Wilder Manufacturing Company v. Corn Products Refining Company, 236 U. S. 165.

For a discussion of this interesting question arising under the Anti-Trust Act, see NOTES, p. 691.

INSURANCE MUTUAL BENEFIT INSURANCE - CHANGE OF BENEFICIARY: EFFECT OF PAYMENT OF ASSESSMENTS BY PRIOR BENEFICIARY. - The wife of a member of a fraternal benefit society paid the assessments on the policy, which named her as beneficiary, and had been delivered to her by her husband with permission to keep up the assessments. She was then divorced and the husband named a new beneficiary in accordance with the by-laws of the society. Further assessments tendered by her were refused by the society, and on the death of the insured she claims the proceeds of the policy. Held, that she cannot recover. Schiller-Bund v. Knack, 150 N. W. 337 (Mich.).

Unlike an ordinary life insurance policy, a fraternal insurance certificate, the terms of which permit the insured to change the beneficiary at his pleasure, gives the beneficiary no vested right. Woodruff v. Tilman, 112 Mich. 188, 70 N. W. 420; Masonic Benefit Ass'n v. Bunch, 109 Mo. 560, 19 S. W. 25. But the beneficiary may otherwise acquire such an equitable right as to estop the member from exercising this power, as, for example, by a contract not to change the beneficiary. Webster v. Welch, 57 N. Y. App. Div. 558, 68 N. Y. Supp. 55; In re Reid's Estate, 170 Mich. 476, 136 N. W. 476; Leaf v. Leaf, 92 Ky. 166, 17 S. W. 354. But if, as the court finds on the facts in the principal case, there is a mere payment of the assessments by the beneficiary named, without any contract with the member, there is nothing to prevent the member's making the change. It is said that the beneficiary pays any assessments with full notice of the contingency of his right. Jory v. Supreme Council, 105 Cal. 20, 38 Pac. 524; Fisk v. Equitable Aid Union, 7 Sadler (Pa.) 567, 11 Atl. 84; Spengler v. Spengler, 65 N. J. Eq. 176, 55 Atl. 285. Nevertheless, it has been held that the prior beneficiary should have a lien for the amount of the assessments he has paid, on the ground that to deprive him of all relief would be unconscionable. Grand Lodge A. O. U. W. v. McFadden, 213 Mo. 269, III S. W. 1172; cf. Supreme Council of Royal Arcanum v. McKnight, 238 Ill. 349, 87 N. E. 299; see Masonic Benefit Ass'n v. Bunch, supra. But in the absence of mistake, payments made without any agreement, express or implied, appear to be purely voluntary, and should afford no basis for recovery. Supreme Lodge N. E. O. P. v. Hines, 82 Conn. 315, 73 Atl. 791; Heasley v. Heasley, 191 Pa. 539, 43 Atl. 364. The denial of all relief by the principal case is therefore proper, so long as its rather improbable construction of the facts is adopted.

CONFLICT BETWEEN

INTERSTATE COMMERCE- CONTROL BY CONGRESS FEDERAL AND STATE POLICE REGULATIONS: SAFETY APPLIANCE LAWS. — A state statute required railroads to equip all cars with grab-irons and handholds. The Federal Safety Appliance Act subsequently imposed a similar requirement, with some different specifications as to details. The state railroad commission now brings suit for a violation of the state statute as to a car moving on a railroad engaged in interstate commerce. Held, that in this case the Federal Act has superseded the state statute. Southern Ry. Co. v. R. R. Comm. of Indiana, 236 U. S. 439.

The Supreme Court in this decision adds another to the long list of cases which hold that once Congress has acted in the exercise of its paramount power to regulate interstate commerce, the police power of the state is thereby ousted to that extent, even though the requirements imposed by state legislation are not themselves in conflict with the federal regulations. Houston &

Texas Ry. v. United States, 234 U. S. 342, 351; Erie R. R. v. New York, 233 U. S. 671. For a discussion of the principal case in the district court, see 26 HARV. L. REV. 757.

INTERSTATE COMMERCE CONTROL BY CONGRESS - FEDERAL EMPLOYER'S LIABILITY ACT: ASSUMPTION OF THE RISK AS AFFECTED BY EMPLOYER'S VIOLATION OF STATE FACTORY ACT. The plaintiff was injured, while engaged in the car shops of an interstate carrier upon the repair of a car used in interstate commerce, by machinery left unguarded in violation of the state "factory act." He now sues under the Federal Employer's Liability Act, which provides (35 STAT. AT L.65, c. 149, § 4) that no employee shall be held to have assumed the risks of his employment where the violation "of any statute enacted for the safety of employees contributed to the injury." Held, that assumption of the risk precludes recovery. Lauer v. Northern Pacific Ry. Co., 145 Pac. 606 (Sup. Ct., Wash.).

