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Front Matter, Michigan Law Review

Michigan Law Review

Front Matter for Volume 34, Issue 5 of Michigan Law Review

The Corporate Entity As A Solvent Of Legal Problems, Elvin R. Latty

Michigan Law Review

If a layman were to ask a lawyer what is the reason that a stockholder is ordinarily not liable for his corporation's debts or that a deed to corporate property by the sole stockholder in his own name is not a flawless conveyance, the answer the layman would get would be: a corporation is a wholly different person from its stockholders-it is an entity separate and distinct from them. That answer reveals the traditional approach to scores of problems in corporation law, an approach which, it is submitted, can lead the incautious into considerable trouble.

The Federal Spending Power And State Rights, John W. Holmes

Michigan Law Review

The cry for constitutional change, that dwindled to a small voice with the repeal of Prohibition, has risen to a new pitch following decapitation of the AAA by the United States Supreme Court in United States v. Butler. Burgeoning in Congress is a portentous, if unorganized, attack upon the Supreme Court's power of judicial review.

It seems timely, therefore, to inquire how far the current conception of the Supreme Court as an obstacle to the exercise of legislative power by the central government is justified, and to canvass the extent of the need, if any, for curtailment of the …

Congress And The Appellate Jurisdiction Of The Supreme Court, Ralph R. Martig

Michigan Law Review

A democratic government such as ours, based upon the theory of popular sovereignty, presents many curious political phenomena. For example: in order to insure a proper balance of the powers, it has been necessary for the Supreme Court to assume the onerous task of passing upon the constitutionality of congressional legislation. It is unfortunate, but necessary, that the Court be obliged to exercise this power of judicial review at a time when the entire country is suffering from the effects of a severe and sustained economic depression. It is unfortunate, too, that the legislation under judicial examination should involve questions …

Book Notes, Michigan Law Review

Michigan Law Review

This department undertakes to list and, when possible, describe briefly current books on law and matters closely related thereto.

Contracts-Effect Of A Stipulation Denying Legal Effect In An Employer's Voluntary Pension, Bonus Or Death Benefit Plan, Grover C. Grismore

Michigan Law Review

It has generally been supposed that where two persons go through the form of offer and acceptance but at the same time mutually agree that their undertakings shall not be legally obligatory, they are not contractually bound. In fact, it has frequently been asserted that the intent to have legal obligation must appear affirmatively before a contract can be found to exist. It may be doubted whether this is so, since it is clear from the decided cases that no showing of such an intention is ever required. The intention to have a contract is invariably assumed to exist in …

Unforgetable Knowledge, Maurice H. Merrill

Michigan Law Review

In another article, the writer had occasion to analyze the concept of notice. He there called attention to the fact that in some instances the existence of notice depends upon awareness by the person to be charged, either of the ultimate facts or of circumstances placing him upon inquiry thereof, while in other cases notice exists entirely independent of such awareness. To characterize notice of the first class he suggested the term "cognitive notice," applying to the latter the designation "absolute notice."

Unfair Trade-Right Of Privacy-Right Of Manufacturer Who Has Contracted For Use Of Celebrity's Name To Injunction Against Competitor Using Such Name

Michigan Law Review

Plaintiff, a baseball bat manufacturer, had obtained by contract with famous ball players a grant of the exclusive right to use their autographs on the style bats which the plaintiff company had developed for them. Defendant, a competing bat manufacturer, made bats in these same unpatented shapes and to designate the style of the bats placed the respective players' surnames on them in block letters. Plaintiff seeks to enjoin this practice of the defendant on the theory: (1) of unfair competition, and (2) of protection of the property right which the ball players had in the use of their names. …

What Should The American Law Institute Do?, Hessel E. Yntema

Michigan Law Review

It will generally be agreed, I believe, that the creation of the American Law Institute in 1923 was one of the most hopeful events in the recent legal history of this country. The plan for the Institute, as formulated in the impressive report which motivated its establishment, was well-conceived, broad-visioned, and based upon a comprehensive analysis of the chief defects in the legal system of the United States. This plan was significant in at least three important respects. In the first place, it defined an ambitious and, in some respects, a unique task for the Institute to accomplish; the report …

Retail Responsibility And Judicial Law Making, John Barker Waite

Michigan Law Review

When the corner grocer sells a can of beans and a peck of fresh spinach, does he make himself responsible for the contents of the can, or acquire liability because of a green worm buried deep in the leaves?

