tails, nor are we sure that as yet we precisely understand them all; but enough has been stated to enable the reader to see that he proposes to put the bench and the bar pretty much in the hands of the bar. Whether this would greatly tend to increase popular confidence in the bench and the bar we may be permitted to doubt. It seems to us just now that the people would be apt to regard it as a close legal corporation, and that they decidedly would not assent to it. Excepting the political assessments on judicial candidates in the city of New York, there does not seem to be much reasonable ground for finding fault with the judicial system of this State; as to mode of selection, salaries, tenure, pensions, the present system seems to meet general approval. (The pension matter can be controlled by the nominations.) There is little fault found with the manner in which the judicial business is transacted. There is little danger of favoritism, none of corruption. The judges are generally men of fair abilities, candor, learning and industry. The only ground for serious fault is that business is not dispatched with enough promptitude, but that is not the fault of the judges, and if it is the fault of the bar it is incurable.

IN

NOTES OF CASES.

N Merchants' Ins. Co. of Newark v. Prince, Supreme Court of Minnesota, May 24, 1892, it was held that a local custom that insurance agents, after the termination of their agency, may cancel any of the policies issued through them, is unreasonable and void. The court said: "The custom referred to is characterized in defendants' fourth request, likewise given and excepted to, thus: That agents, in case of change in agency, considered the business worked up and secured by them belonged to them, to the extent that, at least, took up all policies issued or delivered since the making of the last correct report pending the change of agency.' As one of the witnesses for the defendants testified, the agent generally considers the business he works up as his own, and does with it as he sees fit. The proposition that any part of the business done by an agent for his principal, and for doing which the principal pays him, belongs to the agent, rather upsets our notions of the rights growing out of the relation of principal and agent. Is such a local custom valid? Is it reasonable? For, if unreasonable in the legal sense, it is not valid. While a custom may not be reasonable merely because it is not contrary to any established rule of law, there is a uniform concurrence of authorities, that in the legal sense, it is to be deemed unreasonable if it be opposed to the policy of the law, as where it tends to unsettle well-established rules of law, established for the protection of the rights of parties. Thus of a usage that a factor may pledge the goods of his principal (Newbold v. Wright, 4 Rawle, 195); that the master of a vessel may sell the cargo without necessity (Bryant v. Insurance Co., 6 Pick. 131); to

charge interest where the statute provides none shall be charged (Henry v. Risk, 1 Dall. 265); authorizing a landlord to re-enter for a forfeiture in a manner different from that provided by law (Stoever v. Whitman, 6 Bin. 417); requiring two thousand two hundred and forty pounds for a ton when the statute provides two thousand pounds shall be a ton, unless otherwise specified in the contract (Evans v. Myers, 25 Penn. St. 114; Green v. Moffett, 22 Mo. 529); that when a seller of goods receives the consignee's note without the buyer's indorsement, the latter is discharged, and the maker of the note alone is responsible (Prescott v. Hubbell, 1 McCord, 94); so of a usage contrary to the rule caveat emptor (Barnard v. Kellogg, 10 Wall. 383; Dickinson v. Gay, 7 Allen, 29). The cases of Johnson v. Gilfillan, 8 Minn. 395 (Gil. 352), and Globe Milling Co. v. Minneapolis Elevator Co., 44 id. 153, are in the same line. These are but a few of the cases that might be cited to the same effect. But where the rule of law is established, not merely to define the rights of parties under particular circumstances, but to protect those rights by enforcing good faith and fair dealing between them, the reason for excluding local usage to the contrary of the rule is still stronger. The requirement of good faith is the basis of the rules of law governing the duties of an agent to his principal. The agent is held to the utmost good faith in the business of his principal and to secure this he is not permitted to place himself in a position antagonistic to the interest of his principal, nor to secure any advantage to himself from the business without the full and free consent of the principal. It was because such a usage would tend to subvert this principle of the law of agency it was held in Farnsworth v. Hemmer, 1 Allen, 494, and Raisin v. Clark, 41 Md. 158, that a usage permitting an agent employed to sell or exchange property to take commissions from both seller and buyer was void. There could be no question, that pending his agency an agent of an insurance company authorized to issue policies cannot without the consent of the company treat the business represented by policies issued through him as in any sense his business, or the business of any one but his principal; and, if he has authority, to cancel policies, he could only exercise it for the benefit of his principal. A usage that he might cancel policies for his own advantage would be so subversive of all the principles underlying the rules of the law of agency as to be void. Defendants do not claim otherwise. Their claim amounts really to this: that by the usage, upon the revocation by the company of the revocable authority conferred on the agent, a part of the business, conceded to be that of the company up to that time, becomes the business of the agent, so that he may do with it what he pleases, and that as to that part of the business the revocation clothes him with power that he did not have before. The proposition would justify a custom that any agent, as soon as his authority should be withdrawn, might at once, for his own advantage, undo, so far as it could be undone, all the business

