Contracts Commons^™

Contracts -- 1956 Tennessee Survey, Paul J. Hartman

Vanderbilt Law Review

In Shirley v. Slate the Supreme Court of Tennessee had an occasion to pass upon the status of a gambling transaction in Tennessee. In the Shirley case a petition was filed to recover money seized by a sheriff in a crap game. In denying recovery, the court held that the power of the court could not be invoked for recovery of money which the participant had won and which had been seized by the sheriff during a raid and turned over to the county court clerk. Tennessee visits severe consequences on gambling or wagering transactions. By statute it is provided …

Business Associations -- 1956 Tennessee Survey, F. Hodge O'Neal

Vanderbilt Law Review

Surprisingly few cases were decided in the field of Business Associations during the survey period. Those decisions for the most part merely reaffirmed legal principles already established in Tennessee law. One of the cases, Wyatt v. Brown,' raised again the interesting old question of what is a partnership and what factual elements are necessary to constitute the partnership relation. This article discusses that question first and then comments rather briefly on the other cases and the principles they enunciate.

Family Responsibility In Tort, William J. Harbison

Vanderbilt Law Review

At common law an unmarried woman occupied no special status as far as tort liability was concerned, and the same rules and standards of responsibility applied to her as to society generally. Since marriage imposed upon a woman a very extensive disability, however, there developed a number of special rules concerning tort responsibility of the married woman.

Marriage did not impose upon the wife any special or peculiar liability for wrongful acts committed by her husband at common law, and, except in certain instances hereafter noted, she is not thus liable today. It is true that since the enactment of …

Recent Cases, Law Review Staff

Vanderbilt Law Review

Recent Cases

Constitutional Law--Equal Protection--Automatic Reversion of Land to Grant or Upon Use by Non-Whites

Constitutional Law--Federal Eminent Domain--Potentiality for Water Power Development as Element of Compensation

Contracts--Place of Making--Acceptance by Instantaneous Means of Communication

Insurance--Automobile Liability Omnibus Clause-Coverage of Sub-Permitee

Insurance--Insurer's Right of Subrogation--Waiver by Refusal to Pay Claim

Master and Servant--Borrowed Servant Doctrine--Contract as Proof of Assumption of Control

Wills--Anti-Lapse Statutes--Beneficiaries of Class Gift Dead at Will's Execution

Contracts (Herein Of Agency) -- 1955 Tennessee Survey, Merton L. Ferson

Vanderbilt Law Review

Offer and Acceptance: Listing Property for Sale With Broker: In Jenkins v. Vaughan' the facts were these: Vaughan had a drug store for sale. He gave Jenkins, a broker, an exclusive listing for 90 days and promised to pay Jenkins a commission if the property were sold within that time "either through you or any other reason." This listing was made October 10, 1951. On December 10, 1951, Vaughan directed an employee of Jenkins to cancel the listing. And on December 28 Vaughan sold the store to a purchaser procured by another broker. Jenkins had not spent any appreciable time …

Conditions In The Law Of Contracts, Merton Ferson

Vanderbilt Law Review

Conditions Precedent. Assume that a contract obligation has been created. When must the obligor perform? In some cases the performances become due by the mere passing of time. But in many cases the performances are not due until and unless certain other events have occurred. These other events are called conditions precedent. Until they come to pass the obligor may omit performance with impunity. He has an excuse that will stay the hand of the obligee. The case of Shadforth v. Higgin' will serve to illustrate the immunity of an obligor when a condition precedent has not come to pass. …

Contracts -- 1954 Tennessee Survey, Merton L. Ferson

Vanderbilt Law Review

Mutual Assents: In the case of Jones v. Horner it appeared that Jones was a tenant of Mrs. Homer. The lease gave Jones an option to purchase the property for a stated price and provided that Jones might exercise his option "by payment or tender of the agreed purchase price." Jones, within the life of the option, without tendering the purchase price, gave notice that he would exercise the option. He said he would pay the purchase price upon receipt of a deed to the property. Mrs. Homer refused to treat this notice as a valid exercise of the option. …

Fiction Vs. Reality, In Re Contracts: A Survey, Merton Ferson

Vanderbilt Law Review

The history and philosophy of the law of contracts has more than academic interest. In some areas there are conflicts and uncertainties that stem from the history, nature and basis of contracts.

