Volume 149 — Tennessee Reports

<p>FROM KNOX.</p> <p>Appeal from the Chancery Court of Knox. County to the Court of Civil Appeals, and by certiorari to the Court of Civil Appeals from the Supreme Court. — Hon. Chas. Hays Brown, Chancellor.</p>

<p>1. MUNICIPAL CORPORATIONS. City could not require railroad to construct ramps on viaduct not required by public necessity.</p> <p>A city could not require a railroad to construct ramps in connection with viaduct-across tracks at crossing, where the construction of such ramps was not required by public necessity. (Post, pp. 307-309.)</p> <p>2. RAILROADS. Invalidity of ordinance for construction of viaduct, in so far as it provided for construction of ramps, held to validate entire ordinance.</p> <p>An ordinance, requiring railroad to construct and maintain viaduct over tracks at crossing with certain ramps, will not be enforced, in so far as it requires the construction of the viaduct without the ramps where that portion requiring construction of ramps is void, because the construction of the ramps is not required by public necessity, since its invalidity as to ramps invalidates the ordinance as a whole, it being entire and not severable. (Post., pp. 307-309.)</p> <p>Acts cited and construed: Acts 1907, ch. 207, sec. 15, subsec. 21.</p> <p>Cases cited and approved: L. & N. Railroad Co. v. State, 40 Tenn., 523; Dyer County v. Railroad, 87 Tenn., 712; Harriman v. Railroad, 111 Tenn., 538; Chattanooga v. Railroad, 128 Tenn., 406; Minneapolis v. Railroad, 98 Minn., 380; Chicago, Milwaukee & St. Paul Ry. Co. v. Minneapolis, 232 XT. S., 430; Chicago v. Gunning System, 114 Ill. App., 377; Ex parte Mayor & Aldermen of Florence {In re Jones), 78 Ala., 419; State v. Webber, 107 N. C., 962; Canova v. Williams, 41 Fla., 509; Wiesenthal v. Atlantic City, 73 • N. J. Law, 245.</p>

<p>1. DEEDS. Purpose for which testimony of children of grantor disclaiming interest considered.</p> <p>Testimony of the children of deceased woman, disclaiming any interest in property conveyed by her while married, can be considered, if relevant to an issue as to its validity, only to illustrate her capacity to contract and her freedom from coercion when the deed was executed. (Post, p. 313.)</p> <p>Cases cited and approved: Giffin v. Giffin, 37 S. W., 710; Bailey v. Apperson, 134 Tenn., 716; Curtis v. Brannon, 98 Tenn., 153.</p> <p>2. DEEDS. Rule of construction.</p> <p>In determining the effect of a conveyance, the intention of the parties as drawn from the whole instrument shall govern, and, where the intention is uncertain, resort may be had to subordinate rules of construction. (Post, p. 314.)</p> <p>3. DEEDS. Deed should be upheld if possible.</p> <p>Deeds should be construed so as to be upheld, if possible. (Post, p. 314.)</p> <p>4. DEEDS. Provision of habendum clause repugnant to granting clause rejected.</p> <p>Where an estate in fee is conyeyed by the granting clause of a deed, and the habendum contains irreconcilable provisions, the repugnant clause of the habendum- will be rejected. (Post, p. 314.)</p> <p>Cases cited and approved: Memphis Gas lit. Case, 105 Tenn., 2,80; Teague v. Sowder, 121 Tenn., 132.</p> <p>5.HUSBAND AND WIFE. Estates by the entireties abolished.</p> <p>Acts 1913, chapter 26, by lifting the disabilities of coverture, removed the legal unity from which the estáte by entirety was implied, until restored by Acts 1919, chapter 126. (Post, pp. 315-318.)</p> <p>6. HUSBAND AND WIFE. Conveyance by husband and wife to themselves held valid; deed held to convey a fee.</p> <p>A conveyance by husband and wife to themselves, of land of the wife, it being the intention of the wife that the conveyance should transfer the fee tó the husband if he survived her, was valid as a conveyance in fee to the husband, in view of Shannon’s Code, section 3758 et seq., and section 4246, and Acts 1913, chapter 26, which removed all disabilities of a married woman to convey, and a habendum which limited the estate to one by the entirety, being surplusage, did not destroy the fee conveyed by the granting clause. (Post, pp. 315-318.)</p> <p>7. HUSBAND AND WIFE. Deed not'vitiated by inability of married woman to convey to herself.</p> <p>That a married woman could not convey to herself would not vitiate a deed to herself and her husband if the husband was capable of taking the title. (Post, pp. 315-318.)</p> <p>8. DEEDS. Estate granted 'absolutely -not cut down by subsequent, clause.</p> <p>An estate granted absolutely will not be cut down by a subsequent clause, which, if it raises, any doubt, will be resolved against the limitation and in favor of the estate. (Post, pp. 315-318.)</p> <p>Acts cited and construed: Acts 1913, ch. 26; Acts 1919, ch. 125.</p> <p>Cases cited and approved: Gill v. McKinney, 140 Tenn." 549; Kellar v. Kellar, 142 Tenn., 529; Bennett v. Hutchens, 133 Tenn., 70; Hiles v. Fisher, 144 N. Y., 306; JVlcRoberts v. Copeland, 85 Tenn., 211; Bates v. Seely, 46 Pa., 248; Bassett v. Budlong, 77 Mich., , 338; Ma’clin v. Haywood, 90 Tenn., 203; Templeton v. Twilty, 88 Tenn., 595; Yick v. Gower, 92 Tenn., 391; Hodges "v. Williams, 1 Shan. Cas., 403; Molloy v. Clapp, 70 Tenn., 589; Barnum v. Le Master, 110 Tenn., 638; Little--v. Hickey, 8 Higgins, 303; Ballard v. Turley, 143 Tenn., 164; Meredith v. Owen, 36 Tenn., 226; Pegg v. Pegg, 165 Mich., 228.</p> <p>Case cited and distinguished: Cameron v. Steves, 9 N. B., 141.</p> <p>Code cited and construed: Sec. 3753 (S.).</p>

