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rier or to the consignee. It has been held that where it was shown that the first carrier received the goods in good condition and they were delivered in bad condition, the final carrier rebutting presumption makes a prima facie case against the first carrier. Packing Co. v. R. Co., 164 Ill. App. 646.

And it has been ruled that where an initial carrier failed to show it delivered freight to its connecting carrier, the terminal carrier could not be held for its loss. C. R. Co. v. Phillips, Miss., 60 Cent. R. Co. v. Davies, Tex. S. W. 916.

Mobile J. & K. So. 572; Texas Civ. App., 153

But it has been held that delivery to first carrier in good condition goods remained such when received by each succeeding carrier. Lumber Co. v. B. & O. R. Co., W. Va., 77 S. E. 333. This principle working backward until overcome by proof, tends to sustain the ruling in the Arkansas case.

A part of shipper's proof, where there is loss or damage anywhere, is that he delivered to first carrier in good condition. When the terminal carrier shows itself not at fault, is all presumption gone as to any other carrier? Or is the presumption as to good condition to remain until otherwise shown? This would make it work backward from the terminal carrier and the burden would be on its connecting carrier to acquit itself. If the presumption against the terminal carrier is an arbitrary rule, the initial carrier should first acquit itself.

EXTRADITION-REQUISITION FOR FUGITIVE IN STATE TO WHICH HE HAD BEEN REMOVED BY EXTRADITION.-The federal constitution provides that a person charged with treason or felony in one state and fleeing may be demanded from any other state in which he may be found. The extradition statute provides he may be demanded from the state to which he has fled, if there found. In Innes v. Tobin, 36 Sup. Ct. 290, a fugitive from Georgia was demanded from the governor of Texas, he there having been brought by extradition proceedings by the governor of Texas, on the governor of Oregon, to which latter state he had fled from Georgia.

Here it appears that the fugitive was not a fugitive to Texas, to which state he had come involuntarily and, certainly, he was beyond the reach of any proceeding under the statute enacted under the constitutional provision, which statute, however, was not as broad as it might have been made.

The petition for habeas corpus averred that "petitioner was never a fugitive from justice from the state of Georgia to the state of Texas," and, as seen, this was true, and if he could be requisitioned from there it must be on some theory outside of the federal statute.

The Chief Justice reasons that prior to the adoption of the constitution, fugitives from justice were surrendered between the states conformably to what were deemed the controlling principles of comity, and the constitution meant to confer on Congress authority to Ideal with this subject fully to this extent. But in the statute it only had dealt with it partially. Did the statute intend to cover the entire ground of demand for a fugitive from the justice of a state?

The Chief Justice said: "When the situation with which the statute dealt is contemplated, the reasonable assumption is that by the omission to extend the statute to the full limits of constitutional power, it must have been intended to leave the subject unprovided for not beyond the pale of all law, but subject to the then controlled state aupower which thority-until it was deemed essential by further legislation to govern them exclusively by national authority." He then argues that this must be so, or state authority is greatly paralyzed.

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This reasoning is all upon a failure, more by inadvertence than by intention in Congress, to make a statute as broad as it should have been made. Certainly, if Congress was providing for extradition of fugitives there could be no reason for not going the full length of of the power vested in it. It is not the same as if no statute was passed at all, and the subject is one that should be disposed of completely, if treated at all. If paralysis from partial treatment was to result that would be congressional inefficiency and not the product of congressional design. It would seem, at all events, that the constitution intended, that the subject was to be cared for by federal legislation and if it was not exhaustive, it ought to have been.

STATUTE OF FRAUDS - SUFFICIENCY OF MEMORANDUM BY BROKER IN A SALE TRANSACTION.-In Dinubo Farmers Union Pkg. Co. v. J. M. Anderson G. Co., 182 S. W. 1063, decided by St. Louis Court of Appeals, a brokerage firm at point of delivery, delivered to the party sought to be charged a memorandum on which there was printed on a slip the words, "Sold by Rosen-Reichardt Broker

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It was contended, only, that this memorandum was insufficient because "not signed by defendant or some agent by it thereto lawfully authorized."

