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Michigan Law Review

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Contracts - Measure Of Damages For Anticipatory Breach Of Contract For Future Delivery Of Goods Having A Futures Market, Ralph E. Helper Nov 1939

Contracts - Measure Of Damages For Anticipatory Breach Of Contract For Future Delivery Of Goods Having A Futures Market, Ralph E. Helper

Michigan Law Review

Defendant agreed to buy part of plaintiff's annual crop of hops for three years. Several months before the first delivery was due, defendant repudiated. Held, the measure of damages was the difference between the contract price and the market price at the time of repudiation, rather than at the times delivery was called for in the contract. Renner Co. v. McNeff Bros., (C. C. A. 6th, 1939) 102 F. (2d) 664.

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Corporations - Derivative Suits - Insolvency As A Bar, Edmund O'Hare Nov 1939

Corporations - Derivative Suits - Insolvency As A Bar, Edmund O'Hare

Michigan Law Review

Plaintiff, stockholder in defendant bank, brought a derivative suit against the bank's directors to recover moneys allegedly wrongfully appropriated by them from the bank's assets. Before the commencement of the suit the bank had become insolvent and was in the process of liquidation. Held, the directors' motion to dismiss should be granted, since a stockholder may not maintain an action to hold an insolvent corporation's directors liable for fraud or mismanagement unless it appears that he will be benefited by the relief demanded, and full recovery here would still leave an excess of liabilities over assets. Falvey v. Foreman-State …

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Damages - Measure Of Damages For Personal Injury - Inability To Enjoy Life As An Element Of Damage, Robert M. Warren Nov 1939

Damages - Measure Of Damages For Personal Injury - Inability To Enjoy Life As An Element Of Damage, Robert M. Warren

Michigan Law Review

Plaintiff sustained injuries to his spine and nervous system when defendant's dam burst and caught the automobile, in which plaintiff was riding, in a surge of water. Held, an instruction was erroneous which included, as an element of damage, plaintiff's inability on account of his injuries, to enjoy life in the manner to which he was accustomed. Northern Indiana Public Service Co. v. Robinson, (Ind. App. 1939) 18 N. E. (2d) 933.

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Habeas Corpus - Insane Persons - Torts - Civil Action For Obstruction Of Right To Test Legality Of Imprisonment, John P. Cofrin Nov 1939

Habeas Corpus - Insane Persons - Torts - Civil Action For Obstruction Of Right To Test Legality Of Imprisonment, John P. Cofrin

Michigan Law Review

Claimant had been adjudged insane and committed to a state hospital by order of the court. On March 6, 1936, he signed a petition for a writ of habeas corpus, placed it in an envelope addressed to his attorney and left it with an employee of the hospital to be mailed. In the past claimant had written many letters asking for assistance to men in public life, who in turn annoyed claimant's wife. The superintendent of the hospital, therefore, complying with the request of claimant's wife that all his letters be sent to her, mailed her the letter containing the …

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Insurance - Waiver And Estoppel As Applied To Excepted Risks, Michigan Law Review Nov 1939

Insurance - Waiver And Estoppel As Applied To Excepted Risks, Michigan Law Review

Michigan Law Review

The appellee insurance company issued a policy of automobile liability insurance covering a motor truck owned by appellant, which policy stated that the occupation of assured is "handling farm machinery, crane fixtures and paints," and that the use made of the truck should be commercial ("commercial" being defined as "the transportation or delivery of goods, merchandise or other materials, and uses incidental thereto, in direct connection with the named assured's business occupation . . . including the loading and unloading thereof"). Appellant began to transport tanks of butone gas, which fact was known by appellee's agency on the date the …

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Municipal Corporations - Liability For Negligence Outside The City Limits, S. R. Stroud Nov 1939

Municipal Corporations - Liability For Negligence Outside The City Limits, S. R. Stroud

Michigan Law Review

The defendant, the city of Green Bay, without charge maintained and operated a toboggan slide outside the city limits. While using the slide, plaintiff was injured due to the alleged negligence of the city in failing to remove a snowdrift at the bottom of the slide. It was admitted that plaintiff would have stated a good case of actionable negligence had the slide been operated by a private person. Defendant's demurrer was overruled by the trial court. Held, reversed with direction to enter an order sustaining the demurrer. Gegelski v. City of Green Bay, (Wis. 1939) 285 N. …

