tutions. Some of it may be well founded, for we have not yet entered upon the millennium of perfection. Nevertheless, the truth is that the status of the people has been immeasurably advanced; there is greater opportunity for education, for travel and enjoyment; a better chance for success in commerce, in the trades, in agriculture and all lines of work and affairs and business than ever before. The portals are wide open to any one possessing ability and a willingness to work, and who is ambitious to grasp the opportunity for advancement to respectability, affluence and independence. As compared with what the Pilgrims had we are living in an age of extravangance and in our daily life are supplied with luxuries never dreamed of by a Croesus. However, "Mankind never is, but always to be, blessed;" therein lies the mainspring of progress.

On December 22, 1820, Daniel Webster delivered his magnificent Plymouth oration, forecasting the immense expansion of our nation to the west, and anticipating our views of the people and events of his day, thus: "They are in the distant regions of futurity, they exist only in the all-creating power of God, who shall stand here a hundred years hence, to trace through us, their descent from the Pilgrims, and to survey, as we have now surveyed, the progress of their country, during the lapse of a century. We would anticipate and partake of the pleasure with which they will then recount the steps of New England's advancement. On the morning of that day although it will not disturb us in our repose, the voice of acclamation and gratitude, commencing on the Rock of Plymouth, shall be transmitted through millions of the Sons of the Pilgrims, till it loses itself in the murmurs of the Pacific seas."

Seattle, Wash.

FRED H. PETERSON.

HIGHWAYS-LIABILITY OF PAVING

CONTRACTOR.

METCALF v. MELLEN et al.

Supreme Court of Utah. Sept. 10, 1920.

192 Pac. 676.

A paving contractor, who agreed with the highway commission that he would guard unsafe places near the work and do all other things necessary to prevent accidents, is liable in tort to an automobile driver, whose machine was damaged because of the paving contractor's breach of his contract in that respect.

ས་

WEBER, J. Plaintiff brought suit against defendants to recover damages to his automobile and to those of three others whose causes of action were assigned to him. The court granted a motion for nonsuit made by the defendant Utah Light & Traction Company. The jury's verdict was in favor of plaintiff on each of the four causes of action. The defendant Mellen appeals.

It is not necessary to review the evidence. It is sufficient to say that plaintiff's evidence fully justified the court in submitting each cause of action to the jury, and that the evidence on the principal issues was conflicting. Citing Styles v. Long, 67 N. J. Law, 113, 51 Atl. 710, it is urged that—

"In order to maintain an action of tort for breach of a contractual duty, the plaintiff must have the same status under the contract as would entitle him to maintain an action upon contract for a breach of its stipulations," and "where a contract is made by a public corporation for the construction of a public work, and incidentally contains stipulations intended for the safety of the public, an individual, who sustains personal injuries by reason of the nonperformance of such stipulations does not bear such a relation to the contractor as will support an action of tort against the latter, based upon a mere violation of contractual duty.”

The provisions of the contract between Mellen and the state road commission are in part:

"The contractor shall erect and maintain good and sufficient guards, barricades, and signals at all unsafe places at and near the work and shall in all cases maintain a safe passageway at all road crossings, crosswalks, and street intersections, and shall do all other things necessary to prevent accident or loss of any kind. * * The contractor shall be liable for all damage done to water or other pipes, flumes, poles, or conduits, or other property owned by any person or corporation other than Salt Lake county."

*

Except those of New Jersey, the courts have held that such contracts inure to the benefit of any one of the public who is injured by the. neg

ligent failure of the contractor to take those precautions which he agreed to take for the protection of the public. The contract is a measure of the contractor's duty. If he assumes a responsibility broader than that of his commonlaw liability for negligence, he becomes liable for torts arising out of a breach of such duty which are the proximate cause of injury to third persons.

McMahon v. Second Avenue Railroad Co., 75 N. Y. 231, was a case wherein the railroad company had contracted with New York City to pave the streets upon which its tracks rested and to keep the same in repair. A trench had been dug across the street and under defendant's tracks, and the defendant took up the pavement and laid planks over the excavation. The plaintiff was injured in driving over the planks, and the court held that the defendant was liable on two theories: (1) Because of its contract with New York City; and (2) because it had negligently maintained the structure over the trench. In the opinion the Court, inter alia, said:

"A liability may arise in two ways: First, from the defendant's having contracted with the municipality to do, instead of it, the duty which was upon it, to keep the street safe for the passage of the public; and, by neglect to do that duty, having given cause of action against the municipality for neglect; then action will be directly against the defendant therefor, instead of first against the municipality, so as to avoid circuity of action (City of Brooklyn v. Brooklyn City R. R., 47 N. Y. 475) and, second, from the defendant's voluntarily interfering and undertaking to make the way safe, and so inefficiently doing it as to leave it unsafe, and, at the same time, so as to permit and tempt passage over it.

