139 Tenn.

Volume 139 — Tennessee Reports

74 opinions

139 Tenn. 1Poss v. Albert (1917)
1. BILLS AND NOTES. Actions. Defenses. Acts 1907, chapter 602, section 1, declares that all property, real, personal, and mixed, shall he assessed for taxation. Section 8 provides that all personal property of every kind shall he assessed while subsection 7 specifies for assessment all notes, duebills, choses in action, accounts, mortgages, or any other evidence of indebtedness. Section 12 requires taxpayers to fill out or cause to be filled out a schedule setting out their property not later than April 20th of each year, while section 14 provides that in any suit upon any note, bill, bond, or other chose in action subject to taxation, it shall be competent for any defendant to allege and show in defense that such note, bill, bond, or other cbose in action was not given in, or included in, the owner’s assessment' for taxation for the preceding year, and upon such defense being established,' the owner or holder of such note, etc., shall be taxed with all the court costs of the case, and the court shall declare, in rendering such judgment, a lien in favor of the state for taxes unpaid. Held, that in an action on notes not listed for taxation, recovery cannot be denied for that reason, and proof of nonlisting will merely authorize the court to impose payment of costs on plaintiff and the declaration of a lien on the recovery. (Post, pp. 4-7.) Acts cited and construed: Acts 1907, ch. 602, secs. 1, 8, 12, 14, subsec. 7. 2. TAXATION. Listing for taxation. Lien. Plaintiff demised premises for a term of years ending August 1, 1914. The lessees executed a series of rent notes, one note for each month’s rent, and defaulted in payment of rent accruing after November, 1913. After the expiration of the term, plaintiff sued one of the lessees on the notes. None of the notes involved were listed by plaintiff in his schedule for taxes for the year expiring January 10th. Held that, though the owner of personalty has until April 20th to fill out a schedule, the taxes are assessed as of January 10th, and hence a lien for taxes can be declared only On these notes due on January 10th, and as to the other notes involved, no lien could be declared, nor could the costs of the proceedings, as to them, be assessed against plaintiff, for until such notes became due, they were part of the real property. (Post, pp. 7-10.) Acts cited and construed: Acts 1907, ch. 602. Case cited and approved: Combs v. Combs, 131 Tenn., 66. 3. TAXATION. Property taxable. Bealty. Kent notes.. Nature of. Notes executed for rent to accrue are part of the real estate as long as held by the owner and until they mature, and as they would in event of .the owner’s death pass with the reversion and not as personal property, they need not be listed for taxation as personal property until maturity. (Post, pp. 7-10.)
139 Tenn. 11Bird Bros. v. Southern Surety Co. (1917)
1. MECHANICS’ LIENS. Notice of Claim. Time. A materialman or worker must either serve notice of claim within thirty days after furnishing the last material or of expiration of worker’s contract, or within thirty days after completion of the building, to obtain a lien, and service of notice between such periods, even if within thirty days after abandonment of the work by the contractor, is void, under Thom. Shan. Code, section 3540. (Post, pp. 14-18.) Cases cited and approved: Perkins Oil Co. v. Eberhart, 107 Tenn., 409; Cole Mfg. Co. v. Palls, 92 Tenn.. 607; Basham v. Toors, 51 Ark., 309; National Surety Co. v. Price, 162 Ky., 632; Powder Co. v. Railroad, 113 Tenn., 382. Code cited and construed: Sec. 3540 (T.-S.). 2. MECHANICS’ LIENS. Notice of claim. Necessity for.' Piling of an intervening petition, in action by owner to ascertain mechanics’ liens, within thirty days after completion of a building, does not give a materialman or worker a lien when no valid notice of claim has been served, under Thom. Shan. Code, section 3540, relating to notice to owner. Post, pp. 18-19). Cases cited and approved: Stone Co. v. Board of Publication, 91 Tenn., 200; Bassett v. Bertorelli, 92 Tenn., 548; Reeves v. Henderson, 90 Tenn., 522. Code cited and construed: Sec. 3540 (T.-S.). 3. MECHANICS’ LIENS. Indemnity against lien. Bond of contractor. Liability of Surety. A bond conditioned that surety shall indemnify the owner for “loss resulting from the enforcement of mechanics’ liens” does not render the surety liable for attorney’s fees and costs from attempted enforcement of liens which failed because proper notice of claim was not given. (Post, pp. 19-20.)
139 Tenn. 21Honea v. American Council (1917)
1. INSURANCE: Fraternal insurance: Exhaustion of remedies. A beneficial order or association may validly stipulate that remedies must be exhausted by an appeal to a higher tribunal of the order, provided for the adjudication of claims, though it may not wholly deprive its member of the right to invoke the aid of the court of the land. (Post, p. 23.) Case cited and approved: McGuinness v. Court Elm City No. 1, 78 Conn., 43. 2. INSURANCE. Fraternal insurance. Exhaustion of remedies. Where the right to a funeral benefit against a fraternal order is involved, the beneficiary may sue without appealing to the judicatories within the order, though the by-laws provided for appeals therein, if they did not expressly inhibit suit in the courts before exhaustion of the remedies within the order. (Post, pp. 23-24.) Case cited and approved: Benson v. Grand Lodge, B. L. H. (Ch. App.), 54 S. W., 132. 3. INSURANCE. Fraternal insurance. Right to recover. Time of reinstatement. Under by-laws of fraternal order, entitling beneficiary to receive funeral benefits for the death of a member, not caused from any disease which had demonstrated itself prior to his reinstatement, the beneficiary of a member who had been suspended and whose fatal illness demonstrated itself after he applied for reinstatement but before he was finally enrolled on the books of the National Council, could not recover the death benefit. (Post, pp. 24-25.) 4. INSURANCE. Fraternal insurance. By-laws. Construction. Tlie laws of a beneficial association or order, by which the members are bound as by contract, are to be liberally construed in favor of the indemnity of the member or his beneficiaries so as to effectuate the benevolent purpose of the order; but the construction must be of the laws as a whole, rather than of a segregated clause, and it must not be a forced one nor one that runs counter to the manifest intention of the contracting parties expressed in unambiguous terms. (Post, pp. 25-26.) Case cited and approved: Pleasants v. Locomotive Engineers, etc., Ass’n, 70 W. Va., 389. 5. INSURANCE. Fraternal insurance. Right to benefits. Where beneficiary of member of fraternal order who had been suspended lost right to recover against national council by delay in enrollment after reinstatement, she could not recover against the local council whose by-laws postponed right to benefits until three months after reinstatement; the member having died before expiration of such time. (Post, p. 26.)
139 Tenn. 27Cincinnati, N. O. & T. P. Ry. Co. v. Morgan (1917)
1. COMMERCE. Railroads engaged in “interstate commerce.” To be within the federal Employers’ Liability Act (Act Cong. April 22, 1908, chapter 149, 35 Stat. 65 [U. S. Comp. St. 1916, sections 8657-8665]), one need not be directly engaged in an interstate train movement; the test being whether his task was so directly and immediately connected therewith, as to form a part or necessary incident, even though only preliminary, thereto. {Post, pp. 31-32.) Acts cited and construed: Acts 1908, ch. 149. Cases cited and approved: New York Cent., etc., R. Co. v. Carr, 238 U. S., 260; Norfolk & Western R. Co. v. Earnest, 229 U. S., 114. 2. COMMERCE. Railroads. Use of engine in “interstate commerce.” Where a locomotive was habitually and exclusively used in interstate train movements, and not designated for any intrastate or mixed use, an employee working upon it was engaged in interstate commerce. {Post, pp. 32-33.) Cases cited and approved: Baltimore, etc., R. Co. v. Darr, 204 Fed., 751; Law v. Ill. Cent. R. Co., 208 Fed., 869; Lloyd, v. Southern R. Co., 116 N. C., 24; Smiegil v. Great Northern R. Co., 165 Wis., 57. Case cited and distinguished: Minneapolis & St. L. R. Co. v. Winters, 242 U. S., 353. 3. COMMERCE. Railroads. Federal Employers’ Liability Act. “Interstate commerce.” Where an engine had been specifically designated for a certain interstate train, and a hostler was told to fire and prepare the engine for such train, and while doing so was injured, he was engaged in interstate commerce within the federal Employers’ Liability Act. {Post, pp. 33-35.) Cases cited and approved: Southern R. Co. v. Puckett, 244 U. S., ' 571; Byram v. Ill. Cent. R. Co., 172 Iowa, 631; Staley v. Ill. Cent. R. Co., 268 Ill., 356; Lloyd v. N. C. R. Co., 116 N. C., 24; Hinson v. Atlanta, etc., R. Co., 172 N. C., 646. Case cited and distinguished: N. C. R. Co. v. Zachary, 232 TJ. S., 248. 4. MASTER AND SERVANT. Negligence. Question for jury. Where an engine hostler was struck and injured by the dropping of a hood on a smokestack by an inspector of equipment, the question of negligence of the company was one of fact for the jury, on the inference that the inspector or his helpers, if exercising due care, would have seen the hostler and avoided the injury. (Post, pp. 35-36. 5. MASTER.AND SERVANT. Contributory negligence not precluding recovery. Where a servant was guilty of contributory negligence, his recovery is not precluded by the federal Employers’ Liability Act. (Post, p. 36.)
139 Tenn. 37Southern Railway Co. v. Lewis & Adcock Co. (1917)
1. CARRIERS'. Interstate. Discrimination. Carrier’s liability. An agreement by a carrier to pay damages, not occurring on its lines, to goods shipped under a bill of lading providing that no carrier shall be liable for loss other than on its own lines, is a discrimination against the uniformity of responsibility re' quired of carriers of interstate commerce, and is unenforceable. (Post, pp. 39-42.) Cases cited and distinguished: M., K. & T. R. Co. v. Ward, 244 U. S„ 383; Georgia, F. & A. R. Co. v. Blish Milling Co., 241 U. S., 190; Southern R. Co. v. Prescott, 240 U. S., 632; Atchison, T. & S. F. R. Co. v. Harold, 241 U. S., 371; C. & A. R. Co. v. Kirby, 225 U. S„ 155. 2. CARRIERS. Bills of lading. Limiting liability of connecting carriers. Carmack Amendment (Act Cong. Feb. 4, 1887, chapter 104, section 20, 24 Stat. 386, as amended by Act Cong. ¿Tune 29, 1906, chapter 3591, section 7, pars. 11, 12, 34 Stat. 595 [U. S. Comp. St. 1916, sections 8604a, 8604aa]), creating in initial carriers unity of responsibility for transportation to destination, does not preclude limiting the responsibility to shipper by a connecting carrier to damages on its own lines, and such limitation is good at common law. (Post, pp. 42-43). Acts cited and construed: Acts 1887, ch. 104; Acts 1906, eh. 3591, sec. 7, pars. 11, 12. Cases cited and approved:-Atlantic Coast Line R. Co. v. Riyerside Mills, 219 U. S., 186; M„ K. & T. R. Co. v. Ward, 244 U. ;S„ 383. 3. EVIDENCE. Filing bill of lading with interstate commerce commission. Presumption. There is a presumption that copies of forms of bills of lading in use by interstate carriers have been filed with the Interstate Commerce Commission. (Post, p. 43.) Case cited and approved: Louisville & Nashville R. Co. v. Hohbs, 136 Tenn., 512. 4. CARRIERS. Connecting carriers. Actions. Estoppel. A connecting carrier is not estopped to rely on a provision in a bill of lading, limiting liability to loss occurring cn its own lines, to defeat recovery on an unlawful contract made by its agent to pay such loss on interstate shipment. {Post, pp. 43-44.) 5. APPEAL AND ERROR. Assignment of error. Sufficiency. An assignment, to the effect that the trial court erred in not peremptorily instructing the jury is equivalent to an assignment that there was no evidence to support the verdict. {Post, p. 44.) Cases cited and approved: Southern Ice Co. v. Black, 136 Tenn., 401; Railroad v. Bonham, 130 Tenn., 435.
139 Tenn. 45City of Knoxville v. Connors (1917)
1. CERTIORARI. Review. Law of case. A former determination by the supreme court in the same proceedings that petitioner who was removed from the office of chief of police was a civil service employee entitled under the charter of the municipality to have charges formulated and preferred against him, and to a trial before removal, is conclusive in subsequent proceedings as the law of the case. (Post, pp. 47-49.) Cases cited.and approved: Connors v. City of Knoxville, 136 Tenn., 428. 2. CERTIORARI. Writ. Issuance. Discretion. While the issuance of a writ of certiorari is a matter within the discretion of the court, and a writ may be refused which would otherwise be issued where substantial justice has been reached by an inferior tribunal, or where public inconvenience or confusion would follow the writ, yet where the supreme court had found that one removed from the office of chief of police of a city was entitled to certiorari to review the removal, the contention that the court in its discretion might decline to entertain the writ is foreclosed. (Post, pp. 49-50.) Cases cited and approved: State v. Taxing District, 84 Tenn., 240; May v. Campbell, 1 Tenn., 61; People v. Brooklyn Assessors, 39 N. Y., 81; People v. Brooklyn Fire Comm., 103 N. Y., 370; Far-rington R. W. Power Co. v. Berkshire County Com’rs, 112 Mass., 206; State ex rel. Hamilton v. Guinotte, 156 Mo., 513. Case cited and distinguished: Harris v. Barber, 129 U. S., 366. 3. CERTIORARI. Writ. Scope of relief. Where it was found on writ of certiorari that removal of petitioner from the office of chief of police was unauthorized because he was not accorded trial as required by the city’s charter, and charges were notfJ preferred against him, the order of removal should be quashed, hut the court is without jurisdiction to direct a reinstatement of petitioner, for that would unduly extend the writ and grant relief beyond the scope of the pleadings. (Post, pp. 50-51.)
139 Tenn. 52Alexander v. Virginia & S. W. Ry. Co. (1917)
1. RAILROADS. Signals. Sufficiency of evidence. The • statement of a witness that the whistle was not sounded “until it blew inside the corporation here” and of another that he lives one and one-half miles from Rogersville and one mile from the spring, not giving relative location of each and of depot, does not locate city limits or establish defendant’s failure to comply with Thompson’s Shannon’s Code, section 1574, subsection 3, as to giving signals before reaching and while passing through incorporated eities. (Post, pp. -53-54.) Cases cited and approved: Railroad v. Collier, 104 Tenn., 189; Webb v. Railroad Co., 88 Tenn., 119. Code cited and construed: Sec. 1574, subsec. 3. (T.-S.). 2. EVIDENCE. Judicial notice. Incorporated cities. While a court will take judicial notice of the fact of incorporation of a city incorporated by state law, it cannot take judicial notice of the location of the boundaries thereof. (Post, pp. 54-55.) Cases cited and approved: State v. Murfreesboro, 30 Tenn., 217; Coal Creek Co. v. East Tenn. Co., 105 Tenn., 563; Frazier v. Railroad Co., 88 Tenn., 138.
139 Tenn. 56Allen v. Hays (1917)
1. BILLS AND NOTES. Presumptions. Ownership of note. The possession by a third party of a note payable to the order of the payee and not indorsed by him raises no presumption of ownership, and no such presumption is created by Negotiable Instrument Law, section 49 (Thompson’s Shannon’s Code, section 3516a48), providing that a transfer' for value without in-dorsement vests in the transferee such title as the transferor had, and that the transferee acquires in addition the right to the transferor’s indorsement, as this contemplates the making of proof of the transfer. (Post, pp. 58-61.) Cases cited and approved: Swanby v. Northern State Bank, 150 Wis., 572; Kiefer v. Tolbert, 128 Minn., 519; Tuttle v. Becker, 47 Iowa, 486; Robertson v. Dunn, 87 N. C., 191; Vástine v.. Wilding, 45 Mo., 89; Bausman v. Kelley, 38 Minn., 197. Cases cited and distinguished: Roy v. Duff, 170 Iowa, 319; Gano v. McCarthy, 79 Ky., 409. Code cited and construed: Sec. 3516a48 (T.-S.). 2. GIFTS. Presumptions. Sufficiency of evidence. Gift of note. - Where proceeds of notes were found on the death of the payee in the hands of one named as executor, and the notes were not indorsed by the payee when collected, the presumption is that they were his property, and a son of the executor, claiming ownership under an alleged gift to the executor for his benefit, has the burden of proof to overcome such presumption by proof that is clear and satisfactory upon every point essential to title by gift. (Post, pp. 61, 62.) Case cited and approved: Reading Trust Co. y. Thompson, 254 Pa., 333.
139 Tenn. 63Casey-Hedges Co. v. Southwestern Surety Co. (1917)
FROM HAMILTON. Appeal from the Chancery Court of Hamilton' County. — W. B. GarviN, Chancellor.
139 Tenn. 73State ex rel. Jones v. Howard (1917)
PROM MONROE. Appeal from the Chancery Court of Monroe County to the Court of Civil Appeals, and by certiorari to the Court of Civil Appeals from the Supreme Court. —Foss H. Meecee, Chancellor.
139 Tenn. 79Cross v. Buskirk-Rutledge Lumber Co. (1917)
FROM SCOTT. Appeal from the Chancery Court of Scott County. — Hugh Cr. Kyle Chancellor.
