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either did not warn the plaintiff at all or warned him when it was too late. On such findings we cannot say that the plaintiff was not in the exercise of due care or that the defendant was. The test is not only what each knew, but what each reasonably ought to have known conceruing the risk; and we cannot say that identically the same duty rested on the servant and on the master, seasonably to ascertain the extent of the danger involved in performing the work in the manner ordered by the master. If the master personally interferes in the performance of work, and in consequence of his negligence a servant is injured, the master is liable, unless the carelessness of the servant is a defense. Roberts v. Smith, 2 H. & N. 213. And when the master undertakes to direct specifically the performance of work in a particular manner, we cannot say as a matter of law that the servant is not justified in relying to some extent upon the knowledge and carefulness of his employer, and in relaxing somewhat the careful examination and vigilance which otherwise must be incumbent upon him. The servant's attention must be principally directed to the performance of the work in the manner in which he is ordered to perform it, and he may be in a less favorable position to see and judge of the surrounding dangers, and when he is suddenly called upon to perform a piece of work in a particular manner, under the eye of his employer, he may not reasonably have time for the most careful observation.

This court has perhaps recognized that the servant may put some reliance upon the master when he assumer control of the work and gives specific orders, and then there is not precisely the same obligation resting upon each to ascertain what the dangers are.

In Coombs v. New England Cordage Co., 102 Mass. 572, 585, although the case was decided on the ground that the servant was incapable of understanding and appreciating the danger to which he was exposed, and that the employer set him to work without properly instructing him in regard to his work and the dangers attending it, the court say: "Some allowance should be made for his youth, his inexperience in the business, and for the reliance which he might have placed upon the directions of his employers."

his attention principally to the management of his horses, while his master had assumed the responsibility of directing where the plaintiff should drive, and was free to observe carefully all the dangers which the plaintiff incurred in executing his orders. We think that the requests for instructions were properly modified by the consideration of the fact that the plaintiff was acting in the presence and under the direction of one of the defendants, who was his master. If the charge in this respect is not so definite as might be desired, it was not erroneous or misleading. Exceptions overruled.

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A widow in possession under the second section of the statute concerning dower, giving her the right to hold her husband's homestead until her dower is assigned, is not a tenant for life, and is not therefore bound to keep down interest on an incumbrance, and to pay taxes and to make necessary annual repairs. See 23 Eng. Rep. 788; 25 id. 724; Boone Real Prop., § 38; 138 Mass. 434.

in open court. N final hearing on bill and answer, and proofs taken

Franklin M. Olds, for complainant.

Samuel H. Pennington, for the widow.

VAN FLEET, V. C. The only question in dispute in this case is, whether a widow, who remains in the house of her husband after his death until dower is as signed, is while so in possession subject to the duties of a tenant for life, that is, bound to keep down the interest on incumbrances, to pay ordinary taxes and to make necessary annual repairs? It is well settled that these burdens must be borne by a life tenant. 1 Wash. Real Prop. 96, ¶ 25, 25a; 115, 31; 1 Story Eq. Jur., § 488. And a tenant in dower, like other life tenants, is subject to them. 4 Kent Com. 75; 2 Scrib. Dow. 732. This obligation has been extended in this

In Atlas Engine Works v. Randall, 100 Ind. 293, it is said that "if the attention of the appellee had been, as in the Massachusetts case, withdrawn from the source of danger by the requirements of his employment, the case would involve considerations which are conspicu-State so as to make it the duty of a person entitled to ously absent."

Keegan v. Kavanagh, 62 Mo. 321, is the case of a hod carrier, who in obedience to a positive order of his master went down to build a stone wall at the foot of an embankment of earth, which was not shored or propped, and which fell upon the plaintiff. The court say that "if the risk is such as to be perfectly obvious to the sense of any man, whether servant or master, then the servant assumes the risk," but that "the superior information of the master was relied on, and his better means of information as to the character of the ground," and a verdict for the plaintiff was sustained.

In Lee v. Woolsey, 20 Rep. 469, it is said that "If an employee is in haste called upon to execute an order requiring prompt attention, he is not to be presumed necessarily to recollect a defect in machinery, or a particular danger connected with his employment, so as to avoid it."

