PLEADING THEORY OF THE PLEADING. — The plaintiff in his complaint alleged that he and the defendant had made a contract of partnership, and demanded an accounting. The defendant in his answer denied the contract of partnership but admitted that he had contracted to employ the plaintiff. A referee was appointed and he found that there was no partnership but that there was a contract of employment. The court gave judgment for the plaintiff for breach of contract. Held, that since the complaint was framed as a bill in equity, and the judgment was in the nature of a judgment at law, the judgment should be reversed. Jackson v. Strong, 222 N. Y. 149.

For a discussion of the principles involved, see NOTES, page 166.

PUBLIC SERVICE COMPANIES WHAT CONSTITUTES A PUBLIC USE. — A brewery generating its own electricity for light, heat, and power contracted to sell its surplus under the name of M. O. Danciger and Company to individuals within a radius of three blocks of the brewery. No use was made of the streets or highways; the consumers furnished their own poles and wires; paid for the construction, though the work was usually done by employees of the brewery. Rates were charged in a few instances on the meter basis, the meters belonging to the consumers, but in most instances the charge was governed by a flat rate. Having discontinued service without prior notice, and on refusal to reinstate service, a proceeding was brought before the Public Service Commission who ordered a reinstatement of the service. On appeal to the court, held, appeal sustained. State ex rel. M. O. Danciger & Co. v. The Public Service Commission, 205 S. W. 36 (Mo.) (1918).

For a discussion of the principles involved, see NOTES, page 169.

QUASI-CONTRACTS RIGHTS ARISING UNDER MISTAKE OF FACT AS TO PRICE. A Corporation made an agreement with the owner of one-half its capital stock to buy him out on the basis of an inventory. The price was set at $13,000. It was then found that an item of $900 had been omitted from the liabilities in the inventory and a consequent overcharge of $450 to the corporation, which now sues to recover that amount. Held, the corporation cannot recover at law. Borough Paper Co. v. Scher, 170 N. Y. Supp. 395 (App. Div.).

The court suggests that the corporation should have gone into equity for reformation. The older decisions held that price like quality was not to be regarded as going to the essence of the contract. Paulison v. Van Inderstine, 28 N. J. Eq. 306; Stettheimer v. Killip, 75 N. Y. 282; Okill v. Whittaker, 1 DeG. & Sm. 83; Segur v. Tingley, II Conn. 134. But in the principal case the inventory was expressly made the basis of the sale and so became itself the subject matter of the contract. And for such cases equity allows rescission. De Voin v. De Voin, 76 Wis. 83, 44 N. W. 839. See 23 HARV. L. REV. 609-10, 614. Or equity might force the vendor to return the overcharge and let the sale stand. Lawrence v. Staigg, 8 R. I. 256; Wirsching v. Grand Lodge of Masons, 67 N. J. Eq. 711, 56 Atl. 713. Then if equity could give relief, an action at law should also lie, since money has been paid under an essential mistake of fact. The authorities, however, are in conflict as the parol evidence rule has been usually held to bar showing the mistake. See WOODWARD, QUASI-CONTRACTS, § 180, and notes; KEENER, QUASI-CONTRACTS, 123, 124. But here there is no difficulty on the parol evidence rule as the inventory was expressly made the basis of the contract price.

-

RAILROADS - LICENSE TO USE TRACKS - LIABILITY OF LICENSOR FOR NEGLIGENCE OF LICENSEE. Under a statute authorizing railways to make joint running arrangements with any other railway, the defendant railway corporation allowed another railway to run trains over the licensor's tracks to fill a gap in the licensee's system. While using the defendant's tracks, the

