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In Taylor v. Neville, cited in Buxton v. Lister (1746) 3 Atk. 383, Lord HARDWICKE ordered specific performance of an installment contract for the sale of 800 tons of iron. That case, without any modern decisions in support however, has been cited and defended as law. Pomeroy, Cont. (2d ed.) $ 15; Story Eq. Juris. (13th ed) $ 718. But it has been criticised. Pollard v. Clayton (1855) 1 K. & J. 462; Fry on Spec. Perf. (3d ed.) $67. Inadequacy of legal remedy consists in inadequacy of money as compensation, and not in the difficulty of estimating the amount. The negative covenant does not increase the jurisdiction of equity. The court rests also on the fact that the subject-matter of the contract is identified; but clearly that is not enough. EVIDENCE-RECORDS OF BOARD OF HEAlth. In an action on a life insurance policy, in order to impeach statements made in the application for the policy, the records of the board of health of a city, kept pursuant to the requirements of a general public health law of a State, were offered in evidence. Held, they were inadmissible. Beglin v. Metropolitan Life Insurance Co. (1903) 173 N. Y. 374.
To constitute a register a public document, within the common law rule of evidence making public records admissible, it must not only be kept pursuant to legal mandate but it must be open to the general public for inspection, verification and if need be contradiction. These circumstances give it credibility. Sturla v. Freccia (1880) L. R. 5 App. Cas. 623; Evanston v. Gunn (1878) 99 U. S. 660, 666. They did not appear in the case under discussion, the statute in question being a police regulation, Davis v. Supreme Lodge (1900) 165 N. Y. 159. The fact that the statute provided in terms that the records should be prima facie evidence of the facts therein stated does not warrant the presumption that the legislature intended to change the common law rule in private controversies. Plank Road Co. v. Harrison (1854) 16 Ill. 81. INSOLVENCY - FRAUDULENT CONVEYANCE-IMPROVEMENTS ON WIFE's LAND. C., in building a house on his wife's land, contracted with H. for materials. When the contract was made, C. was solvent, but the court found it a reasonable conclusion for the circumstances that he must have gone ahead knowing that the work would render him insolvent. Though the wife knew of the transaction she did not disclose her ownership until the improvements were completed. C. became insolvent. Held, H. could charge the land by creditor's bill with the value of the improvements. Brand v. Connery (Mich. 1902) 92 N. W. 784;
As gratuitous improvements on another's land are treated as gifts, the case is within the general principle that a voluntary conveyance which deprives a debtor of the means of paying his debts is void as to creditors, regardless of the moral character of the debtor's motive. Bump on Fraudulent Conveyances, $ 253. Even though the wife took no active part in the transaction she could not take the benefit of it as against the defrauded creditor, Hitchcock v. Kiely (1874) 41 Conn. 611 ; and permanent improvements on her land may be reached by creditor's bill. Humphrey v. Spencer (1892) 36 W. Va. 11; contra, McFerrin v. Carter (Tenn. 1874) 3 Baxt. 335. INSURANCE-BLANKET AND SPECIFIC POLICIES - PRORATING Loss. Property consisting of several items was insured under several policies, some blanket and some specific. Each policy provided that the company should not be liable for a greater proportion of the loss than that which the amount of the policy bore to the whole insurance on the described property. Some of the items only were destroyed. Held, to find this proportion on the first item, the whole amount of the blanket insurance was to be taken, and on the succeeding items such amount less the liability on the previous items, the items to be taken in the order of greatest loss. Schmaelöle v. London & L. Fire Ins. Co. et al. (Conn. 1903) 53 Atl. 863.
There is little authority on this question. Most of it is contra to the principal case, holding that the blanket should be turned into spe
cific policies before apportioning the loss. None of the courts, however, give any reason for this position. Blake v. Ins. Co. (Mass. 1858) 12 Gray 265 ; Chandler v. Ins. Co. (1898) 70 Vt. 562 ; Lesure Co. v. Ins. Co. (1897) 101 Ia. 514. But by the terms of a blanket policy the full amount attaches to each item, and therefore the doctrine of the principal case, and of those in accord, basing the decisions upon the terms of the contract, seems the sounder view. Page v. Sun Ins. Co. (1896) 74
INSURANCE - MARINE—CONSTRUCTIVE Total Loss. A policy of marine insurance provided that memorandum articles should be free of particular average and that there could be no abandonment. The cargo, memorandum articles, sank. Part was recovered in a damaged condition and sold, but the amount realized was less than the cost of recovery. Held, there was a constructive total loss and the insurers were liable. Devitt v. Ins. Co. (1902) 173 N. Y. 17.