<p>1. STATUTES. Irreconcilable later act must prevail.</p> <p>Where there is an irreconcilable conflict between the provisions of two statutes, the provisions of the later act must prevail. (Post, pp. 328, 329.)</p> <p>Acts cited and construed: Acts 1899, ch. 182; Acts 1917, ch. 74.</p> <p>Case cited and approved: Templeton v. Nipper, 107 Tenn., 548.</p> <p>Code cited and construed: Sec. 1135a (T.-S.).</p> <p>2. STATUTES. Repugnant statute impliedly repealed.</p> <p>Although a later act may not cpver the entire subject-matter of an earlier act, nor purport to provide a new system, if the later act is repugnant and irreconcilable on a particular point, it will operate as a repeal by implication to the extent of the repugnance and conflict. (Post, p. 329.) ,</p> <p>Cases cited and approved: Bailey v. Drane, 96 Tenn., 16; Balden v. State, 122 Tenn., 704.</p> <p>3. HIGHWAYS. Statutes construed as to notice of claim against highway contractor.</p> <p>The provision as to notice contained in Acts 1899, chapter 132 (Thompson-Shannon Code, section J135a et seq.), was impliedly repealed by Acts 1917, chapter 74, and under the later statute public officers must take the initiative and advertise for claims against general contractor, and notice of such claims is not due to be filed until after such advertisement is made. (Post,'p. 330.)</p> <p>4. APPEAL AND ERROR. General contractor held not entitled to complain of invited error whereby subcontractor was not made a party.</p> <p>General highway contractor and surety cannot complain that certain claimants did not reduce their claims against the subcontractor to judgment, or liquidate them in some way, where the general contractor filed a bill and asked and obtained an order of court requiring all those parties with claims against the subcontractor in question to1 come into the cause and have their claims ascertained, and this relief was granted though the subcontractor was not a party thereto, and if it was error to consider the matters without the presence of the subcontractor it was an error which the general contractor invited. (Post, pp. 330, 331.)</p> <p>5. HIGHWAYS. General contractor and surety not liable for services of foreman of construction work Undertaken by subcontractor.</p> <p>Under Acts 1917, chapter 74 section 6, providing that contractor and his surety shall be liable to “all laborers and other employees working for him, his subcontractors, or his agents,” general contractor and surety were not liable for services of a foreman of construction work undertaken by subcontractor, his duties being to look after the men and see that their work was done in propeí time and in a proper way. (Post, pp. 331-333.)</p> <p>Acts cited and construed: Acts 1917, ch. 74, sec. 6.</p> <p>Case citéd and distinguished: Harris v. Marable, 138 Tenn.. 676.</p> <p>6. HIGHWAYS. Contractor and surety liable for coal used in rock-crusher engine employed by subcontractor.</p> <p>Highway contractor and surety were liable for coal used in rock-crusher engine employed by subcontractor under Acts 1917. chapter ,74. (Post, p. 333.)</p> <p>Case cited and approved: Pittsburg Coal Co. v. So. Asphalt & Const. Co., 138 Tenn., 154.</p> <p>,. LICENSES. Dealer supplying coal held entitled to recover though it had not paid privilege tax.</p> <p>A merchant having a large store was entitled to recover for coal furnished highway subcontractor, though privilege tax as coal dealer had not been paid, it appearing that the coal was ordered as a matter of accommodation for the subcontractor, without the intention of making a profit upon it, and it is immaterial that other sales of coal by the merchant may have been illegal under Acts 1917,-chapter 74. (Post, pp. 333, 334.</p> <p>8. HIGHWAYS. Claimant not entitled to recover from general contractor and surety for lumber furnished.</p> <p>A company supplying lumber used for rock beds tQ highway subcontractor was not entitled to recover- from general contractor and surety in the absence of a showing that the lumber was consumed in such use, or whether it could be used again under Acts 1917, chapter 74. (Post, pp. 334, 335.)</p> <p>Cases cited and approved: Carter County v. Oliver Hill Construction Co., 143 Tenn., 649; Cass v. Smith, 146 Tenn., 218; Conn. v. Walker Const. Co., 131 Tenn., 445.</p> <p>9. HIGHWAYS. General contractor and surety liable for services ■with director in grading.</p> <p>Where it was necessary to do some grading upon part of a road let to subcontractor, and the latter employed a tractor at $2 per hour to pull a grader, two men being necessary to operate the machinery, the persons furnishing the tractor were entitled to recover from the general contractor and his surety the $2 per hour, and were not limited to sixty cents per hour for individual work, their services being more valuable and efficient by reason of their ownership of a mechanical contrivance belonging to them, under Acts 1917, chapter 74, section 6. (Post, pp. 335, 336.)</p> <p>to. PAYMENT. Application of payments by subcontractor on open account as regards liability of general contractor and surety.</p> <p>Where claimant had an open account against highway subcontractor, some items of which were valid demands against the general contractor and his surety, and subcontractor made part payment without application by either party to any particular item, the court properly applied such payments to the oldest items and not to items valid against the general contractor, as against the ob-Section that the general contractor stood in the attitude of a surety for his subcontractor and should have the benefit of the old doctrine of the civil law to the effect that when the court makes an application of a payment by a debtor owing several debts to the same creditor, the application should be made to that debt for which the debtor has given a personal surety, under Acts 1917, chapter 74. (Post, pp. 336-338.)