neice and adopted daughter, and the chief S. 326, 23 L. Ed. 927, it was held that the defendant his widow. The question for discussion is: Under the will and two codicils, did the defendant widow take a life estate, or an estate absolute, in the property affected? So far as necessary to be quoted, the will, after providing for burial expenses and debts, recites: "3. The residue of all my property-real, personal and mixed-in possession or in expectancy-consisting of real estate, household goods and other personal property of every description, whatever owned by me consisting of notes, bonds, accounts, etc., I give and bequeath to to my my beloved wife, Frederika J. Wright." (1897.) The first codicil is in these words: "Since the above was written and signed I have concluded to appoint my beloved wife, Frederika J. Wright, my executrix without bond and it is my wish that she do with said property as she may think best, and it is further my wish and desire that at the death of my wife that all our estate of every description shall go to our adopted daughter, Jessie Clay Wright." (1898.) The second and last codicil is as follows: "It is my wish and desire that the courts excuse my wife from rendering any inventory of my estate or making any report to any court whatever." (1907.) Did the will, and particularly the first codicil, place the power of absolute disposition of the property bequeathed and devised in the widow, Mrs. Wright? Or does the adopted daughter take a remainder, as she asserts? It was held in Breeden v. Welker, 2 Tenn. Ch. App. 109, that where words in a will empower the widow and devisee "to do as she pleases" with the property, the estate, though expressed to be for her life, is ren dered inconsistent with the existence of an estate over, and she takes a fee absolute. The words are words empowering an absolute disposition. As was said in Warren v. Ingram, 96 Miss. 438 [51 South. 888] Ann. Cas. 1912B, 422: "There can be no real difference between a power to dispose of property at discretion and a power to do with it at discretion. If there is any difference, the latter power is the broader one." The following have been held to be words or phrases giving power of absolute disposition, and to vest a fee in the devisee: "To do therewith at pleasure." "To do with at discretion." "To use and employ at pleasure." bequest and devise of all of the estate to testator's wife, "to have and to hold during her life, and to do with as she sees proper before her death," did not vest a fee estate in the wife, for the reason that the power of disposal accompanied an express life estate, and that the power was limited to such disposition as a tenant for life could make. It is to be noticed, however, that the court treats the phrase "to do with as she sees proper" as disposing words, as they were held to be in the case of Breeden v. Welker, supra. The rule announced in the Brant Case is not recognized in this state (Bradley v. Carnes, 94 Tenn. 27, 27 S. W. 1007, 45 Am. St. Rep. 696, and cases cited), and the Court of Civil Appeals erroneously applied it. Futhermore, in the will under review there was no devise to the wife of testator of a life estate in express terms. The will proper itself vested in her an estate absolute, and no effort was made in the codicil expressly to define an estate for life for her. In our opinion, the decision must turn upon the meaning to be assigned the indicated words as words expressing unlimited power of disposition in the first taker. . It is argued that the language does not exof an implication thereof, which implication pressly confer such power, but only allows is not to be made where, as here, the gift over is of the whole (and not mere balance of remainder) of the estate. It is urged that in such case the nature of the gift over lute disposition in the widow. We have sevdemonstrates a denial of power of absoeral cases where words, held to authorize unlimited disposition in the first taker, have defeated the vesting of a remainder estate limited in the property, identical and entire so far as the res was concerned. is not the decisive one, and the widow, Mrs. In our opinion, the test so contended for Wright, took title in fee simple, since the words expressly confer the power of absolute disposition. Other contentions of Mrs. Ogilvie have been considered, but are not deemed to have merit. Reverse the decree of the Court of Civil Appeals, and affirm that of the chancellor. FENTRESS, J., having decided the case below as chancellor, took no part in the hearIn Brant v. Virginia Coal & I. Co., 93 U. ing or disposition of the case on the appeal. (140 Tenn. 118) BOLDEN v. STATE. (Supreme Court of Tennessee. May 25, 1918.) Norman was taken after he was shot by Bolden. The superintendent testified in substance as follows: He produced and filed the record of George 1. HOMICIDE 228(1, 2)-EVIDENCE-CORPUS Norman as a patient in the hospital, showing DELICTI. To establish the corpus delicti in homicide cases, the evidence must show that the life of a human being has been taken, which question involves the subordinate inquiry as to the identity of the person charged to have been killed, but may be proved by circumstantial evidence, especially where that is the best proof obtainable. 