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Michigan Law Review

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Judgments - Propriety Of Finding That A Nonparty Conducted The Defense, David N. Mills Dec 1941

Judgments - Propriety Of Finding That A Nonparty Conducted The Defense, David N. Mills

Michigan Law Review

A patent infringement suit against a distributor was dismissed on the ground that plaintiff's patents were invalid. A finding was incorporated in the judgment that the defense had been "openly and avowedly conducted" by the manufacturer of the article distributed by defendant. Plaintiff objected that the finding "on its face would be a valid estoppel" in case plaintiff later wished to sue the manufacturer in a separate suit. Held, that plaintiff was entitled to have the finding deleted from the judgment since the finding was not necessary to a disposition of the issues between plaintiff and defendant. Minneapolis- Honeywell …

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Consumers' Co-Operatives And Price Fixing Laws, Charles Bunn Dec 1941

Consumers' Co-Operatives And Price Fixing Laws, Charles Bunn

Michigan Law Review

The evolution of our business institutions shows us a long procession of experimental procedures, giving rise to de facto commercial forms, many of which have in turn demanded such recognition de jure as should make their position in the business world both clear and safe. Consumers' co-operation is such a procedure. Its underlying idea is simple, that a business owned by its customers, managed under their direction and having no legitimate loyalties except to them, has a better chance to meet their needs than one owned and managed by outsiders. But it has taken many years and many failures to …

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Admiralty - Uniformity Rule, William C. Whitehead Dec 1941

Admiralty - Uniformity Rule, William C. Whitehead

Michigan Law Review

From the words of the Federal Constitution the federal courts have spelled out the rule that maritime matters shall be governed by a uniform set of laws. These laws consist of the general maritime law at the adoption of the Constitution plus regulations subsequently promulgated by Congress. The decisions which have outlined the "uniformity rule" have concerned themselves with admiralty's interrelationship with interstate commerce. A recent application of the rule suggests another problem which uniformity is designed to circumvent--the difficulty of enforcing local rules against subjects on navigable waters. The federal courts have not always been precise in their application …

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Executors And Administrators - Rights Of Creditors Of Legatee Or Distributee During Administration Of Decedent's Estate, Herbert R. Whiting Dec 1941

Executors And Administrators - Rights Of Creditors Of Legatee Or Distributee During Administration Of Decedent's Estate, Herbert R. Whiting

Michigan Law Review

In order to present a clear picture of the problem involved herein two assumptions must be made before proceeding further: (a) that it is desirable to subject to the claims of his creditors the interest of a legatee or distributee, providing certain procedural and administrative difficulties, subsequently to be considered, can be overcome; (b) that there is no realty in the decedent's estate.

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Holding Company Act - "Controlling Influence", Smith Warder Dec 1941

Holding Company Act - "Controlling Influence", Smith Warder

Michigan Law Review

Most new and revolutionary statutes for the regulation of interstate trade and commerce cause both lawyers and businessmen many headaches before their terms become fixed in meaning by judicial interpretation. The Public Utility Holding Company Act of 1935 is no exception. Difficult questions of interpretation are bound to arise under a statute of such a complicated nature, leaving, as it does, so much to the discretion of administrative officers. In the spring of this year the problem of what is a "controlling influence" was brought to light by two cases. While each case raised the question in a situation totally …

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Attorney And Client - Illegal Practice Of Law - Activities Of Insurance Investigators And Adjusters Which Constitute Practice Of Law, Jay W. Sorge Dec 1941

Attorney And Client - Illegal Practice Of Law - Activities Of Insurance Investigators And Adjusters Which Constitute Practice Of Law, Jay W. Sorge

Michigan Law Review

The defendant was an independent insurance adjuster and investigator who for more than seven years had been engaged in adjusting and investigating insurance claims for both insurance companies and claimants. He advertised in insurance periodicals and wrote letters to insurance companies to interest them in the service he rendered. He charged his clients on a fee basis and maintained his office at his own expense. Suit was brought to restrain him from practicing law without a license. Held, defendant could not give advice as to legal rights of either insurance company or claimant, but could communicate advice of counsel …

