WHETSELL et als, v. CITY OF ELKINS. Randolph County. Decree Reversed: Remanded. 1. By virtue of chapter 47 of the Code under which it was incorporated, the City of Elkins had power and authority, in the yearз 1903 and 1904, to pave its streets and charge two-thirds of the cost of paving them to abutting property owners, notwithstanding the grant of a new charter by the legislature of 1901, since section 42 of chapter 151 of the Acts of 1901, constituting such charter, expressly reserved to the city all the powers previously conferred upon it by said chapter 47. 2. When lack of authority in a city council to charge the cost of paving to abutting property owners or other cause of invalidity extending to all paving assessments made in the city, is the cause of action alleged, one or more persons, charged with special assessments for cost of paving, may sue on behalf of themselves and all others so charged, to invalidate the assessments. 3. As the section of a street between two cross streets or a cross street and an alley is the unit for paving, established by section 34 of chapter 47 of the Code of 1996, a bill to enjoin collection of spe. cial assessments made under that section on the ground of lack of sufficient petition to the council by property owners, must be confined to property on the particular section in respect to which the petition is Insufficient and owners thereof, and cannot extend to property on more than one section or the owners thereof. 4. A bill to enjoin collection of a special assessment for street paving must set forth ground of invalidity therein, it being incumbent upon the plaintiff to show right to the equitable relief he seeks. 5. An injunction standing on a bad bill, but sustained by proof, not admissible under the allegations of the hill should be continued for a reasonable time, to enable the plaintiff to amend his bill, if he desires to do so. 1. In order to entitle a municipality to proceed by mandamus to compel a telephone company to remove one of its poles, lawfully erected on one of its streets, it must first notify such company particularly and definitely of what it desires it to do. 2. If the municipality has reserved the right to select the location for such poles, the notice to remove is incomplete and insufficient in law, if it fails to designate particularly the place to which, as well as from which, it desires the pole to be removed. BELCHER ▾ BIG FOUR COAL & COKE CO. et al. SYLLABUS. 1. Equity has jurisdiction of a suit for an accounting, when there is a privity of contract between the parties, even though the accounts be all on one side, when the bill prays for a discovery and alleges facts which show that a discovery is essential to the establishment of plaintiff's rights. 2. Parol evidence is always admissible to explain latent ambiguities in a written instrument. 3. When the owner of coal makes a written lease of it, in consideration of a royalty of $1.50 per "railroad car, or its equal, of coal," and it appears that, at the time the lease was executed, railroad cars of various sizes were used for transporting coal there is a Iatent ambiguity in relation to the unit of measurement; and parol evidence is admissible to explain what was the capacity of the car inter.ded. 4. When it appears that the leszor in such a lease has performed no other act than to receive the money under it, at the rate of $1.50 per railroad car, for which he was not required to execute a written receipt, he will not, for sin.ply receiving the money, be held to have acquiesced in the construction sought to be placed upon the lease by the lessee. He is not estopped thereby from- proving that he had a different understanding of the terms of the lease from that claimed by the lessee. AMERICAN CANNING CO. v. FLAT TOP GROCERY CO. Mercer County. Affirmed. SYLLABUS. 1. The fact that a sample is exhibited does not necessarily make the transaction a sale by sample. The contract must evince intention to contract by sample. 2. As a general rule, when the contract is in writing and there is nothing therein indicating that a sample was used or referred to parol evidence is not admissible to show a sale by sample; and wheth. er or not the writing, upon its face is a complete expression of the agreement of the parties is one of law for the court. 3. In a suit by vendor against purchaser, the contract, in writ. ing, calling for "Standard No. 3 berries," an instruction to the jury ignoring the fact that at or before the time of the contract samples were exhibited by the broker, and telling them that if they found by the evidence that the goods called for by the contract and tendered by the vendor was a standard of berries well known to the commercia! world, and descriptive thereof, was not erroneous, the finding of such fact being conclusive of the rights of the parties, parol evidence being inadmissible to vary or explain the terms of such contract or to show that samples had been exhibited by such broker. 