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Michigan Law Review

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Constitutional Law - Federal Courts - Law To Be Applied In Cases Of Diversity Of Citizenship - Swift V. Tyson Overrule, Frank B. Stone Jun 1938

Constitutional Law - Federal Courts - Law To Be Applied In Cases Of Diversity Of Citizenship - Swift V. Tyson Overrule, Frank B. Stone

Michigan Law Review

A recent personal injury case, Erie Railroad v. Tompkins, arose in the federal district court, based upon diversity of citizenship, in which the defendant urged that state judicial decisions of Pennsylvania, the locus delicti, imposed no liability on it for negligence to trespassers. The plaintiff denied that such was the Pennsylvania law and alternatively replied that the issue of law was one to be determined by the federal court without regard to the law of Pennsylvania. On April 25, 1938, a verdict for the plaintiff was unanimously set aside by the Supreme Court. Two members, Justices Butler and McReynolds, …

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Constitutional Law -Validity Of Registration Provisions Of Public Utility Holding Company Act Of 1935, Gerald L. Stoetzer Jun 1938

Constitutional Law -Validity Of Registration Provisions Of Public Utility Holding Company Act Of 1935, Gerald L. Stoetzer

Michigan Law Review

In recognition of the abuses that arise from the monopolistic tendencies of holding companies in the public utility field and of the inability of the respective states to exert the necessary control thereof, Congress has attempted to draw certain of the public utility holding companies within the inquisitorial and regulatory control of the federal Securities and Exchange Commission. The Public Utility Holding Company Act of 1935, reciting in great detail facts showing the necessity for control of holding companies having as subsidiaries electric and gas operating utilities, indicates that Congress regarded the uncontrolled utility holding company as "an agency which, …

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Corporations - Liability Of Stockholders Of Bank Stock Holding Company For Statutory Assessment On Bank Stock., Edward J. Wendrow Jun 1938

Corporations - Liability Of Stockholders Of Bank Stock Holding Company For Statutory Assessment On Bank Stock., Edward J. Wendrow

Michigan Law Review

The late depression with its attendant bank failures and the consequent assessment of shareholders has resulted in bringing before the courts a question that has never been litigated until comparatively recent times. That is, can the shareholders of a holding company, whose assets consist of stock of the closed bank, be subjected to the statutory assessment when the corporation itself is unable to meet the assessment? The case of Nettles v. Rhett is the latest of this series, and is fairly typical of the issues involved. This case concerned a suit by the receiver of the Peoples State Bank of …

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Injunctions - Courts - Labor Law - Power Of A State Court To Enjoin National Labor Relations Board Officials, Amos J. Coffman Jun 1938

Injunctions - Courts - Labor Law - Power Of A State Court To Enjoin National Labor Relations Board Officials, Amos J. Coffman

Michigan Law Review

The Circuit Court of Washtenaw County, Michigan, recently issued an injunction enjoining the regional officials of the National Labor Relations Board from holding a scheduled hearing in Ann Arbor, Michigan. The injunction was issued on the theory that if any unfair labor practices were being practiced by the Ann Arbor Press (a local job printer charged with violating the act) they did not affect interstate commerce and hence were not within the jurisdiction of the board. The injunction was at least temporarily effective. The hearing was not held in Ann Arbor. The regional office of the board in Detroit withdrew …

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Death Taxes On Completed Transfers Inter Vivos, Lorentz B. Knouff Jun 1938

Death Taxes On Completed Transfers Inter Vivos, Lorentz B. Knouff

Michigan Law Review

The subjection of transfers inter vivas to the death tax under each of the above categories has been based upon the proposition that, for a transfer inter vivas properly to be subject to the death tax, it must bear some reasonable relationship to transfers at death either by will or under the law relating to intestacy. This rule has been applied both in problems of statutory construction and in problems of constitutionality. The recent decision of the United States Supreme Court in Helvering v. Bullard seems to have abandoned this test for the inclusion of transfers inter vivas within the …

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Public Utility Holding Company Act - Corporate Simplification And Geographic Integration Under Section Ii, Brackley Shaw Jun 1938

Public Utility Holding Company Act - Corporate Simplification And Geographic Integration Under Section Ii, Brackley Shaw

Michigan Law Review

Section II of the Public Utility Holding Company Act of 1935, the so-called "death sentence" clause, carries the specifications for achieving two of the government's main objectives in passing the act: corporate simplification and geographical integration of the large utility holding company systems.

