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Front Matter, Michigan Law Review

Michigan Law Review

Front Matter for Volume 32, Issue 5 of Michigan Law Review

Sales - Section 14, Uniform Conditional Sales Act - Removal To Other State Without Refiling

Michigan Law Review

The plaintiff, vendor in a conditional sale contract, received notice of the removal of the goods by the vendee to another State, but failed to refile the contract in the other State as required by its statute. A creditor of the vendee attached the goods without notice of the conditional sale contract, but was given actual notice of it by the plaintiff during the prescribed filing period. In this action, the plaintiff sought to recover the goods from the attaching creditor. Held, the conditional sale contract was void as to the creditor in the absence of a refiling, notwithstanding …

The Evolution And Devolution Of Public Utility Law, Edwin C. Goddard

Michigan Law Review

As long ago as 1873, and very likely even earlier, courts were speaking of the public utility in the sense of the public convenience or advantage, a New Jersey court saying, "these prerogatives (of railway corporations) are grants from the government, and public utility is the consideration for them." This has been often quoted by other courts, notably by your Judge Atherton in the famous case of Scofield v. Railway in 1885. But the term "public utility'' as applied to plants or corporations rendering a public service is very new. It is not to be found in the 1904 edition …

The Securities Act Of 1933, Laylin K. James

Michigan Law Review

In 1907 a Pennsylvania superior court stated in one of its opinions that, "'there is no reason why a man should not be a fool.' As a corollary to that saying, it may be added that there is no reason why a court should protect a fool against the result of his folly. No new feature of rapacity in the buyer is apparent in this instance [ the purchase of property worth $ 5,000 prospectively for $ 500] to make him a worse offender against the law of fair dealing than an army of Shy locks who have preceded him. …

The Equitable Lien As A Remedy For Breach Of Contract

Michigan Law Review

Modern decisions have developed the equitable lien as an important procedural device alongside the equitable remedies of constructive trust and subrogation, with both of which it is intimately connected. The equitable lien or charge, enforceable by foreclosure and sale, is in many situations the most convenient and flexible device for enforcing equitable obligations. A sphere of activity in which it has already proved useful, and in which its usefulness may increase, is in the field of breach of contract. The equitable lien here provides an intermediate ground between affirmative specific performance and complete rescission.

Bankruptcy - Proof Of Claim For Loss Of Future Rents

Michigan Law Review

A covenant in a lease provided:

" . . . that the filing of any petition in bankruptcy or insolvency by or against the Lessee shall be deemed to constitute a breach of this lease, and thereupon, ipso facto and without entry or other action by the Lessor, this lease shall become and be terminated; and, . . . the Lessor shall forthwith upon such termination be entitled to recover damages for such breach in an amount equal to the amount of the rent reserved in this lease for the residue of the term hereof less the fair rental value …

Conflict Of Laws - Inter Vivos Trust-Administration In State Other Than State Where Created

Michigan Law Review

Under an antenuptial agreement executed in Quebec, P made D the beneficiary of a $125,000 trust fund. Later, in consideration for renouncing her interest in this trust fund, D was made the beneficiary of a $1,000,000 trust, under an instrument executed in Quebec at the settlor's domicil, but with a New York trustee, the trust to be administered in New York where a substantial portion of the res was located at the time of settlement. Under the local law of Quebec such modification of the antenuptial agreement was invalid; under the local law of New York it was valid. When …

Contracts - Offer And Acceptance -Termination Of Offer By Subsequent Higher Bid Of Another

Michigan Law Review

The receiver of an insolvent bank received from one Lorensen bids of $4,500 for the building and $500 for the fixtures of the bank, the bid for the fixtures being conditioned on acceptance of the bid for the building. He received a subsequent bid of $4,600 for the building alone, no mention being made of the fixtures. Lorensen's bid for the fixtures was made on separate paper and was considered as distinct from his bid for the building. The receiver called on Lorensen, notified him of the higher bid {indicating that it had been received without qualification) and tried to …

Divorce - Alimony - Modification Of Decree - Impairment Of Obligation Of Contracts

Michigan Law Review

A decree of divorce, following the terms of a prior agreement between the parties, ordered the defendant husband to assign to the plaintiff an insurance policy and pay her $105 per month as long as she remained unmarried. Later, the court upon the defendant's petition reduced the monthly allowance to $90, finding that the defendant's earnings had been diminished and that his remarriage had precipitated new family obligations and debts. Upon appeal of both parties, held, that the court had the power to modify the decree to conform to the changed conditions of the parties, and this modification did …

Intoxicating Liquors - Presumption Of Intoxicating Quality

Michigan Law Review

The defendant sold at his sandwich stand what was agreed to be a malt beverage commonly known as 3.2 beer. A statute made it unlawful for any person to sell "any spirituous, malt, vinous, fermented or other intoxicating liquors." In an action to enjoin the maintaining of a liquor nuisance the trial judge held that as the -defendant sold a malt liquor, the sale was a violation of the statute, and refused to admit evidence that the beer was not intoxicating as a matter of fact. On appeal, the supreme court of Kansas held, that while beer is presumed …

