Page:Harvard Law Review Volume 2.djvu/163

 RECENT CASES. 145

sonable doubt is not required, still enough must be shown ** to make it proper to submit the whole evidence to the jury." Commonwealth v. Rohinson^ i6 N. £. Rep. 452 (Mass.).

See the note on Sharfs case, 2 Harv. L. Rev. 98.

Factors and Brokers — Real-Estate Brokers — Right to Commissions. — Plaintiff, a real-estate broker, agreed to procure a purchaser for certain land o£ defendant at a price named, tor which be was to receive a certain com> mission. He found such purchaser, and a written agreement was signed by both defendant and the proposed purchaser, by which the latter was to take the land at the price named, and was to have time to examine the title and reject the same if unsatisfactory. Within the time fixed, the purchaser made a groundless objec- tion to the title, which was in fact good, and refused to take the land ; out defendant did not sue for specific performance. Held, that plaintiff was entitled to the full amount of his commission.' Parker v. Walker ^ 8 S. W. Rep. 591 (Tenn.).

If plaintiff had neglected to bind the purchaser by a contract which defendant could enforce under the statute of frauds, he could not have recovered. Gilchrist v. Clarke, 8 S. W. Rep. 572 (Tenn.).

Larceny — Consent. — A detective pretended to be drunk and asleep, in order to secure evidence against any one who should attempt to rob him. He therefore made no resistance when the defendant, whom he did not suspect, took money from him. Held, that the defendant was guilty of larceny in spite of the detec- tive's seeming consent. People v. Hanselman^ 18 Pac. Rep. 425 (Cal.).

It is to be noted in this case that probably the detective did not intend to pass the title to, nor yet to make the defendant a bailee of, the money taken. If that is so, the decision seems to be right.

Nuisance — Malicious Obstruction of Light and Air. — A fence erected maliciously, and with no other purpose than to shut out the light and air from a neighbor's window, is a nuisance. Campbell, C. J., and Champlin, J., dissenting. Full collection and discussion of authorities for and against the proposition. Burke v. Smith, 37 N. W. Rep. 838 (Mich.).

For a discussion of the general principle involved see '* The Principle of Lumley v. Gye," etc., 2 Harv. L. Rev. 19.

Partnership — Agent — Profits as Salary. — A person who employs another as his agent in a particular business, and agrees to give him a part of the net profits thereof as a salary, does not thereby make him his partner. Missouri Pac, Ry. Co, v. Johnson, 7 S. W. Rep. 838 (Tex.). A note collects cases.

Post - Office — Decoy Letter — Larceny from Mails. — A letter with a fictitious address, which, therefore, cannot be delivered, is not " intended to be con- veyed by mail ** within the meaning of the statute, and an indictment charging em- bezzlement of such letter will not be sustained. United States v. Denicke, 35 Fed. Rep. 407 (G.a).

Privileged Communications — Libel. — Statements made in a petition by a receiver against his co-receiver, that such co-receiver was unlawfully witholding a por- tion of the assets, and was obstructing their collection, and that he had embezzled some of the trust money, are not actionable, even though they are malicious and false ; such statements being made in the course of a judicial proceeding. Bartletty, Christhilf, 14 Atl. Rep. 518 (Md.).

Privileged Communication — Slander. — Slanderous words spoken by counsel in the trial of a cause are actionable, unless they relate to the cause on trial or to some subject-matter involved therein. (Two judges dissenting.; Maulsby v. Reif snider^ 14 Atl. Rep. 505 (Md.).

Promissory Note — Collateral Promise — Negotiability. — A contract to pay money *' with exchange on New York " is not a negotiable note. Savings Bank v. Strother, 6 S. E. Rep. 313 (S. C).

This decision is due to a misunderstanding of the word " certainty," which in this connection means, not mathematical, but rather mercantile, certainty. Thus a prom- ise to pay attorney's fees, while rendering the total sum to be paid uncertain, is a device to render more certain the face value of the note, and it would be so understood by business men. This view is held in Sperry v. Horr, 32 la. 184. Contra to the principal case see Johnson v. Frisbee, 15 Mich. 286, and, generally, 2 Ames on Bills and Notes, 83a