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Sales - Implied Warranty - Liability Of A Water Company, Edmund R. Blaske Nov 1939

Sales - Implied Warranty - Liability Of A Water Company, Edmund R. Blaske

Michigan Law Review

Defendant, a city engaged in supplying water to its inhabitants, was sued by plaintiff, a consumer, for injuries resulting from plaintiff's drinking of lead-poisoned water at a faucet in his home. The water, although pure at the meter, became poisoned when passing through a lead pipe inspected and approved by the water company but owned by the plaintiff. Plaintiff brought his action on two different theories: (1) on implied warranty; (2) in negligence. The trial court instructed the jury without exception or objection from defendant that they might find for plaintiff, under either of these theories. The defendant was successful …

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Torts - Liability Of Landowner To Pedestrian For Acts Of Third Persons, John J. Adams Nov 1939

Torts - Liability Of Landowner To Pedestrian For Acts Of Third Persons, John J. Adams

Michigan Law Review

Children built a fire in the street outside defendant's premises after business hours. They went on defendant's premises and took gasoline which defendant had allowed to collect in a drip can under a spigot. When they threw the gas toward the fire it splashed on plaintiff, an infant standing nearby; his clothing caught fire when he tripped and fell toward the fire. There was evidence that defendant knew the children had been playing on his premises. Held, that plaintiff has failed to show that defendant was negligent in the conduct of his business, and that the doctrine of attractive …

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Book Notes, Michigan Law Review Nov 1939

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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A Footnote On Dangerous Animals, Mary Coate Mcneely Jun 1939

A Footnote On Dangerous Animals, Mary Coate Mcneely

Michigan Law Review

Much has been said and written by courts and authors on different aspects of the question of liability for injuries by animals, but there remains the task of fitting all these pieces into a complete pattern. The general subject of liability of the possessor of harm-producing animals has been treated on two separate and independent theories: (1) trespass, for injuries by marauding cattle; (2) case, for harms caused by animals other than trespassing cattle. The explanation for the separation of these two bodies of law is in part historical, the possessor of straying cattle being historically so identified with them …

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Federal Courts - Substance And Procedure - Effect Of Erie Railroad V. Tompkins And Rule 8 (C) Of The Federal Rules Of Civil Procedure Upon Burden Of Proof Of Contributory Negligence, John H. Uhl Jun 1939

Federal Courts - Substance And Procedure - Effect Of Erie Railroad V. Tompkins And Rule 8 (C) Of The Federal Rules Of Civil Procedure Upon Burden Of Proof Of Contributory Negligence, John H. Uhl

Michigan Law Review

The case of Erie Railroad v. Tompkins has wrought a great change in the relationship between the state and federal courts. Prior to its decision, the federal courts under the rule of Swift v. Tyson did not have to apply the state non-statutory law. They could apply their own notions as to what the law was in matters of general law relating to substance. The Conformity Act compelled the federal courts to follow the practice, pleading, and forms and modes of proceeding in like causes in the courts of the state within which the federal district courts were held. In …

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Labor Law - National Labor Relations Act - Employee Misconduct As Barring Relief, John C. Griffin Jun 1939

Labor Law - National Labor Relations Act - Employee Misconduct As Barring Relief, John C. Griffin

Michigan Law Review

The problem to be considered in this comment is the extent to which employees will, as a consequence of wrongful action on their part, be denied benefits secured to them by the National Labor Relations Act. Inherently, the discussion must also include the examination of another fundamental issue; viz., what is the proper relation between the National Labor Relations Board and the courts on this problem? The substantive question may arise either where the employer seeks to justify a discharge of the worker because of alleged misconduct, or where the misconduct is sought to be used as an estoppel against …

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Constitutional Law - Discriminatory State Game Legislation - Constitutionality As To Non-Resident Landowner, Russel T. Walker Jun 1939

Constitutional Law - Discriminatory State Game Legislation - Constitutionality As To Non-Resident Landowner, Russel T. Walker

Michigan Law Review

A non-resident landowner and his assignee brought an action to enjoin enforcement of a Louisiana statute which denied them the right to secure licenses to trap furbearing animals or alligators on the former's land until they had resided in the state for not less than one year. Held, the statute, discriminating as it did against landowners purely on the basis of non-residence, was unconstitutional as a deprivation of property and a denial of equal protection of the law. Pavel v. Patterson, (D. C. La. 1938) 24F. Supp. 915.

