II. CONSTRUCTION, OPERATION,
AND ENFORCEMENT OF CON-
STITUTIONAL PROVISIONS.

48. It is the duty of the court to uphold
a statute when the conflict between it and the
Constitution is not clear.-Brookings County v.
Murphy (S. D.) 793.

§ 48. A statute must receive such a con-
struction as will save it from infringing the Con-
stitution if it will bear it.-State v. Railroad
Commission of Wisconsin (Wis.) 919, 932.

III. DISTRIBUTION OF GOVERN-
MENTAL POWERS AND
FUNCTIONS.

IV. POLICE POWER IN GENERAL.
§ 81. The police power of the state defined.
-State v. Railroad Commission of Wisconsia
(Wis.) 919, 932.

V. PERSONAL, CIVIL AND POLITI-
CAL RIGHTS.

§ 87. The right to receive property by in-
heritance or will is an inherent right subject
to reasonable regulation and taxation, but not
to abrogation by the Legislature.-Beals v.
State (Wis.) 347.

VI. VESTED RIGHTS.

§ 103. Gen. Laws 1907, p. 14, c. 15, validat-
ing any refund by a city theretofore made in

GATION THEREOF.

§ 55.
The provision in Pub. Acts 1907, P.
182, No. 144, authorizing the suspension of sen-
tence of one convicted of abandoning his wife
or children held not objectionable as interfering
with the power of the court to impose sentence.
-People v. Stickle (Mich.). 497.

§ 58. Pub. Acts 1907, p. 182, No. 144, pun-
ishing wife desertion and authorizing the sus-
pension of sentence, held not valid as invading
the pardoning power of the executive.-People v.
Stickle (Mich.) 497.

§ 60. The Legislature cannot delegate its
lawmaking power.-Brookings County v. Mur-
phy (S. D.) 793.

§ 61. A court which is not established by the
Constitution, but one whose functions are pure-
ly statutory, may be given legislative or admin-
istrative, as well as judicial, functions.-Denny
v. Des Moines County (Iowa) 1066.

$63. The second proviso of Laws 1903, p.
272, c. 207, relating to the salaries of county
officers, is not invalid as a delegation of legis-
lative power under Const. art. 9, § 6, to pre-
scribe the compensation of county officers.
Brookings County v. Murphy (S. D.) 793.

§ 63. Laws 1907, p. 439, c. 454, held not in-
valid as a delegation of legislative power or a
vesting of the Railroad Commission with ju-
dicial power.-State v. Railroad Commission of
Wisconsin (Wis.) 919, 932.

(B) JUDICIAL POWERS AND FUNC-
TIONS.

67. The acts of the county court in as-
sessing the inheritance tax imposed by Laws
1903, p. 65, c. 44, as amended by page 403, c.
249, are so far judicial in their nature that
their performance is properly committed to the
court.-Beals v. State (Wis.) 347.

$ 70. Under Acts 30th Gen. Assem. p. 61,
c. 68, as amended by Acts 32d Gen. Assem. p.
98, c. 94 (Code Supp. 1907, § 1989a1 et seq.),
and Const. art. 3, § 1, art. 5, §§ 1, 6, a district
court held not authorized to review the action
of a board of supervisors in determining wheth
er to establish a drainage district.-Denny v.
Des Moines County (Iowa) 1066.

liquor license, held not unconstitutional as de-
stroying a vested right.-Calderwood v. Jos.
Schlitz Brewing Co. (Minn.) 221.

VII. OBLIGATION OF CONTRACTS.
(B) CONTRACTS OF STATES AND MU-
NICIPALITIES.

§ 129. The power of the state to alter or re-
peal corporate charters is one of regulation and
control, and it cannot extend to interference
with property rights vested under a legitimate
exercise of the power granted.-State v. Rail-
road Commission of Wisconsin (Wis.) 919, 932.

§ 134. An ordinance requiring additional
service from a street railroad company held
void as impairing the obligation of a contract.-
People v. Detroit United Ry. (Mich.) 321.
X. EQUAL PROTECTION OF LAWS.