that he had done for his principal. The rules of law established to secure and enforce good faith in fiduciary relations are so necessary and so salutary that no local custom to the contrary can be sustained."

In Sparrow v. Pond, Supreme Court of Minnesota, May 3, 1892, it was held that blackberries while growing on the bushes are not subject to levy on execution as personal property. The court said: "At common law those products of the earth which are annual, and are raised by yearly manurance and labor, and essentially owe their annual existence to the cultivation of man, termed 'emblements' and sometimes fructus industriales,' were, even while still annexed to the soil treated as chattels, with the usual incidents thereof as to seizure on attachment during the owner's life, and transmission after his death. This class included grain, garden vegetables, and the like. On the other hand, the fruit of trees, perennial bushes and grasses growing from perennial roots, and called, by way of contradiction, 'fructus naturales,' were, while unsevered from the soil, considered as pertaining to the realty, and as such passed to the heir at the death of the owner, and were not subject to attachment during his life. 4 Kent Comm.; 4 Bac. Abr. 372, tit. Emblements;' Freem. Ex'ns, § 113; 1 Schouler Pers. Prop., § 100 et seq.; State v. Gemmill, 1 Houst. (Del.) 9; Craddock v. Riddlesbarger, 2 Dana, 205; 9 Am. & Eng. Enc. Law, tit. 'Crops;' Rodwell v. Philips, 9 Mees. & W. 501. A possible exception to this classification is the case of hops on the vines, which have been held to be personal chattels, and subject to sale as such. The ground upon which this seems to be held is, that although the roots of hops are perennial, the vines die yearly, and the crop from the new vines is wholly or mainly dependent upon annual cultivation. The decisions upon that question however seem to be all based upon the old case of Latham v. Atwood, Cro. Car. 515. See Frank v. Harrington, 36 Barb. 415. It is sometimes stated that the test whether an unsevered product of the soil is an emblement, and as such, personal property is, whether it is produced chiefly by the manurance and industry of the owner. But, while this test is correct as far as it goes, it is incomplete. Under modern improved methods, all fruits are cultivated, the quality and quantity of the yield depending more or less upon the annual expenditure of labor upon the trees, bushes or vines; but it has never been held that fruit growing upon cultivated trees was subject to levy as personal property. No doubt all emblements are produced by the manurance and labor of the owner, and are called 'fructus industriales' for that reason; but the manner, as well as purpose, of planting is an essential element to be taken into consideration. If the purpose of planting is not the permanent enhancement of the land itself, but merely to secure a single crop, which is to be the sole return for the labor expended, the product would naturally fall under the head of 'emblements.' On the other hand, if the tree, bush

or vine is one which requires to be planted but once, and will then bear successive crops for years, the planting would be naturally calculated to permanently enhance the value of the land itself, and the product of any one year could not be said to essentially owe its existence to labor expended during that year; and hence it would be classed among 'fructus naturales,' and the right of emblements would not attach. Darlington Pers. Prop. 26. This classification is of course more or less arbitrary but it is the one uniformly adopted by the courts (unless hops be an exception), and it is the only one which will furnish a definite and exact rule. Blackberry bushes are perennial, and when planted once yield successive crops. They grow wild, but like every other kind of fruit or berry, are improved by cultivation. The quantity and quality of the yield is largely dependent upon the amount of annual care expended upon them, but the difference in that respect between them and other fruits is only one of degree. It seems to us quite clear that at common law such berries, while growing upon the bushes, were not subject to levy on execution as personal property, and we have no statute changing the rule."