The decision follows a recent dictum of the Supreme Court to the effect that the word "statute" in the above quoted provision must, in the interest of uniformity, be construed to refer to federal statutes only. Seaboard Air Line R. Co. v. Horton, 233 U. S. 492, 503. In the actual case, however, the only state statute involved was a state liability statute which was plainly superseded by the federal act. If the act be construed as evidencing a desire for absolute uniformity in this particular, it would follow that no state statute enacted for the protection of employees, though not superseded by federal legislation, can have any effect in actions under the federal act. But it is submitted that violation of a subsisting state statute of this character would clearly be admissible to show negligence. See THORNTON, FEDERAL EMPLOYER'S LIABILITY, 2 ed., § 47. The prevailing tendency of recent commonlaw decisions has been to deny the defense of assumption of risk in case of injury due to violation of a statutory duty toward employees. See 26 HARV. L. REV. 262. Federal statutes of this character cover a relatively small portion of the field and leave in force a vast number of state statutes enacted for the protection of employees. It seems much more reasonable to think that Congress intended to adopt the prevailing common-law view as to the assumption of the risk of violation of any existing statutory duty, whether federal or state, than to think that in the interest of uniformity this large body of safety legislation was intended to be almost wholly overridden as to interstate employers, without the substitution of any similar federal legislation. It is to be regretted that the Washington court felt bound to overrule its previous decision. Opsahl v. Northern Pacific Ry. Co., 78 Wash. 197, 138 Pac. 681.

LANDLORD AND TENANT CONDITIONS AND COVENANTS IN LEASES WHETHER COVENANT NOT TO ASSIGN BINDS ASSIGNEES NOT NAMED. A lease contained a covenant not to assign without the consent of the lessor, with the usual clause of reëntry. After one assignment by license, that assignee in turn assigned, but without permission. The lessor now seeks to enter for breach of the covenant, which did not in terms bind assignees. Held, that the plaintiff may enter. Goldstein v. Saunders, 138 L. T. J. 314 (Ch. Div.). No question arises in this case as to whether the condition survived the first license to assign, since the rule in Dumpor's Case, that a prior license waiving a condition against assignment of the lease destroys the condition utterly, has been abrogated by statute in England. 22 & 23 VICT., C. 35; 23 & 24 VICT., c. 38, § 6. Cf. Dumpor v. Symmes, 4 Co. 119 b. There remains the problem whether the assignee was bound by a covenant not expressly naming assigns. If the covenant in terms mentions assigns, it runs with the land, and is binding upon them. Williams v. Earle, L. R. 3 Q. B. 739; McEacharn v. Colton, [1902]

A. C. 104. It no less touches and concerns the land when assigns are not expressly included. It seems clear, moreover, that these words are not required to make such a covenant run with the land under the rule in Spencer's Case, 5 Co. 16. The formula usually employed in such covenants and employed in the principal case, is "not to assign without the consent of the lessor." This, it has been said, shows that assignments by permission are contemplated, and that the covenant is accordingly intended to bar unauthorized assignments by any tenant. Toronto Hospital Trustees v. Denham, 31 Upp. Can. C. P. 203. Even without this formula, the covenant indicates merely that assignments were not contemplated, not that the covenant was to lose its force if one did occur. The principal case, therefore, takes what appears to be the commonsense view of the matter and substitutes the assignee for the original lessee, just as in any covenant running with the land. See 1 TIFFANY, LANDLORD AND TENANT, p. 936.

LIBEL AND SLANDER ACTS AND WORDS ACTIONABLE - WORDS IMPUTING IMMORALITY TO SCHOOL TEACHER: WHETHER ACTIONABLE PER SE. - The defendant charged the plaintiff, a school master, with immoral conduct with a certain woman. The jury found the words were spoken in such a way as to imperil the plaintiff's retention of his office, and imputed that he was unfit to hold it. Held, that the words are actionable per se. Jones v. Jones, 31 T. L. R. 245 (K. B. Div.).

