Page:Harvard Law Review Volume 8.djvu/443

427 RECENT CASES. 427 ral principle established in other jurisdictions, and is chiefly interesting because the subject is one of first impression in Missouri. For collection of cases, see Black on Intoxicating Liquors, § 142, notes. Constitutional Law — Taxation — Validity of Assessment. — The defend- ant company owned a bridge across the Ohio river, between Kentucky and Indiana. The State board of tax commissioners of Indiana made an assessment upon the prop- erty of the company within the State, but by mistake included in such assessment a portion of the bridge in Kentucky. HelJ, the judgment on its face related to property within the jurisdiction of the board, and in the absence of fraud could not be set aside by evidence aliunde or by matters dehors the record. Youitgstown Bridge Co. v. Ky, <5r» Ind. Bridge Co. et al., 64 Fed. Rep. 441. In the exercise of quasi judicial power, with final jurisdiction in questions relating to valuation and assessment, the board was justly considered like a superior tribunal in regard to its record. Though the judgment was erroneous there was no remedy. Such a view finds abundant support. Freeman on Judgments, § 135. Contracts — Construction — Effect of Printed Matter on Letter-Head. — Defendants mailed to plaintiffs an offer for the sale of sheet-iron, which defendants manufactured. Plaintiffs, refusing defendants' proposals, submitted a contract complete and express in terms, — which defendants accepted. The written part of their accept- ance was absolute, but the words, "All sales subject to strikes and accidents," were printed upon the heads of both letters of defendants. In a Avrit upon the contract it was held, that the printed matter formed no part of the contract, so as to excuse a fail* ure to deliver, caused by breakages in defendants' mills. Summers v. Hibbard, 38 N. E. Rep. 899 (III.). This case goes farther than any authority cited in support of it. In Express Co. v. Pinckney, 29 111. 392, the company undertook to collect a draft and remit the proceeds. Their agent gave the customer an ordinary package receipt, with its blanks properly filled out for the special purpose contemplated. It contained printed conditions appro- priate to the carriage of goods, which conflicted with the written matter, and the court held, that the writing only was to be considered in ascertaining the contract. People v. Delany, 96 III. 503, was a like decision, the written and printed parts of a contract for the hiring of convicts being plainly inconsistent. Kohertson v. French, 4 East, 130, con- tains a dictum by Lord Ellenborough to the same effect, and the point was similarly decided in Alsagar v. Dock Co., 14 M. & W. 196. In all these cases, there was a plain inconsistency between the written and printed parts, and the Court attempt to bring the present case within the principle, by saying that it is inconsistent that the contract should be both absolute, as shown by the writing alone, and conditional, as shown by the writing and printing together. See Parsons on Contracts {8th ed.), Vol. II. p. 633, and cases cited. Contracts — Contract by Heir Relinquishing Interest in Ancestor's Estate — Release of Rioht to Contest Will. — An heir for valuable conside-a- tion made a written agreement with his ancestor, whereby he relinquished all interest in the latter's estate, which might otherwise in the future vest in him as such heir, and covenanted with her, " her heirs, devisees, legatees, executors, and administrators," that he would " never in any manner, or to any extent, question, dispute, or contest any disposition of the property which she may have made, or may hereafter make, either by deed, or by her last will and testament." In this petition by the heir, to revoke the probate of an instrument purporting to be the will of the ancestor, on the ground of inca- pacity and undue influence, it was held, that the petitioner was estopped by his agree- ment from contesting an instrument, executed in due form, as the will of such ancestor, whether or not testatrix had the capacity, or was induced by undue influence to make it, and that such agreement is not void as against public policy, even though it estops the heir from contesting the will of an insane person, or a will executed under the influence of fraud or duress. In Re Garcelon^s Estate, 38 Pac. Rep. 4x4 (Cal). The Court call attention to the difference between the rules of common law and equity as applied to the sale or assignment of mere possibilities, such as the expectancy of an heir apparent; how at common law such interests are not regarded as existing in such a way as to be the subject of a sale, or capable of passing by assignment, whereas in equity agreements for the sale or release of expectancies, if fairly made, and for an adequate consideration, are enforceable upon the death of the ancestor. 2 Story Eq. Juris., § 1040 r. In holding that the contract in question is not void as against public policy, the Court distinguish it from agreements in restraint of marriage or of lawful trade. " The contract is one which concerns the parties alone, and does not appear to us to be against public policy."