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"Sangerville, Me., Oct. 19, 1914. hay last year was only Y crop, and the grain “Know all men be these presents that I Ed- was light on account of season. 12 tons for a win G. Bailey have this day leased my Farm to If you want to press a car and there is C. H. Southard of Easton, Me. One year not hay enough make the Bal straw. I will (said farm is located in Sangerville on road give you shipping directions, this is likely the running from Silver's Mills to Dover) together old hay left over last year, it ought to be shipwith all the farming tools, One pair Horses ed the mice will eat it all up. now on farm Dairy Útencills now on farm this “There will be no chance for any trouble on years crop Hay, together with grain and straw contra if you have used what hay you wished three acres incilage corn in silow eight cows or and Bal shiped to me, so to make room and their equivlent. The same amount of wood to save the hay from getting older and drop in be left as when taken. Said Farm is to be car

priceried on in a husbandlike manner.

“Raining most of the time and cold. "Amount of Rent is to be five hundred dollars

Resp. yours,

E. G. Bailey." and taxes. Lease of farm begins Nov. 1st, 1914 and runs one year.

The surplus hay amounted to 22 tons, and "Same amount of fodder to be left in Barn as there was some straw, all of which the plainwhen taken.

Edwin G. Bailey. tiff took and did not account for, which if left “C. H. Southard."

on the farm would have been sufficient for the The second and last lease was made No stock on the farm, in 1916. The case clearly vember 18, 1915, covering the same premises, shows that the lessee owned the hay crop of and including the personal property, but dif- 1916, that he had the right to sell the same fered from the first in these provisions, viz.: to Mr. Bean or any other person. In this

“Said lessee takes said premises with the crop of bay and straw for the year 1915 on said dence was a purchaser for value, and with

case he sold to Mr. Bean, who from the evipremises and it is agreed and understood that the same shall be fed on the premises.

out notice of any defect in the title of Mr. "At the expiration of this lease, said Southard Southard, if a defect had existed. But no is to leave on the said premises four bins mistake of the parties or defect in title ap(streaked) of the same kind of grain that was there when he took said premises and also one

pears. The defendant is therefore entitled small bin of grain (streaked)."

to judgment in both cases and judgment for It will be noted that in both leases “the a return of the property. Washington Ice crop of hay and straw" for 1915, and fodder, Co. v. Webster, 62 Me. 341, 16 Am. Rep. 462. were the subject of special mention, showing

So ordered. clearly that for purposes of his own the plaintiff controlled the hay crop of 1915, and

(117 Me. 578) Mr. Southard so understood it, and from the

CLARK V. LUCE et al. testimony it appears performed his contract. (Supreme Judicial Court of Maine. Nov. 27,

1918.) The plaintiff contends that there was a mutual mistake in the last lease, that there NEW TRIAL 71-MOTION CONFLICTING

EVIDENCE. should have been in addition to the forego

Where the evidence on questions for the ing reservations further concessions by the jury was conflicting, the verdict will not be set lessee affecting the crop of 1915, to the same aside on motion for new trial. extent and in the same manner as in the On motion from Supreme Judicial Court, lease for 1914; but this claim is not support. Penobscot County, at Law. ed by the testimony. This conclusion makes Action of assumpsit by David A. Clark unnecessary further reference to the point against Joseph W. Luce and another. There raised by plaintiff's counsel that there was was a verdict for plaintiff, and defendants a mistake made which justified and made ad- move for a new trial. Motion overruled. missible evidence showing that the last lease Argued before CORNISH, C. J., and should have contained other provisions limit- SPEAR, HANSON, PHILBROOK, DUNN, ing the rights of Southard, the lessee, under and MORRILL, JJ. the last lease. That the plaintiff admitted

L. B. Waldron, of Dexter, for plaintiff'. the right of Southard to sell surplus hay in

W. B. Peirce, of Bangor, for defendants. 1915 appears from a letter written by him to Southard June 3, 1916, in which he says:

HANSON, J. The plaintiff in this action of "If there is a car of hay left over or a car assumpsit sued to recover for money loaned, load by pressing some straw it would be best and for wages for his personal labor on the to let it go, give more room for this year's crop. Let me hear from you soon as it would want defendants' farm. The jury returned a verto be pressed very soon.

dict for the plaintiff in the sum of $152.56,

and the case is before the court on defendAnd again, on June 8th, after Southard ants' general motion for a new trial. had written him that the hay for 1915 was

The record discloses much conflict in the to be fed on the premises, the plaintiff wrote testimony, and the jury believed the plaintiff in reply:

and his witnesses. The questions legally aris“What surplus hay there is and straw will ing in the case were all for the jury, and on only be in your way. I would think it would examining the evidence we find no reason to be better for you to have the room you can

interfere with the verdict. put your hay in cheaper. If you have 10 acres grain and it grows good it will fill up. Your

Motion overruled.

on

(262 Pa. 80)

wanted the property to build a residence I SOISSON V. SOHOOL DIST. OF CITY OF would give $10,000 for it.” CONNELLSVILLE.

