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Michigan Law Review

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Contracts - Illegality - Right Of Surety Of Bank Officer To Recover Embezzled Bank Funds Lost In Gambling, James W. Mehaffy Jan 1939

Contracts - Illegality - Right Of Surety Of Bank Officer To Recover Embezzled Bank Funds Lost In Gambling, James W. Mehaffy

Michigan Law Review

A, president of B bank in South Dakota, embezzled funds which he used in trading in grain futures with D, a broker. Neither A nor D intended any actual delivery of the grain. P, surety for A, after having paid the bank for A's defalcation, sued D to recover the money A lost. Held, P can recover. Burke Grain Co. v. St. Paul-Mercury Indemnity Co., (C. C. A. 8th, 1938) 94 F. (2d) 458.

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Constitutional Law - Schools And School Districts - Teachers' Tenure Legislation, Bertram H. Lebeis Jan 1939

Constitutional Law - Schools And School Districts - Teachers' Tenure Legislation, Bertram H. Lebeis

Michigan Law Review

Although the question of security of employment for public school teachers was discussed as far back as the year 1885, when tenure was interpreted to mean the application of civil service principles to the teaching profession, the organized teacher tenure movement is of comparatively recent origin. From within the profession itself impetus was given to the movement by continuous campaigns carried on by local, state and national teachers' associations. From without, the growth of the movement was facilitated by a wider recognition of the evils attendant upon the unlimited power of school boards to "hire and fire" their employees at …

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Evidence - Municipal Ordinances - Admission Of Evidence Of Enactment When Record Is Silent, Robert E. Sipes Jan 1939

Evidence - Municipal Ordinances - Admission Of Evidence Of Enactment When Record Is Silent, Robert E. Sipes

Michigan Law Review

In a suit by a village to require the removal of the equipment of an electric distribution company from the streets of the village, the company sought to introduce in evidence a copy of a purported ordinance giving it a twenty-five year franchise. There was no mention of such an ordinance in the record of proceedings of the village council. Held, such evidence is not admissible to show the acts of a municipal council when the records of its proceedings are available. Village of Deshler v. Southern Nebraska Power Co., 133 Neb. 778, 277 N. W. 77 ( …

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Front Matter, Michigan Law Review Jan 1939

Front Matter, Michigan Law Review

Michigan Law Review

Front Matter for Volume 37, Issue 3 of Michigan Law Review

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The Widow's Right Of Election In The Estate Of Her Husband, Elbridge D. Phelps Jan 1939

The Widow's Right Of Election In The Estate Of Her Husband, Elbridge D. Phelps

Michigan Law Review

Reference has already been made to the difficulties arising when the widow has elected to take under the will, and for some reason or other, intestate property also remains to be disposed. Further difficulty arises in those cases where the widow elects to take against the will and yet claims to share in intestate property. Shall her claim be allowed under those circumstances?

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Deeds - Covenant Of Warranty Limited By Exceptions In Another Covenant, Seward R. Stroud Jan 1939

Deeds - Covenant Of Warranty Limited By Exceptions In Another Covenant, Seward R. Stroud

Michigan Law Review

A mortgaged land to B and thereafter executed a second mortgage on the same land to C. In the second mortgage, A covenanted that "they are seized of good and perfect title . . . in fee simple and that the title so conveyed is clear, free and unincumbered except . . . (the Hixton Bank mortgage) [mortgage to B] and that they will forever warrant and defend the same . . . against all claims whatsoever." The first mortgage to B was foreclosed, and B purchased at the foreclosure sale. B sold the land to A, …

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The Windfall Tax And Processing Tax Refund Provisions Of The Revenue Act Of 1936, Keith P. Bondurant Jan 1939

The Windfall Tax And Processing Tax Refund Provisions Of The Revenue Act Of 1936, Keith P. Bondurant

