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ment for a debt which he then contracted, ors of an insolvent, the limitation of time and this power was exercised by the cred for invoking relief against a preference does itor shortly before his bankruptcy. Among not begin to run until in some form they the acts of bankruptcy mentioned in § 3 of have received actual or constructive notice the act, one is defined as follows: Having of the transfer to the preferred creditor, and "sufl'ered or permitted, while insolvent, any this intent is reached by the declaration creditor to obtain a preference through le that in such cases the transfer constituting gal proceedings, and not having at least five the act of bankruptcy shall be held to date days before sale or final disposition of any from the time the instrument of transfer is property affected by such preference, vacated recorded, or the possession is taken, or noor discharged such preference.” In § 677 tice is otherwise brought home to the credit. (30 Stat. at l. 564, chap. 541, U. S. Comp. ors of the bankrupt.” The facts in this Stat. 1901, p. 3450), it is provided “that case were somewhat analogous in principle all levies, judgmients, attachments, or other to those in the case at bar. Other Federal liens obtained through legal proceedings decisions tend in the same direction. White against a person who is insolvent, at any v. Bradley Timber Co. 119 Fed. 989; Re time within four months prior to the filing Metzer Toy & Novelty Co. 114 Fed. 957; of a petition in bankruptcy against him, Re Edward W. Wright Lumber Co. 114 Fed. shall be deemed null and void in case he 1011; Re Sheridan, 98 Fed. 406. is adjudged a bankrupt, and the property af- Even though the proceedings by which fected by the levy, judgment, attachment, or the mortgagee obtained his lien three weeks other lien, shall be deemed wholly discharged before the filing of the petition were not proand released from the same,” etc. In § 67c ceedings in court, and not legal proceedings, (U. S. Conip. Stat. 1901, p. 3449), it is if the tern is construed narrowly, they were declared that “a lien created by or ob- proceedings to enforce his legal rights. If the tained in or pursuant to any suit or pro- present case is not covered by the decision ceeding, at law or in equity, including an in Wilson Bros. v. Nelson, 183 U. S. 191, 46 attachment upon mesne process or a judg. L. ed. 147, 22 Sup. Ct. Rep. 74, the principles ment by confession, which was begun upon which the two cases rest are very simagainst a person within four months before ilar. the filing of a petition in bankruptcy by or In § 3a (30 Stat. at L. chap. 541, 546, U. against such person, shall be dissolved by S. Comp. Stat. 1901, p. 3422), one of the the adjudication of such person to be a acts of bankruptcy mentioned is having bankrupt, if it appears that said lien was "transferred while insolvent any portion of obtained and permitted while the defendant his property to one or more of his creditors was insolvent and that its existence and en- with intent to prefer such creditors over forcement will work a preference," etc. In his other creditors.” In the same section, view of these and other provisions of the under “b,” the time for filing a petition act, it was decided in the case just cited founded on such an act of bankruptcy is that suffering and permitting the creditor within four months after “the date of the to obtain a preference through legal pro- recording or registering of the transfer or ceedings was an act of bankruptcy, by the assignment ... if by law such recordexpress provisions of the statute, irrespec- ing or registering is required or permittive of any active intent of the debtor atted, or, if it is not, from the date when that time to hinder, delay, or defraud his the beneficiary takes notorious, exclusive, or creditors, or to give a preference, and not continuous possession of the property, unwithstanding that the power of attorney to less the petitioning creditors have received confess judgment was given many years be- actual notice of such transfer or assignfore, and it was said that the preference ment.” could be avoided and the property recovered In view of these several provisions, and by the trustee. It was held that, in de the language of $$ 60a and 606 (30 Stat. termining the time of an alleged act of at L. 562, chap. 541, U. S. Comp. Stat. 1901, bankruptcy, it must be deemed to have oc- p. 3445), and the construction put upon curred when something open and notorious the statute by the Supreme Court of the was done affecting the debtor's estate. It is United States, we are of opinion that, in also said in the opinion that “the act of the case of a preference by way of an un1898 makes the result obtained by the cred recorded chattel mortgage, the transfer itor, and not the specified intent of the dates, under the bankruptcy act of 1898, debtor, the essential fact.” Under another and the amendatory act of February 5, 1903, clause of the statute the same distinction chap. 487 (32 Stat. at L. 797, U. S. Comp. is draw between this and the former act Stat. Supp. 1903, p. 409), from the acquisiin the case of Re Klingaman, 101 Fed. 691, tion of possession under the mortgage. where it is said that "the intent of this In Mathews v. Hardt, 79 App. Div. 570, section is to declare that, as against credit.' 80 N. Y. Supp. 462, the appellate division

