Digital Commons Network^™

Contracts--Effect Of Stipulation For Re-Negotiation Upon Stated Contingency--Impossibility Of Performance, John F. Buchman, Iii

Michigan Law Review

Plaintiff, popular star of "western" motion pictures, was under contract to defendant, extended by successive options through March 6, 1944, to act in eight pictures per year, at a graduated salary which would become $14,000 per picture during the last year of the contract. In May, 1942, a further contract was made, by which defendant secured an option on plaintiff's services for another year, which option it duly exercised. This later contract provided that if plaintiff went into military service, the parties would "agree upon their mutual rights and obligations" under the two contracts in view of that fact. This …

Application Of The Law Of The Absent* Sovereign In Territory Under Belligerent Occupation: The Schio Massacre, Eric Stein

Michigan Law Review

On July 6, 1945, in the village of Schio, a small community in the northern Italian Province of Vicenza, fifty-four persons confined in the Schio jail were shot to death by masked men who had forced their way into the prison. A large majority of the persons held in the Schio jail at the time of the shooting were suspected of collaboration with the Germans, and other political crimes. No formal charges were pending against one-third of the prisoners. At the time of the massacre the area was under the rule of the Allied Military Government.

Seven former partisans were …

International Law-Privileges And Immunities Of United Nations Delegates And Officials-The International Organizations Immunities Act, Robert K. Eifler S.Ed.

Michigan Law Review

The legal status of United Nations delegates and officials is not tied to the prerogatives of diplomatic agents by international law, as was done in the Covenant of the League of Nations. This leaves the Member Nations and United Nations free to work out a system of privileges and immunities based on the requirements of the functions performed by varying strata of individuals, but until national legislation or an international convention is adopted the legal status of both delegates and officials depends upon an interpretation of the word "necessary."'

Statute Of Frauds-Extinguishment Of Beneficial Interest In Constructive Trust In Land, Richard J. Archer

Michigan Law Review

In order to increase borrowing capacity the husband conveyed several parcels of land to his wife so as to establish a separate credit for her; parol evidence indicated that the conveyance was for the use of the husband. Subsequently their relations became estranged, and the husband attempted a parol surrender of the parcels to his wife. The New Jersey Statute of Frauds is the counterpart of the English Statute requiring the creation of an express trust to be manifested and proved by writing but excluding from the requirement of writing creations, transfers, or extinguishments by operation of law. In a …

Injunctions-Power Of A Court To Modify A Final Permanent, Injunction, Charles B. Blackmar S.Ed.

Michigan Law Review

A court which has issued a permanent injunction may, under certain conditions, open and modify or dissolve the injunction even though the decree in the original action has become final. This power is said to be justified by the continuing operation of the injunction, which regulates future conduct as well as determining the rights of the parties as of the date of rendition of the decree. The same proposition can be restated by saying that injunctions are issued to protect existing rights, but provide no immunity against modification of those rights because of later changes in the applicable law or …

Contracts--Lmpracticability Of Performance As An Excuse For Breach Of Contract, Ira M. Price, Ii S.Ed.

Michigan Law Review

ln a recent federal case, plaintiff construction company contracted to enlarge a dam for defendants, which would involve, according to the original estimates, the excavation of 30,000 cubic yards of earth. During the performance of the contract, defendants ordered further excavation in order to reach a firm foundation so that ultimately a total of 84,000 cubic yards were removed. It was defendant's claim that the plaintiff was obliged to perform this additional work to fulfill its contract. Plaintiff sued in quantum meruit for the value of labor and materials for the entire project; defendants stood upon the contract, contending that …

Mr. Justice William Johnson, Jurist In Limine: The Judge As Historian And Maker Of History, A. J. Levin

Michigan Law Review

In the year 1822 A. E. Miller of No. 4 Broad-street, near the Bay, Charleston, South Carolina, "Printed for the Author" the Sketches of the Life and Correspondence of Nathanael Greene, Major General of The Armies of The United States, In The War of The Revolution. The fly-leaf announced that the work was "Compiled Chiefly from Original Materials" and that it was in "Two Volumes" by William Johnson of Charleston, South Carolina. It was, indeed, a substantial publication "grown to a bulk . . . never anticipated" of some nine hundred thirty-eight pages exclusive of numerous pages in small …

Sales Rationale Of Durable Product Distribution, Kenneth K. Luce

Michigan Law Review

This paper has been prepared to add the writer's bit to the long term struggle for uniformity in the commercial law, and particularly to point to some of the statutory changes in the law affecting distribution of durable goods which have added confusion where once the common law appears to have been on its way to a system more uniform and in accord with business practice and understanding.

