The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1895-11-19


H''i' = - 49,
E. w. raucett VS.. Ludden and Bates
(appellants) from Durham county.
Opinion by Montgomery, j.
l. Where an answer alleged breach
of the contract sued upon without set
ting forth that the contract provided
for liquidated damages in case OF
breach. or that the damage was capa-
Bile of being ascertained thereffom by
computation, and no replication was
fled the proper Judgment was one
by default and inquiry; and this is es-
pecially so where no exception was
taken to the order of reference, which
the parties went into and conducted
with a view of ascertaining their true
relations.
2. Where plaintiff contracted to sell
the defendants musical instruments
and none other, but broke the contract
by selling instruments of otherpeople;
Held. LAT the burden is on the defen-
dant to show actual damage ON ac-
count of such breach, and it appearing
that plaintiff sold the other lnstru-
ments only to such parties as had re-
fused to buy instruments OF the de-
PENDANTS. and there being no evidence
of neglect or bad faith on the part OF
plaintiff in conducting defendants
business, a counter claim for the pro
fits the plaintiff had made from the
sale of the other instruments was pro-
perly refused.
Affirmed.
State (appellant) VS.. b. j. Fisher, from
Gullford county. Opinion by Avery,
j.
l. I'd
erty outside of and adjacent to the cor
porate limits of the city OF Greensboro,
extended one of the streets through
his premises, and after it had been
used for some time by the public, de-
PENDANT closed the same on account OF
the city refusal to keep the same IN
repair; Held,
i. A landowner has the right to re-
woke dedication granting right of
way over his land until bound by ac-
oeptance or estoppel.
3. In the absence of grant by deed,
the presumption of dedication can
arise only after user by the public for
20 years.
3. AS the defendant had offered to
dedicate but recalled his offer, the sub
sequent entry upon the street under
license from the city by street rail-
way company is in no view such an ac-
ceptance as will create an estoppel
4. But had the defendant sold lots
AUDITING on said street, then he and
tnose claiming under him would be es-
topped from denying the right OF such
persons and those in privity with them
to the user of the street, even though
the city refused to accept it for public
use.
E No error.
A. l.. Hassard-Short (appellanD VS..
Hardison q Biggs, from Edgecombe
county. Opinion by Furches, j.
Where, in an action for damages for
breach of contract, the only question
was the measure of the plaintiffs dam
ages by reason of defendants failure
TO deliver logs to the plaintiffs saw
mill for the space of one day, after
which they continued to deliver logs
according to the terms of the original
contract. Held,
/. That an issue as to plaintiffs en-
gaging in an occupation other than
saving lumber would have been i'm
proper there being no evidence to that
effect.
2. The fact that, after defendants
had resumed the delivery of logs, the
plaintiff attempted to purchase logs
elsewhere and failed to do SO, has no
bearing upon the question of the meas
ure of damages.
2 There is no error in the charge to
the jury that they will estimate the
value of plaintiffs personal services
as well as profits of mill, in liking the
amount of damages to which plaintiff
1nls avn
mill. etc, and what plaintiff did earn
or might have easily earned at other
employment"
f. Where the written contract, which
was the only contract declared upon,
provided that defendants accept pay
ment sin cash or its equivalent" with
out further explanations; Held, that
such provision means anything be-
sides money that defendants might
agree to accept, and because the de-
PENDANTS agreed to accept drafts upon
a certain firm, which they accepted at
various times during the contract,
they were not thereby compelled to
continue to do so under the original
contract.
Affirmed.
State VS.. Sam Pigford (appellant),
from Pender- county. Opinion by
Clark. j.
Where it appeared in evidence that
defendant was ARRESTED on his own
premises and requested the officer that
ne be allowed to leave his pistol at
home, which request was refused;
Held, that taking such evidence to be
true, it was still encumbent upon the
defendant TO explain satisfactorily
why he did not carry the pistol open
ly, as he had the right to do, after
leaving his premises, and not con-
cealed about his person.
No error.
". W. Miller appellant VS.. x. r. Pow
ers, sheriff, from Fender county.
Opinion by Avery, J.
Where plaintiff undertook to con
tradict the sherifr's return that no fees
were paid or rendered to lay of the
homestead; Held, that the return of
the sheriff being an official act, is
prima facie true, and the burden OF
proof is on the plaintiff to rebut such
presumption by contradictory eyi-
sence.