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- DIVORCE — ADULTERY – PROOF.–Upon a bill Manuf'g Co., 48 Me. 121; Shanny v. Androscoggin for divorce, it appeared that there was great familiarity Mills, 66 id. 427; Coombs v. New Bedford Cordage Co., between the wife and S., the co-respondent, who | 102 Mass. 585; Ladd v. New Bedford R. Co., 119 id. 413. boarded at her residence. She would go driving with He must take ordinary care to learn the dangers which him in her husband's carriage, and take him to a school are likely to beset him in the service. He must not go where he taught, and bring him home again. He went blindly to his work when there is danger. He must with her and her children on a pleasure trip, and they inform himself. This is the law everywhere. Beach made a trip alone to Philadelphia. The family moved Cont. Neg., $ 138; Russell v. Tillotson, 140 Mass. 201. to New York city, and he abandoned his wife and No man needs a printed placard to announce a yawna children, and for nine months boarded at her house, ing abyss when he stands before it in broad day-light. though it was more than fifteen miles distant from Yeaton v. Boston & L. R., 135 Mass. 418; Coolbroth v. the school. She made S. a visit at his bome, and even Maine Cent. R. Co., 77 Me. 168; Railroad Co. v. Keenan, after her husband had sued for a divorce, continued 103 Peun. St. 124; Osborne v. Knox & L. R., 68 Me. her familiarity with him. Held, that there was suff 51. And it was held in Wheeler v. Wason Manuf'g Co., cient evidence to establish her adultery with S. N. 135 Mass. 298, that where the servant is as well acJ. Ch., June 23, 1887. Osborn v. Osborn. Opinion by quainted as the master with the dangerous nature of Bird, V. C.
the machinery or instrument used, or of the service in
which he is engaged, he cannot recover. Beach Cont. MASTER AND SERVANT - NEGLIGENCE — RISK OF EM
Neg., $ 140; Hathaway v. Railroad, 51 Mich. 253; 47 PLOYMENT - COUPLING CARS. - An employee of ma
Am. Rep. 569. If the plaintiff, as is contended, was at ture years and ordinary intelligence, who has been
the time of this unfortunate occurrence in the perwarned of the danger of coupling cars, takes upon kimsell the manifest risk of coupling a buffer engine
formance of duties outside of his regular employment,
he will nevertheless be held to have assumed the risks with a car, tbe source of dauger being as apparent to
incident to those duties. This principle is settled by the employee as to the employer. If a servant of full age and ordinary intelligence, upon being required by
numerous decisions. Woodley v. Metropolitan Dist.
Ry. Co., 2 Exch. Div. 389; Railroad v. Fort, 17 Wall. his master to perform other duties more dangerous and complicated than those embraced in his original
553; Rummell y. Dilworth, 111 Penn, St. 343; Buzzell
v. Laconia Manuf'g Co., 48 Me. 121; Hayden v. Smithhiring, undertakes the same, knowing their dangerous
ville Manuf'g Co., 29 Conn. 548; Wright v. New York character, although unwillingly and from fear of losing
Cent. R., 25 N. Y. 570; Leary v. Boston & A. R., 139 his employment, and is injured by reason of his ignor
Mass. 587. In the last case cited, where the question ance and inexperience, he cannot maintain an action
is fully discussed, the court say: "Where ove has asagainst the master for such injury. The employer is not bound to furnish the safest machinery, instru
sumed an employment, if an additional or more dan:
gerous duty is added to his original labor, he may mentalities, or appliances with which to carry on his
accept or refuse it. If he has an existing contract for business, nor to provide the best methods for their operation, in order to save himself from responsibility,
the original service, he may refuse the additional and
more dangerous service; and if for that reason he is resulting from their use. If they are of au ordinary
discharged, he may avail himself of his remedy on his character, and such as can with reasonable care be used without danger, except such as may be reasonably
contract. If he bas no such contract, and knowingly, incident to the business, it is all that the law requires.
