§ 948. Bent v. Glaenzer, 569.
§ 1638. Walker v. Pease, 415.
§ 1639. Walker v. Pease, 415.
§ 2348. Craver v. Jermain, 244.
§ 2433, subd. 1. Levy v. Swick
Piano Co., 145.
§ 2577. Matter of Arkenburgh, 543.
§ 3053. Lazarus v. Ludwig, 365.
§ 3064. Risley v. Van Delinder, 661. | ance. Id.

CONTRACT.

--

con-

capriciously determine the question.

Id.

1. Services Waiver of
ditions.-A contract between the gen- 4. Acceptance of order-Estoppel.
eral agent of an insurance company -An owner of a building who, after
and a canvasser provided that broker- agreeing to pay an order in favor of
ages should accrue only as the premi- materialmen when the contract is com-
ums should be paid to the company. pleted, abrogates such contract and
A policy procured by the canvasser enters into a new one with the con-
was delivered to the insured without tractor, cannot set up nonperform-
payment of the premium, and was sub-ance of the first contract as a defense
sequently returned to the manager by to his liability upon his agreement.
him for change to another kind of Robinson v. Gray, 341.
policy, which the manager agreed to
have done. On an examination of the
insured, however, the manager re-
fused to issue a new policy or return
the old one on the ground that he was
growing too fast. Held, that the con-
dition in the contract was waived by
the agreement to exchange the policy,
and by the failure to assert nonpay-
ment as a ground for the subsequent
refusal. Wheatfield v. Beal, 61.

2. Commissions.- Plaintiff was em-
ployed by defendants as a salesman
for one year for a commission of 21⁄2
per cent. on all sales made directly
by him and of 12 per cent. on all
such sales not made by him directly,
but which defendants should consider
to be the result of his original sales.
Toward the close of the year they
wrote him declining to continue the
employment for another year, and
stating, "We shall cheerfully allow
you the commission agreed upon for
last year upon any sales you may make
and which we accept, but prefer not to
make any engagement for any length
of time or to pay beyond commission
for orders which you may send us."
Held, that the original contract was
thereby extended so far as its commis-
sion features were concerned, and
that it was for the jury to determine
whether sales made by defendants to
parties whose custom plaintiff had ob-
tained during the first year ought to
be considered as the result of his
original sales to the parties. Ransom
v. Wheelwright, 141.

5. Performance.-Where there has
been a substantial performance of a
contract, and some item of work has
been accidentally overlooked, a re-
covery may be had for the contract
price less the expense of completing
the portion undone. D'Andre v. Zim-
mermann, 357.

6. Liability of theatrical manager
for baggage of member of troupe.-
Upon the disbandment of defendant's
company the plaintiff failed to tag his
trunk or to see to the delivery thereof
to the expressman, and upon his ar-
rival at the railroad depot failed to
find it. He thereupon started to go to
the baggage car, but was dissuaded by
defendant's contracting agent, who
stated that if he would go to Wash-
ington with the other employees, for
whom a combination ticket had been
procured, defendant would be re-
sponsible for the trunk. Held, that
while defendant was not primarily
liable for the loss of the trunk, the
agreement of the agent was founded
on a good consideration and rendered
it liable. McKay v. Buffalo Bill's
Wild West Co., 396.

7. Services Waiver of con-
ditions.-A contract between the gen
eral agent of an insurance company
and a canvasser provided that broker-
ages should accrue only as the pre-
miums should be paid to the company.
A policy procured by the canvasser
was delivered to the insured without
payment of the premium, and was sub-
3. Reservation of right of de- sequently returned by him to the man-
cision. A provision in a contract of ager for change to another kind of
employment as sales agent giving the policy, which the manager agreed to
employer the right to decide as to have done. On an examination of the
whether sales not made directly by the insured, however, the manager re-
agent were the indirect result of his fused to issue a new policy or return
efforts and making such decision final the original one, stating that insured
and without appeal, does not give the was growing too fast. Held, that
employer the right to arbitrarily or there was no waiver of the condition

of the contract; that the company remote and fanciful sense, may fairly
acted within its powers in accepting | be considered within the charter
the surrender of the original policy | powers. Steinway V. Steinway &
and refusing to reissue it or to issue Sons, 43.

7. Discontinuance of action
brought by. Stockholders of a cor-
1. An act which is lawful in itself poration may vote upon a resolution
and not otherwise prohibited, and to discontinue an action brought in the
which is done for the purpose of serv- name of the corporation, although
ing corporate ends, and is reasonably
tributary to the promotion of those
ends in a substantial, and not in a

8. Election Transfer-book.-
Where the stock-book and seal are
withheld or concealed in order to pre-
vent a transfer of stock in time to per-
mit the new stock to be voted on at
the annual meeting, it is lawful for
the directors to adopt a new seal and
stock-book to accomplish that purpose.
Id.

9. Misconduct of trustees.- Where
it appears that the corporation is
wholly within the grasp of the trustees
and its management is conducted for
their pecuniary profit and advantage
and to the destruction of the interests
of the stockholders, the court will in-
tervene to afford such relief as may be
necessary. Watkins v. Watkins &
Turner Lumber Co., 227.

ac-

15. Foreign-Corporate existence.
Where the laws of the state under
which a foreign corporation was organ-
ized provide for the continuance of its
existence after the expiration of the
term of its charter for the purpose of
collecting debts or claims due to it, its
continued existence for that purpose
must be recognized by the courts of
this state. O'Reilly, Skelly & Fogarty
Co. v. Greene, 302.

