Augustus John Cuthbert Hare.

The Central law journal, Volume 28 online

. (page 43 of 151)
Online LibraryAugustus John Cuthbert HareThe Central law journal, Volume 28 → online text (page 43 of 151)
Font size
QR-code for this ebook

provision of statute, ch. 113, § 9, and that

Digitized by




No. 7

under § 11 thereof, such a will can be re-
vived only by a re-execution thereof. The
court holds that the statute is plain in pro-
viding for the revocation of a will by mar-
riage, and that as to a will so revoked
the prohibition of the statute makes
it absolutely void, which can only be revived
by a re-execution. By the rule of the com-
mon law the marriage of a woman revoked a
will previously made by her, because, if
allowed to stand, it would affect the marital
rights of the husband, and during marriage
no power existed by reason of the disability
of the wife either to revoke, alter, or make
another will. At common law, however,
where the wife had the right of disposing of
her separate estate by an antenuptial agree-
ment, her will previously made was not re-
voked by her subsequent marriage, and in
this State a married woman may dispose of
her separate estate by last will and testa-
ment. The court says :

It is not a question liere whether the will was prop-
erly executed, for its validity prior to the marriage
ceremony is not controverted, nor does the question
arise as to whether or not a holographic will, once re-
voked, can be revived by a republication, when the
statute requires a re-execution ; but the question is,
was the will oi Mrs. Jacob revoked by her marriage
with Stewart? It is conceded that by a contract the
property rights of either could be regulated and fixed;
but when a will is made in pursuance of that contract,
and in this instance, where it is directly connected
with the act of marriage, we are asked to say that the
marriage revoked the will because dated two days
prior to the antenuptial contract and the marriage
ceremony. The marital rights having been settled
(and we are proceeding now on the idea that we cannot
but regard the entire action of the parties from the 9th
to the 12th as one, so far as these contracts are con-
cerned) by their agreement, and no one else being in-
terested directly or indirectly, but the husband, why
should the will of the wife be revoked? Was the
statute Intended to apply to any such ease as this? It
was to protect the marital rights of the parties that
the statute was enacted, and it was never designed to
prevent parties by written contract from fixing their
marital rights, and to give to one or both, by an ante-
nuptial contract between the two, the power to dispose
of their estate by will. It is idle to say that by a deed
evidencing a marriage contract the parties about to
consummate it can before marriage fix and determine
their right to property by reason of the marital rela-
tion that is binding on both, and cannot under the
same contract agree that the one or the other shall
dispose of their property by a will already executed,
if made as the statute requires. The will made by the
wife in this case was as much a part of the mairiage
contract as if it had been inserted in it.

The Supreme Court of Oregon, in the case
of Rhoton V. Mendenhall, 20 Pac. Rep. 49,
undertake to define the meaning of the word

^^concealed," as used in the statute of limita-
tions. They say :

