tures were annexed to the freehold and made part of it and give an increased value to the land, and if, therefore, you find these things to be permanent improvements and giving an increased value to the land, the defendants wiU be en- titled to the difference in value between the property as it was without them and as it was when the plaintiffs were put in possession of it on , 19 — , with them in its distinc- tive character as ore banks ready to operate, as a defense to the value of the ore in place, and before it was taken from the ground, just to the extent, however, that such difference of value was produced by such improvements made and put upon the premises by the defendants and their lessees.* CHAPTER XCIV, MINES AND MINERALS. Overlapping claims, 2020. Liability for removal of supports, 2021. Injury to employe caused by insufficient timbering, 2022. Contract to roast ore, 2023, 2024. Overlapping claim (2020) The court instructs the jury that where two min- s Ege V. Kllle, 84 Pa. 333. Ege V. Kllle. 84 Pa. 333. (836) Ch. 94] MINES AND MINERALS. [2021 ing companies take up adjoining claims, and the one last taken up overlaps the other, and neither company is working that portion of the claim which overlaps the other, but are working in different portions of their respective claims, the fact that the locators of the last claim located have been in possession of their claim for five years, does not divest the owners of the first claim of the right to their claim to the extent of the original boundaries, and such a possession by the locators of the last claim located is not adverse to the possession of those who located the first claim.* liability for removal of supports. (2021) The court instructs the jury that where a man has the title to a coal mine and leases it in general terms to another and the lessee operates it with full control over the mine as to the manner of operating, and such lessee with- draws the supports, or fails to leave sufficient support, he is liable for a subsequent subsidence and not the owner of the coal mine, but if tbe lease provides how the lessor shall mine the coal, and tbe extent of the support that is to be left, des- ignates the size of the rooms and the extent of the pillars or stumps or ribs that are to be left, and the lessee accepting the condition mines the coal in accordance with the terms speci- fied in the lease, leaving the support that the lessor specifies, and that is insufficient, and the surface subsides, then the lessor will be liable, because he in his lease had indicated the support that ought to be left, and he would be liable as well as the lessee who took out the coal; or if after a lease is made, which might be general in its terms without any quali- fication as to the manner in which coal should be taken out, the lessee and lessor would agree and have an understanding that certain coal should be taken out, or certain supports then 1 Approved in Maine Boys' Tunnel Co. v. Boston Tunnel Co., 37 CaL 40. 2022] MINES AND MINERAXiS. [Ch. 94 existing should be removed, and they were removed in conse- quence of that mutual agreement, then the lessor or the owner of the vein of coal would be liable as well as the lessee.'" Injury to employe caused by insufficient timbering. (2022) The court instructs the jury that the law makes it the duty of the owner, agent, or operator of every coal mine to keep a supply of timber constantly on hand of suffi- cient lengths and dimensions to be used as props and cap pieces, and to deliver the same as required with the miner's empty car, so that the workmen may at all times be able to properly secure said workings for their own safety, and if such operator fails willfully so to do, and by reason of such failure a person employed about the mine is killed, the owner or operator is liable to the widow of the person killed for damages not to exceed the sum of $5,000.' Contract to roast ore. (2023) The court instructs the jury that if the plaintiffs were not ready on the first of , 19 — , to comply with their part of the contract; or if the ore was then and there- after and until , 19 — , being mined and received in less quantities and in a manner otherwise than as the contract provided for and if plaintiffs acquiesced therein, or if the plaintiffs during the time, did not complain and did not give the defendant reasonable notice that they were stand- ing on their contract and that he would be expected to re- ceive daily, Sundays excepted, from 50 to 60 tons of ore, then the plainflffs would not be entitled to recover damages on this account for defendant's failure to receive such amount of ore.* (2024) The court instructs the jury that if the plaintiffs s Approved In Kistler v. Thompson, 158 Pa. 139. "Approved In Mt. Olive & Stanton Coal Co. v. Rademacher, 190 111. 538. * Approved in Eaves & Collins v. Cherokee Iron Co., 73 Ga. 459. (838) Ch. 95] MUNICIPAL CORPORATIONS. while the ore was being delivered, acquiesced in the manner of weighing the ore and in the use of the defendant's scales in and did not object thereto or give defendant rea- sonable notice that the scales would be required as provided by the contract, at the chute or ore bank, then they were not entitled to recover the damages on this account, nor would they be entitled to damages on this account, if they have re- ceived credit for all the ore actually delivered. The defend- ant in such case was bound to furnish the weights of the ore to the plaintiffs, if he undertook to weigh it for them, and if he did so correctly, no damages can be recovered on this account. If he did not, they can recover for any ore not credited to them by the defendant.'' CHAPTER XCV. MUNICIPAL CORPORATIONS. I. In GenebaIi. Enforcement of ordinances, 2025. Action for violation of ordinance ■which establishes a market place and prohibits sales outside of market, 2026. II. Defective Stbeets and Sidewalks. General instructions on behalf of city, 2027-2030. General Instructions on behalf of plaintiff, 2031-2039. Care required In general, 2040-2052. Places required to be kept in repair, 2053-2057. Same — Acceptance of street by city, 2058, 2059. Same — Sidewalks built by third persons, 2060, 2061. Same — Bridge built by private individual, 2062. Latent defects, 2063, 2064. Care required with regard to streets undergoing improvements, 2065. Defective bridges and approaches thereto, 2066-2069. Care required with regard to sidewalks, 2070, 2071. Sidewalks in suburbs, 2072. Defective crossings, 2073. s Eaves & Collins v. Cherokee Iron Co., 73 Ga. 459. (839) 2025] MUNICIPAL CORPORATIONS. [Ch. 95 Excavations and holes in streets, 2074, 2075. Openings into sewers and drains, 2076, 2077. Necessity of barriers, 2078, 2079. Overhanging signs, 2080. Liability of city for injuries caused by objects dropped from platform, 2081. Insufficient light, 2082. Ice and snow on sidewalks, 2083-2085. Condition of street before or after injury, 2086, 2087. Effect of defects other than one causing injury, 2088. Notice, 2089-2095. Notice of unlawful obstruction of highway, 2096. Constructive notice, 2097-2102. Same — Overhanging sign, 2103. Negligence of traveler, 2104-2112. Same — Circumstsmces increasing degree of care to be exercised, 2113-2117. Same — Duty of traveler to take safer way, 2118-2120. Same — Knowledge by traveler of defects, 2121-2123. Same — Burden of proof, 2124. Injuries to children, 2125, 2126. Recovery over, 2127. III. Liability with Respect to Drains and Sewebs. Liability for flooding of premises caused by defective drains and sewers, 2128-2130. Diversion of surface water by change of grade, 2131, 2132. IV. Enforcement of Claims Against Municipalities. Conditions precedent — Presentation of claim to council, 2133. Sufllciency of notice to city of intention to sue, 2134. I. In General. Enforcement of ordinances. (2025) The court instructs the jury that under the charter of the plaintiff, the mayor and the aldermen of plaintiff had the power and authority to pass the ordinances which have been introduced in this case, and such ordinances are valid and binding upon the defendant in its use and occupancy of the streets of the plaintiff, if the jury believes from the evi- dence that said ordinances were properly passed and promul- gated.^ 1 Braslngton v. South Bound R. Co., 62 S. C. 325. (840) Ch. 95] MUNICIPAL CORPORATIONS. [2028 Action for violation of ordinance wMcIi establishes a market place and prohibits sales outside of market. (2026) The court instructs the jury that if they believe from the evidence that defendant did, as charged in the com- plaint in this cause, sell fresh meats in said eity outside of the market established by the city and within five blocks of the same, in less quantities than by the they will find the defendant guilty and fix his fine at , pro- vided the jury further believe from the evidence that the city council passed the ordinance establishing said market place, which ordinance purports to have been read to the jury in this cause, and provided they believe from the evidence that the city council caused the said ordinance to be pub- lished in a newspaper in the city of in the manner required by the city charter.* II. Defective Stbeets and Sujewalks. General instructions on behalf of city. (2027) The court instructs the jury that if they believe from the evidence that the place in the sidewalk where the accident occurred, which is alleged to have caused the in- juries here sued for, was properly and safely constructed, and up to the time of the accident appeared to be in a safe condition, and that the officers of the defendant had no ac- tual knowledge of any defect, and that the defendant's offi- cers had exercised reasonable care to discover defects, de- fendant will not be liable.* (2028) The court instructs the jury that the plaintiff in bis petition alleges in substance that the defendant is a munic- ipal corporation, and that it was the duty of defendant to keep the streets in repair and safe, one of its streets being as alleged, called street, in the defendant city ; that the said defendant or city failed to construct a sidewalk in said » City of Peoria v. Calhoun, 29 111. 317. » City of La Salle v. Porterfield, 138 111. 114. (841)- 2029] MUNICIPAL CORPORATIONS. [Ch. 95 street of sufficient scantling and boards and that work was unskillfully performed ; that both in material and workman- ship it was insufficient, unsafe and dangerous for public travel, and that said defendant knowingly permitted said side- walk to be and remain out of repair in allowing boards on said sidewalk to become loose and unfastened ; and further alleges that on or about the day of , 19 — , while plaintiff was walking on said sidewalk, in the exercise of ordinary care and caution, unfastened boards in said side- walk tipped up under his feet causing him to fall with vio- lence upon said sidewalk, by reason of which he received the injuries complained of to the damage of plaintiff as he al- leges in the sum of . The defendant answering the petition denies each and every allegation thereof except that defendant is a municipal corporation as alleged, which de- fendant admits. Now, the court instructs the jury that, in order for the plaintiff to recover in this action, he must satis- fy the jury from the evidence that he received his injuries (if you find he received any injuries) from defects in the sidewalk of the defendant city, at the place and of the char- acter and in the manner set out in his petition, and that such defects were of a character that they could be discovered by the exercise of ordinary care and diligence.* (2029) The court instructs the jury that if they believe from the evidence that the alleged injury to plaintiff was the result of a mere accident and if they further believe from the evidence that the negligence of the defendant in no way con- tributed to the injury, they should find for , defendant.^ (2030) The court instructs the jury that the defendant is not liable in this action, although the plaintiff shows that he was using due care, unless he also shows, by a preponder- ance of evidence, that the defendant was guilty of a lack oi ordinary care. The negligence of the city, if any, was in per- * Approved in Kansas City v. Bradbury, 45 Kan. 381. » City of Chicago v. Sheeban, 113 111. 