The plaintiff in this case was an experienced teamster, but he may not have had the same experience as the defendant Dodge of the probability of driving safely the loaded van under the gateway. The more important matter however is that he might not have had the same opportunity of estimating the danger, and from his employment he was required to devote

the interest of a fund for life to pay the tax assessed against the principal of the fund. Holcombe v. Holcombe, 12 C. E. Gr. 473; S. C. on appeal, 2 Stew. 597. The reason assigned for imposing this duty on the person entitled to the interest is stated as follows by Justice Van Syckel: "So long as the life tenant enjoys the entire produce of the fund, he should be required to keep down the taxes on it, otherwise the fund itself must become impaired, and the entire burden be thrown upon those who take the fund at his death."

The obligation of a widow to perform the duties of a life tenant while in possession under the statute is put upon the ground that the right given to her by the statute is in substance a life estate. Unless this position can be maintained, it is admitted she ought not to be held liable to the duties of a life tenant. Other tenants, such as tenants for years, from year to year, and at will, are not in the absence of a contract to that effect, subject to them. They rest alone on tenants for life. The widow's right is given by these words: "That until dower be assigned to her, it shall enjoy the mansion house of her husband and the mesbe lawful for the widow to remain in and to hold and suage or plantation thereto belonging, without being liable to pay any rent for the same." Rev. 320, § 2. *6 East. Rep'r, 180.

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The purpose of this provision, as it seems to me, is to confer a right of possession similar to an estate or tenancy at will, rather than to create a life estate. The language employed is manifestly much more appropriate to raise a right of that kind than for the creation of a life estate. The first and most important provision of the statute, it will be observed, is that the widow can only remain in possession until her dower is assigned. When that is done her estate ceases and her right is gone. Either she or the heir may have her dower assigned. She may also surrender her possession at any time. So that the duration of her right depends entirely upon the will of herself and the heir, and like other tenants at will, her right may be determined at any time, either at the will of the person in possession or the person entitled to the reversion. It is true her occupation may be lengthened out to the end of her life, and she may thus enjoy what is equivalent to a life estate, but her possession can only have that duration when such is the joint will of herself and the heir, and such may be the extent of the duration of a tenancy at will in any case where the parties to the demise so desire.

Judicial opinion is not entirely uniform as to the nature of the right given by this and similar statutes. Under a statute substantially similar to ours the Supreme Court of Illinois have held that a widow, while in possession, is bound to pay taxes and keep the premises in repair. Wheeler v. Dawson, 63 Ill. 64. They do not however place her liability on the ground that her right is an estate for life, but on the broader ground that it is equitable, inasmuch as she is entitled to the whole produce, that she should bear these burdens. The court say: "Being entitled to use and occupy the homestead without accounting for the profits and gains made from it, no one would say that she should not, in justice and equity, pay the taxes and keep the premises in repair. We are aware of no principle of law or equity that would impose the duty on the heir to pay the taxes and keep up the repairs of the farm for the use of the widow when she is in the receipt of all the rents and profits."

This view, it will be perceived, pays no attention to the duration of the widow's right, nor to the object which the Legislature had in view in creating it, and entirely overlooks the fact that the law has always highly favored the rights of persons of this class. Justice Ford, in Ackermann v. Shelp, 3 Halst. 125, in deciding a motion to strike out a notice accompanying a plea of the general issue, giving notice of the special matter which the defendant intended to give in evidence under the plea, said incidentally, that the estate given to the widow by this statute is a freehold for life, unless sooner defeated by the act of the heir; and Justice Elmer, in Budd v. Hiler, 3 Dutch. 43, defines her right in the same way, adding however that her estate may be determined either by her own act, or that of the heir. Thus giving, as I understand it, a perfectly accurate description of an estate at will. The widow's possession can only endure so long as she and the heir so will, and either may at any time determine it by the mere exercise of his or her will. In the subsequent case of Wood v. Bilderbach, 1 Harr, 497, Justice Ford, speaks of the widow's right as a privilege, and such is the designation given to it by Chief Justice Beasley, in McLaughlin v. McLaughlin, 7 C. E. Gr. 505, and by Vice-Chancellor Dodd, in Bleecker v. Hennion, 8 id. 123. The latter says: "It is a privilege preceding, but in no wise preventing or impeding the assignment or disposal of her dower." It is plain, I think, when we look at the language used, and also consider the object which the Legislature had in view in the enactment of this statute, that the right given to the widow is not a life estate, but may be accurately described as a privilege in the nature of a tenancy