Contracts-Bills And Notes-Precedent Debt As Consideration In The Law Of Contracts And Negotiable Instruments, Shubrick T. Kothe S.Ed.

Michigan Law Review

Today, there is little left of the sixteenth century rule that a precedent debt is consideration sufficient to ground an action of assumpsit. Modern cases, such as those where a debt is barred by the Statute of Limitations or discharged in bankruptcy, where it is historically applicable, generally do not rest upon that theory. As a practical matter, it makes little difference. These cases achieve a just result, and have been confined to standard fact situations. The doctrine seems clearly at variance with the rule that consideration cannot be past, and serves no useful purpose today. Cases where this problem …

Chafee, Jr: Government And Mass Communications, Michigan Law Review

Michigan Law Review

A Review of GOVERNMENT AND MASS COMMUNICATIONS. Report from the Commission on Freedom of the Press. 2 vols. Zechariah Chafee, Jr.

Reappraisal Of Federal Question Jurisdiction, G. Merle Bergman

Michigan Law Review

For some time I have been reading and listening to criticisms directed toward decisions which the Supreme Court has rendered in cases involving federal question jurisdiction. The general 'tenor of this criticism is that these decisions demonstrate a surprising lack of uniformity and conscious purpose. Writers profess to search in vain for sound logic in the Court's opinions. They point up instead the anomaly which is reflected when cases involving a substantial federal issue are tried in state courts, while those in which no real federal issue is involved are nevertheless accepted for trial in the federal courts. This result, …

Contracts-Proposals For Legislation Abrogating The Requirement Of Consideration In Whole Or In Part, Charles B. Blackmar S.Ed.

Michigan Law Review

Consideration is the test evolved by our law for separating enforceable informal promises from those that are unenforceable. The doctrine of consideration has frequently been criticized, but it is so firmly established that most of the recent proposals for change have been addressed to the legislatures. The purpose of this discussion is to consider proposed legislation both as to its possible operation and as to the future effect of the proposals on the basic doctrine of consideration.

Monthly Periodical Index, Michigan Law Review

Michigan Law Review

This department lists the articles and comments which appear in twenty-four leading law reviews. The index embraces material published since the last issue of this REVIEW.

Evidence-Uncontradicted Testimony, Robert L. Cardon S.Ed.

Michigan Law Review

The great majority of jurisdictions in the United States recognize the rule that in civil cases "clear, positive, direct and undisputed testimony, not improbable or contradictory, given by an unimpeached witness, cannot be rejected or disregarded by either court or jury, unless the evidence discloses facts and circumstances which furnish a reasonable ground for so doing." It is the purpose of this comment to discuss (1) the reasons underlying this rule, and the extent to which it is recognized, rejected or limited in various jurisdictions; (2) the application of the rule to fact situations in jurisdictions where it is recognized.

Wills--Construction-Testamentary Intent, J. R. Swenson

Michigan Law Review

In a will drawn for her by a layman, testatrix inserted in her own words a clause reading, "It is my belief that 120 acres . . . owned by my deceased husband, John Cagley, subject to a life estate willed to me, be distributed to his four nieces and nephews . . . . " In fact, her husband's will had not specifically disposed of the remainder, and testatrix had in addition to the life estate, taken the remainder as residuary devisee. Held, The clause was a valid devise of the property to the four named beneficiaries. Layton …

Res Judicata---State Court's Dismissal As A Bar To A New Suit On The Same Cause In A Federal Court Exercising Diversity Jurisdiction, Richard J. Archer

Michigan Law Review

A citizen of Virginia brought suit in a North Carolina court against a citizen of North Carolina for a deficiency judgment on a note executed in Virginia ·for the purchase of land in Virginia. Defendant's demurrer to the complaint on the ground that a North Carolina statute precluded recovery was - overruled; defendant appealed. In spite of plaintiff's contention that the statute was an invalid abridgment of the full faith and credit clause of Article IV of the Constitution of the United States, the North Carolina Supreme Court held that the statute effectively barred the action from the state courts …

