Gambar halaman
PDF
ePub
[ocr errors][merged small][ocr errors][ocr errors][ocr errors]

WHETHER PRINCIPAL

OR

the State uuder whose laws it is created or formed, ignorant of the circumstances which render it roida. and in which it has its corporate existence, and a suit ble by the principal. Thompson v. Lockwood, 15 by or against such corporation is therefore presumed Johns. 256; Fisher v. Shattuck, 17 Pick. 252; Kobinson to be a suit by or against citizens of the State which v. Gould, 11 Cush. 55; Bowman v. Hiller, 130 Mass. created it. 0. & M. Ry. Co. v. Wheeler, 1 Black, 295, 153; Harris v. Carmody, 131 id. 51; Griffith y. Sitand cases there cited; Cowles v. Mercer Co., 7 Wall. | greaves, 90 Penn. St. 161. TI case of Hawes v. Mar. 121; Railway Co. v. Whitton, 13 id. 283. And this chant, 1 Curtis, 136, in this court, was not a case of durule is upon principle as applicable to corporations ress at common law, but of oppression by the illegal formed under the laws of a foreign country, as uuder exercise of official power in excess of statute authority the laws of any of the States of the Union, which are and was decided upon that ground. (4) A mere allegaso far foreign to one another. A corporation formed tion of fraud in general terms, without stating the under the laws of Great Britain is necessarily resident facts upon which the charge rests, is insufficient. J'Antherein, and its members are presumed to be subjects son v. Stuart, 1 Term R. 748, 753. Lord Chancellor Selthereof. The suit being between an alien on the one bourne, Lord Hatherly and Lord Blackburn, in Wallhand, and citizens of a State of this Union on the ingford v. Mutual Society, 5 App. Cas. 685, 697, 701, other, the court has jurisdiction of the controversy, 709; 34 Eng. Rep. 65; Service v. Heermance, 2 Johns. let the questions involved therein be what they may. 96; Brereton v. Hull, 1 Denio, 75; Weld v. Locke, 18 Art. 3, $ 2, U. 8. Const.; Act of 1875, $ 1 (18 St. 470); N. H. 141; Bell v. Lamprey, 52 id. 41; Phillips v. PotCummings v. National Bank, 101 U. S. 153. Cir. Ct., ter, 7 R. I. 289, 300; Sterling v. Mercantile Ins. Co., 32 D. Oreg., Aug. 18, 1884. Dundee, etc., Investment Co. Pevn. St. 75; Giles v. Williams, 3 Ala. 316; Hynson v. v. School Dist. No. 1. Opinion by Deady, J.

Dunn, 5 Ark. 395; Hale v. West Virginia Co., 11 W. AGENT-TO SELL, CANNOT DEDICATE--STREET-VA

Va. 229; Capuro v. Builders' Ins. Co., 39 Cal. 123; Cole CATING-TITLE REVERTS TO ORIGINAL OWNER.- (1) A

v.Joliet Opera House, 79 Ill. 96. Cir. Ct., D. R. I., power of attorney to sell and convey does not imply Aug. 4, 1884. Hazard v. Griswold. Opinion by Gray, authority to the attorney to dedicate or give any part J. ([4] See 7 Am. Rep. 281.-Ed.) of the principal's property to the public; but when the CONTRACT-ESTOPPEL power is expressly to dedicate, the owner is estopped AGENT-ADEQUATE REMEDY AT LAW.–(1) He who conto deny the act of his agent. (2) In the event of a tracts as a principal will not be permitted to show, in street, previously dedicated to the city of Chicago, be- the absence of mistake, fraud or illegality, that he ing vacated by an ordinance of the common council, contracted as an agent in a controversy between himsuch vacation to continue so long, and so long only, as self and the other contracting party. Whart. Ag., $$ the ground shall be used for railroad purposes, a subse- 410, 492. And the knowledge of the other contracting quent resolution, declaring the vacation absolute, is party of his real character does not affect the rule. sufficient to operate as a waiver by the city of its re- Tayl. Ev., $ 1054. The case is not like those where a served rights in the premises, notwithstanding the part only of a verbal contract has been reduced to writfact that the latter resolution was passed by a majority ing (Potter v. Hopkins, 25 Wend. 417; Batterman v. rather than two-thirds of the aldermen elected. (3) Pierce, 3 Hill, 171; Grierson v. Mason, 60 N. Y. 394). When the city of Chicago assumes to vacate, even con- or where an agreement collateral to the written ditionally, a street previously dedicated to it loses all

agreement is set up (Lindley v. Lacey, 17 C. B. [N. S.] title with which it was vested by the act of plattivg. 578; Chapin v. Dobson, 78 N. Y. 74; Crossman v. Ful(4) By the vacating of the city of Chicago of a street ler, 17 Pick. 171) which does not interfere with the previously dedicated to it, the title to the ground does terms of the written contract, though it may relate to not pass to the abutting lot-owner, but to the original | the same subject-matter. The written contract here owner of the land. Hyde Park v. Borden, 94 Ill. 26; is of the very essence of the trausactlon between the Canal Trustees v. Havens, 11 id. 554. Cir. Ct., N. D.