licensee's employees negligently damaged the plaintiff. Held, that the licensor is liable. Sorenson v. Chicago, R. I. & P. Ry. Co., 168 N. W. 313 (Iowa). Where there is no statutory authorization, the lessor of a railroad is generally held for the liability of the lessee in operating the road. Hays v. Railroad, 20 C. C. A. 52, 74 Fed. 279. If there is such authorization, some courts hold that this carries with it exemption by necessary implication. Hahs v. Cape Girardeau &C. R. Co., 126 S. W. 525 (Mo.); Vadas v. Pittsburg M. & Y. R. Co., 203 Pa. 41, 79 Atl. 166. See 20 HARV. L. REV. 334. However, it would seem that mere permission to do acts which otherwise might be illegal does not absolve the lessor by necessary implication. Clinger's Adm'x v. Chesapeake & O. Ry. Co., 33 Ky. Law R. 86, 109 S. W. 315. In the principal case it was a license to use the tracks. In such a case the licensor has, in absence of statutory authorization, been held liable. Jefferson v. Chicago & N. W. Ry. Co., 117 Wis. 549, 94 N. W. 289; Pennsylvania Co. v. Ellett, 132 Ill. 654, 24 N. E. 559; Chicago & E. R: Co. v. Meech, 163 Ill. 305, 45 N. E. 290. If there is statutory authority some courts might make a distinction between a lease and a license of joint user. See I ELLIOTT, RAILROADS, 2 ed., § 477. It is submitted, however, that the principal case rests the lessor's or licensor's liability on its true basis. The franchise has imposed duties upon the railway, the occupier of the premises, to operate its road carefully. The railway may carry them out through lessees or licensees, but it must see to it that no one is injured by any breach of duty or negligent use, unless a statute expressly exempts it from liability. Braslin v. Somerville Horse R. Co., 145 Mass. 64, 13 N. E. 65; Chicago & Grand Trunk Ry. Co. v. Hart, 209 Ill. 414; 70 N. E. 654; Clinger's Adm'x v. Chesapeake & O. Ry. Co., supra. But see 20 HARV. L. REV. 334. An analogy is found where the occupier of premises is held liable for the negligence of an independent contractor where he is charged with a "non-delegable duty." Doll & Sons v. Ribetti, 121 C. C. A. 621, 203 Fed. 593; Strickland v. Montgomery Lumber Co., 171 N. C. 755, 88 S. E. 340; Covington & Cincinnati Bridge Co. v. Steinbrock, 61 Ohio St. 215, 55 N. E. 618.

RELIGIOUS SOCIETIES - JURISDICTION OF COURTS PROPERTY RIGHTS. The constitution of a religious society provided that in case of a schism those adhering to the doctrines of the Lutheran Synod of Missouri should hold the property. The defendants, being a majority of the society, formed a separate organization affiliated with the Lutheran Synod of Iowa, certain essential doctrines of which are repudiated by the Missouri Synod. On demurrer to these facts the right of the defendants to the church property turned on whether it was necessary for some ecclesiastical authority first to determine the doctrinal question involved. Held, that the demurrer be sustained. Bendewald v. Ley, 168 N. W. 693 (N. D.).

Although civil courts in this country will not interfere in purely ecclesiastical matters they will take jurisdiction to determine controverted claims to church property. Hendrickson v. Decow, 1 N. J. Eq. 577; Rottman v. Bartling, 22 Neb. 375, 35 N. W. 126; Fussell v. Hail, 233 Ill. 73, 84 N. E. 42. Accordingly, where such controversy arises out of a division in a religious society, civil courts will ascertain which of the rival factions continues the original organization and will award it the property. Hayes v. Manning, 263 Mo. 1, 172 S. W. 897; Mack v. Kime, 129 Ga. 1, 58 S. E. 184; Horsman v. Allen, 129 Cal. 131, 61 Pac. 796. In a congregational society, where majority rule prevails, the church property is usually given to the numerical majority of the members. Bouldin v. Alexander, 15 Wall. 131; Fernstler v. Seibert, 114 Pa. 196, 6 Atl. 165; Gipson v. Morris, 31 Tex. Civ. App. 645, 73 S. W. 85. But if the society belongs to an ecclesiastical system, the decision of the highest church judicatory on doctrinal matters is generally accepted as conclusive by the civil courts. Watson v. Jones, 13 Wall. 679; Presbyterian Church v. Cumberland Church, 245 Ill. 74,

