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 NOTES OF RECENT CASES

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NOTES OF THE MOST IMPORTANT RECENT CASES COMPILED BY THE EDITORS OF THE NATIONAL REPORTER SYSTEM AND ANNOTATED BY SPECIALISTS IN THE SEVERAL SUBJECTS (CopiM of the pamphlet Reporters containing full report* of any of these decisions may be secured from the West Publishing Company, St. Paul, Minnesota, at as cants each. In ordering, the title of the desired case should be giren as well as the citation of volume and page of the Reporter in which it is printed.)

CARRIERS. (Refusal to Ship Goods in Regu lar Course.) Mich. — In Harrison Granite Co. v. Pennsylvania R. Co., 108 Northwestern Reporter, 1081, it appeared that a monument manufacturer had agreed to furnish and set up a soldiers' monu ment for which an association was to pay $1500. A day was set for the public dedication of the monument, and the manufacturer was notified thereof and an understanding reached that the dedication could and would be made on such date. The manufacturer,- a few days before the date for the dedication, delivered the monument to a railroad company for transportation to the point of destination via several other railroads. One of these carriers in carrying the monument rendered special services pursuant to an agree ment with the association which had become apprehensive that the monument would not be delivered in time, but it appeared that this carrier could have delivered the monument in time by rendering the regular service and that the manu facturer objected to the special arrangement. Furthermore, evidence showed that the carrier had knowledge of all the facts and knew that the rendition of the special services was unnecessary and would result in converting to it a large sum which would otherwise have been paid to the manufacturer. On receiving the monument, the association paid the carrier $1500 and the latter retained for its special service $700. The charge for regular service would have been only a frac tion of this amount. The court held that these facts would warrant a recovery by the manu facturer from the carrier of the $700, based on a breach of duty of the carrier and a wrongful in terference with the rights of the manufacturer. Furthermore it was held that the fact that the carrier transported the property of the manu facturer as it was bound to do and delivered it in good order did not afford a complete answer to the manufacturer's claim for damages. This is a novel and interesting application of public-service law. The same principle which prevents the carrier from limiting his liability by contract — the fact that the parties do not stand on an equality, but the carrier already owes a duty to the shipper — leads to the result in this case.

The consideration for the promise to pay extra compensation was the doing by the carrier of what he was already bound to do, and the contract was, therefore, void. T H. B. CHATTEL MORTGAGES. (Oral Mortgage of Stock in Trade.) Vt. — The doctrine that one, who has loaned money to another with which to go into business and who has taken an oral chattel mortgage on the stock to secure the loan, may, as against the debtor's creditor, take possession of the goods, is reiterated in Mower v. McCarthy, 64 Atlantic Reporter, 578. This, the court says, has been its holding in former cases, and it finds no occasion to depart from it though the court in many of the states maintain a different doctrine. The court in this case lays down, inter alia, the following proposition : 1. An oral chattel mortgage is good at common law at least between the parties to it. Of this there can be no serious doubt. 6 Cyc. 989. 2. A mortgage on property to be acquired and having no potential existence at the time of the mortgage, becomes subject to the mortgage upon the mortgagee taking possession of it under a power in the mortgage. This is the general rule on the point. Jones, Chattel Mortgages, 4th Ed. §§ 160-1648. A novus actus inter veniens, such as will pass the legal title to the after-acquired property, has never been very accurately defined so far as the writer is aware. But taking posses sion by the mortgagee by authority from the mort gagor is certainly such a new act. 3. Retention of possession by a mortgagor, where the mortgage is oral and unrecorded be cause the recording acts of the state do not apply to oral chattel mortgages, does not render it in valid or voidable as to creditors. Many, perhaps most, cases hold that retention of possession by a vendor is " legal fraud," i.e., does invalidate the sale as to creditors and purchasers. 19 Harv. L. Rev. 569-70. It is obvious, however, that this doctrine must not be transferred to mortgages without a new consideration of it. On a sale the possession naturally passes; on a mortgage it is almost invariably retained by the mortgagor. The conflict in the authorities referred to by the court is not surprising. It is the old question of