parties, and creates the relation of vendor and purIII., May, 1884. Wirt v. JcEnery. Opinion by Blod- chaser between them. It fixes their mutual rights and gett, J.

obligations, and cannot be subverted by extrinsic eviNEGLIGENCE

WITHOUT

dence. As is stated by Denio, J., in Barry v. Rausom, READING - PLEADING - JURISDICTION,

12 N. Y. 464, “the legal effect of a written contract is FRAUD - MUST STATE FACTS — DURESS. — (1) A per

as much within the protection of the rule which forcapable of reading and understanding

bids the introduction of parol evidence as its laninstrument which he signs, is bound in guage." (2) While courts of equity have concurrent julaw to know the contents thereof, unless prevented risdiction in all cases of fraud, they will not ordinarily by some fraudulent device, such as the substitution of

exercise it, if there is a full and adequate remedy at one instrument for another. Thoroughgood's case, 2 law (Bisp. Eq., $ 200: Ambler v. Choteau, 107 U. S. 586), Co. Rep.9b; Anon.Skin.159; Maine Ins.Co.v.Hodgkins, and the Federal courts are especially admonished not 66 Me. 109; Seeright v. Fletcher, 6 Blackf. 380; Haw- to entertain such cases. The statutory enactment ($ 16 kins v. Hawkins, 50 Cal. 558. (2) In an action for of Judiciary Act, Rev.Stat., $ 723), if only declaratory of breach of a bond given in a suit in equity bronght by the pre-existing law, is at least intended to emphasize a stockholder in behalf of himself and other stock

the rule and impress it upon the attention of the court. holders, the obligors cannot defeat the action by plead- New York Co. v. Memphis Water Co., 107 U. S. 205. ing that the court had no jurisdiction of the suit in

It is the duty of the court to enforce this rule sua equity because the bill failed to allege that the corpo- sponte. Oelrichs v. Spain, 15 Wall. 211; Sullivan v. ration bad been requested and had refused to bring Portland R. Co., 94 U. S. 806. Cir. Ct., S. D. N. Y., the suit, the record made part of the plea showing that Aug. 11, 1884. White y. Boyce. Opinion by Walthe defendant was personally served and appeared in lace, J. such suit. Hawes v. Oakland, 104 U. S. 450; Hazard v, Durant, 11 R. I. 195. See also Jesup v. Hill, ở Paige. 95; Griswold, Petitioner, 13 R.I.125. (3) Duress at com

MASSACHUSETTS SUPREME JUDICIAL mon law, where no statute is violated, is a personal de

COURT ABSTRACT. fepse, which can only be set up by the person subjected to the duress; and duress to the principal will

CORPORATION-FRAUDULENT TRANSFER OF STOCKpot avoid the obligation of a surety; at least unless

NEW CERTIFICATE ISSUED.-We see no principle upon the surety at the time of executing the obligation is which it can be held that by merely recording the

SIGNING

INSTRUMENT

WANT OF

son

an

[ocr errors][merged small]

transfer and issuing a new certificate in accordance which he did. It is only in this mode that, as between with it, the defendant is guilty of negligence which the other creditors of Seekell and Foster, it can be derenders it liable to the estate for the stock or its value termined whether he had such a right. The result to in any form of action. When a transfer of its stock is which we have arrived does not conflict with the depresented to a corporation, it is bound at its peril to cision in Wilson v. Bryant, 134 Mass. 291. Bristol Co. see that it is a genuine transfer by one who has the Savings Bank v. Woodward. Opinion by Devens, J. power of disposition over the stock. Sewell v. Boston [Decided July, 1884.] Water Power Co., 4 Allen, 277; Merriam v. Boston, Clinton & Fitchburg Railroad, 117 Mass. 241; Pratt v.

