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Pacific Coast Law Journal.

VOL. 1.

JUNE 22, 1878.

No. 17.

Current Topics.

The following rule has been added to the rules adopted by the Supreme Court, and takes effect July 8, 1878 :

Rule 38. When the judge before whom an action was tried is dead, any unsettled bill of exceptions or statement, on motion for new trial therein, may be settled and certified by his successor in office, or if he be disqualified by the judge of an adjoining district, when the action was tried in a district court; and by the judge of any adjoining county, when the action was tried in a county court.

In State of California vs. Townsend (Copps' Land Owner), the Secretary of the Interior holds that lands are not surveyed until the survey is approved and becomes of record in the district land office. The lands in this case had been surveyed in the field by the United States Surveyor-General, and the subdivisions distinctly marked off, and the adoption by the State of the government survey in making these selections was equivalent to an original survey by her within the third section of the Act of July 23, 1866. (See Oakley vs. Stuart, 1 P. C. LAW JOURNAL, 228.)

THE Supreme Court of the United States, in Atherton vs. Fowler, recently delivered, held that no right of pre-emption can be established by a settlement and improvement on public lands where the claimant has obtained possession by breaking into the inclosure of one who has already settled upon, improved, and inclosed the land.

Such an intrusion, though made under pretense of pre



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empting the land, is but a naked unlawful trespass and can not initiate a right of pre-emption.

In First National Bank of Barnesville vs. Western Union Telegraph Co., decided by the Supreme Court Commission of Ohio, it was held that for failure to deliver a telegraphic message the company is liable only for damages which flow directly and naturally from the breach of the contract.

Before the company can be charged with special or peculiar damages it must have had notice that they were likely to arise from a breach of the contract.

Upon breach of the contract nominal damages may be recovered if actual damages are not proved. (Leonard vs. Telegraph Co., 41 N. Y. 544; Bingham vs. Telegraph Co., 18 Up. Can., Q. B. 60; Stevens vs. Telegraph Co., 16 Up. Can., Q. B. 530; Squire vs. Telegraph Co., 98 - Mass. 232; Parker vs. Telegraph Co., 13 Cal. 422; Bryant vs. Telegraph Co., 1 Daly, 575; Telegraph Co. vs. Wenger, 55 Penn. St. 262; Baldwin vs. Telegraph Co., 54 Barb. 505; 45 N. Y. 744; Landsberger vs. Telegraph Co., 32 Barb. 536.)

In Dean vs. McDowell in the English Court of Appeals (6 Cent. L. J. 468), that the right of one partner to share in the profits made by another partner in another business carried on in contravention of the partnership articles is confined to three cases, viz: When the profits have arisen (1) by use of the partnership property ; (2) from a business in rivalry with the partnership; or (3) in a transaction carried on by taking an unfair advantage of his connection with the partnership. In other cases there is no such remedy unless it is expressly given by the articles.

That without this the partners are in the simple position of covenantor and covenantee, and the only remedy is by injunction or dissolution, or, after the termination of the partnership, by action of damages.

The plaintiff and defendant entered in 1866 into articles of partnership as Dean Brothers, in which the defendant was made the managing partner, and covenanted (clause 8) to devote his whole time to the business, and also (clause 11) that "he would not alone nor with any other person either directly or indirectly engage in any trade or business except on account and for the benefit of the partnership.” The business of the firm was that of salt merchants and salt brokers, selling salt upon commission for manufacturers, among whom their chief constituents were a firm of Nicholas, Aston & Co.

The partnership between the plaintiff and defendant expired by effluxion of time on the 28th of February, 1873. Subsequently the plaintiff discovered that in 1871 the defendant had entered into a secret partnership with one Wilson to purchase the business of salt manufacturers belonging to Nicholas, Aston & Co., and to carry it on simultaneously with his partnership with the plaintiff.

