« PreviousContinue »
book within the terms of R. L. 1905, § 4719. . . . The ledger entry was, however, properly received. It was, in tact, an original entry. Mr. Graupman, plaintiff's manager, testified in substance that this ledger is a record kept in plaintiff's office; that the entries in it are made, at the time of the transactions, from temporary sales slips which are not preserved; that this entry was made by a clerk in the office; that he did not know whose handwriting it was; that he saw it at the time it was made up; and that it was a true and correct statement of the account of the sale of this car. . . . The foundation was sufficient." Many of the numerous decisions upon this subject are under statutory provisions. We have no such statute in this state, and must rest our decision upon reasons which underlie the recognized rules and principles of evidence, as applied to modern business methods and conditions. The original rule has long since outgrown one of the limitations placed upon it by the earlier decisions and law writers, which was that it (Vosburgh v. Thayer, 12 Johns IN. Y.] 461) "was intended for cases of small traders who kept no clerks."8
s Haley & Lang Co. v. Del Vecchio, 153 N. W. 898.
NOTES OF RECENT DECISIONS.
Agency—Real Estate Broker—Commissions.—1. Where a broker's contract for the sale of real estate provides for a net amount to the owner, his compensation is such sum as the purchaser is ready and willing to pay in excess of such net price. 2. Where a broker brings the purchaser and owner together, the fact that they conclude a transaction different in terms from the one which the broker was authorized to negotiate does not deprive him of his right to commissions. 3. A stipulation in a real estate broker's contract promising him a compensation in the event of a sale of the property by the owner himself during the life of the contract is valid and enforceable, where the broker has used ordinary diligence in endeavoring to make a sale of the property. Futse.ll v. Reeves, 176 S. W. 1151. (Ky.)
Attorneys•—Champerty And Maintenance.—It is not against public policy as champerty or maintenance, for an attorney to solicit business, or to advance money to a poor client for his living expenses during litigation, or to advise a client against the settlement of his case. Johnson v. R. Co., 151 N. W. 125; 81 Cent. L. J. 9 note. (Minn.)
Auctions—By Bidding—Offer And Acceptance.—Where an owner does not, ata sale by auction, announce his intention to bid, by-bidding is illegal and he cannot hold a purchaser where the price has been run up by such means. A bid at auction for the sale of real estate, without notice of reservation, is but an offer to purchase and not an acceptance of an offer, and where a bid is not accepted there is no contract and the knocking down of the property on a higher bid made by an agent of the owner must at least be given the effect of a withdrawal of the property from sale. The action was for specific performance and a decree sustaining a demurrer to the bill was affirmed. Freeman v. Poole, 93 A. 786. (R. I.)
Banks And Banking—Death Of Depositor.—To the extent that a bank check works an assignment pro tanto of a fund on deposit, the death of the depositor will not revoke the authority of'the bank to pay the check which has been given for a valuable consideration, and is therefore coupled with an interest. Elgin v. Gross-Kelly Co., 150 P. 922; 81 Cent. L. J. 207. note. (N. M.)
Carriers Of Goods—Completion Of Delivery Of Goods—Private Track.— Freight And Demurrage.—Where a shipment of coal was consigned for delivery to a coal dealer on a private track, which was located, however, on land owned by the carrier and under its exclusive control, the carrier was not entitled to payment of freight and the coal dealer incurred no liability for demurrage until the cars had been placed on said private track. New York. Etc., R. Co., v. Porter, 108 N. E. 499. (Mass.)
Carriers Of Passengers—Injuries To Passengers Ry Fellow PasSengers.—While plaintiff was a passenger on defendant's railroad, P., another passenger, began threatening damage to him. He complained to the conductor, who looked at P., who ceased to annoy plaintifi until the conductor passed to another car, when he again began to threaten violence and to indicate that he would destroy plaintiff's baggage. A man in uniform, who could have been found to be a trainman, came into the car and, seeing what was going on, asked P. to cease bothering plaintiff. P. told him to "Get out of here!" and he at once went into another car, wheieupon P. immediately assaulted plaintiff. Held that the trainman's knowledge of the conduct of P. was such as to make a question for the jury whether the carrier complied with its obligation to use the highest degree of caution in preventing injuries to passengers from all sources. Isenberg v. R. Co., 108 N. E. 1046. (Mass.)
