44.- -Punitive Damages-Exemplary damages recoverable for wanton, fraudulent representations. Laughlin v. Hopkinson, Ill., 126 N. E. 591. Fraudulent Conveyances 45. Bulk Sales Law. It is unnecessary to decide whether the words "stock of merchandise," in Bulk Sales Law, include the store fixtures, sold along with the merchandise, where both parties to the transaction have considered the price to be paid for both as a single fund applicable to payment of the claims of all the seller's creditors and the greater part of it has been so applied. National City Bank v. Huey & Martin Drug Co., S. C., 102 S. E. 516. 46. Gifts-Intent.-A gift requires two things; a delivery of the possession of the property to donee, and an intent that the title thereto shall pass immediately to him-Fox V. Shaniey, Conn., 109 Atl. 249. 47 Highways-Abutting Owner.-One owning land abutting on highway, there being nothing to the contrary appearing, is to be regarded as the owner of the soil to the middle of the highway, and enjoys over that strip the full privileges of ownership, provided his acts do not interfere with the easement of passage of the public.-Wadsworth v. Town of Middletown, Conn., 109 Atl. 246. 48. Homicide Responsibility for Crime. Ability to govern conduct in accordance with choice a necessary element of responsibility in cases of paranoia.-People v. Lowhone, Ill., 126 N. E. 620. 49. Husband and Wife-Invitee.-1r a married woman invited plaintiff on premises where her husband kept a vicious dog, or if plaintiff was there for a lawful purpose without invitation, and such married woman, in the absence of her husband, permitted the dog to run loose on the premises unguarded, knowing that persons were likely to come lawfully on the premises, her negligence in so doing concurred with the negligence of her husband in keeping the dog, rendering her liable for an injury inflicted by the dog.-Carrow v. Haney, Mo., 219 S. W. 710. 50. Injunction—Anticipated Injury-While a court of equity under Some conditions may grant injunction to prevent an anticipated injury, it will not do so, unless it can be satisfied from all the circumstances of the case as to the illegality of the acts complained of, and that irreparable injury will result.-City of Salisbury v. Camden Sewer Co., Md., 109 Atl. 333. 51. Trespass.-The chancery court had juisdiction of the subject-matter of restraining trespasses on plaintiff's lands if the pleadings raised the issue that defendant trespasser was insolvent.-Gray v. Malone, Ark., 219 S. W. 742. 52. Insurance Forfeiture. As insurance contracts are prepared by the insurer, conditions therein intended to cause a forfeiture are construed most strongly against the company.— Standard Accident Ins. Co. v. Walker, Va., 102 S. E. 585. 53. -Fraternal Association. The constitution and by-laws of a mutual benefit fraternal society form the basis of, and constitute part of, the contract of insurance, which measures the obligations of the members and the liability of the association or governing body.--Sovereign Camp. Woodmen of the World v. Newson, Ark., 219 S. W. 759. 54 -Knowledge of Agent.-Knowledge by insurer's agent that insured did not keep the iron safe required by a clause of the policy is knowledge of the company, and if it delivered the policies after the agent had such knowledge it waived the forfeiture for violation of clause.-Rosenthal-Sloan Millinery Co. v. Hanover Fire Ins. Co., Mo., 219 S. W. 669. the 55. Landlord and Tenant-Oral Lease. If an annual rental is reserved by an oral lease, the law will imply a tenancy from year to year, even though the oral lease is for an indefinite time. Noll v. Moran, Conn., 109 Atl. 241. 56. Libel and Slander-Privileged Communication. Where a member of Liberty Loan committee, during the war with Germany, while soliciting subscriptions to bonds, distributed circulars, prepared by the county council of defense, and claimed to contain a libelous statement concerning plaintiff, who had refused to subscribe, his acts, claimed to be done in discharge of a public duty, were privileged in a limited sense.-McBroom v. Weir, Texas, 219 S. W. 855. 57.-Qualified Privilege. "Qualified privilege" comprehends all bona fide communications upon any subject-matter in which the author has an interest or a duty to perform to another having a corresponding duty.-Taber v. Aransas Harbor Terminal Ry.,, Texas, 219 S. W. 860. 58. Limitations of Actions-Demand Vote.Demand paper is due immediately, and the statute of limitations begins to run from the date of the instrument.-McCollum v. Neimeyer, Ark., 219 S. W. 746. 59.- -New Promise.