Page:The Green Bag (1889–1914), Volume 21.pdf/380

 Latest Important Cases in Stromberg-Carlson Teleph. Mfg. Co. v. Bar ber (Neb.) 116 N. W. 157, 18 L.R.A. (N.S.) 680, that the presumption is that such change was made before execution and delivery. Contracts. Parol Stipulations Erroneously Admitted—Statute of Frauds. N. Y. In reversing the judgment in the case of Lossing v. Cushman June 1, the New York Court of Appeals held that in an action for the construction of a dwelling-house under a written contract and specifications calling for the completion of the house with cellar, wherein the plaintiff sought to excuse per formance within the time specified by showing a change of plans increasing the amount of work, it is error to permit him to introduce parol evidence to show that, before the con tract was signed, it was orally agreed between the parties that the cellar should extend under only a comparatively small portion of the building. His introduction of such evi dence, said the Court, "violated the rule that parol evidence cannot be received to vary the terms of a written contract, which is pre sumed to express the final agreement of the parties, regardless of what had previously been said upon the subject {Thomas v. Scutt, 127 N. Y., 133, 137; House v. Walch, 144 N. Y., 418, 421; Murdock v. Gould, 193 N. Y., 369.)" (Reported in N. Y. L. J., June 8.) Corporations. Powers of Directors—Lease Rendered Invalid by Failure to Perform Con ditions. Mass. By a deed made in 1888, the Boston & Providence Railroad Company granted the Park Square railroad station property in Boston to the Old Colony Railroad Company and subsequently transferred it to the New York, New Haven & Hartford Railroad Company, which leased the Old Colony. D. M. Little et al., trustees, owners of stock in the Boston & Providence, sought to have the deed canceled, on the ground that the Old Colony had failed to perform the conditions imposed by the lease. The Supreme Judicial Court of Massachusetts, in deciding that the deed should not be canceled, said that the sale of unused land on Dartmouth street, after the Back Bay station was built, was not a violation of the lease. It was proper for the Providence company to sell this unused property, with consent of all interested, and if this was proper for the corporation the di rectors might also do it as managing officers. There was nothing in the lease that limited

355

their power in this particular, and the lease could not be set aside as improperly executed and contrary to law. Not yet reported. Employer's Liability. Master's Duty to In spect Machinery Personally—Res Ipsa Loqui tur Rule Inapplicable. N. Y. In Griffin v. Flank, decided by the Appel late Division of the Supreme Court of New York County in May, the decision of the Court below in favor of the defendant employer was reversed, the Court holding that where an employee was injured and entitled to re cover damages from her employer, it was the master's duty to inspect the machinery, and he cannot delegate this duty so as to escape liability; the question of proper inspection should, then, have been submitted to the jury. {Byrne v. Eastman's Co., 163 N. Y., 401; McGuire v. Bell Tel. Co., 167 N. Y., 208). (Reported N. Y. L. J. June 8.) Evidence. Speed of Car— Objection Going Merely to Weight of Testimony. Il1. In Annie Fuhry v. Chicago City Railway Company, 239 Il1. adv. sheets p. 548, the Supreme Court of Illinois held that when a witness in a street car collision case testifies as to the rate of speed the rear car was run ning, an objection to such testimony on the ground that he did not see the car until about an instant before the collision goes only to the credibility of his testimony and not to its competency, and is properly overruled. The fact that a witness has made former state ments inconsistent with those made by him upon the trial affects the credibility of his testimony and not its competency, and is not ground for excluding such testimony. Guardianship. Court Will Set Aside Ap pointment when Necessary for Good of the Child. Ind. The Supreme Court of Indiana, in Shoaf v. Livengood, just decided on appeal, holds that the welfare and interest of a child are para mount in determining who is entitled to its custody as between two rival claimants, and the claim of a guardian is subordinate thereto. Consequently, where a boy of six years of age was living with his paternal grandparents who were able and willing to care for him as their own son, the child's maternal great-grand father, eighty years old, whose wife was dead, whose health was feeble, and who had no home except as he lived among his children, was not necessarily entitled to the custody