The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1904-10-09

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Guided from the jury
Sewing Machine Co. V. Hill. appel
liant. From Franklin. Affirmed.
The power of an agent to waive
the restrictions of his principal must
De proved aliunde.
The defendant ordered and re-
celVed sewing machines and wagon
rom the plaintiff, filling an order
| piank of the plaintiff which contained
the printed statement. 1T is under
STOOD that no claim or any under
Standing or agreement of any nature
oetWeen this company and it's deal
ers VIII be recognized except such
as Is embraced in written orders or
Is IN writing and accepted by said
company at it's office"
IN an action to recover the price
OF the machines and wagon. the de-
lendant set up a counterclaim that
the PLAINTIFFS agent made verbal
asfeement with the defendant to give
MN me sole agency for the sale of
plalhtilI machines in Franklin
county put violated said agreement
ana shipped machines to defendants
llVal IN business who undersold de-
1endant and caused him to sell the
machlnes at loss; and the defendant
lattenpted to prove q ratification by
plalhtlii OF its agents agreement by
o1erlng duplicate license sent him
by the plaintiff, authorizing the de-
fendant TO sell machines in Franklin
county as PLAINTIFFS agent but the
license did not show that it conferred
sole agency on defendant: Held that
the defendants counterclaim cannot
be sustained.
Wocdiief V. Wester. appellant From
Franklin. New trial.
Section 1872 CD of The Code pro-
lviding that an action to foreclose q
tR,,,, .lSrn Il
been in possession of the property.
snail be brought within ten years
after forfeiture. contemplates an tlc-
tual possession by the mortgagOr:
therefore. where a remainderman in
fee. mortgaged his interest during the
continuance of the life estate and the
life tenant remained in actual pos
session during her life. and neither the
lremainderman (mortgagor) nor the
mortgage has ever been in actual
possession it was held that an action
to foreclose the mortgage was not
barred.
Possession of life tenant does not
enure to the remainderman as again st
the acknowledgements mortgage so as
to bar the mortgages right to fore
close.
Section 15S of The Code providing
that "an action for relief not herein
provided for must be commenced
within ten years after the cause of
action shall have accrued" does not
apply when there has been no actual
possession by either mortgagor or
mortgagee.
Davis, Admir-. VS.. $. A. J.. Railway
appellant. From Vance Error.
Photographs which tend to en-
tighten the court in reference to mat
ters involved in the cause are admis-
Sible.
An action may be maintained by an
administrator. under section 1448 OF
The Code for the death of an infant
by wrongful act of another Russell
V. Steamboat Co, 1875 n. c., 961 sus-
tanned.
Evidence as to the distance in which
a train may be stopped is admissible
(Blue V. Railroad. III n. c., CAD
and the jury may take notice thereof
as matter of common knowledge
Wright " Railroad. 127 N. c., 227
Negligence of a parent cannot he
imputed to an infant child in an
action to recover damages for per-
sonal injuries sustained by him. when
the action is for the childs benefit
Bottoms " Railroad. ia n. c.. 500
But when a parent sues as admins
traitor to recover damages for mis-
infant child's death through the neg
ligence of another. the parents con-
tributory negligence may be pleaded
in bar of recovery.
Lassiter. appellant V. Norfolk & Caro-
lima Railroad. From Northamp-
ton. Error.
Refusal of a motion to amend
pleadings on the ground of want OF
power is appealable.
In an action to recover damages
of a railroad company for negligently
killing plaintiffs intestate in another
state, it is within the power of the
| trial court to permit an amendment
Of the complaint to allege the law Of
the foreign state and to prove same,
when such allegation has been omit
ted through inadvertence.
/ A cause of action for negligent
killing in another state is not changed
by amendment of complaint alleging
the law of such state. Failure to al
lege the law of the foreign state con-
stitutes a defective statement of a
good cause of action as distinguished
from a Statement of a defective
cause of action"
Chemical Co. appellant V. Edwards.
Admir-. From Greene. Affirmed.
Plaintiff took note of defendants
interstate for fertilizers sold him and
lintestage agreed in writing that all
proceeds of sales made nv him includ-
ling notes and accounts should be held
as the property of plaintiffs until their
debt was paid. Intestate's estate is
insolvent and his administrator re-
ceived in trust for plaintiffs the notes
and accounts due for fertilizers sold
by intestate and has collected some
and applied them to plaintiffs debt;
Held that the notes and accounts
due for fertilizers sold by interstate
being the property of plaintiffs. ac-
cording to the contract. their payment
extinguishes the plaintiffs debt pro
tanto. and plaintiffs can prove only for
the balance. Bank " Alexander, 80
N. c.. 1852. approved and rules in
| equity and bankruptcy as to prov
able debt against insolvent estates,
distinguished.
Mr.. p. @. Haley says, 81 have had
more enjoyment since 7 took the Keel
ey Treatment, about nine years ago,
than I had in twenty-five years while
! was drinking | truly believe that |
would have been dead before now had
| It NOT been for the Keeley Cure