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States (1908) 88 C. C. A. 252, 16 Fed. able from uptown business property, 89.

or from the ordinary resident portions Similar press - contract.

of the city. True, each tract possessed In the reported case (FLETCHER V.

many differences, just as things that INTERSTATE CHEMICAL Co. ante, 92)

are similar may differ in many reit appeared that the parties, at the

spects. But that does not make the time of making a contract, had before

evidence inadmissible. It being the

same kind them drawings of presses and intend

of property, valuable ed to construct certain presses to con

principally for the same use, possessform thereto. The drawings had a

ing the same general features, situatgeneral likeness to, but were not

ed in the same general locality of the exactly like, Shriver presses. The

city, and used for the same purpose, court holds that the construction of

we do not think it was an abuse of presses in conformity with the draw

discretion for the court to admit the

evidence. All business property in a ings, though not exactly like Shriver presses, did not violate a stipulation

general section, or all residence propof the contract that the presses were

erty in a general locality, is 'similar to be “similar" to Shriver presses.

in the sense in which the word is here

used, though each parcel may possess Similar privileges license to photog

many points of difference. Similarity rapher.

does not mean identical, but having It has been held that a permit given a resemblance. No general rule can to a person to cut silhouettes of cus

be laid down regarding the degree of tomers out of black paper, with scis

similarity that must exist to make such sors, was not a breach of a covenant

evidence admissible. It must necesmade in granting a license to a photog

sarily vary with the circumstances of rapher to take photographs within a

each particular case. Whether the certain portion of exposition grounds, properties are sufficiently similar to which provided that "the said lessor

have some bearing on the value under hereby covenants and agrees with said consideration, and to be of any aid to lessee that it will not, during the exist

the jury, must necessarily rest largely ence of this contract, grant like or in the sound discretion of the trial similar privileges hereby granted, to court, which will not be interfered any other person, persons, or corpo with unless abused. The court must rations." Frankel v. German Tyrolean

determine the question before admitAlps Co. (1906) 121 Mo. App. 51, 97

ting the evidence, and, after it is adS. W. 962.

mitted, the opposite party may show Similar property - eminent domain.

to the jury that the circumstances are In Wassenich v. Denver (1919) 67

such as to render it of little or no Colo. 156, 186 Pac. 533, the court said,

value. In determining the weight of in holding that evidence of the price

such evidence, the jury may consider paid for other tracts, if similar to the

the time of the sale, the amount of one in question, was admissible in an

land, and any and all differences, facts, eminent domain proceeding, and that

or circumstances affecting the value of the other tracts were in fact similar:

such evidence. The court did not err “All the tracts were situated in the

in holding that the sales of the two same general section and locality of

parcels were sufficiently similar to the city, and were not more than a

make the evidence admissible." quarter of a mile apart. They were Similar property - taxation. the same kind of property, and all had Construing a statute providing the same general features and char that “from and after the year 1900, acteristics. They were trackage prop the property, real and personal, in erties, and valuable principally for the territory so annexed, shall be trackage use, and actually used for liable to taxation therefor, in the that purpose. The section of the city

manner and form as similar they were in placed them in a general property within the present limits of class by themselves, easily distinguish said city may be liable,” the court said:

same

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“The word ‘similar,' as used in this through the mails concerning "a lotclause of the section, does not refer tery

or similar scheme of. to property improved in any partic fering prizes dependent in whole or in ular way, or located in any particular part upon lot or chance." United locality in the city. It has reference States v. Ridgway (1912) 199 Fed. 286. to real and personal property within

Similar stock - sales contract. the then limits of the city, and, had In Canada Glue Co. v. Galibert there been no proviso added to this

(1909) Rap. Jud. Quebec 36 C. S. 473, section, the clause quoted would have

18 Ann. Cas. 791, the contract under indicated clearly the intention of the consideration provided that the buyer legislature to be that after the year

should pay for certain calf and sheep 1900 all property in the annex, real and

skin trimmings as high a price as he personal, should be liable to taxa

paid to other tanners for "similar tion at the full city rate in the same

stock." It was held that hide trimmanner and form as other real and

mings other than calf or sheep skin, personal property in the city." Bal

but used for the same purpose, constitimore v. Gail (1907) 106 Md. 684, 68

tuted "similar stock" within the meanAtl. 282.

ing of the contract. Similar purposes -extradition,

Similar table - permitting minor to Under a statute (Act of August 3,

play on pool table. 1882, § 5, 22 Stat. at L. 216, chap. 378,

In construing a statute relating to Comp. Stat. § 10,116, 3 Fed. Stat. Anno.

