Litigation Commons^™

Negligence - Negligent Failure Of Principal To Promulgate Adequate Regulations For Safe Discharge Of Pupils, John M. Ulman

Michigan Law Review

The infant plaintiff, during the dismissal of her class, was pushed or thrown from an exterior stairway by a fellow pupil. As a consequence she sustained personal injuries. She sued the city, the board of education, the principal of the school, and the teacher. Held, that whether the principal was negligent in failing to promulgate more adequate regulations for the safe discharge of the pupils was a question of fact for the jury. Thompson v. Board of Education of City of New York, 255 App. Div. 786, 6 N. Y. S. (2d) 921 (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.

Law Departments And Law Officers In American Governments, John A. Fairlie

Michigan Law Review

On all levels of government, national, state and local, the need for the services of professional lawyers has been recognized. In addition to the judges of the higher courts, there are other law officers, whose function it is to give legal advice and assistance to the various executive administrative agencies, and to act as attorneys for the government and its officials in proceedings before the judicial courts in the enforcement of criminal laws and in other cases where the government or its officials are parties or are concerned with the legal problems involved. Little attention has been given to the …

Mortgages - Set-Off In Action Against Assuming Grantee On Third Party Beneficiary Theory, Anthony L. Dividio

Michigan Law Review

Evans and Fulmer entered into an agreement for an exchange of two pieces of property. Fulmer assumed two mortgages on the property conveyed to her. According to the agreement, Evans gave a first mortgage on the property conveyed to him to a third person and a second mortgage to Fulmer. Evans defaulted on the first mortgage assumed by him; Fulmer, who held the second mortgage, foreclosed and as a result suffered a $17,000 loss. Later, Evans regained possession of the promissory notes evidencing the second mortgage on the property conveyed to Fulmer, and assigned them to Goldfarb who sued Fulmer, …

Automobiles - Effect Of Violation Of Penal Licensing Statute, Michigan Law Review

Michigan Law Review

Plaintiff sued to recover for damages sustained when a negligent defendant collided with plaintiff's car. An unlicensed operator was driving plaintiff's car at the time. A state statute prohibited the operation of an automobile by an unlicensed driver, and specifically provided that no person shall "permit" operation of his car by such a driver. Held, plaintiff may recover, as he reasonably believed that the driver was licensed. Bowdler v. St. Johnsbury Trucking Co., (N. H. 1937) 189 A. 353.

Corporations -Amendment Of Charter - Power Of Legislature To Authorize, Michigan Law Review

Michigan Law Review

Remington Rand, Inc., by amendments to its charter authorized by laws passed subsequent to its incorporation, reclassified its stock so as to extinguish $26.25 dividends cumulated on the first preferred stock. The complainant was owner of some of the first preferred stock. He filed a bill in equity to invalidate the reclassification, to compel restoration of the original capital structure, and to compel the payment of the cumulated dividend so extinguished. Held, complainant cannot succeed as to his demand for invalidation of reclassification and restoration of the capital structure because of laches. He cannot force the payment of dividends …

Joint Adventure - Relationship Distinguished From That Of Employer-Employee, Wayne E. Babler

Michigan Law Review

The taxpayer had an arrangement whereby he planned to furnish the Russian Government with shrapnel shells by farming out the various stages of manufacture to several different companies. A Canadian corporation, also having a contract for furnishing shrapnel, made arrangements with the taxpayer whereby the latter cancelled his contract and went in with the Canadian corporation. Under this arrangement the taxpayer was to furnish his manufacturing arrangement, plans, tools, gauges, drawings, etc., and to get fifteen per cent of the profits on the present contract and five per cent of the profits on future contracts of a similar nature. An …

Judgments - Federal Declaratory Judgments Act, Charles R. Moon Jr.

Michigan Law Review

Underlying the declaratory judgment is the idea that in an organized and civilized society where law and order are thoroughly recognized and established, coercion is normally unnecessary to settle legal disputes between parties. The belief is that in many lawsuits the plaintiff is not seeking a means of coercing the defendant but that the plaintiff and the defendant merely want a final and conclusive decision of a disputed question on which their legal relations depend. The value of the declaratory judgment lies in that it may be used to settle this dispute, in many cases before any other form of …

Negligence Injury To Child From Defendants Dangerous Chattel On The Land Of A Third Person, Michigan Law Review

Michigan Law Review

The minor plaintiff, a child of seven, sued to recover damages for personal injuries received while playing upon defendant's road scraper which had been parked near a playground in a vacant lot belonging to a stranger. Held, that the defendant was under a duty to guard against danger of injury to children by tying fast the operating mechanism with a rope, and the plaintiff, even though a trespasser, is entitled to recover. "The defense of no liability to a trespasser is personal to the owner of the premises trespassed upon; it does not inure to the benefit of strangers …

Champerty And Maintenance - Validity Of Contingent Fee - Contracts By Laymen To Prosecute And Collect Claims Against The Government, Charles R. Moon Jr.

