The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1905-05-26
Another Batch of Opin-
ions Yesterday.
TERMS WORK
Only Two Cases Of Any Importance
Remain to Be Decided and They
Are Expected Saturday,
Digests of 0pin-
IONS.

Another batch of opinions were
handed down by, the Supreme Court
yesterday, digests of which will be
found below.
The work of the term is practically
concluded. The other opinions will
probably be filed on Saturday. These
include two cases of interest, the one
involving the validity of the charter
of Asheville and the other the con-
stitutionality of the new Police JUS
tees Court of that city.
Il. ). Wood ct al vs.. Pearce 1insley
w. w. Zachary for appellant; Geo. A.
Shuford and Shepherd & Shepherd for
appellee COnnor j.
Action for possession of land. Plain
tiff purchased land at sale by mort
Sagee of defendants vendor. Defend
ant offered to prove that he had been
possession of land under parol
agreement with the original owner to
sell; that he had taken a deed for the
same and had made improvements
thereon and that the plaintiffs had no
uce of verbal contract and agreement
TO sell. Such evidence was rejected
and the defendant appealed.
Held, That one who goes into pos
session of land under a parol contract
to convey, even if paying all of the
purchase price therefor cannot resist
an action by a purchaser for value
from the vendor until the plaintiff has
paid the purchase price paid by the de-
PENDANT and the amount expended on
improvements. Chapter LAT, Acts OF
1885 combining power of conveyance OF
land to date Of registration applies
equally to mortgages deeds in trust
and contracts to convey
John I.edfoPd, appellant VS.. A. :.
Emerson. Busbee q Busbee, Axley &
AXley and Il. b. NorvelI for appellant;
Dillara & Bell for appellee Brown j.
Civil action to recover $4,000 money
received by defendant to plaintiffs
use From Judgment of non-suit the
plaintiff appealed.
Held. Where in the trial of an ac-
ton for the recovery of share in the
proceeds of options on land, in which
one party claimed to have delivered
the options to another for sale and to
have been defrauded out of his just
part of the proceeds, it was error to
have refused to permit evidence of
the transaction on the ground that the
plaintiff could not speak of the OPP
tons without producing them. The
options were not the subject of litiga-
ton nor the gravamen of this action,
but the share of the plaintiff in the
purchase price thereof. The rule that
parol evidence cannot be allowed as to
the contents of a written instrument
applies only in actions between the
parties to the writing.
w. Nicholson vs.. Pennsylvania Rail-
road Company. appellant. G. A. Shu-
ford, w. A. Cash. Walter e. Moore
and Shepherd for appellant; Coleman
c. Cowan, for appellee. Clark j.
Where a railroad employee was in
jured while constructing a trestle on a
road i'm course of construction and
not being operated by the railroad;
Held, That the refusal of an instruc-
ton that if plaintiff was injured by
the negligence of a fellow servant
away from the operation of a railroad
the plaintiff could not recover, was err
rOr.
The fellow servant act' chapter Sc
private laws of 1897, relieving en-
ployees for assuming risks of negli-
gence at the hands of fellow servants
in business peculiarly perilouS APP
plies only to such cases in which rail-
roads are being operated and not to
work Incidental or in preparation for
the operation of such legally declared
hazardous business.
X. III. Wright. appellant VS.. Ieu-
tonia Insurance Company. Manning
& Foushee for appellant; Winston &
Bryant and Busbee & Busbee for APP
pellee. Walker, j.
Plaintiff alleged that he was the as
signee of a policy of insurance origi-
nally placed on tobacco to German
Wright Company, and afterwards
transferred to cover machinery in the
building, which was destroyed by fire.
There was a conflict of evidence as to
the transfer Of the policy. The court
non-suited plaintiff, who appealed.
Held, AS in the most favorable light
to him, the plaintiff was entitled to re-
cover there was error in the non-Suit
by the court
The common law rule that pleadings.
shall be construed against the pleader
is modified by the Code system requir-
ing that all pleadings shall be liber
alIv construed with a view of substan
tiaI Justice between the partieS-Code
section go. A complaint defective in
form but with cause of action stated
in substance or by reasonable intend
ment is cured by verdict or averments
in the answer or where defendant
valves the defect by answering to the
merits.
BENJAMIN C. HemphiIl and wife VS..
II. G, HemphiII, ct ais, appellant.
Frank Carter Locke Craig and II. G.
Chichester for appellants; Moore and
Rollins for appellees.
Action of ejectment and question as
TO boundaries. Defendant offered to
prove by John G.. Chambers that he
had known land in controversy fifty
years; that he knew general reputation
AS to true location of divisional line.
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