III. MODIFICATION OR RESCISSION | comply with its terms, should not be allowed.— (C) Rescission by Buyer. § 114 (N.C.) The buyer may rescind a contract induced by fraud of the seller's agent and return the goods bought.-White Sewing Mach. Co. v. Bullock, 76 S. E. 634. § 126 (N.C.) Buyer who notified the seller of its agent's fraud within 18 days after discovering same and offered to return all the machines bought held not guilty of laches.-White Sewing Mach. Co. v. Bullock, 76 S. E. 634. A merchant, induced to purchase sewing machines on the false representations of the seller's agent that a local competitor in the sale of sew. ing machines had discontinued sale of the machines, rescinding the contract 18 days after receiving the machines, was not guilty of laches as matter of law.-Id. IV. PERFORMANCE OF CONTRACT. (C) Delivery and Acceptance of Goods. 174 (Ga.) Where a contract for the sale of oil provided for delivery monthly in buyer's tank cars, the buyer had the whole of each month in which to tender cars; and a resale of the oil by the seller to a third person for any month before the expiration thereof constituted a breach of the contract.-Bainbridge Oil Co. v. Crawford Oil Mill, 76 S. E. 41. 8179 (N.C.) Technical breach of a contract of sale of a soda fountain, in that its trimmings, stipulated to be green, were white, was waived by acceptance and use of it for several months. Simpson v. R. M. Green & Sons, 76 S. E. 237. (D) Payment of Price. § 188 (Ga.App.) Where a purchaser rejects a part of the goods sold because of inferior quality, he is entitled to an abatement to the extent of the difference between the market value of the goods contracted for and those which the seller sought to deliver.-J. E. De Vaughn's Son v. Ohio Pottery & Glass Co., 76 S. E. 793. V. OPERATION AND EFFECT. (A) Transfer of Title as Between Parties. 8 201 (W.Va.) Delivery at the place agreed upon is not indispensable to the passing of title.-Moore v. Patchin, 76 S. E. 426. § 203 (W.Va.) Under a contract for the sale of lumber to be manufactured by the seller, a certain sum per thousand to be paid when the lumber was sawed and stacked, and an additional sum when loaded on the cars, and a part to be retained until the job was completed, title passed on the payment when the lumber was sawed and stacked.-Moore v. Patchin, 76 S. E. 426. § 209 (N.C.) Where an estimated quantity of peanuts contained in a barn were sold and paid for, and nothing remained to be done but to measure them, title passed before delivery. State's Prison v. Hoffman & Bros., 76 S. E. 3. VII. REMEDIES OF SELLER. (B) Lien. § 308 (W.Va.) An unrecorded seller's lien on personal property is good as between the parties and as to all other persons, except purchasers for value without notice and creditors of the buyer.-Birch River, Boom & Lumber Co. v. Glendon Boom & Lumber Co., 76 S. E. 972. (E) Actions for Price or Value. § 353 (Ga.App.) In a suit for goods sold under a written contract, a plea that the goods could not be sold because they were out of style, but not alleging that they were not as described in the contract or that the seller failed to § 359 (Ga.App.) In an action on a note for the price of machinery, evidence held to demand a verdict for plaintiff on the issue of failure of consideration, there being no warranty.-Unitype Co. v. Skelton, 76 S. E. 80. VIII. REMEDIES OF BUYER. (C) Actions for Breach of Contract. § 406 (Ga.App.) Under an executory contract to deliver personalty at a future date, failure to deliver on such date is a breach of the contract, and no tender or offer of performance by the purchaser is necessary as a condition precedent to suit for the breach.-Luke v. Batts, 76 S. E. 165. 8418 (Ga.) Buyer of oil to be delivered in monthly installments held entitled to demand deliveries for subsequent months, notwithstanding an alleged breach of contract as to the first month, and, in case of further breach, to recover the difference between the contract and market price at the time when the several deliveries should have been made.-Bainbridge Oil Co. v. Crawford Oil Mill, 76 S. E. 41. 