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Michigan Law Review

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Articles 571 - 600 of 846

Full-Text Articles in Contracts

Non-Assignment Provisions In Land Contracts, Edwin C. Goddard Nov 1932

Non-Assignment Provisions In Land Contracts, Edwin C. Goddard

Michigan Law Review

Many a sale of real estate is made to a purchaser who lacks the ready cash to pay the price. A deed of conveyance may be given with a mortgage back for the unpaid portion of the purchase price. But more and more in recent years the vendor has given a contract to convey conditioned upon the making of periodical payments of stipulated amounts, a deed to be given when the whole or a stated portion of the purchase price has been paid. The initial payment may be very small, and not infrequently the periodic payments are little more than …

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Restrictive Indorsements Nov 1932

Restrictive Indorsements

Michigan Law Review

Under Sec. 36 of the N. I. L. an indorsement is restrictive which prohibits further negotiation or constitutes the indorsee the agent of the indorser or vests the title in a trustee in trust for some other person. The mere absence of words importing a power to negotiate does not, however, make the indorsement restrictive. Among the rights of a restrictive indorsee as declared by Sec. 37 is the one to bring "any action thereon that the indorser could bring." The remaining provision of the statute dealing with such indorsements is Sec. 47, which provides that "An instrument negotiable in …

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Contracts-Beneficiaries-Right Of Employee To Sue On A Contract Made Between Employer And Union Nov 1932

Contracts-Beneficiaries-Right Of Employee To Sue On A Contract Made Between Employer And Union

Michigan Law Review

Defendant agreed with an employees' union that its employees would not be discharged without cause or without a hearing. The plaintiff, who entered into an employment contract with the defendant for an indefinite term, was discharged by the latter without a hearing, and sued as a third party beneficiary for breach of the defendant's agreement with the union. Held, in Johnson v. Am. Ry Express Co., that this agreement was a valid third party beneficiary contract, and so enforcible by the plaintiff who was one of the parties intended to be benefited by it.

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Pleading-How To Raise The Issue Of Payment Nov 1932

Pleading-How To Raise The Issue Of Payment

Michigan Law Review

On rehearing in an action on contract for money two questions were presented to the court, to wit: first, is an allegation of non-payment essential in order that this complaint might state a cause of action; and second, can the issue of payment be raised by the defendant's general denial? Held, in Hughes v. Wachter an allegation of non-payment is necessary in the complaint, and the defendant may prove payment under a general denial.

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Statute Of Frauds-Oral Modification Of Written Agreement Nov 1932

Statute Of Frauds-Oral Modification Of Written Agreement

Michigan Law Review

The vendor sued on a written contract of sale. The defense was that subsequent to the formation of the contract the parties had orally agreed to extend the time for payment and delivery one year. The vendor argued that the contract, being within the statute of frauds, could not be modified by a parol agreement. Held, in Bemis Bros. Bag Co. v. Nesbitt that performance of a written contract may be extended by subsequent oral agreement.

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Contracts - Assignment - Right Of Partial Assignee Jun 1932

Contracts - Assignment - Right Of Partial Assignee

Michigan Law Review

One White assigned to the plaintiff, for a valuable consideration, part of the amount due him (White) from the defendant as wages for the last half of October. Before the time of payment on November 15th, the plaintiff had given written notice of the partial assignment to the debtor, defendant, who refused to recognize it, and who on the 15th of November paid the total sum due to White. Plaintiff sues in equity for. the $25.00 assigned to him, alleging the above facts. Held, that the defendant was in equity bound by the notice of the partial assignment and must …

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Quasi-Contracts -Assumpsit For Use And Occupation Against A Trespasser In Modern Cases May 1932

Quasi-Contracts -Assumpsit For Use And Occupation Against A Trespasser In Modern Cases

Michigan Law Review

Perhaps the doctrine of stare decisis is sometimes deserving of severe criticism in its application to matters of substantive law; but the unfortunate results of uncritical adherence to precedent appear most clearly in regard to rules of procedure, where the demand for certainty cannot be justified by a supposed reliance of laymen on "settled" rules. The evils are aggravated where inconvenient decisions are not undermined or their effects evaded by the lawyer's typical process of "distinguishing'' cases. A forcible illustration is the firm refusal of most courts to extend quasicontractual relief to cases of use and occupation of land by …

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Contracts - Consideration - Agreement To Modify A Lease May 1932