$229. The inheritance tax law (Laws 1903,
p. 65, c. 44, as amended by Laws 1903, p. 403,
c. 249), is not violative of the constitutional
guaranties of equal protection and uniformity
in the operation of laws.-State v. Pabst (Wis.)
351.

XI. DUE PROCESS OF LAW.

§ 289. The statute held to contemplate that
drainage is for public use and convenience and
welfare, so that certain injury to a railroad
company in consequence of the construction of
a drainage ditch across its right of way is not
the taking of property within the Constitution.
-Mason City & Ft. D. R. Co. v. Board of
Suprs. of Wright County (Iowa) 39.

CONSTRUCTION.

of contracts, instruments, or judicial acts and
proceedings.

See Contracts, § 167: Deeds, §§ 108-177;
Judgment, § 524; Wills, §§ 439-698.
Constitution, see Constitutional Law, § 48.
Contract for sale of goods, see Sales, 88 54, 61.
Contract for sale of land, see Vendor and Pur-
chaser, $$ 59, 75.
Instructions, see Trial, § 295.
Insurance policy, see Insurance, §§ 146–165.
Statutes, see Statutes, §§ 181-267.

CONSTRUCTIVE NOTICE.

(C) EXECUTIVE POWERS AND FUNC-

TIONS.

§ 80. Laws 1907, p. 439. c. 454, held not in-
valid as a delegation of legislative power or a
vesting of the Railroad Commission with ju-
dicial power.-State v. Railroad Commission of
Wisconsin (Wis.) 919, 932.

CONTEMPT.

CONTINUANCE.

(D) CONSIDERATION.

CONTRACTS.

Agreements within statute of frauds,
Frauds, Statute of.

Alteration, see Alteration of Instruments.
Assignment, see Assignments.

see

Cancellation, see Cancellation of Instruments.
Impairing obligation, see Constitutional Law,
§§ 129, 134.

Liquidated damages or penalties, sec Damages,
$ 78.

Novation, see Novation.

Operation and effect of champerty, see Cham-
perty and Maintenance.

Operation and effect of customs or usages, see
Customs and Usages.

Parol or extrinsic evidence, see Evidence, §§
400-443.

Reformation, see Reformation of Instruments.
Specific performance, see Specific Performance.
Validity of Sunday contracts, see Sunday, § 15.

Contracts of particular classes of persons.
See Carriers, §§ 46, 51; Counties, § 113; Mas-
ter and Servant: Municipal Corporations, 88
249, 339-351; States, §§ 85, 86.
Attorney, see Attorney and Client, § 81.

Contracts relating to particular subjects.
See Interest; Intoxicating Liquors, § 327;
Patents, § 212; Trade-Marks and Trade-
Names, § 32.

Compensation of attorney, see Attorney and
Client, 143.

Employment of master of vessel, see Shipping,
$ 59.

Ground for mechanics' liens, see Mechanics'
Liens, 108.

Transportation of goods, see Carriers, §§ 46,

51.

Particular classes of express contracts.
See Bills and Notes; Chattel Mortgages; Cove-
nants; Exchange of Property; Indemnity;
Insurance; Marriage; Mortgages; Partner-
ship; Sales.

Agency, see Principal and Agent.
Bills of lading, see Carriers, $$ 46, 51.
Employment, see Master and Servant.
Lease, see Landlord and Tenant.
Mutual benefit insurance, see Insurance, § 719.
Sales of realty, see Vendor and Purchaser.
Suretyship, see Principal and Surety.

Particular classes of implied contracts.
See Assumpsit, Action of; Money Received;
Work and Labor.

Particular modes of discharging contracts.
See Compromise and Settlement; Payment.

I. REQUISITES AND VALIDITY.
(A) NATURE AND ESSENTIALS IN
GENERAL.

§ 10. Where a contract is executed in dupli-
cate, the failure of one of the parties to sign
both papers does not render the contract uni-
lateral. Owens v. National Hatchet Co. (Iowa)

1076.

(B) PARTIES, PROPOSALS, AND AC-
CEPTANCE.

