96. Partnership-Test of. In suit on note, where maker had conveyed property as security and agreed to also pay one-fourth of profits of gristmill, letter by payee to maker, referring to interest on amount due and payee's share of profits, held not to show partnership in the milling business.-Ruff v. Anderson, Ga., 88 S. E. 545.

97. Patents-General Public. The general public are entitled to the benefit of the engineering and mechanical skill which has been developed in the industrial progress of an art. -Hansen v. Slick, U. S. C. C. A., 230 Fed. 627.

98. Post Office-Lottery.-Newspaper advertisement offering prizes to persons identifying photographs as published, held not unmailable, under Penal Code, § 213, as advertisement of lottery, gift enterprise, or scheme offering prizes dependent upon lot or chance.-Post Pub. Co. v. Murray, U. S. C. C. A., 230 Fed. 773.

99. Principal and Agent-Statements by tried Agent. Where complainant had to buy and sell land. and bought one farm, part of which he sold to defendant, he was not, because of numerous random statements concerndefendants' ing his intentions, the agent in OCprocuring the land sold to them so as to cupy towards them a fiduciary relation.-Mtynarczyk v. Zyskowski, Mich., 157 N. W. 566.

fire

100. Railroad-Evidence.-Proof that a originated after the passage of a train coupled with the showing that there was no other way for the fire to have started warrants an inference that it was started by the engine.Bowden v. St. Louis & S. F. R. R., Mo., 184 S. W. 1174.

101.- -Look and Listen.-A charge that it was the duty of licensee on the track to look and listen before attempting to cross a trestle is erroneous.-Tyler v. Atlantic Coast Line R. Co., S. C., 88 S. E. 541.

102. Release Rescission.-An offer to return money paid under an alleged fraudulent settlement, if within a reasonabe time after discovery of the fraud, though rejected, is an effectual to rescind the contract as if accepted, if the plaintiff so considers it.-Beatty v. Palmer, Ala., 71 So. 422.

103. Replevin-Evidence.--Where defendant's answer in a replevin suit in which property has been taken from him contains no demand for a return of the property, the only judgment that can be rendered in his favor is for a return of the property and any damages sustained from the taking.-Bank of Willow Springs v. Utterman, Mo., 184 S. W. 1171. 104.

can

Sales Countermand.-A buyer countermand a written order taken subject to the seller's approval at any time before its acceptance by the seller.-Senaca Co. v. Ellison, Mo., 184 S. W. 1177.

105. Set-Off and Counterclaim Different Contracts.-In an action to recover for apples sold and also for peach carriers sold and delivered to defendant, any damage sustained by defendant from plaintiff's failure to perform one of his contracts could not be set off against the plaintiff's claim under other contract.Moore v. Speal, Del. Sup., 97 Atl. 237.

106. Specific Performance-Misleading Statements. Where plaintiff and his agent did not correct the evident impression of defendant, an illiterate foreigner, that the deal was ended under the agreement, and their conduct, though not fraudulent, was misleading, denial of specific performance, held not error.-Cummins v. Martzen, Ill., 112 N. E. 347.

107. Street Railroads-Speed Ordinance.An ordinance prohibiting speed of street cars in business or settled residential districts to exceed 12 miles per hour, does not require that the district be densely settled, but is satisfied by the presence in the vicinity of a suburban business center and occasional residences.Sundstrom v. Puget Sound Traction, Light & Power Co., Wash., 156 Pac. 828.

108. Subrogation-Assumption of Mortgage. -Where a mortgagor conveyed, grantee assuming mortgage, and such grantee in turn conveyed to another who assumed mortgage, right

of mortgagor, who satisfied a deficiency pudgment, to enforce covenant against second grantee, is an equitable one, depending on subro gation.-Holland Reform School Society v. D Lazier, N. J., 97 Atl. 253.

109. Taxation Corporations. A railroad, formed to take over properties of another, which leased them to a third, and preserved its existence only to comply with the lease, was not liable under Tax Law, § 182, imposing a tax upon every corporation doing business in the state. People ex rel. Lehigh & N. Y. R. Co. v. Sohmer, N. Y, 112 N. E. 181, 217 N. Y. 443.

110.- Delinquent Taxes.-Where service was had by publication by initials instead of Christian name on owners of property to be sold for delinquent taxes, their recorded deeds being in their christian names, judgment against such owners held void, though after it was rendered and the property sold one wrote to the sheriff signing his name by initials, etc.-Todd v. Supper, Mo., 184 S. W. 1143.

111. Tenancy in Common-Quitclaim.-Where cotenants quitclaim their interest in a leasehold estate to a referee to sell in partition proceedings, and he quitclaims to purchasers, subsequent purchase of the reversion by one of the cotenants does not inure to the benefit of the other cotenants.-Potrero Nuevo Land Co. v. All Persons Interested, etc., Cal., 156 Pac. 876.

