former was non compos mentis, for damages arising from an
injury negligently inflicted by the latter, the courts will not
set it aside in the absence of a finding that the defendant
was aware of his incapacity at the time of the release, or
that its execution was induced by its fraud or misrepresenta-
tions. Ibid.
33. Same - Subsequent Sanity — Repudiation — Consideration
Restoration.-When plaintiff has executed a release to de-
fendant for damages claimed in his action, and seeks to avoid
it upon the ground of insanity, he is barred by his failure,
within a reasonable time after being restored to his right
mind, to repudiate the contract and restore the consideration
he has received. Ibid.
34. Judgments—-Impairments of—Legislation-Constitutional Law.
--While judgments are sometimes spoken of as contracts of
record, they are not in realty contracts, and are never so
considered in reference to the clause in the Federal Consti-
tution which forbids that contracts should be impaired by
State Legislation. Mottu v. Davis, 237.
35. Gaming-Legislation-Judgments of Other States-Conflict of
Laws-Res Judicata-Constitutional Law-"Full Faith and
Credit."-Where, in an action pending in the courts of this
State to recover on a judgment in a sister State, the Legisla-
ture amended our statute on gaming by adding thereto : "Nor
shall the courts of this State have any jurisdiction to enter-
tain any suit or action brought upon a judgment based upon
any such contract," there can be no valid objection to such
legislation on the ground that same impairs the obligation
of contracts, and it would seem that no such objection can
be made under Art. IV, secs. 1 and 2 of the Federal Consti-
tution, "the full faith and credit clause," etc., if it is ad-
mitted or clearly appears that the judgment sued on was
rendered on a transaction expressly forbidden by our stat-
utes on gaming, and that the question was not raised, inves-
tigated or determined in the courts of the State in which the
judgment was originally rendered. Ibid.
36. Same. On the facts indicated, if it appeared that the court
of the sister State rendering the judgment had jurisdiction
of the cause and the parties, and that the question whether
the transaction sued on was a gaming transaction had been
expressly raised and determined adversely in that court, in
such case under Art. IV, sec. 1, the judgment of the sister
State would conclude the parties, the terms and very pur-
pose of the article being to prevent all question in the courts
of one State of the Union as to the validity of a cause of
action which had been presented and decided in the courts of
another. Ibid.
37. Carriers of Freight-Bills of Lading-Live Stock-Valuation.
-An agreement in a bill of lading for shipment of live stock
limiting the value thereof not to exceed $100 a head, upon
the consideration of a less freight rate, is valid, and in such
cases recovery against the carrier cannot exceed the amount
named. Jones v. Railroad, 148 N. C., 583, cited and approved.
Winslow v. Railroad, 250.
38. Written - Correspondence Shares of Stock - Dividends Re-
served Questions of Law.-When the transactions leading
to and consummating a sale of certain shares of stock are
embraced in the correspondence between the parties and put
in evidence, it is a written contract of sale, and its construc-
tion is a question of law. Trust Co. v. Mason, 264.
39. Same-Interpretation.-When the purchaser of certificates of
stock in a corporation has accepted a proposition from the
owner reserving the "January dividends," all sums thereto-
fore set apart for distribution as dividends among the stock-
holders and payable in January following are reserved to
the seller. Ibid.
40. Same-Extra Dividends.—A purchaser of certificates of stock
under an agreement reserving to the seller the dividends to
be declared in January, and without the knowledge of either
party, the corporation had declared an extra cash and stock
dividend then to be paid, is liable to the seller for the extra
cash dividend and the value of the stock dividend which he
thereafter has received and collected from the corporation.
Ibid.
41. Consignment-Indefinite Duration-Termination at Will.—A
contract for consignment of goods without fixing a date for
its duration is terminable at the will of either party. Wagon
Co. v. Riggan, 303.
42. Same-Notification.-When, under the terms of a contract for
consignment of goods, it is provided that if the defendants
keep the goods for eight months they were to purchase at a
stipulated price, there is a failure of mutual agreement of
sale upon the notification by the consignee within the eight
months' period that he would not keep the goods. Ibid.
43. Same Plaintiff's Liability
Measure of Damages. When
plaintiff has consigned goods to defendants under an agree-
ment terminable at will, and therefore fails in his suit to
recover the price of the goods in his action for goods sold
and delivered, he is liable to defendant for storage of the
goods after being notified of the termination, for freight paid
by him, and for necessary repairs made. Ibid.
