Digital Commons Network^™

Real Property-Unenforceability Of Restrictive Covenants-Methods Of Protecting Plan, Charles B. Blackmar S.Ed.

Michigan Law Review

The restrictive covenant is a device by which property owners can gain some degree of assurance that neighboring property will not be used in an objectionable way. The restrictions are usually reciprocal and negative, common examples being building restrictions, regulations as to use for business, and prohibitions against occupancy by certain races. By private agreement much greater protection can be had than is afforded by zoning ordinances and nuisance doctrines.

Witnesses-Dead Man Statutes-Competence Of Spouse Of Party Or Interested Person-Effect Of Divorce, James E. Tobin S.Ed.

Michigan Law Review

The "Dead Man" statutes, enacted in various forms in almost every state, generally forbid a party or person interested to testify in an action involving a decedent's estate. As is well known, these statutes are the lone survival of the common law rule disqualifying parties and persons interested as witnesses in all actions, a rule which has otherwise been universally repudiated because of the realization that pecuniary interest does not necessarily raise any large probability of falsehood and that, even if it did, the risks of admitting such testimony can easily be minimized and are far outweighed by the advantages …

Constitutional Law-Tax Exemption Contract, Grétel Schinnerer

Michigan Law Review

A charter granted in 1863 by the State of Georgia to the Atlantic Coast Line Railroad Company provided as follows: "The stock of said company shall be subject to a tax not exceeding ½ per cent per annum on the net proceeds of its investments." In 1931, the Georgia legislature levied a tax of 5½ per cent on corporate net income. The railroad brought an action seeking to have an assignment under this tax declared invalid, on the theory that the tax as applied to the plaintiff railroad violated the contract clause of the federal Constitution. The Georgia Supreme Court …

Contracts--Consideration-Performance Of One Alternatlve When There Is Dispute As To Which Is Owed, L. B. Lea

Michigan Law Review

Defendant issued a membership certificate to one Flowers providing for payment of $5000 in case of accidental death or $500 in case of death due to heart disease. Later Flowers was injured in an automobile accident and died an hour afterward. The beneficiary submitted proofs of loss, including a statement of a physician that death was caused by "coronary thrombosis. Shock from auto accident about one hour before death." Defendant sent to the beneficiary a draft for $500 clearly stating on its face that the endorsement of the check would be a settlement in full. After cashing the check, the …

An Interim Account On Comparative Conflicts Law, Ernst Rabel

Michigan Law Review

Under the sponsorship of the American "Law Institute and subsequently of the University of Michigan, with the efficient assistance of the Faculty, notably of Hessel E. Yntema as editor, I published the first volume of a work on conflicts law in 1945. A second volume has just followed, after a long delay caused by the vicissitudes of postwar printing. The greater part of a third volume has been readied in the meantime, but its date of publication is not yet fixed.

The task consists in surveying the existing and proposed conflicts rules of the world and in ascertaining their background, …

Contracts-Law Applying To Government Contracts-Penalty Clauses, Hubert L. Rowlands S.Ed.

Michigan Law Review

Petitioner contracted with the Federal Surplus Commodities Corporation of the United States Department of Agriculture to supply dried eggs under the Lend-Lease Act of 1941. Delivery was to be made on the "first day of a 10-day period within which the F. S. C. C. will accept delivery." The ten-day period started on May 18, 1942, and the eggs were to be inspected and ready for shipment on that date. Two provisions for "liquidated damages" were stated: one for delays in delivery, the other for failure to have the products inspected and ready on the specified dare. Petitioner failed to …

Corporations-Insolvency-Corporate Officers As Preferred Wage Claimants, E. C.V. Greenwood

Michigan Law Review

A closed corporation, soon after its formation, executed an assignment for the benefit of creditors. One of the large creditors objected to a preferred wage claim allowed by the assignee to a vice-president and director of the assignor, the officer who had in fact been instrumental in executing the assignment. The claim was for wages amounting to two hundred fifty dollars for alleged manual work for the assignor prior to the assignment and was granted by the assignee on the theory that preferential treatment was authorized by the New York debtor and creditor statutes. The applicable statute reads as follows: …

Corporations--Section 10b Of The Securities Exchange Act--Rule X-10b-5--Duty Of Disclosure In Purchasing Shares, John E. Grosboll S.Ed.

Michigan Law Review

Plaintiffs (father and son) and defendants (two brothers) had owned all the capital stock of two corporations. The four constituted the entire board of directors. Defendants secretly entered into a contract with the National Gypsum Company agreeing to sell the latter the plant and equipment of one of the corporations and one third of the output of the other corporation over a three year period. Later the defendants purchased all of plaintiffs' stock in the two corporations. At that time plaintiffs knew nothing about the negotiations between defendants and National Gypsum, nor did defendants make any disclosures relative thereto. At …

Corporations-Stockholder's Derivative Suit-Liability Of Dirrectors For Acts In Labor Dispute, William J. Schrenk

Michigan Law Review

Plaintiff, for himself and all other stockholders of R corporation similarly situated, brought action against the directors of the corporation, alleging that they had caused the dismantling and removal of corporate factories and the curtailment of production, that great loss to the corporation had been caused thereby, and that these things were done solely to discourage and punish the corporation's employees by removing hope of re-employment. Defendants moved to dismiss the complaint for failure to state a cause of action. The trial court denied the motion. The appellate division reversed, stating that the complaint showed only a reasonable exercise of …

Evidence-Parol Evidence Rule-Admission Of Parol Evidence To Show Contract Was Sham, Frank E. Roberts S.Ed.

