8 (Kan.) Minor employé sustaining personal injury, which his father and employer settled for inadequate sum, on attaining majority might bring action against employer for injuries.-Leslie v. Proctor & Gamble Mfg. Co., 169 P. 193. PAROL EVIDENCE. See Evidence, 385-461. PARTIES. For parties on appeal and review of rulings as III. NEW PARTIES AND CHANGE OF and not a partnership.-Griffiths v. Von Herberg, 169 P. 587. 17 (Mont.) Where one bought a herd of cattle and turned them over to another, who was to feed them three years at his own expense, the title to remain in the former and the proceeds of all sales to go to the former until he was reimbursed, and then remainder to be divided equally, there was no partnership, within Rev. Codes, § 5466; no such intention existing.-McCormick v. Stimson, 169 P. 726. (B) As to Third Persons. 27 (Mont.) Unless one is a partner in fact, or an ostensible partner, he cannot be held liable as a partner, under Rev. Codes, § 5492.McCormick v. Stimson. 169 P. 726. (C) Evidence. 40(5) (Wash.) Under Rem. Code, 1915, 55 (Wyo.) In suit to foreclose mortgages 202, banks having interest by reason of insuron lands of syndicate, evidence held to show ed's assignment of his claim under fire insur- partnership between the members of the syndiance policy, on proper application, were prop-cate.-Walter v. Kressman, 169 P. 3. erly allowed to intervene in insured's action on policy.-Mountain Timber Co. v. Lumber III. MUTUAL RIGHTS, DUTIES, AND Ins. Co. of New York, 169 P. 591. 58 (Wyo.) Where person to whom mortgages were assigned pending suit was made defendant, but there was no order of substitution, action held properly permitted to proceed to judgment in name of original parties under Comp. St. 1910, § 4330.-Walter v. Kressman, 169 P. 3. V. DEFECTS, OBJECTIONS, AND AMENDMENT. 83 (Or.) In suit to cancel deeds to school lands subsequently conveyed to the United States as basis for selection of lieu lands, claimants of the lieu lands held entitled to object because of the absence of the United States as a party.-State v. Hyde, 169 P. 757. 88 (3) (Okl.) Under Rev. Laws 1910, § 4740, subd. 4, petition showing mere misjoinder or excess of parties plaintiff is not demurrable for defect of parties.-Dieterle v. Harris, 169 P. 873.. PARTITION. II. ACTIONS FOR PARTITION. (B) Proceedings and Relief. LIABILITIES OF PARTNERS. (B) Individual Transactions. 95 (Wash.) Under a sale by one partner to the other of the retiring partner's interest, the continuing partner could not recover payments made because of the retiring partner's failure to make the transfer by a technical assignment or writing, where the continuing partner assumed full control of the partnership assets.-Rupe v. Kemp, 169 P. 855. Under a contract of sale by one partner to the other, for cash and note for the balance, of the retiring partner's interest, the continuing partner was liable for the amount of the unpaid balance of the note where he had destroyed the partnership assets. Id. (C) Actions Between Partners. 108 (Wash.) Partner may sue partner at law on promise to pay balance struck and agreed upon.-Brown v. Carpenter, 169 P. 331. In partner's law action against fellow partners for breach of covenant of seisin indeed alleged to be in partnership settlement, plaintiff, on failure to show balance struck, cannot resort to accounting.-Id. 8121 (Wash.) In action by partner against partners for breach of covenant of seisin in deed given in partnership settlement, held, plaintiff could prove as consideration for deed balance found to be owing him from partnership affairs to show his damages.-Brown v. Carpenter, 169 P. 331. 114(4) (Utah) Under Comp. Laws 1907, 3566, the court, in a partition suit, may allow reasonable counsel fees to plaintiff for services for the common benefit and tax a proper part against defendants' part of the fund.Murray v. Hays, 169 P. 264. Attorney in partition suit rendering services and giving advice, resulting in higher price being obtained than would otherwise have been obtained, held entitled to have such services considered in fixing the amount of attorney's fees to be allowed.-Id. Defendants in partition suit held not necessarily entitled to counsel fees, unless their counsel's services assist in obtaining more for the property, or insuring a better title.-Id. PARTNERSHIP. See Account Stated, 2; Attorney and Cli- I. THE RELATION. (A) Creation and Requisites. 