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TRIAL CONTINUED.

1.

2.

3.

Condemnation proceedings, see EMINENT DOMAIN.

Instructions in condemnation proceedings, see EMINENT DOMAIN,
3, 5, 6, 12.

Instructions for conducting game of poker, see GAMING, 3.
Instructions in prosecution for murder, see HOMICIDE, 3.
Summoning and impaneling jury, see JURY, 2, 3.

Right to trial by jury, see JURY, 3.

Instructions as to contributory negligence, see MASTER AND SERVANT,

10.

Motions and grounds for new trial, see NEW TRIAL.

Findings of referee, see REFERENCE.

TRIAL PROVINCE OF COURT AND JURY-PRIMA FACIE CASE-JUDG-
MENT NOTWITHSTANDING VERDICT. Where, on a former appeal, a
nonsuit is reversed because the evidence made out a prima facie
case for the jury, it is error on a retrial, after refusing a nonsuit
because the evidence was substantially the same as on the former
trial, for the trial court to grant a judgment for the defendant not-
withstanding a verdict for the plaintiffs; his power being limited
to the granting of a new trial if the verdict amounted to a mis-
carriage of justice. O'Connor v. Force
... 215

TRIAL INSTRUCTIONS. It is not error to refuse instructions cov-
ered by the general charge. Wharton v. Tacoma Fir Door Co.. 124
Weed v. Foster

675
681

State v. George

TRIAL VERDICT-SPECIAL DAMAGES-INCONSISTENCY-CONTRACTS-
CONSIDERATION. In an action by a subcontractor to recover additional
compensation promised him after undertaking the work, a special
finding by the jury that the consideration for the promise was the
fact that the principal contractors were under bond to complete the
work within a stated time does not control a general verdict for the
plaintiff, where the jury were instructed that they must find some
consideration for the promise and that one promise is a good con-
sideration for ancther; since (1) the consideration for the promise
was a legal question for the court, (2) the special finding implies
that the minds of the parties met and that mutual promises were
made, and (3) the consideration found was sufficient. Evans v.
Oregon & Washington R. Co. ..
429

4. TRIAL VERDICTS-JUDGMENT-CONFORMITY

....

TO VERDICT-HOSPITAL
ASSOCIATIONS-MALPRACTICE. In an action for malpractice against a
physician, and a hospital association and its successor by whom he
was employed at different periods of plaintiff's treatment, a verdict
against the hospital association separately for $2,000, against its
successor for $4,000, and against the physician individually for
$1,000, does not authorize a joint and several judgment against all
the defendants for $7,000, nor against the physician for said sum,
nor a joint judgment against any two of them, when read in the light
of the court's instructions to the jury that they might bring in

TRIAL-CONTINUED.

separate verdicts against the hospital association and its successors
for negligence other than that of the physician, and against the
physician individually for negligence while not acting as agent; nor
a joint verdict against the hospital association and the physician
for his negligence during one perod of the treatment while the
physician was in its employ, a joint verdict against the successor
and the physician for another period while in its employ, and a
verdict against the physician individually while wot in the employ
of either. O'Brien v. American Casualty Co.

477

5. TRIAL-VERDICTS-CONFLICTING FINDINGS-HOSPITAL ASSOCIATIONS

-MALPRACTICE-JOINT AND SEVERAL LIABILITY. In an action for mal-
practice against a physician and a hospital association and its suc-
cessor by whom he was employed at different periods of the plain-
tiff's treatment, in which the gravamen was the negligence and in-
competence of the physician, the verdict is unsupported by the evi-
dence and conflicting and there was a substantial mistrial, requiring
a new trial, where the court instructed the jury that they might
bring in separate verdicts against the hospital association and its
successors for negligence other than that of the physican, and
against the physician individually for negligence while not acting
as agent, or a joint verdict against the hospital association and the
physician for his negligence during one period of the treatment
while the physician was in its employ, a joint verdict against the
successor and the physician for another period while in its employ,
and a verdict against the physician individually while not in the
employ of either, and under the instructions the jury returned a
general verdict against one association separately for $2,000, against
the other association separately for $4,000, and against the physi-
cian individually for $1,000, and also answered special interrogatories
to the effect that the $2,000 damages assessed against the hospital
association was due to the negligence of the physician acting as its
servant, during the only period of the treatment that the physician
could have been acting individually; and a judgment for $1,000
against all the defendants notwithstanding the verdict is error,
since any permanent injury resulted from the negligence of the phy-
sician and the findings fail to fix the responsibility therefor upon
either the association or its successor. O'Brien V. American Cas-
ualty Co....