Constitutional Law—Warehousemen—Due Process Of Law.—The Code of South Dakota, declaring that no person, firm or corporation doing a warehouse business, having issued a receipt for the storage of grain, shall be permitted to deny that the^gnain' represented thereby is the property of the person to whom such receipt is issued, and such receipt shall be deemed, so far as the duties of such a bailee are concerned, conclusive evidence that the party to whom it. was issued is the owner, is not invalid as an invasion of the province of the judiciary or a deprivation of property without due process. Street v. Farmers' Elev. Co., 149 N. W. 429. (S. D.)
Contracts—Lorrying*.—Any person interested in any proposed legislation before any legislative body, including the common council or other lawmaking body of a municipal corporation, may legally employ an agent or an attorney to collect facts relating thereto, and to prepare a bill, and to explain the desired measure to the legislative body or any committee thereof fairly and openly, and have it introduced, and a contract to pay for such services, so rendered, is not a violation of law or of public policy. By an agreement defendant paving company engaged to pay plaintiff 3 per cent of the contract price on all contracts for street Improvement work entered into between it and a city, to be earned when the contracts should have been duly signed by the company and the city, such agreement providing that plaintiff should "at all times do everything in his power" to further the business of the company, it being contemplated that the plaintiff was to circulate petitions among property owners asking that streets be paved with the company's product and obtain signatures of 20 per cent of the property owners, to present such petitions to the city council, to answer remonstrances and, by bringing property owners before the street committee and the council, to procure the passage of ordinances and resolutions authorizing the paving of streets and assessing the expense on the adjacent lots. Such agreement was treated as in effect a selling or promoting proposition,, and in view of the fact that the compensation was contingent and was broad enough to cover services of any kind, secret or open, honest or dishonest, and the exercise of personal and private influence upon the city council, and of the further fact that such compensation was probably included in the company's contract price, the agreement was held invalid as against public policy. Hyland v. Oregon Par. Co., 144 P. 1160. (Ore.) .
Convicts—Commutation Of Sentence.—A prisoner sentenced to the state prison for life, whose sentence is commuted to one for a term of years, is entitled to diminution of that sentence by reason of good conduct commencing on the day of his arrival in prison, and not from the time of commutation of his sentence. State v. Wolfor, 148 N. W. 876. (Minn.)
Damages—Reduction Of Claim—Evidence.—In an action for personal injuries, evidence that plaintiff, having an accident insurance policy for $2,000, settled the claim thereunder for the same injuries for $300, was properly excluded, since while if plaintiff had stated to the insurance company or anyone else that his injuries were less than he testified them to be at the trial, or if he thus contradicted himself by acts as well as words, such contradictory statements or acts might be proved, the fact of a settlement of the amount received in settlement had no probative value, unless such amount was reduced because of representations as to the fact, character or extent of the injuries, and the questions asked and the offer of proof should have been directed to the feature having a bearing upon the case on trial. Dcmpsey v. R. Co., 219 F. 619. » f
Insurance—Mutual Benefit—Right Of Certificate Holder—Increase Of Assessment.—A certificate, issued by a fraternal insurer, authorized the association to levy as many assessments as might be necessary to meet death losses. The by-laws under which the certificate was issued declared that the member should pay the same rate of assessment as long as he remained in good standing. The association reserved the right to change the by-laws. Held that there was no contract in the ordinary sense, the insurance being but a mutual promise by every member to pay the certificate of every other member; hence the holder had no vested right, preventing the association from raising the assessment to such a rate as would pay death claims. Thomas v. Knights of Macrabers, 149 P. 7. (Wash.)
Insurance—Life—Payment Of Premiums—Fraud On Creditors.—Premiums paid for life insurance are, as against existing debts, voluntary gifts, and conclusively fraudulent; premiums so paid in fraud of creditors may be recovered to the extent of those paid within the statutory period of limitation, i. e., six years before the commencement of the suit; loans made to assured upon the security of life insurance policies and deducted from the proceeds by the company will not be set off against premiums paid in fraud of creditors in a suit brought to recover them. Lanning v. Parker. 94 A. 64. (N. J.)
Insurance—Fire—Waiver Of Condition—Knowledge Of Company•— Renewal.—A fire insurance company cannot be deemed to have waived a breach of the warranty in a policy insuring lumber that a continuous space of 100 feet shall be maintained between the lumber and the mill of the assured, because during the life of an earlier policy, of which the one in question is a renewal, the insurance company learned that there were permanent structures between some of the lumber piles and the mill, reducing the clear space in that direction to less than 100 feet, where the policy requires any waivers to be written upon or attached to that instrument. Lumber Underwriters Co. v. Rife, 35 & C. 717. (U. S.)