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Constitutional Law - Power Of Legislative Investigating Committee To Supersede Grand Jury, D. M. Swope Jun 1939

Constitutional Law - Power Of Legislative Investigating Committee To Supersede Grand Jury, D. M. Swope

Michigan Law Review

The court of quarter sessions of Dauphin County ordered a grand jury investigation of alleged criminal misconduct by civil officers of the commonwealth. The governor then issued a call for a special session of the legislature. When this body had convened, seven members of the House of Representatives were appointed a committee to investigate the charges against those civil officers liable to impeachment. This committee sought a writ of prohibition to restrain the quarter sessions court from proceeding with the grand jury investigation, in pursuance of a statute enacted at the special session of the legislature giving the legislative investigating …

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Constitutional Law - Taxation Of Salaries Of Judges Of The United States, Thomas K. Fisher Jun 1939

Constitutional Law - Taxation Of Salaries Of Judges Of The United States, Thomas K. Fisher

Michigan Law Review

The Revenue Act of 1932 provided that "In the case of Presidents of the United States and judges of courts' of the United States taking office after June 6, 1932, the compensation received as such shall be included in gross income; and all Acts fixing the compensation of such Presidents and judges are hereby amended accordingly." A United States circuit judge, appointed in 1933, was required to include in his tax return the amount of his salary, under the Revenue Act of 1936, which re-enacted the above provision. His claim for refund being rejected, the present suit was brought, and …

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Constitutional Law - Validity Of Voting Machine In General Election - Constitutional Construction, Michigan Law Review Jun 1939

Constitutional Law - Validity Of Voting Machine In General Election - Constitutional Construction, Michigan Law Review

Michigan Law Review

Pursuant to statutory provisions the fiscal court of Jefferson County, Kentucky, appropriated $1,000 for renting voting machines to be used in the general election of 1938. The county on relation of its attorneys filed suit for a declaratory judgment on the constitutionality of the statute. The relators appealed from a judgment declaring the act valid. Held, the statute authorizing the use of voting machines in popular elections is a violation of section 147 of the Kentucky Constitution which provides for a "secret official ballot, furnished by public authority to the voters at the polls, and marked by each voter …

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Indictment And Information - Requirement Of Specificity In Charging A Statutory Offense, Ward P. Allen Jun 1939

Indictment And Information - Requirement Of Specificity In Charging A Statutory Offense, Ward P. Allen

Michigan Law Review

On an information charging the possession of "a certain habit forming drug, to wit: Marijuana . . . in violation of section 158, Chapter 91, Illinois Revised Statutes (1935)," defendant was convicted in the municipal court of Chicago. The Illinois adoption of the Uniform Narcotic Drug Act made the possession of "any narcotic drug" unlawful; defined "narcotic drugs" to include "cannabis"; and stated that "Cannabis includes the following substances, under whatever names they may be designated: (a) The dried flowering or fruiting tops of the pistillate plant Cannabis Sativa L.," from which the resin has not been extracted; (b) the …

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Mortgages - Limitation Of Actions - Deficiency Decree On Basis Of Covenant In Mortgage When Action On Note Barred, Donald M. Swope Jun 1939

Mortgages - Limitation Of Actions - Deficiency Decree On Basis Of Covenant In Mortgage When Action On Note Barred, Donald M. Swope

Michigan Law Review

Defendant executed and delivered to plaintiff a promissory note and a mortgage securing it. The mortgage contained a covenant to pay $10,000 (the principal amount of the note) "according to the terms of a certain promissory note bearing even date herewith." Upon foreclosure it was held, three judges dissenting, that the mortgagee was entitled to a deficiency decree notwithstanding action on the note was barred by the statute of limitations. Guardian Depositors Corporation of Detroit v. Savage, 287 Mich. 193,283 N. W. 26 (1938).