9(1) (Wash.) Transaction whereby plaintiff was to have owner of lots erect a building and lease it to defendants, and was to receive a IV. RIGHTS AND LIABILITIES AS (D) Actions by or Against Firms or Part- 217(3), (Wyo.) In suit to foreclose mortgages on lands of syndicate, evidence held to show that partnership composed of the members of the syndicate was the equitable owner of the property.-Walter v. Kressman, 169 P. 3. PASSENGERS. See Carriers, 244–346. PATENTS. See Public Lands, 116. share of the profits, held one of brokerage See Highways, PAVING. PAYMENT. question of whether plaintiffs' new-born child died as result of physician's negligence.-Henline v. Southward, 169 P. 315. no testi See Appeal and Error, 370, 931; Bills and Notes, 499, 527; Costs, 277; Insur-18(9) (Wash.) Where there was ance,399, 514, 741; Landlord and Ten- mony that dentist's treatment was unskillful ant, 88; Mandamus, 109; Principal or improper or the proximate cause of the and Surety, 117; Subrogation; Tender; condition of plaintiff's teeth, mouth and gums Vendor and Purchaser, 176. testified to, court held to have properly taken issue of malpractice from jury.-Inglis v. Morton, 169 P. 962. PICKETING. I. REQUISITES AND SUFFICIENCY. 22 (Okl.) Where creditor refused assent to debtor's assignment to trustee, received trustee's check for amount payable had he assented, and offered to accept it in part payment, See Constitutional Law, 83; Injunction, his failure to return check after a failure to use it did not amount to its acceptance as full payment.-Wheeler & Motter Mercantile Co. v. Kitchen, 169 P. 877. IV. PLEADING, EVIDENCE, TRIAL, 65(6) (Cal.) The defense of payment is af 118. PIPE LINES. See Carriers, 1, 2, 4, 5; Constitutional Law, 297; Eminent Domain, ~2. firmative matter, and requires proof by de- See Sales, 418. fendant.-Levey v. Henderson, 169 P. 673. See Interpleader. PLACE. PLEADING. For pleadings in particular actions or proceed- I. FORM AND ALLEGATIONS IN GENERAL. 8(11) (Cal.) Complaint in ejectment alleging lawful possession and title by homestead entry held not bad as stating conclusion.-Fuller v. Fuller, 169 P. 369. 8 (15) (Wash.) In alleging fraud it is necessary that the facts be pleaded; conclusions and epithets being insufficient.-Burke v. Bladine, 169 P. 811. 8(17) (Cal.) It is necessary only to allege negligence by general averment that defendant did the particular act damaging plaintiff.— Grossetti v. Sweasey, 169 P. 687. 8(1) (Colo.) A bequest or devise to charity is not affected by the law applicable to perpetuities or the accumulation of income.-Hag-15 gin v. International Trust Co., 169 P. 138. PERSONAL INJURIES. (Wash.) Where two codefendants answered separately, one defendant cannot take advantage of denial by other of averment in complaint of corporate plaintiff that it had paid its last annual license fee as required by See Assault and Battery, 26-43; Carriers, law.-Washington Printing Co. v. Osner, 169 280-321; Highways, 213; Landlord P. 988. and Tenant, 164, 168; Master and Serv-35 (Cal.) Where a complaint against a bank ant, 85-293; Municipal Corporations, 761-819; Negligence; Railroads, 350; Release, 17; Street Railroads, 93-119; Telegraphs and Telephones, 20; Trial, 252, 260. 15, stated that it paid out $500 on a check read282-ing, "$500.00 Five and no/100 dollars," an allegation that the check was intended to be for $5 was mere surplusage, and an answer denying the same and setting up additional such matter was immaterial, and did not make a material issue of fact, and Code Civ. Proc. § 1856, does not apply.-Payne v. Commercial Nat. Bank of Los Angeles, 169 P. 1007. PER STIRPES ET PER CAPITA. See Wills, 531. III. PLEA OR ANSWER, CROSS-COM- OF DEFENSE. as (A) Defenses in General. IV. REPLICATION OR REPLY AND 166 (Okl.) In suit on contract and bond, a verified general denial did not constitute "new matter" under Rev. Laws 1910, § 4753, entitling plaintiff to a reply thereto.-Detroit Automatic Scale Co. v. Taylor, 169 P. 908. 18(8) (Wash.) In action against dentist for malpractice, bad result held itself no evidence of negligence.-Inglis v. Morton, 169 P. 962. 180(1) (Kan.) In action on school war18(9) (Wash.) In an action against a phy-rants, with answer that they were unlawfully sician, evidence held sufficient to take to jury issued, without consideration, and are void, re XI. MOTIONS. 343 (Okl.) A motion for judgment on the pleadings is in the nature of a demurrer, and tests the sufficiency of the pleadings and presents a question of law as to whether the facts alleged are a defense.