BILLS AND NOTES - Continued. Payment of altered note - Recovery - Mistake of fact. — If a party to a promissory note, which has been materially altered, pays the note in ignorance of the alteration, he may recover the amount as paid under a mistake of fact. Fraker v. Little, Sup. Ct. Kan., Rep., May 18, 1881, p. 668. Accommodation indorser-Default of maker - Failure of consideration-Insolvency of maker. Where the maker and the indorser are both served with process, and the maker makes default, and the indorser answers that he was an accommodation indorser and that the notes were never delivered, and that they were made as the sole consideration for the sale of a machine warranted to perform certain work and which was useless and worthless, and that the maker was greatly damaged by the breach of such warranty and is now utterly insolvent, and that the plaintiff took the notes with notice and after maturity: held, that the indorser might avail himself of such defence. - McDonald Man. Co. v. Moran, Sup. Ct. Wis., Wis. Leg. N., May 19, 1881, p. 256; N. W. Rep., May 21, 1881, p. 676. ·Demanding payment — When excused — Liability of indorsee. In an action upon a promissory note against an indorsee, who had indorsed waiving notice but not demand, the petition showed affirmatively that the maker, before maturity, left the State, and left no one at his last usual place of residence upon whom demand could be made, and no one authorized or empowered with the means to pay the note when due. Held, that demand was sufficiently executed. - Whiteley v. Allen, Sup. Ct. Iowa, N. W. Rep., June 25, 1881, p. 190. See LUNATIC. BONDS. See CORPORATIONS; MUNICIPAL Bonds. COMMON CARRIER. — Liability of — Shippers' instructions -Assent of shipper to conditions in bill of lading — Custom.- Where goods are received by a common carrier to be forwarded in the usual course of business, his liability immediately attaches; and if they are lost by an accidental fire while in his warehouse awaiting transportation, he is liable. But if the delivery is accompanied with instructions not to forward until further orders, or if anything remains to be done to the goods by the shipper before they are to be forwarded, such liability as a common carrier does not attach. The assent of the shipper to conditions in a bill of lading or contract limiting the carrier's liability is binding upon him when the loss happens without negligence of the carrier, but such assent will not be implied or presumed from facts and circumstances which do not clearly show an assent to such conditions in the contract on which the action is founded. Neither usage nor custom, though known to the shipper, which he has not clearly assented to as a condition of the contract of shipment, can be set up to absolve a carrier from his common-law liability.-Pittsburg, St. Louis, and Cincinnati R. Co. v. Barrett, Sup. Ct. Ohio, Am. L. Reg., June, 1881. · Freight - Delay in transportation — Accumulation of goods-Knowledge. The defendant railway contracted to transport from Milwaukee and deliver in London, England, certain flour. Held, in an action for damages for delay, that if, at the time of making the contract for transportation, the condition of business on the lines of defendant gave it no grounds for doubting that suitable means would be at its command for transportation, and the delay was solely occasioned by a subsequent and extraordinary influx of freight upon its lines, then the defendant was not responsible; but if, at the time of contracting, there was an accumulation of business on its lines which incapacitated the defendant, or might be expected to incapacitate it, from performing its duty, and this was known or might have been known to defendant, it was liable for the delay. - Helliwell v. Grand Trunk R. Co. of Canada, Ú. S. Cir. Ct. East. Dist. Wis., Rep., July 6, 1881. Terminus of route― Agents — Negligence - Evidence. - Plaintiff's shipped by defendant, a common carrier, grain sacks at San Francisco destined COMMON CARRIER - Continued. for Jacinto, in Colusa County. Defendant claimed that its route terminated at Knight's Landing. Held, that the evidence in the case supported a finding by the jury that defendant's route extended to Jacinto. Held, further, there being evidence showing that defendant had agents at Jacinto for the purpose of receiving goods at that point, and through the negligence of such agents the sacks were lost, that defendant was liable to plaintiffs. - Dresbach v. California Pacific R. Co., Sup. Ct. Cal., Pac. Coast L. J., July 2, 1881. CONSIDERATION. - See BILLS AND NOTES. CONSTITUTIONAL LAW. State statute abolishing imprisonment for debt constitutional as to existing debts. -State statute abolishing imprisonment for debt, applicable to judgments in force at the time of its passage, is not invalid under the Federal Constitution as impairing the obligation of a contract. Viall v. Penniman, U. S. Sup. Ct., Alb. L. J., July 9, 1881. See REMOVAL OF CAUSES; TAXATION. CONTEMPT.