LIMITATIONS--NEW PROMISE-LETTER.–The general Taunton Copper Co., 123 id. 110. If it issues a new

rules of law applicable to this case are well settled in certificate upon a forged or unauthorized transfer, the

this Commonwealth. As the plaintiff's original cause real owner retains his property in the stock, and the

of action accrued more than six years before bis suit corporation may also be liable to a bona fide holder of

was commenced, it is incumbent upon him, in answer the new certificate. But when a transfer, by one who

to the defense of the statute of limitations, to prove a has the full power to transfer, is presented, it has the

new promise in writing, either absolute or conditional, right to act upon it, and it is not its duty to inqnire by the defendant within six years. Pub. Stats., ch. into the purposes of the parties or to investigate the

197, § 15; Bangs v. Hall, 2 Pick. 368; Gardner v. Tuquestion whether the transaction is in good faith or is

dor, 8 id. 206; Bailey v. Crane, 21 id. 323; Penuiman v. fraudulent. Rand, as executor, had the full power of

Rotch, 3 Metc. Roscoe v. Hale, 7 Gray, 274; Wesdisposing of this stock; there is nothing in the will re

ton v. Hodgkins, 136 Mass. 3:26,.cited. The defendant stricting his general authority as executor as to it; he

in bis letter does not deny or question the plaintiff's had the power and right to sell it or to pledge it for

debt; by fair implication he admits it. But the letter the purposes of the estate. The defendant took care

does not contain any new promise to pay the debt. to inform itself of the authority of Rand, and knew

The plain object of the letter was not to make a new the relation of heir and legatee which Dillon sustained promise, but to refuse to make a new promise by girtoward the estate. We do not think it was bound to ing a note as requested by the plaintiff. The only go further and ascertain at its peril whether the trans. plausible ground for contending that the letter con. action between Rand and Dillon was in fraud of the tains a new promise is founded upon the last sentence. estate. Hutchins v. State Bank, 12 Metc. 421. Construing it in connection with the other facts of the Crocker v. Old Colony R. Co. Opiniou by Morton, letter, it cannot reasonably or by fair implication C. J.

be inferred that the defendant intended by it to make [Decided July, 1884.]

a new promise or create a new obligation. The fact to

be proved by the plaintiff is a new promise, and we are INSOLVENCY-HOLDER OF COLLATERAL SECURITY

of opinion that the letter is insufficient for this purPROOF OF CLAIM.—Where the creditor of the insolvent

pose. Krebs v. Olmstead. Opinion by Morton, C. J. estate of a deceased person holds a mortgage or other collateral security for his debt, which he received

[Decided Sept., 1884.] from his debtor, he cannot be admitted to prove his SHIP AND SHIPPING-GENERAL AVERAGE-FAILURE debt except for the balance which may remain after

TO MAKE ADJUSTMENT OF LOSS-FIRE EXTINGUISHED deducting the value of the security (which value is BY MUNICIPAL AUTHORITY.--The gist of the action is first to be ascertained by sale or appraisal), unless he

negligence in delivering the cargo without an adjustwill surrender the security to go into the common

ment of the loss as a general average loss, and without fund for the payment of creditors. Amory v. Francis, taking security for the payment of the contributive 16 Mass. 308; Middlesex Bank v. Minot, 4 Meto. 325; shares. The fundamental question is, was this a genSavage v. Winchester, 15 Gray, 453; Haverhill Asso

eral average loss? Although the steanship was at her ciation v. Cronin, 4 Allen, 141. But as this rule does

wharf, the maritime adventure was not at an end; the not apply where the collateral security is furnished by ship was still bound to the cargo for its safe delivery, a third person not primarily responsible for the debt,

and the cotton, on account of which the suit bas been because if the security is first applied to the reduction

brought, was undischarged. It must be considered of the debt there is eo instanti created a new debt of

that it is now established that damage to unburut porequal amount in favor of the surety whose property is tions of the cargo, caused by water intentionally used thus expended, the claimant deems that it has here

to extinguish a fire in a ship, is of the nature of a gen» no proper application. The security in question was

eral average loss. Whitecross Wire Co.v. Savill, 8 Q. B certainly furnished by the debtor; but the claimant's

D. 653; Nelson v. Belmont, 21 N. Y. 36; Nimick v. contention is that as it here appears that Seekell, pre

Holmes, 25 Penn. St. 366. The defense is that the fire viously to conveying in mortgage to the plaintiff, had

was extinguished, not by the master or by any person made a quit-claim deed of the premises to Foster, l'e

in charge of the steamship or her cargo, but by the serving to himself and wife a life estate therein, al

chief engineer of the fire department of New Bedford though the record title was still in him, he had no

under his authority to extinguish fires within the city, right thus to furnish security to the claimant, and it

and that it was necessary to do what he did, not only must be dealt with as if it had been furnished by Fog

for the purpose of saving the ship and cargo, but for ter. A proceeding to which Foster is not a party does

preventing the spread of the fire to buildings not afford the means of determining whether as be- and other property in the city.

