Digital Commons Network^™

Taxation-Capital Stock Tax-What Constitutes "Doing Business", James E. Dunlap

Michigan Law Review

The capital stock tax is an excise tax levied not on the business itself but on the exercise of the privilege of doing business in a corporate capacity; hence the determination of tax liability involves a decision in each case as to whether the corporation is carrying on or doing business within the meaning of the tax statutes.

Current Periodical Index, Michigan Law Review

Michigan Law Review

This department lists the articles and comments which appear in twenty-five leading law reviews. The index embraces material published since the last issue of this REVIEW.

Patents - Estoppel Of Licensee To Deny Validity - Restrictions On Licensee's Sale Prices

Michigan Law Review

Plaintiff sued to recover royalties alleged to be due under a contract licensing defendant to manufacture articles covered by a patent owned by the plaintiff. The agreement provided that defendant licensee should not sell embodiments of the invention manufactured under the license at prices or under conditions more favorable to its customers than those prescribed by the licensor for its own customers. The defendant set up the defense that plaintiff "by reason of the price control provisions of the licensing contract and the invalidity of [the patent]" was not entitled to recover the royalties. The district court and the circuit …

Powers - Less Than Outright Appointments, H. Marshall Peter

Michigan Law Review

The decedent created a voluntary trust, providing for income payments to himself during his life and upon his death to X for her life, and directing the trustee "at her death to pay over and deliver the principal of said trust to whomsoever may be designated by her by Will or other testimentary instrument . . . . " In the event that she failed to make such designation, her descendants, or, if there were none, her heirs were to receive the principal. X in her will gave her husband a life estate and, on his death or remarriage, bequeathed …

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.

Constitutional Law - Validity Of Rent Provisions Of Emergency Price Control Act, George T. Schilling

Michigan Law Review

The administrator of the Office of Price Administration brought an action in a federal district court to enjoin defendant from violating the rent provisions of the Emergency Price Control Act of 1942, and orders and regulations issued pursuant thereto. Defendant, by way of counterclaim, challenged the constitutionality of the act and Regulation No. 10 and sought an in junction restraining plaintiff from enforcing against her the provisions of the act, from interfering with the use and occupancy of her premises and her right to invoke the jurisdiction of the state courts, and requesting the suspension of the penal provisions of …

This Issue Is Dedicated To The Late Professor Edwin C. Goddard, Grover C. Grismore, E. Blythe Stason

Michigan Law Review

Edwin C. Goddard, a professor emeritus of the University of Michigan Law School, died in Ann Arbor, after a brief illness, on Friday, August 14, 1942. Those of us who were associated with him during his many years of service to the Law School feel that we have lost a wise adviser, a capable and faithful associate, and a loyal friend.

Sales - Warranty - Significance Of Phrase "Reasonably Fit For Purpose"

Michigan Law Review

The purchaser of a mechanical corn picker sued to recover the money paid for it, alleging that the seller had warranted that the machine was reasonably fit for the purpose whereas in use it missed a third of the ears, shelled some of those it did pick, husked others poorly and knocked down standing corn. The appellate court reversed a judgment for the defendant seller, because the trial court had instructed the jury that the warranty required only that the machine should do the work as satisfactorily as other mechanical pickers of that time would do it. Juvland V. Wood …

The Legal Status Of The Netherlands, Bartholomew Landheer

Michigan Law Review

The transfer of the Netherlands Government to London involves a number of legal aspects which are of great interest. In the first place, the term "government" deserves a closer scrutiny. Under an absolute monarchy or a totalitarian form of government the king or ruler combines the legislative, executive and judicial powers. Under a democracy or a constitutional monarchy the situation becomes far more complicated.

It is stated in the Netherlands Constitution that the executive power is vested in the king. The legislative power, however, is exercised by the king and States-General together. Thus, if, as in the case of the …

Front Matter, Michigan Law Review

Michigan Law Review

Front Matter for Volume 41, Issue 4 of Michigan Law Review

Commissioner Benjamin's Report On Administrative Adjudication In New York, Gilbert H. Montague

Michigan Law Review

In his annual message to the New York Legislature in January, 1939, after recalling that at the 1938 election the people had rejected a proposal that would "freeze into the Constitution a rigid procedure" for "the judicial review of the facts as well as of the law of virtually all decisions of administrative officers and agencies," Governor Lehman announced: "Modification of procedure, if needed, should be undertaken only after careful study of each administrative process on an individual basis. As part of my plan always to improve and perfect the administrative branch of government, intend to appoint a commissioner under …

What Constitutes A Fair Procedure Before The National Labor Relations Board, Clyde W. Summers

Michigan Law Review

No administrative body in recent times has received as much criticism, both favorable and unfavorable, as has the National Labor Relations Board in its administration of the National Labor Relations Act. Such a vast amount of material has been written on the procedure before the board that any further discussion would seem superfluous. However, the discussion of the board's procedure has been related more to the wisdom of choice which the board has made in setting up its procedure than to a determination of the line that separates legality from illegality in its determination of cases.

