tected. The court recognize that the law is settled otherwise in many of the States. Lincoln v. Quynn, 11 Atl. Rep. 848; 18 Md. L.J. 117 (Md.).
Sale.—Goods Ordered to be Manufactured—Damages.—Defendant ordered lumber of plaintiff to be manufactured in specified sizes for a particular purpose, and to be delivered at a distance. The defendant was to inspect the manufactured lumber before it left the mill. After the lumber had been prepared by the plaintiff according to the contract, the defendant absolutely refused to inspect, receive, or pay for the same. The value of the lumber depended almost wholly on the work and skill of the plaintiff. Held, in an action on the contract, that the measure of damages should be the contract price, less the cost of delivery. “The vendor will, of course, in such case hold the property for the vendee.” Black River Lumber Co. v. Warner, 6 S.W. Rep. 210 (Mo.).
The theory of this case is obscure. The court practically enforces specific performance of a contract which would not be enforced in equity. The title to the manufactured goods is said to pass to the vendee, who is required to pay the full contract price. It is not disclosed when the title passes, but it would seem that, if the doctrine of the court is accepted, the title should pass, as in trover, when judgment is obtained and damages are paid. In New York, however, the title is held to pass upon tender of the goods by the seller, if he chooses that it shall then pass. Mason v. Decker, 72 N.Y. 595; Des Arts v. Leggett, 16 N.Y. 582. The true rule appears to be that the title, in such cases as this, remains in the vendor until appropriation with the consent of both parties; and that the vendor may recover for the defendant’s breach of contract the difference between the market price and the contract price, unless the vendee is fixed by the contract with the risk, when a different rule might prevail.
The court apparently limit their rule to cases where the goods have been manufactured especially for the vendee; but in some States there is no such limitation. In New York the vendor not only has the usual remedy on the contract, but may, after a tender to the vendee, either sell as his agent, and then recover the balance due on the contract, or sue at once for the whole contract price. See Whitney v. Boardman, 118 Mass. 242, 248, where it is laid down that the plaintiff may recover the expenses of a sale at auction if he notifies the defendant of intention to sell,—that is, he recovers the difference between the contract price and the net proceeds of the sale.
Statute of Limitations—Acknowledgement by Bankrupt.—The defendant was the assignee of one S. As such he rejected a claim of the plaintiff filed against the estate, founded upon a promissory note which was barred by the Statute of Limitations. After the filing of the claim, S gave the plaintiff a written promise to pay it. The Iowa statute provides that the cause of action is “revived by a new promise to pay the same.” Held, the plaintiff may recover. Hellman v. Kiene, 35 N.W. Rep. 516 (Iowa). Compare Appeal of Kauffman, 9 Central Rep. 737 (Pa.).
Subrogation—Voluntary Payment of Another’s Debt.—A child died and was buried by an undertaker. Her uncle voluntarily paid the charges of the undertaker without taking an assignment of the claim, or anything to show that it was not intended as an absolute discharge. He now asks to be subrogated to the undertaker’s rights against the estate of the deceased. Held, that a volunteer can never claim the benefit of the law of subrogation. Fay v. Fay, 11 Atl. Rep. 122 (N.J.).
Trusts—Charging Trust Estate.—The plaintiff was engaged as an attorney by the predecessor of the defendant trustees upon legal business connected with the trust estate. His fee not having been paid, he seeks to charge the estate in the defendants’ hands. The petition is bad on demurrer. The plaintiff has but a personal claim upon the trustees, the defendants’ predecessor; but if he could show that he was insolvent and that the estate had received the fruits of the plaintiff’s labor, and that the assets in the defendants’ hands were enhanced to that extent, a court of equity might assist him. Kittredge v. Miller, 19 Weekly Law Bulletin, 119 (Sup'r Ct. Cincinnati).
Will, Nuncupative—Witness Ignorant of Language.—Under a statute requiring a nuncupative will to be executed in the presence of three witnesses. The will was written down in French at the time it was made. As the testator uttered each part in French, it was translated to one witness, who could not understand the language. It did not appear that the testator could understand English. Held, the will was invalid. The witness might as well have been deaf. Succession of D’Auterive, 3 So. Rep. 341 (La.).
