RECENT CASES

ATTORNEY AND CLIENT-CONTRACT FOR SERVICES-LIMITATION TO QUANTUM MERUIT.-MARTIN V. CAMP (1916) 56 N. Y. L. J. 241.-The plaintiff's assignors were retained by the defendant to conduct a case. Their compensation was contingent on success and proportionate to the amount recovered. They were discharged without cause after rendering substantial services. The plaintiff brought an action for breach of contract. Held, that the plaintiff could recover on a quantum meruit for services rendered, but could not recover for breach of the contract.

Where the contract is broken without fault of the attorney, he may recover on a quantum meruit for services rendered or he may sue on the contract. Schemsohn v. Limonek (1911) 84 Oh. St. 425; Johnston v. Cutchin (1903) 133 N. C. 119; Henry v. Vance (1901) 111 Ky. 72; Henry v. Ross (1894) 5 Ind. 445; Larned v. Dubuque (1892) 86 Ia. 166; Moyer v. Cantieny (1889) 41 Minn. 242. New York makes an exception and allows suit only on a quantum meruit where the contract is for services in a single suit. Andrewes v. Haas (1915) 214 N. Y. 255; Haire v. Hughes (1908) 111 N. Y. S. 892; Clark v. Nichols (1908) 111 N. Y. S. 66; Johnson v. Ravitch (1906) 99 N. Y. S. 1059. Contra, Carlisle v. Barnes (1905) 92 N. Y. S. 917. But where an attorney is employed for a fixed period under a general retainer even in New York he may have an action for damages. Gilman v. Lamson Co. (1916) 234 Fed. 507; Copp. v. Colonial Co. (1901) 67 N. Y. S. 970. The reason for this exception is not apparent. The reason given in the principal case should apply to both, i. e., the personal nature of the relationship. There is not sufficient difference between a contract for a fixed period and the con

tract in the principal case. Moreover the measure of damages may be difficult but not impossible to establish. Henry v. Vance, supra.

S. J. T.

CARRIERS-LIABILITY PRIOR TO RECEIPT OF GOODS-EFFECT OF BILL OF LADING. KNAPP V. MINNEAPOLIS, ST. P. & S. S. M. Ry. Co. (1916) 159 N. W. (N. D.) 81.-The plaintiff sued for the value of wheat lost while in the custody, not of the defendant, but of the preceding carrier. The defendant's station agent had issued a bill of lading purporting to have received the grain at a station on the preceding carrier's line before that at which the loss occurred. Held, that the defendant was not bound by the oral agreement to assume responsibility for the grain while still in the custody of the preceding carrier. Bruce, J., dissenting.

The duties and obligations of a common carrier with respect to goods for transportation begin with delivery to it, and such delivery must be complete. Iron Mt. Ry. v. Knight (1887) 122 U. S. 79; Ry. v. Commercial Union Ins. Co. (1891) 139 U. S. 223; Garner v. St. Louis Ry. Co. (1906) 79 Ark. 353; American Lead Pencil Co. v. Ry. (1910) 124 Tenn. 57. The issuance of a bill of lading or any written contract of shipment is not essential to complete a delivery and, conversely, the mere issuance

of such does not itself transfer possession of the freight to the carrier. The writing is only prima facie evidence of a receipt of the goods and may be rebutted by oral evidence. Amory Mfg. Co. v. Gulf Ry. Co. (1896) 89 Tex. 419; Louisville etc. Ry. Co. v. Wilson (1889) 119 Ind. 352. The local station agent of a railway company cannot, unless specially authorized, bind it by contract to become liable for any loss or damage to goods being transported over a preceding carrier's line. Roy v. C. & O. Ry. Co. (1907) 61 W. Va. 616; Erie Ry. Co. v. Cappel (1909) 80 Oh. St. 128. A bill of lading being both a receipt and a contract for transportation, its terms as a receipt might be rebutted by the oral evidence offered by the defendant to show that its line did not begin at the station named therein, but a subsequent one. But it was held to be the contract aspect of the bill of lading that the plaintiff attempted to vary by oral evidence that the defendant's station agent had bound it as carrier from the named station on the preceding line, and the evidence was accordingly rejected. Whitmack v. Chicago etc. Ry. Co. (1908) 82 Neb. 464. The differentiation by the court of the two characters of a bill of lading is exceedingly minute; particularly since it necessitates holding that the same words naming the station of issuance are as an indicium of receipt, variable, but when once so varied, become part of the written contract against which oral evidence, seeking to prove that they mean what they literally state, is inadmissible.

L. W. B.

CARRIERS-INDEMNITY-ISSUE OF CLEAN WARRANTS BY WAREHOUSEMAN.-GROVES AND SONS V. Webb and KeNWARD (1916) 114 L. T. 1082.— The plaintiffs as warehousemen, at the defendant's request had issued clean warrants for wheat of which only a small part had been transferred into the plaintiff's warehouse from the defendant's ship. Owing to a leaky barge some of the remaining wheat was injured in transitu and the plaintiffs were compelled to pay £107 on the clean warrants to the ultimate purchasers. They then sued for indemnity. Held, that there was an implied contract by the defendants to indemnify the plaintiffs for such loss.