139 Tenn. 97Brewer v. De Camp Glass Casket Co. (1917)
1. CORPORATIONS. Foreign. Attachment. Service. Thompson’s Shannon’s Code, section 4515, declares that in actions commenced hy attachment of property without personal service of process the attachment may be sued out or suit brought in any county where the real property lies or any part of the personal property may be found, while section 5211 authorizes an attachment against the property of a nonresident debtor or defendant. Sections 4539-4541, inclusive, provide for institution of actions against corporations either resident or nonresident by service of process on certain designated officers or agents. Acts 1859-60, chapter 89, embodied in Thompson’s Shannon’s Code, section 4542, declares that where a corporation, company, or individual has an office or agency or resident director in any county other than that in which the chief officer or principal resides, service of process may be made upon any agent or clerk employed therein. Sections 2549 and 4543-4546, respectively, relate to service on foreign corporations having no office or agency in the State and to sub-stitutionary service on foreign corporation not domesticated and having neither property nor localized business. Held, that as section 4516, which apparently restricted the scope of service on agents, was enlarged by Acts 1859-60, chapter 89, a foreign corporation may be served by attachment of its property in any county where such property is found, regardless of the fact that its directors and officers reside in another county; this being particularly true where it did not appear that the corporation was at that time doing business in the State so as to render service of process on resident directors and officers valid. (Post, pp. 102-109.) Acts cited and construed: Acts 1859-60, ch. 89; Acts 1887, ch. 226. Cases cited and approved: Coke & Coal Co. v. So. Steel Co., 123 Tenn., 429; Toppins v. Railroad Co., 73 Tenn., 600; Green v. Snyder, 114 Tenn., 101; Turcott v. Railroad, 101 Tenn., 102; Coke & Coal Co. v. Steel Co., 123 Tenn., 428; Dillingham v. Insurance Co., 120 Tenn., 302; Toledo Railways & L. Co. v. Hill, 244 U. S., 49; International Harvester Co. v. Kentucky, 234 U. S., 579; St. Louis S. W. R. Co. v. Alexander, 227 U. S., 218. Code cited and construed: Sec. 4515, 4542, 4539-4542, 2549, 4543-4546; Sec. 4516 (1858). 2. APPEAL AND ERROR. Equity cases. Trial de novo. While the general rule is that on appeals in chancery the trial is (Le novo, that relates, not to technicalities -of procedure, hut to the chancellor’s decision on the facts, which does not have the same force as a verdict or finding of fact hy a court of law sitting without a jury. (Post, pp. 110-112.) 3. APPEAL AND ERROR. Presentation of grounds of review in court helow. Service of attachment. In an action begun by attachment where all of the defendants, including the foreign corporation, appeared, and' the parties treated the attachment writ as lawfully levied, contesting only the rights conferred by the levy, objections that there was no proper writ because no notice of garnishment in writing was left with the defendant garnished, and that there was no publication for the defendants, where made for the first time on appeal, will not be considered notwithstanding the suit was one in equity. (Post, pp. 110-112.) Case cited and approved: Pennington v. Fourth Nat. Bank, 243 U. S., 269.. 4. STIPULATIONS. Appearance. Demurrer. Where defendants moved to dismiss a bill and in the alternative demurred, it being stipulated that if the motion should be sustained, the demurrer would not be considered an entry of appearance, the motion being disallowed, defendants must be treated as having appeared. (Post, pp. 112, 113.) 5. FRAUDS, STATUTE OF. Sufficiency of writing. Signed letters. Where defendant, by letter, offered complainant employment for two years at a fixed compensation, and complainant wrote letters indicating an acceptance, títere was a sufficient compliance with the statute of frauds (Thompson’s Shannon’s Code, section 3142, subsec. 4), even though it he deemed that the written memorandum should be signed by both parties; both defendant and complainant having signed their respective letters. (Post, pp. 113-116.) Cases cited and approved: Leinau v. Smart, 3o Tenn., 308; Deaton v. Tenn. Coal & R. Co., 59 Tenn., 650; Gregory v. Underhill, 74 Tenn., 207; Railroad Co. v. Staub, 75 Tenn., 397; Railroad v. Hayden, 116 Tenn., 672; Smith v. Neal, 2 C. B. (N. S.), 67; Reuss v. Picksley, 4 Hurlst. & C., 588; Yogel v. Pekoe, 157 Ill., 339; Raphael v. Hartman, 87 Ill. App., 634; Sellers v. Greer, 172 Ill., 549; Chase v. City of Lowell, 7 Gray (Mass.), 33; Ives v. Hazard et al., 4 R. I., 14; Himrod Furnace Co. v. Cleveland & M. R. Co., 22 Ohio St., 451; Kearby v. Hopkins, 14 Tex. Civ. App., 166; Martin v. Roberts, 57 Tex. 564. Cases cited and disapproved: Wilkinson v. Heavenrich, 58 Mich., 574; Co-operative Tel. Co. v. v. Katus, 140 Mich., 367; Adams v. Harrington Hotel Co., 154 Mich. 198; Houser v. Hobart, 22 Idaho, 735; Code cited and construed: Sec. 3142, subsec. 4. (T.-S.).
139 Tenn. 117Waterhouse v. Sterchi Bros. Furniture Co. (1917)
1. BILLS AND -NOTES. Indorser before delivery. Notice of protest. One who indorses a note before delivery is entitled to notice of protest. (Post, p. 120.) ‘ Cases cited and approved: Pharr v. Stevens, 124 Tenn., 669; Knott v. Hicks, 21 Tenn,, 162; Railroad v. Maxwell, 113 Tenn., 464. 2. PLEADING. Written instrument. “Profert.” Demurrer. The mere profert of a note upon which an action is founded does not make it a part of the declaration, when the declaration is tested by demurrer, “profert” being a formula in pleading, whereby the pleader professes to bring into court an instrument to be shown to the court and his adversary. (Post, pp. 120, 121.) Case cited and approved: Insurance Co. v. Thornton, 97 Tenn., 1. 3. PLEADING. Writings. Profert. Oyer. Where declaration contains profert of note sued on, and oyer asked by defendant is granted, the note becomes part of the declaration. (Post, p. 121.) 4. PLEADING. Profert and oyer. Effect. If an element essential to the existence of a cause of action be omitted from the declaration containing profert, and oyer be craved, the defect will be cured if the instrument supplies or corrects the omission. (Post, pp. 121, 122.) Cases cited and approved: Edwards v. Weister, 2 A. K. Marsh. (Ky.), 382; Nat. Copper Bank v. Davis, 47 Utah, 236; Citizen’s Bank v. Millett, 103 Ky., 1. 6. JUDGMENT. Motion in arrest. Grounds. Where declaration averred that sum “was due by a promissory note here to the court shown, ... of which note defendant was indorser,” and proof showed that the note contained waiver of protest, notice of dishonor and presentation by indorser, in-dorser’s motion in arrest could not be granted in view of Acts 1911, chapter 32 (Thompson’s Shannon’s Code, section 4902al), providing that no judgment shall be set aside for any error in procedure, unless in the opinion of the court, after an examination of the entire record, it shall affirmatively appear that the error affected the result of the trial. (Post, pp. 122, 123.) Acts cited and construed: Acts 1911, ch. 32. Code cited and construed: Sec. 4902al (T.-S.). 6. APPEAL AND ERROR. Presumptions. Judgment. Where a bill of exceptions incorporating the proof adduced was not preserved, the supreme court must assume that there was sufficient evidence to support the judgment rendered. (Post, p. 123.)
139 Tenn. 124Russell v. American Ass'n (1917)
1. STATES. Agreement or compact with another State. Constitutional provisions. Implied assent. Under Constitution U. S. article 1, section 10, clause 3, providing that no State shall, without the consent of Congress, enter into arty agreement or compact with another State, the formal consent of Congress to a compact between Tennessee and Kentucky looking to the establishment of their boundary line was not necessary, as such consent migh,t be implied. (Post, pp. 130, 131.) Case cited and approved: North Carolina v. Tennessee, 235 U. S., 1. Case cited and distinguished: Virginia v. Tennessee, 148 U. S., 503. Acts cited and construed: Acts 1821, ch. 44; Acts 1821, ch. 206. Constitution cited and construed: Art. 1, sec. 10, ch. 3. 2. PUBLIC LANDS. Boundaries. Compact. Grants. A joint boundary commission, appointed .in 1779 to extend the boundary line of Virginia and North Carolina, running upon thirty-six degrees thirty minutes north latitude, ran a line, supposed to he due west, into Carter’s Valley, and the Virginia Commission ran a line, known as Walker’s line, from thence to the Tennessee river, leaving an unsurveyed gap from Deep or Clear fork to the first crossing of Cumberland river, which line deflected and reached the river on thirty-six degrees forty minutes north latitude. A compromise agreement was made in 1820, .and thereafter ratified, adopting the Walker line from Cumberland gap to the Tennessee river and the line of thirty-six degrees thirty minutes north latitude from thence to the Mississippi, whereby Kentucky yielded the land between Walker’s line and thirty-six degrees thirty minutes east of the Tennessee river, to Tennessee, which agreed that all vacant land should be the property of and subject to the disposition of Kentucky. Complainants in ejectment claimed under a grant from Tennessee in 1849, and defendants claimed under a grant from Kentucky in 1880, the land lying between the Walker line and a line on thirty-six degrees thirty minutes north latitude. Held,, that under the compact the Kentucky grant was valid, though the land was in Tennessee, and that Kentucky could not have abandoned such right by mere implication or by any conduct short of a clear and unmistakable affirmative act indicating a purpose to repudiate ownership. (Post, pp. 131-134.) Cases cited and approved: Blair v. Pathkiller, 10 Tenn., 407; McConnell v. Mousepaine, 10 Tenn., 438; Gillespie v. Cunningham, 21 Tenn., 19; Phy v. Hatfield, 122 Tenn., 694; Brannon v. Mercer, 138 Tenn., 415. Case cited and distinguished: Sharp v. 'Van Winkle, 80 Tenn., 15. 3. PUBLIC LANDS. Estoppel. After-acquired title. Since a State in grafating lands conveys without covenant, the doctrine of estoppel does not apply to a grant from the State so as to pass an after-acquired title, and such grant passes only the title the State then had. (Post, pp. 134-136.) Case cited and approved: St. Louis Refrigerator, etc., Co. v. Langley, 66 Ark., 48. Case cited and distinguished: Casey v. Inloes, 1 Gill (Md.), 430.
139 Tenn. 137Carolina Spruce Co. v. Black Mountain R. (1917)
1. CONTRACTS. Construction of logging road. Extension of time. “Act of God.” “Causes beyond its control.” “Unavoidably prevented.” Under a railroad’s contract to construct and put in operation a road from a timber tract to a main line junction, the provision, unless prevented by other “causes beyond its control,” did not refer only to a cause which was an “act of God,” that term meaning a happening due directly and exclusively to a natural cause or causes in no sense attributable to human agencies, which could not be resisted or prevented by the exercise of such foresight, prudence, and care as the situation might have called into exercise; but the provision was synonymous with “unavoidably prevented,” the words “beyond control” implying a pledge to exercise human agency to the point of excluding negligence, so that unanticipated trouble and delay encountered in a cut by reason of a peculiar mud or clay called “gumbo,” much harder to remove than rock, entitled the railroad to thirty days’ additional time to finish construction. (Post. pp. 142-147.) Case cited and distinguished: Chicago, etc., R. Co. v. U. S., 194 Fed., 342. 2. CONTRACTS. Construction of logging road. “Constructed.” “Completed.” Where the road had until June 1st to finish construction of the line, the construction of a road in which the curves were fully tied, but the straight portions of which were half tied, but which enabled an engine and cars with additional ties to be sent forward, and put it in condition to bear any traffic tendered by the lumber company, and where heavy mill machinery was hauled over the line early in April, and the roadway was thereafter steadily improved, it was constructed and placed in operation for general traffic; the word “constructed” having substantially the signification of the word “completed.” (Post, pp. 147-150.) Cases cited and approved: Chicago, K. & W. R. Co. v. Makepeace, 44 Kan., 676; Guillory v. Avoyelles R. Co., 104 La., 11; Freeman v. Matlock, 67 Ind., 99; So.'Kan. & P. R. Co. v. Towner, 41 Kan., 72; Manchester,- etc., R. Co. v. City of Keene, 62 N. H., 120. Case cited and distinguished: Tower v. Detroit, etc., R. Co., 34 Mich., 328. 3. CONTRACTS. Construction of logging railroad. Operation. Equipment. “Constructed.” “Completed.” The road was constructed and placed in operation, even though the contractor, which had purchased engines, was dependent upon its connecting carriers for its freight car supply, as the word “completed” did not include the equipment of the road with the contractor’s own rolling stock, especially where there was no express contract provision that the railroad would purchase rolling stock. (Post, pp. 150-152.) Cases cited and approved: Courtright v. Deeds, 37 Iowa, 503; De-Graff v! St. Paul & P. R. Co., 23 Minn., 144. 4. CARRIERS. Construction of logging road. Contract. Freight Rates. Under a railroad’s contract to construct a logging railroad to con-. nect with a main line, and to transport lumber, etc., to a junction on the main line at four cents per hundred pounds in excess of the rates currently in force from the junction, the railroad’s charge and collection of four cents, plus the regular through rate charges from the junction, and its receipt of three cents from the connecting carrier for producing the traffic, was authorized, provided there was no discrimination between shippers. (Post, pp. 152-154.) 5. CARRIERS. Rates. Originating traffic. The established and well-known practice among railroad companies to allow to the carrier originating the business an advantage in the distribution or division of the rate has been recognized and by fair inference upheld by the interstate Commerce Commission and the United States supreme court. (Post, pp. 154-156.) Cases cited and approved: U. S. v. Louisiana & P. R. Co., 234 U. S.? 1; U. S. v. Butler County R. Co., 234 U. S.; 29. Cases cited and distinguished: Northern Pine Maní. Ass’n v. Chicago, etc., R. Co., 33 Int. Com. Com’n R., 360; In re Alleged Unreasonable Rates on Meats, 23 Int. Com. Com’n R., 657. 6. CARRIERS. Rates. Discrimination. Where a railroad contracted to construct a line from a main line junction to a timber tract, and to transport lumber, etc., at a certain rate, the shipper, if entitled to the part of the joint through rate paid by the connecting carriers to the railroad for originating traffic, would have an undue and forbidden preference over other shippers, and a contractual obligation, that it should receive such distribution would not justify such discrimination, and a State court would not enforce such a contract. ’ (Post, p. 157.) Cases cited and approved: So. R. Co. v. Linear, 138 Tenn., 543; 'Dayton Coal & I. Co.'v. Cincinnati, etc., R. Co., 134 Tenn., 221; Roberts v. Nashville, etc., R. Co., 135 Tenn., 48; Louis. & N. R. Co v. Maxwell, 237 U. S., 94. 7. CONTRACTS. Construction. Validity. Where a contract may fairly be construed not to violate the law, the courts should incline to give it that construction, and thus maintain its validity. (Post, pp. 157, 158.) Cases cited and approved: Gernt v. Floyd, 131 Tenn., 122; Morgan Bros. v. Coal & Iron Co., 134 Tenn., 228. 8. EVIDENCE. Filing evidence of concurrence in joint rates. Presumption. It will be presumed that a carrier has complied with the law in respect to the filing of evidence of its concurrence in joint rates established by other carriers, assuming to act for all of those named as participants. (Post; pp. 158, 159.) Cases cited and approved: Louisville & N. R. Co. v. Hobbs, 136 Tenn., 512; Cincinnati, etc., R. Co. v. Rankin, 241 U. S., 319. 9. INJUNCTION. Decree. Reserving right to correct claim. On a bill by a lumber company to enjoin a railroad’s sale of collateral upon default in the payment of a note given the railroad for constructing a logging road, where it appeared that complainant. might have a just claim in some amount not shown by the record for an overcharge on cars equipped with standards placed on gondola and flat cars, the decree entered should reserve to it the right to litigate such claim in a court, or before the Interstate Commerce Commission, as it might be advised. (Post, p. 159.)
139 Tenn. 160Fine v. Lawless (1917)
1. GOOD WILL. Nature of right. Protection. “Good will” is property in the sense of being a thing subject to be damaged, and an injunction will lie to protect, it when the seller of the good will thereafter wrongfully interferes with it or the property conveyed of which the good will is an incident. (Post, pp. 165-171). Cases cited and approved: Crutwell v. Lye, 17 Vesey, 335; Moreau v. Edwards, 2 Tenn. Ch., 349; Christian v. Douglass, Johns. Eng. Ch., 174; Sanford-Day Iron Works v. Enterprise Foundry, etc., Co., 138 Tenn., 457; Bradford v. Furniture Co., 115 Tenn., 610; Jackson v. Byrnes, 103 Tenn., 698; Spiess v. Rosswog, 63 How. Prac. (N. Y.),' 401. Cases cited and distinguished: Slack v. Suddoth, 102 Tenn., 378; Munsey v. Butterfield, 133 Mass., 492; Wentzel v. Barbin, 189 Pa., 502; Lee v. Vernon, 5 Brown’s Pari. Cases (lo Ed.), 1803; McCourt v. Singers-Bigger, 145 Fed., 103; Clegg v. Fishwick, 1 Mac. & G., 294. 2. GOOD WILL. Sale. Stipulation. Upon a sale of the good will of a business without more, the seller is not precluded from setting, up a precisely similar business at another stand in the same locality, and if the purchaser desires to forestall such step he must expressly stipulate against it. (Post, pp. 165-171). 3. LANDLORD AND TENANT. Renewal. “Tenant-right of renewal.” While a tenant in possession whose lease contains no provision for renewal cannot compel a renewal, nevertheless he has such a likelihood of procuring a renewal, which is called a “tenant-right of renewal,” that equity will protect it. (Post, pp. 165-171.) 4. GOOD WILL. Sales. Protection. “Tenantright of renewal.’’ Where the seller of a business conducted in demised premises assigned the lease and conveyed the “good will,” which includes the possibility that old customers will resort to the place and any other positive advantage acquired arising out of the business of the old firm whether connected with the premises where it was carried on or with the name of the late firm; the seller is under an implied obligation not to interfere with the purchaser in his use of the business premises and control of the lease assigned, for that constitutes a part of the good will, and hence, as the purchaser by reason of the assignment of the lease acquired what is known as a “tenant-right” in respect to renewal of the lease, which is the likelihood of a tenant obtaining a renewal though the lease contains no such provision, it was a breach of good faith for the seller during the existence of the lease to obtain a new lease running to him to commence on expiration of the orie assigned. (Post, pp. 165-171.) 5. TRUSTS. Constructive trusts. Establishment. Where the seller, who assigned the lease of the demised premises in which the business was conducted before expiration of that lease, obtained from the landlord a lease running to. him which was to commence at its expiration, the seller was guilty of such bad faith that equity will require him to hold the lease as a constructive trustee for the benefit of the purchaser who was the assignee of the first lease. (Post, pp. 171-174.) Cases cited and distinguished: Holt v. Holt, 1 Ch. Oas., 190; Mitchell v. Reed, 61 N. Y., 123; Bennett v. Yansyckel, 11 N. Y. Super. Ct., 462; Crook v. Crook, 20 Abb. N. C. (N. Y.), 249. 6. TRUSTS. Constructive trusts. Defenses. In such case, refusal of the landlord to renew the lease to or for the benefit of the purchaser of the business, to whom the first lease was assigned, does not entitle the seller to take a renewal for himself or defeat the constructive trust, for a rule to that effect would open the door to collusion. (Post, pp. 175, 176.) Case cited and approved: Neal v. Cox, 7 Tenn., 443. Case cited and distinguished: Keech v. Sandford, Cas. T. King, 61, 15 Eng. Rui. Cas., 455; Davoue v. Fanning, 2 Johns. Ch. (N. Y.), 252. 7. TRUSTS. Constructive .trust. Leases. Assignment. Though both the lease assigned to the purchaser and the one obtained by the seller declared that it should not be assigned or transferred by the lessee or by operation of law without written consent' of the owner does not prevent the purchaser from insisting on the establishment of such constructive trust, he cannot by that means force the owner to accept him as a tenant and allow him to occupy the premises. (Post, pp. 176, 177.) 8. LANDLORD AND .TENANT. “Unlawful detainer.’’ Right to maintain. • ' Under Thompson’s Shannon’s Code, section 5093, declaring that “unlawful detainer” is where the defendant enters by contract either as tenant or assignee and willfully and without force holds over the possession from the landlord or the assignee of the remainder or reversion, a landlord may maintain an action to dispossess a subtenant or assignee holding over, notwithstanding such landlord had lost control of the reversion by demising the premises to another for a term to commence at the expiration of the term of the holding over tenant. (Post, pp. 177, 178.) Cases cited and approved: McNairy v. Hicks, 62 Tenn., 378; Manley v. Rodgers, 13 Tenn., 217. Code cited and construed: 'Sec. 5093 (T.-S.).
