Imágenes de páginas
PDF
EPUB

482, 484; Arthur v. Hughes, 4 Beav. 506; Penny v. Watts, 2 Phil. Ch. Cas. 153; Hall v. Cushing, 9 Pick. 395; Dorr v. Wainwright, 13 id. 328; Towne v. Ammidown, 20 id. 540; Newcomb v. Williams, 9 Metc. 525; Conkey v. Dickinson, 15 id. 51; Prior v. Talbot, 10 Cush. 1; Miller v. Congdon, 14 Gray, 114; Adams on Equity, $251. "And it may be here observed," says Williams on Executors, 1796, pt. 4, bk. 2, ch. 2, § 2, "that when personal property is bequeathed to executors, as trustees, the circumstance of taking probate of the will is in itself an acceptance of the particular trusts. Therefore where the will contains express directions what the executors are to do, an executor who proves the will must do all which he is directed to do as executor, and he cannot say, that though executor, he is not clothed with any of those trusts." Lewin on Trusts, 156. Decree affirmed. Colt v. Colt. Opinion by Matthews, J.

[Decided May 5, 1884.]

ESTOPPEL-CONVICTION BY MILITARY COMMISSIONSUIT TO RECOVER FINE-CANNOT ATTACK JURISDICTION.-One who has been convicted and fined by military commission for defrauding the government, and has conceded that his debt to the government exceeds the fine, and been given credit on the debt to this amount, cannot subsequently attack the jurisdiction of the court which convicted him in an effort to recover the fine from the government. The claim of appellant is entirely without merit. Under the findings of fact, which this court must accept as true, it is unnecessary to consider any question involving the authority and jurisdiction of the military commission before which the claimant was arraigned, and by means of which the government compelled him to pay into its treasury the sum of $90,000; for if it were conceded that Carver was not subject to be tried in that mode, and that the entire proceedings against him were illegal and void, it yet appears that after his release he voluntarily conceded that there was justly due from him to the government a larger sum than he had paid; and upon the basis of that concession he secured a credit upon his accounts for the amount he had so paid, receiving out of the balance admitted to be due from and chargeable to him the sum of $1,414.45. We can imagine no reasou why it was not competent for him, without reference to the legality of the proceedings before the military commission, to come to an understanding with the authorized officers of the government, substantially upon the basis suggested by him and acceded to by them. Even if the original payment to the government was under duress, he had the right subsequently to the agree, as he did, that what government coerced him to pay was in fact fairly due And when, upon a proper settlement of his accounts. by way of supplement to and in execution of that agreement, he accepted as compensation for his services, or as a gratuity, a portion of the balance justly due from him, he is estopped to raise any question as to the legality of the methods employed to collect from him what should have been paid without compelling the government to expend for its collection the large

decision within the meaning of those terms as used in
sections 702 and 1911 of the Revised Statutes regulat-
ing writs of error and appeals to this court from the
Supreme Court of the Territory. Section 702 provides
for the review of final judgments and decrees by writ
of error or appeal, and section 1911 regulates the mode
and manner of taking the writ and procuring the al-
lowance of the appeal. The use of the term "final de-
cisions" in section 1911 does not enlarge the scope of
the jurisdiction of this court. It is only a substitute
for the words "final judgments and decrees" in sec-
tion 702, and means the same thing. The dismissal of
the writ was a refusal to hear and decide the cause.
The remedy in such a case, if any, is by mandamus to
compel the court to entertain the case and proceed to
its determination, not by writ of error to review what
has been done. Ex parte Bradstreet, 7 Pet. 647; Ex
parte Newman, 14 Wall. 165. Dismissed. Crawford v.
Haller. Opinion by Waite, C. J.
[Decided May 5, 1884.]

