Obrázky stránek
PDF
ePub

dence thereof, plaintiffs did then and there take and receive from said Hancock a certain deed or instrument in writing, executed by said Hancock, and duly acknowledged by him, and purporting to convey from said Hancock to plaintiffs the said land and premises in fee; that said deed or instrument in writing contains the words “grant, bargain, and sell,” but does not contain any other warranty or covenant whatsoever, and that plaintiffs have not, nor has either of them ever at any time, received any other warranty or covenant from said Hancock, or at all, relating to or concerning saiủ lands or premises or the title thereto.

5. That said Hancock was not the owner of said lands or premises, or of any interest therein whatever, except a mere equitable interest as mortgagee under and by virtue of a certain indenture of mortgage, and that the Bank of Nevada, a corporation, was the owner in fee thereof; that the said state of said title appeared of record on the public records of said Washoe County, but of which plaintiffs were ignorant, they having relied upon defendants as aforesaid to inform them thereof; that defendants could, by the exercise of proper diligence and skill, have discovered said facts, but failed to discover the same, and wholly omitted and failed to exercise due care and skill in said matter and search; that defendants were therefore guilty of neglect in examining into, and in the investigation of the title of said land.

6. That the said mortgage, by and through which the said Hancock held said equitable interest as aforesaid, was given to secure, and did secure, the payment of a promissory note, dated and executed November 1, 1897, and, by its terms, was payable on demand; that the plaintiffs first discovered or learned that said Hancock was not the owner in fee of the said lands and premises, but was the holder only of said equitable interest as aforesaid, on or about the day of February, 1904, and more than six years after the date of said promissory note, and after any action to foreclose said note was barred by section 3718 of the Compiled Laws of Nevada of 1900, and when the said equitable interest which said Hancock held in and to said lands and premises as aforesaid had, without the fault of these plaintiffs or either of them, become of no value whatever.

7. That said Hancock has failed and refused, and still does fail and refuse, to pay to plaintiffs, and said plaintiffs have not received from said Hancock, or at all, the said sum of $1,100, nor any part thereof.

8. That by reason of said Hancock's want of title, and the fact that plaintiffs took no title by said deed, and the fact that said Bank of Nevada was the owner of said lands and premises, as aforesaid, the plaintiffs were ousted and dispossessed of said land and premises by due course of law.

Wherefore, plaintiffs pray judgment against said defendants, jointly and severally, in the sum of $1,100, together with interest thereon at the legal rate from the 28th day of June, 1902, and for costs and disbursements of suit.

A. B., Attorney for plaintiff. (Verification.}

For defense of assumed risk, see ch. CV. form No. 867.
For defense of contributory negligence, see ch. CV, forms Nos. 867 and 868.

Form of petition in an action to recover damages for alleged malpractice of the defendant as a physician: Nelson v. Harrington, 72 Wis. 591; 40 N. W. 228, 229, 7 Am. St. Rep. 900, 1 L. R. A. 719 n.

CHAPTER CVII.

Negligence of Carriers of Property or Messages.

Page $ 371. Complaints (or petitions]

1472 Form No. 880. Against common carrier, for negligent loss of goods

1472 Form No. 881. To recover for goods injured in transit.

1472 Form No. 882. F loss of baggage

1473 Form No. 883. For failure to collect on delivery..

1473 Form No. 884. For failure to deliver at time agreed...

1474 Form No. 885. Against marine carrier, for disregarding notice to keep goods dry .....

1474 Form No. 886. For negligence in loading cargo.

1475 Form No. 887. For loss in unloading

1175 Form No. 888. For breach of contract by corporation to carry message

1476 1 372. Answers

1476 Form No. 889. Denial of contract of carriage...

1476 Form No. 890. Denial that goods were received..

1476 Form NO. 891. Denial of loss and negligence....

1476 Form No. 892. Averment that the contract was special....... 1477 Form No. 893. Defense that defendant is not a common carrier 1477 Form No. 894. Defense that goods were negligently packed by the plaintiff

1477

1477

Form No. 895. Defense that goods were lost by unavoidable

accident, etc.
Form No. 896. Defense setting forth stipulation as to value of

property admitted to have been lost through

negligence.
Form No. 897. Counterclaim for negligence in action by car-

rier to recover freight money... $ 373. Annotations .

1478

1478 1479

[ocr errors]
[ocr errors]

$ 371. COMPLAINTS (OR PETITIONS).
FORM No. 880—Against common carrier for negligent loss of goods.

