Irving Browne Isaac Grant Thompson.

The American reports: containing all decisions of general ..., Volumes 1-12 online

. (page 15 of 51)
Online LibraryIrving Browne Isaac Grant ThompsonThe American reports: containing all decisions of general ..., Volumes 1-12 → online text (page 15 of 51)
Font size
QR-code for this ebook


of the senate, thereafter appoint such officers, whose term of office shall con-
tinue until the legislature shall provide by law for an election of said officers."
Held, that an act of the legislature providing that, in all cases in which the
governor " shall have the power under this act, by the terms of the oonstitn-

14



Digitized by



Google



106 CONSTITUTIONAL LAW.

tion, to appoint to office he shall also have the power of rmn&vdl from offioe^"
waa not unconatitational. 1870. NeiMom y. Cocks (44 MIbs. 852), VU, 688.

M%ieeUane<m$ cate»,

83. Ziooal improvOTMiita. The charter of a city authorized the city oonndl
to caose the improvements of streets at the cost of the owners of the adjoining
lots, and provided that after the first improvement, repairs were to he made at
the expense of the city ; hM, not to be a contract, and that a subsequent char-
ter authorizing the re-construction of such streets, at the cost of adjacent own-
ers, was constitutional 1870. Bradley v. MoAtee (7 Bush. Ey. 667), III, 808.

8^ An act of the assembly authorising a street already laid out and

in good condition, to be taken and improved for a public drive or carriage-way,
and providing that the expense of the improvements be assessed upon the
property located on the street, is unconstitutional, as imposing local assess-
ments for improvements, which are for the general public benefit. (Read
and Williams, disumtienU,) 1870. HammeU v. PhUadetpTUa (65 Penn. St
146), m, 615.

86. The collection of an assessment for a local improvement was pei^

petually enjoined, on the ground that the assessment was made without author-
Sty of law, and an act of the legislature was subsequently passed authorising
a special re-assessment for the same purpose. EM, that the act was valid.
1872. Mills V. Charlston (20 Wis. 400), IX, 578.

86. State laws giving a li«n on vassals for labor performed and materials
furnished in their construction are constitutional, and may be enforced in
State courts. 1868. .Fbf^ v. T:^"^tM<Mf{" (lOOMass. 409), I, 125.

87. A State statute, a portion of whose provisions give a lien upon

vessels and furnish a means of enforcing it in cases of contracts not maritime,
and as to which there is no admiralty jurisdiction, will be upheld even though
such statute is unconstitutional and void in relation to particular cases covered
by its terms. 1870. Shsppard v. Stssls (48 N. T. 52), UI, 660.

88. The plaintiff performed blacksmith work on a vessel being built

at a ship yard in this SUte. Hsld, that the New York statute, entitled "An
act to provide for the collection of demands against ships and vessels," passed
April 14, 1862, was not in conflict with the United States constitution or the
judiciary act, so far as it applied to a lien claimed by plaintiff. lb,

89. The plaintifib attached a sea-going vessel, under the New Toik

law (chap. 482, Laws of 1862), upon a daim for wharfage, ffsld, that a demand
for wliarfage being a maritime demand, cognizable in the courts of admiralty,
a State statute attempting to confer a remedy for such a demand by proceed-
ings inr&miB void. 1871. Broohman v. EammiU (48 N. Y. 554), m. 781.

90. Any State law which attempts to provide for the enforcement of a

maritime claim or contract by any but a common-law zemedy infringes upon
the exclusive jurisdiction of the federal courts, and' is n dear violation of the
federal compact. lb,

91. But in so far as the State laws create lien and provide remedies



Digitized by



Google



CONSTITUTIONAL LAW. 107

for oUinui not maritime, over which the ooorta of admiraltj have no jarisdic-
iion, thej are valid and operatiye. lb,

92. Ziocal option laws. The legislature have no power to make the opera-
tion or repeal of a law dependent upon a vote of the people. Therefore, ?ield,
that an act prohibiting the sale of ale, wine, etc., the operation of which is
made dependent upon the vote of the people in each ooontj, was unconstitu-
tional. 1871. The State v. Weir (88 Iowa, 184), XI. 115, and note, 117.

