Purchaser Ready, Able and Willing to Take Property Continued.
the purchase, such proposed purchaser is not a purchaser ready,
able and willing to take the property so as to entitle the broker to
commissions even though the broker's contract with the landowner
did not require an actual sale to entitle him to commissions. Massie
v. Firmstone, 450.
Reservation of Right to Sell to Others.-A real estate owner has a
right to stipulate that he will pay no commission until a sale is
made, and in the meantime to reserve to himself complete control
and power of alienation over the property. Massie v. Firmstone,
450.
Suit for Securing Purchaser.-In the instant case the plaintiff, a
real estate broker, was suing defendant, a landowner, for commis-
sions for securing a purchaser. The plaintiff's own testimony
showed that he was not requested, but asked permission, to furnish
a purchaser; that his compensation depended upon a consummated
sale to such purchaser; that the landowner was careful to reserve
the right to sell the property to others if he chose; and that no
sale was in fact made to the proposed purchaser whom plaintiff
introduced. Held: That even plaintiff's own testimony had not
made out the case set up by him, or any other case upon which he
was entitled to recover. Massie v. Firmstone, 450.
Real Estate Brokers.—See infra, “Commissions."
BURDEN OF PROOF. See PRESUMPTIONS AND BURDEN OF PROOF.
Divorce. See DIVORCE.
CANCELLATION. See RESCISSION, CanceLLATION AND REformation.
Agency. See infra, "Liability of Consignee for Freight."
Freight. See infra, "Liability of Consignor for Freight."
Liability of Consignee for Freight.-Shipper as Consignee's Agent.-
In an action by a railroad company for freight and demurrage
charges against the consignee of two wagons purchased by him
from the War Department, and which he refused to receive because
shipped to him by the depot quartermaster in an automobile car
completely set up instead of being "knocked down" and shipped
at a cheaper rate, the question involved was simply one of agency,
and the extent of the powers of the agent. If the depot quarter-
master had authority from the consignee to engage an automobile
car for the shipment of the wagons, the consignee would be liable
Liability of Consignee for Freight-Continued.
for the freight and demurrage. If he did not have such authority,
actual or ostensible, then the consignee would not be liable. Vir-
ginian Ry. Co. v. Stoke, 186.
In a sale of army wagons by the War Department, the contract
stated that the wagons were to be sold f. o. b. cars, at the point of
storage, and were to be billed freight charges collect. Held: That
in order to carry out the contract of sale, it was necessary for the
depot quartermaster, at the place of storage, as the agent of the
government and not as the agent of the purchaser, to deliver the
wagons f. o. b. at the point of storage. Virginian Ry. Co. v. Stoke,
186.
Where a consignee of wagons purchased the wagons from the
War Department and the wagons were sold f. o. b. cars, point of
present storage, and were to be billed freight charges collect,
even if the depot quartermaster at the point of storage was the
agent of the purchaser and not of the government in signing the
bill of lading, so as to render the consignee liable for freight and
demurrage charges, he was an agent of very limited authority, and
had no authority to engage an automobile car and make a car load
shipment of the wagons completely set up when if "knocked down"
they could have been shipped in a much smaller space and at less
than half the cost. Virginian Ry. Co. v. Stoke, 186.
Liability of Consignor for Freight.-General Rule.-The consignor
with whom the contract of shipment is made is primarily liable
for the payment of the freight charges whether he is the owner of
the goods or not. A contract to pay freight is to be implied from
the mere fact that the consignor has placed the goods with the
carrier for the purpose of being carried to their destination. This
liability is discharged only by full payment by the consignor or
the consignee. Acceptance by the consignee, although accom-
panied by an undertaking to pay the charges, does not, it has been
said, discharge the consignor from liability to the carrier; the two
contracts are held to be independent, and not inconsistent one with
the other. Virginian Ry. Co. v. Stoke, 186.
COMMONWEALTH'S ATTORNEY.
"Convicted."-Code of 1919, section 2705, provides that the circuit
court of a county shall have power to remove from office all State
or county officers who shall have been "convicted" "of any act
constituting a violation of any penal statute involving moral tur-
pitude." Held: That the word "convicted" in the statute in
COMMONWEALTH'S ATTORNEY-Continued.
"Convicted"—Continued.
question meant convicted by judgment, and where the accused
pleaded not guilty, required a judgment of conviction in addition
to the verdict of the jury. Smith v. Com., 589.
Removal. See infra, “Convicted."
Declarations of Co-Conspirators.-In a criminal prosecution until a
conspiracy has been prima facie established the declaration of his
alleged co-conspirators, made out of the presence of defendant, are
not admissible as evidence against him. Cottrell v. Com., 554.
In the instant case, a prosecution for the malicious wounding of
one R, it sufficiently appeared that the accused and those jointly
indicted with him were engaged in the illicit buying and selling of
ardent spirits; that R, in his efforts to break up the violations of
the law by them, had incurred their enmity; and that a gun had
been provided and a purse made up to pay the man who would kill
him from ambush. An examination of the record established a
prima facie case of conspiracy, and therefore, threats of defendant's
alleged co-conspirators against R, although made some months be-
fore the crime, were admissible against him. Cottrell v. Com., 554.
Construction.-Restrictions on power of municipality to grant fran-
chise or sell or lease property strictly construed. Town of Victoria
v. Victoria Ice, etc., Co., 124.