Sales - Implied Warranty Of Fitness - Restaurateur

Michigan Law Review

Defendant, proprietor of a hotel and dining room, served unwholesome food to the plaintiff who became ill as a result of its impurity. The plaintiff sued for the damages resulting from his illness, on the theory that there was an implied warranty that the food was fit for human consumption. Held, the serving of food for immediate consumption on the premises was not a "sale" within the Uniform Sales Act, and therefore there was no warranty attached under the terms of the Act, and there was no implied warranty of fitness of food so served at common law. Lynch …

Torts - Death Act-Pecuniary Injury - Effect Of Incurable Disease

Michigan Law Review

Administratrix sued defendant hospital under the "death act" for having negligently caused the death of her husband. The negligence was admitted. Decedent was afflicted with myelitis, an incurable disease, which affected his spine and rendered him a helpless paralytic. Decedent had no ability to earn or support and would have been an object of constant care and expense. Held, the court should have directed verdict for defendant. Smith v. Presentation Academy of Aberdeen, (S. D. 1933) 248 N. W. 762.

Banks And Banking - Reorganization Under Enabling Statutes Requiring Less Than Unanimous Agreement - Effect On Special Deposits

Michigan Law Review

The plaintiff issued drafts to the defendant bank under a special agreement that they were to cover certain checks already cashed or to be cashed. When a balance of such drafts stood at $2,000 in favor of the plaintiff, the defendant bank became insolvent. A North Dakota statute provided that if eighty per cent of the deposit creditors agreed to a plan of reorganization, and such plan was approved by the state bank examiner and the secretary of the guarantee fund commission, it was to be held binding on all other unsecured creditors. Eighty per cent of the depositors of …

Future Interests - Federal Estate Tax - Admissibility Of Evidence Of Barrenness Of Devisee

Michigan Law Review

In an inquiry as to the value of an executory bequest to charitable institutions, conditioned on the death of the testator's daughter without issue surviving her, was evidence that at the time of the testator's death she had been rendered incapable of bearing children admissible for the purpose of determining the amount of a deduction from the federal estate tax? Held, that such evidence was admissible. United States v. Provident Trust Co., (U. S. 1934) 54 Sup. Ct. 389.

Conflict Of Laws-Jurisdiction In Rem Of Documented Claims

Michigan Law Review

A court has jurisdiction in rem over any res of which it has physical control. But does physical control of a document carry with it the control of the chose in action which it represents? This involves an inquiry as to what extent the chose in action is embodied in the document, to what extent the certificate is itself the res or property. Answers to this question have varied with the type of document and even with the type of suit in which the problem has arisen.

Certain Evasive And Protective Devices Affecting Succession To Decedents' Estates, Alvin Evans

Michigan Law Review

In Anglo-American law for many generations the power of an owner of property to determine the disposal of his estate at death has met with but comparatively few limitations. The statute creating this power was motivated by the assumption that the interest of the owner, reaching even beyond death, is paramount to other social interests. This power is an important item in a capitalistic system. And even if he does not exercise his power, the decedent may rest assured that another statute will do for him approximately what he may be supposed to have desired.

Equitable Contract Remedies - Denial Of Both Specific Performance And Rescission

Michigan Law Review

Serious problems of doing justice between parties to a contract arise where on the one hand specific performance of the contract is refused on equitable grounds such as hardship, and on the other hand rescission of the contract is denied and the contract is allowed to stand as a binding legal obligation. The objects of the present comment are two: to examine critically the situations where this result has actually been reached, and to inquire whether there is any real advantage, in the administration of contract remedies, in recognizing an intermediate ground between specific performance and rescission.

Insurance - Concept Of Indemnity As Limiting Recovery On Fire Insurance Policies

Michigan Law Review

In the case of Savarese v. Ohio Farmers' Insurance Co. the New York Court of Appeals recently held that a mortgagee, insured against fire loss under a standard mortgagee clause inserted in the policy of the owner, could recover on the policy despite the fact that the owner had gratuitously completely restored the premises after the fire. The court reasoned that to deny recovery would be to permit an act of the owner (mortgagor) to defeat the rights of the mortgagee, in contravention of the terms of the mortgagee clause; also that while a mortgagee has an insurable interest only …

Equity - Election Of Remedies - Proof Of Claim In Receivership

Michigan Law Review

Plaintiff sold certain chattels under a conditional sales agreement to a partnership which later went into receivership. The purchase price not having been paid, plaintiff filed a general claim with the receiver, which was allowed. Six months later, no dividend having been paid, plaintiff filed a petition to have the general claim withdrawn and a preferred one substituted, based on the title-retaining contract. The court held that by filing and allowance of the general claim plaintiff made a final election between inconsistent remedies which barred rescission and restitution of the specific property. The court held that the inexperience of plaintiff's …

Taxation -Taxability Of Inter Vivos Trust With Power Of Revocation Reserved

Michigan Law Review

In 1918 decedent established a trust fund in favor of his daughter, reserving the power to alter or modify the deed in favor of anyone except himself but retaining neither the life income nor any interest in the res. Later decedent revoked the deed and re-established the trust in favor of the daughter's two children. On decedent's death the Commissioner of Internal Revenue included the value of the trust res in decedent's gross estate for purposes of taxation as provided by the Revenue Act of 1926 § 302(d). Held, that the tax was not repugnant to the Fifth …