at will. By Magna Charta the widow had a right to tarry in the chief house of her husband for forty days after his death, and to have maintenance for that period out of his estate. The object was to give her a home. Our statute was intended to amplify that right by extending her right of possession until her dower was assigned. The Legislature meant, undoubtedly, that she should hold for the additional period beyond the forty days, upon the same terms that she had a right to hold for the forty days. "The purpose of the act," says the chief justice, in McLaughlin v. Laughlin, supra, "is obviously to provide a home for the widow until her dower be assigned, as well as to put a compulsion on the heir to make the assignment." To treat her as a life tenant while she is in the enjoyment of a mere fugitive right, which has been given to her simply as a temporary provision, and to constrain the heir to put her in possession of what she is entitled to permanently, would serve rather to fustrate than effect the legislative will. And although the Legislature, in defining the terms upon which the widow shall hold, use the word rent, it is quite evident, I think, that what they meant was that she should hold without being subject to any charge what

ever.

This question has already been dealt with by this court.

In Cronley v. Cronley, 13 Stew. 30, the chancellor held that a widow while in possession, under this statute, of her husband's homestead, was not bound to keep down the interest on a mortgage thereon. This adjudication, of course, settled the law of this court. In a previous case, decided orally without argument, and without much consideration, and making a free application of the principal estate asked by Holcombe v. Holcombe, that he who takes the benefits of property should bear its burdens, held, that a widow was bound, while in possession, to keep down the charges on the land which she enjoyed. A careful examination of the question has satisfied me that that conclusion is erroneous, and that it should be held, both according to principle and precedent, that she is not subject to that duty.

COPYRIGHT-DRAMATIC COMPOSITION—ORIGI

NALITY-PUBLICATION-PARTIES.

UNITED STATES CIRCUIT COURT, NORTHERN DISTRICT OF ILLINOIS, JULY 6, 1886.

ARONSON V. FLECKENSTEIN.*

An original operetta, consisting of libretto, score, and name,
is property at common law, which so far as unpublished,
will be protected by injunction from fraudulent imita-
tion.

An operetta may be so far an original dramatic composition
as to entitle it to protection as literary property,
although it is an adaptation of an old play.
Publication of the songs and vocal score of an operetta, with
the name of the operetta, does not make such name pub-
lic property.

Suit for protection of property at common law in a dramatie

composition e. g., an operetta, can be brought only by
the licensee of a general owner, where such licensee has
an exclusive license for a definite period, and by the
terms of his license is to bring all suits for the protection
of his rights.

A part owner of a dramatic composition may protect his
property by suit against a wrong-doer.
chancery.

IN

*28 Fed. Rep. 75.

It must, I think, be considered as proven that the complainant's operetta is founded upon the old and well-known drama of Robert Macaire; but the title, dialogue, minor characters, scenery, and dramatic situations, which with the orchestration, orchestra parts, songs, and music, make up the operetta, seem to be so far different as to entitle the piece, as a whole, to the claim of originality, and it is admitted by defendants that Mr. Dickson, the author of their libretto, has taken his piece almost wholly from the same old play. So far as I have had time to compare the two librettos, the defendants' piece seems to me to betray an attempt to avoid copying the Poulton libretto; but many of the situations, and much of the dialogue, and the traits developed by his characters, would seem to indicate, or suggest at least that his arrangement is modeled upon Poulton's.