"For the purpose of showing the first named of these grounds of liability, a contract was put in evidence, between the defendant and the municipality, by which the defendant agreed to keep the streets in and about the rails in repair. * * There was then the duty upon the defendant, to the public and to this plaintiff, to keep the street in repair, just at the place where his wheels went down, or to warn away therefrom. There was no error

*

串 * *

in admitting in evidence the agreement between the defendant and the municipality. That was material and proper, to show that there was undertaken by the defendant the duty which lay primarily upon the city to give the public, and the plaintiff, as one thereof, a safe passage through the thoroughfares. The reception of the agreement in evidence did not change the cause of action from one arising in tort to one based upon contract. It showed the duty of the defendant, and made applicable the other facts of the case, to show its negligence of duty, wherein it was tortious."

The respondent cites the following cases and authorities which support the general doctrine;

Cook v. Dean, 11 App. 123, 42 N. Y. Supp. 1040, affirmed in 160 N. Y. 660, 55 N. E. 1094; Robinson v. Chamberlain, 34 N. Y. 389, 90 Am. Dec. 713; Baumgartner v. City of Mankato, 60 Minn. 244, 62 N. W. 127; Ober v. Crescent City R. Co., 44 La. Ann. 1059, 11 South. 818, 32 Am. St. Rep. 366; Casement v. Brown, 148 U. S. 623, 13 Sup. Ct. 672, 37 L. Ed. 582; St. Paul Water Co. v Ware, 16 Wall. 566, 21 L. Ed. 485; Phinney v. Boston El. Co., 201 Mass. 286, 87 N. E. 490, 131 Am. St. Rep. 400; Jenree v. Metropolitan Ry. Co., 86 Kan. 479, 121 Pac. 510, 39 L. R. A. (N. S.) 1112, Ann. Cas. 1913C, 214; Wade v. Gray, 104 Miss. 51, 61 South. 168, 43 L. R. A. (N. S.) 1046; Sullivan v. Staten Island El. Ry. Co., 50 App. Div. 558, 64 N. Y. Supp. 91. See also Alameda County v. Tieslau (Cal. App.) 186 Pac. 398, notes 39 L. R. A. (N. S.) 1112, 49 L. R. A. (N. S.) 1167, Ann. Cas. 1913C, 214.

In the light of the above authorities, and upon principle, we conclude that a case was stated and proved against appellant, based upon his common-law liability for negligence, and also upon the tort arising from the breach of the contract, in which he assumed duties and obligations that he has no right to repudiate when his negligent failure to comply with and observe them has resulted in injury and damage to the property of respondent and that of his assignors.

The judgment is affirmed, with costs. CQRFMAN, C. J., and GIDEON and THURMAN, JJ., concur.

FRICK, J., specially concurs.

NOTE-Liability to Third Person of Contractor Agreeing to Indemnify City for Injury.-The array of cases cited by the instant case may be conceded, but this may not prevent a careful looking into the purpose of a contract to prevent damage to third persons. Thus it was held in St. Paul Water Co. v. Ware, 16 Wall. 506, 21 L. Ed. 485, that where a water company agreed with a city to protect all persons against damages by reason of excavation, the company could be held liable to one who was injured by his horse being frightened by a sub-contractor starting an engine without warning. But in Taylor v. Dunn, 80 Tex. 652, 16 S. W. 732, it was said in speaking of the above case that: "With the highest respect for the opinions of that court, always distinguished for ability and learning of its judges, it seems to us that the true construction of such a contract made with a municipal corporation would require a holding *** that it was a contract for the indemnification of the city, and not intended by the parties to it as a contract for the benefit of individuals, in which a person injured by the negligence of a contractor or his employes, might maintain an action."

In Corrigan Transit Co. v. Sanitary District, 137 Fed. 851, 70 C. C. A. 381, there was a permit

by the Secretary of War to the District to change the current of the Chicago River. A clause provided for the district assuming all responsibility for damages to property and navigation. It was ruled that an indemnifying contract between the district and the contractor was not an undertaking to pay outsiders' damages from the perils of navigation.

