ing to accomplish by its offer. The compliance with the terms of the offer created a contract supplementary to the contract of employment. By this supplementary contract the respondent agreed to reward the appellant for remaining in its employ and refraining 'from accepting employment elsewhere until this company shall complete the ships.'"

A judgment in favor of the defendant was reversed.

NEGLIGENCE

Negligence of Borrower of Automobile Not Attributable to the Owner Tobin v. Syfrit, Superior Court of Delaware, 122 Atl. Rep. 244

In an action by George S. Tobin against Leon Syfrit it appeared that Tobin lent his automobile to his grandson, and while the latter was driving it the automobile was seriously damaged by colliding with an automobile truck owned by the defendant and driven by his agent. The plaintiff contended that the collision was due to the act of the driver of the truck in turning it suddenly and without warning across the road and directly in the path of the plaintiff's

machine.

L

The defendant contended that the driver of the truck gave proper warning of its change of direction and that the accident was caused by the negligence of the driver of the plaintiff's machine.

It was held that the negligence of the borrower of the plaintiff's car could not be attributed to the plain tiff and could not prevent the latter from recovering damages for an injury to his property caused by the

negligence of the defendant. In so holding, the court said:

"Where one person lends an automobile or vehicle to another to be used by him at his pleasure, the borrower becomes a bailee and is in no sense a servant of the owner; he is responsible to the bailor, or owner, for the reasonable use of the property borrowed, and to third persons for the negligence of himself or his servants while said property is in his care and control, but the negligence of the borrower or bailee is not attributable to the bailor or owner of the property and can in no way prevent him from recovery for damages to his property caused by the negligence of a third person."

PARTNERSHIP

Intent to Deceive Not Necessary to
Bind Person Representing
Himself as Partner

Bedell v. Morris, California District
Court of Appeal, 218 Pac.
Rep. 769

J. Morris, prior to his death, had conducted a broom and brush business under the name of J. Morris & Co. He purchased brooms and brushes from William James and Walter Rueger, and at his death left bills owing to both of them.

After the death of J. Morris the business was continued with its office at the place of business of Jacob C. Morris, the decedent's son, under the name of J. Morris & Co. Checks were signed by Jacob C. Morris for J. Morris & Co. The books of the firm were kept by him and orders for brooms and brushes were given by him and also by his brother, Irving Morris.

The amounts due and owing by Morris & Co., at the time of the

death of J. Morris, having been paid off, further credit was extended to the firm by James and Rueger, who testified that they extended credit on account of the fact that they knew Jacob C. Morris to be a successful business man and financially responsible and notwithstanding the fact that they knew Irving Morris lacked experience and was financially irresponsible.

Subsequently the plaintiff, as assignee of James and Rueger, brought an action against Jacob and Irving Morris to recover the amounts due from Morris & Co. to James and Rueger. There was some conflict in the evidence as to whether Jacob C. Morris had represented and held himself out as a copartner of Irving Morris in the carrying on of the business as J. Morris & Co. The trial court found, however, in favor of the plaintiff and judgment was rendered in favor of the plaintiff against each of the defendants.

Jacob Morris appealed from the judgment, contending that there had been no intention on his part to represent himself as a partner in J. Morris & Co. or to mislead the plaintiff's assignors. In support of this contention he argued that to create liability on his part intentional or deliberate deception or fraud or gross negligence was required.

It was held that if the acts and conduct of Jacob Morris had been such as to lead persons dealing with the firm to believe that he was a copartner and assumed responsibility as such, it was not necessary to show that his acts or representations were actuated by the actual intent to deceive. Accordingly, the judgment appealed from was affirmed.

RAILROADS

Failure to File Claim of Loss Within Time Stipulated in Bill of Lading

J. C. Hubinger Bros. Co. v. Chicago, B. & I. R. Co., Supreme Court of

Iowa, 195 N. W. Rep. 762

In September and October, 1909, the plaintiff, J. C. Hubinger Bros. Co., shipped two carloads of feed from Keokuk, Ia., to Springville, N. Y. It was provided in the bills of lading issued to the plaintiff for the two cars that unless claims for loss, damage or delay should be made in writing to the carrier at the point of delivery, or at the point of shipment, within four months after delivery of the property, or, in case of failure to deliver, within four months after a reasonable time for delivery had elapsed, the carrier would not be liable.