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Constitutional Law - Due Process - Price Regulation - Prohibition Of Sales Below Cost, George W. Loomis Dec 1941

Constitutional Law - Due Process - Price Regulation - Prohibition Of Sales Below Cost, George W. Loomis

Michigan Law Review

Defendant was indicted for alleged violation of the Pennsylvania Fair Sales Act, which prohibits the "advertisement, offer for sale, or sale of any merchandise at less than cost by retailers or wholesalers," and makes violation of the act a misdemeanor. His motion to quash the indictment was sustained by the court of the quarter sessions and affirmed by the superior court, and the state appealed to the Pennsylvania Supreme Court. Held, affirming, that the statute violates the due process clause of the Fourteenth Amendment since it is not within the power of the state to prohibit sales below cost …

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Constitutional Law - Impairing The Obligation Of Contracts - Refunding Bonds, John F. Hall Dec 1941

Constitutional Law - Impairing The Obligation Of Contracts - Refunding Bonds, John F. Hall

Michigan Law Review

In 1938, Mississippi authorized the issuance of state highway bonds in the aggregate of $60,000,000. Interest was payable semiannually and the bonds were to mature serially semiannually, and to the extent necessary to make these payments the revenues from gasoline taxes were pledged. The act further provided that the state covenanted that so long as any of the bonds were outstanding and unpaid, it would not authorize "any other obligations or securities payable from gasoline tax revenues" unless such revenues should increase in such an amount that one-third of the proceeds would be sufficient to meet the principal and interest …

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Criminal Law And Procedure - Voluntary Communication To Grand Jury As Contempt, James K. Lindsay Dec 1941

Criminal Law And Procedure - Voluntary Communication To Grand Jury As Contempt, James K. Lindsay

Michigan Law Review

Defendant wrote two letters to the grand jury, then in session, asking leave to appear before it to present evidence of a conspiracy, described therein in highly inflammatory language, between a newspaper, the county assessor and the state's attorney to defraud the state of many millions of revenue by the illegal omission of the newspaper's personal property from the county tax rolls. The state's attorney filed an information incorporating these letters. The trial court found that defendant was guilty of criminal contempt. On appeal, defendant contended that this conviction deprived him of his constitutional right of free speech. Held, …

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Equity - Specific Performance Of Contract To Lend Money, Robert C. Lovejoy Dec 1941

Equity - Specific Performance Of Contract To Lend Money, Robert C. Lovejoy

Michigan Law Review

Plaintiff, through the Mortgage Service Bureau, which acted as intermediary, negotiated a loan from defendant bank, secured by a mortgage on plaintiff's land. Plaintiff executed and delivered notes and a mortgage, and defendant drew a check for one of the loan installments payable to plaintiff and the bureau, The latter without authority took the check, forged plaintiff's signature, and kept the money. The bureau being out of business and insolvent, plaintiff, with an unfinished house on his hands and without funds to complete it, sought specific performance of the agreement to lend. Held, plaintiff was entitled to specific performance, …

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Federal Courts - Federal Rules Of Civil Procedure - Statutes Of Limitations - Commencement Of Action, Harry M. Nayer Dec 1941

Federal Courts - Federal Rules Of Civil Procedure - Statutes Of Limitations - Commencement Of Action, Harry M. Nayer

Michigan Law Review

Plaintiff brought suit on some promissory notes in the federal district court in Michigan. The complaint was filed before the expiration of the six-year Michigan statute of limitations, but although the plaintiff used due diligence he was unable to get personal service on defendant until the statutory period had elapsed. Defendant pleaded the statute of limitations. Both the Michigan and the federal procedures provide that "a civil action is commenced by filing a complaint with the court." Held, that the filing of the complaint tolled the running of the statute and the plaintiff should therefore be allowed to maintain …

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Contracts - Arbitration And Award -Validity At Common Law Of Proceedings Void Under Arbitration Statutes, Edward H. Schlaudt Dec 1941

Contracts - Arbitration And Award -Validity At Common Law Of Proceedings Void Under Arbitration Statutes, Edward H. Schlaudt

