Farmers' Handy Wagon Co. v. Casualty Co. of 58. Warranties. 59. Intoxicating Liquors - 60. Interstate Commerce.-Charter permitting city to license innkeepers and retailers of liquors, etc., and making it unlawful to sell liquors in city in less than five gallons without license, does not authorize ordinance making it unlawful for common carrier to deliver in city any liquors consigned to club, lodge, or other association.-West Jersey & S. R. Co. v. City of Millville, N. J., 103 Atl. 245. 61. Ordinance. of lading to be open to inspection of police offiOrdinance requiring bills cers and requiring carrier to keep record of consignments of liquors into city to be open to inspection, etc., interstate as to carrier engaged in Commerce Act and must be set aside.-West conflicts with Interstate Jersey & S. R. Co. v. City of Millville, N. J., 103 Atl. 245. commerce to 62.- -Sale.-Where one person delivers another intoxicants in consideration of a sum of money then paid, the transaction constitutes a sale, and it is immaterial that purchaser subsequently delivers portion of such liquors to others, who had theretofore contributed to funds with which liquors were purchased; seller being ignorant of fact that liquors were to be subsequently delivered to others.-Darneal v. State, Okla., 171 Pac. 737. 63. Libel and Slander--Advertisement.-Under Rem. Code 1915, §§ 2424, 2425, defining libel. paid advertisement stating that candidate for county superintendent of schools had campaign of abuse and slander, etc., waged belous per se, in view of section 4964, making was lifalse assertions in elections criminal, since such advertisement charged Grays Harbor Pub. Co., Wash., 171 Pac. 1026. a crime. McKillip v. 64. Pleading and which alleged publication of a statement that Practice. Complaint plaintiff had the same standing as another who had been charged with being a thief and a rogue and a dishonest person stated a cause of action. McCue Fargo, N. D., 167 N. W. 225. v. Equity Co-op. Pub. Co. of 65. Livery Stable and Garage Keepers-Lien. -Where contract for storing, etc., of infant's automobile had no binding force, and imposed on him no liability to pay, garage keeper had no enforceable lien on car by force of Laws 1915, c. 312.-La Rose v. Nichols, N. J., 103 Atl. 390. 66. Master and Servant-Accident.-In action for death of farm hand who left on daily trip to city with truck and mule team, and who eight or nine hours later was found crushed between seat of wagon and roof of shed, it could be found even though deceased was asleep, that death was caused by accident arising out of and in the course of his employment.-Dixon v. Andrews, N. J., 103 Atl. 410. 67. Clerical Work.-Under Laws 1913, c. 602, plaintiff, employed as ticket seller in moving picture house, was employed in "clerical work" within an order of Industrial Commission fixing $10 as minimum wage in such employment, and, under section 18. $10 per week of 48 hours.-Larsen v. Rice, Wash., was entitled to recover 171 Pac. 1037. 68. -Course of Employment.-Employe injured while repairing clamshell dredge which his employer intended to sell was not injured in course of his employer's business of leasing road-making machines.-Stansbury v. Industrial Acc. Commission of California, Cal., 171 Pac. 698. 17 70. Ratification. wrongful and oppressive conduct by the prin- Ratification of agent's cipal may be shown by the fact that the servant is continued in the employment of the principal after notice of the commission of the willful wrong.-Pullman Co. v. Alexander, Miss., 78 So. 293. 71. Workmen's Compensation Act.-Where mining partnership, sending one of its members to examine partnership's mine, agreed to pay him expenses and $5 a day for the trip, and he was killed at mine by machinery operated by firm, his widow was not entitled to compensation, under Workmen's Compensation Act, 14; he not being employe.-Cooper v. Industrial Acc. Commission of California, Cal., 171 Pac. 684. 72.-Workman's Compensation Act.-Death of night watchman from gas while intoxicated and sleeping in washroom of plant in neglect of duty, held not such accidental death as was reasonably probable incident of employment, giving widow right to compensation under Compensation Act.-John A. Roebling's Sons Co. v. Industrial Accident Commission, Cal., 171 Pac. 987. 73. Mortgages-Partition. having undivided interest mortgaged it, and Where one heir, then acquired other undivided interests and the estate was partitioned, and she mortgaged the lands partitioned to her and deeded parts of them "free of incumbrance," and the mortgagee of the undivided interest sought foreclosure, the original mortgaged interest, as represented in lots partitioned to satisfy it, should be first foreclosed, and those lots which the mortgagee had sold to strangers without notice could be reached only for a deficiency.-Thomaston Sav. Bank v. Hurley, Me., 103 Atl. 234. 74. Municipal Corporations-Defective Street. --Where there was sidewalk in a dense business district, and the a defective trapdoor in a door was smooth and springy, indicating improper construction, and the surface was very smooth, suggesting long use, and the city offered no evidence on the question of notice, the trial court was warranted in imputing to the city knowledge of the defect.