The right to tween her and Seekell the latter had a right to make

extinguish fires in the city of New Bedford is a part of this mortgage and furnish the security, nor whether

the police power of the Commonwealth. It is clear the application to the reduction of this debt would or

that the chief engineer and his men were not employed would not immediately create a new debt equal in

to extinguish the fire by any person lawfully in charge amount thereto from the estate of Seekell to her. As

of the steamship, but that they acted wholly under the security was not furnished to the plaintiff by Fos

their public employment. To constitute a general after, it has made no contract and is under no obligation

erage loss, there must be an intentional sacritice of a to her, and it should arail itself of the security re

part of tbe property for the purpose of saving the received from Seekell toward the satisfaction of its

mainder from a common peril, or extraordinary ex. debt, or by a proper assignment and transfer of it to

penditures must be incurred for the purpose of saving the administrator of Seekell's estate enable him to ag.

the property in perll. The authority to determine sert, as against Foster, the right of Seekell to do that

when a sacrifice shall be made and what property shall

or

be sacrificed rests with the master or other person law extent to which Hogan was injured, but this furnishes fully in command of the ship. His right to sac- no reason against maintaining this suit. Hoosac Tun. rifice the property of other persons than the nel Dock Co. v. O'Brien. Opinion by Morton, C. J. ship owner is derived from necessity, whereby iu [Decided July, 1884.] circumstances of great peril he becomes the agent of all persons whose property in the common adventure is in peril. If this property is injured or destroyed by NEBRASKA SUPREME COURT ABSTRACT. strangers to the ship and cargo, who are not employed by the master or other person in command, it is not a SPECIFIC PERFORMANCE-SALE OF LAND- ASSENT OF general average loss. This is evident if the act of the VENDOR-ASSIGNMENT OF CONTRACT.-A condition in stranger is a tort; but we do not see that it makes any a contract for a sale of real estate, requiring the assent difference in principle if the act of the stran- of the vendor to av assignment of the same, but not ger is justifiable on the ground of a public providing for a penalty or forfeiture of the contract,

paramount right. The distinction between will not defeat an action by the assignee thereof, who a fire put out by the authority of the master has fully performed, for specific performance. Such or other person in command, and one put out provisions are sometimes inserted in leases, because it by public authority without regard to the will of the seems to be a reasonable privilege that the lessor shall master, we think is sound. When a ship has been select such tenants as in his opinion will take prope brought to a wharf, so far as it has become subject to care of the leased premises and pay the rent punctmunicipal control, if that control is exercised, we ually (Tayl. Landl. & T. [7th ed.] 349); but it is a rethink that it stands no differently from any other prop- straint which courts do not favor. Crusoe v. Bugby, erty within the municipality over which the same con

2 W. Bl. 766; S. C., 3 Wils. 234; Church v. Brown, 15 trol has been exercised; and that the general maritime Ves. 258, 265; Tayl. Landl. & T. 349. Upon a breach law does not govern the reciprocal rights and obliga- the original lessee becomes liable for damages; but tions of the parties to the maritime adventure, so far

the lease is not terminated, or the interest of the subas the consequences of this control are concerned, but lessee destroyed, unless the original lease is made on that they are to be determined by municipal law.condition that there shall be no assignmerrt or underWamsutta Mills y. Old Colony Steamboat Co. Opinion letting, or provides that the original lessor may, upon by Field, J.

any assignment or underleasing, enter and expel the

lessee or his assigns. 1 Pars. Cont. (5th ed.) 506; 1 ARBITRATOR-EXEMPTION FROM LIABILITY -- AT

Smith Lead.Cas.(6th ed.) 89 et seq. But to create a good TORNEY-LIABLE FOR SUBORNING WITNESS-JUDG

condition upon which a term granted by a lease shall MENT-COLLATERAL ATTACK.-(1) The principle is too well settled to require discussion that every judge,

end before it expires by lapse of time, a right to rewhether of a higher or a lower court, is exempt from

enter on breach must be expressly reserved. Dennison

v. Read, 3 Dana, 586; Vanatta v. Brewer, 32 N. J. Eq. liability to an action for any judgment given by him in the due course of the administration of justice. 268 ; Boone Real Prop., $ 102; 1 Washb. Real Prop. (4th Yates v. Lansing, 5 Johns. 282, and 9 id. 395; Pratt y.

