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Michigan Law Review

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Trade-Marks--Unfair Competition--Right Of Exclusive Selling Agent Feb 1936

Trade-Marks--Unfair Competition--Right Of Exclusive Selling Agent

Michigan Law Review

Plaintiff corporation is a retailer and importer of denture -blanks and is the exclusive American selling agent of the German company which makes them. The blanks are stamped with the trade-mark '"Heckolith," which is registered by the German maker in Germany and in the United States. The plaintiff, after putting the blanks through a secret aging process, places them on the market in distinctive boxes, which it marks with the word, "Hecolite," the Anglicized form of the German trade-mark. The plaintiff registered the mark "Hecolite" as his own, and also the mark "Heckolith," after a purported assignment of the mark …

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Trusts-Executors As Trustees-Existence Of A Res Sufficient To Constitute A Trust Feb 1936

Trusts-Executors As Trustees-Existence Of A Res Sufficient To Constitute A Trust

Michigan Law Review

Testator provided in his will that $35,000 of the estate be set aside in trust for the life of his widow. E, executor of the estate, being named trustee, posted bond, and, while heavily indebted to the estate, attempted to transfer the trust fund to himself as trustee from himself as executor by means of a check upon the estate payable to himself as trustee, which he endorsed and deposited to the credit of his own personal account in the same bank upon which it was drawn. The probate court, treating the check as a valid segregation of the …

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Trusts-Liability Of Trust Estate For Torts Of Trustee Feb 1936

Trusts-Liability Of Trust Estate For Torts Of Trustee

Michigan Law Review

Defendants, trustees of land which had been leased for years to plaintiff, demanded that plaintiff stop removing crops from the land until the past-due rent was paid. Such a removal of crops was a criminal offense by South Carolina statute. In a suit for libel against the defendants in their representative capacity, held, defendants' demurrer sustained. Ross v. Moses, 175 S. C. 355, 179 S. E. 757 (1935).

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Unfair Trade-Right Of Privacy-Right Of Manufacturer Who Has Contracted For Use Of Celebrity's Name To Injunction Against Competitor Using Such Name Feb 1936

Unfair Trade-Right Of Privacy-Right Of Manufacturer Who Has Contracted For Use Of Celebrity's Name To Injunction Against Competitor Using Such Name

Michigan Law Review

Plaintiff, a baseball bat manufacturer, had obtained by contract with famous ball players a grant of the exclusive right to use their autographs on the style bats which the plaintiff company had developed for them. Defendant, a competing bat manufacturer, made bats in these same unpatented shapes and to designate the style of the bats placed the respective players' surnames on them in block letters. Plaintiff seeks to enjoin this practice of the defendant on the theory: (1) of unfair competition, and (2) of protection of the property right which the ball players had in the use of their names. …

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Front Matter, Michigan Law Review Feb 1936

Front Matter, Michigan Law Review

Michigan Law Review

Front Matter for Volume 34, Issue 4 of Michigan Law Review

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What Should The American Law Institute Do?, Hessel E. Yntema Feb 1936

What Should The American Law Institute Do?, Hessel E. Yntema

Michigan Law Review

It will generally be agreed, I believe, that the creation of the American Law Institute in 1923 was one of the most hopeful events in the recent legal history of this country. The plan for the Institute, as formulated in the impressive report which motivated its establishment, was well-conceived, broad-visioned, and based upon a comprehensive analysis of the chief defects in the legal system of the United States. This plan was significant in at least three important respects. In the first place, it defined an ambitious and, in some respects, a unique task for the Institute to accomplish; the report …

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Sales - Status Of Title-Retaining Instruments As Against Third Persons Feb 1936

Sales - Status Of Title-Retaining Instruments As Against Third Persons

Michigan Law Review

The exploitation of the legal concept of divided property interests in chattels by ingenious draftsman-lawyers has resulted in the variety of title-retaining instruments commonly used today in the creation of vendor-vendee relationships. Among the more familiar forms may be mentioned the conditional sale, bailment lease, chattel mortgage, and trust receipt. The chief motive of the seller in resorting to these devices seems to lie in the belief that the buyer is a poor credit risk, and the particular instrument which a seller will employ in a given situation will depend largely upon the relative legal advantages which he seeks to …

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Specific Performance--Damages--Action At Law By Vendor Of Land For The Full Purchase Price Feb 1936

Specific Performance--Damages--Action At Law By Vendor Of Land For The Full Purchase Price