UNITED STATES CIRCUIT AND DISTRICT
COURT ABSTRACT.*

SHIP AND SHIPPING-LIEN FOR ADVANCES-NONE IN FAVOR OF CO-OWNER.-The plaintiffs, citizens of New York, bring this bill against certain citizens of States other than New York for an adjustment of accounts between the parties.as common owners of the schooner Jennie B. Gilkey. The plaintiffs allege that they made certain advances for the benefit of the defendants, to enable the vessel to perform her last voyage and earn her freight; and made certain other payments in defending and compromising an action brought against the owners in New York for the wages of the mate. They now move for a preliminary injunction to restrain the defendants from receiving from the registry of the District Court their several shares of the proceeds of the vessel, amounting, after payment of the privileged debts, to about $2,900. The plaintiffs admit that they have no privilege in admiralty, nor any right as creditors at large, having recovered no judgment, to intercept these proceedings; but they insist that in equity one part owner has a lien upon the ship for advances which he may have made for supplying her needs for a voyage, or for the benefit of his coowners in any other respect. This brings up the question whether the decision of Lord Hardwicke in Doddington v. Hallett, 1 Ves. Sr. 497, is to be taken as law here. It was long since overruled in England. See Ex parte Young, 2 Ves. & B. 242, and 2 Rose, 78, note; Ex parte Harrison, id. 76; Ex parte Hill, 1 Madd. 61; Green v. Briggs, 7 Hare, 279, per Wigram, V. C.; Lindl. Partn. (4th Eng. ed.) 67. In this country it has been held in the courts of New York and Kentucky to announce a sound rule of equity, Mumford v. Nicoll, 20 Johns. 611; Hewitt v. Sturdevant, 4 B. Mon. 453; Pragoff v. Heslep, 1 Am. Law Reg. 747. In some other courts the later English rule has been thought the more sound. Merrill v. Bartlett,6 Pick.46; Patton v. The Randolph, Gilp. 457; 3 Kent, 40; Story, Partu., §§ 442-444, and notes; Story Eq. Jur., § 1442, and note. In this CirOpin-cuit two judges of the Supreme Court have said that a

sum that was allowed Moulton for his services. The

judgment is affirmed. Carver v. United States. jou by Harlan, J.

[Decided May 5, 1884.]

JURISDICTION-" FINAL JUDGMENT OR DECISION R. S., SECS. 702, 1911-MANDAMUS.-This motion is granted on the authority of Insurance Co. v. Comstock, 16 Wall. 258, and Railroad Co. v. Wiswall, 23 id. 507. An order of the Supreme Court of Washington Territory dismissing a writ of error to a District Court, because of the failure of the plaintiff in error to file the transcript and have the cause docketed within the time required by law, is not a final judgment or a final

part owner has no lien or right of priority in equity upon the ship itself for a balance of account which may be due him. Macy v. De Wolf, 3 W. & M. 193; The Larch, 2 Curt. C. C. 427, 434. Cir. Ct., Dist. Mass. April 28, 1884. The Jennie B. Gilkey. Opinion by Lowell, J.

[blocks in formation]

b

ered by our courts, carries the construction given it by the courts of that country. In Elmendorf v. Taylor, 10 Wheat. 159, Chief Justice Marshall emphasized this doctrine by asserting broadly that "no court in the universe which professed to be governed by principle would undertake to say that the courts of Great Britain or of France, or of any other nation, had misunderstood their own statutes, and therefore erect itself into a tribunal which should correct such misunderstanding." A patent issued successively by Canada and the United States, and afterward declared void ab initio by a Canadian court, does not by that fact expire in this country, but will be regarded as if it had never existed in Canada at all." Cir. Ct., Dist. N. J. March, 1884. Bate Ref. Co. v. Gillett. Opinion by Nixon, J.