although unwillingly, accepts the additional and more Railroad Co. v. Sentmeyer, 92 Penu. St. 276. Thus it
dangerous employment, he accepts its incidental risks; has been held that where au injury happens to a ser
and while he may require the employer to perform
his duty, he cannot recover for an jujury which occurs vant wbile using an instrumeut, an engine, or a maobine in the course of his employment, the nature of
only from his owu inexperience. Sup. Jud. Ct. Me., which he is as much aware of as his master, and in the
June 4, 1887. Wormell v. Maine Cent. R. Co. Opinion use of which he receives an injury, he cannot, at all
by Foster, J. events is the evidence is consistent with his own neg NEGLIGENCE-DANGEROUS PREMISES-OPEN HATCHligence iu the use of it as the cause of the injury, re WAY ON BOAT - CUSTOM.- It is not negligence for the cover against his master, there being no evidence that owner of a boat laid up in winter quarters to leave her the injury arose through the personal negligence of batches off without guards to prevent persons falling the master; and that it was no evidence of such per into them. These hatohways are intended to be left sonal negligence of the master that he bad in use in his open a large portion of the time when vessels are in business an engine or machine less safe than some port, and especially when they are laid up for the winother in general use. Dynen v. Leach, 26 L. J. Exch. ter. At such seasons of the year the owner has the 221. And in accordance with the same principle it was right to leave the hatchway open and unprotected, exheld in Indianapolis, B. & W. Ry. v. Flannigan, 77 Ill. cept by the usual coamings, and all persons walking 365, that a railroad company was not liable for an in upon the decks of such vessels are chargeable with nojury received by an employee wbile coupling cars hav. tice of the probable presence of open hatch ways on the ing double buffers, simply because a higher degree of deck. It would be preposterous to hold that the owner care is required in using them than in those differently who places his vessel in charge of a ship-keeper during constructed. So in Fort Wayne, eto., R. v. Gilder- the time she is out of commission, and lying in winter sleeve, 33 Mich. 133, it was decided that a railroad com quarters, is charged with the duty of building a railing pany which used in one of its trains an old mail car, around the open hatchways, or with maintaining a which was lower than others, was not liable to its ser- light to indicate danger, for the purpose of protecting vant, who knowingly inourred the risk, for an injury persons from injury by falling into them. It is true, resulting from the coupling of such old car with an. | the plaintiff testified that it was the custom to leave other, though the danger was greater than with cars of the batches off for the purpose of ventilation, but he equal height. Every employer has the right to judge says that they put a railing round them so as not to for himself in what manner he will carry on his bus make a trap for a man to fall into. I am satisfied that iness, as between himself and those whom he employs, this testimony was intended more as an excuse for his and the servant having knowledge of the circumstances own carelessneys than to establish the fact that it was must judge for himself whether he will enter his ser- usual to protect the open batohways by a railing. On pice, or having entered, whether he will remain. cross-examination he was unable to tell exactly wben Hayden v. Smithville, 29 Conn. 548; Buzzell v. Laconia he saw a hatohway protected by such railing. He says it was a passenger boat in the spring of the year, when case to recover damages for injuries to plaintiff's millthey were getting her ready for navigation, and not in poud, caused, as is alleged in the writ, by the highway the winter time, when she was laid up. This was the surveyor of the defendant town digging a ditch which only instance he ever knew of where such protection turned the drainage from Belknap's tripe factory into was provided. I do not think it establishes the duty the pond, thereby rendering the water unfit for use or contrary to what is known and recognized as the es- for cutting ice. A town is not liable for an act which tablished custom. Dwyer y. National Steam-Ship Co., results in creating a nuisance to the property of one 4 Fed. Rep. 493. In the case cited, the court said: of its citizens, when the act complained of, e. g., dig“Such a duty would be burdensome in the extreme, ging a drain, is not within the scope of its corand is not required by law. The requirement would porate powers. The authority and liability of our be unreasonable, has never been observed in practice, quasi public corporations known as towns, disnor so far as I kuow, declared in any adjudicated tinguished from municipal corporations, incorporcase." That was a case of a vessel lying in port being ated under special charters, are generally only laden for a voyage, and the injury occurred by falling such as are defined and prescribed by general statutory through a hatchway that was defectively covered. If provisions. Some things they may lawfully do, and a ship-owner owes no duty to a party injured under other things they have no authority for doing. To such circumstances, how much less does he owe a duty create a liability on the part of a town not connected to keep the hatchways covered and safe when the ves- with its private advantage, the act complained of must sel is laid up in the winter season, wheu navigation is be within the scope of its corporate powers as defined suspended, when no one has business upon her, and by the statute. If the particular act relied on as the when she is placed in charge of a ship-keeper whose cause of action be wholly outside of the general pow. duty is to keep the hatch ways open for ventilation, ers conferred on towns, they can in uo event be liable and to keep all persons off the boat without they have therefor, whether the performance of the act was exwritten permission to go on board from the manager pressly directed by a majority vote, or was subseor owner. Sup. Ct. Micb., July 7, 1887. Caniff v. quently ratified. Morrison v. Lawreuce, 98 Mass. 219. Blanchard Nav. Co. Opinion by Champlin, J.
