It was

that he was entitled to retain it on the ground that it was a guarantee that the purchasers would carry out the transaction upon the vendor tendering a proper contract. Against this decision the purchasers appealed. held that there was no completed agreement to purchase since the whole memorandum was conditional upon a formal contract being prepared and executed. In every case the right to a return of a deposit must depend on the conditions of the contract. There was no provision in the memorandum that the deposit should not be returned; and since the contract had fallen through altogether the purchasers were entitled to a declaration that there was no existing contract and to a return of the deposit.

We have the impression that the recent cases relating to the liability of a tenement owner for accidents to those using the common passages and stair for injury consequent on accident due to alleged defects such as holes, inequalities of surface or bad lighting calls for closer examination than it appears to be receiving. This remark is suggested by a pointed reference by a writer in the Solicitors Journal to the decision of the House of Lords in Fairman v. Perpetual Insurance Building Society, 1923, A. C. 74, where Lord Buckmaster expressly stated that the decision of the House must be taken to overrule the well-known case of Miller v. Hancock, 1893, 2 Q. B. 177. It was there decided that an owner who lets out flats, but retains the common staircase under his own control, is liable for negligent repair or lighting of that staircase to persons who visit the tenants on lawful business, i. e., to "inviteees" as distinguished from "licensees" or "trespassers." The implied overruling of Miller v. Hancock in Fairman's Case, supra, puts an end to the doctrine that a landlord can be liable for neglect to repair the premises to persons other than the tenants; in other words, his liability is purely contractual, not delictual. There is no liability in tort because he owes no duty to persons whom he does not himself "invite" to use the premises. This supports the view taken in Huggett v. Miers, 1908, 2 K. B. 278, where it was pointed out that "invitees" of the tenant are not "invitees" of the landlord, but only "licensees," i. e., they are not asked expressly or impliedly to use the common staircase, but are merely given permission to do so. Therefore the ground of liability in Indermaur v. Dames, L. R. 1 C. P. 274, which only binds an owner or occupier in respect of persons "invited" by him to use the premises, does not affect the landlord of a common staircase in respect of visitors to his tenants.

WHAT IS THE PERIOD OF LIMITATIONS ON CLAIMS AGAINST CARRIERS?

By R. O. Stotter

There seems to be an exaggerated importance placed on the case of Kansas City Southern Ry. Co. v. Harry B. Wolf (U. S. Adv. Ops., March 15th, 1923, p. 321), decided February 19, 1923, by the Supreme Court. Freight claim agents are now returning over-charge claims with the disappointing suggestion that same are barred by the two-year statute of limitations, always citing the Wolf case. On receipt of this advice the shipper or traffic man hunts up the Wolf case and comes to the same conclusion.

The statute construed by the Wolf case ceased to be law three years before the decision was rendered. Today it has no application to claims except those accruing before February 28, 1920.

The Wolf case was a suit for overcharges on shipments made prior to June 1, 1912. The suit was filed May 12, 1915. The railroad company defended on the ground that the claims sued on were barred by the two-year statute of limitations. The statute relied on being the Interstate Commerce Act and Supplementary Legislation, 24 Stat. at L. 379, 382, 384; 4 Fed. Stat. Ann. (2d Ed.), then in force. The particular portion of the act in question construed by the Wolf case being the last sentence in Sec. 16 (B), which reads as follows:

"All complaints for the recovery of damages shall be filed with the Commission within two years from the time the cause of action accrues, and not after,

Wolf's counter to the plea of limitations interposed was that he had not filed any complaint with the Commission, but that he had elected to file his suit in the District Court, and therefore did not come within the provisions of section 16. The District and Circuit Courts agreed with Wolf, but the Supreme Court took a broad view of the

The Transportation Act of February 28, 1920, Fed. Stat. Ann. 1920 Supp., p. 116, says:

"The second paragraph of section 16 of the Interstate Commerce Act is hereby amended by striking out the last sentence thereof and inserting in lieu thereof the following as a new paragraph:

"All actions at law by carriers subject to this Act for the recovery of their charges, or any part thereof, shall be begun within three years from the time the cause of action accrues, and not after. All complaints for the recovery of damages

shall be filed with the Commission within. two years from the time the cause of action accrues, and not after, unless the carrier, after the expiration of such two years or within ninety days before such expiration, begins an action for recovery of charges in respect of the same service, in which case such period of two years shall be extended to and including ninety days from the time such action by the carrier is begun.