The decision goes on the ground that the words tend to injure the plaintiff in his profession or calling. This class of slander per se may be divided into three heads. First, those words which impute the plaintiff's incompetence to fill his position although no mention of his business be made, as insolvency in the case of a merchant, or ignorance in the case of a doctor or school teacher. Stanton v. Smith, 2 Ld. Raym. 1480; Cawdry v. Highley, Cro. Car. 270. And see Watson v. Vanderlash, Hetley 69, 71. Although a charge of habitual drunkenness might be said to impute incompetency for almost any trade or profession, it is difficult to see how immorality of the sort charged in the principal case would have any such tendency, except possibly in the case of a clergyman. See Dod v. Robinson, Aleyn 63. Secondly, words which impute misconduct in the practice of a profession, but do not necessarily charge incompetency. In such cases it is necessary that the words be spoken of the plaintiff in his professional capacity. Charges of immorality or dishonesty against a physician, or insolvency against a solicitor, are examples of this class. See Ayre v. Craven, 2 A. & E. 2; Dauncey v. Holloway, [1901] 2 K. B. 441; Jones v. Bush, 131 Ga. 421, 62 S. E. 279. Thirdly come those cases where the plaintiff's position is a salaried one, and the charge made is one which if true would cause his dismissal although imputing neither incompetency nor misconduct in fulfilling professional duties. Cf. Alexander v. Jenkins, [1892] 1 Q. B. 797; Gallwey v. Marshall, 9 Exch. 294. On this ground a general charge of immorality against a school teacher may well be held actionable. See Nicholson v. Dillard, 137 Ga. 225, 73 S. E. 382.

MASTER AND SERVANT · WORKMEN'S COMPENSATION ACTS GENERAL RELEASE OF EMPLOYER UPON PAYMENT OF COMPENSATION: RIGHT TO SUBSEQUENT RECOVERY AGAINST THIRD PARTY. - The plaintiff was injured in the course of his employment under circumstances creating legal liability in a third party for negligent injury. The employer was found not to be negligent, but made payment to the plaintiff under the Workmen's Compensation Act, and received a general release. The plaintiff now sues the third party for damages. Held, that he may recover. Jacowicz v. Delaware, L. & W. R. Co., 92 Atl. 946 (Ct. Err. & App., N. J.).

This decision is a counterpart of the cases holding that the release of a third party upon recovery of judgment against him does not exonerate the employer

from paying compensation, in the absence of special statutory provision as to subrogation. Newark Paving Co. v. Klotz, 85 N. J. L. 432, 91 Atl. 91. See 26 HARV. L. REV. 377. By electing to claim under the statute, the employee surrenders his common-law rights against his employer and becomes entitled to compensation without regard to the employer's negligence. Hence, even if the employer had been at fault, the release should have no particular significance, for it adds nothing to the legal effect of the statute itself. In either case there seems to be no reason why the statute should operate to shield third-party tortfeasors. Compensation was not received from the employer as tortfeasor, and was at most only partial reparation for the injury sustained. See 28 HARV. L. REV. 307. Even among joint tortfeasors the release of one upon partial satisfaction has been held to release the other only pro tanto. Bailey v. Delta Electric Light, etc. Co., 86 Miss. 634, 38 So. 354. The result in the principal case is further justified by the amended New Jersey Act, which permits the compensated employee to sue a third party, the employer being entitled upon notice to such third party to repayment out of any settlement or judgment to the extent of his payments under the Act. N. J. Laws, 1913, c. 174, § 8. Under the English Workmen's Compensation Act, precluding the recovery of both compensation and damages, a contrary conclusion is reached. Mahomed v. Maunsell, 1 Butterworth's Work. Comp. C. N. S. 269. Most of the statutes in this country, however, have special provisions on the point, insuring the employee full, but no more than full, satisfaction. By the commonest of these, an employer having paid compensation is subrogated to his employee's rights against third persons, but must pay the employee any excess in recovery over compensation paid. See, for example, CONN. LAWS, 1913, ch. 138, pt. B, § 6.

MECHANICS' LIENS ARCHITECT'S LIEN FOR PLANS ACCEPTED BUT NOT USED TO EFFECT ACTUAL IMPROVEMENT ON THE LAND. - An architect, under contract with the defendant, made plans for a building whose construction he was to superintend. After accepting the plans, but before any work had been done on the land, the defendant repudiated the contract. The mechanics' lien law, MINN. GEN. STAT., 1913, § 7020, gives anyone who contributes to the improvement of real estate a lien "upon such improvement and upon the land on which it is situated." Held, that the architect was entitled to a lien on the land on which the building was to have been erected. Lamoreaux v. Andersch, 150 N. W. 908 (Minn.).