Flower, Remy & Gregory, for complainant. E. A. Otis and Frank F. Reed, for defendants. BLODGETT, J. The bill in this case prays an injunction restraining defendants from producing, at the New Casino theater, in this city, the operetta of Erminie, and alleges, in substance, that in March, 1886, complainant acquired from Harry Poulton, Willie Edouin, and Frank Sanger the sole and exclusive right to produce in the United States and Canada the operetta known as Erminie; that he has, at great expense for advertising, scenery, etc., produced the operetta at the Casino, in New York, where it has met with great success; that prior to its purchase by complainant said operetta was the sole and exclusive property of Poulton; that the same was by him composed and written, and has never been published, nor in any manner dedicated to the public; that in April Defendants contend (1) that they have the same last complainant caused the title or name of Erminie, right as Poulton to write an operetta founded upon as applied to said operetta, to be copyrighted in the the story and incidents of Robert Macaire, and that office of the librarian of Congres, in pursuance of the they have not copied or adopted the Poulton compolaws of the United States; that defendants, iu viola-sition; (2) that by the publication of the songs and tion of complainant's rights, have advertised to produce, and have produced, at a place of amusement in this city called the New Casino, the operetta of Erm- | inie, announcing it as the "latest New York success, playing at the Casino, New York, and Avenue Theater, London, to crowded houses," etc. "This is the first production of Erminie outside of New York city,"

etc.

The proof from the affidavits on file shows that under the management of defendants Fleckenstein & Gunning, there was produced, on the 26th of June last, and has daily beeu played since that time, at the place of amusement in this city known as the New Casino, an operetta by the name and title of Erminie; that before its production, and before notice was served by complainant on the managers, it was announced and extensively advertised by the defendants' managers of the New Casino that they would, on the 26th of June, produce at the New Casino "New York's latest success, Erminie," and I can have no doubt but that defendants intended to make the public believe that the operetta to be produced by them was the same as the one by the same title which had been produced, under complainant's management, at the Casino, in New York city, where it had met with signal success and public approval. After being notified by complainant that he had the sole right to produce Erminie or authorize its production in this country, and that legal steps would be taken to prevent interference with his rights, the defendants' managers of the New Casino have modified their placards and advertisements by omitting all allusions to the New York operetta, but they still continue to play substantially the same piece, by the same title.

It is admitted that before complainant acquired the right to the piece in this country the songs and vocal score had been published and put on sale in England and the United States, with the consent and knowledge of the owners of the composition; but it is insisted, and the affidavits filed show that the orchestration and orchestra parts and libretto of the operetta have never been published.

Defendants insist, and their affidavits tend to show that their operetta of Erminie, as played at the New Casino, is an original and new composition, the libretto of which was written by Fred. Dickson; that they have adopted, as they lawfully might, the songs and vocal score of Erminie. the music of which was by Jacobowsky; and that their orchestration and orchestra parts were wholly written and composed by Profs. Hoffman and Wheeler of this city; and that the orchestration and orchestra parts are not copied from, and do not follow or imitate the corresponding parts of complainant's operetta.

vocal score of the Poulton operetta, with the title of the operetta, the title has become public property.

I think the proof now before the court shows that the name "Erminie," as applied to an operetta, originated with the authors of complainant's operetta; and that by the publication of the songs and vocal score of the operetta, they have not given to the public the right to use the name as applied to any other libretto, dialogue, and orchestra parts; that the publication of the songs only gave to the public that which was published, and does not authorize the use of the name as applied to the operetta as a whole.

The case, as now made by the proof, shows an attempt by defendants to avail themselves of the reputation and popularity which has been achieved by the operetta of Erminie, as exclusively owned and produced by complainant, by bringing out a piece with the same name and songs, but with colorable changes in the text of the dialogue and dramatic arrangement. The Poulton operetta, with the name of Erminie, being so far an original composition as to entitle it to protection as a piece of literary property, the name given the composition by its author, and under which it has become known to the public, became as it seems to me a property right, not strictly on the principle of a trade-mark, but because the name and literary composition became blended and united, so that the name identifies the composition to the public, so that the name of this composition belongs to this complainant as identifying and describing his literary property, and as a part of the piece itself, and defendants have no right to profit by using this name to the injury of complainant.

The law is now too well settled to require the citation of authorities, that the playing of a dramatic composition is not such a publication as makes the composition public property; and I think it equally clear that an author who has given a particular title or name to his composition is entitled to have that name protected. The proof shows that complainant has put his play before the public in New York city, and that it has there met with such approval as makes it probable, if not certain, that the piece will have a successful run in the other cities and towns of this country; and defendants have no right to avail themselves of the merits and popularity of complainant's play to draw audiences to the performance of theirs, even if as is claimed, their composition is a new and original dramatic arrangement. It is a fraud upon the public, as well as upon the complainant, to attempt to do so.