It appeared that the feed reached Buffalo, the defendant's eastern terminus on October 15, 1909. The defendant then delivered the feed to the Western Transit Co., in whose warehouse it was placed to await deliv cry to the Buffalo & Susquehanna Railway for transportation from Buffalo to Springville. The latter railroad was immediately notified of the arrival of the feed and requested to furnish cars to carry the feed to its destination. The railroad, however, failed to furnish the cars. The feed, therefore, remained in the wa.ehouse until November 1, 1909, when it was destroyed by fire.

It further appeared that although the plaintiff knew of the loss within three months from the time of ship

ment, it did not file its written claim of loss with the defendant until June

28, 1911. The claim was rejected on Feb. 12, 1912. Thereafter, on January 12, 1914, more than four years after the destruction of the property, the plaintiff brought this action to recover from the defendant as the initial carrier of the shipment. Meanwhile, the Buffalo & Susquehanna Co., which had been at fault in failing to deliver the feed, and which would have been liable to the defendant for any amount which the latter might have been obliged to pay by reason of the plaintiff's claim against it, had become insolvent.

It was held that the plaintiff's failure to give notice of its claim as required by the bills of lading within four months from the time the shipment should have been delivered precluded the plaintiff from recovering. A directed verdict for the defendant was affirmed.

Railroad Held Not Bound by Agent's Agreement

Moon v. Chicago, B. & Q. R. R., Supreme Court of Iowa, 195 N. W. Rep. 196

In an action brought against the Chicago, B. & Q. Railroad to recover damages for injury to a carload of strawberries delivered by the plaintiffs to the defendant at Montrose, Ia., for transportation to Chicago, it appeared that while the berries were in the car at Montrose the car was struck by another car switched against it by a freight crew. As a

result of the collision the berries were damaged.

The plaintiff's alleged that after the car had been struck a person named Meinhardt, employed by the

railroad as a supervisor or superintendent of refrigeration, told them to ship the berries for sale to Weaver & Co. in Chicago and stated that the railroad would pay the difference between the price obtained for the berries in Chicago and the price for which they had been sold at Montrose.

It appeared that the berries had been sold at Montrose for $6 a crate to purchasers who refused to accept them after the accident. At $6 per crate the value of the carload of berries was $2,520. The amount realized from the sale of the berries in

Chicago, less expenses, was $1,529.50. The plaintiffs, therefore, sought to recover $990.50.

The railroad contended that its alleged agent, who testified that he was "supervisor of perishable freight service" whose business it was "to supervise the icing of cars, the loading and service in transit," had not been authorized to make the agreement in question.

It was held that the defendant's agent had no general or implied power to bind the defendant by the agreement. The views of the court are set forth in the following quotation from the opinion:

"A 'supervisor or superintendent of refrigeration' of a railroad, whose duties were to 'supervise the icing of cars, the loading and service in transit,' does not have, by reason of such power, any general implied authority to bind his principal by a contract of the character of the one sued upon, which was in effect nothing more nor less than an agreement to adjust and pay certain damages for injury claimed to have been caused by appellant's negligence.

"Meinhardt (the 'supervisor') was not the agent of the railroad company in charge of the business of accepting

and billing freight, nor was he a claim agent of the company, clothed with authority, either express or implied, to adjust claims for damages. Conceding that he had authority to supervise the manner of loading and of refrigeration of the car in question, this did not carry with it any general implied authority to bind his principal by a contract of this kind.

"Did an emergency arise, which vested Meinhardt with implied authority to make the contract in question? That an agent may have implied authority to bind his principal under certain emergencies is well recognized by the authorities. This usually grows out of the character of the employment and the obvious necessities created by the emergency. In such a situation the agent is sometimes referred to as 'an agent of necessity.' It is scarcely correct to say that the implied authority

to act arises when the emergency occurs. The implied authority to act in the emergency inheres in the original employment of the agent. It is called into use when the emergency arises."

A verdict in favor of the plaintiff was reversed.