-Peterson v. City of Seattle, Wash., 171 Pac. 657. mem 75.-Ordinance.-Where, under ordinances accepting gift to erect buildings in city park, part of property of city was to be used in erection, held plaintiffs, citizens, taxpayers, and bers of board of park commissioners could enjoin defendant commissioners appointed under such ordinance to supervise erection and maintenance from carrying out provisions of ordinances, and from interfering with duties of plaintiffs as park commissioners.-O'Melveney v. Griffith, Cal., 171 Pac. 934. 76. Regulation.-Owners and operators of hacks and cabs have no property rights in the streets superior to regulations adopted under the police power, and provided by statute for the good and welfare of a city.-Swann v. City of Baltimore, Md., 103 Atl. 441. 77. Reservation. One buying lots with reference to a plat designating certain squares as parks and public market places has private rights therein in the nature of easements, and where the vendor subsequently deeded them to the city, with the reservation that they be used for such purposes, the Legislature had no power to authorize the city mercial purposes, and to sell them for comunder Act April 19, 1915, (P. L. p. 642), nor they could not be sold Act March 31, 1890 (P. L. p. 530).-Bozarth v. Egg Harbor City, N. J., 103 Atl. 405. 78. -Unilateral Contract.-Where contractor agreed to furnish materials and construct pavement, and to pay for stone on the drive which belonged to the city, for which work the city was to pay a certain amount, the contract was not unilateral, but Elliott Contracting Co. was mutually obligatory.171 Pac. 760. v. City of Portland, Ore., con 79. Negligence Nuisance. Company, tracting to sprinkle highway with oil in such excessive quantity as to create a public nuisance, owed no duty to bicyclist who was thrown and injured on highway, and was not liable to him for performance of contract; the negligence charged being non-performance. - Lydecker v. Board of Chosen Freeholders of Passaic County, N. J., 103 Atl. 251. 80. Parent and Child-Emancipation.-Where the father of an infant plaintiff allowed her to use her earnings for purchase of piano, and after avoidance of contract prosecuted case as her next friend, such facts are evidence of her emancipation.-Story & Clark Piano Co. v. Davy, Ind., 119 N. E. 177. 81. Payment-Embezzlement.-Where solicitor for mortgagees foreclosing a mortgage was also employed by a purchaser of the equity of redemption, who gave such solicitor money to pay off the liens, and the solicitor embezzeled the money, the money was stolen from the purchaser, and not the mortgagees.-Fountain Carlton, N. J., 103 Atl. 387. Negligence. V. If 82. Railroads Concurring negligent speed of train was maintained by express direction of defendant employer, it would be negligent, and its negligence would concur with that of defendant motorneer, who obeyed instruction, and the right to recover against defendants would be joint.-Benson v. Southern Pac. Co., Cal., 171 Pac. 948. Consideration 83. Release Consideration. for a release may be some detriment to the releasee, or some benefit to the releasor from the releasee or a third person, and where it is of such character as to require the exercise of judgment to determine its value, and the parties have determined such value, the courts will not review their decision Gates v. Fauvre, Ind., 119 N. E. 155. 84. Railroad-Crossing.-Laws Minn. 1913, c. 78, § 1 (Gen. St. 1913, § 4256), and making it duty of every railroad company whenever its right of way crosses a public street to construct a suitable sidewalk, is not subject to attack under Const. U. S. Amend. 14. as denying due process or equal protection of law to railroad companies.-Great Northern Ry. Co. v. State of Minnesota ex rel. Village of Clara City, U. S. S. C., 38 S. Ct. 346. 85. Removal of Causes-Government Control. -To remove from state to federal court action on ground it arose under Constitution and laws of United States, such fact must appear from plaintiff's initial pleading; and, where it did not, cause cannot be removed, though action was against railroad company, and President, under Act Aug. 29, 1916, had taken possession of and assumed control of railroads before initiation of action.Muir v. Louisville & N. R. Co., U. S. D. C., 247 Fed. 888. 86. Railroads-Negligence. In an action for personal injuries in being struck by a railroad train at night at a crossing, where plaintiff knew the train was approaching, but thought it was a mile away, defendant's negligence in operating the train with a defective headlight at great speed without sounding the whistle or ringing the bell, and not plaintiff's contributory negligence, was the proximate cause of the injury.Alabama & V. Ry. Co. v. McGee, Miss., 78 So. 296. 87. Removal of Offices-Sale of property and franchises of Texas railroad company under mortgage foreclosure proceedings had in federal court did not free property in hands of purchaser from burden of state laws forbidding removal of general offices, machine shops, and roundhouses from point at which they were located.