ed.) 479. Where however, as in this case, there was an

absolute sale of the property, and the terms of the Gardner, 2 Cush. 63, cited. A similar immunity ex

contract have been fully complied with by the purtends to jurors. The question whether a like immu

chaser or his assignee, it is no defense to an action for nity extends to arbitrators seems never to have arisen in this Commonwealth. An arbitrator is a quasi-judi- specific performance to allege that the defendant did

not give his assent to the assignment. There is no cial officer under our laws exercising judicial functions. There is as much reason for protecting and in

claim or pretense, nor indeed could there be, that the

contract is forfeited, or that the defendant's security suring his impartiality, independence and freedom

is impaired in any manuer by the assigument. Where from undue influences as in the case of a judge or ju

a penalty of forfeiture is designed as a mere security ror. The same considerations of public policy apply, and we are of opinion that the same immunity extends

to enforce the principal obligation, it has performed its

purpose when the party insisting upon the penalty or to him. Joues y. Brown, 54 Iowa, 74. It follows that

forfeiture is fully paid his money or damages. Story this suit cannot be maintained against the defendant, Sprague, and his demurrer must be sustained. The Eq., $ 1316; Peachy v. Somerset, 1 Strange, 447 ; Skin

ner v. Dayton, 2 Johns. Ch. 535. The defendant in this demurrer of the defendant, O'Brien, presents a differ

case has been paid according to the terms of the conent qnestion. The immunity from actions

tract. While receiving and retaining the plaintiff's tended to Sprague on grounds of public policy does not protect O'Brien. (2) If a lawyer who brings a suit, by ity of the contract, his only plea is that he has not

money for the land, and thereby admitting the validbuborning witnesses, by bribing the judge, jury or arbitrators, or by other corrupt and illegal practices, given his assent to the assignment to the plaintiff

. He

has the notes of the original purchaser, and the plaintprocures an unjust judgment against his adversary, we kuow of no legal reason why he should not be responsi: tract, by a mortgage on the land. This is sufficient,

iff offers to secure them, as agreed upon in the conble for his illegal acts to the party injured. He is not

and the answer constitutes no defense to the action. exonerated, because for reasons which do not apply to him, a joint tort feasor cannot be reached. Rice v.

Wagner v. Cheney. Opinion by Maxwell, J. Coolidge, 121 Mass. 393. (3) The defendant contends that [Decided July 16, 1884.] the judgment founded on the award cannot be im- TRIAL-JUROR-COMPETENCY--HEARING PREVIOUS peached, and that it is conclusive on the plaintiff, and CASE.—That a juror was one of a jury which had just while unreversed prevents him from maintaining this tried a case between the present plaintiff and another action. This argument is founded upon a misappre- party, for a similar cause of action involving the same hension of the effect of the former judgment. The general considerations, does not render him incompeparties in this suit are not the same as in the former tent to sit in the subsequent case. In the case of Alsuit. The plaintiff in this suit does not impeach the gier v. The Maria, 14 Cal. 167, the action was for damformer judgment; on the contrary, the plaintiff relies ages against defendant for negligence, by which sparks upon it and the fact that it is couclusive as between it of fire escaped from the chimney of the steamer while and Hogan, as the foundation of its claim against navigating Feather river, and burned up one mile of O'Brien. The plaintiff may have to try in this suit plaintiff's fence along the river bank. On the trial, a jury one of the issues involved in the former suit, viz., the from the regular panel being called, defendant objected

