Imagens das páginas

parks, railroads, and other places frequented in numbers by the public. It is as natural a use of such lands as is the use of store fronts and show windows for the display of goods kept for sale, or for other modes of advertising. It resembles the placing of advertising pages on each side of the literary portion of a periodical, or the placing in street cars or railway stations of ad

vertisements disconnected with the business

of transportation. All these at present are usual, common, and profitable uses of property of which everyone sees daily numerous instances. In the opinion of a majority of the court the rules or regulations established by the commission so interfere with the use of property as to amount to a taking of property for public use, and, as no compensation is provided for, the rules are void, because obnoxious to the provisions of our Constitution. Declaration of Rights, art. 10. They are not reasonable within the meaning of Stat. 1903, chap. 158, § 1, p. 121. We do not hold that no valid rules as to signs, posters, or advertisements on land near to public parks or park ways can be made under Stat. 1903, chap. 158, p. 121. Rules intended to prohibit advertisements of indecent or immoral tendencies, or signs dangerous to the physical safety of the public, no doubt would be reasonable within the meaning of the statute, and valid. We think the case of Rochester v. West, 164 N. Y. 510, 53 L. R. A. 548, 79 Am. St. Rep. 659, 58 N. E. 673, was decided, and can rest only on this ground. See Gunning System v. Buffalo, 75 App. Div. 31, 77 N. Y. Supp. 987; People v. Green, 85 App. Div. 400, 83 N. Y. Supp. 460.

Verdict set aside. Judgment to be entered for the defendant.

Hannah A. WADE, Appt.,


Katherine MILLER.

issuing from a chicken house and yard which are maintained in a cleanly manner and cared for so as not injuriously to af fect the health of any normal person in the neighborhood are not a nuisance, although they may make neighboring property uncomfortable as a residence for invalids.

(188 Mass. 6.)

The characteristic noises and NOTE. For a case in this series holding that the noise made by hogs kept for the purpose of slaughter is not such a nuisance as to justify the destruction of a slaughter-house business. see Ballentine v. Webb, 13 L. R. A. 321.

As to right to damages or injunction because of discomfort caused by noises generally, see Gainesville, II. &. W. R. Co. v. Hall, 9 L. R. A. 298; Wylie v. Elwood, 9 L. R. A. 726; Powell v. Bentley & G. Furniture Co. 12 L. R. A. 53, and note; Jones v. Erie & W. Valley R. Co. 17 L. R. A. 758; Austin v. Augusta Terminal R. Co. 47 L. R. A. 755; Chicago G. W. R. Co. v. First M. E. Church, 50 L. R. A. 488; Hill v.

(April 4, 1905.)

APPEAL by plaintiff from a judgment of

the Superior Court for Plymouth County in favor of the defendant in an action brought to enjoin the maintenance of an alleged nuisance. Affirmed.

The facts are stated in the opinion.
Mr. Daniel T. Devoll for appellant.
Mr. C. A. McLellan for appellee.

Braley, J., delivered the opinion of the court:

This is a bill in equity to enjoin the defendant from maintaining an alleged nuisance, that, by reason of its nature and proximity, impaired the rental value of the plaintiff's property. The case was referred to a master, to whose report no exceptions were taken, and upon whose findings of fact a decree was entered in the superior court confirming the report and dismissing the bill, from which the plaintiff appealed to this court.

From the report it appears that the parties own and occupy contiguous estates situated in the principal village of the town of Bridgewater. There were two dwelling houses on the plaintiff's land, one of which she occupied, and rented the other, that was nearest to the homestead of the defendant. who maintained two henhouses, and yard connected therewith, in which a number of hens and not more than two roosters were kept. The plaintiff's claim is that the odor from the houses and yard occasionally became so pungent that, combined with the cackling of hens and crowing of roosters, the house occupied by her tenant was rendered uncomfortable as a place of residence. It is found that the tenant and members of his family-especially his wife, who was nervous invalid—complained that they odors were disturbed and annoyed by the odor and


[ocr errors]

McBurney Oil & Fertilizer Co. 52 L. R. A. 398; Louisville & N. Terminal Co. v. Jacobs, 61 L. R. A. 188; Froelicher v. Oswald Iron Works, 64 L. R. A. 228; and Redd v. Edna Cotton Mills, 67 L. R. A. 983.

