Richmond dispatch. [volume] (Richmond, Va.) 1884-1903, 1897-07-29

"a sell his lands. which were aI'er"alu'
boueht bv plaintiff In error. Mean i'i'e'
Cbaso mad sold some 1I9 walnut-trees
.berson and had notified agent tnd'
they would not pass with the ia"u. u
cbasers learned through aDs""F' Vi
OF sale Of the trees, ana were @'9o
formed Of IT by Chase. Deed Haue VIZ
ont reserving trees and notes slN'n 10
deferred payments on lana "i'nou'
handing any abatement pH't ~ -
maid. second extended. Nhen presseu ~.
payment. several years later apdteiiei',
/ demanded for shortage OF idnu az
credit for other items. but none Tor trees
! tm after this suit brought in 1892, though
having fun knowledge all the while that
H. ,rees had been sold to other partes'
Hold. Good faith and fair dealing re-
ouired that demand for abatement Il
made. should have been made before
executing notes for the land. kno"lns
the trees had been sold to other par
ties and that Chase did not intend 10
soil and could not convey them. us
conduct then and afterwards sho"eu
that it waived objection TO the SAFE anu
the demand nearly five years Afterwards
was an afterthought.
. objection that decree was rendered
against company before amount Vi
OVERLAPPING title was ascertained. lheIe
ougbt TO have been a release deed hIeu'
or the extent of the overlap ascertalhed
before decree OF sale was rendered
Record shows such release deed was
subsequently filed, and that the overlap
was only about a half acre-a case
where the maxim de minimis lex nom
curat applies.
2. The decree providing that commits
sioner of sale should execute his bona
before the Clerk of Wise. instead OF
the Clerk of Russell county where the
suit was pending, was an introductory
decree only. and appellant had full op-
uortunity to apply to the Circuit Court
for the correction of this error-no doubt
mere oversight Being interlocutory'
this court will amend the decree IN that
respect. Johnson. trustee. VS.. wagner
& Son 76 Va. 5S7 592; Price VS.. Thrash
80 Graft, 5l5. $50.
The accurate and legal mode of sur
veying land is by horizontal measure
ment. and I'm the absence or an
EXPRESS agreement it would seem that
IL must be surveyed by that method.
Code. section 9l5 A local custom or
usage cannot be relied on when lncon-
sistent with the terms of written CON
tract. nor i'm conflict with well settled
rules of law. III. Minors Inst, Vbl'
Smiths Leading Cases. 49, and note
where many cases are cited.
: usage may be established by one
witness. where it appears that he has
fuI knowledge and long experience on
the subject about which he speaks, and
testlfes explicitly to the duration and
unlversality Of the usage, and is not
contradicted Robinson vs.. United
States. Il Wall, 1853; Jones VS. Hoey, Us
Mass. 5Si: ! Greenl.. section 26O (O.
and note. There is nothing in the record
TO show that the witness relied on mere
had such knowledge or experience, nor
does he prove an established usage
general and notorious in the locality.
Hansbrough, executor, VS.. Neal. Feather
ston & Co., decided at this term.
ULTRA WIRES.
Augsburg L. and I. Company VS.. Pepper
Reversed. Opinion by Rely, j.
This was a case of a failing land COM
pany. which tried to adjust its debts
and all the stockholders except Pepper
and one or two others. had agreed 10
take back their lands at purchase price
give ND their stock and receive the
amount of money they had paid ln' ana
bound themselves TO share pro rata the
| COMMENCES Indebtedness. The stock
holders ratified this settlement and con-
| timed the committee Ohe president and
secretary in the hope That Pepper would
como 10 the same terms. Pepper pre-
| pared a contract-the one sought 10 De
| enforced here-Which was signed by nm
and such committee. He contends they
stoned not as a committee, but by
authority and direction OF the Board Oh
Directors; that it was final agreement.
and was so intended, which contention
IS not sustained.
Held. Even if contract had been so
executed. and was intended to be final,
without ratification of the stockholders.
If was not such a contract as the board
could make under the circumstances OF
this case. Pepper had full knowledge
Of the action OF the stockholders look
ing TO winding up the company. Under
the conditions as stated. the Board mao
no power to purchase for the company
the stock of one of its stockholders WIZ
its property. thereby diminishing It's as
sets and increasing its inability to meet
It's obligations and adding TO the burdens
Of the other stockholders They can
make no disposition of the corporate pro-
! perty which shall not enure TO the equal
| benefit of all the stockholders. such an
act not merely ultra wires, but fraud
upon the other stockholders. Thomp-
| son on Corporations, sections 800 4O52
Green's, Brice's Ultra Wires iSi nd
STREET IMPROVEMENTS.
Powell VS.. Town Of Wytheville. Revers
ed. opinion by Buchanan. }.
The corporation Authorities. in MAXIM
street Improvements. injured piaint'n
lot. The injury was set oit IN the oecia
ration. which was demurred to and de
! murrer sustained.
| Held. If the town exercised REASONABLE
care in doing the work authorized by II
| charter. il would not be answerahle L
owners of adjacent lots. whose lands ar
not actually taken, for consequential
damages. But if such work was no
done i'm a proper and skilful manner
| there arose a common law liability for al
damages not necessarily incident to IN
work. chargeable to the improper man
ner of executing it. Smith vs.. city o
Alexandria. SO Graft, POS. &C; Kehrer vs.
| civ of Richmond, 81 Va, 7i5; HON
Building Company VS.. City of Roanoke
81 Va. 81; Norfolk and Western Railroad
Company VS. Carter. ID. 5S7. 1928; Terr
VS.. City of Richmond, q $. +. r., 42S.
CONTRADICTORY NEGLIGENCE.
McDonalds Administrator VS.. Norioll
and Western Railroad Company. Al
hrmed. Opinion by Rely j.
A brakeman on a passenger train EOS
his life attempting to couple two cars
tho couplers of which were mismatched
The company was gradually substltutip
the Januey couplers. but the change ma
not been completely effected. There
no evidence that either coupler was GU
of order. but were simply of different de