Again, there is a considerable body of law dealing with the question of releases. of rights before the injury is sustainedthat is, contracts exempting from liability. It is not intended to deal here with such

cases.

This note, accordingly, must be limited; and all that will be attempted will be a brief discussion of certain special questions (principally as to parties) arising as to releases, given after the injury, of rights arising under the federal Employers' Liability Act.

Obviously, in considering the release of a right, the first questions to be determined are, what is the nature of the right, and in whom is it vested? These questions are answered in the case of St. Louis, etc., R. Co. v. Craft. The Act2 confers two separate rights of action, viz.:

(1) A right of action in favor of the injured employe, which (under the amendment of April 5, 1910), in the event of his death survives to his personal representative for the benefit

(a) of the surviving widow or hus-
band and children; or, if none,
(b) of the parents; or, if none,
(c) of the next of kin.

(2) In case of death resulting from the injury, a new right of action in favor of the personal representative for the benefit of the relatives named above.

(1) The Employe's Right of Action.Taking up these in order, it is entirely clear that if the employe is injured, and death does not result, a release from the employe alone is sufficient.

Moreover, if such release has been given, and the employe subsequently dies, whether or not as the result of the injury, it is obvious that the cause of action in his favor, which the amendment of 1910 provided should survive to his personal representative, having been extinguished by the release, is at an end.

(1) 237 U. S. 648, 59 L. Ed., 1160. (2) As amended April 5, 1910; the situation was different before: Michigan, etc., R. Co. v. Vreeland, 227 U. S. 59, 57 L. Ed. 417.

As to the new cause of action given the personal representative in favor of the designated relatives, the Supreme Court of the United States has not yet had occasion. to consider the effect of a release given by the employe in his lifetime. It is believed, however, that when this question is presented, the release will be held to be an effective bar to a subsequent action. A very strong argument to the contrary, based on the theory that an independent cause. of action in favor of the wife and children cannot be divested by any act of the emconnection with a similar statute, in the ploye, is made by the majority opinion, in case of Rowe v. Richards, but it is conceded there, emphasized by the two dissenting opinions in the case, and demonstrated by the notes to Louisville R. Co. v. Taylor, that the overwhelming current of decision is to the contrary effect. Moreover in the Vreeland case, supra, the Court said:

"But as the foundation of the right of action is the original wrongful injury to the decedent, it has been generally held that the new action is a right dependent upon the existence of a right in the decedent immediately before his death to have maintained an action for his wrongful injury."

If the decedent had released his rights, it would seem that the "new action" must fail. But as to this we cannot speak dogmatically, but only in terms of high probability.

A similar conclusion persuasively results. from Northern, etc., R. Co. v. Adams."

(2) The Personal Representative's New Right of Action.-Far more important to the practitioner, is the question of how the new right of action given the personal representative in cases of death can be released, no release having been given by the decedent.

Upon this question the language of the

(3) S. D., 151 N. W. 1001, L. R. A. 1915, E. 1075.

(4) Ky., 27 L. R. A. (N. S.) 176, and State, etc., v. United, etc., Co. of Baltimore (Md.), L. R. A. 1915. E. 1163.

(5) 192 U. S. 440, 48 L. Ed. 513; see also 13 Cyc. 325; and, for the opposite view, Note in 70 Am. St. Rep. 669, at p. 684.

act affords no solution; nor have there been found any decisions construing it in this regard. We are remitted, accordingly, to principle, and to decisions construing other statutes in pari materia.

It is clear that there may be at least three types of releases, having regard to the parties:

(a) Releases by the personal represen-
tatives;

(b) Releases by all the beneficiaries;
(c) Releases by some of the benefi-

ciaries.

(a) Releases By the Personal Representatives.-As to these, while the intimations of some courts are otherwise it is believed to be immaterial to examine the common law powers of a personal representative, for the reason that his functions under the act are of a special character, as trustee for certain designated beneficiaries, and not at all as the representative of the estate of the deceased. This is well brought out in the case of Washington, etc., R. Co. where a statute required personal representatives to secure the consent of the probate court to proposed compromises, but it was held that this did not apply to the compromise of death cases.

The following cases hold that a release by the personal representative is valid, in the absence of fraud. 8

It would seem that a release by a per

(6) Parker v. Providence, etc., Co. R. I., 14 L. R. A. 414; Olston v. Oregon, etc., Co., Ore., 96 Pac. 1095, 20 L. R. A. (N. S.) 915.

(7) Ill., 26 N. E. 653.