For odors or gases as nuisance generally, see Bohan v. Port Jervis Gaslight Co. 9 L. R. A. 711, and note; Susquehanna Fertilizer Co. v. Malone, 9 L. R. A. 737; Robb v. Carnegie Bros. & Co. 14 L. R. A. 329; Fogarty v. Junction City Pressed Brick Co. 18 L. R. A. 756: Boston Fer rule Co. v. Hills, 20 L. R. A. 844; Frost v. Berkeley Phosphate Co. 26 L. R. A. 693; and Swift v. Broyies, 58 L. R. A. 390.

noise thus caused, though the plaintiff herself, living in a house within a distance of 45 feet therefrom, was not disagreeably affected to an appreciable extent.

Where the question of a private nuisance

(188 Mass. 254.)

is raised, the result produced by it upon 1. A covenant by a purchaser of the persons of ordinary health and sensitiveness, rather than upon those afflicted with disease or abnormal physical conditions, is to be taken as the criterion.

business and effects of a corporation, the sale of which is intended to terminate its existence, to indemnify it from and against the contracts and engagements to which the said vendor appears to be now liable, and also all claims and demands on account of the same contracts and engagements, does not Cover a claim by the presidentmanager of the corporation to salary for the time subsequently accruing, where it was founded merely on the fact that he had been elected president, and there was no contract that the services and salary should continue for any specified time.

The defendant had a right to the lawful use and enjoyment of her premises, and tnis would include the keeping of hens in houses, and a yard used for that purpose, which are shown by the report to have been maintained in a cleanly condition, and cared for in such a manner as not to injuriously affect the health of any normal person living in that neighborhood. Although, the odor arising from the henhouses and yard, which at times was accompanied by the characteristic cry made by their occupants, may have been unpleasant, it does not appear by the report to have been physically uncomfortable or unbearable. Indeed, the findings of fact fail to show that the conditions existing on the premises of the defendant were abnormal, or differed substantially from those usually found in the country, where the ordinary incidents arising from keeping barnyard fowls are not considered extraordinary or peculiarly irritating, even to sensitive persons. Rogers v. Elliott, 146 Mass. 349, 353, 4 Am. St. Rep. 316, 15 N. E. 768; Downing v. Elliott, 182 Mass. 28, 29, 64 N. E. 201.

Decree affirmed.

In the lawful use of property, how far an annoyance may be caused to other persons, without becoming a nuisance, becomes a question of degree. For what may amount to a serious injury to health or the enjoy ment of property in one locality, by reason of density of population, or the residential character of the neighborhood affected, or the nature of the specific act, may in another place, and under different surroundings, be deemed proper and unobjectionable. But in any case, if it is sought to prevent by injunction the further continuance of any legitimate business or employment which it is claimed constitutes a nuisance, a real, and not a fanciful, injury to person or property 4. A judgment against a debtor is not must be shown. Davis v. Sawyer, 133 Mass. 289, 290, 291, 43 am. Rep. 519; Com. v. Perry, 139 Mass. 198, 29 N. E. 656; Com. v. Packard, 185 Mass. 64, 66, 69 N. E. 1067.

2. Electing one president of a corporation, and appointing him manager, do not entitle him to a salary for any specified time.

3. To entitle an employee to damages

against his employer for breach of the contract by disposing of all his property so that no more services could be rendered, he must show that he has not been able to earn an equal amount elsewhere.

binding on one who has contracted to save him harmless from the debt, unless he has been notified to come in and defend.

(May 19, 1905.)

69 L. R. A.



Charles F. COBURN.

to rulings of the Superior Court for Suffolk County, made during the trial of an action brought to recover the amount alleged to be due under an indemnity contract. Overruled.

The stockholders of the plaintiff company desired to close up its business and liquidate the company, and authorized a majority of the directors to do so. The majority directors arranged for a transfer of all the assets of the company to defendant, and he executed a contract the material parts of which appear in the opinion.

Mr. Richard D. Ware, for plaintiff: Payment of a judgment by default or consent is sufficient to warrant a recovery under an indemnity contract.

Creamer v. Stephenson, 15 Md. 211; Given v. Driggs, 1 Caines, 450; Train v. Gold, 5 Pick. 380.

The judgment was presumptive evidence NOTE. As to liability of consolidated corporation for dehts of predecessor, see, in this series, Louisville, N. A. & C. R. Co. v. Boney, 3 L. R. A. 435, and note; Chicago & I. Coal R. Co. v. Hall, 23 L. R. A. 231, and note.

of the company's liability, and should have been entered into by the said vendor, or to been admitted. which it is or can be entitled." The purSmith v. Burton, 94 Va. 158, 26 S. E. chaser covenanted with the vendor "that he 412. will at all times hereafter save harmless, and keep indemnified, the said vendor from and against all losses, costs, expenses, and damages which may be incurred by reason of any action which shall or may be brought or instituted against the said purchaser, for, or in respect of, the said machinery, stock in trade, effects, and premises, or for or in respect of the recovery of the several sums of money which by its books appear to be due and owing from the said vendor in respect of the said trade or business; and also from and against the contracts and engagements to which the said vendor appears to be now liable; and also all interest, costs, expenses, losses, claims, and demands on account of the same debts. contracts, and engagements respectively or otherwise in relation to the premises."