The last sentence of section 16, heretofore quoted, was the "bone" the litigants were contending over in the Wolf case and Congress took it from the table February 28, 1920.

The bone Congress substituted, however, promises to be tougher than the one removed. One thing seems to be certain, however, and that is, that the period of limitations is now three years at least. But these questions present themselves: (1) Where the act says "carriers" does it mean "carriers and shippers?" (2) If it means only "carriers" is not the law in valid as discriminatory? (3) If the law If the law is invalid what is the period of limitations then?

If the Supreme Court should take as broad a view of this amendment as they did of its predecessor, then they probably

scope. Certainly if they decided shippers were not included they would hold the law invalid. If the law is invalid then, under Bauserman v. Blunt, 147 U. S. 647: 37 L. Ed. 316, each state would apply its own law of limitations.

In this connection it might be stated that a bill of lading has been held a contract in writing, and whether or not it states the freight rate or the amount of freight to be paid, is an agreement to pay the freight. New v. Denison Clay Co., 260 Fed. 70. It has further been held that the state courts have concurrent jurisdiction with the Commission and District Courts on claims under the Commerce Acts, where no administrative question for the Interstate Commerce Commission is involved. Penn. R. R. Co. v. Sonman Shaft Coal Co., 61 L. Ed. 188.

Now what is the answer to the question propounded in the title? One guess seems as good as another. Certainly the Wolf case isn't the answer.

ACCESS TO A GARAGE

In these days of the increasing popularity of motoring, it not infrequently happens that the owner or occupier of premises contemplates for the first time the erection of a garage; and in addition to the usual precautions of complying with local building by-laws, estate conditions, and covenants in a lease (if any), a further difficulty may be met in the circumstances hereinafter indicated.

A local authority, having taken over a certain road within their area, proceed to plant trees at intervals along the edge of the pavement. A few years later, the owner of one of the houses in the road is desirous of building a garage adjoining his house, but finds that the center line of the most direct and convenient access for a motorcar between the garage and the road is obstructed by one of the council's trees.

What are the relative rights and remedies of the householder and the council respectively? In endeavoring to put for ward an answer to this question it is proposed to consider the several points, affecting both public and private rights, which arise not only in the circumstances of the case referred to, but, as far as possible, generally.

A local authority has no general powers to plant trees in a public highway, and may be indicted (presumably for obstruction) in respect of any such unauthorized act; but that remedy is open to objection as being costly, somewhat cumbersome, and not necessarily effective for securing the removel of the tree. Notwithstanding the planting of the tree may have been unauthorized, it appears that liability for penalties would nevertheless be incurred by any person displacing or injuring the same (see s. 149 of the Public Health Act, 1875). A local authority may, by adopting the relevant provisions of the Public Health Acts Amendment Act, 1890, obtain power to plant trees in any highway repairable by the inhabitants at large, provided the trees are so planted as not to hinder the reasonable use of the highway by the public or any person entitled to use the same, or become a nuisance or injurious to any adjacent owner or occupier. The latter words are somewhat wide, and might at first sight appear to afford sufficient pro

tection to a householder in the circumstances instanced above, but in the absence of direct authority on the point, it is perhaps advisable to consider somewhat closely the nature of the "nuisance" or "injury"

to which the section is intended to refer.

One may pass over such questions as possible damage to an adjacent lawn or garden from roots, falling leaves, overhanging branches or "drip," detriment to the house from obstruction of light, air or view, and other discomforts and inconveniences; and proceed to the consideration of questions relating to the interference with ingress and egress. The right of the owner of land

abutting upon a highway to reach the highway from any part of his land adjoining the highway is a private right for the interference with which he may maintain an action. The interference must, however, be substantial; it is not sufficient, that the access should be made rather less convenient, if the premises can in fact be reached (cf. A.-G. v. Thames Conservators, 1862, 1 H. & M. 1). If, therefore, the tree still leaves room for the passage of a motor car to and from the premises, even though by a curved instead of a straight route, it is probable that no actionable injury is caused to the private rights of the occupier.

Somewhat related to, but distinct from the question of access, is the right of the occupier of the premises to transport goods across the footway to the premises from a vehicle in the roadway. This is not a private right, but one which the householder enjoys as one of the general public entitled to use the highway.