44. Breach-Note-Maturity-Suit, When Brought-Procedure.-
Upon evidence tending to show that defendant agreed to give
plaintiff a certain amount to boot in a horse trade, in the
form of a note, payable at a time subsequent to the action,
and to secure it with a chattel mortgage on the horse thus
obtained, which he put off from time to time and failed to do,
finally selling the horse to another, it is error to sustain
defendant's motion to nonsuit upon the evidence, on the
ground that suit was brought before the maturity of the note.
Upon the breach of the agreement to give the note and
security the action presently lies. Copeland v. Fowler, 353.
45. Same-Measure of Damages.-For the breach of an agreement
to give a note, secured by a chattel mortgage for the balance
due plaintiff on a trade, the measure of damages, in an
action thereon brought prior to the time the note was to have
matured, will ordinarily be the amount indicated by the con-
tract.-if the note was to bear interest, the amount and
interest; if not, the present value of the note with interest
thereon from time of suit. Ibid.
46. Breach Note― Maturity-Suit, When Brought-Arrest and
Bail-Procedure. The ancillary process of arrest and bail
on an affidavit charging fraud and deceit, on the part of
defendant, in the contract by which plaintiff's property was
obtained, does not change the nature of the plaintiff's action
brought for damages for breach of the contract, and such
course is allowed under Revisal, 727, subsec. 4; but on
recovery had, there can be no imprisonment under final
process unless the issue of fraud has been expressly sub-
mitted to and determined by the jury against the defendant.
Ibid.
47. Fraud-Parol Evidence.-It is competent by parol evidence to
show fraud in the procurement of a contract for the sale and
delivery of goods, whether the contract itself is oral or writ-
ten. Food Co. v. Elliott, 393.
48. Sale of Goods-Principal and Agent-Declarations-Res Ges-
tae. In an action upon contract for the sale and delivery of
goods, it is competent for the defendant to show, as a part
of the res gestae, the declarations of the plaintiff's agent at
the time of the sale, as tending to establish his defense of
fraudulent representations to avoid the contract. Ibid.
49. Voidable-Fraud and Deceit-Counterclaim-Void in Toto.-
In an action upon contract for the sale and delivery of goods
the defendant may not avoid his contract for fraud and
recover damages upon a counterclaim measured by the con-
tract, for having elected to treat the contract as void as to
plaintiff's cause of action, it will be regarded as void in toto.
Ibid.
50. Fraud and Deceit-Special Damages.-In setting aside a con-
tract for the sale and delivery of goods for fraud, while the
defendant cannot recover on a counterclaim measured by the
contract, he can recover special damages to his reputation or
business arising from the sale of an inferior or spurious
article directly and approximately caused by plaintiff's tort,
if shown by proper evidence. Ibid.
51. Same-Evidence Questions for Jury. To recover damages
upon a counterclaim set up in defense to an action for the
sale and delivery of goods alleged to have arisen from plain-
tiff's fraud and deceit in its procurement, it is necessary for
the defendant to show the particulars of his injury so as to
enable the court to see if they come within the recognized
principles of the law and are allowable; and an estimate by
defendant that he has been damaged in a certain sum, at
least, is too vague, indefinite and uncertain, and invades the
exclusive province of the jury by permitting him to assess
his own damages. Ibid.
52. Fraud and Deceit - Special Damages - Pleadings- - Evidence
Restricted.-Evidence that defendant has been damaged in a
certain sum by reason of plaintiff's fraud and deceit in in-
ducing a contract for the sale and delivery of goods, must be
taken in connection with the allegations relating to the char-
acter of the damage alleged in his counterclaim; and when
defendant alleges his damages to have arisen from a loss of
profits, his evidence that he has been damaged in a certain
sum must be taken to mean by the loss of profits. Ibid.
53. Fraud and Deceit Samples - Loss of Profit -- Proximate
Cause.-Profits that would have been made had the goods
sold and delivered come up to the samples shown and repre-
sentations made at the time of sale by the salesman, may
not be recovered when they are too speculative or remote.
the rule being that they must proximately and naturally flow
from the tortious act, and are reasonably definite and cer-
tain. Ibid.
54. Same-Evidence.-To recover damages alleged by defendant
by way of counterclaim for alleged profits lost, and to have
arisen from plaintiff's fraud in inducing a contract for the
sale of baking powders, to-wit: that the powders sold were
fraudulently represented as being as good as the Royal
Baking Powder, it is necessary that the evidence disclose a
basis upon which the jury can estimate the alleged profits
lost, the cost price of the genuine article of Royal Baking
Powder, or the average sales of the article in his business
by the defendant, or the profits usually made, or the demands
therefor. Ibid.