-International & G. N. Ry. Co. v. Anderson County, U. S. S. C., 38 S. Ct. 370. failure to pay when part delivery has been made does not excuse seller from completing delivery, where no time for payment is stated in contract.-Kelly Const. Co. v. Hackensack Brick Co., N. J., 103 Atl. 417. 90. -Exchange and Discount.-If defendant buyer was to pay for timber in Australia and not in American money and stand expenses of making such payments, loss of exchange and discount on payments made must be borne by it. -E. F. Broad, Limited, v. Erickson Const. Co., Wash., 171 Pac. 1025. 92. Specific Performance Damages. Where plaintiffs granted right of way in consideration of a railway's agreement to build dike, plaintiffs were not entitled to specific performance, since they could have had another build the dike, and could recover as damages the cost thereof. Cartwright v. Oregon Electric Ry. Co., Ore., 171 Pac. 1055. 93.- Evidence.-Where plaintiff's intestate contracted to convey land to defendant which was chiefly valuable for its timber, which was destroyed by forest fire, no payments having been made on the price and defendant never having had possession, plaintiff, as administrator, could not have specific performance.-Elv. Stephens-Russell Co., Ore., 171 Pac. more 763. 94. States Jurisdiction.-Judgment in favor of commonwealth of Virginia against state of West Virginia, requiring payment of money, is not open to attack on ground that original jurisdiction, conferred on Supreme Court by Constitution, did not embrace right of one state to recover judgment in mere action for debt against another, as controversy arose out of carving of West Virginia from Virginia, etc.-Commonwealth of Virginia v. State of West Virginia, U. S. S. C., 38 S. Ct. 400. 95. Trusts-Employment of Counsel.-Where trustee had conducted estate for 25 years with apparent satisfaction, when he was suddenly confronted by disconcerting objections to whole of account, he was justified in calling in counsel, and, having vindicated account, objectors should bear burden, and allowance of counsel fee is proper.-In re Starr, N. J., 103 Atl. 392. 96. Trust Relation.-Under trust agreement whereby defendant trustee was to convey land when plaintiff paid amount due trustee, trust relation ceased when, having procured judgment against plaintiff and wife, defendant caused an execution to be levied on land to satisfy judgment.-Bashore v. Lamberson, Cal., 171 Pac. 968. 97. Wills-Construction.-In Connecticut, in absence of express direction, or other indication of intent to contrary, phrase in will, "dying without issue," or equivalent, means dying without issue living at such death.-Meriden Trust & Safe Deposit Co. v. Squire, Conn., 103 Atl. 269. 98. -Evidence.-Evidence that testator was opposed to the marriage of one of his daughters, which occurred after execution of will, was admissible; testator having left his property to nephews instead of his next of kin, consisting of such daughter and her sister, contestants of the will.-In re Allen's Estate, Cal., 171 Pac. 686. 99. Heirs.-Where testator devises realty to son for life and to his heirs, and in another provision uses the word "heirs" in sense of "children," the word "heirs" in devise should be held to mean "children," and not to designate any one capable of inheriting. Cultice v. Mills, Ohio, 119 N. E. 200. 100. -Testamentary Disposition.-Where one placed money in a bank to be payable to either herself or another or to the survivor for his sole benefit, there was not a testamentary disposition of the property.-Erwin v. Felter, Ill., 118 N. E. 1010. CENTRAL LAW JOURNAL Central Law Journal. ST. LOUIS, MO., JULY 5, 1918. THE PRINCIPLE IN FRATERNAL INSUR Since it was held in Supreme Council Royal Arcanum v. Green, 237 U. S. 531, L. R. A. 1916 A. 771, that the interpretation put upon a charter of a fraternal society by the state of its domicile is the principle that must be accepted in whatsoever state it does business, there have appeared rulings by U. S. Supreme Court in Supreme Lodge Knights of Pythias v. Mims, 211 U. S. 574, L. R. A. 1916, F. 919 and Sup. Lodge Knights of Pythias v. Smyth, 245 U. S. 594. A late case by the Supreme Court of North Carolina, applies the rulings in the above cases to Hollingsworth v. Sup. Council Royal Arcanum, 96 S. E. 81. The North Carolina Court holds, that "as there is no statute of this state" prohibiting increase in assessments by a fraternal society, this leaves construction. put by the courts of the domicile of such an organization to be observed under the faith and credit clause of the constitution. The Green case ascertained what Massachusetts (the home state of the association) decided by referring to Reynolds v. Royal Arcanum, 192 Mass. 150, 7 L. R. A. (N. S.) 1154, 7 Ann. Cas. 776, and the view there taken has later been approved in Massachusetts in several cases, running from Hickey v: Baine, 195 Mass. 446 down to Ulman v. Golden Cross, 220 Mass. 442. The Reynolds case declared