477

TRIAL BY JURY:

See JURY, 3.

VACATION:
Review of order vacating default judgment, see APPESL AND ERROR,

2, 3.
Of attachment, see ATTACHMENT.
Of tax deed, see TAXATION, 3-6.

VEHICLES:

VALUE:

Of land or buildings appropriated for public use as measure of com-

pensation, see EMINENT DOMAIN, 4, 6, 7, 14.

Opinion evidence as to value of property, see EVIDENCE, 12, 14.
Waiver of right to question value of property in debtor's claim of
exemption, see EXEMPTIONS, 3.

1.

VENDOR AND PURCHASER:

Possession and mistake as to boundaries as constituting adverse
possession, see ADVERSE POSSESSION.

Cancellation of grantor's deed, see CANCELLATION OF INSTRUMENTS.
Parol evidence to explain written contract for sale of land, see Evi-
DENCE, 5.

Conveyances between husband and wife, see HUSBAND AND WIFE,
1, 2.

Contributory negligence of driver of vehicle imputable to occupant,
see NEGLIGENCE, 5.

3.

Conclusiveness as against vendee of judgment against vendor, see
JUDGMENT, 5.

Sale of state lands, see PUBLIC LANDS.

Transfers of ownership of personal property, see SALES.
Specific performance of contract, see SPECIFIC PERFORMANCE, 1, 2.

VENDOR AND PURCHASER-CONTRACTS-RESERVATION OF TIMBER—-
TIME FOR REMOVAL-EXTENSION-EVIDENCE-SUFFICIENCY. There is

not sufficient evidence of an oral extension of the time reserved
within which to remove timber from land sold by the plaintiff to
defendant, where plaintiff could not testify that the defendant made
any further reply than to say "yes" or nod his head when asked
for the extension, leaving an impression that it would be satisfactory,
and defendant denied granting any extension. Lehtonen v. Marys-
ville Water and Power Co. ..
86

2.

SAME EVIDENCE OF EXTENSION-ADMISSIBILITY.

Upon an issue

as to whether an extension of time had been granted for the removal
of timber, evidence as to what the party would have done to protect
his interest if the extension had been refused is properly excluded
as immaterial. Lehtonen v. Marysville Water and Power Co. ... 86

VENDOR AND PURCHASER-CONTRACTS-PERFORMANCE BY VENDOR-
ACTION FOR PRICE-DEFENSES-TITLE. In an action to recover on a
promissory note given as the first cash payment on a sale of land
which the vendee sought to rescind, it is immaterial that the title
of the land stood in the name of a third party, where at the time of
the sale the vendor secured a deed of the lands from the title holder
to the vendee, and placed the same in escrow at the vendee's request
awaiting deferred payments, and the vendor was able to perform
and tendered full performance. Ankerson v. Larson

113

VENDOR AND PURCHASER-CONTINUED.

4. SAME OBJECTIONS TO TITLE—Waiver—EvVIDENCE-ADMISSIBILITY.
The oral and written opinion of an attorney pointing out defects in
the title as shown by an abstract of title, is not admissible in evi-
dence upon an issue as to the vendee's right to rescind, where the
opinions were acts in the preliminary proceedings long before the
execution of the contract, the defects were not pointed out by the
vendee to the vendor or corrections requested, and no objections
were made to the title, which was satisfactory to the vendee when
the contract was made. Ankerson v. Larson
... 113
5. VENDOR AND PURCHASER-CONTRACT ASSIGNMENT-CONSENT OF
VENDOR. A contract for the purchase of land is assignable by the
vendee without the consent of the vendor, where there were no spe-
cial circumstances in the contract to indicate an intention of the
parties that it was not assignable, but on the contrary it contained a
clause to the effect that, wherever the words vendor or vendee ap-
pear, it is understood to include heirs, assigns, successors, etc.; and
it is immaterial that on the back of the contract, after a form for an
assignment, there was a recital for acceptance and approval of the
assignment; since it was no part of the contract, and simply a
provision for a novation. Hunter Tract Improvement Co. v. Stone
... 661

