Digital Commons Network^™

Trade Marks And Trade Names - Mark Used On Patented Article - Effect Of Expiration Of Patent, William J. Isaacson

Michigan Law Review

P company had distributed patented razor-blades marked Enders, and, upon the expiration of its patent, registered the word as a trade mark. It also used the term Keen-Kutter, as part of its mark, but the use of this term on other goods antedated the patent by several years. P now seeks to enjoin the D company from using either term as part of its trademark. Held, (1) the word Enders having become descriptively designative of this type of razor and blade, D was entitled to use it upon expiration of P's patent; (2) as to Keen-Kutter …

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.

Corporations - Power Of Majority Stockholders To Reorganize By Transfer Of Assets To New Corporation In Exchange For Stock, Kenneth K. Luce

Michigan Law Review

A private corporation is solvent and prosperous but is nearing the time when its charter will expire. The directors call a stockholders' meeting at which the majority of the stockholders vote: first, to form a new corporation and, second, to transfer all the assets of the old corporation to the new corporation in consideration for the entire capital stock of the new corporation and the assumption by the new corporation of all liabilities of the old corporation. The plan further provides that the old corporation is then to be dissolved, and the stock of the new corporation is to be …

Nuisance Contributory Negligence As Defense, Michigan Law Review

Michigan Law Review

Plaintiff brought action against the county for injuries sustained when his truck fell into an unlighted and unguarded excavation made by the county in the center of the highway for the purpose of repairing a culvert. Held, that defendant's act, though required by statute, was done in such a manner as to constitute active wrongdoing and a public nuisance, to which a plea of contributory negligence is no defense. Hammond v. Monmouth County, (N. J. S. Ct. 1936) 186 A. 452.

Wills - Charitable Trusts - Doctrine Of Approximation - Accumulation, Malcolm L. Denise

Michigan Law Review

By his will of 1915 the testator, after providing for several legacies, left the residue of his estate to trustees, to expend the income therefrom in establishing and providing a home for the worthy aged poor of Waterbury, in the memory of his deceased wife. The income was not sufficient adequately to carry out this direction, the fund amounting to around $30,000 at the time of testator's death in 1920, and the trustees petitioned the court for instructions. Held, there being a general charitable intent, the fund should be administered cy pres by the court to relieve the aged …

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.

The Proposed United States Administrative Court, Part Ii, Robert M. Cooper

Michigan Law Review

The recent movement for the passage of the Logan bill and the establishment of supervisory tribunals for the control of administrative determinations is the result of several preconceived theories concerning the shortcomings of the present system of administrative justice. These underlying theories, cautiously surrounded by a halo of judicial philosophy, have seldom been analyzed in their relation to the development of a sound policy for the administration of governmental functions. The present installment of this article will be devoted first to an examination of these fundamental theories and a consideration of the question how far the present administrative machinery is …

Declaratory Judgments - Justiciable Controversy, Herman J. Bloom

Michigan Law Review

The governor of Wisconsin instituted a declaratory proceeding against the secretary of state. The governor wanted to determine his power to make ad interim appointments to allegedly vacant statutory offices and to positions incumbents were holding over. Prior to this action he had made no appointments to these offices, for the secretary of state had advised him that he would not honor the commissions, or audit and pay the expense account of such appointees. The governor claimed that the alleged conduct of the secretary of state prevented him from securing suitable persons to fill these offices. The court held that …

Constitutional Law - Zoning Ordinances Prohibiting Repair Of Existing Structures, William F. Fratcher

Michigan Law Review

The rapid development and expansion of the zoning movement during the last ten years has been directed mainly toward guiding new construction in accordance with modern ideals of city planning. There has been, however, a concomitant attempt to restrict the use and repair of existing structures which, if built after its passage, would not conform to the provisions of the zoning ordinance. This at first glance may seem only an insignificant part of the whole zoning problem. But when it is considered, from the point of view of city planners, that it is nearly impossible to make a high grade. …

Stockholders' Suits: A Possible Substitute, Harris Berlack

Michigan Law Review

With the rapid expansion in the use of the corporate form of organization for business enterprise which has taken place during the last few decades, increasing attention has been paid by legal scholars to the question of the respective positions, rights and duties of the various components of the corporate structure. The functions, rights, obligations and liabilities of managers, officers, directors and stockholders, both majority and minority, have been analyzed and defined. Mr. Berle's analysis of corporate authority as power held in trust for the benefit of the stockholders has found wide acceptance as a comprehensive synthesis of the conclusions …

Constitutional Law -- Interstate Commerce -- Validity Of Federal Statute Prohibiting Interstate Shipment Of Prison-Made Goods, Joseph H. Mueller

Michigan Law Review

The recent decision of the Supreme Court in Kentucky Whip & Collar Co. v. Illinois Central R. R., provides an effective method of circumventing the doctrine of Hammer v. Dagenhart, which held that Congress may not prohibit the interstate transportation of commodities which are harmless except for their economic effect in the state of destination. It is hailed by the advocates of reform as furnishing an avenue of approach to such problems as the regulation of minimum wages and hours and child labor.