of the supreme court of New York, in a well- Pippen v. Mutual Ben. L. Ins. Co. 130 N. considered opinion, made a decision which c. 23, 57 L. R. A. 505, 40 S. E. 822; New entirely covers the present case. The court Hampshire Mut. F. Ins. Co. v. Noyes, 32 N. held that the preference should be deemed H. 345. to have been obtained at the time when pos- The contract of insurance not being a session was taken, though the taking of pos- contract for necessaries, the plaintiff had a session was merely to effectuate an agree right to avoid it. ment made in good faith, and many months McCarthy v. Henderson, 138 Mass. 310; before the prohibited time for making the Dube v. Beaudry, 150 Mass. 448, 6 L. R. A. transfer.

146, 15 Am. St. Rep. 228, 23 N. E. 222; GilThe case at bar certainly falls within the lis v. Goodwin, 180 Mass. 140, 91 Am: St. spirit and reason of the statute as inter- Rep. 265, 61 N. E. 813; Walsh v. Young, 110 preted in these decisions. The reason for Mass. 396; Chandler v. Simmons, 97 Mass. the enactment, as it is interpreted, is well 514, 93 Am. Dec. 117; Bartlett v. Drake, illustrated by the fact that the mortgagor in 100 Mass. 174, 97 Am. Dec. 92, 1 Am. Rep. this case, less than four months before the 101; Gaffney v. Hayden, 110 Mass. 137, 14 proceedings in bankruptcy, made a state. An. Rep. 580; Horse v. Ely, 154 Mass. 458, ment to certain of his creditors and to com. 26 Am. St. Rep. 263, 28 N. E. 577; Nero mercial agencies that there was no encum- Hampshire Mut. F. Ins. Co. v. Noyes, 32 N. brance on his stock or fixtures,- ,-a statement H. 345; Union Cent. L. Ins. Co. v. Hilliard, which was literally true if we look only to 63 Ohio St. 478, 53 L. R. A. 462, 81 Am. St. the state of the title as against creditors, Rep. 614, 59 N. E. 230; Medbury v. Watbut wickedly false in its understood mean-rous, 7 Hill, 110; Monoghan v. Agricultural ing if the mortgagee, on the eve of the debt. F. Ins. Co. 53 Mich. 238, 18 N. W. 797. or's bankruptcy, could take all the debtor's The plaintiff can maintain her action property, and leave nothing for the other without putting the defendant in statu quo, creditors, who had trusted him because of or allowing anything for the expense of his possessions.

keeping the policy in force. Judgment for the plaintiff.

Morse v. Ely, 154 Mass. 458, 26 Am. St. Rep. 263, 28 N. E. 577; Pyne v. Wood, 145

Mass. 558, 14 N. E. 775; McCarthy V. Sarah S. SIMPSON, by Next Friend, Appt., Henderson, 136 Mass. 310; Dube v. Beaudry,

150 Mass. 448, 6 L. R. A. 146, 15 Am. St. PRUDENTIAL INSURANCE COMPANY Rep. 228, 23 N. E. 222; Walsh v. Young, OF AMERICA.

110 Mass. 300; Chandler v. Simmons, 97

Mass. 514, 03 Am. Dec. 117. (184 Mass. 348.)

Mr. Harlan P. Small, for appellee: 1. An infant is not bound by a contract

The policy was never repudiated by the of insurance upon his life.

plaintiff. 2. The insurer is not entitled to de

Ailes v. Boyden, 3 Pick. 213. duct the cost of carrying the policy

If an infant's appointment of an attorney from the premiums to be returned, in case of a repudiation by an infant of a contract is void, it is not easy to see how any act of insurance upon his life.

done by the attorney under the void power 3. Notice of rescission of a contract is etfectual.

for life insurance, and demand for re- Cassier's Case, 139 Mass. 458, 1 N. E. turn of premiums paid by an agent appointed 920; Burns v. Smith, 29 Ind. App. 181, 94 by the infant, is sufficient until avoided by Am. St. Pep. 268, 64 N. E. 94. the one making the appointment.