Intoxicating Lkjuorh—Commerce—State Regulation — Werr-kenyon Act.—Shipments into a state of intoxicating liquors, which, because intended solely for the personal use of the consignees, were not to be used in violation of the laws of the state as construed by its highest court, were not subjected to the operation of a law of such state forbidding carriers to bring intoxicating liquors into, or deliver them in, any dry territory, by the provisions of the Webb-Kenyon act of March 1, 1913, prohibiting the •interstate shipment or transportation of intoxicating liquor which is intended by any person interested therein to be received, possessed, sold, or in any manner used, either in the original package or otherwise, in violation of any law of the state into which the liquor is transported. Adams Express Co. v. Kentucky, 35 S. C. 824. (U. S.)
Joint And Several Liarilities.—Where 60 property owners contracted with a special police officer to pay him $1 each per month, he to be under control of all of them and to report nightly for instructions from any of the subscribers at a certain place, the contract of hiring was joint, and not several, giving rise to a joint liability on the part of the subscribers for tortious acts committed by such officer within the scope of his authority and employment. Terry v. Burford, 175 S. W. 538; 80 Cent. L. J. 424 note. (Tenn.)
Master And Servant—Malicious Interference With Employment.—In a suit for malicious interference with plaintiff's contract of employment, held that there was sufficient to warrant a finding that defendant wrongfully caused the service of an alleged assignment of plaintiff's wages on his employer; that the annoyance thereby caused was the reason for plaintiff's discharge, and that there was enough to fasten liability on the defendant. Kennedy v. Hub Man. Co., 108 N. E. 932. (Mass.)
Master And Servant—Workmen's Compensation Act—Injury In The Course Of Employment.—Where a servant was injured while riding to his place of work in a wagon which was furnished by the master as incidental to the employment and as a part of the contract of employment, the injury arose out of and in the course of his employment, under Workmen's Compensation Act. Re Donovan, 104 N. E. 431. (Mass.)
Master And Servant—'wrongful Discharge—Offer Of Reinstatement. —An employee who is wrongfully discharged, but who is offered reemployment on the same terms, must accept re-employment or waive damages accruing after the offer, and that he had during his employment experienced difficulty in collecting his salary does not justify his refusal of re-employment unless the employer will agree to secure the payment of his salary. Gray v. Pacific Suction Cleaner Co., 146 P. 190. (Cal.)
Mechanics' Liens—Husrand And Wife.—An estate by the entirety cannot be made subject to a lien for materials furnished to either the husband or the wife for the purpose of erecting a building upon the property, without the consent of the other to such lien. Finch v. Cecil, 86 S. E. 992; 81 Cent . L. J. 459 note. (S. C.)
Mortgages, Chattel—After-acquired Property.—Under a chattel mortgage providing that the mortgagor might sell in the ordinary course of business, replacing the stock with new stock and keeping it to its present value, and that it covered all after-acquired property added to the business in any manner or during the existence of the mortgage, the mortgagee did not rely or intend to rely upon the agreement to sell from the stock and replace it with new stock, and, in view of what interested third parties might ascertain from inspection of the mortgage, he could take only such goods as he showed title to, which were in existence at the date of the mortgage or substituted for articles sold by purchase from the proceeds.—Williams v. Koyes Co., 92 A. 56; 80 Cent. L. J. 56 (annotated). (Me.)
Municipal Corporations—City Ordinances—Navigarle Waters — Bridges.—The City of Chicago by ordinance provided that its drawbridges over the Chicago River should be marked by an elevated red ball by day and a red lantern at night, prohibited any vessel from approaching a bridge until invited by the lowering of the ball or lantern, and provided that "at all other times such signals shall remain elevated." Held that' it was not within the power of the city, maintaining bridges which were an obstruction to navigation by so posting a universal denial of the right of approach, to relieve itself of the duty of having bridge tenders on duty, who should answer a vessel's request for passageway by giving promptly the information that was appropriate to the immediate occasion. City of Chicago v. Chicago Trans. Co., 222 F. 278.
Negligence—Master And Servant—Injury To Servant—Liarility.— Where an employee, without authority to employ or discharge men, but required to work as other men, permitted men to prepare to celebrate an incoming year by drilling a hole in a piece of iron to be filled with powder, and then taken out of the building and caused to explode, and while the men were at work the explosion occurred in the building, inj-uring a