Webster defines the word "concealed," "to hide or
withdraw from observation; to cover or keep from
sight; as a party of men concealed behind a wall." It
does not appear that the defendant did anything after
his removal to this State whereby his identity or place
of residence should be concealed or kept secret or
hidden. In the absence of any statement to the con-
trary, and such is, no doubt, the fact, he lived openly
in the community where he had fixed his residence In
this State, without any effort or attempt in any way
to baffle search or inquiry. These facts do not consti-
tute concealment, within the meaning of that term as
used in our statute. In Frey v. Aultman, 30 Kan. 181,
2 Pac. Rep. 168, the Supreme Court of Kansas gave a
construction to the word "conceal" used in the statute
of limitations of that State. It appeared that the de-
fendant had formerly resided in Iowa; that he ab-
sconded from that State, and settled in Kansas, and
that the plaintiff made reasonable efforts to find him,
but failed. In passing on the question, the court said:
"We think the word 'conceal' contemplates some ac-
tion here; that he passes under an assumed name;
has changed his occupation or acts in a manner which
tends to prevent the community in which he lives
from knowing who he is or whence he came. It can-
not be doubted that the legislature has the power to
make the statute of limitations absolute, and without
any exceptions on account of concealment; and when
we remember that this statute has no extraterritorial
force, and therefore contemplates acts and conduct of
the party within our limits, it would seem difficult to
say that a man who, going under his own name, lives
in a community in as open and public a manner as any
other citizen in the same line of business, is conceal-
ing himself from the service of process within this
State." This construction is decisive of this case.
Counsel for appellant rely very much upon Harman v.
Looker, 78 Ho. 622; Nelson v. Beveridge, 21 Ho. 22;
Wells V. Halpin, 59 Mo. 92— and some other like cases
were cited by appellant— but they do not support his
contention. The Missouri statute, under which their
decisions were made, provides: "If any person, by
absconding or concealing himself, or by any other im-
proper act, prevent the commencement of an action,
such action may be commenced within the time herein
limited after the commencement of such action shall
have ceased to be so prevented.*' These Missouri
cases seem to turn more upon the effect of absconding,
or other improper conduct mentioned in the statute of
that State, than they do unon the concealment. Indi-
ana has a statute of limitations in criminal cases which
precludes the accused party from availing himself of
its benefits where he "conceals the fact of the crime."
In construing that statute, the court held that the
concealment must be the result of positive acts done
by the accused, and calculated to prevent the discovery
of the fact of the commission of the offense of which
he stands charged. Jones v. State, 14 Ind. 120. And
this rule was applied and followed in a civil case.
Stanley v. Stanton, 36 Ind. 445.

A QUESTION of negligence, somewhat out of
the usual run, arose in the ease of Evansville
& T. H. R. Co. V. Crist, 19 N. E. Rep. 310,
decided by the Supreme Court of Indiana.
There the complaint was that defendants had
constructed its railroad upon a highway, and

Digitized by


Vol. 28.



had dug an excavation in the same and piled
the dirt along the sides thereof, making em-
bankments some nine feet high for a long dis-
tance, leaving no way for persons to pass
along the highway except upon the embank-
ment, with the railroad track between, and
that the plaintiff was lawfully riding along
the highway, when defendant's agents ap-
proached in a hand car and frightened plaint-
iff's horse ; that after seeing the dangerous
situation in which plaintiff was placed, they
failed to stop the hand car and thereby her
horse was frightened and she was thrown off
and greatly injured. The court says :

Tbe two important facts to which we have referred
—the place where tbe injury was received, ' and the
duty of the appellant respecting the highway it had
made unsafe—when assigned their due weight, fuUy
and clearly relieve the plaintiff from any imputation
of negligence, especially in this, when considered, as
they must be, in connection with the explicit averment
of her complaint that she was without fault or negli-
gence. She was upon a public highway leading from
her home, and there she had a right to be. She was,
it is true, bound to exercise ordinary care in using the
hifl:hway, but she was not bound to more. She was
not crossing a railroad track, where the rights and
duties of the company and a traveler are reciprocal ;
but she was upon a public way, which the company
had no right to use in operating its road, or to make
unsafe. The action is not, it is to be remembered, to
recover for injuries rjeceived on a crossing, for the
complaint proceeds upon a radically different theory.
The cases of RaUway Co. v. Green, 106 Ind. 279; Rail-
way Co. V. Hammock, 113 Ind. 1; and RaUroad Co. v.
Butler, 103 Ind. 81— are not in point, for the reason
that they were cases where the injury was received on
a crossing, and not cases where tbe interference with
a public highway, and a negligent breach of duty,
caused the injury. Throughout this case this differ-
ence runs, exerting all through it a controlling influ-
ence. Here the defendant negligently failed to perform
a duty imperatively enjoined upon it by positive law.
The initial step in the defendant's wrong was the neg-
ligent violation of a mandatory statute, § 3903 of
the Revised Statutes of 1881. This statute prescribes
a plain duty. Indeed, the duty existed independent
of the statute, but the statute makes it all the more
dear and positive. The right to interfere with a high-
way is coupled with the duty to make it as safe as it
was before it was disturbed, or at least to use reason-
able care and skill to do so. This duty is violated if
tkeir is a failure to restore it to its former condition in
all cases where the exercise of reasonable care and
skill can effect a restoration. • • • Our own cases
recognize and enforce a rule very much the same as
that stated by the author from whom we have quoted,
although it is perhaps not quite so strongly stated.
Railroad Co. v. Stout, 53 Ind. 143; Railway Co. v.
Phillips, 112 Ind. 50; Railroad Co. v. Carvener, 113
Ind. 51. In the case last cited it was said: **Leaving
the highway in such a condition as to require the
wheels of vehicles passing over the railroad track to
be raised nine inches perpendicularly from the surface
of the highway In order to pass over the top of the
rails was prima fade a negligent interference with the
free use thereof. RaUroad Co. v. State, 87 Ind. jSld\