6. VENDOR AND PURCHASER-RECORD OF CONTRACT-NOTICE-STATUTES.
Construing together the recording acts, executory contracts for the
sale of real estate, while not expressly mentioned, are included with-
in the meaning of the words "deeds, grants and transfers of real
property," and may be recorded, especially in view of the custom to
record the same. Bernard v. Benson
... 191

7.

8.

VENDOR AND PURCHASER-BONA FIDE PURCHASERS-RIGHTS-No-
TICE. A bona fide purchaser from a bona fide purchaser is not
affected by subsequent notice given to his vendor. Bernard v.
... 191

Benson

VENDOR AND PURCHASER-BONA FIDE PURCHASER-RECORD-NOTICE.
Under Rem. & Bal. Code, § 8785, requiring the county auditor to
procure such "books for records as the business of the office re-
quires," and in view of the uniform custom to record instruments
affecting the title to real property in Deed Records, and of personal
property in Miscellaneous Records, the record of an executory con-
tract for the sale of real estate in Miscellaneous Records does not
import notice. Bernard v. Benson
... 191

9. SAME ACTUAL NOTICE-POSSESSION OF PROPERTY. Actual notice
of an executory contract for the sale of real estate, recorded in the
wrong book, is not to be imported from the fact that one of the
vendees had slashed about two acres of the tract, where he had
subsequently abandoned the same; nor by the fact that the cattle
of such vendee and of others ranged upon the property; nor by the
fact that one of the vendees lived in a small house either on the

10.

VENDOR AND PURCHASER-CONTINUED.

property or in a county road, where such vendee did not assert
any claim or right to possession in conversations with the bona fide
purchasers. Bernard v. Benson
... 191

VENUE:

1.

VENDOR AND PURCHASER-DEFECTS IN TITLE-RIGHTS OF VENDEE.
The purchaser of a tract of land, who finds that part of the land is
owned by a third party, from whom he purchased such part, is
entitled to a credit for the sum paid for such part. Bernard v.
Benson

191

VENUE-LOCAL PREJUDICE-SHOWING.

Upon a strong prima facie
showing of local prejudice for a change of venue, the state should
make a counter showing. State v. George

681

VERDICT:

Review on appeal or writ of error, see APPEAL AND ERROR, 22-25.
Excessive verdict in action by brokers for breach of contract, see

BROKERS, 5.

Inadequate or excessive verdict, see DAMAGES, 4.
Excessive damages for wrongful death, see DEATH.

WAIVER:

In prosecution for playing or conducting game, see GAMING, 2, 3.
In civil actions, see TRIAL, 3-6.

VERIFICATOION:

Of informations, see INDICTMENT AND INFORMATION.

VICE PRINCIPALS:

Acts of foreman, see MASTER AND SERVANT, 4.

WAGONS:

Exemption from forced sale, see EXEMPTIONS, 1.

See ESTOPPEL.

Objection to splitting cause of action, see ACTION.
Of right to appeal, see APPEAL AND ERROR, 9.

Of exceptions or objections, see APPEAL AND ERROR, 10-13.

Of stipulation in contract for sale of bonds, see BROKERS, 1.

Of right of accused to demand copy of charge, see CONSTITUTIONAL
LAW, 1.

Exemption from execution, see EXEMPTIONS, 3.

Of right to complete building after abandonment, see PRINCIPAL AND
SURETY, 4.

Breach of warranty in sale, see SALES, 7.

Objections to title, see VENDOR AND PURCHASER, 4.

WAREHOUSEMAN:

Tax for inspection of grain shipped, see INSPECTION.

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