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to the effect that a general reservation of the power to change and amend the by-laws does authorize a subsequent change, in respect to assessments and benefits, which may be reasonably necessary to carry out the purposes of the association.

There are cases, however, which hold differently. In a recent Texas case, where the assessments were increased, the court considered this to be a violation of the contract, upon the ground that "the reservation

of the general power to amend its constitution and by-laws

*, relates only to the member's duties and obligations as such, and does not authorize a radical change in the terms of his insurance contract as was attempted to be made by the raised assessments. This being true, it is immaterial that the appellee may have occupied the position of insured and insurer, and whether the increase in the rate of appellee's assessments was reasonable or necessary to continue the financial existence of the corpora


In New York, in the much cited case of Wright v. Knights of Maccabees, 8 there was a general reservation and a provision that the plaintiff should continue to pay at the same rate as long as he was a member in good standing, similar to the provision in the Thomas case. The right to pay at the old rate was held to be a vested right, immune from change by amendment, in the absence of a specific reservation to that effect. The question was submitted again to the Court of Appeals in the case of Green v. Royal Arcanum. At the time Green joined the defendant order, his rate of assessment was $1.86 per month. In 1898, it was raised to $3.16, to which the plaintiff consented. Seven years later, the assessment was again raised to $6.87 per month, and for some time Green paid under protest. In 1910, he tendered $3.16, the amount to which he had assented, and which amount the defendant refused to accept. Green then sued to enjoin his suspension from the order, and the court held that a general reservation of the right to amend does not authorize a subsequent increase of the rate of assessment or reduction of the amount of benefits as fixed by the contract.

It is difficult to find a principle upon which the cases may be reconciled, other than that the change must be a reasonable one. Under the Washington view, as illustrated by the Thomas case, it would seem that any change would be reasonable if necessary to sustain the life and carry out the purposes of the order. Other cases hold that the change is reasonable, only when it does not impair the contract by infringing a substantial, or as some courts call it, "vested" (1908); Trisler v. Mutual Reserve Fund Life Ass'n, 128 Mo. App. 497 (1907); Conner y. Supreme Commandery, G. C., 117 Tenn. 549 (1906); United Benevolent Ass'n v. Cass, 54 Tex. Civ. App. 628 (1909); Knights of Pythias v. Mims, 241 U. S. 574 (1916).

Smythe v. Supreme Lodge, K. P., 198 Fed. 967 (1912); Ericson v. Supreme Ruling, F. M. C., 105 Tex. 170 (1912); Pearson v. Knight Templars, 114 Mo. App. 283 (1905); Strauss v. Mutual Reserve Fund Life Ass'n, 128 N. C. 465 (1901); Supreme Lodge, K. P. v. Mims, 167 S. W. (Tex.) 835 (1914). ?Ericson v. Supreme Ruling, F. M. C., supra, note 6. 8196 N. Y. 391 (1909). 9206 N. Y. 591 (1912).


right which the member has by virtue of his certificate and the original constitution and by-laws.

But, assuming that there has been an unauthorized change and, upon the refusal of the member to abide by it, a repudiation of the contract by the company, can the member maintain an action to recover damages as for a breach of the contract? Ordinarily, the absolute repudiation of a contract before the time for its performance gives an immediate right of action for damages.10 In a number of the states recognizing this doctrine of anticipatory breach, it is applied as well to contracts of mutual benefit insurance as to any other contracts. But in New York and a few other states, 12 it has been held that the doctrine of anticipatory breach does not apply to contracts of this nature. In Kelly v. Security Mutual Life Insurance Co.,13 the New York court held that the plaintiff had no right to sue for damages before the time for performance by the defendant arrived. It was stated that the doctrine of anticipatory breach was confined in this state to contracts of a special character only, the court saying that “at least we have not extended it to mutual life insurance policies, perhaps for the reason that the question of fact opened to unscrupulous persons by such extension might undermine the solvency of the company and inflict gross injustice upon the other policy holders." This quotation, perhaps, explains the decision of the case, as the Court of Appeals has recognized the doctrine of anticipatory breach in various cases of a different nature, 14 and, if the dictum in an early caselt is correct, would apply the doctrine of anticipatory breach to a case of repudiation by an old line insurance company of a similar policy of life insurance.

Although a few of the courts recognize an increase in the assessment rate, or reduction of the amount payable under the certificate, as an unreasonable amendment, and therefore a breach of the contract such as to justify an immediate action for damages, the majority of jurisdictions avoid this result,-some courts by holding the change a reasonable one, and, therefore, no breach; others, by holding that, even though the change is unreasonable, the doctrine of anticipatory breach does not apply to actions upon contracts of this nature. The states which adopt this latter view, however, do allow an application to a court of equity for the reinstatement of the policy.

W. J. Gilleran, '18.

10Roehm v. Horst, 178 U. S. 1 (1899).