93. Oi^ rights. A State statute provided that people of color should have
equal privileges and accommodations with white people in public convejances,
theaters, places of popular amusements, etc, and imposed a penaltj for a vio-
lation of the act. EM, that the statute was constitutional, and that the con-
viction of the lessee of a theater for denying admission and equal accommo-
dations to colored men should be affirmed. 1878. DanneU v. i^ate (48 Miss.
661), Xn, 875.

94. The legislatiire may grant to a bodj corporate the exclusive franchise
of manufacturing and selling gas to illuminate a city, and of constructing
works and laying pipes for such purpose. 1872. €UUe v. MiliDaukee Qae-Uffht
Oampemy (29 Wis. 454), IX, 598.

96. Bleotion: ballot The legislature passed an act requiring "the inspec-
tors of any election, on receiving the ballot of any voter, to have the same
numbered with figures on the outside or back thereof to correspond with the
number placed opposite the name of such voter on the poll list. Heid, that
such act was in violation of the object of that provision of the constitution,
which declares that " all elections by the people shall be by ballot,'* and was,
therefore, void. A ballot implies absolute secrecy. 1871. WWiams v. Stein
(88 Ind. 89), X, 97.

96. Bleotloiui: registry laws. By the constitution of Iowa, article 2, section
1, it is provided that " every white male citizen of the United States, of the
age of twenty-one years, who shall have been a citizen of the State for six
months next preceding the election, and of the county in which he claims his
vote sixty days, shall be entitled to vote at all elections which are now or
hereafter may be authorised by law.'* A registry law providing that " no vote
shall be received * * * from any person whose name does not appear on
the register unless the person offering to vote shall furnish the judges of elec-
tion his affidavit," etc., is not incompatible with the above provision of the
constitution, and is valid. 1869. Bdmande v. Bavbury (28 Iowa, 267), IV, 177.

97. Bringing stolen property into State. A statute, providing that a per-
son who shall bring into the State property which he has feloniously stolen
in another State, shall be guiity of larceny, and punished accordingly, is con-
sUtutionaL 1871. PeopU v. WiUiame (24 BCich. 156), IX, 119.

98. Pardons. The constitution forbade the governor to grant a pardon
before conviction. EMy that a pardon after verdict and before sentence wm
valid. 1872. CcrnifmmtMO^^ v. ixHO^iMMi (109 Mass. 828), XU^

99. JTudioial power. By the constitution of Kansas the jurisdiction of the
Supreme Court was restricted to certain original proceedings, and ** such appel-



Digitized by



Google



108 CONTEMPT — CONTEAOTOES.

late jorisdietion as may be provided bj law." The legiBlatore conferred upon
the Sapreme Court the power to hear appeals from a board of ooiinty clerks in
the appraisal of the property of railroads for purpose of taxation. Hdd, that
the yaluation of property for purposes of taxation is an incident to the
taxing power, and, therefore, not such a " judicial power " as can be con-
ferred upon the Supreme Court in the form of appellate jurisdiction. 1870.
Auditor of State ▼. The Atehiaon, Topeka and Santa 2^ B. B, Co, (6 Eans. 500),
Vn, 676.

100. The legislature of Ohio authoriied the judges of the superior

court to appoint trustees of a contemplated railway. Heldt (1) that this was
not an exercise of the appointing power, forbidden to the legislature by
article 2, section 27 of the State constitution, such trustees not being puNio
offlc&ri in the constitutional sense, and their appointment by the court bdng
a legitimate function ; (2) that the act was not in yiolation of article 4, section
14 of the State constitution, prohibiting the judges from holding any other
office, such power of appointment being only an additional power or duty
annexed to an existing office and not a new office ; and (8) the act was not in
violation of article 2, section 20 of the State constitution, in not fixing the
term of office and compensation of the trustees, such trustees not being
"officers" in the sense of the constitution. 1871. WdUcer y. OUy nf Oifi^
einnoH (21 Ohio St. 14), Vm, 24.