Primitive men were familiar with the idea of possession which later developed into the idea of ownership. And a person having possession or ownership has long been able to transfer whatever he had to another.'

But the idea of obligation was a later development in the advance of civilization. Obligations, as we know them at present, would have been incredible to primitive men. Do we fully realize even …

Taft-Hartley Sections 301 And 303 Procedural Aspects, Joseph F. Dirisio, Joseph Martin Jr.

Vanderbilt Law Review

The motives and purposes behind the binate Sections 301 and 303, no less than other sections of the Taft-Hartley Act,' are mixed and ambiguous. Foremost, however, seems the notion that Congress intended to create new federal rights, contract and tort, enforceable nationally in a federal forum. In broad terms, where the required relationship to interstate commerce exists, Section 301 permits suits by either employers or unions for violation of collective bargaining agreements; Section 303 permits those injured by certain boycotts and unlawful combinations to bring suit-- in both cases, the forum provided is the district court of the United States. …

Personal Liability Of Corporate Officers For Ultra Vires Contracts, J. F. Dirisio

Vanderbilt Law Review

A director or other officer of a corporation, when contracting on its behalf, acts as its agent and the laws of agency are generally applicable. This note presents those problems, apparently unique to corporation law, in the liability of an agent who, with authority, contracts for a principal who has no authority.' Of no concern here are those instances where, either because of ratification or estoppel, the corporation itself is liable, since if the principal is bound the other party has no ground of complaint against the agent.

An officer of a corporation, contracting in excess of or without authority …

Business Associations, Paul J. Hartman

Vanderbilt Law Review

Use of Corporate Entity to Evade Contractual Obligations. Scott v. McReynolds afforded the Court of Appeals an opportunity to pierce the corporate veil. Plaintiff and defendant McReynolds were partners in the business of selling butane-propane gas and appliances. In a contract dissolving the partnership, McReynolds agreed not to sell gas or appliances within a specified area. Shortly thereafter, the other defendant, a corporation, was formed, and it sold gas within the exempted area in competition with plaintiff. McReynolds was president of the defendant corporation, was actively engaged in the business and was a "prime mover in the organization of the …

Recent Cases, Law Review Staff

Vanderbilt Law Review

Contracts--Ceiling Price Legislation--Effect upon Performance

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Evidence--Declarations against Interest--Third-Party Confessions

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Family Law--Loss of Consortium of the Parent--Right of Child to Recover Against a Negligent Defendant

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Federal Procedure--Statutory Construction--Meaning of "Mentally Incompetent"

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Income Taxation--Surrender of Lease--Capital Gain to Lessee

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Income Taxation--Taxable Stock Dividend--Treasury Stock Held for Investment

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Judgment--Suit to Vacate--Insufficient Allegations of Cruelty Void Divorce Decree

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Labor Law--Filing Requirements--Noncompliance at Time Charges Filed

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Municipal Corporations--Liability for Negligence--Operation of Swimming Pool for Profit

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Process--Constructive Service--Tort Action Arising Without State

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Torts--Res Ipsa Loquitur--Application To Disappearing Airplane

The Eclipse Of The Lex Loci Solutionis -- A Fallacy Exploded, J. H.C. Morris

Vanderbilt Law Review

Traditionally, the question what law governs the validity of a contract is the most confused subject in the conflict of laws.' At least four theories have been advocated by writers or adopted by courts, namely that the law of the place of contracting, or the law of the place of performance, or the law intended by the parties, or the law of the country with which the contract has the closest and most real connection, determines the validity of the contract. In England the validity of a contract is governed by the "proper law," which Dicey defines as "the law, …

Recovery Of Damages For Mental Anguish Alone In Breach Of Contract Actions, Law Review Staff

Vanderbilt Law Review

Before the late 1800's it undoubtedly would have been contrary to law to assert that damages for mental suffering might be allowed in breach of contract actions. However, near the beginning of the Nineteenth Century a few courts made what was considered to be a serious departure from the common law and allowed such damages in certain types of cases. The passing of years has brought about considerable, though incomplete, development in this phase of the law. Not only have legal writers failed to give this development the comment which its significance warrants, but the courts have failed to indicate …

Claims Against The State In Tennessee -- The Board Of Claims, George H. Cate Jr.