139 Tenn. 179Cash v. Casey-Hedges Co. (1917)
1. MUNICIPAL CORPORATIONS. Liability for torts of independent contractor. A municipality was not liable for death caused by fall of a smokestack being erected under contract, where such erection was not necessarily dangerous when done with care by persons having skill, and the municipality did not know the contractor was incompetent and did iíot control the methods or appliances of the contractor in performing the work. (Post, pp. 184, 185.) Cases cited and approved: McHarge v. Newcomer, 117 Tenn., 595; Davis v. Lumber Co., 126 Tenn., 576; Powell v. Construction Co., 88 Tenn., 692. 2. NEGLIGENCE. Duty to warn. Where, in the erection of a heavy smokestack by a gin pole and ropes and pulleys, there was danger of its falling, the erector was bound to warn every person near enough to be struck in case it fell. (Post, p. 185.) 3. NEGLIGENCE. Discovered peril. Contributory negligence. Contributory negligence of a workman in working in a place apparently dangerous because near a heavy smokestack being erected in such manner that there was danger of its falling did not relieve the erector from liability for death of the workman by fall of the smokestack, where, knowing the workman’s position, the erector proceeded with the work, constantly increasing the workman’s peril; such conduct by the erector being willfulness or wantonness. (Post, pp. 185-188.) Cases cited and approved: Railroad v. Williford, 115 Tenn., 122; Whirley v. Whiteman, 38 Tenn., 619; Ga. Pacific R. Co. v. Lee, 9 So., 233; Westborne Coal Co. v. Willoughby, 133 Tenn., 257; Todd v. Railroad, 135 Tenn., 92. 4. MASTER AND SERVANT. Safe place to work. Assurance of foreman. Where the employee of one contractor, apprehensive of danger of falling of smokestack being erected by another contractor near his place of work, continued at work on being told by his foreman that it was safe, his employer was liable for the workman’s death by smokestack’s falling, notwithstanding the accident was primarily due to negligence of a third party, over whom the employer had no control; the workman having the right to rely on the foreman’s statement as an assurance that his employer had furnished him a safe place to work. (Post, pp. 188-203.) Cases cited and■approved: Railroad v. Hayes, 117 Tenn., 680; C. & I. R. R. v. Russell, 91 Ill., 298; Erslew v. Railroad et al., 49 La. Ann. 86; Chattanooga v. Powell, 133 Tenn., 137; Chanrion v. Sanford Co., 70 Conn., 573; McGuire v. Bell Tel. Co., 167 N. Y., 208; Lindgren v. Williams, etc., Co., 112 Minn., 186; Clark v. Union Iron & F. Co., 234 Mo., 436; Poster v. Walker Roofing Co., 139 Ga., 431; Wilson v. Valley Improvement Co., 69 W. Va., 778; Riley v. Tucker, 179 Mass., 190. Cases cited and distinguished: Clark v. Union Foundry Co., et al., 234 Mo., 451; Griffith & Sons Co. v. Brooks, 197 Fed., 723; Rax-worthy v. Heisen, 274 Ill., 398; Hughes v. Malden, etc., Co., 168 Mass., 395.
139 Tenn. 204Hart v. Appalachian Washed Coal Co. (1917)
1. PIXTUEES. Landlord and tenant. Conditional seller. Eight of removal. Trade fixture. A company sold machinery to a lessee, retaining title. The machinery was placed on the leased premises in a sheet iron building, and on a concrete foundation, to which it was bolted by nine bolts, imbedded in the concrete, run through prepared holes and confined by nuts. The machinery could be removed from the building at an expense of not more than $5, but the door of the building was too small to pass the machinery. The removal of two sheets from the side of the building would not materially impair it, as they could be replaced at a trifling cost. The lessee made rents and royalties a lien on the leasehold, fixtures, and improvements, and the lessor retained a lien on future acquired property brought on the premises. Held, that if the machinery was a fixture, it was a “trade fixture,” so that the seller’s right to take possession of and remove the machinery was superior to that of the lessor. (Post, pp. 208-210.) 2. LANDLORD AND TENANT. Landlord’s lien. Subsequently acquired property. A clause, retaining a lien on future acquired property brought on the premises, was good as between the lessor and lessee, regardless of whether the property became a fixture. (Post, pp. 208-210.) Cases cited and approved: Cubbins v. Ayres, 72 Tenn., 329; Mc-David v. Wood, 52 Tenn., 95; Saunders v. Stallings, Id., 65; McCIung v. Carriage & Wagon Co., 117 Tenn., 250; Union Bank v. Wolf, 114 Tenn., 255.
139 Tenn. 211Kenner v. Kenner (1917)
1. DIVORCE. Jurisdiction. Residence of parties. Fraud. Although, where plaintiff went to a foreign jurisdiction solely for the purpose of instituting divorce proceedings on service by publication, the decree may be attacked for fraud by action in a foreign State, yet such attack cannot be sustained where the plaintiff removed with the ’bona-flcLe purpose of making a home in such State. (Post, pp. 218-220.) Cases cited and approved: Gettys v. Gettys, 71 Tenn., 250; Chaney v. Bryan, 83 Tenn., 599; Thomas v. King, 95 Tenn., 60; Colburn v. Colburn, 70 Mich., 647; Hunter v. Hunter, 64 N. J. Eq., 277; Fosdick v. Fosdick, 15 R. I., 130; Thompson v. Thompson, 91 Ala., 593,; Dunham v. Dunham, 162 Ill., 589; Gordon v. Munn, 87 Kan., 624; Succession of Benton, 106 La., 494; Felt v. Felt, 59 N. J. Eq., 606; Bidwell v. Bidwell, 139 N. C., 402; Cheever v. Wilson, 9 Wall., 108; Cheely v. Clayton, Í10 U. S., 701; Haddock v. Haddock, 201 U. S., 562; Howard v. Strode, 242 Mo., 210; Buckley v. Buckley, 50 Wash., 213; Joyner v. Joyner, 131 Ga., 217; Toncray v. Toncray, 123 Tenn., 476. Code cited and construed: Secs. 4203, 4207(S.). 2. DIVORCE. Jurisdiction. Service by publication. Jurisdiction of the defendant in divorce may be acquired in the foreign State by publication or other substituted service, although the defendant is a nonresident, and never has been in the State where suit was brought. (Post, pp. 218-220). 3. DIVORCE. Operation and effect. Foreign decrees. Custody and support of children. The effect of a foreign decree, rendered on substituted service, is to free both spouses from the bonds of matrimony, where recognized; but recognition is optional, not being required by the full faith and credit clause o'f the federal Constitution, but may be given on ground of comity. (Post, pp. 218-220.) 4. DIVORCE. Operation and effect. Foreign divorces. Since the State by Shannon’s Code, sections 4203, 4207, provides for rendering divorce decrees in favor of a resident against a nonresident, on service by publication, it should accord validity to decrees similarly rendered in other States where the proceedings are not open to attack for fraud. (Post, pp. 218-220.) 5. DIVORCE. Custody of child. Interest of child. In determining the question of custody of infant -children, the primary inquiry concerns their welfare rather than the technical legal right of the father to their possession and services. (Post, pp. 220-222.) Cases cited and approved: State ex rel. Paine v. Paine, 23 Tenn., 523; Ward v. Roper, 26 Tenn., Ill; Gardenhire v. Hinds, 38 Tenn., 403; State ex rel. v. Kilvington, 100 Tenn., 227; Bas-kette v. Streight, 106 Tenn., 549; Re Alderman, 157 N. C., 507; Seeley v. Seeley, 30 App. Cas. (D. C.), 191; Re Bort, 25 Kan., 308. 6. DIVORCE. Custody of children. Modification of order. Although in an award of the custody of child to mother in divorce proceedings the father should be accorded, by court order, as matter of right, permission to see his child on proper occasions, yet this is a matter for the foreign court which granted the divorce, which would, no doubt, make a. suitable order on the subject upon proper request. (Post, pp. 222, 223.) 7. DIVORCE. Custody of child. Jurisdiction. The order of a State court directing that the custody of a child, of parents divorced by foreign court, shall alternate monthly between them, is beyond the court’s power, where the child’s domicile is with the mother in such foreign State. (Post, pp. 2:22, 223.) Cases cited and approved: Wills v. Wills, 104 Tenn., 382; Hoff-' man v. Hoffman, 15 Ohio St., 427; Neil v. Neil, 38 Ohio St., 558; Miner v. Miner, 11 Ill., 43; Williams v. Williams, 13 Ind., 523; Stone v. Stone, 158 Ind., 628; Morrill v. Morrill, 83 Conn., 479; Neville v. Heed, 134 Ala., 317; Green v. Campbell, 35 W. Va., 698; Wakefield v. Ives, 35 Iowa, 238; Kline v. Kline, 57 Iowa, 386; Rodgers v. Rodgers, 56-Kan., 483. 8. DIVORCE. Custody of child. Judgment as to custody. As between the parents, the decree of divorce of a foreign court awarding the custody of the child is res adjudicate,, subject tcf modification only by the court granting the decree, with the qualification, in case of removal of the child to another State, the courts of such State may, on change of circumstances, make new disposition of child as its best interests may require. (Post, pp. 223, 224.) Cases cited and approved; Hammond v. Hammond, 90 Ga., 527; Wilson v. Elliott, 96 Tex., 472; Hardin v. Hardin, 168 Ind., 352; Bennett v. Bennett, Deady 299; People ex rel. v. Hickey, 86 Ill. App., 20; Everitt v. Everitt, 29 Ind. App., 508. 9. DIVORCE. Custody of child. Domicile of child. In awarding custody of a child in divorce proceedings, the domicile of the infant is unimportant, and will not be controlled by the legal right of a nonresident father to custody when actually in the custody of the mother; the court being solely concerned with the child’s best interests. (Post, pp. 225, 226.) Cases cited and approved: Allen v. Thomason, 30 Tenn., 536; Farrow v. Farrow, 81 Tenn., 120. 10. DIVORCE. Custody of child. Proper parties. Child. In a proceeding by a father to procure the custody of his child from the possession of his divorced wife, the infant was not a proper party. (Post, p. 226.) 11. DIVORCE. Parties. Guardian ad litem. In a proceeding by a father to obtain the custody of his child from his divorced wife, a minor, the court properly refused to appoint a guardian ad litem for the wife, since her personal rights and those of the child may be properly protected without such guardian. (Post, p. 226.) 12. DIVORCE. Interlocutory order. Dismissal. Effect. An interlocutory order pending divorce suit concerning temporary custody of the child is abolished by voluntary dismissal of the suit, and cannot he res adjudicata, since it was never a final decree. (Post, pp. 226, 227.)
139 Tenn. 228Chickamauga Trust Co. v. Lonas (1917)
1. PARTITION. Remainders. Sale. Purchasers before appeal. No court has authority to decree partition between a life tenant and remaindermen, and such a decree is absolutely void, and a purchaser is not protected by Thompson’s Shannon’s Code, section 4922, providing that purchasers under a decree of the lower court, before writ of error is obtained and supersedeas granted, shall not be disturbed. (Post, pp. 233, 234.) Cases cited and approved: Behrn v. White, 108 Tenn., 392; Is-ham v. Sienknecht, 59 S. W., 779; Holt v. Hamlin,-120 Tenn., 496; McConnell v. Bell, 121 Tenn., 198. 2. JUDGMENT. Collateral attack. A decree of partition between a life tenant and remaindermen is utterly void, and can be collaterally attacked by remaindermen in a foreclosure action against land assigned to life tenant by the decree and mortgaged by him. (Post, pp. 234-238.) Cases cited and approved: Turley v. Taylor, 71 Tenn., 171; Campbell v. Bryant, 2 Tenn. Cas., 146; Starkey v. Hammer, 60 Tenn., 438; Day v. Micou, 18 Wall., 156; Windsor v. McVeigh, 93 U. S., 274; Ritchie v. Sayers, 100 Fed., 520; Wall v. Wall, 123 Pa., 545; Risley v. Phenix Bank, 83 N. Y., 318; Wilkins v. Mc-Corkle 112 Tenn., 688. Cases cited and distinguished: Isham v. Sienknecht, 59 S. W., 779; Biglow v Forrest,'76 U. S., 339; Ex parte Lange, 18 Wall. (85 U. S.), 163; U. S. v. Walker 109 U. 3., 258; Seamster v. Black-stock, 83 Va., 235. 3. LIFE ESTATES. Mortgages. Validity. Where life tenant mortgaged land assigned to him under a void partition decree, the mortgage was valid as against the interest of the life tenant in the land covered by the trust deed, although void as against remaindermen. (Post, pp. 238, 239.)
139 Tenn. 240Knafel v. Knoxville Banking & Trust Co. (1917)
1. APPEAL AND ERROR. Compromise with debtors. Discretion of chancellor. In proceeding to wind up affairs of a bank, the chancellor in approving a compromise agreement with the stockholders and directors has a legal and judicial discretion, the abuse of which may be reviewed on appeal. (Post, p. 244.) Cases cited and approved: Green v. Officers’ etc., Knoxville Banking & Trust Co., 133 Tenn., 630; MacDonald v. Aetna Indemnity Co., 88 Conn., 571; Lamar v. Taylor, 141 Ga., 227. 2. BANKS AND BANKING. Compromise with debtors. Discretion of chancellor. Scope of inquiry. In a proceeding to wind up affairs of bank, where receiver petitioned for leave to compromise claims against stockholders and directors, the inquiry was not limited to whether there were sustainable causes of action against such persons, but the question was whether it was practicable and advantageous to compromise. (Post, pp. 244, 245.) 3. BANKS AND BANKING. Compromise with debtors. Discretion of chancellor. Scope of inquiry. In a proceeding to wind up affairs of bank, where the receiver recommended a compromise, and. creditors of the bank by their attorneys advised the compromise, and the master, the chancellor, and the court of civil appeals were in favor of the compromise, it was not an abuse of discretion to order it to be made. (Post, pp. 245, 247.)
139 Tenn. 248Carolina Spruce Co. v. Black Mountain R. (1917)
1. MORTGAGES. Foreclosure sale. Attorney’s fees. Reasonable fees for a mortgagee’s or trustee’s attorney may be retained out of tbe proceeds of a forcelosure sale when pro- • vided for in tbe mortgage. {Post, p. 249.) 2. PLEDGES. Foreclosure of collateral. Attorney’s fees. Where a promissory note, secured by certain mortgage bonds as collateral, provided that after tbe proceeds of any sale bad been applied to tbe payment of or a credit upon this note, and after deducting cos.ts and attorney’s fees, should any deficiency remain tbe maker agrees to pay the same, tbe provision is for tbe indemnity of tbe pledgee against loss, and to enable it to recover the whole debt without being charged with attorney’s fees, and if tbe pledgee should be put to the necessity -of overcoming legal obstructions in selling tbe collateral, attorney’s fees may be deducted from tbe proceeds of tbe sale. {Post, p. 250.) 3. PLEDGES. Foreclosure. Distribution of proceeds. WJiere mortgage bonds securing a promissory note are ordered to be foreclosed, and the note provides for attorney’s fees, tbe decree should fix tbe basis of distribution of tbe sale, includ-such' attorney’s fees. {Post, p. 250.)
