The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1904-12-25

in the indictment which would sus-
tain defendants motion to duash.
Criminal conspiracy as defined in
State V. Younger, II N. c., S57. dis
approved.
Cameron Barley Co. V. Power Co.
From Catawba. Petition of plaintiff
for certiorari allowed.
The judges statement of the case
as to what occurred during the trial.
imports absolute verify, but this rule
does not apply to exceptions to the
refusal to grant a prayer for instruc-
tons or to appellants assignment of
errors, and a certiorari will be granted
to supply an omission of either.
If the judges charge is not written
and there is a conflict between the
charge as stated by the judge and as
recited in the assignment of errors
the appellate court will be governed
by the judges statement and will dis
regard the statement as contained in
appellants assignment. But if the
charge is written, the assignment is
necessarily directed to the written
statement.
The requirement of section $50 of
The Code that the case on appeal shall
be settled within the judicial district
where the action was tried, is man
datOry and must be observed unless
the requirement is waived.
BlaIOck V. Clark, appellant From
Stanly No error.
In an action for damages for al
legged breach of contract by defendant
to sell plaintiff d large quantity of
cotton. no provision being made as to
time and manner of payment, it is in
cumbent on plaintiff to show only that
he was ready and willing to pay ac-
cOrding to the regular custom OF
wholesale purchase, and evidence is
admissible to show such custom.
And as defendants reasons for re-
fusing to comply with his contract
were that the price of cotton had ad-
vanced. and that plaintiff did not pur-.
chase on the day agreed. tender by
plaintiff of the price of the cotton was
unnecessary; and the reasonableness
of plaintiffs delay. after giving notice
of his acceptance within the time
agreed, to inform defendant where the
cotton SHOULD be shipped. was a ques-
ton for the jury. Blalock V. Clark,
1873 N. c., sos.
Avery, appellant V. Oliver and South
ern Railway Company. From Burke.
New trial.
Defendant Oliver was employed by
defendant company to lower grade
and plaintiff, who was employed by
the foreman of defendant Oliver to as
sist in the work. was injured while
car was balanced on its frame and
had chains on each side to keep the
body in place and if loaded more
heavily one one side than. the other. as
was the custom, the chains when UNI
fastened on the lighter side, as was
also the custom in unloading. would
cause the car to tilt of it's own accord,
and the chains were left fastened on
the opposite side from which the
hands dumped to prevent the car re-
bounding and injuring them.
On the occasion of the PLAINTIFFS
injury a car would not tilt after the
chain on one side had been unfastened.
and the foreman of defendant Oliver
ordered that the chain be unfastened
on the opposite side, which was done,
without refastening the chain which
had first been unfastened, and when
the car. which was standing on
trestle 35 or 40 feet high still failed
to tilt of its own accord, the foreman
ordered plaintiff to push the car over
with his hands, and when plaintiff
attempted to do this, while both sides
of the car were unclaimed. the car
turned on the side where he stood and
he was injured
There was evidence that a resident
engineer of defendant company was in
charge of the grading, directed the
work ana showed how the cars should
NC - uihPNA ~ NliS SiO9O - 49, -
evidence the court granted DEFENDANTS
motion to n-suit-holding that the
negligence of plaintiff, in not taking Il
safer course in Obeying the foreman's
order. was the proximate cause of the
injury.
Held error. The court should have
submitted the case to the jury on
the question of the relations of the
two defendants. SO that the jury might
first determine whether defendant Oil
yer was an independent contractor.
The error of the court consisted in
holding that the case, in it's present
stage, turned on the contributOry neg
ligence of plaintiff, whereas that aues-
ton was not presented until defend
ants negligence was proved.
When a wise man argues with a wo-
man he says nothing.