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Central Law Journal.

proving a certain street cut it down more than twelve feet below the natural surface of complainant's lot, and that, by reason of such

cut, an alley which crossed such street and ST. LOUIS, MO., OCTOBER 11, 1901.

had been used as a means of egress by com

plainant's tenants had become impassable, The recent case of French v. Paving Co., and that the deprivation of the use of the 19 Sup. Ct. Rep. 187, 43 L. Ed. 443, has evi. alley had depreciated the value of his propdently nou settled the celebrated controversy erty, so that the property was of less value over the validity of assessments for street im with the street improved than it would have provements on abutting property owners when been without the improvement. The court in excess of benefits received. It is an axiom on demurrer, taking the averments as true, so true that even the supreme court cannot said: “These facts certainly make a good disregard it, that no question is ever settled case, because the creation of a public benefit until it is settled right. The ink was hardly at the expense of an individual property dry on the opinion of Justice Shiras, in the owner without any resulting benefit or comCase just referred to, when the question was pensation to him, is contrary to the letter again raised and again decided in favor of and spirit of the constitution.” the property owner, on a ground claimed to Without hesitation we pronounce this debe distinguishable from both the cases of cision not only eminently just and equitable, Norwood v. Baker and that of French v. but also among the foremost of the Paving Company. This was in the recent de decisions on this question by reason of its cision of White v. City of Tacoma, 109 Fed. clear recognition and elucidation of right Rep. 32, in which case it was held that wbile principles and sound law. We especially state laws providing for the assessment of commend the statement of the general rule the cost of street improvements on abutting with which Justice Hanford closes his adproperty are not necessarily uncorstitu mirable opinion: “I consider that each tional, because the assessments are made in case arising under the laws for assessing accordance with the front-foot rule, never abutting property to pay for street improvetheless where, in practical operation they do ments must depend upon its particular facts. confiscate property, they are obnoxious to If it appears that an assessment has been the fourteenth amendment to the constitu levied by competent authority, and that it tion of the United States, and it is the duty is fair, and not in excess of the benefits to of the courts to declare them void. It was accrue by reason of the improvements to be also held that special assessments for street paid for, it will be sustained by the courts. improvements do, in practical effect, take It is equally the duty of the courts to reproperty for public use without compensation, strain the collection of assessments which and, therefore, deprive the owner of such | are shown to be mere attempts to take the property without due process of law, unless property of one for the use of others withthe property assessed is benefited by the im out compensation to the owner. For provement to an extent substantially equal to reasons already set forth in this opinion, I the amount of the assessment. This statement hold, also, that no determination of the of the law is apparently right in the teeth of constitutional question involved in this the latest decision of the supreme court, but class of cases, by an administrative board or the principles expressed and adhered to are

special tribunal created by the state, can so just and uncontrovertible that they must stand as a bar to a suit in a national court ultimately and necessarily become the law of

to test the question whether by means of the land. The facts in this case were very free such determination the state has deprived from ambiguity and complications, and af the complainant of his property without due forded opportunity for a clear cut decision. | process of law.” The plaintiff, in a bill seeking to remove a cloud from his title alleged to have been The rule of caveat emptor is one of the created by an unlawful assessment for street most valuable of our common law inheritimprovements, stated that the city in im- ances, and should not be twisted out of its

old time effectiveness by reason of its

Tbis whole subject and the authorities pro and working apparent injustice in hard cases.

con will be found extensively and exbaustively

treated in the case of Johnson v. Merchants' Line, Any modification of its ancient steroness

37 Fla. 499, 19 South. Rep. 640, 37 L. R. A. 518, would be a calamity, tending not only to

where the court reached a position just opposite increase litigation but to make weaklings that of the court in the principal case. But it is to out of the people and encourage them to be noted that all the states are not content to abide rely more on the strong arm of the court

by this position and insist upon their right to tax than upon their own common sense and

vessels which operate in their water and receive

the protection of their laws. The reason for the judgment. Entertaining such views we, of

position of these states is well stated in the opincourse, are inclined to commend most em ion of the court in the principal case: "Sound phatically the decision of the court in the reasons exist for the right of the state to tax these recent case of Brown v. Smith, 109 Fed.

