125 Tenn.

Volume 125 — Tennessee Reports

47 opinions

125 Tenn. 1Parrott v. State (1911)
FROM MoMINN. Appeal from tbe Circuit Court of McMinn County.— S. C. Brown, Judge.
125 Tenn. 6Houston National Bank v. Wood (1911)
1. COLLATERAL SECURITIES. Pledgee Is not guilty of conversion by his unauthorized purchase at their sale, so long as he retains possession with power to return them to pledgeor, upon proper tender and request. The pledgee of bonds and stocks as collateral security for the payment of indebtedness due him is not guilty of a conversion thereof by his unauthorized purchase of the same at a sale made after default, so long as he retains possession and control, with power to return the collateral to the pledgeor, upon payment of the indebtedness so secured, and has not refused to return the same upon a proper tender of the indebtedness, and request for the return of the collateral. (Post, pp. 12-14.) Cases cited and approved: Ball v. Stanley, 5 Yerg., 199; Upchurch ■ v. Darnell, 3 Sneed, 444; Scruggs v. Lester, 1 Heisk., 150; Bank v. Smith, 110 Tenn., 337; Terry v. Bank, 93 Ala., 599; Winchester v. Joslyn, 31 Colo., 220; Bryan v. Baldwin, 52 N. Y., 232; Bank v. Rush, 85 Fed., 539; Glidden v. Bank, 53 Ohio St., 588. 2. SAME. Same. Pledgee’s purchase without express authority may be treated by pledgeor as valid or null; but not as a conversion, when. In the absence of express authority, the rule is that a pledgee, upon sale after default, cannot become the purchaser of the property pledged to secure him; and where the pledgee, without authority, becomes the purchaser of securities hypothecated with him, the pledgeor can either treat the sale as valid and hold the pledgee liable for the amount bid by him, or the pledgeor, can treat the sale as a nullity; but he cannot treat such sale as a conversion, and hold the pledgee liable for some alleged valuation of the collateral, so long as the pledgee retains the' possession thereof and does not refuse to return it after proper tender of the amount of his debt. (Post, p. 14.) See citations under the preceding headnote. • 3. SAME. Power of sale and right to purchase agreed to be extended to subsequent collateral does not so extend to subsequent collateral under written agreement containing no such power and right. Where collateral security is pledged for the payment of a promissory note, by a printed agreement contained in or annexed to the note, with power of sale after default, and right to purchase the same at such sale, vested in the holder of the note, with a further printed provision that “in case of any exchange or addition to said collateral, we agree that the above agreements and provisions shall extend to such new or additional collateral,” this provision was intended to apply to collateral deposited by the maker of the note, unaccompanied by any other written agreement, and does not apply to collaterals subsequently pledged under a definite written agreement, containing no such power of sale and no such right to purchase. (Post, pp. 10, 14-16.) 4, SAME. Same. Contract authorizing property pledged for particular debt to be held for general indebtedness is valid, but will be construed in favor of pledgeor, especially if on a printed form furnished by pledgee. The provision in a note authorizing the payee bank to hold, as security for general indebtedness, property pledged for a particular debt, is valid, but the rule is that such agreement will not be construed so as to extend the obligation beyond that intended by the pledgeor; and, if such agreement is on a printed form furnished by the bank and signed by its customer, and any doubt arises as to its proper interpretation, it will be construed in favor of the customer. (Post, p. 16.) Cases cited and approved: Bank v. Brown (Tenn. Chy. App.), 53 S. W., 206; Harris v. Bank, 77 Md., 423; Hathaway v. Bank, 131 Mass., 14; Gillet v. Bank, 160 N. Y., 549. 5. BELLS AND NOTES. Stipulation for attorneys' fees is valid, and will be enforced to extent reasonable. While a stipulation in a promissory note for attorneys’ fees is valid, and 'will be enforced, still the court is not bound by a provision to tbe effect that any particular amount shall be allowed for such fees, and no matter what stipulations as to the amount is made, it will not be enforced unless it appears to the court to be reasonable. (Post, pp. 10, 16, 17.) 6. ATTORNEYS’ FEES." Discretion in allowing attorneys’ fees will not be revised except for injustice. The supreme court is not disposed to interfere with the allowance of attorneys’ fees in the lower court, unless it can see that some injustice has been done; for such matters are largely within the discretion of the court, and the supreme court will not interfere with the exercise of that discretion unless the allowance made is thought to be materially wrong. (Post, p. 17.) 7 CHANCERY PLEADING AND PRACTICE. Relief may be granted complainant under general prayer, upon facts appearing in bill and cross bill, to settle rights and end controversy. Where the bill does not specifically pray for the relief granted by the chancellor to the complainant, but the decree is warranted by the facts appearing from the bill and the cross bill, and by the prayer for general relief, and such decree settling the rights of all the parties and ending the controversy, or putting an end to the litigation between the parties, will be affirmed by the supreme court. (Post, pp. 17, 18.)
125 Tenn. 19Sherman v. State (1911)
1. MURDER IN THE SECOND DEGREE. Evidence sufficient to sustain conviction. The evidence is stated, reviewed, and held to he sufficient to sustain a conviction of murder in the second degree. (.Post, pp. 23-46, 60, 62.) 2. CRIMINAL LAW, Previous threats and acts of hostility do not constitute grounds of self-defense, when.' No matter how violent previous threats or acts of hostility against a defendant may he, they will not of themselves justify him in seeking and slaying his adversary upon the assumption that it is necessary to do so in order to save his life from the threatened danger; for to excuse the slayer, he must act upon an honest belief that it is necessary at the time to take the life of his adversary in order to save his own, and it must appear that there was a reasonable cause to excite this apprehension. (Post, pp. 43-46.) Cases cited and approved: Rippy v. State, 2 Head, 217; Williams v. State, 3 Heisk., 376; Jackson v. State, 6 Bax., 457. 3. ARGUMENT OF COUNSEL. Can afford no ground for new trial where no objection was made or exception taken ait the time. Objectionable argument or improper remarks of counsel afford no ground for a new trial where no objection is made or exception taken at the time of the argument; and the same rule applies with equal force to gestures and the other conduct of counsel indulged in during argument. (Post, pp. 47, 53.) Cases cited and approved: Smith v. State, 90 Tenn., 574; King v. State, 91 Tenn., 617; Morgan v. Duffey, 94 Tenn., 686; Ferguson v. Moore, 98 Tenn., 341. 4. SAME. Truth of improper argument and fact of exceptions thereto must be authenticated in bill of exceptions; inclusion of written motion for new trial so alleging or charging does not establish the truth or fact. The question whether or not due exception was taken to the objectionable argument or improper conduct of the State’s attorney is one of fact. A charge or allegation of such matter in a motion for a new trial is not evidence of the matter; and it is not sufficient to make such charges, but the charges must be authenticated or established in a proper way. The mere fact that the written grounds of a motion for a new trial aré included in the bill of exceptions constitutes no verification of the statements made in such motion; for such inclusion in a bill of exceptions only establishes that the statements or allegations were made on the motion, not that they are true. (Post, pp. 48, 49.) 5. NEW TRIALS. Facts and what transpired on trial cannot be established by affidavits upon motion for a new trial, but must be authenticated by trial judge in bill of exceptions. It is a well settled rule of practice that an uncorroborated affidavit of a convicted defendant will not sufficiently establish any fact on a motion for a new trial, so as to justify the granting of a new trial thereupon; and what transpired on the trial cannot be established by the affidavits of the convicted defendant or his attorneys; for süch matter must be authenticated by the trial judge, properly in narrative form in the bill of exceptions, and the fact of what was said and done in argument and the exceptions thereto can not be established by such affidavits, but must be authenticated by the trial judge in the bill of exceptions. (Post, pp. 49-53.) Cases cited and approved: Turner v. State, 4 Lea, 209; Brown v. State, 85 Tenn., 439; Hannum v. State, 90 Tenn., 652, 653. 6. SAME. Not granted for separation of jury in a criminal case where it is fully and satisfactorily shown that no prejudicial communication was had with them. A separation of the jury in a criminal trial may he explained by showing that those separated had no communication with other persons, or that such communication was upon subjects foreign to the trial, and where every circumstance and surrounding of the jurors while separated is fully and satisfactorily explained in so far as their contact with others is concerned, and it is shown that no communication was had with them in any wise reflecting upon the case on trial before them, a new trial will not be granted upon the ground of such separation. (Post, pp. 53-58, 60, 62.) Cases cited, reviewed, and approved: McLain v. State, 10 Yerg., 239; Stone v. State, 4 Humph., 26; Hines v. State, 8 Humph., 597; McElrath.v. State, 2 Swan, 378; Odie v. State, 6 Bax., 159; Cartwright v. State, 12 Lea, 620; King v. State, 91 Tenn., 617. 7. SAME. Same. Separation of jury in taking a walk, going to see a furnace, or going to a show constitutes no ground for a new trial, when; case in judgment. A separation of the jury by some of them taking a walk with an officer through the streets, while the others, with another officer, remained at the hotel; by some of them visiting a furnace, while the others stayed at the hotel, an officer being with each party, or set of separated jurors; or by some of them going, in charge of an officer, to a theater, while the others remained at the hotel in charge of another officer, constitutes no ground for a new trial of a criminal case, where it is fully and satisfactorily shown that no prejudicial communication was had with the separated jurors, and nothing occurred reflecting upon the case. (Post, pp. 53-62.) See citation of cases under the preceding headnote. 8. SAME. Findings of fact by trial judge on motion for a new • trial are binding upon the supreme court. It is an established rule that the findings of fact made by the trial judge on a motion for a new trial, where there is any evidence to sustain them, aTe binding upon the supreme court, even in criminal cases. (Post, p. 60.) Case cited and approved: Percer v. State, 118 Tenn., 765 (and citations). 9. CRIMINAL PROCEDURE. Officers permitting separation of jury and jurors separating from body of jury should be fined and punished. • The conduct of officers in permitting the separation of the jury is reprehensible, and such officers so offending and the jurors separating from the body of the jury should be fined and punished by the trial judge, though there was no prejudicial communication or reflection upon the case constituting grounds for a new trial. (Post, p. 61.) 10. NEW TRIALS. Not for moderate use of intoxicating liquors by some of the jury in a criminal case when no juror is affected by it. The drinking of intoxicating liquors by some of the jurors while trying a criminal case, when not used to excess but only in moderation, and where no juror became affected thereby, will not vitiate the verdict and constitutes no ground for a new trial. (Post, p. 62.) Cases cited and approved: Stephens v. State, 4 Humph., 26; Roe v. State, 11 Humph., 491; King v. State, 91 Tenn., 617.
125 Tenn. 64Spencer v. State (1911)
1. CRIMINAL LAW. Trial judge's suspension of judgment of conviction and sentence as a reformatory measure is void, and the judgment may be enforced at a succeeding term. The execution of a judgment of conviction fining the defendant and sentencing him to imprisonment may he suspended by the trial judge by proper reservation made at the trial term, but only for purposes connected with the termination of the cause, and the order should state the cause or reason for the delay, so-it may appear whether it be such as the law will recognize, and should specify the length of time for which it is to continue; and where it is apparent from the record that the stay of execution was granted by the trial judge solely as a disciplinary or reformatory measure, to secure future good behavior on the part of the prisoner, such stay of execution is merely void; and this being true, the trial court had the right and power, at a succeeding term, to order capias to issue to take the defendant into custody, to the end 'that he might serve his sentence. Cases cited and approved: Allen v. State, M. & Y., 294, 298, 299; Fults v. State, 2 Sneed, 236; Whitney v. State, 6 Lea, 247; -Allen v. State, 9 Lea, 651; Crane v. State, 94 Tenn., 98; State v. Dalton, 109 Tenn., 544; MeCampbell v. State, 116 Tenn., 98, 109; Neal v. State (Ga.), 42 L. R. A., 190; Collins, Ex parte (Cal. App.), 97 Pac., 188; Vance, Ex parte (Cal.), 13 L. R. A., 574; Webb, In re (Wis.), 27 L. R. A., 356; Tanner v. Wiggins, 54 Fla., 203; Barker, In re (Neb.), 113 N. W., 197; Williams, Re (Ala.), 10 L. R. A. (N. S.), 1129; State v. Langham (Minn.), 127 N. W., . 425; .People v. Allen, 155 Ill., 61; People v. Barrett, 202 Ill., 287; People v. Brown, 54 Mich., 15, 27, 28; Neal v. State, 104 Ga., 509; State v. Abbott (S. C.), 70 S. E., 6; Peterson, Ex parte (Idaho), 113 Pac., 729; State v. Voss (Iowa), 8 L. R. A., 767. 2. SAME. Judgment omitted to be entered upon verdict at trial term may be entered at a subsequent term; common law practice of suspension never existed here. While it is settled in this State that where by oversight judgment has not been entered in a criminal case upon the verdict at the trial term, it may and should be entered at a subsequent term,yet the common law practice of an indefinite suspension of judgment has never been recognized here, because the reason assigned for such practice does not exist here, where a new trial may be granted by the trial court, and upon its refusal, a full review of the facts and law may be had by appeal to the supreme court. {Post, pp. 67-70.) Cases cited and approved: Nolin v. State, 6 Cold., 14; State v. Miller, 6 Bax., 514; Greenfield v. State, 7 Bax., 18; Sharp v. State, 117 Tenn., 537. 3. SAME. Governor’s power to grant conditional pardons covers indefinite suspensions of sentence by trial court at common law. The power, conferred by statute (Shannon’s Code, section 7236) upon the governor, to grant pardons upon such conditions and with such restrictions and limitations as he may deem proper, not only covers the case of youths and the wrongly convicted in which the trial court could, at common law, indefinitely suspend sentence, but it covers the whole field of usefulness embraced by the common law rule as far as it applies to indefinite suspensions of sentence. {Post, 'pp. 70, 71.) Code cited and construed: See. 7236 (S.); sec. 6102 (M. & V.); see. 5261 (T. & S. and 1858).
125 Tenn. 80Still v. State (1911)
1. DYING DECLARATIONS. Defined; tending to implicate the accused are admissible; rule and its limitations are well established. It is unquestionably a well established rule that declarations made by one who subsequently dies from an unlawful act, while in extremis, and under the full consciousness of Ms condition and belief of Ms impending death, commonly called dying declarations, tending to implicate the accused, are competent upon Ms trial for the commission of the homicide resulting from the unlawful act; but tMs rule has its limitations which are equally well settled. (Post, pp. 85, 86). 2. SAME. Same. Foregoing rule is an exception to the general rule excluding hearsay evidence and requiring the State’s witnesses to testify in the presence of the accused. The rule admitting dying declarations as testimony in such eases is an exception to or a qualification of the general rule excluding hearsay testimony, and requiring witnesses to testify under the sanction of an oath or affirmation, and the constitutional right of the accused in a criminal trial to meet witnesses against him face to face. (Post, p. 85.) 3. SAME. Same. Same. Reason for the exception to or qualification of the general rule. The reason for this exception or qualification is placed by some upon the ground that the solemn and awful condition of the declarant approaching certain dissolution is equivalent to the sanction of an oath and equally powerful in impelling Mm to speak the'truth, and by others upon the ground of public policy and necessity to prevent the guilty from escaping pumshment by their own wrong in destroying the most important witness against them. (Post, p. 86) 4. SAME. To prove res gestae of homicide, but not past occurrences and motives. Dying declarations are incompetent and inadmissible to prove anything further than the res gestae of the homicide, that is, the immediate circumstances of the killing and the identity of the perpetrator of the crime, and are inadmissible to prove past occurrences, previous threats, and motives for the commission of the crime. (Post, pp. 84-96.) Cases cited and approved: Nelson v. State, 7 Humph., 543; Po-teete v. State, 9 Bax., 270; Leiber v. Commonwealth, 9 Bush. (Ky.), 11; Reynolds v. State, 68 Ala., 502; Sullivan v. State, 102 Ala., 135; Lipscomb v. State, 75 Miss.,. 559; State v. Shelton, 47 N. C., 360; State v. Perigo, 80 Iowa, 37; State v. Moody, 18 Wash., 165; People v. Pong Ah Sing, 64 Cal., 253; People v. Smith, 172 N. Y„ 210. 6. SAME. Same. Admission to prove previous threats, past occurrences, and motives, when prejudicial, and properly and seasonably objected to, constitute reversible error when. The admission of testimony of dying declarations tending to prove previous threats, past oeeurrances, and motives for the crime, when admitted over the defendant’s proper and seasonable objections, and when prejudicial to him, constitute reversible error. (Post, pp. 85, 93-96.) 6. CRIMINAL LAW. Trial by jury cannot, under the constitution, be denied by supreme court’s review of the facts after excluding incompetent and prejudicial evidence. The constitutional guaranty of a trial by jury means a trial upon competent legal testimony; and if the supreme court should pass finally upon the facts of the case, after excluding the incompetent and prejudicial testimony admitted, and determine that they warranted the verdict and judgment of sentence, it would be a denial of a jury trial under the constitution. (Post, pp. 96, 97.)
125 Tenn. 98Divine v. Unaka National Bank (1911)
1. STATE’S JURISDICTION. Remains over land bought or condemned by the United States for Its own use; qualification of rule. Where the United States buys or condemns land within a State for its own use, the jurisdiction of the State wherein the land lies remains the same as before, with the qualification that the State cannot interfere with the full, free, and perfect use for which it was acquired or in any way embarrass that use. (Post, pp. 106, 107.) Cases cited and approved: Railroad v. Lowe, 114 U. S., 525; Ohio v. Thomas, 173 U. S., 276. 2. SAME. Same. Safe’s reservation of right to serve process within ceded territory is limited to actions arising without that territory; rights enforced in State courts, when. Where land within a State is acquired by the United States, with the consent of the State, the jurisdiction of the United States over it is, under the federal constitution (art. 1, sec. 8, par. 17), complete and exclusive, and the State’s reservation of the right to serve civil and criminal process within the territory ceded is limited to causes of action arising outside of the ceded territory; but the laws of the State for the protection and enforcement of the municipal or private rights of individuals residing within the ceded territory continue in force, unless the United States provides legislation for such territory, and where jurisdiction is not given by federal laws to federal courts to assert and protect private rights, such rights may be enforced in the State courts. (Post, pp. 107, 108.) ■ Cases cited and approved: Railroad v. Lowe, 114 U. S., $25; Railroad v. McGlinn, 114 U., S., 542; Downes v. Bidwell, 182 U. S, 244, 298. 3. JURISDICTION. Must be conferred upon federal courts by federal constitution or statutes; no probate jurisdiction. . The federal courts have no jurisdiction, except that conferred by the federal constitution or acts of congress, and they have no probate powers, or authority to appoint an administrator. (Post, pp. 108, 109.) Cases cited t.nd approved: Turner v. Bank, 4 Dali., 8; United States v. Hudson, 7 Cranch, 32; United States v. Bevans, 3 Wheat., 337. 4. SAME. Of State and federal courts is concurrent unless the jurisdiction of the federal courts is made exclusive. The State courts have concurrent jurisdiction with the federal courts in all cases wherein the jurisdiction of the latter is not made exclusive, either by direct legislation or by necessary implication, or by such incompatibility with the existence of State authority that it could not be supposed, the State courts, should assume jurisdiction. (Post, pp. 108, 109.) Cases cited and approved: Claflin v. Houseman, 93 U. S., 130;-•Water Co. v. Defiance, 191 U. S., 194. 5. SAME. Federal officer in ceded territory may be sued instate courts for acts as a private citizen. A person holding a federal office within the territory acquired by the United States, with the consent of the State, who assumes-to exercise powers not appertaining to his office, or not conferred upon him by law, is so far forth not a federal officer, and not protected by his office, and may be sued in a State court embracing such territory, just as if he were a private citizen, by persons injured through such unlawful acts. (Post, p. 109.) Cases cited and approved: Slocum v. Mayberry, 2 Wheat., 1; Teal v. Felton, 12 How., 284; Buck v. Colbath, 3 Wall., 334; Scranton v. Wheeler, 179 U. S., 141, 151. 6. SAME. Probate jurisdiction for appointment of administrators is in State courts, and not'in federal courts, even though decedent died on territory ceded by State to federal government. No probate powers, or authority to appoint an administrator, have been conferred upon the federal courts; and, therefore, this power remains with the State courts. So, where an inmate of a national home for disabled soldiers, located on land ceded by the State to the federal government, subject to the State’s reservation of the right to serve civil and criminal process within the territory ceded, dies, the State court has probate jurisdiction of his' estate, and an administrator appointed by the proper State probate court has authority to compel the officers of such home to deliver to him the personal property and assets of the decedent. (Post, pp. 109, 110.) Code cited and construed: See. 3935 (S.); sec. 3043 (M. & Y.); sec. 2203 (T. & S. and 158). Cases cited and approved: Yonley v. Lavender, 21 Wall., 276; Byers v. McAuley, 149 TJ. S., 608; O’Callaghan v. O’Brien, 199 IT. S., 89; Bedford Quarries Co. v. Thomlinson, 36 C. C. A., 276. 7. BANKS AND BANKING. Bank cannot be compelled to pay certificate of deposit without its surrender, or indemnity against it, if lost. A.bank cannot be compelled to pay a certificate of deposit issued by it, without a surrender of the certificate, unless its production has become impossible on account of its loss, or for other reason, and then a bond of indemnity must be given. (Post, pp. 110, 111.) 8. CHANCERY PLEADING AND PRACTICE. Supreme court may remand cause for amended bill bringing in necessary parties, with right to renew demurrer, when. Where a bill is demurrable for want of necessary parties, the supreme court may .remand the cause, with leave to the complainant to file an amended bill, bringing in said necessary parties, with a view of obtaining a proper decree against them .as a prerequisite to relief against the party sued; and in ^default of the filing of such amended bill within a time to be fixed by tbe chancellor, tbe defendant will be given leave to renew tbe demurrer. (Post, p. 111.)
125 Tenn. 112Evans v. Evans (1911)
1. DIVORCE. Award of custody of minor child to its mother does not relieve its father from liability for its support. A father is liable for .the support of bis minor child, after a divorce has been obtained at the suit of the wife and the custody of the child awarded to her, when no provision was made in the divorce decree for the maintenance of the child. (Post, pp. 113-116.) Cases cited and approved: Spencer v. Spencer, 97 Minn., 56; Alvey v. Hartwig, 106 Md., 254. Case cited and distinguished: Toncray v. Toncray, 2 Shannon’s Cases, 408. 2. SAME. Same. Reasons for the foregoing rule. The reasons for the rule stated in the preceding headnote are that the law of nature and the law of the land impose upon the father the natural duty and primary obligation reasonably to support and maintain his minor children, and this duty and obligation cannot be evaded by his own wrong in giving his wife grounds for divorce and in rendering himself unsuitable as the custodian of his children. The father is not relieved from his obligation to support them, upon the ground that he is deprived of their services, and that services and support are 'reciprocal, because it is his own wrong and misconduct that works a forfeiture of his rights to their custody and services. (Post, pp. 116-119.) Cases cited and approved: Pretzinger v. Pretzinger, 45 Ohio St., 452.; Spencer v. Spencer, 97 Minn., 56; Alvey v. Hartwig, 106 Md., 254. 3. SAME. Same. Same. Father is only required to support his minor children in a manner commensurate with his means and station in life. Where the custody of a minor child has been awarded to the mother upon her obtaining a divorce from the father, he is only required to maintain and support the child in a manner commensurate with his means and station in life, and is not liable for an extravagant allowance. (Post, pp. 113, 119.)
125 Tenn. 120Bauhard v. Truluck (1911)
1. APPEALS. In chancellor's discretion is the only mode of review of interlocutory decrees preparing cause for final hearing. Under the statute (Acts 1903, ch. 248), authorizing chancellors, by consent of parties, to hear and determine, at chambers, certain matters relating to the preparation of cases for final hearing, and providing that chancellors may, in their discretion, allow appeals from such interlocutory decrees when pronounced as if the same were done at a regular term of the court, with certain limitations, the proceedings for the review of decrees so pronounced are limited to appeals in the discretion of the chancellor. Acts cited and construed: Acts 1903, ch. 248. Case cited and approved: Lindsay v. Allen, 112 Tenn., 637. 2. SAME. Final decrees pronounced and entered at chambers are reviewable upon writ of error as decrees of court in regular session. Under the statute - (Acts 1903, ch. 248, as amended by Acts 1905, ch. 427), authorizing chancellors, by consent of the parties, to hear and determine causes, upon the merits, at chambers, and to pronounce final decrees therein, and containing no limitation upon proceedings to review such decrees, final decrees so pronounced and entered at chambers are reviewable upon writ of error, and by all proceedings in error available to the losing party in causes finally determined by the court in regular session. Acts cited and. construed: Acts 1903, ch. 248; Acts 1905, ch. 427. Case cited, distinguished, and approved: Lindsay v. Allen, 112 Tenn., 637.