139 Tenn. 251Kobbe v. Harriman Land Co. (1917)
1. VENDOR, AND PURCHASER. Notice. Registration of deeds. Registration of a deed in M. county at a time when land conveyed thereby was no longer a part of such county was wholly ineffective to give notice. (Post, pp. 261, 262.) 2. VENDOR AND PURCHASER. Prior deeds. Duty to make inquiry. Under Thompson’s Shannon’s Code, section 3749-3760, providing that instruments required to he registered give notice to third persons not having actual notice only from the noting thereof for registration on register’s books; section 3751, providing that in case of rival instruments, the instrument first registered or noted for registration shall have preference over one of earlier date not noted for registration, and section 3752, providing that any of said instruments not so proved or acknowledged and registered or noted for registration shall be null and void as to existing and subsequent creditors of or bona-fide purchases from the makers without notice, purchaser claiming under deed containing clause excluding older and better titles would not be onerated with the duty of making inquiry or investigation for prior conveyances outside of and beyond the registration books provided by law, in the absence of actual notice, being purchasers the same as purchasers under deeds not containing such clauses and their instruments, deeds just the same. (Post, pp. 262-264.) Case cited and distinguished: Wilkins v. McCorkle, 112 Tenn., 688. Code cited and construed: Secs. 3749-3752 (T.-S.). 3. VENDOR AND PURCHASER. Duty of purchaser to make inquiry. Unrecorded deeds. It is the duty of one who purchases directly under a deed containing a clause, excluding older and better titles, to explore the land for adverse possessions, and to search the public records for prior instruments affecting the title. (Post, pp. 264-267.) 4. VENDOR AND PURCHASER. Knowledge of prior conveyances. Presumption. A purchaser under a deed containing an exclusion clause is conclusively presumed to know whatever could have been discovered from the public records or from an investigation for adverse possessions. (Post, pp. 264-267.) 5. VENDOR AND PURCHASER. Actual notice of unrecorded deed. Burden of proof. The burden of showing that a purchaser under a deed containing an exclusion clause had actual notice of a prior unrecorded deed was on the party asserting such fact. (Post, pp. 264-267.) 6. VENDOR AND PURCHASER. Exclusion clause. Right of purchaser. In the absence of actual notice or notice by record or registration books or by actual adverse occupation of the land, the purchaser, notwithstanding an exclusion clause in a deed in his chain of title, has the right to rest in security. (Post, pp. 264-267.) Acts cited and construed: Acts 1895, ch. 38. Cases cited and approved: Iron and Coal Co. v. Schwoon, 124 Tenn., 209; Bowman v. Bowman, 40 Tenn., 48; Fowler v. Nixon, 54 Tenn., 719; Bleidorn v. Pilot Mt, etc., Co., 89 Tenn., 204; Wright v. Hurst, 122 Tenn., 656'; Campbell v. Ice & Coal Co., 126 Tenn., 530. 7. VENDOR AND PURCHASER. Unrecorded deed. Rights of purchaser. An unregistered deed, though good between the immediate parties, is incomplete in law, and incapable of conveying the title as against subsequent purchasers not shown to have had actual notice. (Post, pp. 267-271.) 8. VENDOR AND PURCHASER. Notice. Subsequent recording. Effect. Recording a deed after the land has been conveyed by a registered deed to a bona-fide purchaser is without efficacy. (Post, pp. 267-271.) 9.VENDOR AND PURCHASER. Notice. Records of old county. Duty to search. An immediate purchaser from one haying deed containing clause excluding older and better titles would not be bound to search records of M. county after the land embraced by the deed had been transferred by the legislature to a new county. (Post, pp. 267-271.) Cases cited and approved: Perkins v. Hays, 3 Tenn., 163; Land Co v. Hilton, 121 Tenn., 308. 10. DEEDS. Property conveyed. Exclusion clause. In the absence of a description of the excluded land in the deed itself a deed, notwithstanding a clause excluding older and better titles, conveys all that it describes. (Post, pp. 267-271.) Cases cited and approved: Bowman v. Bowman, 40 Tenn., 48; Fowler v. Nixon, 54 Tenn., 719; Bleidorn v. Pilot Mountain, etc., Co., 89 Tenn., 204; Iron & Coal Co. v. Schwoon, 124 Tenn., 209; Bast Tenn. Coal Co. v. Taylor, 131 Tenn., 11; Brier Hill Collieries Co. v. Gernt, 131 Tenn., 542; Northcut v. Church, 135 Tenn., 541. 11. VENDOR AND PURCHASER. Rights as against inferior title. As in a proceeding in which the land in question was attached and sold as the property of K. only such title as was possessed by him could be passed by decree, notice from recording of such decree would be ineffectual as to parties claiming under a deed superior to K.’s. (Post, pp. 271-273.) 12. COURTS. Rulé of stare decisis. Unreported opinion. An unreported opinion, affirming an erroneous decision of the chancellor without opinion, will not be followed under the rule of stare decisis. (Post, pp. 273-274.) Cases cited and approved: Randolph v. Merchants’ National Bank, 77 Tenn., 69; Isham v. Sienknecht, 59 S. W., 779; Reynolds v. Stockton, 140 U. S., 254; Wilkins v. Railroad, 110 Tenn., 442. 13. ESTOPPEL. By pleading. Mutuality. Where neither complainant nor his predecessors in title were connected with a litigation against defendant’s predecessor or had any knowledge of allegations in pleadings therein, there could be no estoppel in favor of complainant by reason of allegations against defendant or its predecessor; there being no mutuality as a basis therefor, and no privity between complainant and defendant’s predecessor. (Post, pp. 274-279.) Cases cited and approved: Tate v. Tate, 126 Tenn., 169; Ross v. Cobb, 17 Tenn., 469; Singleton v. Ate, 22 Tenn., 626. 14. VENDOR AND PURCHASER. Rights as against unrecorded deed. That defendant’s predecessor in title was an attorney for G., thp common source of title, would not prevent him from lawfully acquiring the title of a grantee having a prior registered deed, even though he had knowledge of an unrecorded deed from G. (Post, pp. 279-281.)
139 Tenn. 282Casey-Hedges Co. v. Gates (1917)
MASTER AND SERVANT. Fellow servants. Injuries to servant. Defective appliances. Where cores are selected, inspected, and prepared by employees of another department, ■ without supervision except the general supervision over both departments, a molder cannot recover for injuries from loaded defective cores coming to him, especially ■ where he has an opportunity to inspect and select from the cores prepared. Cases cited and approved: Bridge Co. v. Grizzle, 119 Tenn., 683; Morriss Bros. v. Bowers, 105 Tenn., 64; Bruce v. Beall, 99 Tenn., 304; Guthrie v. Railroad, 79 Tenn., 372; Griffin v. Parker, 129 Tenn., 446; Haakensen v. Burgess Sulphite Fiber Co., 76 N. H., 443; Leishman v. Union Iron Works, 148 Cal., 274; Beesley v. Wheeler, 103 Mich., 196; Dougherty v. Milliken, 163 N. Y., 527; Virginia Iron, etc., Co. v. Hamilton, 107 Tenn., 705; Coal Creek Mining Co. v. Davis, 90 Tenn., 711; 'Kehoe v. Allen, 92 Mich., 464; Colton v. Richards, 123 Mass., 484; Thompson v. Worcester, 184 Mass., 354; Hefferen v. Northern P. R. Co., 45 Minn., 471; Ross v. Walker, 139 Pa., 42; Prescott v. Ball Engine Co., 176 Pa., 459.
139 Tenn. 291Cincinnati, N. O. & T. P. R. v. Ford (1917)
1. RAILROADS. Killing dog. Contributory negligence. Statute. “Highway.” Under Thompson’s Shannon’s Code, section 2853a, providing that it shall be unlawful for any person to allow a dog belonging to him to go upon a highway, etc., the owner of a female dog who allowed her to go upon the track of a railroad where she was killed was guilty of contributory negligence, and could not recover her value; the railroad being a “highway.” (Post, pp. 506-509.) Acts cited and construed: Acts 1901, ch. 50; Acts 1903, ch. 419; Acts 1907, ch. 32. Cases cited and approved: Chattanooga Railway & Light Co. v. Bettis, 202 S. W., 70; Nashville, etc., R. Co. v. Davis, 78 S. W., 1050; Citizens’ Rapid Transit Co. v. Dew, 100 Tenn., 317; Fink v. Evans, 95 Tenn., 413. Codes cited and construed: Secs. 2853a, 1574-1576, 2853a2(T.-S.). 2. ANIMALS. Dogs as property. Common law. At common law, dogs were not considered property, the reason given being that they were base in their nature, and kept merely for whim and pleasure. (Post, pp. 509, 510.) 3. RAILROADS. Killing dog on track. Liability. Statute. Thompson’s Shannon’s Code, sections 1574-1576, requiring railroads to keep the engineer, fireman, or other person on their locomotives always on the lookout ahead, and, when any animal appears on the tracks, to sound the alarm whistle, put down the brakes, and employ every possible means to stop the train and prevent an accident, were not intended to be applied for the protection of an unregistered female dog running at large, declared a public nuisance by section 2853a2. . (Post, p. 510.)
139 Tenn. 297Wm. J. Oliver Mfg. Co. v. Slimp (1917)
1. APPEAL AND ERROR. Wayside "bill of exceptions. Motion for directed verdict. A wayside bill of exceptions may be taken, preserving tbe action of tbe trial judge in overruling a motion for directed verdict and a motion for new trial based tbereon, and errors may be assigned on appeal upon sucb action, although tbe jury failed to agree upon and report a verdict. (Post, p. 3.02.) Cases cited and approved: King v. Miller, 67 Tenn., 382; Railroad v. Conley, 78 Tenn., 531; Jenkins v. Hankins, 98 Tenn., 548; State v. Perry, 63 Tenn., 438; Railroad v. Higgins, 85 Tenn., 620; Railroad v. Scott, 87 Tenn., 494; Seymour v. Railroad, 117 Tenn., 98; Barnes v. Noel, 131 Tenn., 127; Bostwick v. Thomas, 137 Tenn., 99; Construction Co. v. Pundt, 136 Tenn.,’ 328. Code cited and construed: Secs. 4851, 4852 (S.). 2. TRIAL. Refusing directed verdict. Waiver of errors. Error, if any, in overruling motion for directed verdict is not waived by failure to except to a subsequent order restoring tbe case to tbe docket for retrial. (Post, p. 302.) 3.' APPEAL AND ERROR. Motion for new trial. Contents and scope; Where tbe judge on first trial denied a motion for directed verdict, and tbe jury failed to agree, and be then denied motion for new trial on the ground of error in denying directed verdict, it was not necessary for defendant in bis motion for new trial at tbe last trial to include tbe failure of tbe trial judge to award a new trial at the first trial. (Post, pp. 302, 303.)
139 Tenn. 304City of Bristol v. Bostwick (1917)
1. MUNICIPAL CORPORATIONS. Public buildings. Bonds of con- • tractors. Right to sue. Where a contractor on a public building gave a bond securing performance and also payment of materialmen and laborers, and he defaulted in both respects, the city could sue on its own claim for the additional cost of completion, and also in behalf of the laborers and materialmen whose claims were unpaid. (Post, pp. 309, 310.) Acts cited and construed: Acts 1915, ch. 192; Acts 1899, eh. 182. Cases cited and approved: Perkins Oil Co. v. Eberhart, 107 Tenn., 409; Knight & Jillson Co. v. Castle, 27 L. R. A. (N. S.), 573. 2. MUNICIPAL CORPORATIONS. Public buildings. Bonds of contractors. Where contractor on a public building executed a bond for performance and on his telegraphic request, after advice of the city attorney, the surety by wire consented to insert the words, “and pay for all materials and labor,” as required by Acts 1899, chapter 182, such addition became a part of the contract, and the bond validity secured both performance and payment for materials and labor. (Post, pp. 310-313.) 3. CONTRACTS. Construction. It is the duty of the court primarily to construe every contract-to effectuate the intention of the parties, though it may be necessary to ignore apparently inconsistent language. (Post, pp. 310-313.) Cases cited and approved: Hardison v. Yeaman, 115 Tenn., 639; Equitable Surety Co. v. U. S., for Use, etc., 234 U. S., 448. 4. MUNICIPAL CORPORATIONS. Public buildings. Bonds of contractors. Mere fact that a contractor’s bond, securing both performance, under Acts 1915, chapter 192, and also payment for labor and materials, under Acts 1899, chapter 182, was in a penalty larger than that required by the act of 1899 did not indicate that the parties were unmindful of the latter statute. (Post, pp. 313, 314.) 5. MUNICIPAL CORPORATIONS. Public buildings. Contractor’s bonds. Liens of laborers. Time to file. Where contractor on public building was enjoined from continuing contract, filing of labor and material claims within thirty days from such injunction was sufficient compliance with Acts 1899, chapter 182, section 4, requiring such claims to be filed within thirty days after completion of the contract. (Post, pp. 314, 315.) Case cited and approved: Basham v. Toors, 51 Ark., 309. Code cited and construed: Sec. 3540 (T.-S.). 6. PLEADING-. Demurrer, Effect. All averments of the petition must be taken as true on demurrer. Post, p. 316.) 7. MUNICIPAL CORPORATIONS. Public buildings. Contractor’s bonds. Right to sue. Though the city had in its hands and due the contractor more than enough money to pay, all labor and material claims, its suit on the contractor’s bond, securing both performance and payment of claims, setting up his abandonment of the contract and the additional cost of completion and the liens and claims of labor and materialmen, was not premature. {Post, p. 316.) 8. MUNICIPAL CORPORATIONS. Public buildings. Contractor’s bonds. Actions. Right to sue. Where contractor gave single bond securing performance and also payment of labor and material claims and the city sued the surety for the additional cost of completion after the contractor abandoned the work, also setting up the claims of materialmen and laborers, demurrers to the separate petitions of the various laborers and materialmen should have been sustained, since the bill was not one of interpleader nor a general creditor’s suit. (Post, pp. 316, 317.) 9. MUNICIPAL CORPORATIONS. Public buildings. Actions. Questions for jury. Where the city sued on a contractor’s bond for his failure to complete'the building, it was for the jury whether the city could recover liquidated damages for failure to complete the building. (Post, pp. 317, 318.)
139 Tenn. 319McMillan v. City of Knoxville (1917)
1. LICENSES. Nature of “license.” Occupation tax. A “license,” in its truer sense is issued under the police power, not for revenue, but for regulation, while a license may he issued on payment of an “occupation tax” levied under Constitution article 2, section 28, conferring power to tax privileges, revenue being its primary object, though regulation may he incidental; power exercised in the first case being to license and in the other to tax and license. {Post, pp. 323, 324.) Acts cited and construed: Acts 1917, ch. 78. Constitution cited and construed: Art. 2, sec. 28. 2. LICENSES. Nature of “occupation tax.” An “occupation tax” is levied primarily for revenue, and in instances for regulation incidentally. {Post, p. 324.) Case cited and approved: Mayor of Nashville v. Linck, 80 Tenn., 507. 3. LICENSES. Employment agencies. Statutes. Repeal. It was competent for the legislature to provide a regulatory license for and also an occupation tax on employment agencies, the two not being inconsistent or impringing on each other; and hence Pub. Acts 1917, chapter 78, providing for the regulation and supervision of “employment agencies,” and requiring one engaging in such business to pay a fee and obtain a license, did not repeal Pub. Acts 1917, chapter 70, taxing the business of emigrant agents. {Post, p. 324.) 4. CONSTITUTIONAL LAW. Licenses. Occupations. Amendment. It was competent for the legislature to add to whatever regulation was created in the imposition of a privilege or occupation tax on employment agencies under Pub. Acts 1915, chapter 101, and Pub. Acts 1917, chapter 70, by providing for more detailed policing regulation thereof in Pub. Acts 1917, chapter 78. {Post, p. 325.) 5. LICENSES. Nature of fee. Distinction from occupation tax. A true license fee, as contradistinguisliea from an occupation tax, should be fixed to cover the expense of issuing it, the services of officers and other expenses directly or indirectly incident to supervising the particular business of occupation. (Post, p. 325.) Case cited and approved: Ex parte Cramer, 62 Tex." Cr. R., 11. 6. LICENSES. Occupation tax. Employment agencies. A license issued to an employment agent on payment of an oc- ■ cupation tax under Pub. Acts 1915, chapter 101, levied primarily for revenue, did not preclude the State and a city from denying him the privilege of continuing the emigrant feature of his business thereunder until its expiration without payment of the tax on emigrant agents imposed by Pub. Acts 1917, chapter 70, and a city ordinance. (Post, pp. 325, 326.) Acts cited and construed: Acts 1915, eh. 101; Acts 1917, ch. 70. 7. WORDS AND PHRASES. “Employment agency.” An “employment agency” may be defined to be one for the brokerage of labor for a fee paid by the applicant for employment or ■ by the prospective employer, and any definition thereof would include the employment of laborers to work for another either in or beyond the State, and it does not imply placing of laborers and domestics 'in the borders of the State only. Post, pp. _ 326-329.) Cases cited and approved: Kelly v. Dwyer, 75 Tenn., 180; Hirn v. State, 1 Ohio St., 21. Case cited and distinguished: Robbins v. Taxing District, 81 Tenn., 303. 8. CONSTITUTIONAL LAW. Licenses. Statutes. Modification or repeal. A licensee is bound to know that his license or permit, issued on ' payment of a tax primarily for revenue, is held subject to modification or repeal of the law under which it was issued, from the making of which change if the public welfare required it, no incidental inconvenience to him would stay the law. (Post, pp. 329, 330.) Cases cited and approved: Moore v. Indianapolis, 120 Ind., 484; Fell v. State, 42 Md., 71; Beer Co. v. Massachusetts, 97 U. S., 25; Plow Co. v. Hays, 125 Tenn., 148. Case cited and distinguished: Gundling v. Chicago, 177 U. S., 183. 9.COMMERCE. Interstate commerce. Restriction hy license tax. The tax imposed hy Puh. Acts 1917, chapter 70, on the business of emigrant agents, is not a restriction on interstate commerce. Post, pp. 330, 331.) 10. CONSTITUTIONAL LAW. Licenses. Freedom of contract. Such tax does not interfere with freedom of contract. (Post, pp. 330, 331.) 11. CONSTITUTIONAL LAW. Licenses. Equal protection of the Laws. Such tax does not deny equal protection of the laws, because the busines of hiring laborers within the State is not subject to a like tax. (Post, pp, 330, 331.) Cases cited and approved: Williams v. Fear, 110 Ga., 584; Kendrick v. State, 142 Ala., 43; State v. Hunt, 129 N. C. 686; People v. Warden, etc., 183 N. Y., 223.