66 2. CRIMINAL LAW 434 DOCUMENTARY EVIDENCE ENTRIES IN REGULAR COURSE OF BUSINESS." "Entries in regular course of business," receivable as original evidence, consist of a setting forth of record of a fact or facts currently by one in the usual or routine course of business by an enterer under duty so to do; such entry importing trustworthiness, in that a motive to make the entries falsely is excluded. 3. CRIMINAL LAW 419, 420(12)-HEARSAY EVIDENCE. Such rule is treated as an exception to the hearsay rule, founded upon the necessity of the case. by its recitals that the latter was admitted It is insisted by the state that this is sufficient proof of the death of Norman to sustain the conviction. [1] The evidence to establish the corpus delicti in cases of homicide must show that the life of a human being has been taken, which question involves the subordinate inquiry as to the identity of the person charged to have been killed; but the corpus delicti may be proved by circumstantial evidence, especially where that is the best proof ob 5. WITNESSES 257 REFRESHING RECOL-tainable. LECTION-ADMISSION OF RECORD. Where the memory of one who has made entries in the regular course of business has failed, he may testify that entries were correctly made by him at the time, and such entries may then be admitted. 6. WITNESSES 258-TESTIMONY FROM HOSPITAL RECORD. A hospital superintendent's testimony, from entries in a hospital record, were incompetent, where he did not testify that such record was correctly kept by his subordinates. 7. HOMICIDE 228(1)-SUFFICIENCY OF EVIDENCE-CORPUS DELICTI. Where the only proof of death was a hospital superintendent's testimony from the hospital record, not made by him, but which was under his control, and which he did not testify were correctly kept, a judgment of conviction will be reversed. [2] "Entries in regular course of business" consist of a setting forth of record of a fact or facts currently by one in the usual or routine course of his business, by an enterer under duty so to do. They are receivable as original evidence, because they import trustworthiness, in that a motive to make the entries falsely is excluded. [3] The rule is treated as an exception to the hearsay rule, founded upon the necessity of the case. In Chaffee v. United States, 18 Wall. (85 U. S.) 516, 21 L. Ed. 908, it is said: "That rule, with some exceptions, not including the present case, requires, for the admissibility of the entries, not merely that they shall be contemporaneous with the facts to which they relate, but shall be made by parties having Appeal from Criminal Court, Shelby Coun- personal knowledge of the facts, and be corty; T. W. Harsh, Judge. George Bolden was convicted of murder in the first degree, and appeals. Reversed and remanded for new trial. C. P. Roberts, of Memphis, for appellant. Assistant Atty. Gen., and Joshua Barton, of Woodbury, for the State. WILLIAMS, J. Plaintiff in error was convicted of murder in the first degree, with mitigating circumstances, on the body of one George Norman, and he has appealed to this court. roborated by their testimony, if living and accessible, or by proof of their handwriting, if dead, or insane, or beyond the reach of the process or commission of the court. The testimony of living witnesses, personally cognizant of the facts of which they speak, given under the sanction of an oath, in open court, where they may be subjected to cross-examination, affords the greatest security for truth. declarations, verbal or written, must, however, sometimes be admitted when they themselves cannot be called, in order to prevent a failure of justice. The admissibility of the declaration is in such cases limited by the necessity upon which it is founded." Their Hospital records of the condition of patients are held to be competent as entries by third and disinterested person made in the routine of the business of the hospital. 5 Enc. Ev. 273. The only proof claimed by the state to have been made of the death of Norman was the testimony of the superintendent of the City Hospital in Memphis, to which institution [4, 5] But, as seen above, such entries are For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes not to be received in a criminal case, if the enterer can be produced at the trial to testify in person to the matters he has recorded. People v. Mitchell, 94 Cal. 550, 29 Pac. 1106. If, however, his memory as to the facts recorded has failed, he may testify that the entries were correctly made by him at the time, and then the entries may be admitted. [6] In the pending case the superintendent of the hospital does not even testify that the record was correctly kept by his subordinates, and we are of opinion that the testimony was incompetent. The proof offered in the instant case does not stand upon a plane higher than hearsay. [7] This being the only proof of the death of the person proven to have been shot by plaintiff in error, a reversal of the judgment results. Remand for a new trial. (140 Tenn. 123) JOHN DEERE PLOW CO. v. SHELLABARGER. (Supreme Court of Tennessee. May 18, 1918.) 