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Michigan Law Review

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Bills And Notes-Check Payable To A Party Under Assumed Name Jan 1934

Bills And Notes-Check Payable To A Party Under Assumed Name

Michigan Law Review

M appeared at the office of the B building association, represented himself as W and requested a loan to be secured by a mortgage upon property owned by W. After checking the land records and also the address given by M, B drew a check on the plaintiff bank, payable to W, and sent it to the address which M had given. M removed the check from the mail, endorsed W's name and deposited it in the defendant bank. Upon the discovery of the fraud, plaintiff bank restored the amount of the check to B's …

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Bills And Notes - Incorporation By Reference - Clause In Mortgage Limiting Bondholder's Right To Sue On Bond Jan 1934

Bills And Notes - Incorporation By Reference - Clause In Mortgage Limiting Bondholder's Right To Sue On Bond

Michigan Law Review

Plaintiff, a holder, sued for the principal of and interest on matured bearer bonds which were part of an issue secured by a trust mortgage. Each bond, which was otherwise negotiable, recited that it was secured by a mortgage, "to which indenture reference is hereby made for a statement of the rights of the holders of said bonds." The mortgage provided that all rights of action on the bonds were vested in the trustee and that no bondholder could sue on the primary indebtedness until he had fulfilled certain prerequisites relative to giving the trustee an opportunity to sue. These …

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Contracts - Fraud - Implied Representation Of Solvency Jan 1934

Contracts - Fraud - Implied Representation Of Solvency

Michigan Law Review

Defendant, a wholesale grocer, had been losing steadily for months by selling below cost, and had assets of $83,000 against liabilities of $140,000 on Nov. 21, 1929. On that date he accepted a 90-day trade acceptance drawn by claimant for cases of tomato paste which he had ordered, and which claimant now seeks to reclaim on the ground of fraud. On December 3 defendant obtained the goods, and the next day went into involuntary bankruptcy. Held, that the buyer's promise to pay implies belief in reasonable ability to pay, and that concealment of belief to the contrary is fraud …

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Future Interests -Testamentary Trust -Admissibility Of Evidence Of Barrenness Of Devisee Jan 1934

Future Interests -Testamentary Trust -Admissibility Of Evidence Of Barrenness Of Devisee

Michigan Law Review

A testator's will devised his residuary estate in trust to his daughter for life, remainder to her lawful issue, in default of which the corpus was to be distributed to certain charities. The daughter died without issue. After her death the trustee brought suit against the United States for refund of taxes paid, both parties agreeing that the sole question for determination was the admissibility of evidence of the removal of the daughter's generative organs to prove that at the time of the testator's death it was impossible for her to bear issue. Held, such evidence was admissible. Provident …

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Searches And Seizures - Search As Incident Of Unlawful Seizure - Search Without Warrant Jan 1934

Searches And Seizures - Search As Incident Of Unlawful Seizure - Search Without Warrant

Michigan Law Review

Where a sheriff took possession of an unattended car parked on the streets, in the belief that the automobile was stolen and without knowledge that it contained liquor, and two hours later searched it and seized liquor in the car, acting on information received subsequent to the seizure of the car but prior to the search for the liquor, held that the taking of the car by the sheriff was an unlawful act and the search was an incident thereof; that the search without a warrant was an unreasonable one under the South Dakota Constitution prohibiting unreasonable searches and seizures, …

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Taxation-Computation Of Capital Gains Jan 1934

Taxation-Computation Of Capital Gains

Michigan Law Review

In 1915 petitioner and husband purchased property by the entirety for $13,000. Petitioner contributed 12 per cent of the purchase price and her husband the remaining 88 per cent. In 1924 the husband died, the property at that time having a market value of $40,000. In 1925 petitioner sold the property for this sum. Petitioner, in her income tax return for that year, computed the taxable profit by using the market value of the property at the time of her husband's death with respect to the 88 per cent representing the contribution of the husband to the purchase price. Held …

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Trade Restraints - Covenants Restricting Owner's Use Of His Premises Jan 1934

Trade Restraints - Covenants Restricting Owner's Use Of His Premises

Michigan Law Review

Plaintiffs and defendant were competing theatre proprietors, owning buildings on opposite sides of the street in X city. For a monetary consideration defendant covenanted to discontinue forever the use of his building as a public theatre. Plaintiffs sought an injunction upon defendant's breach, and defendant demurred on the ground that the covenant was in restraint of trade and not ancillary to any property interest conveyed and requiring protection. Held, injunction granted, for in Ohio a contract in reasonable restraint of trade is enforceable though not incidental to some other independent contract or conveyance; and, if such transaction is necessary, …