658. (842) Ch. 95] MUNICIPAL CORPORATIONS. [203! mitting the spoken of by the witnesses to obstruct the free use of the sidewalk, if it did so obstruct it, without any guard around it, or light, or any other reasonable means be- ing used to protect passers-by from injury or give them warn- ing of danger. The degree of care required of the city with regard to its streets and sidewalks is ordinary care, that is, such care, "as men of ordinary prudence use for themselves." Where a municipal corporation exercises, in maintenance of its streets and sidewalks, ordinary care, no action will lie for an injury sustained by a person, although in the lawful use of streets or sidewalks. Ordinary care does not require the highest degree of diligence, but does require that degree of diligence which, under like circumstances, an ordinarily prudent man would exercise with respect to his own affairs. If the city of did use that degree of care which an ordinarily prudent man would have done, your verdict should be for the defendant. So far as the rights of the parties of this action are concerned, it is your sworn duty to try the case as though it was one between individuals because the defendant is entitled to be treated precisely as an individual,, and no inferences or presumptions are to be drav^m or in- dulged against it that would be improper in an action be- tween two men.^ General instructions on behalf of plaintiff. (2031) The court instructs the jury that if they believe from the evidence that plaintiff was injured by reason of a defect in a street, as alleged by the declaration, and that plain- tiff was guilty of no fault or negligence and the accident Was one which common and ordinary prudence might have avoided, and that there was negligence on the part of de- fendant in permitting the alleged defect in the street, they should find a verdict for plaintiff.'' 6 Approved In City of Indianapolis v. Gaston, 58 Ind. 224. 1 City of Rock Falls v. Wells, 59 111. App. 155. (843) 2032] MUNICIPAL CORPORATIONS. [Ch. 95 (2032) The court instructs the jury that if plaintiff fell by reason of loose planks or other defects in the walk and if the defects had been there long enough so that the officers of defendant either actually knew of the condition of the walk or should have known its condition by the exercise of or- dinary care, and the plaintiff was free from any negligence on his part, he would be entitled to recover.* (2033) The court instructs the jury that it is the duty of the city to make and keep its sidewalks reasonably safe for public travel, and that if it fails in the discharge of this duty it is liable to persons sustaining injuries because of such failure. And if the jury believe from the evidence that the sidewalk in question where the plaintiff fell and sustained the injuries complained of in his declaration, was not in such reasonable repair, then they must find for the plaintiff the damages they believe him to have sustained, unless they shall also believe from the evidence that the plaintiff, by his own negligence or want of ordinary care and caution, so far con- tributed to the misfortune that but for such negligence or want of ordinary care and caution on his part the misfortune would not have happened.' (2034) The court instructs the jury that if the jury be- lieve from the evidence that the sidewalk where the plaintiff was injured was uneven, out of repair or fit condition for any reason, and dangerous to persons passing along the same with ordinary care, and that the defendant, or its officers or agents knew, or ought to have known, of its condition, and that the plaintiff, in passing along the said sidewalk with such care as an ordinarily prudent man would have observed, fell thereon by reason of its defective condition, and was in- jured, then they must find for the plaintiff.^" (2035) The court instructs the jury that it is the duty of 8 Approved in Fee v. Columbus Borough, 168 Pa. 382. " Approved in Gordon v. City of Rlclimond, 83 Va. 436. 10 Approved In Gordon v. City of Richmond, 83 Va. 436. <844) Ch. 95] MUNICIPAL, CORPORATIONS. [20.^7 the city of to keep such streets and sidewalks as are constructed in the same for the convenience of passengers and foot travelers open and in repair and free from nuisances. And if the evidence satisfies the jury that the sidewalk, as alleged in the petition of plaintiff, was out of repair or im- properly constructed, and in such condition as to render pass- ers over the same liable to fall or otherwise get injured, and that in consequence thereof the plaintiff, in passing over the same without negligence or impriidence on his part which contributed to the injury complained of, received such in- jury, the jury will find for the plaintiff.*^ (2036) The court instructs the jury that if they find from the evidence that the injury complained of was suffered, and that it was occasioned by a fall upon the sidewalk, as charged in the petition of plaintiff, and that the sidewalk at the place where the fall occurred was in an unsafe and dan- gerous condition for the passage of travelers on foot, and that the accident occurred in consequence of such unsafe con- dition of the sidewalk, and that the plaintiff could not have known and guarded against the damages by the use of or- dinary care and prudence, then the jury will find for the plaintiff, if they find that the negligence of plaintiff did not contribute to the injury.*^ (2037) The court instructs the jury that, if the prepon- derance of the credible evidence in the case satisfies you that the plaintiff was free from any want of due care or attention that contributed to cause the injury, and further satisfies you that the city was guilty of negligence that was the proximate or near cause of the injury, and liable through having notice through its proper officer or officers, and not repairing or removing the dangerous character of the walk after a reasonable time elapsed after such notice, then you will allow him such damages as will fully compensate him "Approved in Rice t. City of Des Moines, 40 Iowa, 638. « Approved in Rice v. City of Des Moines, 40 Iowa, 638. (845) 2038] MUNICIPAL CORPORATIONS. [Ch. 95 for his injury, including his suffering, mental and bodily pain, doctor's bills, nursing, and loss of time as shown by the ■evidence in the case.'^ (2038) The court instructs the jury that the city is lia- ble, not only for injuries occasioned by negligently construct- ing defective sidewalks on its streets or by causing such de- fects in them after they are constructed but also for negli- gently permitting them to remain in a dangerous or unsafe condition, no matter how such condition was caused. Any person traveling upon a street has a right to use any portion oi the street or sidewalk for that purpose not already other- wise in use, and a person traveling upon a street or sidewalk of a city, has a right to assume that such street or sidewalk is in a safe condition, and to act upon that assumption, relying upon the belief that the city has performed its duty and placed and maintained such street or sidewalk in a safe con- dition.^* (2039) The court instructs the jury that the defend- ant is bound to use reasonable care and precaution to keep and maintain its streets, bridges and sidewalks in good and sufficient repair to render them reasonably safe for all per- sons passing on or over the same, and if the jury believe from the evidence that the defendant, the city of , failed to use all reasonable care and precaution to keep its bridges and sidewalks in such repair, and that the injury complained of resulted from that cause, as charged in the declaration, and that the plaintiff sustained damage thereby, while exercising such a degree of care and caution as under the circumstances might reasonably be expected from one of her age and intelligence, then she is entitled to recover of the defendant in this suit.^" 13 Munger v. Waterloo, 83 Iowa, 559. 14 Approved in Kansas City v. Bradbury, 45 Kan. 381. 15 City of Roanoke v. Sliull, 97 Va. 419. (846) Ch. 95J MUNICIPAL. CORPORATIONS. [2044 Care required in general. (2040) The court instructs the jury that the opening and repairing of streets is a matter of discretion in the city gov- ernment, but when it undertakes to open or construct streets and travel ways, it must so construct them as to render their use reasonably safe to such persons as are naturally expected to use such ways, using such care as such persons ordinarily exercise.^* (2041) The court instructs the jury that it is the duty of the defendant city to keep its sidewalks in safe condition and free from defects and obstructions dangerous to persons pass- ing along the same with ordinary care; and the defendant is liable to a person who sustains injury, without fault on his part, by reason of its neglect so to do.-^'^ (2042) The court instructs the jury that it is the duty of towns to keep ways safe and convenient for travelers on foot or in carriages, at all seasons of the year. These highways are of different widths. ^^ (2043) The court instructs the jury that a municipal cor- poration is bound to keep its streets, sidewalks and bridges in a safe condition for travel in the ordinary modes, by night as well as by day, and if it fails to do so, it is liable for injuries sustained in consequence of such failure.^^ (2044) The court instructs the jury that municipal cor- porations are bound to keep their streets and sidewalks in a reasonably safe and suitable condition of repair for public travel by night and by day; accidents may happen notwithstanding the utmost diligence and care and the cor-i poration does not warrant against accidents. The amount of care and diligence to be reasonable may vary with the cir- 18 Approved In City of Galveston v. Posnalnsky, 62 Tex. 122. 17 Approved in Gordon v. City of Riclimond, 83 Va. 436. 1" Approved In Wliitford v. Inliabitants of Soutlibridge, 119 Mass. E64. 19 Mayor, etc., of tlie CItr of Rome v. Dodd, 58 Ga. 238. (847) 2045] MUNICIPAL CORPORATIONS. [Ch. 9 = cumstanees of each case, but in all cases they must be relative to the risk to be reasonable care and diligence; when this is done, the corporation has performed its duty to the public. (2045) By reasonable and ordinary caire and diligence is meant that degree of care and diligence which an ordinarily careful and prudent man would be expected to use under similar circumstances.^" (2046) The court instructs the jury that the defendant has the entire control of streets within its corporate limits and has power to provide for and enforce the manner in which said streets are to be kept and is liable to travelers on said streets for any damage arising, without the fault of the one injured, from the placing in the street, such obstructions as to render the travel upon said street hazardous to the per- sons or property being conveyed or passing such streets.** (2047) The court instructs the jury that the defendant is bound to use reasonable care and precaution to keep and main- tain its streets and sidewalks in good and sufficient repair to render them reasonably safe for all persons passing on or over the same ; and if the jury believe from the evidence that the defendant failed to use all reasonable care and precaution to keep its sidewalks in such repair and the injury complained of resulted from that cause as charged in the declaration and that the plaintiff sustained damage thereby, without negligence on his part, then he is entitled to recover in this suit.22 (2048) The court instructs the jury that if the streets and sidewalk alleged by the declaration in this case to be defect- ive, and by reason of such defects to have caused the injury sued for, were within the corporate limits of the defendant, and if they .were opened up as a street and public highway for the use of travelers and were under the control of the de- 20 Approved In Kansas City v. Bradbury, 45 Kan. 381. 21 Approved in City of Galveston v. Posnalnsky, 63 Tex. 122. 22 Approved In Moore v. City of Richmond, 85 Va. 538. (848) Ch. 95] MUNICIPAL CORPORATIONS. [2050 f endant, then tiie law imposed upon the defendant the duty to keep said street and sidewalk in a reasonably safe condition for persona using ordinary care, and plaintiff had the right to assume and believe that the street and sidewalk at the place mentioned in the declaration was at the time of the injury in a reasonably safe condition for his use as a traveler while in the exercise of ordinary care.