Vanderbilt Law Review

The age-old doctrine of governmental immunity from suit seems gradually to be passing into the discard, first in the realm of contract liability, and of late in the field of torts. Recent years have seen its vitality substantially sapped by judicial decisions, and there is a distinct trend among governmental units to do away with it partially or entirely through legislation. Thus, England in the Crown Proceedings Act of 1947, the United States in the Federal Tort Claims Act, and many of the states by similar legislation have renounced their shield of immunity from suit and, by means more regularized …

Arbitrability Under Collective Bargaining Agreements, Clyde H. Brockett Jr., William Merlin

Vanderbilt Law Review

Under many collective bargaining contracts calling for arbitration of disputes, sooner or later a question has arisen whether the arbitrator has authority and power to arbitrate a particular issue. While this is obviously an oversimplification, it is a statement of the problem of arbitrability. Involuntary arbitration of labor disputes the question of the "scope of arbitration" may arise in either of two situations: (1) in the formulation of new contracts; or (2) in the disposition of grievances under existing contracts. This Note will consider only arbitration of the latter type.

Recent Cases, Law Review Staff

Vanderbilt Law Review

RECENT CASES

CONTRACTS--CONSIDERATION--AGREEMENT TO SUPPORT ILLEGITIMATE CHILD

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CONTRIBUTION--JOINT TORTFEASORS--REMEDY GRANTED

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CONTRIBUTION--JOINT TORTFEASORS--REMEDY GRANTED WHEN TORT CONSISTS OF NEGLIGENCE

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CREDITORS' RIGHTS--RECEIVERSHIP OF OPERATING BUSINESS--CHATTEL, MORTGAGEE ENTITLED TO FORECLOSURE RATHER THAN SMALLER MONTHLY PAYMENTS ORDERED BY COURT

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EVIDENCE--DEAD MAN STATUTE--OBSERVATION OF PHYSICAL CONDITIONS NOT A "TRANSACTION" WITHIN MEANING OF STATUTE

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EVIDENCE--JUDICIAL NOTICE--TENETS OF COMMUNIST PARTY

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FEDERAL COURTS--HABEAS CORPUS IN EXTRADITION PROCEEDINGS--NECESSITY OF EXHAUSTING REMEDIES IN STATE COURTS

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IMPLIED WARRANTY--WARRANTY OF SEAWORTHINESS--WARRANTY WITHOUT A SALE

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NEGLIGENCE OF LANDOWNER--PERSON TAKING SHORTCUT THROUGH STORE--LICENSEE OR BUSINESS GUEST?

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RES JUDICATA--INDEMNITOR-INDEMNITEE RELATIONSHIP AS EXCEPTION TO REQUREMENT OF MUTUALITY--CREATION …

Bases For Master's Liability And For Principal's Liability To Third Persons, Merton Ferson

Vanderbilt Law Review

The law with regard to principal and agent grew up as part and parcel of the law of contracts. The law with regard to master and servant grew up as part and parcel of the law of torts. Each one takes its origin far back in the history of the common law.