Bankruptcy - Corporate Reorganization Plan - Fairness And Feasibility, Erwin S. Simon

Michigan Law Review

The corporation, having assets of $295,000 and liabilities of $1,200,000, petitioned for reorganization under Section 77B of the Bankruptcy Act and presented a plan. The district court's dismissal of the debtor's petition was affirmed in the circuit court of appeals on the grounds that the plan offered was incomprehensible, that the appraisal required by the plan was unjust since the value and validity of the bonds had been found in the equity receivership, and that subsection (b)(5) of 77B was unconstitutional, the attempt to bind non-assenting creditors being a denial of due process. Certiorari was granted by the Supreme Court. …

Charities - Capacity Of An Unincorporated Association To Act As Trustee Of A Charitable Trust, Philip A. Hart

Michigan Law Review

The residuary clause of testatrix's will directed that the remainder of the estate "after the rest and remainder has been converted into money by my executor . . . I give, devise and bequeath to the Old Order Church, . . . to be invested and reinvested among the members of the said church, and the income derived therefrom to be used for the benefit of the said Church." The church named was an unincorporated association and the heirs claimed that as such it had no capacity to take the bequest, either in its own right or as trustee. The …

Constitutional Law-Resale Price Maintenance -Fair Trade Acts, Joseph H. Mueller

Michigan Law Review

Four cases upholding the validity of the California and Illinois Fair Trade Acts were recently sustained by the United States Supreme Court. All four cases involved a similar set of facts. Plaintiffs, the owners or authorized distributors of certain well known trade-marked articles, entered into a series of contracts with wholesalers and retailers fixing the resale prices of their branded products. When defendants, certain retailers who had refused to enter into such agreements, persisted in reselling the articles below the prices stipulated in the contracts with other retailers, plaintiffs sued to enjoin them under the provisions of the state Fair …

Damages - Applicability Of Gold Clause Resolution To Obligation To Deliver Gold Bullion - Proof Of Damages, Michigan Law Review

Michigan Law Review

Defendant lessors and plaintiff realty company entered into a 99-year lease in 1890. The yearly rental was stipulated to be "grains of pure unalloyed gold," provided however, that in lieu thereof the lessors at their option could require the delivery of its value ($6,000) in such lawful currency as they designated. In 1933, upon the devaluation of the dollar and the regulation of gold by the Federal Government, the lessors gave the right to lessee to pay the amount of dollars the government was paying for newly-mined gold of the stated quantity (10,158.75). Plaintiff paid that amount in excess of …

Negligence - Res Ipsa Loquitur - Application To Carriers, Michigan Law Review

Michigan Law Review

Plaintiff was injured while riding on defendant's bus when it was struck by defendant's street car, the collision being caused by the derailment of the street car. It was not made clear on trial what was responsible for the derailment. Held, the defendant controlled both vehicles, the event was of a type which would not ordinarily occur if reasonable care were used, the injury to plaintiff was not due to any voluntary act on her part, so the jury could properly infer that the defendant was negligent under the doctrine of res ipsa loquitur. Birdsall v. Duluth-Superior Transit …

Monthly Periodical Index, Michigan Law Review

Michigan Law Review

This department lists the articles and comments which appear in twenty-four leading law reviews.

Evidence - Curative Admissibility, Theodore R. Vogt

Michigan Law Review

If one party be permitted, for any reason, to introduce inadmissible evidence, may his opponent counter with like evidence to offset any· advantage the former may have obtained? Or, as Dean Wigmore puts it: "Does one inadmissibility justify or excuse another?"

The problem is again brought to notice by the decision of the Iowa Supreme Court in the recent case of Maasdam v. Jefferson County Farmers' Mutual Insurance Association. In that case the lower court was reversed because it refused to permit the defendant to introduce evidence as to the market value of the insured articles after plaintiff had …

Corporations - Charter Amendments - Delaware Dilemma, Michigan Law Review

Michigan Law Review

It may be conceded that a corporate charter is a contract having a threefold aspect as to the combinations of parties thereto, and that this contract, as between the corporation and the state, may be changed by the state without conflict with the Federal Constitution, providing the state has reserved a power to change. It still is an ever present problem, however, as to how far the state may affect the contracts of stockholders, either inter se or with the corporation. This problem is particularly a live one in Delaware, both because of the recent Keller case and the large …

Railroads - Violation Of Ordinance Limiting The Obstruction Of Highways By Trains - Collision At Crossing - Proximate Cause, Michigan Law Review

Michigan Law Review

Plaintiff was injured, when an automobile in which she was a passenger, was driven into a freight train standing across a highway on a misty night. This train had been obstructing the crossing for more than five minutes, in violation of a state statute. Plaintiff sued the railroad, alleging negligence in violating the statute. On appeal from a judgment for the plaintiff, held that plaintiff had made no case, and that the judgment should be reversed without a new trial, and with costs to the defendant. Simpson v. Pere Marquette Ry., 276 Mich. 653, 268 N. W. 769 (1936).