I do not deem it necessary, for the purposes of this motion, to consider whether complainant has acquired

For

any additional right to the name of his piece by registering the title with the librarian of Congress under the copyright laws of the United States, as I think his common-law right to the name is sufficient for his protection. Nor do the merits of the respective compositions enter into the question now before me. aught I know, or am at present advised, the defendants' piece may be the more meritorious of the two, as a literary and musical composition; but the palpable fact now before me, by the proof, is that the defendants are endeavoring to avail themselves of the reputation made by complainant for his composition, by his enterprise, skill, and experience as a manager, and this I do not think defendants should be allowed to do.

It is also urged that complainant is only a licensee, and therefore cannot sue in his own name. He is however the exclusive licensee for two years, with an option for an extension, and by the terms of his license, is to bring all necessary suits for the protection of his rights, and hence is, I think, the only one to bring suit for infringement in this country and Canada.

It is also urged that the proof shows that the opera, as a whole, was the joint production of Poulton, Bellamy, and Jacobowsky; the two first named being the authors of the dialogue, dramatic and scenic situations and songs, and the music by Jacobowsky; and that complainant does not show that he is owner of Bellamy's interest. The bill, which is sworn to, avers that Poulton became the sole owner of the entire operetta, and that complainant acquired his title. But even if the bill and proof did not show that complainant is clothed with the control of all the interests in the piece, it does show that he has acquired Poulton's interest, and that is enough to protect him against a wrong-doer.

I have discussed the case for the purposes of the motion for injunction mainly upon complainant's right to be protected in the name; but complainant insists that the defendant's piece is not in fact an original composition, but is an infringement upon the dialogue and dramatic arrangement of his operetta. This question however will be more appropriately considered at the final hearing, in the light of the proof as shall then

appear.

The injunction is allowed as prayed.

NEW YORK COURT OF APPEALS ABSTRACT.

APPEAL LANDS AT NIAGARA.- The appointment of commissioners by the Supreme court to ascertain and report the compensation to be paid owners of property taken by the State under chapter 336, Laws 1883, as amended by chapter 109, Laws 1884, to preserve the scenery about Niagara Falls, is analogous to the proceeding under the general railroad act, and this court is concluded, by the decisions under that act, from entertaining this appeal. June 21, 1886. In re Commissioners of State Reservation at Niagara, etc. Opinion per Curiam.

REPORT OF COMMISSIONERS TO TAKE

UNDERTAKING ON APPEAL-CODE, $$ 798, 1335. -Where appellant obtains leave to file undertaking on appeal to this court, and serves notice thereof on respondent by mail on the 7th, and the latter, on the 17th, mails a notice that he excepts to the same, and requires the sureties to justify, the service is properly made, and unless the sureties justify the appeal will be dismissed. June 8, 1886. Liddy v. Long Island City. Opinion per Curiam.

CRIMINAL LAW-BAIL-DEPOSIT OF MONEY IN LIEU. -Section 586 of the Code of Criminal Procedure,

providing that a defendant, instead of giving bail, may deposit with the county treasurer the sum mentioned in the order admitting him to bail, contemplates that the deposit is to be made by the defendant himself and by no one else. When the deposit is made by any party other than the defendant, it will be deemed to have been made for the defendant, and if conviction follows and a fine is imposed the court may, under section 598, order the fine to be paid out of the money so deposited, and the balance, if any, paid to the defendant. June 22, 1886. People v. Laidlow. Opinion by Earl, J.

OFFICER POLICEMAN DISMISSAL FOR INTOXICATION-WAIVER OF WRITTEN CHARGES. (1) Public intoxication is a crime, and one who has been convicted of that offense is ineligible to the office of patrolman upon the police force of the city of New York. (2) A party who has been convicted of such offense being ineligible to appointment upon the force, the commissioners may, upon ascertaining the fact, summarily dismiss him. (3) The provisions of section 250 of the Consolidation Act, providing that no member of the force shall be dismissed until written charges have been preferred, etc., may be waived by the accused by appearing with counsel before the commissioners and preceeding to trial, without objection, upon the merits. June 22, 1886. People v. Com. of Police. Opinion by Earl, J.