So a town is not liable for the unauthorized and ille- NEGLIGENT BUILDING - CONTRACTOR. - Ii
gal acts of its officers, even when acting within the by reason of defendant's building operations,
scope of their duties, (Brown v. Vipalhaven, 65 Me. plaintiff's adjoining property is injured, as for exam
402; Small v. Danville, 51 id. 359); but it may become
so when the acts complained of were illegal, but done ple, by the insertion of a girder into an old and weak party-wall, defendant, although he has intrusted the
under its direct authority, previously conferred or subwork to independent contractors, cannot escape liabil.
sequently ratified. Woodcock v. Calais, 66 Me. 234, ity if the injury was occasioned, not by poor work
and cases there cited. Sup. Jud. Ct. Me., April 5, 1887.
Seele v. Inhabitants of Deering. Opinion by Virgin, J. manship or materials, but by the use of defective plans and specifications. Horner v. Nicholson, 56 Mo. 220; RAILROAD – DISCRIMINATION IN FREIGHTS. - The Morgan v. Bowman, 22 id. 538. It was the duty of the act of the Illinois Legislature approved May 2, 1873 (2 defendant to use all reasonable care and caution in Starr & C. 1962), to prevent extortion and unjust disproviding plaus and specifications to the end that a crimination in railroad freights between different building, when constructed in accordance with them, points, provides a penalty for the violation of the act, would not be dangerous to the plaintiff's property. to be recovered in an action of debt. The evidence The instructions for plaintiff are in entire accord with showed that a certain amount of freight was carried what has been said; for they proceed upon the theory fifty-five miles to one point at sixteen cents per hunthat the plaintiff could recover, though Barnes & Mor dred, and that the same amount of the same kind of risou were independent contractors, provided the in- | freight was carried on the same line of railroad at the jury arose from and was occasioned by the use of de- same time, one hundred and seventeen miles, to anfective plans. But it is contended on the other hand, other point, at ten cents per hundred. No evidence and correctly too, that if the plans and specifications was presented that the parties at the first-named point were in themselves sufficient to secure a safe construc were injured by the discrimination, and it appeared tion of the work, and that the work was insufficiently that there was no business competition between the done by independent contractors, then the defendant two points, and that there was a competing railroad should not be held liable. Sup. Ct. Mo., June 20, 1887. carrying to the more distant point. Held, that the Lancaster v. Connecticut Mut. Life Ins. Co. Opinion railroad company was guilty of discrimination and by Black, J.
