The Wellington enterprise. [volume] (Wellington, Ohio) 1867-188?, 1883-09-12
COMMERCIAL Law.
Brief Dfgests of Late Decisions.
Compiled Specially for the st. Louis CONNER
p cial Gazette.1
VERBAL AND WRITTEN CONTRACTS.

/ llOulplleo cpeClhlly Tor the cl 1Oulb OOLaIucr-
cial Gazette.l
VERBAL AND WRITTEN CONTRACTS.
Action was brought on three promis-
sorry notes executed by defendant to
plaintiff. being the purchase money
of tract of land which plaintiff
sold to defendant, who at the time exc
cuted back mortgage TO secure their
payment. The mortgage contained .
power Of sale, under which plaintiff
after the notes became due, advertised
and sold the same and had it bought
| in for his benefit. 1t was afterward
agreed between them that If defendant
would surrender the possession of the
premises to the plaintiff, he would
| cancel the notes and release defendant
from any further liability. In pur-
suance of said agreement defendant
! permitted plaintiff to take possession of
/ the land and waived his right to re-
claim from the sale under the mortgage.
| AS this contract was not in writing,
plaintiff insists that he was not bound
| by IT. held, that when q parol agree
ment is executed courts will not inquire
| into the consideration nor disturb the
consideration in which parties have
voluntarily placed themselves. Where
the contract is actually cancelled and
the property surrendered, it is at an
end, and the formality of a written re-
lease is unnecessary. The effect-of an
executed agreement is the same
| whether the contract be sealed or
otherwise.-Russell VS.. Berkstresser,
Supreme Court of Missouri.
RAILWAY FENCING.
The statute requiring railway compa-
| nies to fence their tracks is not for the
purpose of protecting adjoining land
owners from damages that might be
done by stock getting on the right of
way and thence to the adjacent crops.
The object of the statute was to prevent
stock from coming on the railroad and
being injured, and to prevent accidents
which would likely occur if stock were
not fenced away from the track, thereby
promoting the safety of passengers and
| employees on the train. There Is q
| special requirement in the statute, the
| plain object of which is to prevent stock
from getting on the track, and for q
failure to comply with it special liza
bility is provided in respect to one
thing, viz, the damages which may be
done by the agents, engines or cars Of
the corporation to such stock so getting
ON the road, and providing that when
this requirement is complied with, liza
bility in respect to such damages shall
be dependent upon negligent or willful
conduct. The manifest purpose of the
law is to enforce this special duty by
attaching this special liability, and had
there been q purpose to create a liabil-
| ity beyond that specified, very different
terms would have been employed.-P.,
ID. & E. R. r. Co. VS.. Schiller, Appel
late Court of Illinois.
wIDow's SHARE OF ESTATE.
A wife demands and receives from
her husband one-third of the purchase
| price of a tract of land as and for her
| separate property, in consideration Of
her relinquishing to the purchaser. her
nchoate right OF dover in the land sold,
and the remaining two-thirds of the
| price passes into the personal estate of
| The husband. of which he dies possessed
iatestate. Held, that the widow is not
cstopped from claiming her distributive
share of any part of the personal estate
OF her deceased husband by reason of
the fact that such estate was augmented
by the conversion of such realty into
Observation-Disclosures VS.. Hite ct al, Su-
| preme Court of Ohio.
MUTUAL UNDERTAKINGS.
The undertakings In q contract
whereby one party agrees to sell and
deliver an article to another on the de-
mand of such other, at a certain place,
and upon the payment by him of GER
tain price, are mutual and dependent.
But before either party can maintain an
action against the other for non-per-
ormance of such a contract. he must
aver and show an offer of performance
on his part, or a readiness and willing
ness to perform according to the cir
cumstances of the case.-Neis ct al. VS..
Yocum, United States Circuit Court
District of Oregon.
EXEMPTIONS AND INSURANCE MONEY.
Where personal property exempt by
law from execution is destroyed, the in
surance money due upon its loss is not
exempt. The insurance company is
the debtor of the party insured for the
| amount of the insurance. There is Just
so much money due him" from the
corporation, not as the price or equiva-
lent of the property insured, but upon
an agreement to indemnify the insured
against its loss by fire, the considera-
| lion for which was the premium paid,
and not any interest in such property.
-Monniea VS.. German Insurance Com
pany, Appellate Court of Illinois.
CONSTRUCTION OF WILL
A widow with three infant children
| provided in her will as follows: II wish
my aunt L. to take charge of my chill
| dren, and to receive annually from my
estate for her services the sum of $500. .
| Held, that the clause was a direction
for payment of q certain sum annually
for services in charge Of children, and
| that the right to receive such payment
ended with the termination of her rela-
ton to the children. The direction in
question was akin to an appointment OF
| testamentary guardian, and should
be simply construed. -Hewson and
Emlen's Appeal, Supreme Court of
Pennsylvania.
CITY AND DEFECTIVE SEWERS.
A city Is bound to keep sewers erect
ed by it in good condition and repair,
and If negligent in this duty and the
sewers burst and property is damaged.
| the city is liable in damages. Notice to
| the city of the bad condition of the
sewer Is not necessary. The mere alb
| sence of notice does not absolve it from
liability, and if the defect existed and
ought to have been discovered and re-
| paired, the plaintiff need not, in order to
recover. show actual notice to the city.
| -Vanderslice VS.. City of Philadelphia,
Supreme Court of Pennsylvania.
ADMINISTRATORS LIABILITY.
When an administrator invests funds
in his hands in bonds secured by deed
of trust on church building, without
an order of court authorizing it, he will
be held to answer for any loss ensuing
from said investment, with interest, al.
though such investment may have been
made in good faith. Or in other words,
| where the administrator, without being