The Lawyer's Corner: 1898 #3

Responses to Questions Of General Public Interest in the Year 1898
 
 


"E.P.M."__ has succeeded in getting himself into trouble by carelessness and a lack of legal knowledge. He was formerly in business and sold his tock of goods. He left his fixtures in the room that had been occupied by him as a store and left the city for a year. He was notified to remove the fixtures, but they not being valuable, he paid no attention to the notification, supposing that the owner of the house would put them in the cellar or the back yard. The room remained without a tenant until the return of "J.P.M.," when the landlord presented him with a bill for the rent for the entire year. This amount will have to be paid, the facts constituting what in law is known as an implied tenancy.

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"E.F.C."__An auctioneer who has innocently and in good faith sold property at public outcry, which has been stolen, is liable for the value of the goods, even though he has turned the proceeds over to the pretended owner, who was guilty of stealing them.

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"Q.E.B."__ Where a customer requests a merchant to give credit to a friend, saying that if the friend does not pay, he will, no legal liability is caused. Any verbal promise to p ay the debt of another is within the statutes of frauds and conveys no liability whatever. A surety ship to be binding must be in writing.

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"A.G.I."__ The contracts of railroads and other transportation companies printed on their bills of lading and tickets limiting their liability, even when signed by the shipper or passenger, are void so far as negligence is concerned. Negligence is a tort and a common carrier cannot contract against liability for wrong doing.

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"A.D.P."__The statutes of limitations of the several states do not run as against persons under legal disability. A creditor who is sane at the time a debt is created and afterward becomes insane, is not barred from bringing a suit when he recovers his sanity, even though the statutory time has elapsed during his period of disability.

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"G.H.S."__presents a peculiar case for consideration. Martin dies, leaving a will providing that in case an unborn child should be a son the child should receive one-half of the estate and the widow one-half. In case it should be a daughter the child should receive one-third of the estate and the widow two-thirds. After the testator's death the widow gave birth to twins, a son and a daughter. The will is void and the estate must be distributed according to statute.

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"R.P.K."__Intoxication is not an excuse for crime in any state of the Union, even though at the time of the commission of the offense the defendant is so grossly intoxicated that he is unconscious of what he does and has lost all control of himself. In these crimes, however, where criminal intent is a necessary feature, intoxication is allowed to be proven in order to mitigate the punishment by reason of lessening the intention. It is not, however, allowed to do away with the intention altogether unless it is of such a nature as to amount to actual insanity.

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"A.S." inquires as to the legal result of the following facts: There was an account between A. and B., which B., the debtor, disputed as to the amount, whereon A. agreed to take a sum equal to about three-fourths of the debt without condition as to time of payment. A week afterward B. tendered the amount, less the reduction previously stipulated. A. refused to accept it as a full satisfaction on the ground that he had changed his mind, and his promise was not binding, because it was without consideration. Can B. enforce the reduction as a credit?

ANSWER__He can do so, because the account was not an ascertained debt, there being a dispute upon it. This is the line of distinction; it is a generally recognized doctrine that where a debt is ascertained and fixed, a mere agreement to accept a smaller sum in lieu of it cannot be enforced, because of the want of a consideration whereas in the case stated by "A.S." the settlement of a dispute is regarded as a sufficient consideration for the promise of rebate. But the courts all seemed inclined to obliterate, or at least blur the distinction, and so agree that if in the case of a liquidated debt a promise of reduction is made and there is any benefit whatever, or even a legal possibility of any benefit to the creditor thrown in the promise can be enforced. Thus, if a debtor give a promissory not4e indorsed by a third p arty or secured by a mortgage, the promise of the creditor to accept this in lieu of a larger amount, or payment of a less amount before the debt is due furnishes a sufficient consideration, or such payment at a different place than that stipulated in the contract. Or if a promissory note is surrendered to the maker on payment of a less sum, the creditor cannot afterward enforce the payment of the balance.

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"T.M." inquires whether a subscription for the purpose of building a church can be collected by law.

ANSWER__It is a universal principle of law that no promise to bestow a gift can be enforced, because of a want of legal consideration. it is held to be subject tot he will of the owner merely and can, at his discretion, be recalled. And yet it has been held by some courts that the improvement and benefit resulting to community from the erection of a church furnishes a sufficient consideration for a promise to contribute to that purpose. Others have held that the mutual promises of subscribers tot he common object constitute sufficient mutual consideration to support the promise of each. But the new York Court of Appeals regards a subscription to pay off a church debt void for want of consideration to support liability of any sub-church would come under the same rule. The court held in the case of the First Presbyterian Church vs. Cooper that the fact that all are co-laborers in promoting the common object is not sufficient. And even where trustees, in common with others, are active in promoting that object, their labors are not for that reason to be regarded as official, but individual merely, and so do not afford any consideration to support liability of any subscribers.

 

Website: The History Box.com
Article Name: The Lawyer's Corner: 1898 #3
Researcher/Transcriber Miriam Medina

Source:

The Brooklyn Daily Eagle January 30, 1898
Time & Date Stamp: