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ters into an agreement in writing with Richard Roe, whereby the latter advances money and indorses promissory notes to enable Doe to purchase materials for use in the construction of automobiles; Doe agreeing to repay the money advanced, to take care of the notes when due, to take sole charge of the management of the business and to pay Roe one-third of the net profits from the manufacture and sale of the automobiles.
Doe incurred certain other indebtedness in the business to A., which he cannot pay, and A. sues Doe and Roe as copartners. Roe defends upon the facts stated. Judgment for wbom, and why?
19. A., a dealer in flour and feed in New York, and B., a produce dealer in Chicago, entered into an agreement whereby each was to pay to the other annually for five years one-half of the profits of his business and to bear one-half of the losses of the other. The ownership of each of the two stocks in trade was to be kept separate. B. became bankrupt. What claim, if any, have the creditors of B. upon the property of A.? Give your reasons.
20. A. proposed to B. to give him his promissory note, without interest, with C. as indorser, for an indebtedness which he owed to B., and which the latter agreed to accept.
A. made and executed a note payable to B., drawn on a printed blank form, which contained the words "with interest," which A. omitted to erase, as he intended. He then obtained C.'s indorsement and delivered it to B. On the following day he met B., called his attention to his mistake, and wanted it corrected. B. told him he would erase the words "with interest" in the note. A. said, “All right.” B. erased the words without the knowledge or consent of C.
The note was dishonored at maturity, of which C, had due notice. B. sued A. and C. to collect. Both defend upon the sole ground of said erasure which B. had made.
Judgment for whom, and why?
21. A., who was indebted to B., signed and delivered to B. a printed blank note, leaving the amount to be filled in by B., as A.'s indebtedness should appear on B.'s books of account.
B.'s books showed A.'s indebtedness to be $500, which B. well knew; notwithstanding B. filled in the note the amount of $600, and then in due course negotiated the note to C. At the maturity of the note, on demand by C., A., having learned of B.'s fraud, refused to pay. Action is brought by C. against A. A. defends. Judgment for whom, and why?
22. A. was the owner of a promissory note made by B. payable to the order of A. Cpon maturity of the note, A. handed it, without indorsement, to his clerk, C., with directions to go to B. and obtain from him a new note for the amount of principal and inter
est, with a good indorser, and then to surrender to B. the old note. C. obtained instead from B. the whole amount of the note, principal and interest, in cash, and surrendered the note to B., and then absconded with the money.
A. now sues B. for the amount of the vote. Can he recover, or not? State your reasons.
23. A. employed B. to attend an auction sale of Holstein cattle and to bid off for him a certain well-known valuable animal, advertised to be sold thereat, for a price not exceeding $2,000. Agreeable to such employment and instructions, B. attended the sale and the animal was struck off on his bid of $1,500, and, on inquiry from the auctioneer, B. responded that it was his bid. Nothing further was said. Thereupon B. paid 20 per cent. of the purchase price, which had been furnished by A., in accordance with the terms of sale, took the animal and turned it over to A.
Before the balance of the purchase price was due A. became insolvent and payment was demanded of B. and refused, on the ground that he, B., was acting as A.'s agent in making the purchase. Is B. liable or not? State your reasons.
24. A., who had given his promissory note to B. for a good and valuable consideration, which B. had duly indorsed over to C., became insolvent before the note matured.
While C. was the holder, A. turned over to him a United States bond of the full value of the note, principal and interest, as collateral to secure payment of the note. The note was dishonored, and, due notice thereof having been given to B., C. brought an action against him to recover on the note. B. defends, claiming that he was a surety merely, and that C. must first proceed to collect on the collateral, and that he, B., was only liable for the deficiency, if any.
What do you say as to B.'s defense, and for what reason?
23. A. sold and delivered to B. a certain horse for the agreed price of $500, warranted it kind and sound in every respect, on a credit of three months. C. became A.'s surety for the due payment of the purchase price. The horse proved unkind and unsound, and was so at the time of the sale, to the extent that it was of no value whatever. B. was insolvent, and, on demand, refused to pay anything. Then A. sued C., the surety, to recover the purchase price. C. admitted his suretyship, but defended on the sole ground of plaintiff's breach of his contract of warranty with B., and on the facts stated. Judgment for whom, and why?