112. Time Computation.-As defined by statute and within the meaning of the law, a day means 24 hours, the period of time between any midnight and the midnight following.McKinnon v. City of Birmingham, Ala., 71 So.

463.

113. Trover and Conversion Instructions.In trover, where plaintiff elected money verdict, charge that, if plaintiff was entitled to recover, jury should return verdict for highest proved value of property from conversion to trial, was not error.-Pippin v. Watts, Ga., 88 S. E. 567.

114. Trusts-Tracing Fund. Where money belonging to a cestui que trust is traced into a general mass in the hands of the trustee, and the trustee makes payment out of the mass, it is presumed he makes payments from his funds, and cestui que trust may trace his money into residuum.-Clark Sparks & Sons Mule & Horse Co. v. Americus Nat. Bank, U. S. D. C., 230 Fed. 738.

115. Vendor and Purchaser-Constructive Notice. Sending one man upon a large tract of land to cut the timber therefrom within a few days after the purchase does not give constructive notice to a subsequent purchaser of the land, who lived in another county, where the land was remote and difficult of access.-Bunch v. Pittman, Ark., 184 S. W. 850.

116. Marketable Title.-A title subject to restrictive covenants is generally unmarketable, and the court will not inquire whether the restrictions are beneficial or not.-Dethloff v. Voit, N. Y., 158 N. Y. Sup. 522.

117. Wills After Acquired Property.-Where testatrix devised property composing part of her ancestor's homestead, held that, under the devise, after-acquired property which was part of the homestead passed.-Young v. Mosher, Me., 97 Atl. 215.

118.- -Construction.-Where a testator devised a share to a son in fee, with a later clause of the will that his other three children act as guardians of the devisee, giving him every 12 months the interest or proceeds of his share of the estate, title vested in devisee in fee unaffected by any trust.-Howard v. Howard, Mo., 184 S. W. 993.

119.- -Heirs. In a will giving the property to the daughter of testatrix in fee, but, if she should die without heirs of her own, then to another, the word "heirs" means children.West v. Glisson, Tex., 184 S. W. 1042.

120.- -Subsequent Will.-The admission of a subsequent will to probate was properly denied where an application was not also made to set aside the judgment admitting the former will to probate on consent of the parties.-Conzet v. Hibben, Ill., 112 N. E. 305.

Central Law Journal.

ST. LOUIS, MO., JULY 21, 1916.

TERM OF EMPLOYMENT UNDER A "SATISFACTION CONTRACT."

If the Sixth Circuit Court of Appeals construes New York decision correctly, and it cites a great abundance of New York cases in support of its view, a supposed definite term of employment, subject to performance of his duties by employe, seems little, if any, better than employment for an indefinite period, so far as employe is concerned. See American Music Stores v. Kussel, 232 Fed. 306.

But making the contract operative against an employe so as to make him liable to employer for quitting his service before his term of employment has ended, might not be deemed unilateral as to this feature, because consideration for his agreement would be found in his being employed at all. A contract must be regarded or not as unilateral in a general way and not merely because a right to one party has no correlative or offset right in the other in regard to particular features in a contract. The contract being one thing, cannot be split up into fragments to find corresponding rights and obligations as to each and everything in it.

Nevertheless, we cannot imagine any class of contracts more subject to the rule of taking into consideration the surrounding circumstances for the proper construction of the contract than is this.

For example, suppose the employer is an individual and not a corporation. The employe might be supposed perfectly willing to agree that the employer may express and make effective his expression of dissatis

The personal feature often cuts a figure in interpretation of contracts and, even if a corporation might be supposed to contract in every way just like an individual, yet the personality of one and that of the other might be looked to as aids in construction.

Pursuing this thought, we get around to Lord Coke's statement that a corporation has no soul, and it may be thought that he would not have said this, unless he meant to distinguish it from an individual in business, a corporation being wholly non-existent except in a business way. If it has no soul, it has no discretion except as controlled by policy. An individual employe may be looked to whose policy is controlled by his conscience and this the employe is willing to trust.

But the case we are here considering must admit a distinction in the cases which call for service by a servant upon a contract of employment for a stated time, with a satisfaction clause therein, and a contract for a piece of work with a similar clause.

Thus, after the court citing numerous master and servant cases decided by New York courts, in which honest dissatisfaction by employer was held sufficient reason for discharge, also says that the principle decided in mere contract for particular work, decided also in New York cases, is not in conflict with rulings in the master and servant cases, notwithstanding that such dissatisfaction did not control. In the former, the work was completed and awaited acceptance, in the other there was arrest of further performance.

