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such action as this on the part of the lawyers, the conditions of the contract. The rule that and the profession in other States may well plaintiff, in an action upon a contract, must imitate the example.

aver performance on his part, or plead facts

which will constitute a valid excuse for nonThe twentieth annual meeting of the Amer- performance, is generally adhered to, by the ican Bar Association will be held at Cleve- higher courts, in quite, if not all the States, land, Ohio, on August 25th, 26th and 27th. and this rule is regarded as sound in princi. It is the exception to hold the meetings of ple. In all contracts where there are rethis association in the west, and for that rea- ciprocal covenants or mutual conditions to son among others an unusual attendance is be performed, and one of the parties puts it predicted. The annual address will be made out or beyond the power of the other to perby the President, James M. Woolworth of form the covenants or conditions to be perNebraska. In addition to the usual formal formed by him, he is reħeved from such perproceedings there will be an address by John formance, and in a complaint upon the conW. Griggs, governor of New Jersey, one by tract, for a breach, if the complaint avers Robert Mather, of Illinois, on “Constitutional such facts, it will not be demurrable for a failConstruction and the Commerce Clause,” and ure to allege performance on the part of the a paper by Eugene Wambaugh, of Massachu

plaintiff. The court cited 4 Enc. Pl. & setts, on “The Present Scope of Govern- Prac. p. 629, where the rule is briefly and ment.” The papers to be read in what is pointedly stated as follows: "In lieu of al. known as the Section of Legal Education will legations of performance, the plaintiff may be especially interesting. They are as fol- allege facts in excuse for non-performance." lows: "Primitive Legal Conceptions in Re- The court cites Couch v. Ingersoll, 2 Pick. lation to Modern Law," Henry E. Davis, 292, where it is held that the covenants to Attorney of the United States for the District

convey were mutual dependent covenants, of Columbia, and lecturer on the History of and that “There should have been an averLaw in the Columbian University, Washing- ment of performance, or an excuse for nonton, D. C. "The Law of Insurance in the

performance. See, also, Buess v. Koch, 10 Law School,” John A. Finch, lecturer on

Hun, 299.” In Rubble v. Massey, 2 Ind. 636 Insurance Law in the Indiana Law School, it was held that where a condition was to have Indianapolis, Ind. “The Wage of Law been performed in a contract by the plaintiff

, Teachers," Professor Charles N. Gregory, and he was prevented from performing it, the Associate Dean of the College of Law of the

allegations of the complaint showing such University of Wisconsin, Madison, Wisconsin.

prevention was a sufficient excuse for nonperformance. The court, in the Reynold's

Case says that counsel for the association NOTES OF RECENT DECISIONS. recognize the force of this rule when they say

in their brief that plaintiff must plead perRECOVERY OF PAYMENTS

FOREIGN formance, or a valid excuse for non-performBUILDING AND LOAN ASSOCIATION WAIVER

Further, that in the admission, in OF PERFORMANCE.-The gist of a decision re- view of the facts pleaded, they inadvertently cently rendered by the Indiana Appellate admit the sufficiency of the complaint upon Court, in People's Building & Loan Associa

the point under consideration. In this case tion v. Reynolds, is that a subscriber to a the facts averred in the complaint clearly foreign building and loan association is en

show that the association undertook and titled to recover back her payments, if the

agreed to keep an agent and maintain all association fails to maintain an office in the

agency at the city of Indianapolis, to accept State of the stockholder, at which she may the monthly dues and installments of the complete her payments. A demurrer chal- plaintiff ; that the plaintiff was not required lenged the sufficiency of the petition on the to pay them elsewhere; that in pursuance of ground that it did not aver the plaintiff's

the agreement the appellant association did performance of the contract. The court, not maintain such agency for a period of sis however, held that the association put it out

months immediately succeeding the time spof the power of the subscriber to comply with | pellee subscribed and had issued to be the

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certificate of stock; that after that time such the other to perform the agreements or conagency was discontinued and withdrawn from ditions of the contract to be performed by Indianapolis without notice to her ; that she him, he is relieved from such performance, was unable to find any person to whom she and in an action for a breach an averment of was authorized to make such payments ; that such facts will withstand a demurrer, even if such agency was discontinued for more than the complaint fails to allege performance on three months, and that by the terms of her the part of the plaintiff. See Floyd v. Madox, said certificate, a failure to pay for three 68 Ind. 124; Mathis v. Thomas, 101 Ind. months constituted a forfeiture thereof; and 119; Ins. Co. v. Hinely, 75 Ind. 1. that she was ready and willing to perform her part of the contract but was prevented from MUNICIPAL CORPORATION ORDINANCE so doing by the acts of the association.