-Schuber v. McDuffee, 169 P. 642. 343 (Or.) Where there was traversed matter in defendant's answer strongly appealing to court of equity against granting plaintiff any relief, sustaining of plaintiff's motion for decree on pleadings was error.-Wilson v. City of Portland, 169 P. 90. ~180(2) (Or.) Where plaintiff's allegation that he had complied with all provisions of insurance policy was denied by answer stating required notice was not given, reply that such failure was excused by plaintiff's physical disa-345(1) (Cal.App.) Where, after trial court bility, etc., held not a departure.-Kendall v. Travelers' Protective Ass'n of America, 169 P. 751. V. DEMURRER OR EXCEPTION. 193(4) (Cal.) Plaintiff's delay in seeking an accounting held not a consideration arising on general demurrer; laches being a matter of defense.-Harper v. Sloan, 169 P. 1043. 193(6) (Cal.) By Code Civ. Proc. § 430, subdiv. 5, purchaser's two causes of action in same complaint for specific performance and repayment of purchase money, not separated into paragraphs, were subject to demurrer.Lynn v. Knob Hill Improvement Co., 169 P. 1009. 193(6) (Cal.App.) Complaint in an action for broker's commission for the sale of real property, and also for the sale of personal property, but not stating the two causes of action separately, was demurrable, under Code Civ. Proc. § 430, subd. 5.-Ryan v. Walker, 169 P. 417. 205(5) (Cal.) An allegation that a demand for the amount of an assessment for street improvement was made upon defendant or his agents, if defective, is only uncertain, and is not reached upon general demurrer.-Bienfield v. Van Ness, 169 P. 225. 218(4) (Cal.) That plaintiff in suit for accounting had sought to charge defendants with more than they were liable for, held not to justify dismissal upon sustaining of demurrer for want of facts.-Harper v. Sloan, 169 P. 1043. 218(4) (Okl.) Where a demurrer to a petition is sustained, and plaintiff fails to file an amended pleading as permitted by the order, a judgment dismissing his cause of action is proper. Cates v. Miles, 169 P. 888. VI. AMENDED AND SUPPLEMENTAL PLEADINGS AND REPLEADER. 237(2) (Wash.) A complaint alleged a note which the answer denied and alleged material alteration which the reply denied. The court found that the note had been raised by a stranger without knowledge of the holder from $750, for which amount judgment was rendered. Held, that the court justly considered the pleadings amended to conform to the facts. Gould v. Gould, 169 P. 324. 237(8) (Cal.) Complaint for personal injuries due to the breaking of a rafter held not changed as to the cause of action by an amendment after the close of evidence eliminating charge that defendant did not adopt safer method of work.-Bruce v. Western Pipe & Steel Co., 169 P. 660. VII. SIGNATURE AND VERIFICATION. 290 (Okl.) Under Rev. Laws 1910, § 4759, failure to deny under oath a general allegation of authorized agency is an admission, and dispenses with further proof of the agent's authority. Knudson v. Fenimore, 169 P. 478. had properly granted plaintiff's motion to strike portions of answer, no sufficient averments remained amounting to denial or defense, court properly granted plaintiff's motion for judgment on pleadings.-Almond City Land & Development Co. v. Patterson, 169 P. 258. 345(1) (Kan.) In action on written contract certain lease, a part of consideration for confor payment of money, alleging ownership of tract, wherein answer alleged failure of consideration and contained a general denial, judgment for plaintiffs on the pleadings was error.Lesem v. Harris, 169 P. 959. 345 (1) (Okl.) Where pleadings present issue of fact, it is error to sustain motion for judgment based thereon.-Smith v. Jos. W. Moon Buggy Co., 169 P. 875. 349 (Cal.App.) As an owner of land is presumed to be entitled to possession, where plaintiffs suing to quiet title alleged ownership which was admitted by answer, and right of possession was not denied, it was admitted, and judgment on pleadings was authorized.-Durst v. Jolly, 169 P. 449. 349 (Okl.) Where answer containing a general denial was qualified by other allegations therein, admitting all the essential facts necessary to authorize a judgment for plaintiff, it was not error to sustain motion for judgment on the pleadings.-Schuber v. McDuffee, 169 P. 642. 