1. SALES 180(4)-BREACH OF CONTRACTWAIVER. Where installments of lumber shipped under an installment contract were accepted and paid for by buyer, who was aware of any defects, breach of contract as to such installments was waived, and precluded buyer from using such breach as a discharge from the contract as to future installments. 2. SALES 62 ENTIRE AND SEVERABLE CONTRACTS. GREEN, J. The bill in this case was filed by the John Deere Plow Company to recover on an account against the defendant, Shellabarger. Shellabarger answered, admitting that the account was substantially correct, but set up by cross-bill a claim against the Plow Company for damages for breach of a contract to purchase lumber. Considerable proof was taken, and the chancellor found that Shellabarger was indebted to the Plow Company at the time of the filing of the bill in the sum of $1,072.34. He further found that the Plow Company had breached the lumber contract and that Shellabarger was entitled to damages in the sum of $437.50. He rendered a decree in favor of the Plow Company for the difference. Both parties have brought the case to this court. No question is here made on the amount of the Plow Company's account as found by the chancellor. The Plow Company assigns error on the action of the chancellor in holding that it had breached the lumber contract. Shella barger assigns error on the measure of damages adopted by the chancellor. The John Deere Plow Company was a manufacturer of agricultural implements located in St. Louis. Shellabarger was a merchant at Bells, Tenn., and he also operated a sawmill and was engaged in other enterprises. The account of the John Deere Plow Company represents goods purchased from it by Shellabarger for his store. The Plow Company requires in its busiAn agreement to purchase during the con- ness considerable lumber for crating purpostract period 50 cars of lumber, deliveries to bees to prepare for shipment agricultural immade upon specifications and orders of the buyer in different periods throughout the year, was entire, and not severable. 3. SALES 345-INSTALLMENT CONTRACTSBREACH. Where deliveries of lumber were to be made upon orders and specifications of buyer, and buyer, by accepting installments delivered, waived any defects with reference thereto, failure of buyer to give further orders or specifications amounted to a breach; it not being necessary for seller to tender lumber. 4. SALES 384(6)-GOODS TO BE MANUFACTURED-BREACH OF CONTRACT-DAMAGES. The measure of damages for buyer's breach of contract to order lumber to be manufactured was the profits which the seller would have realized had he been permitted to complete the contract; the materials for completing the contract, though not all on hand, being available. Appeal from Chancery Court, Madison County; J. W. Ross, Chancellor. Bill by the John Deere Plow Company against M. Shellabarger, in which defendant by cross-bill set up a claim against the Plow Company. Decree for the Plow Company, and both parties appeal. Modified, affirmed, and remanded. W. G. Timberlake, of Jackson, for Shellabarger. W. H. Biggs, of Jackson, and Casey & Sherrod, for John Deere Plow Co. plements which it sends all over the country. Shellabarger had sold this company several cars of lumber for this purpose, and on a visit that he made to St. Louis, in the fall of 1907, a contract for additional lumber was made between the Plow Company and Shellabarger as follows: "Memorandum of Agreement, Oct. 1, 1907, "Entered into this date by and between M. Shellabarger, of Bells, Tenn., known hereafter as the seller, and the John Deere Plow Company, of St. Louis, Mo., known hereafter as the buyer: "The buyer agrees to purchase of the seller during the contract period fifty (50) cars of crating lumber, and the seller agrees to furnish said material at the price and terms hereinafter named. "Price: $12.00 per thousand feet f. o. b. Bells, Tenn. "Terms: 30 days or 2 per cent. cash discount if paid in 10 days after date of invoice and bill of lading. "The lumber shall consist of gum and elm, equal in grade to that already shipped the buyer and cut to buyer's dimensions. Inspection guaranteed. "The seller agrees to ship during any month in the contract period at least one car every four days if called upon to do so by the buyer: with the seller by the buyer at least thirty days Provided, however, specifications are placed in advance of shipping date. "All different lengths to be kept separate and each length tied in bundles. "The John Deere Plow Company, "By P. E, Ebrenz, Supt. Carriage Factory. "Accepted: M. Shellabarger." It is agreed between the parties that this