111 Tenn.

Volume 111 — Tennessee Reports

57 opinions

111 Tenn. 1Musgrove v. Hamilton County (1903)
PROM HAMILTON. Appeal from the Chancery Court of Hamilton County. —T. M. McConnell, Chancellor.
111 Tenn. 20Clark v. Pence (1903)
1. BSIEURRER. Of one defendant overruled is not res adjudicata against other defendants 'who answered, without demurring. Where some of the defendants answered a hill and a codefendant subsequently demurred to the hill which demurrer was overruled in general terms hy the court, the principle invoked by complainants that such judgment upon the demurrer is res ad)ii(Hcata upon the trial upon the merits can obviously have no application as to the defendants who so answered without demurring. (Post,- pp. 26-27.) 3. SAME. Overruled in general terms is not res adjudicata of the sufficiency of the bill, when, A decree overruling in general terms a demurrer to a bill presenting distinct grounds for relief does not adjudicate that such bill is maintainable in all its aspects, but only that there is sufficient equity on its face to' require an answer and such decree does not preclude the court upon the trial on the merits from inquiring into the legal sufficiency of any of the grounds for relief stated in the bill, and such decree by the supreme court does not preclude it from making such inquiry upon a second appeal. (Post, pp. 27-28.) Cases cited and approved: Rodgers v. Dibrell, 6 Lea, 69; Kirkpatrick v. Utley, 14 Lea, 96; Battle v. Street, 85 Tenn., 282; Jour-olmon v. Massengill, 86 Tenn., 90. Cases cited, distinguished and modified: Jameson v. McCoy, 5 Heisk., 108; McNairy v. Nashville, 2 Bax., 251. 3, ADMINISTRATOR. Of deceased administrator may collect notes payable to him as such; and his sureties are liable. An administrator may, by suit or without suit, collect notes payable to his intestate as administrator which are assets belonging to another decedent’s estate, and having collected the same, his sureties are liable for his failure to- account therefor, and they can not escape such liability, because such notes could have been collected by an administrator de bonis non of the estate of the first decedent. (Post, pp. 28-30.) Cases cited and approved: . Abingdon v. Tyler, 6 Cold., 502; Wood v. Tomlin, 92 Tenn., 514. 4. SAME. Suit on notes payable to, and revivor thereof, prosecuted in whose name. A note payable to a personal representative may be sued on by him in his individual capacity, or in his representative capacity, and if sued on in his representative capacity, upon his death before its termination, the suit may be revived in the name of his own administrator or in that of the administrator de bonis non of his intestate’s estate. The recovery in either case is subject, however, to all proper accounts between the two estates. (Post, pp. 29-30.) Cases cited and approved: Abingdon v. Tyler, 6 Cold., 502; Wood v. Tomlin, 92 Tenn., 514.
111 Tenn. 31Ohio River & Charleston Railway Co. v. Edwards (1903)
1. MASTER AND SERVANT. Vice principal is not determined from what. A servant’s mere superiority in dignity, grade, or compensation over other servants of the common principal is not determinative of the question whether or not he is a vice principal. (Post, p. 43.) Cases cited and approved: Railroad v. Wheeless, 10 Lea, 746, 747; Railroad v. Handman, 13 Lea, 438; Railroad v. Rush, 15 Lea, 151; Coal Creek Mining Co. v. Davis, 90 Tenn., 718. 2. SAME. General test of what constitutes a vice principal. The most general test that a servant is a vice principal is that he so far stands in the place of his master as to be charged in the particular matter with the performance of a duty towards the inferior servant which, under the law, the master owes to such servant, as furnishing tools, or machinery and appliances, or giving orders with respect to work to be done by-the subordinate. (Post, pp. 43-44, 48.) Cases cited and approved: Railroad v. Bowler, 9 Heisk., 866; Guthrie v. Railroad, 11 Lea, 372; Railroad v. Handman, 13 Lea, 423, 429; Railroad v. Lahr, 86 Tenn., 335, 341; Railroad v. Northington, 91 Tenn., 56; Railroad v. Lawson, 101 Tenn., 408, 409. 3. SAME, Same. Erequent test of what constitutes a vice principal. A test frequently stated in our cases that a servant is a vice principal is that he has authority to give orders, as a vice principal, to the subordinate servant, in directing him when, where, and how to work. (Post, p. 44.) Cases cited and approved: Railroad v. Jones, 9 Heisk., 33; Iron Co. v. Dobson, 7 Lea, 377, 378; Railroad v. Wheeless, 10 Lea, 741, 747; Railroad v. Handman, 13 Lea, 423, 429; Bradley v. Railroad, 14 Lea, 374-379, 380; Railroad v. Collins, 85 Tenn., 227, 229; Railroad v. Lahr, 86 Tenn., 335, 337, 340, 342; Railroad v. .Martin, 87 Tenn., 398; Coal Creek Mining Co. v. Davis, 90 Tenn., 711, 717-719; Railroad v. Northington, 91 Tenn., .56, 58, 59; Railroad v. Kenley, 92 Tenn., 207, 210, 211; Hopkins v. Railroad, 96 Tenn., 409; Railroad v. Wright, 100 Tenn., 56; Railroad v. Lawson, 101 Tenn.,' 406, 409, 410. 4. SAME. Power to employ and discharge is not the test of a vice principal. As a test whether a servant is a vice principal towards the other servants of the common principal, no stress should be laid upon the power to employ and discharge, although, when these powers exist, they add strength and dignity to the position of the vice principal. (Post, p. 45.) Cases cited, distinguished, and modified: Railroad v. Bowler, 9 Heisk., 866; Knox v. Railroad, 101 Tenn., 375; Gann v. Railroad, 101 Tenn., 380, 381; Fertilizer Co. v. Travis, 102 Tenn., 16, 19. 45. SAME.' A mere foreman to point out work is not a vice principal, when. A mere foreman without authority from the common principal to give orders to subordinates is not a vice principal, and the power to point out the different parts of the work that the other servant shall perform is not sufficient to make such foreman a vice principal. (Post, pp. 45-46.) Cases cited and approved: Fox v. Sandford, 4 Sneed, 36; Railroad v. Lahr, 86 Tenn., 335; Allen v. Goodwin, 92 Tenn., 385, 388, 389; Knox v. Railroad, 101 Tenn., 375. 6. SAME. Dual relation of vice principal and. of fellow servant. Tiie same person may occupy towards the servants of the common principal the dual relation of vice principal and of fellow servant. (Post, p. 46.) Cases- cited and approved: Railroad v. Bolton, 99 Tenn., 273; Gann v. Railroad, 101 Tenn., 380. 7. SAME. Temporary vice principal not exercising power is not in fact vice principal. A temporary vice “principal with power to give orders to those under him for the time being is not in fact a vice principal as to matters occurring during that time, unless he actually gives orders to subordinates, and they act thereunder. (Post, pp. 46-47.) Cases cited and approved: Railroad v..Wheeless, 10 Lea, 741; Railroad v. Collins, 85 Tenn., 228, 229; Railroad v. Martin, 87 Tenn., 398; Hopkins v. Railroad, 96 Tenn., 409. . 8. SAME. Term “foreman” does not indicate vice principal; facts, and not words and names, determine vice principal. The mere fact that one is called “foreman” does not of itself indicate that he is a vice principal. The question is to be determined in every case not by words and names, but by the nature and extent of the powers conferred by the master, and accepted and exercised by the superior servant. (Post, p. 49.) Oases cited and approved: Fox v. Sandford, 4 Sneed, 36; Railroad v. Lahr, 86 Tenn., 335. 9. SAME. Foreman not shown to be a vice principal. Where it is not shown that the master had placed any of his servants under a foreman and conferred upon him authority to direct, when, where, and how they are' to work, nor that there had been imposed upon him by the master the duty of furnishing tools or machinery, or the performance of any other duty towards such servants, which under the law, the master owed to them, such foreman is not a vice principal. (Post, /> 51.) 10. SAME. Same. Subforeman is a fellow servant, when. The negligence of a subforeman of a railroad section crew is that of a fellow servant and not of a vice principal, where in pursuance of the orders of the foreman he took members of the crew, and negligently brought in a lever car, through which negligence one of the crew was injured. (Post, pp. 36-41, 51.) 11. SAME. Master is not liable in damages for injuries caused by-negligence of a fellow servant. A servant can not recover from his master damages resulting from injuries caused by negligence of a fellow servant. (Post, p. 51.) 13. SAME. Servant assumes risk of employment, and-cannot recover damages, when. A servant, who knows all the dangers of the employment, and is an experienced man, assumes the risks incident to such employment, and can not recover damages for injuries resulting therefrom. (Post, p. 51.) 13. SAME. Same. Want of knowledge of an immaterial fact does not entitle servant to damages. The Vant of knowledge of a certain fact, which is immaterial in view of the facts known, does not entitle a servant to recover damages from the master for injuries resulting from the work. (Post, pp. 52-53.) 14. SAME. Master’s knowledge and servant’s want of knowledge must concur to entitle servant to damages. Knowledge on the part of the master, or its equivalent, negligent ignorance, and. want of knowledge on the part of the servant, or its equivalent, excusable ignorance, must concur, to entitle the servant to recover from the master damages for injuries resulting from the employment. If the knowledge or the ignorance of the master and servant are equal, so that both are either without fault or in equal fault, the servant can not recover. (Post, p. 53.) Cases cited and approved: Railroad v. Handman, 13 Lea, 428; Railroad v. Hodges, 1 Shannon’s Cases, 434; Railroad v. Smith, 9 Lea, 685; Railroad v. Wheeless, 10 Lea, 741; Brewer v. Coal & Coke Co., 97 Tenn., 615; Brown v. Railroad, 101 Tenn., 252, 255, 256; Trotter v. Furniture, Co., 101 Tenn., 260; Corbett v. Smith, 101 Tenn., 368, 372, 373; Ferguson v. Cotton Mills, 106 Tenn., 236, 239, 240; Gann v. Railroad, 101 Tenn., 380, 387. 15. SAME. Same. Rule modified in emergencies, when, Where the servant acts in an emergency, and under a direct command of the master to do a thing which is not so glaringly dangerous as that a man of ordinary prudence would not undertake it, or where the servant accepts from the master a defective tool without examing it, relying upon the master’s skill and knowledge in the selection of the tool, the rule stated in the preceding headnote is .modified, and the servant can recover. (Posl, pp. 53-54.) Cases cited and approved: Railroad v. Duffield, 12 Lea, 63; Guthrie v. Railroad, 11 Lea, 372. 16. DEMURRER TO EVIDENCE. Sustained by the supreme court, reversal and dismissal. Where the supreme court sustains a demurrer to evidence and reverses the judgment of the circuit court, it will dismiss the plaintiff’s suit, and not remand for a new trial. (Posi, p. 54.)
111 Tenn. 55McCampbell v. Fountain Head Railroad (1903)
1. CORPORATIONS. Railroad corporation’s subscription for stock in a land corporation is ultra vires. The subscription for stock in a land corporation made by a railroad corporation organized and existing under our laws exceeds its charter powers, and is ultra vires, and the result is not altered by the fact that the subscription was made in the names of trustees for the railroad. (Post, p. 67.) 2. SAME. Accommodation indorsements are ultra vires. In the absence of express or necessarily implied power given in the charter and by the law, one corporation can not indorse paper for the accommodation of another, and such indorsement is ultra vires. (Post, pp. 68, 74, 80.) 3. SAME. Relief of minority against majority stockholders in chancery prerequisite, exception. Courts of equity are prompt to redress the injuries of minority stockholders against the wrongdoing of majority stockholders. But prerequisite to the relief in chancery, the minority stockholders must seek their remedy through the corporation without success, except when it appears that to seek such relief would be an idle ceremony. (Post, pp. 68-69.) Cases cited and approved: Hawes v. Oakland, 104 U. S., 450; Detroit v. Deane, 106 U. S., 537. 4. SAME. Same. Case in judgment. Where a'railroad corporation and its majority stockholders own all the stock in a land corporation, and the board of directors of both corporations are composed of the same persons, and the railroad corporation has indorsed paper for the land corporation. representing indebtedness due to the majority stockholders in the railroad corporation, the minority stockholders of the railroad corporation are not required to seek relief through the railroad corporation before maintaining a suit in chancery for relief against indorsements for, and the taking of stock, in the land corporation. {Post, pp. 58-69.) 5. SAME. Stockholder participating-in or acquiescing in ultra vires acts cannot avoid same. The stockholders in a corporation who actively co-operate with the other stockholders in authorizing, consenting to and procuring ultra vires acts to be done, or who acquiesce therein for an unreasonable length of time, can not afterwards avoid the same by a suit in chancery. (Post, pp. 69-80.) Cases cited and approved. Dunphy v. Association, 146 Mass., 495; Dimpfel v. Railroad, 110 U. S., 209; Allen v. Wilson' (C. C.), 28 Fed., 677; Boyce v. Coal Co., 37 W. Va., 73; Alexander v. Searcy, 81 Ga., 536, 545; Peabody v. Flint, 6 Allen, 54; Gregory v. Pachett, 33 Beav., 595; Ashurt’s Appeal, 60 Pa., 290; Watts’ Appeal, 78 Pa., 370; Stewart v. Transportation Co., 17 Minn., 372 (Gil., 348); Taylor v. Railroad, 4 Woods, 575, 13 Fed., 152; Railroad v. Railroad, 3 De Gex, M. & G., 341; Smith v. Clay, 3 Brown Chy., 639. 6. SAME. Same. Purchaser- of corporation stock cannot avoid ultra vires acts authorized by his vendor. The purchaser of shares of stock in a corporation acquires no greater rights than his vendor possessed, and such purchaser can not avoid ultra vires acts of the corporation authorized by, such vendor, and done before such purchase, or afterwards, as to liabilities incurred before such purchase and in the necessary protection of the rights of others arising before such purchase, when done in pursuance of such previous authority.. (Post, pp. 75-79.) Cases cited and approved: Bert v. British, etc., Association, 4 De Gex & J., 158; Belmont v. Railroad, 52 Barb., 663; Hubbell v. Warren, 8 Allen, 173; Railroad v. Collins, 40 Ga., 616; Kent v. Quicksilver Mining Co., 78 N. Y., 169; Rooks v. Railroad, 1 Sn. & C., 142; Graham v. Railroad, 2 McN. & G., 146; Leo v. Railroad (C. C.), 19 Fed., 283. Cases cited and distinguished: Marble Co. v. Harvey, 92 Tenn., 116; Grant v. Lookout Mountain Co., 93 Tenn., 691; Railroad v. Sneed, 99 Tenn., 1; State v. Mitchell, 104 Tenn., 336. 7. SAME. Same. Purchaser of corporation stock can avoid ultra vires acts done after institution of suit. But the purchaser of stock in a corporation can avoid the ultra vires accommodation indorsements made by the corporation for the liabilities of another arising after purchase of the stock and after the institution of his suit to avoid the same and such previous indorsements, though done in pursuance of the authoi’ity conferred by vendor and previous stockholder. (Post, pp. 79-80.)
111 Tenn. 81Low v. State (1903)
1. SPECIAL JUDGES. Authority and jurisdiction of, limited to term at which» elected. Under our statute providing for the election of a special judge “for the occasion” when the “regular judge fail to attend, or, if in attendance, can not properly preside in a cause or causes pending . . . , or is unable to hold the court,” the authority and jurisdiction of a special judge, elected by the attorneys present, as provided by said statute, expire with the adjournment of the term of Gourt which he is elected, and a conviction of crime at a trial held before him at a subsequent term is void. (Post, pp. 84-89.) Acts cited and construed: Acts of 1870, ch. 78. Code cited and construed: (S.) 5730, 5731, 5732; (M. & V.) 4695. 4696, 4697. 2. SAME. Same. No authority to preside in criminal cases at subsequent term, even by consent. It is well settled in this State that a person charged with -crime can not be tried by other than a judge constitutionally elected and qualified, even by consent. A person charged with crime ought never to be required, nor permitted to select a judge to try his case, and even if the legislature might constitutionally authorize a departure from the rule, there is no statute sanctioning the proceedings — the statute authorizing parties to elect a judge by consent limits the right to civil cases. (Post, pp. 88-89.) Code cited and construed: (S.) 3921; (M. & V.) 3029. Case cited and approved: Neil v. State, 2 Lea, 674. 3. SAME. Election of, insufficient authentication. Where no record is made of the election, of a special judge upon the minutes of the term at which he is elected, neither a nune pro tune order entered at a subsequent term by a special judge elected to try a particular case reciting the election at a previous term, nor the fact that the regular judge signed the final adjourning order of the term at which such nune pro tunc order was entered, is a sufficient authentication of the election of a special judge at a prior term. (Post, p. 89.) 4. SAME. Power to hold election for, vested in clerk, who should make record of same. Power to hold the election for a special judge "for the occasion,” declare the result, and administer the oath of office is vested in the clerk, and must be exercised by him alone, whose duty it is, both under the statute construed above, and that requiring him to keep a record of the proceedings of the court, to make a record of the election at the time it is held, and authenticate such election by his official signature. (Post, pp. 89-90.) 5. SAME. Requisites of order of election of special judge to hold a term of court. An order showing the election of a special judge to hold court on account of the absence of the regular judge should be entered upon the minutes as a part of the caption of the pro- • ceedings of the term, and should show failure of the regular judge to attend, or his inability to attend the court; that an election was held by the clerk at which the person selected to ■preside was duly elected by a majority of the attorneys of the court then present and residents of the State; that such person was also in attendance, a resident of the State and possessed of all the qualifications of a judge of such court, and that before entering upon his duties the oaths of office required of both regular and special judges — which should be copied in full upon the record and signed by the special judge — were duly administered to him. (Post, p. 90.) 6. SAME. Requisites of order of election of special judge to try particular case or cases. Where the election of a special judge is to try a certain case or cases, the entry should he made under the style of the case or cases to he tried and show, in addition to the facts stated in the last headnote, the disqualification of the regular judge, and that the attorneys interested took no part in the election. (Post, p. 90.) 7. SAME. Record of election of, should be verified by clerk. The record of the election and qualification of a special judge should be verified by the official signature of the clerk, and will constitute a part of the record of the case. (Post, p. 91.) 8. SAME. Duty of, to see that proper entry of election is made. While he has no control over his election, and is not authorized to authenticate the record of same, it is the duty of a special judge to see that a proper record is made by the clerk before he signs the decree or judgment made by him. (Post, p. 91:) 9. SAME. Authority of, in criminal cases must appear. The authority of the judge to preside must appear in all criminal cases, and should not be left to presumption or inference in any ease. (Post, p. 91.)