And so in Blake v. Ferris, 5 N. Y. 48, 55 Am. Dec. 304, if a sub-contractor of one agreed to be answerable for all damages occasioned by construction of a sewer, this did not render him liable for damages by a sub-contractor, where the latter was an independent contractor, and the principal contractor interfered in no way with the doing of the work. But this decision was later criticised in Storrs v. Utica, 17 N. Y. 104, 72 Am. Dec. 437, the latter court saying in effect that where superior contractor determines the excavation shall be made, he cannot escape responsibility where by his direction the place is to be made dangerous. In Deming v. Terminal R. Co., 169 N. Y. 1, 61 N. E. 983, 88 Am. St. R. 521, overruled the Storrs case.

In Knapp v. Swaney, 56 Mich. 545, 23 N. W. 162, 56 Am. Rep. 397, it was thought it would be strange if public authority could not stipulate for the safety of all citizens.

It is familiar that material men may maintain actions on bonds demanded in public works contracts. See Young v. Young, 21 Ind. App. 509, 52 N. E. 776; Spokane & I. Lumber Co. v. Boyd, 28 Wash. 90, 68 Pac. 337; Morton v. Power, 33 Minn. 521, 24 N. W. 194.

But it has been denied that a city may by ordinance empower its director of public works to retain money owing by it to one of its contractors for the purpose of satisfying his creditors. Lesley v. Kite, 192 Pa. 268, 43 Atl. 959. But this case was held to have a limited application so as not to bring about a tying up of funds needed by the contractor for the prosecution of his work. Philadelphia v. Stewart, 195 Pa. 309, 45 Atl. 1056.

In St. Paul Water Co. v. Ware, supra, the court said it would not go into any question of independent contractors, because contractors had agreed to pay damages. And this it seems to us is proper and the principle may embrace all subsidiary arrangements and conditions.

ITEMS OF PROFESSIONAL

INTEREST.

C.

A morning session will be held in the Supreme Judicial Court Room, in Augusta, at which will be addresses by Hon. Cyrus N. Blanchard, President of the Association, and Hon. John F. Sprague, of the Piscataquis Bar and editor of the "Sprague's Journal of Maine History" will deliver an address on "A Century of the Bar in Maine."

The afternoon session will be held in the House of Representatives in the State House at Augusta. Judge Clarence Hale, of the United States District Court, will give an address on "A Century of the Federal Courts in Maine" and Chief Justice Cornish, of the Supreme Judicial Court, will deliver an address on "A Century of the Supreme Court of Maine."

It is expected that one of the Justices of the Massachusetts Supreme Judicial Court will bring the greetings of the Mother State of Massachusetts.

There will be a banquet at the Augusta House in the evening.

Vice-President Marshall, when still a struggling lawyer in Indiana, was sitting in his little office when a genial book agent entered and undertook to sell him a new edition of the Bible, "full morocco, annotated," etc.

Before the agent was through with his description of the merits of the new volume, Marshall interrupted him to ask who the author was.

"Why, this is the Bible," explained the agent. "I am fully aware of that," answered Marshall in full soberness. "But I ask again, who is the author?"

Again the salesman explained that he was offering the Bible. And again Marshall demanded the name of the author, and then again.

Finally the man of the books gathered up his samples, retreated to the door, and then with one hand on the knob, turned around and shouted:

"You pinheaded fool and blithering idiot, it's the Bible."

1. Action-Conversion Into Equity.--In an attachment suit based on a note and an account due by defendant, defendant's petition for an accounting between himself and plaintiff as to their former partnership business was in equity. so that the consolidation of the attachment proceeding, the subject-matter of which was involved in the equitable proceeding, for accounting made the consolidated case one in equity.Moreland v. Lawson, Ga., 104 S. E. 202.

2. Assignments-Action for Tort.-A claim for injuries to the person is merely a personal right, and until reduced to judgment is not assignable, but a claim for damages for injury to property is assignable, and the assignee may sue thereon, under Rev. St. c. 87, § 152.-Metropolitan Ins. Co. v. Day, Me., 111 Atl. 429.

3. Assignments for Benefit of Creditors-Collateral Attack.-Where the court had jurisdiction of the parties and of the subject-matter, its order ratifying a sale of the property assigned for benefit of creditors cannot be attacked collaterally, though the court may have committed great irregularities and errors.-Evansville Improvement Co. v. Gardner, Ind., 125 N. E. 471.

4. Attorney and Client-Dismissal by Latter. -In the absence of stipulation in an attorney's contract of employment, against compromise, release, discontinuance, or other disposition of

the suit without his consent, his client was at liberty in his own person to discontinue it.Succession of Rece, La., 86 So. 283.

5.-Lien.-Under Gen. St. 1913, § 4955, as amended by Laws 1917, c. 98, an attorney has a lien for his compensation upon the cause of action of his client arising under the federal Employers' Liability Act, and in enforcing it in the original action, when his client and the defendant have settled without his consent, he proceeds as one subrogated to the original cause of action so far as necessary to protect his rights.-Miner v. Chicago B. & Q. Ry. Co., Minn., 179 N. W. 483.

6. Bankruptcy-Computation of Time.-Where acts of bankruptcy are sufficiently alleged for the first time in an amended petition, the fourmonths period within which such acts must have been committed must be computed from the filing of the amended, and not the original petition. In re Triangle S. S. Co., U. S. D. C. 267 Fed. 303.

7.Discharge.-A discharge in bankruptcy relieves the bankrupt from legal obligation to pay a balance due on his notes proved against his estate in the bankruptcy proceedings.-Dundee Nat. Bank v. Strowbridge, N. Y., 184 N. Y. Sup. 257.

8. Bills and Notes-Parol Evidence.-A promise, made by an obligee to induce the indorsement of a note that he would secure other indorsers for the note, does not change or vary. the obligation of the parties on the note, and it may be proved by parol, and damages for breach thereof recovered by an indorser who was compelled to perform his obligations under the note.-Tross v. Bill's Ex'x, Ky., 224 S. W. 660.

9. Brokers-Burden of Proof.-To entitle a real estate broker to commissions on the sale of real estate, it is incumbent on him to show he procured the purchaser as such, and was the efficient producing cause of the sale.-Burnett v. Stick, Iowa, 179 N. W. 437.

10. Cash Sale.-Where broker's contract is silent as to terms of payment, the broker's authority is impliedly limited to making a cash sale.-Shuck v. Conway, Iowa, 179, N. W. 434. 11. Cancellation of Instruments-Purchase Money. Where the trial court found the value of plaintiff's land, traded for defendants', was $3,000 less than plaintiff represented it to be, so that defendants were damaged $3,000 as alleged in the cross-complaint, such sum being in excess of the unpaid purchase money due from defendants, the trial court properly decreed cancellation of the mortgages given by them to secure such unpaid purchase money; there being no debt to secure.-Horsnell v. Gilliland, Ark., 224 S. W. 722.

12. Carriers of Goods-Common Carrier.-A fuel company which let its trucks with drivers to carry goods, which was part of its regular business, was a common carrier.-City Fuel Co. v. Torreyson, Ark., 224 S. W. 727.

13. Diverting Route.-The owner of goods in transit having the right to take actual possession of them at any intermediate point on the route may divert them at any such point while in transit, and it is the duty of the car

rier to deliver them to him or divert them ac cording to his orders. on presenting evidence of ownership and paying the proper charges.Liberty Nat. Bank v. Hines, Director General of Railroads, S. C., 104 S. E. 313.

14. Wrongful Delivery.-A carrier wrongfully delivered goods shipped under an order bill of lading without requiring its surrender as against a bank which held the bill of lading attached to a draft purchased by it, though merely as collateral for payment of the draft.National Bank of the Republic v. Hines, Wash., 192 Pac. 899.

15. Contracts-Illegality.-An agreement for plaintiff to procure purchasers and contracts for horses at prices acceptable to defendants for a commission of $5 per head held not illegal as a contract to exert personal influence with agents of foreign governments.-Smyth Bros.McCleary-McClellan Co. v. Beresford, Va., 104 S. E. 371.

16.-Illegality.-Where

it appears that the contract sued on is illegal, the court sua sponte will withhold all relief, though the illegality is not presented by the issues.-Pacific Wharf & Storage Co. v. Standard American Dredging Co., Cal., 192 Pac. 847.

17. Meeting of Minds.-Before a binding contract is consummated, each party must agree to the same proposition, and the agreement must be mutual as to every essential term.Southern Cotton Oil Co. v. Frauenthal, Ark., 224 S. W. 730.

18. Mutuality.-A city contract, which provided that, if the city for any reason failed to sell bonds due to be sold on a certain date, it might terminate the contract was voidable at the option of the city, since it required no steps for the sale of the bonds, and the contract was therefore unenforceable against the surety of the contractor for want of mutuality. -City of Pocatello v. Fidelity & Deposit Co. of Maryland, U. S. C. C. A., 267 Fed. 181.