101. ** Office or pubUo trust" A statute appropriated a specified sum to
be paid to the relator for the purchase of certain relics of General Washing-
ton, by the State, to be paid only upon the certiflicate of three persons named
therein, one of whom was at the time a judge of the court of appeals, and as
such incapacitated .from holding any other " office or public trust." Meld,
that the appointment was valid, it not being an office or public trust within
the meaning of the constitution. 1878. People v. Ifiehols (62 N. T. 478),
XI, 784.
See Ldotatiok of Actiok; MxiinoiPAL CoBPOBiLTiONS ; Statutbs; Stat-

XJTOBY CONSTBUCnOir.

CONTEMPT.

Rerview ci Judgmmit. Plaintiflf was subpoenaed to make his affidavit befors
a justice of the peace, but refusing to comply, he was committed by the jus-
tice, whereupon a writ of habeas eorpue was obtained from the Supreme Court
Held, that he must remain in custody, although his affidavit could not be used
in the proceeding for which it was required, on the ground that when a person
is being punished for contempt, unless the proceedings leading thereto are so
grossly defective as to render them void, the judgment of commitment, in the
absence of statute, cannot be reviewed in any other tribunal. 1870. BM v.
MeDonaid (20 Iowa, 880), lY, 211.

CONTBAOTOES.
The owner of a dty lot let parts of the work of constructing a build-
ing to different persons ; to one the excavation ; to another the stone work ; to



Digitized by



Google



CONTRACTS. 109

another the Bupentmctare ; while himself delivered stone, lime and sand.
Held, that the owner, and not the contractors, was responsible for an injury to
a traveler caused bj the excavation being insaffldentlj guarded. 1871. Soman
▼. SUmley (66 Penn. St. 464), V, 889.

See Master Aim Sbbyaott ; Nbgughnob.

CONTRACTS.
I. What ooNSTrruTBS.
n. Thb oonhideratiok.

nL COKSTBUOTIOK AJXD SFTBOT.

IV. Vamditt.
y. Pbrfobmakcb.

VI. Ih BB8TBAI1VT OF TRABB.

vn. Action on. '

L What 00N8TITUTB8.

L A promise lacking mntnaltty at its inception becomes binding upon the
promisor after performance hy the promisee. 1871. WiUeU v. Bun Mut, Ine,
Ci?.(45N.T.45),VI,81.

2. By l«tt«r. Where parties treat bj correspondence through the post, an
offar bj one is complete as soon as the letter containing notice of an accept-
ance is sent. The party making the oflTer is bound, when the other partj has
accepted it before the notice of withdrawal reaches him. A mutual mistake
as to a fact wholly collateral, and not affecting the essence of the contract, will
not invalidate such contract. 1869. FAmI v. OroM (81 Md. 99), 1, 28.

3. A statute esen^nting property from the payment of rates is not a con-
tract and may be repealed, and the property taxed. 1869. Lord v. LUehfiM
(86 Conn. 116), IV, 41 ; EaH Saginaw Manf, Co, v. (My of Bast Saginaw (19
Mich. 269X n, 82.

^ Sabscsiption paper. In an action against a subscriber to a paper stipu-
lating that the subscribers would pay the sum annexed to their names to any
person who should thereafter build a free bridge at a specified place, the same
to be paid upon the completion of the bridge, it was 7iM^ (1) that the instru-
ment was a valid contract between the subscribers thereto and any one who
should afterward build the bridge according to its terms ; and that as relates
to the payee, it was like a note payable to the bearer ; (2) that parol evidence'
was inadmissible to show the work was to be let to the lowest bidder, there
bein^ no such provision in the paper. 1870. Cooper v. McOrimmin (88 Tex.
888), vn, 268.