contract was intended to be performed within 12 months. The company ordered, and Shellabarger shipped, seven cars of lumber under the contract; the first one in the fall of 1907, and the last one in May, 1908. "If the promisee, with knowledge of the breach, voluntarily retains property delivered to him in performance of the contract, which property it is possible for him to return to the promisor, such retention will amount to a waiver of the breach so as to preclude him from using such breach as a discharge." Page on Contracts, § 1500. [2] The contract under consideration, under our authorities, was doubtless entire, and not severable. Foundry Co. v. Wheel Co., 113 Tenn. 370, 83 S. W. 167, 68 L. R. A. 829, 3 Ann. Cas. 898; Cement Co. v. Oliver, 125 Tenn. 135, 140 S. W. 595, 38 L. R. A. (N. S.) 416, Ann. Cas. 1913C, 120. This question, however, is not of special importance. It was an installment contract. Deliveries were to be made upon specifications and orders of the buyer at different periods throughout the year. There was some correspondence between the parties with reference to the cars shipped. The Plow Company contended that the lumber was not cut according to specifications, and complained of the way it was bundled and loaded in the cars, and made some complaint about its quality. In April, 1908, complaining of a car just received, the Plow Company wrote Shellabarger that it would not order any more lumber from him. During May, however, it received another car from him, and found some fault with this, and wrote him that it did not think it would order any more lumber from him. The last letter of the Plow Company, however, left its future course in doubt, and was not distinct and unequivocal in its terms, and could not, in it-on account of defects in that particular deself, be regarded as a renunciation of the contract. Page on Contracts, § 1439; 13 C. J. 654. Shellabarger insists that the complaints with reference to the lumber were not justified. There is a conflict in the proof Whatever may have been the defects in the lumber contained in the several shipments made, no shipment was rejected. On the contrary, every one of these shipments was accepted by the Plow Company, and every one of them paid for by it. No further orders for lumber were made by the Plow Company after May, 1908. Shellabarger wrote to the company during the summer, and advised that he was ready and and willing to complete his contract. [1] The Plow Company insists that it was entitled to abandon this contract, and was released from further liability thereunder, by reason of the defective quality of the lumber contained in the several shipments made by Shellabarger. This contention cannot be sustained. The Plow Company inspected the lumber shipped under contract by Shellabarger, and had full opportunity to observe its condition, and, in fact, knew the exact quality of the said shipments. If the defects claimed existed, the Plow Company was perfectly aware of them. Notwithstanding this knowledge, the company kept all the lumber shipped to it, which it might have returned, or refused to accept, and paid for it. Under these circumstances, if there was a breach of the contract by Shellabarger as to the quality of the goods delivered, this breach was -waived. Under such a contract, a buyer, who accepts a particular delivery, is not entitled to abandon the contract and forbid future deliveries because of defects in the first delivery. A buyer might refuse a delivery defective in quality, and claim a breach of the contract, under our authorities, of the entire contract. When he accepts a delivery, however, he waives his claim for a breach livery. He cannot assume that subsequent deliveries will be defective. This is especially true when he makes complaint as to the quality of past deliveries and the seller deliveries are defective, the buyer may refuse promises to remedy them. If subsequent He cannot assume, however, that subsequent deliveries will be defective, and reject them in advance. Having waived the former breach, he cannot rest a claim of breach upon an anticipated wrong. them, and declare the contract breached. Mr. Page says: "If the vendor delivers the amount agreed upon for each installment as it comes due, the fact that the goods delivered in certain installments are not up to the standard fixed by the contract is not such a breach of the entire contract as excuses the vendee from taking and paying for the remaining installments." Page on Contracts, § 1492. Mr. Mechem says: have been accepted did not comply with the con"The fact that the first installments which tract will not justify the buyer in refusing to accept subsequent installments which do conform to it." Mechem on Sales, § 1399. "Where, however, goods sold are delivered in which does not comply with the requirements of installments, the acceptance of an installment the contract is not a waiver of the seller's right to reject subsequent installments, which also fail to comply with such requirement; but he is not entitled, after such acceptance, to refuse to accept the residue of the goods unless they also fail to comply with the contract, especially where the seller promises to remedy the balance shall conform to the contract." 