125 Tenn. 123Jacks v. Williams-Robinson Lumber Co. (1911)
1. NEW TRIALS. Grounds other than those relied- on in the circuit court for new trial cannot be assigned as error upon appeal. Where the losing party in the circuit court moved for a new trial only-upon the ground that the weight of the evidence preponderated greatly in his favor, he cannot upon appeal assign the ad- . ditional error that there was no evidence to support the verdict, especially where the trial court has a rule requiring parties moving for new trials to assign specifically the errors -relied upon; for it is a general rule that trial courts cannot he put in error on appeal upon questions of law or fact which have not been called to their attention. (Post, pp. 125-127.) Cases cited and approved: Wise v. Morgan, 101 Tenn., 273; Railroad v. Blair, 104 Tenn., 212; Railroad v. Johnson, 114 Tenn., 641. 2. SAME. Rules of circuit court that motions for new trials - must assign specific errors in writing will be sustained. It is competent and advisable for trial judges to promulgate rules that, upon motions for new trials, no errors, except such as are assigned in the written motion, will be considered; and such rules will be sustained and enforced by the supreme court. (Post, pp. 127, 128.) 3. SAME. Question whether there is no evidence to support verdict is one of law to be-determined first by trial judge. The question whether or not there is no evidence to support the verdict is one of law, for determination ,in the first instance by the trial judge, and until it is in some way presented to, and passed upon by, the trial judge, such question cannot be con- ■ sidered upon appeal. (Post, p. 128.) 4. SUPREME COURT PRACTICE. Appellant must specifically point out the errors complained of, and affirmatively show their existence. The supreme court will not search, the record at large to find errors; for the presumption is that the judgment of the lower court is correct, and the burden is upon the appellant specifically to point out the errors complained of, and affirmatively show that they exist. (Post, pp. 128, 129.) 5. SAME. Same. Any number of new trials upon the ground that there was no evidence to support the verdicts. The statute (section 4850 of Shannon’s Code) providing that not more than two new trials shall be granted to the same party is not applicable to a case in which there is no evidence to support the verdict; and where the record fails to show the grounds^ upon which the new trials were granted, the supreme court will presume that they were granted on the merits, and not for errors of law; that is, upon the ground that the evidence preponderated against the verdicts, and not upon the ground that there was no evidence to support the verdicts, nor upon errors of law, and the party who seeks to sustain the action of the court in granting a third or subsequent new trial must be able to show from the record that the new trials were granted upon some ground other than the merits as above defined. (Post, pp. 129, 130.) Code cited and construed; See. 4850 (S.); sec. 3835 (M. & V.); sec. 3122 (T. & S. and 1858). Cases cited and approved: Turner v. Ross, 1 Humph., ¿6; Ferrell v. Alder, 2 Swan, 77; Railroad v. Hackney, 1 Head, 169; Burton v. Gray, 10 Lea, 582; Iron Co. v. Dobson, 15 Lea, 416; Railroad v. Mahoney, 89 Tenn., 326.
125 Tenn. 131Crockett v. State (1911)
1. INDICTMENT. For assault with intent to commit murder in the first degree will support verdict of guilty of an attempt to commit voluntary manslaughter. An indictment for assault with intent to commit murder in the first degree will support a verdict of guilty of an attempt to commit voluntary manslaughter, under the statute (section 7195 of Shannon’s Code), providing that, upon an indictment for any offense consisting of different degrees, the jury may find the defendant guilty of any degree inferior to the degree charged, or of an attempt to commit the offense. (Post, pp. 132, 133.) Code cited and construed: See. 7195 (S.); sec. 6061 (M. & Y.); sec. 5222 (T. & S. and 1858). Cases cited and approved: Smith v. State, 2 Lea, 614; Lawless v. State, 4 Lea, 177; State v. Ragsdale, 10 Lea, 672; Stevens v. State, 91 Tenn., 726. 2. BILLS OF EXCEPTIONS. Matters not appearing in bill of exceptions, though appearing on a separate paper, cannot be considered. 'Matters not appearing in the bill of exceptions, though appearing upon a separate paper accompanying the record, cannot be considered upon appeal. (Post, p. 133.)
125 Tenn. 135Alpha Portland Cement Co. v. Oliver (1911)
1. SALES. Contract for delivery of goods in monthly installments is breached by purchaser’s failure to pay for any installment as stipulated; and seller may sue for damages sustained. Where a contract for the sale and. purehas.e of goods provides that they shall be delivered in approximately equal monthly quantities or installments for a period of ten months, and shall be paid for within thirty days after each delivery, the purchaser’s failure to pay for one or more installments according to the terms of such contract amounts to a breach of the contract by him, and the seller may treat such failure as going to the whole contract, and consider the entire contract terminated, and sue for the damages sustained. {Post, pp. 136-138.) Cases cited and approved: Foundry Co. v. Wheel Co., 113 Tenn., 370; Steel & Iron Co. v. Nailor, 9 App. Cas., 434; Norrington v. -Wright, 115 U. S„ 188. 2. SAME. Same. Measure of damages for breach of such contract by the purchaser. •Where a contract for the sale and purchase of goods to be delivered and taken in approximately equal monthly quantities or installments for a specified period, with payment for each installment to be made within a certain time, is breached by the purchaser’s failure to pay for any installment within the specified time, the seller, electing to treat the contract as terminated, may, where the contract price exceeds the market value, sue for and recover as damages the difference between the contract price and the market value at the delivery time and for the average quantity deliverable at each monthly period, and not such difference on the whole quantity at the expiration of the ¶ hole contract. (Post, pp. 136, 137, 138-142.) Cases cited and approved: Cole v. Zucarello, 104 Tenn., 65; May-berry v. Mill Co., 112 Tenn. 565; Lumber Co. v. Title Co., 121 Ill. App.; 298; Johnson v. Allen, 78 Ala., 392; Hosiery Co. v. Cotton Mills, 140 N. C., 452.
125 Tenn. 143State v. White (1911)
1. CRIMINAL LAW. Judgment must impose separate or several punishments against defendants jointly convicted, except in offenses requiring joint agency. Where two or more persons jointly presented or indicted are convicted, the judgment or sentence against them must impose separate or several punishments, unless the agency of two or more is the essence of the offense, as in conspiracy or riot; for each and every person who violates the criminal laws is subject to the whole penalty denounced. {Post, pp. 145, 146.) 2. SAME. Same. Punishment must be inflicted upon each for violation of four mile law. The provision of the four mile law (Acts 1909, ch.-l, restricting the sales of intoxicating liquors) that “any one” violating it “shall be punished by a fine for each offense of not less than fifty dollars nor more than five hundred dollars, and be imprisoned for a period of not less than thirty days nor more than six months,” is mandatory, so that, where four persons were jointly convicted of violating the act, the court was bound at least to impose the minimum punishment on each defendant, and could not impose a joint fine and imprisonment on all. {Post, p. 146.) Acts cited and construed: Acts 1909, ch. 1. Cases cited and approved: Prance v. State, 6 Bax., 478; Need-ener v. State, 1 Shannon’s Cases, 374; Tarrant v. State, 4 Lea, 483; McCampbell v. State, 116 Tenn., 109. 3. SAME. Sentence of imprisonment cannot be suspended until next term. The court has no jurisdiction to suspend, until the next term, that part of the sentence imposing imprisonment upon defendants convicted of the violation of a criminal statute. {Post, pp. 146, 147.) 4. SAME. Same. Unauthorized suspension of sentence of imprisonment presents no question after its expiration. Where the period of unauthorized suspension of the sentence of imprisonment has expired, such suspension presents no live question to be passed upon by the supreme court. (Post, p. 147.)
125 Tenn. 148Chattanooga Plow Co. v. Hays (1911)
1. TAXATION. Manufacturer of implements selling same to jobbers and commission merchants only is not a “dealer” or “merchant,” within the meaning of the taxation laws. A manufacturer of agricultural implements is not a “dealer” or “merchant,” within the meaning of our revenue and assessment laws (Acts 1907, ch. 602, secs. 8, 26, and 27, and Acts 1909, ch. 479, sec. 3), providing for the taxation of dealers and merchants where the sales of the manufactured articles are made, without a dealer’s profit, to jobbers and commission merchants only, and the only profit taken is for the manufacturing. {Post, pp. 150-158.) Acts cited and construed: Acts 1907, ch. 602, secs. 8, 26, 27; Acts 1909, ch. 479, sec. 3. Cases cited and distinguished: Webb v. State, 11 Lea, 662; Taylor v. Vincent, 12 Lea, 282; Kurth v. State, 86 Tenn., 137; Steel & Wire Co. v. Speed, 110 Tenn., 524; Kelly v. State, 123 Tenn., 516. 2. SAME. Construction of statutes by executive officers in favor of taxpayers, and long acquiesced in, is entitled to great consideration. A construction placed upon a statute by the officers whose duty it is to execute it is entitled to great consideration, especially is this so as respects statutes prescribing penalties or levying taxes and impositions, where the executive construction has been in favor of the persons affected, and acquiesced in by the State authorities. (Post, p. 155.) Cases cited and approved: Insurance Co. v. Hoge, 21 How., 35; United States v. Compañía, 209 U. S., 337; United States v. 1412 Gallons of Distilled Spirits, 10 Blatchf., 428. 8. SAME. Same. Statutes levying taxes will not be extended by implication beyond their clear import, and doubts will be resolved in favor of taxpayers. Statutes levying taxes or duties upon citizens will not be extended by implication beyond the clear import of the language used, nor will their operation be enlarged so as to embrace matters not specifically pointed out, although standing upon a close analogy; and all questions of doubt will be resolved against the government, and in favor of the citizen, because burdens are not to be imposed beyond what the statute expressly imports. (Post, p. 155.) Cases cited and approved: Memphis v. Bing, 94 Tenn., 644; English v. Crenshaw, 120 Tenn., 531; Crenshaw v. Moore, 124 Tenn., 528. 4. WORDS AND PHRASES. A “dealer” is defined. In the most restricted sense, a “dealer” is one who takes profit in the distribution of goods' and wares to the trade, in addition to the manufacturer’s profit. (Post, p. 156.) 5. SAME. Same. Manufacturers, merchants, and dealers are defined and distinguished; manufacturer becomes a merchant, when. A “manufacturer” is one engaged in making materials, raw or partly finished, into wares suitable for use. A “merchant” is markedly distinguished from a manufacturer, in that he sells to earn a profit, and the manufacturer sells to take a profit already earned. While a manufacturer selling his own manufactured articles is a dealer, still his dealings are merely incidental to his occupation of manufacturer. If a manufacturer deals as a merchant, either in his own wares or those of others, he is a merchant; and any course of business by which a dealer’s profit is added to that of the manufacturer would 'make the manufacturer a merchant. (Post, pp. 156-158.) Case cited, distinguished, and approved: Steel & Wire Co. v. Speed, 110 Tenn., 524.
125 Tenn. 159Smith v. Cross (1911)
1. STATUTES OF LIMITATIONS. Deed fraudulent and void as against minors may be an assurance of title under adverse possession. Although a deed of conveyance of land is fraudulent and void as against the minor owners, yet, if it purports on its face' to convey an estate in fee, it is an assurance of title, so that the statutes of limitations will run in favor of the adverse possessor holding under said deed, and will perfect his title after the requisite period of adverse possession. (Post, pp. 167-170.) Cases cited and approved: Gray v. Darby, M. & Y., 396; Dove v. Shields, 3 Yerg., 408; Vance v. Johnson, 10 Humph., 214; Blantire v. Whitaker, 11 Humph., 313, 317, 318; Clark v. Chase, 5 Sneed, 636; Hunter v. O’Neal, 4 Bax., 494; Thurston v. university, 4 Lea, 513 (and citations); Nelson v. Trigg, 4 Lea, 701 (and citations); Ramsey v. Quillen, 5 Lea, 184; McBee v. Bearden, 7 Lea, 731; Goodloe v. Pope, 3 Shannon’s Cases, 634; Hubbard v. Godfrey, 100 Tenn., 150; Boro v. Hidell, 122 Tenn., 80, 99. Case cited as overruled: Waterhouse v. Martin, Peck, 392, 409. 2. SAME. Husband jointly occupying wife’s land with her cannot assert adverse claim under adverse possession. The wife’s possession of land, held jointly with her husband, under an assurance of title conveying to her an estate in fee therein, presumptively inures to her benefit under the statutes of limitations, though the husband receives a grant from the State covering the same land which conveyed nothing because the State had previously granted the land; for the law will not permit the husband, while living with his wife and in joint possession of her land, or occupying her land with her, to assert an adverse claim to the land under adverse possession. (Post, pp. 170-172.) Constitution cited: Sched. 4 to const, of 1870. Cases cited and approved: Fancher v. De Montegre, 1 Head, 40, 41; Ramsey v. Quillen, 5 Lea, 184, 192; Templeton v. Twitty, 88 Tenn., 595; Woodruff v. Roysden, 105. Tenn., 491. 3. SAME. Same. Presumption that the possession is with the legal title. The legal presumption is that the possession of land is in the person having the legal title. (Post, p. 171.) Cases cited and approved: Foster v. Jordan, 2 Swan, 476, 480, 481; Welcker v. Staples, 88 Tenn., 49, 51; McLemore v. Duri-vage, 92 Tenn., 482, 492. 4. SAME. Same. Same. Wife’s land so acquired by adverse possession descends to heirs, subject to husband’s curtesy. Where husband and wife jointly hold the adverse possession of land under her assurance of title for more than seven successive years, the title becomes vested in her under the statute of limitation (section 4456 of Shannon’s Code); and upon her death descends to her heirs at law, subject to the husband’s tenancy by the curtesy. (Post, p. 172.) Code cited and construed: Sec. 4456 (S.); sec. 3459 (M. & V.); sec. 2763 (T. & S. and 1858). Case cited and approved: Templeton v. Twitty, 88 Tenn., 595. 5. SAME. Same. Same. Same. Tenant by curtesy or his grantees cannot acquire title adverse to remaindermen by adverse possession. Since a tenant by the curtesy is at least a quasi trustee for the remaindermen, and holds possession for the protection of the fee as well as of his own estate, he cannot impair the remaindermen’s interest by acquiring title adverse to them; and, therefore, neither he nor his grantees can acquire the fee in the land by adverse possession as against the remaindermen, because they have no right to possession, or to bring suit therefor until the falling in, of the life estate. (Post, pp. 172, 173.) Cases cited and approved: King v. Sharp, 6 Humph., 55; Vaden v. Vaden, 1 Head, 445; Carver v. Maxwell, 110 Tenn., 75, 83. 0. SAME. State’s second grant can only serve as an assurance of title to be made effective by adverse possession. The State’s grant is of no force to transmit title to land where the State had previously granted the same and has no interest left which it can grant or convey, and its second grant can only serve as an assurance of title to he made effective by seven years’ adverse possession thereunder. (Post, pp. 170, 171, 173, 174.) 7. SAME. Adverse possession, to be effective in perfecting title, must be held under a registered assurance of title. One does not acquire title to land by adverse possession under the State’s second grant not registered in the county in which the land lies, because under our statute (Acts 1895, ch. 38), the adverse possession must be held for seven years under a registered assurance of title. (Post, pp. 173, 174.) Acts cited and construed: Acts 1895, ch. 38. 8. SAME. Same. Erroneous registration of grant or deed was immaterial prior to statute requiring registration to make adverse possession effective to perfect title. Prior to the statute (Acts 1895, ch. 38), requiring the adverse possession to be held for seven years under a registered assurance of title, as a prerequisite to the acquisition of title by seven years’ adverse possession thereunder, the registration was not necessary to perfect title by adverse possession under the assurance of title; and, therefore, it was immaterial that the assurance of title was erroneously registered. (Post, pp. 173, 174.) ' Acts cited and construed: Acts 1895, ch. 38. Case cited and approved: Stewart v. Harris, 2 Swan, 656; McBee v. Bearden, 7 Be a, 731, 733. 9.REGISTRATION. Erroneous in description is immaterial, if sufficient description is registered to identify the land. A deed, as registered is sufficient, though it. is erroneously transcribed so as to cause confusion in the boundaries, where the registration contains the description as the land on which Josiah Terry lived, if the place is prominently located, on a public road, and well known. (Post, pp. 174, 175.) Dougherty v. Chestnutt, 86 Tenn., 1; Stauh v. Hampton, 117 Tenn., 706, 727. 10. SAME. Purpose of registration, aside from adverse possession, is to give notice and to prevent appropriation by grantor’s creditors. The purpose of registration, aside from that required to make adverse possession effective in perfecting title, is hut to give notice to subsequent innocent claimants under the maker of the deed, and to protect the land against appropriation by his creditors. (Post, p. 175.) Code cited and construed: Sec. 3752 (S.); sec. 2890 (M. & V.); sec. 2075 (T. & S. and 1858). 11. SAME. Has no bearing or relation to conflicting titles except as necessary to make deeds evidence. Registration has no hearing upon, and is unrelated to, a title claimed under another and altogether different line or source, save when the two come into conflict, and the question is whether a particular deed can be introduced in evidence by a plaintiff in ejectment, where objection is made thereto for want of registration. (Post, pp. 175, 176.) Case cited and approved: Wilkins v. McCorkle, 112 Tenn., 688, 699-702. Cases cited and distinguished: Napier v. Elam, 6 Yerg., 108; Ingram v. Morgan, 4 Humph., 66; Topp v. White, 12 Heisk., 165; Frizzell v. Rundle, 88 Tenn., 396, 398, 399; Embry v. Gal-breath, 110 Tenn., 297. 12. ESTOPPEL. Must be pleaded and proved. Estoppel by conduct, to be available, must be pleaded and proved. (Post, p. 176.) 13. SAME. Same. Party relying on estoppel must show that he was misled. Tbe party relying upon estoppel by conduct of the other party must show that he was misled thereby. (Post, p. 176.) 14. SAME. None to assert rights by prior failure to do so without knowledge or culpable negligence in acquiring knowledge of them. One cannot be estopped from asserting his rights because he failed to assert them at some prior time when he had no knowledge of them, unless his failure seasonably to acquire such knowledge was the result of culpable negligence. (Post, pp. 176, 177.) Cases cited and approved: Morris v. Moore, 11 Humph., 433; Moore v. Johnson, 7 Lea, 580, 583; Taylor v. Railroad, 86 Tenn., 228; Collins v. Williams, 98 Tenn., 525; Crabtree v. Bank, 108 Tenn., 488; Parkey v. Ramsey, 111 Tenn., 302, 307. 15. SAME. Defense is ineffective where facts are too indefinite. The defense of estoppel will not be effective where the facts are too indefinite to permit the defendants to base a solid defense on, as where the defense of estoppel is based upon the alleged fact that the complainants received from their. father all of the purchase money obtained by him from the sale of their land inherited from their mother, and the proof failed to show how much of such money was derived from said lands. (Post, p. 177.) 16. INNOCENT PURCHASER. Not as against a prior State grant. Every one who buys land takes the risk of a grant prior to that on which his title rests; but such grants are public records, and there need never be any real risk if the search for prior grants is prosecuted with thoroughness; and for failure to make such exhaustive search, no one can complain and successfully defend under the doctrine of innocent purchaser. (Post, p. 178.) Case cited and approved: Craig v. Leiper, 2 Yerg., 193, 196, 197. 17. REGISTRATION. Unregistered but proven deed is good between the parties and may be used in support of a defensive right, but not in support of an offensive right, when. A deed is good between the parties without acknowledgment or registration, and if it he proved aliunde, it may be used as an estoppel against the maker; and prior to the statute (Acts 1895, ch. 38), requiring assurances of title to be registered, to be effective in perfecting title under adverse possession, such unregistered but proven deeds could be used to support or defend an action of ejectment, and since said statute may still be used to support a defensive right under the second section of Acts 1819, ch. 28 (section 4458 of Shannon’s Code), but not under the first section (sections 4456 and 4457 of Shannon’s Code). (Post, pp. 178, 179.) Acts cited and construed: Acts 1819, ch. 28, secs. 1 and 2; Acts 1895, ch. 38. Cases cited and approved: Stewart v. Harris, 2 Swan, 656; McBee v. Bearden, 7 Lea, 731, 733; Kittel v. Steger, 121 Tenn., 400. 18. MARRIED WOMEN. Can only convey her lands by deed with privy examination, and not by title bond. It is well established in this State that a married woman can only convey her lands by deed with privy examination, and cannot convey by her title bond, nor is she estopped by her title bond without refunding the purchase money, except perhaps where it was paid into her own hands. (Post, pp. 179, 180.) Case cited and approved: Bradshaw v. Van Yalkenburg, 97 Tenn., 316, 323. 19. EJECTMENT. In chancery on condition that purchase money received be charged on the land, when. The money paid by defendant in purchasing, at judicial sale, the land sought to be recovered in ejectment, and which was distributed among the complainants as if they inherited the land from their father, whereas they inherited it from their mother, together with the interest thereon, was properly charged on the land as a condition to their recovery of the same in ejectment in chancery as the heirs of their mother. (Post, p. 180.) 20. SAME. Mesne profits to be set off by permanent Improvements and taxes paid. The mesne profits should be set off in- ejectment by such amount as the improvements permanently enhanced the value of the land, and by the amount of the taxes paid by the defendant. (Post, pp. 180, 181.)