349 (Okl.) Reply to an answer setting up a judgment in bar, containing a general denial of matters in answer, and alleging facts intended to avoid the judgment, was an admis sion of existence of judgment, and where afdefeat the bar, judgment on the pleadings was firmative facts were not legally sufficient to proper.-Glacken v. Andrew, 169 P. 1096. 350(1) (N.M.) Under Code 1915, § 4156, a motion for judgment on the pleadings must be in writing and specifically point out the reasons upon which it is based.-Peterson v. Foley, 169 P. 300. 352 (Cal.App.) An order dismissing an action for libel and slander after plaintiff's failure to file a statutory bond was not an order striking amended complaint from the files, though it rendered it ineffectual.-Huffaker v. McVey, 169 P. 704. XII. ISSUES, PROOF, AND VARIANCE. 381 (2) (Cal.) Where an allegation in a complaint is immaterial and surplusage, and no evidence is introduced to support it, the fact of its denial in the answer does not make a material issue, and testimony in refutation was inadmissible.-Payne v. Commercial Nat. Bank of Los Angeles, 169 P. 1007. XIII. DEFECTS AND OBJECTIONS, WAIVER, AND AIDER BY VERDICT OR JUDGMENT. ~406 (6) (Cal.App.) Although rescission was not properly pleaded, where case was tried upon that theory, defendant is estopped to object that no issue of rescission was raised.-Burrell v. Southern California Canning Co., 169 P. 405. 416 (Okl.) Where a demurrer to a petition is sustained and plaintiff is granted time to PRESCRIPTION. amend any error in sustaining, the demurrer is See Adverse Possession; Limitation of Actions. waived, and cannot be assigned as error.-Cates v. Miles, 169 P. 888. 422 (Or.) Where the complaint was amended by interlineation and no motion was made to strike it out for want of verification, the objection was waived.-Richey v. Robertson, 169 P. 99. 426(3) (Okl.) Where a motion to strike and a demurrer were sustained to an answer, and defendants by leave filed an amended answer repleading the eliminated matter, any error in orders sustaining the motion and demurrer was waived.-Schuber v. McDuffee, 169 P. 642. 433 (7) (Idaho) Failure of complaint in action on contract to allege that certain work had been inspected and approved, as provided by contract, held not fatal to judgment on complaint, when defect was first called to court's attention after judgment.-Pendrey v. Brennan, 169 P. 174. PLEDGES. See Assignments, 48; Corporations, 123. 56(2) (Colo.) Where note provided assignee might take collateral, and become vested with powers given payee bank, power being given bank to sell collateral and buy it in, assignee of note from payee bank received same power, and mere act of selling collateral could be performed through agent.-Cone v. Carlton, 169 P. 281. 59 (Colo.) In action on note given by defendant to bank and assigned to plaintiff, note being secured by bonds as collateral, which were sold by assignee and proceeds credited on note, sale having been regular, value of bonds was immaterial.-Cone v. Carlton, 169 P. 281. POLICE. See Municipal Corporations, 176, 187. POLICE POWER. PRESUMPTIONS. See Appeal and Error, 907-934; Criminal Law, 311, 778; Evidence, 56-83. PRINCIPAL AND ACCESSORY. See Homicide, 305. PRINCIPAL AND AGENT. See Attorney and Client; Brokers: Embezzlement, 14: Insurance, 83-85, 695; Judgment, 695; Municipal Corporations, 159-211. III. RIGHTS AND LIABILITIES AS TO THIRD PERSONS. (A) Powers of Agent. 103(12) (Or.) Where trustee of a business gives an order for goods to an agent authorized to take orders, and it is agreed that he will not be bound personally, the principal is bound by such condition, although in the absence of such condition the trustee would be personally liable.-Rothchild Bros. v. Kennedy, 169 P. 102. (B) Undisclosed Agency. 145(4) (Utah) Where plaintiff knew there was an undisclosed principal, but nevertheless settled with agent, he could not thereafter recover from principal; same rule applying as in case of election by suing agent.-Love v. St. Joseph Stock Yards Co., 169 P. 951. (C) Unauthorized and Wrongful Acts. 155(1) (Kan.) Execution of bill of sale and other instruments by one unauthorized to sign them does not bind party in whose name instruments are signed.-Emerson-Brantingham Implement Co. v. Willhite, 169 P. 549. (D) Ratification. 