could be maintained.-Carr v. City of St. Joseph, Mo., 225 S. W. 922.

50.- -Firemen Not Chargeable With Driver's Negligence.-City firemen, injured in a collision of a fire truck with a telegraph pole by reason of defendant's negligence in driving an automobile in violation of law, are not chargeable with negligence of the driver of the truck.Brockstedt v. Meltzer, N, J., 111 Atl. 812.

em

51.-Mill Owner Not Required to Case Cogs to Protect Child in Mill Without Authority.Even if cogs on a machine were not sufficiently mill guarded for the protection of the ployees or of others lawfully within the mill, the employer owes no duty to guard them for the protection of a child who entered the mill in violation of the employer's orders.-Butner v. Brown Bros. Lumber Co., N. C., 105 S. E. 319.

52 Wall Adjacent to Public Way Must be Reasonably Safe.-The duty of an Owner of land, who maintains a wall or other structure adjacent to a public way, to persons upon the way, is to maintain such structure in a condition that shall be reasonably safe, having regard to its probable deterioration under posure to air, wind, and water, as also to other lawful attendant conditions reasonably to be anticipated.-Blanchard v. Reynolds, Mass., 129

N. E. 303.

ex

54. Parent and Child.—Where a parent is deprived of the custody of a child, and therefore of its services and earnings, he is no longer liable for its support and education; but this exemption is not unconditional, and may not be permanent.-Pacific Gold Dredging Co. v. Industrial Accident Commission, Cal., 194 Pac. 1.

55. Partnership-Single Partner Not Responsible for Failure to keep Books Properly. Where both partners were illiterate, and no real system of bookkeeping was employed, and the books were not continuously or regularly kept, in suit for an accounting by one of them against the other, the master properly refused to hold defendant responsible for the neglect to keep proper books of account.-Poulette v. Chainay, Mass., 129 N. E. 290.

56. Railroads—Duty to Furnish Water-Closet Includes Keys Accessible.-Although the carrier furnishing a water-closet required by Ky. St. § 772, has the right to keep the closet locked, it should see that the keys are accessible, and it may leave them with the agent; but when he is absent they should be put in an exposed place. so that they may be readily seen and obtained by patrons.-Commonwealth v. Louisville & I. Ry. Co., Ky., 226 S. W. 105.

57. Removal of Causes-State Liquor Tax.A person indicted for violating a state Liquor Tax Law, by selling a liquid which the federal Prohibition Commissioner had approved, is not entitled to have the case removed to the federal court, under Rev. St. § 643 (Comp. St. § 1015), providing that prosecutions commenced in a state court against revenue officers, or persons holding property under title derived from such officers, etc., may be removed.-Application of Shumpka, U. S. D. C., 268 Fed. 686.

58. Sales-Damages for Breach of Contract.Where defendant buyer refused to receive shipment of oats and they were sold through wholesale grocer for the best price obtainable, freight and demurrage were properly deducted from the gross sale by the grocer in arriving at the balance by the buyer.-Robinson v, O'Bannon Co., Ga., 105 S. E. 255.

59.-Damages for Breach of Warranty.-The machinery purchased being defective, and not in compliance with the warranty given, the plaintiffs were entitled to recover as damages the difference between the value of the machinery as warranted and its value as delivered, and also for the reasonable and necessary repairs made by the plaintiffs in a bona fide endeavor to make it work.-Isaacs v. Jackson Motor Co., Kans., 193 Pac. 1081.

60. Forfeiture of Payments.-A vendor, în a conditional sale contract providing for a forfeiture of payments upon default, and a return of the property, cannot invoke a forfeiture during the time for which he has given an extension of time of payment, though the extension is without consideration.-Reinkey v. Findley Electric Co., Minn., 180 N. W. 236.

61. Subrogation Party Causing Injury. Where a fracture of plaintiff's wrist was so negligently treated by a physician as to cause partial loss of the use of the arm, a railway company, whose negligence caused the fracture, on being compelled to pay plaintiff's damages, is subrogated to her rights against the physician for the damages primarily due to his negligence.-Fisher v. Milwaukee Electric Ry. & Light Co., Wis., 180 N. W. 269.

