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Michigan Law Review

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Bankruptcy - Corporate Reorganization - Fairness Of The Plan, Stanton J. Schuman Mar 1939

Bankruptcy - Corporate Reorganization - Fairness Of The Plan, Stanton J. Schuman

Michigan Law Review

In a reorganization under 77B the unsecured creditors were to be paid by receiving non-voting preferred stock of the insolvent debtor up to the amount of their claims. The old preferred stockholders were to keep the balance of this same class of stock. One thousand shares of voting common stock were to be given to the old shareholders on the basis of one new share for each old share. The plan was approved by ninety-four per cent of the creditors, but the master proposed an amendment whereby the creditors were to have the right to vote in the selection of …

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Trade Marks And Trade Names -- Injunction Against Non-Competitors, John C. Griffin Mar 1939

Trade Marks And Trade Names -- Injunction Against Non-Competitors, John C. Griffin

Michigan Law Review

Plaintiff, Hugo Stein, began business in 1906 as Hugo Stein Cloak Company. Starting in the same year, defendant, S. B. Stein, continuously transacted a jewelry business variously as an individual, a partnership and finally, since 1931, as a corporation. Immediately prior to defendant's incorporation, plaintiff moved to within four doors of defendant. Plaintiff for thirty years consistently advertised as "Stein's," while defendant never did so, at least without additional description, until 1936, at which time it changed its store front and newspaper advertisements to correspond to plaintiff's. There was evidence that numerous people inquired at plaintiff's for jewelry. Held, …

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Taxation - Public Utilities - Implied Condition In Utility Franchise Of Tax Exemption, Allen A. Rubin Mar 1939

Taxation - Public Utilities - Implied Condition In Utility Franchise Of Tax Exemption, Allen A. Rubin

Michigan Law Review

In 1917 the city of New York and the New York Municipal Railway Corporation, predecessor in interest of the appellant, the New York Rapid Transit Corporation, entered into a contract for the operation of part of the city's transit system. The Transit Corporation was thereby obligated to furnish its services for a five cent fare, which by city charter provision could not be changed without the approval on referendum of a majority of the qualified voters. Other relevant portions of the contract provided that the corporation should pay all taxes upon its property and taxes incurred in connection with the …

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Taxation - Income Taxes - Deduction For Uncompensated Damages To Non-Business Property, Anthony L. Dividio Mar 1939

Taxation - Income Taxes - Deduction For Uncompensated Damages To Non-Business Property, Anthony L. Dividio

Michigan Law Review

Several years prior to 1934, the taxpayer purchased a pleasure automobile for $1,825. Its value in 1934 was $225; after a collision its value was $190. The Circuit Court of Appeals for the Second Circuit upheld the taxpayer's contention that inasmuch as a taxpayer is not allowed an annual deduction for depreciation on non-business property, the original cost of such property constituted the basis for measuring the "uncompensated loss" allowed as a deduction for income tax purposes under section 113 (b) (1) (B) of the Revenue Act of 1934. Held, the decision of the Circuit Court of Appeals should …

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Monthly Periodical Index, Michigan Law Review Mar 1939

Monthly Periodical Index, Michigan Law Review

Michigan Law Review

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

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Torts - Contributory Negligence Of One Of Several Beneficiaries As A Bar To Recovery Under Death Statute, Thomas K. Fisher Mar 1939

Torts - Contributory Negligence Of One Of Several Beneficiaries As A Bar To Recovery Under Death Statute, Thomas K. Fisher

Michigan Law Review

The administrator of a deceased infant brought an action under the Massachusetts death statute to recover for the death of the child. Death was caused by the negligence of defendant's servant, the father of the deceased. Defendant contended that plaintiff should not prevail because the father, as one of the next of kin sharing in the distribution of the money recovered, would thereby profit from his own wrong. Held, the Massachusetts death statute was penal in nature, and since there was at least one beneficiary whose fault did not contribute to the wrongful death, recovery could be had without …

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Taxation - Interstate Commerce -Compensating Use Tax, Menefee D. Blackwell Mar 1939

