Page:Harvard Law Review Volume 1.djvu/166

 ——The vendor sold 25,000 hedge plants to plaintiff and 57,000 to defendant, to be delivered at defendant’s place of business. The 82,000 were so delivered, and, without making any selection, defendant disposed of all of them. Plaintiff sues for the conversion of 25,000. Held — The action lies. “Where the property sold is a part of an ascertained mass of uniform quality and value, separation is not essential, and the title to the part sold will pass to the vendee, if such appears to be the intention of the parties.” Kingman v. Holmquist, 24 Rep. 332 (Kan.).

——A verbal agreement for an easement of light is probably within the 4th section of the Statute of Frauds; but whether it is or not, it will be enforced in equity after part performance. — McManus v. Cook, 35 Ch. D. 681.

———A contracted to paint and frame a portrait of two children for B. B refused to receive the portrait when completed. Held — The contract was not one for a chattel, but one for work and labor. “The whole value was to arise out of the work of the artist on materials of no particular value.” Turner v. Mason, 32 N. W. Rep. 846 (Mich.). The case is not in accord with the simpler English rule. Lee v. Griffin, 1 B. & S. 272.

——A was in the employ of B as general superintendent of B’s brick business, under a contract of service for no definite period. C, general manager of a railroad, by refusing to furnish B a side-track to his brick-yard (which C had previously promised to do) unless A was discharged from B’s services, procured A’s discharge. Held — C was liable to A in damages. The case cites and comments upon a number of the few cases upon this interesting tort. Chipley v. Atkinson, 1 So. Rep. 934 (Fla.).

——A father, desiring to make his daughter a present, bought $2,000 worth of bonds, but, at her request, kept them himself and remitted the interest to her. On his death, held — She cannot recover from the administrators. A gift is not complete without delivery of the res, and the Court will not make a valid trust out of an imperfect gift. Flanders v. Blandy, 24 Rep. 311 (Ohio).

——A bank at A sent to the bank at B a bill for collection. The bill was paid, the money mingled with the other money of the B bank, and, pending remittance, credit was given on the books for the amount. The banks had no mutual account. The B bank then went into the hands of a receiver, who asks the Court if he is to pay the A bank in full or pro rata with other creditors. Held — He shall pay it in full. “No difficulty whatever arises from the confusion of these moneys, any more than in every other case where the rightful owner is in pursuit of trust-funds. In such case the owner need not point out the very goods, or bills, or coin. He does all the law requires if he shows that the goods, or bills, or coin came to the hands of the defendant impressed with a trust to his knowledge. In every such case the holder must respond either in the article taken or its value.” Thompson v. Gloucester City Savings Institution, 24 Rep. 182 (N. J. Ch.). It seems difficult to support this decision on the principle of a trust. The Court admit that the trust-fund could not be followed after the confusion of the money. The assignee has the title to no specific thing into which the fund is known to have gone, and to which a trust can attach, Hence, one of the essential elements of a trust, viz., a res with reference to which the relation of trustee and cestui que trust can exist, is lacking, and the assignee took the property free from the trust. At the same time it does not follow that the creditors of the B bank are entitled to have property applied to the payment of their debts which was never intrusted to the credit of the bank, and property which, except for its peculiar nature, would have been held in the capacity of an agent simply. It is contrary to all equity that they should thus be enriched at the expense of others. This should have been the ground of the decision.

———A physician upon the stand as an ordinary witness refused to answer a question upon the ground that it was one involving expert evidence. Held — He must answer, though he was not called or paid as an expert. State v. Teipner, 36 Alb. J. 199 (Minn.).