98. Principal and Surety-Conditional Signing. Two signers of a note as principals had the right to sign and deposit it with the payee on condition that it should not become valid until other principals had signed it.-First State Bank of Amarillo v. Cooper, Tex. Civ. App., 179 S. W. 295.

99. Revocation.-Powers are irrevocable by the principal when they form part of an act deemed valuable in law, or which forms part of the contract and is a security for money or for the performance of any act deemed valuable.-Quanah, A. & P. Ry. Co. v. Dickey, Tex. Civ. App., 179 S. W. 69.

100. Undisclosed Principal.-That a commission company, who had the exclusive sale of butter shipped by a creamery company, sold all the butter at cost to its employe, did not make him an undisclosed principal, as to the creamery company, which had no knowledge of the transaction.-Beatrice Creamery Co. v. Garner, Ark., 179 S. W. 160.

101. Undisclosed Principal.-While an undisclosed principal cannot be held liable for a contract in the agent's name in case of a specialty, he may be held in the case of an ordinary executory contract for the conveyance of land. First Nat. Bank of Kennewick v. Conway, Wash., 151 Pac. 1129.

102. Railroads Contracts.-A railroad company has incidental power to contract with its employes to pay them half wages during disability resulting from service accidents.-McAdow v. Kansas City Western Ry. Co. Kan., 151 Pac. 1113.

103. -Crossings.-One who goes upon a railway track between two crossings, in disregard of warnings, and fails to observe the approach of a train which, had he looked, he must have seen, is negligent, and for his death the company is not liable.-Edwards v. New York Cent. & H. R. R. Co., N. Y. Sup., 155 N. Y. S. 176. 104. Receivership.-An order appointing the receivers of a railroad company to be receivers in a foreclosure suit under a mortgage given by such company does not vacate the original appointment of the receivers.Pennsylvania Steel Co. v. New York City Ry. Co., U. S. C. C. A., 225 Fed. 734.

105.

Reformation of Instruments-Burden of Proof. One seeking reformation of contract for exchange of lands must show that it did not locate the lands as claimed by him through fraud, accident, or mutual mistake of the parties.-Stromberg v. Alexander, Iowa, 154 N. W. 414.

106. Sales Bill of Lading.-Where the seller forwards a draft with the bill of lading attached, for the amount of the cotton sold, held, that the buyer does not acquire legal title until he has accepted and paid the draft.-Delgado Mills v. Georgia R. & Banking Co., 86 S. E. 550.

107. Implied Warranty.-Defendant, under contract to install in plaintiff's pianos a specific patented type of pneumatic player action, did not breach such contract; there being no implied warranty of fitness for purpose intended. -American Player Piano Co. V. American Pneumatic Action Co., Iowa, 154 N. W. 389.

108. Specific Performance-Evidence. The agreement itself and part performance thereof must be shown to justify enforcement of parol agreement by grantee to convey to persons designated by the grantor.-Woolley v. Stewart, N. Y. Supp., 155 N. Y. S. 169.

109. Waiver.-In a suit for specific performance, issue as to whether a tract of land had been omitted from the description in the defendant's deed by mistake held waived by the admissions of the answer.-Bryan v. Canady, N. C., 86 S. E. 584.

110. States-Intoxicating Liquors.-Congress has power to require a territory to insert in its Constitution as condition of admission to statehood, a provision prohibiting the sale or manufacture of intoxicating liquors in Indian territory, and their introduction from other parts of the state.-Leisy Brewing Co. v. Atchison, T. & S. F. Ry. Co., U. S. C. C. A., 225 Fed. 753.

who con

111. Subrogation-Parties.-One veys with warranty land which he has himself mortgaged, and who subsequently pays the mortgage to protect his reserved life estate, held not entitled to be subrogated to the mortgage lien. Van Valkenburgh v. Jantz, Wis., 154 N. W. 373.

112.- -Privity.-Where a prinicpal was indebted to an agent, sureties of the agent who had been compelled to pay his debt cannot be substituted to the agent's rights against the principal; there being no privity.-Hodge Tobacco Co. v. Sexton, Ky., 179 S. W. 36.

114.

Sunday-Discrimination. Permission granted by ordinance to drug stores to sell certain commodities on Sunday between certain hours, to the exclusion of other stores, held not unreasonable discrimination.-State v. Medlin, N. C., 86 S. E. 597.