125 Tenn. 182Leach v. Cowan (1911)
1. ADMINISTRATION. Executors are entitled to reasonable compensation under statute. Under the express provisions of statute (section 4037 of Shannon’s Code), executors are entitled to reasonable compensation. (Post, p. 195.) Code cited and construed: Sec. 4037 (S.); sec. 3142 (M. & V.); sec. 2301 (T. & S. and 1858). 2. TRUSTS AND TRUSTEES. Trustees under wills are entitled to compensation without statute. Trustees under wills are entitled to compensation in this State, though at common law trustees were not entitled to compensation for their services, and no statute giving trustees under wills compensation has been enacted. (Post,' pp. 195-198.) Cases cited and approved: Coffee v. Ruffin, 4 Cold., 524; Daniel v. Pain, 5 Lea, 258; Vaccaro v. Cicalla, 89 Tenn., 70; Barney v. Saunders, 16 How., 541. 3. WILLS. Bequests of “net income” of residuary fund does not charge the expenses of the administration and trust upon such income, when. Where the testator gave certain sums of money in trust, the income of which was to be paid to certain legatees during life, and then devised, and bequeathed all the rest and residue of his estate in trust, “the net rents, interest, or income” of which was to be paid to his three nieces named, in certain portions, and upon their death, to their respective children during their lives; and appointed two of the said nieces, to whom the bulk of the estate was given, and a nephew, to whom a comparatively small sum was given, joint executors and trustees under the will,, with a provision for the appointment of their successors, but without any express provision for compensation, it is held that the word “net,” used to qualify the “rents, interest, or income” payable to the said residuary legatees, if not inadvertent, does not show any intention on the part of the testator to impose upon the income thus given to them the burden of hearing all the expenses of the trust, including the compensation of the executors and trustees. (Post, pp. 188-193, 198-201.) 4. TRUSTS AND TRUSTEES. Testamentary trustees are entitled to compensation, though' a bookkeeper performs the clerical work, and an attorney performs legal services. Where the executors and testamentary trustees have given careful, diligent, and intelligent attention to the trust, and have borne the responsibility and burden of management devolved • upon them, they are entitled to compensation, although many of their duties were performed by an attorney and a bookkeeper, where the bookkeeper did only clerical work, and where nothing was left for the attorney except what was usual under such circumstances. (Post, .p. 201.) 5. SAME. Compensation of $3,600 per annum for management of a $750,000 trust, with a $50,000 income, is reasonable, when. Where a complicated testamentary trust, amounting to about seven hundred and fifty thousand dollars, with an annual income of about fifty thousand dollars, is carefully, diligently, and ably administered and managed by the executors and testamentary trustees, an allowance of thirty-six hundred dollars per annum, made as compensation for three trustees collectively, is reasonable. (Post, pp. 202, 203.) 6. ADMINISTRATION. Settlements are prima facie correct, even as to amount of compensation allowed, when. Settlements by executors, made in the county court after notice to all the parties, who were present in the person of their attorney and guardian, are prima facie evidence of their correctness, even as to amount of compensation allowed the executors, and can only be attacked by a bill to surcharge and falsify the accounts. (Post, p. 203.) Case cited and approved: Matlock v. Rice, 6 Heisk., 33, 38. 7. TRUSTS AND TRUSTEES. Question as to jurisdiction of county court to pass their accounts is reserved. The question whether the county court has jurisdiction to pass the accounts of testamentary trustees in cases other than upon the death, resignation, or removal of an old trustee and the appointment of a new one is reserved, and not determined, because it is not necessary to consider the question in a case . where the evidence satisfies the court that the allowance of compensation to such trustees, made by the county court settlement, was proper. (Post, pp. 203, 204.) Code cited and construed: Secs. 3529, 3530, 5414 et seq., 6031, 6070 (S.); secs. 2737, 2738, 4393 et seq., 4982, 5004 (M. & V.); secs. 1979, 1980, 3648 et seq., 4204, 4232 (T. & S. and 1858). 8. SETTLEMENTS IN COUNTY COURT. May be questioned by general bill, when; and can be questioned only by bill to surcharge and falsify, when; how infants are affected by. Settlements in the county court in the usual course, without' notice, while prima facie correct, may be questioned by a general bill without the necessity of surcharging and falsifying the accounts; but if notice is given, and, for a stronger reason, if the parties attend, there must be a bill to surcharge and falsify the account before it can be questioned. Infants who do not attend, by their guardian, the settlements in which they are interested, although notified, may question such settlements by general bill; but, if they attend by their guardians, they can only question such settlements by a bill to surcharge and falsify the account. (Post, pp. 205, 206.) Cases cited and approved: Turney v. Williams, 7 Yerg., 172; Elrod v. Lancaster, 2 Head, 575; Milly v. Harrison, 7 Cold., 213; Shields v. Alsup, 5 Lea, 513; Cannon v. Apperson, 14 Lea, 581; Murray v. Luna, 86 Tenn., 332; Alvis v. Oglesby, 87 Tenn., 183; Evertson v. Tappen, 5 John. Chy. (N. Y.), 497, 511, 9.TRUSTS AND TRUSTEES. Claim allowed In county court settlement, after full investigation by those adversely affected and represented, will not be stricken out, when. Where one of the testamentary trustees presented a claim against the trust estate, which, before it was allowed in the county court settlement, was fully investigated by the other two testamentary trustees, who were very adversely affected by its allowance, and all parties in interest and adversely affected thereby were represented, and there was no fraud, and no new evidence was produced, the claim cannot be stricken out of the account, even under a bill to surcharge and falsify. (Post, pp. 204-206.) 10. SETTLEMENTS IN COUNTY COURT. Instance of bill to “surcharge and falsify.” A bill against testamentary trustees, charging mismanagement and seeking to hold them liable on Various claims, complaining of the compensation allowed them and especially of an item paid on settlement of a claim of one of the trustees against the estate, is a bill to “surcharge and falsify” the account or settlement in the county court. (Post, p. 206.) 11. PAYMENT. Recovery of money paid or property conveyed under mistake of law,' when and when not. Money paid or property conveyed under a mistake of law may be recovered, where it would be unconscionable for the party who obtains the advantage in such transaction to retain it; but though there was a clear mistake of law, yet if the party benefited may retain the advantage in good conscience, neither the chancery court, nor a court of law will give relief. (Post, pp. 206, 207.) Cases cited and approved: Drew v. Clarke, Cooke, 374, 380; Trigg v. Read, 5 Humph., 529, 532-535; Sparks v. White, 7 Humph., 86, 90; Farnsworth v. Dinsmore, 2 Swan, 38, 42; King v. Doolittle, 1 Head, 78, 84-88; Dalton v. Wolfe, 11 Heisk., 498, 502; Warren v. Williamson, 8 Bax., 427, 431; Spurlock v. Brown, 91 Tenn., 241, 261; Northrop v. Graves, 19 Conn., 548; Baker v. Massey, 50 Iowa, 399, 403. 12. SAME. Same. No recovery of claim of one executor and testamentary trustee allowed and paid after full Investigation and representation of all the parties, when. Where one of the three- executors and testamentary trustees presented a claim against the testator’s estate, evidenced by a check given to him by the testator (an uncle) as a marriage present, and was again taken possession of by the testator only to preserve it, and such claim was allowed and paid, after full investigation and representation of all the parties, the beneficiaries of the estate adversely affected thereby, and subsequently objecting to the item, stand in the attitude of one who.has made a voluntary payment of money, with knowledge of all the facts, and a court of equity will not grant relief, since said trustee can retain the money with a good conscience. (.Post, pp. 207, 208.)
125 Tenn. 209Logan v. Brown (1911)
1. PRIVILEGE TAXES. Resident wholesale' liquor dealer purchasing stock out of State is liable for privilege tax imposed by State statute. Under the act of congress, known as the Wilson act (act of Aug. 8, 1890, ch. 728, 26 Stat., 813), providing that all intoxicating liquors transported into a State, and remaining .therein for consumption, sale, or storage, shall, upon arrival therein, he subject to the operation of the laws in such State, enacted in the exercise of its police power, to the same extent as though such liquors had been produced therein, and shall not he exempt therefrom by reason of being introduced in original packages, the fact that a resident wholesale liquor dealer purchased all his stock without the State would not render a wholesaler’s privilege tax imposed by a State statute violative of the commerce clause (art. 1, sec. 8) of the federal constitution. {Post, pp. 211-215.) Acts cited and construed: Acts 1909, ch. 479. 2. TAXATION. Goods imported into this State for reshipment and distribution in other States are subject to taxation here. Goods imported into this State, for the express purpose of reshipment and distribution to parties outside of the State, have come “to rest” within the limits of the State, and are, therefore, subject to taxation. (Post, p. 215.) Cases cited and approved: American Steel & Wire Co. v. Speed, 192 U. S„ 500; General Oil Co. v. Crain, 209 U. S., 211. .3. INTOXICATING LIQUORS. Subject to police regulation by exaction of a license fee from dealer. The liquor traffic is a well recognized subject of police regulation; and the exaction of a license fee from a liquor u dealer is aD ordinary exercise of police power. (Post, p. 216.) 4. INTERSTATE COMMERCE. Imposition of privilege tax on wholesaler of liquors In this State Imported from other States and sold Into other States is not a regulation of. The purchaser of intoxicating liquors at wholesale without the State, who stores them at his .place of business in this State, and, upon receiving mail orders for same from purchasers without the State, breaks the packages in which they were received, and repacks them in suitable quantities to fill the orders, and ships the same to purchasers without the State, receiving payment by checks or money orders through the mail, and making no sales to persons within the State, may be subjected to the privilege tax imposed by statute upon wholesalers of intoxicating liquors without violating the commerce clause (art. 1, sec. 8) of the federal constitution; for the imposition of such tax on such business is not a regulation of interstate commerce. (Post, pp. 215, 216.) Cases cited and approved: Fanning v. Gregoire, 16 How., 534; Conway v. Taylor, 1 Black, 603; Ferry Co. v. East St. Louis, 107 U. S., 365. 5. INTOXICATING LIQUORS. Sale for all nonbeverage purposes under State and federal license for such business. One having a license from the federal government may lawfully sell intoxicating liquors for medicinal, mechanical, scientific, culinary, and all other purposes, except for beverage purposes alone, upon obtaining a license from the State or paying the privilege tax imposed for such business. (Post, pp. 217-219.) Cases cited and approved: Kelly v. State, 123 Tenn., 516; Fick-len v. Taxing District, 145 TJ. S., 1. 6. SAME. Purchasing and receiving intoxicating liquors for sale and reshipment out of the State may be subjected to privilege tax by State. Where a liquor dealer has his place of business in this State where he receives and stores intoxicating liquors produced without the State, and here prepares the same for reshipment to purchasers in other States, this State may declare his acts a privilege, and tax him for such. (Post, pp. 219, 220.) 7. PRIVILEGE TAXES. Dealer is not relieved because he . receives all his goods from other States and resells them to parties in other States. The fact that a dealer, engaged in a business or occupation, imports his goods from other States, and after storing them here, sells and ships them to purchasers in other States, will not relieve him from an occupation tax. (Post, pp. 220-222.) Cases cited and approved: Woodruff v. Parham, 8 Wall., 128; Brown v. Houston, 114 II. S., 622; Cargill v. Minnesota, 180 U. S., 452; American Steel & Wire Co. v. Speed, 192 U. S., 500.
125 Tenn. 223Griswold v. Davis (1911)
1. BILLS AND NOTES. Payment must be made to the holder or his agent. As a general proposition the maker of a negotiable promissory note can satisfy it only by payment to the holder or to his duly authorized agent for that purpose. (Post, p. 229.) Case cited and approved: Marling v. Nommensen, 127 Wis., 363. 2. SAME. Same. Payment to unauthorized agent not in possession of the securities does not protect the debtor; burden to show special authority. As a general rule the debtor is not justified in paying the principal debt to an agent of the holder who is not expressly authorized to receive it, unless the agent, at the time of payment, has in his possession the securities paid, and makes that fact known to the debtor; and, if the person to whom payment is made is not in possession of the written securities, the burden is upon the debtor to show that the one to whom payment was made had special authority to receive payment, or that he was represented by the creditor to have such authority. (Post, pp. 229, 230.) 3. SAME. Same. Same. Payment to unauthorized agent without apparent authority evidenced by possession of the securities does not protect the debtor. One without actual authority to do so, but assuming to act as the agent of another in receiving payment of the principal debt, and who has not the securities in his possession, cannot be deemed to have such authority; and it is indispensable to investing him with such apparent authority that he have the possession of the securities, and that knowledge of such possession be brought home to the debtor at the time of making the payment. (Post, pp. 230-233.) Cases cited and approved: Smith v. Kidd, 68 N. Y., 130; Crane v. Gruenwald, 120 N. Y., 274; 'Williams v. Walker, 2 Sandf. Chy. (N. Y.), 325; Lawson v. Nicholson, 52 N. J. Eg., 821; Wilson y. Campbell, 110 Mich., 580. Cases cited, distinguished, and disapproved; Campbell v. Gow-ans, 35 Utah, 268; Quinn v. Dresbach, 75 Cal., 159; Morgan v. Neil, 7 Idaho, 629; Spencer v. Wilson, 4 Munf. (Va.), 130. 4. SAME. Purchased and paid for by mutual credits and charges on deposit account of purchaser with seller constitutes an innocent holder, notwithstanding resale before maturity and taking back after maturity. Where the complainants purchasing a note of the payee had money on deposit with him as banker to their credit, and paid for the same before its maturity by crediting such payee and banker with the value of the note, and by the banker’s charging its value against the deposit account, they were purchasers for value and innocent holders; and it seems that where such complainants sold said note to another innocent purchaser for value before its maturity, and after its maturity paid the same and took it back, they will be protected as innocent holders. (Post, pp. 227, 233, 234.)
125 Tenn. 235Taylor v. Carr (1911)
1. CONTESTED ELECTIONS. Cannot be determined by city council without previously established rules under statute conferring the power under previously established rules. Under the charter of the town of La Follette (Acts 1891, ch. 161), which provides (by its eighth section) that the city council shall be the sole judge of the qualification and election of its own members, and (by its thirteenth section) that a contest over the election of any city officer shall be heard and determined by the city council under such rules as it shall have previously established for such hearing, the council has no primary right or jurisdiction to determine the' contested election of a member of the council, where it has not previously established any rules or methods for conducting such a contest, as required by the charter. (.Post, pp. 242, 243.) 'Acts cited and construed: Acts 1897, ch. 161, secs. 8 and 13. Cases cited and approved: Veile v. Funck, 17 Iowa, 365; Darrow v. People, 8 Colo., 417. 2. SAME. Supervisory jurisdiction of circuit court over con tested election cases before a city council. The circuit court has supervisory jurisdiction by certiorari over the proceedings of a city council in a contested election case. (Post, p. 243.) Case cited and approved: Staples, v. Brown, 113 Tenn., 643. 3. SAME. In circuit court, where no other provision is made. Where no other provision is made for the contest of an election, it is triable in the circuit court, under section 6063 of Shannon’s Code; and where the primary jurisdiction of a city council is ineffective because of its failure previously to establish rules for conducting such contests, as required by its charter, the primary jurisdiction is in the circuit court. (Post, pp. 243, 244.) Code cited and construed: Sec. 6063 (S.); sec. 4997 (M. & V.); sec. 4225 (T. & S. and 1858). Case cited and approved: Baker v. Mitchell, 105 Tenn., 610. 4. MUNICIPAL CORPORATIONS. City council of La Follette is composed of the aldermen, and mayor Is not a member. Under the charter of the town of La Follette (Acts 1897, ch. 161, as amended by Acts 1901, ch. 460), the city council is composed only of the aldermen, and the mayor is not a member or part of it. (Post, p. 244.) Acts cited and construed: Acts 1897, ch. 161; Acts 1901, ch. 460. 5. CONTESTED ELECTIONS. Original jurisdiction is in circuit court, and only cumulative jurisdiction is in city council, when. Under the charter of the town of La Follette (Acts 1897, ch. 161) providing (by its thirteenth section) that a contest over the election of any city officer shall be heard and determined by the council, under such rules as it shall have previously established for such hearing, and under section 6063 of Shannon’s Code giving the circuit court jurisdiction of contested elections where such jurisdiction is not conferred upon some other tribunal, the city council is not a “judicial tribunal,” within the-sense and meaning of said section, so that the circuit court has original jurisdiction of a contested election for mayor of such town; for the jurisdiction conferred upon the city council is merely cumulative,' and the circuit court continues to hold its original jurisdiction. (Post, pp. 244, 245, 249.) Code cited and construed: Sec. 6063 (S.); sec. 4997 (M. & V.); sec. 4225 (T. & S. and 1858). Acts cited and construed: Acts 1897, ch. 161, sec. 13. Cases cited and approved: Crump y. Williams, at Jackson, April term, 1910; People, ex rel., v. Hall, 80 N. Y., 117; McVeaney v. Mayor, 80 N. Y., 185; Veile v. Funek, 17 Iowa, 365; State, ex rel., y. Kraft, 18 Ore., 560; Commonwealth, v. Allen, 70 Pa., 469; State, ex rel., v. Kempf, 69 Wis., 470; State v. McKinnon, 8' Ore., 492; Kendell v. Camden, 47 N. J. Law, 64; State, ex rel., v. Fitzgerald, 44 Mo., 425; People v. Londoner, 13 Colo., 303; State, ex rel., v. Anderson, 26 Fla., 254; Commonwealth, v. McCloskey, 2 Rawle (Pa.), 309. 6. SAME. Grounds may be stated in two aspects based upon the invalidity and the validity of the election. Where the petition in a contested election case, over the office of mayor, asks, first, that the election he declared void, and the petitioner be declared the incumbent holding over; and, secondly, that petitioner be declared the successful candidate, in case the court should hold that the election was not invalid, but was a legal election, the grounds of the contest are stated in two aspects, which may be united in one petition. (Post, pp. 245, 247.) Case cited and approved: Maloney v. Collier, 112 Tenn., 78, 102, 103. 7. ELECTIONS. To be held under the Dortch law in cities in civil districts of 2,500 population. A city election in an incorporated town in- a civil district containing a population of twenty-five hundred is properly held under the Dortch law (Acts 1890, ex. ses., ch. 24, sec. 2; Acts 1891, eh. 225; Acts 1897, ch. 17), and not under the uniform ballot law (Acts 1891, ex. ses., ch. 21; Acts 1893, ch. 101. (Post, p. 246.) 8. CONTESTED ELECTIONS. Petition alleging petitioner’s election by a majority vote, wrongfully revised by commissioners of election so as to give contestee a majority, is not subject to demurrer. Where the petition in a contested election case, over the office of mayor, alleges that the returns made up by the election officers under the Dortch law (Acts 1890, ex. ses., ch. 24; Acts 1891, ch. 225; Acts 1897, ch. 17), then and there in force, gave to the petitioner a majority of the votes, that he received 190 votes and the contestee 185 votes, hut that, when these returns were sent to the commissioners of elections, they assumed to go behind the poll lists and tally sheets, to examine the original ballots, and to throw out votes, and that, by such action, the result was so changed as to give the contestee a majority, to whom a certificate was thereupon issued, a demurrer to such petition upon the alleged ground that it shows no case in that it admits that the contestee received a majority of the votes cast under the Dortch law is bad, because the petition does not admit what the demurrer assumes that it admits. (Post, pp. 246-248.) 9.SAME. Not jury cases. Election contests are not jury cases. (Post, pp. 249, 250.) Cases cited and approved: Blackburn v. Vick, 2 Heisk., 377, 383'; Moore v. Sharp, 98 Tenn., 491, 494; Shields v. McMahan, 112 Tenn., 4, 5 (and authorities cited); Corey v. Lugar, 62 Ind., 60; Pedigo v. Grimes, 113 Ind., 148; Hughes v. Holman, 23 Ore., 481; Ewing v. Pilley, 43 Pa., 384; Goran v. Jackson, 32 Ark., 553; Wise v. Martin, 36 Ark., 305; Ford v. Wright, 13 Minn., 518. 10. JURY TRIALS. Amendment of statute as to method of calling for jury, but not so as to extend the number of jury cases. The statute (Acts 1875, ch. 4), providing a method of demanding a jury in cases then triable by jury, was amended by a subsequent statute (Acts 1889, ch. 220), as to the method of calling for a jury, but not so as to extend the number of jury cases. (Post, p. 250.) ■ - Acts cited and construed: Acts 1875, ch. 4; Acts 1889, ch. 220. 11. SAME. Order placing contested election case upon the jury docket may be changed to nonjury docket at a subsequent term; practice points; “merits of controversy.” The action of the trial judge in a contested election case in changing the case from the jury docket to the nonjury docket, at a subsequent term, after an order had been made at a prior term placing it upon the jury docket, but on the faith of which no steps had been taken by either party, affecting the merits, is not erroneous, because election contests are not jury cases, and such former order was simply a point of practice in the preparation of the case which was in the discretion of tho court, since the rule that trial judges cannot, at subsequent terms, change orders made at former terms, does not apply to mere practice in the preparation of the case, but only to the “merits of the controversy,” which term is not confined to the points in actual litigation, but includes orders on points of practice, where steps affecting the merits have been taken upon the faith of such orders. (Post, pp. 250, 251.) 12. CONTESTED ELECTIONS. Petition charging petitioner’s election on the face of the returns, and that the returns were illegality changed into a majority for contestee, states a case for petitioner. A petition in a contested election case, over the office of mayor, which charges that on the face of the returns the petitioner received a majority of five, and that the commissioners of election illegally assumed to purge the returns by casting out sixteen to eighteen ballots, which had been cast for the petitioner, thereby changing the result into a majority in favor of the contestee, states a case in favor of the petitioner. (Post, p. 251.) 13. SAME. Amendment of answer will not be allowed after petitioner has closed his evidence, when. ■Where, after the trial of a contested election case had progressed two days, after a great many witnesses had been examined, and a great volume of evidence had been introduced, and after the petitioners had closed their evidence, and after the defendants had begun their testimony, the defendants asked leave to amend their answer, a denial of the leave to amend was proper, as the amendment was offered too late. (Post, pp. 251-253.) _ 14. SAME. Amendment of answer involving the right of commissioners of elections to go behind the returns is without merit. The commissioners of elections have no power to go behind the returns, and a proposed amendment to the defendant’s answer, based on the theory that they had such power, is without merit. (Post, p. 253.) 15. SAME. Amendment inviting court to recount ballots, without allegation of the object of the recounting, is insufficient, and is properly refused. Where the proposed amendment to the answer in a contested election case in effect invited the circuit court to make a recount of the ballots generally, without any allegation as to the particular matters to be determined by such recounting, other than the general result of the election, such proposed amendment was insufficient to enable the court to exercise that power, and was properly refused by the'trial judge. (Post, p. 253.) 16. SAME. Commissioners of elections cannot go behind the returns and recount the ballots, but must preserve the ballots under seal for use in a contest. Under Acts 1907, ch. 436, requiring, by section 15, that the officer holding the election shall deliver the polls or returns of the election, sealed as received, together with the ballots cast; to the commissioners of elections, and requiring, by section 16, that, on the first Monday after the election, the commissioners of elections shall file the said polls and returns at the courthouse, and certify in writing the results shown thereby, and deliver to each person elected a certificate of election, and requiring, by sections 17 and 18, the preservation of the poll lists and tally sheets, the duties of the commissioners of elections are only ministerial, and not judicial, and they cannot go behind the returns and examine and recount the ballots, but they must preserve the ballots, under seal as delivered to them, for the use of the parties in the case of a contest. (Post, pp. 253-257.) Code cited and construed: Secs. 1268, 1270-1277, 1279, 1280, 1283 (S.). Acts cited and construed: Acts 1907, ch. 436, secs. 16-18. Cases cited and approved: State, ex rel.', v. Wright, 10 Heisk., 237, 262-255; State, ex rel., v. Board of Inspectors, 6 Lea, .12, 24, 25; State, ex rel., v. Gossett, 9 Lea, 644. 17. ELECTIONS. Ballots perforated by mistake and not so marked for identification are valid. Ballots perforated by mistake, and not so marked hy the voters for purposes of identification, are valid. (Posf, pp. 258, 259.)
125 Tenn. 260Southern Railway Co. v. Brooks (1911)
1. COMMON CARRiERS. Duties of railroad companies to prevent personal injuries to passengers; damages for failure. It is tke duty of railroad companies, as common carriers of passengers, to exercise the highest practicable degree of care and skill to prevent injury, though they are not insurers of their safety; and for failure to do so, they are liable in damages for all injuries sustained by passengers. (Post, p. 264.) 2. RAILROADS. Statute prescribing precautions for prevention of accidents is imperative and mandatory. The statute (Shannon’s Code, sections 1574-1576) requiring railroad companies to keep some person on their locomotives always upon the lookout ahead, and, when any person, animal, or other obstruction appears upon the road, to observe certain precautions, and to employ every possible means to stop the train and prevent an accident, and exempting them from liability upon their observance of said requirements, and subjecting them to liability for their nonobservance thereof, is imperative and mandatory. (Post, pp. 264-267.) Code cited and construed: Secs. 1574-1576 (S.); secs. 1298-1300 (M. & V.); secs. 1166-1168 (T. & S. and 1858). Cases cited and approved: Railroad v. Connor, 9 Heisk., 23; Hill v. Railroad, 9 Heisk., 823; Railroad v. Scott, 87 Tenn., 501; Railroad v. Foster, 88 Tenn., 679; Rapid Transit Co. v. Walton, 105 Tenn., 417. Cases cited and distinguished: Routon v. Railroad, 1 Shannon’s Cases, 528; Railroad v. Troxlee, 1 Lea, 521; Railroad v. Selcer, 7 Lea, 558. 3. SAME. Duty safely to carry passengers is paramount to all others, and is superior to observance of statutory precautions, when and when not. The duty of railroad companies safely to carry and deliver their passengers is paramount to all others, and is superior to the statutory requirements and precautions stated in the preceding headnote; and the statutory precautions should not he observed, when to do so would imminently imperil the lives and limbs of passengers and employees on the train; but these precautions should be observed when human life is in danger on the road, and the probability of slight injuries to passengers and employees, or even serious injuries growing out of unusual positions which they may at the time occupy, will not excuse the observance of such precautions for the protection of the life of a trespasser. However, where compliance with the statutory precautions will, with reasonable certainty, imperil the lives or limbs of passengers, such compliance should not be made; but where no great danger to passengers will ordinarly follow, or can be anticipated with reasonable certainty, the statute must be observed, especially in favor of human life; and a railroad company shall not be liable for damages resulting from its observance of these rules. (Post, pp. 267-269.) Code cited and construed: Secs. 1574-1576 (S'.); secs. 1298-1300 (M. & V.); secs. 1166-1168 (T. & S. and 1858).