The lightermen were agents of the defendants but in order to bring the defendants under an obligation to the plaintiffs for injury to goods still within their possession the court proceeded on the above theory. There is a distinction between cases where one may act at his discretion and where one must act according to directions. At first, recovery in the former situation was denied. Haycraft v. Creasy (1801) 2 East, 92. Later, it was decided that an auctioneer who sold at the request of the defendant, was entitled to indemnity for his liability to the true owner. Adamson v. Jarvis (1817) 4 Bing. 66. See also Starkey v. Bank of England (1903) 88 L. T. 244, and Sim v. Anglo-American Tel. Co. (1879) 42 L. T. 37. The obligation here put upon the defendants was quasi contractual; an implication in law rather than in fact. There was enrichment to the defendants in being enabled to sell their wheat at full market price. Indemnity can be claimed by a surety on payment of the principal debtor's obligation, Appleton v. Bascom (1841) 3 Met. (Mass.) 169; Stephen Sibley v. Hugh McAllister (1836) 8 N. H. 389; also by an

agent for all acts performed in due execution of his authority. D'Arcy v. Lyll (1813) 5 Bin. (Pa.) 441; Loveland v. Green (1875) 36 Wis. 612. Similarly, a servant who suffers damage through the negligence of a superior officer may recover from the master. Little v. Miami R. R. (1851) 20 Oh. 415. The rule indicated above has been extended in the principal case to a novel situation.

G. S., JR.

CONSTITUTIONAL LAW-CLASS LEGISLATION-POLICE POWER-BONUS TO PURCHASING AGENT.-PEOPLE V. DAVIS (1916) 160 N. Y. S. 769.-The plaintiff was convicted of paying a bonus to a purchasing agent contrary to Sec. 439 of The Penal Law (Consol. Laws, c. 40) which forbids a third person to pay a commission or bonus to a purchasing agent even though done with the knowledge of the principal. Held, that this statute was not contrary to the Fourteenth Amendment of the Federal Constitution.

Possession and enjoyment of all rights are subject to such reasonable restrictions as may be deemed essential to the safety, health, and good order of the community. Crowley v. Christensen (1890) 137 U. S. 89; Thorpe v. Railroad Co. (1854) 27 Vt. 140. Such restrictions are within the police power of the state. Commonwealth v. Alger (1851) 7 Cush. (Mass.) 53; Fertilizer Co. v. Hyde Park (1878) 97 U. S. 57. The propriety of the application of the police power, within its scope, is purely a legislative and not a judicial question. Bertholf v. O'Reilly (1878) 74 N. Y. 509. Only where a statute is clearly an unjust discrimination in favor of, or against, a particular class will a court declare it to be class legislation. Holden v. Hardy (1898) 169 U. S. 366. Special legislation is not class legislation if the same rule is applied under similar circumstances to all engaged in the same business. Barbier v. Connolly (1885) 113 U. S. 703. A statute declaring it to be a felony for members of a particular bank to embezzle funds is class legislation and unconstitutional. Budd v. State (1842) 22 Tenn. 483. However, a statute making any person engaged in the banking business criminally liable for receiving money knowing the bank is insolvent, is not class legislation. Baker v. State (1882) 54 Wis. 368. In the principal case, whether or not it is a vicious tendency inviting fraud on the part of the agent, to allow an agent to accept pay from both his principal and a third party, appears to be a question for legislative decision and within a valid exercise of the police power.

R. W. D.

DAMAGES-LIQUIDATED DAMAGES OR PENALTY.-NORTHWESTERN TERRA COTTA Co. V. CALDWELL ET AL. (1916) 234 FED. 491.—In a contract to furnish the plaintiff, who was building a court house, $13,000 worth of terra cotta which was to be manufactured especially for the purpose, it was stipulated that, should the defendant fail to deliver at a certain date, he should pay $50 "liquidated damages" for each day's delay. There was a delay of twenty-nine days. Held, that the plaintiff could not recover on the contract stipulation since it was a penalty and not liquidated damages. Hook, J., dissenting.

If the amount is disproportionate to the probable damage sustained, the court will treat it as a penalty. Connelly v. Priest (1898) 72 Mo. App. 673; Zimmerman v. Conrad (1903) 74 S. W. (Mo.) 139. A contract for the construction of a building costing $13,675, which called for a payment of $50 by the contractor for every day after the seventieth that the building was uncompleted was held not an unreasonable amount as liquidated damages. United Surety Co. v. Summers (1909) 72 Atl. (Md.) 775. But Cochran v. People's Ry. Co. (1892) 113 Mo. 359, held that where the contract price was $17,785, a forfeiture of $50 per day for sixtyfive days was a penalty.

