Central Law Journal.

ST. LOUIS, MO., MAY 12, 1916.

MAJORITY OF COURT SHOULD AGREE ON DECISIVE RULINGS.

In 82 Cent. L. J. 277 we discussed "Unnecessary Judicial Opinions," as "Breeders of Confusion" and we find in Jones Nat. Bank v. Yates, 36 Sup. Ct. 429, decided April 3, 1916, remarks by Justice Hughes which seem to give some point to the views we expressed.

There the Supreme Court of Nebraska was reversed and judgment of trial court reinstated on the merits. In so deciding, the learned justice, among other things, said: "It is apparent that there were no findings of fact by the Supreme Court of the state. The actions being at law and trial by jury being waved, the findings of fact made by the trial court-as we understand the local practice had 'the same force and effect' as the verdict of a jury. *** But apart from these considerations, findings of fact by the Supreme Court would necessarily require the action of a majority of that court, and it is plain that the opinion of the three judges, unaided by the concurrence of the fourth, could not be regarded as embodying such findings. Justice Letton, whose concurrence in the result made the reversal possible, stated specifically the sole ground of his action, and his statement did not purport to be the resolving of questions of fact. After saying that he was inclined to the view that the evidence would support a 'judgment upon a cause of action at common law for deceit,' and that 'the findings of the district court were 'to that effect,' he added that he was not satisfied that these findings were 'unsustained by the evidence.' He considered the presumption to be that they were 'so sustained,' but he had 'not examined the evidence so critically as would be necessary to determine this,' for the reason that, in view of the holding of this court 'as to the measure of duty and

of liability of directors' under the Federal Act, he thought ‘a case had not been made.' 'For that reason alone' he concurred in the conclusion."

The Justice then says: "It is manifest that this was simply the expression of an opinion with respect to the legal sufficiency of the plaintiff's case. That is, the decisive ruling upon which the reversal restedwas that matter of law, applying the Federal statute, the plaintiffs were not entitled to their recovery. And the judgment as entered upon appeal simply set forth that the court finding 'error apparent in the record of the proceedings and judgment' reversed and dismissed."

As we gather this statement, expressions of opinion by judges not supported by a majority of a court are merely personal, and not judicial, opinions and properly have no place in a judicial opinion at all.

As to the harm done in this case it would seem that this judge concurring in the result, if he was unable to agree in the findings of fact by three judges, should have gone with the other three and have affirmed the judgment. To apply a familiar expression, a judge "should either fish or cut bait." By his not going with the three for affirmance of the district court he put upon the plaintiffs the onus of prosecuting a writ of error, and, as the result shows, he would have done them serious injury had they not have prosecuted the writ.

We do not care to weary our readers by harping on a single string, but we do feel very strongly, that a great part of the volume of judicial opinions could be reduced, not only to the benefit of all concerned, but that clarity in ruling and the clear boundaries of precedent would the better ap

pear.

There are not many questions that arise, which call for wholly novel principles. The conclusions judges reach are results from their understanding of well-known principles. If one judge is persuaded to the same result as another, but by a wholly dif

ferent line of thought, is it not better not to state academic reasons? If the reasons are not viewed by another as sound, the decisions lack the force a precedent should have. If the reasons vary, a lawyer may follow one or the other judge or he is even not restrained from getting at the matter independently of the reasons given. How, indeed, will he be able to apply the principle to a different state of facts, if by one judge's view this is admissible and by another's it is not?

Furthermore, it seems to us that reasons are greatly like obiter dicta, when there is an announcement which may not work out satisfactorily. The reasons cannot cover every contingency, and they are therefore misleading, if any test shows an exception apparently comprehended. There is often the same difficulty in stating a matter comprehensively as courts find in trying to define, for example, a state's police power.

NOTES OF IMPORTANT DECISIONS.

HIGHWAYS-DOG CAUSING INJURY TO AUTOMOBILE.-The superior right of automobile or dog on street appears to have been involved in Tasker v. Avey, 96 Atl. 737, decided by Maine Supreme Court, and judgment against the owner of the dog for damage to the automobile seems to establish a principle in highway law.