liable for infringement of the statute. Sup. Ct. Ill.,
June 17, 1887. Illinois Cent. R. Co. v. People. Opinion NEGOTIABLE INSTRUMENTS — MAILING NOTICE
by Scholfield, J. STREET LETTER-BOX.- It is objected that the notices
- STREET - ORDINANCE - DUTY TO REPAIR were not properly mailed, because they were dropped into a street letter-box. We think this is not a valid
STREET — RIGHTS OF CITY. - The city of Columobjection. Street letter-boxes are authorized by an
bus, by ordinance, granted the privilege to a company act of Congress (Rev. St. U.S., & 3868,) and are as com
to construct and operate a street railroad on one of its pletely and as exclusively under the care and control
streets for a specified period. The ordinance provided
that the company should make, construct, and keep in of the post-office department as boxes provided for the
order and repair all that part of the street included reception of letters within the post-office buildings
between the rails of its tracks and switches, in the themselves; and we think a letter deposited in a street
same manner, and with like material, as the street is letter-box, which has been put up by the post-office department, is as truly mailed, within the meaning of
constructed and repaired, so long as it shall use the
same for its railroad; and any failure to comply with the law, as if it were deposited in a letter-box within the post-office building itself. It has been held that
the provisions of the ordinance, or with any general delivery to a letter carrier is sufficient. Pearce v.
ordinance of the city regulating the use of its streets, Langfit, 101 Penn. St. 507. Sup. Jud. Ct. Me., April
or the police regulations thereof, should render such 19, 1887. Casco Nat. Bank v. Shaw. Opinion by Wal
railroad company liable to the city in an action of ton, J.
damages for such failure; and the council, after giving
the company twenty days' notice, should have the NUISANCE - MUNICIPAL CORPORATIONS - TOWN --| right to order any work to be done on the railroad LIABILITY FOR – ULTRA VIRES. – Action on the necessary to keep it in repair, and charge the cost and expense thereof upon the railroad company. Held, (1) | He held for Holmquist a specified number of bundles, that tbe ordinance did not divest the city of its con- which were a portion of a quantity that was ascertrol of the street, or abridge its right to improve the tained and certain, and with which the seller had same, and it might during the period named cause to nothing further to do. While the Euglish and some of be made new improvements thereof, including the part the American courts hold that in all cases the goods occupied by the street railway, and determine the kind sold must be separated and specifically identified beof improvements to be so made. (2) By constructing fore the title will pass, the weight of authority in this and operating its railway, the company accepted the country is, that where the property sold is a part of au burdens with the privileges of the ordinance, and ascertained mass of uniform quality and value, sepathereby incurred the continuing obligation to make, ration is not essential, and the title to the part sold construct, and keep in order and repair, as long as it will pass to the vendee, if such appears to be the inenjoyed those privileges, the portion of the street be tention of the parties. This principle has been recogtween the rails of its track, including such new im nized by this court in a recent decision, and the auprovement thereof as the city may determine and di thorities sustaining that view were there approved. rect. (3) When after notice the company fails to do Piazzek v. White, 23 Kan. 621. The Supreme Court of the work as required of it, and the city then causes it Connecticut, in an action involving the title to three to be done, its reasonable cost may be recovered by hundred and eighty bags of meal which had been puraction against the company; and it is not essential to chased from a larger number of similar bags, considthe liability of the company therefor that the notice ered this question, and while holding that where the to make such improvement precede the letting of the articles sold from a larger number differed in quality, contract by the city for the same. It is sufficient if quantity, or value, a separation was essential to transsuch notice be given before the work is done, and while fer the title, stated, that “where the subject matter of the company may still perform the same. (4) Where | a sale is part of an ascertained mass of uniform qual. the company, after receiving such notice, without at- ity and value, no selection is required; and in this tempt to perform any part of the work required of it, class of cases it is affirmed by authorities of the highpermitted the city, without objection or complaint, to est character that severance is not, as a matter of law, commence and complete it, adjusted the track of its necessary in order to vest the legal title in the vendee railway to conform thereto, as it progressed, and with to the part sold. The title may and will pass if such is knowledge that the city expected it to pay for the the clear intention of the contracting parties, and if same, and of all the circumstances, received all the there is no other reason than want of separation to benefits thereof as fully as if it had been performed by prevent the transfer of the title." Chapman v. Shepthe company, the city may recover the reasonable costard, 39 Conn. 413; Kimberly v. Patchin, 19 N. Y. 330; of the work 80 done, although the notice does not Pleasants v. Pendleton, 6 Rand. 473; Hurff v. Hires, strictly conform to the requirements of the ordinance. 40 N. J. Law, 581; Carpenter v. Gaabam, 42 Mich. 191; Sup. Ct. Ohio, April 26, 1886. City of Columbus v. Co Waldron v. Chase, 37 Me. 414; Horr v. Barker, 8 (al. lumbus Street R. Co. Opinion by Williams, J.