SHIP AND SHIPPING-DEMURRAGE

-REASONABLE

TIME-USAGE-STIPULATION.-Where goods are taken on freight consigned to a consignee at a particular wharf, and there is either no bill of lading or the time for delivery is not specified, and there is no contract on the subject, held, that the obligation in respect to delivery is that each party shall use reasonable diligence in performing his part to effect the delivery; and that in the absence of any special usage of the port or of the trade neither will be liable to the other for any detention of the vessel arising from any cause over which he has no control, and for which he is not in fault. Howe v. Woodruff, 20 Fed. Rep. 136, 137; Aylward v. Smith, 2 Low. 192. Where the bill of lading is silent as respects the time in which the cargo is to be delivered, the only ground for holding the consignee liable is some fault on his part in the acceptance of the cargo. Rodgers v. Forresters, 2 Camp. 483; Burmester v. Hodgson, id. 488. If on the other hand the bill of lading limits the time within which the delivery is to be made, that limitation is construed in maritime law as a stipulation for the benefit of the ship, designed to cast upon the consignee all risk of detention beyond the stipulated period; and no custom of the port would be allowed to override such a stipulation. Randall v. Lynch, 2 Camp. 352; Philadelphia & R. R. Co. v. Northam, 2 Ben. 1; Gronstadt v. Witthoff, 15 Fed. Rep. 265, 271. It is in the power of the vessel always to provide against any loss on her part through detention from accidental causes at the place of discharge, if such be the intention of the parties, by inserting in the bill of lading the time within which the cargo must be received, or by other familiar provisions, such as that the vessel shall have "dispatch," or" quick dispatch," either of which would cast the risk of delay upon the consignee. Smith v. Sixty Thousand Feet of Yellow Pine Lumber, 2 Fed. Rep. 396; Thacher v. Boston Gas-Light Co., 2 Low. 361; Davis v. Wallace,3 Cliff. 123; Kearon v. Pearson, 7Hurl. & N.386; One Thousand One Hundred Tons of Coal, 12 Fed. Rep. 185; Choate v. Meredith, 1 Holmes, 500; Bjorkquist v. Steel Rail, 3 Fed. Rep. 717. But if none of these precautions are taken by the carrier I see no ground upon which the carrier can charge the consignee with a breach of duty where the detention has arisen from causes of which neither has any control. In the case of Ford v. Cotesworth, L. R., 4 Q. B. 127, Blackburn, J., says (page 133): "Where the act to be done is one in which both parties to the contract are to concur, and both bind themselves to the performance of it, there is no principle on which, in the absence of a stipulation to that effect, either expressed by the parties or to be collected from what they have expressed, the damage arising from an unforeseen impediment is to be cast by law on the one party more than on the other; and consequently we think that what is implied by law in such a case is not that either party contracts that it shall be done within either a fixed or a reasonable time, but each contracts that he shall use

[ocr errors][ocr errors]

* *

reasonable diligence in performing his part. We think that the contract which the law implies is only that the merchant and ship-owner should each use reasonable dispatch in performing his part. * * The delay having happened without fault on either side, and neither having undertaken by contract, express or implied, that there should be no delay, the loss must remain where it falls." Clifford, J., in the case of Davis v. Wallace, supra, intimates the same opinion. "Delay beyond that," he says (i. e., the time necessary for unloading), "if occasioned by natural cause over which the defendant has no control, may perhaps be excused in a case where there is no express contract as to time." See Carsanego v. Wheeler, 16 Fed. Rep. 248; Cross v. Beard, 26 N. Y. 85. Dist. Ct., S. D. N. Y. April 16, 1884. Fish v. One Hundred and Fifty Tons of Brown Stone. Opinion by Brown, J.

SHIP AND SHIPPING-DAMAGES-RECOUPMENT-DIVISION OF COSTS.-Where a schooner was lost in a collision with a steamer, occasioned by the fault of both, and the damages were to be divided equally between the owners of the two, held, that from the damages otherwise due to the owners of the schooner, the owners of the steamer might recoup half of the damages recovered against the steamer by the owners of the cargo that was lost with the schooner, because each party is liable for that loss, according to the Atlas, 93 U. S. 302. A recoupment of this sort has been allowed in several cases. See The Eleonora, 17 Blatchf. 88; Leonard v. Whitwill, 10 Ben. 638; The C. H. Foster, 1 Fed. Rep. 733; In re Leonard, 14 id. 53; Atlantic Ins. Co. v. Alexandre, 16 id. 279; The Canima, 17 id. 271. That one vessel was wholly lost does not prevent a contribution in case of mutual fault. The North Star, 106 U. S. 17; 1 Sup. Ct. Rep. 41. (2) Decree that costs be equally divided, in a case where damages were equally divided, even though the libellant's vessel was wholly lost. The particular circumstance of each case must govern. I adhere to a remark that I made incidentally in The Mary Patten, 2 Low. 196, 199, that the general rule, so far as there can be one, should, in the absence of particular circumstances, give a libellant in a cause of collision his costs, though he recover but half his damages, where the loss is all on one side. Such has been the practice in the first and second Circuits of late years. The Austin, 3 Ben. 11; The Baltic, id. 195; The Paterson, id. 299; The City of Hartford, 7 id. 510; The William Cox, 3 Fed. Rep. 645; The Excelsior, 12 id. 195; The Eleonora, 17 Blatch f. 88. Cir. Ct., Dist. Mass. April 29, 1884. The Hercules. Opinion by Lowell, J.