vessels that are permanently here transacting Rep. 26, wbere it was held that one who

local business. They receive the full protection

of the local government, and, if mere registry contracts for the purchase of real estate in

in another port is conclusive against the right to reliance on the representations and state tax here, a boat can operate in our local waters, ment of the vendor as to its character and confined entirely to local business, and, if owned value, but after he has visited and examined

elsewhere, may evade all taxation in this state. it for himself, and has bad the means and

Such construction should not be adopted unless

imperatively demanded by superior autbority. opportunity of verifying such statements,

Under the revenue law of this state, personal cannot avoid the contract on the ground property is taxed at its situs, and without referthat they were false or exaggerated. The ence to the residence of the owner." court expresses itself in this language: "Reviewing and considering the testi. ATTORNEY AND CLIENT-CONTINGENT FEESmony, it is manifest that the defendant UNCONSCIONABLE JPERCENTAGE AND RIGHT OF entered into this contract assuming many


when the honor of the profession of law things to be true without proper examina

was more prominent than its business tion, and without using the means of verifi aspect, the practice of taking contingent cation at band. There was no sort of fidu fees was frowned upon and placed the offender ciary relation between him and the plaintiff. in a lower and more dishonorable strata of pracThey were mere acquaintances, and in their

titioners. Gradually, however, the justice and

necessity of such contracts in certain instances dealings were both on guard, or should have

have been generally recognized although courts been. He is evidently a gentleman of cult

and laymen still view them with suspicion. ure, of intelligence, and experienced in Two interesting questions arising in conaffairs. He is not a ward of the court, nor nection with such contracts were passed upon entitled to its special protection.”

in the recent case of Henry v. Vance, 63 S. W. Rep. 273, where the Supreme Court of Kentucky

held that, where attorneys, having come into NOTES OF IMPORTANT DECISIONS. possession of a letter making inquiry as to the

beirs of a certain person wbo had died in Nova TAXATION-RIGHT OF STATE TO TAX VESSELS Scotia, leaving a large fortune, made a contract REGISTERED IN FOREIGN PORT, BUT OPERATING with the heirs, whom tbey had no trouble in IN THE TAXING STATE.-A very important and

indentifying, undertaking to recover their interest much disputed question of law is the right of a l in the estate for a contingent fee equal to 35 per state to tax vessels registered under act of 1 cent. of what might be recovered, the fees appear congress in the port of another state where such at first blush to be so unconscionable that slight vessels operate exclusively in the taxing state. additional circumstances will be held sufficient In the recent case of Northwestern Lumber Co. v. to sustain the charge of fraud in procuring the Chehalis County, 64 Pac. Rep. 909, the Supreme contract. Court of Washington held that ocean-going tugs Another important question in the case was owned by a lumber company, and exclusively the right of a client to discharge bis attorney used within the state, and managed and operated where the latter has agreed to take the case op a by residents of the state, are subject to state tax contingent fee. On this point the court held ation, though such tugs are registered at a port that a client may discharge his attorney at any situated in a foreign state.

time, with or without cause, even wbere a conUnder act of congress (Rev. St. [U. S.] sec. tingent fee has been agreed upon; the remedy 4319) vessels must be registered at its home port of the attorney, if the discharge was without and under the decisions of the United States cause, being an action on a quantum meruit for Supreme Court are taxable only at such port. I services already rendered, or, if no services bad

been rendered before the discbarge, an action to most valuable form of property, since it is the recover damages for a breach of the contract,--a product of all kinds of property reduced to its declaration upon the contract as if constructively standard of value. If this is not so, then a bankperformed not being good.