111 Tenn. 92Christian v. John (1903)
1. STATUTES OF LIMITATIONS. Exception of nonresidence not made in statute cannot be interpolated by courts. The nonresidence of the makers of a mortgage or deed of trust will not operate to stop or prevent the running of the ten years* statute of limitations (Acts 1885, ch. 9) in their favor, because no exception is made in favor of nonresidents, and the courts can not interpolate an exception into the statute. (Post, p. 99.) Code cited and construed: Secs. 4464 and 4465 (S.). Acts cited and construed: 1885, ch. 9. 3. SAME. Liens not kept alive nor revived by keeping debts alive. The liens of vendors, mortgagees, and beneficiaries under deeds, of trust on land are barred at the expiration of ten years from the maturity of the original debt secured, although the debt has been kept alive by renewals of the note or promises. After the lapse of the ten years from the maturity of the secured debt, the bar of- the statute becomes complete and absolute, unless prevented by appropriate proceedings for enforcement of the lien or for the foreclosure of the mortgage or deed of trust. (Post, pp. 99-100.) Code cited and construed: Secs. 4464 and 4465 (S.). Acts cited and construed: 1885, ch. 9. Cases cited and approved: McElwee v. McElwee, 97 Tenn., 649; Bunnells v. Jacobs, 100 Tenn., 397; Bank v. Smith, 107 Tenn., 476. 3. DEEDS OF CONVEYANCE. Recital of grantee’s assumption to pay a mortgage debt estops him to deny the existence or validity, of the mortgage. The acceptance oí a deed reciting that the grantee shall assume and pay a certain mortgage debt estops him to deny the validity of the mortgage, or to set up any defense to its validity, or to show that it was not an’’existing incumbrance at the date of the deed, because barred by the statute of limitations or void, wholly or in part, on account of usury. (Post, pp. 100-101.) Cases cited and approved: Shankland v. Nelson, 1 Tenn. Chy., 459; O’Conner v. O’Conner, 88 Tenn., 76; Swope v. Jordan, 107 Tenn., 173. •4. SAME. Grantee’s assumption of mortgage debt enables mortgagee to sue thereon. The grantee’s assumption of the grantor’s mortgage debt enables the mortgagee to maintain an action thereon, though no consideration passed from the mortgagee, and he knew nothing of it at the time. (Post, pp. 101-103.) ■Cases cited and approved: McCarty v. Blevins, 5 Yer., 195; Macon v. Sheppard, 2 Humph., 338; Mills v. Mills, 3 Head., 711; Moore v. Stovall, 2 Lea, 543. ■5. SAME. Recitals shown to be by mistake or accident, and deed reformed. The grantee may show by parol evidence that certain recitals in a deed, as his assumption of the grantor’s mortgage debt, were inserted by mistake or accident, and, if material, may have the ■deed reformed for such accident or mistake. (Post, pp. 103-105.) •Case cited and approved: Jones v. Sharp, 9 Heisk., 660-665. 6. SAME. Barred mortgage revived and renewed by grantee’s assumption enforceable within fen years. The acceptance of a deed reciting that the grantee assumes and agrees to pay a certain mortgage debt already barred by the statute of limitations, and his insistence upon an enforcement of its beneficial provisions, is equivalent to a renewal of the mortgage, which may be enforced at any time within ten years from its acceptance, though he knew nothing of such recital at the time.
111 Tenn. 106Haynes v. Walker (1903)
1. DAMAGES. Eor death by wrongful act do not pass by will of deceased, but distributed by statute. Although the right of action for wrongful hilling is the right of the deceased, yet the recovery on such action is given by statute (Shannon’s Code, sections 4025 to 4028) to the widow, or, if there be no widow, to the children or personal representatives, for the benefit of the widow or next of kin, free from the claims of creditors, and can not pass under the will of the deceased as an asset of his estate, but must be distributed under and according to the provisions of said statute construed in connection with the statutes in relation to the distribution of personal property. Code cited and construed: Secs. 4025, 4026, 4027, 4028, 4172 (S.); 3130, 3131, 3132, 3133, 3278 (M. &V.); 2291, 2292, 2293, 2429 (T. & S. and 1858). Cases cited: Whaley v. Catlett, 103 Tenn., 348; Freeman v. Rail- " road, 101 Tenn., 345; Loague v. Railroad, 91 Tenn., 461; Railroad v. Bean, 94 Tenn., 388. 3. SAME. Distributed among children equally, descendants of deceased child taking parent’s share, when. Under the statute providing for the distribution of personal property among the children of an intestate where there is no widow, the damages recoverable for the negligent hilling of the mother, the father being dead, go to her children in equal parts, and children of a deceased child take the share that the parent would have been entitled to if alive. Code cited and construed: Section 4172, sub-sec. 3 (S.); 3278, sub-sec. 3 (M. & V.); 2429, sub-sec. 3 (T. & S. and 1858).
111 Tenn. 111Blair v. A. Johnson & Sons (1903)
1. SET-OFF. Applies only to mutual debts, when. Technical set-off applies only to mutual debts. (Post, p. 115.) Cases cited and approved: Ragsdale v. Buford, 3 Hay., 192; Allen v. McNew, 8 Humph., 57; Turbeville v. Broach, 5 Cold., 272; Brady v. Wasson, 6 Heisk., 134. 2. Word “demand” in set-off statute defined; cross claim or abatement against it. The word “demand” in the expression, “arising out of the plaintiff’s demand” contained in the statute, means the assertion of a right to recover a sum of money from the defendant; and when such demand is sued on, the defendant may assert a cross claim for the recovery of money against the plaintiff, or for the abatement of his demand by reason of any matter, growing out of that demand. (Post, p. 118.) Code cited and construed: Sec. 4639 (S.); sec. 3628 (M. & Y.); sec. 2918 (T. & S. and 1858). 8. SAME. Same. What defendant may show for cross claim or '. abatement. For the purpose of such cross claim or abatement of “plaintiff’s demand,” the defendant may show that the consideration has failed; or that there was fraud or misrepresentation in the transaction whereby the defendant was damaged; or that by reason of the failure of the plaintiff to carry out his contract, the defendant has suffered some injury reasonably within the contemplation of the parties when the contract 'was made, (Post, pp. 118-119.) Cases cited and approved: McLean v. Houston, 2 Heisk., 37; Hogg v. Cardwell, 4 Sneed, 158; Porter v. Woods, 9 Humph., 56; Whitaker v. Pullen, 3 Hum., 467; Pettee v. Manufacturing Co., 1 Sneed, 385; Overton v. Phelan, 2 Head, 446, 447. 4. CONDITIONAL SALES. With retention of title may be defeated by replevin upon failure to pay. The vendor in what is called a “conditional sale” of personal property, in which the title is retained to secure the purchase price, has the right, upon the purchaser’s failure to pay the purchase price, to replevin the property, and thereby defeat the sale or enforce the condition inhering in the contract which contemplated a defeat thereof upon such failure to pay the purchase price. (Post, p. 116.) 5. SET-OFF AND RECOUPMENT. Not allowable for breach of warranty of soundness in replevin suit to enforce condition in sales. For a breach of the warranty of soundness in a contract of conditional sale of personalty and retention of title to secure the purchase price, set-off or recoupment is not allowable against an action of replevin brought by the vendor to enforce a breach of the condition by a recovery of the property in accordance with the contract and the statute. (Post, pp. 116-120.) Cases cited and approved: Fairman v. Fluck, 5 Watts,. 516; Lay-cock v. Tufnell, 2 Chitty, 531; Adsolam v. King, Bull, N. P., 181; Goslin v. Redden, 3 Har. (Del.), 21; Williams v. Irby, 15 S. C., 458; Talbott v. Padgett, 30 S. C., 167; Moffatt v. Van Doren, 4 Bosw., 609; Lovenshon v. Ward, 45 Cal., 8; Gottler v. Babcock, 7 Abb. Prax., 392,° note; Whitworth v. Thomas, 83 Ala., 308; Kennett v. Fickel, 41 Kan., 211. 6. SAME. Same. Not authorized by statute. Such set-off or recoupment in such replevin suit is not authorized by a statute providing that “any matter arising out of the plaintiff’s demand .... or growing out of the original consideration'of any written instrument, for which defendant would be entitled to recover in a cross-action.” (Post, p. 116.) Code cited and construed: Sec. 4639 (S.); sec. 3628 (M. & V.); sec. 2918 (T. & S. and 1858). Acts cited and construed: 1855-56, ch. 71. 7. WARRANTY. Damages for breach, of warranty of soundness in sales of personalty. Where the warranty of soundness in the sale of personalty is broken the purchaser is entitled to damages, to the extent, at least, of the difference in value between the article as represented and as it actually turned out to be. (Post, p. 117.) Case cited and approved: Smith v. Cozart, 2 Head, 528.
111 Tenn. 121Railway Co. v. Higdon (1903)
1. DAMAGES. Measure of, for overflowing land by wrongful obstruction of water way. AVhere a railway company, by the wrongful obstruction of a water way, causes the land of the adjacent owner to be flooded, in an action therefor the measure of damages to such owner is the injury occasioned up to the time the suit is instituted, and not the difference between the market value of the property before and after the obstruction was erected. (Post, pp. 124-125.) Cases cited and approved: Carriger v. Railroad Co., 75 Tenn., 388; Harmon v. Railroad Company, 87 Tenn., 614; Nashville v. Comar, 88 Tenn., 416; Chattanooga v. Dowling, 101 Tenn.,. 342. 2. SAME. Same. Evidence of market value of land flooded before and after obstruction inadmissible. Rationale rule. In an action to recover damages for flooding land by wrongful obstruction of a water way, evidence of the market value of the land before and after the erection of the obstruction is inadmissible. Such evidence could only be competent upon the theory that the wrongdoing was to be continued, and therefore the property was permanently injured. The wrongdoer will not thus be permitted to procure a license to continue his misconduct. The injury is abatable and one not presumed to continue and therefore the damages recoverable from the-wrongdoer are only such as have accrued before suit was brought and successive independent actions may be instituted for the subsequent continuance of the wrong, or a recurrence of the nuisance. (Post, pp. 125-127.) Case cited and approved: Nashville v. Comar, 88 Tenn., 416. 3. SAME. Same. Evidence of injury subsequent to action brought, inadmissible. In an action for the overflowing of plaintiff’s land by an obstruction of a water way, causing a large accumulation of stagnant water, injurious to health, evidence of plaintiff’s sickness subsequent to the institution of the suit, and attributable to the unsanitary condition previous to the beginning of the action, is inadmissible either to prove such condition or as a proof of injuries sustained. (Post, p. 127.)
111 Tenn. 128Cope v. Payne (1903)
1. UNLAWFUL ENTRY AND DETAINER. Judgement in aganst tenant does not bind landlord. Only parties and their privies are precluded by a judgment in a matter of private right, and whenever an action of unlawful entry and detainer was brought against a tenant, in which the landlord was not a party, the landlord is not bound by the judgment, although he knew of the pendency of the action. (Post, pp. 130-131.) Cases cited and approved: Boles v. Smith, 5 Sneed, 105; Hillman v. Chester, 12 Heisk., 34-36; Boro v. Harris, 13 Lea, 36-44. 2. SAME. Will not lie against purchaser at judicial sale, when. An action of forcible and unlawful entry and detainer will not lie to dispossess a purchaser under a decree of a court of competent jurisdiction placed in possession by an order of the court. (Post, p. 132.) Cases cited; Scott v. Newsom, 5 Sneed, 456; Rook v. Godfrey, 105 Tenn., 534. » 3. CHANCERY COURT. Will protect possession of purchaser under its decrees. Bill to quiet possession. A court of equity has full power to protect a purchaser of land, in possession under its orders and decrees, and a bill to quiet possession will lie by such purchaser to enjoin the enforcement of a judgment against his tenant in an action of unlawful entry and detainer, to which such purchaser was not a party, though the person holding the judgment might be entitled to possession by bringing a proper action to determine his right. (Post, p. 132.) • Cases cited; King v. Mabry, 3 Lea, 237; Walker v. Fox, 85 Tenn., 154.
111 Tenn. 134Mayor of Knoxville v. Klasing (1903)
1. EVIDENCE. Expert opinion of physician as to cause or origin of disease. From the very nature of the case, it must he a matter of expert opinion as to what is the cause or origin of disease, and the testimony of physicians is the most reliable evidence on that subject. {Post, p. 137.) 2. SAME. Same. Sufficient to sustain action against city for sewer nuisance, when. Case in judgment, The evidence of physicians, some of whom attended plaintiff, and others of whom examined the premises, showed that the foul air and gases generated by garbage dumped by the city into a sewer near plaintiff’s residence were sufficient to cause plaintiff’s sickness and were its origin, and that plaintiff had been seriously sick with a contagious fever, though whether it was miasmatic or typhoid, or both, there was some slight divergence of opinion. Hold: The evidence was abundantly sufficient to sustain a verdict for damages on account of the city’s negligence in the maintenance and operation of its sewers. (Post, p. 137.) S. MUNICIPIAR CORPORATIONS. Not bound to provide sewers, but liable for negligent construction or operation, when. While a municipality is not bound to build a sewer and the necessity therefor is to be determined in the exercise of its legislative functions, yet it is not privileged to commit a nuisance, and if, after a sewer is-' located, the municipality authorizes ■or with knowledge permits it to be so negligently constructed ■or operated as to become a nuisance detrimental to health and property, the municipality will be liable in a private action to the party injured. {Post, pp. 137-139.) Cases cited and approved: State v. Barksdale, 5 Humph., 154; State v. Shelbyville, 4 Sneed, 177; Horton v. Mayor, 4 Lea, 48; Nashville v. Comar, 88 Tenn., 417; Chattanooga v. Dowling, 101 Tenn., 344; Johnson City v. Wolfe, 103 Tenn., 279; Chattanooga v. Reid, 103 Tenn., 621; Pierce v. Gibson Co., 107 Tenn., 233. 4. SAME. Same. Case in judgment. The proof showed that the city authorities had directed garbage to he deposited in a sewer near plaintiff’s residence, and that this created a nuisance, causing the sickness and depreciation of the property complained of. Upon these facts the trial judge was requested to charge in substance, that the operation of the sewer by the city was a governmental or legislative function for which it was not liable in a private action. (.Pont, pp. 136-139.) Held: The refusal to charge as requested was not error because the facts make a case of liability against the city, even if the construction or providing of the sewer be held to be a legislative or governmental function. (Post, p. 139.)
111 Tenn. 140Swainson v. Scott (1903)
1. EJECTMENT. To maintain, plaintiff must show title. The law is well settled that, in order to maintain ejectment, the plaintiff must deraign title either from the State by a grant or from a common source, or he must prove such long possession as that the court will presume that the land was granted to. him or his predecessor in title, or that his possession under a color of title has become perfected by the statute of limitations. (Posl, pp. 141-142.) Cases cited and approved: Snoddy v. Kreutch, 3 Head, 301; Jones v. Nixon, 102 Tenn., 95; King v. Coleman, 98 Tenn., 561; Clay v. Sloan, 104 Tenn., 401; Wilcox v. Blackwell, 99 Tenn., 352; Hubbard v. Godfrey, 100 Tenn., 150. 2. EVIDENCE. Recitals in a deed not proof of grant against stranger and adverse claimant. References to a grant, claimed to be lost and the record evidence thereof destroyed, contained in deeds introduced by complainant in ejectment as links in deraignment of title are not sufficient to establish the existence of an original grant as against a stranger to the deed claiming by title paramount and adverse. (.Post, pp. 142-143.) Cases cited: Henderson v. Galloway, 8 Humph., 691; Baxter v. First National Bank, 85 Tenn., 33-44; Wilcox v. Blackwell, 99 Tenn., 352; Downing v. Stephens, 1 Baxter, 454. 3. SAME. Same. Recitals in deed not evidence of grant, because offered and read without objection. Where no notice is given by a complainant in ejectment of a purpose to rely on recitals in deeds properly introduced in his deraignment of title as tending to establish the existence of a grant, the failure of defendant to interpose an exception to the introduction of such deeds does not make the recitals competent evidence to'establish a grant. (Post, pp. 143-144.)
111 Tenn. 145Nichols & Shepherd Co. v. Loyd (1903)
1. CONSTITUTIONAL LAW. Caption broader than aet does . not vitiate either. Neither the caption of the act 'ñor the act itself is defective merely because the caption contains matter not legislated on . in the body of the act. (Post-, p. 148.) -2. STATUTORY CONSTRUCTION. Ambiguous or meaningless clause may be rejected, or words- supplied by intendment to express the obvious intention of the legislature. Case in judgment. ' In the caption of the amendatory aet providing for the authentication of charters of foreign corporations to be filed with the secretary of State, the clause, ’“registering abstracts of the same in the register’s office in each county in which the company desires- or proposes to do- business” being ambiguous and not making good sense, may be -rejected as surplusage without rendering the caption defective, or, in view of the provisions of the act, by intendment the- words “and doing away with the” may be supplied at the beginning of the clause quoted, thus making the whole caption good. (Post, pp. 148-149.) Statute construed: Act of 1891, ch. 122; Act of 1895, ch. 81. 3. FOREIGN CORPORATIONS ACT. As amended by Act of 1895 does not require abstract of charter to be registered in each county in which the corporation,does business. The act of 1895, amending the-foreign .corporation act of 1891, so as to read as stated in the amendatory act, supersedes the latter and renders it unnecessary for any foreign corporation desiring to do business in the State to cause to be registered an abstract of its charter in each comity in which it desires to do business, but makes it sufficient to file in the office of the secretary of State a copy of its charter, duly authenticated by the certificate of the secretary of the corporation, with the seal thereof attached. {Poní, pp. 146-150.) Statute construed: Act of 1891, ch. 122, secs. 2, 3, 4; Act of 1895, ch. 81. 4. AMENDATOB.Y- STATUTE. Method of, amendment, by which statute as amended is shown, approved. The method of amending a prior act by providing that it shall read as set out in the amendatory act is a recognized form of amendment, when the act to be amended is properly identified . by due reference; and no other method of amendment could more clearly express the intention of the legislature as to the exact change which it is desired to make, disclosing at a glance the matter exscinded and that added. (Post, p. 150.)
111 Tenn. 151Freeman v. Freeman (1903)
1 HOMESTEAD. Wife not entitled to, who deserts husband and lives in adultery. The homestead secured by the constitution and statute to each head of a family, and which can not be sold by the husband without the joining of the wife in the deed of conveyance, is in consideration of the existence of the family relation, and with the view of preserving a shelter for the family; but, a wife, who, wilfully and without cause, abandoned her husband, and lived a life of adultery before the recording of a deed executed by the husband alone, conveying his real estate, is not entitled to a homestead in the land so conveyed. Case cited and approved: Prater v. Prater, 87 Tenn., 78.
111 Tenn. 154Fox v. State (1903)
1. CRIMINAL LAW. Continuances should be allowed only that justice may be done. While it has become settled law in this State that the allowance of a continuance rests in the sound discretion of the trial judge, that discretion should always be exercised so as to secure as speedy a settlement of the litigation as may be consistent with the orderly and correct disposition of business and administration of justice; and no continuance ought to be allowed unless it be made clearly to appear to the court that it is necessary for the attainment of justice. (Post, pp. 158-159, 160.) Cases cited: Pitts v. Gilliam, 1 Head, 549; Sevier v. State, 1 Tenn., Cas;, 129; Garber v. State, 4 Cold., 161; Walt'v. Walsh, 10 Heisk., 314; Rexford v. Pulley, 4 Baxt., 364; State v. Rigsby, 6 Lea, 554; Womack v. State, 6 Lea, 146; Jones v. State, 10 Lea, 588; Brown v. State, 85 Tenn., 439. .2. SAME. Same. Affidavits for continuance must be special at first as well as subsequent term. General rule. While under conditions fifty years ago it may have been proper to grant greater indulgence in the preparation of cases for trial, yet in view of the changed conditions of the country, the present superior facilities for communication, procuring information and securing the attendance of witnesses, trial courts should be more stringent in relation to continuances than formerly, and an affidavit in support of an application for a continuance cn account of absent witnesses, whether offered at the first or a subsequent trial term, should be special and state the names and residences of the witnesses, and the facts expected to be proven by each of them, in addition to the usual requisites .of such affidavits, so that the court may .see and judge whether the evidence desired is relevant, competent and material. (Post, pp. 157-165.) Oase overruled on point that affidavit at first trial term need not be special: Nelson v. State, 2 Swan, 483. -3. SAME. Special affidavit excused, when. Arguendo. Cases may arise in which the applicant for a continuance can not state with certainty the facts expected to be proved by the ab- ■ sent witnesses, or even the names of the witnesses, but in such eases the reasons why the applicant is unable to set out the testimony of the absent witnesses, and in other respects conform to the rule stated in the last headnote, should be fully stated in the affidavit in order that the trial judge may be satisfied as to the good faith and diligence of the applicant before granting a continuance. (Post, pp. 163-164.) 4. SAME. Refusal of continuance not ground for reversal though erroneous, when defendant not prejudiced thereby. It is well settled that a refusal of a continuance for absent witnesses, even upon a sufficient affidavit, is not ground for reversal, where it appears upon the trial that the evidence sought to be obtained was incompetent, or immaterial, or was supplied by other witnesses, or for any reason the defendant was not prejudiced by the refusal of his application. (Post, pp. 159-160, 165.) •Cases cited and approved: Porter v. State, 3 Lea, 496; Womack v. State, 6 Lea, 146; Delaney v. State, 7 Baxt., 28; Taylor v. State, 11 Lea, 715.