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Banks And Banking-Payment By Savings Bank To Other Than Depositor Jan 1934

Banks And Banking-Payment By Savings Bank To Other Than Depositor

Michigan Law Review

The plaintiff, depositor in a savings bank, sued the bank to recover for a payment made, upon presentation of the passbook together with a forged receipt, to one known to have previously acted as the depositor's agent. In order to protect itself in such a case the bank had provided the following bylaw: "The passbook shall be the voucher of the depositor, and the possession of the passbook shall be sufficient authority to the bank to warrant any deposit or payment made or entered therein." Held, the bank was liable to the depositor, despite the by-law, as it was …

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Bank Reorganization And Recapitalization In Michigan, Ellis B. Merry Dec 1933

Bank Reorganization And Recapitalization In Michigan, Ellis B. Merry

Michigan Law Review

On January 2, 1933, 420 state and 68 national banks were operating in Michigan. On February 13, the Governor of Michigan proclaimed a banking holiday for eight days which was extended in effect on February 22. On March 4, the President proclaimed a national banking holiday until March 9. Under the provisions of the President's proclamation lifting the national banking holiday, 198 state and approximately 30 national banks were reopened by the appropriate authorities as "sound" banks. State bank conservators assumed the management and custody of 215 state banks which did not open, on appointment by the Commissioner of the …

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Constitutional Law - Interstate Commerce - Motor Carrier Operating Within - Single State As A Link In Interstate Transportation, Paul G. Kauper Dec 1933

Constitutional Law - Interstate Commerce - Motor Carrier Operating Within - Single State As A Link In Interstate Transportation, Paul G. Kauper

Michigan Law Review

The plaintiff was engaged in business as a common carrier of goods by motor vehicle. He transported goods between the docks of Los Angeles harbor and points in and around Los Angeles, but all the goods which he carried were originally shipped in from or were consigned to destinations outside the State. His operations, however, were independent of the operations of connecting carriers. The California Railroad Commission ordered the plaintiff to cease operations until he secured a certificate of public convenience and necessity. Held, on review, that the plaintiff was engaged in interstate commerce, and that the Commission's order …

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Corporations - Pledge Of Stock - Statutory Liability Of Pledgee Dec 1933

Corporations - Pledge Of Stock - Statutory Liability Of Pledgee

Michigan Law Review

The owner of shares of bank stock pledged them to defendant corporation to secure a loan. Defendant had the bank issue a new certificate to it in its own name. On the failure of the bank plaintiffs, creditors, sought to hold defendant for "double" liability under statute. Held, under the Montana statute providing that pledgees should not be personally liable as stockholders, defendant was not liable despite the fact that the bank's records did not show it to be a pledgee. Mitchell v. Banking Corp. of Montana, (Mont. 1933) 24 Pac. (2d) 124.

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Torts - Principal And Agent - Liability For Negligent Driving Dec 1933

Torts - Principal And Agent - Liability For Negligent Driving

Michigan Law Review

Defendant company's salesman, driving his own car while selling defendant's washing-machines on a commission basis over a large territory, and with no regulation by the defendant except as to the terms of the contracts the salesman might make, negligently collided with plaintiff's car. Held, a salesman driving his own car, with no more supervision than existed here, is an independent contractor for whose negligence his employer is not liable. Stockwell v. Morris, (Wyo. 1933) 22 Pac. (2d) 189.

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Workmen's Compensation-Right Of Dole Employee To Compensation Dec 1933

Workmen's Compensation-Right Of Dole Employee To Compensation

Michigan Law Review

The plaintiff, a citizen on the relief rolls of the defendant city, was put to work in accordance with a scrip relief plan under which persons receiving aid were "required" to work if they were able. They were paid a stipulated amount of script per hour, which was exchangeable for goods at the city store. The plaintiff was injured while using a wheelbarrow in line of duty in so working in the city park, and claimed the right to workmen's compensation under the statute as an employee of the city. The court held, by a five-to-three division, that the …

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Banks And Banking -- Stop-Payment Orders Releasing Bank From Liability For "Inadvertent" Payment Dec 1933

Banks And Banking -- Stop-Payment Orders Releasing Bank From Liability For "Inadvertent" Payment

Michigan Law Review

In an action by a depositor against his bank for money paid out on a check in violation of a stop-payment order, the bank interposed the defense that the terms of the order excused it if it should pay through "inadvertence or accident," and that the check was so paid. It was held that the bank was not liable. Hodnick v. Fidelity Trust Co., (Ind. App. 1932) 183 N. E. 488.

