Law Commons^™

Specific Performance - Chattel Contracts Performable In Installments

Michigan Law Review

The refusal of a court of equity to decree the performance of a contract relating to personalty is not based on any intrinsic. difference between land and chattels. Any distinction between them is entirely subordinate to the question whether an adequate remedy can be afforded at law. Yet constant repetition has imparted such a degree of rigidity to the rule that courts have been prone to forget the reason on which it rests. Nowhere is this fact more evident than in the field of installment contracts.

The Declaratory Judgment As An Exclusive Or Alternative Remedy, Edwin M. Borchard

Michigan Law Review

In a recent Michigan case the seller of a boiler, claiming a chattel mortgage therein for the unpaid purchase price, brought an action against the person who had bought the boiler at a bankruptcy sale of the property of the original buyer for a declaration that the plaintiff had the right to possession, or in the alternative, that the defendant was under a duty to pay the balance of the original purchase price. The defendant claimed to be the owner free of the mortgage. A majority of the Michigan Supreme Court, on its own motion, for the propriety of the …

What Is A "Contract" Under The Contracts Clause Of The Federal Constitution?, Paul G. Kauper

Michigan Law Review

The case of Coombes v. Getz, recently decided by the United States Supreme Court, raises in a crucial way the question of what is a contract within the meaning of Article I, section 10 of the Constitution, forbidding States to pass laws impairing the obligations of contracts. A provision of the California Constitution in force at the time the plaintiffs brought this action in the state court below made directors of corporations jointly and severally liable to the creditors and stockholders for all moneys embezzled or misappropriated by the officers of the corporation during the term of office of …

Broadening Legal Education, Edgar Noble Durfee

Michigan Law Review

The adoption of the case-method was a wild venture into the unknown, and even now, after a half century of experience, its wisdom is not proved in any strict sense. I remind the reader of this in order that there may be between us a clear understanding that any discussion of legal education moves in the realm of opinion. And there are other difficulties. Legal education is an eminently practical business, a tangle of conflicting factors. Wisdom lies in compromise and patient shaping of details. I shall therefore concern myself not so much with formulation of principles as with details …

The Right To Comment On The Failure Of The Defendant To Testify, Andrew A. Bruce

Michigan Law Review

In 1931 the American Law Institute adopted a resolution to the effect that "The judge, the prosecuting attorney and counsel for the defense may comment upon the fact that the defendant did not testify."

In the same year the American Bar Association resolved: "That by law it should be permitted to the prosecution to comment to the jury on the fact that a defendant did not take the stand as a witness; and to the jury to draw the reasonable inferences."

Assignment Of Money Claims (Particularly Wage Claims) - Restraint On Alienation

Michigan Law Review

If a contract has been performed on one side so that all that remains is an obligation to pay and a right to receive money, can the parties by agreement effectively prevent the assignment of the claim? The Illinois Supreme Court had this question before it for consideration in the case of State Street Furniture Co. v. Armour & Co., where the plaintiff was the assignee of wages due to an employee of the defendant, the employee having agreed not to assign his wages without the written consent of his employer. The court decided that the restrictive agreement had …

Constitutional Law - Due Process And Equal Protection - Right Of Counsel

Michigan Law Review

The Scottsboro cases decided by the Supreme Court at the present term raise several interesting constitutional questions. The judgments were assailed on the ground that they were violative of the due process and equal protection clauses of the Fourteenth Amendment in three respects: (1) that the negroes were tried by juries from which members of their race were systematically excluded; (2) that they were not accorded a fair, impartial and deliberate trial; (3) that due process was denied because the right of counsel, with the usual incidents of consultation and adequate preparation for trial, was lacking. While the Supreme Court …

Libel - Defamatory Statements In Appellate Brief - Publication Of Excerpts By Legal Scholar As Privileged

Michigan Law Review

The right to reputation, at least as far as written defamation is concerned, is recognized as an absolute right, to be invaded at peril. Yet it often becomes necessary in the course of judicial proceedings to consider the character and acts of individuals and to make them the subject of inquiry or comment. On such an occasion the demands of society compel a surrender of the interests of the citizen and require an immunity from prosecution for what would otherwise constitute an actionable wrong.