Taxation - Interstate Commerce -Compensating Use Tax, Menefee D. Blackwell

Michigan Law Review

The California Use Tax Act of 1935 imposed an excise tax on the storage or use of personal property purchased in other states and brought into California. Plaintiff railway, engaged in both intrastate and interstate commerce, purchased supplies out of the state and imported them for the purpose of adding to and replacing worn out and broken equipment necessary for the operation of its offices and road. Some of the property acquired was stored a short period of time before it was used and some was used immediately on arrival for the purpose for which it had been imported. The …

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Workmen's Compensation - Lead Poisoning Contracted By An Automobile Mechanic Not An Occupational Disease - Cancer Contracted By Battery Plant Employee An Occupational Disease, Donald M. Swope Mar 1939

Workmen's Compensation - Lead Poisoning Contracted By An Automobile Mechanic Not An Occupational Disease - Cancer Contracted By Battery Plant Employee An Occupational Disease, Donald M. Swope

Michigan Law Review

Plaintiff contracted lead poisoning through the gradual daily inhalation of poisonous fumes from a gasoline torch used in his occupation as an automobile mechanic. If the employer had provided another type of gasoline, it appeared that plaintiff's disability would have been avoided. Held, that under these circumstances lead poisoning was not an occupational disease, and plaintiff should be compensated under the Iowa Workmen's Compensation Law. Black v. Creston Auto Co., (Iowa, 1938) 281 N. W. 189.

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Book Notes, Michigan Law Review Mar 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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Front Matter, Michigan Law Review Mar 1939

Front Matter, Michigan Law Review

Michigan Law Review

Front Matter for Volume 37, Issue 5 of Michigan Law Review

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The Legal Significance Of Labor Contracts Under The National Labor Relations Act, William Gorham Rice Jr. Mar 1939

The Legal Significance Of Labor Contracts Under The National Labor Relations Act, William Gorham Rice Jr.

Michigan Law Review

The National Labor Relations Act was passed, as it declares in its first section, to encourage "the practice and procedure of collective bargaining'' and to give workers freedom to designate "representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment"; and the last of the unfair labor practices named in section 8 is for an employer "to refuse to bargain collectively." Bargaining and negotiating, the National Labor Relations Board has repeatedly declared, must be done in good faith. Discussion is not true negotiation or bargaining. For the employer to bargain in good faith …

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German Social Honor Courts, Harlow J. Heneman Mar 1939

German Social Honor Courts, Harlow J. Heneman

Michigan Law Review

Germany's National Socialist regime has prided itself on its ability to maintain peaceful employer-employee relations at a time when other countries of the world are seriously troubled by industrial disturbances. The German government has actively intervened to see that neither employers nor workers overstep bounds set for them by Nazi social and economic policies. Dr. Robert Ley, head of the German Labor Front, has said that the government owes its success in this field to measures that are a "healthy combination of freedom and compulsion." Since Hitler's advent to power, the former organizations of both employers and employees have largely …

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Automobiles - Registration Of Title And Transfer - Effect On Ownership, Gerald M. Stevens Mar 1939

Automobiles - Registration Of Title And Transfer - Effect On Ownership, Gerald M. Stevens

Michigan Law Review

Who owns this automobile? is a question of frequent interest both to the state and to its citizens. Identification of it and its owner may be a leading clue to the solution of crime; its owner must often be apprehended as the first step toward punishment of one of the considerable list of offenses peculiar to the operation of motor vehicles; it constitutes an important item of taxable property. The private citizen is interested in its ownership to identify the proper defendant in his tort action; it is an obvious source of satisfaction of his claim against a debtor; or …

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Corporations - Stockholders' Suits - Federal Courts -Requirement Of Stock Ownership At The Time Of The Injury Complained Of, Robert E. Sipes Mar 1939

Corporations - Stockholders' Suits - Federal Courts -Requirement Of Stock Ownership At The Time Of The Injury Complained Of, Robert E. Sipes