35 the defects in the goods accepted and that Cyc. 222. The leading case on this subject is Cahen v. Platt, 69 N. Y. 348, 25 Am. Rep. 203, where there was a contract for the delivery of glass in installments. The first which had been Under these circumstances this court held that the manufacturer was entitled to recover the profits he would have made if he had been permitted to complete his contract; that is, the contract price of the goods, less the cost of manufacture. received did not correspond with the contract, ufactured, and to be ordered as needed by the and the buyers thereupon refused to receive purchaser. any more under the contract. The court said: "The fact that the glass delivered and received upon the contract was inferior did not give them the right to repudiate the contract altogether. They could demand better glass, and when the plaintiff offered to deliver the balance, if it was inferior, they could refuse to accept it. But, if plaintiff was ready and willing to deliver for the balance such glass as the contract called for, they were bound to receive it." Cahen v. Platt, supra. The authorities are reviewed, and the rule for the admeasurement of damages in cases like this is so fully set out, in the opinion To like effect, see Guernsey v. West Coast just referred to, that further discussion is Lumber Co., 87 Cal. 249, 25 Pac. 414; Scott not necessary here. V. Kittanning Coal Co., 89 Pa. 231, 33 Am. Rep. 753; J. W. Ellison Son & Co. v. Flat Top Grocery Co., 69 W. Va. 380, 71 S. E. 39, 38 L. R. A. (N. S.) 539. And see cases collected in note, 38 L. R. A. (N. S.) 542. Such appears to be the weight of authority. [3] As heretofore seen, deliveries of lumber were to be made upon orders and specifications of the Plow Company. They gave no order or specifications after May, 1908. This failure amounted to a breach of the contract under consideration. It was not necessary for Shellabarger to tender the goods. Ault v. Dustin, 100 Tenn. 367, 45 S. W. 981; Gardner v. Deeds & Hirsig, 116 Tenn. 128, 92 S. W. 518, 4 L. R. A. (N. S.) 740, 7 Ann. Cas. 1172; 35 Cyc. 171. In Gardner v. Deeds & Hirsig, supra, the manufacturer had assembled his materials at the time of the breach. In some of the cases cited, however, and in the annotations to Gardner v. Deeds & Hirsig, as that case is reported in 4 L. R. A. (N. S.) 740, the same rule is applied to cases where the manufacturer has to purchase part of the materials necessary to complete the contract. We presume it should appear, of course, that the materials for completing the contract were available to the manufacturer. Otherwise, he could not show a loss of profit. As pointed out in Gardner v. Deeds & Hirsig, supra, the measure of damages in cases like that one and this is the profit which the manufacturer would have made. The damage is not to be measured by the difference in the market value and the contract price. Where the goods are not in esse, the market value is immaterial, for the market may change before the goods could be manufactured. So, having concluded that there was a breach of this contract by The John Deere Plow Company, it follows that Shellabarger is entitled to recover damages for this breach. [4] It seems that Shellabarger had on hand between 75,000 and 100,000 feet of logs at the time of the breach of the contract. The Cement Co. v. Oliver, 125 Tenn. 135, 140 panic of 1907 and the consequent decline S. W. 595, 38 L. R. A. (N. S.) 416, Ann. in the price of lumber came on between the Cas. 1913C, 120, Hardwick v. Can Co., 113 execution and breach of said contract. The Tenn. 657, 88 S. W. 797, and cases like that, chancellor allowed Shellabarger as damages are not in point, because in those cases the difference between the market price and the goods to be delivered had already been the contract price of such an amount of manufactured and were in esse, and the lumber as he could have sawed out of the measure of damages was properly held to be logs on hand. Shellabarger had on hand not the difference between the contract price and nearly enough logs to complete his con- the market price. tract, but he claims that they were in sight and easily procurable by him. It follows that the chancellor's decree must be modified on the measure of damages alWe think the measure of damages adopted lowed to Shellabarger; otherwise, affirmed. by the chancellor was erroneous. This ques-The case will be remanded for another action is concluded by Gardner v. Deeds & counting, upon the principles laid down in Hirsig, supra, in which case the buyer breached his contract, whereby he was to take from a manufacturer 500 buggies of specified descriptions at stipulated prices. The buggies were not in esse, but were to be man- lor. The Gardner v. Deeds & Hirsig, supra. |