A New Phase Of The Antitrust Law, Robert W. Harbeson

Michigan Law Review

The divergence between the economic and legal concepts of monopoly and the consequences thereof have been emphasized by various writers in recent years. Monopoly in economics means control of the market; that is, the ability of a seller by increasing or decreasing his output to affect the price of the product sold. Moreover, monopoly is recognized as being a matter of degree, depending upon the number of buyers and sellers of a commodity and the availability of adequate substitutes, ranging from pure monopoly through duopoly, oligopoly and monopolistic competition. By contrast, as Professor Mason has pointed out, "The term monopoly …

Taxation-Mitigation Of The Statute Of Limitation And The Doctrine Of Recoupment, Eugene H. Lattin S.Ed.

Michigan Law Review

Excise taxes on the sale of batteries were illegally collected from taxpayer from April, 1919 to April, 1926. In 1926 taxpayer filed a claim for refund for taxes paid between 1922 and 1926. Refund for the payments made earlier was barred by the statute of limitations. In 1935 the refund was received, and it was taxed as income by the commissioner. In a suit by the taxpayer to recover payment of the assessment, the lower court permitted recoupment, against the income tax deficiency, of the amount of excise taxes illegally collected between 1919 and 1922. Held, reversed. The recoupment …

Bills And Notes-Indorsement In Blank Followed By Special Indorsement, J. R. Swenson

Michigan Law Review

Plaintiff purchased a cashier's check from X Bank payable to himself. He indorsed the check in blank and immediately below stamped it, "Pay to the order of Bank of America, National Savings and Trust Association, S. & R. Produce Co." Plaintiff then gave the check to one R with whom he had agreed to enter into business under the name of the S. & R. Produce Company. R took the check to Y Bank which at his request blocked out the special indorsement without the knowledge or consent of plaintiff. R then indorsed the check and deposited it to his …

Significant Developments In The Law Of Federal Taxation, 1941-1947: Ii, Paul G. Kauper

Michigan Law Review

The 1941 Revenue Act carried forward the rather complex normal tax structure prescribed by the 1940 Revenue Act and in addition introduced a corporate surtax rate schedule. The normal tax rates were increased to absorb the 10% defense tax previously imposed as a separate tax and also a very slight increase in the rates applicable to corporations with a normal-tax net income of less than $38,461.54. As so altered the normal tax amounted to 24% in the case of corporations having normal-tax net income over $38,461.54, and in the case of corporations having no more than this amount of normal-tax …

Corporations--Doing Professional Service Through Others, Joseph N. Morency, Jr. S.Ed.

Michigan Law Review

The question whether a corporation empowered to engage in any lawful business may furnish professional services to its members or customers through the use of licensed agents has been a real problem for the courts. It is generally agreed that a corporation cannot furnish professional services to the public generally through or by means of employing licensed members of a profession for whose services it makes charges that go into the funds of the corporation; but it is equally well-settled that a corporation can engage in any lawful business or trade .even though practitioners are required to be licensed, provided …

Bankruptcy - Chapter X Reorganization - Power Of The Trustee To Sue In A Foreign Jurisdiction, Shubrick T. Kothe S.Ed.

Michigan Law Review

Plaintiffs, trustees appointed under Chapter X of the Bankruptcy Act, as amended, by the District Court for the Eastern District of Virginia, sued defendants in the District Court for the Southern District of New York to recover corporate assets, alleging a conspiracy to defraud the debtor corporation. Jurisdiction was rested, not upon diversity of citizenship, but upon sections 2 and 102 of the Bankruptcy Act, and certain sections of the Judicial Code, not pertinent here. The district court dismissed the action for want of jurisdiction. On appeal, held, reversed. The reorganization trustee under Chapter X may maintain an action …