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Taxation - Income Tax - Whether Purchase And Retirement By Corporation Of Own Bonds At Less Than Amount Of Issue Constitutes A Taxable Gain Where Corporation Is Insolvent, S. R. Stroud Jun 1939

Taxation - Income Tax - Whether Purchase And Retirement By Corporation Of Own Bonds At Less Than Amount Of Issue Constitutes A Taxable Gain Where Corporation Is Insolvent, S. R. Stroud

Michigan Law Review

Petitioner, a railway corporation, in 1906 leased all its property to an operating company for a term of fifty years. At the same time petitioner issued $434,000 in first mortgage bonds which were used to refund a prior issue of $350,000 and to provide for certain improvements on the road. Interest on the bonds was to be met by lessee's payment of the greater part of the rental directly to the trustee of the mortgage bonds, but no provision for a sinking fund was made. In October, 1932, petitioner purchased $19,000 par value of aforesaid mortgage bonds for $4,750, and …

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Constitutional Law - Mortgages - Moratoria On The Way Out?, Elbridge D. Phelps Jun 1939

Constitutional Law - Mortgages - Moratoria On The Way Out?, Elbridge D. Phelps

Michigan Law Review

As a general proposition, one might perhaps feel prone to quarrel with the statement that "history repeats itself," but there can be little doubt that it applies full well to legislation aimed at relieving hard-pressed debtors in times of financial crises. From our earliest American history, every economic "winter" has provoked a landslide of pro-debtor legislation. Nor have mortgage debtors been overlooked in this regard. The remedies suggested have been as varied and ingenious as human minds could concoct. A brief review of the past decisions indicates that when they could be said to impair the obligation of contract, such …

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Constitutional Law - Special Assessments - Property Owner's Right To Hearing Under Due Process Clause - Legislative Determination Of Benefits, Richard S. Brawerman Jun 1939

Constitutional Law - Special Assessments - Property Owner's Right To Hearing Under Due Process Clause - Legislative Determination Of Benefits, Richard S. Brawerman

Michigan Law Review

The California legislature created the Los Angeles Flood Control District, empowered a board of supervisors to construct improvements and acquire property necessary or useful for carrying out the purposes of the act, and provided for the organization of drainage districts within the flood control district. An amendatory act provided that the board of supervisors might accept a transfer of "all, but not less than all," improvements of defined classes lying within the flood control district, whereupon the district should become liable for principal and interest of bonds afterward maturing which had been issued by any drainage district to cover the …

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Front Matter, Michigan Law Review Jun 1939

Front Matter, Michigan Law Review

Michigan Law Review

Front Matter for Volume 37, Issue 8 of Michigan Law Review

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Wanted: A New Definition Of The Rate Base, Paul G. Kauper Jun 1939

Wanted: A New Definition Of The Rate Base, Paul G. Kauper

Michigan Law Review

Public utility problems today have a conspicuous place on the stage of national life. The New Deal's imposing yardstick: program and its policy of encouraging municipal ownership and operation of utility services by means of P.W.A. grants have focused attention chiefly on the issue of public versus private ownership. However, there are indications that a truce between the federal agencies and the private utilities is at hand and that, in consideration of the undertaking on the part of the private utilities to finance capital improvements and additions on a large scale and thereby contribute to general economic improvement, the New …

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Securities Legislation - Act Of 1933 - Withdrawal Of Registration Statement, Fred C. Newman Jun 1939

Securities Legislation - Act Of 1933 - Withdrawal Of Registration Statement, Fred C. Newman

Michigan Law Review

The right to withdraw, a registration statement filed with the Securities and Exchange Commission was involved in a recent case. The plaintiff had filed a registration statement with the Securities and Exchange Commission. The statement became effective. Thereafter, the commission instituted proceedings under the stop order provision. There had been no sale of shares to which the registration statement related. After the hearings commenced, plaintiff petitioned the commission for permission to withdraw the registration statement. The commission denied the petition. Thereupon plaintiff filed a bill in equity, praying that the commission be required to permit plaintiff to withdraw its registration …

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Taxation-Procedural Devices For Preventing Multiple Taxation Of Intangibles Based On Domicile - Original Suit By Way Of Interpleader Before Supreme Court, Edmund O'Hare Jun 1939

Taxation-Procedural Devices For Preventing Multiple Taxation Of Intangibles Based On Domicile - Original Suit By Way Of Interpleader Before Supreme Court, Edmund O'Hare

