Contracts Commons^™

Contracts-Assignment-Partial Assignment And Effect Of An Agreement To Refrain From Assigning

Michigan Law Review

The agreement between the defendant, a building contractor, and a sub-contractor provided that the latter would not "sublet any portion of the work of his contract or hypothecate, pledge, or assign any payments thereunder except by and in accordance with the consent of [the] contractor." Nevertheless, after substantial performance, the subcontractor made an assignment to plaintiff of a part of his claim. Responding to a letter from the assignee requesting an acknowledgment thereof and giving notice of the assignment, defendant acknowledged receipt of the letter, and informed plaintiff that the amount of the indebtedness had not yet been settled, nor …

Estoppel And Statutes Of Limitation, John P. Dawson

Michigan Law Review

Among all the spheres of its activity estoppel probably performs no more useful service than in the alleviation of hardship caused by statutes of limitation. Here as in other places the elements of estoppel and its relations to more basic legal concepts are exceedingly hard to define. At some points its effects on limitation acts could be described in terms of express contract; at other points it merges into "fraud"; in general it provides the medium for official expressions of disapproval where civil litigation exceeds the permissible limits of private warfare.

Corporations-Trust Indenture-Notice To Security Holders Of Contents Of Indenture

Michigan Law Review

Ever since corporate bonds made their appearance more than a century ago, there has been a steady increase in difficult problems relating thereto. Not the least interesting of these problems pertains to the matter of notice to holders of the bonds and other securities of the contents of the indenture under which they are generally issued. The question becomes acute when one of these bondholders starts suit in law or in equity, and is met by the proposition that his right to so sue is limited by the trust indenture. There are two aspects to the matter, and it is …

Evidence - Admissibility Of Parol Evidence Showing That Contract In Writing Was Executed Only As Sham, John E. Tracy

Michigan Law Review

An individual is sued on a written contract or, suing on an alleged oral agreement, is confronted by a written contract which he has signed. He offers testimony that, although he executed the instrument which bears his name freely and with full knowledge of its contents, he is not to be held liable thereon because the agreement between the parties was that it should never be legally enforceable, the sole purpose of its execution having been to deceive some third person into a belief that the parties to the instrument had contracted together as in the instrument set forth.

Wills-Contract Not To Contest

Michigan Law Review

A testatrix left the bulk of her estate to the plaintiff whom she named as her executor. Defendant, dissatisfied with his bequest, threatened to contest the will. Thereupon, the parties entered into a contract whereby the plaintiff agreed to give the defendant a piece of land and a sum of money in addition to his legacy in consideration of defendant's promise not to contest the will. Shortly thereafter defendant joined relatives of the decedent in opposing probate. In an action in equity to specifically enforce the agreement, held, that the contract was valid and that the defendant be permanently …

Equity - Election Of Remedies - Deceit After Rescission

Michigan Law Review

Plaintiff purchaser rescinded a contract of sale on the ground of fraud and sued defendants in a deceit action, alleging as damages a payment made on the purchase price and special expense incurred by reason of making the purchase. Held, recovery for both items of damage will be allowed. Copeland v. Reynolds, (N. H. 1933) 164 Atl. 215.

Contracts - Offer And Acceptance - Silence As Acceptance

Michigan Law Review

D had engaged P, an attorney, to sue X for $144,000 gotten by fraud, P agreeing to try the case on a 25 per cent contingent fee. While the suit was pending, D began negotiations through local attorneys for a settlement out of court, and asked P on March 4 what his fees would be in the event D accepted a compromise offer. P replied that his fee would be $12,500. On June 16 a settlement was reached, after which P was instructed to discontinue the suit. When D refused to pay the fee P sued. Held, that …

Equity - Estoppel By Injunction In Subsequent Suit At Law For Damages

Michigan Law Review

A leased to B a shop to be used as a public market. The lease contained a restrictive covenant by the lessor to lease no other shops for a like purpose. The lessor, however, leased to C, who was engaged in the same business as B, one of the shops so restricted. C took with knowledge of the restrictive covenant in B's lease. B, the plaintiff in this action, secured a final injunction in a New York court enjoining the use by C. Under the New York statute B could have obtained damages under the equity decree, but failed to …