VALIDITY ENGINEER OF STEAM BOILERS. It is unnecessary to allege performance or The case of City of St. Louis v. F. Meyrose readiness to perform on the part of a plaint-Lamp Manuf. Co., 41 S. W. Rep. 244, reiff, where it is shown that the defendant has cently decided by the Supreme Court of repudiated the contract, or affirmatively re- Missouri, illustrates the power of municipalfused to perform, or denies liability under it. ities in the matter of passage of ordinances Riley v. Walker, 6 Ind. App. 622. In case regulating avocations. The holding of the either party dispenses with the performance court was that an ordinance probibiting the of the undertaking with the other, or by any owners of steam boilers from employing as act of his renders such performance impossi-engineer any person who has not first obble, his conduct will be held to operate as a tained a permit from the boiler inspector, or complete excuse for non-performance, by the a license from the board of engineers, and other contracting party, of his covenant. providing for the appointment of such offi. The rule is especially applicable in cases of cers and for the punishment of violations mutual covenants conditioned upon each thereof, are regulations for the public safety, other, where the promise of the one party is which the city has a right to pass under a the consideration for the other. Rawson v. charter giving it power to regulate the Clark, 70 Ill. 655. In the case of Fleming carrying on of any dangerous business, to v. Gilbert, 3 Johns. 528, the rule, as stated, make provision for the inspection of steam was made to rest upon the salutary principle boilers, to license engineers using such "that he who prevents a thing being done, boilers, and to provide for the election or apshall not avail himself of the non-performance pointment of officers required by the charter he has occasioned.Where a party by his or authorized by ordinance. The court says: own contract creates a duty or charge upon The contentions made by defendant against the himself, he is bound to make it good if he validity of the ordinance in question seem to resolve

themselves into two points: First. That it is void may, notwithstanding any accident by in

because (as counsel put it) it violates the following evitable necessity, because he might have

provisions of the constitution of this State, piz.: Sec. provided against it by his contract. Thomp- tion 4, art. 2: “That all persons have a natural right kins v. Dudley, 25 N. Y. 272; Bunn v.

to life, liberty and the enjoyment of the gains of their

own industry." Section 30, art, 2: “That no person Prather, 21 II. 217; Adams v. Nichols, 19

shall be deprived of life, liberty or property without Pick. 275. But where the continued exist- due process of law." Section 53, art. 4: "Forbidding

the legislature to grant 'to any corporation, associaence of a specific thing is essential to the

tion or individual any special or exclusive right, performance of the contract, its destruction

privilege or immunity."" Second. That the ordior prevention from no fault of either party nance is also void because it authorizes the board of

engineers to examine applicants for licenses as en. operates as a discharge. Walker v. Tucker,

gineers, and to pass upon heir capacity, skill, ex. 70 Ill. 527. In this case, however, there

perience, and habits of sobriety, and hence is a dele. was po matter pleaded by the association in gation of legislative power, because the charter conjustification of its breach of the contract.

fers such power upon the mayor and assembly. The

mayor and assembly of the city of St. Louis are auNo enemy invaded the country, no act of thorized, by paragraph 6, $ 26, art. 3, to pass an ordi. God was pleaded as a sufficient ground or pance "to regulate or prevent the carrying on of any justification for non-performance of the con

business which may be dangerous or detrimental to

the public health, or the manufacture or vending of tract. Hence, the rule where one of the articles obnoxious to the health of the inhabitants," parties by his act puts it out of the power of etc. Paragraph 7, $ 26, art. 3, of the charter, author

izes the mayor and assembly, by ordinance, "to make provision

for the inspection of steam boilers and all steam beating apparatus, and to license engineers using steam boilers in said city." etc. Paragraph 8, $ 26, art. 3, of the charter, authorizes the mayor and assembly, by ordinance, "to regulate and provide for the election or appointment of city officers required by this charter, or authorized by ordinance, and provide for their suspension and removal," etc. Paragraph 14, $ 26, art. 3, of the charter, gives this additional authority: "Finally, to pass all such ordinances not inconsistent with the provisions of this charter, or the laws of the State, as may be ex. pedient, in maintaining the peace, good government, health and welfare of the city,” etc. Such a para. graph is usually termed a “general welfare clause." Section 1648 et seq., Rev. Ord. 1892, ch. 41, provides for the appointment of two persons, one of them a practical mechanical engineer, and one a manufact. urer of engines, both of at least five years' experience in business, who, in connection with the other two, constitute a board of engineers. Provision is also made for the inspection of boilers, etc. Section 1650 provides for meetings of the board, a secretary, and records of the meetings to be kept, and for weekly meetings of the board to examine into the qualifications of applicants for engineers' licenses. A majority of the board constitutes a quorum. The secretary is required to keep a register of the names of all ap. plicants, designating those found qualified and those not qualified. The ordinance then provides as follows: “Said board shall grant certificates of li. censes for one year from date thereof, to all applicants who, upon examination, shall have the capacity, skill, experience and habits of sobriety requisite to per. form the duties of an engineer, and no person posses. sing such qualifications shall be refused a license." Section 1652 allows owners of steam boilers of quite a small capacity, used for heating only, to apply for a permit to employ a competent person, etc., not a licensed engineer; and if recommended by two citi. zens, etc., and if found competent by the inspector of boilers and elevators, the permit is required to be granted. This section then goes on to provide for the punishment of persons who violate the provisions aforesaid. So that it will be seen that abundant provision exists in the charter of the city for the enact. ment of the ordinances aforesaid. And there is no delegation of legislative power, because the board of engineers is required to examine the applicants for licenses as engineers. It would be contrary to the above-cited provisions of the charter for the mayor and assembly to attempt to examine into the quali. fications of applicants for the positions of licensed engineers. On the contrary thereof, the charter provides for the election or appointment of city officers authorized by charter or ordinance, and to such are deputed duties other than legislative. Nothing is more common than for the proper men or boards to be appointed, whose duty it is to examine applicants for licenses to various avocations or professions; and the fact that some degree of discretion is necessary in order properly to examine the qualifications of the applicants, and to discharge the duties of examiners, has never before been esteemed the delegation of legislative power. Such ordinances and examinations thereunder, are in the nature of police func. tions. In City of St. Louis v. Knox, 74 Mo, 79, a similar ordinance was held valid, requiring application for a license for the sale of horses, etc., to be made through the board of police commissioners. So, also, in City of St. Louis v. Weitzel, 130 Mo. 600, 31 S.

W. Rep. 1045, a similar ordinance was upheld which required that an applicant to the collector for license to haul garbage should first furnish to such collector a certificate of a certain character from the board of health. Nor is it true that in the case at bar the granting or withbolding of such license rests in the whim or caprice of the board of engineers, since the ordinance, in express terms, provides that "no person possessing such qualifications shall be refused a license.” Even without such provision, if the board of engineers abused its discretion, and refused, with: out reason, to make the appointment, mandamus would lie to compel it to perform its duty. City of St. Louis v. Weitzel, supra. Numerous instances occur in our statutes where physicians are required to be examined before being licensed (Rev. $t. 1899, $ 6871); where lawyers must be examined before ob. taining licenses; dentists (section 6889); druggists (section 4614); embalmers (Acts 1895, p. 174, $ 6). In relation to the licensing of dentists, this court recogo nized the validity of the statute. State v. Fisher, 119 Mo. 344, 24 S. W. Rep. 167. With regard to doctors, this court has sustained the legal force and effect of the statute. State v. Hathaway, 115 Mo. 36, 21 S. W. Rep. 1081. We take judicial notice of the dangers id. cident to the operation of steam engines and boilers when in inexperienced and unlicensed hands, and have no doubt as to the power of the city to take such measures as have been taken to provide by ordinances for the public safety. Such ordinances as the afore. said merely prescribe regulations for the orderly con. duct of a very necessary, and, if neglected, a very dangerous, business, in the large centers of popula. tion. The objection taken, and properly taken, to the ordinance in Radecke's Case, 49 Md. 217, where the engine was "to be removed after six months' notice to that effect from the mayor," was that it did not prescribe regulations, nor profess to do so, but, as said by the court in that case, "committed to the unrestrained will of a single public officer, the power to notify every person who then employed a steam eu. gine in the prosecution of any business in the city of Baltimore to cease to do so, and, by providing com. pulsory fines for every day's disobedience of such notice and order of removal, rendered his power over the use of steam in that city practically absolute, so that he might prohibit it altogether.” There is no such ordinance in this case. The rights of every one entitled to a license as an engineer are fully protected and sedulously guarded.