(8) Loveman v. Birmingham, etc., Co., Ala., 43 So. 411; Henchey v. Chicago, 41 Ill. 136; Washington v. Louisville, etc., R. Co., Ill., 26 N. E. 653; Hemmick v. Baltimore, etc., R. Co., Ill., 104 N. E. 1027 (here the personal representative was the widow and was also guardian for the only child); Gipe v. Pittsburgh, etc., R. Co., Ind., 82 N. E. 471 (the case so holds by necessary implication, the release having been given by the personal representative, who was the widow, and there having been minor children; but the question is not discussed); Foot v. Great Northern R. Co., Minn., 84 N. W. 342 (but if obtained by fraud the Minnesota court holds that it may be collaterally attacked in a new suit against the tort-feasor: Aho v, Jesmore, 112 N. W. 538, 10 L. R. A. [N. S.] 998; Aho v. Steel Co., 116 N. W. 590); Olston v. Oregon, etc., Co., Ore., 96 Pac. 1095, 20 L. R. A. [N. S.] 915; Parker v. Providence, etc., R. Co., R. I., 14 L. R. A. 414.

In Mississippi, the widow is the proper party plaintiff, though the recovery is to be distributed as personal property of the husband, which gives the children an interest therein; and in Natchez, etc., Co. v. Mullins a compromise by the widow of a $6,000 judgment for $1,000 was upheld over the protest of the children.

The law of Pennsylvania, for the purposes of this question, is the same as that of Mississippi, and a settlement by the widow is held valid.12

These cases inferentially support the right of the personal representative to release.

See also, contruing the Pennsylvania statute, and reaching the same conclusion as the Pennsylvania Court, the decision. of Judge Hand.13

The case last referred to1 arose under an Arizona statute giving the right to sue to all or any of certain specified beneficiaries, and requiring the jury to allot the recovery. Under this a verdict was obtained in a suit brought by the widow for herself and certain named beneficiaries, which verdict fixed the recovery in favor of each. The widow then filed a remittitur reducing all the recoveries, including her own, and fixing some at merely nominal amounts. This the Court held she could not do. The case is probably distinguishable from the Mississippi and Pennsylvania

cases on two grounds: first, that under the Arizona statute, the beneficiaries other than the widow had the right, if so advised, to become parties to the record; and second, that in it the rights of the other beneficiaries had been fixed by what amounted to separate verdicts in their favor, and could not therefore he impaired by the widow. So far as I have been able to find, the case has never been cited save in Judge Hand's opinion, supra.

A somewhat peculiar situation exists in Tennessee and Missouri. In Tennessee, the statute gave the right to sue first to the personal representative, second, if he failed. to sue, to the widow, and third, if she failed to sue, to the children or to a personal representative for the benefit of the next of kin. In Greenlee v. R. Co.15 it was held that the widow, rightfully suing, had the right to compromise, though the children had an interest in the recovery or compromise, as the case might be. The same holding was made in Stephens v. Nashville, etc., R. Co.16 and in Prater v. Tennessee, etc., Co. Moreover, as long as the right. to sue is vested in the widow, she may compromise as well before as after suit is brought, and may receive and give due acquittance for the amount paid by way of compromise.18 But the situation is otherwise where the right has passed to the personal representative for the benefit of the next of kin. Then the widow is merely one of the beneficiaries, and cannot validly compromise the action.1o

In Missouri, a similar statute gave the right first to the consort, and the second, if there was none, or if he or she failed to sue within six months, to the minor children. In McNamara v. Stevens 20 the widow sued within six months, but later dismissed the suit-presumably having compromised it. It was held that the children had no right

to sue. In Hamilton v. R. Co.21 it was held that the widow had the right to compromise before bringing suit.

In so far as these two states sustain the right of compromise, in the person suing, they afford support for the position that the personal representative can validly release. The holding in Ohio seems to be to the contrary effect.22

And in New Jersey, there is a statement in Pisano v. B. M., etc., Shanley Co.23 that there are decisions in other states to the effect that the administrator is so purely a formal party that his release of the cause of action without the consent of the beneficiaries will not be permitted; but no such decisions are cited; and the statement was unnecessary to the decision of the case.

(b) Release By All the Beneficiaries.The courts generally hold that a release by the sole beneficiary, or by all the beneficiaries, is valid.24

But a different doctrine obtains in Indiana.25

And in Kentucky.20

(21) Mo., 154 S. W. 86.

(22) Baltimore, etc., R. Co. v. Hottman, 25 Ohio Cir. Ct. R., 140, as digested in 7 Am. Dig. (Dec. Ed.) 391.