Trusts - Compromise Agreement As Means Of Terminating Testamentary Spendthrift Trust

Michigan Law Review

In Rose v. Southern Michigan National Bank, the Michigan Supreme Court refused to terminate a spendthrift trust composed of both real and personal property, although to end litigation upon the will all the parties in interest had signed a compromise agreement to terminate the trust according to the Michigan statute. There was no objection as to the fairness of the agreement, upon which ground the court might have refused to sanction the compromise under the statute. The decision seems to have been based upon the theory that to give effect to the compromise agreement would defeat the purpose of …

Bills And Notes - Acceleration Clause As Affecting Negotiability

Michigan Law Review

Defendant was sued on a note containing, among other acceleration clauses, a provision that if any holder deemed himself insecure at any time, the note should become immediately due and payable. Appealing from a summary judgment against him, the defendant contended that the instrument was nonnegotiable. Held, the acceleration provisions in the instrument did not destroy its negotiability. Dart National Bank v. Burton, 258 Mich. 283, 241 N. W. 858 (1932).

Bills And Notes - Promissory Notes - Negotiability At Common Law

Michigan Law Review

Defendant contractors left a check for materialmen in the hands of a third party who appropriated the check to his own use and then, in lieu thereof, gave his own note to the materialmen who endorsed it to a bank and credited the contractors with the amount of the note. In an action by the materialmen against the contractors for services rendered and materials furnished, held, such acceptance and negotiation constituted a payment of the materialmen's claims. Riedman v. Macht, (Ind. App. 1932) 182 N. E. 87.

Bills And Notes - What Constitutes A Reasonable Time In Presenting A Check For Payment

Michigan Law Review

Defendant delivered to the plaintiff, at about 10 o'clock A. M., a check drawn on the B bank. The next morning at 10:30 o'clock the plaintiff's agent went to drawee to cash the check. As there was "a run" being made on the bank that day, the agent was forced to stand in line. After waiting from 10:30 o'clock in the morning to 1 o'clock in the afternoon, he left without cashing the check. The next day the bank failed to open its doors. In an action by the plaintiff to recover the debt covered by the check, the defendant …

Constructive Trusts - Land Purchased By Agent In Violation Of Fiduciary Obligation To Principal - Statute Of Frauds

Michigan Law Review

Plaintiffs employed defendant to negotiate for the purchase of a certain tract of land, defendant to receive a 5% commission if the purchase was made. Defendant contracted with the owner for the purchase of the land in his own name and made the down payment with his own funds. Plaintiffs demanded an assignment of the contract and on defendant's refusal brought suit to compel a conveyance of the property by defendant as trustee. Held, that a constructive trust may be created where an agent purchases with his own money property which he is employed to purchase for his principal, …

Contracts - Anticipatory Breach - Effect Of Election

Michigan Law Review

The plaintiff leased a lot to a development company and the latter agreed to demolish the present buildings and begin the erection of new ones by April 1, 1934. The defendant was surety on a bond executed to insure performance. The development company was adjudged bankrupt and, on February 11, 1931, the trustee expressly repudiated the contract. On February 24 the plaintiff notified the trustee and the bankrupt that he refused to accept the disaffirmance of the contract and would hold them to performance. The plaintiff later brought suit on the theory that the action constituted an acceptance of the …

Contracts - Executed Modification - Consideration

Michigan Law Review

A and B in 1912 entered into a written contract of separation in which B, the wife of A, gave up her marital rights and A promised to pay to her $75 per month thereafter. Six years later B orally agreed to reduce the payments to $25 per month. B accepted the reduced payments for a period of twelve years. B then brought suit for $10,000, asserting that there was no consideration for the modified agreement. Held, that the modified agreement was executed and would not be disturbed for want of consideration. Vigelius v. Vigelius, (Wash. …

