COMMISSION MERCHANT. DIVERTING FUNDS.
the same in his own name, for the reason he could get better shipping
rates, to C, a commission merchant in Chicago, for sale, and directed C
to place the proceeds in a certain bank for B, as had been often done
before. But C applied the proceeds upon notes held by him on A, claim-
ing a factor's lien: Held, that, under the facts, C became liable in an
action to B for the amount of the proceeds of the stock.
et al. v. Chamberlin, 585.
COMPARATIVE NEGLIGENCE. See NEGLIGENCE, 7, 8.
1. The rule requiring performance same in equity as at law. In the
case of a condition precedent there must be a compliance therewith, or
an excuse for non-compliance shown, as well in equity as at law. Barney
et al. v. Giles, 154.
CONSOLIDATION OF RAILROADS.
To what rights, duties and obligations of the original companies they
succeed. See RAILROADS, 10.
1. For local improvement-on abutting property in proportion to
frontage. See SPECIAL ASSESSMENTS-SPECIAL TAXATION, 8.
TAXATION BY COUNTIES.
Constitutional limitation. See TAXATION AND TAX TITLES,
1. Requisites of affidavit. A defendant can not assign for error the
refusal of his motion for a continuance, on the ground of the absence of
a witness, when such witness appears during the trial and is examined on
the part of the defence. Crews v. The People, 317.
2. An affidavit for a continuance made by the defendant in a case of
homicide, based on the absence of certain witnesses for the defence,
which fails to show that they are not absent by his procurement or con-
sent, and which also fails to show the materiality of the facts proposed
to be proven by the witnesses, is insufficient for both reasons stated, and
there is no error in refusing to continue the case upon such an affidavit.
Ibid. 317.
1. When none is fixed by the contract. The purchaser of cattle
selected an agent to weigh and receive the same, and left with such agent
his check signed in blank, and the agent filled the blank for the proper
amount and tendered the same to the plaintiff, who was induced to accept
the same by the false and fraudulent representations of the agent, of the
purchaser's financial ability, which check proved worthless. In an action
by the vendor, against the agent, to recover damages for the fraud and
deceit practiced on him, the court instructed the jury, that when a sale of
personal property is made, and the time of payment is not agreed upon,
the price is due and payable on delivery: Held, that there was no error
in giving the instruction. Endsley v. Johns, 469.
2. Giving effect to words different from their ordinary signification,
The general rule requiring effect to be given to all the words of an instru-
ment, is subject to well recognized limitations, the chief of which is, that
the instrument must be so construed as to effectuate the intention of the
parties to it. For this purpose a word may sometimes be construed to
mean almost the opposite of its commonly accepted signification. Thus,
the word "and" is often construed to mean "or," and to give effect to
the intention, a word or phrase may be excluded or wholly disregarded.
Chicago, Burlington and Quincy Railroad Co. v. Bartlett et al. 603.
OF SUBSCRIPTION TO STOCK.
3. As distinguished from a purchase of shares-and when a right
of action accrues. A party gave his promissory note to a railway com-
pany for $500, payable on January 1, 1882, with interest, containing a
condition that if a certain line of railroad should be constructed so that
cars might be run between certain points on or before January 1, 1882, it
should be paid, and five shares of the capital stock of the company should
be issued to the maker, otherwise the note should be void: Held, that
this was only a contract of subscription to the capital stock of the com-
pany, and not one for the purchase of shares, and that a tender of the
stock was not a condition precedent to a right of action on the note.
Wemple et al. v. St. Louis, Jerseyville and Springfield Railroad Co.
196.
4. Conditioned to account for and pay over moneys-extent of lia-
bility-in case of theft or robbery. An agent or paymaster of a railway
company, whose duty it was to receive and pay out large sums of money
for the company, gave a bond, conditioned that he would faithfully per-
form the duties required of him as paymaster, "and promptly pay over
and promptly account for all moneys belonging" to the company, received
by him as such agent, and should deliver to the company all property be-
longing to it, when required: Held, that the first clause, to faithfully
perform all the duties required of him, covered the whole ground, and
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that which followed was nothing more than a mere specification of the
principal duties incident to his employment, and added nothing to his
liability, and did not make him an insurer of the moneys in his hands,
against theft or robbery, without his fault or negligence. Chicago, Bur-
lington and Quincy Railroad Co. v. Bartlett et al. 603.
5. But even conceding the undertaking of the principal in the bond,
to pay over and account for all moneys, was an absolute one, in such
sense as to make him an insurer, and that his sureties were equally
bound with him for its performance, still, it would not follow that they
would be so bound except where the money was in his exclusive posses-
sion, as, when he would take it out of the safe for the paying of it out
on the pay-rolls of the company. So where the company required such
agent to keep the moneys in a room not properly protected against the
entry of thieves or burglars, and which was occupied by other servants
jointly with such agent, one of which other servants had access to the
safe where the money was kept, and a large sum was stolen from the
safe during the temporary absence of such agent, without any neglect of
duty or want of care on his part, it was held, that such agent could not
be held liable on his bond given to the company, conditioned that he
would account for all moneys coming to his hands. Ibid. 603.
6. Release or waiver of performance by acts of obligee. If a party
covenants with another to perform any lawful act, there will be an im-
plied undertaking on the part of that other that he will do nothing to
prevent the performance or render it impossible; and if such other does
prevent performance or renders it impracticable, this will operate to dis-
charge the covenanting party from liability for his failure to perform.
Ibid. 603.
7. Liability of surety. See SURETY, 1.
BUILDING CONTRACTS.