Michigan Law Review

It has often been said by the American courts in recent years that the doctrine of champerty, due to changes in the law of assignment of choses in action and other changes of conditions from those prevailing in England at the time of the origin of the doctrine, is no longer applicable in all its stringency. That conditions have changed cannot be denied; however, neither can it be denied that champerty is a very live doctrine today. The real basis for the doctrine of champerty is that certain contracts are contrary to public policy. When we realize this, we see …

The Non-Recognition Law Of The United States, Kimon A. Doukas

Michigan Law Review

We speak of nations as being equal, independent and sovereign within the fixed confines of their physical boundaries. As aptly stated by our Supreme Court, in the civilized world of today, "Every sovereign State is bound to respect the independence of every other sovereign State, and the courts of one country will not sit in judgment on the acts of the government of another done within its own territory."

Stockholders' Suits: A Possible Substitute, Harris Berlack

Michigan Law Review

With the rapid expansion in the use of the corporate form of organization for business enterprise which has taken place during the last few decades, increasing attention has been paid by legal scholars to the question of the respective positions, rights and duties of the various components of the corporate structure. The functions, rights, obligations and liabilities of managers, officers, directors and stockholders, both majority and minority, have been analyzed and defined. Mr. Berle's analysis of corporate authority as power held in trust for the benefit of the stockholders has found wide acceptance as a comprehensive synthesis of the conclusions …

Automobiles - Statutory Liability Of Owner - Registered Titleholder Estopped To Deny Ownership, Michigan Law Review

Michigan Law Review

Plaintiffs, injured in New York by an automobile driven by defendant's minor son, sued under a New York statute which makes the owner of an automobile liable for damages for injuries resulting from negligence of its operator. The automobile was registered in Connecticut in defendant's name to avoid compliance with the Connecticut statute which requires proof of financial responsibility as a prerequisite of registration for minors over sixteen years of age. Held, defendant estopped to prove ownership of the automobile in his son. Shuba v. Greendonner, 271 N. Y. 189, 2 N. E. (2d) 536 (1936), reversing 245 …

Negligence - Wrongful Death Act-Wife's Death Resulting From Husband's Negligence, Virginia M. Renz

Michigan Law Review

The Pennsylvania wrongful death statute provides that whenever death shall be occasioned by unlawful violence or negligence and no suit has been brought by the party injured during his or her life, the husband, widow, children, or parents of the deceased shall be entitled to recover for damages for injuries causing the death. Under this statute a father sued to recover damages for the death of his daughter which resulted from an automobile accident caused by the negligence of her husband. Held, the wife's disability to sue her husband for tort is personal; it does not bar recovery of …

Attack On Decrees Of Divorce, Albert C. Jacobs

Michigan Law Review

Hitherto we have been concerned with the extent to which a decree is impeachable at the suit of one of the so-called "contestants" to the divorce litigation. But other parties, second spouses, children, personal representatives, grantees of a divorced party, and other third persons, may be affected; they may desire to question its efficacy. Are they controlled by the same principles of attack which govern the divorce litigants? Do these third persons all stand in the same position when they seek to assail the decree?

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 …

Federal Practice-Counterclaim By Lntervenors

Michigan Law Review

Plaintiff sued Freeman Company for infringing a patent by selling a certain patented device. The manufacturer of the device, and vendor of Freeman Company, obtained leave to intervene as a defendant under federal equity rule 37, and thereupon filed a counterclaim against the plaintiff for alleged infringement of other patents, claiming the right to do so as a "defendant" under federal equity rule 30. The plaintiff moved to dismiss the counterclaim. The motion was granted by the district court and affirmed on appeal by the circuit court. On certiorari the United States Supreme Court held that "defendant" under equity rule …

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.

Practice And Procedure - Reservation Of Decision On Motion For Directed Verdict As Means Of Avoiding Unnecessary New Trials

Michigan Law Review

What may be done to remedy the situation if a jury brings in a verdict in favor of a party against whom a verdict should have been directed? This question becomes pertinent in view of the fact that judges, while hard pressed by counsel in the heat of trial, frequently wrongfully deny a motion for directed verdict and submit the case to the jury. One obvious remedy is the granting of a new trial by the trial judge, or by an appellate court after reversal. But this practice has proved eminently unsatisfactory, for it submits the aggrieved party to the …

Bills And Notes - Bills Of Exchange - Assignment

Michigan Law Review

Under an agreement with the intervener that the intervener would "finance" his purchases of stock, the defendant shipped stock to the garnishee, drawing on the garnishee in advance for the purchase price, the intervener being named as payee. With knowledge of the drawing of the draft, the garnishee received and sold the stock, but was thereafter served with summons in this garnishment suit before acceptance or payment of the bill. Held, that the intervener is entitled as equitable assignee to the amount of the draft as against the plaintiff. Baird v. Simonstad, (Minn. 1934) 258 N. W. 570.