Reformation Of Instruments-Mistake-Deed Of Married Woman, Eugene H. Lattin

Michigan Law Review

In 1887 one Evans deeded to Mattie Woodbridge a lot described in the deed as lot 31, believing that the lot described was lot 29. Mattie took possession of lot 29, and held it until October 7, 1913, when she deeded it by the same description as in the original deed to one Casto, an intermediary, who then deeded it to William, Mattie's husband. Husband and wife continued in possession of lot 29 until her death in 1919. Lot 31, the lot described in the deed of 1887, continued in the possession of Evans and his successors until 1905, when …

A Review Of The New Trade-Mark Manual, Lenore B. Stoughton

Michigan Law Review

The United States Trade-Mark Act of July 5, 1946, is a statute designed to be of far-reaching effect. The appraisal of the statute must be made in the light of that fact rather than in the light of the confusion and disputation which have arisen as to the proper interpretation of many of its provisions.

One might have supposed that an act which had been subjected to intensive study and extensive revision over so many years before its final enactment would emerge in complete clarity. Such has not proved to be the case; and it should not have been expected. …

Evidence-Documentary Proof Of Market Value Of Personal Property-Admissibility-Relationship To Oral Testimony Based Thereon, P. F. Westbrook, Jr. S.Ed.

Michigan Law Review

Even the most casual observer of modern business practices will accede to the general proposition that the most accurate reflection of market value for many commodities can be found in documentary sources. This is particularly true of those commodities of an homogeneous character which are sold in well-organized markets characterized by price uniformity and free access to price information. Of them, it may well be said that no more satisfactory evidence of market value than the newspaper market reports can be found, barring the possibility of personal observation of "the board" at the market itself. However, the average businessman will …

Significant Developments In The Law Of Federal Taxation, 1941-1947: I, Paul G. Kauper

Michigan Law Review

A preliminary word on the scope of this review is in order. Since this was originally prepared as one of a series designed to acquaint returning veterans with legal developments during the war period, the year 1941 has been chosen as the starting point, and the review carried forward from that point through to date. The review covering this period is limited to significant developments in the area of federal taxation, with emphasis upon the estate, gift, and income taxes.

Federal Courts-Federal Rules Of Civil Procedure-Duty Of Court In Non-Jury Action On Motion To Dismiss Under Rule 41 (B), Merrill N. Johnson

Michigan Law Review

The federal government brought an action to restrain the United States Gypsum Company and thirteen other corporate and individual defendants from alleged violations of the Sherman Anti-Trust Act. Most of the government's evidence came from defendant's officers, employees, and documents with the result that evidence favorable to both the plaintiff and defendants was presented. The government's case required over five months to present and 10,000 pages to record. The defendants then moved to dismiss the complaint with prejudice under Rule 41 (b). In the hearing on this motion, the government contended that the sole question presented was one of law, …

De Minimis Non Curat Lex, Max L. Veech, Charles R. Moon

Michigan Law Review

An age-old maxim often applied but infrequently rationalized is that of de minimus non curat lex. In the recent case of Steve Anderson v. Mt. Clemens Pottery Company, the United States Supreme Court focused attention upon the doctrine by ruling that it should be applied in determining whether "walking time" and other "preliminary activities" constitute "work" for which employees are entitled to compensation under the Fair Labor Standards Act of 1938. The so-called "portal-to-portal" problems which have arisen as a result of the last mentioned ruling make timely a discussion of the origin, meaning, function and application of …

Duress Through Civil Litigation: I, John P. Dawson

Michigan Law Review

Duress through the use of civil litigation provides a convenient starting point for an analysis of modern doctrines of economic duress. The propriety of this form of pressure, used alone or in conjunction with other means of coercion, may become an issue in a variety of situations in which relief for duress is asked. At the same time it is in this area that the extension of duress as a remedial principle has encountered the greatest resistance.

Sunday Laws-Illegality Of Sunday Contracts, Robert O. Hancox S.Ed.

Michigan Law Review

The concept of the Sabbath, the setting apart of one day in seven as a day of rest, was derived from the Mosaic code, the Fourth Commandment directs abstention from labor on the seventh day of the week, and although there is nothing in the New Testament relating to Sunday, the Christian world adopted the first day of the week as a day of rest. Constantine, by an edict in 321 A.D., ordered the suspension on Sunday of all business in the courts of law, except the manumission of slaves, and all other- business except agricultural labor.