-After a debt is barred by the statute of limitations, a new oral promise to pay it cannot revive the original cause of action, nor constitute a new cause of action, if there was no consideration therefor.-Mortenson v. Knudson, Iowa, 176 N. W. 892. 60. Note and Mortgage.-The running of limitations against an action on a note secured by a chattel mortgage does not extinguish the obligation created by the note or the covenant in the chattel mortgage to pay the debt.-Lembeck & Betz Eagle Brewing Co. v. Krause, N. J., 109 Atl. 293. 61. Malicious Prosecution-Advice of Counsel. -That defendant acted on advice of the counsel does not relieve him from liability for malicious prosecution unless he made a full, fair, and truthful disclosure to counsel and acted in good faith on the advice. so that, where plaintiff denied making an admission which defendant stated to counsel he did make. the jury could find that the advice of counsel was defense.-Webb v. Byrd, Mo.. 219 S. W. 683. no 62. Master and Servant-Assumption of Risk. -The servant never assumes a risk growing out of the master's negligence, however plain or obvious: the only risk he does assume being that remaining after the master has exercised ordinary care.-Kuhn v. Lusk, Mo., 219 S. W. 638. 63. Consideration.-A contract by defendant lumber company to give plaintiff employment in a sawmill, if suits by plaintiff, his wife, and stepdaughter against company's doctor and bookkeeper for slander and failure to render professional services were dismissed, which suits were said to be disturbing the company's business, is not supported by a sufficient consideration.-Rasnick v. W. M. Ritter Lumber Co., Ky., 219 S. W. 801. 64.- -Express Contract.-A complaint alleging that, at the request of defendant, plaintiff performed services for the sum of 860 per month and her board, the reasonable value thereof, which sum and board defendant agreed to furnish and pav. states a cause of action for the reasonable value of the services, permitting Proof of such value, and is not founded upon an express contract.-Miller v. Howard, Ore., 188 Pac. 160. a 65. Mechanics' Lien. Priority. -A subsequent purchaser of property, with actual notice of a contractor's lien, takes subject thereto, so that the lien is properly recorded and the foreclosure proceeding properly brought against original owner, and the subsequent purchaser is not necessary party thereto.-Oglethorpe Savings & Trust Co. v. Morgan, Ga., 102 S. E. 528. 66. Mines and Minerals-Equitable Mortgage. -An instrument containing an agreement to pay money when certain mining claims and mill sites were sold out of the first money received from the sale, and providing that a special lien was thereby created on the property to secure the payment of the obligation, created an equitable mortgage.-Stephen v. Patterson, Ariz., 188 Pac. 131. 67. Sub-Surface. Where the mineral estate has been separated from the surface, the former must support the latter as a commonlaw burden, from which it cannot be relieved except by apt words or necessary implication. -Lenox Coal Co. v. Duncan-Spangler Coal Co.. Pa., 109 Atl. 282. 68. Valid Location.-The general rule 18 that, where a person has held and worked a location and mining claim for a period to the time prescribed by the statute of limitations for mining claims of the state where it is situated, he has a right equivalent to that of a valid location.-Newport Mining Co. V. Bead Lake Gold-Copper Mining Co., Wash., 188 Pac. 27. 69. Mortgages-Defined.-A condition indispensable to holding a deed to be a mortgage is that there shall have been a debt to secure, or some liability against which the grantee is to be guarded.-Carson v. Lee, Mo., 219 S. W. 629. 70. Municipal Corporations-Ordinances.-Ordinances interfering with use of property must be for public good and reasonable.-McCray v. City of Chicago, Ill., 126 N. E. 557. 71. Negligence.-Inevitable Accident.-Where the facts shown are such as might reasonably support the inference that the accident might have resulted from a mere casualty, or from acts of others than defendant, or from defendant, or from joint conduct of plaintiff and defendant, no presumption arises that it was occasioned by negligence charged against defendant.-Atlanta Coca-Cola Bottling Co. v. Danneman, Ga., 102 S. E. 542. 72. -Invitee.-One sent to install a machine on the purchaser's premises is an invitee to whom the owner owes the duty of keeping the premises covered by the invitation in a reasonably safe condition.-Ellington v. Ricks, N. C., 102 S. E. 510. 73. Ordinary Care.-"Ordinary care" is such care as would ordinarily be exercised by an ordinarily careful person under the same or similar circumstances. Jackson v. Southwestern Bell Telephone Co., Mo., S. W. 655. 74.-Res Ipsa Loquitur.-A petition, pleading on the specific negligence, excludes reliance doctrine of res ipsa loquitur. Byers v. Essex Inv. Co., Mo., 119 S. W. 570. 75. Partnership Holding Out. One who holds himself out as a partner, though in fact he may not be, is liable to a creditor who knew of such holding out and acted on the assumption and belief that he was a partner in extending credit. Drake Hardware Co. v. Bragg, Mo., 219 S. W. 717. 76. Perjury-Former Acquittal.-An acquittal on an indictment charging larceny of an automobile is not a bar to a subsequent conviction for perjury committed by defendant as a witness on his own behalf on the former trial by swearing falsely that he had not seen and did not have such automobile in his possession. -Yarbrough v. State, Fla., 83 So. 873. Au 77. Principal and Agent-Revocation. thority of an agent, when revocable, may be revoked by a solemn instrument under seal, by a public and formal announcement or proclamation, or by a simple and private declaration.Morgan v. Harper, Texas, 219 S. W. 888. 78. Principal and Surety — Revocation.-Unless the terms of a continuing guaranty forbid it, the law writes into it a power on the part of the guarantor to revoke it.-Gimbel Bros. v. Mitchell, Mo., 219 S. W. 676. was 79. Sales-Misrepresentation.-The value of a legal work being largely dependent on its early completion and delivery, an oral representation by an agent of the seller that the work already in plate and ready for the press was a representation of an existing material fact.American Law Book Co. v. Fulwiler, Texas, 219 S. W. 881. 80. Rescission.-Where one sells personally under an express warranty, and receives a note. reciting it to be a purchase-money note. and the seller thereafter accepts a return of the prop erty on account of defects, the latter transaction is a complete rescission of the former contract, so that the note for the original nroperty becomes void. Evans v. Lott, Ga., 102 S. E. 556. 81. Telegraphs and Telephones Interstate Message-An interstate telegraph company may limit its liability in damages for negligence of its servants in transmitting unrepeated interstate messages involving different rates.-Western Union Telegraph Co. v. McDavid, Tex., 219 S. W. 853. 82. Trusts Personal Liability-One holding property himself and refused to recognize plainally liable on a contract to pay a commission to a broker for effecting a sale thereof.-Breid v. Mintrup, Mo., 219 S. W. 703. 83.- -Statute of Frauds. Where plaintiff verbally agreed with defendant that they would purchase property jointly or in partnership, and defendant with intent to defraud bought the property himself and refused to recognize piantiff's right therein, no purchase from either of any real estate or interest therein was involved, so that statute of frauds did not apply.-Goodrich v. Wilson, Kans., 188 Pac. 225 84. Vendor and Purchaser-Consideration.Where a conveyance of land is made in consideration of future support of a third person, no vendor's lien arises.-Murphy v. Whetstone, Ore., 188 Pac. 191. 85.-Option Contract.-Time is of the essence of an option contract to purchase property, especially where the property is fluctuating in value, and equity will not relleve against a threatened forfeiture for failure to exercise the option within the time specified.-Weiss v. Claborn, Texas, 219 S. W. 884. 86. Waters and Water Courses Beneficial Use. One actually diverting water under a claim of appropriation for a useful or beneficial purpose cannot by such diversion acquire any right to divert more water than is reasonably necessary for such use or purpose.-Stinson Canal & Irrigation Co. v. Lemoore Canal & Irrigation Co., Cal., 188 Pac. 77. 87. Wills-Burden of Proof.-Contestants have burden of showing by a preponderance of the evidence their allegations of fraud and undue influence, which induced testatrix to make the will as she did.-Rice v. Rice, Ore., 188 Pac. 181. 88. Collateral Attack.-A probated will is not subject to collateral attack and vests full title to the realty in the devisees named therein. -Simpson v. Lehmann, Mo., 219 S. W. 608. 89. Domicile.-Will may be probated in a state other than that in which testator 18 domiciled, but such probate is strictly a proceeding in rem, affecting only the property within such state, with no extraterritorial force, and does not entitle will to admission in the state of the domicile under the statutes, or under the good-faith and credit clause of the Constitution. In re Longshore's Will, Iowa, 176 N W. 902. 