Michigan Law Review

When necessary to protect the interest of a stockholder, a court of equity will entertain an action by the stockholder to enforce a right belonging to the corporation. The suit is a derivative one, the corporation being the party primarily injured and the immediate beneficiary of the proceeds of any judgment. The basis for the suit has been explained in a number of ways. It has been held that in a proper case equity will disregard the corporate fiction and allow the derivative suit in order to protect the right which beneficially belongs to the stockholder although nominally to the …

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Some Indicia Of Capital Transfers Under The Federal Income Tax Laws, Paul Harvey Mar 1939

Some Indicia Of Capital Transfers Under The Federal Income Tax Laws, Paul Harvey

Michigan Law Review

The fundamental difference between capital and income is recognized throughout the entire structure of the income tax law, and many decisions have distinguished between the two for the purpose of determining whether a given transaction comes within the meaning of the term "income" as used in the Sixteenth Amendment. But while recognizing the fundamental differences between capital and income, apparently the courts have been somewhat doubtful about advancing any broad, general statements by which specific transactions might be classified. While they have sometimes hesitated to call a specific item a capital transfer, they have, nevertheless, held numerous transactions involving the …

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Contracts -- Right Of A Physician To Recover On An Implied-In-Fact Contract, Seward R. Stroud Mar 1939

Contracts -- Right Of A Physician To Recover On An Implied-In-Fact Contract, Seward R. Stroud

Michigan Law Review

At one time, under the Roman civil law, neither a physician nor an advocate could recover in an ordinary action at law for services rendered. The philosophical interpretation put upon such services was that, each case being sui generis both as to the value of the service to the patient and as to the skill and attainment required of the physician, a fixed and invariable salary could not be predicated upon this basis and therefore the compensation must depend upon the case. This compensation was not a matter of right but a gratuity or honorarium, as it was called, paid …

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Criminal Law And Procedure - Constitutionality Of A Comment Upon Defendant's Failure To Testify, D. M. Swope Mar 1939

Criminal Law And Procedure - Constitutionality Of A Comment Upon Defendant's Failure To Testify, D. M. Swope

Michigan Law Review

For several years there has been agitation in legal and legislative circles to permit comment in a criminal action upon the failure of the defendant to testify. Both the American Bar Association and the American Law Institute have passed resolutions favoring such legislation. The chief objection to the proposal has been its alleged unconstitutionality. The purpose of this comment is to attempt to rebut such a contention and to show that the advocated change is both constitutional and eminently desirable.

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Appeal And Error - The Administrator As A Party Aggrieved By Probate Of Will, John H. Uhl Mar 1939

Appeal And Error - The Administrator As A Party Aggrieved By Probate Of Will, John H. Uhl

Michigan Law Review

In an action to prove the existence of a lost will executed by the deceased, judgment was rendered setting up the lost will and revoking the letters of administration which had been issued. The administrator appealed from this order, and the appellee moved to dismiss the appeal on the ground that the administrator had no such interest as entitled him to review. The governing statute permitted appeal by "any party aggrieved by any final order, judgment, or decree." Held, that the administrator who has qualified as such was entitled to appeal under the statute, as the party aggrieved by …

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Contracts - Third Party Beneficiary - Right Of Promisor To Set Off Claim Againt Promisee In A Suit By Beneficiary, Arthur A. Greene Jr. Mar 1939

Contracts - Third Party Beneficiary - Right Of Promisor To Set Off Claim Againt Promisee In A Suit By Beneficiary, Arthur A. Greene Jr.