Authorities are conflicting as to whether, in the case of memorandum articles free from particular average, a constructive total loss will render the insurers liable or whether there must be an actual total loss. The weight of authority is in conflict with the doctrine of the principal case. Washburn Co. v. Ins Co. (1900) 179 U. S. I; Williams v. Ins. Co. (1850) 31 Me. 455; Gould v. Ins. Co. (1868) 20 La. Ann, 259. The same rule as laid down in Murray v. Hatch (1810) 6 Mass. 465, does not appear to be changed by the cases cited in the principal case. Furthermore, to have a constructive total loss abandonment or notice of abandonment is necessary. Arn. Ins. $ 1091 ; Kaltenbach v. Mackinzie (1878) 3 C. P. D. 467. Hence the clause providing that there could be no abandonment would seem to show that the intention of the parties was for the insurers to be liable for an actual total loss only. Insurance-LEGAL Execution of Insured. The insured in a policy of life insurance was legally executed. Held, the beneficiaries could not recover the amount of the policy. Burt v. Union Central Life Ins. Co. (1902) 187 U. S. 362.
A policy providing expressly that a sum of money shall be paid to the beneficiary or to the insured's estate in case the insured is legally executed would be, as to that condition at least, void as against public policy; and therefore if the law will not permit such an express contract it clearly cannot allow recovery on an implied one to the same effect. Ritter v. Mutual Life Ins. Co. (1898) 169 U. S. 139; Hatch v. Same (1876) 120 Mass. 550. "The law in England is the same. Amicable Society v. Bolland (1830) 4 Bligh N. R. 194. But a different result would be more logical in jurisdictions where in the absence of an express provision the suicide of the insured is no defence. Fitch v. Am. Pop. Life Ins. Co. (1875) 59 N. Y. 557; Kerr v. Minn. Mut. Ben. Ass'n (1888) 39 Minn. 174. LANDLORD AND TENANT-DUTY TO REPAIR - INJURY TO THIRD PARTY. Plaintiff was injured by falling through a decayed platform leading from a railroad station to a hotel. Defendant, the lessor of the premises, had covenanted to make outside repairs, and there was evidence that he knew of the defect and that it existed at the time the lease was made. Held, the defendant's liability as owner for defects in his premises was not extinguished by the lease but was continued by his covenant to repair. May v. Ennis (1903) 79 N. Y. Supp. 896.
The rule is so laid down in numerous dicta and some decisions. Shearm. and Redf. on Negl. $ 708; Nelson v. Liverpool Brewing Co. (1877) 2 C. P. D. 31); Moore v. Steljes (1895) 69 Fed. 518. This is sometimes put on the anomalous ground that circuity of action is thereby avoided. Payne v. Roger (1794) 2 H.Bl. 350; City of Lowellv. Spaulding (1849) 4 Cush. 277The principal case takes the position, which also how ever, seems questionable, that the owner has retained such effective control of the premises as to keep him under a duty to the public to prevent injury through their disrepair. It is in accord with a dictum in Edwards
v. N. Y. & H. R. R. (1885) 98 N. Y. 245, but ignores the distinction that the defect must amount to a nuisance made in Steiger v. Van Sicklen (1892) 132 N. Y. 499 and Folsom v. Parker (1900) 31 Misc. 348. Burdick v. Cheadle (1875) 26 Ohio St. 393, and Mehr v. McNab (1894) 24 Ont. 657 narrow the rule by holding that the plaintiff, to recover, must be in the position of a stranger to the occupier. NEGOTIABLE INSTRUMENTS-CHECKS—REVOCATION BY DEATH. The defendant bank paid a check after notice of the death of the drawer. Held, the bank was liable to the drawer's estate. Pullen v. Placer Co. Bank (Cal. 1902) 71 Pac. 83.
Cases on the point are few because the bank ordinarily would refuse to pay, but the decision follows the trend of authority. Fordred v. Seamen's Savings Bank (N. Y. 1871) 10 Abb. Pr. N. S. 425; dicta in Second National Bank v. Williams (1865) 13 Mich. 282; National Commercial Bank v. Miller (1884) 77 Ala. 168; Weiand's Adm'r v. State Nat. Bank (Ky. 1901) 65 S. W. 617. In jurisdictions where a check operates as an assignment as soon as delivered a different result would be reached; Lewis v. International Bank (1883) 13 Mo. App. 202; and also where it is treated as a designation under the drawer's contract with the bank which gives the holder an indefeasible right to sue. Roberts v. Austin (1868) 26 la. 315. Elsewhere the holder of an uncertified check is properly held to have no claim against the bank. On the death of the drawer his personal representative gets the title to the deposit. On principle it would seem that he alone could give a valid order to pay. Where the bank fays without notice of the death of the drawer its protection no doubt demands a relaxation of the logical rule, but where it has notice this necessity does not exist. See 2 COLUMBIA LAW REVIEW, 171. NEGOTIABLE INSTRUMENTS—NOTICE OF DISHONOR. Between the drawing and maturity of a bill of exchange the drawer made an assignment for the benefit of creditors. The bill being dishonored, notice of dishonor was sent to the drawer but not to his assignee. Held, notice to the drawer alone was sufficient. Moreland's Adm'r v. Citizens Sav. Bank (Ky. 1903) 71 S. W. 520.