ex

to the panel, on the ground that they had just passed bate Court of A. county, in Illinois, to the plaintiff in upon a similar case between the same plaintiff and error, who applied to the District Court of L. county, others against the same defendant, for burning the in this State, for license to sell the real estate. Held, grain of plaintiff's on the same day the fence was that such administrator had no authority as such in burned, and that they were not fair and impartial, but this State, and such license could be grauted legally had formed and expresed an opinion. The court over- only to an administrator appoiuted by the Probate ruled the objection. Upon error the Supreme Court Court of L. county, in this State, that being the place affirmed the judgment, and in the opinion by Bald- of domicile of the deceased at the time of his death. It wiu, J., say: “ We do not see how the court could de- is a generally recognized legal proposition that the last termine, in advance of the development of the facts, place of domicile of the deceased is the place where that the questions involved in this case were the same letters testamentary or of administration must issue, as in the case before tried by the jury. They might or and that the Probate Court of that place alope bas jų. might not have been. The opinion expressed or im- risdiction. In Rubber Co. v. Goodyear, 9 Wall. 789, plied by the jury in their verdict was merely bypotbeti- the Supreme Court of the United States bas held that cal. It was merely the conclusion they drew from the the last domicile of the deceased determines the juris. facts in evidence and the law given them in the charge diction as to administration. See also Wells Juris., $ in the particular case before them. It would be absurd 275. See also Creighton v. Murphy, 8 Neb. 356; 8. C., to say that if they had rendered a verdict a year be- 1 N. W. Rep. 138; Minkler v. Woodruff, 12 Neb. 270; fore, on facts before them going to establish, or which S. C., 11 N. W. Rep. 296; Cadman v. Richards, 13 Neb. they supposed established, the liability of a steamer 386; S. C., 14 N. W. Rep. 159. McAnulty v. McClay. for acts of negligence, they could not now sit upon a Opinion by Reese, J. case which might involve the same liability; and the [Decided Aug. 7, 1884.] question is not different merely because the first trial was immediately before the last. The jury could not possibly know what facts would be brought out in the

INSURANCE LAW. case, nor what the argument of counsel would be, por what the rulings of the court * * If one plaintiff

FIRE-PROOFS OF LOSS—“FORTHWITH"- QUESTION pues a sheriff for not making money on an execution,

FOR JURY.-Compliance as to giving notice and furand the jury find for plaintiff, and if a dozen other

nishing proofs of loss, is a conditiou precedent to re plaintiffs should afterward sue for similar malfeasance

covery, when the loss is not payable until after such it would scarcely be contended that a juror was in

notice is given, etc., and such compliance must be alcompetent in every case after the first." See also

leged and proved; and a want of such allegations and Com. v. Hill, 4 Allen, 591, Chariton Plow Co. v.

proof can be taken advantage of uuder the general Deusch. Opinion by Cobb, C. J.

issue; it is not necessary to plead such defense spe.

cially. Edgerly v, Farmers' Ins. Co., 43 Iowa, 587; St. [Decided Aug. 7, 1884.]

Louis Ins. Co. v. Kyle, 11 Mo. 278; Inman v. Western NEGLIGENCE-CONTRIBUTORY.-G., a boy, between Fire Ius. Co., 12 Wend. 452; Columbian Ins. Co. v. eleven and twelve years of age, while walking on a rail

Lawrence, 10 Pet. 507; Mason v. Harvey, 8 Exch. road track at a point where there was no thorough- 819. One required to give notice of loss "forthfare, by accident stepped between the guard and main with" must give such notice with due diligence and rail at a switch, and was unable to extricate his foot,

within a reasonable time. St. Louis Ins. Co. v. Kyle, and a switch engive being turned on to that line, ran and Inman v. Ins. Co., supra; Peoria M. & F. Ins. Co. over and crushed his foot. Held, that if the employees

v.Lewis, 18 111.553; Niagara Fire Ins.Co.v.Scammou,100 of the company, after becoming aware of the perilous 111.644; S. C., 11 Ins. Law Jour. 614; Phillips v. Proteocondition of the plaintiff, by the exercise of a reasona- tion Ins. Co., 14 Mo. 220; Edwards v. Baltimore Ins. ble degree of care, could have prevented the injury, Co., 3 Gill, 176. And although the notice was given the company was liable. The rule is well settled that twenty-two days after the fire, it was held to be a a party who is injured by the mere negligence of an- question for the jury, whether given forthwith. The other cannot recover for the injury, if he by his ordi. Supreme Court of Connecticut in Lockwood v. Ins. nary negligence or willful wrong, proximately contrib