Michigan Law Review

The proposition that a seller who has collected from his vendees but has not paid to the government taxes imposed under an unconstitutional statute is unjustly enriched, and the correlative principle that a taxpayer has no right to recover invalid taxes paid by him if he has shifted the burden of such taxes to others, are embodied in title II and title VII, respectively, of the Revenue Act of 1936. Title VII prohibits refunds to processors and other vendors of amounts collected from them as tax under the Agricultural Adjustment Act unless the claimant can establish that he bore the …

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Book Notes, Michigan Law Review Jan 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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Evidence-Best Evidence Rule-Use Of Summaries Of Voluminous Originals, Benjamin H. Dewey Jan 1939

Evidence-Best Evidence Rule-Use Of Summaries Of Voluminous Originals, Benjamin H. Dewey

Michigan Law Review

The best evidence rule usually requires that in proving the contents of documents, the documents themselves must be produced. However, the doctrine is firmly established that where the fact or facts to be ascertained can only be determined by the inspection of a large number of records, papers, books of account, or other like documents, the best evidence rule will be relaxed, and an oral or written summary of such voluminous mass of data may be allowed in evidence. This is done on the basis that the production of the originals is impractible, inexpedient and time-devouring, and because the summary …

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Securities Legislation - Securities Act - Stop Order Proceedings - Administrative Tests Of Materiality, Bertram H. Lebeis Jan 1939

Securities Legislation - Securities Act - Stop Order Proceedings - Administrative Tests Of Materiality, Bertram H. Lebeis

Michigan Law Review

With a view toward correcting many of the abuses which had accompanied the distribution of securities, the Congressional mandate embodied in the Securities Act of 1933, together with the regulations of the Securities and Exchange Commission adopted in pursuance thereof, require the publication of much information previously withheld from the investing public. The basic objective of the act is the full disclosure of every essentially important element attending issues of securities in interstate commerce or through the mails, and to that end the commission is empowered to issue a stop order suspending the effectiveness of a registration statement if it …

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Corporations -Parent And Subsidiary-Right Of Parent Or Subsidiary To Share With Other Creditors In Assets Of Associated Corporation On The Latter's Insolvency, Collins E. Brooks Jan 1939

Corporations -Parent And Subsidiary-Right Of Parent Or Subsidiary To Share With Other Creditors In Assets Of Associated Corporation On The Latter's Insolvency, Collins E. Brooks

Michigan Law Review

Increasingly in the past few years, courts throughout the country have seemed willing to disregard what Professor Ballantine has called the "basic theory of corporation law," the concept that a corporation is an entity entirely distinct and separate from its stockholders. It is not the purpose of this writer to take issue with this tendency; for the most part the decisions seem sound and the results just. It is believed, however, that the rules used by the courts in reaching those decisions are, in many instances, open to question. There is one situation in particular in which the courts have …

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Contracts - Assignment Of A Debt Arising Under A Contract To Be Made In The Future, Stanton J. Schuman Jan 1939

Contracts - Assignment Of A Debt Arising Under A Contract To Be Made In The Future, Stanton J. Schuman

Michigan Law Review

The M Milk Co. was negotiating a sale of its business to the defendant, who did not want to purchase the business unless M Co. could deliver the personal property free of incumbrances. G, who held a mortgage on these properties, was present at the first negotiations between M Co. and the defendant, and at this time he released his mortgage in consideration of an assignment to him by M Co. of all the debts now due or to become due to it. Shortly thereafter a sale of the property was negotiated to the defendant, the result of which …

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Banks And Banking - Trusts - Special Deposits - Agreement Between Depositor And Bank, Robert E. Sipes Jan 1939

Banks And Banking - Trusts - Special Deposits - Agreement Between Depositor And Bank, Robert E. Sipes

Michigan Law Review

During a period of widespread bank failures, plaintiff corporation ceased depositing its funds with the defendant bank. To maintain the public's impression that the plaintiff was a regular customer of the bank, an agreement was entered into by the bank and the plaintiff whereby the bank was appointed "agent" of the plaintiff to collect and remit promptly money due plaintiff. Branch offices of the plaintiff deposited money under this agreement to be transmitted to the plaintiff. When the bank failed with some of this money still in its hands, plaintiff sought to be allowed a preferred claim. Held, the …

