68s
THE GREEN BAG
tion by ordinance or otherwise, an owner of a building in a city has a common law right to the reasonable use of the city streets for the purpose of moving such building from one location to another. But the court says, that the common council, having control of the streets of a city, has the right reasonably to regulate their use in mov ing buildings upon them, and the court is not pre pared to say this power of control may not also include the right to prohibit the use of the streets for the moving of buildings, provided always that the prohibition be under the circumstances reasonable. However, the council in its exercise of this legislative function must act by ordinance, duly adopted and promulgated according to the provisions of the city's charter. PLEADING. (Variance.) Ala. — A count based on negligence in an action by an administrator to recover damages for the death of his intestate, is not supported by proof of a willful and wanton wrong resulting in the death of plaintiff's intestate according to Louisville & N. R. Co. v. Perkins, 44 So. Rep. 602. In this case it appeared that plain tiff's intestate, a man over eighty years of age, was a passenger on one of defendant's trains, with a ticket to Geneva. He did not alight at Georgianna, where it was necessary for him to change cars, but was found next morning some distance therefrom in a frozen condition from the effects of which he died. A witness testified to seeing two white men in the uniform of defendant railroad company come onto the rear platform of the rear car of the train, on which decedent was riding, and push him, while the train was running, from the platform at a point near where he was found, where the ground was rough and uneven. These facts the court held to establish a cause of action for willful injury, and therefore insufficient to sustain a count based on negligence. There are two classes of cases which are often confused. In the first class the count alleges facts constituting a certain cause of action while the evidence offered tends to prove another cause of action consisting at least in part of facts not alleged at all. In the second class the count was in tended to allege a certain cause of action but it contains allegations suffic'ent to make out another cause of action, and the evidence offered tends to prove the allegations constituting this second cause of action. In the first class of cases there is a clear variance. Truesdell v. Bourke, 145 N. Y. 612; Cole v. Armour, 154 Mo. 333, 351; Wilson v. Co. 153 U. S. 39, 47; 22 Ency. of PI. & Pr. 527. In the second class of cases there is no variance from the allegations made but the attempt is to recover on a cause of action different from that which the pleader evidently intended to
set forth in his count. This is spoken of as depart ing from the theory of the pleading. Whether this is allowable is a question concerning which the authorities are in conflict. That it is permissible, see Conaughty v. Nichols, 42 N. Y. 83; Faulkner v. Bank. 62 Pac. Rep. 463 (Calif); Pindall v. Trevor, 30 Ark. 249,60. That it is not permissible, see Ross v. Mather, 51 N. Y. 108; Supervisors v. Decker, 30 Wis. 624; City v. Uhl. 99 Ind. 531, 9. The Alabama court no doubt considered the present case as one of the first class. Whether that was right or not could only be determined by a reading of the count in question, which is not given in the report of the case. C. B. W. SALES. (Fraud.) Pa. — Where a purchaser is induced to enter into a contract of purchase by a fraudulent representation that a combination or trust is about to be formed for the purpose of con trolling the sale of articles of the nature of those purchased, and that such trust will increase the price of such articles after a given time, this is sufficient to prevent a recovery for the purchaser's refusal to take the articles contracted for, accord ing to Standard Interlock Elevator Co. v. Wilson, 67 At. Rep. 463. In this case, which was an action to recover for the breach of a contract to purchase safety devices for elevators, the court held that an affidavit of defense of the above nature was sufficient. In support of this decision the court cites Williams v. Kerr, 152 Pennsylvania, 560, 25 Atlantic 618, wherein it was held that owners of land are entitled to a reconveyance where it appears that they were induced to sell it by false representations of the vendee that certain improvements would be made on the property which would greatly enhance the value of the owner's remaining land; and Sutton v. Morgan. 158 Pennsylvania, 204, 27 Atlantic 894, 38 Am. St. Rep. 841, wherein the court held that a sale of land will be rescinded where it appears that the vendee was induced to purchase the land at twice its value by false representations of the vendor's agents as to the demand for building lots, and that railroad shops were about to be built in the neigh borhood. The court concedes it to be true that false statements to be deemed fraudulent in law, must relate to something represented as an exist ing fact, but quotes Benjamin on Sales, (§ 449 et seq.) to the effect that a statement apparently only of intention, purpose or opinion, may amount to a statement of fact, as where a person fraudu lently misrepresents his intention in doing a particular act to the damage of another. TORTS. (Right to Privacy.) N. J. — A noted inventor, is, in Edison v. Edison Polyform Mfg. Co., 67 At. Rep., 392, granted an injunction