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Appeal And Error - Effect Of Rule That Appellate Court Can Take Notice Of The Failure Of The Defendant To Testify, Michigan Law Review Jun 1938

Appeal And Error - Effect Of Rule That Appellate Court Can Take Notice Of The Failure Of The Defendant To Testify, Michigan Law Review

Michigan Law Review

In affirming a conviction on an indictment for conspiracy to cheat and defraud, the Illinois Appellate Court, an intermediate court of appeals, decided that the evidence was sufficient to justify the jury in concluding that the representations made by the defendants were false. The defendants brought error to review the judgment of the Appellate Court, one ground being that in considering the sufficiency of the evidence, the Appellate Court took notice of the fact that the defendants failed to take the stand and explain the representations. Held, it was not error for the Appellate Court on review to consider …

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Constitutional Law - Validity Of Mortgage Moratorium Act - Effect Of Lapse Of Time On "Emergency'' Legislation, Ralph Winkler Jun 1938

Constitutional Law - Validity Of Mortgage Moratorium Act - Effect Of Lapse Of Time On "Emergency'' Legislation, Ralph Winkler

Michigan Law Review

A mortgage moratorium law was enacted in Nebraska in 1933. It was re-enacted in 1935 and again in 1937. The act recited that an emergency existed and that the law was adopted to provide for this condition. The instant case involved the constitutionality of this law. A majority of the court held that the law violated the due process clause and the contracts clause of the state constitution. While the court admitted that "land values have not been restored to the prices they had attained prior to March 1, 1934," nevertheless, "It appears that there is no crisis now prevailing …

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Coroners - Inquests - Right To Exhume Body After Burial, James W. Mehaffy Jun 1938

Coroners - Inquests - Right To Exhume Body After Burial, James W. Mehaffy

Michigan Law Review

Two weeks after burial of deceased, report was received of analysis of contents of the stomach, indicating death by poisoning. The coroner desired to hold an inquest for further investigation five weeks after burial, and sought to exhume the body for that purpose. The husband of the deceased sought to enjoin the exhumation. Held, the body may be exhumed. Sejrup v. Shepard, (Minn. 1937) 275 N. W. 687.

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Corporations Preferred Stock Cumulative If Not Otherwise Specified, Michigan Law Review Jun 1938

Corporations Preferred Stock Cumulative If Not Otherwise Specified, Michigan Law Review

Michigan Law Review

Ten thousand shares of preferred capital stock in defendant corporation were left in trust for plaintiff by her father. This stock was issued to discharge a debt due by the corporation to plaintiff's father, who, together with his son and his attorney, owned all the stock of the corporation. In certain of the preliminary papers the word "non-cumulative" was used, but the certificate itself, in regard to dividends, merely spells out that the "preferred capital stock shall receive annual dividends of 6%, and not more to be declared by the board of directors." For several years no dividends had been …

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Courts - Judicial Ethics - Broadcast Of Murder Trial, Michigan Law Review Jun 1938

Courts - Judicial Ethics - Broadcast Of Murder Trial, Michigan Law Review

Michigan Law Review

A microphone was installed in a court room with consent of the trial judge and counsel, for a direct broadcast of a murder trial. Prisoner's counsel, in his argument to the jury, made certain remarks concerning the plaintiff, state's witness, which the latter claimed were libelous per se. Joining as defendants the trial judge, counsel for the alleged felon, and the director of the radio station, plaintiff asserted that the installation of the equipment was an "extrajudicial and illegal" act. Defendant trial judge's motion for non-suit was granted at the close of plaintiff's case, The case was submitted to the …

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Covenants - Effect Of Change Of Conditions On Equitable Restrictions, Dan K. Cook Jun 1938