19. Suspension of Right.-While a subsequent statute or executive order rendering performance of a contract impossible excuses the parties from further proceedings thereunder. a mere temporary suspension of a right or duty under the contract discharges or excuses performance only if the suspension is so material or substantial that the party obligated ought of right to be held discharged.-Schoelkopf v. Moerlbach Brewing Co., N. Y., 184 N. Y. Sup. 267.

of equity recognize the sole stockholder of a corporation as distinct from the corporation, and do not hold the stockholder bound by the contracts of the corporation.-City of Winfield v. Wichita Natural Gas Co., U. S. C. C. A., 267 Fed. 47.

21. Criminal Law-Accused as Witness.-In a prosecution for robbery, where the defendant took the stand in his own behalf, it was proper to instruct that "the jury have a right to take into consideration the fact that he is interested in the result of the prosecution."-People v. Maciejewski, Ill., 128 N. E. 489.

22. Alibi.-To maintain his defense of alibi, the burden is on defendant to establish it by such facts and circumstances as will with all the other evidence create in the minds of the jury a reasonable doubt of his guilt.-Norris v. State, Ark., 224 S. W. 724.

23.- Conspiracy.-A conspiracy to murder must be proved aliunde, and the court should have instructed that the acts and conduct of defendant's son on the night of the murder could not be used as evidence of conspiracy between them, since such acts, if a conspiracy existed, were those of a co-conspirator, and

would not be evidence of a conspiracy.—Anderson v. State, Tex., 224 S. W. 782.

24. Damages-Intervening Cause.-If injured person in good faith and in exercise of reasonable care employs a physician to treat injuries and injury is aggravated through the mistake or negligence of physician, the injured person may recover for the injury including the aggravation thereto resulting from the mistaken or Improper treatment; such negligent treatment not constituting an intervening cause.-Yarbrough v. Hines, Wash., 192 Pac. 886.

25. Dedication-Fee Reserved.-Where there of is a dedication to the public use, the fee the real estate dedicated remains in the dedicator.-Clark v. City of Huntington, Ind., 128 N. E. 453.

to

26. Deeds-Special Finding. In action cancel deed on ground of fraud, court should submit special issue as to what was the fair and reasonable market value of the land conveyed and other land conveyed in exchange therefor.-Baugh v. Baugh, Tex., 224 S. W. 796.

27. Divorce Judgment.-In a proceeding to have a decree of divorce nullified in so far as it related to alimony, brought after the expiration of the term at which the divorce was granted, the court cannot, of its own motion, set aside the decree of divorce, even though the evidence in that proceeding shows that the decree was obtained by collusion, specially where both parties had remarried and had children since the divorce decree was rendered.Delbridge v. Delbridge, Iowa, 179 N. W. 438.

28. Remarriage.-As a general rule, statutes of a state prohibiting remarriage within a stated time after divorce and making such marriage void have no extraterritorial force, and do not invalidate a marriage within the limited time in another state, whose laws do not prohibit such remarriage.-Vickers v. Faubion, Tex., 224 S. W. 803.

29. Easements-Permissive Use.-The use of a passway, begun with permission of the owner of the land, cannot ripen into title to the passway, no matter how long continued, until after a claim of right to the passway, openly made by the user, has been brought to the notice of the owner of the land.-Smith v. Oliver, Ky.. 224 S. W. 683.

30. Eminent Domain-Tort.-No taking of property without just compensation is involved in a holding that an action for death cannot be maintained against a county highway commission; the action being against a governmental agency for tort.-Mullinax v. Hambright, S. C., 104 S. E. 309.

31.

a

Relief. Wherever Equity-Complete court of law may take cognizance of a right, and has power to proceed to a judgment affording a plain adequate remedy, the constitutional right of a trial by jury may not be abridged by resort to a court of equity, and a bill seeking only a decree for the payment of money will not lie.-Grant v. Giuffrida, D. C., 267 Fed. 331.

32. Estoppel-Inconsistent Pleading.-In an administrator's action against a mortgagee and his attorney for interpleader alleging the administrator's authorized sale of mortgaged land and his deposit of the proceeds in the court, the mortgagee, by accepting under order of the court so much of the fund as his attorney did not claim to be subject to his alleged lien, by subsequently demurring to the petition at the appearance term did not assume a position inconsistent with that formerly taken.-Cox v Fort, Ga., 104 S. E. 419.

33. Inducement to Act.-To establish an estoppel the party asserting it must be induced to act through such conduct of the other party as to make it unconscionable for the latter party to repudiate his position.-Empire Voting Mach. Co. v. City of Chicago, U. S. C. C. A., 267 Fed. 162.

34. False Imprisonment-Aiding and Abetting. All who take part in or assist or abet in the commission of false imprisonment are joint tort-feasors without allegation or proof of conspiracy.-Culver v. Burnside, S. D., 179 N. W.