Recording - Operation Of The Recording Acts On Quitclaim Deeds

Michigan Law Review

A conveyed two specific lots in Harris County to B. Before that deed was recorded, and while the lots were still vacant, A conveyed several specific tracts of land to C and added a blanket clause of "all other lands and interest in lands belonging to A in Harris County"; C made a like conveyance to D; D conveyed the two specific lots in question to E by warranty deed; E conveyed the two lots to plaintiff by warranty deed sixteen years after the deed to C. All the deeds in the second chain of title were …

Corporations-Trust Indenture-Bond And Indenture Provisions Giving Notice To Security Holders Of Limitations Upon Right To Sue

Michigan Law Review

In a recent comment in this Review it was pointed out that many corporate bonds contain a clause referring the bondholder to the trust indenture, under which the bonds are issued, for a description of his rights with respect to the bond. The main purpose of this reference clause is to give the holder notice of the limitations upon his right to sue either at law upon the bond or in equity upon the security. These limitations, whatever they may be, are generally too numerous to reprint on the bond, and hence they are found only in the indenture. One …

Wills - Statute Of Nonclaim As Bar To Contingent Claim

Michigan Law Review

Plaintiff, the receiver of an insolvent state bank, filed a claim against the estate of deceased who had been a stockholder in the bank. The estate had been closed for twelve years when the claim was filed, the bank not having become insolvent until eight years after the decedent's death. The state constitution provided double liability for the stockholders of the bank to its creditors. Defendant urged that the claim was barred by the statute of nonclaim. Held, the claim is not barred, for the constitutional liability was not a "claim or demand, contingent or absolute," against the stockholder's …

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 …

Foreign Enforcement Of Actions For Wrongful Death, William H. Rose

Michigan Law Review

Actions for wrongful death have a long history in the common law. Homicide was once a private matter giving rise to the blood feud and later to the wergild, whereby a money substitute replaced private warfare. With the development of criminal law the crown took jurisdiction over all killings. At a time when all felonies carried with them the death penalty, forfeiture of chattels and escheat of lands, the right to sue for wrongful death was scarcely of practical importance. This was especially so since felony included negligent killing, and even an accidental killing required the king's pardon if …

Are Unfair Methods Of Competition Actionable At The Suit Of A Competitor?, Grover C. Grismore

Michigan Law Review

The steps which have recently been taken, both through federal and state legislation, to regulate trade practices by outlawing what have been denominated "unfair methods of competition" have brought to the fore a problem that has vexed lawyers and legal writers for a long time. The question is whether a competitor who has been injured as a result of a rival's use of one of the condemned methods of competition can maintain any action either at law or in equity against the wrongdoer. Contrary to what has always been the practice in drafting so-called "anti-trust" laws, the legislation dealing with …

Conflict Of Laws - Federal Employers Liability Act - Jurisdiction Of State Courts Over Foreign Causes Of Action Between Nonresident Parties, H. F. B.

Michigan Law Review

The historical classification of actions for personal injuries as transitory imposes no limitation upon the prosecution of foreign suits, either by reference to the residence of the parties or the place in which the action arises. Whenever jurisdiction of the person of the defendant is obtained, the power to hear and determine this type of tort action inheres in every court having jurisdiction of the subject matter. An extreme application of the doctrine of the transitory character of personal actions is not infrequently permitted under the statutes as to venue, wherever suits between parties, all of whom are nonresidents of …

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.

Aliens-Right Of Illegally Present Alien To Sue-Tortsplaintiff's Violation Of Statute

Michigan Law Review

The plaintiff was injured when struck by an automobile operated on the public way by defendant Long. He brought two suits in tort, one against Long, the other against Adamski, the owner of the car. Defendants contested his right to sue on the ground that he was in the country admittedly in violation of the immigration laws. They offered the further objection that his illegal presence made him a trespasser on the highway, and hence, under the Massachusetts doctrine, he was ineligible to maintain a suit arising from mere negligence. Held, plaintiff's unlawful residence in the country was no …

Penalties As Affected By Good Faith Litigation, Robert E. Hardwicke

Michigan Law Review

There are many state laws, as well as the so-called National Emergency Acts and other federal laws, providing for the imposition of penalties for the violation of a statute, or an order or regulation of a board, commission, or executive officer. Under, the National Industrial Recovery Act, sec. 3 (f), penalties are fixed for the violation of codes promulgated thereunder. In many instances the penalties are cumulative, each day's violation being a separate offense.

The primary question here to be discussed is whether good faith litigation as to the validity of such a law, code, order or similar regulation gives …