Rescission.-In

62. Vendor and Purchaser the absence of fraud, insolvency, or other equitable considerations, or a contract stipulation requiring an abstract showing perfect title, a defect in the record title of the vendor in an executory contract for the sale of land, existing at the date thereof, will constitute no ground for rescission by the vendee or justification for refusal to make deferred payments on the agreed purchase price of the property.Smith v. Kurtzenacker, Minn., 180 N. W. 243.

63. Warehousemen-Contract Against Negligence. Provision of a warehouseman's receipt that all perishable goods were taken at the depositor's own risk, and that she took the risk of loss or damage by fire, must not be construed as a contract by the warehouseman against his own negligence; such a contract being invalid. -Glazer v. Hook, Ind., 129 N. E. 249.

64. Wills-Ademption of Legacy. The removal by proprietor of whisky business of his stock of whisky and fixtures from a location where he had been conducting his business, and the storage thereof in a public warehouse with the intention of resuming business at some other location, did not work an ademption of legacy, in previously executed will, of his "entire whisky business now conducted at" specified address at which business had been so conducted, though proprietor died while stock was in storage, before the resumption of business, since the specific property bequeathed was in existence at time of his death and subject to identification. -Wiggins v. Cheatham, Tenn., 225 S. W. 1040.

65. Contract of Survivorship Between Associates, Contract between four brothers who incorporated insurance business, equivalent to contract to make will, that on the death of any member the property held by the associates was to become that of the survivors, held ineffective, under Code, § 3376, as against the widow of one of the brothers, deceased; he not having sold his interest during his lifetime nor transferred it gratuitously.-Fleming v. Fleming. Iowa, 180 N. W. 206.

66. -Disbursements by Heir.-Where an heir expended large sums in establishing that an alleged will was not the will of the testator, he is entitled to judgment for costs in the litigation in which they were expended.-Weber v. Strobel, Mo., 225 S. W. 925.

67.Vesting of Remainder.-The remainder of a devise "to my husband, H., for the term of his natural life,' certain property unless he marries again, when it is to become, without division, the property of J.," vested in J. at the death of the testatrix the right to the remainder; possession alone being postponed.Smith v. Heyward, S. C., 105 S. E. 275.

68. Workmen's Compensation-Odd Lot Doctrine. The "odd lot doctrine" is that, if the effects of an accident have not been removed, it is not sufficient, to entitle an employer to have a reduction in the weekly compensation ordered by the court under the Workmen's Compensation Act, that it appears the workman has the physical capacity to do some kind of work different from the general kind of work which he was engaged in at the time of the accident, but it must also be shown that the workman, either by his own efforts or that of his employer, can actually get such work; that is, the burden is on the employer to show that the workman can get a job.-Lupoli v. Atlantic Tubing Co., R. I., 111 Atl. 767.

Central Law Journal.

ST. LOUIS, MO., MARCH 18, 1921.

IS THERE AN IMPLIED WARRANTY IN A SALE TO AGENT?

Manufacturers and jobbers of heavy machinery are much exercised over a decision by the United States Circuit Court of Appeals (9th Cir.) in Bullock Tractor Co. v. Knapp. (Jan. 3 not yet reported.) This decision announces the strange doctrine that a manufacturer who authorizes an agent for the sale of machinery to warrant the machine sold, impliedly extends the benefits of that warranty to the agent himself and that the agent may sue for time lost and expense incurred in trying to sell machinery which was not salable.

In this case Knapp and his partner agreed to become the agents of the Bullock Tractor Company, manufacturers for a certain caterpillar type of farm tractor. Their commission was to be 15 per cent and they were to be exclusive agents in a particular territory. They agreed to provide a store room and to advertise the tractors and to take orders therefor. They were to sell the machines to farmers and collect the deferred payments. They could specifically warrant the machines in certain respects and obligate the company to take back the defective tractors and refund the price thereof. They received in all twenty-two

They

tractors to be sold on commission. paid the freight and storage storage thereon, which, with the advertising amounted to $9,771. The plaintiffs also claimed that they lost valuable time in acting as agents or defendants. Of the 22 tractors plaintiffs sold nine and returned thirteen. They received in all $13,061.38 of which they sent $6,283.03 to defendant and retained $6,178.35 to apply in payment of the expenses just referred to. Defendant set up a counter-claim alleging that plaintiff (Knapp) owed them $4,819.14 on sale of machines computed as follows: Deducting the remittance of $6,283.03 from the amount of gross

sale, $13,061.38 leaves $6,778.35. Deducting from this amount the 15% commission, leaves $4,819.14.