603; 11 id. 393; Phillips v. Oomulgee Mills, 55 Ga. 633;
Young v. Miles, 20 Wis. 646; Clark v. Griffith, 24 N. Y. SALE – VESTING TITLE — SELECTION.- Where a certain number of articles are sold from an ascertained
595; Lobdell v. Stowell, 51 id. 70; Groat v. Gile, id. lot which are identical in kind and value, a selection
431; Gardner v. Dutch, 9 Mass. 426. A further citation
of cases, or an extended examination of the conflicting is unnecessary, and a separation is not essential to
decisions upon this question is unnecessary here. A transfer title to the vevdee. In such a case, the price
very elaborate and careful review of the authorities is being paid in full, the title will pass if it appears that
made by Mr. Benjamin in his treatise on Sales, in the parties so intended. We think the sale of Holm
which he reaches the conclusion, that when the propquist was complete, although the twenty-five thousand
erty sold is part of a mass made up of units of unequal plants sold were not separated from the whole number delivered, and that the action for conversion can
quality, such as cattle out of a herd, their selection be maintained. It will be observed that the contro
being material, the decisions all hold that the title versy is not with the vendor. He had received full
will not pass until a selection has been made, but that payment, had tied the plants up in bundles, and had
the weight of recent American authority sustains the delivered them at the place agreed upon. By this ac
proposition that when property is sold, to be taken tion he intended to trausfer the title to Holmquist,
out of a specific mass of uniform quality, the title will and he has ever since regarded and treated it as a com
pass at once upon the making of the contract, if that
appears to be the intention of the parties. 1 Benj. plete sale. Nothing remains to be done by him to ascertain the quantity, quality, or price of the plants
Sales, SS 469-487. The present case falls within this au
thority, which we deem to be controlling, and hence sold. It is argued, that because the bundles intended
there must be an affirmance of the judgment of the for Holmquist were not set apart or designated by some mark, the title did not pass. But separation
District Court. Sup. Ct. Kan., June 11, 1887. Kingcould not make more certain the quantity, quality, or
man v. Holmquist. Opinion by Johnston, J. price of the plants purchased by Holmquist. They SPECIFIC PERFORMANCE - WHEN NOT ENFORCEABLE. were a part of a specific and ascertained quantity. - Complainant entered into a written contract with There were three hundred and twenty-eight bundles four persons engaged in conducting hotels in a city, to of plants which were uniform in the number contained run impartially, for the benefit of all four, a hack line in each, as well as in the quality and value. It was to convey guests to and from the depot and hotels for therefore immaterial from what part of the whole the the period of five years, in consideration of their one hundred bundles of Holmquist were taken. No refraining from running free backs or omnibuses. possible advantage could hare been gained by either One of the persons, who was the only one who owned party if the privilege of selection had been conferred his hotel, or had a tenure that necessarily extended upon him, and it is idle to dispute about the identity through the period of five years, assigned his busof articles that are equal in kind and value. Each had iness to his sons; and they, claiming that complainant a right to a certain number of the whole, and either had discriminated against their hotel, started a line of had a right to take possession of the number that be free omuibuses: whereupon complainant sought to belonged to him; and indeed the circumstances under enjoin them from running the free line, and to compel which Kingman received the plants are such that he a specific performance of the contract. It appeared might properly be regarded as the bailee of Holmquist. I that another one of the hotels had also changed hands.