[blocks in formation]

DAMAGES -SHERIFF-ESCAPE- JUDGMENT PRIMA FACIE EVIDENCE.-In an action on the case against a sheriff for permitting the escape of a party arrested on original writ or mesne process, the measure of damages is the damages actually sustained, and the amount of the judgment recovered in the action in which the escape is permitted is only prima facie evidence, open to rebuttal by counter evidence adduced by the sheriff. Patterson v. Westervelt, 17 Wend. 543; Brooks V. Hoyt, Pick. 468; Eaton v. Ogier, 2 Me. 46; State Treasurer v. Weeks, 4 Vt. 215; Danforth v. Pratt, 9 Cush. 318; Arden v. Goodacre, 11 C. B. 371; Shuler v. Garrison. 5 W. & Serg. 455; Smith v. Hart, 1 Brev. 146; Spafford v. Goodell, 3 McLean, 97; Blodgett v. Town of Brattleboro, 30 Vt. 579; Hootman v. Shriner, 15 Ohio St. 43. Sheldon v. Upham. Opinion by Durfee, C. J.

[Decided April 5, 1884.]

*To appear in 14 Rhode Island Reports.

of making reasonable exertions to render the injury as
light as possible. Where this duty exists, the labor or
expense which its performance involves is chargeable
to the party liable for the injury thus mitigated. Long
v. Clupp. Opinion by Cobb, C. J.
[Decided May 28, 1884.]

BY VEN

STOPPAGE IN TRANSITU-GARNISHMENT
DEE'S CREDITORS.-The law is well settled that the

right of stoppage in transitu arises upon the discovery
by a vendor, after sale on credit, of the insolvency of
the vendee, and the right continues until the goods
have reached the vendee, and the delivery to him or
his agent is complete. Hutch. Carr., § 499; O'Neil v.
Garrett, 6 Iowa, 480; Calahan v. Babcock, 21 Ohio St.
281; Reynolds v. Boston & M. R. Co., 43 N. H. 580;
Sutro v. Hoile, 2 Neb. 186; 2 Redf. Rail. 132. This
right is based upon the just and equitable rule of law
that the property of one man shall not be taken to pay
another man's debts, and is recognized in all civilized
countries. We think it is equally well settled that
this right cannot be impaired or extinguished, during
its existence, by the acts or interference of a third
party, but will follow the goods and attach to them.
Hence it is held that the seizure of such goods by an
officer, under legal process in favor of some other cred-

STATUTE OF FRAUDS-AGENT TAKING TITLE TO LAND IN OWN NAME-PAROL AGREEMENT TO RECONVEYDAMAGES.--A.and B.made a verbal agreement by which B., as A.'s agent, was to buy certain land, take the deed in his own name, hold it till A. was ready to pay for it, and then, retaining a part of the land for his services, convey the rest to A. The purchase was made by B., who refused to carry out the contract, whereupon A. sued in assumpsit for damages arising from the breach. B. pleaded under the statute of frauds that the agreement was not in writing, to which plea A. demurred. Held, that the plea was good, and that the action could not be sustained. The fact that the defendant brought the estate for the plaintiff, as his agent, does not make him any the less its legal owner, and therefore his agreement to convey the greater part of it to the plaintiff for what he paid for the whole of it is, notwithstanding the agency, an agreement to sell the greater part of it for the price which the defendant paid for the whole of it. There are numerous cases which support this view. Bartlett v. Pickersgill, 4 East, 577, n.; Botsford v. Burr, 2 Johns. Ch. 406, 409; Lathrop v. Hoyt, 7 Barb. S. C. 59, approved in Wheeler v. Reynolds, 66 N. Y. 227, 236; Bauman v. Holzhausen, 26 Hun, 505; Levy v. Brush, 45 N. Y. 589; Harrison v. Bailey, 14 S. Car. 334; Jackman v. Ring-itor, does not destroy the right; but that the vendor land, 4 W. & Serg. 149; Payne's Admr. v. Patterson's Admrs., 77 Penn. St. 134; Howland v. Blake, 7 Otto, 624; Wetmore v. Neuberger, 44 Mich. 362; Horsey v. Graham, L. R., 5 C. P. 9. In most of these cases the attempt was to charge the purchaser as trustee, and the attempt failed, but in all of them the contract was recognized as a contract for the sale of land, or for the creation of an interest or trust in land, and therefore ineffectual because not in writing. Spencer v. Lawton. Opinion by Durfee, C. J. [Decided April 12, 1884.] ·

NEBRASKA SUPREME COURT ABSTRACT.

