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cases which hold in general terms that any words by time he has a right to have the contract kept which a person suffers a special damage are actionable will show that the words were in fact defamatory. See

open as a subsisting and effective contract. Moore v. Meagner, 1 Taunt, 39, “No general rule Its unimpaired and unimpeached efficacy can be laid down," as said by Mr, Orgers in his valu. may be essential to his interests." Anson able work on Libel and Slander,"stating absolutely and

endorses the latter reasoning because it beforehand what words are defamatory and what are not." "Words which would seriously injure A's rep

would seem needless to imply a promise in utation might do B's no harm." "Each case must be order to give the plaintiff a right of action. decided on its own facts." We think it may be safely

A contract is a contract from the time it is said that any words, if false and malicious, imputing conduct which injuriously affects a man's reputation,

made, and not from the time that performor which tends to degrade bim in society, or bring ance of it is due; if this is so, it is needless him into public hatred and contempt, are in their na

and clumsy to introduce into every contract ture defamatory, and either actionable per se or may be made actionable by proper innuendoes, or by al. an implied promise that, up to a certain period leging and proving special damage, and that words of its existence, it shall not be broken."!4 which are not in their nature defamatory, while per.

The leading cases illustrating the principle haps, if false and malicious, and if used by a person who knows, or ought to know, that special damage

are where A engaged B to act as his courier, will follow, and such damage does in fact follow, the employment to commence three months an action on the case may be maintained, whatever the nature of the words (Odgers, supra, 88.91; Young

from that time, but two months before the v. McRae, 3 Best & S. 264; Lynch v. Knight, 9 H. L.

service was due be notified B that he would Cas. 589), yet cannot be made the basis of an action not require his services, and where A prom. for libel or slander.

ised to marry B upon his father's death, but during his father's life-time renounced the

agreement. In both cases it was held that RECENT PHASES OF CONTRACT LAW.


In the different text books four qualifica. FORE PERFORMANCE.

tions or limitations to this rule are stated, viz. : The parties to an executory contract have 1. The renunciation must be distinct and a right to something more tban that it shall | unequivocal; a mere expression of intention be performed when the time arrives ; they not to perform is not enough. "No precise have a right to the maintenance of the con

form of words was necessary

the obtractual relation up to that time, as well as to ligation of the contract being created a de. the performance of the contract when due, nial of its existence was equivalent to a reand if one of the parties renounces it before fusal to allow her to enter upon the service. that time, the other is entitled to sue at once * The sole inquiry is whether he has for the breach. In the leading English case, done an act inconsistent with the supposition the court based the doctrine on the ground that the service continues.'!8 that, “where there is a contract to do an 2. The renunciation must cover the entire act on a future day, there is a relation con- performance to which the contract binds the stituted between the parties in the meantime promisor.' Thus where & landlord cov. by the contract, and they impliedly promise enanted to repair the premises at a certain that in the meantime neither will do anything period of the tenancy, and before that period to the prejudice of the other inconsistent arrived he repudiated the covenant, and the with that relation.” In a later case, Cock- tenant at once claimed damages for the burn, C. J. stated a different reason for the breach, it was held that the contract was the rule, as follows: “The promisee has an in

whole lease and that the anticipatory breach choate right to the performance of the bargain which becomes complete when the time 4 Apson Contr. 291. for performance has arrived. In the mean- 5 Hochester v. Delatour, 2 El. & Bl. 678.

8 Frost v. Knight, L. R. 7 Ex. 114; Kurtz v. Frank, Lawson Contr., $ 440 and cases cited; Windmuller 76 Ind. 594, 40 Am. Rep, 275; Burtis v. Thompson, V. Pope, 107 N. Y. 674; Kurtz v. Frank, 76 Ind. 594; 42 N. Y. 246, 1 Am. Rep. 516. Kennedy v. Rodgers (Kas.), 44 Pac. Rep. 47; Davis v. 7 Lawson Contr., $ 440 and cases cited; Hosmer v, Grand Rapids Co. (W. Va.), 24 S. E. Rep. 630. This is Wilson, 7 Mich. 294, 74 Am. Dec. 716; Zuch v. Mc. the law of England and of all the States except Massa- Clure, 98 Pa. St. 511; Vittum v. Estey (Vt.), 31 AU. chusetts. Daniels v. Norton, 114 Mass. 530, 19 Am. Rep. 144; Kilgore v. Baptist Church (Tex.), 37 S. W. Rep. 384,

Rep. 473, 898. 2 Hochster v. Delatour, 2 El. & Bl. 678.

