Crescent Homes SC, LLC v. CJN, LLC

<p>CASE 21 — ACTION BY THOMAS MITCHELL AGAINST THE SOUTHERN RAILWAY COMPANY TO RECOVER A BALANCE DUE ON A CONTRACT.</p> <p>Appeal from Jefferson Circuit Court. C. P. Brandi (Second Division).</p> <p>Matt 0’Doi-ierty, Judge.</p> <p>Judgment for defendant. Plaintiff appeals.</p> <p>POINTS AND AUTHORITIES CITED,</p> <p>1. A contract will not be construed to require one person to pay another’s damages resulting from the latter’s own negligence unless the purpose of the parties to make such a contract is so unjnistiakably plain that this construction cannot be avoided. (Perkins v. New York Central R. Co., 24 N. Yf 206; Mynard v. Syracuse, &c. R. Co., 71 N. -Y., 183; New Jersey Steam Navigation Co. v. Merchants Bank, 6 How., 344.)</p> <p>2. “Punctuation is the most fallible standard by which to interpret a writing.” (Ewing v. Burnett, 11 Peters, 41; Succession of Allen, 48 La. Ann., 1036, (55 Am. St Rops., 295); 17 Am. & Eng. Ency. of Law (2 Ed.) 20.)</p> <p>3. Independent Contractors. (Robinson v. Webb, 11 Bush, 464.)</p> <p>POINTS AND AUTHORITIES.</p> <p>Kansas City, Memphis & Birmingham Ry. v. Southern Railway News Co., 151 Mo., 373; (S. C., 52 S. W., 205); Casualty Insurance Company case, 82 Md., 575, 577; (S. C., 34 Atl., 778); Trenton R. R. v. Guarantor’s Liability Co., 60 N. J. Law, 246; (S. C., 37 Atl., 609); Baltimore & Ohio Southwestern R. R. v. Voigt, 176 U. S., 498.</p>

<p>APPEAL from District Court, Ada County.</p> <p>It will be seen by reference to the pleadings that this is an action brought by the county to recover money paid out upon an order of the board of county commissioners, from which order no appeal was taken. Our statute provides that an appeal may be taken from any order, decision or action of the board while acting in their official capacity bjr any person aggrieved thereby or by any taxpayer of the county where any demand is allowed against the county, or when any order, decision or action of the board is prejudicial to the public interest. This statute is broad and comprehensive, providing for an appeal from any order, action or decision in allowing illegal or prejudicial claims; and it would make no difference, so far as the application of the principle of law here invoked is concerned, whether the claims of Mr. Gess were wholly and totally illegal or not, as it would yet be necessary to review the matter by an appeal. This statute has always been interpreted, as we understand, to provide the only remedy for a review of the action of the board of county commissioners. (Idaho Rev. Stats., sec. 1776; Picotte v. Watt, 3 Idaho, 447, 31 Pae. 805; Meller v. Board of Commrs., ante, p. 44, 35 Pac. 712; Davis v.. Commrs., 4 Mont. 292, 1 Pac. 750; Morgan v. Board of County Commrs., ante, p. 418, 39 Pac. 1118; Rogers v. Hayes, 3 Idaho, 597, 32 Pac. 259; Broivn v. Otoe County, 6 Neb. Ill; Clark v. Dayton, 6 Neb. 192; Ragoss v. Cummings, 36 Neb. 375, 54 N. W. 683; State v. Churchill, 37 Neb. 702, 56 N. W. 484; Sioux County v. Jameson, 43 Neb. 265, 61 N. W. 596; Martin v. Supervisors, 29 N. Y. 645; Brady v. Supervisors, 2 Sand. 449; Brady v. Supervisors, 10 N. Y. 260; Boutetourt Co. v. Burger, 86 Ya. 530, 10 S. E. 264; Board of Warren Co. v. Gregory, 42 Ind. 32. J It was certainly proper under the law for the county to refuse to allow Mr. G-ess’ bills in excess of the amount which was due him according to their contention. Ther