</p> <p>Cases cited and approved: Bussey v. Grant’s Adm’r, 29 Tenn., 238, Blackmore v. Granbery, 98 Tenn., 277; Lippman v. Boals, 84 Tenn., 284.</p> <p>11. INTEREST. Right to interest is statutory; discretion of court in allowing.</p> <p>Interest as a matter of right is purely statutory, unknown to the common law, and its positive allowance must be confined to those obligations and demands specified and enumerated in statutory provisions, and in cases not so included it remains, as at common law, a matter of discretion in the jury or chancellor to be allowed or not, according to the facts presented. (Post, pp. 338, 339.)</p> <p>12. HIGHWAYS. Allowance of interest on claims against general contractor and surety discretionary.</p> <p>In proceedings against general highway contractor and surety by claimants against subcontractors, it cannot be said that there was error in allowing interest on the. claims only from the date of the chancellor’s decree, allowance of interest being a matter of discretion under Acts 1917, chapter 74. (Post, pp. 338, 339.)</p> <p>Case cited and distinguished: Tenn., Fertilizer Co. v. International Agricultural Corp., 146 Tenn., 451.</p> <p>13. HIGHWAYS. Claims against subcontractor held properly disallowed against general contractor and surety.</p> <p>Parties furnishing grease, gasoline, and minor repairs to highway subcontractor were not entitled to recover from the general contractor and surety where subcontractor had his own automobile in which he rode around over the work and elsewhere and a contractor’s outfit belonging to it and' not consumable in the work, and it not appearing from the proof for what purpose those materials were sold or to be used under Acts 1917, chapter 74. (Post, p. 3390</p> <p>14. HIGHWAYS. Contractor and. surety not liable for rent of camp site where subcontractor installed claimants’ outfit.</p> <p>Under Acts 1917, chapter 74, general highway contractor and surety were not liable for rent of a camp site where a subcontractor installed claimants’ teaming outfit for a time, location for a tamp site not being material furnished. (Post, p. 339.)</p> <p>Case cited and approved: Carter County v. Oliver Hill Construction Co., 143 Tenn., 649.</p> <p>15. HIGHWAYS. Contractor and surety not liable for torts of subcontractor. " f</p> <p>Under Acts 1917, chapter 74, contractor and surety were not liable for damages for injuries to teaming outfit employed bj subcontractor resulting from blasting by the subcontractor, not being liable for the torts of the subcontractor. (Post, p. 340.) •</p> <p>16. HIGHWAYS. Contractor and surety not liable for rock furnished subcontractor free of charge.</p> <p>Highway contractor and surety were not liable for rock furnished to subcontractor and used in the work, where it appeared that subcontractor had contract with claimant under the terms of which the rock was given to the subcontractor free of charge, notwithstanding the subcontractor breached its contract in other particulars and is liable for damages under Acts 1917, chapter 74. (Post, p, 340.)</p> <p>17. HIGHWAYS. Cost accountant, commissary clerk, and superintend-ant of subcontractors of subcontractor cannot recover from general contractor and surety.</p> <p>vmst accountant, commissary clerk, and superintendent of entire subcontractors of a highway subcontractor were not such laborers or employees as were entitled to recover arrearages of salary due them from the general contractor and surety, under Acts 1917, chapter 74, section 6. (Post, pp. 340, 341.)</p> <p>18. HIGHWAYS. Contractor and surety not liable for use of automobile by superintendent of subcontractors of subcontractor.</p> <p>Highway contractor and surety were not liable for use of an automobile by the superintendent of the entire subcontractors of a subcontractor under Acts 1917, chapter 74, the expense of the au tomobile being an expense of superintendence. (Post, pp. 340, 341.)</p> <p>Cases cited and approved: Thompson v. Baxter, 92 Tenn., 305; McDonald v. Railroad, 93 Tenn., 281.</p> <p>19. HIGHWAYS. Contractor and surety not liable to subcontractors of subcontractor.</p> <p>Highway contractor and surety are not liable for work done by subcontractors of subcontractor, under Acts 1917, chapter 74, section 6. (Post, p. 341.)</p> <p>Cases cited and approved: Stone Co. v. Board of Publication, 91 Tenn.,'200; Lowenstein v. Reynolds, 92 Tenn., 543.</p> <p>20. HIGHWAYS. Contractor and surety not liable for food furnished laborers of subcontractor.</p> <p>Under Acts 1917, chapter 74, highway contractor and surety are not liable for groceries furnished subcontractor and used by. the latter in camps where his laborers were fed. (Post, p. 342.)</p> <p>Case cited and approved: Brogan v. National Surety Co., 246 U. S., 261.</p> <p>21. HIGHWAYS.' Judgment creditor of subcontractor held entitled to interest as against general contractor and surety.</p> <p>Claimant obtaining a judgment against highway subcontractor was entitled to interest on his judgment as against the general contractor and his surety, under Acts 1917, chapter 74, in view of Thompson-Shannon Code, section 3497. (Post, pp. 342, 343.)</p> <p>"Code cited and construed: Sec. 3497 (T.-S.).</p>