Torts - Liability Of Manufacturer To Remote Vendee

Michigan Law Review

In the now famous case of MacPherson v. Buick Motor Company the New York Court of Appeals was faced with the question of the liability of a motor manufacturer to a plaintiff who had purchased a car from a retailer and who had been injured at the time of the coIIapse of a defective wheel. In deciding that such a manufacturer owed a duty to use reasonable care in inspection of the wheels which were to be placed under the assembled car, Justice Cardozo said: "We hold, then, that the principle of Thomas v. Winchester is not limited to poisons, …

Criminal Law And Procedure - Preliminary Examination

Michigan Law Review

A statute provided: "No information shall be filed against any person for any offense until such person shall have had a preliminary examination therefor as provided by law before a magistrate, unless such person shall waive such right. . . . " The defendant was complained against before a magistrate on a charge of grand. larceny. The magistrate refused to hold the accused on such charge but held him to answer on a charge of receiving stolen property. The prosecutor filed an information charging grand larceny. The defendant moved to quash the information on the ground that he had had …

Insurance - Fire Insurance - Jewelry Thrown Into Furnace

Michigan Law Review

Plaintiff had a fire insurance policy covering household goods, including jewelry. Plaintiff's servant, not realizing that an envelope contained two rings, threw the envelope into a waste basket, the contents of which were later thrown into the furnace. In a suit upon the policy a judgment was directed against the defendant. On appeal, it was held, two justices dissenting, that the loss was not covered by the policy because the fire was "friendly" rather than "hostile." Harter v. Phoenix Ins. Co., 257 Mich. 163, 241 N. W. 196 (1932).

Practice And Procedure - Substituted Service Of Process

Michigan Law Review

A statute provided for substituted service of process on a defendant "by leaving a copy thereof at his usual place of residence with some member of his family over fourteen years of age." Held, a maid with no definite term of employment is not a member of the family upon whom substituted service may be made under the provisions of the statute. Thompson v. Butler, (Iowa 1932) 243 N. W. 164.

Torts - Civil Damage Statutes - Proximate Cause

Michigan Law Review

Defendant Campion purchased "moonshine" liquor from defendants Wrabek and wife, and gave three drinks to plaintiff's husband who shortly thereafter became unconscious, was exposed to sub-zero weather on the street during the night, and froze his hands and feet which, as a result, were amputated. Plaintiff sued for loss of support under sec. 3239 Mason's Minn. Statutes 1927 (the "civil damage" act) which provided for such action by the wife against "any person, who shall by illegally selling, bartering, or giving intoxicating liquors, have caused the intoxication of such person." On an appeal from the court's judgment for defendants Wrabek …

Torts - Negligence -The Duty Element

Michigan Law Review

Plaintiff was the driver of a large motor coach which had skidded on an icy road and knocked down a telephone post, causing a wire, strung thereon, to sag across the road. Perceiving that defendant's approaching truck would run into the wire, plaintiff signalled defendant to stop, but defendant did not stop until his truck had struck the wire, pulling the pole over so that it hit the plaintiff. Held, one judge dissenting, that the question of defendant's negligence was for the jury. Kennedy v. Scott Transportation Co., (C. C. A. 2d, 1932) 60 F. (2d) 717.

Congressional Redistricting And The Constitution, Harold M. Bowman

Michigan Law Review

Is congressional redistricting by state legislatures an exercise of the lawmaking function, subject to the governor's veto power? Is fairness in such redistricting secured today either by federal statute or by the federal Constitution? Of these two questions, posed by recent events, the first has been completely answered; the second has been answered in part only -- breeding in its answer new and troublesome problems.