115. Taxation-Corporate Shares.-The state of Vermont has the power to tax all the shares of corporations organized under its laws, whether owned by its residents or those of other states or countries.-Bellows Falls Power Co. v. Commonwealth, Mass., 109 N. E. 891.

116. Deposits. Where money was deposited in a bank pending suit, pursuant to order of court, assessment thereof was not vitiated because assessed to the bank as receiver.Spring Valley Water Co. v. City and County of San Francisco, U. S. C. C. A., 225 Fed. 728. 117. Telegraphs and Telephones-Mental Anguish. The Louisiana law is that, in an action against a telegraph company for negligent delay in delivering a dispatch, mental anguish may constitute an element of damages.-Western Union Tel. Co. v. Robertson, Miss., 69 S. 680.

118. Trade Unions-Treasurer.-Act of treasurer of labor union in changing form of deposit by drawing checks to pay for time certificates of deposit was not a disbursement for which he was entitled to credit on his accounting to his successor in office.-Tinkler v. Powell, Wyo., 151 Pac. 1097.

119. Trusts-Cestuis que Trust.-An unwarranted surrender of the trust estate by the trustee in consenting to the vacation of a judgment in favor of the beneficiaries and to entry of a judgment against him held not binding upon the cestuis que trust.-Belcher v. Cobb N. C. 86 S. E. 600.

120.- -Constructive Trust.-To establish a parol constructive trust, the proof must be such as to leave no rational doubt as to the truth of the necessary facts; and, to establish such trust against documents showing the legal title to be in someone else, the evidence must be strong and convincing.-Holtzclow v. Wills, Ky., 179 S. W., 193.

121. Vendor and Purchaser-Covenant.-The words "grant" and "demise," if unrestrained, impose on the lessor a covenant that he has good title and a right to lease.-Ford v. Ball, W. Va., 86 S. E. 562.

122.

-Deed of Trust.-Where vendee executed a note secured by deed of trust to indemnity indorsers upon a purchase-money note for the property, such lien was not destroyed by a sale subsequently made by him in consideration of the vendee's assumption of the original vendor's lien notes.-Grubbs v. Eddleman, Tex. Civ. App., 179 S. W. 91.

123.- -Marketable Title.-A purchaser of land, before he is required to pay the pur chase price, is entitled, unless stipulated to the contrary, to receive not only a good title, but one which is marketable.-Mays v. Blair, Ark.,

179 S. W. 331.

withstanding this very lien might be upset, generally speaking, in favor of the trustee.

This is on the theory that by statute, possession is conclusive evidence of property, where there has been no recording so far as creditors are concerned.

There is next referred to § 47a, clause 2, which provides that a trustee "as to all property in the custody of the bankruptcy court. shall be deemed vested with all the rights, remedies and powers of a creditor holding a lien by legal or equitable proceedings." Does this provision travel back through the preferential period or not? The court ruled that it did not, as "the purpose of the law was to fix the line of cleavage with reference to the condition of the bankrupt estate as of the time at which the petition was filed."

It must be conceded that this is true generally, but the question here was of exceptional instances of transfers within the preferential period. These are embraced by relation forward so as to come within "the condition of the bankrupt estate as of the time at which the petition was filed. Possession is evidence conclusive of title until recording and recording was not to cut out the whole or a part of that relation period.

It seems strange that this would depend upon state construction as to whether such contracts were regarded as conditional sales or as transfer of title with mortgage back. Bankruptcy act regarded in a practical way ought not to take into account a refinement like this, especially as by this ruling, there is not recognized the presumption of property in the bankrupt by the failure of the conditional vendor to record his contract.

We repeat that failure to record so far as ordinary creditors are concerned, virtually makes possession conclusive as to title, but the ruling is that this is not so as to a trustee in bankruptcy. Therefore it is a little hard to see that the trustee is given the rights of a creditor claiming a lien.

NOTES OF IMPORTANT DECISIONS.

CRIMINAL LAW.-CONVICTION OF LOWER KINDRED OFFENSE CHARGED IN INDICTMENT-South Dakota statute provides that "the jury may find the defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged in the indictment or information, or of an intent to commit the offense." Under an indictment charging a defendant with the crime of assault with intent to do great bodily injury, no battery or personal violence was charged. Defendant was convicted of assault and battery and the Supreme Court of that state sustained the conviction. State v. Cotton, 155 N. W. 8.