8418 (N.C.) The option given the seller, by having been exercised, the buyer can recover a contract to sell fertilizer, to cancel the order only such damages as he had sustained before notice of cancellation, and not for any diminution in his crop because of lack of fertilizer.G. Ober & Sons Co. v. Katzenstein, 76 S. E. 476. Though a contract for sale of fertilizer gives the seller the option to cancel the order, damages sustained by the buyer before exercise of the option, as expense of preparing the land for the crops, useless because of lack of fertilizer, are recoverable.-Id. Though a contract for sale of fertilizer for resale gives the seller the option to cancel the order, damages for loss of profits on such part thereof as the buyer has, before exercise of the option, contracted to resell, are recoverable, unless the buyer could have obtained, and his customers would have taken, any other brand.-Id. (D) Actions and Counterclaims for Breach of Warranty. § 437 (Ga. App.) Where plaintiff pleaded breach of warranty that tires would not blow out and would run 3,500 miles, he was not required to prove loss on both, but could recover damage sustained on the breach of either.-Federal Rubber Co. v. King, 76 S. E. 1083. 8 459 (Ga.) A written instrument containing stipulations for paying rent or hire during a term for the use of personal property, with a provision that on making the last payment title shall vest in the so-called lessee, constitutes a conditional sale.-North v. Goebel, 76 S. E. 46. § 465 (Ga.) Under Civ. Code 1910, § 3319, conditional bills of sale must be recorded within 30 days from their date, and in other respects are governed by the laws relating to the registering of mortgages, prescribed by section 3259.-North v. Goebel, 76 S. E. 46. A conditional bill of sale to personalty, executed in another state, where the property was, by a resident of that state to a resident of this state, should be recorded in the county of this state where the vendee resided within six months after it was brought into the state, record in another county where the property was temporarily being insufficient.-Id. § 474 (Ga.) Where a bill of sale was executed by a citizen of another state to a citizen of this state, and was not recorded in the county of the vendee's residence in this state within six months after the property was brought into the state, liens of attaching creditors of the vendee are superior to the title of the vendor.-North v. Goebel, 76 S. E. 46. $474 (Ga.) Where a holder of a note, retaining title, received a new note, reserving title to the same property, and by mistake of his attorney attachment based on the first note was levied on the same property and subsequently dismissed, and a levy was made on the same property in favor of a third party, it was error to dismiss claim of the holder of the second note, on the ground of estoppel to insist on title to the property.-Malsby Mach. Co. v. Parker, 76 S. E. 53. Where a vendor of personalty takes a note reserving title until the price is paid, and it is recorded, and a judgment is obtained against the vendee, the vendor is not estopped from asserting title by interposing a claim to a levy of a fi. fa. in favor of a third party, where the vendor has not filed a bill of sale to his vendee, nor made a levy on the property.-Id. (E) District Debt, Securities, and Tax ation. $103 (N.C.) Under Revisal, § 4115. amended by Pub. Laws 1909, c. 525, and Pub. Laws 1911, c. 135, § 1, relative to special school tax districts and the levy of a special tax, the county commissioners cannot call an election thereunder, or indorse the formation of such districts, unless the petition is signed as required by the statute.-Ġill v. Board of Com'rs of Wake County, 76 S. E. 203. The word "freeholders," as used in Revisal, § 4115, amended by Pub. Laws 1909, c. 525, and Pub. Laws 1911, c. 135, § 1, does not embrace women or infants or nonresidents.-Id. § 145 (Ga.App.) The evidence for plaintiff, in an action for balance of compensation due for services as a teacher, held insufficient to authorize a recovery, so that a nonsuit was properly awarded.-Wheeler v. Board of Education of City of Americus, 76 S. E. 1035. SEALS. SEARCHES AND SEIZURES. See Criminal Law, §§ 394, 395. SECONDARY EVIDENCE. See Evidence, §§ 157-183. SECURITIES. §18 (W.Va.) Money arising from the sale of bonds issued under Acts 1908, c. 27, § 39 (Code Supp. 1909, c. 45, § 1598), may be used by a board of education to acquire land for sites for See Marshalling Assets and Securities. schoolhouses.