55. Interpretation - Intent - Reasonable Support - Blanks Sup-
plied-Certainty.—A bond in a certain sum given in consider-
ation of certain lands, conditioned upon the obligor's sup-
porting in a certain manner an imbecile son of the obligee
for and during his natural life, if the son think it proper to
live with him, and that if he "shall be minded to live with
another person" the obligor shall pay the son yearly for and
on account of his maintenance "at such other place the sum
of..... .dollars per year." evidences the intent that the
father desired to provide for the support and maintenance
of the son; and the blank left therein does not avoid the
undertaking if the son live with another person, but mani-
fests a purpose not to limit the amount thought necessary
for the son's support except as it is imposed by the condi-
tion of life in which he lived. Rhyne v. Rhyne, 400.
56. Interpretation—Reasonable Support-Measure of Damages—
Value of Services-Instructions-Harmless Error.-In a suit
upon a bond and undertaking given to another for the sup-
port of an imbecile son, if he think it proper to live with the
obligor, and if not, by construction, a reasonable allowance
to the son in keeping with his condition in life, it was shown
that the son was an average field hand and worth about $65
a year. The son lived with another person than the obligor.
Held, (1) it was error in the trial judge to instruct the jury
that recovery could be had of the amount necessary to sup-
port the son in his condition of life for the period he had
not lived with the obligor, as it allowed no deduction for the
value of the son's services during that time; (2) it appeared
from the verdict that the jury had made this deduction, and
the error was harmless. Ibid.
57. Liens-Future Payments-Receiver-Completing.-When, by
unconditionally accepting an order given on him by a sub-
contractor in favor of one furnishing the latter material for
the building, the contractor has made a valid assignment of
funds coming into his hands under his contract with the
owner for the payment of the debt, and thereafter the sub-
contractor, a corporation, goes into the hands of a receiver
who, by agreement, satisfactorily completes the work, the
assignment is valid as to such sum or sums of money as may
have become due under the accepted order as against mate-
rial men creditors of the subcontractor of whose claims the
contractor had not been notified, and who had not acquired a
lien under the statutory provisions. Hall v. Jones, 419.
58. Liens Contractor — Interpretation — Payments Reserved -
Material Men-Trusts and Trustees.-A provision in a con-
tract between the owner and the contractor to erect a build-
ing, that the architect shall make a monthly estimate of the
labor and material put into the building during each preced-
ing month, and the owner pay the contractor therefor after
reserving a certain per cent, is for the benefit of the con-
tractor and the protection of the owner, and does not create
a trust in the reserved payments in favor of laborers and
material men of a subcontractor. For the material men to
acquire a lien they must proceed under the statutes. Ibid.
59. Deeds and Conveyances-To Convey Lands-Guarantee of
Number of Acres-Parol Evidence.-In an action to reform a
written contract to convey land in conformity with an alleged
guarantee of the vendor that the tract contained a certain
number of acres, which, in fact, it did not contain, it is not
necessary that the guaranty be in writing. The requirement
imposed in this case, by the trial judge, that plaintiff show
that the defendant had omitted the guaranty from the writ-
ten instrument, was not to defendant's prejudice and there-
fore not reversible error. Stern v. Benbow, 460.
60. Deeds and Conveyances-To Convey Lands-Guarantee of
Number of Acres-Option of Grantee-Remedy-Measure of
Damages. When plaintiff has alleged and proven that the
defendant had guaranteed that a certain tract of land, the
subject of a written contract to convey between them, con-
tained a hundred acres, and in fact, that it contained some-
thing less than eighty acres, it is optional with him to cancel
the contract or take a deed for the land with a pro rata
abatement in the price. In the latter case he may recover
such damages arising from the loss of rents and profits he
may have sustained as the proximate and direct result of
having been wrongfully kept from the possession, less the
interest on the unpaid balance of the purchase price. Ibid.
61. Same-Actual Damages-Rents and Profits.-Plaintiff having
established by the verdict of the jury, under competent evi-
dence and correct instructions of law, that a contract to
convey lands made with him by defendant should be reformed
so as to include a guarantee that it contained one hundred
acres, and that in fact it contained less than eighty acres.
and also, certain loss of rents and profits by reason of his
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