139 Tenn. 332Chattanooga Ry. & Light Co. v. Bettis (1917)
1. STATUTES. Repeal. Constitutionality. Priv. Acts 1911, chapter 269, providing for lawful fences in Hamilton county, is not unconstitutional as being in violation of Constitution, article 2, section 17, requiring an act repealing a former act to recite the title or substance of the former act, such act, though not referring sufficiently to the title, in fact making adequate reference to the substance. (Post, pp. 334, 335.) Acts cited and construed: Acts 1899, ch. 23; Acts 1911, ch. 269. Cases cited and approved: State v. Runnels, 92 Tenn., 320; Ran-some v. State, 91 Tenn., 716; State ex rel. v. Gaines, 69 Tenn., 734. Constitution cited and construed: Art. 2, sec. 17. 2. ANIMALS. Stock laws. Statutes. Priv. Acts 1911, chapter 269, providing for lawful fences in Hamilton county, does not repeal by implication Acts 1899, chapter 23, making it unlawful to permit stock to run at large in Hamilton county; the act of 1911 only applying to rural districts in such county, and therefore not covering the same field. (Post, p, 335.) 3. STREET RAILROADS. Injuries to animals. Contributory negligence. Defendant railroad company was sued for negligently killing plaintiff’s pig, and interposed a defense of contributory negligence, based upon plaintiff’s violation of Acts 1899, chapter 23, making it unlawful to permit stock to run at large. Held, that such act, not being passed for the protection of defendant railroad company, it could not predicate a defense of contributory negligence thereon. (Post, pp. 335-337.) Cases cited and approved: Central Branch R. Co. v. Lea, 20 Kan., 353; Kansas City, etc., R. Co. v. McHenry, 2i Kan., 501; Railroad Co. v. Cocke, 64 Tex., 151; Locke v. Railway, 15 Minn., 350; Queen v. Dayton Coal & Iron Co., 95 Tenn., 458; Weeks y. McNulty, 101 Tenn., 495; Iron.& Wire Co. v. Green, 108 Tenn., 161; Railway v. Haynes, 112 Tenn., 712; Willey v. Mulledy, 78 N. Y., 310. Cases cited and distinguished: Adams v. Inn Co., 117 Tenn., 470; Pauley y. Steam Guage, etc., Co., 131 N. Y., 90. 4. ACTION. Operation. Violation. One not the beneficiary of a statute may neither base an action nor defense on a violation thereof. (.Post, pp. 337-340.) Acts cited and construed; Acts 1899, ch. 23. Cases cited and approved; Pennsylvania Co. v. Prana, 112 Ill., 398; Sherman v. Pall River, etc., Co., 5 Allen (Mass.), 213;. Alabama G. S. R. Co. v. McAlpine, etc., Co., 71 Ala., 545; Roberts v. R. & D. R. Co., 88 N. C., 560; Owens v. Hannibal, etc., R. Co., 58 Mo., 387; Schwarz v. Hannibal, etc., R. Co., 58 Mo., 207; Roberts v. M. & O. R. Co., 74 Miss., 334; Orcutt v. Pacific Coast R. Co., 85 Cal., 291; Gulf, etc., R. Co. v. Washington,, 49 Fed., 347. Cases cited and distinguished: Hughes v. Atlanta Steel Co., 136 Ga., 511.
139 Tenn. 341State v. Erwin (1917)
CONSTITUTIONAL LAW. Licenses. Statutes. Due process of law. Compensation. Uniform Taxation. General Laws. Acts 1907, chapter 32 (Thomp. Shan. Code, section 2853a2 et seq.), requiring registration and license fee of $3 in order to keep a female dog, the fdes over expenses to go to the school fund, does not contravene Const, article 1, sections 8, 21, article 2, section 28, nor article 11, section 8, providing that property shall not he taken without a judgment of peers of the land, or without compensation, that taxes shall be uniform, and prohibiting special laws. Acts cited and construed: Acts 1907, ch. 32; Acts 1875, ch. 67. Cases cited and approved; State v. Brown, 68 Tenn., 53; Wheat-ley v. Harris, 36 Tenn., 468; Citizens’ Rapid Transit Co. v. Dew, 100 Tenn., 323; Fink v. Evans, 95. Tenn., 413; Phillips v. Lewis, 3 Tenn. Cas., 230; Sentell v. New Orleans & Carrol-ton R. R. Co., 166 U. S., 698; Paxton v. Fitzsimmons, 253 III., 139 Tenn.] 355; McGlone v. Womack, 129 Ky., 274; Cartliarge y. Rhodes, 101 Mo., 175; Litchville v. Hanson, 19 N. D., 672; Eickerman v. Railroad, 79 Conn., 427; Foster v. Speed, 120 Tenn., 470; Motlow v. State, 125 Tenn., 559; State v. Pérsica, 130 Tenn., 48; State y. Nowell, 137 Tenn., 82; Lindsley v. Gas Co., 220 U. S., 61. Code cited and construed: Sec. 2853a2 (T.-S.). Constitution cited and construed: Secs. 8, 21, Art. 1; Sec. 28, Art. 2; Sec. 8, Art. 11.
139 Tenn. 347Ward v. Sharpe (1917)
1. INFANTS. Contracts. Validity. Want of consideration. As a minor is prejudiced by sale without advertisement of furniture bought on the installment plan, under Acts 1911, chapter ■ 8, section 1, his agreement, waiving advertisement, is void; there being no consideration for such a waiver except the cost of advertisement. (Post, pp. 348-350.) Acts cited and construed: Acts 1911, ch. 8, sec. 1; Acts 1889, ch. 81. Cases cited and approved: Wheaton v. East, 13 Tenn., 41; Sw-af-ford v. Ferguson, 71 Tenn., 292; Chambers v. Railroad, 130, Tenn., 459; Scobey v. Waters, 78 Tenn., 551; Langford v. Frey, 27 Tenn., 443; Robinson v. Coulter, 90 Tenn., 705. 2. SALES. Conditional sales. Default. Advertisement. Waiver. While a seller and purchaser in a conditional sale can waive advertisement and sale on default, as provided in Acts 1889, chapter 81, yet advertisement cannot be waived unless the sale is also waived, because the purpose of allowing the waiver is to permit a final settlement of the account by agreement. (Post, pp. 350-353.) Cases cited and approved: Whitelaw Furniture Co. v. Boon,'102 Tenn., 720; Lieberman v. Puckett, 94 Tenn., 274; Massillon Engine & Thresher Co. v. Wilkes, 82 S. W., 316; Ice & Coal Co. v. Alley, 127 Tenn., 178; Case v. Watson, 122 Tenn., 148.
139 Tenn. 354Chattanooga & Tennessee River Power Co. v. Lawson (1917)
1. EMINENT DOMAIN; Compensation. Dams. Appropriation of lands. Award to landlord. Erection of Tennessee river dam, backing water over lands adjacent to those occupied by plaintiff as tenant at will, was an appropriation for flowage purposes, all resulting damages from which were compensated by an award to the owner, plaintiff’s landlord. (Post, p. 369.) 2. UNITED STATES. Government dam. Consequential damages. Liability of contractor. A private contractor, building a dam to be deeded to the United States in a navigable stream under direction and according to specifications of the United States, is liable only to the same extent as the government, which is not liable for the consequential damages to a tenant at will of one who has been compensated for land taken, by alternate overflow and recession of water, causing stagnation and breeding mosquitoes which infected plaintiff and his family with malaria. (Post, pp. 369-371.) Cases cited and approved: Chattanooga & Tennessee River Power Co. v. United States, 209 Fed., 28; United States v. Lynah, 188 U. S., 445; Gibson v. U. S., 166 U. S., 269; Northern Transportation Co. v. Chicago, 99 U. S., 640; Scranton v. Wheeler, 179 U. S., 141; Union Bridge Co. v. U. S„ 204 U. S„ 364. 3. UNITED STATES. Dams. Consequential damages. Contractor’s liability for torts. Such contractor, being liable only to the same extent as' the government, it is not liable for the tort of failing to remove obstructions and rubbish after each overflow, since the United States is not liable for torts. (Post, pp, 371, 372.) 4. UNITED STATES. Dams. Liability of contractor. Under agreement of such, contractor to save the United States harmless on account of any damage, it was liable only to the same extent as the United States. (Post, pp. 371, 372.) 5. UNITED STATES. Dams. Appropriation of lands. Torts. Where a dam was erected for the United States in navigable stream and alternate overflow and recession caused by stagnant pool on land of a private owner, the United States was not liable for failure to drain the pool, since it had no right to go upon private lands for such purpose. • (Post, p. 372.) ' Case cited and approved: Railway Co. v. Telford, 89 Tenn., 293. 6. NUISANCE. Dams. Contractor’s liability. That a dam erected for the United States in navigable waters created unhealthful conditions by making stagnant pools of water did not make it a nuisance, nor render the contractor liable as for maintaining a nuisance. (Post, pp. 373-376.) Case cited and approved: Colcough v. Nashville & N. & W. R. Co., 39 Tenn., 171. 7. UNITED STATES. Dams. Consequential damages. Liability of contractor. That a private contractor building dam to be deeded to the United States in navigable stream under direction and according to specifications of the United States retained an interest in the surplus water for power production did not render it liable for merely consequential damages to residents of the vicinity by reason of creation of unhealthful and malarial conditions. (Post, pp. 376, 377.)
139 Tenn. 378Shelton v. Chicago, R. I. & P. R. (1917)
1. RAILROADS. Separate accommodations for races. Statutes. Construction. The statute of Arkansas (Kirby’s Dig., sections 6622-6625), requiring separate accommodations in certain cars for the use of white and African passengers, does not require a .dining car to he partitioned with wood, nor that two separate dining cars be provided. {Post, p. 384.) Acts cited and construed: Acts 1891, ch. 52. Code cited and construed: Sec. 3074 (T.-S.). 2. STATUTES. Construction. A statute, when possible, should be given-, a construction making it sensible, without manifest inconvenience, so serious as to work injustice. (Post, pp. 384, 385.) Cases cited and approved: Maxey v. Powers, 117 Tenn., 381; Hall v. State, 124 Tenn., 235. 3. RAILROADS. Separate accommodations for races. Statutes. Construction. Under the Arkansas' Statutes (Kirby’s Dig., sections 6622-6625), as to separate accommodations-for white and African passengers, it is sufficient if a railroad operating dining cars serves white persons at one time and the negroes at another without providing separate coaches. • (Post, pp. 385, 386.) Cases cited and approved: Chiles v. Chesapeake, etc., R. Co., 125 Ky., 299; Chesapeake, etc., R. Co. v. Wells, 85 Tenn., ,613. 4. RAILROADS. Separate accommodations for races. Statutes. Construction. Liability. A railroad which maintained a dining car, intending to serve white and negro passengers at different hours, was liable to a white passenger, when it permitted negroes to be served while she was in the car, only for its negligence in malting a call to the dining car for white persons at the time when negroes were about to be served. (Post, pp. 386, 387.) 5. RAILROADS. Excessive damages. Where a railroad permitted negroes to be served while white passengers were in the dining car, on perceiving which plaintiff arose and left the car and the steward insisted in the hearing of others that she pay for the meal ordered, a verdict of $750 was excessive and should be reduced to $250. (Post, p. 387.)
139 Tenn. 388Hammock v. Qualls (1917)
1. JUSTICES OF THE PEACE. Executions. Liens. The levy of an execution from a justice’s judgment upon land creátes a lien in favor of the judgment creditor. (Post, pp. 391, 392.) Cases cited and approved: Zook v. Smith, 65 Tenn., 213; Parker v. Swan, 20 Tenn., 83; Keaton v. Thomasson, 32 Tenn., 139. 2. EXECUTION. Liens. Date. If the levy of an execution from a justice’s judgment is followed by condemnation and issue of venditioni exponas by the circuit court, the sale had in pursuance thereof relates ■ hack to the date of the levy, and the legal title conveyed by the sheriff’s deed operates from that date. (Post, pp. 391, 392.) 3. EXECUTION. Beal estate. Effect of levy. The levy of an execution upon real estate does, not transfer the title to the land, nor create any interest in the sheriff, but merely fixes a lien upon the land for the payment of the debt. (Post, p. 392.) 4. EXECUTION. Lis pendens. Effect. While the record of the condemnation in the circuit court after levy of execution on a justice’s judgment is constructive notice of the sheriff’s sale, the order of condemnation is not a judgment establishing a lien, but only a mode of executing the levy. (Post, p. 392.) Cases cited and approved: Mann v. Roberts, 79 Tenn., 59; Ash-worth v. Dernier, 60 Tenn., 323. 5. EXECUTION. Lis Pendens. Effect. The record of ’condemnation in the circuit court after levy of execution under a justice’s judgment merely continues the lien of the levy to which the purchaser’s title will relate when he procures a deed from the sheriff. (Post, p. 392.) 6. EXECUTION. Lis pendens. Effect. The only proper use of an execution being to enforce with diligence the collection of a debt, the creditor cannot use it merely as security for his debt by a levy on the property which creates merely a secret lien. (Post, pp. 392, 393.) Case cited and, distinguished: Wilkins v. McCorkle, 112 Tenn., 688. Code cited and construed: Sec. 3751 (S.). 7. VENDOR AND PURCHASER. Priority of deeds. Lis Pendens. In all cases subject to the registration laws, the deed first registered has priority oyer constructive notice of Us pendens. (Post, pp. 393, 394.) Case cited and approved: Shelton v. Johnson, 36 Tenn., 680. 8. LIENS. Secret liens. Secret liens are not favorites of the law. (Post, pp. 394, 395.) 9. EXECUTION. Rights of purchaser. Reasonable diligence. Reasonable diligence is required of the purchaser at an execution sale in perfecting his title, which should be recorded. (Post, pp. 394, 395.) 10. VENDOR AND PURCHASER. Rights of purchaser. Reasonable diligence. Ordinary negligence in procuring a sheriff’s deed, unexplained, should defeat the title of the execution purchaser as against one who buys in good faith and without notice of the title claimed by the execution purchaser. (Post, pp. 394, 395.) 11. EXECUTION. Rights of purchaser. Reasonable diligence. No positive rule can be stated as to what constitutes such delay of an execution sale purchaser in getting a sheriff’s deed as will destroy the right to Us pendens, but one relying upon the rule must understand that his claim is striotissimi juris. (Post, p. 395.) Case cited and approved: Robinson v. Bierce, 102 Tenn., 428. 12. EXECUTION. Vendor and purchaser. Bights of purchaser. Seasonable diligence. Where the purchaser at a sale under condemnation by the circuit court after levy of a justice’s judgment delayed getting a sheriff’s deed for over eight years, his delay was a gross negligence, amounting to an abandonment of his lien, and a subsequent purchaser without notice, who recorded his deed, had superior title, though the purchaser finally took a deed; such deed not relating back to the levy. (Post, pp. 395, 396.)
139 Tenn. 397Wiles Bros. v. Wynne (1917)
1. EXECUTORS AND ADMINISTRATORS. Funeral expenses. Allowance. A charge of $1,000 by an undertaker for a casket which cost it only $307 was exorbitant, and was properly reduced. (Post, pp. 398, 399.) 2. EXECUTORS AND ADMINISTRATORS. Allowances. Funeral expenses. An expenditure of $1,832 for the funeral of a person who had been an imbecile and inmate of an asylum for years, whose estate was less than $10,000 was unwarranted. (Post, p. 399.) • 3. EXECUTORS AND ADMINISTRATORS. Funeral expenses. In the absence of any direction in the will, an executor or administrator has the right to use his discretion in incurring funeral expenses, but the amount must be reasonable. (Post, p. 399.) Cases cited and approved: Gooch v. Beasley, 137 Tenn., 407; Steger v. Frizzell, 2 Tenn., Ch., 369. 4. EXECUTORS AND ADMINISTRATORS. Funeral expenses. Personal liability. The mere fact that an administrator, or other person, wrote “O. K.” on an undertaker’s bill, did not bind him personally, because to bind a person making arrangement for the burial of another it should distinctly appear that he agreed to pay the debt. (Post, pp. 399, 400.) Code cited and construed: Sec. 4090, subsec. 2. (T.-S.)
139 Tenn. 401General Refining & Producing Co. v. Davidson County (1917)
LICENSES. Privilege tax. Oil tanks. Revenue Law (Laws 1915, chapter 101), imposing a tax on persons having oil tanks, etc., for the purpose of selling, delivering, or distributing oil, is inapplicable to a petroleum manufacturer and refiner maintaining storage tanks merely as a part of its manufacturing establishment and making only a manufacturer’s profit. Cases cited and approved: Bell v. Watson, 71 Tenn., 328; Druggist cases, 85 Tenn., 449; Memphis v. American Express Co., 102 Tenn., 336; Chattanooga Plow Co. v. Hays, 125 Tenn., 148; Gulf Refining Co. v. Chattanooga, 136 Tenn., 505.