Quasi-Contracts -- Recovery For Legal Services Rendered Under Champertous Contract

Michigan Law Review

Plaintiff agreed to render legal services to defendant in an action to recover a farm, payment to be either $5,000 in cash or one-third of the appraised value of the farm at the time of a judgment in defendant's favor. The defendant recovered, but refused to pay the plaintiffs anything on the ground that the contract was in violation of a Maine statute forbidding prosecution of a suit on shares. Plaintiff sued in assumpsit for the value of services rendered and expenses incurred. Held, the contract was illegal and so no relief of any nature would be granted. Hinckley …

Quasi-Contracts-Dutiful Intervention-Discharge Of Public Officer's Duty

Michigan Law Review

By statute in Montana the boards of county commissioners were ordered to cause such highways as were necessary for the public welfare to be "laid out, recorded, opened" and maintained. A highway was laid out through the plaintiff's land in 1903, but the county commissioners refused to continue constructing it though requested to do so by the plaintiff, instead compelling him to remove the fences on his property. His entire land being thus thrown open to the public, he constructed the road himself in 1926, with the knowledge of the commissioners, who on its completion immediately accepted it but refused …

Injunctions-Statutory Injunctions In Legal Actions Under The Iowa Code

Michigan Law Review

The Iowa Code contains a unique and interesting provision which was copied from the English Common Law Procedure Act of 1854. It provides that :--"In all cases of breach of contract or other injury, where the party injured is entitled to maintain and has brought an action by ordinary proceedings, he may, in the same cause, pray and have a writ of injunction against the repetition or continuance of such breach of contract or other injury, or the commission of any breach of contract or injury of a like kind arising out of the same contract or relating to the …

Insurance-Incontestability Clauses-What Will Amount To A Contest

Michigan Law Review

The incontestability clause is quite common at present in life insurance policies, and is the source of much litigation. The insurance policy has usually contained many statements or representations by the insured, and it was a common experience that after the insured had paid premiums on a life insurance policy, perhaps for years, and had died in the belief that his family was well provided for, the insurance company avoided payment on the ground that the insured had made a misrepresentation in the policy, or had committed a breach of warranty. As a result, a feeling grew up that all …

Joinder And Splitting Of Causes Of Action, Charles E. Clark

Michigan Law Review

The pleading rules concerning joinder and splitting of causes of action are complements of each other, though designed to achieve different objectives. The joinder rule is that separate causes cannot be "joined" or pleaded in the same suit unless they fall within one of the classes of permissible joinder specified in the codes. The purpose of the rule is to prevent too wide a field of litigation and too diverse issues in a single suit and thus to avoid a case of undue confusion and complexity. The rule against splitting is that a single cause shall not be "split" or …

Evidence By Surviving Participant Of A Contract Or Other Transaction

Michigan Law Review

Among the most prolific and endless sources of litigation of recent times are the so-called "dead man statutes", which forbid the surviving participant in a contract or other transaction to testify regarding it unless the opposing party waives the restriction. These statutes lay down a rule of thumb which treats all cases, meritorious or unmeritorious, exactly the same. In attempting to apply them to the cases the courts have made one fine distinction after another, only to interject still finer ones in between, until the whole· makes a labyrinth in which suitor and court have often found themselves hopelessly lost. …

Resale Price Fixing From A Different Angle

Michigan Law Review

The proposition that resale price fixing agreements are illegal, while by no means universally accepted, is definitely established in the federal courts as well as in quite a number of the state courts. Whatever we may think of its soundness from an economic viewpoint it will doubtless receive even wider recognition as time goes on. For a collection and discussion of the authorities see 20 MICH. L. REV. 904; 19 MICH. L. REV. 265; 19 A. L. R. 925.