11 Fort v. Iowa Legion of Honor, 123 N. W. (Ia.) 224 (1909); Makely v. Supreme Council, A. L. H., 133 N. C. 367 (1903); O'Niell v. Supreme Council, A. L. H., 70 N. J. L. 410 (1904); Conner v. Supreme Commandery, G. C., supra, note 5; Supreme Lodge, K. P. v. Mims, supra, note 6; Supreme Council, A. L. H. v. Black, 123 Fed. 650(1903); Supreme Council, A. L. H. v. Lippincott, 134 Fed. 824 (1905).

12 Supreme Lodge, K. P. v. Knight, 117 Ind. 489 (1888); Kelly v. Security Mutual Life Insurance Co., 186 N. Y. 16 (1906); Porter v. Supreme Council, A. L. H., 183 Mass. 326 (1903).

13 Supra, note 12. 14Burtis v. Thompson, 42 N. Y. 246 (1870); Howard v. Daly, 61 N. Y. 362 (1875); Ferris v. Spooner, 102 N. Y. 10 (1886); Windmuller v. Pope, 107 N. Y. 674 (1887); Nichols v. Scranton Steel Co.,137 N. Y. 471 (1893).

16 People v. Security Life Ins. and Annuity Co., 78 N. Y. 114, 125 (1879). 16See note il, supra.

Nuisance: Right to enjoin construction of theatre and bowling alley.-In Hamilton Corporation v. Julian, 101 Atl.(Md.) 558 (1917), the defendant was erecting two buildings in a residential neighborhood, one to be used as a bowling alley, the other as a moving picture theatre. An injunction was granted against the completion of the buildings, it being held that they would be nuisances when completed. The rule followed is that where it can be plainly seen that acts, when completed, will certainly result in a grievous nuisance, and that irreparable injury will follow, the court will interpose. The present case is considerably weaker than those cited in its support, in four of which the defendant was establishing a manufactory with its attendant odors, smoke and the like, and in the other of which the defendant was raising fowls, dogs, and hogs on his premises.

The court in applying the rule to this case, says that bowling alleys and moving pictures, kept and conducted for profit, are not nuisances per se, but that they may become so in certain places when they create disturbance to the serious annoyance and physical discomfort of persons of ordinary sensibilities living in the neighborhood. Although the common law view was for a time that a bowling alley was a nuisance per se, the modern view is clearly settled otherwise. The question more recently has arisen as to whether it may be a nuisance because of its locality, and the few decisions have not been altogether harmonious. In Pape v. Pratt the bowling alley was already established, and the evidence tended to show that it was improperly conducted. The court held that this bowling alley was a nuisance. In a Massachusetts case it was held that the defendant could carry on the business under a license, and that such license afforded full protection if its terms were complied with, although the plaintiff was admittedly disturbed. The terms of the license compelled the use of certain noise deadening cushions. The Illinois case? cited in the principal case enjoined the defendant from operating a bowling alley already established, both because it was an extension of a saloon, which brought it within a prohibited distance of a church, and because it was proven that the plaintiff was seriously disturbed. This is no more than authority that bowling alleys may become nuisances by reason of their conduct and their location. In Shreveport v. Leiderkrantz Societys it was held that a bowling alley was not a nuisance per se, and here, being properly conducted, it was not a nuisance even though in a residential district.

1Adams v. Michael, 38 Md. 123 (1873). 2Dittman v. Repp, 50 Md. 516 (1878); Chappell v. Funk, 57 Md. 465 (1881); The Fertilizer Company v. Spangler, 86 Md. 562 (1898); Hendrickson v. Štandard Oil Company, 126 Md. 577 (1915); Singer v. James, 130 Md. 382 (1917).

Rex v. Hall, 2 Keb. (Eng.) 846 (1671); State v. Haines, 30 Me. 65 (1849).

'Harrison v. People, 101 Ill. App. 224 (1902); Bloomhuff v. State, 8 Blackf. (Ind.) 205 (1846); State v. Hall, 32 N. J.L. 158 (1867); State v. Noyes, 30 N. H. 279 (1855); Pape v. Pratt Inst. 127 App. Div. (N. Y.) 147 (1908).

Supra, note 4.
'Levin v. Goodwin, 191 Mass. 341 (1906).
"Harrison v. People, supra, note 4.
8Shreveport v. Leiderkrantz Society, 130 La. 802 (1912).

The case in hand is the first case in which a theatre as such has been enjoined as a private nuisance. At common law it was held that playhouses, having been introduced with the laudable design of recommending virtue, and exposing vice and folly, were not nuisances per se, although they could become so through mismanagement." It is probably because the success of such an enterprise depends to a large extent upon its popularity in the neighborhood that no cases have arisen prior to this. The case most similar is that of a schoolhouse. In Harrison v. Good,1o the defendants were about to erect a schoolhouse in a residential district, and the plaintiff prayed for an injunction. The judge acknowledged the fact that it would be detrimental to the value of the plaintiff's property, but held that it was not a legal nuisance. Insomuch as blacksmith shops may be compared with theatres and bowling alleys the cases which have arisen concerning them are contra to the principal case. 11 In the case of Morris v. Robersonla a blacksmith shop located in a residential section was not enjoined, the court saying, "If a blacksmith shop is not per se a nuisance, then it must follow that, if it is operated as blacksmith shops ordinarily are, a nuisance is not created by the operation, because, if the ordinary operation of a blacksmith shop creates a nuisance, of necessity it results that such shop in itself is a nuisance." Such a rule is too broad. It could be equally applied to theatres and bowling alleys, and would nullify the effect of location upon the question of what constitutes a nuisance.