111 Tenn. 166Shoun v. State (1903)
1. CONTINUANCE. Is within sound discretion of trial judge. General rule reaffirmed. It is a well-settled rule of practice that a continuance rests within the sound discretion of the trial judge, and thát this court will . not overrule that discretion unless it appears that it has been improperly exercised or grossly abused. (Post, p. 169.) . Case-cited: State v. Rigsby, 6 Lea, 554. 2. SAME. Same rule applies to application at first term. , And' it is now settled that a continuance at the first term is equally within the sound discretion of the trial judge as if the . application therefor were made at a subsequent term. (Post, p. 170.) . Case cited and approved: Pox v. State, 111 Tenn., 154. 3. SAME. Counter affidavits allowable on hearing of application for. On a motion for a continuance it is proper practice, sustained by the great weight of authority, to allow the introduction of counter affidavits within proper limits at the sound discretion of the trial judge; but the affidavits should not be allowed to go to the extent of trying the case on its merits upon the preliminary question of a continuance, but only to satisfy the judge- that a continuance is necessary or not in order to reach the'merits of the controversy upon the grounds stated in the affidavit for a continuance. (Post, pp. 169-172.) Case cited and approved: Walt v. Walsh, 10 Heisk., 318. 4 SAME. Imperative duty of this court to reverse for abuse of discretion. When there is an abuse of the sound judicial discretion vested in the trial judge, it is the imperative duty of this court to reverse and correct it. {Post, p. 172.) Case cited: State v. Poe, 8 Lea, 647. 5. SUPREME COURT. Will reduce excessive fine to amount ■which judge may lawfully impose. Case in judgment. Plaintiff in error was convicted of unlawfully selling liquors without a license, and his punishment fixed by the court at a fine of one hundred dollars and imprisonment in the county jail for a period of six months. The statute provides that the fine for selling intoxicating liquors without a license shall not he less than fifty dollars nor more than two hundred dollars. • The constitution provides that no fine in excess of fifty dollars shall he laid, unless it shall he assessed hy a jury. B'eld: The fine imposed hy the court is valid only to the extent of fifty dollars and is reduced to that amount. {Post, pp. 168, 173.) Statute construed: Act of 1899, ch. 161. Constitution construed: Article 6, section'14.
111 Tenn. 174Warren v. Cleveland (1903)
1. STATUTE OP LIMITATION'S. Bar of, how removed. Bula stated. In order to remove the bar of the statute of limitations there must be either an express promise to pay or an acknowledgment of the debt accompanied by an expression of willingness to pay it. (Post, pp. 176-178.) Cases cited and approved: Jordan v. Jordan, 85 Tenn., 566; Shown v. Hawkins, 85 Tenn., 216; Maloney v. Searight, 8 Lea, 91-94; Fuqua v. Dinwiddie, 6 Lea, 648; Boiler v. Bachman, 6 Lea, 156-157; Bogers v. Southern, 4 Baxt., 67-69; McFerrin v. Woods, 3 Baxt., 242, 247; Allison v. Bradford, 1 Tenn. Cas., 619-621; Broddie v. Johnson, 1 Sneed, 465; Butler v. Winters, 5 Swan, 92; Ott v. Whitworth, 8 Humph., 593-596; Hale v. Hale, 4 Humph., 183-185; Thompson v. French, 10 Yerg., 456; Crow-der v. Nichol, 9 Yerg., 453-455; Belote v. Wynne, 7 Yerg., 534. Cases distinguished: Harwell v. McCollock, 2 Overt., 275-278; Luna v. Edmiston, 5 Sneed, 160; Partee v. Badgett, 4 Yerg., 174; Bussell v. Gass, Mart. & Yerg., 174. Case overruled: Hunter v. Stark, 8 Humph., 656. 2. SAME. Mere recognition of claim insufficient to prevent bar of. When recognition of a debt is relied on to take the case out of the operation of the statute, the character of the recognition must be shown and that it was tantamount to a direct promise to pay or an acknowledgment of the existence of the debt, coupled with an expression of willingness to pay it; that a debtor merely “recognized the claim up to a short time before his death” is insufficient. (Post, pp. 175-176.)
111 Tenn. 179Shugart v. Shugart (1903)
1. HUSBAND AND WIFE. Personal property of wife vests in husband surviving. A husband surviving his wife is entitled jure mariti' to take, as his own, money on deposit in a bank belonging to t}ie wife, although such funds came to her from her father’s estate and are kept and used as her own. (Post, p. 183.) Cases cited: Hamrico v. Laird, 10 Yerg. 222; Prewitt v. Bunch, 101 Tenn., 723. 2. PROMISSORY NOTES. The only consideration of which is love and affection, not enforceable. The father, in whom jure mariti, is vested the funds of his deceased-wife, is under no legal obligation to give them to his children, and notes representing the amount of such funds, voluntarily executed by the father to children, are based alone upon love and affection and, therefore, are not enforceable. (Post, p. 183.) 3. SAME. Of donor not a good subject of gift. The promissory note of. a donor is not a good, subject of a gift. It is a mere promise to pay in the future and not complete until payment and can not be enforced against either the donor or his estate after his death. (Post, p. 183.) 4. PARENT AND CHILD. Express promise necessary to entitle child to recover for personal services rendered parent. Services rendered by,a daughter to her mother, in caring for her are such as she was morally bound to render and do not constitute a valuable consideration for a note executed by the father-in the absence of an express promise. (Post, p. 183.) Case cited: Harrison v. McMillan, 109 -Tenn.,-77. 5. GIFTS INTER VIVOS. Not good unless the donor parts with his dominion and control. It is well settled in this State that for a gift inter vivos to he good it must he executed and there must be an actual change in the possession of the property, coupled with the manifest intention of the donor to part with his dominion and control thereover. (Post, p. 184,) Cases cited: McEwen v. Troost, 1 Sneed, 189; Trowell v. Carra-way, 10 .Heisk., 104; Sheegog v. Perkin, 4 Baxter, 281; Marshall v. Russell, 93 Tenn., 261. 6. SAME. Same. Unindorsed certificate of deposit not a good gift, when. The mere manual delivery of certificate of deposit, payable to the donor’s own order, and not indorsed by him, would not vest title, unless made for a valuable consideration, or was not subsequently revoked. (Post, p. 184.) 7. EVIDENCE. Imputing moral turpitude not admissible, when. Exclusion of, not erroneous unless set out in record. Case in judgment. Plaintiffs sued their father, the defendant, on notes alleged to represent money left on deposit by the mother, to which the father, ■ surviving, -was entitled jure mwiti, but which he had promised to give to plaintiffs. On the trial questions were offered imputing moral turpitude to defendant. Record does not show either questions or answers. Eeld: 1. Questions properly excluded. 2. Trial court can not be put in error even for erroneous exclusions of evidence, unless both questions and answers appear in the record. (Post, p. 185.) 8. PARENT AND CHILD. Father not estopped to deny liabil-. ity to daughter on note without consideration, when. Where a father, without consideration, executed a note to his daughter, he is not estopped to deny liability thereon, although she contracted debts for board, relying on said note to pay them, it not appearing whether the debts were incurred before or after suit was brought. (Post, pp. 182-184.)
111 Tenn. 186Bean v. Aetna Life Ins. (1903)
1. INSURANCE POLICY. Construction of repugnant provisions. General rule. Chief purpose prevails. "Where two clauses of a contract are so totally repugnant that they can not stand together, the fii st governs rather than the last, and especially should this rule of construction prevail when it appears that the first clause expresses the chief object and purpose of the contract. (Post, pp. 189-192.) Cases cited: Bank v. Wilkin, 95 Wis., Ill; Green Bay, etc., Co. v. Hewitt, 55 Wis., 96; Hartung _v. Witte, 59 Wis., 285; Straus v. Wanamaker, 175 Pa., 213. 3. SAME. Same. Case in judgment. Defendant insurance company issued to complainant an accident policy purporting to insure him for a period of twelve months from noon of October 25, 1901. By a subsequent clause it was provided that said policy should not cover any disability from any disease contracted within fifteen days from noon of the day the policy bore date. Meld\ The second clause being irreconcilably repugnant to the first provision, expressing the chief purpose of the contract, is therefore void. (Post, pp. 187-192.)
111 Tenn. 193Major v. Major (1903)
1. YEAR’S SUPPORT. When assigned vests absolutely in the widow. Under our statute (Shannon’s Code, section 4021), property when assigned to a widow for a year’s support, vests absolutely in her. (Post, pp. 197-198.) Case cited and approved: Vincent v. Vincent, 1 Heisk., 333-343. 2. SAME. Same. Children of husband by former marriage, not entitled to division of. Case in judgment. Where a year’s support had been assigned to a widow, and she, with her children, had gone to live with her father, and the husband’s children by a former marriage had gone to live with his relatives, by and in pursuance of arrangements made by him just prior to his death, and as required by his poverty, the children of the former marriage are not entitled to have said year’s support divided and a part thereof set aside for them. 3. COSTS. Properly taxed against next friend, when. Costs are properly taxed against next friend, who, with full knowledge of the facts, institutes an action wholly without merit, and which can be of no practical benefit to his wards. (Post, p. 201.)
111 Tenn. 202Chisholm & Moore Manufacturing Co. v. United States Canopy Co. (1903)
1. CONTRACTS. Measure of damages for breach of executoi’y contract of sale of personalty. It is a general rule that the measure of damages for the breach of an executory contract of sale of personalty is the difference between the contract price and the market value of the goods at the time and place of delivery. (Post, pp. 209-210.) Case cited and approved: Cole v. Zucarello, 104 Tenn., 64. 2. SAME. Same. Expected profits are not allowable as damages, when. It is a general rule that expected profits can not be allowed as damages, where they are uncertain, speculative, and contingent, and are dependent upon numerous, uncertain, and dangerous contingencies, and are too remote, and not the direct and immediate result of a nonfulfillment of the contract, and are not a part of the contract, nor within the contemplation of the • parties. (Post, pp. 210-211.) Cases cited and approved: Hendrick v. Stewart, 1 Ov., 476; Porter v. Woods, 3 Humph., 56; Pettee v. Manufacturing Co., 1 Sneed, 380, 381; Whitson v. Gray, 3 Head, 442; McWhirter v. Douglas, 1 Cold., 602, 603; Hurley v. Buchi, 10 Lea, 346; Machine Co. v. Compress Co., 105 Tenn., 212; Howard v. Manufacturing Co., 139 U. S., 199; The Anna Maria, 2 Wheat., 327; The Amiable Nancy, 3 Wheat., 546; La Amistad de Rues, 5 Wheat., 385; Smith v. Condry, 1 How., 28;' Parish v. United States, 8 Wall., 500, 507; Bulkley v. United States, 19 Wall., 37; Griffin v. Coiner, 16 N. Y„ 489; Masterson v. Brooklyn, 7 Hill., 73; The Schooner Lively, 1 Gall., 314. 3. SAME. Same. Realizable profits lost by breach of contract are recoverable as damages, when. But the profits which would have been realized by the performance of the contract, and which have been prevented by its breach, are included in the damages to be recovered in every case where such profits are not open to the objection of uncertainty or of remoteness, and where, from the expressed or implied terms of the contract itself, or the special circumstances under which it was made, it may be reasonably presumed that they were within the intent and mutual understanding of both parties at the time it was entered into. {Post, pp. 211-233.) Cases cited and approved. State v. Ward & Briggs, 9 Heisk., 132, 133; Foster v. Water Co., 3 Lea, 46; Winters v. Fleece, 4 Lea, 551; Smith v. O’Donnell, 8 Lea, 479; Insurance Co. v. Heidel, 8 Lea, 495; Insurance Co. v. Mathews, 8 Lea, 504; McDonald v. Timber Co., 88 Tenn., 38, 43, 44; Reese v. Miles, 99 Tenn., 398, 401; Railroad v. Cabinet Co., 104 Tenn., 568, 574, 575; Machine Co. v. Compress Co., 105 Tenn., 187, 203, ei seg_.; Howard v. Manufacturing Co., 139 TJ. S., 199; United States v. Behan, 110 U. S., 338, 345-347; Telegraph Co. v. Hall, 124 U. S., 444, 454-456; Railroad v. Howard, 13 How., 307; Hadley v. Baxendale, 9 Ex., 341; Hobbs v. Railroad, L. R., 10, 2 B., Ill; Griffin v. Colver, 16 N. Y., 489; Deming v. Railroad, 48 N. H., 455. Cases cited and distinguished: Hendrick v. Stewart, 1 Ov., 476; Porter v. Woods, 3 Humph., 56; Pettee v. Manufacturing Co.. 1 Sneed, 381; Whitson v. Gray, 3 Head, 442; McWhirter v. Douglas, 1 Cold., 602, 603; Hurley v. Buchi, 10 Lea, 340; Machine Co. v. Compress Co., 105 Tenn., 212. 4. SAME. Same. Same. Loss of profits for breach of contract to manufacture articles recoverable as damages; case in judgment Where the defendant contracted with the complainant for the manufacture and delivery of brackets, for which a patent had been applied for, to be used by the defendant during the mosquito season in the manufacture of mosquito canopy frames, and it was known to the complainant that such brackets could not be bought in the open market, and that they could not be manufactured by any one else in time for the mosquito season, after his failure to manufacture and deliver them, and that defendant was taking orders for the sale of mosquito canopy frames upon the faith of complainant’s proper performance of the contract; but the complainant manufactured defective brackets,, and on delivery, defendant purchased a machine to remedy the defects, and used some of the brackets in this way, but refused to use and receive others, whereupon the complainant sued the defendant for the price of the brackets and other castings furnished, and defendant filed a crossbill to recover damages for complainant’s breach of the contract, and proved as damages the loss of profits amounting to fifty per cent, on orders taken for canopies from solvent parties amounting to $2,225, which he was unable to fill, the profits so lost were recoverable as damages for complainant’s breach of the contract, because they were not too uncertain, speculative, contingent, and remote, and were within the contemplation of the parties to the contract.
111 Tenn. 234Grainger County v. State ex rel. Mynatt (1903)
■Cases cited and approved: Pope v. Phifer, 3 Heisk., 682, 683; Jackson v. Nimmo, 3 Lea, 386; Williams v. Taxing District, 16 Lea, 535; People v. Draper, 15„N. Y., 532. Cases cited and approved: Coleman v. Campbell, 3 Shannon’s Cases, 355; Judges’ Cases, 102 Tenn., 509; State v. Lindsay, 103 Tenn., 625; State, ex rel., v. King, 104 Tenn., 156. Constitution cited and construed: Art. 6, sec. 1. Cases cited and approved: Coleman v. Campbell, 3 Shannon’s Cases, 355; Halsey v. Gaines, 2 Lea, 316; Judges’ Cases, 102 Tenn., 509; State v. Lindsay, 103 Tenn., 625;. State, ex rel., v. King, 104 Tenn., 156. Cases cited, approved and distinguished: Powers v. Hurst, 2 Humph., 24; Brewer v. Davis, 9 Humph., 208, 213, 214; Keys v. Mason, 3 Sneed, 6; Pope v. Phifer, 3 Heisk., 682; Ex parte Cross and Mercer, 16 Lea, 486; State v. Leonard, 86 Tenn., 485, 486; State v. Cummins, 99 Tenn., 667, 683; Judges’ Cases, 102 Tenn., 510, 545, 561, 562, 571, 572. Constitution cited and construed: Art. 7, sec. 1. Cases cited and approved: Stewart v. Roberts, 1 Yer., 389; Cannon Co. v. Hoodenpyle, 7 Humph., 146; Obion Co. v. Marr, 8 Humph., 634; Ford v. Farmer, 9 Humph., 152; Maury Co. v. Lewis Co., 1 Swan, 236, 240; Ezell v. .Giles Co., 3 Head, 585, 586; Bridgenor v. Rogers, 1 Cold., 259, 261; Wilson v. Davidson Co.. 3 Tenn. Chy., 536, 540; Winston v. Railroad, 1 Bax., 73; Hum-phreys Co. v. Houston Co., 4 Bax., 598; State v. Anderson Co., 8 Bax., 258; Hawkins v. Railroad, 1 Shannon’s Cases, 292, 303; Beck v. Puckett, 2 Shannon’s Cases, 490, 495, 496; Williams v. Taxing District, 16 Lea, 535, 536; James Co. v. Hamilton Co., 89 Tenn., 237; Railroad v. Wilson Co., 89 Tenn., 603. Cases cited and approved: Cannon Co. v. Hoodenpyle, 7 Humph., 146; Turnpike Co. v. County Court, 8 Humph., 342; Obion- Co. v. Marr, 8 Humph., 634; Maury Co. v. Lewis Co., 1 Swan, 236. 240; Carey v. Justices, 5 Sneed, 515; Ezell v. Giles Co., 3 Head, 585, 586; Pope v. Phifer, 3 Heisk., 682; Grant v. Lindsay, 11 Heisk., 666; State v. Anderson Co., 8 Bax., 258; Beck v. Puckett, 2 Shannon’s Cases, 490, 495, 496; Wilson v. Davidson Co... 3 Tenn. Chy., 536, 540. Constitution cited and construed: Art. 11, sec. 9; art. 6, secs. 1 and 15; art. 7, secs. 1 and 2; art. 2, sec. 29; const, of 1796, art. 6, sec. 1; art. 5, sec. 12. Code cited and construed; Sees. 5355, 5374, 6793-6797, 5926-5930, 5933, 5939, 5947, 5948, 5949, 5959 (S.);. secs. 4334, 4353, 4756-4761, 4889-4893, 4896, 4902, 4910/4911, 4912, 4922 (M. & V.); secs. 3590, 3609, 3981-3986, 4114-4118, 4121, 4127, 4135, 4136, 4137, 4147 (T. & S. and 1858). Acts cited and construed: 1835-36, chs. 6, 17; 1837-38, ch. 18; 1851-52, ch. —-. Constitution cited and construed: Art. 6, sec. 15. Case cited and overruled: Britton v. Moody, 2 Cold., 15. Constitution cited and construed: Art. 6, sec. 15. Cases cited and overruled: Britton v. Moody. 2 Cold., 15; Ex parte Cross and Mercer, 16 Lea, 486. Constitution cited and construed: Art. 6, sec. 15. Case cited and approved: Lipscomb v. Dean, 1 Lea, 546. 11. JUSTICES OF THE PEACE. Exercise judicial and political functions; county officers. Constitution cited and construed: Art. 6, sec. 1. 12. MUNICIPAL CORPORATIONS. Arms of government; created or abolished at will of legislature. Cases cited and approved: Luehrman v. Taxing District, 2 Lea. 425, 433; State v. Waggoner, 88 Tenn., 293. Constitution cited and construed: Art. 11, sec. 8. Cases cited and approved: Alexander v. Dearmon, 2 Sneed, 104; Memphis v. Fisher, 9 Bax., 239; State v. Wilson, 12 Lea, 246; Hatcher and Lee v. State, 12 Lea, 368; Ballentine v. Pulaski, 15 Lea, 633; Williams v. Taxing District, 16 Lea, 537, 538; Williams v. Nashville, 89 Tenn., 487, 491. Code cited and construed; Secs. 2685, 2686 (S.); secs. 2108, 2109 (M. & V.); secs. 1601, 1602 (T. & S. and 1858). Acts cited and construed: 1883, ch. 114; 1877, ch. 23; 1881, ch. 127. Constitution cited and construed: Art. 11, sec. 8. Oases cited and approved: State v. Burnett, 6 Heisk., 188, 189; Sutton v. State, 96 Tenn., 696, 703, 705, 706; Woodard v. Brien, 14 Lea, 520, 523, 524; Burkholtz v. State, 16 Lea, 71; Alexander v. Dearmon, 2 Sneed, 119; Weaver v. Davidson Co., 104 Tenn., 315, 328; Pope v. Phifer, 3 Heisk., 695, 698, 701-704; Moore v. State, 5 Sneed, 510; State v. Leonard, 86 Tenn., 487; State v. Maloney, 92 Tenn., 68; State v. Justices, 90 Tenn., 726; Lauderdale Co. v. Fargason, 7 Lea, 153; Burnett v. Maloney, 97 Tenn., 677, 702, 703; Demoville v. Davidson County, 87 Tenn., 221, 223; Wil- ■ liams v. Nashville, 89 Tenn., 487; State v. Wilson, 12 Lea, 246; Ballentine v. Pulaski, 15 Lea, 633. Cases cited as overruled: Wallace v. County Court, 3 Shannon's Cases. 553. Case cited and distinguished: Pope v. Phifer, 3 Heisk., 695. Constitution cited and construed: Art. 1, sec. 8; art. 2, sec. 29; art. 6, secs. 1, 15; art. 11, sec. 8. Acts cited and construed: 1847-48, ch. Ill, sec. 10; 1857-58, ch. 38; 1897, ch. 124, secs. 2, 8. Cases cited and approved: Ballentine-v. Pulaski, 15 Lea, 639; Leeper v. State, 103 Tenn., 502. Code cited and construed: Secs. 95-99 (S.); secs. 82-86 (M. & V.); secs. 77-81 (T. & S. and 1858). Cases cited and approved: Pope v. Phifer, 3 Heisk., 686; Davis v. State, 3 Lea, 376; Lauderdale Co. v. Pargason, 7 Lea,. 153, 154: Demoville v. Davidson Co., 87 Tenn., 220; Stratton v. Morris, 89 Tenn., 497; Henley v. State, 98 Tenn., 665, 681; Dayton v. Barton, 103 Tenn., 604. Case cited, approved and distinguished: Pope v. Phifer, 3 Heisk., 682. Constitution cited and construed: Art. 6, sec. 15. Code cited and construed: Secs. 95-99 (S.); secs. 82-86 (M. & V.) ; secs. 77-81 (T. &S. and 1858).