A life insurance policy is not strictly a (November 25, 1903.)

contract of indemnity. The insured obtains a right which may be assigned.

Joyce, Ins. $$ 2, 26; Mutual L. Ins. Co. v. Superior Court for Hampden County in favor of defendant in an action brought to Allen, 138 Mass. 24, 52 Am. Rep. 245. recover the premiums paid upon a contract

The contract is executory as to the insurof life insurance. Reversed.

er so long as it is held against the happen. The facts sufficiently appear in the

ing of the contingency insured against; it is opinion.

executed by the insured so far as he has Mr. N. P. Avery, for appellant:

paid the premiums or performed other A contract of insurance, made by an

duties. infant, is not a contract for necessaries.

New York L. Ins. Co. v. Statham, 93 U.

S. 24, 23 L. ed. 789; Cohen v. New York Note.—On the question of insurance on the Mut. L. Ins. Co. 50 N. Y. 610, 10 Am. Rep. life of a minor, see also O'Rourke v. John Hancock Mut. L. Ins. Co. 57 L. R. A. 496, and


It is substantially the purchase by the in

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sured from the insurer of a reversionary If the contract was beneficial to the plaininterest for a present sum of money.

tiff she cannot recover. Biddle, Ins. $ 4.

A contract of insurance is beneficial. The relation between the parties to this Clements v. London & N. W. R. Co. (1891) action was very similar to that existing be- 2 Q. B. 482. tween a lessor and an infant lessee in pos. session. It is clear that the latter cannot Morton, J., delivered the opinion of the be held to perform the obligations of the court: lease which accrue after he has elected to The plaintiff in this case is a minor, and disaffirm it, but, on the other hand, he can brings this action, by her next friend, to renot, “after a period of possession and enjoy- cover the premiums paid by her on a life ment, repudiate the lease and recover back insurance policy issued to her by the dewhat he has paid.

fendant. The case was heard upon agreed Holmes v. Blogg, 8 Taunt. 508; Corpe v. facts, and judgment was ordered for the deOverton, 10 Bing. 252; Blake v. Concannon, fendant, and the plaintiff appealed. The Ir. Rep. 4 C. L. 323; Valentini v. Canali, L. policy was what is termed a twenty-year enR. 2-4 Q. B. Div. 166.

dowment policy, for $500; and the agreed There is a great practical difference be- facts state that there was no fraud or untween protecting

infant defendant due influence practised upon the plaintiff against his improvident promises to pay, on by the defendant or its agents, and that the the one hand, and, on the other, encourag- contract was a reasonable and prudent one ing him to act as the aggressor in demolish- for a person in the plaintiff's situation and ing completed transactions. Public policy condition in life.

Before the action was and the best interests of minors themselves brought, the plaintiff, through her attorney, have recognized this distinction.

had notified the defendant that she reChicago Hut. Life Indemnity Asso. v. pudiated the policy and the contract conHunt, 127 Ill. 257, 2 L. R. A. 549, 20 N. E. tained in it, and demanded a return of the 55; Rice v. Butler, 160 N. Y. 578, 47 L. R. sums she had paid as premiums. The A. 303, 73 Am. St. Rep. 703, 55 N. E. 275. premiums paid amounted to $54, and it is

The legal defense of infancy is not in agreed that the expense to the defendant of tended to be a probibition of contracting, keeping the policy in force was $28.72. The but a shield against improvident contracts. defendant contends that this should be deStone v. Dennison, 13 Pick. 1, 23 Am. Dec. ducted froni,

set off against, the 654: Bartlett v. Cowles, 15 Gray, 445; Wil. premiums, if the plaintiff is allowed to rehelm v. Hardman, 13 Md. 140.

cover for them. A minor cannot recover back payments

It is manifest, we think, that, however made by him as compensation for a risk as

reasonable and prudent it may be for an insumed by another for his benefit.

fant to take out a policy of life insurance, Breed v. Judd, 1 Gray, 456; Heath v.

it does not come within the class of necesStevens, 48 N. II. 251.