Municipal Corporations - Constitutional Limitation On Indebtedness - Delinquent Taxes As Deductible Asset, Emma Rae Mann

Michigan Law Review

Plaintiff taxpayer sued to enjoin defendant city from borrowing $500,000 for general public improvements, alleging that if, the city so obligated itself it would be indebted beyond the limit fixed by the constitution at two per cent of the assessed valuation of taxable property. Defendant showed that such limit would not be exceeded if two-thirds of the outstanding delinquent taxes were regarded as deductible. The court denied the injunction and held that since collection of at least two-thirds of such outstanding delinquent taxes was certain this item was properly deductible. Ward v. Pittsburgh, 321 Pa. 414, 184 A. 240 …

Attorney And Client - Unlawful Practice Before Industrial Commission In Workmen's Compensation Proceedings, Charles R. Moon Jr.

Michigan Law Review

In forty-four states of the Union and in Alaska, Porto Rico, Hawaii, and the Philippine Islands there are workmen's compensation acts. A great majority of these acts provide for a board or commission to settle all disputes as to compensation. Practice before these boards and commissions has become a large share of the business of many lawyers and of many law firms. To them, in particular, and to the legal profession, in general, the question raised in the recent case of Goodman v. Beall is of considerable interest. In this case, suit was brought by a committee of the Ohio …

Libel And Slander-Necessity For Allegation Of Special Damages In Action For Defamation Not Shown Libellous Per Se, Elbridge D. Phelps

Michigan Law Review

Plaintiff, a member of the bar, sued to recover damages for an alleged libel committed by defendant by maliciously failing to rate him in its annual directory, though continuing to carry his name, after having both carried his name and rated him for many years previously. Held, that the publication was not libellous per se, and that therefore special damages beyond a general allegation of injury to professional reputation, business, and practice must be alleged and proved to show a cause of action on demurrer. Ellsworth v. Martindale-Hubbell Law Directory, Inc., (N. D. 1936) 268 N. W. 400.

Trusts-Breach By Trustee--Liability Of Trustee Taking Title To Note And Mortgage In Individual Name, Milton M. Howard

Michigan Law Review

A corporate trustee, authorized to invest trust funds in mortgage loans, made such an investment, taking title to the mortgage and note securing the same in its individual name. The beneficiary sought to surcharge the trustee for the full amount of the funds so invested, the property having declined in value due to a world-wide depression. The trustee defended on the ground that the trust had been declared in a separate instrument recorded in its files, that such was an established practice, that it acted on expert advice, in good faith and for the best interests of the beneficiary. Held …

Monthly Periodical Index, Michigan Law Review

Michigan Law Review

This department lists the articles and comments which appear in twenty-four leading law reviews.

Front Matter, Michigan Law Review

Michigan Law Review

Front Matter for Volume 35, Issue 3 of Michigan Law Review

Commission Jurisdiction Over Utility Cooperatives, Israel Packel

Michigan Law Review

A group of farmers desire electricity. They propose to form a cooperative, to borrow money and to construct electric distribution lines. They probably will incorporate the cooperative as a stock or non-stock corporation in order to obtain the benefit of limited liability. The cooperative might be formed under a statute specifically enacted to authorize the formation of cooperatives or under a general incorporation statute. Normally, the charter of the cooperative will provide for equality in control by the members or shareholders and for a limited return or no return on capital investment. The cooperative will probably apply to the Federal …

Constitutional Law - Federal Criminal Procedure - Short Form Indictment, James H. Roberton

Michigan Law Review

It is the purpose of this comment to discuss the validity under the Federal Constitution of an indictment, drawn in accordance with the proposed code, which would merely accuse the defendant of having committed some kind of "offense," and would leave the particulars of the offense to a bill of particulars.

Trials-Right To "Public Trial"-Power Of Judge To Exclude General Public, Francis T. Goheen

Michigan Law Review

Convinced of the desirability of such action, a judge, conducting the trial of a criminal case, wishes to clear the court room of all or a portion of the spectators. To what extent may he legitimately do so? He is necessarily limited by the provision in the constitution of almost every state and in the Sixth Amendment of the Constitution of the United States that in "all criminal prosecutions the accused shall enjoy the right to a speedy and public trial." The extent to which the trial court may go in clearing the court room has been most often tested …

Automobiles - Statutory Liability Of Owner - Registered Titleholder Estopped To Deny Ownership, Michigan Law Review

Michigan Law Review

Plaintiffs, injured in New York by an automobile driven by defendant's minor son, sued under a New York statute which makes the owner of an automobile liable for damages for injuries resulting from negligence of its operator. The automobile was registered in Connecticut in defendant's name to avoid compliance with the Connecticut statute which requires proof of financial responsibility as a prerequisite of registration for minors over sixteen years of age. Held, defendant estopped to prove ownership of the automobile in his son. Shuba v. Greendonner, 271 N. Y. 189, 2 N. E. (2d) 536 (1936), reversing 245 …