<p>1. CONTEMPT. Act held insufficient to include common law with respect to contempt.</p> <p>Shannon’s Code, section 5918, subsecs, 1-5, prescribe the statutory grounds of contempt, and subsection 6, specifying- “any other act or omission declared a contempt of law,” added nothing to the previously enumerated acts and did not make the common law with respect to contempt applicable. (Post, pp. 372-374.)</p> <p>2. CONTEMPT. Newspaper article held not contempt in “presence of court.’’</p> <p>Shannon’s Code, section 5918, súbsec. 1, providing that powers of the courts to punish contempts shall extend to the willful misbehavior of any person in the presence of the court or so near thereto as to- obstruct justice, relates to direct personal misbehavior either in the courtroom or so near thereto as to interfere with court procedure, and cannot be extended so as to embrace the effect that a newspaper article published at some remote place might have upon the attendants on the court who happened to read it. (Post, pp. 372, 374.) .</p> <p>Cases cited and approved: State v. Galloway, 45 Tenn., 329; Har-well v. State, 78 Tenn., 548; Scott v. State, 109 Tenn., 395; Coleman v. State, 121 Tenn., 10.- /</p> <p>Code cited and construed: Sec. 5918, súbsecs. 1-5.</p> <p>3. CONTEMPT. Abuse and interference with process of court’s procedure refers to pending suits.</p> <p>Shannon’s Code, section 5918 subsee. 4, extending to courts the power to punish for contempt for abuse or unlawful interference with the process or proceedings of the court, refers to proceedings in some pending suit and does not apply to- suits that have been terminated or to general criticisms of the court. (Post, pp. 374-380.)</p> <p>4. CONTEMPT. Publication of newspaper article criticizing circuit court judge not contempt.</p> <p>Publication of a newspaper article, charging that the circuit judge was'wholly unfit and incapacitated to hold court and that as a re- • suit the court had broken down and ceased to function, not relating to any pending suit nor questioning the integrity of the court, held not punishable under Shannon’s Code, section 5918, as contempt. (Post, pp. 374-380.)</p> <p>5. CONTEMPT. Disclaimer of intent good defense where contrary does not clearly appear.</p> <p>Where publication of a newspaper article charged that a circuit judge was unfit and incapacitated to hold court and that as a result the court had broken down and ceased to function, defendant’s positive disclaimer of an intention to question the integrity of the court was a good defense where contrary did not clea-rly appear. (Post, pp. 374-380.)</p> <p>Cases cited and approved: State of Montana ex rel. Metcalf v. District Court, etc., 52 Mont., 46; In re Francis B. Hart, 104 Minn., 88; State v. Circuit Court, 97-Wis., 1; Patterson v. Colorado, 205 17. S., 463; parte Steinman, 95 Pa., 220; Field v. Thornell, 106 Iowa, 7; Cheadle v. State, 110 Ind., 301; In re Dalton, 46 Kan., 253; In re Cooke, 116 La., 723; Sturoc’s Case, 48 N. H., 428; State v. Tugwell, 19 Wash., 238; State v. Bee Pub. Co., 60 Neb. 282; Myers v. State, 46 Ohio St., 439; Storey v. People, 79 Ill.; 45; In re Brown, 168 N. C., 417; People v. Green, 7 Colo., 237; Burke v. Oklahoma, 2 Okla., 499; State V. Sweetland, 3 S. D. 503; Dunham v. State, 6 Iowa, 245; In re Brown, 3 Wyo., 125; In re Snow, 27 Utah, 265; State v. McClaugherty, 33 W. Va., 250; State ex inf. v. Shepherd,'177 Mo. 205.</p> <p>Cases cited and distinguished: Tate, Sheriff,- v. State .ex rel., 132 Tenn., 131; Ex parte Green, 46 Tex. Cr. B.., 576; State of Oregon v. Haiser, 20 Or., 50; State v. Anderson, 40 Iowa, 207; Craig v. Hecht, 44 Sup. Ct„ 103.</p> <p>6. ATTORNEY AND CLIENT. Act held sufficiently broad to embrace any case demanding suspension or disbarment.</p> <p>Public Acts 1919, chapter 42, section 1, prescribing the grounds of disbarment from practice in state courts and prescribing penalties and procedure in disbarment cases, is sufficiently broad to embrace any cases demanding suspension or disbarment, and under subsection 5 power was conferred to punish defendants guilty of unprofessional conduct, dishonesty, malpractice, or any conduct which renders them unfit to be members of the bar commensurate with. their offenses by either suspension or disbarment. (Post, pp. S80-385.)</p> <p>Acts cited and construed: Acts 1919, ch. 42, sec. 1; Acts 1817, ch. 61, sec. 1; Acts 1821, ch. 66, sec. 3.</p> <p>Cases cited'and approved: Austin Case 5, Rawle, 205; State v. Pickle (unreported).</p> <p>Case cited and distinguished: Ingersoll v. Coal Co., 117 Tenn., 304.</p> <p>Code cited and construed:' Sec. 5783 (S.).</p> <p>7. ATTORNEY AND CLIENT. Acting within Constitutional rights in criticizing court did not render attorney unfit to practice.</p> <p>An attorney at law who acts within his constitutional rights in criticizing the court would not be guilty of conduct such as to render him unfit to practice his profession. (Post, p. 385.)</p> <p>8 ATTORNEY AND CLIENT. Statements of attorney made in private conversation held insufficient to warrant disbarment. •</p> <p>Statements of an attorney at law in private conversation, referring to the judge of the circuit court and his cousin as being “some combination” and that when the cousin moved his finger west the Judge moved west, held insufficient to warrant disbarment. (Post, pp. 385-389.)</p> <p>Case cited and approved: Stuart v. People, 3 Scam., 405.</p> <p>9. ATTORNEY AND CLIENT. Publication of newspaper article criticizing circuit judge held insufficient to render attorney unfit to practice.</p> <p>Notwithstanding that facts did not justify publication of a newspaper article by defendant charging that the circuit judge was wholly unlit and incapacitated to hold court and as a result the court had broken down and ceased to function, such publication did not render defendant unfit to be a member of the bar. (Post, pp. 389, 390.)</p>