§ 28. In an action on an alleged contract to
pay plaintiff one-half of the amount for which
defendant should sell land conveyed to him by

(E) VALIDITY OF ASSENT.

§ 94. In order to justify the setting aside of
a contract for fraud and misrepresentation, the
misrepresentation must be of some existing con-
dition or present fact, and not a mere promise
to be performed in the future, and ordinarily a
mere expression of opinion will not justify re-
scission. Kelty v. McPeake (Iowa) 529.

894. Where complainant did not understand
that the effect of a contract with defendants
was to absolutely transfer her right to money.
and defendants overreached plaintiff in inducing
her to make the contract without explaining
its effect, equity will set aside the contract.-
Witham v. Walsh (Mich.) 309.

§ 99. In an action to set aside a contract un-
der which complainant transferred her right
to certain money to defendants, evidence held
to sustain a finding that complainant was over-
reached by defendants in inducing her to execute
the contract.-Witham v. Walsh (Mich.) 309.

(F) LEGALITY OF OBJECT AND OF CON-

SIDERATION.

§ 101. Where the contract for the carriage
of freight is against the public policy of the
state, it will not be enforced by the courts.-
Hanson v. Great Northern Ry. Co. (N. D.) 78.

§ 137. Where the valid part of a contract can
be settled without reference to the invalid_part,
recovery may be had on the valid part.-Fryer
v. Harker (Iowa) 526.

II. CONSTRUCTION AND OPERA-

TION.

(A) GENERAL RULES OF CONSTRUC-
TION.

§ 167. A statute with reference to which a
contract is made becomes a part of it.-J. B.
Watkins & Co. v. Kobiela (Neb.) 448.

§ 170. Where the parties have acted upon
and construed a contract, it will be so enforced
by the court.-Jobst v. Hayden Bros. (Neb.) 957.

§ 171. Nature of "entire and separable con-
tracts,' defined.-Quarton v. American Law
Book Co. (Iowa) 1009.

§ 173. An agreement for the purchase of
personal property held dependent on a lease of
real estate, and, the latter being void, neither
of the parties were bound by the agreement.--
Mailhot v. Turner (Mich.) 804.

(D) PLACE AND TIME.

§ 214. Difference between entire and appor-
tionable contracts stated.-Tilton v. James L
Gates Land Co. (Wis.) 331.

IV. RESCISSION AND ABANDON-
MENT.

§ 258. Contracts are usually rescinded be-
cause a party has been fraudulently induced to
enter into the obligation, and facts that will or-
dinarily warrant rescission must have existed at
the time the contract was made.-Badger State
Lumber Co. v. G. W. Jones Lumber Co. (Wis)
933.

§ 274. On rescission of contract, obligation
to return everything of value received thereun-
der may be enforced.-Chesley v. Soo Lignite
Coal Co. (N. D.) 73.

§ 274. Where a specific performance of an
executory contract cannot be enforced, either
party may stop performance by an explicit or-
der, by subjecting himself to compensatory dam-
ages for so doing.-Badger State Lumber Co. v.
G. W. Jones Lumber Co. (Wis.) 933.

§ 274. While a contract for work and material
remains executory, a party contracting therefor
has a right to stop performance subjecting him-
self to such damages as would compensate the
other for being so stopped.-Richards v. Mani-
towoc & N. Traction Co. (Wis.) 937.

$274. For the breach of an executory con-
tract by a party contracting for work and ma-
terial the remedy of the aggrieved party is to
recover damages, and he has no right to per-
form the contract which was executory at the
time of breach and recover the value of the com-
pleted job.-Richards v. Manitowoc & N. Trac-
tion Co. (Wis.) 937.

V. PERFORMANCE OR BREACH.

§ 275. A forfeiture will not be created by in-
tendment, nor enforced, unless the court is com-
pelled by the facts and law to do so.-Hile v.
Troupe (Neb.) 109.

§ 290. Held, that an architect could not
waive the provision of a building contract that
no alterations should be made except upon his
written order.-Carter v. Root (Neb.) 952.