Michigan Law Review

The famous Dorrance litigation raised very sharply the problem of avoiding multiple inheritance taxes based upon conflicting claims of domicile. Up to that time it was thought that the right of a state to levy an inheritance tax upon intangible personal property owned by a nonresident decedent had been effectively denied by Farmers Loan & Trust Co. v. Minnesota, Baldwin v. Missouri, and First National Bank of Boston v. Maine. But the Dorrance cases resulted in the collection of huge inheritance taxes by Pennsylvania and New Jersey, both states grounding their assessments upon the assertion that Dr. Dorrance …

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Trade Marks And Trade Names - Descriptive Terms - "Shredded Wheat'' Not Capable Of Exclusive Appropriation As Trade Name, Thomas K. Fisher Jun 1939

Trade Marks And Trade Names - Descriptive Terms - "Shredded Wheat'' Not Capable Of Exclusive Appropriation As Trade Name, Thomas K. Fisher

Michigan Law Review

In a recent case decided by the United States Supreme Court the following facts appeared. In 1893 a pillow-shaped shredded wheat biscuit was introduced into the highly competitive breakfast food market, and patent rights for the product and its manufacture were secured by the Shredded Wheat Company. Though the basic patent expired in 1912, more than seventeen million dollars were expended in popularizing this particular product. Plaintiff acquired the business and good will of the Shredded Wheat Company in 1930, and continued the extensive advertising of "Shredded Wheat" biscuit. The present suit was begun in 1932 by the National Biscuit …

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Aliens - Deportation - Crimes Involving Moral Turpitude, John H. Uhl Jun 1939

Aliens - Deportation - Crimes Involving Moral Turpitude, John H. Uhl

Michigan Law Review

The petitioner in this case was an alien who had been convicted of smuggling into and concealing within the United States illegally imported alcohol. He was sentenced to serve a year and a day in a federal penitentiary. Upon his release, he was arrested and ordered deported under the Immigration Act of 1917, as an alien who after February 5, 1917 was sentenced to imprisonment for a term of more than a year because of conviction in this country of a crime involving moral turpitude, committed within five years after his entry to the United States. Petitioner seeks release on …

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Aliens - Deportation - Statutory Construction, William K. Jackson Jun 1939

Aliens - Deportation - Statutory Construction, William K. Jackson

Michigan Law Review

The petitioner was held for deportation under a statute requiring deportation of any alien who at any time after entering the United States is found to have been at the time of entry or to have become thereafter a member of any one of previously enumerated classes of aliens who may be excluded. The circuit court of appeals in denying deportation based its decision on the fact that the evidence was insufficient, since it was not proven that the Communist Party was an organization that believes in or advocates the overthrow by force or violence of the government of the …

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Bankruptcy - Corporate Reorganization - Validity Of Process Outside Territorial Confines Of Federal District Court, Edmund O'Hare Jun 1939

Bankruptcy - Corporate Reorganization - Validity Of Process Outside Territorial Confines Of Federal District Court, Edmund O'Hare

Michigan Law Review

Debtor corporation had contracted with defendant, operator of a retail store, whereby defendant agreed to sell debtor's products exclusively and to buy all of his supplies from debtor. While debtor was in the course of section 77 B reorganization proceedings, defendant refused to continue to comply with the contract, Defendant resided and did business in the same state and federal judicial circuit in which the reorganization court was located, but not within the territorial confines of the court, nor was process served upon defendant within the court's territorial jurisdiction. Debtor moved for specific performance of the contract. Held, debtor's …

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Banks And Banking - Liability Of Bank For Payment Of Checks With Improper Signatures - Duty Of Depositor To Inspect Monthly Statements, Michigan Law Review Jun 1939

Banks And Banking - Liability Of Bank For Payment Of Checks With Improper Signatures - Duty Of Depositor To Inspect Monthly Statements, Michigan Law Review

Michigan Law Review

Plaintiff, trustee, a man of banking experience, opened an account with the defendant bank, instructing that only checks signed by him, or by one of his agents, and countersigned by one of two different agents should be honored. Over a period of three years there were numerous departures from the original instructions given to the bank, participated in by the plaintiff as well as by his agents. Two of the agents misappropriated trust funds by cashing checks through defendant bank without the instructed countersignatures, and without knowledge of the plaintiff, but during this period the plaintiff failed to inspect his …

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