The Court of Appeals first ruled that "in the first instance a broker may be regarded as the agent of one party only, *** but when acting as a broker he strikes a bargain between the parties and the contract of sale is definitely settled, he becomes the agent of both parties for the purpose of executing the memorandum of the transaction." This principle is said to be "implied from the necessity of the case, because without it he could not complete a contract of sale so as to make it legally binding on the parties."

This point being passed, it became easy to deduce the conclusion that the printed name at the top of the memorandum sufficed for the signature required by the statute of frauds. Indeed, it may well be doubted whether there remained any question referable to the statute of frauds.

As to being a sufficient signature, Judge Nortoni, speaking for the court, said: "It is true no formal signature appears to be affixed thereto (to the memorandum), but this is unimportant in view of the fact that the name of the broker * * * is printed on the heading of the memorandum and defendant's name is clearly written by the broker therein in typewriting as the purchaser. The signature required by the statute is not confined to the actual subscription of his name by the party to be charged, as is said by Mr. Benjamin on Sales (6th Ed.) § 256. * * * It sufficiently appears that defendant's name was written into the memorandum as the purchaser by the brokerage company, who, according to the evidence, at that stage of the negotiations, had, in virtue of its function as broker, become the agent of the defendant as well as of defendant."

This case demonstrates that decision, of

which much is cited, will apply the statute of frauds only where parties are still standing at arm's length and when there are intervening circumstances showing this no longer to be so, as in this case the dual agency of the brokerage firm, there is no reason for applying rule for suppression of frauds and perjuries. If there is a dual agent his credibility is attested by all parties. For a discussion under title "Statute of Frauds-Signature and Waiver," see 74 Cent. L. J. 339.

EXEMPLARY DAMAGES—A HERETICAL AND ILL-DEFINED DOCTRINE.

The general doctrine that exemplary damages may be assessed, at common law,1 in appropriate cases, is now expressly recognized by English courts and by about three-fourths of the American courts of last resort. In England, a well known case2 in the Court of Common Pleas, a century and a half ago, expressly sanctions the award of exemplary damages; and an important American court,3 about a century ago, apparently as a matter of course, recognized the propriety of such damages. Yet, probably there is no warrant for saying that, prior to 1763, there was a general rule, positively and expressly stated by courts, that, under certain circumstances, the jury might assess exemplary damages. Probably the general rule resulted from the extreme reluctance, and often flat refusal, of early courts to interfere with the verdicts of juries in tort cases when urged to set aside such verdicts on the ground that the damages awarded were excessive.*

Some of the decisions cited in American cases as being authorities for the imposition. of exemplary damages are not very strong supports to the contention for which they are cited as standing; for instance, one very important and frequently cited case quotes Lord Chief Baron Pollock as saying, in Doe v. Filliter," in 1844, that, in actions. for malicious injuries, juries had always been allowed to give what are called vindictive damages. Lord Pollock did not use the words "always," and the entire indirect quotation is of a statement which was purely dictum in an ejectment suit; though the same distinguished judge, fourteen years

(1) This article takes no notice of exemplary damages allowed in some states by statute. (2) Huckle v. Money, (1763) 2 Wils. 205. (3) Wort v. Jenkins, (1817) 14 Johns. (N. Y.) 352.

(4) Townsend v. Hughes, 2 Leach 150. (5) Goddard v. Grand Trunk Ry., (1869) 57 Me. 202, 2 Am. Rep. 39.

(6) 13 Mees. & W. 50, 51, 153 Eng. Rep. 20, 21.

later, in Thomas v. Harris, recognized the doctrine of exemplary damages in an action of trespass. It is only fair to state that the same decision that includes the above mentioned misquotation is based in part upon the later and square holding of Lord Pollock and in part upon other decisions in point.

Many arguments against the allowance of exemplary damages are advanced in the famous case of Spokane Truck & Dray Co. v. Hoefer, and in the cases therein cited. It is not within the purpose or scope of this article to weigh in detail the objections there raised. Doubtless the most important of these objections is that the doctrine is not historically a part of the common law. This objection has never been really over

come. The other objections may be classified as constitutional and ethical. It seems difficult to maintain that the award of exemplary damages is, on any ground, unconstitutional; and all constitutional objections have been squarely met and logically refuted." Of course, the objection of mere ethical injustice could not control in a legal proceeding; but most courts and juries, and some legislatures, have regarded the assessment of exemplary damages as being eminently just in what they have considered appropriate cases.