8 Hosmer v. Wilson, 7 Mich. 294, 74 Am. Dec. 716. Frost v. Knight, L. R. 7 Ex. 114.

9 Auson Contr., $ 291; Lawson Contr., $ 440.


of a particular covenant in it did not entitle other words, need not mitigate the damages the tenant to sue. 10

by treating as final the premature repudia3. The contract must not be a unilateral tion.14 Thus in an Illinois case, the plaintone. A man, for example, may say to the iffs in December 15, 1880, sold to the deholder of bis note, “I am not going to pay it fendants to be delivered to them during when it is due,"' but until payment is refused the month of January, 1881, 100,000, basbels when it falls due, no legal right of the holder of barley. On the 16th, the day after the has been violated by the maker."}]

sale, the defendants notified plaintiffs that 4. If the promisee elects not to accept the they did not consider themselves bound by renunciation, and continues to insist on the the contract, and that they would not carry performance of the promise, the contract re- it out. It was held that the plaintiffs had a mains in existence for the benefit and at the right, notwithstanding such notice to wait risk of both parties, and if anything occur to until the day of delivery under the contract discharge it from other causes, the promisor arrived, and then resell it in the market a nd ma take advantage of such discharge.12 recover from the defendants the difference

Thus in Avery v. Bowden,13 A agreed with between the contract price of the barley and B by charter-party that his ship should sail its market price at the day it was to have to Odessa, and there take a cargo from B's been delivered. And that there was no duty agent, which was to be loaded within a cer- upon the plaintiff to sell the barley on the tain number of days. The vessel reached day of or a reasonable time after the notice, Odessa, and her master demanded a cargo, although by a sale at such time the damages but B's agent refused to supply one. Al- would have been greatly reduced, barley though the days within which A was entitled having gone down in price in the meantime. to load the cargo had not expired, his agent, 6. But after notice of such repudiation the the master of the ship, might have treated other party cannot go on and complete an this refusal as a breach of contract and sailed executory contract, and then sue for the full away. A would then have had a right to sue contract price or for any increased damages upon the contract. But the master of the caused by his continuing to perform. In a sbip continued to demand a cargo, and be- Vermont case, 17 the defendant agreed to fore the running days were out — before purchase of the plaintiffs five car loads of therefore a breach by non-performance had potatoes to be delivered as called for by him. occurred- a war broke out between England | After the first car load was received, potatoes and Russia, and the performance of the con- fell in price in the market and the defendant tract became legally impossible. Afterwards thereupon wrote to the plaintiffs not to purA sued for breach of the charter-party, but chase any more until they should hear from it was held that as there had been no actual bim. It was held that after they received failure of performance before the war broke this notice they had no right to purchase on out (for the running days had not then ex- the plaintiffs' account any more potatoes. pired), and as the agent bad not accepted the "While a contract is executory,” said the renunciation as a breach, B was entitled to court, “a party has the power to stop perthe discbarge of the contract which took formance on the other side by an explicit diplace upon the declaration of war.

rection to that effect by subjecting himself To these limitations I venture to add the to such damages as will compensate the other following:

party for being stopped in the performance 5. The repudiating party cannot force on bis part at that point or stage in the er. the other, nor is the other bound, to sue for ecution of the contract. The party thus a breach of the contract before the day fixed forbidden cannot afterwards go on and infor performance arrives, and have the damages assessed as of the time of the repudia

14 Kadish v. Youny, 108 111. 170, 48 Am. Rep. 548; tion. The party keeping the contract, in Davis v. Bronson (N. D.), 50 N. W. Rep. 836.

16 Kadish v. Young, supra.
16 Butler v. Butler, 77 N. Y. 472, 33 Am. Rep. 648

; 10 Id.

Davis v. Bronson (N. D.), 50 N. W. Rep. 836 Moline 11 Lawson Contr., $ 440.

1o. v. Beed (Ia.), 3 N. W. Rep. 96; City of Nebraskı 12 Lawson Contr., $ 440; Anson Contr., $ 290.

v. Coke Co. (Neb.), 2 N. W. Rep. 870. 13 5 EI, & Bl. 714.