91 N. E. 761; Sanders v. Baggerly, 96 Ark. 117, 131 S. W. 49. Contra, Landrith v. Hudgins, 121 Tenn. 556, 120 S. W. 783. The principal case is one of the latter class. The complaint clearly alleged a repudiation by the Missouri Synod of certain essential doctrines of the Iowa Synod with which the defendants had become affiliated. Since this fact was admitted by the demurrer it seems that there was no theological question for the court to decide, and that the demurrer was improperly sustained.

TAXATION STATE INCOME TAX - VALIDITY OF STATUTE. An Oklahoma statute provides for an income tax on residents, and imposes a like tax on incomes earned by nonresidents on property or businesses within the state. A resident of Chicago, who had large oil holdings in Oklahoma, asks for a temporary injunction restraining the collection of the tax. Held, that the tax is valid. Shaffer v. Howard, 250 Fed. 873 (District Court, E. D. Oklahoma). For a discussion of this case, see NOTES, page 168.

TRUSTS-POWERS AND OBLIGATIONS OF TRUSTEES MANDATORY PROVISIONS AS TO INVESTMENTS. - The settlor of a trust directed the trustees to invest in railway bonds bearing at least 4% interest. A loss was occasioned by investments in 42% New York City Bonds and 32 % Liberty Bonds of the first issue. Held, trustees liable for loss occasioned by investments in 42% New York City Bonds, but not for the loss occasioned by the investment in Liberty Bonds. In re Loudon's Estate, 171 N. Y. Supp. 981 (Surrogate Ct.).

As a general principle trustees are bound to do whatever the creator of a trust directs them to do, unless the beneficiaries, being sui juris, excuse them from so doing. Denike v. Harris, 84 N. Y. 89; Womack v. Austin, 1 S. C. 421; Handley's Estate, 253 Pa. St. 119, 97 Atl. 1040; Robinson v. Robinson, 11 Beav. 371. But where it is impossible to carry out directions, or where the interests of the beneficiaries absolutely require a change, mandatory provisions may be disregarded. McIntire v. Zanesville, 17 Ohio St. 352. See Citizens National Bank v. Jefferson, 88 Ky. 651, 11 S. W. 767. That there was nothing in the principal case to justify a disregard of mandatory provisions is shown by the court in holding the trustees liable for the investment in 42% New York City Bonds. It is conceivable that a situation may arise where investments in war bonds would be made by a prudent man to protect his other property, in which case it is submitted, a like investment by trustees in disregard of directions, would be justified. But again no such crisis presented itself in the principal case. In not holding the trustees liable for the loss occasioned by the investment in 32% Liberty Bonds, the court sanctioned a patriotic motive of the trustees, at the expense of the beneficiary and without his consent.

UNFAIR COMPETITION - BY MEANS UNLAWFUL AS AGAINST THIRD PERSONS - UNNECESSARY IMITATION OF WARES HAVING SECONDARY MEANING BURDEN OF PROOF. — The defendant was selling Shredded Wheat Biscuits that were exact imitations of the plaintiff's product. The biscuits had acquired a secondary meaning, in that the consumer considered them to be produced by a single maker, to whose manufacture was ascribed part of the value. Since, in several places, the biscuits were sold unpacked with no distinguishing marks, it was claimed the public was being misled. But a change in the form, size, or color of the products was impracticable. It was doubtful whether some letter or symbol could be impressed on the biscuit or whether a band or tag could be attached which would designate the manufacturer without involving too great expense. Held, that the defendant be enjoined, but if in six months he shows that all possible distinguishing marks are impracticable, the injunction should be dissolved. Shredded Wheat Co. v. Humphrey Cornell Co., 250 Fed. 960 (C. C. A.).

