Court Rulings

APPEAL from an order and judgment of the Superior Court of Santa Clara County confirming and enforcing an arbitrator's award under a collective bargaining agreement. William W. Jacka, Judge. Affirmed.

<p>The present suit is bottomed on several causes of action. An action is alleged under §§ 1 and 2 of the Sherman Act1 and §§ 4 and 16 of the Clayton Act;2 another action is alleged under the Declaratory Judgment Act.3 The controversy centers about a suit for unfair competition brought by Cornell-Dubilier against Sprague in the Massachusetts state court. Each of the parties here moves against the other for summary judgment. The facts are taken from the complaint, the affidavits and depositions.</p> <p>Sprague, a competitor of Cornell-Dubi-lier, was sued in Massachusetts in May, 1941. The following year Cornell-Dubilier sued three of its other competitors. All the parties manufacture electrical condensers. They are the largest in the industry and their combined production represents more than half of the condensers sold in the United States. The device is an indispensable element of radios, telephones, airplanes, trucks, submarines, tanks, direction finders, etc. Practically all condensers manufactured by the parties are sold to the government. Production demands have sharply increased. Personnel has doubled, but there still remains a labor shortage. Executive and key operating personnel are required to give their undivided attention to production schedules.</p> <p>Plaintiff charges that the suits brought by defendant seek to enjoin plaintiff and other competitors of defendant from carrying on their manufacturing operations and to recover heavy damages. These actions, especially the one against plaintiff, require the attention of executives and key production men at a time when their attention is required by war work, with a resultant interference with both production and research, all of which damages the reputation and competitive position of plaintiff. The suit against plaintiff (which is typical of the suits against defendant’s other competitors) is based upon alleged breaches of contract by former employees of defendant, who are now in plaintiff’s employment and

<p>From Multnomah.: William N. G-atens, Judge.</p> <p>Department 1. Statement by Mr. Justice McBride.</p> <p>This is an action brought by F. A. Cassity against Ben H. Wilson, Ada S. Wilson and F. B. Stratton, alleging that defendants entered into a conspiracy to mislead and defraud him concerning certain patents and patent rights controlled by them, which they represented had been transferred to the Twin Manufacturing Company, a corporation. The complaint asserts that defendants falsely represented that if the plaintiff would so invest large profits would be made; that, to induce him to take a commission contract, the services of one J. H. Jefferson were secured to act as a partner with plaintiff, the defendants falsely pretending that said Jefferson would put a like sum into the business; that plaintiff, relying upon the representations thus made, did advance $750 and gave his note for $500, and Jefferson, at the instance of defendants and for the purpose of defrauding plaintiff, gave a check on the United States National Bank for $750 and his note for $500, which check was alleged to be worthless and known to be so by defendants at the time it was given. Plaintiff further avers that defendant Wilson, in pursuance of the conspiracy, agreed to go into partnership with him, and that he went north to Vancouver, B. C., and Seattle, at the behest of Wilson, to secure a location; that said Wilson did not carry out his agreement, and plaintiff was compelled to return to Portland with loss of much money and.time. To this defendants Ada S. Wilson and F. D. Stratton file a general denial; and defendant Ben H. Wilson, in a further and separate answer, alleges that the Twin Manufacturing Company is a corporation, that the contract was made with the corporation, that the money was paid to the corporation, and the officers of the corporation signed and put the seal of the corporation thereon. The case was triecl before the court without a jury, and, from findings and judgment in