17 Danforth v. Walker 37 Vt. 239, 40 Vt. 457.

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crease the damages and then recover such residence, but upon the rule contended for, increased damages of the other party.he would be obliged to have a house which he

This principle has been applied in several did not need and could not use. In all such cases to contracts of employment-the rule cases the just claims of the party employed being tbat an emplɔyer may order the discon- are satisfied, when he is fully recompensed tinuance of work which he has contracted for his part performance and indemnity for with or employed another to perform, subject his loss in respect to the part left unexeto proper compensation in damages to the cuted.” employee; but that the latter cannot then go 7. The rule in (6) has been held not to on with the work and recover the contract apply where the damages are not an adeprice.'8 In New York, 19 the defendant em- quate remedy for the breach, i. e., where the ployed the plaintiff to clean and repair cer- contract is a proper one for specific performtain pictures for an agreed price, but before ance. The plaintiff had agreed in writing the work was completed countermanded the with the defendant to support and maintain order. The plaintiff, however, went on and the father of the defendants during his natufinished the work and sued for the price agreed ral life for a specified sum per week; but after upon, claiming that the defendant could not performance bad commenced they notified countermand the order after the work was him not to continue performing his agreebegun. He recovered judgment wbich was ment as they would make no further payreversed on appeal, the court saying: “The ments. The plaintiff, nevertheless continued plaintiff was allowed to recover as though to furnish the maintenance, and in an action there had been no countermand of the order to recover the weekly payments after the noand in this the court erred. The defendant tice it was beld that the renunciation by the by requiring the plaintiff to stop work upon defendant was no defense. 20 the paintings, violated his contract and there- 8. An absolute promise to pay a certain sum by incurred a liability to pay such damages of money on the performance of a condition, as the plaintiff should sustain. Such dam- such as a promise to pay a subscription to ages would include a recompense for the some projected undertaking-cannot be withlabor done and materials used, and such fur- drawn by the promisor so to force the ther sum in damages as might, upon legal promisee to cease performance. Thus in principles, be assessed for the breach of the Buchel v. Lott, 21 the defendant with others contract; but the plaintiff had no right, by signed a subscription list intended as a bonus obstinately persisting in the work to make

to a company to construct a certain line of the penalty upon the defendant greater than railroad witbin a certain time. It was held it would otherwise have been. To hold that tbat the defendant could not withdraw bis one who employs another to do a piece of subscription, the court saying: "He became work is bound to suffer it to be done at all bound upon said contract the moment he events would sometimes lead to great injus- signed it for the amount subscribed by bim, tice. A man may hire another to labor for a subject only to the condition that the railyear, and within the year the situation may road should be constructed according to the be such as to render the work entirely use

John D. LAWSON. less to him. The party employed cannot per- University of Missouri. sist in working, though he is entitled to the damages consequent upon his disappointment. 20 Marsh v. Blackman, 50 Barb. 333. In Watson v. So if one hires another to build a house, and

Smith, 7 Oregon, 448, an agreement to support was subsequent events put out of his power to

held a proper one of which to decree specific performpay for it, it is commendable for him to stop 21 15 S. W. Rep. 413. See Davis V. Bronson, 50 N. the work and pay for what has been done and

W. Rep. 836.

22 This view of the case wouid not obtain, however, the damages sustained by the contractor.

in those jurisdictions where a subscription is held He may be under a necessity to change his to be without consideration until the party for

whose benefit it is made has done something-made 18 Davis v. Bronson (N. D.), 50 N. W. Rep. 836; contracts or incurred obligations for example-on Owen y. Frank, 24 Cal. 178; Lord v. Thomas, 64 N. Y. the faith of such subscription, and that until such 119; Dillon v. Anderson, 43 N. Y. 232; Butler y. But. time the promisor has a right to withdraw his sub. ler, 77 N. Y. 472, 33 Am. Rep. 648.

scription. See Lawson Contr., § 96. 19 Clark v. Marsiglia, 1 Depio, 317 43 Am. Dec. 670.







Supreme Court of Michigan, May 25, 1897. When the statute makes it a criminal offense to offer for sale any adulterated food, it is immaterial that the seller is ignorant of such adulteration.