The transaction was arranged in the following manner : The defendant provided the capital for the purchase and carrying on of the business of Nicholas, Aston & Co., but put in a son as nominal partner of Wilson. The son executed a declaration that he was only nominee of his father. Articles of partnership were entered into between Wilson and the defendant's son for a term which would expire one month after the termination of the defendant's partnership with the plaintiff, i. e., on the 31st of March, 1873, and the business was carried on under the old name of Nicholas, Aston & Co. Accordingly the defendant, after the termination of his partnership with the plaintiff, took his son's place in the partnership with Wilson, and they then continued the business of salt manufacturers, selling their own salt and not employing brokers.

The plaintiff on discovering these facts filed a bill in 1874 claiming an account of the profits made by the defendant in the business of Nicholas, Aston & Co., during his partnership with the plaintiff.

After this, Wilson retired from the firm of Nicholas, Aston & Co., and left the defendant the sole owner of that business.

The plaintiff brought a further action in which he claimed to have the business of Nicholas, Aston & Co. accounted for to the partnership of Dean Brothers, as an accretion from the advantage taken by the defendant of his fiduciary position in the latter partnership.

We call attention to the new timber act published in this number. The regulations referred to in the act, to be prescribed by the Commissioner of the Land Department, have not yet been promulgated. We will insert a copy as soon as obtained, thus giving our subscribers the full benefit of this important measure.

Supreme Court of California.


(Unwritten opinion.)

[No. 5,900.)

[Filed April 20, 1878.]

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1. In an action for a surgeon's fee, where the value of the services is denied and a

counter-claim for damages for malpractice is set up, it is proper for the court to

instruct the jury, as a matter of law, that the plaintiff was a competent surgeon. 2. In an action for a surgeon's fee, where the value of the services is denied and a

counter-claim for malpractice is set up, the presumption is that plaintiff's treatment of the case was skillful, and “that he was competent for the task which he

had undertaken, and did his duty to the best of his ability." 3. A party can testify as an expert in his own behalf. 4. Upon the question of skill in the surgeon, it is competent for him to prove a specific

instance of successful treatment of a different patient for the same disease. 5. In estimating the value of a surgeon's fee, it is not competent for the defendant to

prove what other competent surgeons charged for treating the patient during similar periods for the same disease.


The action was to recover $1,000 for surgical services rendered in treating the defendant's child for hip disease. The answer denied that the plaintiff was a competent surgeon, and denied that the services were of any value, and contained a counter-claim for damages for malpractice. The evidence as to what treatment plaintiff gave, and as to whether it was the proper treatment, was conflicting. The court instructed the jury against defendant's exception: that “the plaintiff is a duly qualified, licensed, and practicing physician and surgeon.” The appellant contended that this instruction was erroneous, and that the question of skill or no skill should have been left to the jury.

The court next instructed the jury against defendant's exception—that the presumption was that the plaintiff "was competent for the task which he had undertaken, and did his duty to the best of his ability.” The appellant contended that although such was the rule in actions by the patient against the surgeon for malpractice, yet that when the surgeon sued for the value of his services, and it was denied that the services were of any value, the fact of the surgeon's having skill was put in issue by that denial; that to give reasonable skill was his contract; that it was a part of his case to show that he performed his contract and gave the skill, and that the presumption as to skill was not in favor of plaintiff; and that it made no difference that the answer, in addition to its denials, contained a counter-claim for malpractice.

During the trial plaintiff testified as an expert, on his own behalf, against defendant's objection and exception. It was contended by appellant that such testimony was not competent; that it was necessary to the value of the testimony of an expert that he should be disinterested; and that although interest did not disqualify a party from testifying as to such facts as were within his knowledge, yet that it prevented his opinion from being of any value.

The plaintiff, during the trial, gave in evidence, against defendant's objection and exception, a specific instance of the skillful amputation, by himself, of the head of the femur of a patient whom he was treating for hip disease. It was contended that this was error.

Upon the question of value, the defendant offered to prove what other competent surgeons had charged for treating, during similar periods, the same child for the same disease. To the offer objection was made, and the testimony excluded. It was contended that this was error.

The court affirmed the judgment.
Robert Y. Hayne, for appellant.

C. Campbell, N. Hamilton, and A. J. LeBreton, for respondent.

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