The contract at the time of performance was possible of performance; it is absolute in terms; it did not refer to any particular hay then in existence and contained no exceptions or conditions.

The general rule that subsequent impossibility of performance does not excuse performance has certain well defined exceptions: First, where the event which, occurring subsequent to the contract, is not reasonably within the intention of the parties at the time of the contract. Chicago, etc., R. R. Co., v. Hoyt, 149 U. S. 1. 13 Sup. Ct. Rep. 779; Krause v. Crothersville School Town, 162 Ind. 278, 70 N. E. 264, 102 Am. St. Rep. 203. Second, where the contract specifies a particular thing then in existence in respect to which the promises are made and whose continued existence is necessary to performance. In such a case there is an implied condition that the particular thing shall continue to exist.

Neither of these exceptions applies to the contract here under consideration. The fact that a farmer who is growing his own wheat, oats, hay, etc., contracts to sell a certain amount does not necessarily imply that he sells any particular wheat, oats, hay, etc., growing on his own land and he would not be required under the terms of such a contract to deliver the crop raised on his own farm but might go into the open market or to a neighbor and secure the particular quantity of the crop he agreed to sell. Under such circumstances one who unqualifiedly promises to deliver a quantity of hay on a day certain at a price specified should not be excused from performance because rain damaged his own hay crop. In the recent case of Berg v. Erickson, 234 Fed. 817, it was held that a resident of Kansas who agreed to furnish one thousand cattle, "plenty" of good grass, salt and water during grazing season, was not relieved of liability for performance by a drought which burned up his own and all surrounding pastures. We presume the court believed that a resident of Kansas should have been familiar enough with possibility of droughts to have anticipated that contingency.

The courts are inclined to be too lenient with those who enter into absolute undertakings on which the other parties to the contract have a right to rely. If one does not wish to agree to do a thing at all events it is easy for him to exclude contingencies which are liable to happen and for that reason should be presumed to be within the intention of the parties at the time they enter into their contract.

INCREASING CAPITAL STOCK DOES NOT GIVE STOCKHOLDER RIGHT TO HIS PROPORTIONATE SHARE UNTIL STOCK IS ACTUALLY ISSUED.-An interesting application of the pre-emption right of a stockholder in new stock issued by the company is found in the case of Hammer v. Cash, 178 N. W. 465, in which the Supreme Court of Wisconsin held that where an increase of stock was authorized and part of it issued that part already issued could be canceled and returned to the treasury at the discretion of the directors. The argument of defendant's attorney was that as soon as the increase in capital stock was voted defendant was entitled to his proportionate part and therefore was entitled to retain the stock To this contention previously issued to him. the court replied:

"The amendment of the articles of the corporation increasing its capital stock merely authorizes and empowers the corporation to issue increased stock in such amounts and at such times as may thereafter be determined by proper corporate authority. It is under no obligation to issue the stock merely because it has acquired power and authority so to do. Articles of incorporation are frequently so amended as to increase the amount of the authorized capital stock of a company in such amounts as will meet its contemplated requirements for some time in the future, without any thought that the whole amount of such increase shall at once be issued. May a stockholder, immediately upon an amendment of such character becoming effective, demand that his proportionate share of the entire amount of such increase be issued to him? Bearing in mind that this right is accorded to the stockholder in order that he may maintain his relative voice in the affairs of the corporation, it is manifest that the reason upon which the principle is founded is fully satisfied if he is permitted to purchase his relative proportion of such amount of the stock as is authorized is to be issued. To illustrate, a corporation may so amend its articles as to provide for an increase of its capital stock in the sum of $100,000. From the mere amendment of the articles, however, it does not follow that the entire amount of such increase is to be issued. Whether any part of such increase is to be issued, and when, and for what amount, rests with the corporation after it has acquired the authority so to do by the amendment to its articles. When the corporation decides to issue $50,000 of the authorized increase, the right of the stockholder is fully protected by permitting him to purchase his proportionate share of such $50,000 proposed to be issued, and this, we think, is as far as the rule extends."

The court further held that since the project for which the increase was voted (the building of an extension to a railway) was abandoned, the president and secretary had no authority to sell the stock and that therefore such sale was void.

Introductory-Public highways are for use by the public, for travel for purposes of pleasure as well as business, for short trips as well as long journeys. One may lawfully drive his automobile or his carriage and four or his ox-cart from his residence to the residence of his next-door neighbor, and with equal, but no greater right, from New York to San Francisco.

