This list includes only those cases commented upon editorially or in our Notes of Important Atchison, T. & S. F. R. Co. v. United States Barz v. Fleischmann Yeast Co. (Mo.), Proof of B. B. C. v. Wireless League Gazette (English), Boehm v. State (Wis.), Failure to Ask Prisoner if He Has Anything to Say Why Sentence Should not be Pronounced as Reversible Error, Bolivian Panama Hat Co. v. Finkelstein (N. Y.), Picketing by Labor Union Unlawful in Ab- Brown v. Pacific Mut. Life Ins. Co. (U. S. C. Brown v. Union Indemnity Co. (La.), Insurance- Bushnell v. Bushnell (Conn.), Liability of Husband for Injury to Wife Due to Husband Falling Byrnes v. City of Jackson (Miss.), Liability of Carlson v. Kansas City Traction Co. (Mo.), In Res Carples v. Cumberland Coal & Iron Co. (N. Y.), Cavanaugh v. Gerk (Mo.), Constitutional Law- Clemence v. Hudson (U. S. C. C. A.), Interstate Columbia Motors Co. v. Ada County (Idaho), In- Conway v. Southern Pac. Co. (Utah), Employee Coppage v. Kansas (U. S. S. C.), Validity of Statute Prohibiting Discharge of Employee for Membership in Trade Union, Ed. 219. Eaton v. Eaton (N. H.), Divorced Wife as One of Healy v. Chicago, M. & St. P. R. Co. (Minn.). Herrin v. Sutherland (Mont.), Flight of Aircraft case, 48. Leunis Co. v. Singer (N. J.), Admissibility in Evi- Liebman v. Auto Strop Co. (N. Y.), Distribution Lierness v. Long Island R. Co. (N. Y.), Brake- London Guarantee & Accident Co. v. Officer, In- surance-Waiver of Notice and Proof, ann. Makins v. Industrial Accident Com. (Cal.), News- paper Carrier Injured on Way Home Entitled Matter of Henry J. McGuckin (N. Y.), When In- toxication Invalidates a Will, Ed. 19. Meskiman v. Adams (Ind.), Secretary of State's Certificate not Conclusive Proof of Title to Automobile, R. D. 21. Meyer v. McNutt Hospital (Cal.), Res Ipsa Loqui- Morey v. Maine Central R. Co. (Me.), Assumption Morris v. Firemen's Ins. Co. (Kan.), Insurance- Murphy v. Hawthorne (Ore.), Automobiles-Col- Murphy v. Markis (N. J.), Effect of Divorce on National Fire Insurance Co. v. Elliott (U. S. C. New Domain Oil & Gas Co. v. Hayes (Ky.), Title of Bailor When Bailee Has the Right to Consume and Replace the Bailed Property, Nicolle v. United Auto Transportation Co. (Wash.), Orris v. Tolerton & Warfield Co. (Iowa), Driver Ozark Mutual Life Association V. Winchester (Okla.), Meaning of "Total Disability" as Used in Accident Policy, R. D. 166. Panto v. Kentucky Distilleries & Warehouse Co. Papke v. Haerle (Wis.), Admissibility in Evi- Pate Auto Co. v. Westbrook Elevator Co. (Miss.), Liability of Seller of Manufactured Article to People v. Zimmerman (N. Y.), State Regulation of Secret Societies, R. D. 166. Polk v. Cleveland R. Co. (Ohio), Contract to Em- Roedean School v. The Cornwall Aviation Co. (English), A Case Under the English Air Rudolph v. Coca Cola Bottling Co. (N. J.), Neg- Ruocco v. Logiocco (Conn.), Competency of Feeble- Minded Person to Testify, R. D. 364. Rutherford v. Royal Ins. Co. (U. S. C. C. A.), Schumer v. Caplin (N. Y.), Violation of Rule of Setzkorn v. City of Buffalo (N. Y.), Master and Shaw v. Chicago & A. R. Co. (Mo.), Death-Action Staker v. United States (U. S. C. C. A.), Fumes State v. Kelley (Mo.), Cause Not Removable After State v. Krauss (Ohio), Gaming-Vending Ma- S. W. Strauss Co. v. Felson (N. Y.), Statute of Tasin v. Bastress (Pa.), Beneficiaries-The Law- Union Indemnity Co. v. Hossley (Miss.), Insur- Virginia Iron, Coal & Coke Co. v. Dickerson (Va.), Von Crome v. Travelers' Ins. Co. (U. S. C. C. A.), Wagoner v. Fidelity & Casualty Co. (N. Y.), Op- Age as Avoiding Insurance Policy, R. D. 92. Warburton v. Perkins (Md.), Mortgages-Priority White v. City of Casper (Wyo.), Speed Regula- White v. United States (U. S. S. C.), Aunt En- Williams & Norgate v. B. B. C. (English), Broad- casting-Whether Libel or Slander, R. D. 204. Wingersky v. E. E. Gray Co. (Mass.), Effect of Youngstown & O. R. R. Co. v. Halverstodt (U. S. C. C. A.), Brakeman Switching Empty Cars Engaged in Interstate Commerce, R. D. 311. Central Law Journal St. Louis, January 5, 1926 TITLE OF BAILOR WHEN BAILEE HAS THE RIGHT TO CONSUME AND REPLACE