connection with evidence of his flight and other facts connecting him
with the crime, the proof may be sufficient. (Dunn v. State, 714.)
See Adultery; Arrest; Assault; Forgery; Instructions, 6-8; Larceny;
Slander, 6-11; Trial.
See Landlord and Tenant, 8; Mortgages, 1-3.
EVIDENCE-CUSTOM-NEGLIGENCE.-Evidence of a cus-
tom on the part of a truckman to pass through a store to get his re-
ceipts for goods delivered at the back door of such store is compe-
tent to go to the jury to aid in determining whether the truckman,
in obtaining his receipts, was a trespasser or a licensee. (Pelton v.
Schmidt, 462.)
See Carriers, 7, 8; Witnesses, 2.
1. DAMAGES FOR BREACH OF CONTRACT.-The rule that
one damaged by a breach of contract must do all that reasonably lies
within his power to protect himself from loss, by seeking another
contract of like character, the profits of which are to be applied in
mitigation of such damages, has especial reference to contracts for
personal services, or for the use of some special instrumentality,
either with or without connection with such personal services, but
does not apply to a contract to deliver certain logs at a designated
place, which might have been performed by the parties with their
own teams and personal labor, or by any other means or agency to
which they might have resorted, and there is nothing to show that
the execution of the contract required all or any great portion of the
time or personal attention of the parties, to the exclusion of their
engagement in other business and the performance of other con-
tracts at the same time. (Sullivan v. McMillan, 239.)
2. DAMAGES FOR BREACH OF CONTRACT.-The rule that one
who is injured by breach of contract must do all that is reasonably
within his power to me gate the damages caused thereby, does not
prevail to the extent that one who has been injured by a violation
of an agreement to do a specific act, not necessarily involving per-
sonal services, must seek and perform other contracts for the bene
fit of one who, by breaking faith with him, has caused the injury.
(Sullivan v. McMillan, 239.)
3. DAMAGES.-PROFITS which the purchaser of a chattel ex-
pects to make by its use are not recoverable in an action for dam-
ages against the seller for its nondelivery according to the terms of
sale, or for its want of capacity to fulfill the uses or purposes for
which it was intended. Such profits are too remote and speculative.
(Moulthrop v. Hyett, 139.)
4. DAMAGES.-LOSS OF PROFITS cannot be made the meas-
ure of damages for breach of contract, when the profits are specu-
lative, conjectural, dependent on chances, or have no reference to
the nature of the contract and the breach; nor when the damages
largely exceed the contract price, unless such a result was within the
contemplation of the parties. (Moulthrop v. Hyett, 139.)
5. DAMAGES-LOSS OF PROFITS AS.-It is only when the loss
is indisputable and the amount can be estimated with almost absolute
certainty, that loss of profits forms the proper measure of dam-
ages. (Mouthrop v. Hyett, 139.)
6. DAMAGES-LOSS OF PROFITS-BREACH OF WARRAN-
TY.-In an action to recover the purchase price of machinery, the pur-
chaser cannot recoup as damages the prospective profits which he
could have made, if the capacity of the machinery had been as war-
ranted. (Moulthrop v. Hyett, 139.)
7. DAMAGES-MEASURE OF FOR NEGLIGENCE RESULT-
ING IN DEATH.-The measure of damages for the loss of human
life, resulting from negligence, is the present value of the net in-
come, ascertained by deducting the cost of living, and expenditures,
from the gross income; and no more can be allowed than the present
value of accumulation arising from such net income, based upon the
expectancy of life. (Pickett v. Wilmington etc. R. R. Co., 611.)
8. DAMAGES, MEASURE OF.-IF PROPERTY IS WRONG-
FULLY TAKEN BY AN OFFICER, but not under such circum-
stances as to support the presumption of malice or a desire to op-
press on his part, the value of the property when taken, or at such
time as plaintiff may elect between the time of taking and the bring-
ing of the action, with interest thereon, is the measure of damages.
(Fish v. Nethercutt, 892.)
9. DAMAGES-PUNITIVE, FOUNDED ONLY ON, TORT.—
Unless one has a right to maintain an action of tort, he cannot re-
cover punitive or exemplary damages. (Hansley v. Janesville etc.
R. R. Co., 600.)
10. VERDICT, WHEN NOT EXCESSIVE.—A verdict for one
thousand dollars for being wrongfully ejected from a railway car
while it was in motion is not so large as to necessarily indicate that
It was due to prejudice or passion. (Chesapeake etc. Ry. Co. v. Os-
borne, 407.)
See Highways; Interest, 8-5; New Trial, 3-5; Railroads, 9, 10; Sales,
7, 8; Sheriffs, 2; Slander, 3-5; Telegraph Companies; Waters,
8, 4.
DECLARATIONS.
See Agency, 2.
