SPECIFIC PERFORMANCE-Continued.
a complete abandonment, will bar specific performance, but the acts and conduct constituting such abandonment must be positive, unequivocal, and inconsistent with the contract. Robinett v. Hamby, 353.
See "Frauds, Statute of."
See "Limitations of Actions."
An Act of the Legislature declaratory of the intent of a pre- vious Act will not control the judiciary in the construction of the first Act in actions arising prior to the declaratory Act. Rodwell r. Harrison, 45.
A statute which requires all street railway companies to put fenders in front of cars and provides that the corporation commission may "make exemptions," does not authorize an exemption of all the street railway companies, as this amounts to a suspension of the statute. Henderson v. Trac tion Co., 779.
Where the president of a bank signs certificates of stock in blank and leaves them with the cashier, all the stock hav ing been issued, who fraudulently issues such certificates to himself and pledges them as collateral for a loan, the bank is liable to the pledgee for the value of the stock, although the certificates of stock recite that they are trans- ferable only on the stock book of the bank. Havens v. Bank, 214.
The failure of a street railway company to use fenders in front of its cars, if required by statute or ordinance, is evidence of negligence. Henderson v. Traction Co., 779.
A statute which requires all street railway companies to put fenders in front of cars and provides that the corporation commission may "make exemptions," does not authorize an exemption of all the street railway companies, as this amounts to a suspension of the statute. Henderson v. Trac tion Co., 779.
SUBMISSION OF CONTROVERSY.
In an action submitted without controversy no prayer for judg- ment is necessary. Williams v. Com'rs, 300.
Where creditors furnish money to take up a mortgage on the
land of the debtor and has the same assigned to the as- signees in a deed of assignment for the benefit of creditors, the creditors are entitled to be subrogated to all the rights of the mortgagee, and it is not a payment of the mortgage. Davison v. Gregory, 389.
Mutual promises of several subscribers to contribute to a fund to be raised for a specified object in which all feel an in- terest are a sufficient consideration to make such subscrip- tion a valid contract. Baptist University v. Borden, 477.
A special proceeding for the purpose of condemning land for railroad purposes must be begun by the issuance of a sum- mons. Railroad v. Lumber Co., 644.
That a person was summoned to work a public road three con- secutive days, the law providing that hands shall not be required to work continuously for longer than two days at any one time, is no defense for failing to work the first two days. State v. Yoder, 1111.
SUPERIOR COURT. See "Jurisdiction."
Whenever a civil action or special proceeding begun before a clerk of the superior court shall be for any ground what- ever sent to the superior court, the said court shall have jurisdiction, although the proceedings originally had before the clerk were a nullity. In re Anderson, 243.
Where an action is wrongfully brought before the clerk of the superior court, and is taken to the superior court by appeal, the superior court having original jurisdiction, it will be re- tained for hearing. Springs v. Scott, 548.
Where an appeal in a cause tried in the superior court during a term of the Supreme Court is docketed at that term, it stands regularly for argument. Clegg v. Railroad Co., 292. The Supreme Court will not review a ruling of its own, which does not affect injuriously the complaining party, even where the ruling is erroneous. Bulk v. Harris, 10. Where a new trial is granted without passing upon certain ex- ceptions and upon a re-hearing of the exceptions upon which new trial was granted, is reversed, the Supreme Court, the personnel of the same having been partially changed, orders in this case a re-argument of the exceptions not passed upon, without a petition for the same being filed. Fleming v. Railroad, 714.
An appeal in a criminal action will not be continued in the Supreme Court for the reason that a civil action for the same offense is pending in the superior court. State v. Mehaffey, 1062.
A person selling watermelons in wholesale lots in the city of Salisbury, to be shipped from a nearby town, and only de- livering to those from whom he had taken orders, is not an itinerant merchant or peddler. State v. Ninestein, 1039. Under Acts 1901, Chap. 9, Sec. 83, and Chap. 7, Sec. 58, a liquor purchase tax should be assessed on the amount paid for the liquor and is not subject to deduction by the amount of the internal revenue tax. Williams v. Com'rs, 300.
The testimony of a tax lister that the owner of a mill listed it at less than that claimed by them in an action for its loss by fire, is some evidence that it was not worth the amount claimed. Dobson v. Railroad, 900.
Where a person in whose care a telegram is addressed refuses to receive the same, the telegraph company must make reasonable effort to deliver it to the sendee. Hinson v. Telegraph Co., 460.