Constitutional Law - Interstate Commerce - Tax On Gasoline Imported From Another State And Stored For Local Consumption

Michigan Law Review

The South Carolina Tax Act of 1930 levied a "license" tax of six cents per gallon on all persons who imported gasoline into South Carolina and kept it in storage there for purposes of local consumption, provided such gasoline had not already been subjected to the payment of license taxes upon the sale thereof by local dealers according to the gasoline tax acts of 1925 and 1929. The plaintiff imported gasoline from dealers outside the State, storing the gasoline in its tanks and using it for the purposes of its bleachery business. Held, that the 1930 Tax Act was …

Suretyship - Interpretation Of Surety Contract

Michigan Law Review

A bank sued to recover on a surety bond for loss sustained because of fraud practised by one of the vice-presidents on a customer. The bond provided that performance was subject to certain conditions and limitations, among which was one to the effect that the bank should notify the surety within ninety days of the default. The surety was not notified until the trial four years later. Held, notification is a condition precedent to liability, even though the surety was not prejudiced by lack of notice. National City Bank v. National Security Company, (C. C. A. 6th, 1932) …

Quasi-Contracts - Statute Of Frauds - Right To Restitution Of Money Paid On Oral Land Contract

Michigan Law Review

Plaintiff paid $1,000 on an oral agreement for the purchase of land. Defendant admitted receipt of the money but alleged he was ready, able, and willing to comply with the terms of the agreement and convey the land. Held, that since the contract was void under the statute of frauds, plaintiff might recover. Reedy v. Ebsen, (S. D. 1932) 242 N. W. 592.

Torts - Due Care By Rescuer

Michigan Law Review

Plaintiff, a woman about sixty years of age, described as "considerably overweight for her size and age," and her companion were swimming in a club pool. The companion went beyond her depth, called for help, and plaintiff went to her rescue. The lifeguard, believing plaintiff to be in difficulty, went to her rescue and, in pulling her over the bank of the pool, injured her arm, side, and back. From an award in favor of the plaintiff for $7,500, defendant, the lifeguard's employer, appealed. Held, the lifeguard owed the patron the duty of exercising ordinary care; judgment for plaintiff …

Burden Of Proof In Rate Cases Involving Inter-Corporate Charges, William E. Treadway

Michigan Law Review

The United States Supreme Court has held repeatedly that dealings between intercorporately related companies should be scrutinized closely to prevent any unfair advantage being taken of a subsidiary public utility company by a dominant organization through an exercise of the control inherent in capital stock ownership.1 Yet in an opinion written by Mr. Justice McReynolds in 1923, the court laid down a rule for utilities commissions in rate cases involving intercorporate service-contract charges which, if strictly adhered to, would have sounded the death knell for effective commission regulation.

Legislative Committees And Commissions In The United States, John A. Fairlie

Michigan Law Review

In the Congress of the United States and the legislatures of the forty-eight states committees composed of a limited number of members play an important part and to a large extent the predominant part, in legislation both by making preliminary inquiries and by planning the detailed provisions of measures. While important changes are at times made in the general sessions, the final result is in a large measure determined by the several committees. In most American legislative bodies there are numerous committees of various kinds, such as select committees for limited special purposes, standing committees regularly appointed, conference committees, and …

Comment Upon Failure Of Accused To Testify, Robert P. Reeder

Michigan Law Review

Last year the American Law Institute and the American Bar Association adopted resolutions declaring that when the defendant in a criminal trial does not testify the prosecution should be permitted to comment upon that fact. They urged the overthrow of a rule of law which have prevailed in the federal courts ever since accused persons were first permitted to give testimony, over fifty years ago, and which has governed the courts of forty-two out of the forty-eight states. The discussions which preceded the adoption of the resolutions have been published. In them the advocates of the change do not show …

Non-Assignment Provisions In Land Contracts, Edwin C. Goddard

Michigan Law Review

Many a sale of real estate is made to a purchaser who lacks the ready cash to pay the price. A deed of conveyance may be given with a mortgage back for the unpaid portion of the purchase price. But more and more in recent years the vendor has given a contract to convey conditioned upon the making of periodical payments of stipulated amounts, a deed to be given when the whole or a stated portion of the purchase price has been paid. The initial payment may be very small, and not infrequently the periodic payments are little more than …