§ 290. Contractor performing extra work

with the owner's consent and under the archi-
tect's direction, held entitled to recover therefor,
though not done upon the architect's written or-
der, as required by the contract.-Jobst v. Hay-
den Bros. (Neb.) 957.

§ 294. Where plaintiff contracted to furnish
six entertainments for a certain sum, the con-
tract providing that plaintiff should not be li-
able if for unavoidable cause any party en-
gaged failed to keep engagements, and that
plaintiff might at his option furnish a substi-
tute entertainment. Held that, where plaintiff
in one entertainment substituted one singer for
another who was then ill, it was entitled to re-
cover the full contract price.-Columbian Ly-
ceum Bureau v. Sherman (N. D.) 765.

§ 300. A contractor is not entitled to addi-
tional time to complete a building because he
has been delayed by rains which might reason-
ably have been anticipated.-Carter v. Root
(Neb.) 952.

§ 300. Contractor held not entitled to addi-
tional time for delay due to accidents or unex-
pected conditions against which he might have
provided in the contract.-Carter v. Root (Neb.)
952.

$305. A clause in a building contract requir-
ing a written demand for additional time to
complete the building held waived by the owner.
-Carter v. Root (Neb.) 952.

$305. A promise by the owner, without con-
sideration, to waive the time clause of a build-
ing contract, held invalid, and the owner is not

thereby estopped to claim damages for delay.
Jobst v. Hayden Bros. (Neb.) 957.

§ 305. Promise by owner to waive time
clause of building contract held to estop him
from insisting upon a stipulation that no allow
ance should be made for delays caused by the
owner unless a claim therefor is presented in
writing.-Jobst v. Hayden Bros. (Neb.) 957.

313. Where a renunciation of a contract by
a party is treated by the adverse party as a

its part of a contract unless the other consents
§ 313. The refusal of one party to perform

to a modification is a total breach of the con-
tract.-Richards v. Manitowoc & N. Traction
Co. (Wis.) 937.

of a contract should not be given effect by con-
$318. A clause stipulating for the forfeiture
struction, unless plainly required.-Haas v. Mu-
tual Life Ins. Co. of New York (Neb.) 996.

the substantial performance of a contract to
§ 322. Evidence considered, and held to show
furnish and install a steam boiler for a hotel
according to the specifications.-Mueller v. Bur-
ton (Wis.) 152, 176.

§ 322. A contractor, seeking to recover on a
contract to furnish and install a steam boiler,
need not produce evidence tending to show the
reasonable value of his incomplete but substan-
tial performance.-Mueller v. Burton (Wis.) 152,

176.

VI. ACTIONS FOR BREACH.
Joinder of parties, see Parties, § 26.

§ 337. Allegations in an action by a buyer
against a seller for damages for selling the same
line of goods to another person in the prohibited
district held sufficient.-Gilfoil v. Western Mfg.
Co. (Minn.) 904.

§ 346. Where, in action for breach of con-
tract, the answer alleged that plaintiff failed
to comply with the conditions of the contract,
evidence by defendant of its cancellation was
properly excluded as not within the issues.-Lar-
son v. Hortman (Minn.) 900.

CONTRADICTION.

Of record, see Appeal and Error, § 665.
Of witness, see Witnesses, § 398.

CONTRIBUTION.

By railroad to expenses of construction of
bridge at crossing, see Railroads, § 99.
CONTRIBUTORY NEGLIGENCE.

See Negligence, §§ 82, 83.

CONVERSION.

Wrongful conversion of personal property, see
Trover and Conversion.

§ 8. On sale of real estate to pay debts,
any surplus belonging to an heir must be ap-
plied to a valid judgment against him.-Ko-
lars v. Brown (Minn.) 229.

CONVEYANCES.

Contracts to convey, see Vendor and Purchas-
er, $$ 145, 151.

In fraud of creditors, see Fraudulent Convey-

ances.

In trust, see Trusts, §§ 17, 18.
Registers, see Registers of Deeds.

Conveyances by or to particular classes of
See Corporations, § 440; Infants, § 26.
persons.
Conveyances of particular species of, or estates
or interests in, property.
See Homestead, § 114.
Mortgaged property, see Mortgages, § 277.
Particular classes of conveyances.
See Assignments; Chattel Mortgages; Deeds;
Mortgages.