^ (2049) The court instructs the jury that, before the plainr tiff can recover a judgment in this action it must appear by a preponderance of the evidence (1) that plaintiff was in- jured as a result of a defect or excavation in the sidewalk on street in the defendant city, as alleged in the declara- tion, and that such excavation was left in an unsafe condi- tion; and (2) that the defendant city or its officers were negligent in permitting said sidewalk to remain in said un- safe condition at the time said plaintiff is alleged to have been injured. To charge the defendant with negligence it muat appear that the proper officers of the city had notice of the unsafe condition of the sidewalk in time to have pre- vented the injury to plaintiff, by falling into said excavation, or that by the exercise of reasonable and ordinary care and diligence they could have known of the imsafe condition of said sidewalk in time to have prevented such injury. By reasonable and ordinary care and diligence is meant that degree of care and prudence which an ordinarily careful and prudent man would reasonably be expected to use under sim- ilar circumstances.^* (2050) The court instructs the jury that the city of is not an insurer, nor a warrantor of the condition of its streets and sidewalks, nor is every defect therein, though it may cause the injury sued for, actionable. It is sufficient to relieve it from liability, if the streets and side- 2" Approved in Foley v. City of Huntington, 51 W. Va. 396. 2* Approved in Kansas City v. Bermlngham, 45 Kan. 212. (849) Instr. Juries — 64. 2051] MUNICIPAL CORPORATIONS. [Ch. 95' walks were in a reasonably safe condition for travel as well by night as by day. If, in this case, it is shown by the evi- dence, that at the place where the plaintiff met with his in- jury, the sidewalk was in a reasonably safe condition for travel, your verdict should be for the defendant.*® (2051) The court instructs the jury that the defendant is not required by law to construct its sidewalks so as to render them absolutely safe, as for instance, the defendant cannot be required to absolutely secure from an accident people who may be temporarily blinded from any cause and who while in such a condition see fit to use the streets without guide or assistance.^* (2052) The court instructs the jury that it is admitted that the place where the accident happened is within the limits of the city of and is used by the public as an approach to the W. county bridge, which is a public bridge owned by W. county; but these facts do not of themselves make the city liable to maintain and repair said premises as a public street, or to pay damages for injuries which may hap- pen by reason of the insufficiency or want of repair of said ap- proach. It must appear further that the approach or walk thereon in question is a public street or walk within the limits of said city, which it is liable to maintain, which it had power and authority to adopt, and had adopted prior to the accident, and which had become a public highway or walk in some way known to the law ; and further that the walk was so poorly or defectively constructed or in such condition as to be unsafe for persons who might be passing over it in the nighttime ; and of the sufficiency or insufficiency of the walk you are the judges.*'' Places required to be kept in repair. (2053) The court instructs the jury that if the jury are >« Approved In City of Indianapolis v. Gaston, &8 Ind. 224. M Smith V. City of Oilman, 38 111. App. 398. 2T Bishop T. City of Centralia, 49 Wis. 669. (850) Ch. 95] MUNICIPAL CORPORATIONS. [20S6 satisfied from the testimony, that the apron or bridge where the plaintiff fell and broke his leg has been there, and had been there a long time, say a year or six months, before the accident occurred, without any objection on the part of the .city, then the city is presumed to have acquiesced in the structure and to have adopted it, and must be held liable for damages by reason of defects, just the same as if the city authorities had actually ordered it to be placed there.^^ (2054) The court instructs the jury that a town is not bound to work and prepare for public travel the whole of the land within the limits of the way, but only such portions as are reasonably necessary for that purpose. And a town is not necessarily chargeable with damage arising from every defect existing within the located limits of a highway. Nor would it be liable for obstructions or defects in portions of the highway not a part of the traveled path, and not so con- nected with it that they would affect the safety or convenience oi those traveling on the highway and using the traveled path; nor would the town be legally liable when an injury Tvas sustained by a party using the road for the purpose of passing from his own land, although it was caused by a defect within the limits of the highway, if it was outside the part of the road used for public travel.^^ (2055) The court instructs the jury that the town is not bound to prepare for abutters the means of passing from their estates to the adjoining highway, or of crossing from that - part of the highway, not appropriated to travel, to that part which is so appropriated.*" (2056) The court instructs the jury that it was the duty of the owner to keep and maintain safe and convenient, for 2s Approved in Johnson v. Milwaukee, 46 Wis. 572, 573; 2 Thomp. Tr. § 1760. 29 Approved In Whltford v. Inhabitants of Southbrldge, 119 Mass. 664. 30 Approved In Whltford v. Inhabitants of Southbrldge, 119 Mass. ■664. (851) 20S7] MUNICIPAL CORPORATIONS. [Ch. 95 the public travel, those parts of the highway which were the traveled paths and held out to the public as intended and de- signed by the defendant for that purpose, and were so used. The traveled path is that which, with the knowledge and ac- quiescence of the town, is used for public travel within the located limits of the highway.** (2057) The court instructs the jury that it is a question for the jury whether the foot path, on which the plaintiff alleges he met with the injury here sued for, was so connect- ed with the wrought part of the road, or with the carriage way, and so used for travel, as to make the town liable for its condition. Erom the length of time this path had been there in its then situation, and from the public notoriety of the fact, the jury may find whether this foot path, by long-con- tinued public use, with the knowledge and acquiescence of the tovm, was recognized as a part of the wrought and finish- ed track,** Same — ^Acceptance of street by city. (2058) The court instructs the jury that if they find from the evidence that street (so called) was laid out by one S., in or about the year , upon a piece of ground having a natural watercourse, which crossed said so-called street, and that the defendant had not before or at the time of the happening of the accident complained of in this case, either actually or impliedly accepted or adopted said so-call- ed street as one of the public streets or highways of the de- fendant, that is to say, by formal resolution, order or or- dinance, or by any acts of repair or recognition of said street as a street, in the appropriation of money for, or expenditure of money thereon, or by any work or labor thereon by it or its agents or servants, with its approval or acquiescence, then »i Approved In Whitford v. Inhabitants of Southbrldge, 119 Mass. 564. 82 Approved In Whitford v. Inhabitants of Southbrldge, 119 Mass. 564. (852) Ch. 95] MUNICIPAL CORPORATIONS. [26Q0 tiie plaintiff cannot recover under the pleadings in this case, although the jury may further find that said street so called was used by persons passing on foot over it in going to and from their respective homes or places of business and al- though the jury may further find that one about years ago, voluntarily for his own convenience, but without authority from the defendant or its agents, placed across said watercourse, thereby making a temporary bridge across the same, and which was afterwards crossed by such persons as had occasion to use said street in crossing said watercourse and that the plaintiff while using due care and caution on her part in the act of crossing said temporary bridge sustained the injuries complained of in this case.^' (2059) The court instructs the jury that to show an acceptance by the public, binding upon the city, it is not necessary to show any formal action of the council to that effect. If the jury find from the evidence that the city of expended money in the repair of the bridge and as- sumed and exercised control and supervision of the same, and that it was upon a public thoroughfare in the city, this is evidence tending to show an acceptance and assumption of the bridge by the city.** Same — Sidewalks built by third persons. (2060) The court instructs the jury that if the defendants had themselves constructed this sidewalk, they would of course ha^e been responsible to keep it in repair. But if it had been constructed by others, there may be, on the part of the town, such an adoption of the acts of those who construct- ed it, and such a long-continued public and notorious use and enjoyment of the sidewalk as to amount to a recognition of S3 Approved in Kennedy v. Mayor, etc., of Cumberland, 65 Md. 514. Whether there was an acceptance of the street by the city waa a question of law. 3* Approved in Shartle v. Minneapolis, 17 Minn. 308, 316; 2 Thomp. Tr. § 1760. (853) 2061] MUNICIPAL CORPORATIONS. [Ch. 95 it as a wrought and completed part of the way, and this is a question of fact for the jury.^^ (2061) The court instructs the jury that if they believe from the evidence that the sidewalk, the alleged defects in which are said to have caused the injury here sued for, was constructed by the adjacent lot owners, and appeared to be in safe condition, the defendant cannot be held liable, unless the defendant had actual notice of the defect in the sidewalk and unless the jury believe from the evidence that the defect had existed for such a length of time that if defendant had exercised reasonable or ordinary care and diligence, it would or should have known of the defect in time to have repaired the same before the accident, by reason of which plaintiff sustained the injury here sued for, it being also the law, to be considered by the jury in connection with these instruc- tions in this case, that where a corporation permits a lot own- er to construct a sidewalk, it is the duty of such corporation to use ordinary care to see that it is constructed so as to be reasonably safe, and where a municipal corporation occupies and uses a sidewalk which has been constructed by such lot owner, it is the duty of such corporation to use ordinary care to determine whether it has been so constructed as to be rea- sonably safe for persons using it with ordinary care and prudence.^* Same — ^Bridge built by private individual. (2062) The court instructs the jury that even if such bridge was in a public street, it must be conceded that it was built by private individuals and was maintained by private individual^, in connection with their mill, and that the city had refused to consider the bridge a public structure, and al- though built in the public street, if it was simply and solely an appendage to and only useful as connected with 80 Approved In Whitford v. Inhabitants of Southbridge, 119 Mass. E64. so Village of Warren v. Wright, 103 111. 298. (854) Ch. 95] MUNICIPAL CORPORATIONS. [2063 the mill of , to the public only as dealing with mills, and was not, during the time it has stood there and up to the time of the accident, useful to the public gen- erally and used by them generally, in the course of ordinary travel along said street to and from places other than mills, then the city would not be liable for the injuries suf- fered by the plaintiff through the falling of said bridge. But on the other hand, if said bridge stood in the public highway and appeared to be a part thereof, and the approaches from the traveled part of the street led directly thereto and it ap- peared to any one traveling along the highway to be a part of the street in ordinary use, and if it had been and was in ac- tual use and utility generally to the traveling public and used by the general traveling public, then the city, if it had erected at or near the bridge no visible sign or monument warning the public that such bridge was not a part of the street, was under a duty so long as it permitted the bridge to remain in and as a part of the street, subject to general use and utility, to keep the same or see that the same was kept, in reasonable repair, so that it would be reasonably safe and convenient for public travel.