THE BAILED PROPERTY The case of New Domain Oil & Gas Company v. Hayes (202 Ky. 377, 295 S. W. 715, 38 A. L. R. 172), holds that the gratuitous lending of articles of personal property to be used in connection with the drilling of a well, and consumed and replaced in kind by the bailee, passes title to the bailee, and, therefore, the lender has no title to replacements as against a vendee of the bailee. The court refers to Chapter 4 of Story on Bailments in which the author divides "Gratuitous Loans" into "Commodatum" and "Mutuum, and points out the difference between the two, which is that a commodatum loan is one wherein the borrowed article is to be returned in specie, while one coming within a class of mutuum is a loan or a borrowing for the purpose of consumption by the borrower, or which he may consume in its use, and to be replaced by him in kind at the termination of the bailment. In either case the risk of loss by accident attaches to the depositary or mutuary, since he has the control and dominion over the property. The court declares that, "In the case where a chattel is involved the transaction is a sale with the right of either returning the same property or to replace it, and in which case the mutuary not only obtains the title to the property, but assumes all risk of its loss." In United States Supply Co. v. Andrews (71 Okla. 293, 176 Pac. 967), it is held that where casing for an oil well was delivered under an agreement that the casing was to be returned unless a paying oil or gas well was produced, or the bor rower desired to use the casing in drilling another well, in which event he was to purchase the casing at an agreed price, the agreement was not a sale, but merely an agreement to purchase. The court pointed out that the casing was not to be purchased, unless a paying oil or gas well should be produced and should be used for producing oil or gas by the first party, or in case the first party desired to use such casing in any other well to be drilled for oil or gas. It was declared that under this contract the borrower might have returned the identical casing at any time before he used it in a producing well, or in drilling another well. In Gilbert Book Co. v. Sheridan (114 Mo. App. 332, 89 S. W. 555), the transaction was held to constitute a bailment, where the contract provided that the bailee was to write a certain text book for the bailor, and the latter was to furnish him with certain law reports, which, if the text book was completed, were to be paid for out of the royalties from the sale thereof. The contract in this case denominated the transaction a loan, and the court pointed out that the evident purport of the whole feature was to the effect that the Gilbert Book Company loaned the books, up to the time of the completion of the editorial work, when they were to become the property of the bailee, and he was to be charged by the book company with the regular price thereof which was to be settled by deductions from the royalties coming to the bailee. In Federal System of Bakeries v. Miller (92 W. Va. 442, 114 S. E. 749), there was a contract constituting a license to use a certain patented baking system, including ovens and other appliances incorporated in the invention, which contained a provision retaining title in the licensor, not only to the original article, but to any renewals, replacements, replaced or repaired parts. It was held that this constituted a bailment with title to the prop erty in the licensor. The court stated that there were no terms or provisions in the contract importing any intent or purpose to vest title, legal or equitable, in the licensee, or any other rights save that of custody and use. Likewise in the case of Brown v. Cuozzo (89 App. Div. 619, 85 N. Y. Supp. 759), in which it appeared that a sleigh was loaned upon the agreement of the borrower that if he broke it, he would pay for it. This transaction was held not to constitute a sale, the sleigh having been broken by the borrower and he repairing it and offering to return it. NOTES OF IMPORTANT DECISIONS RECOVERY OF MONEY PAID ON FORGED CHECK BY DRAWEE BANK TO INNOCENT HOLDER.