Anticipatory Breach And The Enforcement Of Contractual Duties, Henry Winthrop Ballantine

Michigan Law Review

The doctrine of anticipatory breach, announced in England in 1853 in the leading case of Hochster v. De La, Tour, presents some interesting questions of legal theory. While it has been almost universally accepted by the courts of this country, the principles upon which the doctrine rests have been seriously questioned and the courts have shown an unfortunate bewilderment and hesitation in its extension and application. Professor Williston, probably the leading American authority in the field of contracts, has for many years been a vigorous critic of this doctrine. He goes so far as to assert that the doctrine …

Recent Important Decisions

Michigan Law Review

A collection of recent important court decisions.

Liquidated Damages And Estoppel By Contract, Joseph H. Drake

Articles

In the last edition of "Sedgwick's Elements of the Law of Damages" the author says (p. 232) that the subject of liquidated damages has been put in a new light by the two cases of the Sun Printing and Publishing Association v. Moore1 and the Clydebank R. &S. Co. v. Castaneda,2 and that they may be expected to have a considerable effect upon the further development of the law on the subject. The learned author then presents the old canons of interpretation with full illustration from the cases, followed by the citation of the decisions above mentioned, and concludes that …

Quasi-Contractual Obligations Of Municipal Corporations, Jerome C. Knowlton

Articles

We have constructive fraud, constructive trusts, constructive notice, and why not constructive contract, a contractual obligation existing in contemplation of law, in the absence of any agreement express or implied from facts? With this apology we shall use the term quasi contract as covering an obligation created by law and enforceable by an action ex contractu. We are not for the present interested in the circumstances which may give rise to this obligation as between individuals; nor as between an individual and a private corporation, or quasi public corporation, so-called, as a railroad or other public utility. In these cases …

Note And Comment, Harry B. Hutchins, Stephen W. Downey, Francis B. Keeney, Clyde A. Dewitt

Michigan Law Review

Suits Against Trustee; Bills and Notes--Nonnegotiable Notes--Liability of Indorser; Bonds--Joint Stock Association--Negotiability; Carriers--Free Transportation as a Penalty; Carriers--Waiver of Stipulations as to Suits; Constitutional Law--Due Process of Law--Indeterminate Sentence Law; Constitutional Law--Corporations--Foreign Corporations--Exclusion For Removal of Cause to Federal Courts; Constitutional Law--Powers of Constitutional Convention; Criminal Law--Capital Offense--Bail--When Granted; Criminal Law--Murder--Elements of Murder; Damages--Action by Husband for Loss of Wife's Services; Damages--Failure to Deliver Telegram--Mental Suffering--Near Relative; Deeds--Joinder of Infant Husband; Divorce--Temporary Alimony and Counsel Fees--Appeal--Decisions Reviewable; Equity--Sworn Answers as Evidence--Proof to Overcome; Evidence--Opinion Evidence in Action for Libel; Evidence--The Best Evidence Rule; Fraudulent Conveyances--Delivery and Change of Possession of …

Recent Important Decisions, Michigan Law Review

Michigan Law Review

Aliens - Right to Take Land by Descent - Loss of State's Right to Escheat; Bailment - Liability of Incidental Bailee; Bankruptcy - Preferences - Franchise Tax; Bankruptcy - Transfers Required to be Recorded - Preferences; Bills and Notes - Bona Fide Purchaser - Notice of Want of Power in Transferrer; Bills and Notes - Unrestricted Negotiability of Bills of Lading; Constitutional Law - Commerce Clause - Statute Relating to Interstate Carriers as Employers; Constitutional Law - Indeterminate Sentence Law; Courts - Rules of Property - Stare Decisis; Criminal Law - Exclusion of Public from Trials; Criminal Law - Impeachment …