Michigan Law Review

Defendant contracted with plaintiff to grade an athletic field. The contract required all questions subject to arbitration thereunder to be submitted to statutory arbitration at the choice of either party. A dispute arose and at the plaintiff's demand three arbitrators were selected as provided in the contract. Plaintiff sued to collect an award granted in his favor. Defendant objected that both the contract of submission and the proceedings fell far short of the statutory requirements. Held, though the parties agreed to arbitrate under the statute, the proceedings pursuant to the contract fell so far short of statutory requirements that …

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Dower - Premarital Conveyance As Fraud On Dower, Michigan Law Review Dec 1941

Dower - Premarital Conveyance As Fraud On Dower, Michigan Law Review

Michigan Law Review

Decedent, seven days before his marriage to plaintiff, conveyed all his property to his nephew, the defendant. Plaintiff was not informed of the transfer until some time after the marriage. The property was worth $22,000, and decedent, who was at that time sixty-two years of age, was allowed to retain a life estate therein. Cancellation of a note for $2,904 owing from decedent to defendant served as consideration for the transfer. Held, the transfer was a fraud on dower since it was made without the knowledge of the intended wife for the purpose of defeating the interest which she …

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Mortgages - Recording - Effect Of A Mortgage Recorded In The Book Of Deeds, Paul M. Oberndorf Dec 1941

Mortgages - Recording - Effect Of A Mortgage Recorded In The Book Of Deeds, Paul M. Oberndorf

Michigan Law Review

An interest in certain land was mortgaged by the owners to the plaintiff in October, 1933. This same interest was subjected to a lien of certain judgment creditors recovered against the owners in July, 1936. The defendant, as assignee of the claim of the judgment creditors, claimed priority over the mortgagee by reason of the fact that the mortgage was delivered to the register for the purpose of being recorded as a deed and was in fact so recorded. The judgment creditors disclaimed all notice of this prior mortgage. The statutes of New Jersey provide that mortgages should be registered …

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Torts - Effect Of Attractive Nuisance Doctrine On Municipal Liability To Children On The Streets, Donald H. Treadwell Dec 1941

Torts - Effect Of Attractive Nuisance Doctrine On Municipal Liability To Children On The Streets, Donald H. Treadwell

Michigan Law Review

Plaintiff, an eight year old girl, stopped on the way home with a playmate to play around a newspaper stand located on the edge of the sidewalk. The stand was maintained by a vendor who was licensed by the city. While the plaintiff was standing beside the stand, her playmate swung from the top, causing it to topple over on the plaintiff and gash her forehead. Despite medical care infection set in and a disfiguring scar resulted. There was evidence that the stand had fallen over previously for various reasons. Held, that the defendant city was negligent in not …

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Principal And Surety - Effect Of Release Of Principal Debtor With Reservation Of Rights Against Surety, Raymond H. Rapaport Dec 1941

Principal And Surety - Effect Of Release Of Principal Debtor With Reservation Of Rights Against Surety, Raymond H. Rapaport

Michigan Law Review

Plaintiff leased property to defendant, who in turn assigned his rights under the lease to one Garber, the latter assuming the covenants to pay rent and against commission of waste. Plaintiff did not release defendant from the lease. After the expiration of the lease plaintiff recovered judgment for $2,844.75 against defendant, for breaches of the covenants, and then recovered a similar judgment against Garber. Subsequently Garber paid the plaintiff $2,000, and plaintiff gave him a receipt acknowledging "full satisfaction of the judgment rendered against me in the within action. The receipt of said sum is not a release of any …

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Constitutional Law - Federal Immunity From State Tax, David N. Mills Dec 1941

Constitutional Law - Federal Immunity From State Tax, David N. Mills

Michigan Law Review

An Alabama statute imposed an inchoate lien on all property in the state as of October 1st of each year, such lien to continue until taxes for the ensuing year were paid. The United States acquired title to certain lands after October 1, 1936, but before the final 1937 assessment was made and the rate for county taxes set. None of the 1937 taxes were due. The United States did not pay the taxes, and on their becoming delinquent, sued to quiet title. Held, by a unanimous court, that although Alabama could not foreclose the lien without obtaining the …

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Landlord And Tenant - Covenant By Landlord To Repair - Liability Ex Contractu For Personal Injuries Of The Tenant's Wife, Reid J. Hatfield Dec 1941