125 Tenn. 270Home Telephone Co. v. People's Telephone & Telegraph Co. (1911)
1. CONSTITUTIONAL LAW. Statutes long treated as constitutional will not be declared unconstitutional except for clearest and most undoubted reasons. When statutes have been long treated by the courts as constitutional, and important rights have been based thereon, the courts may thereafter refuse to consider the question of their unconstitutionality, and nothing could induce the courts to declare such statutes unconstitutional, except the clearest and most undoubted reasons. (Post, pp. 278-280.) Cases eited and approved: Richardson v. Young, 122 Tenn., 471, 517; Kelly v. State, 123 Tenn., 516, 548; Ferris v. Coover, 11 Cal., 175; Linck v. Litchfield, 141 Ill., 469; Nye v. Foreman, 215 Ill., 285, 288; Rumsey v. People, 19 N. Y., 41, 52-58; Kenney v. Hudspeth, 59 N. J. Law, 504, 532, 533; Terre Haute v. Railroad, 149 Ind., 174, 186; Levin v. United States, 128 Fed. 826, 829, 63 C. C. A., 476. 2. SAME. Same. Acts 1885, ch. 66, has been so long treated as constitutional that It will not be now declared unconstitutional. Acts 1885, ch. 66, has been on our statute books for more than a quarter of a century; and it has been tacitly treated by the courts, the bar, and the people as constitutional, except as to the formality of its passage settled in its favor, and many important and valuable rights have been based thereon, and nothing could induce the supreme court now to declare it unconstitutional, except the clearest and most undoubted reasons. (Post, pp. 278-280.) Acts cited and construed: Acts 1885, ch. 66. Cases cited and approved: Telegraph Co. v. Nashville, 118 Tenn. 1; Vaught v. Telephone Co., 123 Tenn., 318. 3. SAME. Same. Same. Penalty imposed upon telegraph and telephone companies for refusal to transmit messages, and upon telephone companies for refusal to give applicants connections, does not render statute unconstitutional. Acts 1885, ch. 66, whose tenth section requires every telegraph and telephone company, under penalty of five hundred dollars for each and every refusal so to do, to transmit, over its wires to localities on its lines, such messages as may be tendered, at the customary prices, without discrimination, and whose eleventh section requires every telephone company, under penalty of one hundred dollars for each day’s refusal, to supply all applicants for telephone connection with facilities without discrimination, upon their compliance with the reasonable regulations of the company, and prohibits the imposition of any restriction, which is not imposed impartially, or any discrimination by requiring that the facilities shall not be used in the business of the applicant, is not unconstitutional in any respect. (Post, pp. 277, 278, 280, 281.) Acts cited and construed: Acts 1885, ch. 66, secs. 10 and 11. 4. SAME. Same. Same. Same. Statute is not unconstitutional for excessive penalties where cumulative penalties are not recoverable, when. The imposition of the penalties stated in the next preceding headnote does not amount to excessive fines or unusual punishments in violation of the constitution (art. 1, sec. 16), because the penalties are not cumulative, and only one penalty for all preceding offenses can be recovered in one suit. (Post, pp. 280, 281.) Acts cited and construed: Acts 1885, ch. 66, secs. 10 and 11. Case cited and approved: Parks v. Railroad, 13 Lea, 1. 5. SAME. Same. Same. Same. Same. Statute against discrimination by telegraph and telephone companies is merely declaratory of the common law. The statutory provisions stated in the headnote before the next preceding headnote are merely declaratory of the common law for the purpose of preventing discriminations, with penalties added, and they should he construed in the light of the common law, and its reasons. (Post, pp. 281, 282.) Acts cited and construed: Acts 1885, ch. 66, secs. 10 and 11. Cases cited and approved: Vaught v. Telephone Co., 123 Tenn., 318; Telephone & Telegraph Co. v. Kelly, 87 C. C. A., 268. 6. TELEGRAPHS AND TELEPHONES. Common carriers of intelligence, without partiality or discrimination. Telephone and telegraph companies are common carriers of intelligence, and must give the same service on the same terms to all who apply therefor, without partiality, or unreasonable discrimination. (Post, p. 282.) Cases cited and approved: Telegraph & Telephone Co. v. Dela • ware, 2 C. C. A., 1; Missouri v. Telephone Co. (C. C.), 23 Fed., 539; Telegraph Co. v. Telephone & Telegraph Co. (C. C.), 177 Fed., 726; Telephone Co. v. Telephone Co., 61 Vt., 241; State v. Telephone Co., 17 Neb., 126; Telegraph Co. v. Telegraph Co., 56 Barb. (N. Y.), 46; Telegraph Co. v. State, 118 Ind., 194; Cog-dell v. Telegraph Co., 135 N. C., 431; Danaher v. Telegraph & Telephone Co., 94 Ark., 533. 7. TELEPHONE COMPANIES. One telephone company is not bound to permit another telephone company to make physical connection with its lines and switchboards. The rule stated in the next preceding headnote does not mean that a telephone company is bound to permit another telephone company to make a physical connection with its lines and switchboards for the purpose of using them as its own subscribers use them. (Post, p. 282.) 8. SAME. Same. It is neither so bound under the common law, nor under Acts 1885, ch. 66, secs. 10 and 11. Neither under the common law, nor under Acts 1885, ch. 66, secs. 10 and 11, is a telephone company bound to permit another telephone company to make a physical connection with its lines and switchboards for the purpose of using them as its own subscribers use them, though doubtless the legislature could enact a law authorizing the condemnation of such a right, under the eminent domain law, upon the payment of just compensation therefor. (Post, pp. 282- 283, 286, 287.) Acts cited and construed: Acts 1885, ch. 66, secs. 10 and 11. Cases cited and approved: State, ex rel., v. Cadwallader, 172 Ind., 619, 629-636; Telephone Co. v. Telephone Co. (C. G.), 155 Fed., 207. 9. SAME, Each telephone company is independent of all others, save to receive and forward their messages. Each telephone company is, under the common law, independent of all other telephone companies, save for the duty to receive and forward, to any point on its line, messages received from other telephone companies, and is not bound to accord to any other telephone company or its patrons connection with its switchboards on an equality with its own patrons. (Post, pp. 283, 284.) Case cited and approved: State, ex rel., v. Cadwallader, 172 Ind., 619. 10. SAME. Physical connection with lines and switchboards for an Indefinite time may be severed by the owning company without the other’s consent. A physical connection made by one telephone company with the lines and switchboards of another company, under a contract for an indefinite time, or without the specification of any time for it to run, will not prevent the owning company from severing such connections; for the joint concurrence of the companies so in combination is not prerequisite to the severance of such connection. (Post. pp. 282-286.) Case cited and disapproved: State, ex rel., v. Cadwallader, 172 Ind., 619, 640, 641. 11. SAME. Physical connection given to one company does not confer such right upon other companies. A joint traffic arrangement between two telephone companies giving one of them the right of physical connection with lines and switchboards of the other will not confer such right upon other companies not parties to the contract. (Post, pp. 284-286.) Case cited and approved: Railroad v. Railroad, 110 TJ. S., 667. Case cited and disapproved: State, ex rel., v. Cadwallader, 172 Ind., 619, 640, 641. 12. SAME. Same. Such rule would be the taking of property for public use without compensation and without due process of law. To give to a contract between two telephone companies for physical connection with the lines and switchboards of one of them, for an indefinite time, the effect of requiring such connection to continue at the will of the connecting company, upon the payment of the toll originally stipulated, would be the taking of property for public use without compensation, and without due process of law. (Post, pp. 284, 286.) Constitution referred to: State const., art. 1, secs. 8 and 21; U. S. const., 5th and 14th ams.
125 Tenn. 288Employers' Indemnity Co. v. Willard (1911)
1. CHANCERY PRACTICE. Decree overruling plea In abatement to jurisdiction is not a final decree passing upon the merits. A decree overruling a plea in abatement to the jurisdiction of the chancery court is not a final decree, and does not pass upon the merits in any particular. (Post, p. 290.) 2. APPEALS. Final decree is defined in the sense entitling loser to appeal as of right. A final decree, in the sense that an appeal as a matter of right lies from it, is one that disposes of the entire merits of the case. (Post, p. 290.) Case cited and approved: Younger v. Younger, 90 Tenn., 25, and citations. 3. SAME. Discretionary appeal does not lie from decree overruling plea in abatement to jurisdiction of chancery court. An appeal in the chancellor’s discretion does not lie from a decree overruling a plea in abatement to the jurisdiction of the chancery court, because not within the terms of the statute authorizing such appeals, which are limited to the cases therein enumerated. (Post, pp. 290, 291.) Code cited and construed: Sec. 4889 (S.); sec. 3874 (M. & V.); sec. 3157 (T. & S. and 1858). Cases cited and approved: Hume v. Bank, 1 Lea, 220; Barksdale v. Butler, 6 Lea, 454; Bomar v. Hagler, 7 Lea, 84; Sigler v. Vaughn, 11 Lea, 155; Younger v. Younger, 90 Tenn., 25.
125 Tenn. 292Slaughter v. Louisville & Nashville Railroad (1911)
1. BANKRUPTCY. Receiver , may be authorized by decree to sue for debts due the bankrupt. A decree in bankruptcy, authorizing a receiver to institute suit to collect any indebtedness due tbe bankrupt or receiver, authorizes him to sue a common carrier for the value of freight lost by negligent handling. (Post, pp. 293-295.) 2. SAME. Same. Decree in federal court authorizing trustee to sue for debts due the bank cannot be collaterally attacked in the State courts. A decree in bankruptcy, authorizing a receiver to institute suit to collect any indebtedness due the bankrupt or receiver, is not subject to collateral attack in a suit by him in a State court against a common carrier for the value of freight lost by negligent handling, even if such decree was, by the federal district court, based upon an erroneous construction of the bankruptcy act as to the powers which may be conferred upon receivers in bankruptcy; for the State courts do not sit as reviewing courts in bankruptcy, and they have no jurisdiction to revise the orders of the district court of the United States in such matters. (Post, pp-. 295-301.) Cases cited and approved: Railroad v. Ferry Co., 108 U. S., 18; Central Trust Co. v. Seasongood, 130 U. S., 482; Barbour v. Bank, 45 Ohio St., 13S; Attorney-General y. Insurance Co., 77 N. Y., 272.
125 Tenn. 302Hermitage Hotel Co. v. Dyer (1911)
FROM DAVIDSON. Appeal from tlie Chancery Court of Davidson County. —John Allison, Chancellor.
125 Tenn. 309Eldridge v. Hunter (1911)
1. PRIVY EXAMINATION. Of married woman is invalid, and her deed is fraudulent and void, where she erased her name before the certificate was made, and never re-signed. The deed and privy examination of a married woman are invalid, fraudulent, and void, where she signed the deed in the absence of her husband, and her privy examination was properly taken, but, before the certificate of examination was made, and before the deed was executed by the husband, she obtained possession • of the deed and erased her signature, though afterwards, the husband, in the wife’s presence, executed and acknowledged the deed, and re-signed her ñamé without her authority, and there was no further privy examination. (Post, pp. 311,312.) 2. HOMESTEAD. Of husband and wife can only be conveyed by their joint deed; separate execution; no delivery till complete. While the homestead of the husband and wife can only be conveyed by their joint deed, they need not execute it at the same time, though it is not complete until executed by both of them, and until then there can be no valid delivery. (Post, p. 312.) 3. PRIVY EXAMINATION. Completed in form and manner prescribed by statute is necessary to valid conveyance of a married woman. A married woman cannot make a valid conveyance of real estate, withmit privy examination completed in the form and manner prescribed by statute, by the indorsement, attachment, or annexation of the prescribed certificate, contemplated to be done contemporaneously with the manual execution by the married woman, which certificate is the only competent evidence of compliance with the statute. (Post, pp. 312, 313.) Code cited and construed: Secs. 3753-3755 (S.); secs. 2891-2893 (M. & V.); secs. 2076-2078 (T. & S. and 1858). Cases cited and approved:. Mount v. Kesterson, 6 Cold., 463; Rhea v. Iseley, 1 Tenn. Cases, 228; Currie v. Kerr, 11 Lea, 142; Wester v. Hurt, 123 Tenn., 508. 4. SAME. Action in taking, is quasi judicial, and can be impeached only for fraud. The action of a notary public in taking the privy examination of a married woman to her deed of conveyance of.land is quasi judicial, and can be impeached only for fraud. (Post, p. 313.) Case cited and approved: Shields v. Netherland, 5 Lea, 193.
125 Tenn. 314Scott v. Brandon (1911)
FROM HUMPHREYS. Appeal by defendant from the Circuit Court of Hum-phreys County to the Court of Civil Appeals, and by cer-tiorari by plaintiff from the Court of Civil Appeals to the Supreme Court. — W. L. Cook, 'Circuit Judge.
125 Tenn. 322Sidoway v. Jones (1911)
ATTORNEY AND CLIENT. Lien of plaintiff's attorney on plaintiff’s right of action is confined to plaintiff’s compromise, and defendant’s voluntary payment of such claim does not subject him to additional liability, when. Under the statute (Acts 1899, ch. 243, sec. 1), giving plaintiff’s attorney a lien upon plaintiff’s right of action, the attorney’s sole right is’in the plaintiff’s right of action, which he may follow into whatever the right of action is merged, but his right is entirely separable from the right of the plaintiff, and he has no direct right against the defendant; and, therefore, where the defendant paid seventy-five dollars to the plaintiff in compromise of the suit, but, upon the objection and refusal of the plaintiff to allow any part of this sum to be appropriated to the payment of the fees of his attorneys, the defendant paid an additional sum of seventy-five dollars into court under agreement for the benefit of plaintiff’s attorneys, not as a part of the compromise sum paid to plaintiff , in satisfaction of his rignt of action, but as a recognition and provision for the legal rights of the plaintiff’s attorneys, which they might have enforced, if it had not been voluntarily paid, such voluntary payment does not entitle them to a lien enforceable against the defendant, on the theory that the suit was in fact compromised for one hundred and fifty dollars. Acts cited and construed: Acts 1899, ch. 243, sec. 1. Cases cited and approved: Railroad v. Wells, 104 Tenn., 707; Tompkins v. Railroad, 112 Tenn., 157.
125 Tenn. 328American National Bank v. National Fertilizer Co. (1911)
1. BILLS AND NOTES. Debtor indorsing check for conditional payment is an “indorser” entitled to notice of dishonor, when. Where the defendant deposited with the complainant bank certain notes indorsed by it to secure its indebtedness to the bank, and, upon maturity, the maker deposited with the defendant certain collateral, in order to secure an extension of time, whereupon the defendant procured from the bank the desired extension; and later the maker gave the defendant a check on another bank, which the defendant indorsed and sent to the complainant bank for collection and application of the proceeds to said indorsed notes; but the check, without proper notice of its nonpayment, was returned to complainant partly unpaid for want of funds, it was held that the defendant was an “indorser” of the check, within the sense of the negotiable instruments law (Acts 1899, ch. 94, sec. 63), and as such was entitled to discharge from liability because of the complainant bank’s failure to make proper demand and to give him nctice of dishonor, as required by sections 71, 83, 84, 89 and 102 of said law, notwithstanding the fact that the defendant was, by reason of waiver of demand and notice, absolutely liable on the notes, for the conditional payment of which the check was given. (Post, pp. 331-335.) Acts cited and construed: Acts 1899, ch. 94, secs. 63, 71, 83, 84, 89, 102. Case cited and destinguished: Byers v. Harris, 9 Heisk., 652. 2. SAME. Notice of dishonor, but not formal protest of a check for nonpayment, is necessary; check defined. While demand of payment must be made and notice given as required by statute, yet formal protest is not required in case of a check, because it is not a foreign bill of exchange, though it is a bill of exchange drawn on a bank payable on demand. (Post, pp. 335, 336.) Acts cited and construed: Acts 1899, ch. 94, secs. 71, 83, 84, 89, 102, 118, 185. Case cited and approved: Bank v. Butler, 113 Tenn., 574, 579. 3. SAME. Notice of dishonor may be given by telephone under statute authorizing written or oral notice. Under the negotiable instruments law (Acts 1899, ch. 94, sec. 96) authorizing written or oral notice of dishonor, to be “given by delivering'it personally or through the mails,” the notice may be given by telephone, if it be clearly shown that the party to be notified was really communicated with, that is, fully identified as the party at the receiving end of the line. (Post, p. 336.) Acts cited and construed: Acts 1899, ch. 94, sec. 96. 4. SAME. Oral notice of dishonor of a check, given by telephone to a clerk of an indorsing commercial corporation-, is not notice to the corporation. Oral notice of the dishonor of a check, given by telephone to a clerk of an indorsing commercial corporation, is not notice to the corporation, within the meaning of the negotiable instruments law (Acts 1899, ch. 94, sec. 97), authorizing the giving of notice “either to the party himself or to his agent in that behalf,” especially where it does not appear that such clerk had communicated such notice to any one connected with the management of the business of the corporation. (Post, pp 336, 337.) Acts cited and construed: Acts 1899, ch. 94, sec. 97. 5. SAME. Debtor not injured for want of notice of dishonor of check indorsed as conditional payment is not entitled to credit on indebtedness. Where a check or other negotiable paper is indorsed by the debtor to the creditor as conditional payment (or as collateral security) of the indebtedness, the indorser will he released from liability through the failure of the indorsee creditor to give notice of the dishonor' of the indorsed paper; but the original debt will not be discharged, except to the extent injury has occurred by reason of the holder’s negligence in failing to give notice o# dishonor, and where it is shown that no injury resulted to the debtor by reason of such negligence, he will not be entitled to credit on his indebtedness for the amount of the unpaid check or other negotiable paper so indorsed. (Post, pp. 337-341.) Cases cited and approved: Word v. Morgan, 5 Sneed, 79; Better-ton v. Roope, 3 Lea, 215; Harper v. Bank, 12 Lea, 678; Kirkpatrick v. Puryear, 93 Tenn., 409; Swinyard v. Bowes, 5 Maulé- & S., 62; Bridges v. Berry, 3 Taunt., 130; Hunter v. Moul, 98 Pa., 13; Jennison v. Parker, 7 Mich., 355; Anderson v. Timber-lake, 114 Ala., 377. Case cited and distinguished: Coleman v. Lewis, 183 Mass., 485.
125 Tenn. 342Levy v. Davis (1911)
1. EXEMPTIONS. Of life insurance from debts of husband does not exempt same from wife's debts, when. Under our statutes (Shannon’s Code, sections 4231 and 4232), providing merely that the proceeds of a policy of insurance on the husband’s life shall be exempt from liability for his debts, and having no reference to the debts of the wife herself, insurance funds received by the widow from a policy on her deceased husband’s life are not exempt from debts contracted by her and for which she is personally liable. (Post, p. 345.) Code cited and construed: Secs. 4231, 4232 (S.); secs. 3335, 3336 (M. & V.); secs. 2478, 2479 (T. & g. and 1858). 2. SEPARATE ESTATE. Wife’s interest in husband’s life insurance policy is her separate estate. The interest of a wife in policy of insurance on her husband’s life is her separate estate. (Post, p. 345.) Case cited and approved: Hughey v. Warner, 124 Tenn., 725. 3. STATUTES. Must be construed so as to give every word and phrase some meaning. In construing a statute, the courts must, if possible, give every word and phrase some meaning. (Post, p. 348.) Case cited and approved: Doty v. Telephone Co., 123 Tenn., 329. 4. SEPARATE ESTATE. May be subjected to debts contracted by a married woman in mercantile or manufacturing business; unmarried woman cannot hold a separate estate as such. A married woman’s separate estate cannot, without an express agreement, be subjected to her general indebtedness, or debts not contracted in her conduct of a mercantile or manufacturing business; but under the statute (Acts 1897, ch. 82), providing that a married woman engaged in the mercantile or manufacturing business shall be liable for the- debts incurred therein, as if she were a feme sole, her liability in the specific instance is the same as though she were unmarried, and her separate estate held by her without any limitation upon her power of disposition may be subjected to her such debts; and as an unmarried woman can hold no separate estate as such, a sum due a widow on a policy on the life of her deceased husband may be subjected to debts contracted in the course of trade, while she was living with her husband and engaged in mercantile business in her own name, without a special contract subjecting it to such debts. (Post, pp. 346-350.) Code cited and construed: Sec. 4505 (S.); sec. 3505 (M. & Y.); sec. 2805 (T. & S. and 1858). Acts cited and construed: Acts 1897, eh. 82. Cases cited and approved: Yeatman v. Bellmain, 6 Lea, 488; Pérsica v. Maydwell, 102 Tenn., 207. Cases cited and distinguished: Chatterton v. Young, 2 Tenn. Chy., 771; Pederlicht v. Glass, 13 .Lea, 481; Jordan v. Keeble, 85 Tenn., 417; Theus v. Dugger, 93 Tenn., 41; Woodfolk v. Lyon, 98 Tenn., 269.
125 Tenn. 351Tennessee Central Railroad v. Brown (1911)
FROM SMITH. Appeal from, the Circuit Court of Smith Comity to the Court of Civil Appeals, and by certiorari from the Court of Civil Appeals to the Supreme Court. — C. E. Snod-grass, Circuit Judge.
125 Tenn. 361Mayor of Nashville v. Patton (1911)
1. CERTIORARI. Petition for certiorari to review judgment of court of civil appeals must he complete within itself, and not by reference to the record or other papers. Under the statute (Acts 1907, ch. 82, sec. 8) providing that the supreme court may issue a writ of certiorari to review a judgment of the court of civil appeals upon a sworn petition stating the substance of the case to he decided, accompanied by assignments of error, and brief in support thereof, the petition must, within its four corners, present a case which will-enable the supreme court to determine whether the writ should be granted, and it must not attempt to supply the statement of facts and assignments of error by reference to any other paper, or to the record of the court of civil appeals. (Post, pp. 366-369.) Acts cited and construed: Acts 1907, ch. 82, sec. 8. 2. SAME. Same. Petition for certiorari must, upon its face, * point out specific errors in the judgment of the court of civil appeals. Under the statutory provisions, stated in the first headnote, as to the requisites of the petition for the certiorari, and under the additional provisions that, upon the granting of the writ, the original transcript filed in the court of civil appeals shall he filed in the supreme court, which, together with the petition, assignments of error, the briefs, writs of error and supersedeas, when issued, shall constitute the record in the supreme court, the court of civil appeals is not made a mere intermediate court whose work is to he treated as merely incidental, so that the petition for the writ of certiorari need only reassign the errors and present the briefs made therein, but it is necessary to show some specific error in the action of that court. (Post, pp. 366-370.) Acts cited and construed: Acts 1907, ch. 82, sec. 8. 3. SAME. Consideration to be given to opinion of court of civil appeals in filing petition for certiorari to review its judgment. In making application for a writ of certiorari to review a judgment of the court of civil appeals, counsel should make an attentive examination of the opinion of that court, and give a sedate consideration as to the probability of obtaining a reversal; and the proper standpoint from which to view the matter is an attentive consideration of the work accomplished by that court in the particular case, and a careful formulation of the objection to that work. {Post, pp. 369-370.) 4. SAME. Mode of action of supreme court upon petition for certiorari to review a judgment of the court of civil appeals. If the petition for a writ of certiorari 'to review a judgment of the court of civil appeals fails to state a case for relief, the supreme court will disallow it, without going further 'into the record; but if it states a case for relief, the supreme court will examine the opinion of the court of civil appeals, and the record and the briefs of opposing counsel, for the purpose of ascertaining whether the grounds stated in the petition are sustained. {Post, p. 369.)