*^ Latent defects. (2063) The court instructs the jury that a municipal cor- poration is not liable in damages for latent defects in a side- walk (here define latent defects). To render the municipal- ity liable, the defect must be of such a character that the mu- nicipal authorities by using ordinary care and diligence could discover it. If you shall find from the evidence in the case that the defect was of such a nature that the officials of the municipality could not have discovered it by using ordinary care and diligence, the defendant is not liable in damages and your verdict should be for the defendant.^* 87 Approved in Detwiler v. City of Lansing, 95 Mich. 484. 38 Shaw v. President & Trustees of Village of Sun Prairie, 74 Wis. 105. (855) 2064] MUNICIPAL CORPORATIONS. [Oh. 95 (2064) The court instructs the jury that if they believe from the evidence that the defect in the sidevcalk alleged in the declaration to have caused plaintiff's injury was latent, and that the place of the accident was in a reasonably safe condition as far as discoverable by the exercise of reasonable care on the part of the city, and if the jury further believe from the evidence that the original construction of the place of the accident was proper they should find for the defend- ant.39 Care required with regard to streets undergoing improvements. (2065) The court instructs the jury that it is for you to say whether, in making the improvement in this case, it was necessary to place the pile of rubbish complained of upon the streets, and whether it was necessary that it should remain there for a day or several days at a time. We refer to you to say whether or not, under all the circumstances, in view of all the testimony which was submitted in this case, there was such necessity.*" Defective bridges and approaches thereto. (2066) The court instructs the jury that if you find the fact to be that when plaintiff's horse was being driven across the bridge on the day in question, the passage from the to the approach was so steep that it was not rea- sonably safe, — whether the steepness was caused by the or by the as shown by the evidence, — ^but on account thereof the horse was overcome by the load, when he would not have been overcome if the incline had been more gradual, and shall also find that such incline might ive been made easier, on the part of the city, by the exercise of reasonable care and skill, and that this steepness and condi- tion caused the loss of the horse, then the city would be liable, provided the plaintiff and the driver were not guilty of want of ordinary care in the management of the horse and reason- 39 Hearn v. City of Chicago, 20 111. App. 249. 40 Approved in Frazler v. Butler Borough, 172 Pa. 407. (856) Ch. 95] MUNICIPAL CORPORATIONS. [2069 able time and opportunity to put the bridge in a safe condi- tion occurred, as I have stated.*' (2067) The court instructs the jury that from the testi- mony they will determine whether the city authorities used that care and skill which a prudent man would ordinar- ily use in like circumstances in making and keeping the bridge as shown to have been on , 19 — , with the surrounding facts ; and if they find such care and prudence to have been taken and used in keeping said bridge in the dimensions shown, looking to all the circumstances, — ^that is, if they find that the bridge was reasonably safe and sufiicient for the public, — then they will find for the defendant.*^ (2068) The court instructs the jury that the board of commissioners of the defendant county are chargeable with knowledge of the tendency of timbers to decay and it is in- cumbent upon the commissioners to use ordinary care in pro- viding against the timbers in a bridge becoming unsafe be- cause of the decay incident to age and long use. They are not bound, however, to do more than use ordinary care and diligence; and if they act with ordinary care and diligence there is no liability.** (2069) The court instructs the jury that the board of supervisors is charged by law with the duty of supervising and keeping the county bridges in repair. If the members of the board did not possess the requisite skill to discharge the duty of inspection, then it was the duty of the board to ap- point or provide some one possessing such skill, and to have all county bridges under their care examined as frequently as men of ordinary prudence and care would deem necessary for the safety of the traveling public, and as experience dem- " Approved In St. Clair Mineral Springs Co., Limited v. City ol St. Clair, 96 Mich. 463. *i Approved in Keating Implement & Machine Co. v. Marshall Elec- tric Light & Power Co., 74 Tex. 605. «> Approved in Apple v. Board of Commissioners of Marion County, 127 Ind. 555. (857) 2070] MUNICIPAL CORPORATIONS. [Ch. 95 onstrated the necessity of examination, and if the board failed to do this, such failure would be negligence.** Care required with regard to sidewalks. (2070) The court instructs the jury that it is the duty of the corporation to keep the streets of the city in repair, and this includes the sidewalks for persons on foot, as well as the roadways, and it is no answer to a complaint for injury caus- ed by a defect in the sidewalk, that there was a sutticient space thereon by which a safe passage might have been made, unless the injury might have been avoided by proper pru- dence on the part of the person injured, or unless negligence can be imputed to him as contributing to cause the injury.*'' (2071) The court instructs the jury that any person using a sidewalk, in constant use by the public, has a right to pre- sume, and act upon the presumption, that it is reasonably safe for ordinary travel throughout its entire width. In de- termining whether the city kept and maintained the side- walk in a reasonably safe condition, you may properly con- sider its unobstructed width, if any, as well as the width or portion of the sidewalk occupied by the .** Sidewalks in suburbs. (2072) The court instructs the jury that it is as much the duty of the city to keep the sidewalks in the suburbs of the city in a safe condition for the use of travelers, as those in the heart of the city ; that while the authorities may have a discretion in the matter of elegance of pavements, or in the matter of pavements or no pavements, yet they have no dis- cretion in the matter of safety ; and it is an absolute duty to keep all the sidewalks in the city in a reasonably safe condi- tion for the use of travelers, whether in the body of the city or near its limits.*^ ** Approved In Ferguson v. Davis County, 57 Iowa, 611. *6 Approved in City Council of Montgomery v. Wright, 72 Ala. 411. *o Approved in City of Indianapolis v. Gaston, 58 Ind. 224. " Approved in City Council of Montgomery v. Wright, 72 Ala. 411. (858) Ch. 95] MUNICIPAL CORPORATIONS. [2074 Defective crossings. (2073) The court instructs the jury that, if they find from the evidence that said crossing was not so reasonably safe for ordinary travel as aforesaid at the time of the alleged in- jury, to wit, on the night of the day of , 19 — ,, by reason of an opening between the stones in said crossing,, erected for and used as stepping stones therein ; and further find that the defendant had notice of such defect in such crossing or that the same had existed for a time prior to the time of said alleged injury, reasonably sufficient to have en- abled the defendant to have ascertained the fact and remedied said defect, and further find that on the night of said day last aforesaid, the said plaintiff's wife, , while walking over said crossing, and while in the exercise of ordinary care and caution fell into said opening, and was thereby injured,, and that her said fall and injury were caused by said alleged' defect in said crossing, then they must find for said plain- tiff.*8 Excavations and holes in streets. (2074) The court instructs the jury that, under the law the city of , defendant herein, is charged with the duty of maintaining its streets and alleys in a reasonably safe condition, so that those having occasion to use them may do so in safety. It was the duty of defendant to keep street in a reasonably safe condition at the point covered by the hole in question, by providing a reasonably safe and sufficient covering for said hole and by keeping the said hole covered. If the defendant failed to provide a covering for said hole reasonably safe and sufficient, in consequence of which the covering fell into the hole leaving the same un- covered and unprotected, then such an act on the part of the city was negligence. (Or if the defendant suffered said hole to remain without covering after knowing the same was open 48 Approved In Davenport v. City of Hannibal, 108 Mo. 471. (859) 2075] MUNICIPAL CORPORATIONS. [Ch. 95 or when by the exercise of ordinary care the defendant might have known that said hole was open, then such act of the defendant was negligence.) And if you shall believe from all the evidence in this case that the plaintiff while in the exercise of ordinary care fell into the hole on street, while attempting to cross said street, by reason of the neg- ligence of the defendant as in this instruction defined, and that by reason of such fall plaintiff sustained the injuries complained of, then your finding must be for the plaintiff.*' (2075) The court instructs the jury that it was the duty of defendant, the city of , to keep its alleys reason- ably safe for passage and travel thereon ; and if they believe from the evidence that the excavation mentioned in plaintiff's petition was made by defendant K. under authority of and by permission of the city of , and was made in the alley in the petition mentioned and that the same was through the negligence and carelessness of defendants or their servants or agents permitted to remain open and unprotected or insuffi- ciently guarded, and that plaintiff in passing along said alley on the night of , without any fault or negligence on his part, fell and was precipitated into said excavation and was injured thereby, they will find for plaintiff against both defendants.^" Openings into sewers and drains. (2076) The court instructs the jury that if the (drain) was a reasonably proper one in its manner of construction, and the leaving it uncovered and unfenced between the cross- ings of the streets and alleys was not reasonably liable to result in injury to persons passing and using ordinary care to be expected from those who usually travel streets in the city, the defendant would not be liable and you should re- turn your verdict for the defendant.**^ *» Approved in Barr v. City of Kansas, 105 Mo. 550. 60 Approved in Britten v. City of St. Louis, 120 Mo. 437. 61 Approved in City of Galveston v. Posnainsky, 62 Tex. 118. 5] MUNICIPAL, CORPORATIONS. [2086 same upon the walk and holds same there until it freezes, and the walk becomes dangerous by reason thereof, to persons using ordinary care in attempting to pass over same, or by ■ reason of snow or ice having accumulated on the walk from natural causes, and flowing water and snow from adjoining lands are dammed up and held upon the walk, and frozen there, and by reason thereof making the walk dangerous for persons using ordinary care in passing over the same on foot, then the city becomes liable for injuries caused by such ob- struction, provided the person injured did not contribute to his injury by negligence on his part and the obstruction has existed for an unreasonable length of time after the same be- came known to the city authorities, or ought to have been known to them in the exercise of reasonable care."