Page:Harvard Law Review Volume 8.djvu/448

432 432 HARVARD LAW REVIEW. Property — Warehousemen — Conversion or Grain — Warehouse Receipts. — Laws 1876, c. 86, § 6, provide that no person holding grain in store should dispose of or deliver it out of the warehouse without the express authority of the owner of the grain, and the return of the receipt given therefor. Defendant was convicted of a vio- lation of this statute. His receipt for the grain contained a condition to the effect that he reserved an option, either to deliver the grade of wheat that the ticket called for, or to pay the bearer the market price, on the surrender of the ticket. It was held that this did not render the contract one of sale. It merely gave the warehouseman an option to buy when the receipt was presented, instead of returning the grain in specie. This option could only be exercised when the receipt was presented, and by the pay- ment of the money. Conviction affirmed. State v. Kieger, 60 N. W. Rep. 1087 (Minn ). There has been some discussion as to the nature of the transaction between a ware- houseman of grain and his depositors, under the conditions here set down. The princi- pal case accords with the prevailing view, that, in such circumstances, title in the grain does not pass upon deposit, but only when the warehouseman has exercised his option; and this, though not a kernel of the original deposit remains in store, from the nature of the business. Nelson v. Brown, 44 Iowa, 455 ; Sexton v. Graham, 53 Iowa, 181 ; Herns v. Raymond, 26 Wis. 74; Aldridge v. Johnson, 7 El. & Bl. 885, 898; Langton v. Higgins, 4 H. & N. 402. 6 Harvard Law Review, 450, at 465. But see Chase v. Washburn, i Oh. St. 2^4. QuASi-CoNTRACT — "CONTRACT EXPRESS OR IMPLIED." — The United States are not liable in tort, but only in contract, express or implied. Expense was saved to them by an arrangement, made with a contractor, whereby the plaintiff's right as patentee was deliberately disregarded. The plaintiff sets up a claim. Held, — ist. That there is no unjust enrichment in a saving of expense, where no corpus of the plaintiff's passes into defendant's hands. 2d. The United States are liable in quasi contract only, where the circumstances would make it possible to infer a contract in fact. Affirming ScJiillinger V. U. S., 24 Ct. of Claims, 278; Schillinger v. U. S., 15 Sup. Ct. Rep. 85. See Notes. QuASi-CoNTRACT — When Cause OF ACTION ACCRUES. — A wife furnished her husband with money to build a house under an oral agreement that he would convey it to her when it was finished, together with certain land. After the wife's right of action for specific performance had been barred, the husband sold the land. Held, no new cause of action arose, and the wife cannot sue to recover the price of the land sold. Cooley V. Lobdell, 31 N. Y. Sup. 202. The case seems analogous to the sale of a chattel by a converter, who has had posses- sion for the period fixed by the Statute of Limitations. The chattel having become his, he is, in effect, selling his own property, and consequently, the original owner of the chattel cannot bring suit for money had and received. Keener on Quasi-Contracts, p. 177. In this case the wife could not prevent the sale, and it would seem that she acquired no new right from it. Torts — Death by Wrongful Act — Action does not Lie for Negligfnce BY Omission. — Under a statute allowing an action "in all cases in which the death of any person ensues from injury inflicted by the wrongful act of another, and in which an action for damages might have been maintained at common law had not death ensued," it was held, that no action could be maintained for the death of a person killed through the defendants' negligent omission to shore up the roof of their mine. Myette v. Gross, 30 Atl. Rep. 602 (R. I.). The language describing the wrongful act differs slightly in the statutes of the differ- ent States. In most of the statutes, in addition to the words " wrongful act," are the words " negligence," " carelessness," " omission," or " default," clearly covering a case like the present. The Rhode Island Court have construed their statute liberally to the extent of applying it to a negligent act of commission, McCaughey v. Tripp, 12 R. I. 449, but beyond that they refuse to go, Bradbury v. Furlong, 13 R. I. 15; though an extension to a case like the present would seem entirely natural and justifiable. Tort — Deceit — Plaintiff Negligent in Relying on the Representations. . — A vendor of land was sued for making representations as to the land, thereby induc- ing plaintiff to buy. Held, the necessary elements for maintaining an action of deceit being present, plaintiff will not be debarred because he was negligent in relying on the false statement. Speed v. Hollings^vorth, 38 Pac. Rep. 496 (Kan.). This decision is directly contrary to Brady v. Finn, 38 N. E. 506 (Mass.), criticised in 8 Harvard Law Review, p. 365, and it is pleasant to note that Kansas is strongly in favor of what seems the fair and just view.