CONTRACT-Performance, etc. Continued.

62. Receipt of goods, knowing the quality.-If the purchaser of
goods with full knowledge of their condition voluntarily receives them
from a ship and pays the duties on them, he can not afterward set up
the fact that the goods were not of a merchantable quality. Fitch v.
Archibald,

66

2, 555

63. Measurement " more or less."-A contract to run a drift 180
feet, more or less," is completed when 180 feet have been run. Ger-
rens v. Huhn Co.,

2, 632

64. Material excess.-On such a contract plaintiff sued for 384 feet,
but did not aver that the additional feet were run at the instance of
defendant, nor that the defendant had promised to pay for the same.
Held, that the complaint did not state a cause of action. Id.

65. Condition precedent-Waiver.-The execution of the contract
by the V. Coal Company to deliver all their coal for transportation
was not a condition precedent, and by executing the terms of the orig-
inal contract both parties waived the necessity of a more formal con-
tract. Chicago Co. v. Chicago Co.,

2, 634

66. Breach of condition.-When, in the performance of a contract
for labor, there are collateral conditions imposed on the party for
whom the labor is done, the breach of such conditions justifies the
abandonment of the contract by the laborer. Monroe v. N. Pac. Co.,
2,652

67. Second purchase of same ore.-C. contracted with E. in March
to deliver 1,000 tons of ore at a future date: before the delivery C. and
his co-owners sold the ore to R., who delivered the ore to E., who paid
C. therefor. The evidence showed that E. knew that R. was the
owner of the ore at the time of the delivery thereof. Held, that R.
could recover the price of the ore from E., notwithstanding his pay-
ment to C. Randolph Co. v. Elliott,

3, 63

68. Contract licensing to sink oil wells, construed as to the remedy.
Union Co. v. Bliven Co.,
3, 107
69. Sale of stock subject to division of profits on re-sale. Jones v.
Kent,
3, 190
70. Note based on condition of mine yielding a profit.—Maker
ceases to work and sells the mine. Statute of limitations in such case,
Wolf v. Marsh,

3, 204

71. Conditional agreement—Vendor's lien.—In settlement for extra
work done by plaintiff in the building of a quartz mill for the defend-
ant, and in consideration of a conveyance by plaintiff to defendant of
his interest in the mill, the defendant agreed to pay plaintiff $2,575
out of the first net proceeds of crushing and reducing ores of gold and
silver in said mill from the defendant's mine, the debt not to be other-
wise collectible until there were such net profits. There were no such
profits. Held, that plaintiff had no right of action for the $2,575, nor
for the enforcement of a vendor's lien against the mill. Toombs v.
Consolidated M. Co.,
3, 210
72. Sale of mortgage bonds-Distribution of proceeds.-A corpora-
tion issued bonds payable to bearer and secured by a mortgage on its
property, franchises, etc. The directors authorized Jones to raise money

CONTRACT-Performance, etc. Continued.

for the corporation and delivered bonds to him as collateral for money he might raise. He borrowed money on his own note, pledged bonds to the lender, and applied the money for the company's use. The property, franchises, etc., were sold under the mortgage. In distribution of the proceeds: Held, that the lender was not to receive the full amount of the bonds and account to Jones, but that he was entitled only to his loan and interest. Rice's Appeal,

3,638

73. Formal acceptance not necessary.—If a shaft be sunk according to contract, it is the duty of the party procuring the work to accept it, and the party sinking can not be prejudiced by the neglect of a formal acceptance thereof. Eureka Co. v. Braidwood,

4, 148

74. Reasonable time for examination. — Where work is to be accepted or rejected, the examination should be made when the work is tendered, or within a reasonable time thereafter. Id.

75. Distinction between inability of contractor to perform and inherent impossibility of performance. Walker v. Tucker,

8, 672 76. Application of the distinction to exhausted coal mine.—The lessee of coal mines, covenanting to work the same in a good and miner-like manner, is excused from further performance when the coal mines become exhausted. Id.

