Page:Harvard Law Review Volume 10.djvu/329

303 NOTES. 303 at the request of the New York Central. The defendants offered evi- dence to show that the New York Central was responsible for the failure to redeem the default on the bonds before it was too late, since the di- rectors of the Northern, under the Central's control, diverted earnings and refused profitable traffic in order to enable the Central to procure a foreclosure and purchase at the sale. For rejection of this evidence the Court of Appeals has ordered a new trial, reversing the judgment of the General Term of the Supreme Court (28 N. Y. Supp. 933). The decision is based on the theory that it is an attempt in equity to secure the benefits of a wrong. That the trustee might have brought the action of his own motion, an argument tlvat had weight below, is answered by say- ing that he might not and has not, so that the objection to the suit is not avoided. To afford protection here is eminently proper. Not only are the rights of minority stockholders involved, but also the rights of other holders of bonds. That the latter will be given their full legal rights, even though the defendants prove their case at the new trial, is not to be doubted. The interesting question is whether a solution of the difficulty, more satisfactory and just to all parties than a foreclosure by the trustee, will not be found. If the case is proved, the New York Central is guilty of a wrong, for which no recovery can be had at law because of their con- trol of the corporation. In the language of Mr. Morawetz it is " a con- spiracy to commit a breach of trust" (Vol. I, § 529), which has in part succeeded. Under such circumstances had benefits been received under a contract, or money been wrongfully diverted, restitution would be com- pelled. Why should not equity as well decree reparation for the wrong? The ground of recovery in either case is that things must be put /// statu quo. This would be a result as acceptable to bondholders as to stock- holders. The former would receive back-interest, be protected from the risk of loss incident to a sale, and would still have their investment. It is conceived that little difficulty would be found in getting the necessary parties before the court by amendment under modern rules of practice. The Way of the Physician is hard. — An interesting example of the extent of a physician's liability for negligence is furnished by a recent decision of the Supreme Court of Massachusetts, Harriott v. Plimpton^ 44 N. E. Rep. 992. The facts of the case were briefly as follows. The plaintiff, who was engaged to marry the daughter of M., was falsely ac- cused of being afflicted with a venereal disease. M. em] loyed the defendant, a physician, to examine the plaintiff, who consented to the transaction, and to report the result to himself and family. The defend- ant mistakenly pronounced the disease to be venereal. In consequence the engagement was broken. The court held that the defendant's duty of exercising ordinary diligence, care, and skill in a professional under- taking extended to a case where only information was sought ; and that the breaking of the engagement was a damage not too remote to sustain the action. This conclusion, it is submitted, is entirely correct. The evident justice of the result, however, is at first more apparent than the really substantial grounds of decision which a further consideration of the case reveals. It is a perfectly well established principle of law, " that he who under- takes the public practice of any profession undertakes that he has the