The distinction between the two rights above mentioned is clearly indicated by the case of W. H. Chaplin & Co. Ltd. v. Westminster Corporation, 1901, 2 Ch. 329, where the defendants had in pursuance of their duty as the lighting authority erected a lamppost outside the plaintiffs' premises. The plaintiffs based their claim upon interference with a private right of access to their premises from the adjoining highway. and it appeared that their main objection

was to the obstruction of their business in the loading and unloading of goods. The Court found that the interference (if any) right, but that upon the facts there was no was to a public right and not to a private obstruction, in a reasonable sense; and the action was dismissed.

Somewhat similar questions arose in the earlier case of Goldberg & Sons, Ltd., v. Liverpool Corporation, 1900, 82 L. T. 362, where the local authority had in pursuance of its statutory power as a tramway authority erected a pole and fuse box in front of the plaintiffs' premises.`

Upon the whole, it is probable that the wiser course for the householder, faced with a difficulty such as that in question, to pursue would be to negotiate with his local authority for the removal of the tree upon amicable terms, even if the whole or part of the cost of removal be borne by him, rather than risk reliance upon his bare legal rights in the matter, as to the result of which there appears to be considerable doubt.

Different considerations might arise as regards trees planted in a road on or in connection with the laying out of a building estate by the building owners before dedication; and, in any event, it is advisable for every householder, particularly where, although there is no garage at present, facilities for future erection may exist, not to overlook the importance under modern conditions of preserving free access for a motor car; and, as far as possible, to guard against the placing of trees, lamp posts or other similar obstructions in such a position that the free and most convenient enjoyment of an originally inherent right might be abrogated, yet only to a degree which would render practical redress a matter of some difficulty and expense.G. G. C., Solicitors' Journal.

INSURANCE-COLLISION

GANS v. COLUMBIA INS. CO.

123 Atl. 240

(Supreme Court of New Jersey, Jan. 21, 1924)

Under a policy on a flying boat covering loss or damage from "collision" with the earth or any object moving or stationary, insured could recover damage to the plane from waves after it had drifted to shore, since "collision" means "violent contact," and the bodies need not be in motion.

MINTURN, J. The stipulation of facts upon which the case was submitted recites, inter alia, that a Curtis flying boat, of which the plaintiffs were owners, was proceeding under its own power, upon a trip from Daytona to Palm Beach, Fla. While flying over the sea

near Cape Canaveral, the engine went dead, and the pilot determined to bring his flying boat to the water, for the purpose of making the necessary adjustments. Upon reaching the water the plane rested easily without any damage having resulted from the landing. The pilot was unable to start his engine, and drifted for four hours in the sea. Eventually he drifted onto the beach, upon which a fairly heavy surf was running, and the plane by force of the breakers, upon grounding on the beach, was materially damaged. The damage sustained by the wings and control surfaces was due to the action of the waves, after the plane drifted ashore. Plaintiffs claim that the collision indorsement attached to the policy covers the damage to the flying boat, because of the waves, after the flying boat had alighted on the sea without damage.

(1) The collision indorsement referred to provides that

"In consideration of the warrantees and stipulations of this policy, and of an additional premium of $900, this policy covers direct loss or damage to the plane described herein, caused by collision with the earth (including land or water), or any object moving or stationary, except collisions occurring while the plane is in hangar or workshop, or in the care of workmen for purposes of repair, provided that each loss shall be adjusted separately, and from the amount of each loss when determined, the sum of three hundred dollars shall be deducted, and this company is liable for loss or damage in excess of such amount only."

The inquiry presented by the situation is whether the damage suffered by the plane was the result of a collision within the meaning of the policy. With the coming of the gasoline motor, the word "collision," under variant circumstances, in different jurisdictions, has received judicial interpretation, and there is obvious difficulty in reconciling many of the judicial definitions thus evolved, with the fundamental commonplace meaning of the word as we were wont to app'y it in ordinary and popular acceptation. Hence we have presented, upon the comprehensive briefs of learned counsel, adjudicated cases from courts of high distinction, from whose reasoning and analysis a decision pro or con as to the legal application of the term may be sustained and vindicated, in almost any eventuality. However, in this jurisdiction, to which we must primarily look, the difficulty has largely evaporated by the determination of the Court of Errors and Appeals in Harris v. American Cas

