The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1902-11-16

pay for the material the conIl"N'
using and the latter replied tnal nc Hau
no money to pay for the same ana Woulo
expect defendant to do so, to winch Ue7
PENDANT made no reply nor 10 '"0n
agency shown by the fact that tlle Gun
tractor objected to paying Tor certain
high grade lumber and defendant paiu Ihe
difference between the price OF such iuin-
Der and the price of a cheaper sraue
and the contractor was charged Win the
price of the cheaper grade.
And defendants liability is neSatNee
by the fact that defendant told piaihClil
to get an order from the contracloI lol
payment of the bill for lumber anu ue
PENDANT would pay the same, ana plain'iil
replied that the contractor was hac'
tious' and plaintiff did not WISH W VI
fend him and lose him as cusIoAnei'
and the order was not procured rom me
contractor until after he had Voluiitdiily
abandoned his contract with delenudn'
| (whereby he was to remodel the ueIello-
ants house, furnishing all material, Io+
certain price, and defendant lnuept-
/ edness to him had been settled.
DoRsETT V. MANUFACTURING co.
| appellant. From Davidson. NO error.
| An instrument of writing should not be
set aside for fraud unless the Irauu Is
| fully established.
| But where, in an action by an EN-
! ployee against a corporation TO recover
damages for injuries sustained by alieseu
! negligence the defendant sets up pea
in bar and a written release from plain
tiff and upon the issue of fraud ana
F.! undue influence alleged by plaintiff IL
appeared that an agent of defendant ana
a physician who was employed by de-
PENDANT to attend plaintiff, went TO
plaintiffs house and informed him that
they wished him to sign a paper when
would enable the physician to get MS
money for medical services rendered 10
plaintiff, and that the paper also pro-
vided for SIS to be paid to plaintiff; that
the plaintiff could not read but could
write sufficiently to sign his name; that
| the paper was read to him but he ola not
understand it to be a release that the
release as signed by plaintiff was IN con-
sheraton of $95, and that plaintiff re-
ceived only SIS, which was not paid 10
him until he had acknowledged the re-
lease before notary public
1t was held that such evidence was
sufficient to justify the court below IN
| submitting the question of fraud ana IN
due influence TO the jury
Voluntary assumption of risk, like
contributory negligence, is plea IN the
nature of confession and avoidance ana
must be pleaded, and the burden of proof
to sustain ii is on the defendant. Rit-
terhouse V. st. Railway, 12O n. Z. o44'
| explained.
Dangerous machinery does not necessa-
rily render the employer liable for IN
iuries sustained therefrom, provided the
machinery is the kind that is in general
use and the employer provides safe
place for employee to work.
The employer is not bound to provide
the latest and most improved machinery.
STANDARD" machinery may be more
than ordinarily dangerous if not prop
erly or suitably located.
In such evidence that other persons en-
gagged in the same work for the defend
ant had been injured by the same ma
chine and in the same manner as the
plaintiff was, is competent to show the
danger of the place in which the plaintiff
worked, and to give notice to the en-
ployer of the dangerous situation.
WILLIAMS, appellant V. b & L. ASSO
From Durham. Error.
Action to recover penalty for usury
Summons served on secretary of defend
ant, a nonresident corporation. Judg-
ment before justice of the peace and
on appeal the judge set it aside as If
, regular because summons was not issued
ten days before trial and remanded the
cause to the justice-plaintif noting his
exception on record. Plaintiff subsc-
quently sued in Superior Court, alleging
said judgment and that defendant had a
mortgage against him under which the
property was advertised for sale etc.
and a restraining order was granted. II
was found that defendant had collected
usury, the last payment being made
January 4, 1898, and that defendant was
nonresident. The court below held
that the action was not brought within
two years from last payment; Held that
, above rulings were erroneous.
Under Chapter 50, Laws 1895, such ac-
ton may be brought within two years
after payment in full of the indebted
ness. But the debt, here, having beer
contracted before that Act, falls under
Section 1886 of The Code by which an
action may be brought within two years
after payment of the usury complained
Of
| This prescription of the Act however
is subject to section 1G2 (Which applies
to this as to any other action) to the eff
feet that the time of ones absence from
the State, ETC.. shall not be taken as a
part of the time for bringing the action
The intent of the statute is to put non
| residents on the same footing as resi-
dents, and not to protect them from al
action unless they have been two years
exposed to service of summons.