In Pratt v. Castle, Supreme Court of Michigan, May 6, 1892, an action for the price of land, defendant introduced receipts showing on their face a full settlement of all dealings between the parties. Held, in the absence of fraud or mistake, conclusive, and the court should have directed a verdict for defendant, and any errors in the admission of parol evidence to explain them was not prejudicial to plaintiff. The court said: "The settlement was accomplished by the execution of mutual receipts, which read as follows: 1.00. Received, Linden, June 20, 1887, of John J. Castle, one dollar, in full for all debts, dues and demands to this date, except all property and crops owned in partnership with the said John J. Castle. William L. Pratt.' '1.00. Received, Linden, June 20, 1887, of William L. Pratt, one dollar, in full for all debts, dues and demands, to this date, except all property and crops owned in partnership with the said William L. Pratt. John J. Castle.' Plaintiff does not claim that there was any mistake or fraud in the settlement, or in the execution of these receipts as evidence thereof; but relies upon an independent and contemporaneous agreement that the value of the land should not be included in the settlement, and the agreement of defendant to pay him therefor. Defendant insists and testified that all their transactions were included in the settlement, aside from the exception expressed in the receipts. The Circuit judge permitted the parties to give evidence of the prior dealings between them, and the circumstances under which the receipts were given, instructing them that they were not conclusive when fraud or mistake was alleged against them, and left it to the jury to determine whether the value of the land was included in the settlement, and their verdict was for the defendant,

The important assignments of error arise upon the admission of evidence of the prior dealings between the parties. It becomes unimportant to discuss them, if the defendant's contention be correct that the settlement was binding, and the written agreement could not be changed by parol evidence. Settlements are favored by the law, and will not be set aside, except for fraud or mistake or duress, neither of which is claimed in this case. The parties made a settlement, and evidenced it by writing, in which they excepted certain transactions. If this settlement may be set aside by parol evidence of a contemporaneous agreement that it did not include certain dealings, not excepted in the writing, I am unable to conceive any settlement which would be binding. The papers executed are not merely receipts of money, for no money passed. They were intended to be conclusive evidence that all their transactions were settled." In White v. Richmond, etc., R. Co., a very recent case in the Supreme Court of North Carolina, the plaintiff, a conductor injured in defendant's employ, executed a paper, reciting the consideration of $6,000, and releasing the defendant from all claims to damages by reason of such injury. The court excluded evidence that it was also a consideration of the settlement that the defendant should employ the plaintiff for life.

CONSTITUTIONAL LAW - TAXATION — INTER-STATE COMMERCE CROSSING

OTHER STATES.

UNITED STATES SUPREME COURT, MAY 2, 1892.

LEHIGH VAL. R. Co. v. COMMONWEALTH OF PENN

SYLVANIA.

The transportation of goods and passengers by continuous carriage from one point in a State to another point in the same State is not inter-State commerce, within the meaning of the Federal Constitution, although for a part of the route it is over the soil of another State, and therefore it is within the power of the State wherein it begins and ends to impose a tax on its gross receipts.

M. E. Olmsted, for plaintiff in error.

James A. Stranahan and W. U. Hensel, for defendant in error.

FULLER, C. J. The Lehigh Valley Railroad Company is a Pennsylvania corporation, which owns and operates an extensive system of railroads in that State, but has no line of its own to Philadelphia. For the traffic from Mauch Chunk to Philadelphia it makes use of two routes-one by the way of the Philadelphia and Reading road, being wholly within the State, and the other by its own line connecting with the lines of the Pennsylvania railroad at Phillipsburg, N. J., and thence via Trenton, in that State, to Philadelphia. Detailed reports of its receipts show that the passenger traffic of the Lehigh Company to Philadelphia from Mauch Chunk is almost wholly taken over the Philadelphia and Reading, while its coal and general freight traffic reaches Philadelphia by the other road. lipsburg, N. J., lies across the Delaware river, opposite Easton, Penn. By the running arrangements between the Lehigh and Pennsylvania Companies, the

Phil

transportation of through freight and passengers is continuous from Mauch Chunk to Philadelphia.