111 Tenn. 244Iles v. Matlock (1903)
FROM LOUDON. Appeal in error from the Circuit Court of Loudon County. — George L. Bruke, Judge. All of the foregoing cases were heard together in the Supreme Court.
111 Tenn. 294Hayes v. Kelley (1903)
1. APPEAL. Lies to circuit court from county court in election contest. The case of a contested election is embraced within the provisions of the statute granting an appeal to the circuit court of the county to any persons dissatisfied with the judgment or decree of the county court, unless it is otherwise expressly provided by law. (Post, p. 297.) 2. SAME. Statute prescribing time of filing transcript in circuit court on appeal from county court, mandatory. The provisions of the statute requiring that, in certain cases, including the case of a contested election, where an appeal has been prayed from the judgment of the county court to the circuit court, a transcript of the record shall be delivered to the clerk of the circuit court by the first day of the term to which the appeal is taken, and that, if the transcript is not filed within the time so prescribed, the judgment of the county court shall be affirmed, are mandatory, and upon a failure to comply therewith it is imperative on the circuit court to affirm the judgment appealed from. (Post, pp. 297-299.) Code cited and construed: Secs. 4882, 4883 (S.); 3867, 3868 (M. & V.); 3160, 3151 (T. & S. and 1858). Cases cited and approved: Stuart v. Pasmore, 5 Hayw., 30; Duncan v. McGee, 7 Yerg., 103; Gregory v. Burnett, 1 Humph., 60; Turnpike Co. v. Quinby, 8 Humph., 481. 3. SAME. SAME. What is meant by “transcript of the record.” The requirement of the statute that the “transcript of the record” shall be delivered to the circuit court clerk means that a transcript of the whole record upon which the lower court predicated its judgment and is not satisfied by filing a certified .copy of tbe judgment accompanied by an affidavit of counsel attempting to explain tbe failure of appellant to file a full transcript ■ of tbe record. (Post, p. 300.) Code construed: Sec. 4882 (S.); 3867 (M. & Y.); 3160 (T. & S. and 1868). 4. AFFIRMANCE. What is sufficient to entitle appellee to,when full transcript has not been filed. On an appeal from tbe county court to tbe circuit court, a transcript of tbe pleadings filed in the county court, showing the subject of tbe controversy and that tbe court had jurisdiction of the cause and tbe parties, together with a certified copy of tbe judgment, constitutes a sufficient record upon which an affirmance of tbe judgment of tbe county court may be had in tbe circuit court for failure of tbe appellant to file a full transcript of tbe record within tbe time prescribed by tbe statute. (Post, p. 301.) Code construed: Secs. 4882, 4883 (S.); 3867, 3878 (M. & V.); 3140, 3151 (T. & S. and 1858). Case cited: Gregory v. Burnett, 1 Humph., 60. 5. CODE. Provisions of, taken from pre-existing statute given same construction. ■Where a uniform interpretation bad been placed by this court, upon a statute prior to its incorporation into the Code, it must be assumed that it was tbe legislative intent that tbe Code provisions should have tbe same construction as had been given to tbe original act. (Post, pp. 299-300.)
111 Tenn. 302Parkey v. Ramsey (1903)
1. ESTOPPEL. Conduct without knowledge, and not misleading- does not operate as. To justify the principle of estoppel, it is material that the party shall be fully apprised of his rights, and shall by his conduct or gross negligence encourage or influence the purchaser; for, if he is wholly ignorant of his rights, or if the purchaser knows-them, or if his acts or silence or negligence do not mislead or in any manner affect the transaction, there can be no just inference of actual or constructive fraud upon his part. (.Post,, pp. 307-308.) Cases cited and approved: Morris v. Moore & Hancock, 11 Hum., 433-435; Moses v. Sanford, 2 Lea, 659; Askins v. Coe, 12 Lea, '672; Collins v. Williams, 98 Tenn., 525; Crabtree v. Bank, 108: Tenn., 483; Coal Co. v. McDowell, 100 Tenn., 570. 2. SAME. Same. Hone where both parties know the facts, or have same means of knowing. Where there is a mutual mistake as to the effect of a court record to which the persons to be affected were parties, or where the facts are known to both parties, or both have the same means, of ascertaining the truth, there can be no estoppel. (Post, p. 308.) Case cited and approved: Crabtree v. Bank, 108 Tenn., 483 (citing eases). 3. SAME. Same. Same. Knowledge, deceit, or gross negligence is necessary to constitute. To make the doctrine of estoppel applicable, the party having the-estate must knowingly mislead the party purchasing, or be-guilty of deceit or such gross negligence as to amount to evidence of intent to deceive. (Post, p. 308.) Cases cited and'approved: Estis v. Jackson (N. C.), 16 S. E., 7; 32 Am. St. Rep., 784; Holcomb v. Boynton, 151 Ill., 294; Mills v. Graves (Ill.), 87 Am. Dec., 314; Burgess v. Seligman, 107' U» S., 20. 4. SAME. Same. Same. Same. Case in judgment. Where land held by husband and wife as .tenants by the entirety is devised by the husband to the wife for life, and the remainder to their two daughters, and after his death his widow, who was old and illiterate, caused the will to be probated, and ignorantly claimed under it, and afterwards suggested the purchase of the interest of one of the daughters to a contemplating purchaser, she is not estopped to claim the land nor to convey it to the other daughter, upon ascertaining that she was the sole owner of said land by survivorship, a fact of which she had been ignorant, especially when the purchaser was not influenced by . her conduct, and had equal if not better opportunity and chance to know the true title. (Post, pp. 304-309.) Case cited and approved: Crabtree v. Bank, 108 Tenn., 491 (and citations). 5. ELECTION. Doctrine is applicable, when. The doctrine of election, properly applied, is confined to narrow limits. • It rests upon, the equitable ground that a party can not be permitted to claim inconsistent rights respecting the same subject-matter, and, if he claim an interest under an instrument, he must give full effect to the instrument so far as he can, as where certain property is willed to A, and in the same ■ will certain property belonging to A- is given to B. In such case A must elect between the two. (Post, pp. 309-310.) 6. SAME. Doctrine is not applicable, when; case in judgment. The doctrine of election Is' not applicable, where a husband devised to his wife a life estate in land held by them by the entirety, and the remainder' therein to .their two daughters; where the husband did not devise any of his estate to his wife, though he devised some of hers to their daughters. (Post, pp. 304-305, 309-310.)
111 Tenn. 311Kolb v. Mayor of Knoxville (1903)
1. VERDICT. Not supported by the evidence; case in judgment. There is no evidence to support the verdict of the jury in favor of the defendant, and the supreme court will grant a new trial, where the evidence shows beyond any sort of doubt that a certain sewer with perforated top, situated from fifty to seventy-five feet from plaintiff’s house, was used, under license of the defendant city, for the purpose of dumping garbage and all ■ kinds of filth into it, from which foul vapors were emitted, making the life of the plaintiff and his family most uncomfortable, and at times rendering the occupation of his house almost unbearable, for the plaintiff is entitled to some damages in' an action therefor against such city. (Post, pp. 314-315, 317-318.) 3. SAME. Supported by evidence upon a particular point. Noisome vapors emitted from a perforated sewer manhole tend to produce sickness, but will not produce typhoid fever, though a fever is produced by sewer gas which so closely resembles typhoid fever that sometimes they are scarcely distinguishable. It is impossible to say that there is no evidence to support the verdict in favor of the city upon this particular point, the evidence showing the sickness to be typhoid fever. (Post, p. 317.) 3. NUISANCES. Accumulations of garbage and filth, are, when; and not to be permitted. The accumulations of garbage, and all kinds of filth, night soil, etc.,, are in their very nature nuisances, when not properly cared for or disposed of. No one has the right to contaminate the air with foul vapors. (Post, p. 315.) Cases cited and approved: Pierce v. Gibson Co., 107 Tenn., 224; Seymour v. Cummins (Ind.), 21 N. E., 549, 6 L. R. A., 126; Atlanta v. Warnock (Ga.), 18 S. E., 135, 23 L. R. A., 301, 44 Am. St. Rep., 17. 4. SAME. Eor injuries to health or enjoyment of property. It is an actionable nuisance to pollute and unwarrantably impregnate the atmosphere with noxious or offensive effluvia, gases, stenches, or vapors so as to prodhce material discomfort and annoyance, or injury to health, or the enjoyment of property, tPost, pp. 316-317.) Case cited and approved: Ducktown Sulphur, Copper & Iron Co. v. Barnes (Tenn.), 60 S. W., 593. 5. MUNICIPAL CORPORATIONS. Must not create nuisances with its sewer manholes. Sewer manholes with perforated tops can not be maintained by a city, unless they are so distributed and so managed as not to' emit foul vapors in such quantities as to prove a serious discomfort to the people living in the neighborhood. The city must not create a nuisance. {Post, p. 316.) 6. SAME. Same. And must not permit others to create nuisances with its sewer manholes. ■ A city can not escape-liability for, a nuisance created by the dumping of garbage, filth, night soil, etc., in its perforated sewer manholes, because such stuff was not dumped there by the city itself, but by certain persons licensed by the city to do so. The city itself can not maintain such nuisance, and it can not authorize others to do so. (Post, p. 316.) 7. SAME. Not'liable for condition of wagons of licensed haulers of refuse; charge of court. Where a city authorizes certain persons not in its employment, but in the employment of various people about the city, to haul and dump refuse into a certain manhole in a sewer, on condition that wagons of a certain description, with closed tops, or barrels with screw tops should be used, the city is not liable for the condition in which the wagons are kept. There is no error in the charge of the court so instructing the jury. {Post, pp. 319-320.) 8. CHARGE OF COURT. Excluding injuries after suit was commenced; summons and not bond fixes date, when. There is no error in the charge of the court excluding from the consideration of the jury any injury that occurred after the month of October where the summons is not in the record on appeal, and the plaintiff testifies that his suit was commenced in October, although the prosecution bond is dated November the seventh. {Post, p. 318.) 9. EVIDENCE. Of what -physicians said caused sickness is inadmissible, because mere hearsay. In an action for a nuisance maintained near plaintiff’s premises, his testimony of what the attending physician said caused his wife’s illness is properly rejected, because this is a matter of mere hearsay. {Post, p. 318.) 10. SAME. As to condition of sewers or flushing tanks when complaints were made is admissible. In an action against a city for maintaining, permitting, or suffering a nuisance by the improper use of its sewers, it is error to sustain an objection to a question put to the health officer of the city as to whether the sewers or the flushing tanks were out of repair about the time plaintiff made complaint to him. {Post, p. 319.) 11. SAME. Complaints of persons other than plaintiff are not admissible, when. In such case, there is no error in sustaining an objection to a. question as to whether other people who resided in the neighborhood had complained that the sewers were not properly flushed. {Post, p. 319.)
111 Tenn. 321Watauga Water Co. v. Scott (1903)
1. EMINENT DOMAIN LAWS. Compensation., and the mode of ascertaining it must be provided for. Eminent domain laws for the taking of property for public use must provide for just compensation, and the mode and manner i of ascertaining and enforcing the same, or such laws will he unconstitutional and void. (Post, pp. 326-327, 328.) Constitution cited and construed: Art. 1, sec. 21. Cases cited and approved: Railroad v. Love, 3 Head, 63; Anderson v. Turbeville, 6 Cold., 161; White v. Railroad, 7 Heis., 518; Simms v. Railroad, 12 Heis., 623; Parker v. Railroad, 13 Lea, 671; Tuttle v. Knox Co., 89 Tenn., 157; Saunders v. Railroad, 101 Tenn., 206. 3. SAME. Water companies cannot condemn water rights. Water companies are not authorized by our eminent domain statutes to condemn water rights, nor the supply of water frgm springs on their own lands which flows over the lands of others. (Post, pp. 323-327.) Code cited and construed: Sees. 1844-1867, 2499-2506 (S.); secs. 1549-1572 (M. & V.); secs. 1325-1348 (T. & S. and 1858). Acts cited and construed: 1901, ch. 63. 3. SAME. Statute for condemnation of water rights must pro-: vide for compensation. A- statute authorizing the condemnation of water rights, but not providing for compensation, nor prescribing the mode and manner of establishing the same, when such rights are sought to be taken, is unconstitutional. (Post, p. 328.) Acts cited and construed: 1901, ch. 63. 4. SAME. Same. Failure not cured by our general statutes. A statute authorizing the condemnation of water rights, and not providing for compensation, can not be read in connection with our general statutes for the condemnation of property for public use. (Post, pp. 327-328.) Code cited and construed: Secs. 1844-1867, 2499-2506 (S.); secs. 15494572 (M. & V.); secs. 1325-1348 (T. & S. and 1858). Acts cited and construed: 1903, ch. 63.
111 Tenn. 329Knoxville Traction Co. v. Mullins (1903)
FROM KNOX. Appeal from the Circuit Court of Knox County.—Joseph W. Sneed, Judge.
111 Tenn. 336Miller v. Fox (1903)
1. RELEASE OR DISCHARGE. Of one joint obligor releases all, unless otherwise stipulated. A release or discharge in writing of one of several joint obligors releases all of them, unless it be stipulated otherwise therein. (Post, p. 341.). Code cited and construed: Secs. 5570 and 5571 (S.); secs. 4538 4539 (M. & V.); sees. 3789 and 3790 (T. & S. and 1858). .Cases cited and approved: Evans v. Pigg, 3 Cold., 395; Williams v. Hitchings, 10 Lea,v326. 3. SAME. In writing without new consideration is effective. A release or discharge of a debt in writing, without any new consideration passing, is valid, and will operate according to the intention of the parties. (Post, p. 341.) Code cited and construed: Secs. 5570 and 5571 (S.); secs. 4538 and 4539 (M. & V.); sees. 3789 and 3790 (T. & S. and 1858). Case cited and approved: Love v. Allison, 2 Tenn. Chy., 114. •3. SAME. Without consideration, and not in writing is void. , A release or discharge of a debt, without consideration, and not in a signed writing, is void. (Post, p. 342.) Code cited and construed: Secs. 5570 and 5571 (S.); secs. 4538 and 4539 (M. & Y.); secs. 3789 and 3790 (T. & S. and 1858). Cases cited and approved: Smith v. Harris, 3 Sneed, 553; Simpson v. Moore, 6 Bax., 371. 4. SAME. Verbal release upon consideration is binding; and does not release co-obligor, when. A verbal release is binding,- if supported by a consideration, and a co-obligor will not be relieved thereby, if he consented to the release, and agreed to remain bound. (Post, p. 342.) Case cited and approved: Richardson v. McLemore, 5 Bax., 586. 5. SAME. Same. Verbal release of one joint obligor for prepayment of his portion is binding. The release of one of several of the joint obligors by running a line through his name, in consideration of his prepayment of his portion of the debt before maturity, is effective to release him. (Post, pp. 342-345.) Case cited and approved: Bank v. Shook, 100 Tenn., 436, 444. 6. SAME. Oral release without new consideration is ineffective; case in judgment. The oral release of some of the joint obligors upon the payment of a portion of the debt owed after its maturity, without other consideration, is not binding, and is ineffective, and all the obligors remain bound for the balance of the debt.