The supreme courts of three states have clearly and consistently denied that exemplary damages may be allowed at common. law.10 The highest courts of four other states have imposed upon the general rule so restricted an interpretation as practically

(7). 3 Hurl. & N. 961.

(8) 2 Wash. 45, 25 Pac. 1072, 11 L. R. A. 689, 26 Am. St. Rep. 842.

(9) See Sedgwick, El. Dam. 2d ed., pp. 87-89. But see criticism of exemplary damages for penal offense, 2 Suth. Dam. 3d ed. 1116 and note.

(10) Murphy v. Hobbs, 7 Col. 541, 5 Pac. 119, 49 Am. Rep. 366; Greeley, etc., R. Co. v. Yeager, 11 Col. 345, 18 Pac. 211; Howlett v. Tuttle, 15 Col. 454, 24 Pac. 921; Boldt v. Budwig, 19 Neb. 739, 28 N. W. 280; Bee Pub. Co. v. World Pub. Co., 59 Neb. 713, 82 N. W. 28; Spokane Truck & Dray Co. v. Hoefer, 2 Wash. 45, 25 Pac. 1072, 11 L. R. A. 689, 26 Am. St. Rep. 842; Corcoran v. Postal Tel. Co., 80 Wash. 570, 142 Pac. 29.

to deny the doctrine in its entirety.11 Twenty supreme courts, including sixteen not in the two classes above mentioned, place serious limitations upon the general rule. Some of these and other courts have stated further logical and necessary restrictions upon its operation.

Although the validity of a general rule that exemplary damages may be awarded in cases of malicious torts and breach of

promise to marry is expressly recognized by most supreme courts, some of the most important questions connected with the operation of the rule are decided differently, where they have arisen at all, and are still undecided in some jurisdictions; e. g., whether exemplary damages are ever recoverable where there is no proof of actual damage; whether exemplary damages are entirely within the discretion of the jury or may be insisted upon as a matter of right; whether such damages may be awarded for an act which is punishable criminally; to what extent exemplary damages may be assessed against infants; whether such damages are recoverable for anxiety and mental anguish not accompanied by other damage; what constitutes malice authorizing the assessment of exemplary damages; and to what extent a principal may be held liable in exemplary damages for torts of his agent. It is sometimes said that the principle of exemplary dam-. ages is well settled in most of the states; but it would be more nearly accurate to say that only a more or less vague and uncertain general principle is held in common by most courts, some of the most important principles ancillary and subsidiary to the doctrine being varied, indistinct, or unsettled. As the law of exemplary damages

(11) Maisenbacker v. Society Concordia, 71 Conn. 369, 42 Atl. 67, 71 Am. St. Rep. 213; Hassett v. Carroll, 85 Conn. 23, 81 Atl. 1013; allowing no exemplary damages above expenses of litigation. Stowe v. Heywood, 7 Allen, (Mass.) 118; Detroit Daily Post Co. v. McArthur, 16 Mich. 447; Welch v. Ware, 32 Mich. 84; Fay v. Parker, 53 N. H. 342, 16 Am. Rep. 270; allowing exemplary damages only to make reparation for injury to feelings.

was founded upon no sound and certain is usually held to be fraud to make an unbasis in the common law, courts, claiming to recognize the general principle, have varied widely in even their general interpretation of it.

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The Court of Queen's Bench in England at one time maintained that a false representation of a material fact which induced another to enter into a contract was ground for an action at law for deceit, irrespective of the knowledge or ignorance of the party making it as to its falsity. Some earlier American decisions adopted this view, and the courts of Michigan seem still to adhere to it. The doctrine, however, has been overruled in most of the states and it is now held almost universally in the United States that there can be no legal fraud without moral delinquency.

The question then arises as to what constitutes such moral delinquency, and here there is some conflict in the decisions. It is undoubtedly fraud to induce another to enter a contract by a misrepresentation known to be false or made with reckless disregard as to its truth or falsity, and it

(1) Fuller v. Wilson, 3 Q. B. 58.

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true statement as to one's actual knowledge when in fact he has no such knowledge. A misrepresentation has also in some cases been regarded as fraudulent, even when it was believed by the party making it to be true, but upon no reasonable grounds for so believing. In this paper, however, an innocent misrepresentation will be taken as a representation which is in fact untrue, but which is upon reasonable grounds believed by the party making it to be true.