Future Interests - Effect Of Eminent Domain Proceedings

Michigan Law Review

This study is concerned with the effect of condemnation proceedings upon future interests. The problems which arise are chiefly whether the owner of a future interest has such an interest in land as to be awarded a share of the fund given as compensation for the land, and if he does have such an interest as to be awarded a share, how it will be determined or apportioned to him and at what time. The first part of the study is a consideration of the question: what types of future interests are compensable? The second part involves an examination of …

Sales - Status Of Title-Retaining Instruments As Against Third Persons

Michigan Law Review

The exploitation of the legal concept of divided property interests in chattels by ingenious draftsman-lawyers has resulted in the variety of title-retaining instruments commonly used today in the creation of vendor-vendee relationships. Among the more familiar forms may be mentioned the conditional sale, bailment lease, chattel mortgage, and trust receipt. The chief motive of the seller in resorting to these devices seems to lie in the belief that the buyer is a poor credit risk, and the particular instrument which a seller will employ in a given situation will depend largely upon the relative legal advantages which he seeks to …

Trusts - Duration Of An Indestructible Trust

Michigan Law Review

The celebrated case of Claflin v. Claflin left in its wake a number of novel legal problems, some of which have been at best only partially resolved. One of the most perplexing is that of the duration of the so-called "indestructible trust." Once such an "indestructible trust" is created, how long may it be permitted to endure? If an attempt is made to attain excessive duration, what penalty attaches? What disposition will be made of the legal and equitable estates?

Corporations-Disregard Of Separate Entities-Subsidiary Corporation An Instrumentality Of The Parent

Michigan Law Review

Defendant corporation had an excess of assets over liabilities, but its ratio of current assets to current liabilities had declined below the then normal banking credit requirement of two to one. In order to avoid acknowledgment of commercial insolvency due to inability to meet obligations maturing in the near future, defendant organized a subsidiary corporation to take over the sales end of the enterprise, transferring to the subsidiary sufficient current assets to give it the required banking ratio with regard to the liabilities assumed by the subsidiary consisting of bank obligations and some of the current bills payable of the …

Equity-Patent Infringement-Advantages Of Declaratory Judgment Over Injuction Relief

Michigan Law Review

Defendant had patented a certain seam used in garment-making and also the means for manufacturing it. Plaintiff claimed that this patent was void because anticipated by his own practice. Under this claim plaintiff continued to manufacture the type of seam in question and to sell garments in which it was used. Defendant thereupon sent notices both to plaintiff and to his customers threatening suit for infringement. Plaintiff sought a decree under the Declaratory Judgment Act to determine whether the patent was valid. Defendant moved to dismiss the action. Held, motion denied; a declaratory judgment is an appropriate proceeding for …

Municipal Corporations-Standards Required In Licensing Ordinances

Michigan Law Review

Defendant appealed from conviction for operating a used auto business without obtaining a license for such business under a city ordinance requiring same to be granted by the city commission if in its opinion applicant was a proper and suitable person, the place to be used was proper, having in mind the nature and character of the business and possibility of commission of crime, and the sanitary facilities thereon were proper. There was no specific legislative grant for passage of such ordinance. Defendant's application was rejected by the commission mainly because of lack of proper sanitary facilities. Held, standards …

Trade-Marks--Unfair Competition--Right Of Exclusive Selling Agent

Michigan Law Review

Plaintiff corporation is a retailer and importer of denture -blanks and is the exclusive American selling agent of the German company which makes them. The blanks are stamped with the trade-mark '"Heckolith," which is registered by the German maker in Germany and in the United States. The plaintiff, after putting the blanks through a secret aging process, places them on the market in distinctive boxes, which it marks with the word, "Hecolite," the Anglicized form of the German trade-mark. The plaintiff registered the mark "Hecolite" as his own, and also the mark "Heckolith," after a purported assignment of the mark …

Trusts-Effect Of Gift To Executor For "Charity And Other Worthy Objects"

Michigan Law Review

A testator directed his executor to sell all his assets within five years and to distribute the proceeds to "such charities and worthy objects" as the executor and the testator's sister should determine, "remembering . . . the City of Fort Worth . . . , the City of Vancouver . . . , Parker County, in Texas, and England, places to which I have become attached." The executor proceeded to administer the estate and gave some of it to the Methodist Episcopal Bishop of Texas for the use of his church. The attorney general of Texas then filed a …

Book Notes, Michigan Law Review

Michigan Law Review

This department undertakes to list and, when possible, describe briefly current books on law and matters closely related thereto.

Eminent Domain-Validity Of State Statute

Michigan Law Review

As upon certiorari, the New Mexico Supreme Court considered the question, whether it is "within legislative competence to declare a public use in the industry of coal mining, so as to permit taking private property in aid of it." Plaintiff had obtained a judgment of condemnation, and defendant attacked it as offensive to the New Mexico constitutional provision: "Private property shall not be taken or damaged for public use without just compensation." The opinion recognized the existence of an "orthodox" and a "liberal" doctrine of construing "public use." While the court found that, unlike Nevada's or Utah's, New Mexico's well-being …

Statutes-Approval Of Public Works Projects Under Nira

Michigan Law Review

Acting under approval and order of the Federal Emergency Public Works Administrator, the United States commenced construction of the Parker Dam across the Colorado River over the objection of the state of Arizona, which was not a party to the Colorado River Compact. Arizona interfered forcibly. A bill was brought by the United States to secure a perpetual injunction against such interference. In response to an argument by Arizona that the dam was not properly authorized, the United States attempted to justify under a recommendation of the chief of engineers as sufficient authorization under section 202 of the National Industrial …