-In First State Bank & Trust Co. v. First National Bank of Canton (1924), 145 N. E. 382, the Supreme Court of Illinois, although, in general accepting the rule of Price v. Neal, 3 Burr. 1354, endeavors to engraft upon that rule the following corollary: "But where the holder of a forged check has not suffered or may avoid loss, he ought not to be permitted to profit by payment to him by the drawee." In support of this corollary is cited First National Bank of Quincy v. Ricker, 71 Ill. 439, 22 Am. Rep. 104. But it is to be noticed that the latter case stresses the fact that the teller of the bank, having doubts about the signature, told the holder that he would pay it only on condition that the holder would indorse it, and that thereupon the holder did indorse it and receive the money thereon, and the further fact of absence of good faith in the holder. From this it is seen that First National Bank of Quincy v. Ricker, supra, is unsatisfactory precedent for the holding in the principal case, the facts not being similar. Payment by the drawee is, in effect, an executed acceptance. No such exception as the principal case attempts to engraft upon the rule in Price v. Neal is recognized by the law merchant or by the uniform negotiable instruments law, and no good reason for any such exception seems to exist. See also more extended note on this case, by Professor Louis M. Greeley, in 20 Illinois Law Review, 160.-Ralph S. Bauer, De Paul University Law School. PRESENCE OF GLASS IN BREAD JUSTIFIES FINDING OF NEGLIGENCE.-The Court of Errors and Appeals of New Jersey, in De Gront v. Ward Baking Co., 130 Atl. 540, holds that the presence of the brass base of an electric light bulb and broken pieces of glass in a baked loaf of bread, so imbedded therein as to lead to the inference that it entered the dough in the mixing or other preparation, justifies a finding of negligence in the baker. "It is next claimed that there was no proof of negligence. It was shown that the socket portion of a Mazda electric light bulb, similar to those of other bulbs in use in appellant's bakery, together with a number of small pieces of glass, were found upon examination to be imbedded in the bread. The history of the loaf from its delivery to the grocer to the time when it was enten affords reasonable ground to believe that the bulb and glass did not enter the loaf in that period, and their position in the bread itself afforded full legal justification for the jury's conclusion that they were present as part of the process of mixing and baking, and not through accidental contact from the outside after manufacture. The presence of the foreign substances in the loaf under the circumstances was sufficient to raise an inference that they were there through the negligence of the appellant. Bahr v. Lombard Ayres Co., 53 N. J. Law, 233, 21 A. 190, 23 A. 167." SKILL REQUIRED OF TREE SURGEONS.The Georgia Court of Appeals, in Porter v. Davey Tree Expert Co., 129 S. E. 557, in defining the skill necessary to be exercised by tree surgeons, said: "The obligation which the law imposes upon persons performing medical, other professional and specially skilled services, is that they shall exercise a reasonable degree of care, skill, and ability, which generally is taken and considered to be such a degree of care and skill as, under similar conditions and like surrounding circumstances, is ordinarily employed by their respective professions. On a plea of recoupment, setting up a failure to exercise proper care and skill by such a plaintiff, suing to recover upon contract the value of his services, the burden of sustaining such a plea is on the defendant. Block v. Happ, 144 Ga. 145, 146 (1, a, 2), 86 S. E. 316; Fincher v. Davis, 27 Ga. App. 494 (1, 2, 5), 108 S. E. 905; Chapel v. Clark, 117 Mich. 638, 76 N. W. 62, 72 Am. St. Rep. 587, 42 L. R. A. (N. S.) 125, 126. This rule apparently applies to the implied duties of such a plaintiff, whether the defense is based on a tort for the negligent performance of contractual duties, or on an alleged breach of the contract itself." |