Held, that under the circumstances, and changed rela tag device was adopted to prevent frauds on the retail tions of the parties, specific performance could not be purchaser, who could then be sure that he obtained decreed. Sup. Ct. Mich., June 9, 1887. Pingle v. Con. what he wanted, and of which he could not be sure as ner. Opinion by Morse, J.
long as the trade-mark was only on the top of the box STATUTE OF LIMITATIONS - AVOIDING BAR – PAR
in which the tobacco was packed. The tin tags marked, TIAL ADMISSION.-If a debtor admits a certain sum to
lettered and arranged, as we have said, constitute the be due upon an outlawed debt, and pays such sum,
most material part of the trade-mark of the plaintiffs. his admission will not avoid the bar of the statute as
The infringement complained of here is that the to a further sum claimed by plaintiff to be due. Sup.
tobacco of the defendants, in every essential particuCt. Penn., May 23, 1887. Cronshore, Adm'rs, v. Knox.
lar, is gotten up in imitation of the plaintiffs’, and Opinion Per Curiam.
that the imitation is so close as to mislead the ordi.
nary purchaser. The exhibits will convince every imTAXATION – "PROPERTY.”-“Property within the
partial observer that such is the fact, and the evidence town subject to taxation" does not include insolvent will convince any impartial judge that this similarity credits held by a citizen and resident of the town, is the result of design, and not of accident. The law consisting of notes and bonds due from non-resident applicable to cases like this is fully stated in the case debtors owning 10 property in the town, and bonds
of McLean v. Fleming, 96 U. S. 245; and an extract issued by a city of anotber State. Pullen v. Commis
from the opinion in that case will cover this. “Much sioners, 68 N. C. 451. A similar restrictive import has
depends," says the court, “ in every case upon the apbeen given to the term in testamentary disposition in
pearance and special characteristics of the entire deseveral adjudications. In Pippin v. Ellison, 12 Ired.
rice; but it is safe to declare, as a general rule, that 61, Pearsou, J., says the word "estate” has a broader
exact similitude is not required to constitute an insiguification than the word “property." The former
fringement, or to entitle the complaining party to includes choses in action; the latter does not; and in protection. If the form, contents, words, or the special reference to personalty, is confined to "goods," which
arrangement of the same, or the general appearance term embraces things inanimate, — furniture, farming of the alleged infringer's device, is such as would be utensils, etc., - and chattels, which term embraces | likely to mislead one in the ordinary course of purliving things, slaves, horses, cattle, hogs, etc. This of
'chasing the goods, aud induce him to suppose he was course has reference to the residuary disposition of
purchasing the genuine article, then the similitude is the testator's estate. Scales v. Scales, 6 Jones, Eq.
such as entitles the injured party to equitable relief." 163; Hastings v. Earp, Phil. Eq. 5. In Hogan v. Hogan,
Many cases might be cited extending and amplifying 63 N. C. 222, the bequest was: “And should there be this doctrine, but we will content ourselves with but any thing at my death undivided, it is my wish that
one more extract, and that from the English case of it be sold and equally divided among my four sons
Johnston v. Ewing, 7 App. Cas. 219, where the judge, after paying my funeral expenses and all just debts."
in delivering the opinion of the House of Lords, said: In the opinion delivered by Reade, J., the cases where
“No mau, however honest his intentions, has a right a restrictive meaning is put upon the words "estate to adopt and use so much of his rival's trade-mark as and property" are reviewed and distinguished from
will enable any dishonest dealer into whose hauds his that then before the court, in that the property was to
goods may come to sell them as the goods of his rival.” be sold and the proceeds divided, and the words were When we consider that the article, chewing tobacco, is of more limited signification, and not as broad as
bought and used most extensively by a large class of “any thing," here used by the testator. But the pre the illiterate and ignorant, we think no stronger case vious rulings are put upon the ground only that as of the infringement by simulation than this can be credits and mouey are not the proper subjects of sale, found in the books. Md. Ct. App., June 23, 1887. the intention cannot be imputed to the testator to Parlett v. Guggenhiemer. Opinion by Stono, J. embrace such in the direction to sell and distribute:
WATERS AND WATER-COURSES – OBSTRUCTION - LI. and this method of interpretation, if correct, would
ABILITY.- Plaintiff, who owned a shingle-mill above equally apply to the clause recited. Nor do we see
defendant's grist-mill, situated on the same stream, clearly the distinction pointed out in the terms of the
permitted the refuse from his mill to fall into the bequests. In the other cases there was to be a sale, and the proceeds divided, and is not the necessary
stream, and float down into defendant's pond, where
it interfered with the operation of his mill. Defend. consequence of executing a direction to sell and divide; for after a sale, what was there to divide but
ant felled trees into the stream on his land to arrest the proceeds arising from the sale? The decisions are
the refuse, and caused the water to back up, and intherefore not in harmony, and are referred to as
terfere with the running of plaintiff's mill, and plainshowing how the usual import of words may be re
tiff sued him for damages. Held, that plaintiff's own strained in their operation by the context. N. C. Sup.
