The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1901-01-03
SUPREME COURT DECISIONS
(Reported by Joseph F. seawen.)

KRAMER VS.. SOUTHERN RAILWAY co.
New trial.
If a railroad company piles its cross
ties on an unused portion of a public
street, the ties being piled in way that
renders the heap a dangerous resort for
a child and the company has knowledge
| of the fact that it is the custom of small
| boys to play upon the pile of cross-ties,
| the company will be held negligent where
| a child, too young to be bound by the
| rules of contributory negligence, is in
| jured by the ties falling upon him while
endeavoring to climb upon the pile. In
such case the company's negligence does
not consist in piling the cPoss-ties in the
| street but in it's failure to guard against
| injury to children, after learning that it
was their habit to play upon the pile.
| BLAISDEL VS.. LEE. New trial.
Where a factor or commission mercl int
| effects sale of cotton by sample at a
| certain price and, after paying the prin-
| cipal a portion of the cotton proves to
| be below the grade of the sample and is
| rejected by the purchaser, the factor,
| within a reasonable time after the princi
| pals refusal to repay him. has right to
| reimburse himself by selling the rejected
cotton at the fair market price though
below the price first named and the fac
! tor has right of action against the prin-
| cipal for any balance due after the cotton
has been so applied. The factor does not
waive his right to reimburse himself from
| the rejected cotton by complying with
| the principals request to wait a while
| longer and that they would sell it to-
| gether.
JEFERIES VS.. SOUTHERN RAILWAY co.
| New trial.
An instrument releasing defendant
| from liability by reason of an injury sus-
| tanned by plaintiff contained the following
| provision: 1T being hereby expressly de-
clared to be the intention of this instru-
ment to forever release the said Southern
| Railway Company and the North Carolina
| Railroad Company from any and all other
| claims. demands or rights of action of
| every nature, originating prior to this
| date because of any like cause or causes
| of complaint" Held that the defendant
| was not released by such provision from
| liability by reason of any injury to the
| plaintiff except that expressly stated in
| the release.
| BAKER VS.. BREM. Affirmed
| Where the coroner is interested in an
| action before a justice OF the peace and
| the sheriff is insane, service of the sum
mons by the town constable is valid,
| when deputized to make service by the
| justice of the peace although the process
is not directed to the town constable in
the name of his office. Oh. 173, Laws
1891
The former decision in this case (126
n c., 36O, overruled.
CITI d VIC LOVE Af6rn,ad
A contract to suppress and destroy
| competition in trade in the necessities of
life is void as against public policy.
! DARLINGTON VS.. w. U. TELEGRAPH
| co. Affirmed.
The plaintiff delivered the following
| message to the defendant for transporta7
| ton: Leave on evening train be here
tomorrow" The message was transmit
ted by the defendant to the party adj
dressed so as to read: Leave on even
! ing train; be there tomorrow" and the
addressee 1.-THE mother of plaintiffs wife)
being thus misled arrived only a few
hours before her daughters death; Held
| that plaintiff was not entitled to recover
damages for mental anguish
TOMS VS.. JONES. Affirmed.
| The purchaser of promissory note for
! valuable consideration before maturity,
without any knowledge or actual notice
of any defence to or infirmity in the note
or of the nature of any existing equities
among the signers and endorsers, may
| recover thereupon.
| NORVELL VS. MECKE. Affirmed.
| The defendant executed to the plaintiff
! written receipt for certain articles of
! personal property worth 500, which de-
| PENDANT agreed to keep for the plaintiff
| and TO return to the plaintiff when called
| for. Upon failure of defendant to deliver
| the whole of the property when demand
ed, the plaintiff brought this action be-
! fore justice of the peace to recover GER
| tain mentioned of the articles of the value
| of $50 The faction was dismissed by the
| justice upon the ground that it appeared
| that the plaintiff had brought another ac-
| tion in the Justices court, which was still
| pending, for the balance of the property.
mentioned in the receipt. Upon appeal
| to the Superior Court this ruling was af-
| firmed the court holding that the plain
tiffs course was a fraud upon the juris-
| diction of the Superior Court; Held no
error. Kiver VS.. Blanton, 123 n c., 400,
! distinguished.
TREADWAY VS.. PAYNE. New trial.
Where one named as executor in will
| has the will probated and executes the
duties of executor, he is estopped to deny
! his qualification as executor
Where a testator disposes by his will
of land previously conveyed to the exec
utor by the testator and devises other
property to the executor, the executor,
by qualifying as SUCH is held to have
elected to take under the will. Allen VS..
Allen, 121 n. c.. 32S
TUE AppET1rr, ~, COAT