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clusive as to what are equal and reasonable charges, and that there can
be no judicial inquiry as to the reasonableness of such rates, and a rail-
road company, in answer to an application for a mandamus, contending
that such rates, in regard to it, are unreasonable, and not being allowed
by the state court to put in testimony on the question of the reasonable-
ness of such rates ; Held, that the act is in conflict with the Constitution
of the United States, as depriving the company of its property without
due process of law, and depriving it of the equal protection of the

laws. Chicago, Milwaukee 8. St. Paul Railwny Co. v. Minnesota, 418.
15. The State had made no irrepealable contract with the company that it

should have the right for all future time to prescribe its rates of toll,

free from all control by the legislature of the State. 16.
16. The statutory provisions existing in the present case as to the fixing by

the railroad company of reasonable charges for the transportation of
property, did not constitute such a contract with it, as to deprive the
legislature of its power to regulate those charges. Minneapolis Eastern

Railway Co. v. Minnesota, 467.
17. A tax which is imposed by a state statute upon “the corporate fran-

chise or business ” of all corporations incorporated under any law of
the State or of any other State or country, and doing business within
the State, and which is measured by the extent of the dividends of the
corporation in the current year, is a tax upon the right or privilege
to be a corporation and to do business within the State in a corporate
capacity, and is not a tax upout the privilege or franchise which, when
incorporated, the company may exercise; and, being thus construed,
its imposition upon the dividends of the company does not violate the
provisions of the statute exempting bonds of the United States from
taxation, 12 Stat. 346, c. 33, § 2, although a portion of the dividends
may be derived from interest on capital invested in such bonds.

Home Insurance Company v. New York, 594.
18. Such a tax is not in conflict with the last clause of the first section of

the Fourteenth Amendment to the Constitution of the United States
declaring that no State shall deprive any person within its jurisdiction

of the equal protection of the laws. lb.
19. A judgment by a state court of South Carolina that the will of a

resident in North Carolina, who was the donee of a power to appoiut
by will to receive the fee of real estate in South Carolina, after the
expiration of a life estate, was properly admitted to probate in North .
Carolina, was executed according to the laws of that State, and was
properly adınitted to probate in South Carolina by proof of an
exemplified copy, though not executed according to the laws of that
State, but that the donor of the power intended that the appointment
should be made by a will valid under the laws of South Carolina,
which this will was not, does not refuse to give full faith and credit
to the judgment of the court of North Carolina, admitting the will to

Blount v. Walker, 607.



20. The statute of Tennessee which provides that “not more than two new

trials shall be granted to any party in any action at law; or upon the
trial by a jury of an issue of fact in equity,” Code of 1884, 735, § 3835,
having been construed by the courts of that State to refer to a state
of case where in the opinion of the court, the verdict should have
been otherwise than as rendered, because of the insufficiency of the
evidence to sustain it- and not to a case where there is no evidence
at all to sustain it is not in conflict with the Fourteenth Amendment
to the Constitution ; while the Fifth Amendment has no application
to it. Louisville and Nashville Railroad Co. v. Woodson, 614.

JURISDICTION, C, 2; D, 1, 2;

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See ConstitUTIONAL Law, 7.

1. Time may be made of the essence of a contract, relating to the pur-

chase of realty, by the express stipulations of the parties; or it may
arise by implication from the very nature of the property, or the
avowed objects of the seller or the purchaser; and unless its provisions
contravene public policy, the court should give effect to them accord-

ing to the real intention of the parties. Cheney v. Libby, 68..
2. But even when time is made material by express stipulation, the fail-

ure of one of the parties to perform a condition within the particular
time limited will not in every case defeat his right to specific perform-
ance, if the condition be subsequently performed, without unreason-
able delay, and no circumstances have intervened that would render it
unjust or inequitable to give such relief. The discretion which the
court has to decree specific performance may be controlled by the con-
duct of the party who refuses to perform the contract because of the