rupt who could not transfer property to a credOn this point the court said: "The relationship itor by way of preference could himself sell the of attorney and client is so peculiarly one of con property and transfer the proceeds with impunity. fidence and reliance that it would not do to re We do not see that the law can be so narrowly quire a party to continue in his service one whom construed. Our opinion of the statute is conhe distrusts, or whose capacity be no longer be tirmed by the recent decision of the circait court lieves in, nor to permit the attorney, under such of appeals, seventh circuit, in Re Ft. Wayne Eleccircumstances, to continue the relationship, where tric Corp., 99 Fed. Rep. 100, 39 C. C. A. 582; also the lack of confidence would seriously impair In re Fixen & Co., 4 Am. Bankr. Rep. 10, 96 Fed. his efficiency, and interfere with his full oppor Rep. 748. Assuming, then, for the reasons stated, tunity to serve the party and the court as his that money is included in the term “property,'' office requires. That the client has the right to dis- two questions arise: Is it within the meaning, charge bis attorney at any time with or without of a 'transfer' when it is paid to a creditor upon cause, even in a case where a contingent fee bas his own debt, or for his benefit, and, if so been agreed upon, cannot be well doubted. Me- | paid, can it be recovered by the trustee? The chem, Ag. 856. If tbe discharge is for cause, the | word 'transfer,' as defined in the act, includes question of fee may become eliminated, or give to the sale and every other and different mode of the client even a right to an action over. If the dis. | disposing of or parting with property, or the poscharge is without cause, and after the attorney session of property, absolutely or conditionally, entered upon and performed part of the services, as a payment, pledge, mortgage, gift or security.” be will undoubtedly be entitled to recover at least If an insolvent debtor cannot part with goods in to the extent of the value of the services rendered. I payment of a debt, there is no reason why he But generally the attorney should be relegated to should be allowed to part with money for the an action to recover on quantum meruit, where he same purpose. We refer now only to a payment has been prevented by the client, or other fact made and received, as alleged in the declaration, not bis fault, from fully discharging the services with an intent to give a preference over other contemplated by his contract. Moore v. Robin creditors. Whether a payment, made in the son, 92 III. 491; Duke v. Harper, 8 Mo. App. 296; course of business to a creditor who bas no reaQuint v. Mining Co., 4 Nev. 304; Scobey v. Ross, sonable cause to believe that it was so made, is 5 Ind. 445; Telegraph Co. v. Semmes, 73 Md. 9, witbin the law, we are not called upon to decide. 20 Atl. Rep. 127; Wilson v. Barnes, 13 B.Mon. 330. This question has arisen, in several cases with and Bank v. Barclay (Ky.), 60 S. W. Rep. 853.” varying opinion. See In re Ft. Wayne Electric

Corp., supra; In re Fixen & Co., supra; In re BANKRUPTCY — PAYMENT OF MONEY AS A

Smoke, 4 Am. Bankr. Rep. 434, 104 Fed. Rep. 289; PREFERENCE.—That the payment of money is a

In re Hall, 4 Am. Bankr. Rep. 671. These cases *transfer of property" within the meaning of tbe

differ on the subject whether a payment to an inbankrupt act defining preferences is now defi

solvent's creditor in the ordinary course of businitely settled by the decided weight of authority.

ness is a preference. They all imply that there In the recent case of Landry v. Andrews, 48 Atl.

can be no question when the creditor knows the Rep. 1036, the Supreme Court of Rhode Island

facts." held that a payment of money by an insolvent in discbarge of a debt is a transfer" of property,"

THE STIPULATIONS IN TELEGRAPH within the provisions of the federal bankrupt

BLANKS. law against preferential transfers of property, and, if made to a creditor having reasonable It may be laid down as a general rule that cause to believe that it was made with intent to telegraph companies are, in their relations to give a preference, it can be recovered by the the general public, in a measure subject to trustee in bankruptcy. The court reviews the

the restrictions governing common carquestion as follows: “The fundamental argument in support of the

riers. They are bound to furnish equal demurrer is that a payment of money is not a

facilities to all persons and corporations betransfer of property within the provisions of the longing to the classes which they undertake bankrupt law. It is true that the bankrupt law to serve. They may not refuse to furnish does not specify money as a class of property. In

service because their instruments are section 60d it even uses apparently distinguishing terms in the words ‘pay money or transfer

patented, or because the license under property.' Still we cannot resist the conclusion

which they carry on their business is conthat the word "property," as used in the law, was intended to include money. The word

i Del. & A. T. & T. Co. v. State, 3 U. S. App. 30; *property' is evidently used as a generic term, Budd v. N. Y., 143 U. S. 517. intended to include money as the readiest and 2 Del. A. T. & T. Co. v. Del., 50 Fed. Rep. 677.