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Bills And Notes - Forged Indorsement - Liability Of Collecting Bank To Drawer Dec 1933

Bills And Notes - Forged Indorsement - Liability Of Collecting Bank To Drawer

Michigan Law Review

Plaintiff drew a check payable to V. It was stolen by H, plaintiff's employee, and delivered to a confederate who forged V's indorsement and deposited the check in the defendant bank which collected on the instrument. Plaintiff was reimbursed by H's bonding company, and then sought to recover the amount of the check from the defendant. Held, that though plaintiff could ordinarily recover the proceeds of its stolen, undelivered check from the collecting bank, recovery here would be denied because plaintiff had already been reimbursed for its loss. Washington Mechanics' Savings Bank v. District Title …

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National Industrial Recovery Act - President's Re-Employment Agreement - Injunction By Labor Union Dec 1933

National Industrial Recovery Act - President's Re-Employment Agreement - Injunction By Labor Union

Michigan Law Review

Plaintiff, a Wisconsin labor union, was granted a temporary injunction restraining defendant shoe company, a party to the President's Re-employment Agreement, from "further interference with the right of its employes to organize into unions of their own free will and choice" and from "interfering with . . . the freedom of its employes in the designation of representatives of their own choice for the purpose of bargaining collectively" with the company. The court decided that defendant had violated its agreement with the President to comply with section 7 (a) of the National Industrial Recovery Act. This last was based on …

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Torts - Imputed Negligence - Passenger In Private Carrier For Hire Dec 1933

Torts - Imputed Negligence - Passenger In Private Carrier For Hire

Michigan Law Review

The plaintiff hired Hilton, a private carrier, to drive her from Detroit to Ann Arbor. Hilton's car collided with a car driven by the defendant, both Hilton and the defendant being negligent. Held, that the plaintiff could recover, as the negligence of a private carrier for hire will not be imputed to a passenger riding in his conveyance. Three judges dissented; the four concurring judges refused to join Justice McDonald in his opinion expressly overruling the whole doctrine of Thorogood v. Bryan. Lachow v. Kimmich, 263 Mich. 1, 248 N. W. 531 (1933).

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Bills And Notes-Bonds Payable At Office Of Trustee Which Becomes Insolvent After Due Date But Before Bonds Presented, Ralph W. Aigler Dec 1933

Bills And Notes-Bonds Payable At Office Of Trustee Which Becomes Insolvent After Due Date But Before Bonds Presented, Ralph W. Aigler

Michigan Law Review

In Morley v. University of Detroit, decided May 16, 1933, the Supreme Court of Michigan reaches a conclusion not only of intense interest as a matter of legal doctrine, but also tremendously important, if followed, in determining the location of losses that may run into large sums. The defendant had floated a large bond issue secured by trust mortgage to a Trust Company. Among the obligor's undertakings in the mortgage was one to the effect that it would punctually pay the principal and interest of every bond according to the terms of the bond and coupons and would "deposit …

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Front Matter, Michigan Law Review Dec 1933

Front Matter, Michigan Law Review

Michigan Law Review

Front Matter for Volume 32, Issue 2 of Michigan Law Review

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State Taxation Of Interstate Motor Carriers, Paul G. Kauper Dec 1933

State Taxation Of Interstate Motor Carriers, Paul G. Kauper

Michigan Law Review

Though the Supreme Court has never had occasion to express its views as to the gasoline tax in its relation to interstate motor carriers (see first instalment of this article), it has been confronted with a series of cases involving automobile registration taxes. Every State today imposes such taxes. A brief discussion of the theory and nature of such taxes will aid in understanding their legal consequences.

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Bills And Notes-Warranty Of Qualified Indorser -When Instrument "Valueless" Dec 1933

Bills And Notes-Warranty Of Qualified Indorser -When Instrument "Valueless"

Michigan Law Review

In an action based upon the vendor's warranty in the sale of a note as set forth in the N.I.L., sec. 65 (4), it being alleged that the maker was insolvent and the mortgaged property worth much less than the debt at the time of the transfer of the note and that both such facts were known to the transferor, held, a ruling sustaining a demurrer should be affirmed. Leekley v. Short, (Iowa 1933) 249 N. W. 363.