77. Election of remedies for breach of entire contract. Isaacs v. McAndrews,

F. Abandonment-Rescission-Survival-Estoppel.

9, 690

78. Relaxation of terms by consent.-If parties mutually adopt a mode of performing their contract, differing from its strict terms, or if they mutually relax its terms by adopting a loose mode of executing it, neither can go back on the past and insist upon a breach because it was not fulfilled according to the letter. He may require a return to the terms in future. Hazleton Co. v. Buck Mtn. Co,

2, 389

79. Parties are estopped by their own construction of their contracts. Chicago R. R. Co. v. Chicago Coal Co., 2, 634

80. Tunnel contract-Provisions.-A company owning a quartz ledge, having contracted for the running of a tunnel to cut the same, and having promised the plaintiff to pay for provisions to be furnished the tunnel contractor, in case the contractor failed to reach the ledge, is bound upon such promise to pay, the tunnel being abandoned without reaching the lode. Van Duzen v. Star Quartz Co.,

3,26

11, 115

81. Strict interpretation of contract affected by loose observance of both parties. Forsyth v. North Am. Co..

82. Contingency for payment prevented by defendant's fault. Oliphant v. Wooburn Coal Co.,

15, 365

83. Power of mine owner to revoke contract to mine. Wando Co. v ̧ Gibbon, 16, 55

84. No title nor right to hold against the owner's will, goes with a mere contract to mine; the possession of the employe while it lasts is only a license to enter to perform the contract, and if the contract be revoked the right to hold possession ceases and damages is the only remedy. Id.

CONTRACT. Continued.

G. Public Policy.

85. Excessive loan of national bank not void. Union Co. v. R. Mt.
Bank,

1, 432

86. Unearned dividends.-Consideration of contract for furnishing
money to pay same. Davis v. Flagstaff Co.,

2, 660

87. Voidable contracts-Option to be exercised in reasonable time.-
The general doctrine regarding contracts between a corporation and
one who occupies toward it a fiduciary relation as director, is not that
such contracts are absolutely void, but that they are voidable, and that
the option to avoid must be exercised within a reasonable time. What
is a reasonable time must be decided in each case upon all the elements
of it which affect that question. Twin Lick Co. v. Marbury, 3,633

88. Store contract in restraint of trade. Crawford v. Wick, 8, 541
89. A contract to sell all the coal of certain beds to certain works, is
not one of monopoly or against public policy from the fact that it
involves, by implication, a covenant not to sell to other parties. Pol-
lard v. Clayton,

H. Evidence.

13, 335

90. Wharfage on stone-Contract liability determined by sale of
realty.-K., the owner of a wharf, and S., the owner of a stone quarry,
agreed in writing that all stone quarried on the premises of S. to be
carried away in vessels, should be delivered at K.'s wharf at four cents
per ton, wharfage, for nine years, and after that period at five cents
per ton, wharfage. The agreement was fulfilled upon each side for
nine years, after which S. sold his quarry. Held, that K. could not
recover for a failure by S. to carry to K.'s wharf the stone quarried
after the sale, and that evidence to show that the usual price of wharf-
age for the nine years was five cents per ton, was incompetent.
Knowlton v. Sewall,
2, 591

91. Divisible contract--Coal.-A contract for the sale of a piece of
land for a sum certain, and of coal under other lands payable by an
annual royalty, held, on its face to be a divisible contract, but that
parol evidence was admissible, that the land was necessary for vendee's
enjoyment of the coal, and that it was the understanding at its exe-
cution that the contract was entire. Graver v. Scott,
2, 644

92. Application of the rule excluding parol contradictions.--Where
a writing is not ambiguous, and there is no allegation of fraud, or mis-
take, its words, taken in their usual meaning, must be construed as ex-
pressing the true intent of the contracting parties, and the rule exclud-
ing resort to parol evidence must be applied. Suffern v. Butler.
3, 23

93. Evidence of several contract on joint suit.--If one is bound by
contract to two persons severally, and only severally, their interests
being also several, they can only sue upon it severally, and in a joint
action they will not be permitted to introduce evidence of a several
contract. No. 5 M. Co. v. Bruce,
3, 146
91. Parol evidence, when admissible.-Proof of any collateral parol
agreement, or independent fact, which does not interfere with the

terms of the written contract, though it may relate to the same subject-matter, is admissible; and whether such collateral agreement was made, or independent fact occurred, contemporaneously with, or as preliminary to the main contract in writing, is quite immaterial. Basshor v. Forbes, 13, 530

I. Ratification.

95. Accord, distinguished from continuing contract.—When coal was accepted by the seller by a parol agreement with the coal company, after the breach in settlement of damages claimed for the breach, held, to be an accord and satisfaction, and not a delivery under the former contract. Neldon v. Smith, 2, 371 96. Doubt as to agent's power is removed by ratification. Shaver v. Bear River Co.,