The common law courts of England before the passing of the Judicature Act in 1875 gave no relief for misrepresentations. relating to a contract unless they were fraudulent, or were made in order to induce the other party to enter into a contract of a special class in which the utmost good faith and the most complete statement of facts were required. The Court of Chancery, on the other hand, would. refuse to enforce any contract induced by an innocent misrepresentation of a material fact, although it probably would not cancel such a contract unless it belonged to this special class requiring the most complete disclosure. The Judicature Act, however, provided that the law courts should give. effect to any equitable claim, remedy, or defense which would be recognized by the Court of Chancery. Recent decisions, moreover, have expanded the rules of chancery so that a material misrepresentation, though innocent, may be ground for rescission of all contracts.

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In the United States the courts of law have followed the general principles of the English common law before the Judicature Act, while the courts of equity have adhered to the expanded rules of the English Chancery courts. In this country, too, an effect similar to that of the English Judicature Act has been produced in many of the states by the adoption of codes of

(3) Anson on Contracts (2nd Am. Ed.) p. 180; Benjamin on Sales, § 563.

civil procedure which allow legal and equitable claims and defenses to be maintained in one form of action. There has been much confusion, however, in the discussion and citation of cases on this subject because of the failure to discriminate between the nature and effects of misrepresentations in legal actions or defenses, in equity suits for rescission, and in equity suits as a defense to specific performance. For this reason, and because of the separate administration of law and equity in the federal courts and in a number of the states it is desirable to note clearly the distinction between the effects of an innocent misrepresentation in the various legal and equitable actions.

The general rule at law is that an innocent misrepresentation has no effect whatever on a contract, neither discharging the injured party nor giving him a right of action for damages. To this rule there are several exceptions. It has been frequently said that at common law the truth of a representation is material only when it is a term of the contract, but such a statement is both misleading, and untrue. If a representation is embodied in the contract, it ceases to be a representation and becomes a condition or warranty: its untruth does not affect the formation of the contract but operates to discharge the injured party or to give him a right of action for damages. In other words, such a misrepresentation as we are now considering can be only an inducement causing the other party to enter into the contract. For this reason the courts have shown a tendency to bring, if possible, any statement material enough to affect consent into the terms of the contract.

There is, however, one almost unrecognized exception to the rule that an innocent misrepresentation gives no right of action for damages, namely, one made by an agent as to his authority. This exception is disguised by the courts as the agent's "implied warranty of authority," and an

(4) Anson on Contracts, Note by Huffcut, p. 182.

action ex contractu and in some cases ex delicto is allowed for its breach.5

In contracts known as uberrimae fidei the law regards misrepresentations, even though innocently made, as constructive fraud and will give relief just as against actual fraud." Here one party is compeiled to rely on the other for his knowledge of the facts and the other owes the duty to use the utmost good faith. Such cases may arise from the confidential or fiduciary relations between the parties, such as the relations of principal and agent, attorney and client, trustee and beneficiary, guardian and ward, parent and child, or husband and wife; or from the fact that the contract itself is necessarily of a fiduciary nature, such as contracts for insurance. Contracts for the sale of land have sometimes been included in the latter class, but it is undoubtedly the general rule in the United States that they are not within the exception; nor are contracts of suretyship and guaranty. Contracts for the purchase of shares in companies and corporations are regarded in England as uberrimae fidei, but the American decisions on the point are in conflict. These cases where the duty of knowing the truth of his representations is imposed upon the party making them are the recognized exceptions to the general rule, but in some circumstances certain other misrepresentations might be considered as exceptions. These are such innocent misrepresentations concerning the subject matter of a contract as to cause in fact a failure of consideration. In such cases even the common law will discharge the injured party from his obligation.

Except in the contracts just mentioned, courts of law impose no liability either in tort or on the contract where there is no element of fraud, even though the representation was as to a material matter and

(5) Mechem on Agency, § 549; Seeberger v. McCormack, 178 Ill. 404.

(6) Clark on Contracts (3rd Ed) p. 266-69 and cases cited; Pomeroy's Equity Jurisprudence, 881.

(7) Waterman on Specific Performance. § 307: Kennedy v. Panama, etc., Mail Co., L. R., 2 Q. B. 580.

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