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Bailments - Liability Of Parking Lot Owner For A Stolen Car, M. D. Blackwell Jan 1939

Bailments - Liability Of Parking Lot Owner For A Stolen Car, M. D. Blackwell

Michigan Law Review

Plaintiff parked her car at defendant's parking lot, paying the required fee and leaving the key in the car. The plaintiff testified that this was done at the attendant's request, and this testimony was not directly controverted. The attendant left the lot about midnight, and some time after that time the car was stolen. Held, that a bailment existed, and that the plaintiff had set up a prima facie case of liability on the part of the bailee for failing to exercise due care. Auto Ins. Co. v. Syndicate Parking Co., 58 Ohio App. 148, 16 N. E. …

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Corporations - Negotiability Of Stock Certificates - Uniform Stock Transfer Act, Charles R. Linton Jan 1939

Corporations - Negotiability Of Stock Certificates - Uniform Stock Transfer Act, Charles R. Linton

Michigan Law Review

Plaintiff holding company was incorporated with Murtland and two dummies as shareholders and officers. Murtland pledged a stock certificate, representing shares of another corporation owned by his corporation, with the defendant bank to secure a personal loan; an assignment and power of attorney was executed by the plaintiff through Murtland and one of the dummy shareholders as officers, the other shareholder having knowledge of the transaction. Upon the bankruptcy of Murtland, defendant sought to sell the collateral; plaintiff seeks to enjoin the sale on the ground that the assignment had not been authorized by its board of directors. Held, …

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Courts - Federal Courts - Removal Of Causes - Amendment To Complaint After Removal Reducing Amount In Controversy To Less Than The Jurisdictional Amount, Robert E. Sipes Jan 1939

Courts - Federal Courts - Removal Of Causes - Amendment To Complaint After Removal Reducing Amount In Controversy To Less Than The Jurisdictional Amount, Robert E. Sipes

Michigan Law Review

Plaintiff began his action for breach of contract in a state court of Indiana. On defendant's timely petition the suit was removed to the United States District Court. Plaintiff then amended his pleadings by filing particulars of his claim which reduced the amount recoverable below the jurisdictional amount. On a writ of certiorari it was held that the jurisdiction of the district court was not defeated by the amendment reducing the amount claimed to below the jurisdictional amount. Saint Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 58 S. Ct. 586 (1938).

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Criminal Law And Procedure - Essential Definiteness Of Criminal Statutes - Automobile Regulations, Robert Meisenholder Jan 1939

Criminal Law And Procedure - Essential Definiteness Of Criminal Statutes - Automobile Regulations, Robert Meisenholder

Michigan Law Review

Defendant was convicted of reckless driving under section 48 of the Illinois Uniform Traffic Act which reads, "Any person who drives any vehicle with a wilful or a wanton disregard for the safety of persons or property is guilty of reckless driving." He appealed on the ground that the statute violated the Illinois Constitution because it was too vague, indefinite, and uncertain. Held, that the statute did not violate the constitution and was a valid exercise of the police power of the legislature. People v. Green, 368 Ill. 242, 13 N. E. (2d) 278 (1938).

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Fixtures - Uniform Conditional Sales Act - Interpretation Of The Word "Freehold", Robert E. Sipes Jan 1939

Fixtures - Uniform Conditional Sales Act - Interpretation Of The Word "Freehold", Robert E. Sipes

Michigan Law Review

Plaintiff installed elevators in an apartment house under construction. The elevators were covered by a conditional sale contract with the general contractor. Prior to the sale of the elevators the apartment house had been mortgaged. Upon the contractor's default in payment for the elevators, plaintiff asserted his right to remove the elevators as against the owner of the apartment and the mortgagee. Held, the elevators could be removed. Otis Elevator Co. v. Arey-Hauser Co., (D. C. Pa. 1938) 22 F. Supp. 4.