Michigan Law Review

Plaintiffs, executors, brought a bill in equity for an accounting on a contract between defendant and one Broder, deceased, dated April 27, 1944, as modified by a writing dated July 24, 1944. In support of a motion to dismiss, defendant offered parol evidence to show that the writing dated July 24, 1944 was actually executed December 31, 1944 and was not intended to bind the parties, but was designed to effectuate a scheme by which certain advancements to be made to Broder for services rendered in 1945 would be treated as salary paid to Broder during 1944 for purposes of …

Executors And Administrators-Tort Action Against Personal Representative After Estate Is Closed, Leroy H. Redfern S.Ed.

Michigan Law Review

Plaintiff sustained personal injuries due to the negligent act of an employee in a business operated by defendant executor with court authorization. Eight months after the accident occurred the assets of the estate were distributed and the executor discharged. Four months later the plaintiff instituted a suit for damages against defendant in his individual capacity. Held, discharge of the executor did not relieve him of personal liability for the tortious acts of his agent. Johnston v. Long, ( Cal. 1947) 180 P. (2d) 21, as modified on denial of rehearing 181 P. (2d) 645.

Federal Courts--Rule 33 Of Rules Of Criminal Procedure--Power To Grant A New Trial After Affirmance, Irving Slifkin S.Ed.

Michigan Law Review

One John Memolo was convicted of tax evasion in the District Court of the United States for the Middle District of Pennsylvania. The defendant's motion for a new trial, on the ground of prejudicial conduct of the trial judge, was denied. He then appealed assigning as error all of the grounds stated in his motion and also the denial of the motion for a new trial. The circuit court of appeals affirmed the conviction. The sentence was executed and the defendant imprisoned in a federal penitentiary. Then the district judge reconsidered, and in the interest of justice directed that the …

Future Interests-Rule Against Perpetuities--Validity Of An Option Incident To A Lease Exercisable After The Expiration Of The Lease, Irving Slifkin S.Ed.

Michigan Law Review

On November 13, 1941, plaintiff entered into a lease with defendant granting defendant the exclusive right to mine and remove coal from plaintiff's mine for twenty years. Incident to the lease defendant was granted the option, "at any time subsequent to November 1st, 1945, to purchase the remaining tonnage of recoverable coal" at a specified price. A deed thereto was placed in escrow. In January, 1946, defendant elected to exercise the option, tendered the price, and received the deed from escrow. Plaintiff refused to recognize the validity of the option and commenced an action in equity to cancel the deed …

Criminal Law-Failure Of Accused To Testify--Extent Of Judge's Instruction In Federal Courts, Carson C. Grunewald

Michigan Law Review

In a prosecution against defendant for violation of the White Slave Traffic Act, the trial judge instructed the jury that defendant's failure to testify should not be considered by them in determining his guilt or innocence. On appeal from conviction, held, there was no error in this instruction. United States v. Fleenor, (C.C.A. 7th, 1947) 162 F. (2d) 935.

Insurance-Automobile Liability-Meaning Of "Permission" In Omnibus Clause, A. E. Anderson S.Ed.

Michigan Law Review

Plaintiff's car was damaged in a collision with a truck driven by W, owned by M, and insured in the name of M by defendant. The policy contained an omnibus clause extending coverage to "any person legally using or operating the ['motor vehicle] with the permission, express or implied, of such owner." S had general charge of the truck, as an employee of M, and had previously used it for his own purposes to the knowledge of M, who made no objection. At the time of the accident, S was returning from a tavern with W …

Jury-Effect Of Deviation From Statutory Procedure For Excusing Jurors, Jarrett R. Clark

Michigan Law Review

In a prosecution for murder, a special venire was summoned and a list thereof served on the accused. On the day of trial, he learned for the first time that the trial judge had excused twenty-six of the seventy-four veniremen summoned. The excuses out of court violated a statute requiring that all requests for excuse be heard in open court. More than the minimum number of veniremen were present, and when it appeared that the original array might be exhausted thirty additional veniremen were called. Accused's motions to quash the jury panel and for a mistrial were overruled. On appeal …

Municipal Corporations-Validity Of Juke Box Licensing Ordinance As Exercise Of Police Power, Edward S. Tripp S.Ed.