Johnson v. Railroad Co., 81 Minn. 288; Railway Co. v.
Locke, 112 Ind. 404. The wrong of the defendant in
negligently falling to restore the highway is, as we
have seen, of itself sufficient to constitute a cause of
action; and the additional act of negligence in the
management of the hand car, if not considered as add-
ing strength, to the complaint, cannot, at all events,
detract from it; but we think that the fact that the
defendant, by its own wrong, rendered the highway
unsafe, made it necessary for It, In operating its road,
to exercise care to prevent injury to one placed in
danger by that wrong. We are not dealing with a case
where the railroad, company v(as not guilty of any
breach of duty respecting the highway on which the
plaintiff was traveling, but with a case where, in vio-
lation of a positive duty, it wrongfully interfered with
a highway. Here the two wrongs blend in one con-
curring tort. If the appellant was free from fault
respecting the public highway, we add, to prevent
possible misunderstanding, we should have an entirely
different case, and one in which it may be that no ac-
tion would lie.

The Supreme Court of South Carolina, in
the case of State v. Carroll, 8 S. E. Rep. 433,
had occasion to construe the law as to the
(.roof required in prosecution for adultery
under the statute which reads as follows :

^ ^Adultery is the living together and carnal
intercourse with each other, or habitual carnal
intercourse with each other, without living
together, of a man and woman, when either
is lawfully married to some other person."

Under this statute they say that adultery
may be committed in either one of two ways :
(1) Where a man and woman, one of whom
is married to another person, live together in
carnal intercourse; (2) where, not living
together, they indulge in habitual carnal inter-
course — and the indictment iu this case falls
under the second head. It will be observed
that the statute does not undertake to define
either the word ''habitual" or the word
''carnal," and their meaning must be deter-
mined by the common sense of mankind ;
and in the absence of any statutory defini-
tion, it would be very difiScult, if not abso-
lutely impossible, to define, with any greater
precision, the terms "habitual carnal inter-
course" than was done by the circuit judge
in this case — that it must be frequent, and
not occasional ; but how frequent to make it
habitual must be left to the common sense of
the jury. What are the habits of a person
must necessarily be a question of fact. For
example, where the question is whether a
person is habitually intemperate, or whether
he is a person of temperate habits, is mainly
a question of fact, and is not suscej^ible of ^

Digitized by '

iceptible of




No. 7

being defined with precision as matter of law.
As was said by Mr. Justice Field, in Insur-
ance Co. v. Foley, 105 U. S.. 354: **When
we speak of the habits of a person, we refer
to his customary conduct, to pursue which he
has acquired a tendency, from frequent
repetition of the same acts ; ' ' but neither he
nor any other judge, so far as we know, has
ever undertaken to say how frequently the
act in question must be repeated in order to
generate a habit of doing such act.