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Interstate Commerce - Right Of State To Deny Use Of Highways To Carrier Having Certificate From Interstate Commerce Commission, Ralph Winkler Jan 1939

Interstate Commerce - Right Of State To Deny Use Of Highways To Carrier Having Certificate From Interstate Commerce Commission, Ralph Winkler

Michigan Law Review

A common carrier engaged in interstate commerce applied to the Interstate Commerce Commission for a certificate of convenience and necessity as required by section 206 of the Federal Motor Carrier Act of 1935. The carrier relied on the proviso authorizing the commission to grant a certificate without a showing of public convenience and necessity where the applicant was a carrier in bona fide operation on June 1, 1935; the statute further privileged a carrier applying for a certificate under this proviso to continue operation pending determination of its application. The State Railroad Commission of Texas earlier in 1934 had denied …

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Taxation - Income Tax - Settlement Of Will Contest As Taxable, Anthony L. Dividio Jan 1939

Taxation - Income Tax - Settlement Of Will Contest As Taxable, Anthony L. Dividio

Michigan Law Review

Taxpayer commenced suit to contest the probate of his grandmother's will, by which she had made nominal bequests to her grandchildren, and had created a charitable trust with the large residue. The parties agreed upon a settlement, as a result of which taxpayer received $141,404.03, all of which the tax commissioner claimed was taxable income. Held, the amount received by taxpayer came to him because he was an heir and did not constitute taxable income. Lyeth v. Hoey, (U. S. 1938) 6 U. S. Law Week 421 (Dec. 6, 1938).

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Trade Regulation - Right Of Employer To Enjoin Former Employee From Soliciting Employer's Customers, Michigan Law Review Jan 1939

Trade Regulation - Right Of Employer To Enjoin Former Employee From Soliciting Employer's Customers, Michigan Law Review

Michigan Law Review

Defendants had formerly been employed as solicitors for the plaintiff, a corporation engaged in the business of selling teas, coffees, spices, and other products at retail. There were no restrictive covenants in the employment contract and within a few months after leaving plaintiff's employ, defendants entered into a similar business in competition with the plaintiff and solicited customers with whom they became acquainted while in plaintiff's service. Plaintiff appealed from an order sustaining a demurrer to its bill which sought to restrain defendants from such soliciting. Held, order affirmed. In the absence of a contract and where the employee …

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Sales - Nature Of Implied Warranty Of Fitness Of Food - Liability Of Intermediate Dealer, Michigan Law Review Jan 1939

Sales - Nature Of Implied Warranty Of Fitness Of Food - Liability Of Intermediate Dealer, Michigan Law Review

Michigan Law Review

Plaintiff's husband purchased canned sauerkraut juice from a retail grocer, who, in turn, had purchased it from the defendant, a wholesale grocery company. The kraut juice, which had not been packed or canned by the defendant, contained deleterious substances that made the plaintiff ill. In an action for damages, the plaintiff recovered on the basis of an implied warranty of fitness for human consumption. Defendant appealed. Held, judgment sustained. Swengel v. F. & E. Wholesale Grocery Co., 147 Kan. 555, 77 P. (2d) 930 (1938).

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Monthly Periodical Index, Michigan Law Review Jan 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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Taxation -Income Tax - Profit On Sale Of Securities - Identification Of Shares Sold, Milton A. Kramer Jan 1939

Taxation -Income Tax - Profit On Sale Of Securities - Identification Of Shares Sold, Milton A. Kramer

Michigan Law Review

The taxpayer ordered his broker to sell certain shares of stock purchased in March, 1929, which were on deposit at a bank. He then ordered the bank to deliver a thousand shares from certificates numbered 80250 to 80258 inclusive, and 80264. It does not appear whether the instructions were written or oral. The bank, however, delivered by mistake certificates from another lot which had a considerably lower cost basis and had been held as collateral since 1925. The Board of Tax Appeals concluded that the shares delivered to the broker as represented by the certificates were the shares actually sold …

