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Michigan Law Review

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Contracts - Anticipatory Breach - Effect Of Election Dec 1932

Contracts - Anticipatory Breach - Effect Of Election

Michigan Law Review

The plaintiff leased a lot to a development company and the latter agreed to demolish the present buildings and begin the erection of new ones by April 1, 1934. The defendant was surety on a bond executed to insure performance. The development company was adjudged bankrupt and, on February 11, 1931, the trustee expressly repudiated the contract. On February 24 the plaintiff notified the trustee and the bankrupt that he refused to accept the disaffirmance of the contract and would hold them to performance. The plaintiff later brought suit on the theory that the action constituted an acceptance of the …

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Libel - Defamatory Statements In Appellate Brief - Publication Of Excerpts By Legal Scholar As Privileged Dec 1932

Libel - Defamatory Statements In Appellate Brief - Publication Of Excerpts By Legal Scholar As Privileged

Michigan Law Review

The right to reputation, at least as far as written defamation is concerned, is recognized as an absolute right, to be invaded at peril. Yet it often becomes necessary in the course of judicial proceedings to consider the character and acts of individuals and to make them the subject of inquiry or comment. On such an occasion the demands of society compel a surrender of the interests of the citizen and require an immunity from prosecution for what would otherwise constitute an actionable wrong.

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Torts - Due Care By Rescuer Dec 1932

Torts - Due Care By Rescuer

Michigan Law Review

Plaintiff, a woman about sixty years of age, described as "considerably overweight for her size and age," and her companion were swimming in a club pool. The companion went beyond her depth, called for help, and plaintiff went to her rescue. The lifeguard, believing plaintiff to be in difficulty, went to her rescue and, in pulling her over the bank of the pool, injured her arm, side, and back. From an award in favor of the plaintiff for $7,500, defendant, the lifeguard's employer, appealed. Held, the lifeguard owed the patron the duty of exercising ordinary care; judgment for plaintiff …

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Constructive Trusts - Land Purchased By Agent In Violation Of Fiduciary Obligation To Principal - Statute Of Frauds Dec 1932

Constructive Trusts - Land Purchased By Agent In Violation Of Fiduciary Obligation To Principal - Statute Of Frauds

Michigan Law Review

Plaintiffs employed defendant to negotiate for the purchase of a certain tract of land, defendant to receive a 5% commission if the purchase was made. Defendant contracted with the owner for the purchase of the land in his own name and made the down payment with his own funds. Plaintiffs demanded an assignment of the contract and on defendant's refusal brought suit to compel a conveyance of the property by defendant as trustee. Held, that a constructive trust may be created where an agent purchases with his own money property which he is employed to purchase for his principal, …

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Criminal Law And Procedure - Preliminary Examination Dec 1932

Criminal Law And Procedure - Preliminary Examination

Michigan Law Review

A statute provided: "No information shall be filed against any person for any offense until such person shall have had a preliminary examination therefor as provided by law before a magistrate, unless such person shall waive such right. . . . " The defendant was complained against before a magistrate on a charge of grand. larceny. The magistrate refused to hold the accused on such charge but held him to answer on a charge of receiving stolen property. The prosecutor filed an information charging grand larceny. The defendant moved to quash the information on the ground that he had had …

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Suretyship - Interpretation Of Surety Contract Dec 1932

Suretyship - Interpretation Of Surety Contract

Michigan Law Review

A bank sued to recover on a surety bond for loss sustained because of fraud practised by one of the vice-presidents on a customer. The bond provided that performance was subject to certain conditions and limitations, among which was one to the effect that the bank should notify the surety within ninety days of the default. The surety was not notified until the trial four years later. Held, notification is a condition precedent to liability, even though the surety was not prejudiced by lack of notice. National City Bank v. National Security Company, (C. C. A. 6th, 1932) …

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Quasi-Contracts - Statute Of Frauds - Right To Restitution Of Money Paid On Oral Land Contract Dec 1932

Quasi-Contracts - Statute Of Frauds - Right To Restitution Of Money Paid On Oral Land Contract

Michigan Law Review

Plaintiff paid $1,000 on an oral agreement for the purchase of land. Defendant admitted receipt of the money but alleged he was ready, able, and willing to comply with the terms of the agreement and convey the land. Held, that since the contract was void under the statute of frauds, plaintiff might recover. Reedy v. Ebsen, (S. D. 1932) 242 N. W. 592.