1. DEEDS. THE TERM “EXECUTION," in conveyancing, de-
notes the final consummation of a contract of sale, and includes only
those acts which are necessary to the full completion of an instru-
ment. These are the signature of the disposing party, the affixing of
his seal, where that is required by law, to give character to the in-
strument, and its delivery to the grantee. (Brown v. Westerfield,
532.)
2. DEEDS, THOUGH UNACKNOWLEDGED, PASS TITLE,
WHEN.-As an acknowledgment, under the laws of Nebraska, is no
part of a deed conveying land other than the grantor's homestead,
an unacknowledged deed to real estate, otherwise perfect, passes the
title. (Brown v. Westerfield, 532.)
3. DEEDS-SEAL.-Under the laws of Nebraska, the seal of the
grantor in a deed is unnecessary. (Brown v. Westerfield, 532.)
4. DEEDS.-THE DELIVERY of a deed is indispensable to its
validity. (Brown v. Westerfield, 532.)
5. DEEDS-DELIVERY, WHAT CONSTITUTES.-It is not es-
sential to the validity of a deed that it should be delivered to the
grantee personally. If the grantor, without reserving any control
over the instrument, delivers it to a third person, unconditionally, for
the use of the grantee, and with the intent that it shall take effect
Immediately, such delivery is sufficient, and title to the property passes to the grantee. (Brown v. Westerfield, 532.)
6. DEEDS-DELIVERY AND INTENT-HOW DETERMINED. The delivery of a written instrument is largely a question of intent, to be determined by the facts and circumstances of each particular case. No particular act or form of words is necessary to constitute such a delivery; but anything done by the grantor from which it is apparent that a delivery was intended, either by words or acts, or both combined, is sufficient. (Brown v. Westerfield, 532.)
7. DEEDS-DELIVERY, WHEN SUFFICIENT-ILLUSTRATION.-If a mother signs and acknowledges a deed before a justice of the peace, conveying to her minor daughter certain real estate, and delivers the deed to the justice, for the use and benefit of the grantee, without reserving any control over it, with the intention and understanding that he is to keep it until the mother's death, when he is to file it for record, and the grantor subsequently tells her daughter that the property belongs to the latter, and that it has been fixed so that she will have a home, the delivery is complete, and the deed passes title at the date of such delivery, though it is afterward lost or destroyed. (Brown v. Westerfield, 532.)
8. DEEDS-DELIVERY-PLEADING.-An averment, in a petition to quiet title, that the grantor “made and executed" a deed, includes not only his signature, but all other acts essential to the completion of the muniment of title, such as the delivery of the instrument to the grantee. (Brown v. Westerfield, 532.)
9. DEEDS-CONVEYANCE OF GROWING TREES.-Growing trees are such a part of the realty that the title to, or interest in, the same can be conveyed or transferred, as a general rule, only by a written instrument. (Magnetic Ore Co. v. Markbury Lumber Co., 73.)
10. DEEDS-CONVEYANCE OF STANDING TIMBER.-If "saw timber," growing on certain lands, is sold and conveyed by deed regularly executed, without condition or limitation, no mention being made as to when the timber is to be cut and removed, the title to it, independently of the land, vests absolutely in the grantee, and is not lost or forfeited in favor of the vendor, or of a subsequent purchaser of the land whose deed expressly reserved such timber, by the fact that the timber was not cut and removed within a reasonable time after it was conveyed. (Magnetic Ore Co. v. Markbury Lumber Co., 73.)
11. DEEDS EVIDENCE OF TITLE-LOSS OR DESTRUCTION. A deed, being merely evidence of the grantee's title, its loss or destruction, after delivery, does not divest the title of the grantee. (Brown v. Westerfield, 532.)
12. DEED TO DEAD PERSON-WORDS OF LIMITATION.-A deed executed to a person not then living "and his heirs" is void, because the word “heirs” is a word of limitation and not of purchase. (Neal v. Nelson, 590.)
13. DEEDS TO DEAD PERSON-HEIRS.-A deed executed to one who is at the time dead, "or his heirs," is good, if his heirs can be Identified, for the reason that he will take if living, and he has no heirs until his death. (Neal v. Nelson, 590.)
See Alteration of Instruments, 2, 3; Trusts, 1
"Children." (Estate of Chapoton, 454.)
"Disease." (Mutual etc. Ins. Co. v. Simpson, 757.)
"Execution." (Brown v. Westerfield, 532.)
"Forfeiture." (Webster v. Dwelling-House Ins. Co., 658.) "Heirs." (Neal v. Nelson, 590.)
THE WORD "INCEPTION" means "initial stage." It does not
refer to a state of actual existence, but to a condition of things or
circumstances from which the thing may develop, as where a build-
ing has been projected and its construction commenced. (Oriental
Hotel Co. v. Griffiths, 790.)
"Kicked." (Chicago etc. R. R. Co. v. Champion, 357.)