[Title of court and cause.)
The plaintiff complains of the defendant, and alleges:

1. That the defendant (is a corporation, created by and under the laws of the state of

and] at the times hereinafter mentioned, was a common carrier of goods for hire, from to 2. That on the

day of

19 at the plaintiff delivered to the defendant, being such corporation, certain goods [describing them], the property of the plaintiff, of the value of $ and in consideration of the sum of $ , paid to the defendant by the plaintiff, the defendant then and there entered into an agreement with the plaintiff in writing, subscribed by the defendant (or by its agent duly authorized thereunto), a copy of which agreement is as follows: (Here copy.]

3. That the defendant did not safely carry or deliver said goods as agreed, but failed so to do, whereby the same were wholly lost to the plaintiff, to his damage in the sum of $

[Concluding part.]

FORM No. 881—To recover for goods injured in transit.

[Title of court and cause.]
[Introductory part.]
1-2. [Same as paragraphs 1 and 2, form No. 880.)

3. That the defendant did not safely carry said goods as so agreed, but wrongfully and negligently failed so to do; that defendant delivered said goods in a damaged condition in this (here state), whereby the same were wholly (or if partially, so state and specify] lost to the plaintiff, to his damage in the sum of $

[Concluding part.]

FORM No. 882--For loss of baggage.

(Title of court and cause.)

After introductory part, and, if defendant be a corporation, so alleging :)

1. That at the times hereinafter mentioned the defendant was a common carrier of passengers and their baggage, for hire, from to 2. That on the

day of 1.9 the defendant as such common carrier, for a compensation then paid to him [it] by the plaintiff, received into his (its) train (or stage-coach, etc.) at the plaintiff, with his baggage, to wit, [here describe,) and undertook to carry plaintiff and his said baggage from said to

3. That said baggage was then of the value of $

4. That the defendant, disregarding his (its) obligation, did not use proper care in the premises, but by his (its) negligence and that of his (its) servants] said baggage was wholly lost to the plaintiff, to his damage in the sum of $

(Concluding part.]

[ocr errors]

FORM No. 883— For failure to collect on delivery.

(Title of court and cause.]
The plaintiff complains of the defendant, and alleges :
i. [Same as paragraph 1, form No. 880.]

2. That on said day, in consideration of $ then paid (or in consideration of a reasonable reward to be paid), the defendant agreed to carry safely for the plaintiff, and to deliver to

at , on payment by said

and not otherwise, of the sum of $ and to pay over said sum to the plaintiff; and the plaintiff then and there delivered to the defendant for that purpose the following goods (give description], a copy of which agreement is hereto annexed, marked "Exhibit A," and made a part hereof.

3. That the defendant neglected and failed to collect said sum from said but delivered said goods to him without receiving pay. ment of said amount, and has not paid the same over to the plaintiff, nor has said sum or any part thereof been paid, to the plaintiff's damage in the sum of $

(Concluding part.)

[ocr errors]

FORM No. 884—For failure to deliver at time agreed.

[Title of court and cause.]
The plaintiff complains of the defendant, and alleges :
1. (Same as paragraph 1, form No. 880.]
2. That on the

day of

19 at , the plaintiff delivered to the defendant certain goods, to wit, [describing them, of the value of $ , the property of the plaintiff, which the defendant, in consideration of a reasonable compensation to be paid it by the plaintiff, agreed safely to carry to

and there deliver to the plaintiff, on or before the

19 3. That the defendant did not deliver the same within that time; as agreed, but failed so to do, and did not deliver the same until the day of

19 whereby the plaintiff was deprived of the use of said goods for a long time, and the same were diminished in value, to the damage of the plaintiff in the sum of $

(Concluding part.)

day of

FORM No. 885—Against marine carrier, for disregarding notice to keep goods

dry. [Title of court and cause.] The plaintiff complains of the defendant, and alleges : 1. That on the

day of

19 at the port of the defendant was the master and commander of a vessel known as the

then lying at said port, and the plaintiff caused to be shipped on board said vessel certain goods [describe the same), belonging to the plaintiff, and of the value of $ ; that said goods were then in good order and condition; that in consideration whereof, and of the sum of $ then and there paid by the plaintiff to the defendant, the defendant then and there promised safely to carry said goods to and there safely deliver them to

, perils of the seas only excepted, and then and there received said goods for that purpose.

2. That the plaintiff then and there caused due notice to be given to the defendant that it was necessary to the preservation of said goods that they should be kept dry.

3. That the defendant failed to care for or safely to carry said goods, but so negligently and carelessly carried the same that they became wet, and thereby entirely destroyed (or otherwise injured, as the case may be), which injury was not occasioned by reason of

[ocr errors]
« PředchozíPokračovat »