Landlord And Tenant - Covenant By Landlord To Repair - Liability Ex Contractu For Personal Injuries Of The Tenant's Wife, Reid J. Hatfield

Michigan Law Review

One of the terms under which certain premises were leased to plaintiff's husband was a covenant by the defendant lessor to keep the premises in repair. Defendant neglected to repair two of the porch steps, although often requested by plaintiff to do so, and because of their defective condition plaintiff fell and was hurt. She brought suit on two counts; in tort for negligence, and on the contract for its breach. Held, an action in tort would not lie, and, although this was a proper case for an action ex contractu, recovery was denied because the consequences were avoidable …

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Trusts - Honorary Trust - Authority Of A Successor Trustee, Reed T. Phalan Dec 1941

Trusts - Honorary Trust - Authority Of A Successor Trustee, Reed T. Phalan

Michigan Law Review

Paragraph 24 of testatrix' will gave to the executor and trustee, appointed under the will, $10,000 ''to be used by him to place a memorial window, or some other memorials, to cost any sum in his discretion up to the sum of One thousand Dollars, in Christ Church Cathedral, at St. Louis, Mo., and to place monuments and markers in my family subdivision of the Clark and Glasgow plot in the Bellefontaine Cemetery, at St. Louis, Mo." Soon after testatrix' death the trustee died. A successor trustee was appointed and by special order of the court was authorized to administer …

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Monthly Periodical Index, Michigan Law Review Dec 1941

Monthly Periodical Index, Michigan Law Review

Michigan Law Review

This department lists the articles and comments which appear in twenty-live leading law reviews.

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Torts - Licensees - Revocability Of License Granted By Theatre Ticket, Harry M. Nayer Dec 1941

Torts - Licensees - Revocability Of License Granted By Theatre Ticket, Harry M. Nayer

Michigan Law Review

Plaintiff was forcibly ejected from defendant's theatre by defendant's employees and brought this action for damages for assault and battery. Defendant offered testimony attempting to justify the ejection on the ground that plaintiff was creating a disturbance. The trial judge instructed the jury that the question of plaintiff's conduct was immaterial and that a theatre owner could eject a patron at any time with or without cause. Held, that the instruction was erroneous. Despite the revocable character of the license granted by a theatre ticket a theatre owner does not have the right to eject a patron without cause. …

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Book Notes, Michigan Law Review Dec 1941

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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Federal Courts - Review Of State Courts Decision Involving Federal And Nonfederal Ouestions, John C. Johnston Nov 1941

Federal Courts - Review Of State Courts Decision Involving Federal And Nonfederal Ouestions, John C. Johnston

Michigan Law Review

In exercising appellate jurisdiction over federal questions raised in the highest court of a state, the Supreme Court of the United States has refused to adopt the view that the existence of a federal question in the record or decision of the state court will empower it to decide every other question that is raised in the case. Correlated to this refusal to review the nonfederal question is the further self-imposed limitation that where the decision of the state court rests upon a nonfederal ground sufficient in itself to support the judgment of the state court, the Supreme Court will …

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Bills And Notes - Rule Of Price V. Neal - Application To Nonnegotiable Instruments And Money Orders, Edward W. Adams Nov 1941

Bills And Notes - Rule Of Price V. Neal - Application To Nonnegotiable Instruments And Money Orders, Edward W. Adams

Michigan Law Review

From a Mississippi post office, B stole fifty-five postal money order blanks. Notice of the theft was sent by the Post Office Department to all post offices. B filled in twelve of the blanks, making them appear genuine in all respects, and presented them to be cashed at defendant bank. In reliance on a confirmation of the validity of the money orders, received by calling a branch post office, defendant cashed them, giving B cash and travelers checks and starting a bank account for the balance. Defendant presented the orders at the main post office, and they were paid without …

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Constitutional Law - Trial By Jury - Right To Waive Presence Of Trial Judge, Robert P. Kneeland Nov 1941

Constitutional Law - Trial By Jury - Right To Waive Presence Of Trial Judge, Robert P. Kneeland