The cases on the doctrine of secondary meaning seem to divide themselves into two classes, depending on whether or not the imitated features are functional, i. e., essential to the commercial success of the article. When the distinctive characteristics are non-functional, the defendant's conduct is palpably unfair, and marked changes are ordered. Yale and Towne Mfg. Co. v. Alder, 154 Fed. 37, 83 C. C. A. 149; Hiram Walker v. Grubman, 222 Fed. 478. Even the appearance of the defendant's name is insufficient, unless it is clear no confusion will result. Fox v. Glynn, 191 Mass. 344, 78 N. E. 89; Enterprise Mfg. Co. v. Landers, 131 Fed. 240, 65 C. C. A. 587. But when all the elements are functional, usually no relief is given. Globe-Wernicke Co. v. Fred Macey Co., 119 Fed. 696, 56 Č. C. A. 304; Marvel Co. v. Pearl, 133 Fed. 160, 66 C. C. A. 226; Daniel v. Electric Hose and Rubber Co., 231 Fed. 827; Edward Felker Mop Co. v. U. S. Mop Co., 191 Fed. 613, 112 C. C. A. 176; Diamond Match Co. v. Saginaw Match Co., 142 Fed. 727, 74 C. C. A. 59. However, a clearly inexpensive noticeable alteration is ordered. Flagg Mfg. Co. v. Holway, 178 Mass. 85, 59 N. E. 667; Edison Mfg. Co. v. Gladstone, 58 Atl. 391 (N. J.). In the principal case, all the characteristics are apparently functional, and it would seem that in alleging unfair competition the plaintiff should have had the burden of showing a commercially practicable means of distinguishing the products. The better analysis, however, sanctioned by the result in the principal case, is that the defendant is interfering with the plaintiff's interest in a valuable good will, and the justification that the injury is due to fair competition is an affirmative defense to be proven by the defendant who sets it up.

VENDOR AND PURCHASER IMPLIED WARRANTY IN SALE OF CATTLE NEGLIGENCE DUTY TO DISCLOSE CONTAGIOUS DISEASE. — Defendant sold a calf to the plaintiff, who, although not a veterinary, was known to be skilled in diagnosing and treating diseases of cattle. Defendant knew the calf had ring-worm, a contagious disease common in the locality, but did not disclose the fact. Plaintiff did not buy the calf until he had had it on trial, and he knew the calf was not sound, although he was unaware of the nature of its ailment. The disease was communicated to other cattle belonging to plaintiff and to himself and his son. By statute it was forbidden to sell animals afflicted with contagious diseases. (ANIMAL CONTAGIOUS DISEASES Act, Rev. St. CAN., 1906, c. 75, §§ 35-38.) Held, that there was no implied warranty, and that the statute gave plaintiff no right of action. O'Mealey v. Swartz, [1918] 3 WEST. WKLY. REP. 98 (Saskatchewan).

The holding that there was no implied warranty seems justified, since the vendee apparently relied on his own judgment. Hight v. Bacon, 126 Mass. 10; Waeber v. Talbot, 167 N. Y. 48, 60 N. E. 288. See Kellogg Bridge Co. v. Hamilton, 110 U. S. 108, 116, and 25 HARV. L. REV. 75. On the question of negligence, however, the court's conclusions cannot be accepted. A vendor, by the reasonable view, should use due care not to sell without warning articles which are likely to cause harm. Blood Balm Co. v. Cooper, 83 Ga. 856, 10 S. E. 118; MacPherson v. Buick Motor Co., 217 N. Y. 382, 111 N. E. 1050. See Brett, M. R., in Heaven v. Pender, 11 Q. B. D. 503, 509. The English courts seem unwilling to hold a vendor liable for negligence in the sale of animals. Ward v. Hobbs, 4 App. Cas. 13. However, see contra, Skim v. Reutter, 135 Mich. 57, 97 N. W. 152; Grimes v. Eddy, 126 Mo. 168, 28 S. W. 756. In the principal case the court seems horrified at the thought that the general principle of negligence would hold one liable for spreading a disease through his person. Such liability has been imposed in at least one case. Missouri, Kansas & Texas Ry. v. Wood, 68 S. W. 802 (Tex.). It should be for the trier of fact to determine under the circumstances of the particular case whether non-disclosure amounted to negligence. But no judge or jury should be permitted to find it due care to violate a statute designed to prevent the very injuries for which