26. A. had a policy of life insurance in the X. Insurance Company calling for the payment of a semiannual premium, for the nonpayment of which the policy could be forfeited. A dispute a rose between A. and the company concerning the time of the tender of payment of the premium due January 1, 1905, in which the company refused the premium and declared the policy forfeited. A. tendered the premium due July 1, 1905, which the company refused to accept.
A. did nothing further and died on January 1, 1910. His executors find the policy among his papers and consult you concerning the
Conceding that A. was right, and that the company had no legal basis on which to forfeit the policy on January 1, 1905, or to refuse to receive the premium duly tendered on July 1, 1905, is there still a cause of action on the policy? What do you say, and why?
27. A standard fire insurance policy contained a clause which required the assured within sixty days after the fire to serve proofs of loss, in default of which no suit or action on the policy for the recovery of any claim was sustainable.
The insured gave immediate notice of the fire and of the loss. The company paid no attention to the notice except to notify the insured immediately thereafter that it denied any liability under the policy. The insured thereafter, and on the sixty-sixth day after the fire, served proofs of loss on the company, which the company refused to accept. The above facts, being properly in issue, appearing on the trial of an action on the policy, judgment for whom, and why?
28. A traveler, late in the spring, driving towards home in a sleigh, found that he could no longer proceed because of the absence of snow. He thereupon drove into a neighbor's shed, adjoining the road, where the latter stored his wagons for the winter, from whom he borrowed a buggy valued at $100 with which to finish his journey, leaving his sleigh, also valued at $100, in the shed in the place from which he had taken the buggy. While driving home, his horse, through no neglect or want of care on his part, ran away and smashed his neighbor's buggy, rendering it valueless, and that same night a thief entered the neighbor's shed, and, without the neighbor's negligence or fault, stole the traveler's sleigh. Each demands his property of the other and neither can deliver. Both consult you as to their respective rights and liabilities. What would be your advice, and why? State fully your reasons for the advice you give to each.
and thereafter allowed his wagon to continue on storage for six months, at which time he demanded it of B. B. refused to deliver the wagon unless A. paid him twelve doliars for storage, for which sum he claimed a lien on the same.
It is conceded that twelve dollars is a reasonable charge under the circumstances. A. thereupon sues B. for converting the wagon. On the facts stated, judgment for whom, and why?
30. A. offered to sell B. a thoroughbred horse. B. had no knowledge of horses, and. after looking at the animal, agreed to buy it and pay the agreed purchase price in ten days. B. took the horse, but, upon taking it to his stable, learned that it was not a thoroughbred, and besides, was blind in one eye. B. tenders back the horse to A., who refuses to receive it, and at the end of the ten days, B. having declined to pay the purchase price, A. sues B. for the amount thereof. Who wins? Why?
31. X., in New York, orders goods from Y. in London, and sent his own ship for them. Y. shipped the goods, taking the bill of lading deliverable to himself or order, and sent the same unindorsed to X., together with an invoice stating that the goods were shipped on the account and at the risk of X. . Y. also sent an indorsed copy of the bill of lading to his agent in New York. X. demanded the goods from the master of the ship on its arrival at New York, and the master delivered the goods to him. X. has not paid for the goods and Y. comes to New York and asks you whether he can maintain an action in trover for the goods against the master of the ship. What do you conclude? State fully the ground of your conclusion.
32. A. has been indicted for murder and is upon trial for the alleged crime. He is not sworn as a witness in his own behalf, and the case is submitted to the jury by the trial judge, who charges the jury that under the law of the state of New York the defendant was permitted to testify as a witness in his own behalf, and that it is a question for the jury whether or not his neglect to so testify creates a presumption against him. Counsel for the defendant excepts, and appeals from the judgment of conviction entered upon the verdict of the jury. Was the exception well taken or not? Answer fully, with your reasons.
33. A. is arrested for abduction of a girl under the age of consent. He was subjected to the "third degree” by the police having him in custody, who told the prisoner that they could make him no promise of immunity or light punishment, but that they would use their influence in his behalf if he would make disclosures which would be of benefit to the state. Thereupon the prisoner made a full confession inculpating himself. Upon the trial that confession was proved against
29. A. stored in B.'s barn, with the latter's consent, his farm wagon of the value of fifty dollars. A. and B. were farmers and neighbors.
The wagon was to be stored gratuitously by B., and there was no time fixed as to how long the wagon was to remain on storage. At the end of three months B. told A, to take his wagon out of the barn at once, and that if he did not do so he would charge him thereafter two dollars a month storage therefor. A. said nothing,
objection and exception on behalf of the prisoner. The policemen to whom the confession was made testified that they thought the confession was voluntarily made by A. The prisoner was convicted. Upon appeal from the judgment of conviction a reversal is claimed on behalf of the prisoner upon the facts stated. Will the conviction stand? Answer fully, with your reasons.
34. X. was indicted and convicted upon a charge of murder in the second degree and was sentenced to imprisonment for life. Six years thereafter his wife, Y., married another man without obtaining a divorce from X. After X. had been in prison ten years he was pardoned, and married a woman, Z., without securing a divorce from Y. X. is indicted for bigamy. Can he be convicted upon the foregoing facts? If so, why? If not, why not?
35. A., in the presence of a large number of persons in one of the streets of New York City, while the public mind was excited by the fact that there has recently been a large number of cases of kidnapping of children in that city, falsely and maliciously charged B. with being a "Black Hand" kidnapper. The crowd thereupon fell upon B. and beat and kicked him to his serious injury. A. took no part in the attack on B., and was only a bystander during the same. B. consults you as to whether he has a cause of action against A.' to recover damages for the injury to his person. What do you advise him? Why?
36. A. resides in a house built upon a lot which adjoins the factory of the X. and I. Co. A., while walking in his lot, is injured by a piece of iron maliciously thrown from a window of the factory by one of the workmen there employed. A. brings an action against the X. and Y. Co. to recover damages for the injury so sustained by him. On the trial of the action A. proves that for more than a year it had been the practice of the employés of the defendant, maliciously or in a spirit of mischief, to throw similar objects from the windows of the factory upon A.'s lot, with the knowledge of the defendant, but without its consent and in violation of its orders. Can the plaintiff recover against the defendant? If so, upon what grounds? If not, why not? Answer fully.
37. An automobile belonging to B. was left in a street by the chauffeur, after having turned off the power and applied the brake. It was started by the willful act of two small boys, strangers to both A. and B., and thereupon collided with and destroyed A.'s wagon. A. sues B. for damages. B. defends upon the facts stated. What is the judgment of the court, and why?
38. By his last will and testament A. devised certain real estate as follows: "Fourth. I give and devise to my nephews, John, Wil
liam and Robert Stiles (each to take an equal share therein) my lots on Riverside Drive, between 125th and 126th streets, in the city of New York.” Before the death of the testator, his nepiew, John Stiles, one of the devisees named in said clause of said will, died, leaving him surviving a widow, son and daughter. Question arises upon the distribution of the devised estate. How will it be divided? Answer fully, with your reasons.
39. A testator provided in his will for certain legacies and added at the end or the instrument the following: "Il for any reason any legacy or legacies left by my will shall lapse or fail or for any cause not take effect either in whole or in part, I give and bequeath the amount which shall lapse, fail or not take effect absolutely to my executors. In the use of the same I am satisfied that they will follow what they believe to be my wishes. I impose upon them, nowever, no conditions, leaving the same to them personally and absolutely and without limitations or restrictions."
Certain of the legacies specified in the will lapsed before the death of the testator. Upon probate of the will objection is made to the provisions of the will, above stated, that such lapsed legacies should go to the testator's executors on the ground that it created a trust and clearly indicated that the legacy was intended to be made for certain undisclosed and indefinite charitable uses.
What was the ruling of the court? Give your reasons.
40. A testator, who left him surviving a widow and five children, by his will gave his estate, both real and personal, to his executors in trust, to pay the income thereof to his wife during her natural life and at the death of his wife to divide his estate into six equal parts and to pay one share each to four sons and a daughter named in the will, and to pay the income and profits of one share to X., the wife of his son Y., during the minority of the children of X. and Y., to be used by X. for the support, maintenance, and education of said children until the youngest should attain the age of twentyone years, when such share should be divided equally among such grandchildren (children of X. and Y.), share and share alike. The widow died after the death of the testator and is survived by her son X. and all of her grandchildren. A suit is brought for the construction of the provision of the will for the benefit of the children of X. and Y. What is the judgment of the court as to its validity or invalidity? Give your reasons.