Covenants - Effect Of Change Of Conditions On Equitable Restrictions, Dan K. Cook

Michigan Law Review

Plaintiff was a lot owner in a residential district consisting of twenty-three blocks. Each lot in the district was subject to a restriction, imposed by the grantor, which limited the use of the lots to residence purposes. Subsequent to the imposition of this restriction, numerous oil and gas wells had been drilled in the territory surrounding the district, so that the lots in the district had depreciated in value approximately thirty-five to fifty per cent. By ordinance, the use zoning area which included the district had been changed from a residence use to an oil and gas use. At the …

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Jurors - Disqualification For Relationship To Parties - Who Are Parties, James H. Kilbourne Jun 1938

Jurors - Disqualification For Relationship To Parties - Who Are Parties, James H. Kilbourne

Michigan Law Review

Defendant was convicted of grand larceny. His motion for a new trial on the ground that one of the jurors was disqualified for implied bias because she was the mother of a deputy prosecuting attorney of the county was denied. Defendant appealed. Held, there was no error in denying the motion, for the juror was not disqualified. State v. Peterson, 190 Wash. 668, 70 P. (2d) 306 (1937).

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Labor Law - Liability Of Labor Union To Member For Modification Of Collective Agreement Negotiated With Employer, Thomas E. Wilson Jun 1938

Labor Law - Liability Of Labor Union To Member For Modification Of Collective Agreement Negotiated With Employer, Thomas E. Wilson

Michigan Law Review

Plaintiff, a married woman, was a member of an unincorporated labor union which in 1921 negotiated a collective agreement with a railroad company, of which plaintiff was an employee, and under which agreement plaintiff acquired a preferred seniority standing. Subsequently, as a result of agitation against the employment of married women during periods when single women were being discharged, the union and the employer by mutual action modified the agreement of 1921 in regard to the seniority provisions, the new agreement providing that married women should be relieved of service irrespective of seniority. As a consequence of this action, plaintiff …

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Mortgages - Foreclosure Sale - Possibility Of Setting Aside Sale Because Of Probable Higher Bid, James W. Mehaffy Jun 1938

Mortgages - Foreclosure Sale - Possibility Of Setting Aside Sale Because Of Probable Higher Bid, James W. Mehaffy

Michigan Law Review

A trust deed secured a loan of $85,000. The mortgage was foreclosed, the trustee authorized to bid at the sale, and an upset price of $12,500 fixed. A stranger made a higher bid than the trustee, and the property was sold to him for $40,100. The trustee now seeks a resale, offering evidence to show that the property could bring $50,000 to $60,000 if the trustee bought it, remodeled the building, and had time to find a suitable purchaser. There was no question of a deficiency decree. Held, that the lower court erred in refusing to confirm the original …

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Schools - Private Parochial Schools - Transportation Of Pupils - Use Of Public Funds, Dan K. Cook Jun 1938

Schools - Private Parochial Schools - Transportation Of Pupils - Use Of Public Funds, Dan K. Cook

Michigan Law Review

A New York statute provided for the public transportation of school children to public and private schools. Plaintiff instituted a taxpayer's action to enjoin defendant board of education from furnishing transportation, in compliance with the statute, to children attending a parochial school. Plaintiff contended the statute was unconstitutional by reason of a provision of the New York constitution which forbade public aid or maintenance of denominational schools. Held, that the statute was valid, and plaintiff's prayer was denied. Judd v. Board of Education, 164 Misc. 889, 300 N. Y. S. 1037 (1937), affd. (App. Div. 1938) 3 N. …

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Taxation - Federal Estate Tax - Claims Arising Out Of An Antenuptial Agreement As Deductions From Gross Estate, Charles E. Nadeau Jun 1938

Taxation - Federal Estate Tax - Claims Arising Out Of An Antenuptial Agreement As Deductions From Gross Estate, Charles E. Nadeau