* (2085) The court instructs the jury that if the sidewalk in question was constructed in a proper manner, sufficiently level and smooth for ordinary travel, without obstructions, and so built that it would not, by reason of any peculiarities of its construction, cause snow or ice to accumulate thereon, and if there was no accumulation of snow or ice thereon, and the accident was attributable solely to the slippery condi- tion of that part of the sidewalk, occasioned by a recent fall of snow, and that the sole cause of the accident was the tem- porary slipperiness of that part of the sidewalk caused by the recent fall of snow thereon, and that, in the absence of snow or ice, that part of the sidewalk, in its ordinary condition, was not unreasonably unsafe, such condition of the side- walk would not be a defect for which the city would be lia- ble."" Condition of street before or after injury. (2086) The court instructs the jury that the question as to whether or not the street and sidewalk at the place men- 69 Approved in Huston v. City of Council Bluffs (Iowa) 69 N. W. 1130. «o Approved in City of Chicago v. McGivenj 78 111. 347. (865) Inntr Juries — 55. 2087] MUNICIPA1> CORPORATIONS. [Ch. 95 tioned and described in the declaration in this case, was in a reasonably safe condition for the purpose of persons lawful- ly passing and repassing over and along the same, both by day and night, must be determined from the condition said sidewalk was in at the time the alleged injury complained of by the plaintiff was received by him, and not from its condi- tion before or after that time.'^ (2087) The court instructs the jury that the condition of the prior to the injury cannot b« considered by you in determining whether or not the city has been negligent, if you should find the complained of as dangerous, was on the evening of the alleged injury, barricaded or pro- tected so as to be reasonably safe to persons walking on the sidewalk, there in the exercise of due care, or such care as an ordinarily prudent man would exercise, taking into consider- ation the kind of night it was.®^ Effect of defects other than one causing injury. (2088) The court instructs the jury that, the evidence of the existence of loose boards other than the one upon which the plaintiff tripped, is not competent for your con- sideration for any purpose except as it may tend to show the want of the exercise of due care on the part of the defendant, which would have led to the discovery on its part, of the fact that the board upon which the plaintiff tripped was loose at the time of the injury.** Notice. (2089) The court instructs the jury that if they believe from the evidence that a defect existed in the sidewalk at tiie place alleged in the declaration, at the place where the plain- tiff received the injuries for which he here sues, and that such defects were apparent to a person examining the walk with Approved in Baltimore & O. R. Co. v. McKen^ie, 81 Va. 71, «i Approved in Baltimore & O. R. Co. v. McKenzie, 81 Va. 71. <2 Approved in Baltimore & O. R. Co. v. Pew's Bx'r, 94 Va. 82, (902) Ch. 97] NEGLIGENCE. [2183 prudence, placed in the same situation, would protatly have made, and injury results therefrom; the fact that if he had chosen the other hazard he would have escaped injury, does not show negligence.*^ (2181) The court instructs the jury that when one is placed, by the negligence of another, in a situation of peril, his attempt to escape danger, even by doing an act which is in itself dangerous and from which injury results, is not contributory negligence such as will prevent him from re- covering. If a man is in danger, and in order to avoid that danger, bona fide does something which is dangerous, that would not be considered in law contributory negligence.** Injury avoidable notwithstanding contributory negligence. (2182) The court instructs the jury that one who is in- jured by the mere negligence of another cannot recover any compensation for his injury, if he, by his own ordinary neg- ligence or willful wrong, contributed to produce the injury of which he complains ; so that, but for his concurring and co-operating fault, the injury would not have happened to him, except when the direct cause of the injury is the omis- sion of the other party, after becoming aware of the injured party's negligence to use a proper degree of care to avoid the consequences of such negligence.*" (2183) The court instructs the jury that notwithstanding the jury may find that the plaintiff was guilty of negligence, and that such negligence contributed to the injury of which she complains ; yet still if the agents of the defendant were aware of such negligence in time, by the iise of ordinary care and prudence to have avoided the effect of such negligence on her part, but did not do so, then such negligence on her «3 Approved in Wilson v. Northern Pac. R. Co., 26 Minn. 278. "Approved in Mitchell v. Charleston Light & Power Co., 45 S. C. 146. 4» Approved in Cooper v. Central R. Co. of Iowa, 44 Iowa, 134. (903) >184] NEGLIGENCE. [Ch. 97 part is not such contributory negligence as to constitute a de- fense to this action.*® Imputed negligence — Negligence of parent or custodian imput- able to child. (2184) The court instructs the jury that it was the duty of the plaintiffs, in the care and custody of their son, to have exercised such degree of care and prudence in keeping him off defendant's railroad track and out of danger which was reasonable and prudent under like circumstances, as shown by the evidence; and a failure to exercise such a degree of care and prudence would render plaintiffs guilty of neg- ligence.*^ (2185) The court instructs the jury that, as pertinent to the question of care on the plaintiff's part, as to the child, the jury may consider whether the deceased was of such tender years as to be likely to be inconsiderate and improv- ident and, therefore, to have required for its own safety, the control, oversight and vigilance of pa,rents or other ma- tured person; and if they so find, then they should inquire whether the parents or other matured person were exercis- ing, when the death happened, a care and prudence as to the person of the deceased which judicious and careful parents, or persons having care of a child of like age, ought to exer- cise.** (2186) The court instructs the jury that, if they find the deceased was of such an age as to require the custody of his parents to insure his personal safety when in the streets ; and if it appears from the evidence that his parents knew there was such a dangerous place as the tank, and negligently permitted the deceased to stray and wander in the streets by 46 Approved in Philadelphia, W. & B. R. Co. v. Hogelans, 66 Md. 149. ■"Approved in Schmitt v. Missouri Pac. Ry., 20 Am. & Eng. Ry. Gas. (N. S.) 216. 48 Approved in City of Chicago v. Major, 18 111. 349. (904) Ch. 97] NEGLIGENCE. [2189 himself, near such tank, they did so at their own peril, and their neglect must be imputed to the infant, and no recovery can be had by the plaintiff.*' (2187) The court instructs the jury that it does not neces- sarily follow, because a parent negligently suffers a child of tender age to cross a street, that therefore the child cannot re- cover. If the child, without being able to exercise any judg- ment in regard to the matter, yet does no act which prudence would forbid and omits no act that prudence would dictate, there has been no negligence which was directly contributory to the injury. The negligence of the parent in such a case would be too remote.^" (2188) The court instructs the jury that, if they believe from the evidence in this case that the plaintiff permitted his decedent , a boy about nine years of age to go from his home at after, or to get, his elderberries, but did not know that he was going to ride on a handcar ; he, the plaintiff, is not by reason of such permission guilty of contributory negligence, and the defendant cannot be relieved from liability solely because the plaintiff thus permitted his said son to go from home."* Same — Negligence of driver of vehicle. (2189) The court instructs the jury that every person is bound to know that a railroad crossing is a dangerous place, and he is guilty of neglect unless he approaches it as if it were dangerous. If S., the driver of the team in question, knew the crossing where the accident complained of occurred was a dangerous one, he was bound to know that a train might be approaching ; and if he did not look or listen to ascertain if one was coming, but, on the contrary, drove directly on the track, and the accident resulted, he was guilty of such neg- *9 Approved in City of Chicago v. Major, 18 111. 349. »o Approved In Wlswell v. Doyle, 160 Mass. 42. 51 Approved in Davidson v. Pittsburg, C, C. & St. L. Ry. Co., 41 W. Va. 407. (905) 2 190 J NEGLIGENCE. [Ch. 97 ligence as precludes the plaintiffs fr&m recovering in this case, unless the plaintiffs have gone further and proven to the satisfaction of the jury that the railway company upon siich, occasion was guilty of gross negligence.*^ (2190) The court instructs the jury that, if the evidene© in this case shows that S., the driver, took the risk of cross- ing in front of the engine before it could strike him and in this he was mistaken, that he miscalculated, and from any cause of his own was not able to pass safely in front, the plaintiffs must bear the loss, and the jury must find for the defendant.** (2191) The court instructs the jury that if they find from the preponderance of the evidence that the plaintiff was in- jured as charged in her declaration by reason of the alleged negligence of the defendant; and that at, and before, the time of receiving such injury the plaintiff was in the exercise of ordinary care and caution for her own safety ; and that, when injured, she was riding in the cutter in question as the in- vited guest of B. ; then, even though it should appear that said B. was guilty of some want of care that contributed in some measure toward the bringing about of the accident in question, such want of care, if any, on the part of said B., will not be imputable to the plaintiff.** (2192) The court instructs the jury that, if the jury find from the evidence that W., the driver on the occasion in question, failed to exercise even a slight want of ordinary care, in consequence of which the plaintiff was thrown from the wagon and was injured, then the plaintiff is not entitled to recover.** (2193) The court instructs the jury that, if they believe 52 Approved in Chicago & N. W. R. Co. v. Hatcti, 79 III. 137. 03 Approved in Chicago & N. W. R. Co. v. Hatch, 79 111. 137. Bi Approved in West Chicago St. R. Co. v. Fetters, 25 Am. & Eng. Ry. Cas. (N. S.) 612. o» Otis V. Town of Janesville, 47 Wis. 422. (906) Ch. 97] NEGLIGENCE. [2196- from the evidence that the plaintiff was riding in a vehicle driven by the owner of the vehicle, over which she neither assumed nor exercised any control, and over which she had nO' control ; and she was injured in a collision at a railway cross- ing on the public highway by a railway train, without any neg- ligence on her part, if the negligence of the driver in driv- ing upon the crossing contributed to said injury; then said contributory negligence cannot as a matter of law be imputed to her.^* Burden of proof of contributory negligence. (2194) The court instructs the jury that the burden of proof is on the plaintiff. He must show, or there must ap- pear from the evidence, not only negligence on the part of the defendant, but that the care and circumspection demanded in relation to the party injured was properly exercised, so as to indicate that plaintiff's own negligence, if of sufficient age and experience to exercise caution, or that of those who were bound to care for the party injured, if not able to exercise it for himself, did not contribute to produce the injury com- plained of.^^ (2195) The court instructs the jury that the plaintiff' must show that the negligence of the defendant, or its em- ployees, caused the injury complained of, and that plaintiff in no way directly contributed to the injury.^^ (2196) The court instructs the jury that the burden of proof is on the plaintiff to show both the negligence of the defendant and the care of the deceased ; that is, such care as a child of his age and discretion would naturally use. But she is not bound to do more than raise by her proof a reason- able presumption of negligence. If the facts proved make 58 Approved in Atlantic & D. R. Co. v. Ironmonger, 95 Va. 625. 07 Approved in City of Chicago v. Major, 18 III. 349. 08 Approved in Locke v. S. C. & P. R. Co., 46 Iowa, 109. Use of word "directly" was objected to. (907) 2197] NEGLIGENCE. [Ch. 97 it probable that tbe defendant neglected its duty, it is for the jury to decide whether or not it did so.