The District Court found for plaintiffs for $600 and permitted them evidently to retain the $6,778.35 which they had deducted. Both sides appealed, and the Court of Appeals reverses the judgment and holds that plaintiffs are entitled to the whole amount which they spent in advertising and storage (both for sold and unsold machines) and also for value of services. The Court therefore returned the case to the District Court with instructions to add $2,993.44 to the judgment plus a reasonable amount for time and labor expended by plaintiffs in trying to sell an unsalable article.

The decision seems to us to be both illogical and unjust. If principals are to be liable to agents, co instanti with their liability to the buyer, and even when no sales have hoon made, then manufacturers cannot safely make or attempt sales through agents. The District Court floundered over the matter, wishing evidently to protect the agents against their bad investment, but even the District Court would not go to the extent of requiring the company to pay all the expenses of the agents since some of these expenses were incurred in selling the nine machines for which they received the agreed commission. They refused also to allow anything for time and labor expended since it was impossible to determine how much time and labor was expended in the sale of the nine machines for which they had already been paid. The basis of the Court's position is found in one paragraph of the opinion when the Court said:

"Keeping in mind that by the terms of the written contract of agency the agents were authorized to make sales pursuant to the provisions of the contract, it is clear that the agents had authority to give a purchaser the warranty printed on the back of the contract of agency. This warranty was that the tractors sold would be made of good material and durable if used with proper care, and that in the event any trouble with the tractors was due to de

fective material or workmanship, and an expert could not make the tractors work well, then the purchaser should immediately return the tractor to the agents and the price should be refunded which should constitute a settlement in full of the transaction. But as between the principal and the agents there was no warranty stipulation other than such as the law implied. The implication of law, however, made it the duty of the Tractor Company, the maker of the tractors, to furnish to the agents tractors reasonably fit for the general purposes for which the manufacturing company authorized the agents to sell the tractors: Williston on Sales, Sec. 232; Bucy v. Pitts Agricultural Works, 56 N. W. 541."

It is not true that there is an implied warranty between a manufacturer and his commission agent. There is no other authority. to support this proposition than the declaration of an obscure court in the case of Wood Mower & Machine Co. v. Thayer, 3 N. Y. Supp. 465, cited by the Court in the pripat cave. It in a startling proposition to state that a warranty, in the sense of an independent subsidiary promise that the goods sold shall be up to a certain standard of quality, can apply to anything except a sale. It has been held that as between a manufacturer and dealer who buys for resale, that there is no warranty that the goods are salable. Baer Grocer Company v. Barber Milling Co., 223 Fed. 969.

The only theory on which an action by a commission agent in a case like this would be justified would be for a misrepresentation and not for a breach of an implied warranty. If a manufacturer misrepresents an article and induces an agent to undertake its sale, the manufacturer would be liable for any time and money expended by the agent relying on such representations without opportunity to investigate. But if. as in this case, an agent solicits the exclusive agency of an article designated by its trade name, the "Bullock Tractor" and afterward enters upon the performance of his contract and incurs great expense in advertising without the consent of his principal it is difficult to see on what ground he can seek to escape from a bad situation

created by his own lack of business judg ment. If the principal had failed to carry out the warranties which the agent was authorized to give to purchasers so that the agent became liable thereon, the agent would have a righ of action. But in a case like this where the principal takes back every defective machine, thus performing his express guaranty to the purchaser in every particular, it is hard to see wherein an agent, who sells on commission, should have a right of action for loss incurred in selling an article simply because in some cases machines are returned by some customers.

This decision is bound to give trouble and ought to be corrected by the Supreme Court at the first opportunity. It is not likely to be relied upon, however, by many State or Federal courts but until it is overruled or discredited by the weight of authority it is likely to be a disturbing factor in the business of selling through commission agents.

NOTES OF IMPORTANT DECISIONS.

IS ACCOMMODATION INDORSER'S LIABILITY AFFECTED BY EXTENSION OF NOTE? The courts are showing a commendable disposition to construe the uniform acts prepared by the Conference of Commissioners on Uniform State Laws, in such a way as to keep these laws uniform. This is particularly true with respect to the Negotiable Instru ments Law. The Court of Appeals of Indiana recently considered a question of construing the Negotiable Instrumen s Law on which they had previously passed, and in deciding the question declared that it preferred to adopt the rule adhered to by the great weight of authority in other states. Fox. v. Terre Haute National Bank, 129 N. E. 32.