failure of the other party to strictly comply with its conditions. 16.
3. When a contract for the purchase of land provides that it shall be for-

feited if the vendee fails to pay any instalment of the purchase price
at the time limited, the failure of the latter to make a tender of pay-
ment, in lawful money, of a particular instalment on the very day it
falls due, will not deprive him of the right to have specific perform-
ance, if such failure was superinduced by the conduct of the vendor,
and if the vendee, without unreasonable delay, tenders payment, in law-

ful money, after the time so limited. 10.
4. A provision in the contract forbidding its modification or change ex-

cept by entry thereon in writing signed by both parties, coupled with
a provision that no court should relieve the purchaser from a failure
to comply strictly and literally with its conditions, has no application
when the apparent cause of the failure to perform such conditions was
the conduct of the vendor. Ib..


5. If the vendor notifies the purchaser that he regards the contract as

forfeited, and that he will not receive any money from him, the latter
is not required, as a condition of his right to specific performance, to
make tender of the purchase price. It is sufficient if he offer in his

bill to bring the money into court. Ib.
6. A note for the purchase price of land is made payabie av å particular

time and at a particular bank. The payor is ready at such time and
place to pay, and offers to pay, but the bank has not received the note
for collection ; Held, (1) The bank is not authorized to receive the
money for the payee by reason simply of the fact that the note is pay-
able there; (2) The tender of payment is not payment; (3) A decree
of specific performance should not become operative until the money
is brought into court; (4) The payee is not entitled to interest unless
it appears that the payor, after the tender, realized interest upon the

money. 16.
7. M. contracted with a bridge company to construct the road for a rail-

way, according to specifications and profile, from the end of its bridge
to Evansville, about six miles. The road was to run on bottom lands,
with an uneven natural surface, and the profile showed part trestle
and part embankment. It was contemplated that the material for
the embankments was to be taken from borrow-pits along the line.
The specifications fixed prices for excavation, for filling and for tres-
tling, and provided that the relative amounts of trestle and earthwork
might be changed at the option of the engineer without prejudice. Dur-
ing the progress of the work the company decided to modify the plan by
abandoning the trestling in the line of the road, substituting for it a con-
tinuous embankment, and by making a draining ditch along the whole
line, running through the borrow.pits. In order to serve its intended
purpose this ditch was required to be of a regular downward grade, with
properly sloping sides. Some of the borrow-pits were found to be
too deep, and others too shallow, and it was found that they had been
excavated without reference to the slope at the sides. There were
highways and private roads crossing the line at grade. The contract
did not indicate how the approaches of these roads were to be con-
structed; but when the change was determined on, it was decided to
make them of trestle. This work was more expensive than the tres-
tle provided for in the contract. The company directed its engineer
to have these modifications carried out, and the contractor was noti-
fied of this. He made no objection to the substitution of embank-
ment for trestling; but as to the ditch, he objected that it was not in
the contract. A conversation followed, in which the contractor under-
stood the engineer to say that it would be paid for at excavation
prices from the surface down, but the company claimed that it was
only intended as an expression of the opinion of the engineer, which,
it said, was made without authority. As to the trestle approaches
the contractor was informed that he would be paid what was right.

The work was constructed in all respects according to the modified
plans. In settling, the contractor claimed to be paid for the ditch as
excavation from the surface down. The company claimed that the
material taken from the borrow-pits should be deducted from the
total. There were about 2800 feet in all of the trestle approaches.
The contractor accepted payment for 2100 feet at the contract price,
and as to the remaining 700 feet claimed to be paid according to what
the trestles were reasonably worth. The company claimed that they
should be paid for at the contract price; Held, (1) That the construc-
tion of the ditch was outside of the original contract; (2) That the
fact that it passed through borrow-pits did not modify that fact; (3)
That the engineer had authority to agree with the contractors that
they should be paid for it as excavation from the surface down ; (4)
That it was right to leave it to the jury to determine whether such an
agreement was made between the contractors and the local engineer,
acting for the company; (5) That it was properly left to the jury to
decide whether the company agreed to pay for the trestle approaches
what they were reasonably worth ; (6) That as the agreement was to
pay, not a fixed price, but what the trestling was reasonably worth,
which the law would have implied, it was immaterial whether the
agent of the company had or had not authority to make it. Hender-