<p>Appeal from judgment of the special term construing the will of Gardiner H. Wolcott.</p> <p>The following is the opinion of the special term :</p> <p>Van Voest, J.— The last will and testament of Gardiner H. Wolcott is presented for construction. The provisions thereof, concerning which questions have arisen, may be shortly stated.</p> <p>Deducting from his property certain legacies and specific gifts, the testator provides that one-half the.legal interest from his estate, which he directed should be converted into bonds and mortgages, should be paid' to his father during life, and that the other half of the interest should be paid to Mrs. Charlotte Varían during her life-</p> <p>On the death of his father, the testator directed that his share of the interest should be- divided between his brother Frederick and his sisters Elizabeth and Alice, share and share alike, for life. And that upon the death of Mrs. Varían her share of the income should, in like- maimer, be divided between the same, brother and sisters for life*»</p> <p>The will then provides that “at the death of the above named parties — my father, Mrs;. Charlotte Varían, my brother Frederick and sisters Elizabeth and Alice — I wish the entire estate, held in trust by my hereinafter named trustees and executors, to be paid to my dear nephew, Huntington Wolcott Merchant, if of age; if at such time he should be a-minor, the property will be held in trust for him until he arrives at his majority.”</p> <p>Taken as a whole, this disposition made by the testator of his estate transgresses the statutes against perpetuities, as it suspends the power of alienation beyond two lives in being at the testator’s death.</p> <p>But I apprehend that the invalid portion may be dropped, and that the residue may, without violence, be allowed to stand. I am persuaded that the several bequests of income are independent. The trust in favor of the father of the testator and Mrs. Yarian is one; that in favor of the brother and

<p>Error to the Court of Common Pleas,- No. 2, of Allegheny county: Of October and November Term 1879, No. 219.</p> <p>Assumpsit by Joseph Frankish, trading as John McKillop & Co., against the Penn Bank. The facts were these:</p> <p>On the 29th of December 1875, Thomas Gray opened an account with the defendant bank, depositing then, and from time to time subsequently, money and checks on city banks. He also frequently left, for collection on his account, drafts drawn by John McKillop & Co., upon persons in Pittsburgh and the towns in its vicinity. Gray also drew checks from day to day, which were cashed and charged in his account. On the 10th of January 1876, he presented his cheek for $2300 at the bank’s counter, and obtained $100 in money and $2200 in a cashier’s check to his own order.</p> <p>His own check of $2300 was charged to him just as all other paid checks were. On the morning of the 12th of January a stranger came in and asked the cashier whether Thomas Gray had any, and how much, money in the bank. The cashier, Mr. Riddle, asked him by what right he made this inquiry, and was thereupon told that his questioner was Joseph Frankish and was also John McKillop & Co., of Philadelphia; that Gray was superintendent at Pittsburgh, and made collections for the firm there; that he had refused to remit or pay over the amounts collected, and was in default to a large amount. These representations induced Mr. Riddle to furnish a transcript of Gray’s account to Mr. Frankish, together with duplicates of Gray’s deposit-slips. Mr. Frankish inquired about the $2300 item, and having learned that part of it was represented by an outstanding cashier’s check, sat down and wrote and copied, and immediately served on Mr. Riddle this “notice:”</p> <p>• “ If the certificate were presented or simply endorsed to or by the following-named parties, viz.: Thomas Gray, J. W. Murray, W. H. Howells, I will take it as a favor to hold, for a short time, until my attorney, T. S. Parker, 158

<p>This was a bill in equity [by Joshua S. Severance against the Continental Insurance Company] to reform a policy of insurance, and for general relief. The complainant having purchased, on February 25, 1865, of Pollard & Doane, a quantity of tobacco, but not wishing to use it immediately, made arrangements to store it with them, and took from them a warehouse receipt in the ordinary form, setting forth that it was stored at their warehouse, Nos. 189 and 191 South Water street, Chicago. Wishing to -obtain insurance upon this tobacco so stored, Severance took the receipt of Pollard & Doane to the insurance agency of Messrs B. W. Phillips & Co„ of Chicago, who at that time were agents for the Continental Insurance Company, the present defendant, having other companies represented by them, who issued their policy in due form upon the tobacco, B. W. Phillips & Co., as agents of the Continental Insurance Company, giving the plaintiff the following certificate: “This is to certify that the Continental Insurance Company has insured against loss by fire, under open policy 100, by indorsement thereon on this date, in the sum of $1,800, fifty caddies of tobacco and fifty boxes of plug tobacco, in 189 and 191 South Water street.” This policy was extended after the expiration of its first term for a further term of three months, and during the second term of insurance, the same description being given in both certificates, the buildings Nos. 183, 185 and 187 South Water street were destroyed by fire. It appears from the evidence that Pollard & Doane occupied the entire portion of 189 and 191, as a wholesale grocery store, and also a portion of 185 and 187 above the first floors, and that in point of fact, the tobacco in question was never in the buildings 189 and 191, but was. from the time of the sale thereof to Severance; up to the time of its destruction by fire, stored in the upper room of 1S7 South Water street. The insurance company refused to pay the loss, on the ground

