Page:Harvard Law Review Volume 12.djvu/159

RECENT CASES. 139 imposes an additional burden on such highways, so as to require the consent of the abutting owners and compensation. Zehren v. Milwaukee Electric Ky. Co., 74 N. W. Rep. 538 (Wis.). The court say, that even conceding that the building of an electric road through city streets would not be an additional servitude, its construction on country highways would be. In Bloomfield dr» Rochester Natural Gas Light Co. v. Calkins, 62 N. Y. 386, the court suggested that a distinction might properly be drawn between laying gas pipes in city streets and laying them in country roads. Whatever may be the validity of the distinction in that case, it seems not to apply in the principal case. Country highways are as much subject to the right of passage as are city streets. On the general question see 12 Harv. Lav^t Rev. 61. Constitutional Lavit — Fourteenth Amendment — State Regulation of Freight Rates. — A Nebraska statute prescribed by schedule such rates to be charged by railroads within the State, that the railroads represented by the appellees would have been forced to operate virtually without profit. Held, that the statute is invalid, depriving the companies of their property without due process of law within the meaning of the Fourteenth Amendment to the Federal Constitution. Smyth v. Ames, Smyth v. Smith, Smyth v. Higginson, 18 Sup. Ct. Rep. 418. See Notes, 12 Harv. Law Rev. 50. Contracts — Assignment of Wages. — A workman employed as a moulder as- signed all the wages he would earn in a year from the company for which he was then working. He left the employ of the company for two months and then returned. Held, that wages earned after his return do not pass by the assignment. O'Keefe v. Allen, 39 Atl. Rep. 752 (R. I.). The decision is based on the ground that there were two contracts of employment, and the assignment could not be effectual as to the second contract, for it would be the assignment of a mere possibility. This line of reasoning would apply to the whole assignment. The assignor was not employed for a year. He was at liberty to leave and was subject to discharge at any time. Under these circumstances the assignment at best would seem to be that of a possibility, but the case illustrates the common law antipathy to transactions of this character. The assignment ought to be effectual in equity, however, on the same principle that an equity attaches to after-acquired prop- erty under an equitable mortgage. If this is true, there is no insuperable objection to giving effect to it at law, as courts of law are now very liberal in protecting and giving effect to equitable assignments. Contracts — Assumption of Mortgage Debt. — Land was mortgaged to the plaintiff to secure a debt of $15,000. The mortgagor afterwards conveyed to the de- fendant, who promised to pay $io,ooo of the mortgage debt, the mortgagor agreeing to hold him harmless as to the rest. The plaintiff sued and recovered the $10,000. Held, that he may still foreclose the mortgage. Knapp v. Connecticut, etc. Co., 85 Fed. Rep. 329 (C. C. A., Eighth Cir.). The reasons given for allowing a stranger to a contract to sue upon it are as many as there are decisions. In no jurisdiction, however, is the stranger considered a party to the contract. Hence there was no merit in the defendant's contention that the plaintiff, by suing, became bound by the mortgagor's promise to the defendant. Har- riman, Contracts, 223. Indeed, it is the better doctrine that the mortgagee's right against the grantee, m this class of cases, does not rest upon this anomalous doctrine of contracts. By assuming the mortgage debt the grantee puts the mortgagor in pos- session of a new asset. The mortgagee, as a creditor of the mortgagor, is entitled to the benefit of this asset, and may reach it by a bill in equity. This additional right is independent of the one which the mortgagee already has against the land, and the latter is not released by the enforcement of the former. Keller v. Ashford, 133 U. S. 610. Contracts — Restraint of Trade. — The defendant sold his business and good- will to the plaintiff, and covenanted not to enjjage in the same business anywhere in the United States for twenty-five years. Held, that the covenant is against public policy and is void. Ltifkin Rule Co. v. Fringeli, 49 N. E. Rep. 1030 (Ohio). This case is contra to the current of modern decisions. It was formerly the law that a covenant in restraint of trade unlimited in space was void; Mitchel v. Reynolds, I P. Wms. 181 ; but changed conditions in business have required a modification of this rule, and it is now the prevailing doctrine that even a covenant unlimited in space may be enforced if it is reasonable, and no wider than is necessary to protect the in- terests of the covenantee. Nordenfelt v. Maxim, etc. Co., [1894] App. Cas. 535; Dia- mond Match Co. v. Roeber, 106 N. Y. 473 ; Cokdale, etc. Co. v. Garst, 18 R. I. 484. The