139 Tenn. 406State ex rel. Stewart v. Louisville & N. R. (1917)
1. TAXATION. Statutes. Construction. Tax statutes will tie construed most strongly against the State. (Post, p. 412.) 2.' STATUTES. Construction. Pari materia. Statutes in pari materia will be construed together, and the whole statute considered in determining its true meaning. (Post, p. 412.) Cases cited and approved: Memphis v. Bing, 94 Tenn., 644; English v. Crenshaw, 120 Tenn., 531; Knox v. Emerson, 123 Tenn., 409; Crenshaw v. Moore, 124 Tenn., 531; O’Neil v. State,, 115 Tenn., 427; Wingfield v. Crosby, 45 Tenn., 241; Lewis v. Mynatt, 105 Tenn., 508; State v. Railroad Co., 84 Tenn., 136; State v. Manson, 105 Tenn., 233; Pond v. Trigg, 52 Tenn., 533; Graham v. Gunn, 87 Tenn., 458; Heiskell v. Lowe, 126 Tenn., 475. 3. TAXATION. “Privilege Taxes.’’ What constitutes. Revenue Act 1915 (Laws 1915, chapter 101) sections 8 and 10, taxing transfers of realty and corporations acquiring the property of another corporation, impose privilege taxes. (Post, p. 413.) Cases cited and approved: Mabry v. Tarver, 20 Tenn., 94'; French v. Baker, 36 Tenn., 193; Clarke v. Montague, 71 Tenn., 277; State v. Schlier, 50 Tenn., 281; Jenkins v. Ewin, 55 Tenn., 456. 4. TAXATION. Statutes. Double taxation. Statutes creating privileges will be construed so as not to impose double taxation, unless such construction is expressly or impliedly required. (Post, pp. 413-416.) Cases cited and approved: Druggist Case, 85 Tenn., 449; Memphis v. Express Co., 102 Tenn., 336; Chattanooga Plow Co. v. Hays, 125 Tenn., 148; General Refining & Producing Co. v. Davidson County et al., 201 S. W., 737. 5. TAXATION. Privilege taxes. Railroads. A railroad which paid a tax imposed by Revenue Act 1915, section 10, on corporations acquiring the property of another corporation, is also liable for the tax imposed by section 8 upon all transfers of realty, since such sections impose different taxes and double taxation does not result. (Post, pp. 416-418.) Cases cited and approved: Street Railway Co. v. Morrow, 87 Tenn., 406; Knoxville v. Sanford, 81 Tenn., 545; Cigar Co. v. Cooper, 99 Tenn., 472. Code cited and construed: Secs. 2380, 2438. (T.-S.). 6. TAXATION. Privilege tax. Railroads. Under Code 1858, section 51, defining land, a railroad acquiring the property of another corporation is liable for the tax imposed by Revenue Act 1915, section 8, on all transfers of realty, although railroad property is merely incident to its use as a highway. (Post, pp. 419, 420.) 7. TAXATION. Collection. Sufficiency of bill. A bill to enforce a transfer tax upon realty imposed by Revenue Act 1915, section 8, which alleged that the property was mortgaged for a certain sum and was worth considerably more, held not insufficient because not stating the property’s true value. (Post, p. 420.) 8. TAXATION. Collection. Prima-facie evidence. In a suit to collect a real estate transfer tax imposed by Revenue Act 1915, section 8, the value of the property stated in the deed is only prima-facie evidence of its true value. (Post, p. 420.) Case cited and approved: Hitt v.-Coal Co., 201 S. W., —. 9. TAXATION. Transfer tax. Collection. Where a railroad pays the transfer real estate tax imposed by Revenue Act 1915, section 8, upon property extending through several counties, the tax need be paid only to the clerk of the county court of the county in which the deed to the land involved is first registered. (Post, pp. 420, 421.)
139 Tenn. 422State v. Bockman (1917)
FROM PUTNAM. Appeal from the Circuit Court of Putnam County J. M. GaudbNHIRe, Judge.
139 Tenn. 429Southern Pub. Ass'n v. Clements Paper Co. (1917)
1. SALES. Contracts. Validity. Mutuality. Certainty. A letter from a corporation to another, stating, “You may enter our contract for a minimum quantity of one hundred twenty tons, maximum quantity of one hundred forty-five tons” of paper specifying the prices and terms signed by the corporation and accepted by the other, is not void for uncertainty or lack of mutuality. (Post, p. 432.) Cases cited and approved: Cherry v. Smith, 22 Tenn., 19; Walker Mfg. Co. v. Swift & Co.,-200 Fed., 529. 2. SALES. Contracts. Construction. In construing a contract the previous dealings of the parties and the circumstances in which the contract was made and the situation of the parties may be considered. (Post, p. 432.) 3. SALES. Contracts. Construction. Rights of parties. Under contract for paper specifying a minimum and a maximum quantity if the option was with the seller, it was bound to deliver the minimum, and might deliver any additional quanity up to the maximum; hut if it lay with the purchaser, the purchaser was bound to accept the minimum, and could require the maximum. (Post, pp. 432-434.) Case cited and ditsinguished: Wheeler v. New Brunswick, etc., R. Co.; 115 U. S., 29. 4. SALES. Contracts. Construction. Rights of parties. Where a publishing company authorized a paper company to enter its order for a minimum of one hundred and twenty tons of paper and maximum of one hundred and forty-five tons, the offer being the purchaser’s, the purchaser had the option, and could require the seller to furnish the maximum. (Post, pp. 434, 436.) Cases cited and approved: Highland Chemical, etc., Co. v. Matthews, 76 N. Y., 145; B. P. Ducas Co. v. Bayer Co., 163 N. Y. Sup., 32; Farquhar Co. v. New River Mineral Co., 87 App. Div.. 329; Small v. Quincy, 4 Me., 497; Disborough v. Neilson, 3 Johns. Cas. (N. Y.), 81; Nixon v. Nixon, 21 Ohio St., 118; Standard Sugar Refinery v. Castaño (C. C.), 43 Fed., 279; Ill. Glass Co. v. Three States Lumber Co., 90 Ill. App., 599. 5. SALES. Contracts. Actions. Premature suit. Under contract authorizing delivery of varying quantity of paper, where the parties disputed the construction, and negotiations were going on, but there had been no absolute and unequivochl refusal to deliver the quantity which the purchaser desired, and the term of the contract had not expired, a suit was premature. {Post, pp. 436-439.) Cases cited and approved: Wheeler v. New Brunswick & C. R. Co., 115 U. S„ 29; Dingley v. Oler, 117 U. S., 501; Johnstone v. Milling, L. R., 16 Q. B. Div., 460; Brady v. Oliver, 125 Tenn., 595.
139 Tenn. 440Frazier v. Nashville Veterinary Hospital (1917)
1. EXEMPTIONS. Garnishment. Statutes. Construction. Under Acts 1905, chapter 376, section 2, providing for exemptions from attachment and garnishment of ninety per cent, if the income is less than $40 per month, the words “per month” and “income” mean the aggregate income during any given calendar month. {Post, p. 443.) Acts cited and construed: Acts 1871, ch. 71; Acts 1905, ch. 376, sec. 2. 2. EXEMPTIONS. Garnishment. Statutes. Construction. Under Acts 1905,. chapter 376, section 2, as to exemptions, those who earn less than $40 per month have ninety per cent, of their wages exempt, and those who earn $40 per month have $36 exempt, and are not protected above that sum. {Post, p. 443.) 3. EXEMPTIONS. Garnishment. Statutes. Construction. “Income. ’ ’ Under Acts 1905, chapter 376, section 2, as to exemptions, the amount of income is determined by all the debtor has collected from his employer or received from any other source during the month, as well as the sum that may belong to him, earned or collectable, but not actually received. {Post, pp. 443, 444.) 4. CONSTITUTIONAL LAW. Exemptions. Class legislation. Acts 1905, chapter 376, section 2, providing a ninety per cent, exemption for persons with an income of $40 per month or less, and a maximum exemption of $36 to persons earning over $40 per month, is not unfair discrimination, but such classification is reasonable. {Post, pp. 444, 445.) 5. EXEMPTIONS. Garnishment. Eights of creditors. Under Acts 1905, chapter 376, the creditor cannot, day by day, or week by week, seize the debtor’s income by garnishment, but must wait until a monthly income has accumulated in order to determine the exemption. (Post, pp. 445-452.) Acts cited and construed: Acts 1895, ch. 192; Acts 1899, chs. 1, 38. Cases cited and approved: Waite v. Franciola, 90 Tenn., 191; Van Vleet v. Stratton, 91 Tenn., 473; Lockett v. Beaver, 97 Tenn., 396; Weaver v. Hill, 97 Tenn., 402; Adcock v. Smith, 97 Tenn., 373. 6. EXEMPTIONS. Garnishment. Statutes. Acts 1905, chapter 376, providing the exemptions from execution, attachment, and garnishment, was intended to cover the whole subject of salary, wage, or income exemption and takes the place of all other statutes on those subjects. (Post, p. 452.) Cases cited and approved: Malone v. Williams, 118 Tenn., 390; State ex rel. v. Vanderbilt University, 129 Tenn., 326;
139 Tenn. 453Horn v. Nicholas (1917)
1. REPLEVIN. Right to remedy. Note. Possession. Where defendant’s agent sold a third person a farm, taking notes, and the agent forged defendant’s signature as indorser, pledging the notes as collateral to the bank, and then made new forged notes, exact duplicates of the true notes, which defendant indorsed believing that he had indorsed the genuine notes, the indorsee could not have replevin to recover the true notes; the delivery of the false notes not having been a valid transference vesting legal title in the indorsee in view of Negotiable Instruments Act (Laws 1899, chapter 94) section 16, making a contract concerning a negotiable instrument incomplete until delivery. (Post, p. 459.) Case cited and approved: Gregory v. Ross, 68 Tenn., 599. 2. REPLEVIN. Right to writ. Note. Possession. Assuming that the indorsee of a false note which both parties thought was the valid note was an equitable assignee, he could not maintain replevin to recover the true note, since one to maintain replevin must show a legal right of possession or ownership as distinguished from such a right recognized in courts of equity. (Post, p. 459.) Cases cited and approved: Rice v. Crow, 53 Tenn., 28; Richmond, etc., Foundry Co. v. Carter, 133 Tenn., 489. 3. REPLEVIN. Right to writ. Note. Possession. “Delivery.” Where defendant’s agent sold a third person a farm, taking notes, and the agent forged defendant’s signature as indorser, pledging the notes as collateral to the bank, and then made new forged notes, exact duplicates of the true notes, which defendant indorsed believing that he had indorsed the genuine notes, the indorsee could not have replevin to recover the true notes on the theory of constructive delivery, since “delivery” means transfer of possession from one person to another, and there could he no transfer of possession where the transferor had no possession. (Post, pp. 459, 460.) 4. ASSIGNMENTS. Equitable assignment. Discretion of chancellor. An equitable assignment will be enforced or not in the sound discretion of the chancellor according to justice, but not so as to defeat intervening rights of third persons. (Post, pp. 460, 461.) Case cited and approved: Trabue v. Bankhead, 2 Tenn Ch. 412.) 5. ESTOPPEL. Purchaser of note. Eifect. Where the maker of a note took over his own note on which the payee’s indorsement was forged, his acts were a mere purchase and he, could reissue the note and set up estoppel against one claiming as the payee’s assignee on a duplicate note which was forged, except as to the payee’s indorsement, when the payee had in writing acknowledged the validity of his indorsement of the note bought by the maker. (Post, pp. 461, 465.) Case cited and distinguished: Morley v. Culverwell, 7 M. & W., 174. 6. ESTOPPEL. Eights of assignees. When estoppel has once arisen in favor of a party, it inures to the benefit of one thereafter purchasing or taking as security from him. (Post, p. 465.) Case cited and approved: Ho'lzbog v. Bakrow, 50 L. R. A. (N. S.), 1028.
139 Tenn. 466Diehl & Lord v. Hailey (1917)
1. COMMERCE. Interstate commerce. Privilege taxes. Sale of alcoholic beverages. Acts 1917, chapter 70, imposing a privilege tax on wholesale dealers in foreign-made nonintoxicating beverages containing alcohol, and on domestic manufacturers of such drinks, is unconstitutional within Const. U. S. article 1, section 8, sub-section 3, as imposing a burden on interstate commerce. (Post, pp. 468-470.) Acts cited and construed: Acts 1917, ch. 70. Case cited and distinguished: I. M. Darnell & Son Co. v. City of Memphis, 208 U. S., 113. 2. COMMERCE. Interstate commerce. Taxes. Mere fact that tax was imposed on manufacture in the State of nonintoxicating alcoholic beverages larger than that imposed on wholesalers of such drinks made outside the State does not justify the classification in Acts 1917, chapter 70, and the omission therein to tax wholesalers of the domestic product. (Post, pp. 470, 471.) Cases cited and approved: Welton v. Missouri, 91 U. S., 275; Guy v. Baltimore, 100 U. S., 434; Webber v. Virginia, 103 U. S., 344. 3. COMMERCE. Interstate commerce. Taxes. Conceding that only foreign-made nonintoxicating alcoholic beverages were ever in the State, Acts 1917, chapter 70, imposing tax only on wholesalers of such foreign-made beverages, is invalid as an imposition on interstate commerce. (Post, p. 271.)
139 Tenn. 472State Bank & Trust Co. v. Nashville Trust Co. (1917)
1. CERTIORARI. Time for petition. Under Thompson’s Shannon’s Code, section 6321a2, providing that certiorari to review judgment of the court of civil appeals shall not he issued after ninety days from final judgment of such court, the statutory period runs from the date of the denial of the first petition for rehearing. (Post, pp. 473, 474.) Code cited and construed: Sec. 6321a2 (T.-S.). 2. CERTIORARI. Time for petition. Since a second petition for rehearing by the same party is not recognized by the rules of the appellate courts, such petition, when denied, cannot be availed of to extend the ninety-day period within which writ of certiorari to review the judgment must be applied for. (Post, p. 474.)
139 Tenn. 475Walker v. Davis (1917)
1. FORCIBLE ENTRY AND DETAINER. Nuisance. Private nuisance. Abatement. Where one was in actual possession of land under a deed defining its boundaries, his possession was violated when another fenced in a part of the land, and thus erected a private nuisance thereon, so that right of action accrued to him to proceed by forcible entry and detainer, or to abate the nuisance. {Post, p. 477.) Cases cited and approved: Earl of Lonsdale v. Nelson, 2 B. & C., 311; Amoslteag Co. v. Goodale, 46 N. H., 53; Rhea v. Forsyth, 37 Pa., 503; State v. Parrott, 71 N. C., 311; Adams v. Barney, 25 Vt., 225; Roberts v. Rose, L. R.; 1 Ex., 82; Penruddock’s Case, 5 Coke, 101; Harvey v. Dewoody, 18 Ark., 252; Moffett v. Brewer, 1 G. Greene (Iowa), 348; State v. Moffett, 1 G. Greene (Iowa), 247; Gates v. Blincoe, 2 Dana (Ky.), 158; City Of Chillieothe v. Bryan, 103 Mo. App., 409; Great Falls Co. v. Worster, 15 N. H., 412; Lawrence v. Hough, 35 N. J. Eq., 371; Lyle v. Little) 83 Hun (N. Y.), 532; Harrower v. Ritson, 37 Barb. (N. Y.), 301; Lancaster Turnpike Co. v. Rogers, 2 Pa., 114. 2. NUISANCE. Private nuisance. Abatement. One having a right of action for a.private nuisance on his land created by another may help himself personally by abating it, if he can do so without a breach of the peace. (Post, pp. 477-480.) 3. REPLEVIN. Plaintiff’s right of possession. Change. Complainant, in extending his fence over land in defendant’s possession and leaving it there, created a private nuisance, and did not effect a lawful change of possession, so as to entitle him to replevy logs and timber cut and removed from the land- by defendant on his abating the nuisance by tearing down the fence. (Post, pp. 480-481.) Case cited and approved: Lieberman v. Clark, 114 Tenn., 117. 4. REPLEVIN". Right of possession. Title. Where one claiming a tract of land to limits of the boundary shows an actual possession under a deed defining boundaries, when another invades it, fells timber, and cuts it into logs, he may replevin the logs left on the ground, and it is unnecessary for him to show title, and a similiar showing is also sufficient to defeat replevin against him by the invader for logs cut from the land. (Post, pp. 481, 483). Case cited and approved: Wheeler v. Clark, 69 L. R. A., 732.
139 Tenn. 484Galoway v. State (1917)
1. CONSTITUTIONAL LAW. Due process of law. Priv. Acts 1915, chapter 564, section 20, requiring the owner to furnish a -wagon and team for road w.ork, and feed therefor, does not violate Constitution article 1, section 8, providing that no man shall he deprived of his property, hut by the judgment of his peers and the law of the land. (Post, pp. 486-493.) Acts cited and construed: Acts 1915, ch. 564, sec. 20; Acts 1804, ch. 1, sec. 8. Cases cited and approved: Toone v. Alabama, 178 Ala., 70; Franklin v. Maberry, 25 Tenn., 368; Chattanooga v. Southern B. Co., 128 Tenn., 399. Cases cited and distinguished: Butler v. Perry, 240 U. S., 328; Goddard, Petitioner, 16 Pick. (Mass.), 504; State v. McMahon, 76 Conn., 97. Constitution cited and construed: Art. 1, sec. 8. 2. EMINENT DOMAIN. Taking property for road work. Neither does it, as to the wagon and team, violate Constitution article 1, section 21, forbidding the taking of property for public use without compensation; but as to the feed it does. (Post, pp. 493, 494.) 3. STATUTES. Partial invalidity. Effect. The statute is not entirely invalid because of the invalidity of the requirement as to feed. (Post, pp. 493, 494.) Cases cited and approved: Barron v. Memphis, 113 Tenn., 89; Posey Township v. Seniour, 42 Ind. App., 580; State v. Dawson, 3 Hill (S. C.), 100. 4. HIGHWAYS. Work on road. Impressment of wagons and teams. The impressment of the wagon and team under the statute does not depend on tide owner’s liability to perform personal service. {Post, p. 495.)
