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retention by the city of one-fifth of the money due upon the monthly estimates, until the work was completed and accepted. Subsequently a written agreement was made between E. and R. by which R. was to superintend the work, and to receive therefor from E. one-sixth of the net profits arising from the contract with the city. It was further stipulated by this agreement that R. should have the privilege of drawing a fixed sum per month, to be charged against said one-sixth net profits, and should have the privilege of inspecting the books of account relating to the work ; but in the concluding clause it was expressly agreed that R. was not a partner with E. in said work, nor was he to be in any manner liable for any damages growing out of its prosecution, other than as such superintendent. A bill was filed by R. against E. and certain assignees of E.'s interest in the contract with the city of Baltimore, and against the said city, for a discovery, and account, and a decree for the amount due him, and for a receiver to receive all sums payable by the city under its contract, and an injunction to prevent E. or his assignees from collecting, and the said city from paying to them, the sums due under said contract. On demurrer to said bill, it was Held, that in the face of the provision in the agreement between E. and R. that R. should not be a partner, it could not be said that the other clauses of the agreement, by which it was stipulated that he should receive one-sixth of the net profits growing out of the contract, as compensation for his management and superintendence of the work, made him such partner : Reddington v. Lanahun, 59 Md.
PLEADING. See Equity.
PUBLIC POLICY. See Contract.
REMOVAL OF CAUSES. Separable Controversy-Local Prejudice Act.—A suit to recover certain real estate occupied by one Myers, a citizen of New York, was brought, in 1873, by citizens of North Carolina, in the state court, against Myers alone; and in 1877 was amended, bringing in other defendants, citizens of North Carolina, who, it was alleged, held the legal title. Myers alone answered the amended complaint, in Sept. 1877, and in March 1878 petitioned for removal, filing an affidavit to the effect that he had reason to believe, and did believe, that from prejudice or local influence he would not be able to obtain justice in the state court: Hleld, 1. That the application was too late to secure the benefit of the separable controversy provision in the Act of 1875. Such an application should bave been made at or before the term at which the cause could be first tried, or rather, as this suit was begun before the Act of 1875 was passed, it should have been at or before the term at which the cause could be first tried after the act went into operation. 2. That while there is no doubt that the principal controversy is between Myers and the plaintiffs, yet as the legal title is thought to be in the other defendants, and the plaintiffs require the presence of the trustee defendants, in order to get Myers out of possession, it follows that they are not nominal but necessary parties; and as, under the local prejudice act, there can be no removal, unless all the necessary parties on one side
of the suit are citizens of different states from those on the other, the cause should be remanded to the state court: Myers v. Swan, S. C. U. S., Oct. Term 1982.
RESCISSION Purchaser must rescind in toto.—A party will not be permitted to afirm a contract in part, and rescind as to the residue. If he rescinds at all, he must do so in toto. The opposite party must be placed in as good a condition as he was before the sale by a return of the property purchased, unless it is entirely worthless : Harzfeld v. Converse, 105 III.
Where the plaintiff, in an action to recover back a portion of the purchase price of certain goods, had purchased of the defendant six cases of beavers under an entire contract, and upon receiving the same made no objection to any part of them, and did not, before suit, offer to return to the defendant all the goods, but confined his offer to return to a portion, and expressly elected to retain the other part, it was held, that the plaintiff could not recover, in an action for money had and received, the price of the goods objected to: Id.
SALE. See Rescission.
SHIPPING. Injury to Property on Shore—Jurisdiction of State Courts.—Where, through the negligence of those managing a steam tug-boat in towing a schooner in the navigable waters of the Chicago river, the schooner is run into an elevator situated on the land, breaking the same, and causing the loss of a quantity of grain, the tort is not a maritime one and within the exclusive jurisdiction of a court of admiralty. In such case the state courts may afford a remedy for the injury : Johnson v. Elevator Co., 105 III.
SPECIFIC PERFORMANCE. Doubtful Title— When good Defence - Every purchaser of land has a right to demand and to have a title which shall enable him not only to hold his land, but to hold it in peace; and if he wishes to sell it to be reasonably sure that no flaw or doubt will come up to disturb its marketable value. But the doubt must be considerable and rational, such as would, and ought to induce a prudent man to pause and hesitate; such as would produce a bona file hesitation in the mind of the judge passing upon the title: Gill v. Wells, 59 Md.
STATUTE. Construction- Previous Construction in other State.— Where the statute of one state or country is re-enacted in another, the courts of the latter state will place the same construction on it as had been given to it by the courts of the state where it was originally enacted : Skrainka V. Allen, 76 Mo.
Stock. See Estoppel.
SURETY. Verbal Notice to proceed against Principal- Extension of Time.--A surety cannot base a claim to be released from his obligation on a verbal notice to the creditor to proceed against the principal debtor. To be available the notice must be in writing: Petty v. Douglass, 76 Mo.
Part payment of a pote after maturity is no valid consideration for an extension of time: Id.
