Page:Harvard Law Review Volume 12.djvu/86

66 66 HARVARD LAW REVIEW. plaintiff may replevy the goods still retained by the defendant without tendering back the money paid on account. Forwell Co. v. Hilton, 84 led. Rep. 293 (Wis. Sup. Ct). It is commonly said that a vendor, before he can rescind a contract of sale, must return anything of value which he has received from the vendee. Benjamin, Sales, 6th ed., 445. The court recognizes that such a proposition is true as a general rule, but refuses to apply it to the present case. The result is surely just. Since the rights of no third person are involved, the vendee should not be allowed to take any advantage of his own misconduct. To require a repayment of the money received on account, as a condition precedent to the right to rescind, would put a premium on fraud ; it would be idle as well, since the vendor, if he rescinded and recovered a part only of the goods, could probably also sue and recover the price of the balance. Powers v. Benedict, 88 N. Y. 605 ; Sleeper v. Davis, 61 N. H. 61. The weight of authority is in accord with the principal case. Shane v. Shiffer, 156 Pa. St. 59; Sisson v. Hill, 18 R. I. 212. Torts — Conversion — Chattel Mortgages. — A chattel mortgage gave the mortgagee power to take possession and sell on default or if he felt insecure. Defend- ant, a sheriff, served the summons in a foreclosure action and took possession against the protest of the mortgagor. Held, that the mortgagee could not take possession without the consent of the mortgagor, and that the sheriff is liable to the mortgagor for conver- sion. McClellan v. Gaston, 51 Pac. Rep. 1062 (Wash.). In a similar case, the mortgagee was held liable for trespass when he took posses- sion accompanied by an officer who had no legal process but who acted colore officii. Thornton v. Cochran, 51 Ala. 415. This decision has been supported on the ground that the taking was by threat or constructive force. Jones, Ch. Mort., 4th ed., § 705. A subsequent Alabama decision holds that such cases should be subject to the rules governing recaption, and the former case seems doubtful. Streets. Sinclair, 71 Ala. no. The present case would hold the sheriff liable even though he acted in a private capacity as agent of the mortgagee. The power granted in the mortgage to take pos- session gives the grantee a license which becomes irrevocable on default. McNeal v. Emerson, 81 Mass. 384. On default also the mortgagee gets an absolute title and a right to immediate possession. It seems then that the mere pretest of the mortgagor should not make the taking of possession either a trespass or a conversion. Laiidon V. Emmons, 97 Mass. 37 ; Jones, Ch. Mort., 4th ed., §§ 434, 774. Torts — Inn-keeper's Liability. — The defendant, a hotel-keeper, contracted with a club to furnish a banquet at his hotel. The club invited the plaintiffs, who took a room at the hotel for the night. While at the banquet their hats were lost from the hat-rack without negligence on the part of the defendant. Held, that the defend- ant is not liable for the loss. Amey v. Winchester, 39 Atl. Rep. 487 (N. H.). The decision shows the tendency of the courts to limit the strict common-law lia- bility of inn-keepers, and it seems to go farther in that direction than previous cases. It may be questioned whether it does not go too far. It is settled that the peculiar relation of inn-keeper and guest does not arise when the inn is visited for some special purpose, not connected with passage or travel. Such is the case when one goes on the invitation of the inn-keeper, or of a guest of the inn, or of some third party who has hired the inn. Calye's Case, 8 Coke, 32 ; Carter v. Hobhs, 12 Mich. 42 ; Fitch v. Casler, 17 Hun, 126. In the present case, however, the plaintiffs were guests of the inn by virtue of having taken a room there, but they were deprived of their rights as such, because, at the time of the loss, they were using the inn for a purpose not contem- plated by the relation of inn-keeper and guest. Torts — Joint Tort-feasors — Tender. — The plaintiff had obtained a judg- ment against one of two joint tort-feasors, and had been tendered the amount of the judgment by him. Held, that this is a bar to an action against the other. Berkley v. Wilson, 39 Atl. Rep. 502 (Md.). The English view in such a case is that judgment without satisfaction will prevent recovery. Brown v. Wooton, Cro. Jac. 73. In this country generally the opposite view prevails, unless the judgment be completely satisfied. 11 Harv. Law Rev. 556. In the principal case the court declines to decide this question, considering tender equivalent to satisfaction. If the American rule be correct, it is difficult to see how the plaintiff can be said to lose his right of action by refusing to accept payment, since it lay in his option to enforce the judgment or bring an action against the defendant. The defendant's wrong was not rendered less by reason of the tender. Even the plea of satisfaction is only effectual on the ground that double compensation will not be al- lowed, and not because the defendant's act becomes less tortious. Moreover, other courts have not considered a tender as satisfaction. People v. Beebe, l Barb. 379 ; Lin- coln Savings Batik v. Ewing, 1 2 Lea, 598.