Contracts - Consideration - Agreement To Modify A Lease

Michigan Law Review

Defendant leased from the plaintiff's assignor certain premises for a term of five years. After the lease was partially performed, the parties orally agreed to reduce the rent. The lessee, shortly before the expiration of the term, defaulted under the oral agreement. Plaintiff sued the defendant for the difference between the rent reserved and that which was paid under the oral agreement. Held, that an executed oral agreement, or so much of it as has been performed, will serve as a modification of a lease without regard to the presence or absence of consideration, but that which is executory …

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Contracts - Partial Illegality - Contract In Restraint Of Trade May 1932

Contracts - Partial Illegality - Contract In Restraint Of Trade

Michigan Law Review

The plaintiff contracted to transfer his law business, property used in connection therewith, and good will to the defendant and to refrain from practicing law within the state until the time set for payment of the balance of the contract price. The balance not having been paid at maturity, the plaintiff brought an action on the contract, alleging full performance on his part. The defendant demurred on the ground that the contract constituted an illegal restraint of trade under Oklahoma statutes which declare that agreements in restraint of trade upon selling the good will of a business are void to …

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A Valuable Handbook, John B. Waite Apr 1932

A Valuable Handbook, John B. Waite

Michigan Law Review

A review of VOLD ON SALES. (Hornback Series) By Lawrence Vold.

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Private Carriers - Contracts Limiting Liability For Negligence Apr 1932

Private Carriers - Contracts Limiting Liability For Negligence

Michigan Law Review

Defendant contracted to haul cars belonging to a circus under a stipulation that it was not to be liable for injury or damage resulting from the negligence of its employees. Plaintiff, who had made an employment contract with the circus, releasing them and the defendant from liability for injury to him, was injured in a collision caused by the negligence of the defendant's servant. Held, the defendant could not contract against liability for injury caused by its wilful and wanton negligence and was therefore liable. Sabol v. Chicago & N. W. Ry. (Mich. 1931) 238 N. W. 281.

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Wills -Validity Of Contracts To Suppress Mar 1932

Wills -Validity Of Contracts To Suppress

Michigan Law Review

Certain children entered into a contract during the lifetime of their parents, by the terms of which it was agreed that if the will of either parent should favor some of the children above others, the favored children would waive their rights under the will and share equally in the real and personal estate of the parents. The will of the father left the whole estate to the mother. Her will omitted any gift to one of the children, and this suit was brought by an assignee of that child to obtain specific performance of the agreement. Held, that …

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Injunction - Mutuality- Personal Service Contract Mar 1932

Injunction - Mutuality- Personal Service Contract

Michigan Law Review

Plaintiff and defendant entered into a contract whereby plaintiff was to teach defendant boxing and to use his best efforts to negotiate and manage boxing bouts for defendant over a period of five years, the proceeds of the contests to be divided between plaintiff, defendant, and a brother of defendant on a percentage basis. Defendant agreed not to engage, during the life of the contract, in any "boxes, exhibition fights, or theatrical performances except such as have been procured by" the plaintiff. On appeal by defendant from a temporary injunction restraining his breach of the negative covenant, held, assuming …

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Bankruptcy - Claims Against Bankrupt Indorsers Feb 1932

Bankruptcy - Claims Against Bankrupt Indorsers

Michigan Law Review

Bankrupts were indorsers of promissory notes payable to claimants. None of these notes was due before the filing of the petition in bankruptcy and some of them did not mature within the year following adjudication during which proof of claims may be made. The court of appeals for the sixth circuit held that claimants could not prove on the indorsements because their claims were contingent. Held, that the claim was one "founded upon a contract express or implied," and provable even though not due until after the year allowed for proof of claims, the requirement of presentment and notice …

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Insurance - "Liability" Of "Indemnity" Contract - "No Action" Clause Feb 1932

Insurance - "Liability" Of "Indemnity" Contract - "No Action" Clause

Michigan Law Review

Plaintiff sued his insurer upon a policy which provided that the defendant would indemnify the insured against loss from liability for damages and would defend any suit brought against the assured to recover such damages. The policy contained a "no action" clause which denied a right of action unless a final judgment had been rendered and the assured had actually sustained a loss by payment of such judgment. Such a suit, brought against the plaintiff, had been unsuccessfully defended by the insurer. It was held that plaintiff could recover on the policy upon the rendition of the judgment and without …

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Bills And Notes - Estoppel As Against Bona Fide Purchaser Of Non-Negotiable Chose Jan 1932

Bills And Notes - Estoppel As Against Bona Fide Purchaser Of Non-Negotiable Chose