6. SenrioeB rendered a person during his last illness as nurse and house-
keei>er are not deemed to be gratuitous, but on the contrary, there is an implied
contract that the party receiving such services is to pay a UXt compensation
therefor. The fact, if it were shown, that the nurse or housekeeper lived with
the man she was nursing and taking care of as his concubine, does not impair
or lessen her claim for wages, unless it be alleged and shown that concubinage
was the motive and cause of their living together in the first instance, and the



Digitized by



Google



110 CONTRACTS.

services rendered were merelj incidental to that mode of living. 1871. 806-
cession ofPm-euUhet (28 La. An. 294), VIII, 595.

6. Plaintiff resided with her brother for many years, being supported

and cared for by him daring that time as a member of his own family, and
after his death sued his administrator, for services rendered by her for her
brother while she so lived with him. Held, that the presumption created by
the near kinship of plaintiff and deceased that no payment was intended for
such services, could only be overcome by clear and satisfactory proof of an
express contract to pay for them. 1871. ffaU v. Finch {29 Wis. 278), IX, 5^.

7. A contraot tainted with fraud may be ratified without a new contiact,
founded on a new consideration. 1871. Negley v. Lindsay {fil Penn. St. 217),
V,427.

II. Thb consideration.

8. The compromise of a doubtful and conflicting claim is a good oonsideia-
tionfor a new agreement. 1809. Piikin v. Noyes (48 N. H. 294), II, 218.

9. Mutuality, If A promise to pay B a sum of money to do a particular act,
and B does the act, A is liable, though B did not at the time of the promise
engage to do the act ; for, upon the performance of the condition by the
promisee, the amtract is clothed with a valid consideration, which relates back,
and the promise at once becomes obligatory. 1869. Dcs Moines VaUeif B, R.
V. Qraff (27 Iowa 99), I, 256.

IOl Oontraofai under laal : consideration. Under the statute of Iowa the
want of consideration on a contract under seal may be inquired into, and this
does not except instruments made in other States. 1869. Wiiliaims v. HaiyTus
(27 Iowa, 251), 1, 268.

11. This statute afEbcts all sealed contracts made after its passage. It

relates to the remedy, and does not impair the obligation of the contract, within
the meaning of the adjudications of the United States Supreme Court. R,

12. Defense of suit. Where A defended 'the suit of B upon Cs promise to
indemnify him against the costs of the defense, this was a good consideration
for the promise, although was mistaken as to the validity of the defense, and
as to the benefit which he should derive therefrom. 1871. WeUs v. Jfonn
(45 N. T. 82'/). VI, 98.

13. Where a tenant agreed with his landlord, who was about to seU the
premises at auction, that he would deliver possession of the same upon a fixed
day, before the expiration of his term, to such person as should become the jpur-
chaser, and, being present at the sale, made a statement to that effect, and the
plaintiff became the purchaser, relying upon such agreement of the tenant, who
had full knowledge thereof, held, that the purchase of the property by the plain-
tiff was a sufficient legal consideration for the tenant's promise. 1869. Moors
V. Bonis (49 N. H. 45), VI, 460.

1^ Innkeeper's lien. Defendant, an innkeeper, held goods of J. S. to satisfy
his board bill. Plaintiff, also an innkeeper, was afterward applied to by J.
S. for board, and agreed with defendant to board J. S. a certain time in
consideration of defendant's promise to retain the goods as security for



Digitized by



Google



^



CONTRACTS. HI

plain tifiTs bill as well as his own. The goods were released without payment of
plaintiff's bill. Heldy that defendant's promise was founded on good consider-
ation, and that for the violation of it plaintiff was entitled to recover. 1872.
BarMi v. Saunden (49 Mo. 443). VIII, 136.

Cantider<Uion of hiUi and notes— See ^UAJi and Notbb.

III. Construction and effect.
16. By what law construed* The iexfori govems as to the proof of the



A"



'contract ; the lex loci carUractue as to the obliffaHone of the contract.
Downer v. Cheiubrough 86 Conn. 89). IV, 29.