90.- -General Legacy.-A gift of "every spe cies of personal property I may possess at my death not named in my will' is a general legacy In re Wiggins' Will, N. C., 102 S. E. 499. 91. Intention.-In construing a will the first and foremost rule is that it shall be so construed as to give effect to the intention of the testator, and such rule of construction is emphasized by Rev. St. 1909, §§ 583 and 2569.-Gibson v. Gibson, Mo., 219 S. W. 561. 92.- -Joint Will.-Joint will not revocable without notice.-Buehrle v. Buehrle, Ill., 126 N. E. 539. 93. -Testamentary Capacity.-Where testator knows and comprehends the transaction in which he is engaged, and the nature and extent of the property comprising his estate, and recollects the objects of his bounty, the disposition he makes of his estate will not be interfered with on any ground of testamentary incapacity. In re Rutherford's Estate, Wash., 188 Pac. 27. 94.- -Undue Influence. In a will contest involving questions of undue influence and testamentary capacity, a previous will of the testatrix was admissible.-Yant v. Charles, Mo., 219 S. W. 572. Central Law Journal. ST. LOUIS, MO., JUNE 4, 1920 CARRIER'S LIABILITY FOR NOT SUPPLYING CARS. The coal companies served by the Chesapeake & Ohio Railroad Company are threatening suits to recover damages for losses. sustained through an inadequate car supply, wherein an interesting legal controversy with important ramifications may arise. The C. & O. case is differentiated from that of other carriers for the reason stated that "it followed the policy of increasing the burden upon it by constantly adding new coal territory without adding additional cars in spite of the fact that it was unable to serve the territory already developed," that "this was done to prevent the entrance of rival carriers into territory capable of being reached by the C. & O. Railroad." If this allegation can be proved a novel case will arise. The particular incident is interesting, however, as furnishing an opportunity for fixing a liability for losses falling upon industry through an inadequate car supply about which there has been much discussion in the public print. There will be two issues, viz.: First, when a carrier fails to supply itself with sufficient cars in normal times and to meet normal demands, does it become liable in damages in abnormal times for all or a proportionate share of the injuries suffered by industry through enforced idleness? Secondly, may the industry recover this damage for breach of contract, for failure to perform a common law duty or for failure to meet a statutory requirement? This, of course, involves the effect of the several acts to regulate commerce and the several amendments thereto. Leaving aside the "Railroad Act of 1920" which virtually puts car service at the command of the Interstate Commerce Commis sion, the most directly applicable one is as follows: Sec. 1: “*** and the term transportation shall include cars and other vehicles and all instrumentalities and facilities of shipment or carriage ***; and it shall be the duty of every carrier subject to the provisions of this act to provide and furnish such transportation upon reasonable request therefor." Chap. 3501, 34 Stat. at L. 584, Comp. Stat. 1914, Sec. 8563. The U. S. Supreme Court in Pennsylvania R. Co. v. Sonman, 242 U. S. 188, 61 L. ed. 188 (1916), held that "it is plain that supplying the requisite cars was an essential step in the intended movement of the coal and a part of the commerce * * * to which that movement belonged." It was expressly held that the act did not abridge. the right to redress for failure to supply requisite cars and that suit might be brought in a state Court. The injured person would be required to elect between two remediesto make complaint to the Interstate Commerce Commission or to bring an action for damages in a Court, but could not do both." It was held that "such appropriate common law and statutory remedies as can be enforced consistently with the scheme and purpose of the act are not abrogated or displaced; that the act does not supersede the jurisdiction of state Courts in any case, new or old, where the decision does not involve the determination of matters calling for the exercise of the administrative power and discretion of the Interstate Commerce Commission or relate to a subject as to which the jurisdiction of the federal Courts is otherwise made exclusive." When the jurisdiction of the Interstate Commerce Commission is not exclusive