This case presented the single question whether the accommodation maker of a prom

issory note is discharged if the holder, knowing that the note was made for the accommo dation of the payee and indorser, by agree ment with the indorser upon a valuable consideration, without the maker's consent, extends the time of payment.

The court held that an accommodation maker, or surety, though known to be such by the

payee, is not released by an agreement between the payee and the principal obligor extending the time of payment or postponing the payee's right to enforce the instrument, though made without the assent of the accommodation maker.

This decision is in line with the authorities. In the case of Bradley Engineering Co. v. Heyburn (56 Wash., 628, 106 Pac 170, 134 Am. St. Rep., 1127) a note had been executed, signed by a certain named corporation and by Heyburn and Ward. Suit was brought upon this note. One of the makers, Heyburn, appealed, and on appeal urged that the court below had erred in sustaining a demurrer to his answer in which he had alleged that he was an accommodation maker; that he was bound only as a surety; that said facts were well known to the plaintiff, and that plaintiff had, without his knowledge or consent, extended the time of the payment of said note, by reason of which, as such surety, he was released. In passing upon the question thus presented, the court, after quoting certain sections of the Negotiable Instrument Act, said:

"When we consider that it was the object of the Negotiable Instrument Act to make such instruments certain and to speak the true contract of the parties, thus saving the commercial world the hazard of trumped-up defenses or the peril of trying out collateral issues such as suretyship, etc. in case of suit, it would seem that we cannot reject the other sections and give effect only to sec. 58. *** Being primarily liable as an accommodation maker, appellant was not discharged by an extension of time to the principal debtor" (citing authorities).

The

In the case of Bank et al. v. Williams (164 Ky., 143, 175 S. W., 10) a note had been made by Brasher and Williams, payable to the order of the First State Bank of Nortonville. bank, becoming insolvent, was placed in the hands of one Fowler as liquidating agent. Suit being brought on this note, Williams defended on the ground that he was a mere surety and that the time of payment of said note had been extended without his consent; that the fact of his suretyship was known to all the parties therein. A trial by the court resulted in a finding that there had been a valid agreement for the extension of time of payment of the note, and Williams was released from liability thereon. On appeal by the bank, in passing upon the question, the court said:

"The act thus specifies how the instrument, and consequently the parties primarily liable, may be discharged, and the several ways in which persons secondarily liable may be discharged. When speaking of persons primarily liable it contains no provision releasing them

by the holder extending the time for payment or postponing his right to enforce the instrument. When speaking of persons secondarily liable, it does provide that they may be released by such an agreement. The question of release of a party by the extension of the time of payment being present in the legislative mind, it is evident that if it was intended that a person primarily liable should be so released it would have so provided in the act."

LIABILITY OF ONE WHO SUBSTITUTES AN ARTIFICIAL FOR A NATURAL CHANNEL OF A STREAM FOR RESULTING DAMAGE.-There has been much confusion in the authorities respecting the liability of a lower riparian owner for changing the channel of a stream and it has been said that he is liable for the damage caused by usual but not unusual floods. That this is not exactly an accurate statement of the rule is made clear by the recent case of Eikland v. Casey, 266 Fed. 821, where defendant was held liable for substituting an artificial channel for a natural channel of a stream which during a season of unprecedented rainfall washed away part of plaintiff's land. The question in this case was over the refusal by the trial court to give an instruction requested by plaintiff to the effect that if the jury found that, if the channel had been built of a capacity equal to the natural channel, the plaintiff's property would not have been damaged by the flood, then the defendants were liable.

Reversing a judgment for defendant on the ground that this instruction should have been given, the Circuit Court of Appeals (9th Cir.), declared that the English rule as announced in Rylands v. Fletcher (L. R. 3, H. L. 330) holding a riparian owner liable for changing the natural course of a stream unless he provides an artificial channel at least equal to the natural channel, was to be preferred to the American rule exonerating the riparian owner for so-called unprecedented floods. "This inherently just and equitable doctrine of the English courts," says the Court of Appeals, "has been accepted in a few of the courts of the United States, as in Shipley v. Associates, 106 Mass. 194, 8 Am. Rep. 318; Wilson v. New Bedford, 108 Mass. 261, 11 Am. Rep. 352; Cohaill v. Eastman, 18 Minn. 324 (Gil. 292), 10 Am. Rep. 184, and Knapheide v. Eastman, 20 Minn. 478 (Gil. 432), and no reason is suggested why it should be applied to the present case except the reason-if it be a reason—that it is opposed to the decided weight of American authority."