<p>1. CORPORATIONS. President not ipso facto in control of property and management.</p> <p>The president of a corporation, has no power by virtue of his office alone to control the corporation’s property or its management. (Post, pp. 400-404.)</p> <p>2. CORPORATIONS. President held authorized to deposit bonds with bank; proceeds of sale to apply on debts to bank.</p> <p>Where bonds secured by deed of trust were issued so that a corporation might borrow money for its business and other lawful purposes, and its president was authorized to dispose of them through a trust company or other agency, for best interests of corporation, and use proceeds for corporate purposes, held, that when he deposited them with bank, directing that they be sold, and so much of the proceeds as was necessary applied on a debt to bank, he was acting within powers vested in him. (Post, pp. 400-404.</p> <p>Cases citéd and approved: Baxter v. Washburn, 7<> Tenn., 1-15; Dunscombe v. Railroad, 84 N. Y., 190.</p> <p>Cases cited and distinguished: Hunt v. Memphis Gaslight Co., 95 Tenn., 144; Baxter v. Washburn, 76 Tenn., 17.</p> <p>3. CORPORATIONS. Pledge of bonds to bank to secure debt held not to create unlawful preference.</p> <p>Execution by a corporation of a deed of trust while it was still a going concern, for the purpose of securing bonds issued by it, held not an act of insolvency rendering a pledge of such bonds to a creditor an unlawful preference as against other creditors. (Post, p. 404.)</p> <p>4. CORPORATIONS. Assets from date of assured insolvency become fixed trust fund for pro rata distribution.</p> <p>The assets of an insolvent corporation, become from the date of its assured insolvency a fixed trust fund for equal pro rata distribution among its creditors, but the act of insolvency must be positive, such as filing bill to administer assets, making general assignment, or cessation of business. (Post, pp. 404,.405.)</p> <p>Cases cited and approved: Memphis Barrel Co. v. Ward, 99 Tenn., 177; Comfort v. McTeer, 75 Tenn., 660; Bank v. Lumber & Manufacturing Co., 91 Tenn., 12; Tradesman' Publishing Co. v. Car Wheel Co., 95 Tenn., 634; Voightman v. Railroad, 123 Tenn., 452.</p> <p>5. CORPORATIONS. Pledgee of bonds held holder in due course; “value.”</p> <p>Where corporation’s bonds were deposited with a bank as security for a pre-existing debt, in view of Shannon’s Code, section 3516a33, the bank became a holder of them in due course and for “value;" “value” being any consideration sufficient to support a simple contract. (Post, p. 405.)</p> <p>Code cited and construed: Sec. 3516a33 (S.).</p> <p>6. CORPORATIONS. Corporate bond is negotiable instrument.</p> <p>A corporate bond secured by a deed of trust, is a negotiable instrument, and title passes by delivery. (Post, p. 405.)</p> <p>Cases cited and approved: Nickey Bros. v. Lonsdale Mfg. Co., 257 S. W., 403; Snyder v. McEwen, 256 S. W., 434.</p> <p>7. CORPORATIONS. Holder of note against corporation entitled to interest from date of maturity, though debtor adjudged insolvent and assets in hands of receiver.</p> <p>Since Shannon’s Code, section 3494, providing that all bills, bonds, etc., shall bear interest, unless interest was not to accrue until a specified time mentioned therein, makes no exception of insolvency proceedings, the holder of a note against an insolvent corporation was entitled to interest from maturity, though debtor had been adjudged an insolvent, and its assets were in the hands of a receiver. (Post, p. 405.)</p> <p>Cases cited and approved: Atlanta National Bank v. Four States Grocer Co., 135 S. W., 1135; Gillett v. Chicago Title & Trust Co., 230 111., 373; Blair v. Clayton Enterprise Co., 9 Del. Ch. 95; Van Frank v. St. Louis G. C. & Ft. S. Co., 88 Mo. App., 508; Tredegar Co. v. Seaboard Air Line R. Co^, 183 Fed., 289; American Casualty Ins. Co.’s Cases, 82 Md., 535; New York Security & Trust Co. v. Lombard Investment Co., 73 Fed., 537.</p> <p>Case cited and distinguished: Thomas v. Western Car Co., 149 U. S., 95.</p> <p>8. INTEREST. Statute makes duty to allow interest imperative.</p> <p>Shannon’s Code, section 3494, providing that all- bills, bonds, etc., shall bear interest from the time they become due, unless interest was not to accrue until a specified time, is imperative, and requires courts to allow interest in cases falling within it. (Post, pp. 407, 408.)</p> <p>Cases cited and approved: Thompson v. French, 18 Tenn., 458; Williams v. Inman, 45 Tenn., 267; Settle v. Settle, 59 Tenn., 662; Davidson Co. v. Olwill, 72 Tenn., 34; Gibson County v. Rains, 79 Tenn., 24; Knights of Pythias v. Allen, 104 Tenn., 623; Railroad v. Fort, 112 Tenn., 455.</p> <p>Code cited and construed: Sec. 3494 (S.).</p> <p>9. CORPORATIONS. Creditor held entitled to attorney’s fee for collection of note in insolvency proceeding.</p> <p>Where notes given by a corporation before insolvency provided that, if they were placed in hands of attorneys for lawful collection, or had to be sued on, ten per cent, attorneys’ fees should be added, though notes were not placed in hands of attorneys, or sued on. before insolvency, where it became' necessary that holder employ attorneys to file a petition and represent it in insolvency proceeding to collect the notes, attorneys’ fees could be recovered. (Post, pp. 408-410.)</p> <p>Case cited and approved: Merrimon v. Parltey, 136’ Term., 654.</p> <p>Case cited and distinguished: Citizens’ Nat. Bank & Trust Co. v. Thornton, 174 Fed., 762.</p>