And thereafter he stated that he did not (Supreme Court of Pennsylvania. July 17, want to buy it for a residence himself, as he 1918.)

had one. Plaintiffs moved to strike out the 1. EVIDENCE Om 555-EXPERTS-VALUE OF

testimony of said witness because of his LAND.

answers cross-examination. The trial On appeal from award of viewers, testi- judge overruled the motion. (1) mony of a properly qualified expert witness

[2] A witness called for the plaintiffs testhat, at a date of taking, the market value of property, was a certain sum, should not have tified that he had lived in Connellsville 15 been stricken merely because he elsewhere stato years and owned a store property 40 feet ed that he would have given that sum if he from the condemned land prior to the conhad wanted it as a residence, which he did not demnation thereof, and thereafter bought a 2. EVIDENCE Cw488_OPINION AS TO Val property on the street on which the con. UE OF PROPERTY-QUALIFICATION.

Witness who had lived in borough 15 years demned land was located, and before the and owned store property near condemned land condemnation had made inquiries of two for six years before condemnation, and who property owners in the immediate vicinity, thereafter bought property on street on which it was located, and who had inquired of own

as to the value of their properties with a ers in vicinity as to value of their properties, view of purchasing a property for himself. was qualified to testify as to value of condemn. The trial judge overruled defendant's objeced land.

tion to the competency of such witness to 3. EVIDENCE Cm113(2)— VALUE OF LANDPRICE PAID.

express an opinion concerning the value of On appeal from award of viewers in a con- the condemned property. (2) demnation proceeding, the court properly re- [3] The trial judge refused to permit defused to permit defendant to show the price fendant to show the price defendant had bid plaintiff had bid for the land more than four for the land in question in March, 1912. (3) years before its condemnation. 4. EMINENT DOMAIN Ow202(4) MARKET

[4] The court affirmed plaintiffs' point for VALUE EVIDENCE AVAILABILITY FOR charge, which was as follows: BUILDING Lots.

"If the jury believe that the land was availaOn appeal from award of viewers, plain- ble for subdivision and that the market value tiff's point that, if the jury believed land avail- thereof would be increased by subdividing it able for subdivision and that the market value into smaller building lots, then they have the would be increased by dividing it into smaller right to consider such availability as an elebuilding lots, the jury might consider such ment of value in making up their verdict." (8) availability, was proper.

Verdict for plaintiff's for $6,784.11 and Appeal from Court of Common Pleas, Fay- judgment thereon. ette County.

Errors assigned, among others, were vari. Guela F. Soisson and husband appealed ous rulings on evidence (1, 2, and 3), and the from an award of viewers in eminent do- charge of the court (8). main proceedings by School District of the Argued before BROWN, C. J., MOSCH. City of Connellsville. From a judgment on ZISKER, FRAZER, WALLING, and SIMP. a verdict for plaintiffs, the defendant dis- SON, JJ. trict appeals. Affirmed.

E. C. Higbee, of Uniontown, for appellant. From the record it appeared that the

James R. Cray, of Uniontown, for appelschool district of the city of Connellsville on

lee. May 9, 1916, appropriated four adjoining lots in the said city for the purpose of erect

PER CURIAM. The issue in the court ing thereon a high school building. Plain-below was for the ascertainment of dam. tiffs, Guela F. Soisson and William H. Sois- ages to which the plaintiffs were entitled son, the owners of one of the lots in ques- for land taken for school purposes. The astion, appealed from the award of viewers signments of error do not call for discussion. which was in their favor. Thereafter an It is sufficient to say of them that they disissue was framed in the common pleas, and close no reversible error, and the judgment on the trial of the appeal a verdict was

is, accordingly, affirmed. rendered in favor of the plaintiffs. [1] At the trial a duly qualified expert,

(262 Pa. 100) after testifying that in his opinion the mar- PENNIMAN et al. v. HOFFMAN et al. ket value of the property in question was

(Supreme Court of Pennsylvania. July 17, $10,000, subsequently stated on cross-exami

1918.) nation when asked what would have been INJUNCTION 189-BUILDING RESTRICTION offered for the lot if it had been made known -SCOPE OF RELIEF-USE OF BUILDING-RE. that it was for sale in the early part of

MOVAL.