<p>Appeal from the St. Louis City Circuit Court. — Hon. John M. Wood, Judge.</p> <p>The action is based upon the contract of membership, and not on the certificate. Masonic Ben. Ass’n v. Bunch, 109 Mo. 560; 19 S. W. Eep. 25; Keener v. Grand Lodge, 38 Mo. App. 543; Lysaght v. Stone Mason, etc., 55 Id. 538. See, also, Wist v. Grand Lodge, 22 Ore. 271; 29 Pac. Rep. 610.</p> <p>The contract between relator and the order is found in the application taken in connection with the laws of the order. Smith v. Knights, etc., 36 Mo. App. 184-190; Bogins v. Supreme Lodge, etc., 76 Cal. 109; B,oyal Templars v. Curd, 111 Ill. 284-286; Holland v. Sup. Council, etc., 54 N. J. L. 490; 25 Atl. Eep. 367; Britton v. Sup. Goimcil, etc., 46 N. J. E. 102, 18 Atl. Eep. 675; Hutchinson v. Sup. Tent, etc., 22 N. Y. Sup. 801; Lorcher v. Sup. Lodge, 72 Mich.; 40 N. ~W. Eep. 545.'</p> <p>Under the contract between relator and the order, the laws of the order could be changed and altered in any reasonable manner. Supreme Lodge v. Knights, 117 Ind. 489; Stoherv. San Francisco, etc., Soc., 82 Cal. 557; 22 Pac. Eep. 1125; Sup. Council v. Ainsworth, 71 Ala. 436; Sup. Lodge v. La Malta, 31 S. W. Rep. (Tenn.) 493; Daughtry v. Sup. Lodge, 20 S. Rep. (La.) 712; Hobbs v. Ben. Ass’n, 42 N. W., Eep. (Iowa) 107; Courtney v. Ass’n, 53 Id. 238; West v. Grand Lodge, 37 S. W. Eep. (Tes.) 966; Gooch v. Ass’n, 109 Mass. 558; Grosvenorv. Society, 118 Id. 78; Chamberlain v. Lincoln, 129 Id. 70; Karcher v. Sup. Lodge, 137 Id. 368; Hellenberg v. Independent Order, 94 N. Y. 580; Sabin v. Phinney, 31 N. E. Eep. (N. Y.) 1087; Bogard v. Farmers, etc., Soc., 79 Mich. 440; Pope v. Bldg. Ass’n, 3 Rep. (Ch.) 47; Fugurev. Soc. St. Joseph, 46 Yt. 362-369; Poultney v. Bachman, 31 Hun, 49; St. Patrick, etc., Soc. v. McVey, 92 Pa. St.</p> <p>The knowledge of the Germania Lodge can not be imputed to the Grand Lodge, nor is the latter estopped from insisting upon the forfeiture. Borgraefe v. Knights, 22 Mo. App. 142; Harvey v. Grand

<p>In Equity. Suit by Robert R. Rumbarger against Humbolt Yokum and others. On demurrer to bill.</p> <p>Rumbarger files his bill against Yokum, Strader, Greynólds, trustee, Cobb, trustee, Sincell, trustee, and Ada A. Y. Halterman, in which, after charging diversity of citizenship and the amount in controversy to exceed $2,000, he alleges that he was the owner of two tracts of land in Randolph county, W. Va., the one within the corporate limits of the city of Elkins, subdivided into 00 lots, the other a farm of about 600 acres within two miles of Elkins; that the 50 lots were worth more than $18,000, and the farm easily $15,000; that on January 10, 1906, he conveyed both said tracts of lots and the farm to Edward II. Sincell in trust to secure a loan of $10.000 made to him by Mrs. Halterman; that on March 18, 1906, he again conveyed these lands to W. H. Cobb in trust to secure Humbolt Yokum and J. IT. Strader three notes, for $5,000 each; that on said last-named daie, and as part of the trust deed contract inter partes, Yokum and Strader executed, to him a contract setting forth that, in consideration of a loan of $10,000 made by them to him, he had executed the three .$5,000 notes, payable in four months, to secure which he agreed to give as collateral security 350 shares, of par value of $100 each, of the Snowbird Lumber Company, a North Carolina corporation, and ‡0 execute tt\\e deed of trust upon the lots and farms referred to, and, if the notes were not paid at maturity, he was to- have the privilege to renew them for 4 additional months; that by reason of financial straits he executed the three notes for $15,000 for a loan only of $10,000, and agreed to pay 6 per centum interest upon the full amount of such notes; that on September 12, 1907, he and Yokum and Strader entered into another contract, set forth, whereby it was agreed that the lots in Elkins should be sold at public auction and the proceeds arising therefrom should be applied, first, to the expenses