<p>1. CORPORATIONS. Evidence held not to show breach' of agreement to assume obligations of another corporation.</p> <p>In an action against corporations and' individuals, evidence held not to show that corporation taking over assets of debtor corporation breached its agreement to assume as its own obligations any recoveries that complainants might have against the corporation whose assets were taken over. (Post, p. 443.)</p> <p>2. CORPORATIONS. Remedy for breach of contract to assume indebtedness of another corporation whose assets were taken over stated.</p> <p>If a corporation taking over the assets of another corporation breached its contract to assume and pay recoveries against the "corporation whose assets were taken over, the remedy of creditors who were parties to the agreement was not rescission, but the right of suit against the corporation assuming liability. (Post, p. 443.)</p> <p>S. CORPORATIONS. Taking over of assets of another corporation held not shown fraudulent.</p> <p>A finding by chancellor of fraud in the conveyance of property and assets of one corporation to another held not supported by evidence or facts, conveyance being open and above-board and manifestly in the interest of creditors. (Post, p. 443.)</p> <p>4. CORPORATIONS. Burden of proof on creditors to establish fraud in conveyance of assets to another corporation.</p> <p>In action by creditors against corporations, the burden of proof was on complainants to establish fraud in. a conveyance of assets by one of the corporations to the other; the burden being on complainants to establish the fact of intentional fraud or insufficient consideration, under Acts 1919, chapter 125, section 7. (Post, p. 443.</p> <p>Acts cited and construed:. Acts 1919, ch. 125, sec. 7.</p> <p>Cases cited and approved: Gaugh v. Henderson, 39 Tenn., 629; Bank v. McAdams, 11)6 Tenn., 404.</p> <p>5. CORPORATIONS. Fact that corporation conveyed all of its property held no evidence of fracd.</p> <p>The fact that debtor corporation conveyed all of its property to another corporation in an effort to settle its debts and for a consideration in excess of the reasonable value of same is no evidence of fraud. (Post, pp. 443, 444.)</p> <p>6. CORPORATIONS. Corporation may dispose of all of its assets for fair consideration.</p> <p>A corporation may dispose of all of its assets and property by sale or transfer for a fair consideration; the consideration being held for creditors. (Post, pp. 444, 445.)</p> <p>Cases cited and approved: Haight v. Smith, 178 Mich., 392;) Jennings, Neff & Co. v. Crystal Ice Co., 128 Tenn., 231; Vance v. Mc-Nabb Coal Co., 92 Tenn.', 47; Long v. Fisher Typewriter Co., 1 Tenn., Ch. App., 668.</p> <p>Cases cited and distinguished: Kingman v. Mowry, 182 Ill., 256; Byrne & Hammer Dry Goods Co. v. Willis-Dunn Co., 23 S. D., 221.</p> <p>7. CORPORATIONS. Company held not to have committed overt act of insolvency by calling creditors’ meeting.</p> <p>A corporation did not commit an overt act of insolvency by calling a creditors’ meeting for a conference looking to an adjustment of its indebtedness where it continued to be a going concern. (Post, pp. 445-452.</p> <p>8. CORPORATIONS. Creditors held not entitled to invoke trust fund doctrine as to property sold by corporation.</p> <p>If a corporation committed an overt act of insolvency by calling a creditors’ meeting for a conference looking to an adjustment of its indebtedness, creditors who subsequently signed an agreement binding the corporation to pursue a readjustment plan and transfer its assets, and stood by with the full knowledge of the purpose to convey, and permitted such conveyance to be made, cannot now invoke the trust fund doctrine and reach the assets so sold upon the theory that such assets were impressed with a lien bjr the act of insolvency. (Post, pp. 445-452.)</p> <p>9. CORPORATION'S. Trust fund doctrine inapplicable where corporation continues in operation, though indebted to insolvency.</p> <p>A corporation is not insolvent in such sense that its assets beqome a fixed trust fund in the hands of its officers for pro rata distribution among its creditors so long as it continues to be a going .concern, conducting its business in the ordinary way, although its debts may greatly exceed its assets. (Post, pp. 445-452.)</p> <p>Cases cited and approved: First Nat. Bank v. North Alabama L. & M. Co., 91 Tenn., 12; Bank v. Ebr. & Mfg. Co., 91 Tenn., 12; Mosely v. Williamson, 52 Tenn., 278; Comfort v. McTeer, 75 Tenn., 660; Voightman v. Southern Railway Co., 123 Tenn., 452: Tradesman Publishing Co. v. Knoxville Car Wheel Co., 95 Tenn., 634.</p> <p>Cases cited and distinguished: Fogg v. Blair, 133 ü. S., 534; Hol-lins v. Brierfield & Co., 150 II. S., 384; Chattanooga, Rome & Coluanbus R. R. Co. v. Evans, 66 Fed., 809.</p> <p>10. ACKNOWLEDGMENT. Where acknowledgment is taken in another state by notary, certificate of authority not required.</p> <p>Acknowledgment of a deed and mortgage taken'by a notary public in another State was sufficient, though no certificate of the officer’s authority was attached to it, under Acts 1919, chapter 48. (Post, pp. 452-455.)</p> <p>Cases cited and approved: First Nat. Bank of Fulton, Ky., v. Howard et. al., 253 S. W., 961.</p>