unlawful act having contributed to the injury comCt., June 6, 1887. Vaughan v. Toun of Murfrees
plained of, the court would not interfere to determine borough. Opinion by Smith, C. J.
which of the parties was the more culpable, and that
he could not recover. Sup. Ct. Mich., June 23, 1887. TRADE-MARK-INFRINGEMENT -" GOLDEN CROWN" Davis v. Munroe. Opinioù by Champlin, J.; Sher-"GOLDEN CHAIN.”- Plaintiff, a manufacturer of wood, J., dissenting. plug twist chewing tobacco, marked the words "Golden Crown" on the boxes in which it was packed, and fastened four tin tags of a particular size, shape, lettering, and position on cach bar of the tobacco, with
THE PERILS OF AN “EASY SHAVE.” the words “Golden Crown”on each one. Defendant, in the sale of his plug tobacco, used the words “Golden A CURIOUS case was tried the other day in the Chain,” in connection with the tin tags, lettered and A Tiverton ('ouuty Court. The plaintiff was a postarrang din a manner similar to that adopted by plaine man, and apparently actuated by a laudable esprit de tiff. Held, that while the words “Golden Chain" corps, and a praisewortby desire to keep up the repumight not be an infringement of plaintiff's trade tation of the employees of her majesty's postal service mark, their use in connection with the tags was as a “clean and tidy" body of men, went to the shop calculated to deceive the ordinary purchaser, and of the defendant, a barber, and out of his own pocket, should be restrained. These tin tags forin a very im- and with no intention to demaud reimbursement from portant part of the plaiutiffs' trade-mark. The tiu- government, expended the lowly, but to him, perhaps,
considerable sum of one penny in a shave. With the because he was incompetent; and was held good bemodern Figaro's personal skill in his difficult profes cause a skilled laborer, or artisan), or artist impliedly sion, the litigaut postman had no fault to find. He warrants that he is of skill reasonably competent to had a clean and comfortable shave, and was not out or ! the task he has undertaken, and if he shows incompescraped. But it was the soap that gave rise to the tence he may be summarily dismissed. letter-carrier's grievance. He alleged that Mr. Barber Story v. Richardson does not seem to be in point at had used some irritant and deleterious kind of soap, all, the question there being if A, B, and C, partners, which brought on a skin disease - eczema. This caused employ X to examine their accounts and settle the him much suffering, annoyance and expense; and egged balance due each partner, and X negligently makes on, po doubt, by some sanguine legal adviser, he out a wrong balance as due to A, whether A might sue brought an actiou against the barber for £4, 193. as alone, and it was held that he might do so. damages. Alas! the “glorious uncertainty" of the In Lee v. Walker, L. R., ✓ C. P. 121, the defendant Jaw again was made manifest, and his honor Judge undertook for reward to act for the plaintiffs as a skilled Patterson decided that the defendant was not liable. agent in obtaining a patent for them; ho delayed apThere does not seem to have been any question as to plying for a fiat to get the letters-patent sealed, aud whether or not the cause of the plaintiff's sufferings consequently, another party got in and secured letters. was the soap; it seems to have been admitted that the patent for a similar invention to the plaintiffs.' The eczema did result from the injurious properties of the point in the case was, Was this delay evidence of negsoap used by the defendant. "But," contended the ligence, and want of reasonable and ordinaay care aud defendant, “even if your disease did result from my knowledge, which the defendant impliedly contracted using deleterious lather, I am not legally liable. I am to use? It was held it was. not guilty of a tort toward you; if you are to succeed A case which seems to have been overlooked is in recovering damages against me, it must be on the George v. Skivington, L. R., 5 Ex. 1, where it was held ground that I have committed a breach of some im that a chemist would be liable for negligence if be plied contract with you. Now when I agreed to compounded a hair-wash by which the plaintiff's wife shave you, I contracted impliedly that I was skilled in was injured. But here the plaintiff became owner of my profession, and that I would exercise such adroit the hair-wash. It was a case of warranty of an article ness that I would do my work