The Sunday telegram. [volume] (Clarksburg, W. Va.) 1914-1927, 1915-04-04
DECISIONS ARE
HANDED DOWN
BY HIGH COURT
West Virginia Court OF Appeals
Decides Number Of Cases
of Interest.

VI interest.
The following decisions were re-
GENTLY handed down by the West Nil:-
tginia courtsof appeals:
CVfmnn W.. EiqncSney.
Barbour county. affirmed. Judge
i Williams
WHOLLY upon conflicting testimony Of
witnesses. but also upon facts ana
circumstances. admitted 10 be#true or
3clearly proven and not denied. which
are controlling in their character and
Inconsistent with the testimony of
witness for one CT the parties. and
the jury renders a54verdiet, disregard
ing such facts and circumstances. the
court should, on motion. sci it aside.
as being contrary To the great weigh:
OF evidence
4 a party who relies oTisTrlud to de
feat Il contract must act with due dill
lgence afterthc discovery thereof. or
after he has had opportunity TO dis
cover il by ths exercise of reasonable
diligence. else he will be deemed TO
have waived it.
a contract fraudulently procured
! is not void. but only voidable. and the
party complaining may elect to repud-.
I.iate it CT to be bound by it, He has
but one election. and if he elects To
be bound, after knowledge of the
fraud, hesis thereby concluded
He may elect by word or act. and
acts which disclose an intention to be
bound by the contract arc sufficient
| TO prove an election.
| a special replication is not neces-3
lsary to special plea Of fraud in the
procurement, or failure IN the consid-
Grafton OF a contract, authorized by
section >, chapter 126, code 1918. a
general replication is the only proper
reply 10 such plea. and on the issue
THUS Joined, plaintiff may introduce
ANY evidence that would be admis-
sible under a special replication if
one were allowed
An oral agreement to cancel a trade
at The election Of one of the parties
Ito it. il he should become dissatisfied
at any time. is not an agreement not
10 be performed in Year. and need
not be in writing to be enforceable:
and it is error to instruct the jury
that. if they believe from the evidence
lit Was not to be performed in a year,
It is not binding
Wide discretion is given the trial
court respecting. payment Of cost on
awarding a new trail, and this court
Will not interfere with its ruling in
that respect unless ii clearly appears
such discretion has been abused
Lewis. Hubbard and Company
vs.. Tony. ct ais.
Raleigh county: modified and at
firmed. Judge Williams.
III a suit to enforce liens against
a debtors land TO which all persons
interested are parties a surety pro-
debtor OH his land to Gin den.nify and
the debtors default and before pay
ment of the debt by hinrs ELF. TO a
decree directing the enforcement OF
the trust and application OF the pro-
ceeds 10 the discharge OF the debt
TT is error, in such case. to decree
payment Of the proceeds TO the surety
before lie has paid the debt
a party to a cause who appears be-
fore commissioner and excerpts to
his report, but not on the ground OF
Want OF notice of the taking Of evi-s
dence by him, will not be heard Il,
complain for that reason, after a de-
cree upon the report
"a partvo on whose motion supple
mental report is made. to correct
omissions and errors. and Who ex
1870
fcree thereon. of matters not embrac-
ed in his exception.
In suit to enforce Il vendors lien
Judgment liens. and liens created by
trust deeds given to secure payment
of debts, providing, in case OF dcfault..
for sale Or land for cash, 1T Is not
error 10 decree q sale OF the land
without ascertainins its rental value.
Pritchard. ct nj. ~. Pritcllard- 1T ali,
Pocailontas county; decree affirm
cd Judge Miller.
a paper executed by a grandson
at he request OF his materna! grand
father. and while his mother and
father are still living. aud purport-
ing to release as All heir all his claim
on all estate owned BY his parents. in
consideration OF a farm promised him.
by his grandfather atShis dfath. Will
not be effec tive as release Of his own
right Of his widow aud heirs at his
sjdea tn 10 take by Inheritance his share
IA ~ no X