125 Tenn. 371Brinkley v. State (1911)
1. CONSTITUTIONAL LAW. Power and duty of courts to declare legislative acts void for imposing excessive bail, excessive fines, and cruel and unusual punishments. While our supreme court has never declared an act of the legislature to he void under our constitutional provision (art. 1, sec. 16) forbidding excessive bail, excessive fines, and cruel and unusual punishments, still it is the clear weight of modern authority that the courts have such power, and, in a proper case, it is their duty, to declare legislative acts void under said constitutional provision. (Post, pp. 382, 383.) Constitution cited and construed: Art. 1, cec. 16. Cases cited and approved: State v. Lasater, 9 Bax., 587; Parks v. Railroad, 13 Lea, 8; Loeb v. Jennings, 133 Ga., 796. . 2. SAME. Statute making federal license prima facie evidence of sales of intoxicating liquors is not unconstitutional as'imposing excessive fines, and cruel and unusual punishments. The statute (Acts 1903, ch. 355) providing that the defendant’s payment of the internal revenue special tax as a retail liquor dealer, or his possession of an internal revenue tax stamp as a retail liquor dealer, shall, during the time covered by such payment or stamp, be prima facie evidence of sales of intoxicating liquors within the meaning of the law prohibiting the sale of intoxicating liquors within four miles of a schoolhouse, is not unconstitutional as contrary to the constitutional provision (art. 1, sec. 16) forbidding excessive fines, and cruel and unusual punishments, because the punishment for a single offense under the statute is not excessive, or cruel and unusual, and is not claimed to be so, and while a person may be indicted, fined, and punished for each day that he is in the possession of the revenue tax stamp, this results from his own voluntary act in being in possession of the tax stamp contrary to the laws of the State; for a person, in taking out such federal license, is not seeking to redress any wrong done him in his person or property, nor is it in furtherance of his right to pursue an occupation guaranteed to him under the law, and the license can be surrendered at any time and the penalties of the law avoided. (Post, pp. 378-384.) Acts cited and construed: Acts 1903, ch. 35B. Constitution cited and construed: Art. 1, sec. 16. 3. SAME. Same. Statute making federal license prima facie evidence of sales of Intoxicating liquors Is not unconstitutional as vicious class legislation in excepting druggists and manufacturers of liquor. The statute (Acts 1903, ch. 355), whose provisions are substantially stated in the preceding headnote, is not unconstitutional as vicious class legislation, because of its proviso excepting from its provisions those having such revenue license for the use of manufacturers, druggists or others in manufacturing or compounding, or otherwise than for use in sale at retail under State laws, since it is not unlawful for druggists to sell intoxicating liquors for other than beverage purposes, or to compound medicines with intoxicating liquors, and, at the date of the passage of said statute, it was not unlawful to manufacture intoxicating liquors. Instead of vitiating the act, the exception saves it. (Post, pp. 378, 384.) Acts cited and construed: Acts 1903, ch. 355. Constitution construed but not cited: Art. 11, sec. 8. Cases cited and.approved: Kelly v. State, 123 Tenn., 544; Linds-ley v. Gas Co., 220 U. S., 78. 4. SAME. Legislative power to prescribe rules of evidence; statute making possession of federal license prima facie evidence of unlawful sale of intoxicating liquors is not unconstitutional for that reason. Tlie statute (Acts 1903, ch.. 355), whose provisions are substan. tially stated in the second headnote, is not unconstitutional in making the payment for and possession of a federal internal revenue license prima facie evidence of the violation of the statute prohibiting the sale of intoxicating liquors within four miles of a schoolhouse, during the time covered by such license; for legislation prescribing such rules of evidence is within the power of the legislature, since there is a direct and open connection between the voluntary possession of such license and the fact of such violation, and the statute gives the party charged a fair opportunity to make his defense, and to submit all of his evidence to the court and jury to be weighed by them upon all the evidence within his control and properly submitted. {Post, pp. 384-386.) Acts cited and construed: Acts 1903, ch. 355. Cases cited and approved: Horne v. Railroad, 1 Cold., 72; Diamond v. State, 123 Tenn., 348; Adams v.'New York, 192 U. S., 585; Railroad v. Turnipseed, 219 U. S., 42; Meadowcroft v. People, 163 III, 56'; Commissioners v. Merchant, 103 N. Y., 143; People v. Cannon, 139 N. Y., 32; State v. Thomas, 144 Ala., 77. 5. INTOXICATING LIQUORS. Internal revenue license is competent evidence for the period covered by its duration as determined from the amount paid and the date it became effective. In a prosecution for the unlawful sale of intoxicating liquors as a beverage within four miles of a schoolhouse where school is kept, charged to have been made on the 20th day of October, 1910, a certificate of the collector of internal revenue for the federal government that the accused had paid the internal revenue special tax as a retail liquor dealer, that his license was in effect from September 10, 1910, and that he paid a certain sum which under the law would indisputably extend the time for which he paid beyond October 20, 1910, the date laid in the indictment, was competent and admissible in evidence, although the certificate did not expressly show the duration of the period covered by the license. (Post, pp. 386, 387.) Acts cited and construed: Acts 1909, ch. 384. 6. SAME. Internal revenue license for retail sale of malt liquor is prima facie evidence of unlawful sales of malt intoxicating liquors only; accurate charge of court so stating; liquors— spirituous, vinous, and malt. ' In a prosecution for the unlawful sale of intoxicating liquors as a beverage within four miles of a schoolhouse where school is kept, the trial judge’s charge, stating that the payment by defendant of the internal revenue special tax for license as a retail liquor dealer was prima facie evidence of sales of intoxicating liquors in violation of the said four mile law, during the time covered by such license, defining the terms “liquor,” “spirituous liquor,” “vinous liquor,” and “malt liquor,” stating that an internal revenue license for the sale of malt liquors was prima facie evidence only of the unlawful sales of malt intoxicating liquors, during the time he possessed such federal license, hut not prima facie evidence of the unlawful sales of spirituous or vinous intoxicating liquors; but that the presumption arising from the possession of such license might be rebutted, and instructing the jury to find the accused guilty, if they believed from the evidence beyond a reasonable doubt that he had retailed or sold malt intoxicating liquors as charged in the indictment, and to find him not guilty if there was a reasonable doubt in their minds as to the guilt of the accused, was held to he a plain, clear, and accurate statement of the meaning of the statute (Acts 1903, ch. 355), making the payment of an internal revenue tax prima facie evidence of the unlawful sale of intoxicating liquors in violation of the four mile law, as applied to the facts in the case. (Post, ppu 380, 381, 387.) 7. SAME. Burden is cast upon accused by payment of internal revenue tax and by conviction to show his innocence is not removed by showing absence of sales of intoxicants, when. In a prosecution for the unlawful sale of intoxicating liquors as a beverage within four miles of a schoolhouse where school is kept, the testimony of five or six witnesses that they had patronized the accused, and had never purchased intoxicants from him; the fact that no intoxicating liquors were in his possession when his place of business was closed under a distress warrant; and the fact that he was in possession of nonintoxicating beverages, do not, on appeal by the accused from a verdict and judgment of conviction, rebut the presumption of guilt arising from his payment of the federal internal revenue tax as a retail liquor dealer, in the absence of the testimony of the accused himself or of any one who was in charge of the business for him, since the verdict and judgment of conviction and the statute (Acts 1903, eh. S55), making the payment of such tax prima facie evidence of a violation of the four mile law, both cast upon the accused the burden of showing his innocence. {Post, p. 388.) Acts cited and construed: Acts 1903, ch. 355. 8. CRIMINAL LAW. Burden is upon the accused to show his innocence in the supreme court. The inquiry in the supreme court is not whether the accused is guilty, but whether he is innocent; for the burden of showing his innocence is cast upon him by the verdict of guilty, approved by the trial judge. {Post, p. 388.) 9. SAME. Former acquittal cannot be pleaded in bar of subsequent prosecution for a similar offense on a subsequent date where conviction is sought upon ground of possession of federal license to sell liquors, when. In a prosecution for the unlawful sale of intoxicating liquors as a beverage within four miles of a schoolhouse where school is kept, made by a person who had paid the federal internal revenue tax as a retail liquor dealer, a former acquittal of a similar offense charged to have been committed on a different dayi given because the State offered no evidence to show that the place of business of the accused was within four miles of a schoolhouse, and pleaded as a defense in bar of the prosecution, was properly overruled by the trial judge, since, under the statute (Acts 1903, ch. 355), making the payment of such special tax prima facie evidence of the violation of the said four mile law, the accused is presumed to be guilty, and may be convicted, of a separate offense for each day of the time covered by the payment of such special tax. (Post, pp. 388, 389.)
125 Tenn. 390Bailey v. Henry (1911)
1. INHERITANCE TAXES. Statute to be strictly construed against State and in favor of taxpayer. The statute (Acts 1893, ch. 174), imposing inheritance taxes, must he strictly construed against the State and in favor of the taxpayer. (Post, p. 396.) Acts cited and construed: Acts 1895, ch. 174. Cases cited and approved: State v. Alston, 94 Tenn., 674; English v. Crenshaw, 120 Tenn., 531; Knox v. Emerson, 123 Tenn., 409; Crenshaw v. Moore, 124 Tenn., 528. 2. SAME. On estates passing under will or statute only where decedent was seized or possessed of the whole estate at his death. The statute (Acts 1893, ch. 174), imposing an inheritance tax on estates passing, either by will or statute, from any person dying seized and possessed thereof, to the living, imposes a tax only where the person dying is seized or possessed of the whole estate at the time of his death. (Post, pp. 369-398.) Acts cited am construed: Acts 1893, ch. 174. Case cited and approved: Hoge v. Hollister, 2 Tenn. Chy., 606. 3. ESTATES. Tail, general and special, have been abolished; origin and creation of estates In fee. Estates tail, general and special, have been abolished by statute in this State; but the estate in fee created by our modern deed has its origin in the ancient feoffment. (Post, p. 399.) Code cited and construed: Sec. 3673 (S.); sec. 2813 (M. & V.); sec. 2007 (T. & S. and 1858). 4. SAME. Title in fee includes all Interest and right. A “title in fee” is a -full and absolute estate, beyond and outside of which there is no other interest or even show of right. (Post, p. 399.) Case cited and approved: Earnest v. Land & Lumber Co., 109 Tenn., 435. 5. STATUTE OF FRAUDS. “Sale” means alienation, and Includes parol gift or donation of land. The word “sale” in our statute of frauds (section 3142 of Shannon’s Code) means alienation; and an action on .a parol contract made by the owner, binding him to give or donate land to another, would fall within the terms of that statute; for it does not in terms denounce as void ab initio a contract made in contravention of its terms with respect to alienation of lands. (Post, pp. 399, 400.) Code cited and construed: Sec. 3142 (S.); sec. 2423 (M. & V.); sec. 1758 (T. & S. and 1858). 6. SAME. Parol sale of land Is only voidable at election of either party, and ,may be specifically enforced If statute is not pleaded.' A parol contract for the sale of land is not absolutely void, but only voidable under the statute of frauds at the election of either party; and such contract may be specifically executed as against either party if he fails or refuses to plead the statute, or to insist or rely upon it. (Post, pp. 400-402.) Code cited and construed: Sec. 3142 (S.); sec. 2423 (M. & V.); sec. 1758 (T. & S. and 1858). Cases cited and approved: Sneed v. Bradley, 4 Sneed, 304; Hudson v. King, 2 Heisk., 573; Jennings v. Bishop, 3 Shannon’s Cases, 138; Brakebill v. Anderson, 87 Tenn., 209; Slatton v. Tennessee Coal, Iron & Railroad Co., 109 Tenn., 425. 7. SAME. Must be specially pleaded, to be available as a defense. The statute of frauds must be specially pleaded, to be available as a defense to an action to enforce a parol contract for the sale of land. (Post, p. 401.) Code cited and construed: Sec. 3142 (S.); sec. 2423 (M. & V.); sec. 1758 (T. & S. and 1858). Cases cited and approved: Brakefield v. Anderson, 87 Tenn., 209; Citty v. Manufacturing Co., 93 Tenn., 280; Phillips v. Kim-mons, 94 Tenn., 567; King v. Coleman, 98 Tenn., 571. 8. SAME. Parol sale of land may be avoided by vendor’s heirs; but until its repudiation, the vendee In possession holds for himself. While a parol sale of land is voidable after the death of the vendor at the election of his heirs, and they may recover possession by appropriate proceedings, subject to all the legal consequences flowing from a disaffirmance and rescission of the parol contract, made by the vendor, yet during the currency of the parol contract, and until it is repudiated, the vendee in possession holds for himself, and not as tenant of the vendor. (Post, pp. 402, 405, 406.) Cases cited and approved: Vaughn v. Vaughn, 100 Tenn., 285; • Slatton v. Tennessee Coal, Iron and Railroad Co., 109 Tenn., 425. 9. SAME. Parol donee stands on a parity with a parol vendee. A parol donee of land stands, in legal contemplation, on a parity with a parol vendee, for the “purchase” of land, as con-tradistinguished from acquisition by inheritance, wherein the title, is vested in a person, not by his own act or agreement, but by the mere operation of law, embraces every other method of coming into the possession of an estate, and includes a gift of land. (Post, pp. 402-404.) Case cited and approved: King v. Coleman, 98 Tenn., 566. 10. SAME. Parol gift and adverse possession may ripen into defensive right, and before that • period are not void, but merely voidable. The donee’s entry into possession of land under a parol gift and his continuous adverse possession thereof for the period of seven years will create in him a defensive right to the land, which is good against the donor or his heirs; and while before such adverse possession has ripened into such defensive right, such donee’s right is limited and qualified, and subject to be terminated by voluntary abandonment or surrender of the possession and the donor’s re-entry into possession, or by suit, yet the parol gift and possession under it are not to be treated as acts void in law, and as if they had not been done, but merely as voidable. (Post, pp. 404-406.) Code cited and construed; Sec. 4458 (S.); sec. 3461 (M. & V.); sec. 2765 (T. & S. and 1858). Acts cited and construed: Acts 1819, ch. 28, sec. 2. Cases cited and approved: Haynes v. Jones, 2 Head, 373; Keys v. Keys, 11 Heislc., 430, 431; O’Neal v. Breechen, 5 Bax., 605; Jordan v.'Maney, 10 Lea, 145, 146; Moore v. Burrow, 89 Tenn., 104; Kittel v. Steger, 121 Tenn., 410. 11. INHERITANCE TAXES. Land taken and adversely held under parol gift does not pass under a devise to the donee so as to be subject to inheritance taxes. Where a testator devised land to his nephew, and thereafter made a parol gift of the land to him, with the right of immediate possession, which was taken by the nephew and held adversely and undisturbedly until the death of the testator a few months later, without making any change in his will, it will be held that the testator was.not “seized” or “possessed” of the land at the time of his death, within the meaning of the statute (Acts 1893, ch. 174) imposing a tax upon property passing by will. (Post, pp. 395, 397, 398, 406, 407.) Acts cited and construed: Acts 1893, ch. 174. Cases cited and approved: Kincaid v. Brittain, 5 Sneed, 120; Kenney v. Norton, 10 Heisk., 387; Mette v. Dow, 9 Lea, 97; Williams v. Burg, 9 Lea, 459. 12. SAME. Pleading and Practice. Suit to recover inheritance taxes upon a devise will not authorize a recovéry upon a parol gift to the devisee, when. Where the suit in hehalf of the State for the recovery of inheritance taxes is, by the pleadings, predicated wholly upon the devise as passing the whole estate in the land, and treating the testator’s parol gift of the land to the devisee, and his adverse possession thereunder, as absolutely void, the State cannot recover the taxes upon the parol gift, upon the ground that it falls within the statute as a conveyance made in contemplation of death; for there can be no recovery on a predicate outside of and inconsistent with the scope of the plaintiff’s pleadings. (Post, pp. 398, 407.)
125 Tenn. 408Louisville & Nashville Railroad v. Herb (1911)
FROM DAVIDSON. Appeal from tlie County Court to the Circuit- Court of Davidson County, and appeal from such 'Circuit Court to the Court of Civil Appeals, and by writ of certiorari from the Court of Civil Appeals to the Supreme Court.— Thomas E. Matthews, Circuit Judge.
125 Tenn. 420Johnson v. State (1911)
1. CRIMINAL LAW. Misconduct of State’s attorney In reading to the jury a memorandum indorsed on indictment showing State’s witnesses examined before grand jury is prejudicial and reversible error, when. Where the first trial of the accused did not occur until more than eight years after the homicide, and his second trial did not occur until five years later, when the attorney of the accused argued that the memory of the witnesses on both.sides was likely to he dim and unreliable, and, in reply thereto, the State’s attorney made the point that the witnesses for the State were more likely . to remember the transaction correctly, because they had testified before the grand jury, and that the facts were thereby impressed on their minds, more deeply than upon the minds of the witnesses for the accused; and, upon objection made to this statement, on the ground that there was no testimony showing the- facts of such examination, the State’s attorney read to the jury a memorandum on the back of the indictment purporting to show that the witnesses referred to had been examined before the grand jury, to which the attorney of the accused again objected, on the ground that this memorandum had not been put in evidence; whereupon the trial judge ruled that it was competent for the State’s attorney to refer to the memorandum simply to show the fact that the witnesses had been so examined, to which ruling, the attorney of the accused objected, but the objection was overruled. Held, that such conduct of the State’s attorney and the action of the trial court «constituted prejudicial and reversible error. {Post, pp. 424-427.) 2. SAME. Where the evidence shows involuntary manslaughter, an inaccurate, unnecessary, and harmless charge on that subject is not reversible error. Where all the witnesses, including the accused, testified that the accused shot the deceased, but the accused claimed that he shot the deceased because he was advancing on him, with an open knife in his hand, there was no evidence indicating involuntary manslaughter, and a charge on that subject was unnecessary. However, the accused cannot complain of the inaccuracy and needlessness or unnecessariness of such charge, if he was not injured by it. (.Post, pp. 427, 428.) 3. SAME. Charge that self-defense is not available for shooting an intervening peacemaker whose brother was putting accused in danger of death or great bodily harm is proper, when. The court properly gave in charge to the jury an instruction offered by the State to the effect that if, when the defendant shot the deceased, the latter was not advancing upon him with a knife, but was- only interceding as a peacemaker, and had thrown himself between the defendant and his (decedent’s) brother to prevent a difficulty, having nothing in his hands, and having no reasonable ground on which to base an honest belief that he was in danger of death or great bodily harm at the hands of the deceased, then he would have no right to shoot the deceased and the plea of self-defense would be unavailable, even though he believed that the decedent’s brother was putting him in danger of death or great bodily harm, provided he shot the deceased purposely. (Post, pp. 428, 429, 430.) 4. SAME. Refusal of requested charge that defendant, without fault, may shoot an intervener trying to disarm him against his aggressive adversary, is erroneous, when. The court erroneously refused to give a requested 'charge asked by the defendant to the effect that if the defendant was peaceable and quiet, and did nothing to bring on the difficulty, and the decedent’s brother approached and menaced the defendant, so as to cause him to be apprehensive for his life or of great bodily harm, whereupon the deceased undertook to intervene and disarm defendant, when he was. faultless, and thus committed an assault upon the defendant which he apprehended put his life in jeopardy, either from the deceased or his brother, then the defendant would have the right to act upon such apparent danger, and, if he acted in good faith, he could slay his adversaries in order to save himself from death or great bodily harm. (Post, pp. 428-431.) 5. SAME. One intervening to disarm the defendant against unlawful assault becomes a particeps oriminis and may be defended against. A person who intervenes to disarm a man who is trying to protect himself against an unlawful assault of a third party, which assault puts him in danger of death or great bodily harm, becomes a particeps oriminis with such third party, and may be defended against in the same manner. (Post, p. 431.) 6. SAME. Refusal to charge a requested instruction on self-defense that is not strictly accurate is not reversible error; suggested corrections. Where the accused requested an instruction to the effect that a person who is without fault, when menaced by threatening words and gestures, or by acts calculated, to cause him to become apprehensive of his safety, and of death or great bodily harm, is not compelled to wait until his adversary strikes him, or even get in a position to slay or strike him; but if the danger is so apparent or imminent, or if he in good faith believes such danger is apparent, then he may strike and even take the life of his adversary or antagonist, and he is not compelled to retreat, when a retreat might, on account of the violence of the assault, result in death or great bodily harm to him, such requested instruction is held to be correct in the main, but is held to be inaccurate and defective in the use of the word “calculated,” for which the phrase “of such nature as” should have been substituted; and after the italicized word “apparent,” the words “and imminent” should have been added; and no reversal would be granted for the refusal to charge such inaccurate request, since such instructions must be strictly accurate in order to put the trial judge in error when he refuses to charge the same. (Post, pp. 431, 432.) 7. SAME. “Overt act” is defined; proper refusal of requested instruction that certain facts, if found to be true, constitute an “overt act” entitling accused to acquittal. The term “overt” simply means “open,” and in homicide cases an “overt act” is an open act, indicating a present purpose to do immediate great bodily harm, which can he shown in a given case only, hy the. evidence; for the question of what is an “overt act” is a question of fact, which must he left to the jury in every case, and the jury must judge of it in the light of all the evidence. Therefore, the refusal of the trial court to give in charge to the jury a requested instruction stating that certain facts, if found to he true, would constitute an overt act entitling the accused to a verdict of not guilty, was proper, and not erroneous. (Post, pp. 432-434.) Cases cited and approved: Jackson v. State, 6 Bax., 452; Allison v. United States, 160 U. S., 203. 8. SAME. Accused has same right of self-defense against an intervener as against the party, even a brother, in whose behalf the intervention was made. "Where the accused, when he killed the deceased, was in danger of death or great bodily harm at the hands of a brother of the deceased, or honestly believed himself to be so on reasonable grounds, and at that time the deceased intervened and sought to disarm the accused, or approached him with a knife, the accused then had the same right to defend himself against the deceased as against his attacking brother, even though the deceased was intervening in behalf of his brother, because no one, not even a brother, has any right to intervene in behalf of another who is in the wrong; for the right of intervention exists only where it is in behalf of one acting in his rightful self-defense. (Post, pp. 434-436.) Cases cited an approved: Smith v. State, 105 Tenn., 305; Cooper v. State, 123 Tenn., 129-143 (and citations); State v. Greer, 2? W. Va., 800; State v. Brittain, 89 N. C., 481; State v. Cox, 153 N. C., 638; Mitchell v. State, 129 Ala., 23; Wheat v. Commonwealth (Ky.), 118 S. W., 264; State v. Hennessey, 29 Nev., 320, 340; Wheatley v. State, 93 Ark., 409; People v. Travis, 56 Cal., 251, 255.
125 Tenn. 437Cheatham v. Patterson (1911)
1. LIBEL. AND SLANDER. Charge of selling intoxicating liquors is not per se slanderous. A declaration in an action of slander, alleging, in the first count, that defendant said he had bought beer from plaintiff at his store, and, in the second count, that defendant said that he was satisfied plaintiff was selling whisky, and, in another count, that defendant said he had orders from the company which employed him “for the hands not to trade with” plaintiff, because they were purchasing whisky from him, is insufficient to show actionable slander, by a colloquium simply imputing to plaintiff unlawful sales of liquor, without stating such facts and circumstances under which the words were spoken and the situation of the parties, as would constitute a charge of an indictable offense involving moral turpitude, because the plaintiff must affirmatively show that the sales imputed to him were unlawful and indictable at the time the words were spoken, either from the words imputed to defendant, or by a colloquium, stating the facts and circumstances under which the words were spoken and the situation of the parties; for all sales of intoxicating liquors are not unlawful in this State. (Post, pp. 439-444.) •Case cited and approved: Kelly v. State, 123 Tenn., 516. 2. SAME. Special damages must be averred, if the words are not actionable per se. •Where no special damages are averred, the words, alleged to have been spoken, must be actionable per se, to entitle the plaintiff to a recovery. (Post, p. 440.) Cases cited and approved: Smith v. Smith, 2 Sneed, 473; Rodgers v. Rodgers, 11 Heisk., 757. 3. SAME. Declaration must state such extrinsic circumstances as will connect the plaintiff with the alleged defamatory matter. Where the alleged defamatory ■words are indefinite or ambiguous, and do not of themselves show that the plaintiff was meant, the declaration must state such extrinsic facts and circumstances as will connect the plaintiff with the alleged defamatory matter. (Post, pp. 440, 441.) Cases cited and approved: Williams v. Karnes, 4 Humph., 10; Smith v. Smith,'2 Sneed, 473; -Onslow v. Horne, 3 Wils., 177.
125 Tenn. 445Brinkley v. State (1911)
INDICTMENTS AND PRESENTMENTS. For selling liquor without license does not Include, as a less offense, the offense for exercising privilege of retail liquor dealer without payment of prescribed tax, when. Under a presentment for selling intoxicating liquors without the .license required by law, and in violation of Acts 1899, cb. 161, sec. 1, under wbicb a single sale is sufficient to constitute tbe offense, tbe defendant cannot, in tbe absence of evidence of any specific sale authorizing a conviction of tbe offense charged, be convicted of violating Acts 1909, cb. 479, sec. 16 (page 1759), making it a misdemeanor to exercise tbe privilege of a retail liquor dealer without first paying the taxes prescribed for the exercise thereof, though be has a United States revenue license to retail liquor, tbe procuring of wbicb is made by tbe said act (page 1743) prima facie evidence that be is in tbe retail liquor business, because tbe offense denounced by said act of 1909 is not an offense less than and included in tbe offense denounced by said act of 1899, within tbe meaning of tbe statute (sections 7085 and 7195 of Shannon’s Code), permitting, on an indictment for an offense admitting or consisting of different degrees, a conviction of a lower degree of tbe offense than that in form charged, or of any offense necessarily included in that charged. Tbe fact that the punishment prescribed for tbe violation of the offense denounced by said act of 1909 is less than that prescribed by said act of 1899 is not determinative, and does not make tbe offenses denounced by said act of 1909 an offense less than and included in that denounced by said act of 1899. A single sale is sufficient to constitute tbe offense under said act of 1899, but not that under said act of 1909, under wbicb a number of sales or acts constituting a business is necessary to constitute tbe offense, and certainly an offense requiring a number of sales to constitute it cannot be less in degree than an offense requiring but a single sale to constitute it. Code cited and construed: Secs. 7085, 7195 (S.); secs. 5951, 606Í (M. & V.); secs. 5122, 5222 (T. & S. and 1858). Acts cited and construed: Acts 1832, cb. 22; Acts 1851-52, cb. 36; Acts 1899, cb. 161, secs. 1, 2; Acts 1909, cb. 479, secs. 4, 16, pp. 1726, 1743, 1759. Cases cited and approved: McCroskey v. State, 2 Cold., 180; Fanning v. State, 12 Lea, 651.