16. An ante-nuptial contract was made in the State of Mississippi bj a

female minor with her intended husband. The contract was to be carried out
in the State of Louisiana, where the husband and wife resided after marriage.
Held, that the capacity of the parties, as well as the form of the contract,
must be govemed by the laws of Mississippi, while its effect must be governed
by those of Louisiana. 1870. Succeaion of Jesse W. Wilder (22 La. An. 219),
11,721.

17. To ascertain whether such a contract is for the benefit of the minor

BO as to determine whether it is void or voidable, the lex loei contractus alone
must be considered. lb.

18. The courts of Louisiana having declared all contracts the considera-
tion of which was Confederate money, illegal and void. EM, that the courts of
Mississippi would not enforce a note given in Louisiana for a loan of Confeder-
ate money. 1870. /«<y V. Xa/ton(; (42 Miss. 444), II, 606.

19. In an action on a promissory note given in Arkansas, the defendant

alleged that the action was barred by the statute of limitation of that State ;
heid, that the lex fori and not the lex loci contractus was to govern. 1870. Cbr-
son V. Hunter (46 Mo. 467), U, 529.

20. The plaintiff was ii^jured through negligence of defendant, while

traveling on defendant's train in the dty of New York, under a contract made
and to be executed therein, and valid by the laws thereof, by the terms of
which the plaintiff was to be carried gratuitously, and was to assume all risks
of injury arising through negligence of defendant's servants or otherwise.
Held, that the validity of the contract must be determined by the laws of New
York, and that, it being valid in that State, the plaintiff could not recover.
1868. KTiouUon v. TJkc Erie By, Co. (19 Ohio St. 260), n, 395. See Cabbieb,
pi. 125.

21. SaU by samplab S. sold and delivered spirituous liquors in New York,
where such sale was lawful, to E., who resold the same in New Hampshire,
where such sale was unlawful There was evidence tending to show that
prior to such sale S. had, in New Hampshire, solicited orders for liquor from
E., and that at the time of the sale he had reasonable cause to believe, and did
believe, that E. intended to resell the liquors in New Hampshire, contrary to
law. Hetdt that the contract of sale being valid in New York could be
enforced in New Hampshire. 1870. ^itf v. ifiSpeor (50 N. H. 253), IX, 205.



Digitized by



Google



112 CONTRACTS.

22. If an agent of a person engaged in the sale of liquors in another

State, merely takes an order of a person residing in Iowa for a qnantitr of
Uqaor to be forwarded to him, which order is made upon and subject to the
approval or disapproval of his principal, the sale will be regarded as made in
the State where the principal resides, and the case will not fall within the
statnte of Iowa, making void contracts for or on accoant of intoxicating
liquors. 1871. Tegler v. Shipman (83 Iowa. 194), XI, 118.

23. Defendant ordered, by sample, spirituous liquors of the traveling

agent of a firm in another State where the sale was lawful, and they were
put up, marked to purchaser and shipped from the firm's place of buflinesB.
Held, that the sale was made and the dbniract complete at the place of ship-
ment, and that an action for the price could be maintained in New Hampshire.
1871. Boothby v. Plaisted (51 N. H. 436). XH, 140.
i 24. Independent. In a contract for the sale* of land the vendee agreed to
pay the purchase-money in installments, and the vendor executed a bond con-
ditioned to deliver the deed upon the payment of the last installment. JSM,
that the agreements were independent and that the vendor could recover
the last installment without first tendering the deed. 1869. Bowen v. BaiUjf
(42 Miss. 405), II, 601. But see, to the contrary, Robinson v. Earbour (43 Miss.
797), n, 671.

26. Severable. An oral promise to pay for both the past and future
board of another is severable, and an action will lie on so much of it as is
not within the stotute of frauds. 1868. Haj/net v. Mee (100 Mass, 827),
1,109.