47 N. E. Rep. 242, decided by the Supreme Judicial Court of Massachusetts, it appeared that certain notes of several parties, while in the hands of a common agent, who was insolvent, for sale of each of the owners, were fraudu. lently pledged by such agent to secure his own debt, and the pledgee, being a bona fide holder for value, without notice, collected sufficient thereof to satisfy such debt. It was held that the liability of the several parties as between themselves to contribute was not affected by the fact that the notes were pledged and became due and were collected at different times, or that some were paid

only in part, or not at all, where they were DAMAGES BY ELECTRIC LIGHT PLANT-PARall pledged to secure the same indebtedness. TIES. –The Supreme Court of Illinois decides It was further held that an owner of notes so in Hyde Park Thomson-Houston Electric collected by a pledgee is entitled to contribu- Light Co., v. Porter, 47 N. E. Rep. 206, that tion by those whose notes, though pledged to where an electric light plant, operation of secure the same indebtedness, remain wholly which must permanently injure adjacent or partly unpaid. The court said:

premises, is constructed and tested by one,

and then sold by him to and operated by anThe Potter-Lovell Company, a corporation, held certain notes of the plaintiffs for sale and it was to

other, suit for damages, past and future, may remit to them the proceeds, less its commissions for be maintained against either or both, though selling the same. The Potter.Lovell Company also