125 Tenn. 452Bonham v. Harris (1911)
1. CHANCERY PLEADING AND PRACTICE. Replication to affirmative allegations of the answer is not required. The complainant in a hill in chancery need not file a replication to the answer; for the law interposes a formal replication, making an issue upon the affirmative averments of the answer. (Post, p. 458.) Code cited and construed: Secs. 6132, 6138, 6244 (S.); secs. 5065, 5071, 5177 (M. & V.); secs. 4322, 4328, 4432 (T. & S. and 1858). Cases cited and approved: Stainback v. Junk, 98 Tenn., 306, 317. 2. RELIGIOUS SOCIETIES. Members adhering to doctrinal standards of their church are entitled to the church property as against members joining another church under an attempted void union of the two churches. The union attempted between the Cumberland Presbyterian Church and the Presbyterian Church in the United States of America, more briefly called the Presbyterian Church, U. S. A., was void, and in case of a division of a congregation of the Cumberland Presbyterian Church and a subsequent litigation over the church property, the faction which adhered to the doctrinal standards of the Cumberland Presbyterian Church was the true congregation, and was entitled to the property, and the faction which went ■ over to the Presbyterian Church in the United States of America, in recognition of such attempted void union, had no longer any right to the church property. (Post, pp. 456, 457, 463.) .Case cited and approved: Landrith v. Hudgins, 121 Tenn., .556, 3. SAME. Same. Members adhering to doctrinal standards of their church are not estopped by participating in government and services with congregation of the void union with another church. The members of a congregation of the Cumberland Presbyterian Church, who, for a short time after the attempted void union of said church with the Presbyterian Church in the United States of America, continued to particpate in the government and to attend the services of their congregation meeting at the church house' of the Cumberland Presbyterian Church which claimed to become a part of the Presbyterian Church in the United States of America, are not estopped from claiming that they are part of the original congregation and entitled to its property, where influential members affiliating under said attempted void union stated that members had a year in which to decide, and these members refused to agree to the union before the test case deciding the invalidity of the union was determined. (Post, pp. 457-461, 465.)• 4. SAME. Election of eiders as a new congregation by members adhering to doctrinal standards of their church does not create a new congregation, when. Where a part of the members of a congregation of the Cumberland Presbyterian Church insisted that it had become a part, of the Presbyterian Church in the United States of America,, by an attempted union between those two churches or denominations, subsequently adjudged to be ineffective, while other members of the congregation insisted that they were still a part of the Cumberland Presbyterian Church and a continuation of the old congregation, it was held that an election of elders by the anti-unionist did not create a new organization or congregation, though the elders were elected by the members, as when a new congregation is established, and without a nomination by the session, as is required in the election of elders in an established congregation, with a provision that the members may nominate a person for the eldership, regardless of the fact that the session has nominated some one else, and may elect the person so nominated hy themselves; and especially such election did not create a new organization, where it was declared hy the members, while participating in the election without such nomination hy the session, that they were acting as the original congregation, and were not forming a new congregation. (Post, pp. 461-463.) 5. SAME. Void union of two churches leaves the church property with the original organizations. "Where an attempted union between two church denominations is void, because not in conformity with the constituent rules and principles required hy one of these bodies to make such union effective, the chur.ch property of the one can he carried into the other denomination only by the unanimous consent of the members of the former; and until such consent has been given, the property is not transferred from one organization to the other, but remains that of the original organization, _ and prior to that time any member or members can signify dissent from such union and retain the property in the old organization; for the members 'adhering to the principles and doctrines of their church denomination are the true congregation, and are entitled to its property. (Post, pp. 463, 464.) Case cited and approved: Landrith v. Hudgins, 121 Tenn., 556. 6. Same. Acquiescence in void union of two churches and the action of the majority may amount to conclusive evidence of consent to transfer; but not estoppel; rule not applicable in this case. Where an attempted union between two church denominations was void, there may be an acquiescence of the minority members for such length of time in the action or course of conduct of the majority of a congregation as to amount to conclusive evidence of a unanimous agreement for the transfer of the property, although no formal vote was given for the transfer of such property from the one church denomination to the other, and the members so acquiescing may be conclusively presumed to consent thereto, not upon the doctrine of estoppel, but upon a rule of evidence, and admission inferred-from such conduct. However, the facts of this case do not present grounds for such an inference. (Ppst, pp. 464, 465.)
125 Tenn. 472Cantrell v. King (1911)
1. CONSTITUTIONAL LAW. Statute regulating bulk sales of merchandise is a valid and constitutional exercise of the police power. The statute (Acts 1901, ch. 133), construed as an enactment of substantive law making sales of merchandise in hulk in violation of its provisions absolutely void, is a valid and constitutional exercise of the police power for the regulation of trade and the prevention of fraudulent sales by merchants to the injury of their creditors. (Post, pp. 477, 478.) Acts cited and construed: Acts 1901, ch. 133. Cases cited and approved: Neas v. Borches, 109 Tenn., 398; State v. Mill Co., 123 Tenn., 404; Lemieux v. Young, 211 U. S., 489; Jaques & Tinsley Co. v. Carstarphen Co., 131 Ga., 7-17; Squire v. Tellier, 185 Mass., 18; McDaniels v. Shoe Co., 30 Wash., 549. 2. SALES OF MERCHANDISE IN BULK. Without compliance with statute regulating same are fraudulent in law and absolutely void. The statute (Acts 1901, ch. 133), providing that the sale in bulk of a stock of merchandise, or any portion thereof, otherwise than in the ordinary course of trade, in the regular and usual prosecution of the seller’s business, shall be presumed to be fraudulent and void as against the creditors of the seller, unless the seller and purchaser shall, at least five days before the sale, make a full and detailed inventory showing the quantity, and so far as possible, with the exercise of reasonable diligence, the cost price, to the seller, of each article to he included in the sale, and unless such purchaser shall, at least five days before the sale, in good faith, make full and explicit inquiry of the seller as to the names of his creditors and their addresses, and notifies them personally, or hy registered mail, of the proposed sale, the cost price, and the price to be paid therefor, is construed and held to be a substantive law declaring such sales without compliance with its said provisions to be fraudulent in law and absolutely and conclusively void, though there be no fraud in fact, and not simply a statute prescribing a rebuttable presumptive rule of evidence. (Post, pp. 474-482.) 'Acts cited and construed: Acts 1901, ch. 133. Case cited and approved: Jaques & Tinsley Co. v. Carstarphen Co., 131 Ga., 15, 16. 3. SAME. Same. Seller’s concealment of the larger part of his creditors and indebtedness avoids sale under statute regulating such sales; case in judgment. Where a retail merchant, the owner of a retail stock of goods, contracts to sell or to exchange his entire stock at- a given price, without inventory or notice to his creditors, to whom he was then indebted for a large part thereof, but after the contract was made, and on demand of the purchasers, gave them a list of his creditors and indebtedness, but concealed the larger part thereof, and the inventory then taken amounted to about one-third of the represented value of the goods, whereupon the purchasers refused to complete the purchase, the sale so attempted to be made was fraudulent in law, void, and non-enforceahle, because of the noncompliance with the statute (Acts 1901, ch. 133), regulating the sales of merchandise in hulk, as stated in the preceding headnote, without regard to the question of fraud in the misrepresentation of the value of the goods. (Post, pp. 480-482.) Acts cited and construed: Acts 1901, ch. 133. 4. CONTRACTS. In violation of law, or that are immoral or against public policy, are not enforceable. An action will not lie to enforce a contract made in violation of a statute or of the common law, or which is immoral in its character, or contrary to public policy. (Post, p. 482.) Cases cited and approved: Parks v. McKamy, 3 Head, 297, 298; Stephenson v. Ewing, 87 Tenn., 46; Haworth v. Montgomery, 91 Tenn., 16; Insurance Co. v. Kennedy, 96 Tenn., 714; Hartón v. Lyons, 97 Tenn., 193; Watterson v. Nashville, 106 Tenn., 410.
125 Tenn. 483Evans v. Steele (1911)
1 BILLS AND NOTES. Possession is prima facie evidence of ownership of bank bills. The possession of bank bills, issued by the Bank of Tennessee, whose charter provided that they should be receivable by the State in the payment of taxes and dues to the State, makes a prima facie case of ownership in the holder. (Post, pp. 486-491 and especially 488, 489.) Acts cited and construed: Acts 1837-38, ch. 107, sec. 12; Acts 1885, ch. 83; Acts 1901, ch. 89. See Acts 1883,, ch. 104, repealed by Acts 1901, ch. 88. Cases cited and approved on this headnote, and on other points historically stated in the opinion, as follows: Furman v. Nichol, 3 Cold., 433; State, ex rel., v. Sneed, 9 Bax., 472; Keith v. Clarke, 4 Lea, 718; Clark v. Keith, 8 Lea, 704; Marr v. State, 10 Lea, 470; Noteholders v. Funding Board, 16 Lea, 46; Furman v. Nichol, 8 Wall., 44; State, ex rel.,.v. Sneed, 96 U. S., 451; Keith v. Clark, 97 U. S., 454. 2. STATUTES OF LIMITATIONS. Do not run against bank notes issued to circulate as money as a special obligation against the State. The notes of the Bank of Tennessee. were issued to circulate ,as money, and under its charter were a special obligation of the State, receivable by it in the payment of taxes and other dues owing to it; and, therefore, there is no statute of limitation applicable to them, or that will run against them. (Post, pp. 492, 493.) Acts cited and construed: Acts 1837-38, ch. 107, sec. 12; Acts 1885, ch. 83. 3. LACHES. Chancery will refuse relief on stale demands after loss of evidence so that decree cannot be pronounced with confidence. ■Relief is generally refused by courts of equity, because of the lapse oí time, in cases where the loss of evidence, death of witnesses or parties, and failure of memory resulting in the obscuration of facts to the" prejudice of the defendant, render uncertain the ascertainment of truth, and make it impossible for the court to pronounce a decree with confidence, though defendant does not show absolutely that his defense has been actually lost or prejudiced; for it is sufficient if it can be seen that the defendant has been deprived of -an advantage which he might have had if the complainant’s claim had been seasonably presented. (Post, pp. 494, 495.) Cases cited and approved: Bolton v. Dickens, 4 Lea, 577; Mackall v. Casilear, 137 U. S., 556. 4. SAME. Same. • Case In judgment, where relief on notes of the Bank of Tennessee, tendered in payment of taxes, was refused for laches of more than forty years. The Bank of Tennessee, under the 12th section of its charter (Acts 1837-38, ch. 107), providing that its notes should be receivable at the treasury of the State and by all tax collectors and other public officers, in all payments for taxes and dues to the State, issued regular notes and notes denominated as “Torbett” or “post” notes. After the close of the war between the States, a general creditors’ bill was filed, under which a receiver was appointed, and the assets of said bank were distributed among its creditors, including a large number of the holders of said Torbett or “post” notes, and thereafter Acts 1885, ch. 83, was passed, authorizing the funding of said notes by exchanging therefor certificates issued by a funding board, which act remained in force until 1901 (Acts 1901, ch. 89). The complainant, in payment of an inheritance tax, tendered to the proper county court clerk a “post” note of said bank for five hundred dollars, and a small amount of the regular notes of said bank; and, upon the clerk’s refusal to accept them, lie paid the amount due in legal tender money, and filed his bill to recover it hack. In view of the fact that said notes had been receivable by the State for more than forty years; that complainant’s delay was wholly unexplained; and that, through loss of evidence, the State was unable to establish a defense, it was held that complainant’s demand was barred by laches. (Post, pp. 486-496, and especially 495, 496.) Acts cited and construed: Acts 1837-38, ch. 107, sec. 12; Acts 1885, ch. 83; Acts 1901, ch. 89. Cases cited and approved: Hammonds v. Hopkins, 3 Yerg., 525; Lafferty v. Turley, 3 Sneed, 157; Parkes v. Clift, 9 Lea, 524; Pope v. Harrison, 16 Lea, 82; Parker v. Hotel Co., 96 Tenn., 252; Hammond v. Hopkins, 143 U. S., 224; Abraham v. Ordway, 158 U. S., 416; Willard v. Wood, 164 U. S., 510; Chase v. Chase, 20 R. L, 202.
125 Tenn. 497De Garmo v. Prater (1911)
1. EJECTMENT. Maintainable against actual occupant, though mere unknown servant of adverse claimant, prevents bar of statutes of limitations in favor of such adverse claimant made a party defendant by- amendment. Under the statute (Shannon’s Code, sec. 4972), authorizing- ejectment against the actual occupant, if any, and if no such occupant, then against any person claiming an interest therein, or exercising acts of ownership, an action of ejectment may be maintained against one in actual possession as the mere servant, agent, or employee of a third person, where such suit was instituted by a claimant having no knowledge of the actual relationship; and such suit stops the operation of the statutes of limitations, so that complainant, upon -obtaining knowledge of the relationship, may make the third person a party defendant to the suit, and such new defendant cannot rely upon the seven year statute of limitation as a bar, where the statute had not formed a bar when the suit was originally instituted. (Post, pp. 501-523.) 'Code cited and construed: Sec. 4972 (S.); sec. 3955 (M. & V.); sec. 3231 (T. & S. and 1858). Cases cited and approved: Colcord v. Hall, 3 Head, 625; Tindal v. Wesley, 167 U. S., 204; Chatard v. O’Donovan, 80 Ind., 28; Doe v. Stradl’ng, 2 Starkie (Eng.), 187; Shaver v. McGraw, 12 Wend. (Ñ. Y.), 558; Lucas v. Johnson,'- 8 Barb. (N. Y.), 244; Hennessey v. Paulsen, 147 N. Y., 255; Hawkins v. Reichert, 28 Cal., 534; Polack v. Mansfield, 44 Cal., 36. Cases cited, reviewed, and distinguished, or disapproved: Chiniquy v. Catholic Bishop of Chicago, 41 Ill., 148; Danihee v. Hyatt, 151 N. Y., 493; Lattie-Morrison v. Holladay, 27 Or., 175; Hawkins v. Reichert, 28 Cal., 534; Polack v. Mansfield, 44 Cal., 36; Shaw v. Hill, 83 Mich., 322; Hendricks v. Rasson, 49 Mich., 83; Mead v. Owén, 80 Vt., 273, 278; Davis v. Williams, 130 Ala., 530; Haywood v. Miller, 3 Hill (N. Y.), 90; Kerrains v. People, 60 N. Y., 226; Bowman v. Bradley, 15 Pa., 351; Hughes v. Overseers, 5 M. & G., 54; King v. Stock, 2 Taunt., 289. 2. SAME. Same. Complainant will not be required, at his peril, to know whether actual, occupant is a tenant or mere servant. Where the relation of master and servant merely is apparent and unquestioned, and the master is subject to suit, there is no practical inconvenience in the administration of the rule that the claimant cannot maintain ejectment against such servant or employee; but where the solution of the question as to whether the person in occupation of the land is in fact a tenant of a third person not in possession or occupancy, or merely his servant, agent, or employee, depends upon a disputed state of facts, there would always be great inconvenience in applying, in ejectment cases, the rule that would, in such cases, prevent the maintenance of the action against such occupant, and such rule, will not be adopted and applied in this State, notwithstanding the. decisions of other States. (Post, pp. 517-520, 522, 523.) C. SAME. Same. Same. Claimant may maintain ejectment against occupant ostensibly controlling the land, regardless of his relation to others. It has always been understood in this State that the owner, or the person claiming to be the owner, might maintain ejectment against the occupant on the land, and ostensibly controlling it, no matter who he might be, or' in what relation he stood to any other person; and this is regarded as the only safe rule. (Post, p. 520.) 4. SAME. Occupant ostensibly controlling land may be sued; occupancy by possession. The occupant is the person on the land and ostensibly controlling it. There may be a possession without actual bodily occupancy, as where one has built a house upon land and has locked the doors or has inclosed a field and has maintained his inclosures. This may be considered a form of occupancy, and, at all events, it is a possession, and it has been held in this State that suit may be brought against the party maintaining such possession or form of occupancy. (Post, p. 520.) Code cited and construed: Sec. 4972 (S.); sec. 3955 (M. & V.); sec. 3231 (T. & S. and 1858). 5. DEEDS OF CONVEYANCE. Deed appearing to be written on back of State’s grant as shown by their juxtaposition on the registration book, and thus identifying land conveyed. Where, following the registration of the State’s grant in the county register’s office, there appears a registered writing purporting to be a deed, referring to the maker thereof as “the grantee in the within grant,” and conveying to the grantee ' (named) -“the within named tract of land containing five thousand acres, and described as therein mentioned,” it is clear, from the connection of the two papers, that the deed was • written upon the back of the grant, and referred to the land therein described as the land conveyed; and this conclusion is reached upon the foregoing matter/ although the State’s original grant was not before the court so that the court could see actually written upon its back the deed made by such grantee. (Post, pp. 523-531.) 6. SAME. Certificate of copies of State’s grant and of grantee’s indorsed deed that is sufficient to make them admissible in evidence. Under the statute (Shannon’s Code, secs. 567, 5573, and 5576), making certified copies of public records (including books of the registers) admissible in evidence, etc., a certificate of a county register is sufficient to render the copies of a grant and deed admissible in evidence where the ■ certificate follows-what purports to be a copy of the State’s grant of land and a deed from the grantee, appearing on the register’s book immediately after the grant, and held to be written on the back of the grant, as shown in the preceding headnote, which certificate recites that the foregoing grant and certificates are correct copies of a grant and certificate as the same appear of record in his office in a designated book and page. (Post, pp. 523-531.) Code cited and construed: Secs. 567, 5573, 5576 (S.); secs. 529, 4541, 4544 (M. & V.); secs. 454, 3791 (T. & S. and 1858).
125 Tenn. 532Richardson v. Vick (1911)
1. CONTRACTS. Procured by fraud are voidable at option of defrauded party, when. It is elementary law, of tiniversal application, that fraud renders all contracts voidable, ab initio, at the option of the defrauded party, when diligently exercised, in the absence of intervening rights of innocent third persons, since there is no real assent to the contract, where it was procured by fraud. {Post, p. 540.) 2. SAME. Sales and possession procured by fraudulent representations as to solvency may be disaffirmed, and title and possession regained. Where one has induced another to sell and deliver to him property, on a credit, by false and fraudulent representations of solvency, with the intention of not paying for it, the seller has the right to disaffirm the sale and reinvest in himself the title to the property, and reclaim possession. {Post} pp. 540, 541.) Cases cited and approved: Belding v. Frankland, 8 Lea, 67; Donaldson v. Farwell, 93 U. S., 632. 3. SALES. Purchaser’s intent not to pay for goods is established by his hopeless insolvency, without actual false representations, when. The fraudulent intent not to pay for property purchased may be deduced from the facts and circumstances, where no actual false representations of solvency are made, as where the purchaser has full knowledge of his insolvency and inability to pay; and false representations of solvency knowingly and purposely made to induce a sale and delivery of goods upon a credit, when the purchaser is hopelessly insolvent, are sufficient to establish the fraudulent intent not to pay for them, because" his condition must necessarily preclude any honest intent to the contrary. {Post, p. 541.) Cases cited and approved: Belding v. Frankland, 8 Lea, 67; Katzenberger v. Leedom, 103 Tenn., 144; Talcott v. Henderson, 31 Ohio St., 162. 4. SAME. Same. Evidence establishing purchaser’s fraudulent intent not to pay for the goods. In the seller’s suit in disaffirmance of the sale and to recover the goods from the purchaser’s administrator, where the purchaser procured the possession of the goods upon a credit sale, by the false representations that he was worth from sixty thousand to seventy thousand dollars, made for that purpose, When he knew that he was hopelessly insolvent, and could not have possibly had any reasonable expectation of making payment, the facts present a strong case for the application of the rule in the preceding headnote, and show the purchaser’s fraudulent intent not to pay for the goods. {Post, pp. 542, 543.) 5. SAME. Same. Same. To avoid sale, false representations as to solvency need not be the sole, if material, consideration for credit. To avoid a sale, it is not necessary that the purchaser’s false representations as .to his solvency be the sole and exclusive consideration for the credit, but only that they be a material consideration, without which the credit would probably not have been extended. {Post, p. 542.) Case cited and approved: In re Marco Gany (D. C.), 4 Am. Bankr. Rep., 576, 103 Fed., 930. 6. SAME. Of goods to firm on the sole credit of one partner and his false and fraudulent representations as to his financial condition is invalid, though the other partner is solvent. •Where goods were sold and delivered to a firm upon the exclusive credit of the only one of the partners known to the seller, a credit established by previous dealings, and upon his false and. fraudulent representations as to his financial condition, made "without intention to pay for the goods and to induce the giving of the credit, which was extended exclusively to the partner making such representations, the mere fact that the other partner was solvent does not make the sale valid, especially where, after the dissolution of the firm, the seller released the other partner without any knowledge of their real financial condition; for the seller cannot he hound upon á contract to which his mind did not assent, and which he did not make. (Post,, pp. 542, 543.) 7. ADMINISTRATION. Statute for ratable payment of debts of insolvent decedents does not affect fixed liens. The statute (section 4065 of Shannon’s Code), providing that insolvent estates of decedents shall he divided among the creditors ratably, and that no action, judgment, hill, or note shall have precedence over unliquidated accounts presented and' filed, but that all such claims shall be acted upon as being of equal grade, was enacted and intended to abrogate the common law distinctions, between debts due, on account of the character or form, of the evidence of the debt, to abolish all rules of priority or preference in the payment of the debts of insolvent decedents, arising from the nature, degree, or dignity of the debt, and, in case of the deficiency of assets, to place all creditors upon the same footing of absolute equality, by compelling a pro rata distribution of the assets, and was not intended to affect or impair the liens acquired or fixed upon property of debtors during life, but to secure a ratable division of the assets subject to the payment of general debts. (Post, pp. 543, 544.) Code cited and construed: Sec. 4065 (S.); sec. 3170 (M. & V.); sec. 2326 (T. & S. and 1858). Cases cited and approved: Rains v. Rainey, 11 Hum., 261; Fields v. 'Wheatley, 1 Sneed, 354; Winton v. Eldridge, 3 Head, 361; Parchman v. Charlton, 1 Cold., 382; Kinsey v. McDearmon, 5 Cold., 392; "Bacchus v. Peters, 85 Tenn., 680. S. SALES. Avoided for fraud of vendee vests title and right of possession, and not a mere lien, in the seller, not defeated' by suggestion of insolvency of vendee’s estate. The seller of goods delivered to the vendee upon his false and fraudulent representations as to his solvency, made with the intention to obtain credit and not to pay for the goods, may disaffirm the sale and recover the goods, even after the death of the vendee and the suggestion of insolvency of his estate, because, upon such disaffirmance, the title and right of possession of the goods vest in the seller, and not a mere lien upon the goods, either inchoate or fixed. {Post, pp. 544, 545.) 9. SAME. Avoided for fraud of vendee, and goods recovered after vendee’s general assignment or bankruptcy. Where a sale of goods upon a credit was induced by the buyer’s false and fraudulent representations as to his ' solvency, the seller can recover his property, notwithstanding a valid assignment made to secure general creditors, or the fact that the debtor has been declared a bankrupt. {Post, pp. 545, 546.) Cases cited and approved: Belding v. Frankland, 8 Lea, 67; Donaldson v. Farwell, 93 U. S., 632; In re Hamilton Furniture Co. CD. C.), 117 Fed., 774. 10. Same. Avoided for vendee's fraud, as soon as learned, entitles seller to rescission and rec'overy of the goods, even after suggestion of insolvency of vendee’s estate; no laches. Where the seller of goods, upon a credit induced by the purchaser’s false and fraudulent representations as to his solvency, promptly disaffirmed the sale and brought petition to recover possession, upon his first knowledge of the falsity of such representations and the insolvency of the estate of the deceased purchaser, obtained from the suggestion of the insolvency of his estate by the administrator thereof; such seller is not guilly of laches, and is entitled to a recovery, especially where the rights ot no innocent third parties have intervened or attached. {Post, p. 546.)