LONG, C. J.: Respondent was convicted under an information charging that “on the 19th day of April, A. D. 1897, at the city of Monroe, and in the county aforesaid, Michael Snowburger did offer for sale, and sell, to Carl Franke, an adulterated article of food, to-wit, a quantity of mustard, to-wit, a quarter of a pound, colored and adulterated with tumerie, whereby the said mustard, as an article of food, was damaged, and its inferiority concealed, and whereby it was made to appear of better and of greater value than it really was, the same not being a mixture or compound recognized as ordinary articles or ingredients of articles of food, contrary to the form of the statute in such

made and

provided," etc. The information was filed under Act No. 193, Pub. Acts 1895, entitled "An act to prohibit and prevent adulteration, fraud and deception in the manufacture and sale of articles of food and drink.” Section 1 provides: “No person shall within this State manufacture for sale, offer for sale or sell any article of food which is adulterated within the meaning of this act.”' Section 2: The term 'food,' as used herein, shall include all articles used for food or drink or intended to be eaten or druok by man, whether simple, mixed or compound.” Section 3: “An article shall be deemed to be adulterated within the meaning of this act; One, if any substance or substances bave been mixed with it so as to lower or depreciate or injuriously affect its quality, strength or purity; two, if any inferior or cheaper substance or substances have been substituted wholly or in part for it; tbree, if any valuable or necessary constituent or ingredient has been wholly or in part abstracted from it; four, if it is sold under the name of another article; five, if it consists wholly or in part of a diseased, decomposed, putrid, infected, tainted or rotten animal or vegetable substance or article, whether manufactured or not, or, in case of milk, if it is the product of a diseased animal; six, if it is colored, coated, polished or powdered whereby damage or inferiority is concealed, or if by any means it is made to appear better or of greater value than it really is; seven, if it contains an added substance or ingredient which is poisonous or injurious to health; provided, that the provisions of this act shall not apply to mixtures or compounds recognized as ordinary articles or ingredients of articles of food, if each and every package sold or offered for sale be distinctly labeled as mixtures or compounds, and are not injurious to health." Section 19 makes any violation of the act a misdemeanor, and provides a penalty by a fine of not less than $100 por more than $500, or

by imprisonment in the county jail, etc. On the trial, respondent admitted that on the 19th day of April, 1897, he, at the city of Monroe, this State, offered for sale, and did sell, to Carl Franke. a quantity of mustard, to-wit, a quarter of a pound, which was afterwards found upon a chemical examination to be colored and adulterated with tumeric, whereby the said mustard as an article of food was damaged, and its inferiority concealed, and it was thereby made to appear of greater and better value than it really was; the same not being a mixture or compound recog. nized as an ordinary article or ingredient of articles of food. But he claimed that said article of mustard so sold was purchased by him as a pure article in good faith, and that he believed at the time of the purchase by him, and also at the time of the sale to the said Franke, that the same was pure mustard, free from any coloring and adulteration with tumeric or any other coloring or adulterant, and that no inferiority was concealed whereby it was made to appear of greater or better value than it really was; that, at the time he purchased the same, he asked for pure mustard, and that the same was warranted to him as pure; that he did not make or cause to have made a chemical examination of the same, and did not inform himself or endeavor to ascertain the methods of determining pure from impure mustards, but relied upon the representations of bis vendor and the appearance of the article to the eye; and that he did rot intend to violate the law. From such conviction, respondent appeals.

It is the contention of counsel for respondent that it was the intent of the legislature to provide by the act that no person should be convicted and punished for selling adulterated food or drink without showing that he knew the same to be adulterated; that the information does not charge such knowledge, and the proofs disclose that respondent acted in good faith, and in the belief that the article sold wai pure and unadulterated. The act cannot be 80 construed. The offense under the act consists in selling an article intended to be eaten or drunk which is adulterated. Section 8 of the act shows conclusively that the legislature did not intend to make criminal intent or guilty knowledge a netessary ingredient of the offense. As a rule, there can be no crime without a criminal intent, but this rule is not universal. In People v. Robs, 52 Mich. 577, 18 N. W. Rep. 365, the respondent convicted of the offense, under the statute, of keeping his saloon open on Sunday. It was there said: “It is contended that, to constitute an olfense under the section referred to (How. Apn. St. $ 2274), there must be some evidence tending to show an intent on the part of the respondent to violate it. * * * The action under whicb Roby is prosecuted makes the crime consist, not in the affirmative act of any person, but in ile negative conduct of failing to keep the salona closed. As a rule, there can be no crime without a criminal intent; but this is not by any means a