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Constitutional Law - Interstate Commerce - State Regulation Of Motor Carriers - Highway Conservation, Paul G. Kauper Dec 1933

Constitutional Law - Interstate Commerce - State Regulation Of Motor Carriers - Highway Conservation, Paul G. Kauper

Michigan Law Review

In conformity with the Texas statute regulating contract carriers, the plaintiffs applied for permits to operate as contract carriers in interstate commerce. The Texas Railroad Commission denied the application on the grounds that the proposed use of the highways would unreasonably interfere with their use by the general public and would constitute an undue burden on said highways. Held, by a three-judge court, that the Commission was acting within its authority in refusing the application on these grounds, that such refusal was valid as to interstate motor carriers, and that evidence supported the Commission's findings, consequently the bill to …

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Constitutional Law - Bank Reorganization Legislation - Composition With Depositors And Other Creditors, Maurice S. Culp Dec 1933

Constitutional Law - Bank Reorganization Legislation - Composition With Depositors And Other Creditors, Maurice S. Culp

Michigan Law Review

Twenty States and the federal government now have laws permitting the reorganization and reopening of insolvent or failing banks. The usual statute provides for the reorganization of a bank upon some plan approved by a large majority of the general creditors of the institution; the plan must also have the approval of state banking officials and of a court of general jurisdiction, although the last is by no means a universal requirement. The reorganization, when approved, becomes binding upon all depositors and general creditors of the bank regardless of consent. By the terms of a few statutes, non-assenting creditors are …

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Constitutional Law-Strike As Interference With Interstate Commerce Dec 1933

Constitutional Law-Strike As Interference With Interstate Commerce

Michigan Law Review

Whether the federal courts have jurisdiction to apply the mailed fist of the injunction to the settlement of strike disputes sometimes depends on whether the strike is deemed an interference with interstate commerce. Thus, the Supreme Court held in the recent case of Levering & Garrigues v. Morrin that relief must be denied a group of New York structural steel fabricators who sought to enjoin the boycott activities of the iron workers union, because " . . . the sole aim of the conspiracy was to halt or suppress local building operations as a means of compelling the employment of …

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Banks And Banking - Liability Of Bank For Paying Check After "Stop-Payment Order" Dec 1933

Banks And Banking - Liability Of Bank For Paying Check After "Stop-Payment Order"

Michigan Law Review

The plaintiff drew a check on the defendant bank in which he had deposited sufficient funds to meet his order. Before the check was presented, the plaintiff telephoned the defendant bank to stop payment. He described the check as to payee, date, number and amount and in the course of his conversation informed the bank employee that he was "Shude, from the Anchor Steel Co." The countermanding order was applied to the account of the Anchor Steel Co. and plaintiff's check was payed. Held, plaintiff should recover. Shude v. American State Bank, 263 Mich. 519, 248 N. W. …

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Evidence-The Unchastity Of A Female Witness As A Ground For Impeaching Her Veracity Dec 1933

Evidence-The Unchastity Of A Female Witness As A Ground For Impeaching Her Veracity

Michigan Law Review

The underlying question which we propose to consider is this: Has the trait of chastity any such definite correlation with that of veracity that courts are justified in using the former as a criterion of the latter? It must be apparent from even a brief survey of the decisions in this field, and the reasons given therefor, that on this question the courts are swayed far more than ordinarily by their emotional reactions. Buttressed with sentiments that cannot fail to stir the heart of the male in any monogamous community and riveted with references to religion as well as the …

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Banks And Banking-Liability Of Drawee Bank For Payment On Forged Indorsement Dec 1933

Banks And Banking-Liability Of Drawee Bank For Payment On Forged Indorsement

Michigan Law Review

Plaintiff's depositor gave to A a check, payable to A and B, in return for a chattel mortgage and a note, both signed by A and B. The check was indorsed and presented to the defendant bank for collection. The plaintiff paid the check, debiting the drawer's account. Two years later, when the note came due, it was found that B's name had been forged to the note, the mortgage, and the check. Plaintiff then credited its depositor's account with the amount of the check, and now seeks to recover from the defendant. The court held that …

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Book Notes, Michigan Law Review Dec 1933

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.

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Front Matter, Michigan Law Review Nov 1933

Front Matter, Michigan Law Review

Michigan Law Review

Front Matter for Volume 32, Issue 1 of Michigan Law Review

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Trust Mortgages - Funds Deposited With The Trustee - Right Of Receiver To Appropriate Nov 1933

Trust Mortgages - Funds Deposited With The Trustee - Right Of Receiver To Appropriate

Michigan Law Review

There are several important ways in which a receiver of a corporation may clash with the trustee under a trust mortgage as regards the use of funds deposited with the trustee. The receiver, who is acting for the benefit of the general creditors and the estate generally, often seeks to obtain funds in the hands of the trustee who represents the bondholders. Not infrequently the trust deed from which the trustee derives his authority contains provisions for the setting up by the mortgagor of a sinking fund; or for the retention of money obtained through the release of properties from …

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