Page:Harvard Law Review Volume 2.djvu/406

388 tract made by his wife to repay money loaned to her by him for a proper use in her separate business. But "the husband must show, not only an express contract, but also that in equity and good conscience he is entitled to enforce his claim. The contract is not valid in the sense that it can be enforced strictly as contract. This is so, because in strict law the . . . theory of the unity of person still exists." Harrell v. Harrell, 19 N. E. Rep. 621 (Ind.).

As to partnerships between husband and wife see Toof v. Brewer, 3 So. Rep. 571 (Miss.), digested 2 99.

— — An infant contracted to perform services for another, under terms beneficial to himself. Held, that he was bound by the contract, and an injunction was granted to prevent him from breaking its negative stipulations. "There can be no doubt that an infant may enter into a contract which is beneficial to himself, and is bound by it." Leslie v. Fitzpatrick, 3 Q. B. D. 229 (an action against an infant for damages arising for breach of contract), gives the correct test of the contract. Whether the provisions "are inequitable or not depends on considerations outside the contract. If such provisions were at the time common to labor contracts, or were in the then condition of trade such as the master was reasonably justified in imposing as a just measure of protection to himself, and if the wages were a fair compensation for the services of the youth, the contract is binding, inasmuch as it was beneficial to himself by securing to him permanent employment, and the means of maintaining himself." Fellows v. Wood, 59 L. T. Rep. N. s. 513 (Q. B. D.); s. c. 39 Alb. L. J. 76 (Eng.).

— — Where, at a sale of property under order of the court, for the benefit of creditors, a purchaser, after his bid has been accepted and the sale reported, refuses to comply with the terms of his bid, the court may, without confirming the sale to him, order a resale of the property, and after such resale enter a decree against him for the deficiency between his bid and the proceeds of the resale, with costs. Camden v. Mayhew, 9 Sup. Ct. Rep. 246.

— — It is proper for a jury, in an action for unliquidated damages, to add together the amounts named by the several jurors, and divide the sum by twelve, and then to adopt the result as their verdict; but such method must not be made use of pursuant to an agreement to be bound by the result. City of Kinsley v. Morse, 20 Pac. Rep. 222 (Kan.); Hunt V. 'Elliot, 20 Pac. Rep. 132 (Cal.).

The propriety of recommending such a proceeding to the jury is briefly dis- cussed in Thomas v. Dickinson, 12 N. Y. 364, 372.

— —  — Defendant, having innocently received money paid him by the plaintiffs through mistake and mingled it with his own, spent a part of the whole amount and bought land with the remainder. Held, that "a constructive trust would arise upon the land, had the transaction been between citizens of the United States," but that the plaintiffs, being aliens, could not, under the laws of Texas, claim a resulting or constructive trust in the land, but were entitled to a lien on the land for the amount furnished. Zundell et al, v. Gess, 9 S. W. Rep. 879 (Tex.).

It would seem notwithstanding the dictum of the court, that, under the circumstances of the case, if the plaintiffs had been citizens they would have been entitled to no more, for it does not appear that there was any wrongful dealing with the plaintiffs' property from which the law could raise a trust in the strict sense of the word.

— —  —  — The solicitors of the plaintiff, the intending mortgagee of property, required the owner to obtain a valuation of the property. The owner employed the defendants, a firm of valuers, who, knowing the purpose for which the insluation was to be used, carelessly fixed a value, which they had no reasonable ground to beileve to be correct, and informed the plaintiffs solicitors of their valuation. The plaintiff, acting on the advice of his solicitors, and induced by the representations of the defendants, advanced money upon the security of a mortgage of the property. The mortgagor having defaulted in payment, and the property proving to have been greatly overvalued, and insufficient to answer the mortgage, it was held that the plaintiff could recover from the defendants for the damage sustained by him. The decision was put on two grounds, entirely independent