The times. [volume] (Richmond, Va.) 1890-1903, 1898-09-25

words should your superlntonoeh''
from any cause. ship US a car or mater
| ial that according TO the Judgment %
our washer foreman be UNFIT 10 WASH,
| this car is 10 be side tracked until your
| superintendent can go 20 and look az -,
and the two are to decide what Is pest
! 10 be done about the car, that 10 Wheliier
| It shall Do dumped and then thrown
| away, or washed TO arrive AT ls uu,
| value IN COMPARISON Win the othei car.
on the trial the company objected 70
testimony 20 prove damages tesult,ls
70 Teaford from its delay IN resui ,i,ns
operations Objection oNeiIu'eu' "i"
s. first error assigned IT..
The general manager informed plaln1
iTs Of injury 10 the pump, and assured
them that I'm FIVE or six days a new one
would be procured and the work proceed
Tfr-o vent on. and the assurance was
rfvon again and again. whereby pialnl-
MS were kept I'm expectation ana COM
narrative fdleness. After more than three
months. a secondhand pump Deionslhs
Z "a tho president OF the company, there
tcfore used I'm a coal shaft. was brought
and work was resumed. but not until the
nresident and bought land In the vicin-
itv containing iron ore and the company
built a railroad TO It and got ready 10
utilize fl. Evidence had been introduced
tending TO prove that the delay in getting
another pump was unnecessary ana uh-
reasonable
Hold. Under these circumstances evil
dence was admissible % show that plain
,i4s had suffered loss from the delay.
The next assignment is 20 the admis-
sion of testimony 10 prove that the ore
I'm the cars which were side tracked was
such as should have been received ana
That It was improperly rejected.
Held: The pr0priety Of admitting It IS
vorv clear The foreman and supcrin-
tendent could not agree. No provision
for disagreement between them was
made I'm the contract. The company de-
clined arbitration and the only other way
~ settling the contention was 10y re-
sort 10 the tribunals established for adj
indication Of the rights Of parties. The
iurv coud not decide the question Of fact
except upon evidence as 20 the charac-
ter OF the ore. and evidence for this
purpose is clearly admissible. The case
is wholly unlike Condor VS. s. s. 5. r.
60. II Graft 302 wherein tho contract
made the engineer Of the r. r. CO.. the
sole arbitrator of an questions OF law or
fact arising under IT,.
.. The evidence having been properly
admitted the jury were entitled to con-
slider Il. AZ 10 the instructions.
Held 1: II IS not necessary 20 recovery
for loss for protracted delay that the
DELAY be the result Of deception ana
fraud Actual fraud is not an essential
ingredient 20 the breach Of contract.
IL failure 10 receive was unnecessarily
protracted. or delay could have been
avoided by due diligence the plantina
were entitled 20 recover for any loss they
could show I'm consequence OF the delay.
Q. Damages for loss from delay 90 PEE
coive the ore and also for the profits
that would have been received had they
been allowed 90 deliver the amount con
tractod for would not Doe "a double pee
coyery The obietc of the law IN award
ing damages Is to- make amends or re-
paration 20 put the injured party in me
same position so far as money can do H.
as he would have been On n the cone
tract had been performed and he is en-
titled 10 recover ar the damages result
ing directly from its violation
CONDENSATION.
CITY OF Charlottesville VS.. Maurys
Affirmed Opinion by Buchanan. ].
The Afaurvs owned land on both sides OF
Reservoir Creek. where the city proposes
20 divert that creek Tor Increasing ITS
water supply The creek and two others
which flow into the 1iaurys' mill pond
supply Che motive power for their grlai
I
tine city council in the County Court OF
Albemarle to condemn for its purposes
tho rights OF the M8urys in Reservoir
Greek. and orders were entered to chat
end. The Circuit Court reversed these
orders on the ground that the County
Court was without jurisdiction under
the charter of the city 90 condemn and
appropriate the property rishts Of the
/ defendants On the water alone, without
c0ndemniug the lang through when III
4 flowed or some part of d.
Held. This question was directly pre-
scented and decided i'm Roanoke City vs..
Berk0witz So Va, 6l6. where the court
| held that nothing less than the fee could
| De taken-the requirement OF the statue
| IS imperative that the fee shall bee vested
| except in the single case of q turnpike
/ company. where ana easement only is ace
| CURED See Lewis on Eminent Domain,
| Sec. Zl8. Randolph on En-. DOM, See. -J3i
/ Va. Code Sec. 1919.
o While an private property Is held
/ subject 90 the right OF eminent domain.
| that power lies dormant in the state untl
/ called into action hy the law-makins
! power. and then 10 can only be eXercisa d
! in the manner. and upon the conditions
| and terms prescribed II the right to eN-
| ercise it Doe conferred by O. charter or
| special statute. it must Doe exercised I'm
| accordance with the general law upon
! the subject unless a. contrary intention
| clearly appears. Cooley on Const Linz
! Csc. A. 81 - r. Co. US. A. & w. Il. Co.,
| 20 Va, $50; Lewis on Em. Dom, Secs.
| 2l3-i
CONSTRUCTION or A Will.
Teoss VS.. Kyle. &c. Armed. opinion by
Harrison, j.
Held This court affirming the decree.
the jurisdiction Of this court denied by
the appellee. may Doe conceded.
81. AN my interest in the estate l be-
oucqth Do my beloved wife. N. P.Ieesei
also 20 shares of New York c. and
Hd River railroad stock. now owned
hv me- Also AN monies IN deposit IN the
| National Exchange Bank Of Lynchbura
standing 20 my credit or I'm her name. II
surviving ms wife 1 leave this beQucs.
90 her sister Virginia Pascoe.'
The second clause bequca.hs 20 his SIS
ter. NJ Kyle. 90 shares Penn. R.Rd stock
standing in his name; 10 her and her heirs
forever
The third clause-a Ike bequest as the
last TO his sister. Rebecca Henderson.
The lower court held that appellant
took an absolute estate I'm all the PRO-
/ pertv embraced IN the first clause; anc
that the sisters each took the 90 shares
OF stock bequeathed them respectively II
the second and third clauses unamecteC
By any other clause. The widow Appeals
claiming that the first clause gave hel
sthe stock therein mentioned and m
money in bank absolutely; and durini
her natural life, all OF the interests oil
profits arising from the entire estate