The court reasons that the broad policy indicated by the mechanics' lien law demands a lien where there would have been an improvement if the owner had performed his contract, even though the statute literally requires an actual improvement. The motive which underlies mechanics' lien statutes seems to be a sense of the injustice of letting one man be enriched by another man's unpaid services. See PHILLIPS, MECHANICS' LIENS, § 6. They owe their legislative origin to the analogy of the common-law lien, which attached only to chattels actually improved by the bailee. See Esterley's Appeal, 54 Pa. 192, 193. The language of some statutes, it is true, is broader and indicates a departure from this traditional view that there must be on the land a tangible embodiment of the lienor's labor or substance; and it has been held under such statutes that there may be a lien for materials tendered but wrongfully rejected by the owner and never used on the land. Thomas Tramwell & Co. v. Mount, 68 Tex. 210, 4 S. W. 377; Hinchman v. Graham, 2 Serg. & R. (Pa.) 170. The class of statutes to which the Minnesota law belongs, however, gives little countenance to such an interpretation; and there seems to be nothing in the purpose of the act which calls for judicial extension of its language. But see Burns v. Sewell, 48 Minn. 425, 51 N. W. 224. Under a statute which differs but slightly from that involved in the principal case, Iowa has reached the opposite result. Foster v. Tierney, 91 Ia. 253, 59 N. W. 56.

MUNICIPAL CORPORATIONS MUNICIPAL DEBTS AND CONTRACTS -LIABILITY FOR BENEFITS RECEIVED UNDER CONTRACTS THAT EXCEED DEBT LIMIT. - A county borrowed money of the plaintiff beyond its constitutional debt limit, which could be exceeded only with the authority of the voters. The money so received, together with other funds which had been properly obtained, was used in the construction of a courthouse. The plaintiff now sues the corporation on a quantum meruit. Held, that he cannot recover. Eaton v. Shiawassee County, 218 Fed. 588 (C. C. A. Sixth Circ.).

The principal case illustrates an important distinction in the law of municipal corporations. Where benefits are received by the corporation pursuant to a contract that is invalid because of failure to observe a statutory requirement as to execution, but which is in substance a contract which the municipality has capacity to make, a quasi-contractual liability arises. Louisiana v. Wood, 102 U. S. 294; Reynolds v. Lyon County, 121 Ia. 733, 96 N. W. 1096. And even where there is total lack of capacity to enter into the contract, if the consideration can be readily returned, that must be done. Crampton v. Zabriskie, 101 U. S. 601; Turner v. Cruzen, 70 Ia. 202, 30 N. W. 483. But where, as in the principal case, the money has been mingled with other funds and invested in a structure, so that on principles of constructive trust the res cannot be followed into a severable product, the outsider has no relief whatever. Litchfield v. Ballou, 114 U. S. 190; Bigler v. Mayor, 5 Abb. N. C. (N. Y.) 51. There can be no property right by way of lien or otherwise in the building. Litchfield v. Ballou, supra; Grady v. Pruit, 111 Ky. 100, 63 S. W. 283. Nor may the claimant have rental. Gamewell Fire-Alarm Tel. Co. v. City of Laporte, 102 Fed. 417. If the constitution has left the municipal corporation without capacity to create an express liability, there is no alternative for the court but to prevent the same burden from being laid upon the taxpayers indirectly through the action on a quantum meruit. See 17 HARV. L. Rev. 343.

MUNICIPAL CORPORATIONS - PROCEEDINGS OF COUNCIL OR OTHER GovERNMENTAL BODY EFFECT OF BLANK BALLOT. - At an election for school superintendent by a school board, the defendant received five votes, there were three scattered votes, and three blank ballots. A majority of the votes cast was necessary for election. Held, that the defendant was duly elected. AttorneyGeneral v. Bickford, 92 Atl. 835 (N. H.).

When the statute requires affirmative action by a majority of those present, the problem is quite distinct from that involved in the principal case. A blank ballot is then as effectual as a vote against the candidate. People v. Conklin, 7 Hun (N. Y.) 188; Commonwealth v. Wickersham, 66 Pa. 134. In the usual case, however, a majority of the votes actually cast is sufficient for an election. In determining the number of votes cast, a minority of jurisdictions, disagreeing with the principal case, hold that a blank ballot must be included, and so in effect count such a ballot against the leading candidate. Lawrence v. Ingersoll, 88 Tenn. 52, 12 S. W. 422. Thus in one case where each candidate received twenty-two votes and there was one blank ballot, it was held that there was no tie and that the mayor could not vote. State v. Chapman, 44 Conn. 595. This sufficiently shows the difficulties of the minority doctrine. A blank ballot cannot properly be construed as either for or against a candidate. In so far as it signifies anything it probably expresses an acquiescence in the action of the majority of those actually voting. Rushville Gas Co. v. City of Rushville, 121 Ind. 206, 23 N. E. 72. But the principal case follows the better view and the weight of authority in holding that a blank ballot should be utterly disregarded. Murdoch v. Strange, 9 Md. 89, 57 Atl. 628; Wheeler v. Commonwealth, 98 Ky. 59, 32 S. W. . 259.

PRIVACY, RIGHT OF NATURE AND EXTENT OF THE RIGHT POSSIBLE INTERESTS IN ONE'S NAME OR PICTURE. — The plaintiff secured from a certain