Michigan Law Review

An antenuptial agreement provided that in the event the wife survived her husband she would receive $50,000 in lieu of her dower rights. After his death the executors paid this sum, and then sought to deduct it from the gross estate as a claim against the estate. In affirming the Board of Tax Appeals the court held that marriage and relinquishment of dower were not "an adequate and full consideration in money or money's worth" and hence the claims were not deductible under the Revenue Act of 1926. Empire Trust Co. v. Commissioner of Internal Revenue, (C. C. A. …

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Taxation - Federal Income Tax - Non-Exemption Of Compensation Of State Employees Derived From Funds Of Liquidated Corporations, Gerald L. Stoetzer Jun 1938

Taxation - Federal Income Tax - Non-Exemption Of Compensation Of State Employees Derived From Funds Of Liquidated Corporations, Gerald L. Stoetzer

Michigan Law Review

The Commissioner of Internal Revenue assessed employees of a state or an instrumentality thereof for federal income tax, their compensation having been paid from funds of banks and insurance companies in the liquidation of which they were engaged. Held, that the tax was properly assessed against the taxpayers so engaged because (1) the compensation was paid out of assets of private corporations and (2) the business in which they were employed for the state was not in the discharge of essential governmental duties. Helvering v. Therrell, (U.S. 1938) 58 S. Ct. 539.

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Trade Restraints - Federal Trade Commission - False Representation As Unfair Method Of Competition, Frank B. Stone Jun 1938

Trade Restraints - Federal Trade Commission - False Representation As Unfair Method Of Competition, Frank B. Stone

Michigan Law Review

An order of the Federal Trade Commission issued against the defendant publisher requiring it to cease and desist from representing to prospective purchasers, contrary to fact, (1) that the purchaser was a selected person in the community to whom special offers were being made, and (2) that an encyclopedia was being given to him free, a charge being made only for an annual supplement. The Circuit Court of Appeals for the Second Circuit affirmed the first clause but dismissed the second. Held, that the second clause should be reinstated. Federal Trade Commission v. Standard Education Society, 302 U.S. …

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Waters And Watercourses - Diversion - Reciprocal Easements Implied In Grant, Anthony L. Dividio Jun 1938

Waters And Watercourses - Diversion - Reciprocal Easements Implied In Grant, Anthony L. Dividio

Michigan Law Review

The village of Canastota, New York, by deed acquired title to land in which originated a stream, with the right "to take, use and divert all said springs, streams and waters . . . or so much thereof as shall be necessary for the use of Canastota Water Works." Prior to this, the village had acquired from the lower riparian owners on the stream "all their title and interest, in and to the waters from the springs . . . the same to be forever, or so long as second party may desire, diverted . . . . " In …

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Monthly Periodical Index, Michigan Law Review Jun 1938

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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Book Notes, Michigan Law Review Jun 1938

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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Contracts - Effect Of Fail Ure Of Performance In An Aleatory Contract, Michigan Law Review May 1938

Contracts - Effect Of Fail Ure Of Performance In An Aleatory Contract, Michigan Law Review

Michigan Law Review

Plaintiff held a note of defendant's husband, long overdue. Defendant promised to guarantee payment of her husband's note, in consideration of plaintiff's promise to lend her money. Thereafter plaintiff, in breach of its promise, refused defendant a loan. Defendant immediately repudiated the contract. Plaintiff sued on the contract to recover the amount of the note with interest. Held, the promises were dependent; plaintiff's refusal to make the loan was a material breach of its promise, and excused defendant from further performance under the contract. People's Trust & Savings Bank v. Wassersteen, (Wis. 1937) 276 N. W. 330.