is defined as follows: "Claims for damages arising out of the application, in interstate commerce, of rules for distributing cars in times of shortage, call for the exercise of the administrative authority of the Commission where the rule is assailed as unjustly discriminatory, but where the assault is not against the rule, but against its unequal and discriminatory application, no administrative question is presented and the claim may be prosecuted in a federal or state Court without any precedent action by the Commission." See also Penn. R. Co. v. Puritan Co., 237 U. S. 121, 129; 59 Led. 867, 872. "If no administrative question be involved, as well may be the case, a claim for damages for failing upon reasonable request to furnish to a shipper in interstate commerce a sufficient number of cars to satisfy his needs may be enforced in either a federal or state Court without any preliminary finding by the Commission, and this whether the carrier's default was a violation of its common law duty, existing prior to the Hepburn Act of 1906, or of the duty prescribed by that act," which act words was quoted at the outset. In so many the Court held that the Hepburn Act "may be regarded as merely adopting the common law rule," This sentence sufficiently clears the atmosphere. The carrier's most probable defense will be that the times are not normal. From his allegations the shipper no doubt intends to counter with the claim that the carrier did not supply itself with sufficient cars to meet the reasonable demands of normal times. Conceding for the moment that the times have been made abnormal through governmental interference, the case would manifestly turn upon the past failure to supply sufficient cars for the territory served, and that the offense and the injury of which complaint is made is a continuing one, finding its origin back in normal times. In other words, the carrier would not be permitted to go scot-free but would be held for the injury occasioned by its past failure of duty continuing into the present, if not for injury directly traceable to abnormal demands. This would call for a decision upon the right of a carrier to extend its lines and thereby take on new and additional burdens of service without making a proportionate increase in its "vehicles and all instrumentalities and facilities of shipment or carriage." The determination of this issue will be aided by the judicial views expressed in Penn. R. Co. v. Sonman Co. (Supra, p. 123-5), although the facts differed materially. It was conceded in that case that "the times were normal," and the jury found that the carrier had a generally ample car supply for the needs of the coal traffic under normal conditions, and the jury further found that the conditions in the coal trade being normal, as just shown, the number of cars to which the coal company was entitled was to be measured by its reasonable requests based upon its actual needs." The Railroad Company defended by setting up its "car distribution rules," but the Court held that "it was only in times of car shortage resulting from unusual demands or other abnormal conditions, not reasonably to have been foreseen, that car distribution rules originating with the carrier can be regarded as qualifying or affecting the right of a shipper to demand and to receive cars commensurate in number with his needs." It will be observed that the attack on the distribution rules was not as to their reasonableness, for that would have been a question for the Interstate Commerce Commission, but on the failure to supply "vehicles and all instrumentalities and facilities of shipment" by whatever rules administered, and that the rules could not be pleaded as a defense. If it be conceded that the present abnormal demand for cars is such that it "could not reasonably have been foreseen" then the C. & O. case would seem to have to turn on the past failure of the carrier to supply sufficient cars for normal times and that the injury does not arise wholly from abnormal conditions, but is only aggravated thereby. It will prove a nice question and opens a wide field for speculation on a question agitating every shipper. THOMAS W. SHELTON. NOTES OF IMPORTANT DECISIONS. | the contract entered into between respondent and appellant's grantor. CONSTITUTIONALITY OF MORATORIUM LAWS.