The facts show that plaintiff was driving his automobile along the highway in the exercise of reasonable care, when defendant's dog, as plaintiff testifies, "jumped directly in front of my machine and so quick I didn't have time to apply the brakes before it struck him. The lefthand wheel struck him and jacked the machine around across the ditch, blown out of the solid ledge, and tipped it over."

The Maine statute provides that, "when a dog does damage to a person or one's property, his owner or keeper *** forfeits to the person injured the amount of the damage done," provided it was not occasioned by the fault of the person injured. The court thought there was evidence to justify verdict in plaintiff's favor.

There is here an utter absence of discussion

as to the dog being or not out of bounds, or whether he was where he could have been seen before he "jumped," or whether he might have been expected to jump, or whether plaintiff should have slowed up if he saw him. Should the automobilist have taken into account animal propensities, or should the dog be regarded as having the intelligence of a human being so as to make his owner liable for his pranks or harmful indiscretions? Does the case mean that, so far as dogs are concerned, the "joyrider" must not be interfered with, whatever may be thought as to other animals or persons on the highway? If so, let his "joy be unconfined." Perhaps also a chicken may not "cross the road" in safety.

BANKS AND BANKING-GENERAL MANAGER OF CORPORATION ISSUING CHECKS TO FICTITIOUS PARTIES.-Upon the principle that a bank is not liable where it is misled by the negligence or other fault of the drawer in paying a check to one other than the payee, the Supreme Court of Tennessee holds, that where a corporation's general manager issues checks to payees and, vouching for their identity, collects the checks himself and appropriates their amounts the bank is not liable to the drawer. Litchfield Shuttle Co. v. Cumberland Valley Nat. Bank, 183 S. W. 1006.

The court admits the rule that a bank must judge for itself as to the identity of the payee of a check, but, under circumstances amounting to a direction by the drawer to pay to one as the named payee, it is excused. This exception appears quite evident, but does it cover the case of a corporate officer collecting such a check himself? It seems a well known principle that, if such an officer draws a check to his own order, one receiving it is bound to inquire whether it was lawfully issued or not. How is it different, if the officer draws the check in favor of another and then vouches for the latter's identity?

Or suppose he may do the latter, so far as a named payee collecting the check is concerned, can the officer vouch for that payee's identity so as to collect the check himself? Is not the bank put on inquiry just as much as were the check drawn by the officer to his own order?

The court concluding its opinion says: "Considering the character of complainant's business and the extent of Hooper's authority, the defendant bank may very well have concluded

that the checks here in controversy represented expenses of the mill paid in cash by Hooper and the checks were drawn and indorsed by him as vouchers." But, we think, that the very fact that the bank may have been obliged to argue to some such conclusion as above stated, shows that it ought to have made inquiry into the issuance of such checks.

DAMAGES-MENTAL SUFFERING, BUT WITHOUT OTHER INJURY.-The Federal Supreme Court holds that there was error in refusing a requested instruction as follows: "As the shipment which is alleged to have been delayed was a shipment in interstate commerce and as the damage claimed by the plaintiff is damage for mental suffering only on account of the delay of the delivery of such shipment, the court instructs the jury that under the evidence in this case, the plaintiff is not entitled to recover any damage." Southern Expr. Co. v. Byers, 36 Sup. Ct. 410.

Justice McReynolds said, Southern Express Co. v. Byers, 36 Sup. Ct. 410: "In such circumstances, the long settled common law rule permitted no recovery; the decisions to this effect 'rest upon the elementary principle that mere mental pain and anxiety are too vague for legal redress where no injury is done to person, property, health or reputation.' The lower federal courts, almost without exception, have adhered to this doctrine and in so doing we think they were clearly right upon principle and also in accord with the great weight of authority. *** In 1881, the Supreme Court of Texas held the addressee of a message might recover damages of a telegraph company because of mere mental suffering." So Relle v. W. U. Tel. Co., 55 Tex. 308, 40 Am. Rep. 805.