In suit to enjoin erection of garage in alMay, 1916, answered:

leged violation of building restriction against "That is a pretty hard question to answer. offensive occupations, in which preliminary inYou might get people there, just as I said be- junction restrained use of building as a public fore, that would bid it up above that and some garage, but where it was thereafter completed, that would bid it up about that; but if I apparently for use as public garage, refusal to decree its removal on final hearing was not er- / architecture of the building erected upon the ror, as the court could not say as matter of law tract of ground is one over which this court that it was erected in violation of injunction, may not exercise supervision. It is only when but could only act when use of building became the use to which the building is put becomes ofoffensive.

fensive that this court may act."

Decree affirmed, at appellants' costs.
Appeal from Court of Common Pleas, Phil-
adelphia County.
Bill in equity by James H. Penniman and

(262 Pa. 136) others against Joseph B. Hoffman and others to restrain the erection of a garage building.

ALCORN v. D. L. WARD CO. From a decree refusing prayer of bill, com- (Supreme Court of Pennsylvania. July 17, plainants appeal. Affirmed.

1918.) From the record it appeared that plaintiffs 1. EQUITY C359—VOLUNTARY DISMISSAL OF and defendants held their respective proper

BILL-EFFECT. ties subject to the following covenant and miss his own bill with costs at any time before

The complainant may generally move to disrestriction:

the decree, it being a matter of course to permit "And subject also to the express condition and him to do so; and, when the bill has been disagreement that no slaughterhouse, skin-dressing missed and costs paid, the suit is terminated. establishment, hose or engine house, blacksmith 2. EQUITY Ow359 — DISMISSAL OF BILL – INshop, carpenter shop, glue, starch, soap, or

JUNCTION. candle manufactory, livery stable, or other building for offensive occupation shall at any been withdrawn by leave of court and costs have

Where bill in equity for an accounting has time hereafter be erected or used upon any part been paid by plaintiff, who thereafter brings an of the aforesaid lot of ground.”

action at law for the same cause of action, deThe lower court found that the neighbor- former equity suit to enjoin plaintiff from pro

fendant cannot maintain a motion entitled in hood immediately surrounding the property ceeding in his action at law. upon which the building was erected was exclusively residential in character. The de

Appeal from Court of Common Pleas, Philfendants' premises were Nos. 4317 and 4319 adelphia County. Walnut street, Philadelphia. The plaintiffs

Bill in equity for accounting by Samuel S. were owners of property in the same block. Alcorn against the D. L. Ward Company.

The opinion of the Supreme Court further Motion by defendant for an order to restrain states the case.

the plaintiff from proceeding at law refused, The lower court entered a decree perpet- and defendant appeals. Appeal dismissed. ually restraining defendants from using or

Argued before BROWN, C. J., and POT

TER, permitting others to use the buildings on the

STEWART, MOSCHZISKER, and lots in question for the purpose of a public FRAZER, JJ. garage or storage house for automobiles. S. Heckscher and Alfred Aarons, both of Thereafter the defendants continued the erec- Philadelphia, for appellant. tion of the building having such appearance. William T. Connor and John R. K. Scott, The lower court refuses to decree the remov- both of Philadelphia, for appellee. al of the building. Plaintiffs appealed. Error assigned was the decree of the court.

BROWN, O. J. On February 1, 1917, SamArgued before BROWN, C. J., and MOSCH- uel S. Alcorn, the appellee, filed a bill in eqZISKER, FRAZER, and WALLING, JJ.

uity in the court below for an accounting by Ira J. Williams and Charles L. Guerin, the defendant on a contract of employment. both of Philadelphia, for appellants.

A demurrer to the bill was overruled and an answer filed. When the case was called for

hearing on September 28th of the same year, PER CURIAM. The final decree in the

the plaintiff withdrew his bill and subseproceedings instituted against the appellees

quently paid the costs. the following Noenjoined them from using, or permitting any vember he brought an action at law on the one to use, any buildings on the lots described in the bill "for the purpose of a public same contract, and on January 30, 1918–

some four months after the bill had been garage or storage house for automobiles,” withdrawn-the appellant filed a petition in and the mandatory order asked for by the ap- the equity proceeding, asking for an order pellants was properly refused for the follow- enjoining the plaintif from proceeding in his ing reason, given by the learned court below: action at law. This petition was denied, on

"Between the time of the grant of the pre- the ground that the equity proceeding was liminary injunction and the final hearing the defendants had proceeded with the erection of the no longer pending, as the bill "had been building substantially without change from the withdrawn upon motion and with permission one originally projected It bears all the ap- before the taking of testimony before the pearance of a building erected for use as a pubfic garage.

