The times dispatch. [volume] (Richmond, Va.) 1903-1914, 1905-09-25
Opinions Handed u. Dow, in Many
Cases NIostSofsT lleln iii III
K. s Observation-Disclosures.
CONSTRUCTION OF CONTRACT
Important Ruling III the Merri-S
man over,8D rayton and #5
Leonard Case. #
Especial to The rlmes- Dlspatci,.)

A~puil ul3S1a pLeA lttSt ~ HuTSuuySSL5 WCTc
with two executions, decisions Of con-
trovorsles between private Individuals,
and wcro the first decisions OF cases
heard at the preset term. ts
Among thcm, however, and probably
The most interesting, was one cusc from
the Wythevllle NEUTRALITY-SUSPICIOUS. vs.
Cover, Drayton and Leonard, from tho
Circuit Court OF lWise county. !. 1n#tlis
opinion the court construes a contract,
compliance with which was sought to be 4
AVOIDED by the defendant on the ground
thut 1t was contrary to public policy, and,
therefore, void. stti aSa IS NH 35 FL Il 2
3 Tho contract III question was between
4 u. b. Younken and Company and Cover
/ Drayton aud Leonard nnd provided that
+ in considerations Of certain rights granted
( to follnken and Company, who desired
to procure q rlghtso Of way fora railroad
across land owned by. Cover, Drayton 5nnd
Leonard, who were leather. anutnctur-s
ers, no chestnut oak bark should be.
shipped overgthe railroad to be construct
ell, no matter how fnrPi 1t should EXTEND
except to Cover, Drayton and Leonard,
unless they should refuse to take the
bark at tho market price.
1f Cover, Draytun and Leonard brought
suit against Younkcn and Company, who
were not an Incorporated railway com.
pany, for failure to deliver to the plain
ftlffs tho chestnut oak bark shipped over '
cording to the contract, The process In
s tho suit, however, was only served upon
Merrlman. one Of the partners.
judge &C B Bua holds hat the demurrer
to tho decnrn ton was properly over
ruled by the trial court: The demurrer
was upon the ground that tho declnra-
1,Ga prma 1nea snHed ana lt yod that
1T was in restraint $of trade and particu-5
larry against public policy and that the
#avelments Of the claration arc not su VT
Gent to exclude sneh dnes nof
show upon its face that the road to be
built was to be- IA common carrier Tor
hire. I Ills OF opinion that the restrain
imposed by the contract is limited; that
as between the parties tho restraints.
not reasonable and & hat the ntraet
does not iniuriously affect the .publlc.4lt
Is, therefore, held to be valid upon lts
face. ~ E,3'3g 5E l9 Q II z, Il, ,ss
rheG court however, declares that the
contract was illegal, because contrary 70
public policy, If 1t is true, as alleged pY
tho defendant in the pleadings; that II
was known by the PLAINTIFFS %h len r ,,rn'
posed railroad was to be constructed and
operated as a common carrier OF frelght.
and that it was not Unnecessary, IN .0Iueif
to render tho contract SUED on lil 'ss'a
mont or con tract between tho parties tlla1
tho IA iroul was to BIO constructeea .hnu
operated rs a common cafrler' Cctt .'lt
instructions asked ior any tne ave been
Improperly modified, and for these errors
the Judgment of the lower court is re-
yorsed, and Il now trial granted. :, =
s Sf Hin ,IS;rvr vs.. cRIMSLl0Y, JUDGE.
IN Shiflett VS.. G rimsley, Judge, an aptt
Gnlication for a Inandnmus the co.i l,.
handed down an opinion denying me wri ~
Shifctt wished to compel me 5vuSse ~
srant him aElcense 10 n,annfastura, , allu
5istill alcoholic liquors, by direct ferrnen. !.
tntion and distillatlon from ponace ~ ~
his home in Green e9mmitS, ior Eth
and t't ending Noven Der p, 1905, for g 'a a.
Of Ave dollars, which according TO ms
construction OF the tax law. ne vas as, en-
titled TO- The Judge OF oni ,he o'th lo. Under
scction 555 OF tho Cole the license must n,l !
expire on April 30th, held That Shitieas
must pay fifty dollars for to prl N, ~
and refused to grant ms app'lct't'''1'' VI
less that sum was PAID, -,
The Supreme Court In Us opinion gives
MS a reason why the contention ot+ y u :
petitioner should not ba shs'n nw an al.
niicant for such license might, BY OVID
lng the year into four periods OF thft e
months and applying for license, i, - :
run three months v ony; e1e Cost ., wen
tE dollars when the law provides that
snch a license to run for SIX months or
moro shall cost nifty dolln rs = i, r,,,1o
recurring LICENSES to expire on April ~ D. J.
and the tax law can by any reasonaDlo
construction stand together and pc Y, en- I1Eo
forced, it Is the duty OF me c1mriis ~ ~ i'm
ni i n are ron not favored. The theory sug-
! Gested BY Judge Grimsey, unoll W Ilnti !,
the two laws may be rcconclleu hnd Nv ,n
strnction. is, that tho limited license Is
r. 'hn issued within the limited. period
from the termination Of tho fiscal yea
that Is to say, an appMcanI lEr sust the
last day of January and ending An'pi1
3oth, must pay five dollars: for g. perloa
| az less thnn six months, heSnnlMG, c sly
Noxcmber "a eng ru twenev g ollnra, etc
This construction Of the Two l'eWs us "'
| Supreme Court approves. !, !,
BI,ACK's ADMINISTRATOR, VS., 20 XII
LAND CEMENT COMPANY.
In Blacks administrator vs. ylrgIn IN
handed down an opinion, holdlnE sh,,,
the declaration filed in tho suit ssla ~ ny,
n good cause of action, and revorslns the
ii Ia County for error IN sustaining The DO.
The plaintiffs lntestnto. Gooro r., Black
was an cmploye Of tho VlrG g, u %
IN it's Quarry on tho 18th Of January, $50,
| tho wall of the quarry ana recal'ei n
tai injuries. Tho declaration set forth
as stated by Judge Seth that ,ms The de-
| ment OF the Cement Company, engaged
in auarrying rock; that the Hdeienceu
Company, whose duty It waste keep .
| Quarry In reasonably safe condition
| knowingly permitted a stone TO remain y
n position from which Y WIS liable +
fail at any time, and that n FIST
| III. Black, he being ignorant Of lha dan
| yer and in tho exercise OF due and prop
/ err care and caution. by ren"on CT WIZ
| he received injuries which resulted IN M
i death It is said that II these f9eta ar
established, n case of negli san.e Is mad
out which entities the 'plalntir 70 re
The case will go back tc tho clrcnl
Court for n trial upon Its merits;
BERRY'S EXECUTRlHaVS. FlSli- Y
BURNE I1'T AIS.
The opinion In tho case. OF Berry's ex
ccutrix vs.. Flshb,rne ct ais, was write
by Judge White. and by It tho decree Q
Inc Circuit Court of Augusta county ar
pealcd from is reversed
Abram berry brought this suit whic
upon his death was revived In the nam
~ his cXccutrlx, for an abatement IN ~
| r,irrhnse price of certain land on &C