The fundamental idea of a highway is not only that it is public for free and unmolested passage thereon by all persons desiring to use it, but the use of a highway is not a privilege, but a right, limited by the rights of others, and to be exercised in a reasonable manner.1

The primary and dominant purpose of the establishment of highways is to facilitate travel and, transportation. They belong from side to side and end to end to the public, that the public may enjoy the right of traveling and transporting their goods over them.2

Coasting as a Customary Use-In determining the rights and liability of persons coasting in the public highways great stress has been laid upon the question of "customary use of the highways." Even admitting, however, that such use of a highway periodically, when the condition of the weather and the highway at the place made use of is permissible and inviting, is not a customary use, and that it does interfere to some extent with the use of the highway by usual and customary methods, is it in any sense unlawful for that reason? Has the right of sleighing parties, seeking pleasure only, to the use of the highways ever been questioned, although such use is periodical only, and depends upon climatic and highway conditions? Coast

(1) Terrill v. Walker, 5 Ala. App. 535. (2) Terrill v. Walker, 5 Ala. App. 535; Cincinnati Inclined Plane R. Co. v. Telegraph Assn., 48 Ohio St. 390, 426.

by automobiles, yet the latter use was not declared illegal when first introduced because it was not then usual and customary to travel in automobiles.

If such use of the public ways were new and novel, it could not be declared illegal on that account alone. Nor could it be so held because it interferes to some extent, that is, to a reasonable degree, with the use by other and more common methods.

"When the highway is not restricted in its dedication to some particular mode of use," said Chief Justice Cooley," "it is open to all suitable methods; and it cannot be assumed that these will be the same from age to age, or that new means of making the way useful must be excluded merely because their introduction may tend to the inconvenience or even to the injury of those who continue to use the road after the same manner as formerly. A highway established for the general benefit of passage and traffic must admit of new

methods of use whenever it is found that the general benefit requires them; and if the law should preclude the adaptation of the use to the new methods, it would defeat, in greater or less degree, the purpose for which highways are established.”

Any methods of travel may be adopted by individual members of the public, whether it is an ordinary or an extraor dinary method of locomotion, if it is not of itself calculated to prevent a reasonably safe use of the highways by others.*

In the absence of any limitation imposed by lawful authority the highways may be used for any and every kind of public travel and transportation which the necessities or convenience of the public may require. This use, of course, may be modified as public convenience or necessity may from time to time demonstrate to be need

(3) Macomber v. Nichols, 34 Mich. 212, 217, 22 Am. Rep. 522.

(4) Chicago v. Banker, 112 Ill. App. 94, 97.

ful. Time and necessity, as well as locality, being important elements in determining the character of any particular use of a highway.

"Almost any proper use of a highway may under some circumstances impede the use by another, and possibly render it dangerous. The appearance of any unusual object in the streets may have some tendency to add to the dangers of travel by means of horses or other animals, and there is always more or less danger that a high spirited horse, or indeed any other horse, may become unmanageable, and people who are using the highway be exposed to risks in consequence. But it does not follow that the driver of such a horse is responsible for the consequences because of his bringing him into the street impeding or rendering dangerous the travel by others. The question is one of reasonable use and reasonable care, and if these are observed he is not chargeable."

"The sport itself is not entirely foreign to the purposes for which public ways are established; for the use of these ways for pleasure riding is perfectly legitimate, and coasting is only pleasure riding in a series of short trips repeated over the same road, not differing essentially from the riding in sleighs, of which so much is seen on some of the streets of northern cities."s

In a Maine case it was said that, like racing or playing ball, sliding downhill is not an unlawful exercise or game, but that the streets are not proper places for such recreation, although one engaged in it is passing along the highway, in one sense, as any traveler would."

The "law of the road" has been held to apply to the use of public highways for coasting, but it has been held that such law does not apply to an unusual and ex

10

traordinary use of the highways, such as moving a building.11

The question of the right to coast on a public highway, therefore, does not depend upon whether or not such use is usual and customary, but upon whether it unreasonably interferes with other modes of locomotion. Necessarily, it does interfere with other methods of use, and renders the highway less safe for use by others, but it cannot be condemned as long as it remains within the bounds of reason in this respect.