ATTORNEY-COLLECTING MONEY-SUMMARY POWER OF COURT.-The jurisdiction of the District Court to compel an attorney to pay money into court which had been collected by the attorney for the client cannot be questioned; but when the client has received all the money to which he is entitled, the power of the District Court ceases, and it cannot in a summary way compel the attorney to pay money into court for other parties claiming a share in the fees retained by the attorney. That question must be settled by an action between themselves. Baldwin v. Foss. Opinion by Reese, J.

[Decided May 28, 1884.]

TRESPASS-ASSUMING TO ACT AS CONSTABLE-SALE BY, GIVES NO TITLE.—(1) When a private person, without authority or appointment from any source, assumes to act as a constable, and seizes the chattels of another, he becomes a trespasser; and it is no difference to him that he then and there had in his possession an execution against such person issued by a justice of the peace. (2) A sale by such unauthorized person of such chattels, as upon execution, conveys no title. (3) The plaintiff in such execution cannot be held responsible for the acts of such person in seizing or converting such chattels, unless he requested or authorized such seizure in fact, or in some way ratified the same. McMillan v. Rowe. Opinion by Cobb, C. J. [Decided May 28, 1884.]

DAMAGES-EXPENSE RENDERING INJURY LIGHT.-In addition to the general measure of damages, the law in some cases imposes upon a party injured from another's breach of contract or tort, the active duty

may follow the officer and retake the goods. Rucker v. Donovan, 13 Kan. 251; Greve v. Dunham (Iowa), 14 N. W. Rep. 130. In the case of O'Neil v. Garrett, supra, the court says: "As to the effect of the levy upon the goods by the defendant, Garrett, as sheriff, by virtue of an attachment at the suit of a creditor of Holmes, there can be no doubt but that the plaintiff's right as vendor is not divested by the levy before the goods came into the possession of the buyer. The plaintiff has the preference over the legal process of a general creditor, although but for the suit, they would have fallen into the hands of the vendee." In support of which the court cites the following cases: Covell

v. Hitchcock, 23 Wend. 611; Buckley v. Furniss, 15 id. 137; 17,Wend. 505; Naylor v. Dennie, 8 Pick. 198; Sawyer v. Joslin, 20 Vt. 172; Hause v. Judson, 4 Dana, 11; Cox v. Burns, 1 Iowa, 64. If the right of stoppage continues until delivery of the goods, and a levy thereon does not divest this right, it seems clear on principle, that the right of the vendor cannot be impaired or extinguished by the garnishment of the carrier, for the process of garnishment can have no greater force than the levying upon the goods, as it is simply one of the methods of reaching the property of the debtor in the possession of a third party, which cannot be reached by the ordinary levy and seizure. Chicago, etc., Railroad Co. v. Painler. Opinion by Reese, J.

[Decided May 28, 1884.]

WEST VIRGINIA SUPREME COURT OF AP

PEALS ABSTRACT.

MASTER AND SERVANT - ACCIDENT BURDEN OF PROOF" FELLOW SERVANT"-ERRONEOUS CHARGE.~ It was certainly incumbent on the defendant company upon the facts shown by the record to show affirmatively and positively that the accident was not caused by its negligence, or the negligence of any agent for whose conduct the company itself was responsible. Greenleaf v. Illinois Cent. R. Co., 29 Iowa, 14. And the evidence showing, by the defendant's own witnesses, that the train was not made up in the usual and proper way, and that the conductor was not a fellow servant of Moon, but his superior, and in a position wherein he exercised discretionary authority, and was charged with certain duties for the proper per

formance of which the law holds the company itself responsible, any negligence on his part in this behalf is the negligence of the company itself. Railroad Co. v. Fort, 17 Wall. 553; Brothers v. Cortter, 52 Mo. 373; Patterson v. Pittsburg and Connellsville R., 76 Penn. 389. H., the section master, in charge of a squad of hands working, altering and repairing the road, could in no sense be regarded a fellow servant, in the same common employment or department of service with Moon, who was a trainhand and brakesman. Connolly v. Davidson, 15 Minn. 519. They were not co-employees, thrown together in a common duty, and having opportunity to observe and judge of the babits and qualifications of each other. Lewis v. St. Louis, etc.,

