ticular meaning that the buyer has
the right of ordering the goods to
be shipped, as he wishes, between
the dates mentioned, and the seller
must ship them as the buyer
orders, and may not deliver the
goods without such order from the
buyer. That the provision for
manufacture after September 1st
was explained by evidence that
glass factories throughout the
United States suspend operations
annually on June 30th, and resume
on September 1st. Held, that this
evidence did not vary, nor tend to
vary, the written contract, but ex-
plained it, and made clear what,
without it, would have been uncer-
tain. Not one word was added to
the terms of the contract, but the
words used in it were exhibited in
the same light in which the parties
saw them when they employed
them, and consequently the evi-
dence was competent and admis-
sible. Atkinson v. Truesdell, 226.
9. When the issue is as to whether a
note was an accommodation note,
made without consideration and of
no legal inception, evidence of pay-
ment is inadmissible. Cohu v.
Husson, 238.

10. Where evidence bearing on a
certain question of fact is admitted
under exception, yet, if the ex-
cepting party is not injured, the
exception cannot be sustained on
appeal, even if the evidence was
improperly admitted, à fortiori not
when certain exhibits which were
put in evidence which might of
themselves have been a sufficient
ground for the ruling, are not con-
tained in the appeal book. Mortimer
v. N. Y. El. R. R. Co., 244.
11. A charge to the jury to disregard
certain evidence will cure an error
in its admission, if there was
error. Ib.

12. Although in an action brought to
obtain a judgment for a permanent
injunction testimony upon that
issue adduced by the plaintiffs is
improperly admitted, yet if enough
other testimony appears which, as
matter of law, supports the judg
ment for an injunction, that judg-
ment will not be reversed. Carter
v. N. Y. El. R. R. Co., 279.
13. Where experts have given evi-

dence as to their opinions of the
value of certain real estate, the
testimony of owners of adjoining
real estate, although not experts,
as it is called, as to the value placed
by them on their respective parcels,
is competent. Ib.

14. Evidence that the word "orders "
in a contract, whereby one is em-
ployed as a canvasser to obtain
orders for serial publications at a
compensation of a specified sum
"for each and every order ob-
tained" had a certain meaning in
the trade of book canvassing, is
admissible. Newhall v. Appleton,

343.

15. The defendant in an action
brought by the canvasser under
such a contract to recover the speci-
fied sums for orders obtained by
him, having called witnesses who
testified that the words according
to the usage and custom of the
trade meant each order that proved
good, by which was meant, that
the orders should be bona fide
signatures unconditionally for the
complete work, and should prove
good by the delivery of from one-
quarter to one-third of the whole
number of parts to, and the pay-
ment therefor by, the subscribers,
that such was the custom now;
and the custom in 1877 (when that
contract was made) was the same
as it is now. The plaintiff there-
after called witnesses who had
been familiar with the business
since 1878, or 1879, but not before,
and asked, "Do you know the
customs and trade meanings in that
business now?" The question was
objected to, and the objection was
sustained. Held error, for which
the judgment should be reversed.
Ib.

16. Under the custom and trade
meaning as testified to on behalf of
defendants the court held that
proper deliveries to the subscribers
was a condition precedent to pay-
ment by them, and therefore it was
relevant to the issue to investigate
whether or not the defendants had
made the proper deliveries. Ib.
17. A question was put to a real
estate expert as to the value of
plaintiff's premises at any time
since 1883, and prior to the con-

struction of defendants' structure.
The witness answered, that the
property at one time was valued as
high as $30,000. I submitted an
offer to Mr. Ross of $30,000.” De-
fendants' counsel moved to strike
out the last statement of witness.
that he had submitted an offer of
$30,000 to Mr. Ross, as incompetent.
The court denied the motion and
counsel excepted. Held, that this
testimony to prove a value was
clearly incompetent, but the evi-
dence of the value was competent,
and this statement was simply a
remark of the witness as a basis
for the formation of his judgment,
and was not incompetent in the
connection it was given, nor did it
in any way affect the result. Ross
v. Met. El. Ry. Co., 412.
18. One of the real estate expert wit-
nesses of plaintiffs was asked by
plaintiffs' counsel on the trial to
give the rental value of the premises
with and without the elevated rail-
road, for the years 1883 to 1888,
both inclusive. Counsel for de-
fendants objected to the question
as incompetent, irrelevant and im-
material, and not within the issues
of the action and a proper method
of proof. The court overruled the
objection, and counsel for defend-
ants excepted, and the witness an-
swered the question fully and in
detail. Held, That the question as
to the value of the premises at the
time was clearly competent. The
attention of the court was not called
to the objection now urged, that
the portion of the question that re-
quired the witness to give his
opinion as to the rental value of
the premises without the elevated
railroad was incompetent, and no
motion was made to strike out any
portion of the answer of witness
after it was given, and considerable
testimony was subsequently given
on the same subject by both plaint-
iffs and defendants without objec-
tion. Under these circumstances
the objection to the question in the
form it was taken was unavailing,
and the ruling of the court there-
upon sustained. Kernochan v. N.
Y. El. R. R. Co., 434.