This conviction was in accordance with instructions by the trial court, and the Supreme Court affirms the case upon the theory that though "battery" was not necessarily included in the indictment, but a simple assault was, yet as the statute prescribes the same maximum punishment for an assault as for an assault and battery, a verdict for the latter of fense "could not, in any possible manner, preju dice the legal rights of the accused. Whether the unauthorized verdict finding the accused guilty of a crime not charged be called surplusage (as contended) is immaterial. It is merely void and cannot prejudice any of appellant's legal rights."

same.

*

The logic of this decision is that one may be charged with a simple assault and be found guilty of another offense, if it fortuitously happen that the punishment for the two is the Assault and assault and battery are two as distinctly different offenses as are bur glary and larceny, and while there may be burglary with intent to commit a felony, we do not think it true that under indictment, say for burglary with intent to commit a felony, e. g., rape, a defendant could be convicted of intent to commit rape.

That, however, would not be going quite as far as the South Dakota court goes in this case. There is an unlawful intent in an unlawful assault, while in assault and battery intent is swallowed up in criminal execution. To say assault and battery is but a form of speech, as unlawful battery comprises assault as part and parcel of the battery. There could be no battery without the assault. But, if the statute said assault and unlawful battery should be punished in the same way, it would be more evident instruction should not have told the jury the defendant could be found guilty of battery as an inclusive offense, when noth

ing but an assault was charged. Instructions are, in principle, deemed harmless when they are calculated to divert the jury to the consideration of an offense as to which a defendant is not on trial.

EMINENT DOMAIN-DAMAGES INCREASED BY USE OF PROPERTY WITH OTHER PROPERTY.-The question of proper elements in damages was considered in a condemnation case in the Federal Supreme Court, City of New York v. Sage, 36 Sup. Ct. 25.

It was said that "upon an inspection of the record it appears to us, as the language of the commissioners on its face suggests, that their report does not mean that the claimant's land had a market value of $11,948.90that it would have brought that sum at a fair sale-but that they considered the value of the reservoir (for which it was taken) as a whole and allowed what they thought a fair proportion of the increase, over and above the market value of the lot to the owner of the land."

Holding this view erroneous, the court goes on to say: "The decisions appear to us to have made the principles plain. No doubt, when this class of questions first arose, it was said in a general way that adaptability to the purpose for which the land could be used most profitably was to be considered; and that is true. But it is to be considered only as far as the property would have been offered for sale in the absence of the city's exercise of the power of eminent domain. The fact that the most profitable use could be made only in connection with other land is not conclusive against its being taken into account, if the union of properties necessary is so practicable that the possibility would affect the market price. But what the owner is entitled to is the value of the property taken, and that means what it fairly may be believed that a purchaser in fair market conditions would have given for it in fact-not what a tribunal at a later date may think a purchaser would have been wise to give, nor a proportion of the advance due to its union with other lots. The city is not to be made to pay for any part of what it has added to the land by thus uniting it with other lots, if that union would not have been practicable as has been attempted except by the intervention of eminent domain. Any rise in value before the taking, not caused by expectation of that event, is to be allowed, but we repeat, it must be a rise in what a purchaser might be expected to give."

This rule of damages would seem, or might be. difficult, sometimes to work out. It would

be easier where an entire tract under one ownership was to suffice for the whole taking contemplated. If there are separate ownerships the condemnation of some, or the contemplated condemnation of some, legitimately might appear to enhance the profitable use of other parts. If untaken property increases in price in view of a contemplated public work, why should not that which is taken? All market conditions are not what in ordinary times could be considered "fair," so far as in and about the contemplated improvement is concerned.

PRINCIPAL AND SURETY-RULE STRICTISSIMI JURIS NOT APPLICABLE TO CORPORATE SURETY.-In McKegney v. Illinois Surety Co., 155 N. Y. Supp. 1041, decided by Appellate Division of New York Supreme Court, it was held, that requirement that notice of default of principal should be sent by registered letter to the home office of a foreign corporation within 48 hours afterward, did not on failure so to do prevent recovery, where notice by ordinary mail was sent to its New York office within such period, this ruling being by three of the five judges, two dissenting.

The trial court's ruling in favor of the surety company was said to have "pushed the rule of strictissimi juris too far," because "the purpose of the clause * is to insure prompt notice to the surety of a default on the part of the contractor. Just how the notice is given is immaterial, so long as it is given and is received within the time specified in the contract." The objection was spoken of as being "too meticulous and frivolous to warrant serious consideration."

