Page:Harvard Law Review Volume 1.djvu/56

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​SALE—ORDERS OF AGENT.—Under a statute imposing a fine on any person who, without a license therefor, shall, by sample or procuring orders or otherwise, sell intoxicating liquors, a commercial traveller for a firm in another State, who merely takes an order from a dealer in Connecticut and forwards it to his firm, who deliver it in their State, is guilty of an offence. State v. Ascher, 7 Atl. Rep. (Conn.) 822. The ground of the opinion is that “while delivery for all civil purposes completes the sale made by the drummer, vests the title in the purchaser, and gives the seller a right to the purchase money; yet, for all police purposes, it is competent for the Legislature to say that the acts done by the drummer shall of themselves constitute a sale, and therefore an offence.” A minority of two judges, dissenting, held that the drummer’s order was not even an executory contract, but merely an offer.

SURETY—DEBT OF ANOTHER.—McM. had in his possession funds of uncertain amount belonging to B, and promised M to pay, to the extent of his liability to B, a debt of B to M. The promise was made by accepting verbally an order of B directing McM. to pay M out of the funds in McM.’s hands. It was held that the promise of McM.was not to pay the debt of another, but to pay to M his own debt to B, and therefore not within the Statute of Frauds. Mitts v. McMorran, 31 N. W. Rep. (Mich.) 521. The conclusion seems correct, but not the statement that it was a promise to pay his own debt; for (a) a debt must be in a certain amount (Y. B. 12 E. 4, 9 pl. 22; 3 Leon. 161; 30 Alb. L. J. 223); (b) the funds which McM. held were the subject of a bill of account, and not of an action of debt; it was simply a fund in the hands of McM. belonging to B, and therefore could not be a debt.

STATUTE OF LIMITATIONS—TITLES.—In Chapin v. Freeland (142 Mass. 383) the facts were substantially as follows: A was owner of some counters; B converted them to his own use, and kept them for six years; they were then sold to C, from whom A, the original owner, peaceably retook them. C brings replevin against A. Held, C can recover, because A’s right of action against B, and also against C, was barred by the statute, and A cannot put himself in a better position by retaking the goods than he would be in if he had brought an action. Field, J., dissents. The Massachusetts Statute of Limitations bars the remedy, but does not transfer title, and inasmuch as A’s title to the goods remained unimpaired, and as he obtained them back peaceably, there is no reason why he should not keep them. Cf. Langdell on Equity Pleading, § 111 et seq.

It is difficult to escape the reasoning of Field, J. Moreover, at common law A might have brought detinue, for the Statute of Limitations does not run against the action of detinue till six years after a demand made by the original owner. This would seem to be an additional reason why A should be allowed to keep his goods.

QUASI CONTRACT—ACCIDENTAL BENEFIT.—The Pacific R. R. Co. sued the U. S. for services done in the way of transportation of passengers and freight, for which the U. S. are indebted to it in the sum of $136,196.38. The U. S. pleads, as a set-off, the cost of certain bridges built by the U. S. for and at the request of the Company. The question is whether the set-off shall be allowed. In evidence it appeared that during the civil war some of the bridges of the Company were destroyed, partly by the Confederate, and partly by the Union armies. Some of these were rebuilt by the Company, but the bridges in question were constructed by the U. S., to enable them to carry on military operations.

The court held, that under these circumstances, as there was no contract, express or implied, to build these bridges, and as they were constructed only as a military necessity, the U. S. could not charge the Company for them. In an interesting opinion, Field, J., discusses how far the government is liable for property destroyed during the war, and how far the principle applies that private property shall not be taken for public use without compensation.

The point in implied contracts is a nice one. The case is instructive to show that benefit is not the basis of recovery where it is purely accidental, and where the enriching party intended only to benefit himself. U. S. v. Pacific R. R. Co., 7 Supr. Ct. Rep. 490.