(23) 48 Atl. 618. (24) Kennedy v. Davis, Ala., 55 So. 104; Christie v. Chicago, etc., R. Co., Iowa, 74 N. W. 697; Sykora v. J. I. Case Threshing Co., Minn., 60 N. W. 1008 (under Minnesota statute expenses of last sickness and funeral expenses must be met out of recovery, and persons having claims therefor are beneficiaries, but they must be demanded in the complaint, and settlement would in any case be good as against other beneficiaries); Schmidt v. Deegan, 69 Wis. 300, 34 N. W. 83; McKeigue v. Chicago, etc., R. Co., 130 Wis. 543, 110 N. W. 384, 11 L. R. A. [N. S.] 148; Doyle v. New York, etc., R. Co., 72 N. Y. Supp. 936 (but in this case it additionally appeared that the beneficiary had, subsequently to the settlement, been appointed administrator; and it was held that this appointment related back to the death of the intestate. Moreover, in New York, the sole beneficiary cannot settle so as to leave the personal representative burdened with funeral expenses. Bruck v. New York, etc., R. Co., 151 N. Y. Supp. 286).

(25) Yelton v. Evansville, etc., R. Co., 134 Ind. 414, 33 N. E. 626, 21 L. R. A. 158 (the reasoning of this case would indicate that the personal representative has the right to compromise, but the court states that he could only do this under authority of the court).

(26) Louisville v. Hart's Admr., 143 Ky. 171, 136 S. W. 212, reported sub nom. Louisville v. Schneider, 35 L. R. A. (N. S.) 207 (but in this

(c) Release By Some of the Beneficiaries. The general doctrine is that any beneficiary can release his individual claim for damages, but not the entire right of action.27

It should be stated that this doctrine is so generally applied that exhaustiveness in the citation of authority has not been attempted.

BILLS AND NOTES-ALTERATION.

LANDON v. HALCOMB.

Court of Civil Appeals of Texas. Ft. Worth, Feb. 19, 1916.

184 S. W. 1098.

A material alteration of a note precludes any claim on the part of the holder to protection as an innocent purchaser for value without notice.

of Action.-The following conclusions are suggested:

(1) That a release by the personal representative in the absence of fraud, is probably good.

(2) That a release by all the beneficiaries is almost certainly good; and

(3) That a release by one or more of the beneficiaries is good as against him or them.

Norfolk, Va.

ROBT. B. TUNSTALL.

ex

case the decision is expressly based on the circumstances that the Kentucky statutes pressly gave the personal representative the power to settle the claim, which power the court held to be exclusive).

(27) Mella v. Northern S. S. Co., 127 Fed. 416 (this is really all this case decides, though in the note in 35 L. R. A. [N. S.] 207, it is cited to sustain the proposition that a widow-administratrix can, by release executed prior to her appointment, extinguish the right of the next of kin under the New York statute. The court expressly however, limits the effect of the release to her interest in the recovery); Pittsburgh, etc., R. Co. v. Moore, 152 Ind. 345, 53 N.. E. 290, 44 L. R. A. 638; Pittsburgh, etc., R. Co. v. Hosea, Ind., 53 N. E. 419; Dowell v. Burlington, etc., R. Co., 62 Iowa 629, 17 N. W. 901 (qu: whether it is a fair inference from this case that the widow, had she been administratrix, could validly have released the claim?); McVeigh v. Minneapolis, etc., R. Co., 110 Minn., 184, 124 N. W. 971; Chicago, etc., R. Co. v. Wymore, 40 Neb. 645, 58 N. W. 1120; Chicago, etc., R. Co. v. Healy, Neb., 111 N. W. 598, 10 L. R. A. (N. S.) 198 (in both the last two cases widow was also the administratrix, but in the first it is stated expressly, and in the latter implied, that she did not release in that capacity); Houston, etc., R. Co. v. Bradley, 45 Tex. 171.

the

(28) 13 Cyc. 325 et seq. (Tit. "Death"); 34 Cyc. 1080 (Tit. "Release"); 15 Am. Dig. (Cent. Ed.) Sec. 27; 7 Am. Dig. (Cent. Ed.) Key No. Sec. 25; Notes 14 L. R. A. 414; 21 L. R. A. 158; 8 L. R. A. (N. S.) 384; 11 L. R. A. (N. S.) 148; 27 L. R. A. (N. S.) 176: 35 L. R. A. (N. S.) 207 L. R. A., 1915 E. pp. 1095, 1104, 1163.

DUNKLIN, J. V. S. Halcomb, the proprietor of a drug store in the town of Bridgeport, gave a written order to the Vernon Advertising Company of Schell City, Mo., for a piano, a set of

to be shipped by the company to Halcomb, and attached to the order was Halcomb's promissory note, payable to the advertising company, or order, for $400. The note and order were on the same piece of paper, but were separated by a perforated line. The order reads as follows:

The Vernon Advertising Company, of Schell City, Mo.