It is said, quoting from U. S. F. D. Co. v. U. S., 191 U. S., 191 U. S. 416, that "the rule of strictissimi juris is a stringent one and is liable at times to work a practical injustice, and ought not to be extended to contracts not within the reason of the rule, particularly when the bond" is undertaken for a profit.

But the dissentients contend that the requirement did extend to the contract by express agreement and the principle invoked has nothing to do with this case, the surety company at least having the right to contract in regard to "when, where and in what manner the notice should be given," and we do not see why it could not make something otherwise not a matter of substance to become such. It was fair, however, for the majority to construe the clause and say what was its purpose. The words of this clause seem, however, so plain as not to call for construction.

THE DOCTRINE OF SIMPLE TOOLS.

Introductory. In the consideration of this subject one should bear in mind that no person is ever relieved of the duty to exercise reasonable care, in the circumstances of the given situation, for the safety of

others who are acting within their rights and whose safety may be endangered by his conduct; and that an employer is not excepted from this rule. The employer is required at all times, and in all circumstances, to exercise reasonable care for the safety of his employes. What this requires of him in a given instance depends upon the circumstances the dangerous character of the tools and appliances with which his employes are required to work. For instance, in the case of very dangerous appliances, the employer is required to take a great many precautions to guard his employes against being injured; while in the use of common, simple tools his duties are few and easily performed.

Duty of Employer Generally.-There can be no doubt that it is the duty of the employer to exercise ordinary care to furnish his employes with reasonably safe tools, and to exercise ordinary care to maintain them in a reasonably safe condition, regardless of whether they are, or are not, simple tools.1

The contrary, however, has been held in the following language: "The 'common' tool rule may be said to be a relaxation of the general rule, which makes it the duty of a master to exercise reasonable care to provide reasonably safe tools and appliances for his servants, since the general rule has no application where the tools and appliances furnished are of simple nature, easily understood, and in which the defects, if any, can be easily and readily observed by the servant. It is only in cases of machinery and appliances which are recognized as being in their nature dangerous to employes using them, that the employer

* * *

(1) Harris v. Kansas City S. R. Co., 146 Mo. App. 524, 124 S. W. 576; Philip Carey Roofing & Mfg. Co. v. Black, Tenn., 1914, 164 S. W. 1183.

owes the duty to the employe of looking out for his safety."

The Missouri case of Harris v. Kansas City S. R. Co., supra, after laying down the rule in accordance with the view first above stated, continued as follows: "Unless it be in a case where the appliance and the con

templated use thereof are so very simple

and commonplace that an ordinarily prudent person would not reasonably anticipate the danger entailed." These facts, however, merely bear upon the question of what constitutes reasonable care, and not upon whether reasonable care is a duty owed to the employe.

Duty and liability must be distinguished in this respect. The employer may be relieved from liability for a negligent act by the contributory negligence of the injured employe, but his duty was and is the same regardless of the question of liability.

Duty of Employer to Inspect Simple Tools. The general rule is that an employer is required, not only to exercise ordinary care to provide reasonably safe and suitable tools and appliances for the use of the servant in the first instance, but to make such reasonable inspection thereof from time to time as the nature of the use and the character of the tool or appliance may require to keep it in reasonably safe condition for their intended use.3

However, the courts have adopted, as an exception hereto, the rule that employers owe no duty to inspect simple tools.*

It is held to be a part of the doctrine of assumption of risks that the duty of in

(2) Ohio Valley R. Co. v. Copley, Ky., 1914,

166 S. W. 625.

(3) Sullivan v. Indianapolis, C. & W. Traction Co., Ind. App., 1914, 103 N. E. 860.

(4) Herricks v. Chicago & E. I. R. Co., 257 Ill. 264; Stirling Coal & Coke Co. v. Fork, 141 Ky. 40, 131 S. W. 1030, 40 L. R. A. (N. S.) 837; Cooney v. Portland Terminal Co., Me., 1914, 92 Atl. 178; Wachsmuth v. Shaw Electric Crane Co., 118 Mich. 275. 76 N. W. 497; Koschman V. Ash, 98 Minn. 312, 108 N. W. 514, 116 Am. St. Rep. 373; Miller v. Erie R. Co., 21 App. Div. 45, 47 N. Y. Supp. 285; Chicago, R. I. & P. R. Co. v. Lillard, Okla., 1914, 141 Pac. 8; O'Brien v. Missouri, K. & T. R. Co., 36 Tex. Civ. App. 528, 82 S. W. 319; Bougas v. Eschbach-Bruce Co., 77 Wash. 347, 137 Pac. 472.