the playing by minors on a pigeonhole 2d ed. p. 313) providing that "dep- table, "or any table similar thereto, ositions, warrants, or other papers, or or any billiard table," the court in Com. copies thereof, shall be received and

v. Nance (1914) 158 Ky. 444, 165 S. W. admitted as evidence on such hearing, 423, held that a pool table was within for all the purposes of such hearing, the statute, saying: “The evidence if they shall be properly and legally

showed that 'pigeonhole tables' authenticated so as to entitle them to are tables not so wide as pool tables, be received for similar purposes by the and longer, but with four legs, and tribunals of the foreign country from with rubber cushions on the sides which the accused party shall have and ends and covered with cloth, and, escaped; and the certificate of the

instead of having pockets at each principal diplomatic or consular officer

corner and on the sides, had a number of the United States resident in such of holes in the table at one end and foreign country shall be proof that

certain pegs at or near these holes; any deposition, warrant, or other

that the game was played with balls paper, or copies thereof, so offered, and a cue, and, instead of the balls are authenticated in the manner re being numbered as in the other game, quired by this act," it has been held

the holes or pockets into which the that the words "similar purposes” balls rolled through the holes are mean “all the purposes of such hear- numbered. It appears in the evidence ing”—that is, proof of criminality. that in playing pool the player may Re McPhun (1887) 24 Blatchf. 254,

shoot from any side or end of the 30 Fed. 57; Re Oteiza v. Cortes (1890) table where the cue ball may happen 136 U. S. 330, 34 L. ed. 464, 10 Sup.

to be, in his effort to put the numbered Ct. Rep. 1031, 8 Am. Crim. Rep. 241. balls into the pockets, while in playSee to the same effect, Re Lincoln

ing on the pigeonhole table he is re(1915) 228 Fed. 70.

quired to shoot altogether from one Similar scheme - lottery.

end of the table. In each game it is An arrangement for the selling of the purpose to put the balls either lots, and a drawing by which the lots into the pockets or the holes. Each sold were to be parceled out to the table is constructed along the same buyers, have been held to be similar general lines. While the dimensions to a lottery, under a statute making of the tables are different, they are it a penal offense to send a letter each covered with a cloth, and they

are each surrounded by rubber cush and must always be construed so as ions to give life to the balls when they to effectuate the purpose of their enstrike them; it requires, in each game, actment when it can be done without the same skill and practice to put the doing violence to the language itself.” balls in the pockets on the one table as

Similar use - streets. to put them into the holes on the other table; and in a general way it may be

The use of a street for an awning

constructed of iron and glass has been said, not only that the tables are con

held to be similar to the use of a street structed along the same general lines,

for bow or bay windows, hitching but that games played upon the tables require, in a general way, the same

posts, areaways, steps, planting of sort of skill, the same kind of practice, pipes and stands, under a statute per

trees, storm doors, drains and drain and a knowledge of the same character.

mitting the board of estimate to grant Manifestly, it was the purpose of this

the use of the streets for the latter enactment to discourage minors from

and similar uses without an ordinance. frequenting such places, and to protect them from the evil habits which may

Preston v. Likes (1906) 103 Md. 191,

62 Atl. 1024. be so easily contracted in such surroundings. With this purpose of the Similar work — building contract. statute in view, and considering the Under a contract providing that general similarity between the two certain interior fittings and fixtures games of pool and pigeonhole, it can shall be “similar" to those in a certain not be said with any degree of reason store, the work is not to be an exact that it was the purpose of the statute duplicate of that in the store named, to protect them from the playing of but as nearly like it as the provisions pigeonhole pool, and not to protect of the contract and the general condithem from the playing of ordinary tions will permit. Greenbaum y. De fifteen ball pool. Statutes must be Jong (1917) 166 N. Y. Supp. 1042. given a reasonable interpretation,

W. S. R.

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(- Ala. —, 89 So. 299.) Trial — question for jury — negligence of telegraph company.

1. Whether or not it is negligence not to attempt to notify the sender of a telegram of inability to deliver the message after it reached its destination, because the sendee cannot be found, is a question for the jury.

[See note on this question beginning on page 109.] Telegraph – duty of corporation ac the duty of a telegraph company in cepting message.

transmitting and delivering messages, 2. A telegraph company accepting means expeditiously and without una message for transmission and deliv due delay; that is, as quickly as is ery undertakes to transmit and deliv practicable under the circumstances. er it promptly.