Michigan Law Review

Plaintiff owned and operated coin-operated phonographs, commonly known as juke boxes, in the City of New Kensington, Pennsylvania. The city enacted an ordinance making the possession of coin-operated phonographs or music boxes within the city without a license illegal. An annual license fee of $25.00 per machine was imposed and violators were subjected to fine and imprisonment, each day of illegal operation constituting a separate offense. Plaintiff sought to enjoin enforcement of the ordinance, alleging that it would cause him irreparable injury and that it was unconstitutional because beyond the legislative power of the city council. An injunction was granted …

Practice And Procedure-Proceedings For Restoration Of Sanity -Who May Appeal From An Adjudication Of Sanity, Chester Lloyd Jones S.Ed.

Michigan Law Review

In a proceeding commenced by a guardian ad litem in a probate court to determine whether an incompetent might be adjudged sane, the committee was made respondent and resisted the adjudication of sanity. From a judgment of competency, the committee appealed to the proper court of general jurisdiction. The applicable statutes specifically gave only the petitioner the right to appeal in proceedings for restoration of sanity, but another statute gave the right to appeal from probate to circuit courts to "any person interested in any . . . decree of any probate court, and considering himself injured thereby." Petitioner moved …

Rights In Land-Legal Status Of The Spite Fence, Leroy Redfern

Michigan Law Review

Defendants erected a brick wall upon their lot in a manner that cut off light and air to the first floor window of the adjoining premises belonging ,to plaintiffs. Plaintiffs brought a bill in equity to compel removal of the wall. Upon finding that the wall was built merely to annoy plaintiffs, and that it was of no beneficial use to defendants, the chancellor ordered it removed. On appeal, held, reversed. Defendants being lawfully entitled to erect the wall upon their land, the court will not inquire into their motive for so doing. Cohen v. Perrino, (Pa. 1947) …

Trusts-Charities-Erection Of Monument, J. Barrett

Michigan Law Review

Testatrix directed "that my executors . . . erect in the courthouse park at Madera, California, a granite tower . . . to contain a carillon . . . to be placed in the park at a reasonable cost . . . with an inscription . . . to be cut in a conspicuous place on the granite . . . to read as follows: 'Dedicated to the memory of all those . . . who strove to make Madera and Madera County all that it is. John L. Butin, M.D. Mary Ryerson Butin, M.D.'" Held, the devise constituted …

Trusts-Rule Against Perpetuities-Tetamentary Trust For Maintenance Of Testatrix' Home As Depository For Ashes Of Testatrix And Daughter, Richard L. Eckhart S.Ed.

Michigan Law Review

Testatrix provided that her body should be cremated, the ashes mixed with the ashes of her deceased daughter, and both placed in a designated room on the second floor of testatrix' home. The executors were directed not to sell the home but to use rentals from the first floor to maintain it, such rentals to be obtained from any member of the Socialist Party whom the executors should find proper and able to pay the rental. Held, the attempted disposition was invalid as a violation of the rule against restraints on alienation. Alexander v. House, (Conn. 1947) 54 …

Wills-Failure Of Residuary Clause To Pass Undevised Property, Robert T. Haines

Michigan Law Review

Decedent, in his will, declared that he had, by trust agreement of even date, "disposed of all my intangible personal property, both during the remainder of my lifetime and after my death. Said Trust Agreement does not include within its terms my real estate, my tangible personal property, or any money. . . . This will is, therefore, specifically designed to provide for the distribution of said real estate, tangible personal property, and money." After certain specific gifts decedent directed that, "all the rest and residue of my estate, of every description, real, personal and mixed, and wherever situated," be …

Carrow: Background Of Administrative Law, Michigan Law Review

Michigan Law Review

A Review of BACKGROUND OF ADMINISTRATIVE LAW. By Milton M. Carrow.

Hastings: The Court Of Common Pleas In Fifteenth Century England, Michigan Law Review

Michigan Law Review

A Review of THE COURT OF COMMON PLEAS IN FIFTEENTH CENTURY ENGLAND. By Margaret Hastings.

Kennedy: Federal Income Taxation Of Trusts And Estates, Michigan Law Review

Michigan Law Review

A Review of FEDERAL INCOME TAXATION OF TRUSTS AND ESTATES. By Lloyd W. Kennedy.

Carr: Federal Protection Of Civil Rights: Quest For A Sword, Michigan Law Review

Michigan Law Review

A Review of FEDERAL PROTECTION OF CIVIL RIGHTS: QUEST FOR A SWORD. By Robert K. Carr.

Van Doren: The Great Rehearsal, Michigan Law Review

Michigan Law Review

A Review of THE GREAT REHEARSAL. By Carl Van Doren.

Doan: The La Follettes And The Wisconsin Idea, Michigan Law Review

Michigan Law Review

A Review of THE LA FOLLETTES AND THE WISCONSIN IDEA By Edward N. Doan.

Thomas: Portrait For Posterity, Michigan Law Review

Michigan Law Review

A Review of PORTRAIT FOR POSTERITY. By Benjamin P. Thomas.

Notes, Michigan Law Review

Michigan Law Review

The information given in the notes is derived from inspection of the books, publisher's literature, and the ordinary library sources.