Michigan Law Review

Plaintiffs bought some interim certificates (at that time non-negotiable in New York), and delivery was made to them. Because of inability to make payment that day, they asked the vendor to send a runner for the certificates, and when a person appeared asking for the amount due the vendor, plaintiffs' cashier gave him the certificates. Shortly thereafter the proper runner arrived, and plaintiff's at once gave notice of the theft in newspapers and otherwise. Some of the stolen certificates were pledged with defendant who acted in good faith in taking them. The defense to this suit for recovery of the …

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Contracts - Illegality- General Restraint Of Trade Jan 1932

Contracts - Illegality- General Restraint Of Trade

Michigan Law Review

Defendants sold their stock in a manufacturing corporation with a covenant in the contract to the effect that they would not engage in the sale or manufacture of bunghole appliances in the United States, east of the Mississippi, for a period of sixteen years. Held, a contract which does not permit one to engage in his trade anywhere within the state is one in general restraint of trade and is ipso facto illegal and void. Parish et al. v. Schwartz et al. (Ill. 1931) 176 N.E. 757.

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Contracts - Parties - Suit On A Sealed Instrument Jan 1932

Contracts - Parties - Suit On A Sealed Instrument

Michigan Law Review

Defendant was the obligor on a bond under seal given for the faithful performance of a shipbuilding contract in which the obligee was named as "the United States Shipping Board Emergency Fleet Corporation; a corporation organized and existing under the laws of the District of Columbia, representing the United States of America." The contract, to insure the performance of which the bond was executed, was signed by the "Fleet Corporation" and sealed with its own seal. In action at law on the bond brought by the United States, held, since the plaintiff was not a party named in the …

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Equity - Estoppel By Injunction In Subsequent Suit At Law For Damages Jan 1932

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 …

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Evidence - Burden Of Proof - Compliance With Stipulation In Bill Of Lading As To Time For Claim Of Loss Jan 1932

Evidence - Burden Of Proof - Compliance With Stipulation In Bill Of Lading As To Time For Claim Of Loss

Michigan Law Review

P purchased potatoes in Michigan. He instructed the defendant railroad to deliver the potatoes to the warehouse of B when they should arrive in Richmond. Instead, some were sent to another warehouse. Before P discovered the mistake, the potatoes had spoiled. P made claim of loss six months and twenty days after the shipment left Michigan. The bill of lading provided: "Sec. 2 (b). Claims for loss or damage . . . must be made in writing . . . within six months after a reasonable time for delivery has elapsed." The testimony of Neiss, freight clerk, who was called …

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Conflict Of Laws - Contracts - Public Policy Jan 1932

Conflict Of Laws - Contracts - Public Policy

Michigan Law Review

The decedent, in Florida, became the grantee of Florida land by a deed which recited that it was made subject to a mortgage held by one Key, in the sum of $9,000, securing a note for that amount. The deed stipulated that "the grantee herein assumes and agrees to pay the above mortgage and notes." By Florida law the grantee was effectually bound by such a clause. Upon the death of the grantee, Key entered a claim against the estate in Pennsylvania. The lower court disallowed the claim on the basis of a Pennsylvania statute which held a grantee of …

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Corporations - Rescission Of Contract Procured Through Fraud Dec 1931

Corporations - Rescission Of Contract Procured Through Fraud

Michigan Law Review

P purchased shares of stock in S Company through the fraud and misrepresentation of his agents in collusion with the agents of the S Company. Upon discovery of the fraud, P tendered back a number of shares equal to the number received by himself and his innocent associates. In the meantime, P had resold part of the shares at a higher price. Held, P must also tender the profit resulting from the resale and subsequent purchase of equivalent shares in a fallen market, together with any dividends paid on stock and interest from date of payment. Marr v. Tumulty …

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Contracts - Illegality - Contract To Relinquish Custody Of Child Nov 1931

Contracts - Illegality - Contract To Relinquish Custody Of Child

Michigan Law Review

The plaintiff declared on a contract between her father, Thomas Smith, and J. F. and A. T. Mulkey, in which the parent contracted to relinquish all control over the plaintiff, a minor, in consideration for which J. F. and A. T. Mulkey agreed to adopt the child and leave their property to her upon the death of the survivor. The contract was fully performed by the child's parent, but J. F. and A. T. Mulkey failed to adopt the child, and made no provision for her in the distribution of their property. In a suit by the plaintiff at the …