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Corporations - Disregarding Corporate Entity - Fraud, Collins E. Brooks Dec 1938

Corporations - Disregarding Corporate Entity - Fraud, Collins E. Brooks

Michigan Law Review

A and B purchased from plaintiffs all of the stock of defendant corporation. Prior to the transaction, and as a basis for negotiations, plaintiffs had an accountant prepare a statement of corporate assets and liabilities, which showed that the corporation was in financial difficulties. A and B acknowledged the corporate indebtedness and took over the corporation. Later, plaintiffs brought suit against the corporation on claims for salaries and advancements allegedly due them from it, which claims had not appeared on the statement of corporate liabilities. Held, the corporate entity would be disregarded, and plaintiffs estopped from setting up their …

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Criminal Law And Procedure - Physicians And Surgeons - Contraceptive Statutes And Implied Exceptions Thereto, Thomas K. Fisher Dec 1938

Criminal Law And Procedure - Physicians And Surgeons - Contraceptive Statutes And Implied Exceptions Thereto, Thomas K. Fisher

Michigan Law Review

A Massachusetts statute made the selling of any drug, medicine or instrument for the prevention of conception a criminal offense. The defendants, a doctor, a nurse, and two social workers, all connected with a charitable association, prescribed and sold contraceptives to non-pregnant, married women. Defendants' offer of proof, admitting the facts charged, but contending that the statute did not apply where the sale was made under a physician's prescription for the preservation of life or health, was found by the trial court to constitute no defense. Held, that the wording was plain and unequivocal allowing for no implied exception. …

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Parent And Child - Duty Of Mother To Support Child When Father Is Alive, Thomas E. Wilson Dec 1938

Parent And Child - Duty Of Mother To Support Child When Father Is Alive, Thomas E. Wilson

Michigan Law Review

Plaintiff obtained a divorce from defendant, and at the time of the divorce voluntarily undertook to care for and support their twenty-one year old son, who was afflicted with tuberculosis and unable to support himself. The son resided with his mother until his death. She instituted this action against the father to recover for the care and support of the son from the time of the divorce until his death and for funeral expenses, relying upon a statute imposing upon specified classes or relatives of poor persons a duty to maintain them, which statute the plaintiff contended imposed a duty …

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Front Matter, Michigan Law Review Dec 1938

Front Matter, Michigan Law Review

Michigan Law Review

Front Matter for Volume 37, Issue 2 of Michigan Law Review

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Arrest - Stopping And Questioning As An Arrest - Reasonable Suspicion From Facts Disclosed By Questioning As Justification, Robert Meisenholder Dec 1938

Arrest - Stopping And Questioning As An Arrest - Reasonable Suspicion From Facts Disclosed By Questioning As Justification, Robert Meisenholder

Michigan Law Review

After arrest of the defendant on mere suspicion without probable cause, the arresting officers on searching the car in which he was driving found two guns. The defendant complained on appeal, after conviction for carrying concealed weapons in an automobile, of the denial of his motion before trial to suppress the evidence. Held, it was error to refuse to suppress the guns as evidence because, the arrest being unlawful, the subsequent search and seizure was unlawful. Had the officers stopped and questioned the defendant, and had such questioning disclosed facts to establish a reasonable suspicion that the defendant was …

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Adverse Possession - Requirements For Obtaining Title To A Cave By Adverse Possession, Donald M. Swope Dec 1938

Adverse Possession - Requirements For Obtaining Title To A Cave By Adverse Possession, Donald M. Swope

Michigan Law Review

Plaintiff and defendant were owners of adjoining properties. On defendant's land was located the only opening to a cavern, which a remote grantor of defendant discovered in 1893. Since that time, defendant and its immediate and remote grantors have improved the cave for visitors, and conducted persons through it upon the payment of an admission price. With wide publicity, this has continued for almost fifty years. Plaintiff first visited the cave in 1895, paying an admission fee for the privilege, and has visited it several times since. A part of said cave extended under real estate owned by plaintiff, but …

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