Corporations - Dissolution At Suit Of A Minority Stockholder, E. George Rudolph

Michigan Law Review

The general statement has often been made that a court of equity has no power to dissolve a solvent corporation at the suit of a minority stockholder, in the absence of special statutory authority. However, some of the cases which seem to support this rule hedge considerably by saying that "ordinarily" or "generally" equity has no such jurisdiction. These cases would seem little different than those which hold that a court of equity has inherent jurisdiction to dissolve a corporation but will exercise it only in cases of extreme necessity. The latter seems to be the prevailing view and on …

Legal Techniques And Political Ideologies: A Comparative Study, Alexander H. Pekelis

Michigan Law Review

The problem with which we are going to deal is one of comparative law, a discipline probably even more illusory than legal science itself. A body of laws represents in itself neither a social reality nor a social ideal. One of the difficulties that every historian faces in trying to reconstruct a period of the past with the help of legal monuments is due to the great variety of relations existing between legal rules and social reality. So, e.g., legal monuments generally contain in an inextricable confusion at least two contradictory types of rules: rules which are a simple restatement …

Attorney And Client - Malpractice - Accrual Of Action - Statute Of Limitations

Michigan Law Review

Plaintiff, in March, 1934, while in the employ of a manufacturing concern, suffered severe injuries. In September, 1935, he employed the defendant, an attorney, to present and prosecute a claim for compensation. The claim was filed in March, 1937; it was dismissed by the Industrial Commission on the ground that it was barred by the two-year statute of limitations governing such claims. Apparently the attorney, continuing his efforts on behalf of his client, persuaded the employer to make a voluntary settlement, for the plaintiff alleges that, in May of 1940, he endorsed the employer's check over to the attorney, accepted …

Conflict Of Laws-Refugee Government Property Conservation Decrees In The Courts Of The United States, Robert D. Ulrich

Michigan Law Review

In the Feuchtwanger case, a French government decree of April 24, 1940, as amended May 10, 1940, defined as prohibited exportation of capital "the acts of allowing to remain outside of French territory, or keeping in foreign exchange or foreign currencies, or of not collecting within the territories fixed by decree or instruction of the Minister of Finance, all or part of the proceeds of the exportation of merchandise, or of the remuneration for services, as well as all or part of all proceeds or income abroad."

In May 1939, plaintiff, then a resident of France, purchased a number of …

Assault And Battery - Defense Of Property

Michigan Law Review

In a suit brought to recover damages for the death of plaintiff's husband the evidence indicated that the deceased, and other intruders, entered defendant's place of business after having been ordered to leave. The group "threw bricks and other missiles at Gennaro, destroying whiskey bottles and other property, whereupon Gennaro secured a pistol and shot and killed Wade." It was held that defendant was justified in killing the inebriated trespasser. Wade v. Gennaro, (La. App. 1942) 8 So. (2d) 561.

Libel And Slander - Absolute Privilege - Affidavit To Support Petition To Set Aside Judgment

Michigan Law Review

Judgment in a case against Dorothy Mann by the administratrix of a certain estate was rendered in April, 1934. Action to vacate this judgment was instituted in September, 1936. In May, 1936, Irving Mann, defendant in the principal case, executed an affidavit which contained libellous matter defaming the present plaintiff; this affidavit was used to support the petition to set aside the earlier judgment. Held, the defamatory affidavit would not support plaintiff's defamation action; the occasion was one of absolute privilege. Schmitt v. Mann, (Ky. 1942) 163 S. W. (2d) 281.

Constitutional Law - Constitutionality Of Tire Rationing, Malcolm M. Davisson

Michigan Law Review

Plaintiff, Price Administrator, sought to enjoin defendants from selling rubber tires and tubes to consumers without tire rationing certificates as required by the tire rationing regulations. Defendants contended that the regulations were void under the Fifth Amendment as taking of property without due process of law and without just or any compensation. Held, judgment for plaintiff. The tire rationing regulations, a proper exercise of the war powers vested by Congress in the President or some duly constituted department, agency, or officer of the federal government, are not in contravention of the prohibition of the Fifth Amendment against the taking …

Taxation - Federal Income Tax - Capital Gain On Sale Of Partnership Interest, Herbert Sott

Michigan Law Review

In 1936, a taxpayer sold his interest in a partnership the assets of which were mainly acquired subsequent to his entering the partnership in 1932. The government contended that the taxpayer acquired and disposed of an interest in specific partnership assets and that the period for determining the capital gains percentages was properly measured from the date of acquisition of the specific capital assets. In his suit for refund on part of the tax thus computed, the taxpayer claimed that the partnership was a separate juristic entity, that his interest therein was an intangible capital asset, and that the period …