SETTLEMENT-NOTES-WHEN A SETTLEMENT OF ACCOUNTS STATUTE OF LIMITATIONS PLEADING.-(1) After the death of plaintiff's husband, defendant received money, notes, and accounts belonging to said deceased, he having been his former partner, and he also borrowed moneys of plaintiff, and she brought this action for an accounting. Defendant claimed that certain promissory notes given her by him amounted to a settlement. It did not appear that defendant had rendered any account of the items of moneys in his hands, or moneys due at the time of giving the notes, and it was proven that he owed her much more than the amount of the notes. Held, that the referee did not err in failing to find that such notes amounted to a settlement of the accounts, and in allowing such settlement to be opened without charge of fraud. (2) The answer set up that defendant had settled and paid plaintiff "for all deal, accounts, matters, and things he has ever had with plaintiff, and denies that he is indebted to her in any sum whatever, and that more than six years have elapsed since the matters and things mentioned in plaintiff's complaint, or any of them, have become due." Held, that this was not an averment, in appropriate language, that six years had elapsed since the demands named were due. June 8, 1886. Eno v. Diefendorf. Opinion per Curiam.

ABSTRACTS OF VARIOUS RECENT DECISIONS.

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SALE BELOW

AGENCY -AUTHORITY OF AGENT PRICE. A principal is not bound by the unauthorized acts of his agent who sells goods at a price below that authorized by the principal, and the latter may maintain an action of contract against a buyer, who with knowledge of the extent of the agent's authority, purchases goods at a price less than that authorized under an agreement with the agent, for the full amount due for the goods when sold at the authorized price. There is sufficient evidence in these transactions to show that Norris and the defendants combined together to deceive the plaintiffs, and that this was done by means of a pretended contract. The defendants ordered the goods of the plaintiffs at a certain price, which they

did not intend to pay, and permitted the plaintiffs to charge them with the goods, and send them bills for the same at prices which they had agreed with Norris should not be paid. The plaintiffs now have the right to insist upon the execution of the contract which the defendants have by implication made. They ordered the goods at the minimum prices. When the goods arrived, and the bills with them, charging the defendants with the goods at the prices at which they were ordered, they did not refuse to receive the goods, nor did they notify the plaintiffs of any mistake in the price. By remaining silent while the numerous bills were sent to them, they have impliedly ratified the sale of the goods by the plaintiffs at the prices named in the bills. Bearce v. Bowker, 115 Mass. 129. The defendants say: "We did not make this contract, although we knew that Norris ordered the goods for us at the minimum prices, and although we received the bills of the goods at the same prices at which they were ordered, and we have remained silent ever since; yet we made no agreement with Norris which we knew he was not authorized to make, to buy the goods at a less price." We think that the defendants cannot set up their agreement for the purpose of denying the contract which the law says exists between them. They will not be permitted to take advantage of their own wrong for their own benefit. Hill v. Perrott, Taunt. 274; Walker v. Davis, 1 Gray, 506. The cases at bar are not to be confounded with Jones v. Hoar, 5 Fick. 285; Brigham v. Palmer, ubi supra; Berkshire Glass Co. v. Wolcott, 2 Allen, 247; and other cases of that class, cited by the defendants for the purpose of showing that the plaintiffs cannot waive the tort and sue in contract unless they bring their actions upon the contract made by the agent, Norris, with the defendants. The cases at bar have in them an element which is wanting in all of the above-cited cases. It is this, that the defendant knew that the agent, Norris, had no authority to make the contract which he attempted to make with them; that the agreement between them was a transaction to obtain the goods from the plaintiffs at a less price than they were willing to sell them. It brings the plaintiffs' case directly within that of Hill v. Perrott, ubi supra. In the note to Jones v. Hoar, above cited, containing the opinion given in that case by Judge Strong in the Court of Common Pleas, a clear distinction is made between the case of Hill v. Perrott, and those sustaining the doctrine contended for by the plaintiffs. In that case Perrott had procured the delivery of the goode upon a pretended sale to one Dacosta, under the impression that the defendant was to be his surety, but the whole was a "swindling transaction" to enable the defendant to get possession of the goods. The court held that the law would imply a contract to pay for the goods on the part of the defendant, and that he could not be permitted to control this implication by setting up the sale to Dacosta, which he had himself procured, because no man can take advantage of his own fraud. Mass. Sup. Jud. Ct., July 1, 1886. Rogers v. Halden. Opinion by Gardner, J.