Agents were used in an early day to effect livery of seisin, to create covenants, and to carry on commercial transactions. The terms "principal" and "agent" may be of modern origin. But the power of one person to bind another in legal transactions was familiar in the days …

Recent Cases, Law Review Staff

Vanderbilt Law Review

AUTOMOBILE INSURANCE--COMPREHENSIVE CLAUSE EXCLUDING MECHANICAL BREAKDOWN--REQUIREMENT THAT EXCLUDED RISK BE SOLE PROXIMATE CAUSE

BAILMENTS--DELIVERY OF POSSESSION--PROPERTY DEPOSITED IN PUBLIC LOCKER

CONSTITUTIONAL LAW--INFRINGEMENT OF CIVIL RIGHTS BY PRIVATE INDIVIDUALS--CAUSE OF ACTION UNDER FEDERAL STATUTE

CONSTITUTIONAL LAW--RIGHT TO JURY TRIAL--ACTION FOR STATUTORY PENALTY UNDER PRICE ..CONTROL ACT

CONSTITUTIONAL LAW--UNITED NATIONS CHARTER--APPLICATION AS TREATY TO RENDER STATE LAW INVALID

CONTRACTS--CONSIDERATION--NEW AGREEMENT TO PAY LESS THAN ORIGINAL CONTRACT PRICE

CONTRACTS--DEFINITION OF TERMS--EFFECT OF PART PERFORMANCE IN MAKING TERMS CERTAIN

COPYRIGHT--ARTIST'S RIGHTS IN PRODUCTION AFTER SALE--"MORAL RIGHT" TO PREVENT DESTRUCTION

CRIMINAL LAW--SEARCHES AND SEIZURES--EFFECTS OF VIOLATION OF CONSTITUTIONAL RIGHT ON JURISDICTION OF FEDERAL COURTS

JOINT …

Book Notes, Law Review Staff

Vanderbilt Law Review

BOOK NOTES

The Law of Trusts

By Ralph A. Newman

Brooklyn: The Foundation Press, Inc., 1949. Pp. xi, 452. $4.50

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Estate Planning

By Joseph Trachtman

New York: Practicing Law Institute. 1949 Edition. Paper bound. Pp. i, 170. $2.00

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BOOKS RECEIVED

The Case of General Yamashita

By A. Frank Reel

Chicago: University of Chicago Press, 1949. Pp. v, 324. $4.00

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Cases and Materials on Commercial Law

By Hugh W. Babb and Carl B. Everberg

Brooklyn: The Foundation Press, Inc., 1949. Pp. iii, 963. $6.00

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Cases and Materials on Law and Accounting

By Donald Schapiro and Ralph Wienshienk …

Recent Cases, Law Review Staff

Vanderbilt Law Review

Recent Cases

Bills and Notes--Fictitious Payee Known only to Fraudulent Employee of Drawer--Negotiable Instruments Law v. Fictitious Payee Act

Constitutional Law--Amendment and Revision--Power to Call Constitutional Convention Limited to Consideration of Specific Topics

Constitutional Law--Interstate Commerce--Dental of License to Ship Milk Held Invalid

Constitutional Law--Separation of Powers--Legislative Control over Admission to the Bar

Contracts--Recited Cash Consideration--Effect of Non-payment

Contracts--Statute of Frauds--Letterhead as a Signature

Criminal Procedure--Communication between Judge and Jury--Effect of Inquiry as to Pronounced Majority

Criminal Procedure--Constitutional Right to Public Trial--Power of Court to Order Courtroom Cleared of Spectators

Estates--Disability of Life Tenant to Purchase Tax Title to Exclusion …

Resale Price Maintenance, Stanley D. Rose

Vanderbilt Law Review

There was a tide in the affairs of men that was taken at its flood by the National Association of Retail Druggists--and it led on to fortune. For this band of little men the Miller-Tydings Amendment to the Sherman Act I was the end of a thirty years war. Enjoined in 1907 from attempting to force up retail price margins and maintain retail drug prices at a uniform level, this association joined with other groups desirous of achieving similar ends in an effort, year after year, to persuade Congress to permit the making of contracts between manufacturers and retailers that …

John Howard Moore, Robert W. Sturdivant

Vanderbilt Law Review

This issue of the Vanderbilt Law Review is dedicated to Mr. John Howard Moore. At the end of this current school year Mr. Moore will have served a quarter of a century as a Professor of Law at the Vanderbilt University School of Law and will retire from active teaching.