®* (2197) The court instructs the jury that, in order to de- feat a recovery in this suit on the ground of contributory negligence upon the part of the plaintiff, the burden of proof is upon the defendant to show that the plaintiff was guilty of negligence, and that such negligence on her part directly con- tributed to produce the injury.*" (2198) The court instructs the jury that, in order to de- feat a recovery on the ground of contributory negligence oil plaintiff's part, the defendant must satisfy the jury by -pre- ponderating evidence of two facts : first, that the plaintiff was negligent; and second, that such negligence directly contrib- uted to the injury.** (2199) The court instructs the jury that the plaintiff, M., is presumed to have exercised due and proper care at the time ■of the wreck at which he was injured, and the burden of prov- ing he was negligent is upon the defendant.*^ (2200) The court instructs the jury that by the term "ordinary care and prudence," as used in these instructions, is meant that degree of care that would be used by a person of ordinary prudence under the same or similar circum- stances ; and a failure to exercise ordinary care as so defined is negligence. The burden of proving that J. G. did not exercise ordinary care to avoid the collision and injury which resulted in his death, is upon defendant.'* ISO Approved In McMillan v. B. & M. R. Co., 46 Iowa, 231. «o Approved in Philadelphia, W. & B. R. Co. v. Hogeland, 66 Md. 149. 61 Approved in Philadelphia, W. & B. R. Co. v. Anderson, 72 Md. 519. «2 Approved in Baltimore & 0. R. Co. v. McKenzle, 81 Va. 71. «s Approved in Guinney v. Southern Electric R. Co., 25 Am. & Eng. Ry. Cas. (N. S.) 820. <908) Oh. 98] NEGOTIABLE INSTRUMENTS. [2301 CHAPTER XCVIII. NEGOTIABLE INSTRUMENTS. Consideration, 2201-2204. Same — Evidence of consideration as between parties, 2205. Same — Note given for satisfaction of another's debt, 2206. Same — Burden of proof of consideration, 2207. Same — Note given to settle criminal offenses, 2208, 2209. Liability as dependent on time of signing, 2210. Delivery in violation of instructions, 2211. Liability on notes signed "I" or "we" promise to pay, 2212. Checks — Liability of drawer, 2213, 2214. Drafts, 2215. Accommodation notes, 2216-2218. Same — Liability where note retained by principal debtor, 2219, 2220. Same— Qualified delivery, 2221, 2222. Same — Diversion of note from its purpose to one having knowl- edge, 2223. Same— Burden of proof, 2224. Liability of indorser in general, 2225-2228. Whether liability that of indorser or joint maker, 2229, 2230. Blank indorsement, 2231. Service of notice of dishonor — Failure cured by subsequent ac- knowledgment of liability, 2232-2235. Burden of proof as to character in which note is signed, 2236. Bona fide purchasers, 2237, 2238. Same — Presumptions and burden of proof, 2239, 2240. Collateral security, 2241, 2242. Payment, 2243. Lost or destroyed notes, 2244. Right of receiver to sue on note, 2245. Plea of usury in action on note by purchaser, 2246, 2247. Prima facie case made by introduction of notes, 2248, 2249. Parol evidence to show agreement as to liability, 2250. Form of verdict, 2251. Consideration. (2201) The court instructs the jury that the legal effect (909) 2202] NEGOTIABLE INSTRUMENTS. [Ch. 98 ■of the deed of trust (whieli has been read in evidence), and the said notes recited in said deed, is to indicate a transac- tion in which B. issued the said notes as part payment of the purchase price of certain land in . I'he jury is further instructed, that by his answer in this case defend- ant admits that the title to the land (described in the deed of trust) was conveyed to defendant before said deed of trust was executed by defendant. The court instructs you that the right to possession of said land, which defendant acquired by the admitted conveyance of title to him by S., was, if so intended by him and the officers of the bank with whom he had the transaction, a valuable consideration for the notes mentioned in the deed of trust and sued upon in this case.^ (2202) The court instructs the jury that referring to the first count (or claim on the $5,000 note), if they find and be- lieve from all the evidence that said note was signed and de- livered by B. to the bank, (or to S. as its president,) in order to raise funds for the benefit of the Company, and that said company accordingly obtained a credit with the bank for $5,000 by reason of the said giving of said note by B., then said note is, in law, based on a valuable consideration; ,and if the jury find the facts to be as above stated, they should find for the plaintiff as to the $5,000 note, and interest to ■date at the rate mentioned in said note.* (2203) The court instructs the jury that as a rule, where there is no fraud, and a party receives all the consideration he contracted for, the contract will not be set aside for want or failure of consideration ; and where the value of the considera- tion is indefinite and uncertain, the parties have a right to determine it for themselves, and courts and juries ought not to overturn their decisions upon its sufficiency ; and whether one contracts for the performance of an act, or several acts, which will afford him pleasure, gratify his ambition, or please 1 Approved In Chicago Title & Trust Co. v. Brady, 165 Mo. 197. 2 Approved in Chicago Title & Trust Co. v. Brady, 165 Mo. 197. .{910) Ch. 98] NEGOTIABLE INSTRUMENTS. [2306 his fancy, his estimate of the value should be left undis- turbed. And the fact that love and affection or kinship may have been a part of the consideration, cannot defeat the plain- tiff's right of recovery.* (2204) The court instructs the jury that it is contended on the part of the defendants that if the said D. executed said note to the plaintiff, he did it upon the consideration that the plaintiff would quit the patent-right business, go home and stay with his family, and sell no more patent-rights oi gates as long as D. lived ; but the defendants further contend that the consideration of said note has failed, and that the plaintiff, after the making of said note, sold patent-rights and gates, and therefore said note is void. The burden of proof is on the defendants to prove this contention by a pre- ponderance of the evidence. In order to defeat the collection of said note under this branch of the defendants' contention, the defendants must prove by a preponderance of the evi- dence that all said consideration failed. If all the consider- ation of said note did not fail, then the note is valid so far as the consideration is concerned.* Same — ^Evidence of consideration as between parties. (2205) The court instructs the jury that as between the maker and the payee of a promissory note, oral evidence touching the consideration thereof may be considered by you ; and if you find from the evidence in this case that the defend- ant B. received no consideration for the signing of the notes sued on, and that the same were made for the accommoda- tion of the G. S. Bank, then your verdict should be for the defendant." Same— Note given for satisfaction of another's debt. (2206) The court instructs the jury that if H. owed to • Approved in Ray v. Moore, 24 Ind. App. 480. « Approved In Ray v. Moore, 24 Ind. App. 480. « Approved In Chicago Title & Trust Co. v. Brady, 165 Mo. 197. (911) 2207] NEGOTIABLE INSTRUMENTS. [Ch. 98 the plaintiff the amoTint of the note sued upon, and if the property of H. was under the control of the defendant ; and if, at the request of H., the defendant gave to the plaintiff the note used upon in satisfaction of the debt of H., to the plaintiff, and the plaintiff accepted the note as such satisfac- tion; then the note was given upon sufficient consideration, and the plaintiff is entitled to recover the amount due upon the note. What are the facts the jury must determine from the evidence, and from that alone; and nothing in any in- struction is to be taken as any intimation by the court as to what any of the facts are.* Same — Burden of proof of consideration. (2207) The court instructs the jury that the burden of proof was on the plaintiff to show that the note was given upon a valuable consideration, and that, if that was doubtful upon the whole evidence, he could not recover ; that proof of the execution of the note and its production in evidence made a prima facie case for the plaintiff, upon which they might find a verdict for him, unless the defendant introduced evi- dence which showed either that it was not given for a valuable consideration, or that the consideration had failed, or evi- dence to render it doubtful in their minds whether it was given on a valuable consideration; and that if not so given, or if it was doubtful whether it was given for a valuable con- sideration, either for want of consideration or for failure of consideration, the plaintiff could not recover.'' Same — Note given to settle criminal offenses. (2208) The court instructs the jury that to entitle the de- fendant to a verdict, you must believe from the evidence that there was a mutual understanding between C. and the de- fendant that the criminal prosecution should be suppressed. It will not be sufficient that defendant was induced to give Approved in Harris v. Harris, 180 111. 157. ' Approved In Burnham v. Allen, 67 Mass. (1 Gray) 496. (912) Ch. 9SJ NEGOTIABLE INSTRUMENTS. [2212 said note by understanding the prosecution would be sup- pressed, unless C. also so understood; defendant will not be enabled to avoid tbe note on the ground that C. was induced to abstain from prosecuting K. by the giving of this note, un- less there was a mutual understanding as aforesaid.* (2209) The court instructs the jury that a note to settle an embezzlement or a shortage of an agent is valid and good, if it was given to settle the indebtedness or shortage, and if there is no agreement to stifle the prosecution for the em- bezzlement.* Liability as dependent on time of signing^. (2210) The court instructs the jury that it would make no difference with the liability of as the maker of the note that it was not signed by him at the time it was original- ly made by . His liability would be the same if he subsequently signed it and sold and delivered it to the plain- tiff for a valuable consideration, as if he had signed it when first made.-"' Delivery in violation of instructions. (2211) The court instructs the jury that although the wit- ness, T., delivered the note in suit to witness, Y., in violation of the instruction of defendants, and although he communi- cated his instructions to witness, Y., at the time of such de- livery, yet, if the jury find and believe from the evidence that after said delivery, and after having knowledge that H. had not signed said note, defendants approved and adopted as their own the act of said T. in making said delivery to said Y, the verdict should be for the plaintiff.^^ liability on notes signed "I" or "we" promise to pay. (2212) The court instructs the jury for the plaintiff, that > Approved in Clark v. Pomeroy, 94 Mass. 557. 9 Approved in Wolf v. Troxell's Estate, 94 Mich. 575. 10 ApiJroved in Cook v. Brown, 62 Mich. 473. 11 Approved in Hurt v. Ford (Mo.) 36 S. W. 671. Instr. Juries — 58. (913) 2213] NEGOTIABLE INSTRUMENTS. [Ch. 98 where a note is signed by two persons, both are equally liable, and either one or both may be sued thereon ; and it makes no difference whether the note read, "I promise to pay," or "we promise to pay," or "we either of us promise to pay."'" Checks-Liability of drawer- (2213) The court instructs the jury that, where all the parties reside in the same place, the presentation of a check drawn on a bank and received in the usual course of business, is deemed within a reasonable time if made during banking hours of the next day after it was so received ; and it is the same whether the check be certified by the bank to be good or not, so far as the drawer of the check is concerned. If the ]ury, therefore, believe from the evidence in this case that the checks in evidence in this cause were taken by plaintitts in the usual course of business, and were sent to the bank on which they were drawn during banking hours of the next day after they were received; and the said bank had before then, and has since, been closed, and had, and has, stopped business; then the court instructs the jury that such effort to present the checks is equivalent to a presentation of the checks, and is within reasonable time to charge the defendant upon the said checks.'