Recent Important Decisions, Michigan Law Review

Michigan Law Review

Attorney--disbarment for Malpractice; Bills and Notes--Certification of Check; Bills and Notes--consideration--Illegal Use of Proceeds--Sunday Contracts; Bills and Notes--Notice of Protest; Carrier--Invalid Ticket--Tender of Cash Fare--Ejection of Passenger; Common Carriers--Express Companies--Municipal Tax on Delivery of Intoxicating Liquors--Mandamus to Compel Transportation; Common Carriers--Limitation of Liability by Special Contract--Hand Baggage; Constitutional Law--Obligation of Contract; Constitutional law--Privileges of Citizens--Interstate Commerce--Peddler's License; Corporations--conflict of Laws--Liability of Stockholders in Company Formed to Trade in a Foreign Country--Implied Authority to Pledge Personal Credit of Shareholders Under Foreign Law; Covenants--Privity of Estate; Criminal Law--False Pretenses--Post payable Check; Criminal Law--Presumption from Identity of Names; Deeds--Capacity of Grantor as Compared …

Recent Important Decisions, Michigan Law Review

Michigan Law Review

Adverse Possession--Boundaries--Mistake; Attachment--Fraudulent Conveyance--Damages for Breach of Promise of Marriage; Bailments--Liability of Private Carrier on a Special Contract; Bailments--Loss of Goods Resulting from Violation of Ordinance; Constitutional Law--Equal Protection of the Laws--Due Process--State's control of Fish and Game; Contributory Negligence--Passenger on Car Platform; Conveyance--Standing Timber--Recording--Bona Fide Purchaser; Deeds--Building Restrictions--Easements; Deeds--Rule in Shelley's Case; Equity--Mistake of Fact--Negligence; Evidence--Photograph--X-Ray; Executors and Administrators--Liability of Executrix to Account fo rTrust Estate Held by Her Testator; Foreign Corporations--Interstate Commerce; Garnishment--Situs of Debt; Gift-Parent and Child--Undue Influence--Presumption; Guardian and Ward--Filling of Blank After Execution; married Women--Separate Estate--Note and Mortgage to Secure Husband's Debt; Master and Servant--Independent …

Recent Important Decisions, Michigan Law Review

Michigan Law Review

Adoption--Inheritance by Representation; Adverse Possession--Effect of Former Judgment--Statute of Limitations; Adverse Possession--Statute of Limitations--Jurisdiction of the Department of the Interior; Concealed Property--Finder's Rights--Treasure Trove; constitutional Law--Eminent Domain--Taking Private Property for Private Use; Constitutional Law--Penalty for Breach of Labor contracts; Contract--Mutuality--Specific Performance; Corporations--contracts Between Corporations Having Common Shareholders and Officers--Suit in Name of Stockholder; Corporations--Liability of Officers--Negligent management--contracts Between Corporations Having Common Officers; Deed--Insane Person--Voidable Assignment; Ejectment--Impairment of Contract Obligation; Evidence--Confession--Admission; Evidence--Letters of Administration--How Far Evidence of Widowhood; Evidence--Personal Injury--Physical Examination of Plaintiff; Foreign Corporations--Business in Other States--License--Purpose of Incorporation--Evasion of State Laws; Fraud--Doctrine of Reasonable Inquiry; Guardian--Appointment--Jurisdiction--Sale of Ward's Lands; …

Recent Important Decisions, Michigan Law Review

Michigan Law Review

Administrator--Appointment of, on Disappearance of Person; Agency--collection of Notes--Possession of the Instrument--Apparent Authority; Appeal--Right to Appeal After Satisfaction of Judgment; Attorney and Client--divorce Cases--contingent Fees--Prevention of Reconciliation; Attorneys--disbarment--Attacking Honesty of Judge; Bankruptcy--city Taxes--Priority; Carriers--Death by Wrongful Act--Stipulations Avoiding Liability for Negligence Toward free Passenger--Validity and Effect; Carriers--signed Ticket not the Contract; Constitutional Law--Class Legislation--Use of Flag for Advertising Purposes; Constitutional Law--Jurisdiction of Equity to Try Title to Office--Injunction; Contract--Validity--Conditions Attached to Goods--Purchase by Retail Trader from Wholesale Trader with Notice; corporations--forfeiture of Charter--Mandamus; Corporations--Garnishment of Stockholder for Unpaid Subscription; Criminal Law--Self-Defense; Deeds--Delivery--Testamentary Disposition; Ejectment--Description--Verdict--Judgment; Ejectment--Equitable Title in Plaintiff; Evidence--Admissions--Abandoned Pleadings; …