J. I. S.

EVIDENCE-RELEVANCY OF LETTER-PRESS COPY OF A LETTER NOT PROVED TO HAVE BEEN SENT.-FITCH V. SHUBERT THEATRICAL COMPANY (1916) 56 N. Y. L. J. 20.-In an action upon a contract for royalties, the plaintiff alleged that the modification set up by the defendant, reducing the amount to be paid, was obtained by fraud. The alleged fraud was the defendant's misrepresentation that he was still paying 30 per cent of the gross proceeds to the German authors. The defendant claimed to have written the plaintiff that he had purchased the rights of the German authors, and offered in evidence a letter-press copy of the letter of notification. This evidence was excluded by the trial court. Held, that it was not reversible error for the lower court to exclude the copy, inasmuch as there was no proof of the mailing of the original.

The court relied altogether upon the case of Gardam v. Batterson (1910) 198 N. Y. 175. In that case the evidence offered was the dictation and writing of the letter; the placing of it in a receptacle for that purpose; and a copy of the letter but no proof that anyone mailed it. In the principal case there were not only facts similar to those of Gardam v. Batterson, supra, but also correspondence between the plaintiff and the defendant, suggesting, by the failure of the plaintiff to renew a certain demand, the possible receipt of the letter in question; and finally the plaintiff's refusal to deny that the letter was received. Had there been any evidence offered by the person accustomed to mail the letters in the receptacle, that he always mailed all the letters in it, the testimony should have been admitted to prove an actual mailing. Hetherington v. Kemp (1815) 4 Camp. N. P. 192; Thallhimer v. Brinckerhoff (1826) 6 Cow. (N. Y.) 90. But regardless of whether the evidence offered in the principal case should have been admitted for the purpose of proving a mailing, it should have been admitted in order to show good faith on the part of the defendant, since the want of good faith is essential to the existence of fraud, which was the question before the jury. In order that the evidence be admissible, it need only be logically and legally relevant. Intrinsic sufficiency is not required. De Arman v. Taggart (1896) 65 Mo. App. 82. It is sufficient if it may be expected to become relevant in connection with other facts. Aycock v. Johnson (1898) 119 Ala. 405. It is sufficient that it is to be used merely to substantiate the party's own theory. Comstock v. Butterfield (1886) 60 Mich. 203.

F. L. McC.

EVIDENCE-ADMISSIBILITY OF PROOF OF ANOTHER CRIME-PEOPLE V. THAU (1916) 219 N. Y. 39.-The defendant was indicted for assaulting the complainant by striking him with a bottle. The prosecution was permitted to introduce evidence of a previous act of vandalism by defendant, in entering complainant's shop two weeks before the assault, and destroying $50 worth of garments by pouring ink upon them. Held, that such evidence was admissible, the identity and motive of the assaulting party being in issue.

The general rule may be thus stated: "It is improper in the trial of a defendant for a crime to prove that he has committed other crimes having no connection with the one under investigation." Jones, Evidence, Vol. I, p. 721. But facts and circumstances which tend to prove any of the essential elements or ingredients of the crime for which the defendant is on trial, are not to be rejected as evidence simply because they may prove, or tend to prove, the accused to have committed another and distinct crime. Regina v. Briggs (1839) 2 Mood. & R. 199. Evidence of another offense, if it tends to show the existence of a motive to commit the crime charged, is competent where there is an apparent connection between the imputed motive and such crime. Commonwealth v. Robinson (1888) 146 Mass. 571. The same rule applies in proving intent. State v. Burns (1886) 35 Kan. 387; in establishing identity, Johnson v. Commonwealth (1886) 115 Pa. 369; or in proving, malice, Walter v. People (1865) 32 N. Y. 147. Where the crime charged is so connected with the other offense sought to be proved as to form part of an entire transaction, or where proving the former would tend to prove the latter, such evidence is admissible. Wilson v. State (1900) 55 S. W. (Tex.) 68; State v. Vines (1882) 34 La. Ann, 1079. The real test of admissibility is best stated by Parker, C. J., dissenting, in People v. Molineux (1901) 168 N. Y. 343, a case in which proof of another crime similar to that sought to be proved against the defendant in the instant case, was rejected: "Does the evidence of the other crime fairly aid in establishing the commission by defendant of the crime for which he is being tried?" Accordingly in the principal case the court modifies its position from that of the majority in the Molineux case. For a discussion of the entire question, see State v. Adams (1878) 20 Kan. 319.

A. N. H.

EVIDENCE-CONFESSIONS IN CRIMINAL TRIAL-ADMISSIBILITY AGAINST A CODEFENDANT.-PEOPLE V. BUCKMINSTER (1916) 113 N. E. (ILL.) 713.— Two defendants, accused of arson, were tried jointly and, for the purpose of impeaching one, his involuntary confession was offered. Held, that error to admit that part of the confession which affected the codefendant, even though the jury were instructed to disregard the confession as affecting such codefendant.

it was

In regard to the party who confessed, the trial court agreed with the general rule that the involuntary confession of one accused of crime is inadmissible in evidence. Ammons v. State (1902) 80 Miss. 592. But it accepted the confession to impeach the testimony of the person who made it. This is a disputed point, and although before the upper court for