saries, or within the class of contracts which Rev. Laws, chap. 118, $ 73, line 30, clear- nave been held, as matter of law, to be ly contemplates the insurance of minors.

beneficial to, and therefore binding upon, an

infant. As the protection of infancy is by force of

It is only when the contract comes the common law, it may be taken away by within the class of contracts which, as matstatutory enactment if the language of the ter of law, are binding upon an infant, that statute implies that minors might be bound

the question of its reasonableness and as well as others.

prudence is material. Tupper v. Caducll,

12 Met. 559, 46 Am. Dec. 704. French v. Marshall, 136 Mass. 564. Where a contract of insurance is free from having been executed, in part, at least, the

The defendant contends that this contract fraud, and has been wholly partly executed

plaintiff cannot recover without making the both sides, and is fair and defendant whole for the expense to which it reasonable except that what the minor paid has been subjected. But that would be was in excess of the value and of what he compelling the plaintiff to carry out, to received, he can only recover such excess.

that extent, a contract which is not binding Johnson v. Northucstern Mut, L. Ins. Co.

on her, and which she may avoid. Al orse 56 Minn. 365, 26 L. R. A. 187, 45 Am. St. v. Ely, 154 Mass. 158, 26 Am. St. Rep. 26:3, Rep. 473, 57 N. W. 934, 59 N. W. 992; 28 N. E. 577. It is well settled in this Metropolitan L. Ins. Co. v. Bowser, 20 Ind. commonwealth, whatever may be the law App. 557, 50 N. E. 86; Hedden v. Griffin, elsewhere, that, in order to avoid a con136 Mass. 229, 49 Am. Rep. 25; Nash v.tract, an infant is not obliged to put the Minnesota Titie Ins. & T. Co. 163 Mass. 583, other party in statu quo. Gillis v. Good. 28 L. R. A. 753, 47 Am. St. Rep. 489, 40 N. win, 180 Mass. 140, 91 Am. St. Rep. 265, 61 E. 1039.

N. E. 813, and cases cited; White v. Neu





Bedford Cotton Waste Corp. 178 Mass. 20, the opinion that the appointment of 59 N. E. 642.

agent for the purpose of giving notice of The defendant further contends that there rescission and making a demand was not has been no rescission because the notice such an act, under the circumstances of this and demand were made by an attorney, and case, as could be held, as matter of law, to an iniunt cannot appoint an agent or at- be prejudicial to the plaintiff, and theretorney, and the authority of a piochein ami fore void, but that it was, at the most, only is only commensurate with the writ. Cas- voidable; and therefore the notice and desier's Case, 139 Mass. 458, 1 N. E. 920; mand, until avoided by the plaintiff, would Miles v. Boyden, 3 Pick. 213; Burns v. be sufficient. Whitney v. Dutch, 14 Mass. Smith, 29 Ind. App. 181, 64 N. E. 94; 1 Am. 457, 7 Am. Dec. 229; Towle v. Dresser, 73 & Eng. Enc. Law, 2d ed. p. 940. If we as. Me. 252. sume that the bringing of the action did not Judgment reversed and judgment for the of itself constitute all the rescission and de- plaintiff. mand that was necessary, then we are of






Joseph SKINN et al., Piffs. in Err., with a dangerous and infectious disease. Re

versed. Gottlieb REUTTER et al.

The facts are stated in the opinion.

Messrs. Black & Dolan, for plaintiffs (........Mich...... .)

in error:

The damages sustained by the plaintiffs 1. Liability of

who knowingly

are the direct and natural results of a sells animals infected with infectious disease, for the death of sound breach of duty that the defendants owed to animals belonging to a subsequent purchaser, them, and no question of privity of conwhich contract the disease from them, is not tract is involved. destroyed by the intervention of an inter

Webb v. Portland Mfg. Co. 3 Sumn. 192, mediate owner of the animals, where the latter did not know of the disorder, and was,

Fed. Cas. No. 17, 322. therefore, not a wrongdoer.