-State v. Board of Education of Clarksburg School Dist., 76 S. E. 127. SELF-DEFENSE. (B) Creation, Alteration, Existence, and See Homicide, §§ 115, 116, 300. Dissolution of Districts. $ 22 (Ga.) Act Aug. 16, 1909, as amended by Act Aug. 13, 1910, creating a special school district known as the town of Mitchell's District, was not sustainable under the constitutional provision authorizing the Legislature to grant power to municipal corporations to establish public schools by local taxation.Vaughn v. Simmons, 76 S. E. 1004. (D) District Property, Contracts, and Liabilities. as SELF-SERVING DECLARATIONS. See Criminal Law, § 413. SENTENCE. See Criminal Law, §§ 1156, 1213. SEPARATE PROPERTY. See Husband and Wife, §§ 136-194. SERVANTS. $65 (W.Va.) The word "schoolhouse," used in Acts 1908, c. 27. § 13 (Code Supp. 1909, See Criminal Law, § 622. c. 45, § 1571), requiring the board of education of every district to provide by purchase or condemnation suitable schoolhouses and grounds, includes the land for schoolhouses.-State v. Board of Education of Clarksburg School Dist., 76 S. E. 127. § 81 (Ga.) A bond given by a contractor to erect a school building held neither literally nor in substance in accord with Acts 1910, p. 86; and hence a suit could not be maintained thereon for the use of a materialman, who had furnished material to the contractor, but had not been paid.-Town of Grantville v. Fidelity & Deposit Co. of Maryland, 76 S. E. 575. A town, which had contracted for the construction of a school building, could not recover on the bond of the contractor, which was not in statutory form, simply because of failure of the contractor to pay a materialman, in the absence of provision therefor in the bond. See Master and Servant. SERVICE. See Process, $$ 52-119; Waters and Water SET-OFF AND COUNTERCLAIM. II. SUBJECT-MATTER. § 27 (Ga.App.) Under Civ. Code 1910, § 4394, in a suit on a note for the price of a threshing machine, known by the purchaser to be defec the vendor would not lie.-Good v. Jarrard, 76 S. E. 698. § 28 (Ga.) Equity will decree specific performance of a written contract to convey land, which is clear and definite in its terms.-Miller v. Watson, 76 S. E. 585. § 29 (Ga.) Description of land in a written contract as "part of lot No. 200, in the sixth district and second section of said county [the county being elsewhere named], containing 15 acres, more or less," is insufficient to authorize specific performance.--Clayton v. Newberry, 76 S. E. 63. Where there was no effort to reform a written contract for the sale of land, in which the description was insufficient, in an action for specific performance, plaintiff must stand on the contract as written.-Id. § 29 (W.Va.) A contract for the sale of land, ambiguous as to whether the parties intended See Guardian and Ward, § 165; Judgment, 88 a sale of the whole or only a part of the tract, 358-392; Venue, § 5. a §8 (W.Va.) Specific performance is not matter of right, but lies in the sound discretion of the court.-Buffalo Coal & Coke Co. v. Vance, 76 S. E. 177. § 10 (W.Va.) Where a vendor was unable to convey a good title to a portion of the property, the vendee was bound to elect whether he would take specific performance as far as the vendor could perform, or damages for breach of contract.-Neill v. McClung, 76 S. E. 878. II. CONTRACTS ENFORCEABLE. $26 (S.C.) Where buildings on land burned 1 before the first payment under a contract of sale, and before the execution of a deed, specific performance of the contract at the instance of and not reducible to certainty by extrinsic evidence, is void and cannot be specifically enforced. Smith v. Peterson, 76 S. E. 804. § 32 (S.C.) A contract, binding a vendor to convey a fee-simple title, and binding the purchaser to pay part cash and execute a note and mortgage for the balance, is mutual, and the vendor, offering to perform, may compel the purchaser to perform.-Farm & Land Co. of Abbeville v. Roseman, 76 S. E. 979. § 39 (W.Va.) If, in a suit for specific performance, the oral contract be substantially admitted in the answer, it may be enforced, if the statute is not relied on; but, if the statute be pleaded, the admission will not relieve the contract from the ban of the statute.