125 Tenn. 547Motlow v. State (1911)
1. CONSTITUTIONAL LAW. Classification of police laws is permitted unless purely arbitrary and without reasonable basis. The provision of the eighth section of the first article of our State constitution, embracing “the law of the land” clause, when read in connection with the first clause of the eighth section of the eleventh article the same constitution, is substantially the same as that contained in the second clause of the first section of the fourteenth amendment to the federal constitution, and does not take from the State the power of classification in the enactment of police laws, but admits of the exercise of a wide scope of discretion in that regard, and avoids what is done only when it is without any reasonable basis, and, therefore, purely arbitrary; for a classification having some reasonable basis does not offend against that provision merely because it is not made with mathematical nicety, or because in practice it results in some inequality. (Post, pp. 559, 560.) Constitution cited and construed: State const., art. 1, sec. 8; art. 11, sec. 8, el. 1; federal const., 14th am., see. 1, cl. 2. Case cited and approved: Lindsley v. Gas Co., 220 U. S., 61. 2. SAME. Same. Presumption of fact's sustaining classification in police laws; burden on assailant of classification. •, When the classification in a police law is called in- question, or asserted to be in conflict with said constitutional provisions (art. 1; sec. 8, and art. 11, sec. 8), any state of facts that can be reasonably conceived that-would sustain it will be assumed to have existed when the law was enacted; and one assailing •the classification in such law must bear the burden of showing that it does not rest upon any reasonable basis, but is essentially arbitrary. (Post, pp. 559,- 560.) Citations: See under preceding headnote. 3. INTOXICATING LIQUORS. Licenses may be Issued for their sale for certain nonbeverage purposes. Acts 1909, chs. 13 and 14, when construed in connection with Acts 1899, ch. 161, and Acts 1909, chs. 1 and 10, were not intended as a general withdrawal of the power to issue licenses, except for the sale of intoxicating liquors as a beverage, and thereunder a license may still be issued, under which the holder may sell intoxicating liquors for medical, mechanical, chemical, scientific, and sacramental purposes, and for these purposes only (Post, pp. 560-562.) Acts cited and construed: Acts 1899, ch. 161; Acts 1909, chs. 1, 10, 13, 14. Cases cited and approved: Druggist Cases, 85 Tenn., 449, 457; Kelly v. State, 123 Tenn., 516, 531 et ség., 550. 4. SAME. Alcohol 188 proof is an “Intoxicating liquor,” Included In the statutory classes of intoxicating liquors. Alcohol 188 proof, expressly excepted from the statute (Acts 1909, ch. 10) which prohibits the manufacture of intoxicating liquors, including all vinous, spirituous, or malt liquors, for purposes of sale, is an “intoxicating liquor” included within said classes,' and not exclusive thereof. (Post, p. 562.) Case cited and approved: Marks v. State, 159 Ala., 71, 83. 5. CONSTITUTIONAL LAW. Statute prohibiting manufacture' of Intoxicating liquors for sale, excepting alcohol 188 proof, Is not invalid for its such classification. The statute (Acts 1909, ch. 10), which in effect puts the manufacturers of intoxicating liquors in a separate class, by forbidding them to manufacture, for sale, any intoxicating liquors, including all vinous, spirituous, or malt liquors, all of which may be sold for certain nonbeverage purposes, excepting the manufacture of alcohol 188 proof for chemical, pharmaceutical, medical, and bacteriological purposes, has a reasonable tendency towards making the other prohibition laws more effective by diminishing the quantity of such liquor and making it more difficult and expensive to obtain the same, and hence rests upon a sufficient ground for the classification. (Post, pp. 559, 562, 563.) Acts cited and construed: Acts 1909, ch. 10. 6. INTOXICATING LIQUORS. Judicial notice of activities of brewers and distillers in opening and maintaining saloons to sell their products. It' is a matter of judicial knowledge on the part of the supreme court, arising out of the history of the liquor litigation in this State, that the breweries actively encourage and foster the opening and maintaining of saloons to enable them to sell their product, and that distilleries have places where the product is stored for the convenience of the market. (Post, p. 563.) 7. CONSTITUTIONAL LAW. Statute prohibiting manufacture of intoxicating liquors, for sale, but excepting alcohol 188 proof, is not invalid for its classification. The statute (Acts 1909, ch. 10), prohibiting the manufacture of any intoxicating liquor, including all vinous, spirituous, or malt liquors, for purposes of sale, but allowing the manufacture of alcohol of not less than 188 proof for chemical, pharmaceutical, medical, and bacteriological purposes, is not arbitrary or unreasonable in its classification, on account of such exception of alcohol, since alcohol of 188 proof would have far less tendency than commercial liquors to impair the operation of the prohibition laws, and since there is no discrimination except as to the grade of the product, and no discrimination as against the manufactures themselves. (Post, pp. 563-565.) Acts cited and construed: Acts 1909, ch. 10. 8. SAME. Same. Such statute does not unjustly, unreasonably, and arbitrarily discriminate against liquor manufacturers .in this State and in favor of those in other States. The statute (Acts 1909, ch. 10) does not, hy its provisions stated in the preceding headnote, unjustly, unreasonably, and arbitrarily discriminate against liquor manufacturers in this State and in favor- of liquor manufacturers in other States, whose products may be sold here for medical and other nonbeverage purposes, through the means of interstate commerce importations into this State, because the object of the statute is to prevent the impairment and violation of the prohibition laws, and the local manufacturers, if not prohibited, could easily make much more than would he required for such medical and other nonbeverage purposes, and it would be expensive and difficult, if not impossible, to prevent sales of their products in violation and impairment of the prohibition laws. {Post, pp. 565, 567.) Acts cited and construed: Acts 1909, ch-. 10. 9. INTERSTATE COMMERCE. Importation of intoxicating liquors from other States cannot be prohibited by the State; failure to attempt it is no discrimination. The State has no power to prohibit the importations of intoxicating liquors from other States or countries, as such traffic is regulated wholly by federal law; and no discrimination can be rightly charged on the ground that the State fails to act on a matter as to which it has no power. (Post, pp. 565, 566.) 10. INTOXICATING LIQUORS. Prohibition of their manufacture for lawful sale here is within the police power. While it is lawful to sell, in this State, intoxicating liquors (such as whisky, brandy, wine, beer, and ale), for medical and other nonbeverage purposes, still it is within the police power of the State to forbid the manufacture of such liquors for sale. (Post, pp. 566-571.) Acts cited and construed: Acts 1909, ch. 10. Cases cited and approved: Theilan'v. Porter, 14 Lea, 622; Neas v. Borches, 109 Tenn., 398; Kidd v. Pearson, 128 U. S., 19-22; Crowley v. Christensen, 137 TJ. S., 86, 90, 91, 92; Lawton v. Steele, 152 U. S„ 133, 136; Lemieux v. Young, 211 U. S„ 489; Kidd v. Musselman, 217 U. S., 461; Schmidt v. Indianapolis, 168 Ind., 631. 11. CONSTITUTIONAL LAW. Legislative power is complete except as restrained by State or federal constitution. The legislative power is complete, except in the particulars in which it is restrained by the constitution -of the State or that of the United States. (Post, p. 566.) 12. SAME. Same. Restrictions in constitution must be pointed out. Whoever would deny the power of the legislature to pass any act on the ground of constitutional restrictions must he able to put his finger on the clause in the constitution which creates the restriction, or from which there is such necessary implication: (Post, p. 566.) • Cases cited and approved: Demoville v. Davidson Co., 87 Tenn., 214; Stratton v. Morris, 89 Tenn., 497; Redistricting Cases, 111 Tenn., 234, 291. 13. SAME. Criminal laws involving life and liberty are based upon police power and may include manufacture of intoxicating liquors. The whole body of the criminal law is but a branch of the police power, under which men and women may be deprived of their liberty and their lives, and there is nothing in the manufacture of whisky greater than these. (Post, pp. 571, 572.) 14. INTOXICATING LIQUORS. Manufacture and sale may be totally prohibited by the State. The State has the power to enact legislation totally prohibiting the manufacture and sale of intoxicating liquors. (Post, pp. 572-582.) Cases cited and approved: Druggist Cases, 85 Tenn., 458; Webster v..State; 110 Tenn., 491, 504, 506; Kelly v. Connor, 122 Tenn., 339, 374, 375; Bartemeyer v. Iowa, 18 Wall., 129; Boston Beer Co. v. Massachusetts, 97 U. S., 25; Foster v. Kansas, 112 U, S„ 205; Mugler v. Kansas, 123 U. S., 623; Powell v. Pennsylvania, 127 U. S., 678; Kidd v. Pearson, 128 U. S., 1; Schollenberger v. Pennsylvania, 171 U. S., 1; Dairy Co. v. Ohio, 183 U. S., 238, 246; State v. Durein, 70 Kan., 1; Cureton v. State, 135 Ga., 660; Sarrls v. Commonwealth., 83 Ky., 327. 15. CONSTITUTIONAL LAW. Prohibitory statute including innocent acts because of difficulty in separating the good from the bad, and fraud, is not unconstitutional. A prohibitory statute, passed under the police power of the State, although it is so broad as to include within its scope acts otherwise innocent, but included because of the difficulty of separating the good from the bad, and because of the danger of fraud, does not violate the provisions of the fourteenth ■ amendment to the constitution of the United States. (Post, pp. 582-588.) Constitution (U. S.) cited and construed: 14th am. Cases cited and approved: Booth v. Illinois, 184 U. S., 425, 428; Otis v. Parker, 187 U. S., 606; Ah Sin v. Wittman, 198 U. S., 500. 16. INTOXICATING LIQUORS. Manufacture may be totally prohibited, though sales be permitted for certain nónbeverage purposes. Although it is lawful to sell intoxicating liquors in this State for medical, mechanical, and scientific purposes, the manufacture of such articles in this State, though in and of itself not immoral, may be prohibited, because of the great opportunity afforded by the presence of breweries and distilleries for aiding those whose purpose and d.esire to violate the laws prohibiting the sale of intoxicating liquors as a beverage, and because of the temptation on the part of the brewers and distillers themselves to encourage such violations in order to make profits. (Post, pp. 587, 588.) See citations under preceding headnote. 17. CONSTITUTIONAL LAW. Manufacture of intoxicating liquors for sale and exportation to other States and countries may be prohibited. The State legislature has the constitutional power to enact laws prohibiting the manufacture of intoxicating liquors for sale and exportation to other States and countries. (Post, pp. 588, 589.) Case cited and approved: Kidd v. Pearson, 128 TJ. S., 19, 20. 18. INTOXICATING LIQUORS. Manufacture for sale, but not for sale as a beverage In this State, means for sale abroad, and for nonbeverage purposes in Tennessee. The manufacture of intoxicating liquors “for purposes of sale,” hut not “for purposes of sale as a beverage within the State of Tennessee,” can only mean that the manufacture is for the purpose of sale abroad, and also for the purpose of sale in Tennessee for medical, mechanical, and scientific purposes. (Post, pp. 588, 589.) 19. POLICE POWER. Its scope and extent for preservation of public safety, health, and morals Is undefined. The police power is a necessary power, inhering in every sovereignty, for the preservation of the public safety, the public health, and the public morals. It is of vast and undefined extent, expanding and enlarging in the multiplicity of its activities’ as exigencies demanding its service arise in the development of our complex civilization. (Post, p. 589.) 20. SAME. Function of government solely for the legislature’s judgment as to its policy and wisdom. It is a function of government, solely within the domain of the legislature, to declare when the police power shall be brought into operation, for the protection or advancement of the public welfare, and to judge of the wisdom and policy of the law. (Post, p. 589.) 21. SAME. Same. Function of courts to determine whether statute tends to protect public safety, health, and morals, and whether constitutional. In determining whether a statute enacted under the police power, and discriminating between particular classes of persons, is reasonable, the courts have no power to pass updh the statute with a view to determining whether it was dictated hy a wise or foolish policy, or whether it will ultimately redound to the public good, or whether it is contrary to natural justice and equity, because these are considerations solely for the legislature; but the function of the eburts is merely to decide whether it has any real tendency to carry into effect the purposes designed, namely, the protection of the public safety, the public health, or the public morals, and whether that is really the end had in view, and whether the interests of the public generally, as distinguished from those of a particular class, required such interference, and whether the statute in question violates any provision of the State or federeal constitution. (Post, pp. 589, 590.) 22. SAME. Same. Same. Constitutional provisions authorizing courts to control legislative exercise of police power. The constitutional provisions authorizing the courts to assert control over the exercise of the police power by the legislature are, among others, article 1, section 8, and article 11, section 8, of our State constitution, and the fourteenth amendment to the federal constitution, which are in effect the same, and which provide in substance that no one shall be deprived of his life, liberty, or property but by due process of law, or the law of the land, and that no one shall be deprived of the equal protection of the laws. ■ (Post, p. 590.) Constitution cited and construed: Art. 1, sec. 8, and art. 11„ sec. 8 (State); 14th am. (TJ. S.). 23. CLASSIFICATION IN LEGISLATION. Must rest upon some natural or reasonable basis, and be approximately applicable to all members of the class. The constitutional provisions mentioned in the preceding headnote forbid that any mere individual shall be singled out for legislative action, but do not deny the right to the legislature to make proper classifications for purposes of legislation; but such classification must rest upon some natural or reasonable basis, having some substantial relation to the public welfare, and the same provisions must approximately apply in the same way to all the members of the class. (Post, pp. 590, 591, 592.) Constitution cited and construed: Art. 1, sec. 8, and art. 11, sec. 8 (State); 14th am. (U. S.). Cases cited and approved: Marr v. Bank, 4 Lea, 578, 585; Leeper v. State, 103 Tenn., 500, 531; Dayton v. Barton, 103 Tenn., 604; Harbison v. Iron Co., 103 Tenn., 421; Webster v. State, 110 Tenn., 491, 504, 506; Samuelson v. State, 116 Tenn., 470; Morrison v. State, 116 Tenn., 534; Malone v. Williams, 118 Tenn., 390; State v. Mill Co., 123 Tenn., 399; Yick Wo v. Hopkins, 118 TJ. S., 356; Mugler v. Kansas, 123 U. S., 623; Lawton v. Steele, 152 U. S., 133; Railroad v. Ellis, 165 TJ. S., 150; Holden v. .Hardy, 169 TJ. S., 366; Otis v. Parker, 187 TJ. S., 606, 608; Railroad v. May, 19'4 TJ. S., 267, 269, 270; Dobbins v. Los Angeles, 195 TJ. S., 223, 236, 237; Reduction Co. v. Reduction Works, 199 TJ. S., 306, 318, 319. 24. SAME. Same. Reasonableness thereof embraces proper classification. The doctrine of reasonableness in classification in legislation embraces, as a part thereof, the subject of proper classification, as indicated in the preceding headnote, and the two subjects cannot be clearly separated in the authorities; but the cases cited hereunder may be regarded as being especially interesting upon this particular phase of the inquiry. (Post, pp. 591, 592.) Cases cited and approved: Stratton v. Morris, 89 Tenn., 497; Dugger v: Insurance Co., 95 Tenn., 245; Debardelaben v. State, 99 Tenn., 649; Railroad v. Harris, 99 Tenn., 684; Malone v. Williams, 118 Tenn., 390; Ledgerwood v. Pitts, 122 Tenn., 570; State v. Railroad, 124 Tenn., 1; State, ex rel., v. Powers, 124 Tenn., 553; Yick Wo v. Hopkins, 118 TJ. S., 356; Railroad v. Ellis, 165 TJ. S., 150; Holden v. Hardy, 169 TJ. S., 366; Magoun v. Bank, 170 U. S., 293-296; Connolly v. Pipe Co., 184 TJ. S., 540, 559, 560; Railroad v. May, 194 TJ. S., 267, 269, 270; Railroad v. McGuire, 219 U.. S./649, 565. . 25. SAME. Reasonableness thereof has a wider scope in municipal ordinances than in State legislation under police power. In cases involving municipal ordinances, the doctrine of reasonableness in classification has a wider scope than in eases of classification in State legislation under the police power, because such ordinances must be tested, not only by the constitution, but also by the statutes of the 'State, and by the common law (Post, p. 591, 592.) Cases cited and approved: Maxwell v. Jonesboro, 11 Heis., 257; Ward v. Mayor, 8 Bax., 228; Grills v. Mayor, 8 Bax., 247; New-bern v. McCann,. 105 Tenn., 159; Yick Wo v. Hopkins, 118 U. S., 356. 26. CONSTITUTIONAL LAW. Exemption of manufactured articles from taxation does not prevent police legislation prohibiting the manufacture of intoxicating liquors. The statute (Acts 1909, ch. 10), which in effect puts the manufacturers of intoxicating liquors in a separate class, by forbidding them to manufacture, for sale, any intoxicating liquors, except alcohol 188 proof, does not violate the constitutional provision (art. 2, sec. 30) that “No article manufactured of the produce of this State shall be taxed otherwise than to pay inspection fees,” because the State did not, by the granting of the tax exemption, and thereby encouraging the manufacture of intoxicating liquors, impliedly surrender its police power, the ultimate means of self-preservation, so as to prevent the enactment of legislation prohibiting such manufacture. (Post, pp. 559, 593, 594.) Constitution cited and construed: Art. 2, sec. 30. 27. JUDICIAL NOTICE. None that intoxicating liquors are manufactured out of the produce of this State. The supreme court cannot take judicial notice that a manufacturer of intoxicating liquors confined himself, in respect to the raw materials used, to the produce of this State, or even that he uses any such raw material of the produce of this State. (Post, p. 593.) Constitution cited and construed: Art. 2, sec. 30.
125 Tenn. 595Brady v. Oliver (1911)
1. CONTRACTS. Announced intention not to perform may be treated as a breach; suit at once. Where one party to a contract announces in advance his intention not to perform it, the other party thereto may treat the ■contract as broken, and sue at once for the breach, without waiting for the time fixed for performance. (Post, pp. 611, 612, 616.) Cases cited and approved: Roehm v. Horst, 178 U. S., 1; O’Neill V. Supreme Council, 70 N. J. Law, 410; Hochster v. De La Tour, 2 El. & Bl., 678. 2. SAME. Same. Breach by voluntarily rendering performance a legal impossibility; suit at once, when. Where one party to a contract voluntarily disables himself from performing his part of the contract, by voluntarily making performance, on his part, a legal impossibility because of his assumption of other obligations or relations wholly inconsistent with the performance, or by preventing the performance through his unauthorized act, the other party may sue at one© for the breach, in .the absence of any stipulation in the contract to the contrary. (Post, pp. 612-614.) Cases cited and approved: Mining Co. v. Humble, 153 U. S., 540; Wolf v. Marsh, 54 Cal., 228; Shaffner v. Killian, 7 III App.y 620; Insurance Co. v. Insurance Co., 157 N. Y., 633; Stark v. Duval, 7 Okl., 213; Lumber Co. v. Logging Co., 120 Ala., 558; Lockport v. Shields, 87 Ill. App., 150; O’Neill v. Supreme Council, 1 Ann. Cas., 422, and note, and citations. 3. SAME. Right of rescission for default of other party in abandoning contract; no such intention in this case. Before one party to a contract can rescind it for the default of the other party, the default must be of such character as indicates an intention upon the part of the defaulter to abandon the contract. In this case, there was no intention to abandon the contract or property. {Post, pp. 614, 615.) Cases cited and approved: Freeth v. Burr, L. R., 9 C. P., 208: Railroad v. Richards, 152 Ill., 59, 30 L. R. A., 33, and note. 4. SAME. What disability or inability will justify the other party in abandoning the contract. The disability arising from one’s disabling of himself to perform the contract within the time limit need not necessarily he such as prevents the discharge of every obligation of the contract; but the inability to perform the contract in respect to matters which would render the performance of the rest of a thing different in substance from the thing contracted to he done will justify the party not in default in abandoning the contract. {Post, pp. 615, 616.) 5. SAME. Time is not the essence of working contracts; damages for delay is only remedy. As a general rule, time is not of the essence of working contracts, and where the contractor fails to perform his work within the specified time, he is liable in damages only for the delay. {Post, p. 616.) 6. SAME. Same. Failure to complete work within time does not terminate contract; injured party may terminate it after time expires. Where time is not the essence of a working contract, the failure of the contractor to complete the work within the time specified does not, of itself, terminate the contract; hut it^may he terminated after the expiration of the time, at the election of the injured party. {Post, p. 616.) 7. SAME. No rescission of building contract in anticipation of nonperformance within time, when. Where a building contractor was actively engaged in the performance of the work with a large equipment of men, machines, animals, and things, under a contract which made time the essence of the contract, and a material part of it, but was unable to complete the work within the time specified in the contract, though he would be able to perform it by an extension of the time limit, and there was no defalcation in the grade and quality of the work performed, the owner was not justified, at a remote period from the time limit, in rescinding or annulling the contract, in anticipation of a failure of tho contractor to complete the work within the time specified. (Post, pp. 6X5-617.) 8. SAME. Rescission for other party’s total or legal disability, actual default, or unequivocal renunciation, when. To justify a rescission or, annulment of a contract by one party, there must be, upon the part of the other party, an actual default, unequivocal renunciation, or total or legal disability to perform it, and such disability cannot be anticipated; but after it occurs, the nonperformance may be anticipated; yet the disability must be so complete as to place it beyond the power of the defaulting party to perform his obligations in every material respect, so that the thing that could be accomplished would be essentially different from that contracted and promised. The disability must exist at the time of the renunciation as a legally accomplished fact, and not as a mero potentiality. (Post, pp. 617, 618.) 9. SAME. Forfeiture clause will not be enforced against contractor upon owner’s wrongful rescission of building contract, when. The provision in a building contract that the work should be begun before a designated date and prosecuted with proper speed, so as to complete the work before a designated future date, and that, on the refusal of the contractor to supply a Rufficieney of materials and workmen to insure completion ■within the time specified, the owner might provide, at the contractor’s expense, materials and workmen to proceed with and finish the work, and that, in case of a default of the contractor to proceed promptly and complete the work, the owner might cancel the contract and relet the work, or otherwise prosecute it, and, in case of such annulment, all moneys due the contractor should he forfeited to the owner without releasing the contractor from liability, will be given their proper force and effect; but the forfeiture clause inflicting severe and drastic penalties for nonperformance will be strictly construed against the owner, and the contractor’s mere delay in the progress of the work will not justify the owner’s rescission or annulment of the contract so as to visit upon the contractor a forfeiture of compensation and damages for such annulment.» (Post, pp. 617-620.) 10. SAME. Termination, without right, is a breach. Where the owner, without the right to do so, terminates a building contract during the progress of the work, it necessarily follows that he thereby breaches it. (Post, pp. 610, 611, 620.) 11. SAME. Legal right to abandon or renounce contract, submitting to legal consequences. Either party to a contract has the legal right to abandon or renounce it at his will, submitting to the legal consequences thereof. (Post, pp. 620, 621.) Case cited and approved: Ault v. Dustin, 100 Tenn., 383. 12. SAME. Measure of damages for breach is compensation, when. The measure of damages for the breach of a contract, by its nonperformance, is actual compensation in all instances where the nature of the case admits of the rule. (Post, p. 621.) Case cited and approved: Railroad v. Guinan, 11 Lea, 103. 13. SAME. Same. Value of breached contract is difference between price and value. Generally the value of a contract breached by its nonperformance is the difference between the price agreed to be paid for its performance and the cost of performance to the other party. (Post, pp. 621, 623.) Case cited and approved: Singleton v. Wilson, 85 Tenn., 344. 14. SAME. Same. Same. Measure of damages for contractor’s breach of a building contract is the difference between agreed price and cost of performance. Where the contractor abandons a building contract, he must compensate the owner for the damages sustained, which is the difference between the agreed price and the cost of performance. (Post, p. 621.) 15. SAME. Remedies of contractor for owner’s termination or rescission of a building contract. Where the owner, having employed a contractor to perform specific work, wrongfully orders him to vacate the premises and to desist in the further performance of the contract; the contractor may treat the contract as rescinded, and recover damages upon a quantum meruit, so far as he has performed it; or he may keep the contract alive for the benefit of both parties, being himself at all times ready, and able to perform the contract, and, at the end of the time specified in the contract for performance, sue and recover under the contract; or he may treat the repudiation as terminating the contract for all purposes of performance, and sue for the profits which he would have realized if he had not been prevented from performing it. (Post, pp. 621, 622.) Cases cited and approved: Wright v. Haskell, 45 Me., 489; Miller v. Thompson, 22 Ark., 258; Railroad v. Richards, 152 Ill., 59. 16. SAME. Rescission entitles injured party to restoration of status quo; repudiator cannot claim benefit. As a general proposition, neither, party to a contract can rescind it without restoring the status quo; and one cannot repudiate the contract, and refuse to perform his part of it, and at the same time claim the benefit he has derived from it; and in a court of equity, in all matters of rescission, and in all relief alan to rescission, the parties will invariably be placed in statu quo. (Post, p 622.) Cases cited and approved: Hill v. Harriman, 95 Tenn., 305 (and citations); Curtis v. Brannon, 98 Tenn., 161. 17. SAME. Same. Owner’s wrongful termination of building contract treated as a rescission by the contractor entitles contractor to recovery for expenditures in performance, when. Where the owner, having employed a contractor to construct a power house, lock and dam, and core wall, wrongfully ordered the contractor to vacate, the premises and to cease further work, at a time when he was, in good faith, actively engaged in the due and proper performance, with a large equipment of men, machines, animals, and things, the contractor can recover compensation for the outlay of labor and money expended on the property and the necessary expenditures in preparing for performing the contract, upon merely showing that, in good faith, he was in the due performance of his part, without showing that he could have performed the contract within the time specified. Such suit is not upon the contract, nor for the value of the contract, nor for profits, nor for damages for its breach, but for the outlay of labor and money and expenditures of thei contractor in his effort to perform it prior to its rescission by the owner’s wrongful termination thereof, which the contractor treated as a rescission. (Post, pp. 622-625.) Cases cited and approved: United States v. Behan, 110 U. S., 338: Cederberger v. Robison, 100 Cal., 93; Manufacturing Co. v. Manufacturing Co. (C. C.), 39 Fed., 440; McBlwee v. B. L. & I. Co., 4 C. C. A., 525, 54 Fed., 627; Griffith v. Blackwater, B. & L. Co., 55 W. Va., 604'; Worthington v. Gwin, 119 Ala., 44. 18. SAME. Brief statement of expenditures testified to, in the absence of opposing testimony, is not too vague and indefinite for recovery, when. Upon the issue of what were a contractor’s expenditures in his effort of performance which he was entitled to recover from the owner, upon the owner’s wrongful termination and breach of a construction contract, which was treated by. the contractor as a rescission, a statement compiled by the contractor’s bookkeeper from his books, giving unitemized -amounts for plant, materials, supplies, and labor, and for “other expenses not included in above,” stating amount of such other expenses testified to by him, while very brief, is not too vague and indefinite to support a finding of the facts so testified to by him, there being no opposing evidence. (Post, pp. 625, 626.) 19. SAME. Interest on damages from institution of suit for owner’s wrongful termination of construction contract, treated as a rescission by the contractor. Where a contractor, unlawfully prevented from completing the performance of the work by the owner’s wrongful termination of the construction contract, treated by the contractor as a rescission, sued the owner for his outlay of labor, money, and expenditures in his preparation for performance and in the performance until stopped by the owner’s such wrongful act, he was entitled to recover the same as damages, together with interest from the institution of suit therefor, but not from ‘ the date of said wrongful termination of the contract. (Post, p. 626.)