Michigan Law Review

In an action at law by a vendor of land for breach of contract by the purchaser, the title not having passed, the traditional measure of damages is the difference between the contract price and the value of the land at the time the vendor's conveyance was due. But where a conveyance is not yet due from the vendor a majority of jurisdictions allow recovery of all but the last installment of the purchase money, on the ground that in that case the promise to pay is independent of the vendor's promise to convey. Even where a conveyance is due …

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Trusts - Duration Of An Indestructible Trust Feb 1936

Trusts - Duration Of An Indestructible Trust

Michigan Law Review

The celebrated case of Claflin v. Claflin left in its wake a number of novel legal problems, some of which have been at best only partially resolved. One of the most perplexing is that of the duration of the so-called "indestructible trust." Once such an "indestructible trust" is created, how long may it be permitted to endure? If an attempt is made to attain excessive duration, what penalty attaches? What disposition will be made of the legal and equitable estates?

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Attorney And Client-Forfeiture Of Right To Fee For Failure Of Attorney To Register Under Integrated Bar Act Feb 1936

Attorney And Client-Forfeiture Of Right To Fee For Failure Of Attorney To Register Under Integrated Bar Act

Michigan Law Review

Plaintiff, an attorney, sued for reasonable value of professional services rendered to defendant. The Washington integrated bar act requires all attorneys to register annually at certain date and to pay a registration fee. Those who fail to comply are deemed to be under suspension until the provisions are complied with. At the time these services were performed plaintiff was in default. Held, this requisite is a condition imposed for the privilege of exercising a lawyer's franchise. Failure to comply forfeits plaintiff's right to compensation for professional services undertaken during the period of default. Smith v. Kneisley, (Wash. 1935) …

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Corporations-Right Of Stockholder To Inspect Stock Book Of Bankrupt Corporation Under Section 77b Feb 1936

Corporations-Right Of Stockholder To Inspect Stock Book Of Bankrupt Corporation Under Section 77b

Michigan Law Review

Petitioner was the controlling stockholder of B corporation, which had its petition for reorganization under Section 77B of the National Bankruptcy Act approved. Being dissatisfied with the present board, he applied to the district court for an order directing the trustees of B to permit him to examine the stock book for the purpose of securing names of stockholders in order to call a meeting to elect a new board. Application was denied by the district court on the ground that calling a meeting would impede rapidity of reorganization. On appeal, held, application should have been granted, for Section …

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Criminal Law And Procedure--Insanity--Irresistible Impulse (Kleptomania) Feb 1936

Criminal Law And Procedure--Insanity--Irresistible Impulse (Kleptomania)

Michigan Law Review

In a prosecution for larceny, held that under a Minnesota statute evidence that defendant had an irresistible impulse to steal could not establish the defense of insanity. State v. Simenson, (Minn. 1935) 262 N. W. 638.

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Equity-Patent Infringement-Advantages Of Declaratory Judgment Over Injuction Relief Feb 1936

Equity-Patent Infringement-Advantages Of Declaratory Judgment Over Injuction Relief

Michigan Law Review

Defendant had patented a certain seam used in garment-making and also the means for manufacturing it. Plaintiff claimed that this patent was void because anticipated by his own practice. Under this claim plaintiff continued to manufacture the type of seam in question and to sell garments in which it was used. Defendant thereupon sent notices both to plaintiff and to his customers threatening suit for infringement. Plaintiff sought a decree under the Declaratory Judgment Act to determine whether the patent was valid. Defendant moved to dismiss the action. Held, motion denied; a declaratory judgment is an appropriate proceeding for …

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Quasi-Contracts-Joinder Of Misrepresenting Agent In Purchaser's Action Against Principal For Rescission Feb 1936

Quasi-Contracts-Joinder Of Misrepresenting Agent In Purchaser's Action Against Principal For Rescission

Michigan Law Review

Plaintiff was induced to purchase stock in defendant corporation through representations as to its previous earning power made by agents of the corporation who were also joined as defendants. Plaintiff sued on a theory of rescission to recover the value of property transferred in exchange for the stock in question. Held, the agents of the corporation were properly joined as defendants. Kaufman v. Jaffee, 244 App. Div. 344,279 N. Y. S. 392 (1935).