but ore recovery can be had. The court held notes of others of the defendants, which it had received from them for sale. Instead of selling the says: abovementioned notes for the benefit of the several In the decision of this case in the appellate court it makers, the company at different times wrongfully was well and properly said: "May one corporation and fraudulently pledged all of them to the Second construct what, by its operation, will inevitably inNational Bank as security for its own debts to said jure adjacent premises, and then sell out to a succes. bank, all the notes being pledged for the same debts. sor, who shall, because it did not build the construc. The bank, being a bona fide holder for value, without tion which creates damage only by being operated, be notice, collected enough of these notes from time to rid of liability for its injurious operation of the thing time as they fell due, including the notes of the plaint. built? We do not understand the law to be that way. iffs and some others, to satisfy its claims against the The damages may have bad their inception when tbe Potter-Lovell Company. All of the various parties plant was first constructed, and during the month or whose notes were thus fraudulently pledged stood on two of its practical operation prior to appellant's pur. the same footing, except that the notes were pledged chase of it, and it might be that the statute of limita. at different times, and fell due and were collected at tions would have begun to run, as in the case of Rail. different times; and except that one of the parties- road Co. v. McAuley, 121 Ill. 160, 11 N. E. Rep. 67; the North Star Boot & Shoe Company-demanded the but the jury specially found, what we regard the evi. return of its note from the Potter-Lovell Company be. dence as supporting, that no permanent injury, to an fore the same was pledged, and has never paid the appreciable degree, of the kind complained of, oc. same, in whole or in part, to the bank. These differ- curred during that period of time. It was not the ences do not vary the equitable rights and liabilities erection of the building itself, nor the mere putting of the parties as among themselves. The liability to into it of machinery, which gave the right of action; contribute does not depend on a contract between the but it was from its operation, whereby dirt, dust, parties who are held liable to contribute, and is not ashes, etc., were cast upon plaintiff's premises, and affected by the fact that notes were pledged and fell jarring and vibrating produced, that the damages endue and were paid at different times, or that some of sued." them were paid only in part, or not at all. The notes There is no want of evidence in the record to show were all pledged to secure the same indebtedness. that, through the operation of the plant by the deThe fact tbat some of them fell due at earlier dates fendant, soot, smoke, steam, ashes, and cinders have than others creates no equity in favor of those which been cast upon plaintiff's property. This, in connecfell due last. See American Loan & Trust Co. v. tion with the jarring and vibrating resulting from the Northwestern Guaranty Loan Co., 166 Mass. 337, 14 operation of the plant, has materially damaged the N. E. Rep. 340. The various parties selected & plaintiff's property; and, in our opinion, under the common agent, and this agent used its power to place facts as they appear in the record, the action was them all under a common liability, thus virtually properly brought against the appellant company. making them all sureties for itself. It may be that, We have, however, been referred by counsel in his under such circumstances, the pledgee would prefer argument to Railroad Co. v. Maher, 91 II). 312; Rail. to hold one and exonerate anotber, and it would have road Co. v. Loeb, 118 Ill. 203, 8 N. E. Rep. 460; Railpower to do so in the first instance by proceeding to road Co. v. McAuley, 121 Ill. 160, 11 N. E. Rep. 67; collect of one, but not of another. But where several and Wood, Lim. 371, as authorities holding that but different parties have thus been exposed to logs by one action can be maintained for permanent injuries the fraud of their common agent, it is more equitable in a case of this character, and that must be brought that the burden of the loss should be shared pro rata. against the party who erected the plant. In the first Under such circumstances equality is equity, without case cited, one Maher owned a lot on the Chicago respect to the time of the maturity of the notes. The river, valuable for dock purposes. The railroad comdemand by the North Star Boot & Shoe Company for pany erected a pier in the river, which resulted in a the return of its note was also immaterial. It was no permanent damage to Maher's property. Several more fraudulent to pledge this note after such de- years after the erection of the pier Maher sold the mand than it would have been to pledge it before a property to his wife, and she brought an action to re. demand. All the notes being pledged as security for cover for the damages resulting to the property by the same indebtedness, the whole loss in consequence the erection of the pier while the property was owned thereof is to be borne by all the makers in proportion by her husband, and it was held, where an injury is to the amounts of the notes so pledged. Gould v. caused to real estate by a cause of a permanent char: Trust Co., 6 Abb. N. C. 381; New England Trust Co. acter, after wbich the owner of the property so inv. New York Belting & Packing Co., 166 Mass. 42, 43 jured conveys the same to another, his grantee cannot N. E. Rep. 928, and cases there cited; Wiggin v. In- maintain an action for the continuance of the cause of surance Co., 18 Pick. 145, 153; Warner v. Morrison, 3 the injury, although the former owner may not have Allen, 566; 1 Story, Eq. Jur. sec. 493.

brought any suit for the original injury. It is mani. in part:

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fest the decision in that case cannot control here. result from their publication. The court said
There the damages accrued to Maher. The right of
action was in him, and he could not transfer it by
deed. In the next case cited (Railroad Co. v. Loeb), But plaintiffs' counsel contends that even though
following the Maber Case, it was held, where private the language complained of is not actionable per se,
lots in a city are physically damaged or injured in an 1 is not made so by the innuendoes, yet it becomes
value by the construction and operation of a railroad actionable by reason of the allegation of special dam.
in close proximity thereto, along a public street, the age. We do not agree to so broad a statement of the
right of action, if any exists, is vested in the owner of law as pertaining to libel and slander; for, while it is
the lots immediately upon the construction of the undoubtedly true that all words in their nature de.
road, to recover for all damages, past and present, famatory are actionable if a special damage follows,
and future, and a subsequent grantee of the lots can- yet this is not true with regard to words which are
not maintain an action at all for the proper use and not in their nature defamatory. In Fanning v.
operation of the road after his purchase. În Railroad Chase, 17 R. I. 388, 22 Atl. Rep. 275, it was contended
Co. v. McAuley, 121 III. 160, 11 N. E. Rep. 67, follow- by the plaintiff that language charging him with the
ing the doctrine of the Loeb Case, it was held that intention of starting a house of ill-fame, by reason of
where the injury to land was of a permanent char- which he sustained special damage, was actionable.
acter, so that the damages inflicted are permanent, a But this court held that, as the words relied on were
recovery not only may, but must, be bad for the en: not defamatory, they were not actionable. In Ter.
tire damages in one action; and such damages accrue williger v. Wands, 17 N. Y. 57, Strong, J., states the
from the time the nuisance is created, and from the law as follows: "It would be highly impolitic to bold
time the statute of limitations begins to run. The all language wounding the feelings and affecting un.
same doctrine is announced in Wood, Lim. But there favorably the health and ability to labor of another a
is such a wide difference between this case and those ground of action, for that would be to make the right
cited that the authorities do not control the case un. of action depend often upon whether the sensibilities
der consideration. Here the action was brought by of a person spoken of are easily excited or otherwise,
the owner of the property damaged at the time the his strength of mind to disregard abusive, insulting
plant was erected and placed in operation. The stat. remarks concerning him, and his physical strength
ute of limitations had not run, and he sought to re- and ability to bear them. Words which would make
cover the entire damage to his property, present, past, hardly an impression on most persons, and would be
and future. Upon looking into the record, it will be thought by them, and should be by all, undeserving of
found that the jury, by a special verdict, found, and notice, might be exceedingly painful to some, occa-
the finding is sustained by the evidence, that plaint- sioning sickness and an interruption of ability to at-
iff's property was not permanently injured by the tend to their ordinary avocations. There must be
erection and operation of the plant prior to the time some limit to liability for words not actionable per se,
the plant was turned over to the defendant. But, if both as to the words and the kind of damages, and a
it was otherwise, we would not be inclined to hold

clear and wise one has been fixed by the law. The that plaintiff could not recover. As said before, the words must be defamatory in their nature, and must plaintiff's damages arise from the operation of the in fact disparage the character; and this disparageplant, and the appellant cannot relieve itself of liabil. ment must be evidenced by some positive loss arisity from the fact that the plant may have been erected ing therefrom directly and legitimately as a fair and and placed in operation by anotber party

natural result. In this view of the law words which pellant acquired the plant, and placed it in operation, do not degrade the character do not injure it, and cau. the adjoining owners, who were damaged, and who not occasion loss." In Cooke's Law of Defamation had received no compensation for the damages they (page 24) it is said: “In order to render the consehad sustained, were entitled to sue either the party quences of words spoken special damage, the words wbo erected the plant or the one who operated it, or must be in themselves disparaging; for, if they be inboth, as they might elect, but there could be but one nocent, the consequence does not follow naturally recovery.

from the cause." In Kelley v. Partington (5 Barn. &
Adol. 650), which was an action of slander, wherein

special damage was alleged, Littledale, J., said: “I LIBEL-What CONSTITUTES—SPECIAL DAN

cannot agree that words laudatory of a party's con: AGES.-In Reid v. Providence Journal Co., duct would be the subject of an action if they were 37 Atl. Rep. 637, decided by the Supreme

followed by special damage. They must be defama

tory or injurious in their nature. In 2 Com. Dig., tit. Court of Rhode Island, it was held that a

'Action on the Case for Defamation,' D. 30, it is said publication that describes a fire in plaintiff's generally that any words are actionable by which the building, and also refers to two previous fires

party has a special damage; but all the examples

given in illustration of that rule are of words defama. in the same building, and closes with words

tory in themselves, but not actionable, because they as follows: “Every fire in this building has do not subject the party to a temporal punishment. started on the upper floor, and twice in Reid's

In all the instances put, the words are injurious to the

reputation of the person of whom they are spoken." printing establishment,” contains no defama. Taunton and Patteson, JJ., were of the same opinion. tory language, and is not susceptible of mean- This decision was subsequently approved and adopted ing to charge plaintiff, Reid, the owner of in Sheahan v. Ahearne, 9 Ir. R. C. L. (412. The con

flict of authority which has arisen as to whetber the the printing office suing for libel, with incen

words must be in their nature defamatory, in order diarism. It was further held that one is not to be actionable, when a special damage is alleged, it liable for the publication of words not in their more seeming than real, and has mainly arisen from s nature defamatory, though special damages

difference of understanding as to what constitutes de
famatory words; and a careful examinatiou of tbe

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