It appeared in evidence that at the time of the signing of the contract Knight was president of the company, and had been connected with it about fifteen years as manager and president. On June 4, 1900, the directors of the plaintiff company elected its officers for the ensuing year, and among them Knight, as president and manager. There was evidence also that Knight sold the manufactures of the company, handled the money, paid the men, looked after the factory, and attended to the entire business; and, further, that at the time of the transfer Knight was receiving a salary of $2,000 a year. The plaintiff offered to show that upon November 20, 1900, Knight brought an action against the plaintiff for salary alleged to have accrued to him after the transfer, for the months of August, September, October, and part of November, at the rate of $116.67 per month. The company did not defend the action, and Knight recovered judgment, which judgment was paid by the company. The plaintiff further offered to show that in March, 1901, a further sum was paid by the company to Knight in satisfaction of a claim he made against the company for the balance of the year for which he contended that his contract continued. The judge excluded this evidence of pay.

The use of the word "claims" gives the contract the broadest scope; and an indemnity contract against "claims" embraces any claims, whether valid or otherwise, which may subject the party indemnified to costs, delay, or expense.

Home Ins. Co. v. Watson, 59 N. Y. 390; Niagara Falls Paper Co. v. Lee, 20 App. Div. 217, 47 N. Y. Supp. 1; Wood v. Lind ley, 12 Ind. App. 258, 40 N. E. 283.

Mr. W. C. Cogswell, for defendant: No evidence has been introduced sufficient to establish a contract between Knight and plaintiff for a year's service.

Tatterson v. Suffolk Mfg. Co. 106 Mass. 56; Sears v. Kings County Elev. R. Co. 152 Mass. 151, 9 L. R. A. 117, 25 N. E. 98; Davis v. Ames Mfg. Co. 177 Mass. 54, 58 N. E. 280.

The testimony offered and excluded was strictly res inter alios, and was not admissible against this defendant on the measure of damages.

Haskins v. Warren, 115 Mass. 514; Fowle v. Child, 164 Mass. 210, 49 Am. St. Rep. 451, 41 N. E. 291; Fitchburg R. Co. v. Freeman, 12 Gray, 401, 74 Am. Dec. 600; Parker v. Kenyon, 112 Mass. 264; Cutter v. Gillette, 163 Mass. 95, 39 N. E. 1010; Olds v. MapesReeve Constr. Co. 177 Mass. 41, 58 N. E. 478.

The sale to Coburn did not affect the corporate existence of plaintiff, the tenure of office or duties of its officers, or the powers and right of the company to continue in business. Assuming that the election of Knight as president and manager would warrant a finding of a contract for a year, such contract was personal in its nature, involving powers and duties not capable of assignment or controllable by an assignee.

Boston Ice Co. v. Potter, 123 Mass. 28, 25 Am. Rep. 9; Arkansas Valley Smelting Co. v. Beldin Min. Co. 127 U. S. 379, 32 L. ed. 246, 8 Sup. Ct. Rep. 1308; Robson v. Drummond, 2 Barn. & Ad. 303; British Waggon Co. v. Lea, L. R. 5 Q. B. Div. 149.

Lathrop, J., delivered the opinion of ments, and the plaintiff excepted.

the court:

The contract in question is dated August 4, 1900. In it the plaintiff is called the "vendor," and the defendant the "purchaser." By the terms of the contract the vendor assigned to the purchaser "all of the machinery, stock in trade, fixtures, and effects pertaining to its business, and also all the books and other debts now due and owing to the said vendor, and also all contracts, benefits, and advantages which have

We are of opinion that the ruling was right. The contract before us transferred to the defendant the machinery, stock in trade, fixtures, and book debts. It does not appear that Knight rendered any service to the defendant, or that he was expected to do so. Nothing was due to him from the plaintiff when the transfer was made. The contention of the plaintiff is that the liability of the defendant arises under the last clause of the contract, "and also all interest,

costs, expenses, losses, claims, and demands on account of the same debts, contracts, and engagements." The president of a corporation, as an officer, is not ipso facto entitled to a salary or to a compensation, and, so far as any inference is to be drawn in regard to it, the inference is that the salary was paid to him as manager, and not as president. The plaintiff disposed of all of its property at the date of the contract, and after that, so far as appears, had nothing to manage. There is nothing to show that the plaintiff was not at liberty to sell its property and wind up its business at any time. Electing a man to an office is not ordinarily to make a contract with him for a stated time. There is nothing to show that the corporation agreed with Knight to continue to carry on business through a year, or to retain him under a salary as manager after it ceased to have anything to manage. The evidence did not go far enough.