The plaintiffs have requested the court." court to conclude as a matter of law that, the [1, 2] If the equity proceeding was at an buildings having been erected in violation of end at the time appellant's petition was filed, the terms of the injunction, the court should dow require the

same to be removed. With this the court could make no order in it, and apview we cannot concur. The character of the pellant's remedy, if entitled to the restraining order asked for, was by a bill filed by it HARVEY V. HARVEY. (Supreme Judicial against the appellee. That the equity pro- Court of Maine. Nov. 16, 1918.) On Motion ceeding had been fully ended is not open to ty, at Law. Action by Fred H. Harvey against

from Supreme Judicial Court, Aroostook Counquestion by the appellant. The bill was Simon Harvey. Verdict for plaintiff, and dewithdrawn by leave of court, and this was fendant moves for new trial. Motion overa dismissal of it by the court's permission. ruled. Argued before CORNISH, C. J., and “In a court of law the plaintiff may suffer a

SPEAR, HANSON. PHILBROOK, DUNN.

and MORRILL, JJ. Shaw & Thornton, of nonsuit at any time during the trial until Houlton, for plaintiff. Powers & Guild, of the jury are ready to give in their verdict, Ft. Fairfield, D. L. Theriault, of Ft. Kent, and even then he might, were it not for our and Benedict F. Maher, of Augusta, for de

fendant. act of assembly. This is often a great hardship upon defendants. So it is the general plaintiff and defendant moves for new trial on

PER CURIAM. Verdict was rendered for rule in a court of chancery that a complain the customary grounds. The plaintiff claimed ant may move to dismiss his own bill with that he was deceived by the defendant in a costs, at any time before the decree, and it trade for exchange of horses, that the defendis a matter of course to permit him to dis-horse was "all right in every way," that the

ant stated, when the trade was made, that the miss it. Cummings v. Bennett, 8 Paige horse, in fact, was wind-broken and of an ugly (N. Y.) 79; 4 Milne & Craig, 194, Curtis v. disposition, which facts were well known by Lloyd. And even upon the hearing of the the defendant at the time the trade was made,

and that finally the horse sickened and died. cause, if the court has merely directed an is- The defendant denied any representations as sue, the plaintiff may, before the trial of the to the conditions of the horse at the time of the issue, obtain an order to dismiss the bill with trade, and urged that the plaintiff's ill treat

ment of the horse after he obtained him was costs, because the directing of an issue is the real cause of the bad condition of the horse only to satisfy the conscience of the court and of his death. We must judge the testi. preparatory to its giving judgment.” Say-mony from the colorless pages of a printed

record. lor's App., 39 Pa. 495.

The jury saw the witnesses, heard

them testify, and weighed the testimony in the In the present case the appellee had offer- light of such opportunity to see and hear. We ed no testimony at the time he withdrew his have examined the record carefully, and are bill. When the case was called for hearing unable to say that the verdict, based upon the he abandoned it, and the appellant having testimony as the jury saw and heard the wit

nesses, was so clearly wrong, or was the result presented to him its bill of costs and received of such bias or prejudice, as would warrant payment of the same not due until the cause us in declaring that the verdict is a palpable had finally ended-is not now to be heard error.

Motion overruled. that the proceedings is still pending and an order can be made in it. This being so, it is unnecessary to determine whether the ac- THURSTON V. BENTON & FAIRFIELD tion of the court below in denying appellant's ST. R. CO. (Supreme Judicial Court of petition was interlocutory or final. Whatever Maine. July 3, 1918.) On Motion from Suit was, the appellant ha no standing to com

preme Judicial Court, Kennebec County, at

Law. Action by Alzada Thurston against the plain of it.

Benton and Fairfield Street Railroad ComAppeal dismissed, at appellant's costs. pany. Verdict for plaintiff. On motion. Mo

tion sustained, unless certain damages be remitted. F. W. Clair, of Waterville, for plaintiff. Weeks & Weeks, of Fairfield, for defendant.