Michigan Law Review

A and B mortgaged real estate to the plaintiff to secure their notes aggregating $9,000. Six months later A and B exchanged this property to the defendant for certain real estate owned by her. By the deed the defendant assumed the mortgage indebtedness owed to the plaintiff. As a further consideration for the exchange, A and B executed a note for $13,050 to the defendant. The plaintiff instituted this action against A and B, seeking to recover the balance, and by amended petition joined the defendant. The defendant claimed the right of set-off on the uncollected judgment against A …

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Corporations - Amendments By Majority Of The Stockholders - Provision In Certificate Of Incorporation Requiring More Than Majority, Stanton J. Schuman Mar 1939

Corporations - Amendments By Majority Of The Stockholders - Provision In Certificate Of Incorporation Requiring More Than Majority, Stanton J. Schuman

Michigan Law Review

A Delaware general corporation statute provided for changing the preferences, rights, or powers of any class of stock if a majority in interest of each class voted in the affirmative thereon. Another part of the statute allowed the certificate of incorporation to require a larger proportion. The certificate of incorporation of D corporation required a vote of seventy-five per cent of the outstanding preferred stock to change the "designations," preferences, and voting powers" of the preferred stock. This required vote was reduced to sixty per cent by an amendment which received a favorable vote of fifty-five per cent of such …

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Municipal Corporations - Liability For Misrepresentation, Arthur A. Greene Jr. Mar 1939

Municipal Corporations - Liability For Misrepresentation, Arthur A. Greene Jr.

Michigan Law Review

The plaintiff contracted with the defendant to construct a sewer 8,553 feet in length. The specifications supplied by the county engineer indicated that the construction could be carried on under "free air conditions." In fact, the plaintiff was forced to use compressed air for 6,142 feet. The contract stipulated that the county would pay $30 additional per foot where the plaintiff found it more convenient to use compressed air, not to exceed 600 feet. The use of compressed air increased the cost of construction to the plaintiff to the extent of $497,521.25. Held, that the county was liable for …

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Rule Against Perpetuities - Testamentary Provision Making Gift Vest On Distribution Of Testator's Estate, Henry L. Pitts Mar 1939

Rule Against Perpetuities - Testamentary Provision Making Gift Vest On Distribution Of Testator's Estate, Henry L. Pitts

Michigan Law Review

Testator devised and bequeathed the residue of his estate to four specified chair officers of a lodge who were to be "the four chair officers in office at the time of distribution of my estate." These officers were elected annually. The lower court found that the clause was void as in contravention of sections 715 and 716 of the Civil Code of California. The four individuals holding the named offices in the lodge appealed. Held, affirmed. In re Campbell's Estate, 94 Cal. App. Dec. 482, 82 P. (2d) 22 (1938).

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Front Matter, Michigan Law Review Feb 1939

Front Matter, Michigan Law Review

Michigan Law Review

Front Matter for Volume 37, Issue 4 of Michigan Law Review

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The Measure Of Recovery In Actions For The Infringement Of Copyright, Julian Caplan Feb 1939

The Measure Of Recovery In Actions For The Infringement Of Copyright, Julian Caplan

Michigan Law Review

Since the present federal copyright statute was enacted in 1909, and especially quite recently, there have been repeated attempts at drastic modification of the law. Certain groups contend that the present statutory provisions are not of sufficient protection to the copyright proprietor, whereas other groups contend that the extent of the protection is entirely unwarranted. One of the chief phases of controversy has involved the measure of recovery in suits for infringement. The issue is of fundamental importance, since the measure of damages determines to a large extent how effective the other provisions of the statute will be. Whether, under …

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A Warning Signal For Municipal Bondholders: Some Implications Of Erie Railroad V. Tompkins, Irvin Long Feb 1939

A Warning Signal For Municipal Bondholders: Some Implications Of Erie Railroad V. Tompkins, Irvin Long

Michigan Law Review

That branch of municipal bond litigation in which the character and validity of the obligations is involved has usually been conducted in the federal courts. Bondholders pressing for payment of their defaulted bonds usually are nonresidents of the state where the city, county or other defaulting municipality is located. Varying and contradictory state court decisions taught them that no settled rule of decision in the state courts could be expected. The arguments of their counsel, which many of the earlier volumes of the Supreme Court reports preserve, show that they distrusted a judiciary elected for short terms, as was the …

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Carriers - Discrimination -Allowance In Lieu Of Spotting Service By Railroads -Validity Of Cease And Desist Order, Arthur P. Boynton Feb 1939