- Injunction - Violation by corporation - Fine. — A railroad company was enjoined from discriminating against an express company, and certain rates were directed to be charged for express freight. Held, that the railroad company, a corporation, could be punished for violating the injunetion, by a fine. United States ex rel. Southern Express Co. v. Memphis and Little Rock R. Co., U. S. Cir. Ct. West. Dist. Tenn., Rep., May 25, 1881. CONTRACTS. Of sale - Construction — Liability for goods furnished under Declarations-Judgment for larger amount than warranted by special verdict. - By the terms of their contract, C. was to sell and deliver chattels to B., and B. was to pay him therefor by an order on A. and a promissory note to be executed by A. to C. Held, that as the contract does not appear on its face to have been made on A.'s behalf, his mere approval of it created no liability on his part; but the question still was, whether, before such contract was made between B. and C., he promised to pay C., and whether the contract was made and the property delivered by C. to B. in reliance upon that promise. If A., in such a case, actually sells and delivers goods to C. in part payment of the amount due the latter from B. by the terms of said contract, he cannot recover the value of such goods from C. Declarations made by A. to witness, to the effect that A. was to pay C. for the property delivered to B., are not admissible in evidence against him, except for the sole purpose of impeaching his contrary testimony. It is error for the court to render judgment for larger damages than are found by the jury in their special verdict, where the right of the party to the additional damages is not clear, as a matter of law, from other facts duly found by the jury. McCartney v. Hubbell, Sup. Ct. Wis., N. W. Rep., June 11, 1881, p. 61; Wis. Leg. N., June 16, 1881. Loan Irredeemable bond Corporation Ultra vires. A contract whereby, in consideration of a certain sum paid to it, a corporation is to issue an irredeemable bond, to draw interest at a certain percentage upon its face value, payable annually out of the earnings of the corporation which remain after paying expenses and affording a certain dividend to the stockholders, with a right to share with the stockholders in any surplus, is not a contract of loan. Such a contract cannot be made by a railroad corporation without express legislative authority, and cannot be made by virtue of a general grant to the corporation to borrow money or to issue and sell bonds. McCalmont v. Philadelphia and Reading R. Co., U. S. Cir. Ct. East. Dist. Pa., Rep., May 25, 1881; Int. Rev. Rec., May 23, 1881. Misrepresentation. - Held, where the defendants purchased the right from plaintiff to manufacture and sell a patent churn, and more than two months subsequently wrote that the churn was a success, that they could not afterwards, in defence to an action on the contract, set up misrepresentation as to the merits of the patented article. — Campbell v. James, Sup. Ct. Montreal, Leg. N., July 2, 1881. CONTRACTS- Continued. Agent advancing private funds for corporation — Evidence of contract to repay advances - Liability of corporation. - K. was the agent of the Board of Public Works of Virginia in constructing the railroad and Blue Ridge tunnel: the board to pay for work and materials, and K. to receive a commission on the cost for compensation. The board provided the money to pay for the work by a sale of State bonds, which fell below par, and there was a deficiency of funds to pay the expenses, and K. advanced his own funds to meet these expenses, claiming that the Board of Public Works had agreed to repay to him the advances he might make. Held, that such contract may exist and be binding on the board, although there is no entry of it upon the records of the board, and may be proved, as well as in other modes, by parol evidence; that the declaration of members of the board, made whilst the work was being carried on and the transactions took place which are the foundation of the plaintiff's claim, was competent evidence for the plaintiff, as tending to show that the advances made by K. from his own private means were made with the knowledge and approval and sanction of the board. A corporation may now bind itself in any way that a natural person may bind himself. - Kelly v. Board of Public Works, Sup. Ct. App. Va., Và. L. J., May, 1881. - Construction of, when ambiguous - Intention of parties - Notice - Breach of contract · Damages. Where a written contract is ambiguous in its meaning, it is permissible to show the facts and circumstances surrounding the parties and the subject-matter, in order to aid in giving it a proper construction. It is also admissible to show how the parties themselves have construed it, in order to get at the real intention of the parties to the contract. A party to a contract, who has given notice to the opposite party forbidding him from doing anything further in the performance thereof, but who, before the opposite party acts upon such notice, withdraws