Michigan Law Review

Defendant was tried for the crime of driving a car while intoxicated. After the jury was instructed and had retired, the judge who had supervised the trial up to that point announced that he was going to another town to sit for a judge who was in poor health, but that a second judge would be available to receive the jury's verdict. Defendant's counsel failed to object to these arrangements. After the judge who heard the cause had left, the jury desired further instructions. As defendant objected to this request, however, it was denied. The second judge received the unqualified …

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Damages - Expenses Of Litigation - Counsel Fees In A Previous Suit, Gerald M. Lively Nov 1941

Damages - Expenses Of Litigation - Counsel Fees In A Previous Suit, Gerald M. Lively

Michigan Law Review

Plaintiffs brought this appeal from a judgment dismissing an action to recover the attorney's fees and other expenses of the prosecution of a prior suit with defendant. In the former action plaintiffs had secured a decree requiring defendant to convey to them certain property which the defendant had withheld fraudulently and maliciously. In the present action defendant successfully had moved to dismiss on the grounds that attorney's fees as between original litigants were not recoverable and further that this claim was res judicata due to the prior suit. Held, one justice dissenting as defendant's intentional and wilful misconduct necessitated …

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Executors And Administrators - Liability Of Original Lessee's Estate On Assigned Long - Term Lease, Charles G. Schwartz Nov 1941

Executors And Administrators - Liability Of Original Lessee's Estate On Assigned Long - Term Lease, Charles G. Schwartz

Michigan Law Review

Defendant's testator had entered into a ninety-nine year lease with the plaintiff lessor, and shortly afterward, with the consent of the plaintiff, had assigned the lease to a corporation. The lease was renewable forever. Fourteen years later the original lessee died testate, leaving an estate of approximately $1,000,000. The lessor now seeks to have the court impound nearly all of the estate as security for future rent payments. At the time of suit there had been no default in rent installments. Held, plaintiff has no present cause of action. In the absence of any default in rent, mere privity …

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Insurance - Public Liability Policy - Liability Of Insurer For Punitive Damages And Penalties, Alfred I. Rothman Nov 1941

Insurance - Public Liability Policy - Liability Of Insurer For Punitive Damages And Penalties, Alfred I. Rothman

Michigan Law Review

Under an automobile liability policy, the defendant insurer paid the plaintiff, on his judgment against the insured, the amount of compensatory damages recovered for injuries. The insurer refused, however, to pay the additional sum awarded as double damages under a statute providing that the court in its discretion might award double or treble damages where the injury was caused by a violation of certain statutory rules of the road. By the terms of the policy defendant insurance company agreed to pay "all sums which the insured shall become obligated to pay by reason of liability imposed upon him by law …

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Negligence - Assumption Of Risk - Necessity For Contractual Relation, Edward H. Schlaudt Nov 1941

Negligence - Assumption Of Risk - Necessity For Contractual Relation, Edward H. Schlaudt

Michigan Law Review

While walking behind defendant through woodland, plaintiff suffered an eye injury caused by the negligence of the defendant in bending over a small sapling and allowing it to fly back and strike plaintiff. Verdict and judgment were for plaintiff. Defendant moved for a directed verdict on the ground of assumption of risk, and appealed from a denial of the motion. Held, from the facts of the case, it cannot be ruled as a matter of law that the plaintiff knew and comprehended the danger which caused his injury and that he voluntarily exposed himself thereto, and, therefore, the judgment …

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Trade Marks And Trade Names - Unauthorized Use Of Registered Vessels - Search Warrant, Reed T. Phalan Nov 1941

Trade Marks And Trade Names - Unauthorized Use Of Registered Vessels - Search Warrant, Reed T. Phalan

Michigan Law Review

A number of milk bottles bearing registered marks of various dairies were seized from the possession of plaintiff dairyman by defendant deputy sheriff, under a search warrant issued by defendant district judge, upon affidavit and showing by defendant deputy commissioner of agriculture that the bottles were being unlawfully used. Notice was given of a hearing to be held before the judge to determine the persons entitled to possession of the seized property. Plaintiff brought this action for an original writ of prohibition to restrain further proceedings, charging that the search warrant section of the statute under which the proceedings were …

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