The test of a nuisance would seem to be whether the act complained of constitutes a reasonable use of one's property, which is determined by the injury to the plaintiff in the ordinary enjoyment of his property and the benefit to other people.13 An injunction restraining the carrying on of a legitimate and lawful business should go no further than is necessary to protect the rights of the parties seeking the injunction. The benefit to other people here is obvious. Both moving picture theatres and bowling alleys are a legitimate means of affording recreation and enjoyment to a large number of the public. In themselves they are free from any taint of immorality, and aside from the recreative feature, afford a material benefit, the one educating the mind of the public, the other the physical body. To be weighed with this is the alleged injury to the plaintiff. The only thing which would seem to make either enterprise a nuisance is noise or disturbance. Conceding that either one may be conducted in such a manner as to render it a nuisance, it is a question of fact as to

'People v. Baldwin, 1 Wheel Cr. (N. Y.) 279 (1823); 2 Hawkins, Pleas of the Crown, (7th ed.)

145. 10 Harrison v. Good, 11 L. R., Eq. Cas. (Eng.) 338 (1871).

11Chambers v. Cramer, 49 W. Va. 395 (1901); Morris v. Roberson, 137 Ky. 841 (1910).

12 Supra, note 11.

13 This is not to say that after a nuisance is once determined there should be a balancing of injury and benefit so as to determine whether or not to enjoin it. The weight of authority is to the contrary. 5 Pomeroy, (3d Ed.) Equity Jurisprudence, sec. 530; Whalen v. Union Bag and Paper Co., 208 N. Y. 1 (1913); Hard v. The Blue Points Co., 170 App. Div. (N. Y.) 524 (1915).

14Chamberlain v. Douglas, 24 App. Div. (N. Y.) 582 (1898).

how much noise or other manner of nuisance it did make. Until the completion and operation such facts do not become apparent and are impossible of proof. There may be ground for a holding that a certain amount of noise is unavoidably incident to a bowling alley, so as to determine what the effect of this particular bowling alley will be, but the decision in Shreveport v. Leiderkrantz Society, supra, casts considerable doubt upon the correctness of such a holding. No such noise could be held to be necessarily incident to a moving picture theatre, however. The only other injury conceivable from well conducted establishments is that to the plaintiff's pride in knowing that a commercial proposition is being conducted near his residence. Such injury should not be taken into account.

If there were circumstances not appearing in the report which afforded special opportunities of knowledge as to what the result of such building will be, the holding may be sustained, but under principle the rule can hardly be said to be that such enterprises constitute nuisances per se, whenever erected in a residential district, however exclusive in character.

L. W. Dawson, '19.

Partnership: Right of managing partner to compensation.-In Rains v. Weiler, 106 Pac. 235 (1917), the Kansas court held that a managing partner could recover his claim for salary beyond his share of the profits, on an implied contract.

Whether a managing partner is entitled to extra compensation has been the subject of much controversy and litigation. In theory, the law is more or less well established as follows: If there is a contract, by the terms of which the managing partner is to be allowed a stipulated sum for his services, the transaction is governed by the ordinary law of contract;' in the absence of such an agreement one partner is not entitled, in law or in equity, to extra compensation for his services and time while employed in the partnership business. The reasons as stated by the courts for not allowing recovery in these latter cases are several: that the law never undertakes to measure and settle between partners their various and unequal services in the transaction of the firm affairs, as the attempt would be impracticable; that each partner in taking care of the joint property is caring for his own interest and performing his own duties and obligations, implied in, and constituting a part of the consideration for the others to engage in the partnership; that one partner may have advantages over another partner in one respect, as he may have numerous and powerful friends and the confidence of his fellow citizens to a high degree, while another partner may have advantages in another respect, as wisdom and sagacity in directing the general management of affairs and tact

1Paine v. Thacher, 25 Wend. (N. Y.) 450, (1841); Lassiter v. Jackman, 88 Ind. 118 (1882); Strattan v. Tabb, 8 Ill. App. 225 (1881); Weaver v. Upton, 29 N. C. 458 (1847).

?Heath v. Waters, 40 Mich. 457 (1879); Ligare v. Peacock, 109 Ill. 94 (1884); McBride v. Stradley, 103 Ind. 465 (1885); Cameron, et al. Admin. v. Francisco, 26 Oh. St. 190 (1875); Smith v. Brown, 44 W. Va. 342 (1898).

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