125 Tenn. 627Drake v. Nashville, Chattanooga & St. Louis Railway Co. (1911)
1. COMMON CARRIERS. First connecting carrier owes a contract duty to shipper not to divert shipment from route, when. Where the first connecting carrier received a car load of freight, under the initial carrier’s contract for transportation over several specific lines, procured by the solicitation of such first connecting carrier’s traveling freight agent and shipped in its car, such connecting carrier owed a contract duty to the shipper not to divert the car to another line without his consent. (Post, pp. 633-635, 637.) ■ 2. SAME. Initial carrier participating in first connecting carrier’s unauthorized diversion is equally liable with it for loss of freight. Where a car load of fruit trees was routed over several connecting lines under a contract of shipment, and there was a diversion hy the second carrier owing a contract duty to the shipper not to divert the car, the initial carrier participating in such diversion, as well as such second carrier, is liable, to the shipper for the loss of the freight. (Post, pp. 635-637.) Cases cited and approved: Railroad v. Campbell, 7 Heisk., 261; Railroad v. Odil, 96- Tenn., 63. 3. SAME. Railroad as third party receiving freight under unau- ■ thorized diversion thereof, without sufficient shipping instructions, is liable for loss, when. Where a car load of fruit trees was routed over specified railroad lines under a contract of shipment, another railroad not specified in the routing, which received the shipment under an unauthorized diversion thereof by the second carrier, is liable to the shipper for a loss following the diversion, where it received the car without sufficient shipping instructions, though it had no knowledge of the shipper and no knowledge of the terms of the bill of lading under which the shipment was made. {Post, pp. 638, 639, 645.) 4. SAME. Carrier is not bound to receive freight from any except owner, or his agent; liability for receiving without knowledge or instructions. A. common carrier is not bound to accept for transportation goods from any person other than the owner, or his duly authorized agent; and it is negligence, on its part, for a carrier to receive freight from another carrier, without knowledge of its shipping contract and its authority to offer the freight for transportation. (Post, pp. 639, 640.) 5. SAME. Initial carrier under contract of interstate shipment is liable for full loss by negligence of a connecting carrier, notwithstanding contractual limitation against liability exceeding a stipulated sum. Under the act of congress of February the 4, 1887, ch. 104, sec. 20, 24 Stat., 379, as amended by the Carmack amendment of June the 29, 1906, ch. 3591, 34 Stat., 584, 595, making the initial carrier of an interstate shipment liable for any negligence of the connecting carrier, etc., the initial carrier, under a contract for shipment of a car load of fruit trees, over specified railroad lines, to a point in another State, is liable to the shipper for the entire loss of the freight following an unauthorized diversion of the shipment from the specific route by the second carrier, though the contract purported and undertook to limit its liability to an inadequate agreed valuation. (Post, pp. 630-633, 640-643.) Cases cited and approved: Railroad v. Gilbert, 88 Tenn., 430; Railroad v. Sowell, 90 Tenn., 17; Deming v. Cotton Press Co., 90 Tenn., 327; Railroad v. Stone, 112 Tenn., 348; Railroad v. Smith, 123 Tenn., 678; Railroad v. Mills, 219 U. S., 186. 6. SAME. If second specified carrier refuses to forward freight, initial carrier shall ask for instructions, and, if not given, return the freight. Where the second carrier, under a* contract of shipment over several specified lines, refuses to carry the freight over its specified line, it' is the initial carrier’s duty to receive the freight hack into its possession, and to call upon the shipper for further instructions, in the absence of which, the freight should he returned. (Post, p. 643.) 7. SAME. Notice of claim for loss known to the carrier is wholly unreasonable and unnecessary, though stipulated for. A shipper of a car load of fruit trees is not precluded from re-. covering for a loss of the freight following a diversion from the route specified by the contract of shipment by his failure to make a written claim to the carrier’s agent at the point of destination within thirty days after the arrival of the shipment, as required by the contract, where the shipment was wholly valueless when it reached its destination, and was burned in the station yards, with the knowledge of the agent of the last carrier; for such notice would be wholly unreasonable. (Post, pp. 643-645.) 8. SAME. Joint and several liability of the first two carriers diverting a shipment and of a third carrier receiving the diverted shipment, without sufficient shipping instructions. Where a shipment of fruit trees was, under a contract of through shipment, routed over specified connecting lines, and was^ without authority, diverted by the first two carriers to a line not included in the contract, and that line received the shipment, without sufficient shipping instructions, the_ three carriers are jointly and severally liable for a loss of the shipment following the diversion. (Post, pp. 630-633, 645.)
125 Tenn. 646Nashville, Chattanooga & St. Louis Railway Co. v. Price (1911)
1. FINDINGS OF FACT. Preparation by counsel is improper, when requested to be reduced to writing. Under the statute (section 4684 of Shannon’s Code) requiring circuit judges, upon the request of either party, to reduce their findings of fact to writing, it is improper to permit or require counsel for the successful party to prepare such written findings of fact, because the preparation thereof is a high judicial function that cannot properly be intrusted to counsel naturally so biased with respect to their cases as makes it almost im- - possible for them to present, fairly and fully, all the facts as the judge would do. (Post, pp. 648-650.) Code cited and construed: Sec. 4684 (S.); sec. 3673 (M. & V.); sec. 2959 (T. & S. and 1858). Case cited and approved: Hinton v. Insurance Co., 110 Tenn., 130. 2. SAME. Reduced to writing by counsel will be disregarded; and, if exception was taken and error assigned,' case will be reversed. Such findings of fact so prepared by counsel will not be treated by the supreme court as the statutory findings of fact, and constitute grounds of ieversal, where exception was properly taken; but where no error is assigned for such action, the record will be examined as if no request had been made for such findings. (Post, pp. 648-650.) 3. COMMON CARRIERS. Sleeping car company is liable in damages for expulsion due to its mistake in routing ticket. A sleeping car company is liable in damages for its tort in the expulsion of a passenger in breach of its contract, due to its delivering to him a sleeping car ticket over a route between two points other than that for which it was sought to be purchased and other than that called for by his railroad ticket, where such railroad ticket was then in the possession of the sleeping car company’s agent, and subject to inspection, as the . guide for the route of the sleeping car ticket by its agent who, in this case, was the railroad company issuing the railroad ticket. (Post, pp. 650-655.) Cases cited and approved: O’Rourke v. Railroad, 103 Tenn., 124; Railroad v. Graves, 110 Tenn., 232; Railroad v. Pauson, 70 Fed., 585, 17 C. C. A., 287; Pullman Palace Car Co. v. King, 99 Fed., 380, 39 C. C. A., 573; Railroad v. Reynolds, 55 Ohio St., 370: Gorman v. Railroad, 97 Cal., 1; Banking Co. v. Roberts, 91 Ga., 513; Railroad v. Conrad, 4' Ind. App., 83. 4. SAME. Railroad company is liable in damages for expulsion from sleeping car, due to its mistake as agent in routing sleeping car ticket. A railroad company is liable in damages for the expulsion of a passenger from a sleeping car, duo to its mistake while acting as agent for the sleeping car company, • and while operating, in connection with other railroad®, a lino of through sleepers between two points, in selling him a sleeping car ticket good between those points, but not over the route covered by his railroad ticket. The railroad company’s such act as agent was one of misfeasance and negligence rendering it as agent, as well as the principal, liable. (Post, pp. 655-657.) Case cited and approved: Drake v. Hagan, 108 Tenn., 265.
125 Tenn. 658Louisville & Nashville Railroad v. United States Fidelity & Guaranty Co. (1911)
'1. COMMON CARRIERS. Shipment to consignor’s own order with draft attached with directions to notify purchaser is notice to carrier not to deliver till draft is paid. .A shipment of goods to the shipper’s own order, with draft on the purchaser attached to the bill of lading, with directions to the carrier to notify the purchaser, is an unmistakable indication amounting to notification by the shipper to the carrier that the title to the goods will not pass, and that its duty to deliver will not arise, until the draft has been paid and the bill of lading has been taken up and presented to it. (Post, pp. 664, 666, 674, 675.) •'Cases cited and approved: Bank v. Cummings, 89 Tenn., 609; Charles v. Carter, 96 Tenn., 607, 615; Railroad v. Bank, 123 U. S., 727; Bank v. Railroad, 81 Ga., 221; Stockyards Co. v. Westcott, 47 Neb., 300; Weyland v. Railroad, 75 Iowa, 573; Railroad v. Bank, 77 Ark., 48‘2; Electric Co. v. Railroad, 72 S. C., 255; Lyons v. Railroad, 119 N. Y. Supp., 703; Lyons v. Railroad, 136 App. Div., 903, 120 N. Y. Supp., 1133. '2. SAME. Same. Delivery of goods without taking up bill of lading to which draft was attached is a conversion, when. ' Where a common carrier, without taking up the bill of lading under which the shipment was made to the shipper’s own order, with draft on the- purchaser attached, with directions to notify the purchaser, delivers the goods to the purchaser, without re- . quiring the prepayment of such draft, it is guilty of a conver- : sion; and the failure of the shipper to recover the goods from the purchaser after such wrongful delivery would not relieve the carrier from liability for conversion. (Post, p. 675.) Cases cited and approved: Railroad v. Phillips, 108 Md., 285; . Railroad v. Fay, 89 Ark., 342. 3. SAME. Evidence insufficient to show a custom to deliver goods without surrender of bill of lading to which a draft was attached. In a common carrier’s suit against its clerk and the surety on his bond, to recover for his wrongful delivery of goods consigned to the shipper’s own order, with draft against the purchaser attached to the hill of lading, made to the purchaser, without requiring the payment of such draft and the surrender of the hill of lading properly indorsed, as required by a rule of the. carrier, the evidence is stated, reviewed, and held to be insufficient to show a custom to deliver such shipments to the purchaser without requiring the payment of such draft and surrender of such bib of lading. (Post, pp. 664-677.) 4.- SAME. To establish waiver of rule for protection, carrier must have knowledge of custom of its .receiving agent in violating the rule. Before it can be properly held that a common carrier has sanctioned a custom to violate its rule that its receiving agents must not deliver goods consigned to shipper’s order, with directions to notify the purchaser, except upon the purchaser’s surrender of the original bill of lading properly indorsed, ib must appear that the habit of violation among the carrier’s servants was so constant, open, and general that no reasonable conclusion could be reached other than that the responsible officers of the carrier must have known it; for the knowledge of the adoption of such custom by a subordinate officer must be brought home to the carrier, or there must be such facts in existence in connection therewith as would impute knowledge to the carrier, in order to show its waiver of its said rule. (Post, pp. 676, 677.) 5. FIDELITY INSURANCE: “Culpable negligence” of ecployee, as defined in a fidelity bond and as applied to the facts, is held to be established. Under a fidelity bond to secure the faithful performance of his duties by a clerk in a railroad freight office, which exempted the insuring bondsman from liability for any loss by mistake, accident, or error of judgment on the part of any employee; or hy robbery, unless by or with his connivance of “culpable negligence,” and defining such negligence to mean the “failure to exercise that degree of caro and caution which men of ordinary prudence and intelligence usually exercise in regard to their own affairs of the same character,” the- clerk’s delivery of goods consigned to the shipper’s order, with draft against the purchaser attached to tho bill of lading, made to the purchaser without requiring the surrender of the original bill of lading properly indorsed, in violation of the carrier’s rule, was “culpable negligence” within the meaning of the bond. {Post, pp. 677-6.79.) 6. SAME. Evidence held to show no violation by insured of provision exempting insuring bondsman from liability. In an action on a fidelity bond to secure the faithful performance of duty by a clerk in a railroad freight office, exempting the insuring bondsman from liability, if at any time thejrailroad company suspected or had, knowledge of the fact that the clerk was negligent or unworthy of confidence, and did not immediately notify the bonding company, the evidence is stated, reviewed, and held not to show that the railroad company had violated the provision exempting the bonding company. {Post, pp. 679-683.) 7.. SAME. Same. Evidence held to show no violation by insured of provision for use of precautions to detect wrongful acts by insured employee. In an action on a fidelity bond to secure the faithful performance of duty by. clerk in a railroad freight office, the evidence is stated, reviewed, and held not to show a violation by the railroad company of a provision in the bond that it should use all reasonable precautions to detect any act on the part of the clerk which would tend to render the bonding company liable for any loss, by an audit of his books, etc. {Post, pp. 683-685.) 8. SAME. Same. Same. “Charges” mean “freight charges,” and not value of shipment for which draft is attached to bid of lading forwarded through other agencies for collection. The inspection report showing that the insured employee permitted freight to he delivered without payment of “charges” does not show a delivery of freight shipped “order — notify,” without requiring the surrender of the original bill of lading properly indorsed; for the word “charges,” under the rules and inquiries for the inspectors to answer, mean “freight charges,” pertaining to the revenue of the railroad company, and not money due for the value of shipments with drafts attached to bills of lading, and sent through other agencies for collection from the purchaser. (Post, pp. 680-683.) 9. ASSIGNMENTS OF ERRORS. Not waived by failure to urge and press point in briefs and argument; renewed by petition to rehear. Where, in an action on an indemnity bond, insuring the faithful performance of duties by an employee, and in the penalty of ten thousand dollars, a judgment was rendered by the chancery court against the indemnity company for the penalty of the bond, with interest, and costs, and the appellant (indemnity company) assigned as error that the chancery court erred in adjudging it “liable for $10,000 and interest and costs for any amount,” under which assignment the supreme court could have acted on the matter of interest, the point or ques-tion was not waived on the hearing by a failure to urge and press the same in the briefs and argument; and the appellant might bring it to the special attention of the court in the form of a petition to rehear. (Post, pp. 687-689.) 10. INTEREST. None on penalty of indemnity bond, with collateral conditions, before judgment in lower court. Under the statute (section 4704 of Shannon’s Code) providing that judgment may be entered, upon bonds with collateral conditions, for the stipulated penalty, to be discharged by the payment of the principal, and the interest due thereon, or the damages assessed by the jury, interest cannot properly be allowed on the penalty of a fidelity .bond, prior to the judgment in the lower court, where the bond expresses only a maximum amount of liability, dependent upon the breach of duty by the employee whose conduct was insured, and the exact amount of liability is measured by the extent of the breach, such bond is one with collateral conditions. {Post, pp. 689-690.) Code cited and construed: Sec. 4704 (S.); sec. 3690 (M. & V.); ■sec. 2976 (T. & S. and 1858). Cases cited and approved: Cherry v. Mann, Cooke, 268-273; Overall v. Babson, 2 Yerg., 71, 72; State v. Blakemore, 7 Heisk., 638; Rhea v. McCorkle, 11 Heisk., 415, 416; Fidelity & Guaranty Cov v. Rainey, 120 Tenn., 357, 377, 405, 506. Case cited and overruled: Bank v. Guaranty Co., 110 Tenn., 10. 11. FIDELITY INSURANCE. Bonds are treated' as Insurance contracts as to nature and extent of liability, but they are In form bonds whose penalty cannot be exceeded In judgment. While bonds guaranteeing the fidelity of employees or agents, executed for a consideration by companies organized for and engaged in that business, are treated by the courts as insurance contracts, when under construction with a view to ascertain the nature and extent of the liability assumed, and such companies are not in that respect entitled to the favorable consideration accorded to gratuitous sureties, still they are nevertheless in form bonds with collateral conditions, limited by a sum expressed therein, called the “penalty,” and the judgment cannot exceed the penalty. {Post, pp. 690, 691.) Code cited and construed: Sec. 4704 (S.); sec. 3690 (M. & V.) sec. 2976 (T. & S. and 1858). 12. REHEARINGS. Office of petition to rehear is to call the attention of the court to authorities and matters overlooked, and not to reargue considered points. A petition for rehearing should never be used for the purpose of rearguing the case on points already considered and determined, unless some new and decisive authority has been discovered, which was overlooked by the court; for the office of a petition to rehear is to call the attention of the court to matters overlooked, and not to those things which counsel supposes were improperly decided after full, consideration. (Post,.. VP. 691-693.) Case cited and approved: Jenkins v. Eldridge, 3 Story, 299, Fed... . Cas. No. 7,267.
125 Tenn. 694McEwen v. Thomas Coal & Land Co. (1911)
1. LAND LAWS. Checkerboard system of entries is valid; each entry joins another in the system, and specialty of each depends upon specialty of initial entry, when. The checkerboard system of entries is valid; and if the system is properly located, so that the various entries join each other by proper description, the entry remotest from the initial entry of the system, by tracing back through the intermediate entries, incorporates upon its face, as a matter of law, the locative calls contained in the initial entry, and each entry of the system is special where the initial entry is special. {Post, p. 702.) Cases cited and approved: Bleidorn v. Pilot Mountain C. & M. Co., 89 Tenn., 186; Coal Co. v. Scott, 121 Tenn., 88. 2. SAME. Same. Initial entry must be special to render the others special when containing no locative call except to adjoin others of the system. In a checkerboard system of entries, where each of the final and intermediate entries contains no locative call, except a call to adjoin others of the system, the initial entry must be special, in order to render the subsequent entries special. (Post, pp. 702, 703.) 3. SAME. Special entry is defined. An entry of public state lands, to be special, must contain a ref- . erence to some thing or natural mark from which, either singly or together, the land can be ascertained with reasonable industry to those acquainted in its neighborhood. {Post, p, 703.) 4'. SAME. Special entry must be such upon its face, and cannot be made such by extrinsic proof. A special entry must be special in its description; and, if it is defective in this respect, it cannot be aided by extrinsic proof. (Post, p. 70S.) Cases cited and approved: Barnet v. Russel, 2 Tenn., 20; Barnes v. Sellars, 2 Sneed, S3; Berry v. Wagner, 5 Lea, 564. 5. SAME. Call “meandering said bluff eastwardly, crossing Lit- ■ tie Laurel,” does not make the entry special. The call in an entry “meandering said bluff eastwardly, crossing Little Laurel,” is not such, as to make the entry special; for it does not show that the line crosses Little Laurel where it pours over the bluff, and cannot refer to any particular point or spot of land; nor can it be gathered from such call alone that the creek in fact flows over the bluff. (Post, pp. 703-705.) 6. SAME. Any presumption that preceding entry called for is special will not be indulged in, where proof shows it not to be special. Where an entry calls for a certain corner of a preceding entry as its beginning point, any presumption that the preceding entry is a well-known tract of land, with the result of making the entry containing such call special, can no longer be indulged in, where it is shown in proof that' all the entries were part of a checkerboard system, and that the initial entry was not special. (Post, pp. 70S, 706.) Case cited, distinguished, and approved: Coal Co. v. Scott, 121 Tenn., 88. Cases cited: Barnet v. Russel, 2 Ov., 10; Simms v. Dickson, Cooke, 137; Kendrick v. Dallum, Cooke, 220; Graham v. Dudley, Cooke, 353; Talbot'v. MeGavock, 1 Yerg., 262; Berry v. Wagner, 5 Lea, 364. 7. SAME. Entry containing no locative call cannot be made special by survey. An entry, containing no locative call that will make it special, cannot be made special by a survey. (Poost, pp. 706-710.) Cases' cited and approved: Reid v. Dodson, 1 Tenn., 408; Reid v. Buford, 1 Tenn., 415 Smith, v. Buchannon, 2 Tenn., 305; White v. Crocket, 3 Hay., 183; Winchester v. Gleaves, 3 Hay., 213; Trousdale v. Campbell, 5 Hay., 101; Terrell v. Murray, 2 Yerg., 384; Trousdale v. Campbell, 3 Yerg., 160; Donegan v. Taylor, 6 Humph., 501. Cases cited, distinguished, and approved: Davidson v. Shelton, 1 Overt., 74; Davidson v. Shelton, 2 Overt., 2; White v. Crocket, 3 Hay., 185; Talbot v. McGavock, 1 Yerg., 271; Brummett v. Scott, '4 Heisk., 325; Berry v. Wagner, 5 Lea, 564; Henegar v. Matthews, 88 Tenn., 133. 8. SAME. Elder grant cannot be defeated by younger grant, ex* cept where it was based upon an older special entry. The State’s older grant cannot be defeated by its younger grant of the same land, in whole or in part, upon extrinsic evidence, except by showing an older special entry upon which the younger grant was based. (Post, pp. 710-712.) Acts cited and construed: Acts 1784, 1786, 1789, and 1806, eh. 1, 'secs. 7 and 10, for removal of land warrants. Cases cited and approved: Sevier v. Hill, 2 Tenn., 23; Polk v. HilJ, 2 Tenn., 163; Anderson v. Cannon, Cooke, 27; Donegan v. Taylor, 6 Humph., 501; Thomas v. Tankersley, 5 Cold., 165. 9. SAME. State’s earlier grant based on later entry prevails over its later grant not based on an earlier special entry, though the latest enterer knew what land was Intended to be located by the earlier entry. The State’s earlier grant on the later of the two entries will prevail over a later grant on the earlier entry of the same land, where the earlier entry was not special, though the second enterer was chargeable with personal knowledge of what land was intended to be covered and located by the earlier entry, by reason of the fact that the same person acted as agent for the respective enterers in locating both entries; for personal notice is not such as the law prescribes, and the secret and unexpressed intention of the locator, or enterer, cannot indicate to subsequent locators, ór enterers, the land meant to b'e appropriated, so as to affect their conscience with unfairness, should they attempt to appropriate the same land which the other contemplated. (Post, pp. 712-718.) Cases cited and approved: Reid v. Dodson, 1 Tenn., 408; Reid v. Buford, 1 Tenn., 418; Winchester, v. Gleaves, 3 Hay., 213; Craig v. Polk, 3 Yerg., 249. Case cited and overruled: Coal Co. v. Scott, 121 Tenn., 88.