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Quasi Contracts-Liability Of Landowner For Repairs Furnished Without Request Feb 1936

Quasi Contracts-Liability Of Landowner For Repairs Furnished Without Request

Michigan Law Review

Plaintiff furnished labor and materials for repairs to a farm house owned by defendant. The work was done without the knowledge of defendant at the request of defendant's brother who was occupying the place at the time and who had formerly been the owner. Plaintiff sued to foreclose a materialman's lien, but the lien was disallowed because not filed in time. It was held, nevertheless, that even though plaintiff was unable to prove either a contract with defendant or an agency relationship between defendant and his brother, plaintiff could still recover the reasonable value of the benefits furnished to …

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Sales-Corporate Reorganization Proceedings Under Section 77b-Right Of Conditional Vendors To Reclaim Property Feb 1936

Sales-Corporate Reorganization Proceedings Under Section 77b-Right Of Conditional Vendors To Reclaim Property

Michigan Law Review

The debtor, a laundry corporation, had filed a petition for reorganization under Section 77B of the Bankruptcy Act. The petition was granted, but prior to the approval by the court of a reorganization plan several conditional vendors (whose sales agreements had been filed according to the requirement of the New York law) moved to retake the articles sold, in accordance with said law relative to conditional sales, the debtor having defaulted in the agreed payments. Held, the conditional vendors were not lienors nor mortgagees, whose interests would have been covered by the reorganization petition; and since the chattels were …

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Book Notes, Michigan Law Review Feb 1936

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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Retail Responsibility And Judicial Law Making, John Barker Waite Feb 1936

Retail Responsibility And Judicial Law Making, John Barker Waite

Michigan Law Review

When the corner grocer sells a can of beans and a peck of fresh spinach, does he make himself responsible for the contents of the can, or acquire liability because of a green worm buried deep in the leaves?

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Corporations - Liability Of Directors To Creditors For Negligent Management Feb 1936

Corporations - Liability Of Directors To Creditors For Negligent Management

Michigan Law Review

There is much confusion in the cases concerning a director's liability to a creditor for negligent management of the corporation. A clearer answer might be indicated by an examination of analogous situations involving individuals instead of corporations. It adds confusion to the law to have a different rule for a corporation than for a human being, and such a result should be avoided unless separate treatment is required by something inherent in the corporation. The least that can happen if a court thinks along these lines is that it will be more likely to know what it is doing.

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Bills And Notes-Holders In Due Course-Effect Of Knowledge Of Executory Character Of Consideration Feb 1936

Bills And Notes-Holders In Due Course-Effect Of Knowledge Of Executory Character Of Consideration

Michigan Law Review

In an action on a promissory note the plaintiff claimed, as a holder in due course, to be free from the defense of failure of consideration. When the plaintiff acquired the note it was physically attached to a conditional sales contract by the terms of which the payee was to furnish the maker with an oil burner which in truth was never furnished, this being the claimed failure of consideration. Breach of the sales contract apparently took place after the plaintiff acquired the note. Held, plaintiff, having knowledge of the terms of the contract, was not a holder in …

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Trusts-Effect Of Gift To Executor For "Charity And Other Worthy Objects" Feb 1936

Trusts-Effect Of Gift To Executor For "Charity And Other Worthy Objects"

Michigan Law Review

A testator directed his executor to sell all his assets within five years and to distribute the proceeds to "such charities and worthy objects" as the executor and the testator's sister should determine, "remembering . . . the City of Fort Worth . . . , the City of Vancouver . . . , Parker County, in Texas, and England, places to which I have become attached." The executor proceeded to administer the estate and gave some of it to the Methodist Episcopal Bishop of Texas for the use of his church. The attorney general of Texas then filed a …

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Corporations-Disregard Of Separate Entities-Subsidiary Corporation An Instrumentality Of The Parent Feb 1936

Corporations-Disregard Of Separate Entities-Subsidiary Corporation An Instrumentality Of The Parent

Michigan Law Review

Defendant corporation had an excess of assets over liabilities, but its ratio of current assets to current liabilities had declined below the then normal banking credit requirement of two to one. In order to avoid acknowledgment of commercial insolvency due to inability to meet obligations maturing in the near future, defendant organized a subsidiary corporation to take over the sales end of the enterprise, transferring to the subsidiary sufficient current assets to give it the required banking ratio with regard to the liabilities assumed by the subsidiary consisting of bank obligations and some of the current bills payable of the …

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Constitutional Law-Agricultural Adjustment Act-The General Welfare Clause And The Tenth Amendment Jan 1936

Constitutional Law-Agricultural Adjustment Act-The General Welfare Clause And The Tenth Amendment

Michigan Law Review

In what is without question the most important decision rendered in recent years the Supreme Court of the United States has swept away the legal basis of the Agricultural Adjustment Administration. The processing tax, an essential part of a plan for the control of production, has been ruled unconstitutional as involving an invasion of the powers reserved to the states. Unlike the case of Schechter Poultry Corporation v. United States, in which the National Industrial Recovery Act was held invalid by a unanimous Court, this pillar of the New Deal's vast recovery program was destroyed by a six-to-three decision, …