That notice to the assignee alone was sufficient was decided in Callahan v. Bank of Kentucky (1884) 82 Ky. 231, so that the rule in Kentucky is now the same as that laid down in $ 172 of the Negotiable Instrument's Law, viz. that notice may be given either to the party or to his assignee. The point has seldom come before the courts. The text writers take various views. i Pars. Notes & B. (2nd ed.) 500; Daniel, Neg. Paper $ 1002. PLEADING AND PRACTICE - APPELLATE JURISDICTION OF U. S. SUPREME Court. The jurisdiction of a circuit court of the United States was invoked solely on the ground of diverse citizenship. Held, though in the conduct of the case a federal question might have arisen, no appeal lay from the judgment of the Circuit Court of Appeals to the Supreme Court under sec. 5 & 6 of the Judiciary Act of 1891 (26 Stat. at L. 826, chap. 517). Ayers v. Polsdorfer (1903) 23 Sup. Ct. Rep. 196.
The decision defines the right of appeal in the two classes of cases which may arise where jurisdiction is invoked because of diverse citizenship. In those where constitutional questions are also involved, or prize cases or cases involving treaties, the privileges of appeal to the Supreme Court or to the Circuit Court of Appeals are mutually exclusive. In those where diversity of citizenship alone gives jurisdiction appeal must be made to the Circuit Court of Appeals. These conclusions result from previous holdings. Colorado Central Mining Co. v. Turck (1893) 150 U.S. 138; Loeb v. Columbia Twp. (1900) 179 U. S. 472. In the principal case the motion for certiorari permitted by sec. 6 of the act of 1891 was denied on the ground of laches. PLEADING AND PRACTICE-Right to SUE IN FORMA PAUPERIS. Plaintiff had made a contract with her attorney to prosecute her case on a contingent fee. She then sought to sue as a poor person. Hild, she could not,
for she was suing not only in her own interest but as trustee for the attorney, and it was not shown that he came within the statute. Feil v. Wabash Ry. Co. (C. C., E. D. Mo, 1902) 119 Fed. 490.
In New York under a similar state of facts the same result was reached in Cahill v. Manhattan R. Co. (1899) 38 App. Div. 314. And it appears to be the custom of the courts to construe these statutes strictly against the applicant. Moore v. Cooley (N. Y. 1842) 2 Hill 412. Thus it is held that an administrator cannot sue in forma pauperis though the estate is . insolvent. Mckiel v. Cutler (N. C. 1853) Busbee's Eq. 139; Smith v. Ry. (1891) 89 Tenn. 664; but see contra, C. & P. Coal Co. v. Britton (1896) 3 Kan. App. 292. Nor can the committee of a lunatic so sue, Bechtle v. Ry: (N. Y. 1894) 31 Abb. N. C. 483, nor an assignee in bankruptcy. Osborne v. Henry (1872) 66 N. C. 354. REAL PROPERTY-ADVERSE POSSESSION-INTENTION TO Hold. Adjoining property owners constructed and maintained a fence for more than twenty years upon the line of a previous fence, in the belief that it marked the true boundary between their lands. A survey revealed that the fence was not upon the boundary shown by the deeds. The property owner on whose land the fence was built brought an action of ejectment. Held, the occupant had gained title by adverse possession. Lawrence v. Washburn (la. 1903) 93 N. W. 73.