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Trade-Marks - Unfair Competition - Right To Prohibit The Use Of One's Personal Name As A Trade-Mark Dec 1932

Trade-Marks - Unfair Competition - Right To Prohibit The Use Of One's Personal Name As A Trade-Mark

Michigan Law Review

The plaintiff, De Nobili Cigar Co., had, over a period of years, added a secondary significance to its name when the defendant corporation organized, taking its name, F. G. Nobile Cigar Co., from one of its members who was not a manufacturer of cigars, and who received stock for such use of his name and his managerial ability. The lower court decreed that the labels of the defendant should be so changed as to be distinguishable from those of the plaintiff and that the phrase, "of Providence, R. I.," be added to its name to distinguish it from the plaintiff …

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The Declaratory Judgment As An Exclusive Or Alternative Remedy, Edwin M. Borchard Dec 1932

The Declaratory Judgment As An Exclusive Or Alternative Remedy, Edwin M. Borchard

Michigan Law Review

In a recent Michigan case the seller of a boiler, claiming a chattel mortgage therein for the unpaid purchase price, brought an action against the person who had bought the boiler at a bankruptcy sale of the property of the original buyer for a declaration that the plaintiff had the right to possession, or in the alternative, that the defendant was under a duty to pay the balance of the original purchase price. The defendant claimed to be the owner free of the mortgage. A majority of the Michigan Supreme Court, on its own motion, for the propriety of the …

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What Is A "Contract" Under The Contracts Clause Of The Federal Constitution?, Paul G. Kauper Dec 1932

What Is A "Contract" Under The Contracts Clause Of The Federal Constitution?, Paul G. Kauper

Michigan Law Review

The case of Coombes v. Getz, recently decided by the United States Supreme Court, raises in a crucial way the question of what is a contract within the meaning of Article I, section 10 of the Constitution, forbidding States to pass laws impairing the obligations of contracts. A provision of the California Constitution in force at the time the plaintiffs brought this action in the state court below made directors of corporations jointly and severally liable to the creditors and stockholders for all moneys embezzled or misappropriated by the officers of the corporation during the term of office of …

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Broadening Legal Education, Edgar Noble Durfee Dec 1932

Broadening Legal Education, Edgar Noble Durfee

Michigan Law Review

The adoption of the case-method was a wild venture into the unknown, and even now, after a half century of experience, its wisdom is not proved in any strict sense. I remind the reader of this in order that there may be between us a clear understanding that any discussion of legal education moves in the realm of opinion. And there are other difficulties. Legal education is an eminently practical business, a tangle of conflicting factors. Wisdom lies in compromise and patient shaping of details. I shall therefore concern myself not so much with formulation of principles as with details …

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Constitutional Law - Due Process And Equal Protection - Right Of Counsel Dec 1932

Constitutional Law - Due Process And Equal Protection - Right Of Counsel

Michigan Law Review

The Scottsboro cases decided by the Supreme Court at the present term raise several interesting constitutional questions. The judgments were assailed on the ground that they were violative of the due process and equal protection clauses of the Fourteenth Amendment in three respects: (1) that the negroes were tried by juries from which members of their race were systematically excluded; (2) that they were not accorded a fair, impartial and deliberate trial; (3) that due process was denied because the right of counsel, with the usual incidents of consultation and adequate preparation for trial, was lacking. While the Supreme Court …

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Practice And Procedure - Substituted Service Of Process Dec 1932

Practice And Procedure - Substituted Service Of Process

Michigan Law Review

A statute provided for substituted service of process on a defendant "by leaving a copy thereof at his usual place of residence with some member of his family over fourteen years of age." Held, a maid with no definite term of employment is not a member of the family upon whom substituted service may be made under the provisions of the statute. Thompson v. Butler, (Iowa 1932) 243 N. W. 164.

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Assignment Of Money Claims (Particularly Wage Claims) - Restraint On Alienation Dec 1932

Assignment Of Money Claims (Particularly Wage Claims) - Restraint On Alienation

Michigan Law Review

If a contract has been performed on one side so that all that remains is an obligation to pay and a right to receive money, can the parties by agreement effectively prevent the assignment of the claim? The Illinois Supreme Court had this question before it for consideration in the case of State Street Furniture Co. v. Armour & Co., where the plaintiff was the assignee of wages due to an employee of the defendant, the employee having agreed not to assign his wages without the written consent of his employer. The court decided that the restrictive agreement had …

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Contracts - Executed Modification - Consideration Dec 1932