-Moore, Keppel & Co. v. Ward, 76 S. E. 807. § 47 (Va.) Where complainant, pursuant to his father-in-law's agreement for a consideration to devise him property, made valuable improvements on the property described in the will, he was entitled to have the contract to devise specifically enforced, the will having disappeared.-Milton v. Kite, 76 S. E. 313. § 86 (Va.) While an agreement to devise cannot be specifically enforced, equity will compel the heirs to convey the property, and charge it with a trust in their hands.-Milton v. Kite, 76 S. E. 313. III. GOOD FAITH AND DILIGENCE. § 87 (W.Va.) Equity will not decree specific performance to him who has not shown himself ready to perform, or if his conduct has indicated bad faith or virtual abandonment of the contract.-Buffalo Coal & Coke Co. v. Vance, 76 S. E. 177. § 95 (W.Va.) Equity will refuse specific performance, if the vendor is unable to convey a good title to some of the land, and the vendee declines to accept a conveyance of such title as the vendor can convey with an abatement of the price.-Neill v. McClung, 76 S. E. 878. § 97 (N.C.) A purchaser fully performing his contract to pay a specified sum, and to release the premises from a mortgage, is entitled to specific performance, without repaying to the vendor interest paid on the mortgage, without any request or conduct on the part of the purchaser inducing the payment.-Bateman v. Hopkins, 76 S. E. 731. § 100 (W.Va.) Specific performance will not be exercised in favor of one who has slept on his rights, or where circumstances have so changed that specific performance would result in hardship.-Buffalo Coal & Coke Co. v. Vance, 76 S. E. 177. IV. PROCEEDINGS AND RELIEF. $105 (Ga.) Where the seller of land repudiates the contract before the time for performance, and does not put it out of his power to comply with the contract, an action by the purchaser to compel execution of a deed, and to obtain a decree for title before the time for execution of a deed, is premature.-Crosby V. Georgia Realty Co., 76 S. E. 38. Where a suit for specific performance, in which the only relief sought was to have a decree for execution of a deed, and to have title decreed in plaintiff, was premature, the judge erred in overruling a demurrer, and in directing a verdict and entering a decree for plaintiff.—Id. $114 (Ga.) In a suit for specific performance, complainant's petition held to state a cause of action, good as against a general demurrer.— Miller v. Watson, 76 S. E. 585. § 11634 (W.Va.) The sufficiency of a written contract or memorandum of sale of realty relied on in a bill for specific performance and exhibited therewith may be raised by demurrer to the bill.-Smith v. Peterson, 76 S. E. 804. $119 (W.Va.) An answer to a bill for specific performance founded on a written contract and a verbal contract partly performed, denying the sufficiency of the written contract and the existence of any contract and also the part performance, casts on plaintiff the burden of proving a written contract or part performance of a verbal contract.-Smith v. Peterson, 76 S. E. 804. $120 (Ga.) Where plaintiff claimed as transferee of a bond for title under an assignee of the original holder, the second transfer not being accompanied by the bond, and a number of notes described in the bond being past due, there was no error in admitting in evidence a contract between the maker of the bond and plaintiff's assignor that the notes and bond should be deposited with a third person, and that if the holder should pay a specified sum he would be allowed time to pay the balance, and, if not, the depositary should deliver the bond to the obligor and the notes to the other party.-Hand Trading Co. v. Chason, 76 S. E. 1022, § 121 (W.Va.) Evidence held to show a substantial compliance by plaintiffs with the terms of the contract, authorizing a decree for specific execution.-Moore, Keppel & Co. v. Ward, 76 S. E. 807. $125 (Ga.) The court, in order to give complete relief, will cancel a cloud on title.-Miller v. Watson, 76 S. E. 585. 128 (Ga.) In an action for specific performance, damages for breach of contract may be recovered where the specific performance is impossible, and nonsuit should not be granted on the ground that plaintiff sued on one cause of action, and sought to recover on another.