As a Nuisance or Wrongful Act-Coasting in a public street of a city is not a nuisance per se. “We cannot concede that coasting upon a public street is an illegal act, so as to constitute it a public nuisance. Public highways are intended for pleasure uses as well as business uses; and it is difficult to see why a sled coasting downhill should be said to be a public nuisance any more than a sleigh drawn by horses going down the same highway."12

"It could not be seriously contended that for the municipal authorities to permit coasting upon such a street would be to license a public nuisance. On the contrary, as the sport is healthful and exhilarating, it seems eminently proper, if the street is not put to other public use, that this diversion be allowed, if not expressly sanctioned."13

However, such use of a highway, as any other use, may be made to constitute a nuisance. It has been declared that a large sled loaded with large sled loaded with several persons coasting down an icy street after dark, endangers the safety of every traveler upon the highway in its course, is inconsistent with the purposes for which the street was

(10) Terrill v. Virginia Brewing Co., 130 Minn. 46, 153 N. W. 136.

(11) Graves v. Shattuck, 35 N. H. 257, 69 Am. Dec. 536; Brooks v. Hart, 14 N. H. 307; Norris v. Litchfield, 35 N. H. 271, 69 Am. Dec. 546. (12) Lynch v. Public Service R. Co., 82 N. J. L. 712, 83 Atl. 382, 42 L. R. A. (N. S.) 865. See also, Burford v. Grand Rapids, 53 Mich. 98, 18 N. W. 571, 51 Am. Rep. 105; Jackson v. Castle, 80 Me. 119, 13 Atl. 49.

(13) Burford v. Grand Rapids, 53 Mich. 98, 18 N. W. 571, 51 Am. Rep. 105.

made and for which it is used, and is per sc a nuisance.14

For seven boys to coast down a hill on one sled, at such a high rate of speed as would necessarily follow, and to run into a city street at the foot of the hill, was held to be a wrongful act.15

And in a New York case, it was said that the construction and maintenance of a toboggan slide across one of the principal streets of a populous city, with little or no protection against collision between those riding thereon at a very high rate of speed and travelers passing along the street, is a wrongful, dangerous, and negli

gent act.16

When Violative of Statute or Ordinance -The fact that one is coasting in a highway in violation of a statute or ordinance does not preclude him from recovering for injuries inflicted by the negligence of other users of the way. In such a case the violation of law is a mere incident, and not a

A municipality is not liable to answer in damages to one who is injured while coasting in one of its streets when such use of the streets is forbidden by an ordinance. although the city officers habitually neglect to enforce the ordinance.19

Liability of Municipality for Injuries Caused by Coasting-A municipal corporation is not liable for failure to prevent coasting in its streets, to one who is injured by collision with a sled being so used.20

This is true although the street in question had been used for several years for coasting, and there was an ordinance in effect forbidding such use.21

In the absense of a statute creating such

liability, a city is not liable for injury to a pedestrian incurred by being run against by a coaster on a footpath in a common used as a place of recreation and public resort, the path not having been laid out as a highway and not being a part of the

no causal connection between the two.

In a Missouri case it is held that the driver of an automobile approaching a street intersection in a thickly populated district at a rapid rate of speed owes a boy who is coasintg in the street in violation of a statute, not only the duty to use ordinary care to avoid injuring him after his peril is actually discovered, but also the duty to exercise ordinary care to keep a lookout and discover his presence.17

Nor is he prevented from recovering because his act of coasting constitutes a public nuisance,18

(14) Rensch v. Licking Rolling Mills Co., 118 Ky. 369, 80 S. W. 1168.

(15) Eastburn v. United States Express Co., 225 Pa. 33, 73 Atl. 977.

(16) Hayden v. Clarke, 56 Hun 645, 10 N. Y. Supp. 291.

(17) Rowe v. Hammond, 172 Mo. App. 203, 157 S. W. 880. But see Osgood v. Maxwell, N. H., 95 Atl. 954.

(18) Lynch v. Public Service R. Co., 82 N. J. L. 712, 83 Atl. 382.

permitted boys to coast on the path, and had fitted the path for such coasting by building a bridge across it at an intersecting path and by turning water onto it to freeze and render it smooth.22

It has also been held that a city is not liable for injuries to a pedestrian received by reason of the slippery condition of a sidewalk, and by being run against after

(19)

Fluckiger v. Seattle, Wash., 174 Pac. 456, L. R. A. 1918F 780.