Contracts - Executed Modification - Consideration

Michigan Law Review

A and B in 1912 entered into a written contract of separation in which B, the wife of A, gave up her marital rights and A promised to pay to her $75 per month thereafter. Six years later B orally agreed to reduce the payments to $25 per month. B accepted the reduced payments for a period of twelve years. B then brought suit for $10,000, asserting that there was no consideration for the modified agreement. Held, that the modified agreement was executed and would not be disturbed for want of consideration. Vigelius v. Vigelius, (Wash. …

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Book Notes And Notices Dec 1932

Book Notes And Notices

Michigan Law Review

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

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Burden Of Proof In Rate Cases Involving Inter-Corporate Charges, William E. Treadway Nov 1932

Burden Of Proof In Rate Cases Involving Inter-Corporate Charges, William E. Treadway

Michigan Law Review

The United States Supreme Court has held repeatedly that dealings between intercorporately related companies should be scrutinized closely to prevent any unfair advantage being taken of a subsidiary public utility company by a dominant organization through an exercise of the control inherent in capital stock ownership.1 Yet in an opinion written by Mr. Justice McReynolds in 1923, the court laid down a rule for utilities commissions in rate cases involving intercorporate service-contract charges which, if strictly adhered to, would have sounded the death knell for effective commission regulation.

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Constitutional Law-Conclusiveness Of Consent Of Senate To Presidential Appointment Nov 1932

Constitutional Law-Conclusiveness Of Consent Of Senate To Presidential Appointment

Michigan Law Review

On December 3, 1930, President Hoover submitted to the Senate the name of George Otis Smith as chairman and member of the Federal Power Commission, which Congress had created by an act approved June 23, 1930. On December 20, 1930, the Senate in open executive session voted to advise and consent to Smith's nomination. The president pro tem. announced that the President would be notified, and there was no objection. On the same day it was ordered that all resolutions of confirmation that day passed be forwarded "forthwith" to the President. The secretary of the Senate formally notified the …

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Injunctions Of State Courts Restraining Parties From Proceeding In The Tribunals Of Other States Nov 1932

Injunctions Of State Courts Restraining Parties From Proceeding In The Tribunals Of Other States

Michigan Law Review

It has long been accepted that a court of equity, acting in personam, can enjoin one over whom it has jurisdiction from bringing an action in a foreign tribunal. A nice question is presented when an effort is made to determine on what occasions the court will exercise that power. It is frequently said that it will be exercised but sparingly, and then only where a clear equitable right is established by the petitioner. This, in spite of the strong language commonly accompanying such statements, is no more than that which the court requires for the issuance of any …

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Municipal Corporations-Power Of Board Of Appeals To Vary Application Of Zoning Ordinance Nov 1932

Municipal Corporations-Power Of Board Of Appeals To Vary Application Of Zoning Ordinance

Michigan Law Review

Although there was some dispute among the earlier authorities, it is the rule today that comprehensive zoning ordinances, if enacted under proper legislative authority, are constitutional and will be upheld in so far as they are reasonable in application. In order to give aggrieved property owners an opportunity to obtain relief upon the basis of the ordinance itself without attacking its constitutionality, it has become common practice to give the board of appeals the power to vary the operation of the ordinance in specific cases.

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Vendor And Purchaser-Right Of Purchaser To Exoneration As To A Prior Vendor's Lien Nov 1932

Vendor And Purchaser-Right Of Purchaser To Exoneration As To A Prior Vendor's Lien

Michigan Law Review

The case of McClure v. Southfield Woods Corporation, decided by the Michigan supreme court last year, raised an interesting question as to whether a contract vendee of land which is included in a tract subject to a pre-existing vendor's lien has a right of exoneration against his vendor as to such incumbrance. The plaintiff in that case had sold land to the Southfield Woods Corporation by a contract which provided for joinder of the vendor and vendee in a subdivision plat and for release of any lots from the vendor's lien upon payment of a stipulated sum, in addition …

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Comment Upon Failure Of Accused To Testify, Robert P. Reeder Nov 1932

Comment Upon Failure Of Accused To Testify, Robert P. Reeder

Michigan Law Review

Last year the American Law Institute and the American Bar Association adopted resolutions declaring that when the defendant in a criminal trial does not testify the prosecution should be permitted to comment upon that fact. They urged the overthrow of a rule of law which have prevailed in the federal courts ever since accused persons were first permitted to give testimony, over fifty years ago, and which has governed the courts of forty-two out of the forty-eight states. The discussions which preceded the adoption of the resolutions have been published. In them the advocates of the change do not show …

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Constitutional Law-Stare Decisis Nov 1932

Constitutional Law-Stare Decisis

Michigan Law Review

The defendant corporation, a lessee of school lands from the state of Oklahoma, protested the right of the Commissioner of Internal Revenue to tax its net income. Held, under the rule of Gillespie v. Oklahoma, the income cannot be taxed without interfering with a state instrumentality. Four dissenting justices-Stone, Brandeis, Roberts, and Cardozo--admitted the applicability but denied the wisdom of the Gillespie case and the inability of the court to overrule itself, in Burnet v. Coronado Oil and Gas Co.

