Page:Harvard Law Review Volume 8.djvu/251

RECENT CASES. 235 Real Property — Revocation of License — Estoppel. — The city of Augusta was given power by a special act to remove obstructions from the streets at the expense of the owners. Subsequently, licenses were granted permitting awnings to be erected, and were acted upon. The owners in this action ask to have the City Council restrahied from removing these awnings. Held, that the city could not grant a perpetual right to maintain awnings, and hence the licenses were revocable ; that the city was estopped from revocation until the owner had received a fair return for his outlay, made in reliance on the license. City Ciuncil v. Burntn, 19 S. E. Kep. 820 (Ga.). The court rightly says that the municipal authorities cannot grant away a substan- tial right of the public; but it proceeds to give the authorities such power to a certain de<Trce on the ground of estoppel. These seem inconsistent, and it is hard to reconcile the latter with the need of the public to have the obstructions immediately removed. The difficulties of the case were hidden by the fact that all the owners petitioning were held to have received already a fair return for their outlay, thus defeating the estoppel. The court was influenced also by the Georgia rule, that an executed license is irrevocable. Sale of Goods — Election of Remedies. — Goods were sold and notes of the vendee given for the purchase price, the title to the goods to remain in the vendor until the notes were paid. The notes being unpaid at maturity, the vendor brought an action on them and recovered judgment. Held, he may afterwards retake the goods by replevin. Campbell Printing Press Co. v. Rockaway Pub. Co., 29 Atl. Rep. 681 (N. J.) ; Moline Ploio Co. v. Rodgers, 37 Pac. Rep. in (Kan), contra. It is submitted that the Kansas decision is correct. The vendor cannot treat the transaction as valid and invalid at the same time. By bringing an action for the price he has elected to treat the vendee as owner of the goods. Bailey v. Harvey, 135 Mass. 172. Torts — Conversion — Payment by a Banker to a Fraudulent Indorsee. — The payee of a crossed check specially indorsed it to the plaintiffs and posted it to them. A third party obtained possession of the check during transmission and altered the indorsement, making it payable to himself. This he presented at the defendant's bank in Paris, and asked them to obtain payment from their London correspondent. This they did, and handed the proceeds to him. In an action for conversion by the plaintiffs, held, that the defendants were liable for the amount of the check. Klein- wort, Sons dr» Co. V. Comptoir National d' Escompte de Paris, L. R. [1894] 2 Q. B. 157. Though this decision seems to bear heavily upon the defendants who have been im- posed upon by fraud, yet the holding is clearly right. The action was vigorously contested on the grounds that the plaintiffs had neither possession nor title, and there- fore had no standing in court; also that there had been no conversion by the defend- ants. 01)viously, however, the delivery to the post-office is, in legal contemplation, a delivery to the plaintiffs ; and being thus in receipt of the check with a valid indorse- ment to themselves, they maintain trover against a mere wrongdoer. Then in pre- senting the check to their correspondent bank, and obtaining payment thereon for the fraudulent indorsee, the defendants were clearly guilty of conversion, in that they pre- sented the check in the name of a stranger who had no title in it, and obtained payment for him. Torts — Defamation — Belief of Defendant in Interest or Duty in Person tu whom defamatory Statement is made. — Defendants, who were rate payers of the parish, honestly and reasonably believing that the board of guardians were the proper authorities to whom to apply to secure an investigation, sent to them a letter containing defamatory matter concerning plaintiff, who was guardian of the poor. Held, the honest and reasonable belief that the board of guardians had an interest or duty in the subject-matter of the communication does not make the occa- sion privileged, if as a matter of fact they had no such interest or duty. Hebditch v. Macllwaine et al., L. R. [1894] 2 Q. B. 54. This decision is in accord with the famous definition laid down in Harrison v. Bush, 5 E. & B. 344, (which was not necessary for the decision in that case,) that a communi- cation is privileged if made by a person having an interest or duty in the subject- matter to one " having a corresponding interest or duty." In Waring v. M'Caldin, Ir. Rep. 7 C. L. 282, there is a dictum to the effect that the honest belief that a duty exists in the party to whom the statement is made, constitutes a privileged occasion, but that case is strongly disapproved of in the principal case. Thompson v. Dashwood, il Q. B. D. 43, which has already been discredited (Pollock on Torts, 2d edit., pp. 226, 245), is flatly overruled. In that case defendant wrote a letter containing defamatory matter intending to send it to a person to whom publication would have been privileged, and by mistake put it into the wrong envelope and sent it to another person. The defend- ant was not held liable. The fallacy in that decision is in the court's assuming the 3*