Brokers' custom cannot vary, see "Brokers."
Rule of damages on suit for labor, see "Damages.”
Unsigned memo. terms of sale admissible, see "Evidence."
Damages for breach of labor contract, see "Master and Servant."
Grub stake, what constitutes, see "Mines and Minerals."
Oral agreement to locate mines, see "Mines and Minerals."
Specific performance of, see "Specific Performance."
1. Construction and operation.
The whole of a transaction will be considered in construing
the effect and meaning of a contract relating to a part only.
-Daigle v. Maddocks....
Where defendants contracted to convey a half interest in
a certain mining claim in consideration of plaintiffs sinking
three holes to bedrock on certain lines, the contract did not
require that the entire bottom of each hole should disclose
bedrock, but was complied with if any part of each hole ex-
tended to bedrock.
-Meehan v. Nelson, 137 Fed. 731, 70 C. C. A. 165.
By a written contract defendant agreed, in consideration
of the payment by plaintiff of his necessary expenses in de-
veloping mines in Alaska for the year, and certain payments
and provisions for his wife during the year, to assign and
transfer to plaintiff "an undivided one-half interest in all prop-
erties he possesses in the territory of Alaska." It appeared from
extrinsic evidence that defendant then owned nine mining claims
previously located by him in Alaska, and that it was understood
that the contract did not relate to any claims he might there-
after locate; also that there was an undersanding, aside from
the contract, that defendant should do one half of the assess-
ment work on the claims, while two other persons interested
with plaintiff should do the other half, and the three went to
Alaska together, but each taking his separate provisions. After
doing a small amount of work it was abandoned by all, and
defendant located a number of other claims during the season.
Held, that the contract was one of bargain and sale, and not of
partnership or grub staking, and that it gave plaintiff no interest
in the claims subsequently located by defendant.
-Roberts v. Date, 123 Fed. 238, 59 C. C. A. 242.
2. Option to sell property.
The obligation by which one binds himself to sell, and leaves it
discretionary with the other party to buy, is what is termed in
law an "option," which is simply a contract by which the owner
of property agrees with another person that he shall have the
right to buy the property at a fixed price within a certain time.
-Montgomery v. Waldeck.....
3. Rescission of contract.
A bill filed on behalf of a corporation for the cancellation
of a deed to real estate and to recover the value of personal
property sold and transferred to defendant at the same time,
on the ground that the sale was unauthorized by the corporation,
must show a tender back of the consideration received, or
at least contain an unequivocal offer to restore the same; and
an offer to credit the amount on any judgment recovered against
defendant is wholly insufficient.
-Alaska & Chicago Com. Co. v. Solner, 123 Fed. 855,
59 C. C. A. 662.
4. Unauthorized sale by agent of corporation-Ratification by
acquiescence.
The secretary of an Illinois corporation, having express au-
thority to act for it in the management of its business and to
appoint other agents with like powers, sold to defendant certain
real estate and personal property owned by the corporation in
Alaska, executing conveyances therefor in the name of the
corporation. He received the consideration, which was applied to
the uses of the corporation. He then left Alaska, delegating his
powers by power of attorney to the vice president, who, within a
few days, commenced a suit in equity in the name of the corpo-
ration to recover the real estate and the value of the personal
property, alleging want of authority in the secretary to make the
sale. An amended bill, filed a year later, alleged full knowledge
of the transaction on the part of the corporation, but it was not
shown thereby, nor on the subsequent trial, that the directors had
ever taken any action in disaffirmance of the sale, or authorized
the return of the purchase money. On the contrary, it appeared
affirmatively that they had neither authorized nor ratified the ac-
tion of the vice president in commencing the suit. Held, that
he had no authority to disaffirm the action of the secretary on
behalf of the corporation, and that the directors, by failing to
take any action, must be presumed to have acquiesced in the
sale, and a ratification would be inferred.
-Alaska & Chicago Com. Co. v. Solner, 123 Fed. 855,
59 C. C. A. 662.
5. Contract of affreightment in admiralty.
Plaintiff made an oral contract with defendants to ship his
sawmill and laborers on the steamer Monarch from Eagle to
Fairbanks. When the Monarch reached Eagle she was loaded,
and refused to take them. Defendants telegraphed to the Oil
City, another steamer, and she took them, but was delayed on
the way. Plaintiff paid the Oil City the usual rate for both
freight and passengers and defendants nothing. Held, that the
contract with defendants for the services of the Monarch was
abandoned, and that there was no consideration to support plain-
tiff's claim for damages against defendant caused by the delay
of the Oil City.
CONTRIBUTORY NEGLIGENCE.
Where danger is obvious, see "Negligence."
1. Question for the jury.
It is generally held that contributory negligence is a question
for the jury, and is one that should never be taken from the jury
unless the case is so clear that in case of a verdict against the
defendant it could not be sustained by the court.
-Seittn v. Alaska Treadwell Gold Min. Co......
CORPORATIONS.
Ratification of agency, see "Contract."
Unauthorized acts of agent, see "Contract."
Stockholders cannot restrain payment of license, see "Equity."