The English rule is succinctly stated in Greencock Corporation v. Caledonian Ry. Co. (1917), A. C. 556, in which the Lord Chancellor said:

"It is the duty of any one who interferes with the course of a stream to see that the works which he substitutes for the channel provided by nature are adequate to carry off the water brought down even by an extraordinary rainfall, and if damage results from the deficiency of the substitute which he has provided for the natural channel, he will be liable."

The general American rule on this question is well stated by Wolverton, J., who dissented in the Eikland case when he says:

I conceive the law to be that one desiring to change the channel of a stream, which he deems necessary in order to reap the greatest benefit to himself from his own holdings, must, for the protection of his neighbor, take care that the new channel is constructed in such a way, and of such ample capacity, that it will not impede the usual flow of the water in the stream, nor the ordinary flood waters, such as might be reasonably expected or anticipated by the exercise of common prudence and foresight, taking into consideration the known climatic conditions, the topography of the country, and the experience of persons long resident within the locality. He is not required to anticipate unusual and extraordinary or unprecedented floods, such as are produced by the overwhelming cataclysms of nature, although they may not, in a strict sense, be classified as vis major or the acts of God.

There is no doubt, however, that the American rule is being slightly modified at least to the extent of requiring one who changes the channel of stream to provide even where extraordinary floods are not to be expected. In Ohio, etc., Ry. Co. v. Ramey, 139 Ill. 9, 28 N. E. 1087, 32 Am. St. Rep. 176, it was said:

"The principle, clearly, is that, although a rainfall may be more than ordinary, yet if it be such as has occasionally occurred, and it may be at irregular intervals, it is to be foreseen that it will occur again, and it is the duty of those changing or restraining the flow of water to provide against the consequences that will result from it. It is within the knowledge of all who have long resided in this state that our streams are occasionally subject, after intervals which are sometimes of shorter and at other times of longer duration, to great floods, occasioned by very heavy rainfalls, and their heights are known by those who have felt interested in them. Such rainfalls were not usual and ordinary, but they were unusual and beyond ordinary; i. e., they were extraordinary, and yet it is just as certain that like rainfalls will occur in the future as it is that the same laws of nature by which they are produced, and the same conditions to be affected by those laws, will continue to exist in the future as they have in the past."

It was there held that a cloudburst which had at irregular and infrequent intervals occurred within the memory of a man in a particular locality was not to be classed as a vis

major. So in Gulf, etc., R. Co. v. Pomeroy, 67 Tex. 498, 3 S. W. 722, the court held that, if extraordinary inundations had occurred within the memory of the men then living, their recurrence should be anticipated and provision made against the danger likely to result therefrom should a recurrence of the flood take place. In Gulf Red Cedar Co. v. Walker, 132 Ala. 553, 31 South, 374, the court said:

"The term 'act of God,' in its legal sense, applies only to events in nature so extraor dinary that the history of climatic variations and other conditions in the particular locality affords no reasonable warning of them."

AGREEMENT BY PUBLIC OFFICER TO RENDER SERVICES FOR SUM LESS THAN COMPENSATION FIXED BY LAW AS A VALID AGREEMENT WHEN EXECUTED.

In limine it is admitted that the rule obtains in the major part of the jurisdictions that a contract by a public officer to render services for no consideration, or for a compensation less than that fixed by law is, on the grounds of public policy, invalid, and that such officer may therefor recover the legal remuneration.

It is the purpose of this article to review some cases that deal with the validity of such agreements, and to advance the argument that in certain classes of cases the public interest would be better subserved, by holding contracts whereby a public officer agrees to perform services required of him for a less compensation than that fixed. by law as binding and valid, rather than by disregarding them as being contrary to public policy, and void.

The moving consideration in voiding that class of contracts referred to is that they are opposed to public policy, are in effect outlawed, and hence are void and illegal.

Before a complete and intelligent consideration of the questions involved in the proposition stated in the title may be had, it will be necessary to discuss briefly the policy of the law in declaring what manner