"Surety." (O'Conor v. Morse, 155.)
The word "swindling" has no legal or technical meaning. (Cunning.
ham v. Baker, 27.)
"To represent" means "to stand in the place of." (Chase v. Swayne,
742.)
"Watercourse." (Tampa Water Works Co. v. Cline, 262.)
See Deeds, 4-8; Sales, 2, 3.
DEMURRER TO EVIDENCE.
See Trial, 6.
DEPUTIES.
See Officers, 3.
1. DESCENT.-When one dies intestate in the state of Texas,
the statute casts the title of all his property, both real and personal,
directly upon his heirs. (Powers v. Morrison, 738.)
2. DESCENT-CHILDREN, WHO ARE.-The word "children,"
as used in a statute providing that if the intestate shall leave no is-
sue, father, or mother, his or her estate shall descend, subject to the
provision therein made for the widow or husband, in equal shares to
his or her brothers and sisters, and the "children" of deceased broth-
ers and sisters, by right of representation, does not include the
grandchildren of a deceased brother or sister of the intestate. (Es-
tate of Chapoton, 454.)
DIRECTING VERDICT.
See Appeal, 14.
DISTRIBUTION-LIABILITY OF HEIRS FOR DEBTS OF
ANCESTOR.-If an intestate leaves, as heirs, children and a grand-
son, whose father, the son of the intestate, is dead, the grandson
is not chargeable with a debt due from his father to his grandfather,
in proceedings for the partition and distribution of the estate under
a statute providing that "when the intestate's children, or brothers
and sisters, uncles and aunts, or other relations of the deceased,
standing in the same degree alone, come into the partition, they shall
take per capita, that is to say, by persons; and when a part of them
being dead and a part living, the descendants of those dead have a
right to partition, and such descendants shall inherit only such por-
tion of said property as the parent through whom they inherit would
be entitled to if alive"; and this is true, although the deceased son,
at the time of his death, was indebted to his father in a sum which
was found to exceed the interest he would have inherited in the
estate, had he survived his father. (Powers v. Morrison, 738.)
DOMICILE.
See Corporations, 20, 21.
DOWER.-IF LANDS ARE SOLD BY AN UNMARRIED
MAN, his subsequent marriage does not create any right to dower
therein, though they are not conveyed to the purchaser until after
the vendor's marriage. His conveyance, therefore, passes a perfect
title, notwithstanding his wife refuses to join therein. Nor is it ma-
terial that the purchase money was not paid until after the mar-
riage. This rule is not affected by a statute declaring that when
a husband, or anyone to his use, shall have been entitled to a right
of entry, or action in any land, and his widow would have been
entitied to dower had the husband or such other recovered pos-
session thereof, she shall be entitled to such dower, although there
shall have been no such recovery. (Chapman v. Chapman, 823.)
DRUNKENNESS.
See Negligence, 19.
DUE PROCESS OF LAW.
See Constitutions, 2, 3; Statutes, 24.
ELECTION-EVIDENCE OF.-A person claiming to have been
elected to an office by the state legislature may introduce in evidence
the record of such legislature for the purpose of proving his election
and right to the office he is claiming. (State v. Ellington, 580.)
ELECTRIC.
See Railroads, 27-30.
1. JUDGMENT-RELIEF IN EQUITY FROM.-Before relief will
be granted in equity against a judgment at law, it must appear that
there was a good defense to the action, which the defendant was
prevented from making by fraud, accident, mistake, or surprise, un-
mixed with laches or negligence on his part. (Nye v. Sochor, 896.)
2. JUDGMENTS, RELIEF AGAINST.-IF A JUDGMENT IS
JUST, equity will not relieve against it, though the plaintiff had no
right to take it. Hence, relief in equity will not be granted against
a judgment by confession against a corporation, on the ground that
its president, who had executed the power of attorney authorizing
such confession, had no authority to do so. Under such circum-
stances, the defendant will be left to contend against the judg-
ment as best it can at law. (Ford v. Hill, 902.)
3. JUDGMENT, RELIEF AGAINST FOR FORGETFULNESS.-
The fact that a defendant against whom an action was pending
utterly forgot all about it, and for that reason failed to take an ap-
peal until the time within which it could be taken had expired, does
not entitle him to relief from the judgment in a suit in equity,
though he had a good defense to the action, and the judgment against
him is inequitable and such that relief therefrom would have been
granted had he not been guilty of negligence. (Nye v. Sochor, 896.)
4. MARRIED WOMAN, REFORMATION OF INSTRUMENTS
EXECUTED BY.-If a married woman executes in the manner pre-
scribed by law a conveyance or other writing, she bears the same
relation to it and to the rights and remedies under it as any other
contractor, including the right of the other contracting party to
have it reformed under the same circumstances which would en-
title him to such reformation had the writing been executed only by
a man or by an unmarried woman. (Stevens v. Holman, 216.)
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