Admiralty - Actions Against Shipowners For Loss Of Cargo - Burden Of Proof Of Seaworthiness, Michigan Law Review

Michigan Law Review

A recent decision of the United States Supreme Court has laid to rest a number of complex problems involved in allocating the burden of proving seaworthiness between shipowners and injured cargo owners. While these general problems are by no means peculiar to maritime law, one plausible explanation for their unusual importance here might be found in the inherent difficulty which confronts the fact-finder when he attempts to accumulate information regarding accidents at sea. Fathoms of water may separate him from his evidence, and even where the source of injury is more accessible, the complex science of navigation and ship construction …

Trade Restraints - Resale Price Maintenance - Use Of Competitors As Agents, Michigan Law Review

Michigan Law Review

Masonite Corporation, the principal defendant, manufactured and sold for construction purposes a patented wood product known as "hardboard." The other defendants sold, and many of them manufactured, building materials, several having patents that competed with Masonite. After a short period of patent litigation between Masonite and one of its chief competitors, a plan was devised and gradually extended to the other defendants, by which the latter were constituted the del credere agents of Masonite to sell its product at prices and according to terms which it should establish. The agents were not to use the trademarks of Masonite; and the …

Trusts - Constructive Trusts - Protection Of Trade Secrets And Like Confidential Information, E. George Rudolph

Michigan Law Review

Plaintiff hired a seismograph company to make surveys of certain land for the purpose of locating oil and gas. The results of the survey were favorable. An employee of the seismograph company communicated the results to the defendant who thereafter leased the land. Plaintiff brought suit to have defendant declared constructive trustee of the land for plaintiff. Held, that the relief could not be granted since defendant might have leased the land without such information. Ohio Oil Co. v. Sharp, (D. C. Okla. 1942) 45 F. Supp. 969.

Wills - Incorporation Of Deed By Reference - Construction

Michigan Law Review

The sixth clause of testator's duly executed will was as follows: "I have already deeded to my niece, Alta J. Pullman, the southeast quarter (SE¾) of section eight (8), township twenty-four (24), north, range four (4), east of the 6th P. M. in Cuming county, Nebraska, and for that reason I do not devise any real estate to her in this Will." About thirteen months prior to the execution of this will, testator and his wife executed a deed conveying this tract of land to Alta J. Pullman. The deed was never delivered, and was not executed in accordance with …

Abstracts, Katherine Kempfer

Michigan Law Review

The abstracts consist merely of summaries of the facts and holdings of recent cases and are distinguished from the notes by the absence of discussion.

Current Periodical Index, Michigan Law Review

Michigan Law Review

This department lists the articles and comments which appear in twenty-five leading law reviews. The index embraces material published since the last issue of this REVIEW.

Wills - Class Gifts - Language And Circumstances Necessary To Constitute, Michigan Law Review

Michigan Law Review

By the second and third clauses of his will Lester Evans bequeathed to his son and daughter $35 each. The fourth clause disposed of "all the rest, residue, and remainder of my estate" to seven named persons of no relation to the testator or among themselves. One of the named persons was his bride-to-be, and she was included for the purpose of carrying out the antenuptial contract to leave her one-seventh of his estate if he were to predecease her. The clause concluded, "each person shall take an equal undivided one-seventh (1/7) share, absolutely and forever." The fifth clause explained …

Constitutional Law - Interstate Commerce - Agricultural Adjustment Act, H. Marshall Peter

Michigan Law Review

Under the terms of the Agricultural Adjustment Act of 1938, the Secretary of Agriculture is authorized, whenever it appears that the nation's wheat supply will exceed a certain amount, so to proclaim and to put into effect a marketing quota. A referendum must be conducted among the farmers, and if more than one-third oppose, the operation of the quota must be suspended. In July, 1940, the appellee was given notice of an allotment for his 1941 crop. This notice preceded his fall planting of that crop, and another notice a year later preceded its harvesting. The amendment of May 26, …

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.

Torts - Liability Of Owners Of Baseball Park - Spectator Struck By Batted Ball

Michigan Law Review

The plaintiff, a spectator at a baseball game, brought an action to recover for injuries sustained when he was struck by a foul ball. He was sitting in a reserved seat, but in a section of the grandstand not protected by a wire netting. Despite novel allegations designed, apparently, to suggest plaintiff's right to rely on the implication that a "reserved seat" is one which is located back of a protecting screen, and, further, to deny any μappreciation of the risk, on plaintiff's part, by suggesting that, at sixty-four, he was subject to the failing eyesight which customarily accompanies that …