-South Dakota, in company with many other states during the war with Germany, passed moratorium laws, the aim of which was to prevent those who enlisted in the armed forces of the United States from being deprived of their legal rights without opportunity to take the proper steps to conserve such rights. But South Dakota went further than most states and passed a law which, instead of merely preserving the remedies of the enlisted man, released him from the obligation of the contract into which he had entered. Section 1 of the Moratorium law of South Dakota exemps the beneficiaries under such law, until one year after the termination of the war or of service therein from any obligation to pay moneys due on any contract except life insurance policies. Section 2 provides that "the enforcement of any right of entry which may hereafter arise during the continuance of the present war shall be suspended or stayed" during the period above mentioned. The Supreme Court of South Dakota, in the recent case of Granger v. Luther, 176 N. W. 1019, held this act to be unconstitutional on the ground that instead of affecting the remedy it destroyed the obligation of contracts entered into by enlisted men. In the case under consideration the plaintiff, who afterwards enlisted in the army, was in possession of a lease, a provision in which gave the landlord a right to re-enter and take possession on nonpayment of the rent. After plaintiff had gone into the army and had defaulted in his rent the landlord took possession of the premises and subsequently sold the property to the defendant. On his return from the war plaintiff brought suit to recover the possession of the premises under his lease. In reversing a judgment nisi in favor of the plaintiff the Supreme Court said: "We are of the opinion, in view of the remainder of section 2, that the above provision as to enforcement of 'right of entry' relates only to enforcement by action and therefore pertains only to legal proceedings brought against the beneficiary under such law. We therefore think it has no application to the facts of this case. But if we were to hold that it denied to a party the contracted right of entry-the only ground upon which respondent can deny appellant's right of possession of said land-then we are presented with the question as to whether the provisions of sections 1 and 2 above referred to impair the obligation of "That they do impair the obligation of this contract is perfectly apparent. As said by the court in Edmondson v. Ferguson (supra): "If the General Assembly were to pass an act declaring that a contract for the payment of any stipulated sum of money within one year should not be due and payable for five years, it would be readily seen that the obligation of the contract was impaired-the contract would be lessened in value.' "Here, by section 1, our lawmakers have attempted to extend the time for payment of money due under contract. If A enters into a contract whereby he leases land to B, B's right of entry to come into existence and the term of the lease to commence upon a certain date, any law that would take from B the right to enter on said land or defer the exercise of such right impairs A's obligation under such contract and thereby diminishes the value of such contract to B. Here, upon the happening of either one or two events, the lessor or his grantee had, under the contract entered upon and taken possession of said premises. Both events happened; respondent defaulted in payment of rent, and the lessor sold the premises." It is to be observed that most of the Moratorium laws passed during the Civil War merely suspended the right to sue or issue process against one in the military service of the United States. Edmondson v. Ferguson, 11 Mo. 344; Johnson v. Higgins, 3 Metc. (Ky.) 556; Coxe's Executor v. Martin, 44 Pa. 322; McCormick v. Rusch, 15 Iowa, 127. It is also well to observe that a state of war does not justify a breach of constitutional rights. The obligation of a contract cannot be impaired, although the legal remedy thereon may be deferred. Recent decisions on the Moratorium laws recently enacted disclose the fact that the courts are careful to find as a fact that the purpose and effect of such laws is merely to suspend the ordinary legal remedies. Thress v. Zemple, 174 N. W. (N. D.) 85; Konkel v. State, 168 Wis. 335; Pierrard v. Hoch (Ore.) 184 Pac. 494. LIABILITY OF MASTER WHO LENDS HIS SERVANT TO ANOTHER FOR THE NEGLIGENCE OF SUCH SERVANT.-The cases in America and England are difficult to reconcile or to distinguish on the question of which master is liable when one lends a servant to the other. In the recent English case of Paulson v. Jarvis & Co., 122 L. T. Rep. 471 (Decided Dec. 17, 1919, by the Court of Appeals) it was held that the master who lends a team and driver to another is liable for the driver's negligence. |