8. Certificate of architect-as a condition precedent to final pay-
ment-a contract construed in that regard. A building contract pro-
vided for the retention of a certain per cent of the price to be paid, until
final completion, and "that upon the architect's acceptance of the work
as complete and finished, the party of the first part will pay to the par-
ties of the second part the balance in full, on the presentation of the
architect's certificate, certifying that the contract has been well and truly
performed, and accepted by him, and that all damages or allowances
which should be paid or made
have been deducted;
and also a certificate from the parties of the second part, that all claims
and damages for extra work, or otherwise, under or in connection with
this contract, have been presented to the architect." It was held, the
making by the architect of the one, and by the contractors of the other,
of such certificates, and the presentation of them to the owner, should
be regarded a condition precedent to the right to payment for the final
balance. Barney et al. v. Giles, 154.
CONTRACTS. BUILDING CONTRACTS. Continued.
9. Sufficiency of architect's certificate. On the completion of the
work under such contract, the architect gave the contractors a certificate,
as follows: "This is to certify that B. & R., contractors for the mason
work of your additional stories on the P. block, are entitled to a payment
of $1079.73, by the terms of contract.
* Work has been measured
at building:" Held, that the certificate was not such as was required by
the contract, and did not entitle the contractors to their final payment.
Barney et al. v. Giles, 154.
10. Right to follow architect's directions. A contract for the re-
building of a foundry which had been partially destroyed by fire, pro-
vided that the contractor should take down all defective walls, and rebuild
them according to the architect's plans and specifications, etc., and the
architect was thereby appointed superintendent of the work and materials,
with full power to inspect, accept or reject any work done or materials to
be used, whether worked or otherwise, when not in accordance with the
plans, specifications and detail drawings, and it was provided that his
decision in that matter, and all other matters relating to the building,
etc., should be binding and conclusive upon both parties: Held, that the
contractor was not bound to take down walls not directed to be taken
down by the architect, and was justified in following his instructions in
that regard. Bonnet et al. v. Glattfeldt, 166.
11. Contract construed as to ownership of old bricks not used. A
contract for the taking down of defective walls of a building, and rebuild-
ing the same, among other things provided that all the old brick on the
premises should become the property of the contractor, which might be
used in rebuilding the walls: Held, that all the old brick, including those
not used in the rebuilding of the walls, became the property of the con-
tractor. Ibid. 166.
12. For fraud —jurisdiction of court of chancery. See CHAN-
CERY, 1.
13. Right to affirm, or rescind a fraudulent contract-intervening
rights of third persons. A contract tainted with fraud is not absolutely
void, but only voidable. Therefore, a vendor, after knowledge of the
fraud of his vendee, may affirm the sale. As a general rule, the vendor
may disaffirm the sale after notice of the fraud, and recover back his prop-
erty if still in the hands of his vendee, or the value of it. But if he lie
by, after notice, till the rights of innocent persons intervene, his right
to rescind is gone, or is postponed as to such innocent third persons.
Preston et al. v. Spaulding et al. 208.
14. So if the vendor of personal property has, in whatever good faith,
though not exercising proper care in that regard, through a series of years,
held out to the world his vendees as men of financial ability, and as worthy
of credit, and sells them a large amount of goods on credit, clothing them
CONTRACTS. RESCISSION OF CONTRACT.
with the apparent ownership free of incumbrance, and also makes rep-
resentations as to the ability of his vendees, and they receive credit from
others on the faith of their ownership of such goods, or of such repre-
sentations, a court of equity will not rescind the sale of the goods, in
favor of such vendor, on account of fraudulent representations made to
him by the vendees, as against the equitable rights of those who trusted
such vendees on the faith of the misleading action of such vendor; but
as to all goods sold by such original vendor after the giving of credit to
the vendees by others, the rule is different, as no credit was given on
account thereof. Preston et al. v. Spaulding et al. 208.
15. Rescission of sale for fraud of the purchaser-demand for return
of the property. Where goods are obtained by a vendee through fraud,
the vendor may rescind the sale, and maintain trover or replevin for their
recovery, against the fraudulent vendee, or any other person not holding
them as an innocent purchaser, without any previous demand for their
return. Farwell et al. v. Hanchett et al. 573.
16. False pretences-whether essential to right of rescission. The
purchase of goods by one who, at the time, intends not to pay for them,
is such a fraud as will entitle the vendor to avoid the sale, although there
were no fraudulent misrepresentations or false pretences. Ibid. 573.
17. In an action by the vendor of goods to avoid a sale thereof on the
ground of fraud, it is error to instruct the jury that the burden of proof
is on the plaintiff to prove, by a preponderance of the evidence, that the
defendant bought the goods in controversy from the plaintiff, and that
the defendant used means to deceive, and did deceive, the plaintiff, and
that he did not intend to pay for the goods when he bought them. The
purchase of the goods without intending to pay for them is sufficient to
avoid the sale, without proof of anything else. Ibid. 573.
Rescission must be in toto, or not at all-placing the parties in
statu quo.
A party can not rescind a contract for fraud, and at the same
time retain the consideration, in whole or in part, which he has received
under it. He must rescind in toto, or not at all. But, as between vendor
and vendee, a court of equity will not deny the vendor a rescission of
the contract for the reason that the vendee may have put it out of his
power to restore all the property, on account of sales by him to innocent
purchasers. Preston et al. v. Spaulding et al. 208.
19. If the vendor of goods takes the vendee's note for the purchase
money, he must surrender or offer to return the same before he can re-
scind the sale for fraud, and maintain an action to recover the goods.
Farwell et al. v. Hanchett et al. 573.
TREATING CONTRACT AS RESCINDED.
20. As to the right of action as upon a quantum meruit. See AC-
TIONS, 1, 2.
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