valuable consideration, and his vendee is subsequently ejected by the
landlord, in the absence of warranty or with only special warranty
against the acts of the vendor, the vendee is not entitled to relief either
in law or equity against his vendor. Hastings v. O'Donnell, 148.

2. IDEM.-CONCEALMENT. FRAUD.- Concealment of the fact by a vendor
of real property that he holds merely as tenant, does not constitute such
fraud as will entitle his vendee to relief in equity. Id.

See STATUTE OF LIMITATIONS, 1, 2.

VENUE.

See CRIMINAL PRACTICE, 13, 14.

VERBAL AUTHORITY TO SELL LAND.

See AGENT, 1, 2.

VERDICT.

1. VERDICT. STIPULATION AS TO FORM OF. Where the form of the verdict
agreed upon in open Court by the respective counsel was a general
verdict as to the whole property, after the jury has found such a verdict
for the defendant, it is too late for the plaintiff to insist upon a verdict
in a different form, or to assert a right to a portion of the property
upon principles not applicable alike to all the property. Serey v.
Adkison, 408.

-

2. VERDICT. UNCERTAINTY.-The verdict of a jury which finds the plaintiff
to be entitled to a certain amount of money, is not vold for uncertainty,
It is equivalent to saying that they find the issues in favor of the
plaintiff and assess his damages at that sum. Mendelsohn v. Anaheim
lighter Co., 657.

See CRIMINAL PRACTICE, 1, 2, 10; CRIMINAL LAW, 3,

VOLUME XL.

By S. W CHARLES.

Revised to in include citations to volume 147, by CHARLES L. THOMPSON.

Contract. The general rule of equity is that time is not of the essence of the contract, unless it clearly appears from its terms, in the light of all the circumstances, that such was the intention of the parties, p. 11.

Referred to in Alexander v. Jackson, 92 Cal. 526, in dissenting opinion of Paterson, J. The intent to make time the essence of contract must be clearly, unequivocally, and unmistakably shown by an express declaration; Miller v. Cox, 96 Cal. 344. Party in default, where time is the essence of contract, can take no advantage of his own wrong: Beverly v. Blackwood, 102 Cal. 91. Cited, also, in extended note to 50 Am. Dec. 598; 68 Am. Dec. 87, note; 70 Am. Dec. 740, note; and 27 Am. St. Rep. 166, note, giving in part dissenting opinion of Paterson, J., in 92 Cal. 526.

40 Cal. 14-19; 6 Am. Rep. 595. FLYNN v. SAN FRANCISCO & SAN JOSE RAILROAD.

Contributory Negligence. The rule releasing the defendant from liability on account of the contributory negligence of the plaintiff is limited to cases where the act or omission of the plaintiff was the proximate cause of the injury. It is not contributory negligence in a legal sense for a farmer to leave the stubble standing on his grain field. adjoining a railroad, p. 19.

If an owner places cotton in a hazardous position near a railroad, where it is destroyed by fire, he does not thereby lose his remedy for damage caused by the negligence of the company: Railway Co. v. Fire Association, 55 Ark. 178. A plaintiff is not guilty of contributory negligence, when by a small expense, he could have stopped the break in defendant's ditch, caused by the negligence of said defendant: McCarty v. Boise City Canal Co., 2 Idaho, 228. The question of negligence is for the jury: L. N. A. & C. R. Co. v. Krinning, 87 Ind. 354. Referred to in C. B. U. P. R. R. Co. v. Hotham, 22 Kan. 52. It was not contributory negligence for plaintiff to allow combustible material to accumulate Notes Cal. Rep.-127.

2017

around his mill, in near proximity to a railroad track: Kendrick v. Towle, 60 Mich. 370; 1 Am. St. Rep. 531. Rule followed in a similar case: Patton v. St. L. & S. F. Ry. Co., 87 Mo. 126; 56 Am. Rep. 449. Rule affirmed in Longabaugh v. Virginia City & T. R. R. Co., 9 Nev. 298. Owner of land contiguous to a railroad track is not bound to keep his land free from leaves or other combustible material, to avoid danger from fire: D. L. & W. R. Co. v. Salmon, 39 N. J. L. 312; 23 Am. Rep. 225. "A plaintiff is not responsible for the mere condition of his premises lying along a railroad, but, in order to be held for contributory negligence, must have done some act, or omitted some duty, which is the proximate cause of the injury: Philadelphia & Reading R. Co. v. Hendrickson, 80 Pa. 190; 21 Am. Rep. 99. Persons may recover for the negligence of the railroad company, although they have not plowed up the stubble to guard against fire: H. & T. C. R. R. Co. v. McDonough, 1 Tex. Civ. App. 359. Cited, also, in 38 Am. Dec. 75, note; 99 Am. Dec. 289, note; 6 Am. Rep. 649, note; 7 Am. Rep. 80, referring to the note following the leading case in 6 Am. Rep. 595; 20 Am. Rep. 362, note; 32 Am. Rep. 98, note; and 20 Am. St. Rep. 852, note.

Negligence. The leaving of dry grass and weeds along a railroad track, where it is liable to be set on fire by locomotives, is such negligence as will render the railroad company liable for consequent damages, p. 19.

Referred to in Henry v. S. P. R. R. Co., 50 Cal. 181. To allow dry weeds and grass to remain on the right of way is not, however, negligence per se: White v. Missouri Pac. Ry. Co., 31 Kan. 282. The negligent failure to remove or destroy dangerous combustible material on a railroad is always a question for the jury: Jones v. Michigan Central R. R. Co., 59 Mich. 440. Approved in Diamond v. Northern Pac. R. Co., 6 Mont. 589. "Every defendant shall be held liable for all those consequences which might have been foreseen and expected as the result of his conduct, but not for those which he could not have foreseen, and was, therefore, under no moral obligation to take into his consideration: Stark v. Lancaster, 57 N. H. 91. Whether regard be had to the statute or to the common law, a duty rests upon a railroad company to care for the condition of its track: Delaware Lack. & West. R. R. Co. v. Salmon, 39 N. J. L. 305; 23 Am. Rep. 219. Rule said to be supported by the great weight of authority in Railway Company v. Hogsett, 67 Tex. 688. See, also, 95 Am. Dec. 509, note; 6 Am. Rep. 685, note; 1 Am. St. Rep. 532, note; 26 Am. St. Rep. 315; and 35 Am. St. Rep. 237, note.

Unavoidable Accident.-A railroad company is not liable for damages occasioned by unavoidable or inevitable accident, p. 19.

Railroad company is not liable for damages caused by fire if it provides the best approved spark arresters and has taken reasonable precautions with their track to prevent injury: Toledo etc. R. W. Co. v. Wand, 48 Ind. 479. Mere fact of a company emitting sparks from its