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Criminal Law And Procedure-Contempt Of Court-Sheriff Allowing Federal Prisoners To Escape From County Jail Jan 1936

Criminal Law And Procedure-Contempt Of Court-Sheriff Allowing Federal Prisoners To Escape From County Jail

Michigan Law Review

Information was filed against a sheriff for contempt in negligently permitting the escape of federal prisoners from his county jail. Held, the sheriff was guilty of contempt of the federal committing court. United States v. Fanning, (D. C. W. Va. 1934) 6 F. Supp. 412. Affirmed, Fanning v. United States, (C. C. A. 4th, 1934) 72 F. (2d) 929.

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Executors And Administrators-Executor's ''Right Of Retainer" Of Distributive Share Of Estate Where Distributee Is Indebted To Decedent Jan 1936

Executors And Administrators-Executor's ''Right Of Retainer" Of Distributive Share Of Estate Where Distributee Is Indebted To Decedent

Michigan Law Review

A question little noticed by legal writers, but of utmost importance in the administration and distribution of decedents' estates, is the universally recognized right of executors and administrators of the estates to retain a distributive share as satisfaction in whole or in part for a debt due from the distributee to the estate of the decedent. It should be remarked at the outset that the term "retainer" as here used is itself a misnomer; properly speaking, that term refers to the right of an executor, who is himself a creditor of the estate, to retain from its funds in his …

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Principal And Agent-Liability Of Principal To Third Persons For Acts Within The Apparent Authority Of The Agent Jan 1936

Principal And Agent-Liability Of Principal To Third Persons For Acts Within The Apparent Authority Of The Agent

Michigan Law Review

In the recent case of Diuguid v. Bethel African M. E. Church of Pittsburgh the plaintiff, a painting contractor, had entered into a written agreement with the board of trustees of the defendant, a religious corporation, providing for painting and decorating the interior of the latter's church building. The work was to be supervised by a "house committee" consisting of three members selected from the board of trustees of the church. After completing this work, plaintiff proceeded to make additional improvements in the basement of the church, purporting to act in pursuance of a subsequent oral contract which plaintiff alleged …

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Adjoining Landowners-Injury From Mining Operations-Right To Prospective Damages Jan 1936

Adjoining Landowners-Injury From Mining Operations-Right To Prospective Damages

Michigan Law Review

Defendant corporation was conducting its mining operations some distance from plaintiff's land. Plaintiff brought this action to recover for injury to his residence caused by subsidence. The judgment in the trial court represented both actual and prospective damages. On appeal it was held that plaintiff may recover only the cost of repairs. O'Donnell v. Oliver Iron Mining Co., 273 Mich. 27,262 N. W. 728 (1935).

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Constitutional Law-Martial Law-Suspension Of The Law Jan 1936

Constitutional Law-Martial Law-Suspension Of The Law

Michigan Law Review

Fifteen thousand workmen in a county struck, forced business houses to close, cut off the milk supply even to hospitals, threatened electric and water company employees with violence, stopped all transportation services, and congregated in mobs. On request of the local authorities the governor issued a proclamation suspending the right to carry arms, the right of assembly, and the right to enter or leave the county, and directed the military to disperse all crowds, picketers, or other assemblages. A striker imprisoned by the military forces sued to enjoin the governor and military officials from carrying out the proclamation on the …

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Contracts - Consideration - Employer's Pension Plan Jan 1936

Contracts - Consideration - Employer's Pension Plan

Michigan Law Review

The defendant corporation established a private pension system "for the purpose of promoting the welfare of the officers and employees" of the institution, and to "encourage long and faithful service." The terms and conditions of the system were distributed to all employees. They provided in substance, that all officers and employees who had attained the age of 65 years and who had served the institution honorably for twenty years would be entitled to a pension the amount of which was to be calculated by past salary and the number of years of service. The plaintiff was retired on a pension …

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Eminent Domain-Validity Of State Statute Jan 1936

Eminent Domain-Validity Of State Statute

Michigan Law Review

As upon certiorari, the New Mexico Supreme Court considered the question, whether it is "within legislative competence to declare a public use in the industry of coal mining, so as to permit taking private property in aid of it." Plaintiff had obtained a judgment of condemnation, and defendant attacked it as offensive to the New Mexico constitutional provision: "Private property shall not be taken or damaged for public use without just compensation." The opinion recognized the existence of an "orthodox" and a "liberal" doctrine of construing "public use." While the court found that, unlike Nevada's or Utah's, New Mexico's well-being …

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