RESTRAINT OF COMMERCE

Fact That Only Small. Amount of
Commerce Was Restrained Held
Immaterial in Prosecution
Under Sherman Act

O'Brien v. United States, U. S. Circuit
Court of Appeals, 290 Fed.
Rep. 185

While a strike was in progress at the rolling mills in Newport, Ky., the management of the mills arranged to sell a steel hillet to a manufacturer in Cincinnati, Ohio. As delivery was to be made at the mills the purchaser sent from Cincinnati an automobile truck, the driver of which was in

structed to get the billet and bring it to Cincinnati. After the driver had received the billet, loaded it on his truck and started for Cincinnati, he was stopped by the defendants, and, as a result of a conversation with them, he returned to the mills and unloaded the billet.

Subsequently the defendants were indicted and tried for having conspired to restrain and obstruct interstate commerce in violation of the Sherman Act, it being the theory of the prosecution that the defendants were, in effect, strike pickets and that by threats and intimidation they compelled the truck driver to refrain from delivering the billet. The defendants were convicted.

The judgment of conviction was affirmed on appeal, since it appeared that there was sufficient evidence to support the jury's finding that the defendants' conduct amounted to intimidation of the driver by threats of force rather than merely to peaceful persuasion. The court regarded as untenable the defendants' contention that the amount of commerce involved was too insignificant to justify invoking the Sherman Act. It held that the existence of the offense was found not in the amount of commerce restrained but in the direct and absolute character of the restraint.

SALES

Provision of Contract Fixing Time of Delivery Held Waived Roomberg v. Borden, U. S. Circuit Court of Appeals, 292 Fed. Rep. 32 On April 21, 1920, the plaintiffs, Bertram H. and Howard S. Borden,

entered into a contract with the defendants, Israel and Mark Roomberg, whereby the Bordens agreed to manufacture and sell and the Roombergs agreed to purchase 250,000 yards of shirt material at 30 cents per yard. The order was to be made up of 20 different styles, designated by numbers, of 12,500 yards each. "Sample" pieces of 150 yards of each style were to be delivered by the plaintiffs during July and August, and the balance, designated "stock," was to be delivered at the mill and charged to the defendants "when and as ready from September 1 to December 31, 1920."

On July 21, 1920, the defendants wrote the plaintiffs a letter containing the following request: "We would ask you kindly to postpone the shipments of goods till later, as we cannot see our way clear to receive goods just now and to store them."

In their reply to this letter the plaintiffs pointed out to the defendants that no goods were due them until September. The plaintiffs agreed, however, to disregard a request theretofore made by the defendants to ship one case of each style as soon as possible. Thereafter, on July 23rd, the defendants again wrote the plaintiffs, referring to this concession and requesting the plaintiffs to ship no goods in September. On August 30th the defendants wrote requesting the plaintiffs to cancel the entire order. The plaintiffs refused this request.

Thereafter, on September 16th, the defendants wrote a letter, in which they refused to accept and pay for any samples not shipped in July and August in accordance with the contract, and any stock, samples of

which had not been shipped in July and August. Prior to the date of that letter several samples and some stock had been shipped, but only one sample had been shipped before September 1st.

After receiving the letter of September 16th, the plaintiffs continued to manufacture the material covered by the contract, and offered to deliver it at the mill, the place designated for delivery in the contract. The defendants, however, refused to accept it. Thereupon, the plaintiffs sued for breach of contract, seeking as damages the difference between the contract price and the market price at the time and place of delivery of the material which the defendants had refused to accept and pay for.

The defendants contended that they were not obliged to accept or pay for any stock of which samples had not been delivered prior to Septemper 1, 1920, inasmuch as the contract required the plaintiffs to deliver samples of all the stock in July and August. The court held, however, that the requirement had been waived by the defendants who, therefore, had no right to defend on the ground that the plaintiffs failed to perform that provision of the contract. This conclusion resulted from an examination of the correspondence referring to the postponement of shipments. In discussing the question, the court said:

"At that time not a single sample had been shipped, but any and all of the samples might have been shipped under been shipped, but none could be shipped, the contract. Not only had no stock

at that time, in accordance with the terms of the contract, and the evidence