It is then recited that Alabama, Iowa, Kentucky, Nevada, North Carolina and Tennessee approved this ruling, while the Dakotas, Florida, Georgia, Illinois, Indiana, Kansas, Minnesota, Mississippi, Missouri, New York, Ohio, Oklahoma, Virginia and West Virginia "definitely rejected the innovation." Justices McKenna and Holmes merely concur in the result. If this doctrine is as is stated, an "innovation" it ought to be rejected and perversity in an apparently hopeless view, should not cause a small minority of the courts to perpetuate a conflict of decision. The question, after all, is more abstract than real.

as Roman Catholic Bishops of certain dioceses, caused to be read by the clergy of Polish Catholic churches, a pastoral letter enjoining the reading, keeping or subscribing for a newspaper published by plaintiff as being "greatly injurious to Catholic faith and discipline: the publication being alleged to be of an antiCatholic spirit," "a matter to be decided by ourselves." Injunction was asked "commanding the defendant bishops to withdraw and rescind the pastoral letter." Conspiracy and malice were alleged.

A per curiam opinion was rendered, one judge dissenting, in which it was said that: "Notwithstanding much prolixity in the complaint, the real gravamen of the action is an attempt to hold the defendants liable for the the pastoral letter. This letter does not require the breach of any contract nor the withholding of any advertising patronage, but warns against the newspaper in question and forbids those who would continue good church members against reading it. This was within the scope of church discipline, and, if incidental pecuniary loss accrues to plaintiff, it is damnum absque injuria. By maintaning their church discipline and declaring the paper improper to be read by church members they have violated no legal right of the plaintiff. It might be otherwise if they attempted to forbid social or business intercourse with the plaintiff in respect to trade or commerce or something which ordinarily could not affect the faith of the members. Recommending to the members what they should read under pain of expulsion from the church communion is within the jurisdiction of every pastor and every prelate of every ehurch which professes to leave such matters to the determination of its clergymen."

Whether or not the averment that "the defendants entered into a conspiracy for the purpose of injuring the plaintiff in its business as publisher of a newspaper and that said pastoral letter was maliciously published and circulated for such purpose," was sufficient to take the letter out of the category of privileged communications was a more serious question than the one suggested in the per curiam opinion. But that was merely cautionary and the court disposed of the averment referred to by saying wherein lay "the real gravamen of the action." At all events, neither a member nor an outsider, should be allowed, in pursuing his liberty in doing business, to shield such from interference by a church or other society in enforcing its own discipline and preserving the means of its continued existence. The intruder takes chances in his prior interference.

THE BULK SALES LAW OF THE STATE OF WASHINGTON.

In the Central Law Journal of April 7, 1916, appears an interesting contribu

tion on "The Bulk Sales Law" of Kansas; which also refers generally to the laws of other states on the same subject. According to the article the Kansas law is rather unsatisfactory, for it is stated that "the creditor is left in precisely the same position as if there were no bulk sales law, except that he has received notice that a sale is about to take place." If there is no other advantage to be had under that law, it appears to be of little practical utility.

However, in this state, the law serves a very useful purpose and is of real benefit. The first act in Washington on this subject was passed in 1901, and thus antedates the laws of most states. This statute is in brief as follows:

First. Every person who shall purchase "any stock of goods, wares and merchandise in bulk, for cash or on credit" before paying for the same, either in money or by note or credit, shall demand a sworn statement from the vendor, setting forth the names of all his creditors, their addresses, and the amount owing to each of them. The vendor is required to make and deliver such a statement in accordance with a statutory form.

Second. It is required of the vendee to see that the purchase money is pro rated among the bona fide claims of the vendor's creditors as shown by the verified statement, or the sale "shall be fraudulent and

void."

- Third. If the vendor swears to a false statement, he is liable to a penalty for perjury fixed at $1,000.00 fine or a felony sentence of one to five years imprisonment.

Fourth. Any sale other than in the ordinary course of business or trade; or whenever substantially the entire business or trade, or the vendor's interest therein, is

sold; or when all the fixtures and equipment of the business are sold-such sale "shall be deemed a sale or transfer in bulk." The creditors may in writing waive their rights under this statute.

Fifth. The act does not "apply to executors, administrators, receivers, or public officers acting under judicial process."

Of course, this act has often been for consideration before our Supreme Court. Its constitutionality was challenged at once upon these grounds:

(a) That it deprived a person of his property without due process of law, in that it abridged the right of contract and restricted the rights of certain individuals to dispose of their property.

(b) As class legislation.

(c) That it was in restraint of trade.