efficiently, and would' sold. cause you no damage by any want of skill on my part. In a case of works of art, the work and skill of the You cannot and do not find any thing blameworthy in workman constitute in general the essence of the conmy tonsorial acquirements. If you could attribute tract, the materials being merely accessorial; and the injury wrought on you to that, then I admit I whenever the skill and labor are of the highest descripshould be liable to you;” and he (or rather his coun | tion, and the materials of small comparative value, sel, for it would be rash to presume that he was as the contract is a contract for work, labor, and mateskillful in law as in shaving) quoted Harmer v. Corne rials, and not a contract of sale. This seems to be the lius, 5 C. B. (N. S.) 246; Story v. Richardson, 6 Bing. clear law on the subject. Applying it then to the N. C. 123; Jenkyn v. Bethune, 24 L. J. C. P. 94; and case of our barber, we conclude that his contract with Lee v. Warner, L. R., 7 C. P. 121, in support of his con- | the postman was one relating to work and labor, and tention. Then he went on: “ With regard to the tools was not a contract of sale. The barber's contention I used, you find no fault with my razor; you do not then seems to be right. He contracted to use reasonallege it was unfit for shaving, or that I was wanting able skill, and he used it; tbe damage was caused by in skill in its use. As to my materials — here it is dif. the materials he used; but the contract not being a ferent-you do find fault with them. You say that contract of sale, he cannot be takeu to have warranted the soap I used was bad, and that its bad qualities the absolute purity and innocuousness of the materials were the cause of your complaint. Well, I do not deny employed; at most he can only be considered as guarit. But I do say that my implied contract with you anteeing to his customer that he had due experience did not bind me to use soap which was perfec:ly barm in the choice of such materials, and had exercised less. All I undertook with reference to the materials, proper care in selecting them. This he appears to have that is, the soap I used, was that I would exercise or done. dinary care to obtain soap of such a nature or quality The decision then amounts to this: When you enas might be proper for my work. Now you have not trust yourself to the tender mercies of a barber, you shown that I neglected on this occasion to obtain what must bear in mind that you run a certain amount of was proper and wholesome. The soap I used is the risk, and render yourself liable to be damaged without same soap as I have used during the thirty years for the hope of recovering compensation. If you are inwhich I have exercised my profession as a barber, and jured by the professor's want of care, knowledge, or I purchased it from the maker just four days previous skill, you have a remedy; but if the injury arises from to the day on which I shaved you. The soap I used a defect in the materials employed, the defect being was ordiuarily proper, and was procured by me in the unknown to the barber, and he having exercised ordiordinary way at a proper shop for its sale, and if there nary care in choosing the materials, you will have to was any thing wrong with it, I was entirely ignorant | suffer in silence.-Law Notes. of the fact. I exercised all reasonable care, at all events all such care as I was legally required to exercise, aud therefore I am not liable."
DEATH OF AARON J. VANDERPOEL. With this argument his honor concurred, and accordingly, as we have said, he gave judgment for the defendaut.
THE legal profession has sustained a great loss in the The decisions mentioned in the case merely go to il T recent death of Aaron J. Vanderpoel, who died in lustrate the well-established rule, that a man who rep- | | Paris, France, on the 22d instant. He was born resents himself as a person skilled in any particular at Kinderbook, N. Y., Oct. 28, 1825. He pre. profession, art, trade, or business, is legally required pared for college at the Kinderhook Academy, to show that he possesses such skill.
and at the age of fourteen entered New York UniverHarmer v. Cornelius. 5 C. B. (N. S.) 236, was an ac- sity, from whence be was graduated in June, 1842. As tion by a painter for damages for wrongful dismissal. he had selected the legal profession for bis occupation The defense was that the plaintiff had been disinissed in life, he immediately after graduating entered the