4. When the seller elects to retain the goods tendered to and refused by the vendee the general rule for the measure of damages for a breach of contract the by the vendee, is the difference betwee:1 the contract price and the market price at the time and place stipu. lated for the delivery thereof. But if the vendor elects, as he may, to treat the goods refused as the property of the vendee, and after notice to sell them for his account, the measure of his damages is the difference between the selling price realized on the resale thereof, fairly made, in good faith by vendor. 5. The vendor in making such resale is not limited to the time and place stipulated in the contract for delivery of the goods. He may after notice to the vendee of his intention to resell the goods for his account, exercise his discretion as to the time and place of such resale. 6. Binding instructions to the jury based on controverted fact, and which are not conclusive and which ignore other facts and theories in the case are erroneous, and are properly rejected. 7. Unless there has beer. plain abuse of its discretion, prejudicial to the complaining party, the judgment of the trial court will not be reversed for irregularities in the manner in which it has permitted the parties to introduce their evidence in chief and in rebuttal. KROHN, FECHHEIMER & CO. v. SOHN, 1. If a justice at a trial announces a judgment favorable to a party, and, after the lapse of the ten days allowed for appeal, enters. as of the date of the trial, a wholly different judgment, one against the party, a case is made warranting the circuit court in granting an appeal within ninety days. 2. A plaintiff, in a case before a Justice may dismiss his action. without prejudice to a new suit, before a final submission of the case for decision on the merits. 3. The mere want of a caption to depositions does not invalidate them if the notice under which they are taken aud the certificate of the notary as to their taking supply all that a caption usually contains GAWTHROP v FAIRMONT COAL CO. Harrison County. Remanded and Reversed. The provisions of Code 1906, ch. 79, sec. 7, inhibiting the mining of coal within five feet of a division line, apply to one owning a vein of coal without ownership of the surface. SUTER, GUARDIAN v. SUTER et al. Marshall County. Affirmed. Robinson, Judge. 1. The law favors the vesting of estates. Though a devise be clearly conditional, the condition will be construed, when possible, as a condition subsequent, so as to confer an immediately vested estate subject to be divested on the happening of the contingency. 2. A marriage may be proved by circumstances, reputation, conduct of parties and cohabitation, and a presumption of marriage arising from cohabitation apparently matrimonial, especially where the legitimacy of a child is involved, is so strong that it may be overcome only by cogent proof on the part of him who alleges the illegitimacy. 3. A guardian may maintain a suit for partition on behalf of his ward. GREATHOUSE, GUARDIAN, v. MORRISON, EXECUTOR. Braxton County. Judgment Reversed, Motion to Quash Overruled and 1. Case Kemanded. One or more of a number of joint judgment debtors having died, the judgment may be revived by a writ of scire facias against the surviving judgment debtor or debtors. 2. At common law a judgment could not be revived or enforced against the personal representative of one of two or more joint judg ment debtors, but section 13 of chapter 100 of the Code of 1906 authorizes a separate scire facias against him. 3. Through a writ of scire facias to revive a judgment against surviving judgment debtors commands service thereof on such personal representative and service thereof is made upon him, the latter is not really a party to the writ if it warns him that execution will be asked against the survivo:s only. STREET v. PARSONS, JUDGE, ET AL. In Prohibition. Writ Refused. Section 95, Ch. 50, Code 1906. denies the right of appeal from the judgment of a justice rendered on award, unassailed; but an appeal does lie to the circuit court from the judgment of a justice refusing, on motion of appellant made within fourteen days after the rendition of the judgment, to set aside an award and judgment thereon, for cause, as provided by section 34, of said chapter. THE BAR "The average man is in a position to observe what is going on in the world and he is scrutinizing both men and measures. What is more, there is a well-defined purpose running through this world performance. Leadership is being revised the demagogue has been made to see the handwriting on the wall. The inefficient man, who has been promoted by sheer favoritism, has been so embarrassed by his unfitness for responsibilities that he has asked to be excused. The public eye is looking for men who are head and shoulders above the common run of political aspirants. It seems that the rule may yet be that the office shall seek the man. Mere popular leadership is discredited; there is a clear call for men with old-time integrity and characteristic ability to lead us to the realization of the true spirit of world citizenship. This is a most healthy sign. The sincerity and downright earnestness on the part of the common people to see this strategic fact of all progress realized is encouraging. PRICE, 10 CENTS. $1.00 A YEAR IN ADVANCE. NEW DOMINION PRINT, MORGANTOWN, W. VA. |