* (2214) The court instructs the jury that, if they be- lieve from the evidence in this cause that the plaintiffs re- ceived of the defendant on the afternoon of the day of , 19 — , the two drafts or cheeks given in evidence, in order to take up two promissory notes of the defendant, of amounts corresponding with the respective amounts of said checks, and the plaintiffs then and there held said notes for an eastern bank for the mere purpose of collection, and, at the time of receiving said checks, plaintiffs delivered up to de- fendant his said notes, and on the same day remitted the 12 Approved in Broadwell v. Sanderson, 29 111. App. 384. IS Approved in Rounds v. Smith, 42 111. 245. (914) Ch. 98] NEGOTIABLE INSTRUMENTS. [2215 amount thereof to the party from whom' they received said notes ; and if the jury further believe from the evidence that, immediately after the commencement of hanking hours on the next day after receiving the said cheeks, and soon after ten o'clock A. M. of the day of , 19- — , the plaintiffs' teller took said cheeks to the banking office and usual place of business of the , named as drawee in said respective checks, for the purpose of presenting the same at said bank for payment, but was unable to obtain payment of said cheeks, or either of them, by reason that said bank was closed and had stopped payment, and that plaintiffs immediately and on the same day last aforesaid, gave the said defendant notice of the said matters and the non-payment by said bank of said checks; then the defend- ant is liable to the plaintiffs for the amount specified in ;said cheeks, and the jury will find for the plaintiffs accord- ingly, with interest on the amount at the rate of six per eentum per annum after the day of , 19 — (the day of presentment).^* Drafts. (2215) The court instructs the jury that, if you find from the evidence that the defendants agreed to accept only one ■draft, and no more ; then you are instructed that, if you find from the evidence that the draft sued on was given for the •cost of cattle which were consigned to the defendants, and that the defendants were notified of said draft by the holders ■thereof, and were asked to pay the same before receiving the •cattle against which they were told it was drawn ; and that, thereafter, the defendants received and sold the cattle against which they understood said draft was drawn, and received the proceeds of said cattle ; then you will find the issues in this case for the plaintiff.^" " Approved in Rounds v. Smith, 42 111. 245. 15 Approved in Hall v. First Nat. Bank o£ Emporia, 133 111. 234. (915) 2216] NEGOTIABLE INSTRUMENTS. [Ch. 98 Accommodation notes. (2216) The court instructs the jury that, under the plead- ings and evidence, the defendant has admitted the execution of all the notes sued upon by plaintiff in this case, and has admitted that plaintiff is the legal owner and holder of said notes. It is, therefore, the duty of the jury to find for the plaintiff as to each or all of said notes, unless the jury believe from the evidence that some one or more of said notes was obtained by the bank as a matter of accommodation, as ex- plained in other instructions.-'® (2217) The court instructs the jury that if they find from the evidence that B. did, at the request of the officers in charge of the management of the Bank, sign and de- liver any of the notes in question in this case for an accom- modation to the said bank, then as to such notes so signed by B., the plaintiff, cannot recover.^'' (2218) The court instructs the jury that, if you believe that the makers of the note sued on were such accommoda- tion makers, and that this was known to the cashier or presi- dent of the plaintiff's bank at and before the bank received said note ; and if you also further believe from the evidence that at and before said note was delivered to plaintiff it had the shares of stock as claimed by , defendant, and at and before , defendant, signed said note plaintiff, through its cashier, agreed with , defendant, and the president of the Company, for such company to hold such shares also as security for the note sued upon; and after so doing, if it was done, the Company, by and through its president , made the instrument read in evidence to you dated day of . , 19 — , without the knowledge or consent of , defendant; and that after- wards E., acting under said agreement and being cashier of said bank possessing said shares of stock, sold or attempted 18 Approved In Chicago Title & Trust Co. v. Brady, 165 Mo. 197. 17 Approved In Chicago Title & Trust Co. v. Brady, 165 Mo. 197. (916) Ch. 98] NEGOTIABLE INSTRUMENTS. [2221 to sell under said writing dated day of , 19 — ; then, and in that event, you should find for the defendant, ; but if you should not so find, then, as to this branch of the case, you will disregard said defense.^® Same — Liability where note retained by principal debtor. (2219) The court instructs the jury that, if you find from the evidence that B. signed the notes sued upon in this case as an accommodation maker for the G. S. Bank, and deliver- ed the notes to the bank, or one of its officers for the bank, he cannot be held liable thereon, no matter how the bank may have dealt with the notes, so long as it retained owner- ship and control thereof; and even though you find that the bank, after the notes were delivered to it, gave S. the benefit of the whole or a part of the benefit thereof, this fact would not render B., the defendant, liable on the notes. And, in this connection you are instructed that the possession of the receiver, is the possession of the bank.*® (2220) The court instructs the jury that, as between the party accommodated and the party accommodating, the lat- ter can be under no liability to the former whatever by the relation \v which they are placed upon the paper; and in fhis case, if you find from the evidence that B. was, in fact, an accommodation maker of the paper sued on, then he can- not be held liable, no matter in what form the transaction was put.^" Same — Qualified delivery. (2221) The court instructs the jury that if this note was made out and signed by S., or S. and either of the next two defendants, and passed over to A. as a fully-executed note; and he thereupon delivered over the personal property which this note was given for to S., and he took possession of it ; and " Approved in Smith v. Traders' Nat. Bank, 74 Tex. 457. 19 Approved in Chicago Title & Trust Co. v. Brady, 165 Mo. 197. s» Approved in Chicago Title & Trust Co. v. Brady, 165 Mo. 197. (917) 2222] NEGOTIABLE INSTRUMENTS. [Ch. 9^ then afterwards A. carried this note to H., and he signed his name to it ; that signature was utterly void. It was without consideration, and it would be of no consequence ; and your verdict should be for the defendant.^* (2222) The court instructs the jury that, if you find — ^to make it more specific — that when this note was drawn and signed by S. there was no understanding and agreement on the part of H. with the other defendants that he was to sign the note with them, and that the payee did not accept the note as signed, but merely took it into his possession tem- porarily in order to procure the other signers, and that he did not turn over this personal property to S. until after all the others had signed it, then your verdict should be for the plaintiff.2=^ Same — ^Diversion of note from its piapose to one having knowl- edge. (2223) The court instructs the juiy that where an ac- commodation note is diverted from the purpose for which it was given, one who takes it with knowledge cannot recover from the accommodation party ; and in this case, the receiver possesses as a matter of law all the knov?ledge that the G. S. Bank possessed upon the subject of this note.^* Same — ^Burden of proof. (2224) The court instructs the jury that the burden of proof is upon this defendant in this case, and unless the jury believe from the evidence that defendant has established, by a preponderance of the testimony, his allegation in the an- swer that said notes (or some of them) were given for the accommodation of said bank, (as explained in other instruc- tions,) then your verdict should be for the plaintiff as to all of the notes sued upon in this case.** n Approved In Steers v. Holmes, 79 Mich. 430. »2 Approved in Steers v. Holmes, 79 Mich. 430. 2« Approved in Chicago Title & Trust Co. v. Brady, 165 Mo. 197. i* Approved In Chicago Title & Trust Co. v. Brady, 165 Mo. 197. (918) Ch. 98] NEGOTIABLE INSTRUMENTP [2228 liability of indorser in general. (2225) If the jury believe from the evidence that the de- fendant in this case placed his name on the back of the note here sued on, after the note transaction was completed, and the note had been delivered to plaintiff, then the jury are in- structed, as matter of law, that a new consideration must be alleged and proved to support this action; and no evidence having been offered of any new consideration, the jury should find for the defendant.'"* (2226) The court instructs the jury that, unless they find from the evidence that the name of the defendant was on the back of the note before it was delivered to plaintiff, then the liability of the defendant was a part of the consideration for the loan to , and the jury should find for the de- fendant, unless they shall find from the evidence that a new consideration passed from plaintiff to the defendant.*® (2227) The court instructs the jury that, if they believe from the evidence in this case that the defendant, at the time he indorsed his name on the back of the note offered in evi- dence, or during the time the plaintiff and defendant were negotiating about the same, or even after the defendant hand- ed said note to the plaintiff and while they were yet negotiat- ing about the same, that the defendant, W., agreed to pay said note if C, the maker of said note, did not, or words to that effect ; then he is liable to pay said notes if C. did not, and it was not necessary for the plaintiff to notify the defendant of such non-payment ; and the jury should find a verdict for the plaintiff and assess his damages at the amount due on said note.*^ (2228) The court instructs the jury that, if they believe from the evidence in this case that the defendant, W., trans- ferred the note offered in evidence, made by 0. and payable 20 Approved In Parkhurst v. Vail, 73 111. 343. 2« Approved In Parkhurst v. Vail, 73 111. 343. '■^ Approved In Worden v. Salter, 90 111. 160. (919) 2229] NEGOTIABLE INSTRUMENTS. [Ch. 98 to the defendant, W., by indorsing his name on the back of said note, and at the time he delivered it to plaintiff, agreed if C, the maker of said note, did not pay it he would ; and if the jury believe said C. did not pay said note; then de- fendant would be liable to pay the same ; and the jury should find a verdict for the plaintiff and assess his damages at the amount of principal and interest due on said note, unless the defendant has sho^vn that plaintiff has been guilty of neg- ligence, and that defendant has suffered loss thereby.^* Whether liability that of indorser or joint maker. (2229) The court instructs the jury that, if they believe from the evidence in this case that indorsed his name on the back of the note sued on in this case as indorser and not as joint maker thereof, and that at the time said note was delivered to the plaintiff he knew the said indorsed the said note as an indorser thereon, and not as a joint promisor ; and that the said plaintiff had said note regularly protested and had notice sent to the said as indorser of such protest ; then the jury may consider said facts along with the other evidence in the case, and that if therefrom they believe from the evidence that the said was an in- dorser on the note sued on, and not a joint maker, or promisor, they should find for the defendant.^® (2230) The court instructs the jury that, the note being by these terms payable to or bearer, would make it payable to any lawful holder without any indorsement by . 'No such indorsement would be necessary to enable such holder to collect it or maintain a suit thereon in his own name. He being named as payee in the note, therefore, 28 Approved in Worden v. Salter, 90 111. 