recovery is sought. See Osborne v. McMasters, 40 Minn. 103, 41 N. W. 503; Marino v. Lehmaier, 173 N. Y. 530, 66 N. E. 572. For a general discussion of the subject, see Thayer, "Public Wrong and Private Action," 27 HARV. L. REV. 317.

WILLS CONSTRUCTION GENERAL REVOCATORY CLAUSE. The testatrix duly executed a will consisting of items numbered from one to nine, disposing of all her property. An executor was also appointed. A later paper, titled "Item Ten," began with a general revocatory clause, and merely provided for the care of her estate by an attorney until the arrival of her executor. There was also a statement of her desire to dispose of all her property. Held, the express revocatory clause does not revoke the first will. Owens v. Fahnestock, 96 S. E. 557 (S. C.).

In the construction of wills, the intention of the testator should govern. Finlay v. King's Lessee, 3 Pet. (U. S.) 346; Patch v. White, 117 U. S. 210, 6 Sup. Ct. Rep. 617. See Lemage v. Goodban, L. R. 1 P. & M. 57, 62. Nevertheless, the expressed intention is controlling irrespective of the internal state of the testator's mind. Jackson v. Sill, 11 Johns. (N. Y.) 201. See Simpson v. Foxon, 1907 P. 54, 57. This intention must be gathered from all the parts of the will taken together, whether the will consists of several papers executed as one instrument or of separately executed documents. See Rogers v. Rogers, 49 N. J. Eq. 98, 23 Atl. 125; Lemage v. Goodban, supra. See also PAGE, WILLS, §§ 462, 470. The words, "This is my last will and testament," are very slight evidence of an intention to revoke prior testamentary dispositions. Stoddard v. Grant, 1 Macqueen's Rep. 163; Cutto v. Gilbert, 9 Moore P. C. 131; Gordon v. Whitlock, 92 Va. 723, 24 S. E. 342. See Aldrich v. Aldrich, 215 Mass. 164, 169, 102 N. E. 487, 490. Even the words, "last and only will," have been held not to be an express revocation. Simpson v. Foxon, 1907 P. 54. But a general revocatory clause is very much stronger, and prima facie revokes prior testamentary papers. Southern v. Dening, 20 Ch. D. 99; In re Kingdon, 32 Ch. D. 604. See Cadell v. Wilcocks, [1898] P. 21, 26. If it is clear, however, from all the testamentary papers, that the testator had no intention to revoke, the revocatory clause will be treated as mere surplusage. Denny v. Barton, 2 Phillim. 575; Van Wert v. Benedict, 1 Bradf. (N. Y.) 114. See Dempsey v. Lawson, 2 P. D. 98, 105-107; Smith v. McChesney, 15 N. J. Eq. 359, 363. The principal case is more clearly right, because it can be ascertained from the alleged revocatory instrument itself that there is no intention to revoke. "Item Ten" indicates a continuation of a will of nine items. The testatrix desires to dispose of all her property, yet this paper makes no such provision. Moreover, she speaks of an appointed executor who must necessarily administer under a will disposing of some property.

BOOK REVIEWS

LEMUEL SHAW, CHIEF JUSTICE OF MASSACHUSETTS, 1830-1860. By Frederic Hathaway Chase. Boston and New York. Houghton Mifflin Company. 1918. pp. 329.

Fifty-eight years ago, Chief Justice Lemuel Shaw resigned his great office. Fifty-seven years ago he died. Few men now living remember his face; and probably no lawyer survives who ever argued before him. His judicial record stretches through fifty-six volumes and his name is almost daily on our lips. But until Judge Chase printed his interesting volume, no biography of him had appeared.