<p>RAILROADS. Statute requiring warnings held not to apply to automobile running into side of train at crossing.</p> <p>Thompson-Shannon Code, section 1574, subsec. 3, requiring trains to sound warnings on entering or leaving an incorporated city or town does not apply to case of an automobile running into side of train at crossing, so as to enable occupants to recover for nonobservance of statute, in view of Acts 1917, chapter 36, requiring automobiles to come to full - stop before passing over railroad crossing.</p> <p>Acts cited and construed: Acts 1917, eh. 36.</p> <p>Cases cited and approved: Whittaker v. Railroad, 132 Tenn., 576; Graves v. Railroad, 126 Tenn., 148; Railroad v. Pugh, 95 Tenn., 419; Louisville, etc., R. Co. v. Martin, 113 Tenn., 266; King v. Tenn. Central R. Co., 129 Tenn., 64; Nashville, etc., R. Co. v. Davis, 78 S. W., 1050; Cincinnati, etc., R. Co. v. Ford, 139 Tenn., 291.</p> <p>Codes cited and construed: Sec. 1574, subsec. 3, 4.</p>

<p>FROM KNOX.</p> <p>Appeal from the Chancery Court of Knox County.— Hon. Chas. Hays Beown, Chancellor.</p>

<p>SUBROGATION. Right accorded to widow paying one of vendor’s lien notes on homestead under agreement with note holder.</p> <p>A widow, administratrix of her deceased husband, who, with insurance on his life, belonging to her individually, but ignorantly and inadvertently deposited by her to her account as administratrix, paid one of the vendor’s lien notes on the homestead, held entitled by subrogation to share with the holder of the other notes in the proceeds of sale on foreclosure of the lien, the intention having been not to extinguish but to keep alive the debt, she having made the payment on the assurance of the holder of the notes that she would be protected from loss by reason of the fact that she would have a claim on the land, and she, by reason of having homestead and dower rights to preserve, not being a mere volunteer.</p> <p>Cases cited and approved: Walker v. Walker, 138 Tenn., 679; Milam v. Milam, 138 Tenn., 686; Morrow v. U. S. Mortgage Co., 96 Ind., 21; Brice’s Appeal, 95 Pa., 145; Loeb v. Fleming, 15 Ill. App., 503; Springer v. Foster, 27 Ind. App., 15; Stuckman v. Roose, 147 Ind., 402; Owen v. Cook, 3 Tenn. Ch., 78; Knaffi v. Banking & Trust Co., 133 Tenn., 655; Society of Shakers at Pleasant Hill v. Watson, 15 C. C. A., 632; Sehermerhorn v. Gardenier, 107 App. Div. 564; Dufur Oil Co. v.. Enos, 59 Or., 528; Garrison v. Vermont Mills, 154 N. C., 1; Connolly v. Bouck, 98 C. C. A., 184.</p> <p>Gases cited and distinguished: Motley v. Harris, 69 Tenn., 577; Cot-trell’s Appeal, 23 Pa., 294; Hurley v. Atchison, etc., R. Co., 213 U. S., 126; Westall v. Wood, 212 Mass., 540.</p>

<p>PROM CARROLL.</p> <p>Appeal from thé Chancery Court of Carroll County.— Hon. J. W. Ross, Chancellor.</p>

<p>PROM MORGAN.</p> <p>Appeal from the Chancery Court of Morgan County.— Hon. W. R. Offices., Chancellor.</p>

<p>1. MASTER AND SERVANT. Contractor for building State highway liable for compensation to injured employee of subcontractor.</p> <p>Workmen’s Compensation Act, section 15 is to be construed as making principal contractors liable for injuries to -subcontractors’ employees “to the same extent as the immediate employer,” the injury occurring in or about the principal’s premises; consequently, where one contracting to build a State highway contracted with an independent subcontractor to quarry stone in a State quarry which had been turned oyer to him, retaining no control of the manner of quarrying except to supply a fireman to operate a State drill when necessary, an employee of the subcontractor could recover from the principal contractor compensation for injury to his eye. (Post, pp. 642-645.)</p> <p>Acts cited and construed: Acts 1919, ch. 123.</p> <p>Cases cited and approved: Indemnity Co. v. State Ind. Acc. Comm., 172 Cal., 766; Stephens et al. v. Westlake et al., 215 Pac., 1025; Lafferty v. United States Gypsum Co., 83 Kan., 349.</p> <p>2. MASTER AND SERVANT. Defense of want of notice of com-pensable injury held not available on appeal..</p> <p>In a proceeding for compensation under Workmen’s Compensation Act, failure of defendant’s answer to raise the question of employee’s failure to give written notice of injury to defendants, and his objection to evidence of such notice, insisting on its immateriality, field to estop him from urging the point on appeal. (Post, pp. 645-646.)</p>

<p>LIMITATION OF ACTIONS. Action for deficiency in acreage held barred by six and ten year statutes.</p> <p>Where failure for more than ten years after purchaser went into possession to discover deficiency in acreage in land purchased was not due to any act of vendor, suit to recover deficiency was barred by six and ten year statutes. Shannon’s Code, sections 4472, 4473.</p> <p>Cases cited and distinguished: Woodfolk v. Marley, 98 Tenn., 467; Haynie v. Hall’s Ex’r, 24 Tenn., 290; Shelby’s Heirs v. Shelby, 3 Tenn., 183.</p> <p>Code cited and distinguished: Secs. 4472, 4473 (S.).</p>

<p>1. ACCORD AND SATISFACTION. Evidence held insufficient to establish acceptance of payment by attorney in satisfaction of debt.</p> <p>Evidence held insufficient to establish acceptance by attorney of note or its proceeds in satisfaction of claim for services rendered so as to establish accord and satisfaction. (Post, pp. 661, 662.)</p> <p>Case cited and distinguished: Hoggatt v. Clopton, 142 Tenn., 184.</p> <p>2. ACCORD AND SATISFACTION. Fact that accord and satisfaction not pleaded may be considered in weighing such defense.</p> <p>In action by attorney for compensation, fact that accord and satisfaction is not pleaded and relied upon, though not required to be pleaded, may be considered in weighing such defense. (Post, pp. 662, 663.)</p> <p>3. ACCORD AND SATISFACTION. Accord and satisfaction defined.</p> <p>An accord is agreement whereby one undertakes to give or perform and another to accept in satisfaction of a claim something other or different from that which he considered himself entitled to, and the satisfaction is an execution of such agreement.- (Post, p. 663.)</p> <p>4. ACCORD AND SATISFACTION. Offer and acceptance with intent to satisfy obligation essential.</p> <p>To constitute accord and satisfaction an offer with intent to satisfy the obligation and an acceptance with intent that it shall pperate as satisfaction are essential. (Post, pp. 663, 666.)</p>