Mr. Moore has been and remains an idealist and perfectionist in the law. This has been the theme of his teaching. We that had him as a teacher know that it is his belief that neither he nor anyone else is qualified to answer a nice legal question until the …

Part Performance And Equitable, Estoppel In Tennessee, Cecil D. Branstetter

Vanderbilt Law Review

The Tennessee chancery courts have repeatedly been petitioned for the specific enforcement of parol contracts for the sale of land, on the basis of part performance.' The Tennessee Supreme Court has consistently refused to give such relief, emphatically laying down the rule that part performance of a parol contract for the sale of land does not serve as a substitute for the writing required by the Statute of Frauds...

The purpose of this note is to determine the extent to which Tennessee courts will recognize and enforce parol contracts for the sale of an interest inland when the petitioner relies …

Book Reviews, Harold Shepherd, Rollin M. Perkins, Stanley D. Rose

Vanderbilt Law Review

The Rational Basis of Contracts and Related Problems in Legal Analysis By Merton L. Ferson Brooklyn: The Foundation Press, Inc.,1949. Pp. i-ix, 1-330. $4.00

reviewer: Harold Shepherd

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Beutel's Brannan, Negotiable Instruments Law By Frederick K.Beutel Cincinnati: The W. H. Anderson Company Seventh Edition,1948. Pp. xiii, 1628. $15.00

reviewer: Rollin M. Perkins

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Social Meaning of Legal Concepts--No. 1, Inheritance of Property and the Power of Testamentary Disposition Edited by Edward N. Cahn New York: New York University School of Law, 1948.Pp. vi, 90. $1.50

reviewer: Stanley D. Rose

Recent Cases, Law Review Staff

Vanderbilt Law Review

CONFLICT OF LAWS--FULL FAITH AND CREDIT--DOMESTIC SEPARATE MAINTENANCE DECREE SURVIVES FOREIGN DIVORCE

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CONSTITUTIONAL LAW--DUE PROCESS--USE OF PEREMPTORY'CHALLENGE TO EXCLUDE ALL MEMBERS OF ACCUSED'S RACE FROM TRIAL JURY

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CONSTITUTIONAL LAW--FREEDOM OF SPEECH--USE OF AMPLIFICATION DEVICE IN PUBLIC PARK HELD WITHIN CONSTITUTIONAL GUARANTEE

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CONSTITUTIONAL LAW--SEARCHES AND SEIZURES--EVIDENCE OBTAINED WITHOUT SEARCH WARRANT INADMISSIBLE THOUGH SEIZED IN PROCESS OF LAWFUL ARREST

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CONSTITUTIONAL LAW--RACIALLY RESTRICTIVE COVENANTS--JUDICIAL ENFORCEMENT AS STATE ACTION

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CONTRACTS--BROKER'S COMMISSIONS--RIGHT TO RECOVER UNDERDOCTRINE OF SUBSTITUTED PERFORMANCE

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CONTRACTS--COMMERCIAL FRUSTRATION--REQUIREMENT THAT A BASIC PURPOSE OF THE CONTRACT BE FRUSTRATED

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CRIMINAL LAW--CUMULATIVE SENTENCES--EFFECT OF STATE PAROLE UPON COMMENCEMENT OF …

Tennessee Judicial Highlights, Journal Staff

Vanderbilt Law Review

CASES OF CURRENT INTEREST AND IMPORTANCE PREVIOUSLY NOTED

Baker v. State, 184 Tenn. 503 (1947), 1 Vand. L. Rev. 127 (1947). Accessory after the fact--when is felony complete?

Black v. Black, 202 S. W. 2d 659 (Tenn. 1947), 20 Tenn. L. Rev. 201 (1948).' Effect of reciting an oral contract to sell land in an undelivered deed.

Churn v. State, 184 Tenn. 646 (1947), 20 Tenn. L. Rev. 195 (1948). Testimony of arresting officers.

Davis v. Beeler, 207 S. W. 2d 343 (Tenn. 1947), 1 Vand. L. Rev. 451 (1948). Prohibition of practice of naturopathy in Tennessee.

Elliott v. Fuqua, …