'FEDilJRAL REPbRTER,vOl.
41.
, the/Una of his duty andwithout fault.' ,
injured ill '" " " . )'The following order.will be entered :in the case: This cause came on to be heard on the exceptions of intervenor to the master's report, and was argued; whereupon it is ordered, adjudged, and decreed that the said report be so amended as to recommend that intervenor receive wages for four months, under the rule in Freundlich's Case, and that, as amended, all exceptions be overruled, and the said report confirmed. It is further ordered and adjudged that, the intervenor do recover of the receiver wages at the rate of $60 per month for four months from August 19, 1888, the date of injury, and the costs of this intervention; the said judgment to be paid by the defendant railway comunder the assumed under the order of this court restorw.g, ,PllSSession. '
83'Fbd!
Rep. 701, allowing
paid to an
.. , ,
:
STEWART
et al.
t1. TOWNSEND.',
(Circuit Oourt, D. South. Oarolllna. January 25, 1890.)
BlIlT-Qn
"utn ·· :M-SALE-BREAC:8: Op WARRANTy-Loss OpT,RADB. U , Where one receives goods under contract, and elects to dispose oUhero a.nd pay :for them,. not the contract'price, but their real value, he cannot, in an action for thllPl,'i.ce, 'counter-(l1ai1Jl for loss of trade occasioned by hill, selling the inferior of goods received frtim plaintiffs. ' · 'I . '
':,At Law. Action for goods sold and delivered. 'Buist'&Buist, for plaintiffs. " . Hyde and G. W. McCormack, for SUlbNTON, J., (cha;ging jury.) The' action is for the isaIe and, delivery of ice., The complaint.sElts out certain acceptances !lndan open account; in all $5,125. The answer admitathe acceptal'lces ahd' the open account, llndhas assumed the burden of proving fallure of consideration, that is to say, that the ice furnished was deficient in quantity or quality, or both.' ,He also sets up acounter-olaimagainst the plaintiffs for damages resulting from therion-performance of the ,When the ice WI;IS received by defendant, ifs quantity and quality were easily 'ascertainable by the senses. The defendant, it it did not up to contract, could then have aq,opted one of two courses: He could have refused to accept tbe delivery of the ice; or he could have received it,if hechose,-could have disposed of it. He then wouldbave been bound to pay for it, hot the" contract price, but its real valde. He adopted'the latter course.. Havingdone so, he cannot sustain his ter-claim. This is grounded upon lOss of trade occasioned by his selling ice of inferior q'\lality received from plaintiffs. Now; ashe had the choice either to ,take it or let it alone, and he concluded to take it, and sell it for what it was worth,hecal).not visit on plaintiffs the consequenceS i
ARMOUR
BROB. BANKING CO. {,; BOARD COUNTY COM'BBi FINNEY CO'ONTY.
82t
of hia own act. You wiUfind for the plaintiffs on the counter-olaim. Upon the main case, you will first determine, from the evidenoe beforeyouj what was theoontract on the part ofthe plaintiffs. Then, was it performed by them? Did they deliver ice of the quality and quantity they had agreed to deliver? If they did, giye.theniafull verdict. If they did not, ascertain from the testimony what was the deficiency in quantity or quality, or both. Fix the value of such in money, and deduct this sum from the principal of the claim., unless you find a totai deficiency. In such case, your verdict must be for the defendant. The burden of proof, under the pleadings, is on the defendant.
ARMOUR. BROS. BANIONG Co.
'D.
BOARD
OF COUNTY COM'RB .OF FINNEY
COUNTY. (Circuit CfYUIl't, D. KanBaB. February 4,181)0.) VOTES-ASSESSMENT OJ' SPECIAL Tu:. . Under Compo Laws Kan. 1885. § 8759, relating to thepurchaae of lands fora poorfa.rm, and. providing that "to raise the SUIn necessary for the purchase of land * * * the board of county commissioners * :" * shall have power to assess a tax * * * not exceeding $500, unless the amount of .taxes to be assessed. !!hal1 bo submitted to a vote of the people at some general election. and a. majority ofal1 : the votes oast, at a poll opened for that purpose, shall be;n myor of such ,assessment, " it is sufficient if the proposition receives a majoriti,of all the votes'cast on that particUlar proposition, and it is not necessary that it should receive a ma.jority , of all the votes oast at the election.
.
At Law. . Geo., R. Peck, A. A ·. Httrcl, and Robt.· Dunlap, for .plaintiff. H. F. MaBon and Johnson, Martin &- Keeler, for defendant· . FOSTER, J. The plaintiff brings suit against the board of countycotnmissioners of Finney county to recover the sum of $12,480, evidenced by 25 warrants or orders made by said board of county commissioners on the,!tlleasurer of said county, of which the following isa copy: "No. 1.374. COUNTY CLER¥:'S OFFICE. $500.1;)0. . "GARDEN CITY. Jan. 11.1387; "7'rea8U1'er of FinneyOounty. Kansas: Pay to A. H. Burtis the sum of five hundred dollars for part payment of part of N. E. :;. and'lot 30f S. E. i. of Sec. 15. T. 24. 33 W.· to be paid ;laper special tax voted Nov. 2. 1886. By order of the board of county commissioners. "A. H.BVRTIS. Clerk. G. W. WRIGHT. Chairman. "[Indorsed:] Presented for payment, but not paid for want of funds. this 15th day of January, 1887. D. R. MENKE, County Treasurer. "Registered No. 12." This case is submitted to the court on an agreed statement of facts,the material part of whioh is as follows: At the regular general election held cinNovember 2, 1886, there was submitted to the voters of Finney county a proposition by which an amount of taxes, to be asses,sed for the
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