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Patents - Monopolies - Contributory Infringement Of Process Patent, Julian Caplan May 1938

Patents - Monopolies - Contributory Infringement Of Process Patent, Julian Caplan

Michigan Law Review

Plaintiff was the owner of a patent for the process of using bituminous emulsion to retard evaporation during the curing of concrete roads. Plaintiff supplied bituminous emulsion, an unpatented material, to road builders, permitting them to use the patented curing process, but had no express licenses or royalty contracts with these contractors. Defendant, a competing manufacturer of the emulsion, sold some of this material to a road builder, knowing that it was intended to be used in infringing the process patent. Plaintiff brought suit for contributory infringement against the supplier of the materials. Held, that the owner of a …

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Taxation - Sales - Recovery Of Processing Taxes - Remedies Of The Buyer, Keith P. Bondurant May 1938

Taxation - Sales - Recovery Of Processing Taxes - Remedies Of The Buyer, Keith P. Bondurant

Michigan Law Review

Defendant, a flour milling company, was subjected to payment of processing taxes under the Agricultural Adjustment Act. It entered into contracts with plaintiffs, by the terms of which the amount of such taxes was included in the purchase price of flour. The contracts provided that the amount of any decrease in processing taxes levied against defendant would inure to the benefit of the buyers and be credited against the contract price. Meanwhile, defendant, contesting the validity of the tax, had deposited in court a sum equal to the amount of accrued taxes. After the Supreme Court invalidated the A. A. …

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Torts - Negligent Misrepresentations - Information Gratuitously Supplied, Michigan Law Review May 1938

Torts - Negligent Misrepresentations - Information Gratuitously Supplied, Michigan Law Review

Michigan Law Review

Plaintiffs, who were liquidating trustees of a building and loan association, alleged that the association requested defendant to send it a copy of a certain will, but that defendant, who was trustee under the will, sent the association a copy of another will. Since the testators bore the same name, the association did not realize the error, but relied on the copy and suffered a loss which it would not have suffered if it had known the true state of facts. Plaintiffs sued to recover the loss. Held, plaintiffs have not stated a cause of action, inasmuch as they …

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Monthly Periodical Index, Michigan Law Review May 1938

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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Fixtures - Conditional Sales - Effect Of Recording Upon Subsequent Mortgagee Of The Realty, Michigan Law Review May 1938

Fixtures - Conditional Sales - Effect Of Recording Upon Subsequent Mortgagee Of The Realty, Michigan Law Review

Michigan Law Review

Two furnaces were sold and installed by plaintiff's assignor on a conditional sale contract that was duly recorded. The vendee then mortgaged the land on which the furnaces were annexed to the defendant. He defaulted on payments under the conditional sales contract and the plaintiff obtained a decree foreclosing the vendee's equity. Defendant filed a petition to have the decree vacated. Held, that as defendant was a subsequent mortgagee without notice the decree should be vacated. Twentieth Century Heating & Ventilating Co. v. Home Owners Loan Corp., 56 Ohio App. 188, 10 N. E. (2d) 229 (1937).

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Taxation - Capital Gains Tax (Revenue Act Of 1928) - Reorganizations - Definition Of A Party To A Reorganization, Milton A. Kramer May 1938

Taxation - Capital Gains Tax (Revenue Act Of 1928) - Reorganizations - Definition Of A Party To A Reorganization, Milton A. Kramer

Michigan Law Review

Although "certainty" is one of the most desirable features of taxation, that quality has been conspicuously absent in regard to the portions of the 1928 Revenue Act which deal with capital gains in corporate reorganizations. In the four situations which the act sets forth as constituting a reorganization, capital gains arising therefrom are exempt from tax computation, the general purpose being to remove any impediment to normal corporate adjustments and to prevent the recognition of gains or losses until they are actually realized. However, this provision soon became an invitation for ingenious counsel to arrange the sales of corporate assets …

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Waters And Watercourses - Navigable Waters - Dried-Up Lake - Reliction, Daniel Hodgman May 1938

Waters And Watercourses - Navigable Waters - Dried-Up Lake - Reliction, Daniel Hodgman

Michigan Law Review

A meandered lake, during periods of normal rainfall covering 3000 acres, due to years of drought completely dried up. Plaintiff, the owner of land abutting on the lake, sued the defendant, a stranger, who entered on the dry bed and cut hay, plaintiff claiming ownership of that part of the dry bed where the hay was cut as relicted land. Held, that the lake which was deemed navigable before it dried up was still a navigable lake although no water was in it; that as a navigable lake the ownership of the bed was in the state in trust …

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