139 Tenn. 496Winters v. March (1917)
1. TRUSTS. Duration. The duration of a trust depends upon the purposes thereof; and when such purposes have been accomplished, the trust ceases. {Post, pp. 501, 502.) Cases cited and approved; Walt v. Walt, 113 Tenn., 189; Dunham v. Harvey, 111 Tenn., 620; Temple v. Ferguson, 110 Tenn., 84; Henson v. Wright, 88 Tenn., 501; Jourolmon v. Massengill, 86 Tenn., 81; Davis v. Williams, 85 Tenn., 646; Hooberry V. Harding, 78 Tenn., 397; Henderson v. Hill, 77 Tenn., 25. Case cited and distinguished: Ellis'v. Fisher, 35 Tenn., 231. 2. PERPETUITIES. Trusts. Termination. A will leaving the residuary estate in trust to the firm to which a testator belonged as trustee “for my said wife and three children, share and share alike, the income derived therefrom by said trustees to be paid over to my said wife and children as their necessities demand,” and providing that if it should be unnecessary to encroach upon the income, then such income was to be invested, but not providing for any devise over, created a trust which would cease as to each beneficiary at death; each devisee being entitled to receive a portion of the income from his share as his necessities might demand, and after the death of the beneficiaries the share of each would go to his or her devisee, distributee, or heir, and therefore the bequest was not void, creating a perpetuity. (Post, pp. 502, 503.)' Cases cited and approved: Temple v. Ferguson, 110 Tenn., 84; Ellis v. Fisher, 35 Tenn., 231; Smith v. Metcalf, 38 Tenn., 64; Rogers v. White, 33 Tenn., 68. 3. TRUSTS. Merger of estates. Where a will devised a testator’s residuary estate to trustees for the benefit of his widow and children, the bequest did not merge the estate with the remainder, where the trust was active, and merger would have defeated testator’s intention. (Post, pp. 503, 504.) Cases cited and approved: Davis v. Williams, 85 Tenn., 646; Henderson v. Hill, 77 Tenn., 25; Jourolmon v. Massengill, 86 Tenn., 93. Case cited and distinguished: Henson v. Wright, 88 Tenn., 501.
139 Tenn. 505Nashville, Chattanooga & St. Louis Railway v. Ford (1917)
1. RAILROADS. Injuries to animals. Nature of action. Since the statutes do not cover injuries to animals hy railroads other than hy collision, an action for injuries to mules frightened hy a train and injured in .a trestle is a common-law action. (.Post, pp. 292-294.) Cases cited and approved: Holder v. Railroad, 79 Tenn., 176; Rail- » road v. Sadler, 91 Tenn., 508. 2. RAILROADS. Animals on tracks. Duties of engineer. After those in charge of the train observe frightened animals on the track or near hy, it is incumbent on them to use ordinary care in operating the train, and if they approach negligently and further frighten the animals and cause injury, the railroad is liable. (Post, pp. 294-296.) Cases cited and approved: Gay v. Wadley, 86 Ga., 103; Brothers v. South Carolina R. Co., 5 S. C., 55; Chicago & N. W. R. Co. v. Taylor, 8 Ill. App., 108; Hot Springs R. Co. v. Newman, 36 Ark., ©08; Pittsburg, C. & St. L. R. Co. v. Stuart, 71 Ind., 500;. Georgia Pacific R. Co. v. Money, 8 South., 646; St. L., I. M. & S. R. Co. v. Bragg, 66 Ark., 248; Ramshottom v. Atlantic Coast Line R. Co., 138 N. C., 38; Ohio Valley R. Co. v. Major, 12 Ky. Law Rep., 710; Indianapolis B. & W. R. Co. v. McBrown, 46 Ind., 229; Alabama G. S. R. Co. v. Hall, 133 Ala., 632. 3. RAILROADS. Animals on track. Negligence. Evidence. Evidence held insufficient to show negligence in operation of a train hy which mules on the track were frightened and caused to he injured on a trestle. (Post, p. 296.)
139 Tenn. 511Harrison v. Rascoe (1917)
MASTER AND SERVANT. Unlawful employment. Suit for injuries. Plaintiff, a minor eleven years old, employed by defendant to distribute meats to customers, injured while feeding a sausage mill in defendant’s place of business, was within the protection of Thompson’s Shannon’s Code, section 4342a-44 (Acts 1911, chapter 57, section 1), malting it unlawful to employ any child less than fourteen years old “in the distribution or transportation of merchandise.” Acts cited and construed: Acts 1911, ch. 57, sec. 1; Acts 1881, ch.. ' 170; Acts 1893, ch. 159. Cases cited and approved: Queen v. Dayton Coal & Iron Co., 95 Tenn., 458; Iron & Wire Co. v. Green, 108 Tenn., 161; Finley v. Furniture Co., 119 Tenn., 701. Code cited and construed: Sec. 4342a44 (T.-S.).
139 Tenn. 515Jernigan Bros. v. Hart (1917)
ATTORNEY AND CLIENT. Lien for services. Waiver. Where an attorney, otherwise entitled to a charging lien on a judgment recovered, takes an assignment to himself of the entire judgment, he abandons or waives his right to enforce the lien; the claim to a lien being merged in the specific assignment of the whole judgment. Cases cited and approved: Dodd v. Brott, 1 Minn., 270; Fulton v. Harrington, 7 Houst. (Del.), 182; McDonogh v. Sherman, 138 App. Div.,.291; Whitehead v. Jessup, 7 Colo. App., 460.
139 Tenn. 517Kilgrow v. West (1918)
INJUNCTION. Acts of juvenile court officers. A court of equity has no jurisdiction to restrain officers of a juvenile court established under Acts 1911, chapter 58, from carrying out a threat to make a child a ward of the court, whether the proceeding is civil, criminal, or semicriminal, because the juvenile court is one of record, and no property rights are involved, and if the juvenile court will not do justice, there is a remedy by appeal. Acts cited and. construed: Acts 1911, ch. 58. Cases cited and approved: Hawkins v. Kercheval, 78 Tenn., 535; Delaney v. Flood, 183 N. Y., 323; The Sailors v. Woelfle, 118 Tenn., 755.
139 Tenn. 522State ex rel. Jones v. West (1918)
• 1. HABEAS CORPUS. Custody of child. Juvenile court judgment. Under Thompson’s Shannon’s Code, section 5503, giving authority to any judge of the circuit, common-law, or criminal courts, or to any chancellor to issue a writ of habeas corpus, where the juvenile court, in a proceeding under Acts 1911, chapter 58, entered a judgment awarding custody of a child, the questions determined in such proceeding cannot he again litigated in a habeas corpus proceeding, hy the same parties, on the same state of facts. (Post, pp. 528-530.) Acts cited and construed: Acts 1911, ch. 58. Cases cited and approved: State ex rel. v. Paine, 23 Tenn., 523; In re Barry (C. C.), 42 Fed., 113; In re Burrus, 136 U. S., 586; New York Foundling Hospital v. Gatti, 203 U. S. 429; People v. Chegaray, 18 Wend. (N. Y.), 637; United States v. Green, 3 Mason, 482; Ewell v. Sneed, 136 Tenn., 602; Mormon Church Case, 136 U. S., 1; State ex rel. v. Kilvington, 100'Tenn., 227; Childress v. State, 133 Tenn., 121; Gudger v. Barnes, 51 Tenn., 571; State v. Bank, 95 Tenn., 212; Farnham v. Pierce, 141 Mass., 203; Kennedy v. Meara, 127 Ga., 68. Case cited and distinguished: Ex parte Watkins, 3 Pet., 193. Code cited and construed: Sec. 5503 (T.-S.). Constitution cited and construed: Art. 1, sec. 15 (1870); Art. 1, sec. 15 (1834); Art. 11, sec. 15 (1796). 2. HABEAS CORPUS. Purpose of writ. The writ of habeas corpus cannot be made to serve the purpose of an appeal or writ of error. (Post, pp. 530, 531.) 3. CERTIORARI. Review of proceedings in juvenile court. Proceedings in tile juvenile court must be reviewed in the circuit court by certiorari. (Post, p. 531.) Cases cited and approved: State ex rel. v. Taxing District, 84 Tenn., 240; State v. Bookman, 201 S. W., 741.
139 Tenn. 532Beery v. Shelby County (1918)
1. COUNTIES. Bonds. Validity. Priv. Acts 1917, chapters 295, 479, authorizing Shelby county to aid Bolton College by issuing bonds and levying a tax to pay therefor, violates Constitution 1870, article 2, section 29, providing that a county’s credit shall not be given in aid of any person, etc., unless such action be authorized by a three-fourths vote at an election held for that purpose. (Post, pp. 538-542.) Acts'cited and construed: Priv. Acts 1917, chs. 295, 479. Cases cited and approved: Nichol v. Nashville, 28 Tenn., 252; L. & N. R. R. Co. v. Davidson County, 33 Tenn., 637; Winston v. T. & P. R. R. Co., 60 Tenn., 60; Lauderdale County v. Pargason, 75 Tenn., 155; City of Memphis v. Gayoso Gas Co., 56 Tenn., 531; University v. Knoxville, 65 Tenn., 166; Luehrman v. Taxing District, 70 Tenn., 425; Williams v. Taxing District, 84 Tenn., 531; Demoville v. Davidson County, 87 Tenn., 214; State ex rel. v. Cummings, 130 Tenn., 566; Quinn v. Hester, 135 Tenn., 373; Waterhouse v. Board, 55 Tenn., 857; Ballentine v. Mayor, 83 Tenn., 633; Smith v. Carter, 131 Tenn., 1; Wallace v. Tipton Co., 3 Shan. Cas., 542; Winston v. Railroad, 60 Tenn., 60; McCallie v. Chattanooga, 40 Tenn., 317; Shelby County v. Judges, 3 Shan. Cas., 508; Shelby County v. Exposition Co., 96 Tenn., 659; Burnett v. Maloney, 97 Tenn., 697; State ex rel. v. Powers, 124 Tenn., 553; In re Forked Deer Drainage District, 133 Tenn., 684; State ex rel. v. Brown, 132 Tenn., 685; Ransom v. Rutherford Co., 123 Tenn., 25; Shelby County v. Jarnigan, 3 Shan. Cas., 184; Wallace v. County Court, 3 Shan. Cas., 542; University v. Knoxville, 65 Tenn., 166; City of Memphis v. Memphis Gayoso Gas Co., 56 Tenn., 531; Newman v. Ashe, 68 Tenn., 380; Ballentine v. Pulaski, 83 Tenn., 644; Imboden v. City of Bristol, 132 Tenn., 562. Constitution cited and construed: Sec. 29, art. 2. 2. MUNICIPAL CORPORATIONS. Bond issues. Validity. Under Constitution 1870, article 2, section 29, providing that the legislature may authorize municipalities to tax for county and corporate purposes in such manner as shall be prescribed by law, but that a municipality’s credit shall not be pledged in aid of any person, etc., unless such action be authorized at an election, no election is necessary where the municipality directly taxes for a direct public purpose unless the statute specifically so requires. (Post, pp. 543, 544.) Case cited and approved: Colburne v. Railroad, 94 Tenn., 43. 3. MUNICIPAL CORPORATIONS. Bond issues. Validity. Under Constitution 1870, article 2, section 29, providing that a municipality’s credit shall not be given or loaned unless such action be approved at an election, the statute authorizing the loan of credit must provide for the election. (Post, pp. 544-546.)
139 Tenn. 547Jones v. State ex rel. Juvenile Court (1918)
HABEAS CORPUS. Juvenile court. Certiorari. Proceedings as to custody of child. Statutory certiorari from the circuit court lies to review the action of the juvenile court in proceedings involving the custody of a child, and statutory certiorari will issue, that the case may he tried again upon its merits in the circuit court, and not the common-law writ of certiorari, which opens for review merely the legality of the action of the inferior tribunal. Cases cited and approved: Childress v. State, 133 Tenn., 121; State of Tennessee ex rel. v. Bochman, 139 Tenn., 422; Staples v. Brown, 113 Tenn., 641; Conners v. City of Knoxville, 136 Tenn., 428. „
139 Tenn. 549Juvenile Court of Shelby County v. State ex rel. Humphry (1918)
1. HABEAS CORPUS. Custody of child, Juvenile court judgment. Res adjudicata. Where the juvenile court entered a judgment that a child was delinquent, questions determined in such proceeding cannot be again reviewed in hateas corpus by the mother of the child, assuming that the proceedings of the juvenile court were valid, since the question of the child’s custody was res adjudicata. (Post, pp. 552-554.) Acts cited and construed: Acts 1911, ch. 58, sec. 10. Case cited and approved: State of Tennessee ex rel. Chester R. Jones v. Mrs. B. Gr. West, 139 Tenn. —. 2. INFANTS. Juvenile court proceedings. Necessity of notice. In a proceeding under Pub. Acts 1911, chapter 58, section 10, on arrest of an infant for homicide, the juvenile court proceedings were not void, for failure to give mother of the boy notice where she was present at the hearing and was examined as a witness, since she thereby entered her appearance and waived the statutory requirement of notice. (Post, p. -54.) 3. INFANTS. Juvenile courts. Orders. Requisite. Sufficiency. The juvenile court is a court of special and limited jurisdiction, and its judgments or decrees should show the facts upon which its jurisdiction rests, such as the age of the child, the nature of the proceedings, the service of notice, and the statutory circumstances of delinquency. (Post, pp. 554, 555.) 4. INFANTS. Criminal responsibility. Presumptions. The presumption of incapacity of a child to commit a crime is conclusive when the child is under the age of seven years; and, if between seven and fourteen, the burden is on the State to show that the child is capable of appreciating the nature of his acts. (Post, pp. 555, 556.) Case cited and approved: State v. Davis, 104 Tenn., 501. 5. INFANTS. Juvenile court. Purpose of proceedings. Proceedings in the juvenile court are not criminal in their nature, and are not instituted to punish the child, but to provide for his welfare. (Post, p. 556.) Case cited and approved: Childress v. State, 133 Tenn., 121. 6. INFANTS. Presumptions. Criminal responsibility. In a proceeding in the juvenile court for delinquency of a child alleged to have killed his playmate, the age of the child is immaterial; the procedure not being criminal. (Post, pp. 556, 557.) 7. INFANTS. Juvenile court. Jurisdiction. Under Pub. Acts 1911, chapter 58, requiring that if a child brought before the juvenile court is probably guilty of murder in either degree, he shall be turned over to the county authorities to be proceeded against according to criminal law, the juvenile court has no jurisdiction of an infant alleged to have committed homicide if the judge thinks he is probably guilty. (Post, pp. 557, 558.)
139 Tenn. 559Day v. Burgess (1918)
FROM MADISON. Appeal from the Chancery Court of Madison County. — J. W. Ross, Chancellor.
139 Tenn. 572Hull v. Hull (1918)
•FROM SHELBY. Appeal from the Chancery Court of Shelby County. — F. H. Heiskell, Chancellor.
139 Tenn. 580Johnson v. Martin Furniture Co. (1918)
1. APPEAL AND ERROR. Record. Agreed case. Motion for new trial. Where a cause was submitted solely upon an agreed statement of facts, the agreed case became a part of the record without certification by the trial court, and, no bill of exception being required, a motion for new trial was not essential to an appeal. (Post, p. 581.) Cases cited and approved: Railroad v. Johnson, 114 Tenn., 632; Seymour v. Railroad, 117 Tenn., 98; Railroad v. Ray, 124 Tenn., 16. 2. SALES. Conditional sales. Personal judgment. Replevin. The taking of a personal judgment against a purchaser under a conditional sales contract upon default does not preclude resort to replevin to bring the property to sale under Thompson-Shannon Code, section 3666; the retention of title being security for the personal obligation, which security is not lost by the judgment. (Post, p. 582.) Cases cited - and approved: Frisch v. Wells, 200 Mass., 429; Francis v. Bohart, 76 Or., 1; Norman v. Meeker, 91 Wash. 534; Automobile Co. v. Bicknell, 129 Tenn., 496; Stephens v. Greene County Iron Co., 58 Tenn., 71; Rossiter v. Merriman, 80 Kan., 739; Bank v. Bradley, 83 Tenn., 279; Ballinger y. West Pub. Co., 239 U. S., 646; Turner v. Brock, 53 Tenn., 50; Hines v. Perkins, 49 Tenn., 395; Southern Ice Co. y. Alley, 127 Tenn., 173. .Cases cited and’distinguished: Chitwood v. Trimble, 61 Tenn., 78; Lovejoy v. Murray, 3 Wall. (70 U. S.), 1. Code cited and construed: Sec. 3666(T.-S.).
139 Tenn. 587Williams v. Gaither (1918)
1. INSANE PERSONS. Actions. Parties. Next friend. A suit may be brought in behalf of a person of unsound mind by a next friend in the name of such person, either before or after inquisition of lunacy, where no guardian or committee has been appointed. (Post, p. 589.) Cases cited and approved: Morgan v. Potter, 157 U. S., 195; Parsons v. Kinzer, 71 Tenn., 346; Isle of Cranby, 199 Ill., 39. 2. INSANE PERSONS. Actions by next friend. Subsequent guardian. Control of action. In a suit brought by the next friend of an insane person,'his sub- ° sequently appointed guardian had the right to control the suit by being substituted for the next friend, but could not appear otherwise and have the suit dismissed at the cost of the next friend. (Post, p. 589.) 3. INSANE PERSONS. Actions. Next friend. Substitution. A next friend bringing a suit for an insane person is in a sense a volunteer, and the court of pendency may at any time investigate his fitness to represent the incompetent’s interests, may allow or direct that some one else be substituted in his place and will ordinarily substitute a subsequently appointed guardian upon application. (Post, p. 591.) Cases cited and approved: Kingsbury v. Buckner, 134 U. S., 650; Plympton v. Hall, 55 Minn., 22. 4. ATTORNEY AND CLIENT. Lien for fees. Attorneys who properly brought a suit for an insane person by his next friend have a lien upon the cause of action for their fees.1 (post, p. 591.) 5. INSANE PERSONS. Actions. Costs. A guardian appointed subsequent to a suit py her insane ward by his next friend should not be allowed to dismiss the suit without payment of costs. {Post, p. 592.)