<p>Appeal from Cherokee. Tried below before tlie Hon. Samuel L. Earle.</p> <p>The appellant and one Henry Mitchell were jointly indicted at the Fall term (1868) of the District Court of Cherokee County, for the murder of W. E. Hartless, the husband of the appellant. The death was charged to have been inflicted with a stick and a pocket-knife.</p> <p>At the same term the accused appeared,' pleaded not guilty and obtained a severance. The trial of the appellant ensued, and. she was convicted of murder in the second degree, and her punishment assessed by the jury at ten years’ confinement in the penitentiary, with hard labor. A new trial being refused, the defendant appealed.</p> <p>The first error assigned was the admission of “ testimony as to the habits, disposition and character of the defendant, as pointed out in her bill of exceptions.” It was in proof that the deceased and the appellant .had been married about fourteen years, and had lived amicably together until some two years previous to the homicide; at which time the deceased “put up a still, and commenced making whisky and brandy.” The witness for the State, being under his examination in chief, proceeded to state: “ Deceased then took to drinking, and the fussing began. I have frequently heard the accused hallooing and screaming as if in distress, since the still was put up; and it became such a common thing to hear her, that it was regarded as a nuisance to the neighborhood. We could tell whenever deceased had made a ‘ run ’ of the still, by the hallooing of the accused. I don’t know what made accused make this noise; don’t know which was to blame for it, she or deceased. Know that deceased was frequently drunk, and accused may have been too. I have seen accused drink whisky, but never saw her intoxicated.”</p> <p>By the defendant’s bill.of exceptions, it appears that this testimony went to the jury over her objection, and before she had put her character, habits or disposition in issue.</p> <p>The second

<p>ExceptioNS from the Court of Common Pleas, Perham J. presiding.</p> <p>The action was assumpsit, brought in the name of George W. Darling, and Joshua Wilkinson, as surviving members of a fish committee, consisting of three, chosen by the town of Sullivan in pursuance of the statute of February 28, 1833, entitled, “An act to prevent the destruction of fish in the town of Sullivan,” for money jointly expended, against the defendants as owners of the mill referred to in the statute. Wilkinson appeared by his counsel, and filed a motion, in which lie set forth that he had no claim against the defendants, having been employed and paid by the town of Sullivan, that the suit was commenced without his knowledge, and moved that the action be discontinued. The counsel for the defendants insisted that the action for that cause ought not to he suffered to proceed further, and that the Court ought to order a nonsuit. The counsel for the plaintiff offered to indemnify Wilkinson against any costs in consequence of that action, and opposed the motion to dismiss the action. The Court overruled the motion,- and permitted the action to stand for trial. The jury found for the plaintiffs, and the defendants filed exceptions.</p> <p>The powers given by statute to a fish committee, like this, can be exercised only by a majority. Stephenson v. Gooch, 7 Greenl. 152. If a majority acted in incurring the expenses, they did not in commending the action. One of the two disclaims the suit, and it ought to have been dismissed.</p> <p>The action should have been brought by Darling alone. The payment to Wilkinson operated as a severance of the cause of action, as did also the death of the other member of the committee.</p> <p>The fifth section of the act, referred to in the report, authorizes the committee, as such, to recover the money expended, in an action of assumpsit. The action must be brought, by the terms of the act, by the committee in their official character. All acted in incurring th