[blocks in formation]



(...... Ark.......)

The payment of less than is due will discharge the debt when an agreement to that effect is fully executed, and the discharge is evidenced by a written receipt for the lesser sum in full satisfaction of the

greater one.

(Battle and McCulloch, JJ., dissent.)

(May 13, 1905.)

so that it would be liable to him for such breach, the measure of damages would not be the salary promised, but would be the difference between the salary and what he could have earned in some other occupation. See 1 Sedgw. Damages, 8th ed. §§ 206-208; Mayne, Damages, 7th ed. 244, 245. The plaintiff put in no evidence on this point, and there is nothing to show that Knight did not earn more in some other occupation.

Bunge v. Koop, 48 N. Y. 224, 8 Am. Rep. 546; Bliss v. Shwarts, 65 N. Y. 444; Ness v. Minnesota & C. Co. 87 Minn. 413, 92 N. W. 333; Goodwin v. Follett, 25 Vt. 386; Harriman v. Harriman, 12 Gray, 341; Curtiss v. Martin, 20 Ill. 557; Jones v. Ricketts, 7 Md. 108; Murphy v. Kastner, 50 N. J.

The judgment in the action brought by Knight against the plaintiff was not binding on the defendant, in the absence of a notice to come in and defend. No such notice having been given, it stood merely as a payment; and to make it material the plaintiff had to prove that it was rightly made. Until the plaintiff proved that Knight tried to get other employment and entirely failed, there was no proof that either payment made to Knight of his full salary was rightfully made, and payment of such salary without such proof was immaterial as against the defendant, and was rightly excluded. Exceptions overruled.

Eq. 214, 24 Atl. 564; Eve v. Mosely, 2 Strobh. L. 203; Ryan v. Ward, 48 N. Y. 204, 8 Am. Rep. 539; Deland v. Hiett, 27 Cal. 611, 87 Am. Dec. 102; Weber v. Couch, 134 Mass. 26, 45 Am. Rep. 274.

The giving of a receipt in full does not in any way affect the rule.

St. Louis, Ft. S. & W. R. Co. v. Davis, 35 Kan. 464, 11 Pac. 421; Walan v. Kerby, 99 Mass. 1; Brooks v. White, 2 Met. 283, 37 Am. Dec. 95; Riley v. Kershaw, 52 Mo. 224; Murphy v. Kastner, 50 N. J. Eq. 214, 24 Atl. 564; Fuller v. Kemp, 138 N. Y.

defendants from a judgment 231, 20 L. R. A. 785, 33 N. E. 1034; Chica

of the Circuit Court for Lafayette County in plaintiff's favor in an action brought to quash an execution. Affirmed. The facts are stated in the opinion.

go, M. & St. P. R. Co. v. Clark, 35 C. C. A. 120, 92 Fed. 968; Reynolds v. Reynolds, 55 Ark. 374, 18 S. W. 377; Hunter v. Moul, 98 Pa. 13, 42 Am. Rep. 610; Darnall v. More

Messrs. Scott & Head and Searcy & house, 36 How. Pr. 511; Bunge v. Koop, Parks, for appellants: 48 N. Y. 225, 8 Am. Rep. 546.

Where the debt is certain and due, payment of a less sum, is not satisfaction.

Mr. Robert L. Rogers, Attorney General, for appellee.

Hill, Ch. J., delivered the opinion of the court:

In 1896 Dreyfus & Company obtained a judgment against Roberts for $1,621 and interest. In 1900 Dreyfus turned the debt evidenced by this judgment to a collec

NOTE. For other cases in this series as to
accord and satisfaction by part payment of
debt, see McKenzie v. Harrison, 8 L. R. A. 257;
Jaffray v. Davis, 11 L. R. A. 710, and cases in
note thereto; Fuller v. Kemp, 20 L. R. A. 785, | Engbretson v. Seiberling, 64 L. R. A. 75.