it, the opposite party will not be justified in stopping the work and claiming damages as for a breach of the contract on the part of the party giving the notice. v. Morse, Sup. Ct. Wis., Wis. Leg. N., June 23, 1881. Wilson Assessment for nomination by political committee. - The defendant, being a candidate for a justiceship of a court of record, was assessed by one of the joint parties which nominated him, $5,000; of which he paid $4,000, and this action was brought by plaintiff, claiming to be chairman of the Finance Committee of the political organization, to recover the remaining $1,000. Held, that the transaction is one contrary to good morals and against public policy. - Mierson v. Koch, N. Y. Mar. Ct., Daily Reg., May 19, 1881. Tax-title, purchase of Statute of Limitations. · Purchase of a taxtitle, under an agreement with the owner that it should be held as security for the money paid therefor and a judgment held by such purchaser, held to create the relation of mortgageor and mortgagee; and while such purchaser so held the title, the Statute of Limitations did not run against it. For former opinion, see 6 N. W. Rep. 278; 3 Iowa, 186. —Jordan v. Brown, Sup. Ct. Iowa, N. W. Rep., June 25, 1881, p. 200. Between husband and wife. A contract between husband and wife, made in good faith upon an adequate consideration, and not for the purpose of hindering, delaying, or defrauding creditors of the husband, will not be declared fraudulent from the mere fact that years afterwards the husband was unable to pay his debts. Van Duzen v. Peacock, Sup. Ct. Neb., N. W. Rep., June 18, 1881, p. 90. By person of unsound mind - When sustained. Persons of unsound mind will be held bound by an executed contract or conveyance where the transaction is fair and reasonable, and in the ordinary course of fairness, and the mental condition is unknown to the other party, and the parties cannot be placed in statu quo. - Abbott v. Creal, Sup. Ct. Iowa, N. W. Rep., June 18, 1881, p. 115. CONTRACTS- Continued. Breach Entire contract Damages. Where the contract, though consisting of several parts, was one and indivisible - that is, was a contract of sale, with warranty: held, that the defendant could not split his defence arising from breach of the warranty, and recoup his damages partially when sued for one instalment of the price falling due, and recoup the remainder of the damages upon the balance falling due. Geiser Threshing-Machine Co. v. Farmer, Sup. Ct. Minn., Rep., May 18, 1881, p. 674. Municipal corporation — Materials for specific term. A proposal for materials to be delivered to a municipal corporation for a specified time, and to be delivered as "called for by the requisitions of the proper officer, upon acceptance becomes a contract binding on the city only for material ordered and delivered in accordance with the order. Callmeyer v. Mayor, etc., of New York, Ct. App. N. Y., Rep., May 18, 1881, p. 677. Construction of — Evidence in aid of ― Measure of damages. — Where a written contract is uncertain as to matters affecting the liabilities of the parties, parol evidence of the situation of the parties, and of the subjectmatter, is admissible to aid in its construction; and the construction subsequently put upon it by the parties themselves, as evinced by their conduct, may be shown to aid the court in construing it. In case of a contract for doing specific work at a specified price, the measure of damages for a refusal to allow the work to be done is the profit which would have been realized by the contractor if he had been permitted to perform it, and not the difference between the contract price and the sum which the contractor actually received from other employments during the time which would have been required for completing the work. - Nilson v. Morse, Sup. Ct. Wis., N. W. Rep., June 4, 1881, p. 1. For carrying mails — Receipt of payment for same without protest. —A railroad company which receives, for carrying the mails during a certain period, less than it is entitled to under its contract, the balance being paid to another company, and gives receipts for the money so paid, without protest or notice of an intention to claim more, is estopped by its acquiescence from recovering of the government the additional amount to which it would otherwise have been entitled. - Philadelphia and Baltimore Central R. Co. v. United States, U. S. Sup. Ct., Moor. Trans., vol. 2, No. 3. - - Of architect — City, and not architect, required to obtain approval of plan. The contract of the defendant in error with the city of Chicago to prepare plans for and superintend the building of a city hall, held to require the city, and not the defendant in error, to obtain the approval of the plan by the Commissioners of Cook County, and to allow the defendant in error to recover compensation for the work performed, as he had been prevented from completing it by the fault of the other party. City of Chicago v. Tilley, U. S. Sup. Ct., Morr. Trans., vol. 2, No. 3. - Architect's plan adopted - Building not erected — Evidence. - The city of Chicago and county of Cook offer certain prizes for plans and estimates for a court-house and annexed offices. The plaintiff in error is awarded one of these prizes, and it is paid him. Subsequently they pass a resolution adopting his plans for the building. There was no proof that the building was ever erected. Held, that such resolution was a mere expression of purpose to erect a building according to plans antecedently made by another, and created no obligation on either party, and no contract, either express or implied, there being neither mutuality nor consideration. No contract or erection of buildings, therefore, being proved, evidence as to the value of the plaintiff's plans, and of a usage among architects that the architect furnishing the plan should superintend the building, was irrelevant, and properly excluded. - Ibid. Consideration - Invalid deed - Desertion of husband - Married woman.— Upon a deed which is without force to convey title, the grantee is not CONTRACTS-Continued. bound by any promise to pay the consideration named therein. And a promissory note given by purchasers from the grantee, in lieu of his like obligation, is also without consideration, and void. A married woman cannot alone make a good deed of real estate in Rhode Island, when her husband has at any time lived with her in the State. And the desertion of her husband will not relieve her of the disability. A married woman cannot be estopped from denying the validity of any contract or deed which she is disabled from making. — Mason v. Jordan, Sup. Ct. R. I., Rep., June 15, 1881. See EXECUTORS; MASTER AND SERVANT; TAXATION. CORPORATIONS.- ·Bonds issued by authority — Recital in bond · · Estoppel. Where authority is given to a corporation to issue bonds, and those bonds recite upon their face that they were issued in pursuance of such authority, such recital imports a compliance with the requisites prescribed, and the corporation is estopped as against a bona fide holder from proving that such recital is untrue. Bonham v. Needles, U. S. Sup. Ct., Morr. Trans., vol. 2, No. 4. Right to sue and be sued in name of president or treasurer· - Jurisdiction of United States courts. A joint-stock company possessing the right, by law of the State under which it is organized, to sue and be sued in the name of its president or treasurer, is a citizen of said State in the same sense that corporations are citizens of the States under whose laws they are organized; and such company may sue and be sued in the name of such officer in the Federal courts, as a citizen, even though shareholders of such joint-stock company are citizens of the same State as the adverse party to the suit. Fargo . Louisville, New Albany, and Chicago R. Co., U. Š. Cir. Ct. Dist. Ind., Cin. L. Bul., May 30, 1881; Rep., June 15, 1881. ·Sale of all assets. When valid.-The sale of all the assets of an incorporated company, authorized by the majority of shareholders present at a meeting duly called for the purpose, is valid, where such proceeding was not prohibited by the charter of the company.. La Compagnie de Navigation Union r. Christin, Sup. Ct. Montreal, Leg. N., May 21, 1881, p. 162. Directors as creditors · Foreclosure by them of mortgage. There is no objection to a director of a corporation becoming its creditor, or to his taking security for his debt; but his conduct in enforcing his claim will be more closely scrutinized than that of an ordinary creditor, and proceedings for such enforcement will be set aside if it appears he has not acted in good faith as director. Hallam v. Indianola Hotel Co., Sup. Ct. Iowa, N. W. Rep., June 18, 1881, p. 111. - Capital stock and unpaid subscriptions a trust fund for creditors. — The capital stock, and unpaid subscriptions thereto, of a corporation constitute a trust fund for the benefit of its creditors, and cannot be released by agreement between the stockholder and the corporation without the consent of the creditors, except bona fide for a valuable consideration. Nor is this altered by the fact that bonds are given in payment of stock; but such bonds are a part of the assets of the corporation, liable for its debts, and cannot be validly called in and cancelled, even by judicial proceedings to which the creditors are not parties. - Morgan County v. Allen, U. S. Sup. Ct., Morr. Trans., vol. 2, No. 4; Int. Rev. Rec., July 4, 1881. Construction of provisions of sections of charter relative to meetings of stockholders-Majority of stockholders - When not necessary for election of officers. Held, that if at any time an election shall not be made, the corporation shall not be dissolved, but that the old officers may hold over, and that it is lawful to hold a meeting for election of officers any day thereafter, on due notice; that, therefore, it was not necessary that a majority in interest of the stockholders should be present at such meeting in order to validate its proceedings, and that those persons who received a majority of |