The decision is at variance with that rendered in Grube v. Wells (1871) 34 Ia. 148 on the question of the intent necessary to create a person a disseisor. The principal case holds that the belief of the occupant that the visible boundary and the boundary mentioned in the deed are identical, is sufficient to create him a disseisor, while Grube v. Wells held that coupled with such belief there must be an intention to hold the land in any event. The latter doctrine prevailed at one time in several jurisdictions; Brown v. Gay (Me. 1824) 3 Greenl. 126; Brown v. Cockerell (1858) 33 Ala. 38; but these cases have been restricted within very narrow limits by later adjudications in the same courts. Alexander v. Wheeler (1881) 69 Ala. 332; Hitching's v. Morrison (1881) 72 Me. 331. REAL PROPERTY - CONVEYANCE DEED DELIVERED TO THIRD PERSON FOR GRANTEE NOT In Esse. Plaintiff corporation claimed title to mining land under a deed executed in its favor by the original locators before plaintiff was incorporated, delivered to a promoter of the proposed corporation, and by him delivered to plaintiff after incorporation, Defendant objected to the admission of this deed in evidence. Held, plaintiff was entitled to submit the deed as prima facie evidence of title. Santaquin Mining Co. v. High Roller Mining Co. (Utah, 1903) 71 Pac. 77. See Notes, p. 276. REAL PROPERTY-LATERAL SUPPORT-NEGLIGENCE IN EXCAVATING-NOTICE. Defendant failed to notify the owner of the adjacent lot of his intention to excavate his own land. As a result of the excavation plaintiff's house was injured. Held, the failure to give notice amounted to negligence and rendered defendant liable for the injury to the house. Davis v. Summerfield (N. C. 1902) 42 S. E. 818. See NOTES, p. 274. STATUTES-PUBLIC Policy-CONSENT OF PROPERTY OWNERS. By statute the consent of property owners within fifty feet of a proposed saloon was made a condition precedent to the granting of a license for the establishment of the saloon. The plaintiff sold his consent. Held, the sale was void as against public policy. Greer v. Severson (1903) 93 N. W. 72.
By statute the consent of a majority in interest of the property owners on a proposed street railway route was made a condition precedent to the granting of a franchise, The plaintiff in error purchased such consent. Held, the sale was not against public policy. Hamilton G. & C. Traction Co. v. Parish (Ohio, 1902) 65 N. E. 1011.
The general rule is that where the consent required is to an undertaking directly affecting the public it is not a proper subject of sale. Howard v. First Independent' Church of Baltimore (1862) 18 Md. 451;
Doane v. Chicago City R. R. (1896) 160 I11. 22 ; Smith v. Applegate (1852) 23 N. J. L. 352. These cases proceed upon the theory that the function of such consent is to instruct those who are to authorize the proposed undertaking in order that they may not act contrary to the public interest. The error in the second case stated is that it treats the consent of the individual property owner solely as a weapon to be used for protection against pecuniary damage. The first case is rightly decided. TAXATION-CONSTITUTIONAL LAW-NEW YORK SPECIAL FRANCHISE TAX. N. Y. Laws 1899, c. 712, added to the subjects of taxation specified in the N. Y. Tax Law the franchise or right to construct, maintain or operate railroads, telegraph lines, etc., over or under streets or public places of any municipality. It provides that the value of the franchise and the value of the tangible property operated thereunder shall be assessed together, under the designation of a “special franchise," by the State Board of Tax Commissioners. The assessment is then to be reported to the local assessor to be placed on his roll. Held, the act is in violation of the home rule provision (Art. X. Sec. 2) of the New York Constitution. People ex rel. Metropolitan Street R. Co.v. State Board of Tax Commissioners (1903) 80 N. Y. Supp. 85. See Notes, p. 267. TORTS, MALPRACTICE-STATUTE OF LIMITATIONS. Defendant, a physician, operated on plaintiff for appendicitis. When he sewed up the incision he negligently left therein a cheese-cloth sponge. The wound did not heal, and defendant treated and advised plaintiff for about a year, when he abandoned the case. To an action brought eight months after such abandonment defendant pleaded the statute providing that an action for malpractice “can only be brought within one year after the cause of action accrues.” Held, the cause of action was not barred. Gillette v. Tucker (Ohio, 1902) 65 N. E. 865.
The court was evenly divided, the dissenting view being that the cause of action accrued when the defendant sewed up the incision without removing the sponge. But a physician who undertakes an operation assumes ordinary skill and care not only in performing the operation, but also in the subsequent necessary treatment. Williams v. Gilman (1880) 71 Me. 21. Any lack of skill and care during such subsequent treatment is malpractice, and it seems clear that for such malpractice there is a continuing cause of action during the entire period of treatment. Trusts—DEVISES TO CHARITABLE USES—WHAT IS A Public Charity. A testator made a devise in fee in trust “ to provide a home and industrial school for the orphan children of deceased Odd Fellows of the State of Kansas." Held, the devise did not create a public charity, the limitation to a defined class of beneficiaries being too narrow to bring it within the description of a charity; and the devise was void as in violation of the rule against perpetuities. Troutman et al. v. De Boissiere, etc. School Ass'n (Kan. 1903) 71 Pac. 286, reversing, on reargument, the same case in 64 Pac. 33. See Notes, p. 269.