universal rule. One may be guilty of the high crime of manslaughter when his only fault is gross negligence, and there are many other cases wbere mere neglect may be highly criminal. Many statutes which are in the nature of police regulations, as this is, impose criminal penalties, irrespective of any intent to violate them; the purpose being to require a degree of diligence for the protection of the public which shall render violation impossible.” Many cases are cited in that case where convictions were sustained, although the element of guilty knowledge was lacking. Thus, in Massachusetts a person may be convicted of the crime of selling intoxicating liquor as a beverage, thougb he may not know it to be intoxicating (Com. v. Boynton, 2 Allen, 160); and of the offepse of selling adulterated milk, though ignorant of its adulteration. Com. v. Farren, 9 Allen, 489; Com. v. Holbrook, 10 Allen, 200; Com. v. Waite, 11 Allen, 264; Com. v. Smith, 103 Mass. 444. In Missouri a magistrate may be liable to the penalty for performing the marriage ceremony for minors, without consent of the parents or guardians, though he may suppuse them to be of the proper age. Beckham v. Nacke, 56 Mo. 546. Where the killing and sale of a calf under a specified age is prohibited, there may be a conviction, though the party be ignorant of the animal's age. Com. v. Raymond, 97 Mass. 567. In People v. Welch, 71 Mich. 548, 39 N. W. Rep. 747, this court, in speaking of People v. Roby, supra, said: “When a statute does not make intent an element of the offense, but commands an act to be done or omitted wbich, in the absence of the statute, might have been done or omitted without culpability, ignorance of the fact or state of things contemplated by the statute will not excuse its violation;" citing State v. Hartfiel, 24 Wis. 60. In the late case in this court of Wolcott v. Burlingame, 70 N. W. Rep. 831, the relator, as prosecuting attorney of the county, filed an information against one Fred Saunders, charging bim with being engaged in selling liquor without giving the bond required by the statute. The bood was fair upon its face, but one of the sureties, it appears, was disqualified, under section 2283d1. 3 How. Ann. St. The information did not allege that respondent had knowledge of this defect in the bond. The information was quashed by the court below, and the relator asked the aid of mandamus to compel the respondent to reinstate the case.

It was said by this court in the majority opinion: “It was the intention of the legislature to make the execution and delivery of the prescribed bond a condition precedent to sale, and to require the person desiring to engage in the business mentioned to assume all liability of knowing that the bond, when presented, complies in all the essential particulars with the law. He must know that his sureties are males; that they are resident freeholders of the township, village, or city, in which the business is to be carried on; that they bold none of the offices probibited by the act; and that, at the time the bond

is filed, neither is a surety upon more than two bonds required by the act." It appeared that one of the sureties was already upon more than two bonds, and the writ was granted, compelling the respondent to reinstate the case. The case of People v. Roby was cited in that case in support of the proposition that intent was not an ingredient of the offense. These regulations are under the police power of the State. Undoubtedly, it was competent for the legislature to prohibit the sale of adulterated articles of food and drink. The police power of the State extends to the protection of the health, as well as to the lives and property, of the citizens. Generally, it is for the legislature to determine what laws and regulations are needed to protect the public health and secure the public comfort and safety. If it passes an act ostensibly for the public health, and thereby destroys or takes away the property of the citizen or interferes with his liberty, it is for the court to determine whether it relates to and is appropriate to promote such public health. Under the police power, the conduct of individuals and the use of property may be regulated, so as to interfere to some extent with the freedom of the one and the enjoyment of the other. It cannot be doubted that the legislature intended by this act to protect the public against the harmful consequences of sale of adulterated food, and, to the end that its purpose might not be defeated, to require the seller, at his peril, to know that the article whicb he offers for sale is not adulterated. As was said by the Supreme Court of Ohio in State v. Kelley, 43 N. E. Rep. 163: “If this stat. ute had imposed upon the State the burden of proving

his knowledge of its adulteration, it would thereby have defeated its declared purpose." In State v. Smith, 10 R. I. 260, the court, in speaking of the offense of selling adulterated milk, said: “Counsel for defendant asked the court to charge that there must be evidence of guilty intent on the part of the defendant, and a guilty knowledge, in order to convict him. Our statute, in that provision of it under which this indictment was found, does not essentially differ from the statute of Massachusetts; and there, previous to the enactment of our statute, the supreme court had determined that a person might be convicted, although he had no knowledge of the adulteration, the intent of the legislature being that the seller of milk should take upon himself the risk of knowing that the article he offers for sale is not adulterated." Statutes in many States have been passed providing that whoever sells, or keeps or offers for sale, adulterated milk, or milk to which water or other foreign substance has been added, shall be punished, etc. Under these statutes, it has been decided many times that the risk is upon the seller of knowing that the article he offers for sale is not adulterated, and that it is not necessary in an indictment under such a statute to allege or prove criminal intent or guilty knowledge. Com. v. Smith, 103 Mass. 444; Com. v. Warren, 160 Mass. 533, 36 N.

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