The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1905-11-08

ratified by the real owners and par
ties in interest.
Lane VS. Commissioners. from Rowan
Affirmed.
Plaintiff is resident of Virginia and
one of the four stockholders and di-
rectors of the Lane Brothers Co, a
construction company doing business
in Virginia and West Virginia. The
plaintiff came to Rowan county and
there engaged laborers to work under
himself in West Virginia. Under pro-
test he paid the migration license tax
of 5000, for the recovery of which he
| sued.
Held: /. That neither in the case of
one employing hands for himself
nor corporation in which he is a
director and manager in respect to
| the work for which the hands are en-
| ployed can one be held TO be engaged
in the business of hiring hands" etc,
within the meaning of the act. Carr
VS.. Commissioners, 1876 N. c., 125,
cited and approved.
=. The Court does not hereby intend
| to hold that a corporation engaged in
| business in another State, may en-
| ploy an agent to come into this State
and "engaoe in the business of hiring
| hands without being amenable to the
act,
j. n TuSsey ct al. appellants, VS.. l.. n.
wen, EXT: from Davidson. Error.
| Action to recover on specific con-
| tract alleged to have been entered into
by the plaintiff, Della, and her de-
ceased father, Anderson Owen, by which
the daughter, being of age and then
unmarried, agreed to remain with her
father and work for him on considera-
ton that on his death he would will
her one fourth of his estate. The
ttnl1 nysfn ll1 nv
the daughter and by the father who
made his will i'm the terms agreed
upon, but afterwards added a codicil
by which the revoked the bequeSt to
the feme plaintiff. The answer adj
mitted the contract. but it is in evil
dence that the plaintiff did not carry
out her contract, but married before
the death of her father and removed
to Chattanooga.
Held: l. That the complaint failing
TO allege in specific terms that the
plaintiff fully performed the contract,
or that she was prevented from doing
so by the tcstatOr or by those duly
authorized to act for him. the com
plant should be redrafted or properly
amended
2. In such actions a better form of
the issue as to recovery than What.
if any, is the value of such services"
is What sum, if any, is plaintiff en-
titled to recover?'
8. While the tendency of the Courts
has been TO relax the strict common
law rule allowing no recovery on an
rrperfOrmed contract, the rule as to
an entire eXecutory contract is that
wilful performance of the agree
ments after art-performance without
legal excuse or consent of the other
party bars recovery.
Geo. Bernard. appellant, VS.. Baxter
ShemWell. eft al. Per curiam APP
peal Dismissed
This was a demurrer in a proceed
ing for foreclosure upon the ground
that the mortgagOr, who had assigned
his equity of redemption. was not
made a party The judge sustained
the demurrer but did not make any
order directing him to be made a
party, or dismissing the action for re-
fusal to do so. Had the plaintiff de-
clined to make ~the additional party
and the action had then been dis
missed, an appeal would lie. But the
plaintiff should have either taken that
course or had his exception noted and,
making the additional party, should
have brought the interlocutory order
up for review, if it proved prejudicial
and the final judgment We're against
him. 3 If the final judgment should be
in his favor or the interlocutory order
should not prove injurious, "A review
thereof would not be desired.
The Court does not entertain fragmen-
tary appeals. 1t can very rarely hap
pen that making an additional party
will be a serious prejudice, and hence
such orders are usually discretionary
and not renewable.
But should it be COntended that such
order is prejudicial, no appeal lies at
this stage. The appellant should have
noted his exception and have pre-
scented it for review upon appeal from
the final judgment, should it be adj
verse to him.
Even if the mortgagor had been
made a party. no probable injury to
the plaintiff thereby is shown. The
appeal must be dismissed because
premature, but it is not amiss to say
that the mortgagOr could have no pos
sible interest in this action. since he
had conveyed his equity of redemption
The Court having sustained the de-
murrer the plaintiff can be allowed
to make the mortgagOr a party. or if
as suggested, this is impossible, the
Judge may allow the complaint to be
amended so as to set up that allega