16. Certificate.-The procurement of
a certificate pursuant to section 15 of
chapter 687, Laws of 1892, is not a
condition precedent to the maintenance
of an action by a foreign corporation
made without the
upon a contract
state or upon one made previous to the
enactment of the statute. Id.

17. Pleading.- Procurement of the
10. Pleading. An action by a stock-certificate need not be alleged in the
holder for relief against the miscon- complaint in an action by a foreign
duct of the trustees, where an
counting is asked, should cover all
acts of the trustees, whether active or
passive, which come within the pur-
view of the mismanagement. Id.

11. Parties.- Where such an action
is brought by an administrator who is
also a beneficiary of the estate he
represents, it is immaterial that he is
not named individually as a party, as
he will be bound personally by the
judgment. Id.

12. Annual report-Verification.-
Where the person elected as secretary

of a corporation refuses to accept
office or act, but no action thereon is
taken by the trustees, a verification of
the annual report by the president
solely as such officer is insufficient, al-
though at the time he is also perform
ing the duties of secretary. Shultz v.
Chatfield, 264.

13. Same.- Where the verification
is made by one who holds two offices,
it should show that fact. Id.

14. Officers-Salary.-The fact that
an officer of a corporation voted in
favor of a contract giving him a salary
for services does not render such con-
tract void, but only voidable at the in-
stance of the corporation, its directors,
stockholders or creditors. Keans v.
New York & College Point Ferry
Co., 272.

corporation upon a contract made
within the state, but the omission to
procure it is a matter of defense to be
pleaded in the answer. Id.

-

18. Elections Eligibility. One
who holds the legal title to stock, but
has no beneficial interest therein, is
ineligible, under section 20 of the Gen-
eral Corporation Law, to election as a
director. Matter of Elias, 718.

19. Trustees. A trustee who, in
spite of the protests of his cotrustee,
votes upon the estate stock in favor
of himself as director, thereby dis-
franchising such stock, is guilty of a
breach of trust, and will not be per-
mitted to derive personal profit there-
from. Id.

action by a policyholder which alleges
20. Pleading.-A complaint in an
that by the terms of his policy the
association was to form a reserve fund
from its net profits and a percentage
on assessments, to be invested for the
benefit of the members; that on its
reaching a certain amount the in-
terest should be paid as a dividend to
members of five years' standing, and
that on its reaching a specified max-
imum sum all future sums set aside
as reserve on assessments should be
divided between the members; that the
association had not properly built up
the fund; had paid over a large
amount to the death fund, deposited
large sums abroad, made no distribu-

tion of surplus, and was about to
erect a large building, and asking for
enforcement of the contract, suffi-
ciently states a cause of action.
Swan v. Mutual Reserve Fund Life
Ass'n, 722.

21. Parties. In such an action the
officers or directors of the association
are not necessary parties. Id.

22. Demand upon officers to bring
action. Such an action is one to en-
force the performance of a contract
made with the plaintiff by the associa-
tion, and does not require as a con-
dition precedent any demand upon the
officers or directors to bring action, or
that any previous efforts for relief
within the association should have
been made. Id.

23. Laws 1890, chapter 400.- It
is not necessary that such an action
should be brought by the attorney-
general, as chapter 400, Laws of 1890,
does not apply to such a case. Id.

See Abatement and Revivor.
Assignment for Benefit
Creditors.

Attachment.
Service.

be rendered against the plaintiff upon
a counterclaim for a debt due from the
assignor. Avrutin v. Hensel, 160.

2. Moneys paid by mistake.-
Plaintiff's assignor sold a certain
saloon to defendant, who retained
from the purchase price a sum sup-
posed by both to be the amount of a
mortgage on the fixtures, and also
$250 to be applied on the discharge of
arrears of water rents, the balance to
be returned. In fact, the mortgage
was for a much larger sum, which de-
fendant was obliged to pay.
In an
action to recover the overplus of the
moneys retained on account of the
water rents, Held, that defendant
was entitled to counterclaim the excess
of purchase money thus paid by him,
to the extent of plaintiff's demand.
Stern v. Newman, 567.

COUNTY.

1. District attorney's expenses
Claim must be itemized.-A general
statement of traveling and other ex-
of penses in a particular case, in a
district attorney's account of expenses,
is insufficient to authorize the board
of supervisors to audit it; the items
must be given. Matter of Pinney, 24.

Supplementary Proceedings.

COSTS.

2. Meals and traveling expenses
within the county not allowable.-

1. Leave to sue in forma pauperis. Expenditures for meals and traveling

-A motion for leave to sue as a poor
person is addressed to the discretion

expenses incurred within his county
by a district attorney cannot be

of the court, and its determination charged to the county. Id.

will not be interfered with unless there
has been an abuse of such discretion.
Steinberg v. Rosenthal, 53.

2. Plaintiff cannot be required
to join in undertaking.- The court
has no power to require a nonresident
plaintiff to unite with the sureties in
an undertaking for costs. Ellensohn
v. Haselbach, 92.

See Executors and Administra-
tors.
Set-off.

COUNTERCLAIM.

1. Debt of assignor of claim in
suit. In an action breught by an as-
signee, an affirmative judgment cannot

CRIMINAL LAW.

1. Right of accused to trial.— The
state has no right to accuse an indi-
vidual of crime and then hold him and
unreasonably delay his trial. A delay
of over two months is too long. Mat-
ter of Klein, 107.

2. Commitment of female. It is
the duty of magistrates, under section
1466 of the Consolidation Act, to com-
mit females found in houses of prosti-
tution or of assignation or frequenting
the society of prostitutes to a reform-
atory institution of the same religious
faith as such persons or their parents,
if practicable. People ex rel. Plot v.
Poly, 162.