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Contracts-Assignment-Liability Of Assignee For Non-Performance Of Delegated Duties Nov 1932

Contracts-Assignment-Liability Of Assignee For Non-Performance Of Delegated Duties

Michigan Law Review

Plaintiff bank extended credit to cover checks drawn by X, a cattle buyer, who agreed that the proceeds of the sale of the cattle would be deposited to the bank's credit in A bank. X gave an order to the defendant, his commission broker, to retain the proceeds of the sale of the cattle and deposit them in A bank to the credit of the plaintiff. Defendant deposited the proceeds in its own name in B bank and sent its check to A bank. B bank became insolvent and the check was never paid. Held, in Wallowa Nat. …

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Intoxicating Liquors-Statutory Construction-Forfeiture Of Conveyance Nov 1932

Intoxicating Liquors-Statutory Construction-Forfeiture Of Conveyance

Michigan Law Review

Cars in which liquor was imported were seized by the government. The operators were prosecuted for violation of the customs laws, and the government attempted to declare forfeiture of the cars under the customs laws. Lienors whose rights are not recognized under these laws intervened and claimed that forfeiture could be declared only under the National Prohibition Act which saves the rights of lienors. Held, in General Motors Acceptance Corp. v. United States, that forfeiture may be declared either under customs laws or the National Prohibition Act.

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Torts-Liability For Innocent Misrepresentation-Plaintiffs Reliance Nov 1932

Torts-Liability For Innocent Misrepresentation-Plaintiffs Reliance

Michigan Law Review

Defendant's agent innocently misrepresented the amount of special tax assessments on property purchased by plaintiff. Before purchase plaintiff searched the records at the office of the commissioner of finance. The records confirmed the agent's statement. However, after purchase, an error was discovered and the unpaid assessments were found to be greater than supposed. Plaintiff brought an action for damages. Held, in Moulton v. Norton that, as the representation was false in fact, plaintiff could recover though the representation had been made honestly.

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Contracts-Beneficiaries-Right Of Employee To Sue On A Contract Made Between Employer And Union Nov 1932

Contracts-Beneficiaries-Right Of Employee To Sue On A Contract Made Between Employer And Union

Michigan Law Review

Defendant agreed with an employees' union that its employees would not be discharged without cause or without a hearing. The plaintiff, who entered into an employment contract with the defendant for an indefinite term, was discharged by the latter without a hearing, and sued as a third party beneficiary for breach of the defendant's agreement with the union. Held, in Johnson v. Am. Ry Express Co., that this agreement was a valid third party beneficiary contract, and so enforcible by the plaintiff who was one of the parties intended to be benefited by it.

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Front Matter, Michigan Law Review Nov 1932

Front Matter, Michigan Law Review

Michigan Law Review

Front Matter for Volume 31, Issue 1 of Michigan Law Review

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Restrictive Indorsements Nov 1932

Restrictive Indorsements

Michigan Law Review

Under Sec. 36 of the N. I. L. an indorsement is restrictive which prohibits further negotiation or constitutes the indorsee the agent of the indorser or vests the title in a trustee in trust for some other person. The mere absence of words importing a power to negotiate does not, however, make the indorsement restrictive. Among the rights of a restrictive indorsee as declared by Sec. 37 is the one to bring "any action thereon that the indorser could bring." The remaining provision of the statute dealing with such indorsements is Sec. 47, which provides that "An instrument negotiable in …

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Corporations-Validity Of Default Provisions In Trust Mortgages Nov 1932

Corporations-Validity Of Default Provisions In Trust Mortgages

Michigan Law Review

Ordinarily a secured creditor can take action to protect his claim against his debtor. When, however, the creditor is only one of many whose claims are equal in lien and right, it may be undesirable that any single creditor should be able to take independent action. This fact has led draftsmen to insert in corporate mortgages provisions limiting the rights of minority bondholders to take action in the event of default under the mortgage. The use of such provisions has created an apparent hotbed of judicial dissension.

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