The act was upheld as a rightful exercise of the police power, for the protection of the public and the prevention of fraud among individuals; as it applied to all persons of the same class it was not deemed class legislation; and not in restraint of trade, for it only restricted the application of the proceeds when sales were in bulk.1

The statute being valid, next came its proper application to business transactions. We will refer to the decisions and make such comment as seems to be applicable.

3

Fitzhenry v. Munter holds that a merchant who sold out his store at auction to the extent of $170.00, and the rest for the lump sum of $307.00, should have complied with the statute because of the latter sale. The decision subject to criticism is Plass v. Morgan, where it was held that the act applied to a sale of the "goods, wares and merchandise" in a "boarding house and restaurant;" while in Everett Co. v. Smith,* the court held that the law did not apply to the sale of horses, carriages and property in a livery stable. In brief, that the statute

(1) McDaniels v. Connelly, 71 Pac. 37 (Wash.). (2) 74 Pac. 1003 (Wash.). (3) 78 Pac. 784 (Wash.). (4) 82 Pac. 905 (Wash.).

should be limited to "goods kept for sale as merchandise." It is difficult to reconcile these two cases in holding that the law applies to one kind of business and not to the other, considering the limitation placed upon the statute itself by the last quoted case. We think, however, that Plass v. Morgan was incorrectly decided, if it included articles permanently kept in the business. The moment the Supreme Court construed the words "any stock of goods, wares and merchandise in bulk" to apply to the contents of a boarding house and restaurant and particularly to property therein not kept for sale, there was no reason why it should not also apply to any business generally, although it be a machine shop or a factory; for "goods, wares and merchandise" is broad enough to include personal property of every description, such as cattle.5

These words include promissory notes, as held in N. E. S. Co. v. Commonwealth.

"Stock of merchandise" in a similar act

was construed to refer "to articles which the seller keeps for sale in the usual course of business."

In Illinois "stock of merchandise" in a statute was held to be synonymous with "stock in trade" as ordinarily understood by merchants.S

However, our Supreme Court has followed the idea (except Plass v. Morgan) that "stock in trade" means property that is kept for sale in the usual course of business, as in Albrecht v. Cudihee," where it was decided that the sale of a cash register used in a saloon was not subject to the bulk sales ¡aw where sold with the entire saloon. The Court there said: "The statute only applies to goods belonging to the mercantile stock or supplies which are kept

for sale."

(5) See Gromer v. McMillan, 128 S. W. 285 (Mo.).

(6) 81 N. E. 286 (Mass.).

(7) Gallus v. Elmer, 78 N. E. 772 (Mass.). (8) Off & Co. v. Morehead, 85 N. E. 264 (I.). ()79 Pac. 628 (Wash.),

Considering the last quotation as the correct exposition of the law, Plass v. Morgan,10 is not an authority, but should be considered overruled. In fact the legislature after the last decision cited, amended the law in 1913," to include "fixtures and equipment used in and about the business of the vendor," which would have been unnecessary if the extensive meaning were given to "stock of goods, wares and merchandise" as determined in the case of Plass v. Morgan.

The next point raised was, whether the act applied to creditors only who held claims for goods sold to the merchant, or to creditors generally at the time of sale. The Court held properly that it applied

to all creditors.12 The statute makes "the sale fraudulent and void;" but between the vendor and vendee the sale is valid; creditors only nay avoid the sale.13

Under our Washington law a debtor may prefer any creditor, and for that purpose turn over his entire stock of goods to a creditor without complying with the bulk sales act. Of course, bankruptcy proceedings within four months would avoid such preference and transfer, if the transaction. be not in good faith and not for a present fair consideration.15

If a creditor receives his pro rata of the. selling price, he waives non-compliance with the statute. So held in Continental Co. v. Swanson.16

As the act refers to "purchases for cash or on credit" it follows that a transfer of a stock of goods by a debtor to one of his. creditors where the debt exceeds the value of the property, does not constitute a sale within the bulk sales law; for that would constitute only a preference, and is per

(10) 78 Pac. 784 (Wash.). (11) Laws, page 604.

(12) Eklund v. Hopkins, 78 Pac. 787 (Wash.). (13) Kasper v. Spokane, 151 Pac. 800 (Wash.). (14) McAvoy v. Jennings, 87 Pac. 53 (Wash.). (15) Friend v. Rosenfeld, 151 Pac. 776. (16) 139 Pac. 865 (Wash.).