111 Tenn. 346Trentham v. Moore (1903)
1. PRIVILEGES. Word "shave” in reference to buying securities defined. The word “shave” in the revenue statute of 1901 (Acts 1901, ch. 128, sec. 4, p. 219) means simply the buying of the evidences of indebtedness at a discount, without reference to the question whether any of such securities were created for the purpose of . . being discounted. (Post, p. 351.) Acts cited and construed: 1901, ch. 128, sec. 4, p. 219. Case cited and distinguished: Wetmore v. Brien, 3 Head, 723-727. .2. SAME. Eor purposes of taxation defined., A privilege is whatever business, pursuit, or vocation affecting the public, the legislature may declare to' be a privilege and tax as such. (Post, pp. 351-353.) ■ Constitution cited and construed: Art. 2, sec. 28. ■Cases cited and approved: Mabry v. Tarver, 1 Hum.,-94, 98; Cate v. State, 3 Sneed, 121; French v. Baker, 4. Sneed, 195; Robertson v. Heneger, 5 Sneed, 257; Mayor v. Guest, 3 Head,. 414; State v. Schlier, 3 Heis., 283; Jenkins v. Ewin, 8 Heis., 475; Wiltse v. State, 8 Heis., 544, 547; Clarke v. Montague, 3 Lea, 274-277; Dun v. Cullen, 13 Lea, 202, 204; Phillips v. Lewis, 3 Shannon’s Cases, 230; Pullman v. Gaines, 3 Tenn. Chy., 591; Kurth v. State, 86 Tenn., 134, 136; Turnpike Cases., 92 Tenn., 369, 372; Railroad v. Harris, 99 Tenn., 702, 703. •3. SAME. Same. Single act is not, when; and not to be taxed. The legislature can not tax a single act, per se, as a privilege in as much as such act, in the nature of things, can not, in and of itself, constitute a business, vocation; or pursuit. There is no privilege to be taxed, unless a business is made of it. (Post, p. 353.) Acts cited and construed: 1901, ch. 128, secs. 14 and 16. 4. SAME. Same. Same. Words in statute taxing acts not made a business of are nugatory. The words “whether they make a business of it, or. not,” in a revenue statute providing that any person exercising any of the enumerated privileges must pay the prescribed tax for the exercise thereof, whether they make a business of it, or not, are nugatory. (Post, p. 353.) Acts cited and construel: 1901,. ch. 128, secs. 14 and 16. •5. SAME. Single act as evidence-of the exercise of a privilege. A single act characteristic of any of the privileges created by the legislature raises a prima facie presumption of an exercise of the privilege, and in some cases a single act may be conclusive evidence of the exercise of a privilege, as where a previous . preparation is required in order to exercise, the privilege, and such preparation is made, and thereafter single act performed. (Post, pp. 353-355.) 6. SAME. Buying a single note is not taxable, when; case in judgment. Where a person not holding himself out to the public, directly or indirectly, as a dealer in securities, casually buys a single note, without seeking the transaction, he is not subject to the privilege tax for shaving notes.
111 Tenn. 356Robertson v. Cayard (1903)
1. VERDICT.. For plaintiff for personal injuries from defective engine and equipment, supported by the evidence. Where it appears that a locomotive engineer receives personal injuries resulting in his death, on account of a defective engine, and insufficient equipment of the cars with brakes and brakemen, with information of defects in engine, but with assurances from the employer that the train could be controlled by such equipment of the cars, and that it was safe to opérate it, a verdict in favor of the plaintiff employee against the defendant employer is supported by the evidence. {Post, pp. 357-362.) 2. CONTRIBUTORY NEGLIGENCE. Question for jury, and is settled by their verdict, when. It is well settled that the question of contributory negligence is a matter for the settlement of the jury, and their verdict in this case in favor of the plaintiff for personal injuries settles that issue in his favor. {Post, p. 362.) 3. CHAMPERTY. At common law did not affect the original suit. At common law, a champertous contract between a client and his solicitor did not destroy the right of the client to prosecute the original cause of action. It only vitiated such illegal contract. (Post, pp. 362-367.) Gases cited and overruled on this point: Webb v. Armstrong, 5 Hum., 381. ' Case cited: Douglass v. Wood, 1 Swan, 394. Cases cited and approved: Byrne v. Railroad (C, C.), 55 Fed., 44; Burnes v. Scott, 117 TJ. S., 582; Thallhimer v. Brinckerhoff, 3 Cow., 623; Boone v. Chiles, 10 Pet., 177; Whitney v. Kirtland, 27 N. J., Eq.,’333; Robinson v. Beall, 26 Ga., 17; Allison v. Railroad, 42 Iowa, 274; Hilton v. Woods, L. R. 4 Eq., 432; Elborough v. Heirs, Li. R. 10 Eq., 367; Evans v. Protbero, 1 De G-., M. & G., 572. 4. SAME. Whether repeal of champerty statutes revived common law reserved. The question is reserved whether the statute (Acts 1899, ch. 173)',. repealing certain provisions of our champerty statutes (Shannon’s Code, secs. 3176-3184) operated to revive the common law as it existed prior to the enactment of the repealed statutes, but: without deciding this question, it is held to be clear that the-repeal did not leave in force a penalty which existed only by virtue of the repealed statute. (Post, pp. 362-363, 367.) Cases cited: Heaton v. Dennis, 103 Tenn., 162; State v. Slaughter, 70 Mo., 484. Acts cited: 1821, ch. 66; 1899, ch. 173.
111 Tenn. 368Legere v. State (1903)
1. EVIDENCE. Consistent statements are inadmissible where contradictory statements are proved, when. . It is a general rule that where evidence of contradictory state-, ments is offered to impeach the credit of a witness, evidence of statements made by him on former occasions consistent with his evidence are inadmissible. (Post, p. 373.) .2, SAME. Consistent statements made before a motive are admissible, when. But where it is charged that the evidence of the witness is a recent fabrication, and is the result of some relation to the party or cause, or of some motive of personal interest, his evidence may be supported by showing that he had made a similar statement before that relation or motive existed. (Post, p. 373.) •3. SAME. What confirmatory statements are admissible,'when. Where a witness is impeached by evidence of contradictory statements, his confirmatory statements made at a time when no motive existed to misrepresent the facts are admissible in evidence for whatever support they may give the impeached witness. (Post, pp. 373-374.) Cases cited and approved: Dosset v. Miller, 3 Sneed, 76; Queener v. Morrow, 1 Cold., 11; Bank v. Robinson, 1 Bax., 479; Hayes v. Cheatham, 6 Lea, 2; Glass v. Bennett, 89 Tenn., 478; Graham v. McReynolds, 90 Tenn., 674. 4. SAME. Confirmatory statements made after contradictory statements are inadmissible. Confirmatory and consistent statements made by the witness after the contradictory statements were made are inadmissible to support his so impeached testimony. (Post, pp. 374-376.) Cases cited and approved: Queener v. Morrow, 1 Cold., 11; Spur-lock v. Brown, 91 Tenn., 240; Ellicott v. Pearl, 10 Pet., 416; Conrad v. Griffey, 11 How., 481. 5. ALIBI. REASONABLE DOUBT. Charge that defendant should be acquitted, when. Where the evidence in a criminal case fairly raises the defense of an alibi, the jury should he instructed that if this evidence, in connection with the other evidence in the case, raises a reasonable doubt as to whether the accused was at the place of the homicide, or at a -different place, the defendant should be acquitted. {.Post, pp. 376-377.) Oases cited and approved: Davis v. State, 5 Bax., 617; Wiley v. State, 5 Bax., 662; Jefferson v. State, 3 Shannon’s Tenn. Cases, 330. <3. NEW TRIAL. Grant of appeal to be set aside to act on motion for. Where a motion for a new trial in a criminal prosecution is made, in proper time, upon the ground of misconduct of the jury in separating, and of the officer in charge thereof in permitting the separation, and a proper case is presented for the exercise of the trial judge's discretion, but he refuses to exercise it, upon the ground that the motion came too late, and at a time when his jurisdiction over the case had been exhausted, because judgment had been entered, and sentence passed, and an appeal granted, he is in error. In such case, the whole matter is in the breast of the court, and the proper practice is to set aside the order granting the appeal, and then exercise the discretion. (Post, pp. 378-379.) 7. SAME. Same. Time to prepare affidavits; case in judgment. Application for time, before the adjournment of court, in which to prepare affidavits laying grounds for the motion as stated in the last foregoing headnote, where there is no appearance of bad faith on the part of counsel in making the motion, and it being stated that knowledge of the fact of separation had just come to them, it is a proper case for the court to exercise its right to set aside the grant of appeal, and to give an opportunity to defendant to submit affidavits.
111 Tenn. 380Ricketts v. State (1903)
1. CONTEMPT OE COURT. Subornation of perjury is, when. Where a defendant in a criminal prosecution, by persuasion and threats of personal violence before the trial, induces a witness to testify falsely in his favor as to a material fact in issue, he is guilty of contempt of court, and of unlawful abuse of, and interference with, and the process and proceedings of the V court. (Post, pp. 381-382.) Code cited and construed: Sec. 6918, subsec. 4 (S.); sec. 4881, subsec. 4 (M. & V.); sec. 4106, subsec. 4 (T. & S. and 1858). Case cited and approved: McCarthy v. State, 89 Tenn., 543. 2. SAME. Not merged into subornation of perjury; both are punishable. Contempt of court committed by a defendant in a criminal prosecution by inducing a witness for the State to testify falsely for him as to a material fact in issue is not merged into the subornation of perjury. The offenses are entirely distinct and independent, and punishment may be inflicted for both. (Post, pp. 382-383.) Cases cited and approved: United States v. Debs (C. C.), 64 Fed., 724; Yates v. Lansing, 9 Johns., 417.
111 Tenn. 384State v. Thomas (1903)
1. APPEAL. AFFIRMANCE. Practice of presenting the record for affirmance does not apply where appeal was abandoned in lower court, The practice of presenting the record for an affirmance does not apply where an appeal was granted on condition that appellant execute an appeal bond, or otherwise comply with the law, and time is allowed in which to file a bill of exceptions, but no attempt was made either to execute bond or take the oath in lieu and the record fails to show that a bill of exceptions was filed. In such case the appeal must be treated as haying - been abandoned, leaving the judgment of the lower court in full force, and rendering it unnecessary to bring the record to this court for an affirmance of said judgment. „ Cases cited, approved and distinguished: Furber v. Carter, 2 Sneed, 1; Pyett v. Hatfield, 15 Lea, 473; Spalding v. Kincaid, 1 Tenn. Cas., 31; Morgan v. Hanna’s Lessees, 1 Tenn. Cas., 28.
111 Tenn. 388McKelvey v. McKelvey (1903)
1. PARENT AND CHILD. Minor child has no civil remedy against father for personal injuries. By the common law the right of a father to control his infant child involved the subordinate right to restrain and inflict moderate chastisement upon such child, and in case of abuse of parental power the redress of the child was to be found in an appeal to the criminal law, or the remedy afforded by the writ of habeas corpus, but, upon well-settled principles controlling the relation of father and child, and in furtherance of a sound public policy, the child had no civil remedy for damages on account of personal injuries inflicted by the parent, and this rule of the common law has never been questioned in any of the courts of' this country. Case cited and approved: Hewlett v. George, Ex’r, 68 Miss., 703. 2. SAME. Same. No remedy by civil action against father and stepmother for injuries inflicted by the latter. The fact that the injuries complained of were inflicted by the stepmother can not alter the rule stated in the first headnote, because, if the action were maintainable, and the injuries were inflicted in the presence of the father, he alone would be responsible, nothing appearing to repel the presumption of coercion; if out of his presence, the father and stepmother would be jointly liable for the wrong; but there being no right of action against him alone, none can be maintained against both of them, jointly.
111 Tenn. 394Jackson v. Crutchfield (1903)
FROM HAMILTON. Appeal from the Chancery Court of Hamilton County.—T. M. McConnell, Chancellor.
111 Tenn. 405Ruohs v. Traders Fire Insurance (1903)
1. INSURANCE. Reinsurance defined. Reinsurance is an insurance by the first insurer of the whole or some part of his interest in the risk created by his contract of insurance; or it is a contract that one insurer makes with another to protect the first from a risk he has already assumed. {Post, p. 419.) Case cited and approved: Insurance Co. v. Insurance Co., 64 N. J. Law, 343. 2. SAME. Reinsurer is not liable to original insured, as a general rule. A contract of reinsurance is peculiar in its character, and differs from the ordinary policy of insurance; and as a general rule, it creates no privity between the reinsurer and the party originally insured, but it is simply an agreement to indemnify the insurer, partially or altogether against a risk assumed by the latter in a policy issued to a third party. (Post, pp. —.) Case cited and approved: Insurance Co. v. Insurance Co., 102 Tenn., 267. S. SAME. But reinsurer is liable to original insured, if that intention appears. But it is well established, as an exception to this general rule, that a direct liability may be incurred by the reinsurer to the original insured, if the intention to create it sufficiently appears from the contract of reinsurance. 4. SAME. Same. Reinsurer assuming original policies becomes liable to holders thereof, when. . Where the reinsurer contracts with the insured to assume the policies and to pay the holders thereof all such sums as the , reinsured may become liable to pay, the original policy holders suffering losses may sue the reinsurer, and recover from him such losses. Cases cited and approved: Johannes v. ,Insurance Co., 66 Wis., 50; Barnes v. Insurance Co., 56 Minn., 38; Whitney v. Insurance Co., 127 Cal., 464. ■.. 1 V 5. SAMÉ. Same. Same. Reinsurer contracting to pay losses for original insurer’s property and business is liable to original policy holders. A reinsurer contracting with the original insurer, in consideration of the entire business, property, assets, and good will of the . ,i .original, insurer, to pay, the- losses, under, the outstanding, policies, becomes liable to the original insured policy holders. (Post, pp. —.) Cases cited and approved: Whitney v. Insurance Co., 127 Cal., 464; Insurance Co. v. Welch, 26 Kan., 641; Barnes v. Insurance Co.," 56 Minn., 38; Glen v. Insurance Co., 56 N. Y. 379; Fisher v. Insurance Co., 69 N. Y., 161; Shoaf v. Insurance Co., 127 N. C„ 308;" Insurance Co. v. Insurance Co., I N. D.," 151; 1 Johannes v. Insurance Co., 66 Wis., 50; Hunt v. Insurance Co. (N.'H.), 38 Atl:,1 145, 38 11. "R, A;; 514;'73 Am1. St. Rep., 602; .,,, Chalaron v. Insurance Co, (La.), 21 South,. 267, 36 L. R, A., 742; Gifford v. Corrigan, 117 N. Y., 257. 6. CONTRACTS, Beneficiary may sue,on promise of third person assuming the obligor’s obligation. -The doctrine is firmly established in,.this. State that the, benefi-- , r ciary, though not. a party to -.the. contract, may maintain an ■ ., action directly in his own. name .against the. promisor, where such promise between the promisor and. the promisee is-.made upon sufficient consideration for the benefit of the third party. '(Post, pp. —;) '' ■ Cases cited and approved: McCarty v.jBlevins, 5 Ter., 196; Mills y. Mills, 3 Head, 711; Moore v. Stovall, 2, Lea,,, 543; Thompson Y. Thompson, 3 Lea, 126; Bedford Co. y. Railroad, 14 Lea, 525; Railroad V. Houston, 85 Tenn., 224; O’Conner v. O’Conner, 88 Tenin, 76. . - ■, ’ •' 1 1 ■■ T' ■ '
111 Tenn. 430Swain v. Tennessee Copper Co. (1903)
1. NUISANCE. Resulting from separate acts of independent, persons is no cause for joint action. Where two distinct corporations in proximity to each other operate their respective and separate plants for reducing and converting copper ores' into metal ingots or commercial copper, from each of which are emitted immense volumes of' noxious, foul, and poisonous smoke and gases, which after-wards indistinguishably mingle, commingle, and intermingle into clouds of noxious, deadly, and poisonous vapors, creating-an actionable nuisance, but there is no common ownership or operation of the plants, no community of interest, nor common design, purpose, concert, or joint action, a suit by an adjoining or adjacent property owner against them jointly for damages caused by their wrongful acts so separately committed is not maintainable. Cases cited and approved: Ducktown Sulphur, Copper & Iron Co. v. Barnes, 60 S. W., 600; Dyer v. Hutchins, 87 Tenn., 198; Gay v. State, 90 Tenn., 645; Chipman v. Palmer, 77 N. Y., 52; Little Schuylkill, etc., Co. v. Richards, 57 Pa., 142; Lull v. Fox,. & Wis. Imp. Co., 19 Wis., 100; Miller v. Highland Ditch Co., 87 Cal., 430; Blaidsell v. Stephens, 14 Nev., 17; Valparaiso v. Mof-fltt, 12 Ind. App., 250; Gallagher v. Kemmerer, 144 Pa., 509; Sloggy v. Dilworth, 38 Minn., 179; People'v. Oakland Water Co., 118 Cal., 234; Martinowsky v. Hannibal, 35 Mo. App.,. 70; Adams v. Hall, 2 Vt., 9; Van Steenburgh v. Gray and Tobias, 17 Wend., 562; Russell v. Tomlinson & Hawkins* 2 Conn., 206; Loughran v. Des Moines, 72 Iowa, 382; Sellick v. Hall, 47 Conn., 260; Evans v. Railroad, 96 N. C., 45. Cases cited and distinguished: Railroad v. Shelton, 89 Tenn., 424; Snyder v. Witt, 99 Tenn., 619; Railroad v. Jones, 100' Tenn., 511; Beopple v. Railroad, 104 Tenn., 420. 2. TORT. Several is not made joint toy blending of consequences. A tort which is several when committed cann'ot toe made joint toy matters accruing subsequently over which the wrongdoer has no control; the mere union and blending of consequences, will not have the effect to make torts originally several joint. {Post, pp. 440-441.) Cases cited and approved: Dyer v. Hutchins, 87 Tenn., 198;. Gray v. State, 90 Tenn., 645; Chipman v. Palmer, 77 N. Y., 52; Little Schuylkill, etc., Co. v. Richards, 57 Pa., 142; Miller v.. Highland Ditch Co., 87 Cal., 430; Gallagher v. Kemmerer, 144 Pa., 509; Lull v. Pox & Wis. Imp. Co., 19 Wis., 100. 3. SAME. Same. Difficulty of separating damages does not. alter rule. The difficulty of ascertaining the extent of the injury done toy each of the several wrongdoers furnishes no reason for allowing a joint action against them all, or making each severally and jointly liable for all the damages done toy all the parties, acting independently of each other. {Post, pp. 442-449.) ■ Cases cited and approved: Ducktown Copper & Iron Co. v.. Barnes, 60 S. W., 600; Dyer v. Hutchins, 87 Tenn., 198; Gay v... State, 90 Tenn., 645; Chipman v. Palmer, 77 N. Y., 52; Little Schuylkill, etc., Co. v. Richards, 57 Pa., 142; Gallagher v. Kem-merer, 144 Pa., 509. 4. SAME. Joint and several liability for by joint or several action, when. All the wrongdoers are jointly and severally liable for all the damages done the injured party, which may be recovered in joint or several actions, where they committed the tort jointly, by force directly applied, or in .the pursuit of a common purpose or design, or by concert, or in the advancement of a common interest, or as the result and effect of joint and concurrent negligence, though all do not equally contribute to the injury done, or torts may be joint on account of the relationship of the parties, as' husband and wife, master and servant, partners and such like- (Post, pp. 437-439.) Cases cited and approved: Railroad v. Shelton, 89 Tenn., 425; Snyder v. Witt, 99 • Tenn., 619; Railroad v. Jones, 100 Tenn., 511; Beopple v. Railroad, 104 Tenn., 420. •5. DAMAGES. Eor injuries resulting from a lawful business done with best appliances. An action lies for damages to property, or for interference with its enjoyment, caused by a lawful business, useful to the public, carried on at a suitable locality, with the best and most approved appliances and methods. (Post, pp. 436-437.) Case cited and approved:' Ducktown Sulphur & Iron Co. v. Barnes, 60 S. W., 600. *6. SAME. Consequential damages from nuisance must be specially pleaded and proved, when. Damages resulting from a nuisance caused by the conduct of a number of persons acting independently of each.other are not the direct and necessary consequences of their wrongful conduct, but merely the natural results, known as “consequential damages” for which no action will lie, unless they are special, and are specially averred and proved. (Post, p. 442.) Case cited and approved: Lowery v. Petree, 8 Lea, 678.