Evidence burden of proof

ab[See 26 R. C. L. 548.]

sence of negligence. Definition — "promptly" – transmit 4. Absence of negligence is a deting telegram.

fense to an action for failure prompt3. The word "promptly," defining ly to transmit and deliver a telegram,

but the burden of proof is on the telegraph company.

[See 26 R. C. L. 595, 596.] Pleading — complaint for negligence

in transmitting telegram sufficiency.

5. A complaint for damages against a telegraph company which alleges acceptance by it for transmission and delivery of a

of a message announcing death, and failure to transmit promptly, is not demurrable. - duplicity in breaches of contract.

6. A complaint in contract is not demurrable because it seeks damages for several distinct breaches of the obligation imposed by law upon one entering into such a contract.

defective statement of portion of claim.

7. A count of a declaration is not demurrable as a whole because it states defectively one of several breaches of a contract set out in it. Pleading demurrer raising ques

tion of right to damages.
8. The question of the right of a

sender of a telegram to recover for mental suffering because of its nondelivery cannot be raised by demurrer, whether the liability of the company is governed by state or Federal law.

plea failure to answer whole claim.

9. The question of the right of the sender of a telegram to recover for mental suffering caused by its nondelivery cannot be raised by a plea setting up the fact that the message was interstate, where the complaint also seeks a recovery of the sum paid for the service: Commerce interstate domestic

telegram passing through other state.

10. Where a telegram between two points in one state passes through the accustomed relay point in another state, it is interstate commerce, and therefore damages for mental suffering cannot be recovered for delay in transmitting and delivering.

[See 5 R. C. L. 742; 26 R. C. L. 613.]

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APPEAL by defendant from a judgment of the Circuit Court for Tuscaloosa County (Foster, J.) in favor of plaintiff in an action brought to recover damages for alleged failure of defendant promptly to deliver a death message. Reversed.

The facts are stated in the opinion of the court.

Messrs. Cabaniss, Johnston, Cocke, A count in an action against a tele& Cabaniss, Francis R. Stark, and H. graph company for failure to transmit A. Jones and D. K. Jones, for appel and deliver a telegram promptly must lant:

allege that the delay in delivery, or A count in an action against a tele failure to deliver, was caused by a graph company which alleges that de want of reasonable and ordinary care fendant contracted to transmit and on the part of the defendant, since a deliver a telegram, but does not al telegraph company is not an insurer lege that it agreed to do so promptly, of the delivery of telegrams, but is and which avers that the contract was only under the duty to exercise reabreached by its failure to transmit sonable and ordinary care. and deliver promptly, is subject to de 39 Cyc. 1671; Western U. Teleg. Co. murrer because it does not show that v. Cunningham, 99 Ala. 314, 14 So. defendant broke the contract which it 579; Western U. Teleg. Co. v. Chammade, since for aught that appears blee, 122 Ala. 428, 82 Am. St. Rep. 89, from the averments of the count de 25 So. 232; Western U. Teleg. Co. v. fendant performed its contract to Crumpton, 138 Ala. 632, 36 So. 517; transmit and deliver, though it may Western U. Teleg. Co. v. Blocker, 138 not have done so promptly.

Ala. 484, 35 So. 468; Western U. Teleg. Wellman v. Jones, 124 Ala. 580, 27 Co. v. Whitson, 145 Ala. 426, 41 So. So. 416; 37 Cyc. 1722; Western U. 405; Western U. Teleg. Co. v. GarthTeleg. Co. v. Smith, - Tex. Civ. App.

Tex. Civ. App. right, 151 Ala. 413, 44 So. 212; West133 S. W. 1062; Western U. Teleg. ern U. Teleg. Co. v. Littleton, 169 Ala. Co. v. Henry, 87 Tex. 165, 27 S. W. 99, 53 So. 97; McGehee v. Western U. 63; Lewis v. Southwestern Teleg. & Teleg. Co. 169 Ala. 109, 53 So. 205, Teleph. Co.

Tex. Civ. App. 59 Ann. Cas. 1912B, 512. S. W. 303.