The Supreme Court of New Jersey, in
Chism V. Schipper, 16 Atl. Rep. 316, has
lately decided a question of arbitration and
award which is certainly novel, and in regard
to which the court says at the outset: **The
question to be decided is, can the defendant
cheat the plaintiff by due course of law?"
Though the conclusion is that he cannot, the
opinion evinces considerable effort to find law
and precedent justifying this invasion of the
rights of New Jersey citizens and the dissent-
ing opinion of Judge Magie is an ingenious
argument, apparently supported by authority,
in favor of the affirmative. The case was this :
Suit on a building contract wherein the
plaintiff agreed to erect and finish a dwelling
house to the satisfaction of a certain archi-
tect, to be testified to by a writing or certifi-
cate, under the hand of said architect, that
any alterations or additions were to be de-
ducted from or added to the contract price ;
that in case of a dispute as to the construc-
tion or the specifications, the said architect
was to decide the same, whose decisions
should be final and conclusive. Full per-
formance by plaintiff and also allegations of
work and labor beyond the specifications.
The breach is that the architect wilfully and
fraudulently decides that certain alterations
and additions are within the true construc-
tion of said specifications, and that plaintiff
is not entitled to be paid the fair and reason-
able value thereof, and fraudulently and wil-
fully refuses to sign the certificate required
by the contract. To this defendant demurs,
thus placing the matter before the court:
*^I admit that this money is due for addi-
tional work ; I admit that the architect fraud-
ulently certifies to the contrary ; and I claim
that, by a correct; application of legal princi-
ples, I have the right to take advantage of

this fraud, and to appropriate to myself the
moneys that are its fruits." The court says:

The inquiry is, does the law, in reality, justify this
immoral attitude? It should be premised to the in-
quiry that, if this action will not lie, neither will any
action lie against the defendant founded on the facts
stated, either at law or in equity. As such a result
would be one much to be deprecated, and would stand
as a blot on the Jurisprudence of the State, it woula
seem that the most cogent reasons should be forth-
coming to afford a satisfactory answer to the interrog-
atory, why should a man be permitted to take advant-
age of the fraud of another? The only known reply is
that the plaintiff has covenanted to that effect; that he
has agreed that the action of the architect, whether
honest or dlRhonest, shall be conclusive. It is proper
to say, in limine, that it is not by any means deemed
certain that this contract, if to be read in the sense
Just specified, is sustainable in law. It is assumed
that a man cannot contract that he himself may com-
mit a fraud. For example, this defendant could not
have agreed that this money should not be payable ex-
cept on his own written certificate, and that he might
fraudulently withhold such certificate. If such a
stipulation would, as it is thought, be expunged from
the instrument on grounds of public policy, how can
the party legally stipulate that another may commit
this same crime for him? The capacity of parties to a
contract to provide that one or the other, as the case
turns out, may be cheated, does not appear to be a
faculty requisite in the transaction of any legitimate
business ; while, at the same time, its existence is
palpably offensive to good morals, and consequently
may well be said to be adverse to the public welfare.
The consequence is that it is, in my opinion, doubtful
whether such an agreement can be legally made; but
it is not deemed necessary to pursue the inquiry, inas-
much as, by proper rules of construction, applied to
the facts set forth in this record, the proper conclusion
is that the contract existing between these parties
does not contain this stipulation so highly question-
able. The inquiry is, what did these parties mean ?
Did they intend, or, by reason of the language em-
ployed, must it be concluded de jure that they in-
tended to be bound by the award of the architect, even
though such award was the creature of fraud? The
clause thus referred to is in the common form that has
long been in frequent use, and yet it may be safely
said that it is most Improbable that it would have
been adopted in a single instance, if it had expressed
in plain terms the meaning that it is contended lies
latent in its expressions. It is hard to believe that
any self-respecting man would put his name to an
agreement that a third party might do in his favor a
fraudulent act. But the adverse argument is that the
agreement of the parties is to be ascertained from the
plain language used by them, and such agreement is
to be enforced, no matter what the intention may have
been. This is the general rule, beyond a doubt, but
such required literalism is not to be pushed to the
preposterous length of requiring that by its operation
the general intention of the parties, as evidenced by
their contract itself, shall be frustrated or perverted,
either in whole or in part. The terms employed are
servants, and not masters, of a perspicuous intent;
they are to be interpreted so as to subserve, and not
to subvert, such intent. As an illustration, it plainly
appears on the face of this instrument that it was the
evident and sole purpose of the provision in question
to provide for fair and definite decisioL of certain
matters; and it is not said that by force of the terms

Digitized by


Vol. 28.