(20) Lafayette v. Timberlake, 88 Ind. 330; Dudley v. Flemingsburg, 115 Ky. 5, 72 S. W. 327, 60 L. R. A. 575, 103 Am. St. Rep. 257, 1 Ann. Cas. 958; Altrater v. Baltimore, 31 Md. 462; Brumbaugh v. Bedford, 23 Pittsb. L. J. N. S. 462; Toomey v. Albany, 14 N. Y. Supp. 572, 38 N. Y. S. R. 91; Wilmington v. Vandergrift, 1 Marv. (Del.) 5, 29 Atl. 1047, 25 L. R. A. 538, 65 Am. St. Rep. 256; Weller v. Burlington, 60 Vt. 28, 12 Atl. 215; Faulkner v. Aurora, 85 Ind. 130, 44 Am. Rep. 1. For the law of Maryland, see Taylor v. Cumberland, 64 Md. 68, 20 Atl. 1027, 54 Am. Rep. 759.

(21) Stevenson v. Phoenixville, 1 Chester Co. Rep. 113.

(22) Steele v. Boston, 128 Mass. 583.

dark by a boy sliding thereon, at a point where boys had been in the habit of sliding without interruption from the city authorities.23

Sliding in the public streets does not constitute an "obstruction" of the streets, so as to render the city liable to a traveler for injuries received by reason thereof.24

Nor does coasting constitute an "insufficiency or want of repair,"25 nor a "defect or want of repair," in the streets so used.20 Power to Exclude Coasters from Use of Highways—The right to use the public

highways is not an absolute and unqualified right, but is subject to limitation and control by proper exercise of the police power when necessary to provide for and promote public safety and well being.27

In an early Illinois case it was declared that, "a street is made for the passage of persons and property, and the law cannot define what exclusive means of transportation and passage shall be used."28

It has been decided that the regulation. of the use of the public highways, even to the exclusion of certain classes of vehicles from particular roads and places, is a proper exercise of the police power for the safety of the public.29

On the other hand, it has been held, in a case involving the right of motorists to use the highways, that while the state may regulate the use of automobiles upon its highways, it can no more prohibit their use thereon than it can prohibit the use of lumber wagons.30

(23) Shepherd v. Chelsea, 4 Allen 113. (24) Ray v. Manchester, 46 N. H. 59, 88 Am. Dec. 192.

(25) Schultz v. Milwaukee, 49 Wis. 254, 5 N. W. 342, 35 Am. Rep. 779; Hutchinson V. Concord, 41 Vt. 271, 98 Am. Dec. 584.

(26) Pierce v. New Bedford, 129 Mass. 534, 37 Am. Rep. 387; Hutchinson v. Concord, 41 Vt. 271, 98 Am. Dec. 584.

(28) Moses v. P., F. W. & C. R. Co., 21 Ill. (27) State v. Phillips, 107 Me. 249. 516, 523.

(29) State v. Phillips, 107 Me. 249; Com. v. Kingsbury, 199 Mass. 542.

(30) State v. Gish, 168 Ia. 70.

The question of right to use the highways resolves itself into the question of reasonable use and reasonable care, and if these exactions are met it is thought that it is beyond the power of the state to prohibit such use. However, a proper use and care does not depend alone upon the character of the vehicle and the degree of care exercised in its operation, but to a great extent upon the character of the uses of the ways by the public generally. It might be unreasonably dangerous to the public to permit coasting in certain ways, or

even any of the ways in a particular community, at all.

St. Louis, Mo.

C. P. BERRY.

LAWYER'S OFFICE SYSTEMS-REPORT OF A COMMITTEE OF THE IOWA BAR ASSOCIATION.

It is time the legal profession was waking up to the need of more modern methods in the law office. In all lines of industry and business great strides have been made in the last few years in efficient management. Closer competition, increased costs, higher prices and wages, and now war demands, have all conspired to force greater efficiency in business methods. But the average law office is the same old conservative institution.

All around us, in every line of business, and in every walk of life, we find modern tools and machinery, up-to-date methods, and progressive ideas forging to the front. Yet the law office remains an archaic institution. In spite of the progress on every side, there are today law offices where the telephone is on the wall in the outer office, and every time the bell rings the stenographer has to get up to answer the call, call the lawyer out to do his telephoningrepeating this many times, day after day,