111 Tenn. 457East Tennessee & Western North Carolina Railroad v. Lindamood (1903)
1. NEGLIGENCE. Must be proved as alleged. It is well settled that the evidence of the plaintiff in an action for personal injuries must conform to the specific acts of negligence alleged in the declaration. (Post, pp. 462, 464.) Cases cited and approved: Coal Co. v. Daniel, 100 Tenn., 72; Sack, v. Dolese, 137 Ill., 129; Soderman v. Kemp, 145 N. Y., 427. 2. SAME. Not presumed against employer from injury to employee, when. As between employer and employee, there is no presumption of negligence on the part of the employer in furnishing appliances to the employee, arising from the injury itself. It is presumed that the employer did his duty, and the burden rests on the employee as plaintiff to show negligence on the part of the employer. (Post, pp. 462-467, 472-474.) Cases Cited and approved: Polk v. Kirtland, 9 Heis., 292; Railroad v. Gurley, 12 Lea, 46; Railroad v. Duffield, 12 Lea, 63; Railroad v. Stewart, 13 Lea, 432; Nitroglycerin Case, 15 Wall.,, 524; Sack v. Dolese, 137 Ill., 129; Morrison v. Phillips, 44 Wis., 405; Ballou v. Railroad, 54 Wis., 257; Ladd v. Railroad, llO' Mass., 412; Duffy v. Upton, 113 Mass., 544; Le Barron v. Perry Co., 11 Allen, 312; De Graffe v. Railroad, 76 N. Y., 125; Soder-man v. Kemp, 145 N. Y., 427; Hughes v. Railroad, 91 Ky., 526; Dingley v. Star Knitting Co., 134 N. Y., 252; Railroad v. Binion, 98 Ala., 570. 3. SAME. Same. Conjectural evidence is incompetent to overcome these presumptions; Mere conjectural evidence, a mere inference drawn itself from a presumption, will not be sufficient to meet and overcome these presumptions stated in the second headnote, for inferences can never be drawn from mere presumptions, though they may be drawn from well established facts, and such evidence, though by an expert witness, is incompetent. (Post, pp. 464, 472-474.) Cases cited and approved: United States v. Ross, 92 U. S., 281; Cosgrove v. Pitman, 103 Cal.,'268-278; Douglass v. Mitchell, 35 Pa., 443; Bank v. Stewart, 114 U. S., 231. 4. SAME. Same. Refusal to charge special requests is reversible error, when; Case in judgment. A brakeman suing for personal injuries resulting from a fall alleged that his fall was caused by the negligence of his employer in having in use upon the car a brake which was out of repair and dangerous, in that the brake chain was too long, and the deadwood in the car projected against, or so close to the brake rod and eyebolt of the brake rod as to prevent it from turning freely. His evidence showed that when' he attempted to use the brake, it gave “a sudden jerk or lurch,” which loosened his hold on the wheel and caused him to fall, but there was no evidence as to the nature of the defect causing the jerk or lurch. The defendant railroad company. requested instructions that, if the jury were not able to determine which of the two defects alleged caused the injury, plaintiff could not' recover; that it was presumed that the master had discharged his duty by providing suitable appliances and keeping them in proper condition, and that the burden was on the plaintiff to show the contrary; and that it was presumed that, if the car was in good repair at a date prior to the accident, it continued in like good condition until the accident occurred, and that the burden was on the plaintiff to show the contrary. Held, that the refusal to give these requests in charge to the jury was reversible error, though the circuit judge gave some general rules, correct in themselves, but embodied in a charge which embraced much other matter. (Post, m- 460, 474-475.)
111 Tenn. 476Chattanooga Machinery Co. v. Hargraves (1903)
1. VERDICT. Approved by circuit judge and sustained by any evidence, not reversed on facts. After a verdict has met the approval of the circuit judge, the supreme court will not reverse the case upon the facts, if there is any evidence to sustain the verdict, because the supreme court can see the case on the facts only as it appears through the imperfect medium of the bill of exceptions. (Post, p. 484.) Case cited and approved: Nailing v. Nailing, 2 Sneed, 631, 632'. 3. SAME. Same. Strongest legitimate view taken of evidence-in favor of verdict. The supreme court takes as true the strongest legitimate view of the' evidence in favor of the verdict, and discards all countervailing evidence, because the jury, whose exclusive province it is to pass upon the credibility of witnesses, has by its verdict resolved all conflicts in its favor. (Post, p. 484.). Case cited and approved: Railroad v. Abernathy, 106 Tenn., 723* 724. 3. SAME. Same. Same. Complaining party must concede as true strongest legitimate view of evidence against him. In order to impeach a verdict successfully on the ground that there was no evidence to sustain it, the complaining party must take as true the strongest legitimate view of the evidence against him, and show that it affords no support for the finding of the jury. (Post, pp. 484-485.) Case cited and approved: Citizens’ Rapid Transit Co. v. Seigrist, 96 Tenn., 124, 125. 4. CUSTOM OR USAGE. As to sounding test of emery wheels; negligence not to use; liability for death from failure to use. Where it is shown that the sounding test of emery wheels for ascertaining defects therein is in common or very general use throughout the country by well regulated and well managed machine shops, the failure to so test Such a wheel is such negligence as renders the owner and operator of such shop liable in damages for the death of his employee caused by the bursting of such wheel on account of a crack in it discoverable by such test, but not by the eye. (Post, pp. 485-497.) ■5. SAME. As to tests is proved and inferred, bow. Where it is shown that a large number of persons in different sections of the country are accustomed to apply - a test, it is admissible for the jury, by a process of induction, to infer that the practice is in common or general use. (Post, p. 495.) *8. SAME. Same. Established by knowledge or facts proved by witnesses. It is competent to establish the generality of a custom by the evidence of witnesses who testify from knowledge what the custom is, or by proving facts from which it may be inferred that the custom is in very general or common use throughout the country. (Post, pp. 495-496.) 7. SAME. Degree of diligence used by others. It is admissible to prove what is the degree of diligence used by business men of the same class and under the same circumstances as the party charged with negligence. (Post, p. 482.) Cases cited and approved: Brown v. Waterman, 10 Cush., 117; Lichtenhein v. Railroad, 11 Cush., 70; Cass v. Railroad, 14 Allen, 448; Lane v. Railroad, 112 Mass., 455; Hoyt v. Jeffers, 30 Mich., 182. 8. SAME. Same. The test is general use. The unbending test of negligence in methods, machinery, and appliances is the ordinary usage of the business, for the standard of due care is the conduct of the average prudent man.(Post, pp. 482-483.) Case cited and approved: ^Cilhride v. Carbon Dioxide & Mag- • nesia Co., 201 Pa., 552.
111 Tenn. 498Borches & Co. v. Arbuckle Bros. (1903)
1. RES ADJUDICATA. Parol evidence is admissible to show issue tried and determined, when. Parol evidence is admissible to show the fact of issue tried and determined by the judgment rendered by a justice of the peace, and in a court of record, where the judgment is general and uncertain, or silent on the point, or does not actually adjudge a question appearing prima facie to be adjudged or settled. (Post, pp. 509-511.) Cases cited and approved: Estill v. Taul, 2 Yer., 467, 469-471; Warwick v. Underwood, 3 Head, 238; Williams v. Hollingsworth, 5 Lea, 358; Fowlkes v. State, 14 Lea, 14; State v. Bank, 9l> Tenn., 591. 2. SAME. Same. Burden on party pleading to show question not appearing in judgment or only prima facie appearing. Where the record gives no intimation whether a particular matter was determined or not, it is incumbent upon the party-alleging that the matter was settled by former adjudication to support his allegation by evidence aliunde, and where it appears prima facie that the question was adjudicated, but the record does not show that it was actually done, parol evidence is always admissible to show the facts. (Post, p. 510.) Case cited and approved: Fowlkes v. State, 14 Lea, 14. 3. SAME. Opinion of court examined to determine what was decided where judgment is silent. Where the judgment is silent upon the point, the opinion of the court may be looked to, in connection with the decree or judgment, for the purpose of determining what was really decided by the court, and intended to be adjudged. (Post, pp, 510-511.) Case cited and approved: State v. Bank, 96 Tenn., 591. 4. SAME. Peremptory charge and direction of federal circuit judge not disregarded by jury is res adjudicata on the question. Where the presiding judge in the federal circuit court, exercising his right according to the practice obtaining in federal tribunals, peremptorily charges the jury on the facts, and directs a particular verdict on a certain issue, the effect of such direction, unless the jury shall disregard it and find in opposition thereto, is a decision on the particular point in favor of the party for whom the direction is given, and operates as res adjudicata on that point. (Post, pp. 501, 505, 509, 511, 513.) 5. SAME. Mo estoppel to rely upon, because of pleadings and evidence, and theories of fact and law. A party is not' estopped by his pleadings and evidence, and theories of fact and law, which are composed and settled by the judgment, and when so settled the adjudication is binding upon both parties, and is available, in its full force, to each, regardless of the constructions which they respectively championed while the battle was in progress. (Post, p. 512.) 6. TENDER. Of property in suit for its price means what. Where the plaintiff in an action for the price of property sold avers in his declaration that part of the property was delivered, and “tenders” the balance, the “tender” simply means that plaintiff expresses in his declaration his readiness and willingness to perform his part of the contract. (Post, pp. 501, 512-513.) 7. SAME. Same. Mo pleadings by defendant that will enable the court to direct delivery. Where, in an action for the price of property sold, the plaintiff “tenders” the property in his declaration, there are no pleadings that can be filed by the defendant in the case that would enable the court to direct a delivery of the undelivered property whose delivery was so tendered. (Post, p. 512.) 8.SAME. Same. Same. Failure to so plead does not estop him to sue for price paid for undelivered property, when. Defendant’s failure to file pleadings to obtain possession of property tendered by plaintiff in his declaration for its price does not estop him, after verdict and judgment in his favor lupon his plea of payment, to sue for and recover the price of the undelivered property so paid by him, for no such pleadings can be filed. (.Post, pp. 505, 512-513.) 9. CHANCERY PLEADING. Bill to set aside a judgment for fraud must allege facts and not mere conclusions. A bill to set aside a judgment because “fraud, surprise, mistake, and accident;” with general allegations of fraud, and without any sufficient allegations of facts showing the fraud will be dismissed upon demurrer. (Post, pp. 504-505.) 10. ESTOPPEL. Burden on party invoking it. As *a general rule, the burden of establishing an estoppel is. by law cast upon him who invokes it. (Post, p. 510.) Case cited and approved. Fowlkes v. State, 14 Lea, 14.
111 Tenn. 514Arbuckle Bros. v. McCutcheon (1903)
1. TAXATION. Back assessment by county court clerk must set out the amount of taxes due. Where under the statute providing for the back or reassessment of property, the county court clerk is empowered both to back or reassess and to collect the taxes of merchants, in. order that such assessment may be valid it must contain a statement of the amount of taxes due. (Post, pp. 516-519.) Statute cited and construed: Acts of 1901, ch. 174, sec. 31. Case cited and approved: Wilson v. Benton, 11 Lea, 51-55. 2. CONSTITUTIONAL LAW. The assessment act of 1901 embraces but one subject. The assessment act of 1901, entitled “An act to provide more just and equitable laws for the assessment of revenue for State, county and municipal purposes,” etc., is not unconstitutional as containing a subject not covered by the title by reason of the fact that it provides for the appointment of revenue agents and prescribes their duties. This provision falls fairly within the title of the act, the general subject or purpose of which is the providing of revenue. State, county and municipal, and the revenue agents are mere instrumentalities to. effectuate the general purposes of the act. (Post, pp. 519-520.)
111 Tenn. 521Knoxville Traction Co. v. McMillan (1903)
1. CONSTITUTIONAL LAW. PRIVILEGE TAXES. Provision •in statute making lessor liable for privilege tax imposed on lessee is unconstitutional; That provision in the statute (Acts 1903; eh. 257, pp. 600 and 601) making street car companies and railroad companies liable for the privilege tax imposed upon advertising companies conducting the business of advertising in the ears and stations of such companies under lease or purchase of such advertising privileges is unconstitutional and void, as a deprivation of property without a hearing, judgment, the law of the land, or due process of law. Constitution of Tennessee cited and construed; Art. 1, sec. 8.' Constitution of the United States cited and construed; Am. 14. Cases cited, distinguished, and approved; Bank v. Commonwealth, 9 Wall., 353; Railroad v. Pennsylvania, 134 U. S., 239; Bank v. Chehalis Co., 166 U. S., 440; Stapylton v. Thaggard, 91 Fed., 93-95, 33 C. C. A., 353. ‘2. SAME. SAME. Same. Recovery of unlawful privilege taxes paid under protest, when. Where a street car company pays, under protest and to prevent a levy of a distress warrant upon its property, the privilege tax imposed upon its lessee as an advertising company, and flies a , ,bijl to recover .the same, it is'entitled to recover such taxes so unlawfully required to be paid.
111 Tenn. 527Attalla Iron Ore Co. v. Virginia Iron, Coal & Coke Co. (1903)
1. CORPORATIONS. Contract made on behalf of a corporation by its managing officials -with another corporation in 'which, they own a majority of the stock will be annulled in equity,, when. Where the two managing officials of an existing corporation and a third person charter and organize a new corporation, in which the two officials were to control a majority of its stock, but whose identification therewith an effort was made to conceal, for the purpose of causing a contract to be made by and between the two corporations; and after the creation of the new corporation as proposed, the said officials of the existing corporation, and on its behalf, but without the knowledge of its directors and stockholders, entered into a contract with the-new corporation, such contract, without regard as to whether it is favorable or unfavorable to the existing corporation, will be annulled by the chancery court upon seasonable application. But the contract in this case was most oppressive. Cases cited and distinguished: .Gaslight Co. Cases, 1Ó5 Tenn., 268; Thomas v. Railroad, 109 U. S., 522; Oil Co. v. Marbury, 91 U. S., 587; Barr v. Railroad,-125 N. Y., 263; Barnes v.. Brown, 80 N. V, 527; Munson v. Railroad, 103 N. Y., 58; Wardell v.. Railroad, 103 U. S., 651. Cases cited and approved: Wardell v. Railroad, 103 U. S, 651; Railroad v. Magnay, 25 Beav., 586; Benson v. Heathhorne, 1 Young & C-. 326; Railroad v. Dewey, 14 Mich., 477; Railroad v. Poor, 69 Me., £77; Drury v. Cross, 7 Wall., 299; Hall v. Turnpike Co., 87 Am Dec., 75. 2. SAME. Same. Third party in. new corporation cannot rightfully protest against such rule. The third person in the new corporation cannot rightfully protest against the application of the rule in the foregoing headnote; because haying participated in the wrong with the managing officials of the existing corporation, he should not be allowed to derive profit from it. (Post, p. 537.) Cases cited and approved: ..Hall v. Turnpike Co., 87 Am. Dee., 75. 3. SAME. Same. Such contract is voidable, not void. Such contract as that stated in the first headnote is not void, but only voidable; and notwithstanding the vice which tainted its origin, it may be subsequently validated. (Post, p. 534.) Cases cited and approved: Thomas v. Railroad, 109 U. S., 522; Oil Co. v. Marbury, 91 IJ. S., 587; Barr v. Railroad, 125 N. Y., 263; Barnes v. Brown, 80 N. Y., 527.
111 Tenn. 538City of Harriman v. Southern Railway Co. (1903)
RAILROADS. May be required to construct bridge over tracks under police powers, legislative act, and city ordinance. A mandatory injunction will be granted to compel a railroad to erect at its own expense a bridge or viaduct over its .track at a public street crossing in obedience to an ordinance of a municipal corporation enacted under tbe power conferred upon it in its charter by the legislature, although the railroad tracks were laid before the street was laid out or the city was so incorporated, and the tracks were laid in a cut twenty feet below the grade of street crossing, where the public safety and necessity requires such bridge. The police power .authorizes the requirement of such bridge. Acts cited and construed: 1891, ch. 49. Cases cited and distinguished: Dyer Co. v. Railroad, 87 Tenn., 712; Levee District v. Dawson, 97 Tenn., 172. Cases cited and approved: People v. Railroad, 70 N. Y., .569; Inhabitants v. Railroad, 45 N. J. Eq., 436; Railroad v. Omaha, 66 N. W., 624, 41 L. R. A., 484; Railroad v. Willenburg (Ill.),, 7 N. E., 698, 57 Am. Rep., 862; People v. Squire, 107 N. Y., 593; Railroad v. Chicago, 140 Ill., 309; Mugles v. Kansas, 123 U. S., <523; Railroad v. Chicago, 166 U. S., 255.
111 Tenn. 552McGill v. Chilhowee Lumber Co. (1903)
1. CONVERSION. Entitles owner to market value of property at time and place converted. The owner of property which has been converted and appropriated by another is clearly entitled to recover the market value thereof at the time and place of conversion and appropriation. CPost, pp. 558-559.) 2. SAME. Same. Owner not taxed with, costs and expenses of removal'and sale of converted property, when. The owner, whose property has been wrongfully appropriated; converted, and sold, cannot be onerated with the costs and expense of the removal and sale thereof, especially where it is not shown that there was no market for the property at the place of conversion. (Post, p. 659.) Case cited and approved: Knoxville Electric Co. v. East Tennessee Light & Power Co. 3. STOPPAGE IN TRANSITU. Does not rescind sale nor divest title out of purchaser; seller’s rights. The seller’s exercise of the right of stoppage in transitu does not operate to rescind the sale, nor to divest title out of the purchaser, but mer.ely to restore to the seller the right of possession and lien, which may be enforced for the payment of the purchase price. (Post, pp. 559-561.) Oases cited and approved: Shepherd v. Newhall, 7 U. S. App.’, 44, 4 C. C. A., 352, 54 Fed. Rep., 306; Cross v. O’Donnell, 44 N. Y., 661; Rolwey v. Bigelow, 12 Pick. (Mass.), 307. 4. LIEN. Of seller is dependent upon possession, but is not lost by wrongful dispossession of the property. While the seller’s lien is dependent upon possession, yet it is not extinguished by a wrongful and fraudulent dispossession of th© property. The change of possession must be voluntary to eon* stitute a waiver of the lien. (Post, pp. 561-563.) Case cited and approved: Caldwell v. Tutt, 10 Lea, 259. 6. CONVERSION. Of part of lumber is .-not a conversion of the remaining part left untouched. "Where a party tafees and converts part of a quantity of lumber, he is not liable for the loss by flood of the remaining part not tafeen by him, and over which he exercises no right of ownership because he has not converted such remaining part. (Post,, pp. 563-564.)