The receipts named in class 2 are confined to that part of the transportation from Mauch Chunk to Phillipsburg, and the taxation to the mileage wholly within the State of Pennsylvania; and the question is whether this taxation in respect of such receipts from freight and passengers carried by continuous transportation to Philadelphia from Mauch Chunk by way of Trenton, N. J., amounts to a regulation of interState commerce.

The conflict between the commercial regulations of the several States was destructive to their harmony, and fatal to their commercial interests abroad, and this was the mischief intended to be obviated by the grant to the Congress of the power to regulate commerce with foreign nations and among the States. But as was said by Chief Justice Marshall, the words of the grant do not embrace that commerce which is completely internal, which is carried on between man and man in a State, or between different parts of the same State, and which does not extend to nor affect other States. "Commerce," observed the chief justice, undoubtedly is traffic, but it is something more; it is intercourse. It describes the commercial intercourse between nations and parts of nations in all its

64

branches, and is regulated by prescribing rules for carrying on that intercourse.' Gibbons v. Ogden, 9 Wheat. 189. This is no more than an expansion of its simplest signification-that of an exchange of goods, the bringing of them from the seller to the buyer, however vast the range now comprehended by the term in the progress of society.

Taxation is undoubtedly one of the forms of regulation, but the power of each State to tax its own internal commerce, and the franchises, property or business of its own corporations engaged in such commerce, has always been recognized, and the particular mode of taxation in this instance is conceded to be in itself not open to objection. And while inter-State commerce cannot be regulated by a State by the laying of taxes thereon in any form, yet whenever the subjects of taxation can be separated, so that that which arises from inter-State commerce can be distinguished from that which arises from commerce wholly within the State, the distinction will be acted upon by the courts, and the State permitted to collect that arising upon commerce solely within its own territory. Ratterman v. Telegraph Co., 127 U. S. 411, 424.

The tax under consideration here was determined in respect to receipts for the proportion of the transportation within the State, but the contention is that this could not be done, because the transportation was an entire thing, and in its course passed through another State than that of the origin and destination of the particular freight and passengers. There was no breaking of bulk or transfer of passengers in New Jersey. The point of departure and the point of arrival were alike in Pennsylvania. The intercourse was between those points, and not between any other points. Is such intercourse, consisting of continuous transportation between two points in the same State, made inter-State because in its accomplishment some portion of another State may be traversed? Is the transmission of freight or messages between two places in the same State made inter-State business by the deviation of the railroad or telegraph line on to the soil of another State?

If it has hrppened that through engineering difficulties as the interposition of a mountain or a river-the line is deflected so as to cross the boundary, and run for the time being in another State than that of its principal location, does such detour in itself impress an external character on internal intercourse? For example, the Nashville, Chattanooga and St. Loui

STATUTE OF FRAUDS - MEMORANDUM SIGNATURE.

QUEEN'S BENCH DIVISION, MARCH 15, 1892.

EVANS V. HOARE.*

A memorandum of an agreement that plaintiff should serve defendants for three years, in the form of a letter from plaintiff, addressed to defendants, whose name appeared at the beginning of the letter, was written by defendants' agent with their authority, and presented to plaintiff for signature, and signed by plaintiff. In an action for wrongful dismissal, held, that defendants' name, inserted in the letter by their authorized agent, amounted to a signature binding on defendants, within section 4 of the statute of frauds, and that plaintiff was entitled to recover.

Crump, Q. C. (Leslie Probyn, with him), for plaintiff.