R. Co., 59 Mo. 495; Ryan v. Chicago & N. W. R. Co., 60 Ill. 171. And where a company delegates to an agent or employee the performance of duties which the law makes it incumbent on the company to perform, his acts are the acts of the company-his negligence is the negligence of the company. Brothers v. Cortter, 52 Mo.373; Flike v. Boston and Albany R.Co., 53 N. Y. 549; Corcoran v. Holbrook, 59 id. 517; Mullan v. Philadelphia & Southern S. S. Co., 78 Penn. 25; Ryan v. Chicago & N. W. R. Co., 60 Ill. 171. If corporations could in such cases escape liability on the plea that its agent was fellow servant or co-employee of the party injured, it follows that they could never be held liable at all, since such corporations must need perform their duties always through agents, who have a common employer. Flike v. Boston and Albany R. Co., 53 N. Y. 549, supra; Hough v. Railroad Co., 10 Otto, 218-19; Whart. Neg., § 232. The fellow servant and co-employee, for whose negligence the company is not responsible, is one who is in the same common employment; that is, in the same shop or place with, and having no authority over the one injured, and who is no more charged with the discretionary exercise of powers and duties imperatively resting on the company than the injured party; but where a person is placed in charge of the " construction or repair of machinery," the "dispatching of trains," the "maintenance of way," etc., he is not a fellow servant with those under him, nor with those in a different department of the company's service. He is the agent of the company, which has assumed through him the performance of duties which are absolute and imperative, the omission or the negligence of performing which the law will in nowise excuse. Clarke v. Holmes, 7 Hurls. & Nor. 937; Ford v. Fitchburg R. Co., 110 Mass. 241; Hough v. Railroad Co., 10 Otto, supra. The second instruction given by the court was: "And the jury are further instructed that if they believe the accident which caused his death was occasioned by any negligence of H., the section foreman, in failing to signal the train, they cannot impute such negligence in this case to the defendant, and should find for the defendant." This instruction is erroneous, and is against law and reason. An instruction which assumes that an employee "takes all risks" is erroneous. His contract is based on the implied duty and undertaking of the company to provide safe and adequate machinery, competent and vigilant agents, and to keep its roadway and structures always in good and safe condition when he is required to go over them. Chicago & N. W. R. Co. v. Jackson, 55 Ill. 492; Corcoran v. Holbrook, 59 N. Y. 517; Baxter v. Roberts, 44 Cal. 187; Snow v. Housatonic R. Co., 8 Allen, 441; Lewis' Admr. v. St. Louis & Iron Mountain R., 59 Mo. 495; Patteson v. Pittsburgh & Connellville R.,76 Penn. 389; Drymala v. Thompson, 26 Minn. 40; R. & D. R. v. Moore's Admr., 8 Va. L. J. 84. Moon v. Richmond & A. R. Co. Opinion by Fauntleroy, J. [Decided April 24, 1884.]