111 Tenn. 565Tennessee Coal, Iron & Railroad v. Jarrett (1903)
1. MASTER AND SERVANT. Duty of master to instruct inexperienced servant. The employer is hound to use ordinary care to instruct the inexperienced, unskilled, or ignorant employee, and explicitly to ■warn him of dangers. (Post, pp. 572-578.) Cases cited and approved: Whitelaw v. Railroad, 16 Lea, 319; Iron Co. v. Pace, 101 Tenn., 476; Brennan v. Gordon, 118 N. Y., 494; Campbell v. Eveleth, 83 Me., 53; Leary v. Railroad, 139 Mass., 584; Felton v. Girardy, 104 Fed. Rep., 127. 2. SAME. Same. On transferring servant from a safe work to a dangerous work. Where an inexperienced employee engaged in ordinary labor requiring no skill is commanded by the employer to go outside of his regular employment which was not attended with special danger, and to assist in the performance of work, which was dangerous, and required skill and experience, and exercise of precautions to avoid danger, the employer was guilty of negligence in failing to instruct the employee, and to warn him of the dangers involved, and is liable in damages for injuries received by such employee in such dangerous work. (Post, pp. 572-578.) Cases cited and approved: Whitelaw v. Railroad, 16 Lea, 319; Iron Co. v. Pace, 101 Tenn., 476; Brennan v. Gordon, 118 N. Y., 494; Campbell v. Eveleth, 83 Me., 53; Leary v. Railroad, 139 Mass., 584; Felton v. Girardy, 104 Fed. Rep., 127. 3. SAME. Same. Same. Charge of court that is proper in such case. In an action by an employee for personal injuries, a charge by the court to the effect that where there are several ways, or more than one way, in which to do a particular piece of work, the owner may determine how the work shall be done, and is not responsible in damages for injuries resulting to his workmen, simply because he did not adopt the safest and best way to do the work, but if the employer adopts a dangerous and hazardous way of doing the work, when there was a reasonably safe way known .to him, and if the employer knows of the danger, and the employees do not know of it, it is the duty of the employer to inform the employees of the danger, and if the work is dangerous, and requires skill in its performance, and unskilled men are selected to do it, it is the duty of the employer to instruct the employees as to the work to be done, is proper, and is a correct exposition of the law. (Post, pp. 578-579.) 4. SAME. Same. Same. Same. Refusal of request covered by general charge. A request to charge that, if the employee was a mature man of ordinary intelligence when he was transferred from one gang to another, and the danger of the new work he was directed to do was obvious, and by the exercise of reasonable diligence, could be seen by him, then he was not entitled to warning or instructions, 'and was bound to exercise his mind to discover and avoid danger, and for failure to do so, he was negligent, and cannot recover, is substantially covered by the general charge to the effect that if the employee knew as much about the danger by which he was injured as the employer knew, or by the exercise of ordinary diligence could have known it, then there was no necessity for any warning, and the employee could not recover for want of such warning. (Post, pp. 679-580.) 6. SAME. Same. Same. Same. Same. Refusal of request to Charge as fellow servant, where question is not involved. In an action by an employee for personal injuries, where the liability of the employer does not turn on the question whether the act causing the injury was the result of the negligence of a fellow servant, but depends upon the question whether the injured employee was ordered into a different sphere of employ-.meat by one having.authority to do so, and whether the injured employee was instructed and warned, it was not error for the court to refuse a request for instruction that the boss of the gang and the employee were fellow servants, and that the employer was not liable for injuries resulting to such employee from the negligence of such boss and his fellow servant, where such requested instruction ignored the employer’s duty to give warning, advice, and instruction to such employee. ( (Post, pp. 680-582.)
111 Tenn. 583State ex rel. Marion County v. Kelly (1903)
1. QUARTERLY COUNTY COURT. Majority of quorum of three-fifths may levy taxes or appropriate public moneys. Three-fifths of all the justices of the peace of the county must be present to constitute a quorum of the quarterly county court for the purpose of levying taxes or appropriating public moneys, but a majority of those present constituting such quorum and court may lawfully levy taxes or appropriate public moneys. CPost, pp. 586-587.) Case cited and approved: Steele v. Blanton,' 1 Lea, 514. Case cited and disapproved: Brooks v. Claiborne Co., 8 Bax., 43. Code cited and construed: See. 6019 (S.); sec. 4974 (M. & V.); .sec. 4190 (T. & S. and 1858). S. SAME. Appropriation for salary of county judge is legal ” without entry on claim docket. The salary or compensation of a county judge is not such claim as must be presented and entered on the claim docket thirty days before the meeting of the quarterly county court in order to make an' appropriation therefor valid and legal. {Post, p. 589.) 8. STATE REVENUE AGENT. May institute suit in name of State for use of county against county judge for misappropriations and for improper disbursements. A suit in the name of the State for the use of a county may be instituted and prosecuted by a state revenue agent, without - the district attorney-general joining therein, against the county judge of such county for revenue and debts owing the county collected by him, and not accounted for, and for the county’s money -wrongfully paid out by him as financial agent, requiring him to account and settle as manager and custodian of the public finances and funds. Such suit may be maintained to recover the amount paid over to such county judge by a back tax . attorney. (Post, pp. 587-591.) Case cited and approved: State v. Spurgeon, 15 Pickle, 664. Acts cited and construed: 1901, ch. 174, sec. 81.
111 Tenn. 593Turner v. State (1902)
1. CONSTITUTIONAL LAW. Jury act applicable only to Davidson and Shelby counties, construed and held valid. The Act of 1901, ch. 124, entitled: “An act to create a board of commissioners for each county.in the State, haying a population of 120,000 inhabitants or over, under the federal census of 1900, or any subsequent federal census, ánd for the selection of juries, to prescribe the duties of the members of said board, and of the judges, and punish violation of this act; and to repeal all laws in conflict with this act;” was attacked by plaintiff in error, upon the grounds set out in the opinion, as being in contravention of the constitution of the State. Held: 1st. That said act is not vicious class legislation because applicable alone to the counties of Davidson and Shelby. (Post, pp. 602-603.) State constitution cited: Art. 11, sec. 8. Cases cited: State, ex rel., Maloney, 108 Tenn., 82; Luehrman v. Taxing District, 2 Lea, 425; Cook v. State, 90 Tenn., 407; Peterson v. State, 104 Tenn., 127. 2d. That said act establishing an entirely new and distinct plan for the selection of jurors in the counties of Davidson and Shelby, radically and essentially different from the old system, works, by implication, a repeal of statutory provisions in conflict with the provisions of this act. (Post, pp. 603-605.) 3rd. That said act repealing by implication the provisions of the former acts upon the subject of selecting juries in the counties to which it is applicable is not violative of that provision of the constitution which requires that all laws which repeal, revive or amend former laws, shall recite in their caption, or otherwise, the title or substance of the law repealed, revived or amended, it being settled law in this State that this requirement of the constitution does not apply to the statutes repealing by necessary implication, the provisions of other statutes, but only to those acts which expressly repeal, revive or amend former laws. (Post, pp. 605-606.) Constitution construed: Article 2, sec. 17. Cases cited: State v. Tardley, 95 Tenn., 558; Shelton v. State, 96 Tenn., 521; Home Insurance Company v. Taxing District, 4 Lea, 644; Maney v. The State, 6 Lea, 218; Knoxville v. Lewis, 12 Lea, 190; Ballentine v. Pulaski, 15 Lea, 633; Poe v. State, 85 Tenn., 495; Railroad v. Crider, 91 Tenn., 507; Hunter v. Memphis, 93 Tenn., 571; Henley v. State, 98 Tenn., 707. 4th. That the repealing clause found in the caption and in the last section of said act has no legal effect whatever, and does not bring the act within the constitutional requirement above cited. The act is precisely the same in legal import and in point of validity as it would have been without that clause whose presence makes the act neither more nor less a repealing law. (Post, pp. 606-608.) Cases cited: State v. Yardley, 96 Tenn., 558; Memphis v. Express Company, 102 Tenn., 341. S. BOARD OF JURY COMMISSIONERS. Action of majority valid. The action of a majority of the hoard of commissioners appointed to select juries is valid, although one member of the board may be disqualified, if the remaining two members constituting a majority of the board are competent and qualified under the statute. (Post, p. 608.) Statute construed: Act of 1901, ch. 124, sec. —. Case cited and approved: Carroll v. Alsup, 107 Tenn., p. 257. 8. SAME., Presumption in favor of competency. Every presumption must be made in favor of legality and competency, and upon appeal to this court, in the absence of any showing to the contrary, it will be presumed that the members of a board of jury commissioners, or the members constituting a majority of such board, whose competency has not been attacked, are competent. (Post, pp. 608, 610.) 4. JUDGE. Power of, under Jury Act, to designate juror. The Act of 1901, ch. 124, provides that on the excusing of a juror, another' shall be drawn as required by section 5, which provides for the drawing of names from the jury box, and by section 4, if the jury box is exhausted before the jury is complete the judge may designate a juror. On appeal it was shown that a juror was excused and another appointed by the trial judge. Éeld: That a substituted juror should be selected by drawing a name from the-box, unless the names are exhausted, but in the absence of showing to the contrary, it would be presumed that the jury box was exhausted when the juror was appointed by the court. (Post, pp. 608-610.) , 5. JURORS. Disqualified by opinion, when. Where a venireman on his voir dire stated that he had conversed with parties who had talked with witnesses . . . that he accepted what they said as being facts in the case . . that the names of the witnesses were given him in those conversations and that he had an opinion well grounded and fixed, which ■ could only be removed by evidence, such venireman was incompetent and disqualified to act as a juror. (Post, pp. 610-615.) Cases cited: Payne v. State, 3 Humph., 377; Bason v. State, 6 Baxt., 474; Conatser v. State, 12 Lea, 44; Johnson v. State, 11 Lea, 50; Ward v. S.tate, 102 Tenn., 730. Cases cited and distinguished: Woods v. State, 99 Tenn., 187. 6. SAME. Disqualified juror should not be accepted. It is well settled in this State that, if a jerson is disqualified as a juror, he should not be accepted because he states that, notwithstanding his opinion, he will render an impartial verdict. (Post, p. 614.) Cases cited and approved: Rice v. State, 1 Yerg., 432; Eason v. State, 6 Bax., 474, 477; Conatser v. State, 12 Lea, 445; Spence v. State, 15 Lea, 445; Ward v. State, 102 Tenn., 730,
111 Tenn. 616McBride v. McBride (1902)
1. DIVORCE. Willful “or’’ malicious desertion, a ground for. Under the Act of 1825, ch. 26, sec. 1, and the decisions of the supreme court construing said act prior to the adoption of the code in 1858, the desertion or absence of the husband or wife for two years without reasonable cause, as a sufficient ground for divorce, must have been both wilful and malicious, and the party must have been actuated by malice in fact; but the framers of the code, in the matter of divorce, substituted the disjunctive “or” for the copulative conjunction “and” found in said act, so as to make wilful desertion, without reasonable cause, for the statutory period, a sufficient ground for divorce, regardless of the existence of malice in fact. Acts cited and construed: Acts of 1835, ch. 26, sec. 1. Code cited and construed: Sec. 4201, ss. 4 (S.); 3306, ss. 4 (M. & V.); 2448, ss. 4 (T. & S. and 1S58). Cases cited and distinguished: Stewart v. Stewart, 2 Swan, 591; Rutledge v. Rutledge, 5 Sneed, 555.
111 Tenn. 620Dunham v. Harvey (1902)
1. INNOCENT PURCHASER. Defense of, how made. The defense of innocent purchaser can not he made hy demurrer, hut must he interposed by plea or answer, in which great certainty and particularity of averment is required. (Post, pp. 627-628.) Cases cited: Rhea v. Allison, 3 Head, 177; High v. Battle, 10 Yerg., 335; Caldwell v. Cheatham, 2 Head, 22; Connell v. Fer- . guson, 5 Cold., 405; Saylors v. Saylors, 3 Heisk., 529; Stephens v. Porter, 11 Heisk., 348; Gates v. Card, 93 Tenn., 334. 2. SALE OF LANDS. Under decree of chancery court, without revivor against heirs, not void. Where a hill was filed in the chancery court to collect taxes and the person against whom the hill is filed and decree sought dies before the decree for sale is pronounced, and there is no revivor against the heirs, the sale is not void. (Post, pp. 628-629.) Code cited and construed: Sec. 6190 (S.). 3. SAME. Same. Valid if decree is executed before it is set aside. And if the decree is executed before it is set aside under .the provisions of the statute, it will he a protection to all persons acting upon its validity and will confer a good title to all property sold under it. (Post, p. 629.) Code cited: Sec. 6193 (S.). 4. WILLS, CONSTRUCTION OF. Character and duration of trust estate under. In trusts created hy a will, it is a general rule that the trustee in whom is vested the legal title takes such quantity of interest therein as the purposes of the trust required, and, as soon as the trust is satisfied, the legal estate will vest, under the will, in the person or persons beneficially entitled to it. (Pos#, p. 631.) Cases cited and approved: Smith v. Thompson, 2 Swan, 386; Belote v. White, 2 Head, 703; Aiken v. Smith, 1 Sneed, 304; Ellis v. Fisher, 3 Sneed, 231. 5. SAME. Same. Remainder protected hy life estate in trustee. Case in judgment. The testator, after providing for the payment of his debts, devised the residue of his estate to his wife, her heirs and .assigns, forever, in trust that she hold and enjoy the same during her life for the support of herself and family, and the remainder thereof to his daughter K. and her children then living or thereafter to be born. The widow, trustee, qualified as admin-istratrix and assumed to convey to one S. certain of the realty, devised as aforesaid, which was sold, under bill in chancery, to pay taxes, and the sale confirmed December 14, 1884. The trustee died February 12, 1891. Purchasers at tax sale and privies in estate to them in possession of the property. Bill by adult married daughters and minor grandchild (born June 21, 1880) of testator’s daughter K., to recover said property. Held: 1st. The devise to the widow of testator and the trust created thereby terminated with her life. 2d. That, although the joint suit of the married daughters and their husbands was barred by the statute of limitation, the right of the minor cestui que trust under the will to contest the tax sale was not barred. .{Post, .pp. 626, 630, 631.) 6. CHANCERY PRACTICE. Dismissal of bill by husband and wife without prejudice, erroneous when. Where a bill by married women and their husbands is dismissed upon demurrer because the relief sought is barred by the operation of the statute of limitations, the decree of dismissal should be absolute, and it is error for the decree to contain a reservation, “without prejudice,” in favor of the married women. (Post, pp. 626, 631.)
111 Tenn. 632Wallace v. Williams (1902)
1. LEASE.i Construction of., landlord’s agreement with one tenant not to re-let part of building to rival tenant complied with by refusal to renew lease of such tenant and bona fide suit to oust him. 'Case in judgment. Complainant, being engaged in the saloon business in one room of a building owned by the defendants, paid them in August., 1899, six hundred dollars in consideration of which defendants agreed not to renew the lease to rival saloon keeper, of another part of the same building, when said lease expired. When the lease of the rival tenant expired it was extended about one month by agreement of all parties, after which defendants at- , tempted by suit to evict such third party; and while this action was pending and on November 14, 1899, complainant and defendants executed a contract giving complainant a new lease at increased rent, and acknowledging defendant’s right to. the six hundred dollars paid as above stated, and defendants agreed to prosecute the suit to final determination. In April, 1900, the rival tenant still in possession made a proposition that if he were allowed to remain pntil September of that year, he would withdraw his defense to the suit and vacate the premises on September 1; but this proposition defendants refused, without consulting or advising complainant thereof, and the suit was not settled until May 1, 1901. Complainant sued to recover said sum of six hundred dollars as damages for the alleged breach of the agreement upon which said sum was. paid defendants. Held: That by their agreement the defendants were only bound not to renew their lease to the rival tenant, and, as there was no evidence of want of good faith, in their prosecution of tlie suit to evict such tenant., defendants had not breached then-agreement and were not liable to complainant.
111 Tenn. 639McLemore v. Charleston & Memphis Railroad (1902)
1. DEEDS OF CONVEYANCE. Rights under conditions surrendered by deed of relinquishment. Where a landowner conveyed a tract of land to a railroad company by deed containing a condition requiring the railroad company to construct and build, within a reasonable time, a certain lateral railroad, after which it became apparent that the railroad company could never construct the said lateral railroad line; whereupon the said tract of land was partitioned between said conveyor and the successor in ownership of the said railroad company, by execution of partition deeds, the conveyor’s said partition deed divested out of him, all right in the tract of land so conveyed by him, whatever might have been his rights under the original deed containing such conditions, for failure to construct said road, had he asserted such rights. {Post, pp. 644-656.) 2. SAME. Right of way is an easement which may be lost by abandonment or surrender. The conveyance of a right of way to a railroad company through the lands of the grantor operates to convey an easement therein only, and the fee remains in the grantor; and- such easement may be lost by abandonment or voluntary surrender to the owner. {Post, pp. 657-658.) Cases cited and approved: Railroad v. Telford, 89 Tenn., 293; Railroad v. Geisel, 119 Ind., 77; Jones v. Van Bochove, 103 Mich., 98; Railroad v. Frost, 147 Mass., 121; Flaten v. Moore-head, 51 Minn., 518; Williams v. Railroad, 50 Wis., 71; R.obinson v. Railroad, 59 Vt., 426. 3. SAME. Extrinsic evidence is inadmissible to vary language of judicial decree and deed, when. Extrinsic evidence is inadmissible to contradict or vary tbe language and recitals of a deed of conveyance of land made under a judicial decree as well as tbe legal import thereof, wbicb bave been accepted and acted upon by tbe purchaser of tbe land and not contradicted or denied by tbe former owner. (Post, pp. 658-661.) 4. SAME. Fee in right of way passes to purchaser, when. Where a tract of land, through wbicb a railroad right of way runs, has been sold in a judicial proceeding foreclosing a mortgage, in wbicb proceedings no reference is made to tbe right of way, and no reservation of tbe fee theréin is made, tbe fee passes to the purchaser. (Post, pp. 659-661.) 5. SAME. Fee in abandoned or lost easement reverts to owner. When an easement in a railroad right of way is abandoned or otherwise lost, tbe fee reverts to tbe owner of tbe land at tbe time of abandonment, instead of tbe original owner or owner at tbe time tbe easement was acquired, unless tbe fee therein was reserved for the original owner. (Post, pp. 660-661.) 6. SAME. Partition, agreement and settlement precludes the parties. Tbe partition and agreement entered into between tbe heirs of tbe deceased mortgageor and tbe purchaser of tbe mortgaged property under a foreclosure sale, as a final and complete division of tbe lands and in settlement of all accounts relating to tbe same, and of a previous agreement between tbe mortgageor and purchaser, precludes tbe said heirs from claiming any interest under such agreement in tbe lands retained by tbe purchaser. (Post, pp. 661-663.) 7. EJECTMENT. Complainant must establish title in himself. Tbe complainant in ejectment suit to recover land must establish, title in himself before be can recover, regardless of what tbe defenses of tbe defendant may be. (Post, p. 663.) 8;. SAME. Defendant estopped to establish, certain facts, but not to rely upon facts brought out by complainant. In ejectment suit to recover land, the defendant may be estopped from establishing certain facts; but the complainant can not use this to assert that the facts do not exist, when the record shows that they do exist, and which are necessarily brought out by the complainant in his efforts to establish his title. {Post, pp. 663-664.) 9. ESTOPPEL. Not to establish facts, but to prevent reliance ■upon them. Estoppel can never be invoked to establish facts, but may only be used to prevent parties from relying upon facts which do . exist. {Post, pp. 663-664.) 10.'' SAME. In pais is operative only' when the party to be estopped is prejudiced. .•Unless the complainants were prejudiced by the conduct of some of the defendants, they can not set up estoppel to prevent thé real facts from being shown in the suit. There is no element of estoppel in pais, where the complainants were not misled or placed in any different situation on account of the facts. (Post, pp. 665-667.) 11. SAME. Judicial, estoppel may be invoked by any one. Judicial estoppel is firmly established in this State, and may be invoked by any one, regardless 'of whether any rights have been prejudiced by the conduct of some one else which, it is claimed, constitutes the estoppel. The policy of 'the law will not permit any one to gainsay what he has deliberately sworn to in the course of a judicial proceeding. {Post, pp. 665-666.) Case cited and approved: Hamilton v." Zimmerman, 5 Sneed, 48. 12. SAME. Unsworn answer does not operate as, when. ‘ Where an unsworn answer signed by counsel only denies a certain title, which can be nothing more than the expression- of an opinion made inconsiderately and without due knowledge of the facts, is not operative to estop the party from asserting such title in a subsequent suit against a party not prejudiced by the former denial. (Post, pp. 664-667.)