A person may be liable as a wrongdoer: 2. One selling hogs known to be in- (1) By actually doing to the prejudice of fected with dangerous and

in another something he ought not to do; (2) fectious disease commits a wrong imminently dangerous to human life, within this by doing something he may rightfully do, rule that one guilty of such an act may be lia- but wrongfully or negligently doing it by ble for injury to life or property thereby such means, or at such time, or in such mancaused, even to persons not immediately con- ner, that another is injured; (3) by neg.

nected with the transaction. 8. The infection of sound hogs, with do, whereby another suffers injury.

lecting to do something which he ought to which they are innocently placed by a remote purchaser, is a legal consequence of the sale, Cooley, Torts, p. 64. as sound, of animals suffering from an


A person is liable who permits his disfectious disease, so as to render the seller lia- eased cattle to trespass upon the lands of ble for the resulting loss.

another, even if he is unaware of the dis

eased condition of such cattle. (November 17, 1903.)

Barnum v. Vandusen, 16 Conn. 200; HerERROR to the Circuit Court for Ingham Ticketici Gary, 83 m, 85; Faton v. Winnie,

County to review a in 20 Mich. , 4 Am. Rep. 377. of defendants in an action brought to recover The owner of animals affected with a conthe value of hogs alleged to have been lost tagious disease has no right to bring them through defendants' selling animals infected in contact with other animals.

NOTE.- For a case in this series very similar Co. v. Cooper, 5 L. R. A. 612 ; Heizer v. Kingsto the one above, holding that the sale of a land & D. Mfg. Co. 15 L. R. A, 821 ; Schubert v. horse known to be infected with a contagious J. R. Clark Co. 15 L. R. A. 818 ; Craft v. Parker, disease, to one who is ignorant of the fact, will W. & Co. 21 L. R. A. 139, and note; Lewis v. render the seller liable to a third person who Terry, 31 L. R. A. 220 ; Smith v. Clarke Hardcontracts the disease from the horse, see State ware Co. 39 L. R. A. 607; Wise v. Morgan, 44 use of Hartlove v. M. Fox & Son, 24 L. R. A. L. R. A. 548; Tyler v. Moody, 54 L. R. A. 417; 679.

Ives y Weiden, 59 L. R. A. 854; McCaffrey v. As to liability for injury to third persons gen- Mossberg & G. Mfg. Co. 55 L. R. A. 822; and erally by sale of spoiled or impure food, or other Huset v. J. I. Case Threshing Mach. Co. 61 km dangerous or defective articles, see Blood Balm R A. 303.

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Afills v. New York & H. R. Co. 2 Robt. Bishop. Non-Contract Law, $$ 141, 413-415, 326.

456, 457; 1 Shearm. & Redf. Neg. $ 36. Th sale of diseased animals, where the Whenever the common law, a statute, a vendor knows of the presence of the dis- municipal by-law, or any other law, imposes ease and fails to communicate his knowloon one a duty of a sort affecting the public edge to the purchaser, makes the vendor lia- within the principles of the criminal law, a ble for the damages resulting from the breach of it is indictable, and a civil action spread of the disease.

will lie in favor of any person who has sufFultz v. Wycoff, 25 Ind. 321; Jeffrey v. fered specially therefrom. Bigelow, 13 Wend. 518, 28 Am. Dec. 476;

Bishop, Non-Contract Law, § 131; Egbert Kemmish v. Ball, 30 Fed. 759. The intervention of an independent owner 260, 6 N. W. 654; Billings v. Breinig, 45

v. Greenwalt, 44 Mich. 245, 38 Am. Rep. between plaintiff and defendant was imma

Mich. 65, 7 N. W. 722. terial.

Messrs. L. B. Gardner and H. M. GardJohnson v. Spear, 76 Mich. 139, 15 Am.

ner, for defendants in error: St. Rep. 298, 42 N. W. 1092.

No liability grows out of a contract to The sale of the hogs to Robinson & Carrier was the proximate cause of the injury

one who is not, through some means, made complained of.

a party to it. McDonald v. Snelling, 14 Allen, 290, 92

Necker v. Harvey, 49 Mich. 517, 14 N.

