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
TRIAL VERDICT-SPECIAL DAMAGES 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
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
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 not in the employ of either. O'Brien v. American Casualty Co.
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... . .
Review of order vacating default judgment, see APPEAL AND ERROR, 2, 3.
Of attachment, see ATTACHMENT.
Of tax deed, see TAXATION, 3-6.
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.
Contributory negligence of driver of vehicle imputable to occupant, see NEGLIGENCE, 5.
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.
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
SAME EVIDENCE OF EXTENSION-ADMISSIBILITY.
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 3. 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
VENDOR AND PURCHASER-CONTINUED.
SAME-OBJECTIONS TO TITLE-WAIVER-EVIDENCE-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
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.
8. 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
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
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
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.
In prosecution for playing or conducting game, see GAMING, 2, 3.
In civil actions, see TRIAL, 3-6.
Of informations, see INDICTMENT AND INFORMATION.
Acts of foreman, see MASTER AND SERVANT, 4.
Exemption from forced sale, see EXEMPTIONS, 1.
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.
Tax for inspection of grain shipped, see INSPECTION.
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