The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1905-10-04

| PENDANTS responsibility as common
carrier had terminated and any obli-
CATION which remained was that of
warehouseman or wharfinger, and,
under the facts, there was ordinary
care and no negligence on the part
| of the defendant amounting to an
actionable wrong While neither
usage nor custom, as general rule,
will sanction or excuse AN act which
the law condemns as negligent, it is
pertinent evidence on the question
whether there has been negligence in
a given case. Furthermore, the
plaintiffs had been promptly notified
of the arrival of the goods, and so
far as appears, had been given ample
time and opportunity TO remove them.
j. w. Peacock vs.. Ida Barnes ct al.
appellants: Conner Il Conner. for
appellant: T.. a. Woodland and Pou
x Finch, for appellee. Clark, c., j.
No Error.
Plaintiff bought at sale by a COM
missioner to make assets to pay debts
a tract of land purporting to contain
416 acres at $11.10 an acre. 1t was
afterwards ascertained that The tract
conveyed contained IN fact but 800
acres and to the extent of the over
payment of $1,060.60 he asks to be
subrogated to creditors and that there
be a sale of other property of the
estate to correct the error by repaying
him the amount over paid. The de-
PENDANTS demurred ON the ground that
no cause of action was stated IN that
there was no aVerment that the num-
Der of acres was fraudulently mis-
represented by the defendants or COM
missioner, or that they knew of the
deficiency and for that it is not
averred that the plaintiff exercised
due care to ascertain the number of
acres before purchase and payment.
Held: That the action not being for
breach of warranty or fraud ana de-
ceit, the demurrer was properly over
ruled; since the mistake appears to be
mutual it is still in the power of the
Court to correct the error without
prejudice to the, defendants.
Timothy Dolan vs.. American Bonding
and Trust Company. T.. X. Bryan,
for plaintiff; IrcdelI Mcarcs for de-
PENDANT. Clark, c., j. No Error In
Defendants Appeal; Error in Plain
tins.
Action on bond as surety to contrac-
tor. Both parties appealed. The con-
tractor failed to comply with his terms
and plaintiff completed the house at
a cost of $460.25. AT that time the
contractor was indebted in the sum of
S874.04 and other amounts for which
plaintiff accepted drafts and paid.
After deducting the cost, of complet-
ing the house from the amount due
the contractor there was dlscrep-
ancy between the amount remaining
and the debts which plaintiff had paid
for the contractor. There were other
claims made against the surety.
Held, 1. The surety cannot be
charged with plaintiffs misfortune or
officiousness in accepting drafts in an
amount more than sufficient to alb
sorb the sum due the contractor.
=. Plaintiffs services in supervising
the completion of the house after the
work was abandoned by the contrac-
tor was proper charge against the
surety, although charge for lawyers
fees is not.
5. Damages for loss of rents due to
failure to complete work by time
specified, Is damage directly flowing
from breach of builders contract and
within the terms of defendants con-
tract of suretyship.
"A. *. Hawks vs. n. NJ. Hall, appellant.
. Il. X. Cooper, for appellant; Geo. II.
Butler. fer appellee. Common, y.
Affirmed
Appeal from a magistrates judgment.
I lie statement filed by the magistrate
was unsigned. There was no eXcep-
|tion during the trial, appellant con-
tending that the proceedings in the
Superior Court were void as there was
mo return made by the justice of the
appeal.
Held. That in a magistrates court
|appeal is perfected by notice and pay
ment of fee, taking the appeal to the
Superior Court without further ac-
ton on part of the appellant, the
power lying with the court to compel
an amended return if necessary.
c. T.. Dartien ct al, appellants, vs.. Mel
son Timherlake, ct al. Common and
COnnOr for appellant; l.. A. Wood
ard and Pou and Finch for APP
pellees. Brown, j. Error.
Plaintiff and defendant claim under
deed by "R. j. Taylor and wife, of
the first part and Samuel Williams
and wife. Annie and their heirs, in
GLIDING the former children of the
said Annie by another husband, of the
second part"
Annie died, leaving Sam surviving.
They had no children of their mar
riage. Plaintiff are Annie's children
by her former husband and defend
ants are Sans heirs at law. The
Judge below held that Sam, Annie and
the latter's three children took under
the deed as tenants in common and
that each took one-fifth and that Sam
acquired his wife's fifth by survivor
ship and upon his death his undivided
two-ffths descended to the defendants,
his heirs at law.
Held, f.. The plaintiffs, Annie S
children being in existence at the
time of the execution Of the deed and
the children of a named person, took
as grantees under the deed.
q The words land their heirs
contained in the deed are to be re-
iected as surplusage, since a convey
ance to the heirs of a living person is
void-elemo hae"es yiyenils. Elmi-
mating the words and their heirs.
Sa m, Annie and the latter's three chill
dren (the plaintiffsl by former hus-
band took under the deed as tenants
in common.
8. Sam and Annie, being consid-
era ore person in law to|>k by entire
ties and not in severalty; they were
neither joint tenants nor tenants in
common with each other. Hence
Sam and Annie were together seized
of one-fourth and the three plaintiffs
of one-fourth each. Sam acquired
the one-fourth by right of survivor
ship which, at his death descended 10
his children
Defendants appeal i'm same case. No
error.
Held. That there was no error i'm
| the refusal of the judge below to sus-
| tain the contention of defendants that
tho pIaintiffc took nothing under the