If this agreement was within section 4 of the statute of frauds the judgment was justified. The learned judge gave judgment for the defendants on the ground that the document was not signed within that section. This decision would be right unless the words "Messrs. Hoare, Marr & Co.," at the commencement, can, under the circumstances, be held to be "a signature by a person authorized thereunto by the defendants." In fact the document was drawn up by one Harding, who was authorized by the defendants to draw it up and take it, in its present shape in all other respects, for the plaintiff's signature. It appears to me that the case falls within the principle of the decisions cited in favor of the plaintiff, especially Schneider v. Norris, 2 M. & S. 286, and Jones v. Victoria Graving Dock Co., 2 Q. B. Div. 314. See also the case of Bleakley V. Smith, 11 Sim. 150. In the present case it is impossible to doubt that the word "your," twice used in the written document, refers to the defendants, whose name and address is given in full at the head of the document. Nor can I doubt that both Harding and the defendants intended that this document, when signed by Evans, should be the final memorandum of the contract binding upon the defendants as well as the plaintiff. Mr. Witt contended that the cases relied upon were all cases where the document was sent out by the person charged. I do not think that this is necessary, if by the expression "sent out" is meant more than submitted for signature to the other party. If the party sued has authorized an agent to lay before the party suing a document containing his name in full as that of the party with whom the contract is to be made, so as to announce to the other party that they are offering him certain terms if he will agree to them

*1Q. B. [1892] 593.

in writing, and he thereupon signs, I think that there is sufficient "agreement or memorandum thereof, signed by a party authorized thereunto " within section 4 of the statute of frauds. That appears to me to be the case here. I therefore think that the plaintiff is entitled to judgment for the amount of the verdict.

CAVE, J. I am of the same opinion. The case put forward on behalf of the plaintiff was based on the grounds which have been stated by my brother Denman, and it was further contended that the plaintiff bad served, and must therefore be entitled to recover something in respect of such service. It is obvious however that this latter contention is not well founded, for the plaintiff had not completed any one month of service under the contract. The real point to be decided is whether the document in question is a memorandum or note in writing of an agreement signed by the party to be charged, or by some other person lawfully authorized, within the meaning of section 4 of the statute of frauds. 29 Car. 2, chap. 3. The statute of frauds was passed at a period when the Legislature was somewhat inclined to provide that cases should be decided according to fixed rules, rather than to leave it to the jury to consider the effect of the evidence in each case. This no doubt arose to a certain extent from the fact that in those days the plaintiff and the defendant were not competent witnesses. Several cases were referred to in the course of the argument, which it was contended could not be distinguished from the present case, but it is difficult to ascertain whether the circumstances of the different cases are the same, or rather whether the circumstances in which the different cases are similar or dissimilar are material or immaterial to the point under consideration. No doubt in attempting to frame a principle one is obliged to depart somewhat from the strict lines of the statute. I am of opinion that the principle to be derived from the decision is this. In the first place, there must be a memorandum of a contract, not merely a memorandum of a proposal; and secondly, there must be in the memorandum, somewhere or other, the name of the party to be charged, signed by him or by his authorized agent. Whether the name occurs in the body of the memorandum, or at the beginning or at the end, if it is intended for a signature there is a memorandum of the agreement within the meaning of the statute. In the present case it is true that the name of the defendants occurs in the agreement, but it is suggested on behalf of the defendants that it was only put in to show who the persons were to whom the letter was addressed. The answer is that there is the uame, and it was inserted by the defendants' agent in a contract which was undoubtedly intended by the defendants to be binding on the plaintiff, and therefore the fact that it is only in the form of an address is immaterial. A case was referred to in the argument (Schneider v. Norris, 2 M. & S. 286, in which a printed bill-head was held to amount to a signature within the meaning of the statute. That is a stronger case than the present. The printed heading there was not put into the document for the purpose of constituting a memorandum of the contract, but it was so used with the assent of the party sought to be charged, and it therefore was held to have the effect of a signature. This shows that it is unimportant how the name came to be inserted in the document. I cannot discover any other principle than that which I have stated, and I am of opinion that the present case comes within that principle, and therefore the plaintiff is entitled to judgment for the amount of damages found by the jury.

Appeal allowed. Leave to appeal refused.