Proceedings in Constitutional Convention.—In the instant case the
proceedings of the constitutional convention as to section 125 of
the Constitution of 1902 showed that an amendment was proposed
to the first clause of section 125 making its restriction apply to the
lease as well as to the sale of public property, but failed of adop-
tion. Town of Victoria v. Victoria Ice, etc., Co., 124.
Plainly Violation-The grant of power by the Federal Constitu-
tion to Congress is the only source of congressional power, and must,
therefore, be strictly construed, while a grant of power by the
State Constitution' to the legislature, being merely declaratory of
power already possessed by it, is to be liberally construed in doubtful
cases, and the courts should resolve all doubt in favor of the con-
stitutionality of the act. An act of the General Assembly cannot
be declared void except where such act clearly and plainly violates
the Constitution. Com. v. Staunton Mut. Tel. Co., 291.
Due Process of Law.-See TAXATION.
CONSTITUTIONAL LAW--Continued.
Franchises. See infra, "Construction."
Freedom of Speech. See CONTEMPT.
The right of free speech is guaranteed by the Constitution, and
must be sacredly guarded, but its abuse is expressly prohibited by
that instrument, and must not be permitted to destroy or impair
the efficiency of the courts or the public respect therefor and con-
fidence therein. To find the line where the right of free speech
ends and its abuse begins is not always an easy task. In contempt
proceedings, this line must usually be defined by the courts them-
selves, and in such cases its location is to be established with
especial care and caution. Boorde v. Com., 625.
Impairment of Obligation of Contracts.-Authority of State to
change rates fixed by contract between a municipality and a public
service corporation. Town of Victoria v. Victoria Ice, etc., Co., 134.
Interpretation and Construction.-See infra, "Construction."
Jeopardy. See AUTREFOIS, ACQUIT AND CONVICT.
Police Power. See CORPORATIONS; SUNDAYS AND HOLIDAYS.
Power to Regulate and Fix Rates of Public Service Corporations.-
In Virginia the police power and the express right to regulate and
prescribe rates of public service corporations are repeatedly re-
served to the State in the Constitution, and, so far as not directly
exercised or limited by the Constitution, reside unimpaired in the
General Assembly. This inherent and paramount sovereign power,
so frequently asserted, reiterated, and reserved in the Constitu-
tion, cannot be defeated or abridged by any contract made under
the authority of Code of 1919, section 3016, and since the present
Constitution became effective, but such contracts must be con-
strued as subordinate to such reserved power of the State to pre-
scribe rates, just as if such reservation were expressed therein.
Town of Victoria v. Victoria Ice, etc., Co., 134.
Power of Legislature. The legislature of the State possesses all legis-
lative power not prohibited in express terms, or by necessary im-
plication, by the State Constitution or the Constitution of the
United States. Com. v. Staunton Mut. Tel. Co., 291.
Searches and Seizures.-See SEARCHES AND SEIZURES.
Search Warrant.-See SEARCHES AND SEIZURES.
Disclaimer. Where an attack upon a judge as being a "wet judge” and
allowing his sons to practice before him in liquor cases, in the light
of the connection and the circumstances under which it was said,
was not susceptible of any doubtful interpretation, its general tone
CONTEMPT-Continued.
Disclaimer-Continued.
being unmistakably contemptuous and insulting, respondent's
disclaimer of any intention to insult the court or the judge is un-
availing. Boorde v. Com., 625.
Freedom of Speech.-See infra, "Insulting Language Addressed to or
Published of a Judge." And see CONSTITUTIONAL LAW.
Insulting Language Addressed to or Published of a Judge.-Section
4521 of the Code of 1919, clause 3, authorizes courts or judges in
vacation to punish summarily for contempt "obscene, contemptu-
ous, or insulting language addressed to or published of a judge,"
etc. In the instant case the insulting words were not addressed
to the judge personally, but were contained in an address at a public
meeting and in a publication in a newspaper. Held: That if the
language in question was contemptuous or insulting, it fell within
this provision. Boorde v. Com., 625.
Criticism of judge allowing his sons to practice before him.
Boorde v. Com., 625.
Description of judge as a "wet judge," together with criticism
for allowing his sons to practice before him. Boorde v. Com., 625.
An imputation upon the character of a judge must have been
intended when it was alleged that justice could not be expected
from the judge in cases in which his sons were counsel. Boorde v.
Com., 625.
Charge that Official is "Wet" or "Dry."-To say that a man is
either "wet" or "dry" does not necessarily imply a reference to
the probity of his character. Those terms are often used to desig-
nate the respective opinions which men entertain as to the wisdom
and efficacy of the prohibition laws. In this sense a perfectly up-
right man may be either wet or dry, and merely designating him
as such carries no necessary reflection upon his character. But
when it is said that a particular official is not doing his sworn duty
because he is wet or because he is dry, there is no escape from the
inference of an insulting charge. Boorde v. Com., 625.
Criticism of Judge's Decisions.-An attack upon a judge for his
decisions in liquor cases necessarily related, not merely to past
decisions, but also to similar cases which would be tried by him
in the future. The apparent purpose of the attack was to influence
his action in such cases, and its natural tendency was to embarrass
him in the free and independent exercise of his judgment. Con-
siderable latitude is permissible in the criticism of judicial de-
cisions already rendered, but when such criticism necessarily in-
volves the future action of the court in pending causes, a stricter
rule, for obvious reasons, must be applied. Boorde v. Com., 625.
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