Recent Important Decisions, Michigan Law Review

Michigan Law Review

Acknowledgment--Who may Take--Stockholder; Action for Death of a Child-- Contributory Negligence; Adverse Possession--Computation of Time--Litigation in Land Office; Bankruptcy--Homestead--Jurisdiction of bankruptcy Court; Chattel Mortgages--Unidentified Number Among a Greater Number of Like Articles--Validity; Constitutional Law--Possession of Game fish in Closed Season; Constitutional Law--Special Act--Sunday Law; Contracts--Impossibility of Performance--Implied Condition; Contracts--Violation of Penal Statute--Transaction Void; corporations--Dissolution--Rights of Minority Stockholders; Corporations--Insolvency--Preferences to Officers; Equity--Jurisdiction--Partition--Oil Leases; Judgments--Absence of Jurisdiction--Injunction--Restraining Execution; Master and Servant--False Imprisonment--Duty of Merchant to Customers; Master and Servant--Fellow Servants--Assumed risks--Injuries to Servant While off Duty; Minor's enlistment in the Navy--Validity--Desertion--Arrest--habeas Corpus; Real Property--Rule in Shelley's Case--Wills; Specific Performance--Parol Contract--Part Performance; Suretyship--county …

Recent Important Decisions, Michigan Law Review

Michigan Law Review

Administrators--Right to Convey Inchoate Homestead; Agency--Scope of Authority--Sunday Contract; Assignment for the Benefit of Creditors--Action to set Aside; Bankruptcy--Discharge--Debt Created in Fiduciary Relation--Laundry Agent; Bills and Notes--Banks--Payment of Draft to Impost--Liability to Drawer; Chattel Mortgages-Validity--Mortgagor's Possession and Power of Sale in Ordinary Course of Business; Constitutional Law--Due Process at Law--Forfeiture of Lands for Failure to Pay Taxes; Constitutional Law--Local Option Law--Use of Liquors in Religious Worship--Discrimination; Contract for the Benefit of Third Persons--Enforcement by Beneficiary--Assignment; Corporations--Oral Subscription to Stock--Statute of Frauds; Corporations--Promissory Notes--Proof of Execution; Courts--Jurisdiction of State Court to Enjoin a Receiver Appointed by Federal Court; Damages--Automobiles--Frightening Horses--Excessive Speed; …

Recent Important Decisions, Michigan Law Review

Michigan Law Review

Agency--Authority to Appoint Sub-Agents; Agency--right to Compensation; Bankruptcy--Discharge; Bankruptcy--Discharge; Banks and Banking--Crediting Depositor--Check of Another Depositor; Conflict of Laws--Legitimation of a Bastard--Status Fixed by Domicile of his Parents; Conflict of Laws--Lex Loci Fori--Right of Action in England for Acts in Foreign Country--Territorial Waters; Constitutional Law--Summary Sale of Trespassing Animals; Contract--Public Policy--General Restraint of Trade; Contract--Validity--Release of Employer for Liability to next of Kin for Injury to Employee; Elections--Right of a Party Committee to Question Eligibility of a Candidate; Fraudulent Conveyances--Contingent Fees; Insurance--Condition for Immediate Notice--Excuse; Married Women--Power to Enter into Partnership with Husband--Set off of Debt Due by Partner in …

Davey V. Aetna Life Ins. Co., Henry W. Rogers

Articles

Professor Rogers considers a case where a life insurance policy appears to be voided by the use of alcoholic beverages by the insured, to the degree of cause of death. Rogers notes: "In the particular case the court was asked to give the following instruction: Th expression in the policy, 'became so far intemperate as to impair his health,' does not mean habitual intemperance; but an act of intemperance producing the impairment of health is within the condition of the policy, and renders the policy null and void except as therein provided...."

In the Application for Rule to Show Cause …