Where a telegram relates to illness or death it is sufficient to put the telegraph company on notice of its importance. Bright v. Telegraph Co., 317.
The negligence of a person in whose care a telegram is sent will be imputed to the sendee and not to the telegraph com- pany. Hinson v. Telegraph Co., 460.
In this action to recover damages for a failure to deliver a telegram, the evidence does not show contributory negli- gence on the part of the plaintiff. Meadows v. Telegraph Co., 40.
In an action for mental anguish from failure to deliver a tele- gram, the sender may testify as to what he would have done if he had received it. Bright v. Telegraph Co., 317. In an action against a telegraph company for delay in delivering a message, where the court charged that defendant would have discharged its duty "if it tendered the telegram at the mills where plaintiff was employed, and to which the tele-
gram was addressed, to an employee thereof having access to the pay rolls, and who refused to receive the same, tell- ing defendant that plaintiff was not employed there, and de- fendant then inquired of a boy in the mill-yard, at the postoffice, at the city directory, and also sent a service message," it was error to add, "and used the diligence that one of ordinary prudence would have exercised under the circumstances." Hinson v. Telegraph Co., 460.
It is competent to show that a telegraph company had delivered other telegrams beyond the alleged free delivery limits, it being some evidence tending to show that there were no free delivery limits, and if there were, that the company disregarded them. Bright v. Telegraph Co., 317.
A wife, sending a telegram to her husband's uncle from W., announcing the husband's death and that he would be buried in L., was entitled to recover for mental anguish caused by the company's failure to deliver same, and for the uncle's consequent failure to be with her during her journey from W. to L., and at the latter place. Bright v. Telegraph Co., 317.
Where suffering actually results from failure to deliver a mes- sage, the relationship being one of affinity only, such re- lationship will warrant recovery for mental anguish. Bright v. Telegraph Co., 317.
Where a telegraph company undertakes to deliver a telegram at other than its office hours it thereby waives the benefit of its office hours. Bright . Telegraph Co., 317.
The failure of a telegraph company to deliver a message is not excused, though it appears that the sender lived beyond the free delivery limits, and extra charge for delivery beyond the limits had not been paid; it not appearing that the sender knew the company had any free delivery limits, or that it demanded payment of any extra charge. Bright v. Telegraph Co., 317.
Where the wife delivers to a telegraph company a message for her husband to come home as "Ira" was sick, but in trans- mission the name was changed to "Car.," and on receipt of the message the husband requests the agent of the company to ascertain from the relay office whether the message was correct, and was informed that it was correct, the plaintiff husband having a child named Ira and a nephew named Carl, and thinking that it was his nephew that was sick did not return home until after receiving a message the
next day of the death of his child, under these facts is not guilty of contributory negligence. Efird v. Telegraph Co., 267.
In an action to recover damages for a failure to deliver a tele- gram, the relationship of the parties need not be disclosed in the message when the same relates to sickness or death. Meadows r. Telegraph Co., 40.
The doctrine is reaffirmed herein that telegraph companies are liable in damages for mental anguish or suffering.
In an action against a telegraph company to recover damages for a delay in delivering a message, where the plaintiff, on receiving the delayed message announcing the death of his mother, at a time when the only train by which he could have reached his mother's residence and attended the funeral was scheduled to leave immediately, telephoned to the railroad station and, on being erroneously informed that the train was on time, made no effort to take it, which he could have done if he had been correctly informed that it was two hours and a half late, the telegraph company, in an action for negligence in delivering the message, was entitled to an instruction that, if plaintiff was misinformed as to the time when the train left, then the negligence of the defendant, if any, was not the proximate cause of plaintiff's injury, and no damage could be assessed on ac- count of plaintiff's failure to reach the funeral. Higdon v. Telegraph Co., 726.
Sec. 138. Limitations of Actions. Pipes v. Railroad, 612. Sec. 139. Adverse Possession.
Prevatt v. Harrelson, 250. Prevatt v. Harrelson, 250.
Smith v. Ingram, 959. Menzel v. Hinton, 660.
Limitations of Actions. Limitations of Actions.
Sub-Sec. 9. Limitations of Actions. Barden v.
Intervenor. Maynard v. Ins. Co., 711.
Sec. 199. Eminent Domain. Railroad v. Lumber Co., 644.
Sec. 206. Judgments. McLeod v. Graham, 473.
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