111 Tenn. 668Webster v. Harris (1902)
1.. NAVIGABLE STREAMS. In the technical and legal sense defined. The test of a navigable stream in the legal and technical sense is whether or not in the ordinary state of water, it has capacity and suitability for the usual purposes of navigation, ascending and descending, by sea vessels, or such vessels as are employed-in the ordinary purposes of commerce, whether foreign or inland, and whether steam or sail vessels. (Post, pp. 675-677, 687, 698.) Cases cited and approved: Stuart v. Clark, 2 Swan, 9; Sigler- • v. State, 7 Bax., 493; Holbert v. Edens, 5 Lea, 207; Goodwin v. Thompson, 15 Lea, 209. 2. SAME. Rights of riparian owners in streams navigable in the-legal sense, in the ordinary sense, and not in any sense stated, and distinguished. If a river be a public navigable stream in the legal and technical sense, the soil covered by the water, as is the use of the-stream, belongs to the public; but if it be not navigable in the legal and technical meaning of the term, the ownership of the-bed of the stream is in the riparian proprietors, and the public have an easement only therein, for the purpose of transportation and commercial intercourse, to which it is naturally adapted;, if it be too shallow for such purposes, both the right of property and the use thereof are wholly and absolutely -in>. the owners of the riparian lands. (Post, pp. 676-677, 698.) Cases cited and approved: Stuart v. Clark, 2 Swan, 9; Sigler- • v. State, 7 Bax., 493; Holbert v. Edens, 5 Lea, 207; Goodwin-v. Thompson, 15 Lea, 209; Irwin v. Brown, 3 Shannon’s Tenm. Cases, 309. 3. SAME. Streams navigable in the ordinary sense. Streams not navigable in the legal and technical sense may yet be navigable in the common acceptation of the term, where.'in certain stages of the water it may be of sufficient depth naturally for valuable floatage, as for rafts, flatboats, and • perhaps small vessels of lighter draft than the ordinary. (Post, pp. 676-677.) Cases cited and approved: Stuart v. Clark, 2 Swan, 9; Sigler v. State, 7 Bax., 493; Holbert v. Edens, 5 Lea, 207; Goodwin v. Thompson, 15 Lea, 209. 4. SAME. Eight of riparian owners in streams navigable in the ordinary sense. While the right of property in the bed of a stream navigable in the ordinary sense, but not in the legal sense, is vested in the riparian proprietors, and in that respect it is to be regarded as a private river, still the public have a right to the free and uninterrupted use and enjoyment of such stream for all purpose of transportation and navigation to which it is naturally adapted. (Post, pp. 676-677, 698.) Cases cited and approved: Stuart v. Clark, 2 Swan, 9; Sigler v. State, 7 Bax., 493; Holbert v. Edens, 5 Lea, 207; Goodwin v. Thompson, 15 Lea, 209. 5. SAME. Bed of stream navigable in the legal sense held by State in trust for the public. If' a stream is navigable in the- legal and the technical sense, the title of the soil under the water is vested in the State in trust for the public, and individuals setting up claims thereto must be able to show an express grant by an act of the legislature; for the title to the soil under such streams "was not intended to be secured by individuals under our general land laws. (Post, pp. 677, 687, 695, 703-704.) • Case cited and approved: Goodwin v. Thompson, 15 Lea', 209. 6. SAME. Navigability determined from existing conditions and not from artificial improvements to be made. The crucial test in determining the navigability of a stream is whether it is naturally navigable at the time of the determina- ■ tion, and not whether it is possible to be made so by artificial means and vast expenditure of money at some remote period of the future. (Post, pp. 689-695.) Cases cited and approved: Gaston v. Mace (W. Ya.), '10. S. E., 60, 5 L. R. A., 396-399, 25 Am. St. Rep., 848; Olive v. State (Ala.), 5 South., 653, 4 L. R. A., 38-41; Swanson v. Boom Co., (Minn.), 44 N. W., 986, 7 L. R. A., 674; Club v. Wade (Wis.-), 76 N. W., 273, 42 L. R. A., 305-330; United States v. Rio Grande Dam & Irrigation Co. (N. M.), 51 Pac., 674; Cates v. Wadlington, 10 Am. Dec., 699. 7. SAME. Reelfoot Lake held to be navigable in the ordinary sense only. Upon consideration of the evidence in this suit to enjoin the draining of Reelfoot Lake, it is held by the supreme court that said lake is not navigable in the legal and technical sense, but is navigable in the ordinary sense, and, therefore, that the land covered by the water thereof was subject to grant, and the title to the bed of the lake is not in the State for the use of the public, but is in the several grantees and riparian owners, though the public still has an easement in said lake for commercial intercourse and transportation. (Post, pp. 687-695, 703.) 8. SAME. In the ordinary sense as boundary of land carries title to thread or center. If a stream navigable in the ordinary sense be the boundary of lands, the title extends, to the thread or center of the stream, of common right or by construction of law, unless there is an intention clearly expressed in the deed or grant excluding the intermediate space between the edge or bank of the stream and its thread. (Post, pp.'698-699, 704.) Cases cited and approved: Martin v. Nance, 3 Head, 650; Holbert v. Edens, 5 Lea, 204, 207; Posey v. James, 7 Lea, 99. 9. NONNAVIGABLE STREAMS. Boundaries limited by deed to edge thereof. Where a deed of conveyance of land expressly calls for the water’s edge at low water mark for the boundary, the rule that ordinarily applies to the rights of riparian owners in nonnaviga-ble waters does not apply, and the title does not extend to the middle or thread of the stream. (Post, pp. 698-699.) Cases cited and approved: Martin v. Nance, 3 Head, 650; Hol-bert v. Edens, 5 Lea, 204, 207; Posey v. James, 7 Lea, 99. 10. STREAMS. Whether navigable or not, must not be impaired. One riparian proprietor has no right to drain the stream or reduce it below its natural level, whether it be navigable or nonnav-igable, if it impairs or destroys the interest and use of another riparian owner. (Post, pp. 699-701.) Case cited and approved: Ulbricht v. Water Co. (Ala.), 6 South., .78, 4 L. R. A., 573, 11 Am. St. Rep., 72. 11. SAME. Right protected by injunction. The riparian owner may by injunction in chancery protect his riparian rights, and prevent the draining of the stream or its impairment. (Post, p. 704.) 12. EJECTMENT. Land must be located and identified with reference to grant and conveyance. Where a cross complainant seeks by ejectment to recover land lying under the waters of a nonnavigable lake by production of grants and conveyances and a map in which the surveyor undertook to plat the tracts, but there was no proof locating the various grants with reference to the lake except such map, and there was no proof of any survey, the location and identity of the particular lands was not shown with sufficient certainty to support the action of ejectment. (Post, pp. 703-704.)
111 Tenn. 705Coleman v. Bennett (1902)
1. DAMAGES. Negligent or wrongful acts must be the proximate cause. It is a fundamental rule and an axiomatic principle of the law of damages that no action will lie for a negligent or wrongful act that is not the proximate cause, or one of the proximate causes, of the injury done. (Post, p. 709.) S. SAME. Same. Joint and several liability for concurrent wrongful acts of two or more. The defendant’s liability is determined alone by his own wrongful acts as a proximate cause of the plaintiff’s loss and that liability is in no way influenced, or made greater or less, by the fact that the wrongful act of another person may have concurred proximately with his own in producing the loss; and it is immaterial to the defendant sued, that the other wrongdoer is not joined as defendant in the action, or that he has not yet been sued, or may not be sued at all, for if the wrongdoers are liable jointly or separately, the fault of one is no defense for the other or others. (Post, pp. 711-713.) Cases cited and approved: Beopple v. Railroad, 104 Tenn., 428; Slater v. Mersereau, 64 N. Y., 138. 8. SAME. Same. Same. Simultaneousness in operative effect and not in action is the controlling feature. In cases of negligence of two- independent persons concurrently resulting -in injury to a third person, simultaneousness in operative effect, and not in the doing of the wrongful acts, is the controlling feature; and it^is of no legal consequence, under this doctrine, that the construction of the levee as one cause of the injury by the wrongdoer not sued subsequent to the construction of the dam as the other concurrent cause of the injury by the wrongdoer sued. (Post, pp. 713.) 4. SAME. Measure for permanent and temporary injuries to land. The measure of damages for injuries to land which are permanent in their nature is the depreciation in the market value of the property by reason of the wrongful act, once for all, while the measure of damages for injuries to land that are temporary in their nature is the impairment of the use of the property by the wrongful act up to the commencement of the action, with the right of successive suits, if the wrong should be continued. (Post, pp. 714-719.) Cases cited and approved: Harmon v. Railroad, 87 Tenn., 814; Nashville v. Comar, 88 Tenn., 415. 5. SAME. Same. Permanent injuries to land defined and con-tradistinguished from temporary injuries. Injuries to land though not strictly absolute perpetuities nor positively irremediable in the last possible degree may, nevertheless, in a legal sense, be permanent as contradistinguished from temporary injuries. Permanency, in the legal acceptation of the term, does not include the idea of absolute, but only of practical irremediability. (Post, p. 719.) ©. SAME. Same. 'Case in judgment. Where a defendant erected a dam in and across a stream upon his own land by which he completely obstructed the natural course of the water therein at that time and subsequently, which stream, after flowing through his land, flowed through that of the plaintiff, the inevitable effect of which was to throw the water in times of heavy rains upon the land of an adjoining owner, to prevent which as far as possible, such adjoining owner constructed a levee upon his own land. During a freshet;-the dam and levee collected a very great quantity of water which, washed away part of the levee, and overflowed and injured, the crops and land of plaintiff. The evidence showed that plaintiff would not have been damaged had it not been for the defendant’s wrongful obstruction. Held, that such dam and obstruction erected by defendant was the proximate cause, making him liable for all the damages notwithstanding the levee was a concurrent cause. 7. DEMURRER TO EVIDENCE. Admits truth, of testimony and waives exceptions thereto. A demurrer to the evidence admits the truth of all the testimony adduced by the plaintiff, with all legitimate and legal deductions therefrom; and it effectually waives all exceptions made by the defendant to testimony permitted by the trial judge to go to the jury; and the defendant must accept as absolutely true the case made by the plaintiff and his witnesses, and abide the consequences. (Post, pp. 710-711.) Cases cited and approved; Hopkins v. Railroad, 96 Tenn., 409; Summers.v. Railroad, 96 Tenn., 459; Railroad v. Leinart, 107 Tenn., 635. 8. SAME, Same. When overruled, case submitted to jury on-evidence embodied therein. Where a demurrer to evidence is overruled, it is proper for the trial judge to submit the case to a jury for assessment of damages upon the evidence embodied in the demurrer without permission to either party to introduce other testimony. (Post, p. 714.) Cases cited and approved; Mitchell v. Railroad, 100 Tenn., 333; Manufacturing Co. v. Morris, 105 Tenn., 654. 9. SAME. Same. Same. Verdict upon evidence embodied in, is entitled to usual weight. The verdict of a jury in a case submitted to it upon the evidence embodied in a demurrer to evidence is entitled to the same weight in the supreme court as a verdict in any other civil, action, that is, it will not be disturbed in the supreme court, if there is any evidence to. sustain it, and in considering that question the strongest legitimate view of the plaintiff’s evidence will be accepted as true. (Post, p. 714.)
111 Tenn. 720Lenow v. Arrington (1902)
1. SALE OF PROPERTY. Of persons under disability in chancery court. Jurisdiction and power is conferred upon the chancery court by statute to make sales of the property of persons under disability where it is clearly to the interest of such parties, or necessary for their support, education, and maintenance. The statute added nothing to the jurisdiction of the court which it possessed and exercised prior thereto, which jurisdiction ex- • tended to all cases where it was to the interest of parties under disability that such sales should be made, and to the ratification of such sales already made, when the facts warranted such sales. (Post, pp. 727-730.) Cases cited and approved: Thompson v. Mebane, 4 Heis., 370, 377; Hobbs v. Harlan, 10 Lea, 268; Talbot v. Provine, 7 Bax., 509, 510; Cicalla v. Miller, 105 Tenn., 262; Taylor v. Keeton, 10 Hum., 539; Williams v. Williams, 3 Bax., 59; Brown’s Case. 8 Hum., 207; Gray v. Bernard, 3 Bax., 63; Ridley v. Halliday, 106 Tenn., 607, 613.; Yacarro v. Cicalla, 89 Tenn., 74. Code cited and construed: Sees. 5072-5089 (S.); secs. 4054-4071 (M. & V.); secs. 3323-3340 (T. & S. and 1858). 3. SAME. Same. Where will does not expressly prohibit sale. Where testator devises the net proceeds of the annual rents and. profits of land to his wife and children for life, with direction, that the land be kept together during the life of his wife, and it is manifestly the purpose of the testator that the income of the property should be received by the life tenants for their support, a sale thereof is not expressly prohibited in the sense of the statute which provides that “in no ease shall property be sold if it be claimed under a will which expressly directs otherwise;” for by its terms this statute applies only when such sale is expressly prohibited by the will. (Post, pp. 724, 728-729, 732-733.) Cases cited, distinguished and approved: Porter v. Porter, 1 Bax., 303; Hurt v. Long, 90 Tenn., 460. Code cited and construed: Sec. 5089 (S.); sec. 4071 (M. & .V.); sec. 3340 (T. & S. and 1858). 3. SAME. Same. Same. Direction for division of land devised is not a prohibition of sale. Where the testator directs that his real estate shall be divided but does not direct in express terms that no sale shall be made, a sale thereof is not expressly prohibited in the sense of the statute forbidding a sale where the will expressly directs otherwise. (Post, pp. 733-734.) Cases cited and approved: Hawkins v. England, 3 Head, 652; Gavin v. Curtin (Ill.), 49 N. E., 523, 40 L. it. A., 779. Code cited and construed: Sec. 5089 (S.); see. 4071 (M. & V.); sec. 3340 (T. & S. and 1858). 4. SAME. Same. 'Where income is not sufficient for life beneficiaries, when. Where a will directed the income of the estate paid to the testator’s children and widow during life, and it evidenced a manifest purpose and intent on the part of the testator to provide an income for his wife and children sufficient for their support and maintenance, and it appears while debts for money borrowed to rebuild burned and condemned houses might be-paid from the income, yet not enough would be left for the suitable maintenance of such beneficiaries, a decree ordering a sale of land to pay the debts is proper under the statute authorizing the sale of property of persons under disability. (Post, pp: 735-736.) Code cited and construed: Secs. 5072-5089 (S.); secs. 4054-4071 (M. & V.); secs. 3323-3340 (T. & S. and 1858). 5. TRUST AND TRUSTEES. Sale of property decreed to pay expenditures for improvement. Where a trustee failed to make application in the first instance, hut subsequently comes into a court of chancery and asks an approval of his acts, and a sale of property to pay for expenditures, it will grant the relief sought,, where it would have done so in the first instance, if he gives good reasons for not making the' application before the expenditures were made. (Post, pp. 730-731.) Cases cited and approved: Roseborough v. Roseborough, 3 Bax., 314; Hobbs v. Harlan, 10 Lea, 268, 275; Cohen v. Shyer, 1 Tenn. Chy., 194. 6. SAME. Same. Sufficient reason for failure to apply to court before improvements made. A sufficient reason is shown for not seeking the aid of the chancery court before making the expenditures, where a testamentary trustee, required to keep property together and distribute the income, shows that when the contracts for improvements were made the income was such as would have paid off the indebtedness prior to the filing of the bill, but on account of the condemnation of other property, increased taxation, and gradual' decrease of the income occurring subsequent to the improvements and prior to the filing of the bill for leave to sell property to pay for the expenditures in erecting new buildings in the place of those destroyed and condemned, the income had become insufficient for such purpose. (Post, pp. 731-732.) 7. GUARDIAN AND WARD. Restriction on guardians does not limit jurisdiction of chancery court. The statute forbidding guardians to make contracts for improvements on real estate binding on the estate of their wards beyond their minority was not intended to limit or control the jurisdiction of the chancery court, but was designed to limit the powers of guardians. (Post, pp. 734-735.) Code cited and construed: Sec. 4283 (S.);" sec. 3387 (M. & V.); sec. 2515 (T. & S. and 1858). 8. SAME. Same'. Lease and other improvements by guardian approved. Notwithstánding the statute restricting the power of guardians to mate improvements, the chancery court has jurisdiction during the minority of infants to confirm lease improvement contracts, and other contracts for the protection and preservation, of their real estate, when it is made manifestly to appear that it is to their interest to do so. {Post, pp. 731-735.) Case cited and approved: Talbot v. Provine, 7 Bax., 510.
111 Tenn. 737Matthews v. Crowder (1902)
1. VENDOR AND PURCHASER. Remedy of purchaser, against Insolvent vendor warranting title — Rescission. Where there has heen a fully executed sale of land, hy deed containing full covenants of warranty' and seizin, with possession, and payment hy the vendee of the purchase money, and, it afterwards appear that the vendor did not have the estate and title which he represented himself as having, the vendee before eviction can not ordinarily maintain an action against the vendor for a rescission of the sale, for a mere breach of a warranty of title, hut if the vendor is insolvent the vendee may maintain in suit in equity and have a decree for rescission, though not evicted. (Post, p. 740.) Cases cited: Young v. Butler, 1 Head, 640; Crawford v. Keebler, 5 Lea, 550; Merriman v. Norman, 9 Heis., 270; Land Company v. Hill, 87 Tenn., 598; McElya v. Hill, 105 Tenn., 329. 2. SAME. Covenants of seizin and warranty — Remedy for breach, of, against insolvent vendor. If the vendor’s deed contains a covenant of seizin, it is an assurance to the vendee that the vendor has the very estate and title both in quantity and quality that he purports to convey. It is a personal covenant in praesenti, and if untrue, it was breached the instant it was made,, and the vendee, without reference to the matter of evictions, may bring his action at law for damages for the breach, or in equity for a rescission against an insolvent vendor.' (Post, pp. 740-741.) Cases cited: Curtis v. Brannon, 98 Tenn., 153; Ingram v. Morgan, 4 Humph., 66; Woods v. North, 6 Humph., 309; Barnett v. Clark, 5 Sneed, 437; Baird v. Goodrich, 5 Heis., 24; Land Co. v. Hill, 87 Tenn., 598; McElya v. Hill, 105 Tenn., 329. 3. SAME. Vendor a trustee for vendee — Trust follows consideration paid vendor into other land. Where a vendor of land has received the vendee’s notes for the purchase price., and whose covenants have been so breached as to warrant a rescission, in equity, the vendor will be treated as trustee of the notes for the benefit of the vendee; and if the vendor has used the notes in the purchase of other land in his own right, and the vendee has paid the notes, he may on rescission follow the notes, as a trust fund, into the land, and, by decree, have it subjected to a reimbursement. {Post, pp. 741-745.) 4. SAME. Same. Case in judgment. The defendants sold to complainant a certain tract of laiid conveying by deed containing full covenants of warranty and seizin. Complainant executed his notes for purchase price which defendants transferred for other land taking title thereto. Cozn- ' plainant paid the notes. Defendants had no title to the land sold complainant, excepting a life estate, and they were insolvent. Complainant filed bill for rescission, and to have trust declared for purchase price paid by him upon the aforesaid life estate and tract purchased by defendants from third party. field: That complainant was entitled to a rescission, and to a recovery of the purchase money paid by him to be satisfied by sale of the life estate, and of the land purchased by defendant from third party.