t; 1889, and the Costs of this intervention. g is further ordered t adjudged, and decreed that the defendant, th,e Texas & Pacific Railw/iloY Company, do pay and satisfy the said judgment under the order herein this cal,lse,restoring the possession of the railway proptofore
PAC. RY.Co. ".TEXAS & P.Ry. Co., (BLAESSER, In· tervenor.)
(OircuU Oourt, E. D. LO'WI.8iatna. January 7.1800.)
BAILBOA.]' CoMPANIEB-RECElVERB-tNJURIES TO EMPLOYE-WA.GES DURING RECOVERY.
Under the rule in Freundlich's Gase,38 Fed. Rep. 701, a receiver of a railroad company ordered to pay wages to an employe of the road during recovery from injuries received in the line of his duty, and without fault.
In Equity. On exceptions tomaster's report. Rouse k Grant, for intervenol'. Hawe k Prentiss, for receiver. PARDEE,;1. The interven(>r claims damages for personal injuriesre'byliim from the f/ilolling of a sectioD."house of the defendant: for the pain tlndsnffering occasioned thereby; .for the amount of his wages during the time he was unable to work; and the further sum of $206:10, for the loss of certain of his personal effects by the loss of said house,and charges that the section-house Was 014, rotten, and in a dangeJ;ous condition; that of this the receiver was repeatedly and that the receiver promised to have the house properly repaired, but failel! to have it done; that the house fell upon intervenor during a storm, 'the 19, 1888, causing the injuries for which he aska damnjghto,f ages. ":'J,'he master finds: the section-pause was safe. and sufficient for its purpose. and , discharged the degree of care required bylaw of the railway company; second; that the receiver was not notified that the house wRsdangerolls. but thRtit leaked', arid needed partitions to separate the laborers occupying it; third, that the storm was of such an unusual and terrific character, so little to be expected. that the failure on the part of the defendant to build the house strong enough to resist tbe pressure of such a wind was not any lack of ordinary care and ,prudence, but that the destruction of the section-house was due to the act of God." " " The presented to these findings have rendered it to exaqline and consider the evidence ,submitted in the case, alld Buch exami,nation and consideration I have given. I find the weight of the eyide/lCeBUpports these findings, and thaUhe exceptions thereto are not well, taken,. This disposes of ,the main case., . Tbe,eviQ,ence, ,bowever,shows that the intervenor, an employe of the injured in tlle Jine of his l;iuty, and without his apparent within the rule of
, the/Una of his duty andwithout fault.' ,
injured ill '" " " . )'The following order.will be entered :in the case: This cause came on to be heard on the exceptions of intervenor to the master's report, and was argued; whereupon it is ordered, adjudged, and decreed that the said report be so amended as to recommend that intervenor receive wages for four months, under the rule in Freundlich's Case, and that, as amended, all exceptions be overruled, and the said report confirmed. It is further ordered and adjudged that, the intervenor do recover of the receiver wages at the rate of $60 per month for four months from August 19, 1888, the date of injury, and the costs of this intervention; the said judgment to be paid by the defendant railway comunder the assumed under the order of this court restorw.g, ,PllSSession. '
Rep. 701, allowing
paid to an
(Circuit Oourt, D. South. Oarolllna. January 25, 1890.)
"utn ·· :M-SALE-BREAC:8: Op WARRANTy-Loss OpT,RADB. U , Where one receives goods under contract, and elects to dispose oUhero a.nd pay :for them,. not the contract'price, but their real value, he cannot, in an action for thllPl,'i.ce, 'counter-(l1ai1Jl for loss of trade occasioned by hill, selling the inferior of goods received frtim plaintiffs. '
· 'I . '
':,At Law. Action for goods sold and delivered. 'Buist'&Buist, for plaintiffs. " . Hyde and G. W. McCormack, for
SUlbNTON, J., (cha;ging jury.) The' action is for the isaIe and, delivery of ice., The complaint.sElts out certain acceptances !lndan open account; in all $5,125. The answer admitathe acceptal'lces ahd' the open account, llndhas assumed the burden of proving fallure of consideration, that is to say, that the ice furnished was deficient in quantity or quality, or both.' ,He also sets up acounter-olaimagainst the plaintiffs for damages resulting from therion-performance of the ,When the ice WI;IS received by defendant, ifs quantity and quality were easily 'ascertainable by the senses. The defendant, it it did not up to contract, could then have aq,opted one of two courses: He could have refused to accept tbe delivery of the ice; or he could have received it,if hechose,-could have disposed of it. He then wouldbave been bound to pay for it, hot the" contract price, but its real valde. He adopted'the latter course.. Havingdone so, he cannot sustain his ter-claim. This is grounded upon lOss of trade occasioned by his selling ice of inferior q'\lality received from plaintiffs. Now; ashe had the choice either to ,take it or let it alone, and he concluded to take it, and sell it for what it was worth,hecal).not visit on plaintiffs the consequenceS