In an action against a telegraph

(- Ala. 89 So. 299.) company, a count which alleges that fails to aver that the defendant could, the defendant undertook, and was in the exercise of reasonable dilipaid a consideration, to transmit and gence, have located the sender and deliver a message, and which also al so notified him. leges that defendant was under the Western U. Teleg. Co. v. Hawkins, duty to notify the sender if for any 14 Ala. App. 295, 70 So. 12. reason it could not deliver the mes It was error to leave it to the jury sage to the addressee, but which to find whether, if the sender had fails to allege that defendant made been notified by the telegraph comany agreement so to notify the send pany of its failure or inability to deer, or was paid any consideration liver the message, he could have therefor, is subject to demurrer. communicated with his daughter by

Western U. Teleg. Co. v. Hawkins, long-distance telephone or other 14 Ala. App. 295, 70 So. 12; Newton means and secured her attendance at v. Brook, 134 Ala. 269, 32 So. 722;

the funeral, where there is no eviBirmingham R. Light & P. Co. v. Ab dence that there was long-distance bott, 6 Ala. App. 643, 60 So. 970. telephone connection available be

It is the duty of a telegraph com tween the place of the residence of pany to exercise care to find the ad the sender and of the addressee, and dressee and make delivery. If it ex where it is not shown that, even if the ercises that diligence, it is under no addressee had been notified by such further duty to the sender. If, on the other means, she would have had time other hand, it fails to exercise due to reach the scene of the funeral in diligence to make delivery, it violates time to attend it. its duty, and the sender's right of ac Western U. Teleg. Co. v. Williams, tion is complete, and there is no sep 16 Ala. App. 420, 78 So. 414; Westarate, independent duty to notify the

ern U. Teleg. Co. v. Robbins, 3 Ala. sender.

App. 234, 56 So. 879; Western U. Western U. Teleg. Co. v. Henderson, Teleg. Co. v. Hawkins, 14 Ala. App. 89 Ala. 510, 18 Am. St. Rep. 148, 7 So. 295, 70 So. 12; Western U. Teleg. Co. 419; Western U. Teleg. Co. v. Merrill, v. Miller, 196 Ala. 620, 72 So. 168; 144 Ala. 618, 113 Am. St. Rep. 66, 39 Western U. Teleg. Co. v. McMorris, 158 So. 121; Western U. Teleg. Co. v. Ben Ala. 563, 132 Am. St. Rep. 46, 48 son, 159 Ala. 254, 48 So. 712; Middle So. 349; Western U. Teleg. Co. v. Stewton v. Western U. Teleg. Co. 197 Ala. art, 16 Ala. App. 502, 79 So. 200; Bright 243, 72 So. 548; Western U. Teleg. Co. v. Western U. Teleg. Co. 132 N. C. 326, v. Smith, 189 Ala. 534, 66 So. 578. 43 S. E. 841; Hancock v. Western U.

A count in an action against a tele Teleg. Co. 137 N. C. 497, 69 L.R.A. 403, graph company is bad for duplicity 49 S. E. 952; Southwestern Teleg. & and misjoinder of causes of action, Teleph. Co. v. Givens, Tex. Civ. where it alleges a duty on the part of App. —, 139 S. W. 676; Miller-Brent defendant to transmit and deliver a Lumber Co. v. Douglas, 167 Ala. 286, telegram, and its breach, and also a 52 So. 414, 17 Cyc. 1758. separate duty on the part of the com Where a telegram originating at one pany to notify the sender of any in- point within a state and addressed to ability on its part to locate the ad another point within the same state dressee and make delivery, and the is, in the ordinary course of the busibreach of that duty, and alleges that ness of the telegraph company, and the plaintiff was damaged by both

pursuant to its customary rules and alleged breaches of duty.

practice, sent to a relay point in anLouisville & N. R. Co. v. Cofer, 110 other state in the course of transmisAla. 491, 18 So. 110; Southern R. Co. sion, the telegram constitutes interv. Bunnell, 138 Ala. 247, 36 So. 380; state commerce, and the common law, Birmingham R. Light & P. Co. v. as construed by the Federal courts, Nicholas, 181 Ala. 491, 61 So. 361, 4 is the applicable law, to the excluN. C. C. A. 432; Friddle v. Braun, 180 sion of the law or public policy of the Ala. 556, 61 So. 59; Sibley v. Barclay, state where the message originates, 14 Ala. App. 422, 70 So. 201.

and which allows recovery of damages And such a count is subject to de for mental anguish. murrer where it alleges that the de Western U. Teleg. Co. v. Hawkins, fendant was under the duty to notify 198 Ala. 682, 73 So. 973; Hanley v. the sender if for any reason it was Kansas City Southern R. Co. 187 U. S. unable to deliver the telegram, but 617, 47 L. ed. 333, 23 Sup. Ct. Rep.

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