and note; Tanner v. Merrill, 31 L. R. A. 171;
Clayton v. Clark, 37 L. R. A. 771; Chicora
Fertilizer Co. v. Dunan, 50 L. R. A. 401;
Harrison V. Henderson, 62 L. R. A. 760;

The receipt in this case was as follows:

tion agency for collection, with authority solved that the payment and acceptance to compromise. The collection agency pro- of parcel before the day in satisfaction of posed to Roberts to accept $200 in cash, if the whole, would be a good satisfaction in at once remitted, in full discharge of the regard of circumstance of time; for peradwhole debt. Roberts was living in Lafay- venture parcel of it before the day would ette county, Arkansas. He was unable to be more beneficial to him than the whole raise the money, and applied to his mother at the day, and the value of the satisfacto assist him. She did not have the money, tion is not material." Pinnel's Case, 5 but had credit, and borrowed $200 from a Coke, 117a. It will be noted that the docgentleman in Texarkana, who drew a check trine that the acceptance of a lesser sum on a bank in Texarkana, Texas. This check, for the whole on or after due is not valid after proper indorsements, was accepted by satisfaction of the whole, was obiter dictum the collection agency in Chicago as a full in this case; but this dictum of this great acquittance of the debt, and it executed a lawyer and jurist established the doctrine receipt in full, and promised to have the at common law that there must be some judgment record satisfied; but, instead of other consideration, however trivial, than this being done, Dreyfus caused execution cash, to make a payment of a lesser sum to issue on the judgment. This action binding as a satisfaction of the whole, notstarted in chancery, and was transferred to withstanding the solemn agreement of the the circuit court as a proceeding to quash parties to that effect. Sir Frederick Polthe execution on the ground that the judg- lock thus states the case: "It is enough to ment had been paid. say that English common law stands committed to the absurd paradox that a debt of £100 may be perfectly well discharged by the creditor's acceptance of a peppercorn at the same time and place at which the £100 are payable, or of 10 shillings at an earlier day or at another place; but that nothing less than a release under seal will make his acceptance of £99 in money at the same time and place a good discharge. although modern decisions have confined this absurdity within the narrowest possible limits." Pollock's Principles of Contract, 1st Am. from 2d Eng. ed. 165. In 1884 the Lord Chancellor, the Earl of Selborne, delivering the opinion of the judges in the House of Lords, said: "It might be, and, indeed, I think it would be, an improvement in our law, if a release or acquittance of the whole debt, on payment of any sum which the creditor might be content to receive by way of accord and satisfaction (though less than the whole), were held to be, generally, binding, though not under seal.” Foakes v. Beer, L. R. 9 App. Cas. 605. Thus it is seen that after three hundred years' experience in England, the highest court of the realm says the law would be improved by not following Lord Coke's dictum in the Pinnel Case. The Pinnel Cuse came to the Colonies, and then the Union, as part and parcel of the common law, and has generally been adhered to. though with growing reluctance and generally with criticism. In view of the expressions of the courts on the subject, it may be safely conjectured that, if presented as an original proposition to the American judiciary, it would find little, if any, support. The editors of a current encyclopæ dia of the law say of the rule in question: "This doctrine has been freely criticized in most of the courts which have had occasion

Dear Sir:

We have your communication with enclosure as stated [which was the $200 check] and you may consider this a receipt and satisfaction in full of the account of S. G. Dreyfus & Co. vs. yourself for $1,621.00. We will immediately have judgment satisfied as per your request.

Very truly yours,

Sprague's Collecting Agency,
per Frank M. Utt,
General Attorney.

In 1602 Lord Coke, speaking for the court of common pleas, said: "Pinnel brought an action of debt on a bond against Cole, of £16 for the payment of £8 10s. the 11th day of November, 1600. The defendant pleaded, that he, at the instance of the plaintiff, before the said day, scil., 1 Octob. Anno 44, Apud W. solvit querenti £5 28. 2d., quas quidem £5 28. 2d., the plaintiff accepted in full satisfaction of the £8 10s. And it was resolved by the whole court, that the payment of a lesser sum on the day in satisfaction of a greater cannot be any satisfaction for the whole, because it appears to the judges that by no possibility, a lesser sum can be a satisfaction to the plaintiff for a greater sum. But the gift of a horse, hawk, or "obe, etc., in satisfic tion is good; for it shall be intended that a horse, hawk, or robe, etc., might be more beneficial to the plaintiff than the money, in respect of some circumstance, or otherwise the plaintiff would not have accepted of it in satisfaction. But when the whole sum is due, by no intendment the acceptance of parcel can be satisfaction to the plaintiff. But in the case at bar it was re

« AnteriorContinuar »