Pianos Direct from the Factory. Town, Bridgeport. State, Texas. 6/23/1914. County, Wise. Post-Office, Bridgeport, Tex. Gentlemen: Upon approval of this order, please deliver to me at your earliest convenience, f. o. b. factory, or distributing point, the goods described in this order, with the understanding that this is to be the exclusive order for this town, I or we understand that this order cannot be countermanded. This order shall contain the following goods: 1 piano (guaranteed for 10 years). 2,500 duplicate tickets. 250 piano circulars. 250 nomination letters. 1 piano stool.

288 fountain pens. 250 pen circulars.

Merchant's instructions.

1 26 pc. silver set.
250 silver set circulars.
2,500 trade cards.

Contestants' instructions.

Price, $400, Payable Five Payments.

We guarantee the sale of 288 fountain pens at $1.50 each by the close of the contest: Provided, the contest is run at least 26 weeks from opening date acording to the advertised plans as per regular printed circulars furnished by the Vernon Advertising Company and awards all prizes accordingly, reports the gross sales of pens each 30 days, during the contest and

makes each and every payment on the date or within 5 days from the date when due. In case the undersigned should for any reason desire to close the contest before all the pens have been sold, then the Vernon Advertising Company agrees to purchase all pens remaining unsold. The undersigned hereby accepts the above conditions and agrees that failure on his part to fulfill any of the above conditions will and does hereby release the Vernon Advertising Company, of Schell City, Mo., from any liability on this contract.

We hereby appoint the undersigned as agent for the Vernon Piano at Bridgeport, Texas, and agree to pay him a commission of $50.00 on all sales made at the regular retail price of $350.00, or through said agent, commission payable out of the first money received from such sale. No other agreements or conditions not embraced in this regular printed form will be accepted or recognized. This order is taken in duplicate.

By B. Kupton, Representative.

It appears that these documents were executed by Halcomb in pursuance of an advertising scheme suggested and proposed by a traveling agent of the advertising company.

The present suit was instituted by A. C. Landon, residing at St. Louis, Mo., against Halcomb upon the note so executed, which had been detached from the written order. The plaintiff alleged that he was an innocent purchaser of the note for value before maturity, and from a judgment in favor of the defendant, the plaintiff has appealed.

The evidence showed beyond controversy that the defendant received 144 of the fountain pens and practically all the other articles mentioned in the order, except the piano and stool; and that defendant, in pursuance of the advertising scheme planned and arranged by the company, advertised to give away the piano and other articles as prizes; that the piano and stool never reached Bridgeport in time to be used in accordance with such advertising, although the defendant made repeated demands therefor; that later the piano did arrive at Bridgeport, consigned to shipper's order, but that the advertising company failed and refused to send defendant any bill of lading for said piano, and in the absence of which the defendant was unable to get it, and in consequence of which the defendant never received it.

The case was submitted to a jury upon special issues, and the jury found that the articles received by the defendant were of no value; that the advertising company at the time said contract was made did not intend to comply

with its contract to ship the goods mentioned in the order; that the company entered into the contract for the fraudulent purpose of getting possession of the notes and realizing thereon by transferring the same to some other person. The jury further found that the plaintiff, Landon, was not a purchaser of the note in the usual course of trade and in good faith for. value, and that at the time he purchased it he had notice that the same was given as a consideration for the obligation contained in the written order referred to above, and that the advertising company had obtained the note for the fraudulent purpose of cheating defendant. The jury further found that it was the intention of the parties to said note and written order at the time those instruments were executed and delivered that the same were to remain attached, together, as they were attached when executed, and to remain so until the obligations of both parties were fully complied with, and that the note was detached from the order without defendant's consent. The jury further found that at the time plaintiff purchased the note he had notice that the same had been attached to said order when those instruments were executed and delivered, and that the same had been detached without the consent of the defendant. They further found that the goods mentioned in the order, and for which the note was given, were intended to be used in furtherance of a lottery scheme, and that plaintiff knew of that fact at the time he bought the note, and that the separation of the note from the order was a material alteration.

The facts so found by the jury were pleaded, substantially, by Halcomb as defenses to the suit. All the findings of the jury have been attacked by appellant as being unsupported by the evidence, and the contention is made that the evidence conclusively shows that plaintiff was an innocent purchaser of the note before maturity for value without notice of any defenses thereto.

[1, 2] The evidence shows conclusively that the note in suit and the order for goods embodying contractual obligations on the part of the Vernon Advertising Company, as well as on the part of defendant, Halcomb, which was originally attached thereto, were parts and parcels of one contract. If at the time the contract was executed the parties thereto intended and understood that the note was to remain permanently attached to the order, as found by the jury, then it follows that the separation of the order from the note for the purpose of negotiating the note was a material alteration of the note, which precluded any claim on the part