ditional upon their refusal to carry the mes of damages for failure to transmit or deliver sages of certain persons or corporations which has no relation to any value wbich without the specific authorization of their can be put upon the message itself.” licensor. They may not, in other words, We cannot agree with the learned court discriminate against particular persons or in these views. The question concerning corporations. They cannot by any contract the possibility of embezzlement or criminal with their patrons, wholly exempt them. collusion forms little or no part of the quesselves from liability for such damage as tion at issue. If, however, that be material, may ensue by reason of the negligence or we cannot see that the possibility is less reignorance of themselves, their agents, mote in the case of a telegraphic message servants or operators. To this extent, at than in that of more material matter in least, telegraph companies may said to be transit under the control of a common carcommon carriers, and the likeness may be rier of goods. The opportunity for fraud, further emphasized inasmuch as telegraph collusion, even actual embezzlement, is as companies are, even as are common carriers, much present in the one case as in tbe other. permitted to limit their liability only by May we not compare the position of the special contract where loss is liable to re telegraph company with that of the ware. sult by reason of the negligence of them. house man who becomes bailee of grain, not selves, their agents or servants.

to return the actual shipment, but a similar Opposed to this view, we have that taken by quantity of a similar standard, there may the Massachusetts court in the case of Grin not be, beyond a certain point, a possibility nell v. Telegraph Co.6 Stating the opinion of embezzlement, but both may surely have of the court Gray, C. J., says: “The opportunities for larceny. That the mesliability of a telegraph company is quite un sage is not to be transmitted in the form in like that of a common carrier. A com which it is received is immaterial; the Morse mon carrier bas the exclusive possession code is as pregnant with meaning to a and control of the goods to be carried, with properly competent telegrapher as is the peculiar opportunities for embezzlement or written form in which the message is collusion with thieves; the identity of the tendered to the telegraph company for transgoods received with those delivered cannot mission; the liability as to error, no greater be mistaken ; their value is easy of estimate in the one form than the other. The posand may be ascertained by inquiry of the sibility of mistake may be guarded against consignor, and the carrier's compensation by special contract limiting liability, or fixed accordingly; and his liability is meas specially and expressly stating the valuation ured by the value of the goods. A tele of the subject-matter tendered for transmisgraph company is intrusted with nothing sion. If the sender insist upon the telebut an order or message, which is not to be graph company assuming the commoncarried in the form in which it is received, law liability of the common carrier, wherein but is to be transmitted or repeated by lies any hardsbip? It may charge bim such electricity, and is peculiarly liable to mis rates as will permit the repetition of the take; which cannot be the subject of em message, and if this latter be accomplished bezzlement; which is of no intrinsic value ; it bas, according to its own view, as evithe importance of which cannot be estimated denced by the ordinary stipulation in teleexcept by the sender, nor ordinarily dis graph blanks covering this point, protected closed by him without danger of defeating itself against the possibility of error, etc., his own purposes ; which may be wholly in so far as it lies in its own power to do so. valueless if not forwarded immediately ; for | The measure of damages presents no unthe transmission of which there must be a usual difficulties; the rule laid down in single rate of compensation, and the measure Hadley v. Baxendale? may be followed, and 3 Mo. ex rel. B. &0. Teleg. Co. v. Bell Telep. Co.,

such damages awarded as may fairly and 23 Fed. Rep. 539.

reasonably be supposed to have arisen 4 R. R. Co. v. Lockwood, 17 Wall. 357; L. & G. W.

naturally from the failure of the telegraph Steam Co. v. Phønix Ins. Co., 129 U. S. 397. 5 Hart v. R. R. CO., 112 U. S. 331.

company to perform its contract, “or such 6113 Mass. 301.