160. This Instruction was criticised on the ground that it omitted the element of a consideration for the alleged guaranty and It was held that the Instruction should be construed in the light of the evidence, which showed a sufficient consideration. 20 Approved In Roanoke Grocery & IVIilling Co. v. Watkins, 41 W. Va. 787. (920) Ch. 981 NEGOTIABLE INSTRUMENTS. [2233 offers no presumption that his signature at the bottom of the note was made as indorser, and not as maker.'* Blank indorsement. (2231) The court instructs the jury that, if they shall be- lieve from the evidence in the cause that defendants signed their names to the note sued on ; and that plaintiff is in pos- session thereof, and that the same is endorsed by the Company to plaintiff in blank ; that is to say, that the name of the assignee is left out of the assignment thereon ; then those facts constitute, in law, prima facie evidence that the holder thereof is the owner, and that it took the said note for value received before it became due and in the regular course of business; and the court instructs the jury that in that case they should find a verdict for plaintiff for the full amount of the note sued on and the interest thereon, unless they should further believe from the evidence in the case that the words "or bearer" were inserted in said note by the said Company, or by plaintiff after the said note was ex- ecuted and delivered to said company or its agents, or after it was assigned and delivered to plaintiff.'^ Service of notice of dishonor— Failure cured by subsequent ac- knowledgment of liability. (2232) The court instructs the jury that, even if the de- fendant was an indorser of the note, and not a maker, and if no notice of the nonpayment of the note was given him, at the time required to make him liable, if he subsequently, with knowledge of the fact that such notice had not been given, promised to pay or "fix it up," or any equivalent words, meaning thereby to arrange for its payment ; this would be a waiver of the want of notice, and he would be liable as though the notice had been duly given.^^ (2233) The court instructs the jury that, if they shall »o Approved in Cook v. Brown, 62 Mich. 473. 31 Approved in Lewiston Sav. Bank v. Lawson, 87 Mo. App. 42. «2 Approved in Cook v. Brown, 62 Mich. 473. (921) 2234] NEGOTIABLE INSTRUMENTS. [Ch. 98 find from the evidence that the said notary did use reasonable diligence to ascertain the residence or place of business of the makers of said note as set out in its first instruction, but did not use reasonable diligence to ascertain the dwelling or place of business of the defendant; that then the notice de- posited in the postofiice, as aforesaid, is not sufiicient to hold the defendant, and the plaintiffs are not entitled to recov- er, unless the jury shall further find from the evidence that the notice so deposited in the postofiice, as aforesaid, did ac- tually reach the defendant on that or the succeeding day; or unless they shall find from the evidence that subsequently to the day of the protest of said note, said defendant promised the plaintiffs or their attorney to pay the amount of said note, with a knowledge of the fact that notice of non-payment had not been regularly given to him.^' (2234) The court instructs the jury in this case that, if they shall find from the evidence that the promissory note offered in evidence was drawn by & , co-part- ners, and that they were residents of the city of at its maturity, and that said note was indorsed by the defendant, also a resident of the city at its maturity ; and that upon the maturity of said note it was not paid, and that it was deliv- ered by the cashier of the Bank to , notary public, for protest ; and that the said notary used reasonable diligence to ascertain the residence or place of business of the drawers of said note, and could not ascertain the same; and if they shall also further find from the evidence that the said notary did, also, use reasonable diligence to ascertain the residence or place of business of the defendant, the in- dorser, and could not ascertain the same; and that on the same day he addressed a written notice to the defendant in- forming him of a demand on the said drawers and of the non-payment of said note ; and that said defendant was held responsible for the payment of the same, and directed said 88 Approved in Staylor v. Ball, 24 Md. 183. (922) Ch. 98] NEGOTIABLE INSTRUMENTS. [2237 notice to the defendant and deposited the same in the postoffice on the same day as set out in the protest offered in evidence; that, then, the plaintiffs are entitled to recover.^* (2235) The court further instructs the jury that, if they find from the evidence that the said notary did not use rea- sonable diligence to ascertain the residence or place of busi- ness of the makers of said note, if residents of the said city at its maturity; then no legal demand in this case has been made on the makers of said note, and the plaintiffs are not entitled to recover, unless they shall further find from the- evidence that subsequently to the protest of said note, the de- fendant, the indorser, promised the plaintiffs or their attorney to pay the amount of said note, veith a knowledge of the fact that no legal demand had been made on the drawers for pay- ment.*^ Burden of proof as to character in which note is signed. (2236) The court instructs the jury that, it is claimed by the defendant that though the name of the defendant ap- pears on the note in the place of a maker, it was understood and agreed that it was only to stand as indorser, and that only until the note became due. The burden of proving such an agreement is on the defendant, who sets it up, and to prove it by a preponderance of testimony. It is not enough that one party so understood and intended it. It must appear that both concurred in it and so agreed. To make a contract re- quired the meeting of the two minds. Without this, it was no contract.^* Bona fide purchasers. (2237) The court instructs the jury that, if you believe from all the evidence given in the case that the plaintiffs in this action bought this note in the usual course of business,. «* Approved In Staylor v. Ball, 24 Md. 183. 85 Approved In Staylor v. Ball, 24 Md. 183. 80 Cook V. Brown, 62 Mich. 478. (923) 2238] NEGOTIABLE INSTRUMENTS. [Ch. 98 before its maturity, from M. and 0. ; and that at the time they purchased the same they had no knowledge of such facts as put them on inquiry, and that they gave or parted with a valuable consideration for said note; then the plaintiffs are entitled to recover the amount of said note with interest there- on, according to its tenor, and reasonable attorney's fees.*^ (2238) The court instructs the jury that inland bills of exchange and promissory notes, payable in a bank in this state, are governed by what is called the law merchant ; that is to say, as applicable to the issues raised in this cause. If you believe from all the evidence in the case that the plain- tiffs, in the usual course of business, purchased from M. & C. the note sued on for a valuable consideration before the ma- turity of said note, without any notice of any defense or equity existing against the same, and that at the time of their purchase they had no knowledge of such facts as put them up- on inquiry ; then they are entitled to recover, even though as between the defendant and the original payees of the note there existed equities in favor of the defendant.** Same — Presumptions and burden of proof. (2239) The court instructs the jury that in the absence of evidence, the holder of a promissory note indorsed by the person to whose order it is made payable is presumed to be & holder in good faith, and entitled to recover. Such pre- sumption may be rebutted or overcome by evidence from which the jury believes either that the note was transferred by the payee after due, or that the party to whom it was trans- ferred took it with notice of the defense thereto.*® (2240) The court instructs the jury that in order to de- feat a recovery by the plaintiff bank, it is incumbent on the ■defendant to establish by a preponderance of the evi- 87 Approved In Warren v. Syfer, 23 Ind. App. 167. 88 Approved In Warren v. Syfers, 23 Ind. App. 167. Held, not open to objection that It falls to state rules as to bona flde pur- cliasers acting in good faith. 80 Approved In Mahaska County State Bank v. Crist, 87 Iowa, 415, (924) Ch. 98J NEGOTIABLE INSTRUMENTS. [2242 dence, first, the truth of the defense whieh he has pleaded against the note in suit; and, second, the fact that the bank purchased the note with notice of such defense, or that it made such purchase after the note became due. If both these propositions have been so established, then plaintiff can- not recover ; but, if either proposition has not been so estab- lished, then plaintiff will be entitled to your verdict for the full amount of the note in suit.*" Gollateial security. (2241) The court instructs the jury that if you find from the evidence that the plaintiff bank received the note in good faith and before it was due, as a collateral security for a loan made to -= , and that said loan is still unpaid, then plaintiff will be entitled to a verdict, that is, the holder of a note as collateral security for the payment of a loan made at the time the collateral security is deposited is to be treated as a purchaser, and if he receives such collateral in good faith, and before due, he holds it free from the defenses to which it would be liable in the hands of original holders to the same extent.*^ (2242) The court instructs the jury that, where shares of stock in a corporation are pledged as collateral security for the payment of a debt, that the pledgee or person holding such stock has the right to surrender the certificate pledged and have other certificates for the same number of shares issued in his name, and where the pledgee is a bank, the certificate may be issued to and held by its cashier. If, therefore, you believe from the evidence that there was an agreement be- tween the plaintiff and the defendants, or either of them, that such shares of stock should be held by the plaintiff as col- lateral for the payment of the note sued upon; and if you further believe that the same were by the plaintiff surrender- ed and other certificates issued to one , yet if you be- *o Approved in Mahaska County State Bank v. Crist, 87 Iowa, 415. *i Approved in Mahaska County State Bank v. Crist, 87 Iowa, 415. (925) -2243] NBaOTIABLB INSTRUMENTS. [Ch. 98 iieve he intended thereby to hold such stock and did hold die same under said agreement, if any, then the change in the certificates so made would not be in law an alteration or ■change of the contract, and would be no defense to the mak- ers of the note for which such security was held.** Payment. (2243) The court instructs the jury that the burden of proof is upon the defendant to prove, by evidence preponder- ating in his favor, that the money mentioned in the promis- sory note in suit has been paid to plaintiff. And the jury are instructed that the fact that F. did not present the check in question to the bank for payment until two or three days had elapsed after it was drawn, can not affect the plaintiff's xight to recover, if the jury shall believe from the evidence that D., the drawer of the check, had not sufficient funds in bank to meet the check.** lost or destroyed notes. (2244) The jury are instructed that in an action on a promissory note which is not produced, if the note is alleged to have been lost, and if the note was indorsed when it is al- leged to have been lost, so that the note was actionable in the hands of any holder, then there can be no recovery on said note without proof of the note being lost or destroyed. So in this case, if you believe that the note in evidence was endorsed by the payee, then, the note not being produced, it must be shown to your satisfaction that the note is actually lost or de- stroyed before there can be any recovery on such note.** Bight of receiver to sae on note. (2245) The court instructs the jury that this action is brought by the receiver, and he occupies the same position that the G. S. Bank would, had it brought the action in its «2 Approved In Smith v. Traders' Nat. Bank, 74 Tex. 457. «3 Heartt v. Rhodes, 66 111. 351. a Approved In Heartt v. Rhodes, 66 111. 351. .(926)