Torts - Electricity - Duty Of Electric Light Company To Trespasser

Michigan Law Review

Plaintiff suffered injuries, due to the faulty insulation of defendant's transformer, while using the premises for toilet purposes. There was evidence of a similar past use by various persons other than the plaintiff, access being gained through a hole in defendant's fence. There was no record of any lease between the defendant and the owner of the land. Plaintiff seeks to recover for defendant's negligence. Defendant's demurrer was sustained below. Plaintiff brings exceptions. Held, plaintiff being a trespasser, the declaration fails to allege a breach of any duty owing to him. Roe v. Naragansett Electric Co., (R. I. …

Torts-Release Of Joint Tortfeasor

Michigan Law Review

Plaintiff, vendee, sued defendant, vendor, upon an alleged fraudulent warranty that the cows, which were the subject matter of the sale, had been immunized against hemorrhagic septicaemia, or "shipping fever." While in transit, through the negligence of the railroad, the cows were injured. Their resistance to the disease was consequently lowered and they became infected, whereby plaintiff was damaged by consequent sterility, unmarketable milk, and abortions. Plaintiff accepted $1,500 from the railroad as "settlement in full for any liability you may be under." This settlement was pleaded as a bar to the action against the vendor. Held, that plaintiff's …

Criminal Law And Procedure-Former Jeopardy-Tests Of "Same Offence

Michigan Law Review

The provision in the state and federal constitutions that one may not be put in jeopardy twice for the same offense is merely declaratory of the common law, and is in effect in all jurisdictions. However, there is often great difficulty in determining when offenses are the same. Several tests to determine the identity of offenses have been employed.

Practice And Procedure - Power Of The Court To Increase Inadequate Verdict

Michigan Law Review

With the development of the remittitur in the case of excessive verdicts, one would naturally expect the development of an analogous device for cases wherein the verdicts are inadequate. When the plaintiff moves for a new trial because of an inadequate verdict, a denial of the motion on the condition that the defendant agree to a certain increase in the verdict is perfectly analogous to the remittitur in form. But this device has not received the same wide acceptance as its counterpart. In cases in which the plaintiff has appealed this device has been condemned, while it has been approved …

Constitutional Law - Moratory Legislation

Michigan Law Review

A Minnesota statute, in view of the economic emergency, provided, among other things, that courts might, upon petition of a mortgagor, extend the period of redemption from mortgage foreclosure sales for a definite time not beyond May 1, 1935. If a court took such action, the mortgagor was to remain in possession of the premises and pay a reasonable rental to the mortgagee. Held, by the United States Supreme Court in a five-to-four decision, that this statute did not violate the contracts, or due process, or equal protection clauses of the Constitution. Home Building and Loan Association v. Blaisdell …

Municipal Corporations - Power To License - Discretionary Power In Administrative Officers

Michigan Law Review

The City Council of Philadelphia enacted an ordinance requiring as many officers or firemen as the Director of Public Safety should deem necessary to be present at all athletic contests for profit, and further provided that the officers or firemen so stationed should be compensated at the rate of $5.50 per day by those persons requiring or demanding such service. The plaintiff brought this suit in equity to declare invalid and restrain the enforcement of the ordinance. The lower court held that the ordinance was invalid, but the supreme court reversed this decision and held that this was a valid …

Torts - Libel Per Se - Liability Of Newspaper For Republication

Michigan Law Review

A news item published in a newspaper owned by the .defendant stated falsely that the plaintiff was being held in jail on a charge of forgery. From a judgment for plaintiff the defendant appealed. Held, the defamatory statement was "libellous per se," and the defendant was liable though the information was received through a reliable news-gathering agency and was printed without malice. Oklahoma Publishing Co. v. Givens, (C. C. A. 10th, 1933) 67 F. (2d) 62.

Front Matter, Michigan Law Review

Michigan Law Review

Front Matter for Volume 32, Issue 4 of Michigan Law Review

Legal Problems In National Merchandising, Richard Ford

Michigan Law Review

An interstate sales organization encounters an infinite number of problems of legal tactics, some of which recur with great frequency, and are more or less common to every industry. For discussion in this paper the writer has selected a few such problems, chiefly from the electric refrigeration business; these are presented in the belief that they are typical of many lines of national merchandising.

Primary Elections And The Constitution, Luther Harris Evans

Michigan Law Review

Recent attempts in Texas and elsewhere to exclude Negro voters from primary elections reveal the unsettled state of constitutional law in this field. Two struggles of principle, individualism versus police power and States' rights versus nationalism, are outlined in the judicial opinions reviewed below under the following headings: (I) Basis of state power over primaries; (II) Limitations on state power over primaries imposed by the Fourteenth and Fifteenth Amendments; (III) Basis of state power over primaries for nominating United States Senators and Representatives; and (IV) Basis of national power over primaries for nominating United States Senators and Representatives.