Co., 47 Conn. 553, say: "Extreme cases either way uted to produce the injury complained of, so that but may be easily determined. Between them there is a for his co-operating fault it would not have occurred, wide belt of debatable ground, and cases falling within except where the proximate cause of the injury is the it are governed so much by the peculiar circumstances omission of the defendant, after becoming aware of of each case that it is much better to determine the the danger to which the plaintiff is exposed, to use a matter as a question of fact." Such being the rule, proper degree of care to avoid injuring him. Shear. & the defendant had no right to have the question Red. Neg., $ 25; C.,C. & R. Co.v. Elliott, 4 Ohio St. 474; passed upon as one of law, and his request was propBrown v. Hannibal, etc., R. Co., 50 Mo. 4ől; Railroad erly refused, But the refusal did not terminate the Co. v. Davis, 18 Ga. 679; Cooper v. Central R. Co., 44 duty of the court in the matter. Whether the insured Iowa, 134; Cooley Torts, 674; Trow v. Railroad Co., 24 had given notice forthwith, was a point material to Vt. 487; Isbell v. Railroad Co., 27 Conn. 393; Hicks v. the decision of the case; without proof of that fact Railroad Co., 64 Mo. 430. If therefore the employees the plaintiff could not recover. There was evidence of the defendant in charge of the locomotive, after be. upon that point, and it was the duty of the court to ing aware of the perilous condition of the plaintiff, did charge correctly and fully whether requested to do 80 not exercise a reasonable degree of care to prevent the or not. Vaughan v. Porter, 16 Vt. 266. A party is en. injury, the defendant cannot rely on the plaintiff's titled to such a charge as the facts in the case require

. negligence to defeat the recovery. Burtnett v. Bur- Hazard v. Smith, 21 Vt. 123. The County Court is lington, etc., R. Co. Opinion by Maxwell, J.

always bound to charge the jury according to the rules [Decided Aug. 6, 1884.]

of law whether specifically requested so to do or not.

Redfield, J., in Buck v. Squiers, 23 Vt. 498; and see 16 ADMINISTRATOR LETTERS

id. 579; 28 id. 222; 39 id. 565; 40 id. 495. The plaintiffs OTHER STATE-AUTHORITY.-A citizen and resident of claim that such notice may be waived; but a waiver is this State died at his home in L. county owning prop- an intentional relinquishment of a known right. The erty in this State and the State of Illinois. Letters of existence of such an intent is a matter of fact. First adıninistration of his estate were granted by the Pro- Nat. Bank v. Hartford L. & A. Ins. Co., 45 Conn. 22;

ISSUED

IN

AN

[ocr errors][ocr errors][ocr errors]

Home Ius. Co. v. Davis, 98 Penn. 280; Dey v. Martin not need construction; hence Insurance Co.v. Berger, (Va.), 16 Rep. 443; but no question of waiver was 6 Wright, 285, and other cases cited have no applicabrought into the case; had it been, and found against tion. The argument that the judgment was entered the defendant, there would have been no error in this without the knowledge of the assured is without point. Sup. Ct. Vermont. Donahue v. Ins. Co. Opin- force. It was entered upon his confession, and he is ion by Taft, J. (56 Vt. 374.)

chargeable with knowledge. A man who gives a judg. LIFE-POLICY-PREMIUM NOTE-WAIVER.-A policy

ment or mortgage knows that it may aud probably of insurance was made September 4, 1879, to run five

will be placed on record. He may not have actual years, and a note taken for the premium due May 1,

knowledge of the time of its enty, but the act is his, 1880. The policy contained a provision that if the

and ho must be held responsible therefor. I am aware pote was not paid when due the policy should be void.

that it has been held in Green v. Homestead Fire In October, 1880, a loss oocurred. The premium note

Ins. Co., 82 N. Y. 517, and other New York cases, that was paid in April, 1881. Held, that the acceptance of

mechanics' liens are not incumbrances within the the premium was a waiver of the forfeiture of the pol- meaning of similar clauses in fire insurance policies. icy, and that the company was liable for the loss; that

These cases however go upon the ground that the the policy was voidable, not void. Sup. Ct. Neb.,

liens were not entered by the consent or procurement May 27, 1884. Phænix Ins. Co. v. Lansing. Opinion by

of the assured. These cases are not analogous, and do Maxwell, J. (20 N. W. Rep. 22.)

not apply. Sup. Ct. Pend., April 30, 1883. Hill v.

Penn. Mut. Fire Ins. Co. Opinion by Paxson, J. [See FIRE-INTRODUCTION OF NEW PARTNER INTO FIRM

37 Am. Rep. 830; 28 Eug. Rep. 161.-ED.) (15 W. AVOIDS.--The sale or transmutation of the various in

Notes, 43. terests between partners themselves, and nobody else

FIRE--CONDITIONE-WRITTEN AND PRINTED--CONFLICT having the control, and leaving the possession where

CONSTRUED AGAINST INSURER.-Insurance being a conit was, does not invalidate the policy; but the introduction of a new partner, with an investiture of an in

tract of indemnity, policies must have a reasonable cou

struction in view of that main intent of the parties, terest in him which he did not have before, does in

having reference to the particular nature and situavalidate the policy. Cir. Ct., D. Minnesota, June 26, 1884. Drennen v, London Assurance Corp. Opinion by

tion of the subject-matter insured. Where the reason Miller, J. (20 Fed. Rep. 657.)