41. A. was the owner of a tract of suburban land which he was desirous of selling. B. entered into negotiations with him for its purchase. In the course thereof A. took B. over the premises for inspection and pointed out to him where the south boundary of the land which he proposed to sell would be. There was no fence to mark that boundary ; but the line as pointed out by A. would have placed a valuable stable and some fruit trees wholly on the land which A. was proposing to sell to B. Relying thereon, B. purchased the property, and A. gave him a deed therefor, B. paying a cash consideration of $5,000.
A. had previously sold and deeded to C. fifty acres just south of and adjoining the land sold to B. When the surveys were made, it was ascertained that the barn and the fruit trees were just over the line of B.'s purchase, and on the land purchased by C. A. did not intend to deceive or defraud B., but was mistaken as to where B.'s south line would come.
B. made the purchase for a home, and would not have made it had he not supposed that the barn and fruit trees were included.
'Immediately on discovering the situation, B. advised A. thereof and offered to redeed the premises, and demanded the $5,000 paid, which A. refused.
Can B. obtain any relief, or not? If so, why; if not, why not?
42. A. died, leaving a last will and testament, whereby he appointed B. his executor.
The will directed the executor to first pay the testator's funeral expenses, and then all of the testator's just debts. The will also authorized and empowered the executor to sell his real estate for the purpose of paying his debts, if the testator's personal estate was insufficient.
A. left no personal property, his entire estate consisting of a tenement block.
C. held a note against the estate for $5,000, given by A. five years before his death, and long past due, and upon which A. bad regularly paid the interest up to the time of his death.
C. had duly filed his claim against the estate with the executor, which had been approved by him, and now he, C., wants his money. On demand being made of the executor to sell the real estate, and from the proceeds to pay his note, the executor refused, insisting that C. must wait and receive his pay from time to time from the rents of the block, and that he will not sell the block. Thereupon C. sues the executor on the note and demands judgment and a decree from the court directing the executor to sell the real estate mentioned, and from the proceeds to pay his, C.'s, note. There are no other unpaid debts against the estate and no question as to the legality of C.'s claim is made.
Will C. succeed or not in the action, and get the decree asked for? State your reasons.
cause. Plaintiff's complaint alleged and charged that A. committed adultery with D., who was the wife of C., making her, D., tbe sole corespondent. On the trial D., by appearance and answer, interposed, duly controverted the allegation of A.'s adultery with her. B. succeeded in the action, and it was adjudged and decreed by the court that A. was guilty of committing adultery with D., as in the complaint alleged, and judgment was duly entered accordingly.
C., the husband of D., died the following day, intestate, wholly ignorant of the decree and judgment, leaving both real and personal property.
Question arises whether or not the said decree and judgment affects the rights and interests of D. in and to the estate of her deceased husband, C.
If so, why? If not, why not?
44. A husband acquired $2,000 from his wife by an antenuptial contract. At the time of the marriage the wife was owing to A. $1,000, which had not been paid, and the indebtedness has been so increased since the marriage that she is now legally indebted to A. in the sum of $2,000. The wife has become absolutely insolvent, and A. has sued the husband to recover the $2,000. The husband disputes his liability and defends. How will the action result, and why?
45. A. was the owner of $5,000 of the capital stock of the X. Manufacturing Corporation Company, upon which he had paid in only $2,500. The corporation was largely in debt, and A., believing it to be insolvent, and in contemplation of such insolvency, transferred his stock to B., who was totally irresponsible, for the purpose of escaping liability as a shareholder of the stock not fully paid for. B. at once surrendered the cer. tificate so transferred to him to the corporation, which issued to him a new certificate for the shares. C. was a creditor of the corporation at the time of A.'s transfer to B. in the amount of $1,000 on a debt payable with. in two years from the time it was contracted, for which he has recovered judgment and exhausted his remedy against the corporation, and the judgment being still wholly unpaid, he now seeks to collect from A.