TRADEMARK. Bill to restrain use of Trademark dismissed when Trademark misrep. resented the Person by whom, and place where, the Article was Manufactured.-— The Manhattan Medicine Company filed a bill to restrain defendants from using the trademark “ Attwood's Genuine Physical Jaundice Bitters, Georgetown, Mass.," claiming to be the exclusive owner of the formula and recipe for making the medicine, and of the right of using the said name or designation. It was admitted that whatever value the medicine possessed was given to it by its original manufacturer, Moses Attwood, who manufactured it at Georgetown, Mass., and that it is now manufactured by the plaintiffs in New York eity. Held, that the statement that the article was manufactured in a particular place, by a person whose manufacture there had acquired a great reputation, when, in fact, it was manufactured by a different person at a different place, is a fraud upon the public which no court of equity will countenance, and that the bill must be dismissed : Medicine Co. v. Wood, S. C.-U. S., Oct. Term 1882.
The object of a trademark being to indicate, by its meaning or association, the origin or ownership of the articles, it would seem that when a right to its use is transferred to others, either by act of the original manufacturer or by operation of law, the fact of transfer should be stated in connection with its use ; otherwise a deception would be practised upon the public and the very fraud accomplished, to prevent which courts of equity interfere to protect the exclusive right of the original mauufacturer : Id.
TRIAL. Practice- Admitting Evidence out of Order.—A sound exercise of the discretion vested in the trial courts of determining whether or not evidence should be received out of time, requires that when it appears that failure to offer material evidence in proper time was the result of inadvertence and that it was not kept back by a trick or for any unfair purpose and that the other party will not be deceived or injuriously affected by it, it should be let in even after a demurrer to the evidence has been sustained. For refusal of the trial court so to do, the appellate court will reverse : Tierney v. Spiva, 76 Mo.
UNITED STATES Courts. See Municipal Corporation. Indorsee of Note secured by Mortgage — Act of Congress March 30 1875. c. 137.—When a promissory note, negotiable by the law merchant
, is made by a citizen of one state to a citizen of the same state, and secured ny a mortgage from the maker to the payee, an indorsee of the pote can, since the act of March 3d 1875, c. 137 (1 Sup. Rev. Stat. 173), sue in the courts of the United States to foreclose the mortgage, and obtain a sale of the mortgaged property: Tredway v. Sanger, S. C. U. S., Oct. Term 1882.
AMERICAN LAW REGISTER.
SPECIFIC ENFORCEMENT OF CONTRACTS TO
It will be attempted in this essay to indicate with some precision and particularity, those contracts for the transfer of governmental or corporate stocks which are, and those which are not, specifically enforceable. First, of several pre-requisites to their specific enforcement.
Existence of Contract. Consideration.—Mutuality. There must be a valid contract. This proposition needs only to be stated to secure assent. It was practically applied in Oriental Inland Steam Co. (Limited) v. Briggs, 2 John. & Hem. 625, wherein a contract to accept shares was thought to lack mutuality and a demurrer was allowed to a bill for its specific enforcement. Briggs undertook to accept the shares, if allotted ; to pay calls, and to sign the articles. He also paid the deposit. Thereupon the directors “duly allotted to him 150 of the new shares.” He was informed of this by the secretary, who, however, added a condition to the allotment, by which the receipts were to be exchanged for share certificates and the articles were to be signed, in default whereof the shares were to be forfeited to the company.
But the court doubted the power of the company so to forfeit the shares, and questioned whether the secretary's letter of allotment had not imposed a new condition which formed no part of the defendant's (Briggs's) offer. The contract was, therefore, held to be of doubtful validity, and specific enforcement refused. Vol. XXXI.-62
Again, in Cheale v. Kenward, 3 DeG. & J. 27, it was objected that there was no valid contract by reason of a lack of consideration as well as of mutuality. Cheale owned 10 shares in a railway upon which he however had not paid anything. He sought specific performance of an agreement by Kenward to take these shares from him and relieve him from liability for them. As to the consideration given by plaintiff, Lord Chancellor CHELMSFORD: “ It is said that these shares were worthless, as nothing had been paid, and the whole of the liabilities were still existing, but the shares might ultimately turn out to be worth more than the amount due upon them, and at all events the possibility of their being valuable would be sufficient to constitute an agreement to transfer them a good consideration,” and the giving of something of uncertain value, was held to be a good consideration. As to the consideration given by defendant, counsel said it must be something dehors the contract, and not a mere liability flowing out of the agreement itself; to which the Lord Chancellor replied: “The consideration on the defendant's part is not the liability arising out of the transfer, but the agreement to undertake the liability on having the shares. * * * The transfer imposes the liabilities impliedly. Then will not the agreement to take upon himself a legal obligation be a good consideration for defendant's promise? The defendant desired to have the shares; he was willing to pay the amount of the liabilities, from which he agreed to exonerate the plaintiff; and that appears to me a sufficient consideration.” It was therefore decided that there was sufficient both of consideration and mutuality, and specific performance was decreed. See, also, Strasburg Railroad Co. v. Echternacht, 21 Penn. St. 221.
Independence.—The contract must be independent, or if dependent upon another contract, the latter must have been sufficiently performed to make the execution of the former possible. Burton v. Shotwell, 13 Bush 272, presents this point. In that case a contract whereby B. agreed to exchange real estate with S. for stock in a corporation which S. and B. and five others had agreed to organize, was dependent upon the execution of the contract to organize the corporation. It was decided that if the corporation was not organized, without the fault of S. or B. a specific execution of the contract between them could not be enforced nor would either be liable in damages to the other for non-com