of a general condition in a policy of insurance does not

exist in a particular case, the condition itself becomes FIRE-AUTHORITY OF AGENTS- WAIVER OF PROOFS meaningless and inoperative. Where therefore a form OF LOSS. - Where the authority of agents of a fire in- of policy is used by an insurance company for the insurance company consists of full power to receive pro- surance of a peculiar kind of property, peculiarly situposals for insurance, to receive moneys, and to coun- ated, which policy contains general conditions which tersign, issue, and renew policies, subject to such are inapplicable to the subject-matter of the insurrules and regulations as may be adopted by the com- ance, such conditions will be ignored by the court in pany, and such instructions as may, from time to time construing the contract. Where printed clauses in a be given by the management, they have authority to policy of insurance conflict with written clauses waive the immediate payment of premiums. Where therein, the former must yield to the latter. Harper an insurance company asserts, that a policy has been v. Insurance Co., 22 N. Y. 443. If a policy of insurcancelled previous to a fire, it waives all right to in. ance be obscure in its meaning, it must be construed, sist that the policy has been forfeited because the as between the parties, most strongly against the insurproofs of loss came too late. Portsmouth Ins. Co. v. ance company which issued it. A. owned individuReynolds, 32 Grat. 613; Allegre v. Maryland Ins. Co.,ally and owned in common with others a certain num6 Har. & J. 408; Graves y. Ins. Co., 12 Allen, 391; Nor. ber of barrels of petroleum placed for transportation & N. Y. Transp. Co. v. Ins. Co., 34 Conn. 561; Girard and storage in the Tidioute and Titusville Pipe Line, Co. v. Ius. Co. of New York, 97 Penn. St. 15; Ben- limited. To protect himself from loss by assessment nett v. Ins. Co., 14 Blatchf. 4:22; 9 How. 196; May in case of fire, he took out a policy of insurance for Ing., $ 469. But whether there was, in this case, a $2,500 on petroleum, “his own or held by him in trust complete waiver or not, it is quite clear, under the for others.” One of the printed conditions of said circunstances in proof, that the plaintiff should be policy provided that “if the insured is not the sole, held to be excused for the neglect, if neglect it was, to absolute, and unconditional owner of the property inforward the proofs sooner. Cir. Ct., Dist. Ind., Feb., sured, then this policy to be void." An assessment 1884. Ball, etc., Wagon Co. v. Aurora Fire and Mar. having been made on A. for a loss from fire. Held, Ins. Co. Opinion by Woods, J. (20 Fed. Rep. 232.) that the condition above set forth was not under the

FIRE-CONDITION-INCUMBRANCE-JUDGMENT IS.- circumstances applicable, and that the insurance comA. held a policy of fire insurance for $800 upon certain pany was liable to the extent of the policy, upon all premises, issued in the usual form, and containing, oil destroyed in which A. had any interest whatever. inter alia, the following condition: “If after insur- The company in the above case was not liable for the

the property * * shall be incum- loss of oil in which A. had no interest but which the bered by judgment, mortgage, or otherwise * * * owners had in writing requested him to insure before and the assured should neglect or fail to give written the issuing of the policy in suit. See Insurance Co. v. notice thereof, and pay such additional premium as Berger, 6 Wright, 285; Insurance Co. v. Mills, 8 id. 241; the company shall determine, and obtain written con- Hutchison v. Com., 1 Nor. 472. Sup. Ct. Penn., June sent of the company to a continuance of the policy, 9, 1884. Grandin v. Rochester German Ins. Co. Opinsuch insurance shall be void and of no effect." A. ion by Paxson, J. (15 Week. Notes, 1.) afterward gave a bond, with confession of judgment, and the same was entered of record without his knowl

CORRESPONDENCE. edge, and without notice to or consent of said company. The condition of the bond was duly complied

LAW OF JUDGMENT DEBTS. with, so that at no time could executiov bave issued

Editor of the Albany Law Journal: upon the above judgment, held, that such judgment There are certain causes at work, especially ia our was an inoumbrance upon the insured premises within large cities, which will result, it seems to us, sooner or the meaning of said policy and that upon a subsequent later, in a great diminution of legal business. In the loss of the premises by fire there could be no recovery. first place, nearly every large organization, like, for exThe terms of the policy are not ambiguous, and do ample, the New York Stock Exchange, has a private

ance

« SebelumnyaLanjutkan »