THOMSON-HOUSTON ELECTRIC CO. V. BRUSH-SWAN ELECTRIC L. & P. CO.
not submitted tq the jury. This would probably be true if there was no question about the. facts. . But evidence was introquced tending to show that this property was ofauch a nature that insurance companies w.ould not take a risk uptm'it without a survey, which could not have been had, and insutance effected, after was given even, before the fire; and on the other side it was claimed that by the known usages of such business it could have been done in a very short time. On this there was a question of fact to be subnlitted to the jury as to how longit would take to effect an insurance, if any time was to be allowed for that purpose. Itis'further·to be llotieedthat, by the terms of this policy, it could betePminatedon giving notice to that effect, but the premium was to be refunded :ooly on surrender of the policy. These notices were sent by mail, and the plaintiff and the Jennings Lumber Drying Company had no opportunity to surrender the policy, and have an adjustment of the premium, 'without seeking out the defendant· for that purpose. No 'premiumhaq.been actually paid, but the defendant had the obligation .of others for ii which had' been accepted in lien ofit. The right to cancel qepemdson;pursuing very strictly the course prescribed, which includes the fefundingofthe premium, without requirinK anything from the ag.. -aured. This is shown by the cases cited by the defenrlant's counsel lithe note of the assured is taken for the premium, it must bedtefunded the same as if money had been paid in order to 1erminatethe: risk.. Wood, Fire Ins. § 106. " The defendant did not -surrendElrthe obligation of Nye& Co., held for the premium either to Nye & Co."or the Jennings Lumber Drying Company, or the plaintiff, but holds that obligation still. On principle it would seem that the surrender of that was a part of what was required to be done to effect a termination of the risk. If so, the plaintiff was entitled to the. direction of a vefdict in his favor as to this part of the case, and the defendant was not wronied by having it submitted to the jury. Motion denied.
ELECTRIC. Co. v. BRUSH.SWAN ELECTRIC LIGHT POWER Co.
(Circuit Cowrt, D. Vmnont.Ju1yI9, 1887.)
SALE-"ON TRIAL-NEGLECT TO TRy-EFFECT.
Plaintiff sold and delivered to defendant certain material and machinery for producing electric light, to be set up, installed, and operllted by defendant, and to be paid for at specified prices, 80 days after satisfactorY' operation and receipt. Defendant dId not set up, install, or operate the goods. Held, in an action for the price, that defendant's failure to make the trial could not defeat plaintiff's right to recover. .
At Law. Wales Wales and Wilder Eleazer R. Hard, for defendant.
WHEELER, J. The plaintiff's declar;ttion consists ofspecial counts for machinery and materials for producing electric light, sold and delivered to the defendant to be set up, installed, and operated by the defendant. and paid for, at specified prices, in 30 days after satisfactory operation; and received, but not set up, installed, operated, or. paid for by the defendant;and of the common counts in assumpsit for goods sold and delivered. The .parties filed'8 written waiver of a trial by jury, and the case has been tried upon the general issue by the court. The plaintiff's evidence shows that the defendant ordered the materials and machinery of the plaintiff to be forwarded to, and set up and installed and used by, the defendant for renting lights in Burlington, Winooski, and Chesterfield, and not elsewhere; but not in connection with any apparatus, or · parts ofapparatus, not acquired from the plaintiff,except that the same power might operate a dynamo of other companies, to be paid for, at the prices alleged, in 30 da.ys after it should be set up and installed and operate satisfactorily; that the plaintiff forwarded the goods agreeably to the · order, which were received by the defendant, but which the defendant refused to set up, install, operate, or pay for. The defendant insists in argument that the plaintiff is not entitled to recover, because the proof does not support the declaration. All the counts in the declaration, both common and special, set up an unqualified and absolute sale of the goods. The proof does not show such a sale, but only a limited sale, qualified by the right to use, in a particular manner, within prescribed territory only. The sale is not, therf'fore, such a sale as is declared upon. If the evidence had been objected to upon this ground, it might have been inadmissible. But as it was offered and admitted without objection, and tends to show such a transaction as would pass the property in the goods themselves, although in a qualified manner as to use and location, it can not be said that the plaintiff has not shown a sale and delivery of the goods to some extent as alleged. If the defendant gave a valid order for the goods, to be paid for after a particular trial and test to be made by and delivered upon that the .defendant, and the order, and the defendant refused to make the trial or test, the refusal. could not be taken advantage of to defeat payment of the price. Waters Heater 00. v; Mansfield, 48Vt. 378. ,The defendant could. make the trial or not; as it chose, but if it would order the goods for trial, and not make the trial, it would become liable as if they had been ordered without providing for the trial.· The proof, therefore, showed a sale and delivery
CITY OF NEW ORLEANS.
of the goods, which, if fairly made, would entitle the plaintiff to the price. This would support either the special or the common counts. The defendant's evidence tends to show that the order for the goods was induced by a representation of the plaintiff's agent that a gas company was about to order such a plant, and install it in that territory, if the defendant did not. It is not found upon the evidence, that the'agent made any statement in that behalf which he did not believe to be substantially true. There is no claim but that the goods were of the description and quality ordered. There. is not, therefore, any such fraud shown as would invalidate the sale. The plaintiff appears to be· entitled to judgment for the amount of the goods, at the specified price, with interest after 30 days from a reasonable time to make the test. This is found to be August 1, 1886. The amount of price is $3,925.75. The interest from that date to July 19, 1887, the day of entering the judg.59. .The whole is $4,153.34. ment, Judgment for plaintiff for $4,153.34.
LoUISIANA CoNST. Co. ". CITY OF NEW ORLEANS. 1
(Oircuit Court, E. D. Louiaiana. January 11, 1887.)
MUNICIPAL CORPORATION-JUDGMENT AGAINST-RBGISTRATION.
A judgment against the city of New Orleans, reversible only in an appellate court, and not affected by any appeal, either suspensive or devolutive, was within the two years allowed by the United States statute for writ of error, capable of registration under the act of the legislature of Louisiana, No. 5 of 1870, extra session. The duty of providing for the alimony of the city is lodged in the discretion of the common council, in the constitutional and legal exercise of which the courts may not interfere.
SAME-CITY OF NEW ORLEANS-ITS ALIMONY.
Application for a Writ of Mandamua to compel the common council to include relator's judgment within the budget for this year. E. HOll"';-:], McCaleb, for relator. W. H. Rogers, City Atty., for respondent.
BILLINGS, J. Two points of objection are made by the attorney for the city. 1. That relator's judgment is not final and executory. This objection involves the construction of the act known as No. 5 of the acts of the legislature of Louisiana in 1870. Up to the time of the passage of. this act writs offieri Jacias ran from the state courts against the city of New Orleans. This act abolished that writ, and substituted therefor the registration of the judgment with the comptroller of the city I and payment
JReported by Joseph P. Hornor, Esq., of the New Orleans bar.