The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1904-06-12

that the elevator had been in use eigh-
teen months. it was proper to submit
to the jury the question of defective
construction and whether the employ
er negligently failed to inspect the ele
Vator.
Failure of an employer to inspect an
elevator oftener than eighteen months
is evidence of negligence, especially
when the employee is accustomed to
use the elevator i'm performing his
work.
johnson, appellant, VS.. Duvall. From
Swain. Reversed.
A commissioner of deeds is not re-
CURED to affiX any seal to his certifi
cate.
Chapter sec, Laws 1901, provides
that in actions to try title to timber
land and for trespass on the same,
when the court shall find that there
is q bona fide contention on both sides
GaSed on evidence constituting prima
facie title. no order shall be made
pending such action permitting either
party to cut timber, until the title
shall be finally determined: that when,
in such action the judge shall find as
q fact that the contention of either
party is not in good faith and not
E3sed upon sufficient evidence, then
on motion of the other party, who
may satisfy the court of the bona fide
OF his contention and produce evil
dence showing prima facie title, the
court may allow such party to cut the
timber
Held, that before an order shall be
made under said Act permitting the
timber to be cut, the court must find
as a fact, and incorporate the finding
in the order, that the contention of
the party against Whose claim the or
der is made is not in good faith, and
that the contention of the other party
is in good faith and based on prima
facie title.
Critcher. appellant. VS.. Porter McNeal
Co. From Martin. New trial.
In the absence of any special condi-
tons or special damage, the measure
Of damage for breach of warranty Of
machinery sold is the difference be-
tween the contract price and the act
ual value of the machinery.
Special damages for breach of war
ranty of machinery may be recovered,
when such damages were reasonably
within the contemplation of the par
ties; and while the law seeks to give
full compensation for actual loss sus-
tanned by breach of warranty, it will
rot undertake to estimate uncertain
Profits.
Wnefe, III an action Tor preach OF
warranty of the capacity Of a saw
mill engine, the pailntiff alleged loss
Ey reason of his inability to fill con-
tracts to furnish lumber, made upon
the assumption of a true warranty by
the defendant, it was held that in the
absence of the defendants knowledge
of theseXistence of said contracts, the
special damages alleged could not be
| recovered.
The contingencies attending the OPP
! Grafton and the output of q saw mill
| are so numerous that breach of war
| ranty of the capacity of a saw mill en-
| CINE cannot form q basis for special
| damage by reason of the failure to fill
| contracts for lumber, alleged to be
| due to the lack of capacity of the en-
| CINE.
Where it appeared that the defend
| ant furnished q smaller engine than
| was bargained for, but requested the
! plaintiff to keep the engine, and that
| the defendant would make it develop
the capacity bargained for by the
| plaintiff, any damage which the plain
| tiff sustained by reason of his compli-
ance with the defendants request is
within the contemplation of the par
ties, and the plaintiff is entitled to re-
cover the same. Kester VS.. Miller lis
n. c., 475.
Erini<iey appellant, VS.. SO. Ry. Co
From Burke. No error.
Railroad companies have the righ
to build side tracks or change the
grade of the roadbed on any part o.