7 9 Ex. 354, 355.

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ss may reasonably be supposed to have | telegraph company an insurer, it may limit been in the contemplation of both parties at its liability by special contract with its pathe time they made the contract.”

trons in any proper manner. It is subject to The main question at issue, however, in a many accidents that would seem to justify consideration of the stipulations in tele such precautions, yet, acting within its legal graph blanks is: To what extent, if any, rights, it tenders to the public a form of conmay a telegraph company, by special con tract which, if accepted, places it in the tract, limit or avoid liability for its negli position of an insurer and protects the user geöce, or that of its agents or servants? We | absolutely. Acceptance of tbe more liberal may assume that where there is error in the contract is, in no sense, a sine qua non, but transmission of a telegraphic message, in the the telegraph company limits its liability if absence of evidence to the contrary, the pre the sender fails to avail himself of that form sumption must be that the mistake resulted of contract for transmission under which the from the fault of the telegraph company. It company accepts general liability. Alvey, J., may be stated, at the outset, that the says:12 “The appellant (telegraph company) general, if not universal, form taken by could not, by rules and regulations of its special contracts between telegraph com own making, protect itself against liability panies and their patrons, limiting liability for the consequences of its own willful misfor error or delay in transmission and de conduct, or gross negligence, or any conlivery, is that of stipulations upon the duct inconsistent with good faith. * * * reverse of the blanks furnisbed by such It was bound to use due negligence, but not companies and upon which messages tendered extraordinary care and precaution. The for transmission are required to be written, appellee, by requiring the message to be reor affixed, such stipulations being expressly peated, could have assured himself of its referred to upon the face of the form. It is dispatch and accurate transmission to the held that these stipulations form an integral other end of the line, if the wires were in part of the contract which the sender has working condition; or, by special contract entered into when he subscribed his name to for insurance, could have secured himself his message upon the face of the blank. against all consequences of non-delivery."

There can be no doubt that where a To tbis ruling the Maryland court has asstipulation in a telegraph blank avoids, in sented, holding that such regulations will not general terms, all liability in damages, it is apply and such stipulations will not be void. It would seem to follow that where recognized in cases where no effort has been the stipulations, taken together, have the made by the telegraph company or its agents effect of permitting the telegraph company | to put the message upon its transit.13 In to escape all liability, the special contract, if Texas such stipulations bave been declared contract it may be termed, is equally void. valid, 14 the court regarding them as an inTelegraph companies, however, do not, as a tegral part of the contract between the rule, tender contracts of this nature. They sender and the telegraph company, and in have, in the main, incorporated into their Californial5 the court, while seemingly disblanks a stipulation avoiding liabilty, beyond posed to accept the validity of stipulations the cost to the sender for transmission and of this nature, holds that where the telegraph delivery, unless the message be repeated by company is guilty of gross negligence it is the receiving, to the transmitting office at | liable for the damages sustained, notwithadditional cost to the sender. It may be standing the special contract limiting liasaid that such stipulation is, in general, a bility. It would seem that in these cases a valid condition and forms an integral part of distinction was to be made between messages, the telegraph company's contract to trans- | in regard to which the telegraph company, or mit a dispatch." In no proper sense is a

1098; Birkett v. Teleg. Co. (Mich.), 61 N. W. Rep.

545; McAndrews v. Teleg, Co., 17 C. B. 3. % Bartlett v. Teleg. Co., 62 Me. 221.

12 Teleg. Co. v. Gildersleve, 29 Md. 248. 9 Teleg. Co. v. Carew, 15 Mich. 535, 536.

13 Birney v. Teleg. Co., 18 Md. 341, 358. 10 True v. Teleg. Co., 160 Me. 18; Candee v. Teleg. 14 Teleg. Co. v. Hearn (Tex.), 13 S. W.Rep. 970. Co., 34 Wis. 471; Hibbard v. Teleg. Co., 33 Wis. 564. 15 Redington v. Pac. Postal Teleg. Co., 40 Pac. Rep Il Primrose v. Teleg. Co., 154 U. S. 1, 14 S. C. Rep. 432.

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