139 Tenn. 593Weinstein v. Barrasso (1918)
1. APPEAL AND ERROR. Review. Record. Finding of court without request. There being no request therefor by either party, a written opinion or finding of facts filed by the trial judge is no part of the record, and the judgment must be treated as a general verdict under a correct charge and affirmed if it may be rested on any theory supported by material evidence. (Post, p. 595.) Cases cited find approved: Brooks v. Paper Co., 94 Tenn., 701; Stephens v. Mason, 99 Tenn., 512. 2. LANDLORD AND TENANT. Negligent use of rooms by other tenants. Eviction. Where a landlord surrenders to tenants possession of upstairs rooms in which are installed proper closet fixtures, and such tenants by negligent use cause overflows of water, to the injury of tenants below, the landlord not being responsible therefor, such acts are not an eviction. (Post, p. 595.) 3. LANDLORD AND TENANT. Action for rents. Defenses. Eviction. A tenant cannot claim a constructive eviction before surrendering the premises, and such eviction is no defense to an action for rents, then overdue, although payable in advance. (Post, p. 597.) Cases cited and approved: Kuschinsky v. Flanigan, 170 Mich., 245; Edmison v. Lowry, 3 S. D., 77. Cases cited and distinguished: Johnson v. Oppenheim, 12 Abb. Prac. N. S. (N. Y.), 449; Wilson v. Smith, 13 Tenn., 379.
139 Tenn. 601Dickason v. State (1918)
1. HOMICIDE. Dying declarations. Admissibility. The victim of the murder was shot at close quarters with a shotgun, and his wounds were very large and of a desperate nature. He received the wound late in the evening and lived until the following day. The physicians who visited him the following morning informed him that he would have a hare chance for recovery if he submitted to an operation. He protested against the operation; said it was no use; that he was going to die. After some further talk he ceased objecting to the' operation and made the statement admitted in evidence. He never at any time manifested any hope, and while the ansesthetic was being administered again protested; said it was useless, and he was going to die.* Held, the declaration was admissible, since the victim regarded his death as inevitable and imminent at the time he made the declaration, and was without hope of recovery, the bare circumstance that he consented to an operation not indicating that he entertained hope of recovery. (Post, p. 603.) Cases cited and approved: Smith v. State, 28 Tenn., 9; Anthony v. State, 19 Tenn., 265; Baxter v. State, 83 Tenn., 657. 2. HOMICIDE. Dying declarations. Sense of impending death. How shown. The sense of impending death may be shown by the language of deceased, or inferred from the character of the wound, or set up by the testimony of physicians or other attendants. (Post, p. 605.) Cases cited and approved: Brakefield v. State, 33 Tenn., 215; Logan v. State, 28 Tenn., 24; Nelson v. State, 26 Tenn., 542. 3. HOMICIDE. Dying declarations. Admissibility. Question for court. The admissibility of dying declarations is a question for the court. (Post, p. 606.) Case cited and approved: Bolin v. State, 77 Tenn., 516. 4. HOMICIDE. Dying declarations. Admissibility. Question of fact. The competency of a dying declaration is ordinarily a mixed question of law and fact. (Post, p. 607.) 5. HOMICIDE. Review. Admission of dying declaration. While the supreme court has the power to review the action of the trial judge in holding a dying declaration admissible, it seldom does. (Post, p, 607.) 6. CRIMINAL LAW. Review. Admission of dying declaration. Where the fact of declarant’s condition depends on the credibility of witnesses, great weight is to be attached to the conclusions of the trial judge in holding a dying declaration admissible, and the court on appeal will not reverse, unless there is manifest error. (Post, p. 607.) Cases cited and approved: Gipe v. State, 165 Ind., 433; Swisher v. Com., 26 Grat., 963. 7. HOMICIDE. Instruction on' dying declaration. Reversible error. In a prosecution for murder, instruction that dying declaration introduced in evidence. was to be considered as the evidénce of a witness, held reversible error, for a dying declaration is not put on the same plane as testimony of a witness appearing before the jury. (Post, p. 607.) Cases cited and approved: Still v. State, 125 Tenn., 80; People v. Kraft, 148 N. Y., 631; State v. Vansant, 80 Mo., 67; State v. Dorris, 51 Or., 136; State v. Yalenchia, 19 N. M., 113. Case cited and distinguished: Poteete v. State, 68 Tenn., 261; Jol-lay v. State, 130 Tenn., 286. 8. CRIMINAL LAW. Record of divorce suit. Admissibility. In prosecution for murder, held, that the record-in a divorce case brought against defendant should not be read to the jury, since charges made in the bill were calculated to prejudice defendant’s case. (Post, p. 610.) 9. CRIMINAL LAW. Exception to dying declaration. Review. Where exeception below challenged entire dying declaration, most of which was competent, assignment of error -as to part of declaration will be overruled on appeal, since incompetent portions should have been specifically pointed out. (Post, p. 610.)
139 Tenn. 611Hunt-Berlin Coal Co. v. Paton (1918)
FROM SHELBY. Appeal from the Circuit Court of Shelby County to the Court of Civil Appeals, and by certiorari to the Court of Civil Appeals from the Supreme Court. — A. B. PlTÍMAN, Judge.
139 Tenn. 625Ashcroft v. Goodman (1918)
FROM SHELBY Appeal from the Circuit Court of Shelby County to the Court of Civil Appeals, and by certiorari to the Court of Civil Appeals from the Supreme Court. — • H. W. McLaughlin and J. P. Young, Judges.
139 Tenn. 634Columbia & Big Bigby Turnpike Co. v. English (1917)
1. NEGLIGENCE. Proximate cause. Concurrent causes. Where two causes proximately contribute to an injury sued for, for only one of which defendant is responsible, and with the other of which neither party is chargeable,- defendant must be held liable. (Post, pp. 637, 638.) Cases cited and approved: Sullivan County v. Ruth & Co., 106 Tenn., 85; Sowles v. Moore, 65 Vt., 322. 2. TURNPIKES AND TOLL ROADS. Action for injury. Evidence. Negligence. Proximate cause. In an action against a turnpike company for injury to a traveler passing over a bridge, evidence held to sustain a finding of negligence in failing to fence one side of an approach thereto, and that this contributed as a proximate cause to the injury. (Post, pp. 638, 639.) 3. APPEAL AND ERROR. Harmless error. Instructions. In view of Acts 1911, chapter 32, providing that no verdict or judgment will be set aside and new trial granted unless error complained of has affected the result, there can be no reversal for error, if any, in refusing a charge where it did not affect the result. (Post, pp. 638, 639.) Acts cited and construed: Acts 1911, eh. 32. Cases cited and approved: Walrod v. Webster County, 110 Iowa, 349; Gould v. Schermer, 101 Iowa, 582'; Strange v. Bodcaw Lumber Co., 79 Ark., 490; Augusta v. Hudson, 94 Ga., 135; Baltimore & R. Turnpike Road v; State, 71 Md., 573; Baldwin v. Greenwoods Turnpike Co., 40 Conn., 238; Ivory v. Deerpark, 116 N. J. 476; Sturgis v. Kountz, 165 Pa., 358; Beopple v. Railroad, 104 Tenn., 420; Coleman v. Bennett, 111 Tenn., 705.
139 Tenn. 640Coco Cola Bottling Works v. Brown (1917)
FROM DAVIDSON. Appeal from the Circuit Court of Davidson County to the Court of Civil Appeals, and by certiorari to the Court of Civil Appeals from the Supreme Court. — A. G-. Rutherford, Judge.
139 Tenn. 648Sewanee Fuel & Iron Co. v. Leonard (1917)
INTERPLEADER. Who may maintain. Trespass. Where an admitted trespasser had mined coal on land claimed by two other parties, and both sued, the trespasser could not maintain a bill of interpleader, or a -bill in the nature of a bill of interpleader, to determine to whom it was indebted. Cases cited and approved: American Tel., etc., Co. v. Day, 52 N. Y. Sup. Ct., 128; Morristown First Nat. Bank v. Bininger, 26 N. J. Eq., 345; Shaw v. Coster, 8 Paige (N. Y.), 339; Slingsby v. Boulton, 1 Yes. & Beá., 334; Stephenson v. Burdett, 56 W. Va., 109. Case cited and distinguished: Quinn v. Green, 36 N. P., 229.
139 Tenn. 655Weems v. Neblett (1917)
1. BILLS AND NOTES. Words of negotiability. A note is not negotiable where it is not payable to bearer or to order. (Post, pp. 657, 658.) 2. BILLS AND NOTES. Indorsement of nonnegotiable note. “Guarantor. ” “ Indorser. ’ ’ A person who signed bis name on the back of a nonnegotiable note was a “guarantor,” and not an ‘ ‘ indorser ’ ’ in the sense of the law merchant. (Post, pp. 657, 658.) Cases cited and approved: Gilley v. Harrell, 118 Tenn., 115; White-man v. Childress, 25 Tenn., 303; Simpson v. Moulden, 43 Tenn., 431. 3. BILLS AND NOTES. Nonnegotiable note. Consideration for transfer. The holder of a nonnegotiable note to whom it had been transferred by the payee without consideration therefor cannot recover against a guarantor who became such prior to the transfer. (Post, p. 658.) 4. BILLS AND NOTES. Nonnegotiable note. Burden of proving consideration. There is no presumption of consideration for transfer of a nonnegotiable note, and the burden of proving consideration is upon the holder. (Post, p. 658.)
139 Tenn. 674Arnold v. State (1917)
1. CRIMINAL LAW. Testimony by accused. Rebuttal. One accused of assault with intent to murder, having testified in his own behalf, and the State having produced testimony that he offered to pay $500 if the prosecution were dismissed, should have been allowed in rebuttal to contradict such testimony. (Post, p. 676.) Acts cited and construed: Acts 1887, ch. 79. Case cited and approved: Clemons v. State, 92 Ténn., 282. 2. CRIMINAL LAW. Appeal. Error in. denying him the right so to testify was prejudicial. (Post, p. 676.)
139 Tenn. 677Evans v. Williams (1917)
1. LICENSES. Occupation tax. Shaving notes. One who sold cattle at true cash value to a holder of notes which were taken without discount at their face value with interest was not engaged in the business of shaving notes in such transaction, so as to require a license, and could sue on the notes, although he had shaved notes on other transactions. (Post, pp. 677-679.) 2. LICENSES. Occupation tax. Burden of proof. The burden is on one who obtains notes from a holder in exchange for property to clearly show that he was not engaged in the business of shaving notes without a license; the presumption being, in the absence of other evidence, that they were obtained in the exercise of the taxable privilege. (Post, pp. '677-679.)
139 Tenn. 680Moye v. State (1917)
1. STATUTES. Subjects and title. Crimes. Acts 1915, chapter 125, entitled “An act to require husbands to provide for their wives, ...” and providing that it is a misdemeanor (a) for any husband to willfully and without good cause neglect or fail to provide for.his wife according to his means, and (b) for any husband willfully and without good cause to leave his wife destitute or in danger of becoming a public charge, does not violate Constitution article 2, section 17, providing that no bill shall embrace more than one subject, that subject to be expressed in the title. (Post, p. 682.) Acts cited and construed: Acts 1915, ch. 125. Constitution cited and construed: Art. 2, sec. 17. 2. CONSTITUTIONAL LAW. Depriving of liberty. Law of the land. Acts 1915,' chapter 125, providing that the judge of the juvenile court shall, if he pleads guilty, bind a husband charged with nonsupport over for the action of the grand jury under bond, should be read in the light of Thompson-Shannon Code, section 6976, providing that no person can be committed to prison for any criminal matter until examination thereof be first had before some magistrate, and the judge before committing an accused to jail for failure to obtain a bond should hear evidence as to the existence, of a probable cause of guilt, unless there were a waiver by the accused, and hence the statute does not violate Constitution, article 1, section 8, providing that no person shall be taken or imprisoned or in any manner deprived of his liberty but by the judgment of his peers of the law of the land. (Post, pp. 683, 684.) Acts cited and construed: Acts 1915, ch. 125. Code cited and construed: Sec. 6976(T.-S.). Constitution cited and construed: Art. 1, sec. 8, (1870). sec. 8, (1870). 3. INDICTMENT AND INFORMATION. Wife as prosecutrix. Nonsupport. In view of Thompson-Sliannon Code, section 4605, providing deserted wife may sue and be sued, a deserted wife may be prose-cutrix on an indictment against ber husband for nonsupport under Acts 1915, chapter 125. (Post, p. 684.) - Case cited and approved: Cocke v. Garrett, 66 Tenn., 360. Case cited and distinguished: State v. Travis, 1 Shan. Tenn. Cas., 593. Code cited and construed: Sec. 4505 (T.-S.).
139 Tenn. 685Shelton v. Wade (1917)
APPEAL AND ERROR. Ground for dismissal of Appeal. Failure to make motion for new trial. Failure to make motion for new trial in the court below was ground for dismissal of appeal, though case was tried by the court without a jury. Cases cited and approved: Road Commissioners y. Railroad, 123 Tenn., 257; Lancaster v. Fisher, 94 Tenn., 222; Barr v. Railroad, 105 Tenn., 544; State v. Sneed, 105 Tenn., 712; Seymour v. Railroad, 117 Tenn., 98; Barnes v. Noel, 131 Tenn., 126; Bostick v. Thomas, 137 Tenn., 99.
139 Tenn. 687York Lumber & Mfg. Co. v. McKnight (1918)
MECHANICS’ LIENS. Lumber used for temporary purposes. Right to lien. Under Thompson-Shannon Code, section 3531, providing for a lien in favor of one who furnishes material for the building contemplated, plaintiff, who in good faith furnished lumber, believing that it was to be used in a permanent structure, would be entitled to a lien, although the lumber was used in making forms for concrete, and at least seventy-five per cent, was usable at another place on completion of the work for defendants. Cases cited and approved: Cohn & Goldberg v. Construction Co., 131 Tenn., 445; Daniel & Co. v. Weaver, 73 Tenn., 392; Jonte v. Gill (Ch. App.), 39 S. W., 750. Code cited and construed: Secs. 3531, 3580 (T.-S.).
139 Tenn. 691McFarland v. Bowling (1918)
LIMITATION OF ACTIONS. Commencement of suit. Absence from State. In view of Thompson-Shannon Code, sections 4012, 4007, requiring creditors of a decedent residing within the State to bring suit against the administrator or executor within two years and six months after the qualification of such personal representative, and section 4455, providing that, if the executor or administrator shall he absent from or reside out of the State, the time of such absence or residence shall not be taken as any part of >the time limited for the commencement of the action, the running of limitations may be arrested by filing a bill in chancery against an executor, although he is temporarily absent, such filing being the beginning of a suit, even though personal process be not then issued, and hence failure to file such a bill in time bars an action by a creditor against an executor to recover on decedent’s promissory note. Cases cited and approved: Boro v. Hidell, 122 Tenn., 80, 89; Collins v. Ins. Co., 91 Tenn., 432; Cowan, McClung & Co. v. Donaldson, 95 Tenn., 322; Litton v. Armstead, 68 Tenn., 514; Montgomery v. Buck, 25 Tenn., 416. Codes cited and construed: Secs. 4012, 4007, 4455 (T.-S.).
139 Tenn. 695Townsend v. Neuhardt (1918)
1. FRAUDS, STATUTE OF. Promise to pay debt of another. Original promise. "Where the promise of a garnishee to pay plaintiff in garnishment a stated sum to be applied on the judgment if he would continue the case to an agreed date was direct and clear as between the parties, the" Statute of Frauds as to answering for the debt of another did not apply. (Post, pp. 697-699.) Cases cited and approved: Lookout Mountain Railroad Co. v. Houston, 85 Tenn., 224-226; Brown v. Bussey, 26 Tenn., 573; Hall v. Rodgers, 26 Tenn., 536; Mills v. Mills, 40 Tenn., 705; Randle v. Harris, 14 Tenn., 508; Tappan v. Campbell, 17 Tenn,, 436; Cathcart v. Thomas, 67 Tenn., 172; Rivers v. Thomas, 69 Tenn., 649; Macon v. Sheppard, 21 Tenn., 334; McCarty v. Blevins, 13 Tenn., 195. 2. CONTRACTS. ' Consideration. Sufficiency. A garnishee who was desirous of making a trip to another town in company with defendant in the garnishment proceeding offered to pay $100 to plaintiff if he would continue the case. The object in making- the trip was to consummate a deal in coal lands whereby the garnishee expected to profit. Held, that the promise was supported by a consideration consisting of the benefit to the garnishee in being able to make the trip regardless of the fact that the expected benefits were not realized. (Post, pp. 697-699.) 3. CONTRACTS. Consideration. Forbearance. Where a plaintiff in garnishment, in consideration of $100 paid to him by the garnishee, continued the case, the forbearance on plantiff’s part, being a concession of part of his rights, constituted a sufficient consideration for the promise to pay. (Post, pp. 697-699.) 4. CONTRACTS. Consideration. Sufficiency. Tp support a contract, the consideration does not have to he adequate; it need only be valuable. (Post, pp. 697-699.)
139 Tenn. 700Kenner v. Kenner (1917)
CONSTITUTIONAL LAW. Parent and child. Rights of parent. Due process of law. A father has no property right in a child, and a claim that he was deprived of his property without due process of law and without compensation in violation of ■ Const. U. S. Amend. 14, in that by losing its custody in divorce proceedings where he • was not personally served with process he was deprived of its services, cannot be considered, although a parent is entitled to damages for value of services of a child unlawfully restrained or injured, and is'also entitled to the child’s earnings, but cannot compel it to do service for another. Cases cited and approved: Barry v. Mercien, 5 How., 103; De Krafft v. Barney, 2 Black, 704; McKelvy v. McKelvy, 111 Tenn., 388; Respublica v. Keppele, 2 Hall., 198; Cloud v. Hamilton, 30 Tenn., 104; Tennessee Mfg. Co. v. James, 91 Tenn., 154; Stewart v. Rickets, 21 Tenn., 151; Stringfield v. Heiskell, 10 Tenn., 546; Burke v. Ellis, 105 Tenn., 702; Ex Parte Burrus, 136 U. S., 586; Pennington v. Bank, 243 U. S., 269; De La Montanya v. De La Montanya, 112 Cal., 101. Code cited and construed: Secs. 4321-4336(T.-S.). Note.- — See original opinion page 211 et sequa supra. Reporter.