-Lane v. Lodge, 76 S. E. 874. § 129 (N.C.) A purchaser suing for specific performance was not entitled to rents and profits received by vendor before the former complied with a condition of his contract and the judgment in his favor by tendering a release of the land from a mortgage debt.-Bateman v. Hopkins, 76 S. E. 253. SPENDTHRIFTS. See Trusts, §§ 12, 28; Wills, § 674. STANDING TIMBER. See Logs and Logging. STATEMENT. III. PROPERTY, CONTRACTS, AND LIABILITIES. $110 (Ga.) The state has priority of claim against assets of an insolvent state bank which prior to insolvency was a state depositary as Central Bank & Trust Corporation v. State, 76 against individual depositors and creditors.— S. E. 587. STATUTE OF LIMITATIONS. See Limitation of Actions. STATUTES. See Frauds, Statute of; Limitation of Actions. For statutes relating to particular subjects, see the various specific topics. I. ENACTMENT, REQUISITES, AND VALIDITY IN GENERAL. 882 (Ga.) Whether a local act has been duly published before its introduction in the General Assembly is a legislative question, and not one for the investigation of which the courts will go behind the passage and approval of the act.-White v. City of Forsyth, 76 S. E. 58. 821 (N.C.) The Legislature can enlarge a county or road district without the act complying with Const. art. 2, § 14, fixing the method of passing acts to raise money on the credit of the state.-Pritchard v. Board of Com'rs of Orange County, 76 S. E. 488. $34 (S.C.) Where the Legislature passed an act for the appointment of a magistrate, and it was not returned by the Governor within three days, although the Legislature continued in session, it became a law at the end of that time under the direct provisions of Const. art. 4, § 23.-Goree v. Greenwood County Supervisor, 76 S. E. 705. § 63 (Ga.) Acts 1911, p. 183, conferring authority to change county lines, being unconstitutional, proceedings thereunder are void, and no estoppel arises against one of the counties to complain of the exercise of dominion over territory taken from it by the other.-Worth County v. Crisp County, 76 S. E. 747. § 64 (Ga.) If any special provision of Act Aug. 14, 1909 (Acts 1909, p. 897), in regard to the grant of the right of eminent domain to the city of Forsyth, is subject to objection, it would not render the whole act void.-White V. City of Forsyth, 76 S. E. 58. The invalidity of section 2 of Act Aug. 19, 1907 (Acts 1907, p. 650), would not destroy the entire act.-Id. II. GENERAL AND SPECIAL OR LOCAL LAWS. $76 (Ga.) Civ. Code 1910, §§ 468-471, contain provisions of general law for the change of boundary, including dividing lines, between counties.-Worth County v. Crisp County, 76 S. E. 747. Acts 1911, p. 183, providing for the dividing line of two contiguous counties, one having a population of not less than 16,422 and not more than 16,424 and the other not less than 19,146 nor more than 19,148, is violative of Const. art. 1, § 4, par. 1, prohibiting the enactment of special laws for which provision has been made by an existing general law.-Id. $76 (Ga.) Act Aug. 16, 1909, as amended by Act Aug. 13, 1910, attempting to incorporate certain rural territory as the town of Mitchell's District, with power to maintain schools, held unconstitutional as an attempt to create a See Criminal Law, §§ 668, 786, 824, 918; Wit- special school district by special law.-Vaughn nesses, 88 392-405. STATES. See Commerce, §§ 10, 61; Corporations, § 636; Depositaries, § 10: Eminent Domain, § 7; v. Simmons, 76 S. E. 1004. § 94 (Ga.) Acts 1911, p. 183, authorizing the change of the dividing line between contiguous counties of certain populations, is violative of Const. art. 11, § 1, par. 3, prohibiting change of county lines unless under a general law. III. SUBJECTS AND TITLES OF ACTS. $114 (Ga.) Act Aug. 16, 1909 (Acts 1909, ed it left out certain portions which it before An amending statute containing a provision $157 (N.C.) Revisal 1905, § 5453, repealing A provision in Act Aug. 14, 1909 (Acts 1909, -Id. $138 (Ga.) Where an act of 1907 (Acts as § 141 (Ga.) An act entitled "An act to ex- § 141 (S.C.) Act March 2, 1909 (26 St. at VI. CONSTRUCTION AND OPERA- TION. (A) General Rules of Construction. § 183 (Va.) It is the duty of the court to 954. § 191 (N.C.) A statute should be construed $219 (N.C.) The construction of a statute by (B) Particular Classes of Statutes. (C) Time of Taking Effect. |