son Bridge Co. v. McGrath, 260.
8. If a contract of sale is in writing and contains no warranty, parol

evidence is not admissible to add a warranty. De Witt v. Berry, 306.
9. If a contract of sale in writing contains a warranty, parol evidence is

inadmissible to show a warranty inconsistent with it. Io.
10. An express warranty of quality in a sale excludes any implied war-

ranty that the articles sold were merchantable. 16.
11. A warranty cannot be implied in a sale when there is an express war-

ranty of quality, accompanied by the delivery and acceptance of a

sample, as such. 16.
12. The party who seeks to establish that words are used in a contract in

a different acceptation from their ordinary sense must prove it by

clear, distinct and irresistible evidence. 1b.
13. When parties have reduced their contract to writing, without any

uncertainty as to the object or extent of the engagement, evidence
of antecedent conversations between them in regard to it is inadmis-
sible. Ib.

See ConstiTUTIONAL LAW, 15;


1. A corporation in debt cannot transfer its entire property by lease, so as to

prevent the application of it, at its full value, to the satisfaction of the
debts of the company; and when such transfer is made under circum-
stances like those shown in this case, a court of equity will decree the
whether the centre of a street in the village of Hyde Park was the
southern boundary line of the plaintiff's land, or whether that line ran
twenty-three feet further south. The court in its charge to the jury
said: “In 1873 the village of Hyde Park laid out and opened 41st
Street sixty-six feet wide from Grand Boulevard to Vincennes Avenue,
the centre of which was a line equidistant from the north and south
lines of the quarter section, on the theory that this line was the true
east and west boundary between the four quarters of the quarter

payment of a judgment debt of the lessor by the lessee. Chicago, Mil-

waukee &c. Railway v. Third Nat. Bank, 276.
2. A misappropriation of money by a corporation being proved, and an

equitable claim against the wrongdoer being established, and it appear-
ing that the pleadings raise no issue as to the amount of the misap-
propriation, and that the officers of the corporation can furnish no
information on this point, it is no error to hold that it was in excess

of the claim. Ib.
3. An officer in a corporation who is leading in its management, who is

active in securing the passage of a resolution authorizing an issue of
preferred stock, who subscribes for such stock and pays his subscrip-
tion and takes his certificate and votes upon it at shareholders' meet-
ings for over two years, and induces others to take such stock, cannot,
when the company becomes insolvent, recover back the money paid by
him on his subscription, on the ground that the statutes of the State

only authorized an issue of general shares. Banigan v. Bard, 291.
4. When, by general law, a lien is given to a corporation upon the stock

of a stockholder in the corporation for an indebtedness owing by him
to it, that lien is valid and enforceable against all the world, and a
sale of the stockholders' stock to any person ignorant of the lien will
not discharge it, and thus authorize the purchaser to demand and

receive a transfer of it so discharged. Hammond v. Hastings, 401.
5. A state statute which confers upon a judgment creditor of a corpora-

tion, when execution on a judgment against the corporation is returned
unsatisfied, the power to summon in a stockholder who has not fully
paid the subscription to his stock, and obtain judgment and execution
against him for the amount so unpaid, in no way increases the liability
of the stockholder to pay that amount; and, inasmuch as he was
before then liable to an action at law by the corporation to recover
from him such unpaid amount at law, as well as to a suit in equity, in
common with other similar stockholders, to compel contribution for
the benefit of creditors, no substantial right of the stockholder is vio-
lated. Hill v. MerchantsIns. Co., 515.

See ConstitutIONAL Law, 17, 18;


1.' The only contention between the parties in this action of ejectment was,

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