The Sunday telegram. [volume] (Clarksburg, W. Va.) 1914-1927, 1916-04-02
LOWER COURTS
ARE REVERSED
\ IN FIVE CASES

were added to the original deed after
us execution by the grantor. when
the evidence shows that the contro-
verted words,appeared as the conclud-
ing words Of the last sentence in the
deed. in regular order and in the
same handwriting as the body there
of. r y a =
In an action Of covenant, where the
only issue is non est factum, It Is err
ror to give to the jury a. binding In
struction which ignores that issue.
Notwithstanding defendant does
not take Issue on an alleged breach OF
covenant, and pleads non est factum
only, plaintiff can recover only nom
inal damages, II the termination of is
sue is favorable to him, unless he
proves with Reasonable certainty the
extent Of his actual; damages.
Deegan VS.. County Court OF Logan
county; in mandamus; writ awarded
as to some precincts, refused as to
others. President Williams.
1t is the imperative duty OF the
county court OF county, at its first
regular term next succeeding a reg
ular election, to divide any voting pre-
cinct in the county, wherein the num-
Der OF votes cast is shown by the
election returns to be greater than
$50; and to establish voting places
therein. II 1t should fail or refuse to
do so, 1t may be compelled by man.
damus.
1t Is likewise the duty Of county
court to divide any voting precinct
in the county, which is shown by sat
isfactory proof to ncontain more than
$50 legal voters. Notwithstanding the
returns Of the last election showed
fewer than $50 votes were cast there
| in. But The county court has a rea-
sonable discretion as to the time when
a division OF such precinct shall be
made; provided, however, the time
be not extended so as to make divi-
sion impossible before the beginning
Of the ninety days next prior to a
regular election.
W. ii. Crawford vs.. o. B. .Lefevre;
Berkeley county; reversed; remanded;
by Judge Poffenbarger. ~ s's
An appeal from decree dissolving
an injunction restraining sale Of
shares OF the capital stock OF q corpo-
ration, held as pledge to secure a
debt, upon allegations that the debt
was not due, notice to redeem had
not been given and the notice of sale
was insufficient, is not reduced to a
moot case by lapse of time making
the debt clearly due and comforting
right to make q sale OF the shares in
a proper manner. TT
Upon a pledge Of shares Of the cap
ital stock of q corporation to secure
a debt, without a contract waving
either notice to redeem or notice Of
sale, both are indispensable condi-
tons precedent to right Of sale.
For such a sale. ten days notice
thereof by personal service upon, the
pledger or his actual knowledge of
the time, place and terms, is reason
able and sufficient.
Monongahela and Western Dredg-
ing Company VS.. Lloyd e. Smith;
Wood county; affirmed by Judge Pof-
fenbarger. 1,4- ss IA + I
II. is no defense to an action for
compensation for work done, or the
use Of implements in the performance
thereof. at the instance and upon the
request, Of the defendant, that third
party was known by the plaintiff to
have been obligated to the defendant.
by contract, to perform it, or to have
been liable in damages to him for not
having performed 1t or for breach OF
q contract occasloning the work, and
to have performed slight services in
the procurement Of the contract on
which the action Is based. ,,
A verdict for the defendant upon
evidence disclosing such a relation,
situation and contract is contrary to
a clear and decided preponderance Of
the evidence. wherefore the action of
the trial court in setting 1t aside is
irreversible..
Summers ct al VS.. Hively; Rcane
county; decree reversed; bill dis
missed; by Judge Lynch.
Unless the bar Of the statute of
frauds be removed under the rule of
past performance, written contract
for the sale of real estate is not en-!
forcible at the suit of the vendor
against a vendee who has not signed
the agreement personally or by agent.
Mere payment OF the purchase
money by the yendee not SO signing Is
not sufficient part performance to
render the agreement enforcible
against him. sas li
Where the purchaser, not signing
the contract Of sale, otherwise valid
and mutually binding, by reliance on
the statute of frauds defeats a suit
by the vendor for specific perform
ance, he is not entitled therein, upon
an answer claiming such relief, to a
recovery OF the part Of the consider
alton paid by him. II the vendor is able
and willing to comply with the con-
tract on, his part by executing and de-
livering to the vendee good and suf-
ficient deed for the land upon pay
ment Of the balance Of the purchase
money. ~ .fs. y Z
A vendor. suing to enforce specific
performance by his vendee, must be
able to convey,a title, to the land rea-
sonably free from doubt or. defects.
But title acquired by adverse posses
sion is sufficient.
Shinn VS.. shinn: jackson county;
reversed; Judgment here; by Judge
Mason. "a =,
R. p. shinn and his brother, ]. o.
shinn, owned farm jointly, and for
many years were partners, dividing
equally the profits Of their business;