CONTRACT-BY LETTER-ACCEPTANCE OF OFFER.—A mere uncommunicated purpose to accept an offer does not constitute an acceptance, and where parties are distant, and the contract is to be made by correspondence, the writing of a letter or telegram containing a notice of acceptance is not, of itself, sufficient to complete a contract. In such a case the act must involve an irrevocable element, and the letter must be placed in the mail, or the telegram deposited in the office for transmission, and thus placed beyond the power or control of the sender, before the assent becomes effectual to consummate a contract, and not then, unless the offer is still standing. Although the

proposition did not, within itself, limit the time or manner of acceptance, it cannot be regarded as a perpetual one, forever open to be accepted or rejected, at the will of the plaintiffs. In Mactier v. Frith, 6 Wend. 103, the rule laid down with respect to a proposal made by letter is that the offer continues until the letter containing it is received, “and the party has had a fair opportunity to answer it." It has also been held that " a letter written would not be an acceptance so long as it remained in the possession or under the control of the writer. An offer then made through a letter is not continued beyond the time that the party has a fair opportunity to answer it." Averill v. Hedge, 12 Conn. 423. Upon receipt of Moore & Weav er's letter the plaintiffs were bound "to accept in a reasonable time, and give notice thereof, or the defendant was no longer bound by the offer." Chicago & G. E. R. Co. v. Dane, 43 N. Y. 240; see also Martin v. Black's Ex'rs, 21 Ala. 721; Moxley's Adm'rs v. Moxley, 2 Metc. (Ky.) 309; Minnesota Oil Co. v. Collier Lead Co., 4 Dill. 431; Judd v. Day, 50 Iowa, 247; Taylor v. Rennie, 35 Barb. 172; Benj. Sales, 61, note 7. The offer which was made was the result of correspondence through the mails, and as the dates of the letters indicate, they had been promptly answered and responded to by both the parties. Besides the letter containing the proposal, by its terms, enjoined an early reply. It closes with the words, "Hoping to hear from you soon," etc. While the mode of acceptance was not indicated in the letter making the offer, the nature of the negotiations, as well as the manner in which they were carried on, suggested, not only the desire and necessity for an early reply, but also that the parties making the offer would expect an answer through and by the usual course of the mails. It has been said that "where an individual makes an offer by post, stipulating for, or by the nature of the business having the right to expect an answer by return post, the offer can only endure for a limited time, and the making of it is accompanied by the implied stipulation that the answer will be sent by return post. If that stipulation is not satisfied, the person making the offer is released from it." Maclay v. Harvey, 90 Ill. 525; Dunlop v. Higgins, 1 H. L. Cas. 387. If the plaintiffs intended to accept the proposal, it was their duty to have signified their acceptance, either through the mails, or by some equally expeditious means. The plaintiffs say that they determined to accept the prososition as soon as the offer was received, and that Mr. Harper's act in starting to Ottawa was an overt act, amounting to an acceptance. Every overt act caused by a determination to accept a proposition does not constitute an acceptance. If it was the intention of the plaintiffs to accept the offer, they could, and most likely would, have written Moore & Weaver a letter, which was the usual mode of communication between the parties and which is the usual mode of accepting an offer made by letter. Instead of sending a letter or telegram announcing a determination to accept, one of them started on a business trip through the country, intending finally to come to Kan sas, and take the goods, which trip consumed almost thirty days' time, during which time they were at liberty to change their purpose, and reject the proposition. The mere determination to accept an offer does not constitute an acceptance which is binding on the parties. "The assent must either be communicated to the other party, or some act must have been done which the other party has expressly or impliedly offered to treat as a communication." Benj. Sales, 54. Kans. Sup. Ct., July 9, 1886. Trounstine v. Sellers. Opinion by Johnston, J.

RECOVERY OF DAMAGES FOR BREACH CLAIM TO DEDUCT NOTE GIVEN ON ACCOUNT.-G. was to print

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