Carriers - Discrimination -Allowance In Lieu Of Spotting Service By Railroads -Validity Of Cease And Desist Order, Arthur P. Boynton

Michigan Law Review

Nine industrial corporations sought to set aside an order of the Interstate Commerce Commission commanding the railroad or railroads serving industrial plants of the plaintiffs to cease and desist from the payment of allowance for the spotting of cars and switching services performed by plaintiffs on plant facilities. They contended the commission exceeded its powers in making the order and that its findings were not supported by substantial evidence. Held, that there was substantial evidence to support the findings and that the order was valid and should be sustained. United States v. Pan American Petroleum Corp., 304 U.S. …

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Contracts - Restraint Of Trade - Legality Of Covenant Restricting Use Of Land By The Purchaser Where No Goodwill Transferred, Thomas K. Fisher Feb 1939

Contracts - Restraint Of Trade - Legality Of Covenant Restricting Use Of Land By The Purchaser Where No Goodwill Transferred, Thomas K. Fisher

Michigan Law Review

Defendants' intestate, who owned large interests in two lime companies operating in Washington and California, entered into a contract for the sale of a tract of land to plaintiff's predecessor in title. The contract contained a restrictive covenant to the effect that the grantee, or those claiming under him, would not use any of the limerock in said land for the purpose of making lime. Subsequently the grantor died, and the conveyance and execution of a deed, which included within its provisions the restrictive covenant, were made by the administrator of grantor's estate, pursuant to court order. Plaintiff brought an …

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Corporations - Stockholders' Suits - Effect Of Erie Railroad V. Tompkins On Federal Equity Rule 27, Leonard D. Verdier Jr. Feb 1939

Corporations - Stockholders' Suits - Effect Of Erie Railroad V. Tompkins On Federal Equity Rule 27, Leonard D. Verdier Jr.

Michigan Law Review

Plaintiffs filed a stockholders' bill in federal equity court to enforce certain rights of Hearst Consolidated Publications, Inc., a Delaware corporation. The individual defendants, directors of the corporation, were charged with having effected a plan to sell various Hearst properties to the corporation at excessive prices. Defendants moved to strike from the bill of complaint paragraphs referring to transactions which occurred prior to the date when plaintiffs acquired their stock. The motion was based on equity rule 27. The contention of counsel for plaintiffs was that rule 27 is based on the federal general law, which on this point conflicts …

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Municipal Corporations - Police Power - Validity Of Ordinance Fixing Closing Hours, Fred C. Newman Feb 1939

Municipal Corporations - Police Power - Validity Of Ordinance Fixing Closing Hours, Fred C. Newman

Michigan Law Review

P, a general grocery store, brought an action to have a certain ordinance declared unconstitutional and to enjoin the enforcement of the ordinance. The ordinance provided that stores which sold or distributed "any uncured or uncooked meats or other foods of any kind intended for human consumption" should be open for business only between the hours of duty established for the municipal meat and food inspection department. Bona fide hotels, boarding houses, lodging houses, restaurants, drug stores, confectionery stores, dispensers of beverages, distributors of milk and cream, ice cream and soda fountains were expressly excepted from the operation of …

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Taxation-Income Tax-Discretionary Application Of Income Of Irrevocable Trust To Maintenance Of Settlor's Children-Taxability To Settlor, Benjamin H. Dewey Feb 1939

Taxation-Income Tax-Discretionary Application Of Income Of Irrevocable Trust To Maintenance Of Settlor's Children-Taxability To Settlor, Benjamin H. Dewey

Michigan Law Review

Settlors, husband and wife, established certain irrevocable trusts with themselves and another as trustees, and the children of the settlors as beneficiaries. The income from the trust property was to be accumulated, and a certain percentage of the corpus and accumulated income was to be distributed to the beneficiaries as they respectively reached certain specified ages. The trust agreement further provided that the trustees should have the power to expend from the corpus or income such sums as they should deem necessary and advisable for the maintenance, education and support of the beneficiaries, or to defray expenses arising from sickness, …

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