what were the duties and liabilities of members organized under statute providing for fraternal societies. In effect it was there held. that such societies and their members stand precisely in the attitude of individuals contracting inter sese with full power 19 at all times to change the original terms expressed in constitutions and by-laws, as might be deemed proper, the members and the societies to be represented as their charters and constitutions and by-laws provide. In this way it is readily seen that a policy, or benefit certificate, as it is usually denominated, is like any contract between individuals. Parties competent to contract in limine, remain competent to amend their contracts at all times. There is not, and cannot be, any status between them, that has in it anything of a vested interest not subject to be defeated by voluntary agreement afterwards, that is to say, if there is any consideration for any change in the original agreement. This consideration may well be conceived to exist in changes directed to preserving the permanence and strength of the mutual relations entered into at the start. this stability is threatened, there ought to If be something in the compact making it something else, than a rope of sand that is binding. Justice Holmes in the Mims case, supra, Thus the Justice says: "Persons who tribution. *** The essence of the arrangement was that the members took the risk of events." It is easily understood, that if a few individuals get together and agree to contribute to a certain purpose, each to bear his proportionate part, if one incurs responsibility to a third person in acting for the aggregation, he ought to be reimbursed and may have an action therefor. That one agrees to pass around the hat so as to defray the obligation does not take away his right to reimbursement. The Hollingsworth case approves this reasoning by Justice Holmes saying that "the provision as to permanency of the rate charged at entrance of a member is but a rule or regulation, subject to change as the necessities of the order might require. If plaintiff had bestowed even slight care upon his interests and informed himself, when he had ample opportunity to do so, he would have discovered what was the meaning of the clause as to the rates. It is too late after so many years have elapsed, even if there was any fraud or mistake, to ask for relief at the hands of a court of equity." Possibly it might be true that a by-law proclaimed by a society of this kind might have some feature about it that would create an estoppel, but, when we regard the essence of these contracts and especially the fact that the only real contract that can legally be entered into, is one of equality of burden by members, any other agreement is ultra vires, so far as such a society is concerned, and any agreement for members to substitute their individual responsibility ought to be so unequivocal as to admit of no possible doubt. It was also said in the Hollingsworth case that the principle of equality of burden is not possible, "if a benefit certificate issued to a citizen of one state should be entitled to a more favorable distinction than a similar certificate issued to the citizen of another state," a statement amounting on its face to a truism. Federal rul ing under the faith and credit clause protects this principle; inherent justice ought to preserve it against state ruling in the home states of fraternal societies. NOTES OF IMPORTANT DECISIONS. PLEADING AND PRACTICE - RULINGS ON THEORY OF THE CASE AS TRIED.-It is not difficult to determine that the prevailing and dissenting opinions in a recent decision by Circuit Court of Appeals proceed upon rulings made upon the case as tried in the court below and not upon pleadings in the case. Corden Co. v. Houck Mfg. Co., 249 Fed. 285. There is something of comment in the former opinion in saying that "the difficulty with this case is that the pleadings are wholly irresponsive to the issues actually made. The case was not tried on the pleadings as written and served, but upon what amounted to oral pleadings made shortly after the trial began, and upon the very proper insistence of the trial court that the issue be simplified. * * * The trial court would have been justified in withdrawing a juror and compelling an amendment in order that defendant might plead according to its statement in open court, and in a manner technically justifying the proof it proceeded to offer." But the trial court, not doing this, disposed of the case as it was being tried on mere oral consent in open court and in doing this announced what was held to be error on the question of burden of proof. Reversal was adjudged for this error and the case was remanded without any direction to perfect the pleadings. It was said: "The case must be treated on this record as if the pleadings had been regular," and it appears that a new trial was directed upon irregular pleading, that is upon written and upon oral pleading, the latter to be preserved, we will suppose, in the record as it has been made. The dissenting opinion accepts the record as made, but differs from the