166(3) (Cal.App.) Where a car was placed with an agent for sale for $800 cash, and the agent exchanged the car and got $50 cash, and See Constitutional Law. 81; Municipal Cor- sent $400 to the principal telling him he had porations, 589-639. See Insurance. POLICY. POLITICAL RIGHTS. See Elections. POPULAR ACTION. See Schools and School Districts, 97. PORTS. See Municipal Corporations, 347. POSSESSION. exchanged and received that amount on the trade, which the principal accepted conditionally, there was no ratification of the exchange, where there was no connection shown between the $50 and the $400, and the principal did not know with whom the car had been exchanged, or the conditions.-Hutchinson v. Scott, Magner & Miller, 169 P. 415. 170(3) (Wash.) Where one ordered material on the credit of another without authority, and the latter did not repudiate the bill for six months after learning thereof, and during such delay the time for filing a lien on the work expired, the account is ratified.-Northwestern Lumber Co. v. Cornell, 169 P. 590. (F) Actions. 194(3) (Cal.) In action by attorney for services, contention being that alleged agent had See Adverse Possession; Intoxicating Liquors, no authority to employ plaintiff for defendants, 233, 236; Replevin, S. See Bankruptcy, 188, 205; Fraudulent Con- 100(3) (Wash.) Changes in construction veyances, 115. contract held not such as to release surety on the contractor's bond.-Stocking v. Fouts, 169 | 5(4) (Kan.) Where justice of peace, P. 593. 102 (Or.) In order for assignment of secured contract to release surety, it is necessary that both contracting parties assent.School Dist. No. 45, Multnomah County, v. Hallock, 169 P. 130. 117 (Cal.App.) In view of Civ. Code, §§ 2836, 2844, 2840, 2819, as to liability and discharge of surety, building contractor's surety is discharged by owner not, as in duty bound by Code Civ. Proc. § 1184, withholding payment of unpaid installment on giving of "stop notices."Silberstein v. Kitrick, 169 P. 250. as examining magistrate, refuses to dismiss crim- 17 (Kan.) Where county attorney's request for dismissal of criminal case pending before justice of peace is denied, no further challenge of justice's right to proceed therein is necessary as basis for relief by prohibition.-Foley v. Ham, 169 P. 183. 26 (Wash.) Judge's return as to what occurred as to taking exceptions will, on application for prohibition to him, be all-controlling; the witnesses as to what occurred being equally divided and reputable. In re Geissler's Estate, 169 P. 822. PROMISE OF MARRIAGE. PROMISSORY NOTES. 150; Sheriffs and Constables, See Bills and Notes. PRIVATE NUISANCE. See Nuisance, 3-50. PRIVILEGE. See Venue, 21; Witnesses, 296, 304. PRIVILEGED COMMUNICATIONS. See Witnesses, 201-219. PROBABLE CAUSE. See Malicious Prosecution, 25. PROBATE. See Wills, 202–427. PROCESS. See Appearance; Attachment; Constitutional See Newspapers. II. SERVICE. (C) Publication or other Notice. PUBLIC DEBT. See Schools and School Districts, 91-97. PUBLIC IMPROVEMENTS. PUBLIC LANDS. 86 (Mont.) Constructive service is effectual See Municipal Corporations, 294-519. only in actions strictly in rem, actions affecting plaintiff's personal status, and actions to recover on money demands to extent that some lien brings property into court as res to answer for judgment which may be entered.-English v. Jenks, 169 P. 727. PROHIBITION. See Intoxicating Liquors. See Courts, 489; Ejectment, 65; Indians, 15. II. SURVEY AND DISPOSAL OF LANDS OF UNITED STATES. (B) Entries, Sales, and Possessory Rights. 40 (Idaho) Plaintiff's predecessor in interI. NATURE AND GROUNDS. est having parted with his title to public land in favor of plaintiff's grantor, was not there5(2) (Wash.) Prohibition will not lie to after in a position to make a valid relinquishprevent judge including in statement of facts ment of the lands in favor of another claimant. for appeal a certificate made and filed by him-Hemphill v. Moy, 169 P. 288. that an apparently regular entry on the record was inadvertently made.-In re Geissler's Es- (G) Grants to States for Internal tate, 169 P. 822. 5(3) (Cal.) Where nonresident plaintiff does not file security for costs as required by Code Civ. Proc. $$ 1036, 1037, and court does not dismiss, prohibition will lie to prevent proceeding with the action until the security is filed.-Carter v. Superior Court of Kern County, 169 P. 667. provements. Im 64 (Colo.) Under Rev. St. U. S. § 2477 (U. S. Comp. St. 1916, § 4919), and Rev. St. 1908, § 5834, highway cannot be declared established over section or township lines on public domain where it interferes with rights of entryman thereon.-Korf v. Itten, 169 P. 148. Under Rev. St. U. S. § 2477 (U. S. Comp. St. For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and KEY-NUMBER |