GIFT-PAROL OF LANDS-EQUITY WILL ENFORCE-STATUTE OF FRAUDS-PART PERFORMANCE-MAKING IMPROVEMENTS.-A court of equity will compel the conveyance of the legal title of land claimed under a parol gift supported by a meritorious consideration, and by reason of which the douee has been induced to alter his condition, and make expenditures of money in valuable improvements upon the land, and equity will protect a parol gift of land equally with a parol agreement to sell it, if accompanied by possession, and the donee, induced by the promise to give it, has made valuable improvements on the property. No writing is necessary to create a good equitable title to real estate. If the contract, when in writing, would be enforced as founded upon a valuable consideration, it would in like manner be deemed a valuable consideration when the contract was by parol. In the case of Neale v. Neales, 9 Wall. 1, in the Supreme Court of the United States, Mr. Justice Davis delivering the unanimous opinion of the court, said: "The statute of frauds requires a contract concerning real estate to be in writing, but courts of equity-whether wisely or not it is now too late to inquire-have stepped in and relaxed the rigidity of this rule, and hold that a part performance removes the bar of the statute, on the ground that it is a fraud for the vendor to insist on the absence of a written instrument, when he had permitted the contract to be partly executed. And equity protects a parol gift of land equally with a parol agreement to sell it, if accompanied by possession, and the donee, induced by the promise to give it, has made valuable improvements on the property; and this is particularly true when the donor stipulates that the expenditure shall be made, and by doing this makes it the consideration or condition of the gift." In the case at bar it must be borne in mind, as has been stated, that the agreement sought to be enforced is a parol agreement to give the land in question. It has been held in many reported cases that a court of equity will compel the conveyance of the legal title to the land claimed under a parol gift supported by a meritorious consideration, and by reason of which the donee has been induced to alter his condition and make large expenditures of money in valuable improvements on the land; and that the donee under such circumstances becomes the equitable owner of the land, and may demand the legal title. In the case of Syler v. Eckhart, 1 Binuey, 380, Tilghman, C. J., said: "It has been settled that when a parol agreement is clearly proved, in consequence of which one of the parties has taken possession and made valuable improvements, such agreement shall be carried into effect. We see no material difference between a sale and a gift; because it certainly would be fraudulent conduct in a parent to make a gift which he knew to be void, and thus entice his child into a great expenditure of money and labor, of which he meant to reap the benefit himself." See also Eckert, etc., v. Eckert, 3 Penn. 362; Eckert v. Mace and others, id. 364; Stewart v. Stewart, 3 Watts, 253; France v. France, 4 Halstead Ch. 619; Lobdell v. Lobdell, 36 N. Y. 327; Bright v. Bright, 41 Ill. 97; Law v. Henry, 39 Ind. 414: Young v. Glendening, 6 Watts, 509; Mahon v. Baker, 2 Casey, 519; Atkinson v. Jackson, 8 Ind. 31; Freeman v. Freeman, 43 N. Y. 34; Peters v. Jones, 35 Iowa, 512; Rerick v. Kern, 14 Serg. & Rawle, 267; Sheppard v. Bevin and others, 9 Gill, 32; Shobe's Exrs. v. Carr, etc., 3 Mun. 10. In the case of Freeman v. Freeman, 43 N. Y. 34, Grover, J., said: "It is insisted that an executory promise, not founded upon any valuable consideration, is a mere nude pact, furnishing no grounds for an action at law, and that performance of such a promise will not be enforced in equity. This is true so long as the promise has no con

sideration. Any thing that may be detrimental to the promisee or beneficial to the promisor in legal estimation will constitute a good consideration for a promise. Expenditures made upon permanent improvements upon land with the knowledge of the owner, induced by his promise made to the party making the expenditure, to give the lands to such party, constitute in equity a consideration for the promise. Citing Lobdell v. Lobdell, 33 How. 347; Crosbie v. McDoual, 13 Ves. 147; Shepherd v. Bevin, 9 Gill, 32; 3 Pars. on Con., 359. The statute of frauds has no bearing on the case. If the promise, reduced to writing, could under the circumstances be enforced in equity, it may be although by parol." It is against conscience to suffer a party who had entered and expended money on the faith of a parol agreement to be treated as a trespasser, and for the other party, in fraud of his engagement, though that was verbal, to enjoy the advantage of the money laid out. Courts interfere in such cases not on the ground of a breach of the verbal agreement, but because of the acts done under it on the faith of its terms, and which it would be bad faith in the vendor not to carry out by executing its terms, and a court of equity will always enforce a promise upon which reliance is placed, and which induces the expenditure of labor and money in the improvement of land. Such a promise rests upon valuable consideration. The promisee acts upon the faith of the promise, and we can perceive no important distinction between such a promise aud a sale. Permitting the promisor to avoid performance operates as a fraud as much in the case of a gift as in the case of a sale, so far as expenditures upon improvements are concerned, when possession has been taken and valuable improvements made upon the faith of the promise. These acts constitute part performance by the donee, and the agreement will be specifically enforced by a court of equity. Halsey v. Peters. Opinion by Lacy, J. (See 27 Am. Rep. 535.) [Decided May 1, 1884.]

WISCONSIN SUPREME COURT ABSTRACT.

NEGLIGENCE · DEFENDANT PROVING PLAINTIFF'S CONTRIBUTORY.-In an action for negligence, if the plaintiff can prove his case without disclosing his own contributory negligence, then such contributory negligence is purely a matter of defense to be proved by the defendant. Randall v. N. W. P. Co., 54 Wis. 147; Hoth v. Peters, 55 id. 405. The same rule prevails in the Supreme Court of the United States and many of the States. See cases cited in Abb. Tr. Ev. 595. The burden of proving such contributory negligence being ordinarily upon the defendant, there would seem to be no objection to his affirmatively alleging a fact which he may thus be required to prove. Kelley v. Chicago, etc., R. Co. Opinion by Cassoday, J.