19. The following questions were
put to a real estate expert witness

on the trial: "What, in your
opinion, would be the rental value
of those premises, No. 97 Pearl
street, to-day, if there were no
elevated railroad in front of them;
and what, in your opinion, would
be the value of those premises if
there were no elevated railroad.in
front of them?" These questions
were objected to on the grounds
that they were hypothetical; that
the witness was not competent to
give an opinion, and also that they
were immaterial and incompetent,
and the objections were overruled
by the court, and counsel for de-
fendants excepted; and the answers
of the witness were taken. Held,
that prior to the decision in the
McGean Case, in the court of
appeals, it was held under many
decisions that such questions were
admissible, and that the opinion
of a witness, who has seen the
premises in question, and is ac-
quainted with similar property and
things, is not incompetent for sub-
mission to a court or jury. In the
McGean Case, the court of appeals
held, that objections like those
taken in this case to like questions,"
did not apprise the court that de-
fendants meant to object on the
ground that the questions called
for what the judge was to determine
upon other testimony in the case.
The questions in the case at bar
were not objectionable, therefore,
on any ground taken at the trial.
Roosevelt v. N. Y. El. R. R. Co.,
438.

20. At the time of the entry of the
judgment in question, the defend-
ant was domiciled in the state of
Pennsylvania, and was personally
bound by the judgment, provided
it was entered in accordance with
the laws of that state. The evi-
dence in the case shows that
the judgment, notwithstanding its
faulty form, is, under the laws of
Pennsylvania, in every respect a
valid judgment of a court of gen-
eral jurisdiction in that state. That
during the period the note had to
run, the judgment was only a lien,
but on the maturity of the note it
became absolute and enforceable
by execution. Teel v. Yost, 481.
21. In order to enforce the prohibi-

fraud of some kind had been per-
petrated, there was no proof that
the particular fraud alleged in the
complaint had been committed, and
therefore the order is affirmed.
The Mayor v. Brady, 14.

2. In an action to recover damages
for false and fraudulent representa-
tions concerning a certain mine,
the defendant denied the fraud,
and set up a distinct and separate
defence, to the effect that the
plaintiff, with full knowledge of all
the facts alleged in his complaint,
had for a legal consideration, fully
released and discharged the defend-
ant of and from all claims and
demands arising in any way from
any and all of the transactions
stated in his complaint, and on the
trial the release described in the
answer was fully established; and
it also appeared that prior to the
execution and delivery of said
release, that the plaintiff had in his
possession a certain affidavit made
by a third person as to a number of
facts which showed fraud to some
extent, on the part of the defend-
ant, in the original transaction.
The trial judge thereupon ruled
that, in order to succeed, the plaint-
iff was bound to show that the
release had been obtained by fraud,
and also, that the plaintiff had
returned or offered to return the
money and property received under
the release. The counsel for plaint-
iff admitted that no such return
nor offer of return had been made,
and upon such admission the court
excluded all further evidence offered
in support of the claim of fraud in
the original transaction, and finally
directed a verdict for defendant.
Held, that in case the compromise
agreement was obtained by fraud,
the plaintiff had a cause of action
by reason thereof, and had an elec-
tion of remedies. He was not
bound to rescind and return or
offer to return the consideration
received. He had a right to retain
the consideration and to sue for
the damages he had sustained by
reason of the fraud, by means of
which he was induced to enter into
the compromise agreement. The
original fraud had been released by
the compromise agreement, and to

recover upon that fraud it was
necessary to get rid of the effect of
the compromise agreement and
release, and to do this it became
necessary to prove a fraud in the
compromise and a return or offer
to return of the consideration re-
ceived for the same. These results
called for an affirmance of the
order vacating the order of arrest,
in the action. Davidson v. Sumner,
29.