W. 503. Am. Dec. 768; Smethurst v. Independent Cong. Church, 148 Mass. 261, 2 LR. A. sale of poisonous drugs through mistake for

The dynamite cases, so-called, and the 695, 12 Am. St. Rep. 550, 19 N. E. 387; Weick v. Lander, 75 Ill. 93; Vandenburgh

a harmless one, are exceptions to the rule. v. Truar, 4 Denio, 464, 47 Am. Dec. 268; bility is grounded is, that human life is im

The basis upon which such exceptional liaBinford v. Johnson, 82 Ind. 426, 42 Am. Rep. 508; Wellington v. Downer Kerosene Oil Co.

minently put in danger. 104 Mass. 64; Brewer v. Crosby, 11 Gray,

Watson, Damages for Personal Injuries, 29; Miller v. St. Louis, 1. M. & S. R. Co. p. 82; Thomas v. Winchester, 6 N. Y. 397,

57 Am. Dec. 455. 90 Mo. 389, 2 S. W. 439; Forney v. Geldinacher, 75 Mo. 113, 42 Am. Rep. 388; Bill

Negligence, to be actionable, must occur man v. Indianapolis, C. & L. R. Co. 76 Ind. in breach of legal duty, arising out of a con166, 40 Am. Rep. 230; Hill v. Winsor, 118 tract, or otherwise, owing to the person susMass. 251; Evans v. Fitchburg R. Co. 111

taining the loss.

Goodlander Mill Co. v. Standard Oil Co. Mass. 142, 15 Am. Rep. 19; Lowery v. Manhattan R. Co. 99 N. Y. 158, 52 Am. Rep. 12, 27 L. R. A. 583, 11 C. C. A. 253, 24 U. S.

Clute, 51 N. i N. E. 608 ; Scott v. Hunter, 46 Pa. 192, App. 7, 63 Fed. 400; Losee v. 84 Am. Dec. 542; Lee v. Union R. Co. 12

Y. 494, 10 Am. Rep. 638. R. I. 383, 34 Am. Rep. 668; Cooley, Torts,

The sale of hogs is through contract, and 68, 70, 76; Bailey v. Lay, 18 Colo. 405, 33 selves by a warranty inserted in the con

plaintiffs could have fully protected themPac. 407; White Sewing Mach. Co. v. Richter,

tract. 2 Ind. App. 331, 28 N. E. 446; Hughes v. McDonough, 43 N. J. L. 459, 39 Am. Rep.

Smith v. Green, L. R. 1 C. P. Div. 92; 603; Isham v. Dow, 70 Vt. 588, 45 L. R. A. Rose v. Wallace, 11 Ind. 112; Joy v. Bitzer, 87, 67 Am. St. Rep. 691, 41 Atl. 585; Bal- 77 Iowa, 73, 3 L. R. A. 184, 41 N. W. 575; timore e P. R. Co. v. Reaney, 42 Md. 117;

Packard v. Slack, 32 Vt. 9.

Where one sells stock which is diseased at Scott v. Shepherd, 3 Wils. 403; Beauchamp v. Saginaw Min. Co. 50 Mich. 163, 45 Am. the time of sale the vendor is liable, if he Rep. 30, 15 N. W. 65; Hoyt v. Jeffers, 30 knows it, on the ground of fraud. Mich. 181; Griffin v. Jackson Light & P.

Rose v. Wallace, 11 Ind. 112. Co. 128 Mich. 653, 55 L. R. A. 318, 92 Am.

If the injury is of a nature falling on the St. Rep. 496, 87 N. W. 888; Smith v. Baker, entire community, and individuals suffer 22 Blatchf. 240, 20 Fed. 709; Johnson v.

from it only as others do, they can mainChicago, M. & St. P. R. Co. 31 Minn. 57, 16 tain no action against the wrongdoer, even N. W. 488; Henry v. Dennis, 93 Ind. 452, should it in a degree casually press more 47 Am. Rep. 378; Mount v. Hunter, 58 111. heavy upon them than upon others. 246; Clark v. Lebanon, 63 Me. 393; Rich v.

Bishop, Non-Contract Law, $ 71; Shearm. New York C. & H. R. R. Co. 87 N. Y. 382; & Redf. Neg. § 13a; Taylor v. Lake Shore Thomas v. Winchester, 6 N. Y. 397, 57 Am. & M. S. R. Co. 45 Mich. 74, 40 Am. Rep. Dec. 455; Clark v. Chambers, L. R. 3 Q. B. 457, 7 N. W. 728; Wellington v. Downer Div. 327; Lynch v. Nurdin, 1 Q. B. 29; | Kerosene Oil Co. 104 Mass. 64.

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