[Decided May 15, 1884.]

[ocr errors]

WHEN

AGENCY-FACTOR-LIEN FOR ADVANCES DOES NOT EXIST.-An agent employed to sell, or to purchase and sell, goods or other personal property intrusted to his possession, by or for his principal, for a compensation, commonly called factorage or commission, may properly be regarded as a factor. Story Ag., §§ 33, 34a; Edw. Fact., § 1; Whart. Ag., § 735. Here the duties, powers, and compensation of the factors, and their relation to their principals, were originally regulated by agreement. True there were some departures after the business had continued for a while, but there is nothing to indicate any change as to the title of the property, or the measure or source of compensation. Undoubtedly a factor is entitled to retain goods in his possession as such until his advances, ex

penses, and commissions are paid, and this right is not limited to charges on the particular consigument of goods, but covers a general balance on the accounts between the factor and the principal, so far as concerns the business of factorage. Whart. Ag., § 767; Edw. Fact.,$$ 71, 72; Story Ag.,§ 376; Matthews v. Menedge, 2 McLean, 145; Bryce v. Brooks, 26 Wend. 374; Kruger v. Wilcox, 1 Amb. 252; Jordan v. James, 5 Ohio, 99; Weed v. Adams, 37 Conn. 378. The statute of this State in this respect would seem to be in confirmation of the common law. Rev. Stat., § 3345. But where the general balance on the accounts of the factorage is largely against the factor aud in favor of the principal, the former can have no lien upon the property in his possession, for he has no enforceable claim. Godfrey v. Furzo, 3 P. Wms. 185; Zinck v. Walker, 2 W. Bl. 1154; Tooke v. Hollingworth,2 H. B1.501; Walker v. Birch, 6 Term R. 258; Weed v. Adams, supra; Jordan v. James, supra; Enoch v. Wehrkamp, 3 Bosw. 398; Beebe v. Mead, 33 N. Y. 587. In such case the factor's right of retention and sale is merely to reimburse himself for the balance due him on the general account of the factorage. Brown v. M'Gran, 14 Pet. 479; Overt. Liens, § 105. Neither can a factor, who is indebted to his principal on account of previous sales, acquire a particular lien upon goods subsequently sent to him for sale for expenses incurred on account of them, unless such expenses exceed the amount of his indebtedness. Edw. Fact., § 72; Enoch v. Wehrkamp, supra. The lien of an agent and factor on the goods of his principal for specific expenses does not exist when the general balance of account is against him. Id. We must therefore hold that where a factor is largely indebted to his principal on account of the factorage, and thereupon voluntarily makes advances in the business not exceeding such indebtedness, such advances, being made for and in behalf of his principal, must be deemed to have been so made by the factor in liquidation of his own indebtedness pro tanto. McGraft v. Rugee. Opinion by Cassoday, J. [Decided May 15, 1884.]

MARYLAND COURT OF APPEALS ABSTRACT.*

MARRIAGE-ANTE-NUPTIAL AGREEMENT-SPECIFIC PERFORMANCE-MONEY VALUE IN LIEU.-By an antenuptial settlement it was covenanted that the intended wife, if she survived the husband, should receive at his death one dwelling-house, to be vested in her absolutely, in lieu of dower, or distributive share in his estate. The husband, having become estranged from the wife shortly before his death, left her in his will a dwelling-house of comparatively small value and subject to an annual ground rent of $64, which she renounced. He disposed of his entire estate by will, which he made during the period of alienation from his wife. On a bill by the widow asking for a specific execution of the covenant, and that she might have a dwelling-house suitable to her and her late husband's rank in life, and pecuniary circumstances, assigned to her, to be vested in her absolutely, or in lieu thereof a sum of money which the court might deem adequate, it was held that the complainant had a right to renounce the bequest, and was entitled under the covenant to receive from her husband's estate a dwellinghouse suitable to his pecuniary circumstances, and position in society. But in all such cases, the agreement must be sufficiently definite to guide the court in the direction to be given for the specific performance, or at any rate, that it may be made certain and definite upon proper inquiry. Storer v. Great W. R. Co., 2 Y. & Coll. Ch. 48, 53; Wilson v. Furness R. Co., *Appearing in 61 Maryland Reports.

« AnteriorContinuar »