2,537 4, 559

97. Ratification defined. Ellison v. Jackson Water Co., 98. Proof of a corporation entering upon land, prospecting the same, making partial payments under an executory contract known to all its agents without disaffirmance, may amount to proof of the contract without express evidence of formal execution or ratification. Durham v. Carbon Coal Co.,

15, 380

99. Acquiescence in irregularly executed contracts.-When an equitable arrangement has been made dividing or exchanging interests in oil leases between parties jointly owning in the same, reduced to writing, signed by one for all, and acquiesced in by all—such agreement will be upheld against the proper parties the same as if they had attached their signatures. Rice v. Ege, 16, 179

J. Measure of Damages,

100. Quarrying-Rate of payment.-Where plaintiff agreed to quarry stone at a fixed price or rate, and the contract was not fully completed, the rate agreed on must still govern as to the amount of stone which was quarried. McClelland v. Snider,

2, 531 101. Damages for shutting down work at mines.-If the defendants, by refusing to furnish transportation, compelled the plaintiffs to desist from mining up to their reasonable production capacity, damages might be allowed for what would be the loss they suffered on the reasonable amount they were in due course mining. Hazleton Co. v. Buck Mt. Co., 2, 389 102. Payment for timber pro-rated on mine-Liquidated damages.— By contract, S. agreed to furnish W. C. Coal Co. all the timber they should require at their mines during 1867; they to pay him eighteen cents on each ton of coal mined, and if the amount of coal mined fell short of 75,000 tons they were to pay the difference between the actual tonnage and the specified number of 75,000 tons. Held, that the price agreed on by the parties for the fulfillment of the contract was eighteen cents per ton on 75,000 tons, and that the eighteen cents paid on the tonnage not really mined was liquidated damages and not a penalty. Wolf Creek Co. v. Schultz,

3, 95

103. Extent of repairs.—Evidence of the amount expended in making the repairs was admissible as pertinent to the question of the breach of contract and as to damages. Ardesco Oil Co. v. Richardson, 11, 113

CONTRACT-Measure of Damages. Continued.

10-1. Repair" means to restore to its former condition, not to change either the form or material. Id.

K. Miscellaneous,

105. Real and personal contracts distinguished - Stone severed from the realty. Rhoades v. Patrick,

2, 62

106. Party making contract without power to fulfill, subsequently obtaining power. Carne v. Mitchell,

2, 496

107. Consideration of proper clauses to be inserted in contract agreed to be made between an iron company and a colliery. Beard v. Converse,

2, 670

108. Act regulating freight construed.-On the day that the C. & A. R. R. increased the charge to $9 per car an act of the General Assembly went into effect, to prevent extortion and unjust discrimination by railroad companies. Held, that the act was not designed to reach the case of a contract to carry on certain terms, which existed prior to the passage of the act. Chicago Co. v. Chicago Co., 2, 634 109. Mining statute-Special contract.--The statute of Wisconsin governing the rights of miners, applies only where there is no special contract or lease fixing the rights of the parties. Sobey v. Thomas,

4,360

110. Lex loci-Place of demand-Rate of interest.--Under a contract, made in New York, for services to be rendered in Montana, a demand of payment should be made at the domicile of the employer; but if payment is delayed or refused, interest should be reckoned according to the law of the place where the contract is performed. Isaacs v. McAndrew,

9, 690 111. The remedy at common law is not cumulative to the remedy upon contract when the common law right has been merged in an agreement lawful in all respects. Smith v. Darby, CONVERSION.

1.

13, 695

Recovery of oil taken by trespasser.-The severance of oil from the freehold does not divest the title of the owner, nor deprive him of his right of immediate possession, nor prevent his recovery of the oil so taken by action of replevin, or of its value from the one who took it from the well. Hail v. Reed, 11, 103

2. One who without the authority of the owner sells his property is guilty of conversion, although he has acted under the authority of one claiming to be the owner, and was ignorant of such person's want of title. Bercich v. Marye,

13, 544

3. Confined to excuses alleged at time of conversion.—When the refusal of a corporation to issue a certificate is placed upon a certain ground or excuse which is not valid, they can not be heard to allege other reasons on trial not before urged. Bond v. Mount Hope Co.,

14, 500