majority as to the application of the rule of burden of proof. On the whole, therefore, it is to be thought, that the Court of Appeals concedes that there is power in a court of original jurisdiction to entertain a cause on oral statements acquiesced in by parties or their counsel. Furthermore, it may be thought, as this cause suggests that it was in a federal district court by reason of CENTRAL LAW JOURNAL diversity of citizenship, a different cause might be disposed of than that transferred under the removal statute. No allusion, however, to this feature is made in either of the opinions. It does appear, however, very clearly that the Court of Appeals decided a cause tried by the court upon consent without any sufficient pleadings, and upon the theory of the case as tried, and the rights of parties were passed upon in disregard of the pleadings. In 86 Cent. L. J. 80, a very interesting leading article appears under the title, "Bacon's Prophecy-The Chaos of Cases," and there it is contended that "pleadings are jurisdictional and that a judgment not based on the pleadings is void," and many cases are cited to this view. The argument, however, goes too far, for by the same token, if pleadings are jurisdictional, then they must be such at the time of the bringing of suit-pleadings as filed in limine. If jurisdiction is to attach at all, it must be as to a controversy at the time the jurisdiction is invoked. Amendment, therefore, becomes impossible, at least, so far as substance is concerned. As to mere matter of form this is different. By amendment one could not, even by consent, change subject matter of controversy, or form of action, say from tort to contract. But if the Court of Appeals is right in adjudicating the controversy before it on writ of error, then there was absolute right for par ties to consent and have a trial, and, respectfully we suggest, the trial court would not have been "justified in withdrawing a juror and compelling an amendment" of the pleadings. If the case could be entertained at all, it was the duty of the trial court to entertain it. BANKRUPTCY-RIGHT OF SELL PROPERTY FREE OF LIENS.-It was COURT ΤΟ held by Circuit Court of Appeals for Second Circuit, that a court of bankruptcy has the right to sell property free of liens and to transfer the latter to proceeds of sale. Re Franklin Brewing Co., 249 Fed. 333. Other decisions hold, as for example, re Progressive Wall Paper Corp., 122 Fed. 87, that this is true as to sale of real estate, which is incumbered, though the bankruptcy statute gives no express authority so to do. In the opinion in Franklin Brewing Co. supra, it is said that: "Congress, in the exercise of its constitutional right to establish systems 21 of bankruptcy, may, and indeed always does, impair the obligation of contracts, a doctrine going much further than this point requires. Mitchell v. Clark, 110 U. S. 1. c. 643; Canada, etc., Ry, v. Gebhard, 109 U. S. 1. c. 539. Therefore, we find in the order directing sale free of lien nothing unlawful, nor any abuse of discretion amounting to error of law. There was a drastic exercise of authority, but no intimation is intended that circumstances might not justify it as matter of discretion." Allusion then is made to a case as supporting the proposition that it is legal. error to order a sale, unless there is reasonable expectation of a surplus over lien, but the opinion says: "No such limitation can be found in them," but on the contrary it has been held that the jurisdictional power to order a sale exists in bankruptcy without a court "first determining either the validity or amount of the lien." No federal Supreme Court cases are cited. Some state courts have decided in the same way as do these cases. Vanderbilt Realty Imp. Co., 140 N. Y. S. 1008, Eq. Trust Co. v. 155 App. Div. 723; Shinn v. Kemp (Wash), 131 Pac. 822; Toler v. Crowder, Ark., 192 S. W. 905. In one case it has been ruled that a mortgagee should be given his day in court before any order is made to sell incumbered property free from liens. In re Stewart, 193 Fed. 791. Does the power of Congress to enact a bankruptcy statute and thus impair the obligation of contracts, either confer the right to sell property that is incumbered free of liens, and, if it does, must not court, as vested with administrative power to enforce such a statute, be specifically given the power to make orders for such a sale? It seems to us to be a matter of grave doubt whether Congress has such power. The proposition of impairing the obligation of contracts is only as to those contracts between debtor and creditor covered by the statute itself. It does not cover contracts outside of that act, and the only reason the lien is preserved is because it is upon a contract lying outside of the act. Secondly, even if this be not strictly true, but only so because of exception made in the act itself, yet the court must give force to the exception as it appears in the statute. the exception is in explicit, though general, If terms, yet it is to be enforced, ceptions are enforced, on property covered by lien to become subject namely strictly. as OX |