Page:Harvard Law Review Volume 8.djvu/444

428 428 HARVARD LAW REVIEW. Contracts — When Plaintiff can Annul and Sue for Future Profits. — Defendant violated provisions of an executory contract made with the plaintiff, and showed an intention to continue such breaches, but did no act amounting to a physical obstruction or prevention of performance by the latter. Held, plaintiff could elect to treat the contract as at an end and sue for future profits. iMke Shore, &^c. Ry, v. Rich- ards, 38 N. E. Rep. 773 (111.). This case was decided on a rehearing, and reversed the decision of the court on the former hearing, 32 N. E. Rep. 402, where the court held that absolute prevention or such an essential breach as amounted to prevention was necessary. The decision as it now stands seems clearly right on principle, and the numerous authorities referred to by the court. Where a party to a contract says he will not go on with it, or does acts show- ing that he will not, if the conduct or acts are such as to make a breach going to the essence of the contract, the other party should not be kept in suspense or be obliged to perform to no avail if he wants to recover. Such a requirement would be unjust and increase the damage and inconvenience of both parties. The rights of the parties should in case of such a contract be fixed at the time of the substantial breach, and plaintiff should be relieved from useless performance and recover for future profits. Corporations — Liability of Corporators. — Wisconsin statute provided that any three persons might form a corporation by signing and acknowledging articles de- claring the purpose, amount of capital stock, etc., and that after such articles were filed the signers should have direction of the corporation, but that no such corporation should transact business with any other than its members until half the capital had been subscribed and twenty per cent paid in. After three persons had signed such articles, and before any stock had been subscribed for, two of the signers carried on business in the corporate name and incurred liability. The third signer knew that the others were carrying on business in the corporate name, and by slight attention to the matter could have learned that they were using his name as an officer. In an action for liability thus incurred brought against the three signers, held, that all three were liable. VVechselberg V. Flour City Nat. Bank, 64 Fed. Rep. 90. The liability of the third signer under these circumstances must depend on a simple question of fact, — whether he has expressly or impliedly authorized the others to. act for him. This is the view of the dissenting judge, who is clearly of opinion that no such authority was given. Judging from the facts as reported it is certainly hard to find any authority. The majority of the court finds it in the signing of the articles, but despite a conflict in the cases, the better view is that the signing of the articles does not make the signers partners. Rutherford v. Hill, 22 Ore. 218; Bank v. Palmer, 47 Conn. 443; Morawetz on Corporations, § 748. Criminal Law — Extortion — Attempt to Commit. — By New York Penal Code, § 552, "Extortion is the obtaining of property from another, with his consent, induced by a wrongful use of force or fear, or under color of official right." By § 34, "An act done with intent to commit a crime, and tending, but failing to, effect its com- mission, is an attempt to commit that crime." Held, although the prosecutrix was not put in fear by defendant's threats, but parted with her money for the purpose of inveig- ling him into the commission of the crime, that an indictment for an attempt to commit extortion would lie. People v. Gardner, 38 N. E. Rep. (N. Y.) 1003; overruling People v. Gardner, 25 N. Y. Supp. 1072, commented on 7 Harvard Law Review, 435. See Notes. Criminal Law — Sufficiency of Indictment — Judicial Notice. — The cap- tion of an indictment contained the name of the county of Worcester, the accused was described as being a resident of B. in the county of Franklin, and the offence was alleged to have been committed " at Westminster, in said county." Held, the indictment is defective in not stating with sufficient certainty the county in which the offence was committed. " While the court knows that there is a town named Westminster in the county of Worcester, there is no allegation that the offence was committed at the town of Westminster, but simply at Westminster, which is not alleged to be a town or a place within the county of Worcester." Commonwealth v. Wheeler, 38 N. E. Rep. 1115 (Mass.). The rule that when two counties are named it is not enough to describe the offence as committed in the "county aforesaid," would not seem to apply to cases where the offence is described as committed in a particular place in the "county aforesaid," be- cause a court will generally take judicial notice of the location of places within its own jurisdiction. See 8 Harvard Law Review, 360. Therefore an allegation of the par- ticular place in which it was committed would be equivalent to stating that it was com- mitted within the county where the place is located. Piople v. Breeze, 7 Cow. 429. In that case two counties are mentioned in the indictment, and a statement that the offence