1. Corporation laws of Oregon extended to Alaska.
The organic act of 1884 extended the general laws of Oregon
so far as applicable to Alaska. Held, that the laws providing
for the incorporation of domestic corporations were applicable,
and were so extended to Alaska.
-Alaska Gold Min. Co. v. Ebner....
2. Laws of Oregon still in force in Alaska.
The Civil Code of June 6, 1900, tit. 3, c. 36, § 368, provided:
"All acts or parts of acts in conflict with the provisions of this
act are hereby repealed." Held, that the Oregon laws for the
incorporation of domestic corporations in Alaska, not being in
conflict, were not repealed, and remained in force.
-Alaska Gold Min. Co. v. Ebner...
3. Foreign corporations, power of condemnation by.
A corporation organized under the laws of the state of Cali
fornia, coming into Alaska and complying with the laws of
Congress relating to foreign corporations doing business in
Alaska, held to have no power of eminent domain to condemn
private property for the support and right of way for mining
ditches and flumes. The provisions of the Code apply to domestic
corporations only, not to foreign corporations.
-Miocene Ditch Co. v. Lyng....
Civ. Code Alaska (31 Stat. 321–494) c. 22, § 204, authorizes the
condemnation of land, among other things, for the construction
of ditches, flumes, aqueducts, and pipes for public transportation
of water to supply mines, etc. Section 210 provides that the com-
plaint in proceedings to exercise the right of eminent domain
shall contain the name of the "corporation," etc., in charge of the
public use for which the property is sought. Section 225 author-
izes foreign corporations created under the laws of any state or
territory of the United States to do business in Alaska on com-
plying with certain conditions, but there is no provision in the
Code for the incorporation of domestic corporations, except towns
and cemetery associations. Held, that a domesticated foreign
corporation organized under the laws of California was entitled
to exercise the right of eminent domain in Alaska to acquire land
for a public pipe line to supply water for mining.
-Miocene Ditch Co. v. Lyng, 138 Fed. 544, 70 C. C. A.
458.
4. Foreign corporation may sue in Alaska.
It is not necessary that a foreign corporation shall file its
articles, consent to be sued, and statement in Alaska to enable
it to maintain a suit in the courts there. A suit by a bank to
collect a note is not doing business, within the meaning of that
statute.
-First Nat. Bank of Seattle v. Fish....
5. Indictment of corporations.
A corporation may be indicted under the United States statutes
for carrying on business as a wholesale or retail liquor dealer
without paying the license required by section 3244, Rev. St. U.
S. 1878 [U. S. Comp. St. 1901, p. 2096].
-United States v. Ames Mercantile Co......
An indictment was returned against the Yakutat & Southern
Railway Company, a corporation, for unlawful fishing. Service
of bench warrant was ordered and made on an agent appointed
by it, upon whom service of process may be made within the
District of Alaska. Held a sufficient notice to bring the corpo-
ration into court.
-United States v. Yakutat & Southern Ry. Co......628
Admiralty jurisdiction in Alaska, see "Admiralty."
Appellate jurisdiction in Alaska, see "Appeal and Error."
1. Appellate jurisdiction of Circuit Court of Appeals.
The appellate jurisdiction of the Circuit Court of Appeals for
the Ninth Circuit over appeals and writs of error from the Dis-
trict Courts of Alaska is not ruled by Act Cong. April 7, 1874
(18 Stat. pt. 3, p. 27, c. 80), relating to appeals from judgments
and decrees of territorial courts, but by the Alaska Civil Code
(Act June 6, 1900, 31 Stat. 414, c. 51), authorizing such appeals.
-Shields v. Mongollon Exploration Co., 137 Fed. 539, 70
C. C. A. 123.
Under Civ. Code Alaska (Act June 6, 1900, 31 Stat. 414, c. 51)
§ 504, conferring on the Ninth Circuit Court of Appeals the same
jurisdiction to review by writs of error or appeal final judgments
or orders of the District Courts of Alaska, that was given by the
act creating the Circuit Courts of Appeals to review final deci-
sions of District and Circuit Courts, and section 508, declaring
that all provisions of law now in force regulating the procedure
and practice in cases brought by appeal or writ of error to the
Supreme Court of the United States or to the United States Cir-
cuit Court of Appeals for the Ninth Circuit, except in so far as
the same, may be inconsistent with any provisions of the act,
shall regulate the procedure and practice in cases brought to such
courts respectively from the District Courts for the District of
Alaska, the Ninth Circuit Court of Appeals had jurisdiction to
review a decree in an action to recover an interest in a mining
claim tried to the court by writ of error.
-Shields y. Mongollon Exploration Co., 137 Fed. 539, 70
C. C. A. 123.
2. Saving clause in Act June 6, 1900.
The saving clause of Act June 6, 1900 (Civ. Code Alaska, § 368;
31 Stat. 552, c. 786), preserved the right of all plaintiffs who had
commenced actions in the District Court for Alaska to prosecute
such actions to final judgment under the law which was in force
at the time of the passage of the act or under the provisions of
such act, and such right is not lost because at the time the act
took effect an action was pending in the Supreme Court of the
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