26. Partioular words. In an action upon a written contract for the sale,
of hogs, to be " delivered at W.,^t the option of H., by giving ten days!"
notice at any time in June, Md, that the contract obliged defendant to make
the delivery daring the month specified, without notice. 1870. WiUmoring,
V. MeQaughey (80 Iowa, 205), VI, 678.

27. An obligation in writing to pay a specified sum of money, on a day

certain, in coin, or cotton at twenty cents per pound, at the option of the
promisor, becomes absolute to pay coin, unless a tender of the cotton is made
when due. A like obligation, when at the option of the creditor, does not
require of him an election and notice in order to maintain his action to
recover the coin. 1871. BusseU v. McCormiek (45 Ala. 587), VI, 707.

28. Day's work under ten-hours law. Under a statute providing that, in
all contracts for or relating to labor, ten hours of actual labor shall be taken to
be a day's work, unless otherwise agreed by the parties, the plaintiff worked
for the defendant from November to April, each day from sunrise to sunset,
under an agreement for $2.50 a day, without any agreement as to how many
hours should constitute a day's work. The plaintiff brought suit to recover
$2.50 for each actual day's work ; the defendant claimed that he was entitled
to $2.50 for each ten hours' work only. Held, that it was for the jury to deter-
mine whether or not the work done by the plaintiff in a day was, by the under-
standing and implied agreement of the parties, to be taken as a day's work.
1868. Brooks v. Cotton (48 N. H. 50), II, 172.



Digitized by



Google



CONTRACTS. 113

29. A statate provided that "eigl^t hoan' work done in anj one

day Bhall be deemed a lawial day's work, unless otherwise agreed by the
parties." Plaintiff, under a contract for a fixed price per week, worked
sixteen hoars per day. Held, that he could not recover d'>uble the agreed
price. 1870. Luike v. Eotchkiu (87 Conn. 219), IX, 814, and note, 817.

30. Bnildiiig oontraots— aooeptanoe by arobitect By the terms of a
contract for repairing a building, it was provided that the materials to be for^
nisbed should be of the best quality, and the workmanship performed in the
best manner, subject to the acceptance or rejection of the architect, and all to
be in strict accordance with the plans and specifications ; the work to be paid
for " when done completely and accepted." HM, that the acceptance, by the
architect, did not relieve the contractors from their agreement to perform the
work according to the plans and specifications ; nor did his acceptance of a
diflbrent dass of work, or inferior materials, from those contracted for, bind
the owner to pay for them. That the provision for acceptance was merely an
additional safeguard against defects not discernible by an unskilled person.
1872. Qlaeiui et al. v. Black (50 N. T. 145), X. 449.

31. Duties on articles sold. The act of congress of 1864, chapter 178,
section 94, which authorizes persons who before its enactment had made, con-
tracts without other provision therein for the payment of duties subsequently
imposed on articles to be delivered under them, to recover from the pur-
chaser a sum equivalent to the duties so imposed if the same had not been
previously paid by him, is constitutional ; and such sum may be sued for and
recovered in either a Federal or State court. 1869. AfMnidaion v. Fr6&'
tend (101 Mass. 808), m, 859.

IV. Validitt.

32. As regards publio policy. The plaintiff obtained a contract for build-
ing a school-house for the district of which he was a director, and took part
in the proceedings of the board which let the contract. HM, that the contract
was void, on the ground that it was against public policy to allow the plaintiff,
while holding a fiduciary relation to the district, to place himself in an
antagonistic position and obtain the contract for himself, from the board of which
he was a member. 1870. Pickett v. School DUtrict (25 Wis. 551), lU, 105.

33. The plaintiff brought an action against the defendant, an executor^

for money had and received to plaintiff's use by defendant's testator, under
an agreement made between plaintiff, the testator, and another, to operate in
stock for the purpose of making a " comer," the money to be expended by the



Online LibraryIrving Browne Isaac Grant ThompsonThe American reports: containing all decisions of general ..., Volumes 1-12 → online text (page 15 of 51)