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Sales--Distinction Between Conditional Sale And Chattel Mortgage-Michigan Rule Jun 1931

Sales--Distinction Between Conditional Sale And Chattel Mortgage-Michigan Rule

Michigan Law Review

The petitioner sold a truck under an unrecorded contract which provided that title was to remain in him until the buyer made full payment, and that in event of default the whole sum was to become due immediately with the right of reclamation. The buyer subsequently went into bankruptcy and the seller petitioned for reclamation of the truck from the trustee. Held, that since the contract under the Michigan rule constituted a chattel mortgage so that failure to record it made it ineffective against creditors, the petition should be denied. In re Central States Freight Corporation (E. D. Mich. …

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Conflict Of Laws-Damages-Obligation Payable In Russian Rubles Jun 1931

Conflict Of Laws-Damages-Obligation Payable In Russian Rubles

Michigan Law Review

In an action in New York to establish a claim against a Russian insurance company on a policy payable in rubles in Russia, the following history of Russian money appeared. Before the revolution, the gold ruble of the Empire had been supplanted by a paper currency of depreciated value. The Soviets, at the beginning of their regime, instituted a paper currency which had also greatly decreased in value. At the time the policy became due, this latter currency was still circulating, and in addition, a gold coinage with notes redeemable in gold had been established. From time to time the …

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The Liability For Taxes And Assessments Between Vendor And Purchaser Jun 1931

The Liability For Taxes And Assessments Between Vendor And Purchaser

Michigan Law Review

This note is concerned with the rights and duties, inter se, of vendor and purchaser with respect to the burden of taxation. The problem presents itself in the simplest form when it arises in a suit for specific performance, the question being whether the contract obligated vendor to remove the lien of certain taxes (or allow the purchaser a credit against the purchase price), or, on the other hand, obligated purchaser to pay the whole price for the encumbered land (or pay vendor, in addition to purchase price, the amount of tax previously paid by the latter). The question …

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Constitutional Law-Just Compensation Under The Fifth Amendment- Rights Of Russian Citizen Jun 1931

Constitutional Law-Just Compensation Under The Fifth Amendment- Rights Of Russian Citizen

Michigan Law Review

The petitioner was a corporation organized under the laws of the Russian Czarist government, and in January, 1917, became an assignee for value of contracts for the construction of two vessels. In August, 1917, the United States requisitioned these contracts, and the vessels being constructed thereunder, for use in the War. The requisition was made under an act of Congress of June 15, 1917, 40 Stat. 183, which provided for compensation as follows: "Whenever the United States shall * * * requisition any contract * * * or take over any ship, * * * in accordance with the provisions …

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Contracts-Statute Of Frauds-Estoppel Jun 1931

Contracts-Statute Of Frauds-Estoppel

Michigan Law Review

Plaintiff, the lessee of a building, with the consent of the owner, sub-let it for an increased rental. On the oral representation of the plaintiff that he would assign the sub-lease, which had one year and six months to run, defendant purchased the property. Plaintiff then refused to assign and claimed the rental under the sub-lease. The lower court excluded evidence of the oral promise on the ground that it was unenforceable under the Statute of Frauds. On appeal, it was held, one justice dissenting, that the proof of the oral promise to assign the lease should have been …

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Deeds-Delivery In Escrow-Effect On Income Tax Jun 1931

Deeds-Delivery In Escrow-Effect On Income Tax

Michigan Law Review

A taxpayer, by written contract, had agreed to sell a 99-year leasehold for $195,000. $50,000 was to be paid in 1920, and the balance in 1921. The first payment was made in October, 1920, and a deed put in escrow, to be handed to the grantee on payment of the balance. The transaction was fully carried out as per contract, and the taxpayer was assessed income tax on the entire $195,000 as of 1920. Held, the deed having been delivered in escrow, the title relates back to the original delivery on performance of the condition, showing a completed transaction …

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Equity-Power To Reform-Effect Of Statute Of Frauds Jun 1931

Equity-Power To Reform-Effect Of Statute Of Frauds

Michigan Law Review

The plaintiff made an oral contract to sell certain shares of stock to the defendant at a price of $1,160 a share, as a result of a telephone conversation. On the same day the plaintiff sent the defendant a written confirmation of the sale, in which the price of $1,060 a share was inserted by mistake. The New York Statute of Frauds makes such a contract unenforceable unless a note or memorandum thereof be in writing. Held, that although the parties intended to make a memorandum of the oral contract which they had made, the memorandum was of a …

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