3. The cause of action in this case,
as claimed by plaintiff's counsel on
the trial, was for damages from
personal injuries sustained by the
plaintiff through the invasion of
her house by the defendants, and
by the threats made to her by them
and the consequent injuries that
she suffered thereafter and there-
from. The court declined to submit
any question to the jury and dis-
missed the complaint. Held, that
the only question for consideration
on the appeal is, whether the de-
fendants, in obtaining property or
influencing the action of plaintiff
by means of duress, are liable for
subsequent consequential distress
of the plaintiff and physical suffer-
ing caused by such mental distress;
and the court finds no authority or
principle to sustain such a claim.
Wulstein v. Mohlman, 50.

4. The disposal, by the assignee in
insolvency under an order of such
insolvency court, at a private sale
of an asset inventoried as of nom-
inal value, to a son-in-law of the
insolvent, for the nominal sum of
$2, and the relinquishment by
the purchaser of the subject of his
purchase to the insolvent, will not,
in the absence of other facts or
evidence establishing conspiracy,
fraud, collusion or concealment,
raise an implied trust in favor of
the insolvent's creditors upon
whom the discharge is conclusive,
or of their assignees, by assign-
ments subsequent to the discharge,
or sustain an implication of fraud
for their benefit;à fortiori not, when
his interest in the asset is purely
speculative, resting in trust to him
and defendant on the ultimate suc-
cess of litigation, which success is
itself dependent on his personal
exertions and ability to raise and

procure funds to meet the necessary
expenses. Murphy v. Philbrook,
204.

5. In this case plaintiffs were the
owners of goods sold to the defend-
ant, and received defendant's notes
for the purchase price, and plain-
tiffs afterwards, and before the
notes became due, elected to res-
cind the contract and to proceed
against the defendant for fraud,
and brought an action to reclaim the
goods on the ground that such sale
was induced by fraud. Held, that
after this election and action on
their part. they could not after-
wards successfully assert a claim
and recover in an action against
the defendant on the contract or
the notes. The contract was term-
inated by this election on the part
of plaintiffs, and no action on the
part of plaintiffs could revive it.
Crossman v. Universal Rubber Co.
459.

6. A question arises upon the validity
of bonds issued by the plaintiff,
some of which were sold to defend-
ants, or some of them, at seventy-
five per cent of their face value.
Held, that the transaction in itself
was not invalid. Lyceum v. Ellis,
532.

7. Assuming, however, that such of
the defendants as were trustees of
the company when they took the
bonds and held such a relation to
the company, that the latter could
avoid the transaction, the right to
avoid was an equitable right. The
transaction was not void but only
voidable, and might be ratified.
If the stockholders ratified the
same expressly or by acquiescence
after knowledge for a sufficient
time, the plaintiff cannot avoid the
the transaction, and the facts in
this case fully establishing such a
ratification and acquiescence, the
transaction cannot be avoided. Ib.

GUARDIAN.

See INFANTS.

HANDWRITING.

See EVIDENCE, 7.

ILLEGAL CONTRACTS.

See CONTRACTS, 6.

INFANTS.

1. An action brought against a
guardian and ward based upon a
contract with the guardian for the
board and lodging of the ward
while an infant, cannot be main-
tained against the infant after he
becomes of age, especially after
judgment has been recovered
against the guardian on such con-
tract. The plaintiff must look to
the guardian only for payment.
Nethercott v. Kelly, 27.

2. In the case of an infant non sui
juris if her parent's negligence suf-
fered her to go into the danger
which resulted in her injury, she
has no action. And if on the trial
it incontrovertibly appeared that
there was such negligence on the
part of the parents, and the jury
could not have properly found to
the contrary, a dismissal of the
complaint below was correct. Weil
v. D. D., etc., R. R. Co., 188.
3. If a child of plaintiff's age, that
needed positive restraint to keep
her in safety, goes into danger, and
it appears that the use of ordinary
means of restraint would have
prevented it, the conclusion of law
is, that such ordinary means were
not used, and a jury could not
properly conclude otherwise. Ib.
Where all the parts of the ma-
chinery and their movements are
fully exposed to view and the em-
ployee has been engaged thereon for
some time, the absence of specific
instructions by the employer to the
employee not to permit her hand
to be caught between the moving
machinery, constitute no ground of
liability. Oszkoscil v. Eagle Pencil
Co., 217.

4.

5. The principle, laid down in Hickey
v. Taaffe, 105 N. Y. p. 26, as to the
general rule of law upon the sub-
ject of employee not being altered
by the bare fact that an employee
is a minor, applied. Ib.
Infant, acquiescence by in contract—
delay after arriving at majority.-
See Thorp v. Riley, 589.