Trade Marks-Effect Of Licensing Use Of Trade Mark By Sales Agent On Rights Of Owner Of The Mark

Michigan Law Review

For twenty-five years plaintiff company was licensed by X manufacturing company to sell furnaces made by X in Kentucky and to use the trade-mark "Monarch" thereon along with plaintiff's name, leaving X's name off the furnace. After the termination of this license plaintiff continued to sell other furnaces with the mark "Monarch" affixed thereto. Four years later X licensed defendant company to sell X's furnaces in Kentucky and to use the mark "Monarch" on the same. Plaintiff brought suit to enjoin defendant's use of said. mark on furnaces sold in Kentucky. Held, licensing use of mark by X to …

Constitutional Law-Due Process-Fair Trade Acts

Michigan Law Review

The recent decision of the New York Court of Appeals in Doubleday, Doran & Co. v. R. H. Macy & Co., holding unconstitutional section two of the New York Fair Trade Act, presents another interesting aspect of the long struggle by manufacturers of widely known trade-marked articles to secure some adequate protection for themselves and the public against the destructive practice of retail price cutting.

Corporations-Voting Trusts-Public Policy

Michigan Law Review

Owning practically all the stock in two corporations, the decedent by will divided his holdings equally among his six children. To perpetuate the control of two sons who had been in active management for ten or twelve years, the other children transferred their stock in trust to the two sons to hold during the lives of these two or the life of the survivor, to vote, and to collect and pay over dividends. In an action by beneficiaries representing one-third of the stock to have the trust instruments declared void, the court held that the trust was not against public …

Evidence - Witnesses - Privilege Of Reporter Not To Testify Concerning Confidential Communications

Michigan Law Review

Defendant, a newspaper reporter, refused to reveal to a grand jury which was investigating gambling and the lottery racket the names and addresses of persons and places mentioned in certain newspaper articles he had written on that subject, on the ground that the information was given to him confidentially and its source was therefore privileged. He was committed for contempt, and sued out a writ of habeas corpus. Held, writ dismissed. Mooney v. Sheriff, 269 N. Y. 291, 199 N. E. 415 (1936).

Unfair Trade-Radio Broadcast Of News Items From Papers Published By Members Of News Service Association As "Unfair Competition"

Michigan Law Review

Defendant radio station broadcast daily a "Newspaper of the Air" program on which it read news items from newspapers published by members of plaintiff association. Plaintiff alleges that defendant is using the results of plaintiff's labor and investment, without paying for it, to aid it in competition with plaintiff's members for advertising, and seeks to have such use of its news enjoined as "unfair competition." Held, defendant should be enjoined from "unfair competition," consisting of the appropriation and broadcast of news gathered by plaintiff while such broadcasts might damage the business of plaintiff's members. Associated Press v. KVOS, Inc. …

Front Matter, Michigan Law Review

Michigan Law Review

Front Matter for Volume 43, Issue 3 of Michigan Law Review

Fees And Expenses In A Corporate Reorganization Under Section 77b, George F. Medill

Michigan Law Review

A District Court of the United States in a proceeding under Section 77B of the Bankruptcy Act has substantially all the powers of a court of equity. All that follows may be summarized by saying that allowances of compensation for services and reimbursement for expenses are to be made by the court according to the principles and practices of equity applied to the accomplishment of the purposes of the Section and the object of the proceeding-a fair and equitable plan of reorganization. The Section, so far as it provides for or regulates allowances, is no more than a statutory restatement …

Constitutional Law-Agricultural Adjustment Act-The General Welfare Clause And The Tenth Amendment

Michigan Law Review

In what is without question the most important decision rendered in recent years the Supreme Court of the United States has swept away the legal basis of the Agricultural Adjustment Administration. The processing tax, an essential part of a plan for the control of production, has been ruled unconstitutional as involving an invasion of the powers reserved to the states. Unlike the case of Schechter Poultry Corporation v. United States, in which the National Industrial Recovery Act was held invalid by a unanimous Court, this pillar of the New Deal's vast recovery program was destroyed by a six-to-three decision, …

Banks And Banking-Constitutional Validity Of Statutes Allowing Reorganization Of Insolvent Bank

Michigan Law Review

A statute of Mississippi permitted the reopening of a closed bank, for the purpose of paying off creditors, upon terms proposed by three-fourths of the bank's creditors. The statute required that the proposition of the creditors be approved by the state superintendent of banks and confirmed by the court of chancery. Dissenting creditors opposed such a plan on the ground that the statute was unconstitutional because it impaired the obligation of contracts, and was contrary to the due process clause of the Federal Constitution. The court held that the statute was valid, that all it did was to change the …