<p>1. INSURANCE. Life policy not rescined hy company’s notice and tender.</p> <p>Insurance company’s written notice of intention to cancel a life policy for fraud and a tender hack of premium paid constituted a breach of renunciation by insurer, but did not constitute a rescission. (Post, pp. 668, 669.)</p> <p>Case cited and approved: American Trust Co. v. Insurance Co., 173 N. C„ 558.</p> <p>Case cited and distinguished: Humpton v. State Mutual Life Assur. Co., 256 S. W., 440.</p> <p>2. INSURANCE. Action within a year necessary to cancel incontestable policy.</p> <p>To rescind a life policy incontestable after one year insurer should institute an action for cancellation within the year. (Post, pp. 669-671.)</p> <p>Case cited and approved: Clement v. Insurance Co., 101 Tenn., 26; Mutual Life Ins. Co. of N. Y. v. Buford, 61 Okla., 158; Monahan v. Ins. Co., 283 Ill., 136; Ebner v. Ins. Co., 69 Ind. App., 32; Wright v. Mutual Benefit Ass’n, 118 N. Y., 237.</p> <p>Case cited and distinguished: Ault v. Dustin, 100 Tenn., 366.</p> <p>3. INSURANCE. Incontestability clause of one year held not void because conflicting with statute.</p> <p>Proviso that a life policy should he incontestable after one year from issue was not void because conflicting with the two-year limitation prescribed by Shannons Code, section 3348a8; such limitation being for benefit of insured, and insurer having right to restrict limitation to shorter period. (Post, p%>. 671, 672.)</p> <p>Case cited and approved: Ramsey v. Old Colony Life Ins. Co., 297 Ill., '592.</p> <p>Code cited and construéd: Sec. 3348a8 (S.).</p>

<p>1. FRAUDULENT CONVEYANCES. Judgment creditor with knowledge held not entitled to payment of judgment. »</p> <p>Where complainant knew of a fraudulent conveyance by defendant L. to codefendant T. to defraud L.’s creditors, and assisted L. in the transaction, complainant was not entitled as judgment creditor of L. to reach funds owing from T. to L. under the transaction, and to subject those funds to complainant’s judgment against L., ' especially where complainant’s judgment was subsequent to the conveyance. (Tost, pp. 680-685.)</p> <p>Cases cited and approved: Nelson v. Vanden, 99 Tenn., 224; Kid v. Mitchell, 1 Nott. & McC., 334; Howard v. Williams, 1 Bailey, 575; Lehmberg v. Biberstein, 51 Tex., 457; Monroe v. Smith, 79 Pa., 459; Fowler v. Stoneum, 11 Tex., 478; Lewis v. Simon, 72 Tex 470; Baker v. Gilman, 52 Barb., 39; De Garca v. Galvan, 55 Tex., 53; Bullitt v. Taylor, 34 Miss., 708.</p> <p>2. FRAUDULENT CONVEYANCES. Judgment creditor held not entitled to reach funds of attorney due debtor, on ground of attorney’s breach of professional duty towards judgment debtor.</p> <p>Where defendant L. made fraudulent conveyance of his lands to co-defendant T., an attorney, because L. believed T., who was his legal adviser, was his friend and would protect him and hold the lands for his benefit, held, that the transaction was not of a professional character between attorney and client, and complainant, a judgment creditor of L, but who knew of the fraudulent transaction in advance, was not entitled on ground of T.’s alleged breach of professional duty to reach the funds owing to L. by T. (Post, pp 685, 686.)</p>

<p>1. INSANE PERSONS. Chancery court without power to apply lunatic’s income for others than his children and descendants.</p> <p>Under Acts 1851-52, chapter 163, now Thompson Shannons Code section 5461 et seq., making jurisdiction of chancery court over person and estate of lunatic concurrent with that of county court, does not authorize chancery court to appropriate lunatic’s estate for benefit of persons other than his children and descendants, and such court therefore properly refused to apply portion of unmarried lunatic’s income to support of his mother and minor nieces. (Post, pp. 688-691.)</p> <p>Acts cited and construed: Acts 1851-52, chs. 57, 163.</p> <p>Case cited and distinguished: Oakley v. Long, 29 Tenn., 254.</p> <p>Code cited and construed: Sec. 3691 (1858); Sec. 5461 (T.-S.).</p> <p>2. INSANE PERSONS. Jurisdiction of chancery court over lunatic’s person and estate is purely statutory.</p> <p>In Tennessee, jurisdiction of chancery court over person and estate of lunatic is purely statutory. (Post, pp. 691, 692.)</p> <p>Cases cited and approved: Fentress v. Fentress, 54 Tenn., 428; Ex parte Dozier, 63 Tenn., 81.</p>

<p>SALES. Buyer accepting goods not according to contract, with knowledge of seller’s price, liable therefor.</p> <p>Buyer accepting and using castings delivered in finished condition, though ordered in rough, with knowledge of seller’s price for finished castings, impliedly agreed to pay such sum and was liable therefor, thpugh castings were not reasonably worth that amount.</p>