ualty Co., 83 N. J. Law, 641, 85 Atl. 194, 44 L. R. A. (N. S.) 70, Ann. Cas. 1914B, 846, wherein the learned Chancellor defines the term as synonymous with "violent contact," and declares that both bodies need not be in motion in order that the condition of colliding may ensue within the meaning of an automobile policy, so as to produce the legal status of a collision; and the doctrine of interpretation involved in Coke's maxim, "Verba chartarum fortius accipiuntur contra preferentem," is therein emphasized as a rule of interpretation applicable in all cases of doubt, arising under debatable langauge of an insurance contract. The difficulty in the case at bar in the light of that determination, however, may be solved by a consideration of the general language of the provision of the policy itself. It will be observed that liability exists in the event of a collision with the earth (including land or water).

(2) In applying this language, we may say non constat the plane might have kept afloat. for hours upon the open sea, if for some reason not disclosed by the stipulation, it had not come in contact or collision with the destructive conjunctive elements of land and ocean. In comprehensive language the policy provides expressly that the colliding force may be "any object moving or stationary," and excepts only two situations, neither of which admittedly has application here. We thus have a policy in generic terms covering damage "caused by collision with the earth (including land or water) or any object moving or stationary," and emphasizing, so to speak, this comprehensiveness of scope by excepting only two situations to which this language shall not apply. Were there a doubt as to the applicability of this provision, as a solution of the inquiry here presented, such doubt under the rule of construction to which reference has been made must be resolved in favor of the insured. Connell v. Com. Casualty Co., 96 N. J. Law, 510, 115 Atl. 352.

The result follows that judgment may be entered in favor of the plaintiffs, for the amoun of the claim conceded by the parties to be due, under this provision of the policy.

NOTE-Automobile Collision Insurance.New Jersey Ins. Co. v. Young, 290 Fed. 155, reversing 284 Fed. 492, holds that a collision policy insuring against damage by collision with another automobile, vehicle or object does not cover loss caused by the breaking of an axle which caused the front end of the car to strike the road. This case holds that the rule

ejusdem generis does not restrict the meaning of the word "object" to objects in kind similar to automobiles and vehicles; the words which preceded the more general word object.

Damages due to a car falling over an embankment and striking the earth, after rolling down an incline where it had been left, simply in obedience to gravity and without the application of exterior force, were held not to be covered by a policy insuring against loss or damage due to "collision with any moving or stationary object." Continental Casualty Co. v. Paul, Ala., 95 So. 814.

The case of Interstate Casualty Co. v. Stewart. Ala., 94 So. 345, hold that damages from a collision with an embankment at the side of the road are within a policy insuring against loss or damage caused solely by being in collision with any other automobile, vehicle or other object.

Columbia Ins. Co. v. Chatterjee, Okla., 219 Pac. 102, is another case holding that collision with an embankment is covered by such a policy.

Universal Service Co. v. American Ins. Co., 213 Mich. 523, 181 N. W. 1007, holds that the falling of the scoop of a steam shovel onto a truck which was being loaded by the shovel, is a "collision," within the terms of an insurance policy.

For other cises on this subject consult Berry, Automobiles (3rd Ed.)., sections 17221729, and back files of the Central Law Journal.

A very interesting and frequently re-occur ring subject is the relation that exists between the owner of paper and the collecting bank after the collection has been made.

The matter is annotated in 24 A. L. R. at 1152. The matter was before the United States Supreme Court in 148 U. S. 50. The Supreme Court of the State of Washington in 9 Wash. 614, 38 P. 211, 43 A. S. R. 870, takes the view that no trust exists. That seems to be the rule in California, 143 Pac. 736. Morse on "Banks and Banking," 4th edition, page 482, states the rule to be that no trust fund exists. On the other hand, the Supreme Court of Montana, in the recent decision of Hawaiian Pineapple Co. v. Frank Brown, Receiver, assumes and takes it for granted that a trust exists. The recent case of Spokane & Eastern Co. v. U. S. Steel Products Co., 290 Fed. 884, also takes it for granted that the collecting bank is trustee of the proceeds collected. Spokane & Eastern Trust Co. v. U. S. Steel Products Co. is following in the Montana case.

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