Will he succeed or not? If so, why? If not, why not?
46. The X. corporation has obtained the required consent of the local authorities, which have jurisdiction in that behalf, to construct and operate a street surface railroad on and through Main Street, in the city of Albany. But the railroad law provides that such a road shall not be built or operated unless the consent, in writing. of one-half in value of the owners of the property abutting on the street, shall have been obtained. All the property owners refuse absolutely to give their consent. The
43. A. and B. were husband and wife, respectively. Likewise were C. and D.
B. sued A. for a divorce, for principal
X. corporation asks your advice as to whether or not there is any way of overcoming the difficulty and of its being enabled lawfully to construct and operate the road, and, if so, how?
What do you advise? Answer fully.
47. A., who was a faithful, able, and honorable attorney of X. city, was the local attorney for a casualty company, and had been for five years. The services rendered by him had always been satisfactory to the company, and his charges therefor reasonable.
B., an attorney of the same city, who was a close friend of the president of the company, importuned the president to use his influence to have the company give him its business, instead of A., urging his friendship with the president, and, as a further inducement, that he would charge less for his services than A. was charging, and he would guarantee them to be equally satisfactory.
Do you approve or disapprove B.'s course and efforts in the matter? State your reasons.
ence and hearing of the jury, "I will consent to submit the case to the jury without summing up, if the other side consents."
Do the canons of legal ethics approve or not of the attorney making the proposition in the manner and under the circumstances suggested? If so, why? If not, what is your criticism?
49. The Legislature enacted a statute which was susceptible of two constructions, both equally reasonable, one of which will render the act valid and the other void, because of its unconstitutionality.
Which construction will the court adopt? State your reasons.
50. While a statute was in force which made any person who should be convicted of shooting or otherwise killing deer out of season guilty of a misdemeanor, A. shot and killed a deer in violation of the law. He was duly indicted for the offense, and trial thereon was set down for January 13, 1911; but on the 12th day of January, 1911, the statute was duly repealed.
The district attorney moved the trial on the 13th according to program, and A. was convicted.
Will the conviction stand or not? State your reasons.
48. After the evidence was all closed on the trial of a case, the presiding judge openly inquired of the attorneys for the parties, “How much time do you want to sum up?" when plaintiff's attorney replied, in the pres
FOR THE STATE OF MASSACHUSETTS
stolen from the baggage car on the journey and was never returned to the plaintiff.
What remedy, if any, has he against the railroad company?
4. (a) May the state authorize the killing of a glandered horse, and if so under what power?
(b) Under what power, if any, may the state authorize the taking of land for a public park?
(c) Must compensation be paid in either or both cases?
1. Define the following and give examples : (a) The fellow servant rule. (0) The assumption of risk doctrine. (c) The doctrine of contributory negligence.
2. Day was being tried for the unlawful sale of intoxicating liquor. The government produced as a witness, one King, who testified that he went to Day's shop and bought the liquor described as sold, for the express purpose of prosecuting Day for such sale; that Day had no license to sell intoxicating liquor; that he was employed by the prosecuting officers, and knew, when he requested Day to make the sale, that such sale would be an illegal act. No other evidence was offered. Day requested the court to rule that no conviction could be had without other testimony.
Should such ruling have been made?
3. The plaintiff at Boston purchased a ticket of the Fitchburg Railroad Company to carry him from Boston to Fitchburg. He showed it to the baggage master of said road at Boston and asked him to check as baggage to Fitchburg a package of merchandise which he had with him, and which he also showed to the baggage master. The baggage master punched the ticket and gave the plaintiff a check for the package. The plaintiff entered the train at once and was carried to Fitchburg, but the package was
5. The defendant hired the plaintiff's piano and agreed in writing to pay a certain sum per quarter for the use of it, and "to return it in as good order as when received, customary wear and tear excepted.”
The piano was taken to the defendant's house and kept there in a suitable place. During the first quarter the house was blown over by a cyclone and the piano was injured.
Is the defendant liable for the injury to the piano?
6. Jones was the lessee of a building abutting on a public street. The building was constructed with a wooden awning supported by iron rods extending over the street. Jones desired to move the awning a few inches from its then position and obtained the owner's permission to do so. Jones then engag