used, tbe decider is empowered to cheat either party
at will; and yet it is obvious that the existence of suc^i
a power In the agent has no tendency to effectuate the
object in view, but, so far as it can operate, is de-
structive of it. The stipulation giving the quality of
finality to the action of their agent is part of a contriv-
ance of these parties to insure fair dealing between
them in certain particulars, there seems to be no
reason why they should impart to such a contrivance
a fraudulent potency. It was quite reasonable for
these parties to say to their agent, decide honestly be-
tween us, and your decision shall be final; but it was
utterlv unreasonable for them to agree to abide by
such award, if it were fraudulent. For my own part,
I do not believe that in the history of the human race
the transaction has occurred in which a man has con-
sciously agreed that another should be clothed with
the power to cheat him, and that the decision of the
fraud- doer should be conclusive on the subject; and
In the present instance such a stipulation can be con-
structed only by an abstract Interpretation of the con-
ventional terms ; for if such language be construed as
a part of an integer, and in the view of purpose in
hand, it can be made to produce no such result.
There is no more important rule of construction than
that which requires that words shall be interpreted in
the refiected light of the context in which they are
are found; and, applying this rule to the case in hand,
it U not pei*eeived how it can be reasonably said that
these parties have given to the provision in question
that noxious efficacy that is sought to be imparted to
it. That the clause under discussion cannot be, out
and out, construed literally, appears to be undeniable.
This and similar engagements are never so read. Un-
doubtedly, if we construe these terms with entire lit-
eralness, the builder is required to produce, before he
can claim the money due him, the certificate of the
architect. There are no exceptions provided for nor
indicated, if the language is thus alone regarded. But
suppose the money be earned, and the architect die
before the signing of the certificate, is the claim lost
or forfeited ? Such a result, it is presumed, would
not be claimed; and yet it is avoidable only in one way,
and that is, to construe the terms of the contract rea-
sonably, as applied to their subject, and not literally.
The exception can stand ino other ground than this,
for the maxim, actus Dei neminem facit injuriam, is
never applied in violation of a contract. Looking to
the letter alone, these parties have said that under all
possible circumstlinces the certificate shall be a con-
dition precedent to the right to payment. Admitting
this as the true construction, the impossibility of the
performance of such condition would not avoid it; and
that such an effect has never been judicially given to
such provisions shows conclusively that they have been
interpreted according to their spirit, and not in sub-
servience to their very letter. And, indeed, in my
view, the entire legal course that has been pursued
in the construction of submissions to arbitra-
tion in the common-law, form, can be explained
only on the ground that they have been con-
strued liberally, and not with literal narrowness.
In all these submissions the stipulation is in
the most unqualified form that the award shall be final
and conclusive, but, if such award be tainted with
fraud, it is set aside on the application of the party;
and yet it is plain that such party could not be per-
mitted to make such application, if bis submission is
to be read by its letter, and thus made to mean an en-
gagement on his part to abide by the award, whether
honest or dishonest. In such cases it has never been
pretended that the parties, by the terms of their sub-

mission, reasonably understood, meant anything of the
kind. The grounds of decision in that entire class of
cases would seem tO' be precisely applicable to the
present case. As another illustration of the principle
that a literal interpretation is out of place, when its
adoption will run counter to the expressed general ob-
ject of the contract, reference may be made to the
familiar case of clauses so frequent in leases, that if thjS
rent is in arrear for a certain time the instrument shall
become void. In all these instances the courts have
declared, notwithstanding the literal meaning of the
terms, that the lease, on the happening of the event, is
not absolutely vacated, but only becomes voidi^ble at
the option of the lessor. In looking to the authorities,
I do not find that the point in question has ever been
put under the consideration of any of the courts of this
State. The subject was not discussed nor considered
in any of the three cases cited in the brief of the coun-
sel of the defendant in the decision of which I partici-
pated. With respect to the English law touching this
topic, I am inclined to think that it is still in a fluent
condition, and that the last word in reference to it has
not yet been spoken. See Clarke v. Watson, 18 C. B.
(N. S.) 278; Milner v. Field, 5 Exch. 829; Battenbury
V. Vyse,2Hurl.&C. 41; Pawley v. Turnbull, 7 Jur.
(N. S.) 792. The matter has been more definitely treated
by the American tribunals, and the results reached

Online LibraryAugustus John Cuthbert HareThe Central law journal, Volume 28 → online text (page 43 of 151)