PER CURIAM. In this case the jury

found a verdict for the plaintiff for $3,737.50. MEMORANDUM DECISIONS The case comes up on the usual form of mo

tion. The verdict of the jury upon the question of liability cannot be disturbed. But the damages are manifestly excessive. It is the

opinion of this court that $1,500 is ample and CURTIS V. NIXON. (Supreme Judicial liberal. It is therefore ordered: Motion susCourt of Maine. Sept. 7, 1918.). On motion from tained, unless the amount of the verdict above Superior Court, Kennebec County, at Law. $1,500 be remitted within 30 days from the Action by George H. Curtis against L. O. Nixo certification of this decision. on. Verdict for plaintiff. On motion. Motion overruled. Argued before CORNISH, C. J., and HANSON, PHILBROOK, DUNN, and MORRILL, JJ. Andrews & Nelson, of Augusta, for plaintiff. Harvey D. Eaton and PURCELL V. INTERNATIONAL MOTOR Frank 0. Dean, both of Waterville, for de- co. (No. 94.) (Court of Errors and Appeals of fendant.

New Jersey. March 4, 1918.) Appeal from SuPER CURIAM. The plaintiff recovered a preme Court. Proceeding by Patrick Purcell unverdict of $406.33 for damages sustained in an der the Workmen's Compensation Act, opposed automobile collision. The issue was legal lia by the International Motor Company, employer. bility on the part of the defendant. As is usual | From a judgment of the Supreme Court (103 in this class of cases, the testimony was sharp- | Atl. 860), affirming an award, the employer aply contradictory. The jury sustained the plain-peals. Affirmed. Kalisch & Kalisch, of New. tiff's contention, and the evidence abundantly ark, for appellant. Codington & Blatz, of justifies the verdict. The responsibility was

Plainfield, for appellee. placed, where it belongs, on the defendant. PER CURIAM. The judgment under review pressed in the opinion delivered by Mr. Justice STERLING LEATHER WORKS v. LIBBergen in the Supreme Court.

ERTY TRUST COMPANY et al. (No. 52.) TRENCHARD, PARKER, and KALISCH, (Court of Errors and Appeals of New Jersey. JJ., dissent.

Oct. 11, 1917.) Appeal from Court of ChanPARKER, J. (dissenting). The award rests

ery. Interpleader by the Sterling Leather on a finding of permanent injury to the eye

Works against the Liberty Trust Company and sight which in my judgment is not supported S. Schwarzwaelder, as executor of one Ronan. by any evidence in this case. At the trial both From a decree of the Court of Chancery (102 sides rested without any testimony of the per- Atl. 841), the Liberty Trust Company appeals. manent character of the injury. Petitioner | Affirmed. Archibald F. Slingerland, of Newhad not lost either eye, and claimed only im-ark, for appellant. Lintott, Kahrs & Young, of pairment of vision. The court called atten- Newark, for appellee. tion to lack of evidence of permanency of im

PER CURIAM. The decree appealed from pairment, and petitioner recalled an expert will be affirmed, for the reasons stated in the previously examined, who declined to give any opinion filed in the court below by Vice Chanopinion that it was permanent; and an examination of the whole of his testimony makes cellor Lane (102 Atl. 841). it clear that he considered the petitioner a malingerer. He said in substance that injuries of that character were sometimes permanent but usually not. Further he would not go. R. W. HARTNETT CO. v. POULTRY FANThe court, in deciding the case, said that as CIER PUB. CO. (Supreme Court of Pennsylthe injury was not shown to be temporary hevania. July 17, 1918.) Appeal from Court of must conclude it was permanent. This mani. Common Pleas, York County. Action by the festly reversed the burden of proof. I take it | R. W. Hartnett Company against the Poultry for granted that in a workmen's compensation Fancier Publishing Company. Exceptions to case the petitioner must bear the burden im- report of Ray P. Sherwood, Esq., auditor, apposed on other plaintiffs who seek to deprive pointed to distribute proceeds of the company, defendant of money or property by a claim of dismissed, and report confirmed, and C. J. damagès, of proving the amount of damages Delone, a creditor, appeals. Affirmed.

Arto which he was entitled. Of course, if he has lost an arm, or a leg, or an eye, the situation gued before BROWN, C. J., and MOSCHZISitself speaks, because we know the missing

KER, FRAZER, WALLING, and SIMPSON,

JJ. member will not grow again. But when the John J. Bollinger, of York, for appellee.

V. K. Keesey, of York, for appellant. injury is not claimed to be more than a functional impairment of vision, the court must de

PER CURIAM. To sustain this appeal, findpend on the knowledge and experience of ex- | ings of the auditor, confirmed by the court beperts and if no expert testimony points to per- low, would have to be disturbed, and, as we manent impairment, the court should not as- have not been convinced that there should be sume it. I think the judgment should be re- such disturbance, the decree of distribution is versed.

affirmed, at appellant's costs.

END OF CASES IN VOL. 104

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