But it is not stated by the court that the terms of the contracts in either class were of an ambiguous nature so as to permit inquiry into an expression of dissatisfaction being a pretext or not. The circumstances, however, of a contract for complete performance of a piece of work were to be in

NOTES OF IMPORTANT DECISIONS.

CONTEMPT-TRIAL

FOR WHEN NOT COMMITTED IN THE FACE OF THE COURT. -In Appeal of Verdon, 97 Atl. 783, decided by New Jersey Supreme Court, there is an interesting review of contempt of court not committed in its presence and whether it was contempt of a court of law or a court of equity, all of this is so far as the common law is concerned, as to which statutory modification is to be construed as a law in derogation thereof.

There is quotation from Blackstone that "This process of attachment (for contempt) is merely intended to bring the party into court; and when there he must either stand committed or put to bail in order to answer upon oath to such interrogatories as shall be administered to him for the better information of the court with respect to the circumstances of the contempt. * * * If the party can clear himself upon oath he is discharged, but if perjured may be prosecuted. After the party in contempt has answered the interrogations, his answer may be contradicted and disproved by affidavits of the adverse party, whereas in courts of law the admission of the party to purge himself by oath is more favorable to his liberty, though perhaps not less dangerous to his conscience; for if he clears himself by his answers, the complaint is totally dismissed. This method of examining the delinquent himself upon oath with regard to the contempt alleged has by immemorial usage now become the law of the land." 4 Bl. Com., p. 287. See also to the same effect, Ch. J. Kent in Jackson v. Smith, 5 Johns. (N. Y.) 117.

This ruling was made in a case where a trial court called witnesses and heard evidence other than upon answer to interrogatories of respondent who stood mute in the trial, except that he offered to purge himself or to attempt to purge himself upon answer to interrogatories to be exhibited. None was exhibited but conviction was pronounced upon such other evidence. This conviction was reversed without remand.

It is said that no New Jersey statute has changed this common law practice, but the court speaks of the mildness, not to say ineffectiveness of law courts of England dealing with contempt compared with the severity of its criminal law in many respects. But they did not regard this procedure as punishing a criminal offense. Under Magna Charta this must be proceeded against by indictment. It was said the procedure in this form, for contempt "was justified upon the somewhat sophistical ground that the taking of such an oath by the defendant was not the giving of testimony, because, if there was no trial, there could be no testimony, and hence the defendant was not a witness." But suppose he refused to answer interrogatories? Then perhaps he could be punished for being refractory or obstructing justice.

But, if there is no statute modifying the common law, how would procedure be in courts abolishing all distinction between courts of law and courts of equity? We imagine procedure would be accordingly as a contemnor had offended in a case where a common law right or equitable relief was sought.

CRIMINAL LAW-SUGGESTION OF INFERENCE AS EXPRESSION OF OPINION.— The poverty of the printed record as compared with the presence of witnesses before a court is suggested in the report of the case of State v. Matthews, 97 Atl. 824, decided by Supreme Judicial Court of Maine.

This was a prosecution for the sale of intoxicating liquor, old cider being seemingly a beverage of intoxicating nature. Defendant claimed to have sold vinegar and not old cider. Evidence showed defendant was asked by the purchaser if he had any old cider and he replied, "No, but he had some vinegar." The court asked a witness: "Was it old cider which the respondent may have called vinegar with a twinkle in his eye?" Of this interrogatory appellant particularly complained.

The Supreme Court said: "But we think that expression was nothing more than a suggestion

to the jury, for their consideration, of the possibility that, even if respondent in answer to Marshall's inquiry for old cider, called what he sold him vinegar, nevertheless he did not mean it and so indicated to Marshall." The court then goes on to argue that it was plain from the evidence that this was what was meant, because otherwise Marshall, who was after old cider, would not have bought three gallons of what he was told was vinegar and use it as a beverage.

The court then says: "It is the authoritative expression of an opinion as to an issue of fact arising in the case which the statute prohibits and not the suggestion of an obvious inference from admitted facts and circumstances, made to assist the jury in coming to a clear understanding of the law and the evidence." But is it not indulging in refinement to say a court may suggest an inference from facts, when it is for the jury without any suggestion to say what the facts themselves mean? What chance, indeed, had the defendant's claim to a sale of vinegar in the face of such a suggestion by the court. Why not rather suppose they seized this suggestion as a joke and carried their apprehension into their verdict?

APPEAL AND ERROR-REDUCTION OF DAMAGES BY EXCLUSION OF INCOMPETENT EVIDENCE.-In Slack v. Joyce, 158 N W. 310, decided by Wisconsin Supreme Court, there appears a salutary ruling for the ending of litigation that well may be commended, though made in a suit for the recovery of unliquidated damages arising out of the commission of a tort.

In this case there was no claim that any prejudice or bias influenced the verdict in favor of plaintiff or that the mind of the court was shocked, or that any accurate measurement could be made as to the damage shown by the competent and the incompetent evidence.

The facts show that plaintiff was injured by being run into by an automobile and afterwards contracted typhoid fever. The proof to show that the fever resulted from the injury was held wholly insufficient. The verdict was for $725.

The court said: "In view of the fact that the evidence was not sufficient to warrant the jury in finding that the disease contracted by plaintiff was caused by the injury, the damages are excessive. We have therefore concluded to give plaintiff the option to take judgment for $400 damages, and in case of his failure to so elect a new trial is ordered."

As the court left the question of such a result to the jury there is no certainty it did not take it into account at all, and nothing to show that it did. The verdict, then, was not rendered upon a certain showing of proof at all and when the Supreme Court undertakes to render what should have been a proper finding, it indulges in something of the same kind of surmise or conjecture which it says the jury should not use. Nevertheless, it is well to bring litigation to a conclusion, even though on strict principle this may seem impossible to do.

STATUS OF ARMED MERCHANTMEN.

So long as nations appeal to war to settle their differences, so long are there bound to be perplexing questions between belligerents and neutrals. And as the relations between nations become ever more and more involved, so do these questions become ever more intricate. The belligerent will ever seek to crush his foe by every means at his disposal and history has shown that the shutting off of commercial relations has been the most effective means. A nation compelled to live entirely upon its own resources is a nation doomed to defeat in the end. Not generally because it cannot obtain munitions of war, but because it is unable to recruit its armies by withdrawing men from the pursuits of agriculture and industry. The neutral's interests thus become directly opposed to those of the belligerent. He seeks to maintain his existing trade and increase it. He looks with disfavor upon any interruption of what he regards his rights. This is not because of any favoritism but it is a purely business proposition, and there is no friendship in business. The words of Grotius will always remain true, "One party defending the rigorous rights of war; the other the freedom of commerce."

The latest point of difference between. a belligerent and a neutral in the present

European conflict is the status of the armed merchantman. But this is not a new question. The question has not now come to the front for the first time. It has recurred in nearly every succeeding war for centuries, been discussed in the halls of legislative bodies and conventions, and demanded solution by the courts.

Back in the seventeenth century, King Charles issued an edict compelling the arming of all merchantmen. Such was deemed necessary both in peace and war to protect vessels against pirates and privateers. Even as late as 1815, John Marshall said: "In point of fact, it is believed that a belligerent merchant vessel rarely sails unarmed.' With the decrease in piracy and the abolition of privateers by the Declaration of Paris, the reason for arming largely disappeared. But the question persisted in another form, namely the conversion of merchant vessels into war cruisers in time of war. The immense growth of the mercantile marine of countries with divergent interests could not but bring about renewed consideration of the matter. As long ago as 1888, Prof. Snow, in his book on International Law, said: "It may be reasonably. expected in coming naval wars that steamers. of the great mail lines will be armed so as to defend themselves from attack." The question received great discussion at the Second Hague Conference and failed of settlement largely because of difference of opinion as to the legality of converting merchantmen into cruisers on the high seas before return to their home ports. Owing to the question thus hanging fire, England frankly announced her position through her First Lord of the Admiralty in the House of Commons in 1913. Mr. Churchill said. that several great mercantile powers having reserved the right to convert their merchant vessels into cruisers even on the high seas,

thus intending the armament solely for defense.

The subject was also receiving attention at almost this very time from the Institute of International Law holding a convention at Oxford. Here the German professors and authorities were practically alone in denying the right of merchantmen to arm even for defence. The attitude of Germany toward such armed merchantmen admittedly was to subject their crews to the criminal law of the nation of the capturing vessel, thus treating the crew as murderers rather than as prisoners of war. That such is contrary to the practice of the United States is seen from our Naval Code (1900). That states that the merchant vessels of the enemy may resist attack and their crews are entitled to the rights of prisoners of war if captured.

In this connection, the case of "The Nereide," decided by our greatest jurist, John Marshall, in 1815, becomes of great interest. That case arose over the title to the cargo of a prize ship, The Nereide, captured after a fifteen minute engagement by an American privateer. The ship was sailing under the British flag but the cargo was for the most part owned by a neutral, a native of South America. The vessel was heavily armed, but that fact the court held did not create an exception to the wellsettled rule that the property of a friend was not subject to condemnation even when found in a hostile vessel. Most of the opinion is apt in the present crisis. To quote a part,

"That a neutral may lawfully put his goods on board a belligerent ship for conveyance on the ocean is universally recognized as the original rule of the law of nations. It is founded on the plain and simple principle that the property of a friend remains his property wherever it