OF RIGHT IN GENERAL.

1161

(F) CIVIL ACTIONS.

513. Allegations as to subsequent transfers
of stock held to have no place in the complaint
to hold a corporation liable for debts of incor-
porators, whatever the theory of the action.-
Byrne & Hammer Dry Goods Co. v. Willis-
Dunn Co. (S. D.) 620.

VIII. INSOLVENCY AND RECEIVERS.

§ 550. A suit by an assignee of a corporation
for the benefit of its creditors to determine the
amount due from stockholders held properly
brought in equity.-Rutenbeck v. Hohn (Iowa)
698.

§ 553. Comp. Laws 1897, §§ 8545, 9757, and
9759, held not to authorize the appointment of
a receiver for an insolvent corporation on a
bill by a stockholder which merely alleged that
defendant stockholders induced plaintiff to pur-
chase stock and make expenditures, but had not
paid for their stock as agreed.-Fuller v. Mc-
Cormick (Mich.) 280.

XII. FOREIGN CORPORATIONS.
Striking out answer in action by, see Pleading,
§ 359.

§ 653. Under Rev. Codes 1905, § 4698, of-
ficers, agents, and stockholders of nonresident
corporations doing business within the state
without complying with its statutes are liable
on an implied contract to return everything re-
ceived by the corporation under a contract with
the party who has rescinded it.-Chesley v. Soo
Lignite Coal Co. (N. D.) 73.

CORPUS DELICTI.

Order of proof, see Criminal Law, § 680.

CORRECTION.

Of assessment of taxes, see Taxation, §§ 452-
500.

Of judgment, see Judgment, §§ 323, 325.

CORROBORATION.

Of witness in general, see Witnesses, § 330.

COSTS.

In partition suit, see Partition, § 114.
Mandamus to review taxation of, see Manda-
mus, $ 59.

Review of decisions, see Appeal and Error, §
293.

at common law, statutes providing therefor are
3. The power to tax costs being unknown
to be strictly construed.-Branson v. Branson
(Neb.) 109.

§ 42. The liability of an attorney, seeking to
collect his compensation to costs incurred, de-
termined.-Gilliland v. Brantner (Iowa) 1047.

§ 48. A plaintiff moving for a discontinuance
against a defendant as authorized by Rule 27,
263, held liable for the costs, though the court
subd. "b," instead of under Comp. Laws, § 11,-
did not certify that the joinder of such defend-
ant was unreasonable and unnecessary.
Townsend v. Jackson Circuit Judge (Mich.) 483.
V. AMOUNT, RATE, AND ITEMS.

§ 146. Under St. 1898, § 2921, proper items
ing Co. (Wis.) 161.
of costs stated.-Gould v. Merrill Ry. & Light-

VI. TAXATION.

8 214. Where the question was as to the
amount of attorney's fees which should be tax-
ed upon the sale of property upon mortgage
foreclosure, and not as to whether any fee
should be taxed, a motion to retax is the proper
remedy.-Rogers v. Crandall (Iowa) 1092.
VII. ON APPEAL OR ERROR, AND
ON NEW TRIAL OR MOTION
THEREFOR.

§ 256. Where appellee prints an additional
abstract, consisting almost entirely of testi-
for which there is no justification, appellant,
mony in the form of questions and answers,
on the affirmance, will not be taxed for the cost
Huntley & Son v. Chicago, B. & Q. R. (Iowa)
of the printing of the entire abstract.-L. S.
377.

N. W. viii), costs for printing case not confined
§ 256. Under Supreme Court Rule 44 (108
to necessary matters, and not an abridgment
as required by rule 6 (108 N. W. vi), held not
allowable.-Herring v. E. L. Du Pont De Ne-
mours Powder Co. (Wis.) 170.

CO-TENANCY.

See Tenancy in Common.

COUNCIL.

See Municipal Corporations, §§ 63, 85-106.
COUNTERFEITING.

See Forgery.

COUNTIES.