Putnam's Handy Law Book for the Layman Part 8

The remedy in such a case is an injunction. It may be temporary or permanent. Quite often when one applies for an injunction, if the injury threatened is immediate, the court will immediately enjoin the party from proceeding and fix a time for a future hearing to decide whether the injunction shall be dissolved or made permanent. The time fixed for such a hearing is within the discretion of the court, and depends on the nature of the case. Usually the time is quite short, enough to enable the parties to collect the evidence relating to the controversy. The hearing is conducted very much like any other trial, witnesses appear, all the evidence is given, and is reviewed by contending counsel, after which the judge announces his decision. Some of the more noteworthy injunctions of recent days have been rendered against labor unions or their members who, having struck for higher wages, or other ends, have sought to picket the works of their employers and thus prevent them from employing other workers to take the places of the strikers. The unions contend that this is an improper use of the judicial power, whether it is or not no one will deny that it has been long exercised.

In the early days of administering the patent law injunctions were granted against infringers. Judges soon grew more cautious when they learned that patents were sometimes erroneously granted, and that, on acquiring a fuller knowledge of the controversy, there had been no infringement. The modern practice therefore is, unless the proof is very clear, to require a party who applies for an injunction to try his case first and establish his patent and then, if it has been infringed, an injunction will be issued.

=Factor.=--A factor receives and sells goods for a commission, is usually entrusted with their possession, and sells them in his own name. He has a special interest or property in them, and a lien thereon for advances in money that he may make to the owners. No formal mode of authorizing him to act is required, usually this is done by word only, and his authorized acts may be ratified by his princ.i.p.al. This authority is largely the outgrowth of usage. The authority of a factor to fix the terms of selling may be by agreement or by usage, like any other agent. Limitations fixed by the princ.i.p.al are ordinarily binding on the factor, and, so far as they are chargeable with notice of them, third persons also. Where goods are confided to a factor without instructions, authority to exercise a fair and reasonable discretion is implied. Unless restricted by his princ.i.p.al, or by contrary usage, he may sell goods on a reasonable term of credit. If he is restricted to cash sales only, or is not protected by usage in selling on credit, he cannot do so. Secret instructions would not affect the rights of a purchaser ignorant of them and relying on customary authority.

A factor is employed to sell goods, and not to barter or exchange them, and if he should do this his princ.i.p.al could recover them. He may insure the goods, but is not required to do so unless instructed or is required by usage, which plays a large part in this matter and must be observed except as qualified by instructions.

He cannot compound or compromise a claim for the purchase price, or discharge the debt on payment of a part only, or submit a disputed claim for arbitration, or rescind a sale, or discharge a purchaser from any part of his obligation, or extend the time of payment, or make, accept or indorse negotiable paper contrary to instructions or usage, or sell the goods thus entrusted to him for sale to himself.

See _Agency_.

=Fire Insurance.=--Insurance against loss by fire is now effected in companies organized for that purpose. Two kinds exist, stock and mutual. In mutual companies the persons insured act together to insure each other. The members of some of the largest mutual companies are manufacturing corporations. The more general mode of conducting them is to require each member to pay a premium in advance for the amount insured which, unless unusual losses occur, will be enough to pay all the losses for the year. If it is not all needed, the balance is returned to the parties who paid the premiums, or is credited to them for the following year. If the losses exceed the premiums thus paid in advance, then an a.s.sessment is made on each member to cover the deficiency. Generally the premium paid is more than enough to cover the losses, and a balance is returned or credited to the insured as above mentioned. As mutual companies do not take such risks as stock companies, the cost of insurance is less and therefore is carried in preference to insurance in stock companies, whenever it can be obtained.

There is another way for paying for losses in mutual companies.

Instead of paying cash premiums in advance, the insured gives a bond or note well secured that he will pay in cash whenever a call is made on him to cover the losses that have been incurred at the end of the year or other period. This method is in vogue in some sections, because still less money is required to keep property insured. Of course besides the money to pay losses another sum is required to pay the expense of management. It will be seen that the mutual plan is purely for protection against loss and no profit in the way of dividends is forthcoming, for the companies have no capital. It is true that some companies, instead of returning the unexpended premiums for losses retain them or a part of them and by so doing acc.u.mulate a surplus. Many companies, however, return all the contributions not expended for management or losses and have no surplus, or only a very small one.

Stock insurance companies proceed on a different principle. They are organized to make money, a capital is subscribed, the rates of insurance or premiums are fixed and after paying the expense of management and loss, the balance is paid to the stockholders in the way of dividends. The business is one of unusual hazard, and only a rich person, who can afford to lose his money, ought to invest in the stock of such companies. Their profits and losses vary greatly from year to year; and failures have been frequent. Nevertheless some companies have a fine record, enough to tempt them to continue notwithstanding their trying reverses.

As the contract of insurance is for an indemnity, the insured must have some interest in the property insured, otherwise the contract is a mere wager, which the law condemns. Moreover the interest must continue and exist at the time of the loss. Who, therefore, has an insurable interest? A bailee, a carrier of goods, a consignee who has authority to sell them, a factor, pledgee, warehouseman, an a.s.signee for the benefit of creditors, an executor or administrator, an attachment creditor, but not a general creditor, a landlord, tenant, mortgagee of real or personal property, a lienor, for example, the holder of a mechanic's lien, a receiver, residuary legatee or devisee, a trustee, vendees and vendors of real and personal property, the owner of stock in a corporation, any agent who has the care and management of his princ.i.p.al's property, besides many others. But a fire insurance policy may be a.s.signed as collateral security with the company's consent, and continue valid though the a.s.signee has no interest in the property. This rule therefore is fundamental, and if the interest of the insured in the property has been extinguished after making his contract and prior to its loss by fire, he can get nothing from the company. Likewise the property must have been in existence at the time of making the contract, if it was not, the policy is void. Many stories are told of insuring s.h.i.+ps after learning of their loss; such conduct is a palpable fraud.

An insurance policy is a contract, of which the policy is evidence. A standard policy has been prescribed in several states by statute: in other states the parties are still free to make such terms as they please. It is usual for companies to execute blank policies in due form to be filled out and delivered by their agents. Such policies are not valid until countersigned, unless the countersigning is waived.

When does the policy become valid or binding on the insured? Says a competent authority: "Where a policy has been duly executed in compliance with an application on the part of the insured, so that the minds of the parties have fully met as to the terms and conditions of the contract, a manual delivery of the policy to the insured is not essential to render it binding on the company. If the contract has become binding by the issuance of the policy and the placing it in the hands of an agent for delivery, then the fact that such delivery is not actually made to the insured until after the loss has occurred, will not defeat recovery by the insured."

The premium usually must be paid at the time of issuing the policy, unless a different agreement is made concerning it. Credit may be given, and an agent generally has authority to do this. A valid payment may also be made in other means than money; a check or note may be given for it.

An insurance policy may be a.s.signed, though it usually contains a clause that the consent of the insurer is needful. When the policy contains this clause and the insurer without valid reason refuses to consent to an a.s.signment, "the a.s.signee acquires the same right as though consent had been given."

Consent to an a.s.signment may be given by the president of the company, without formal vote by the directors. It may also be given by the secretary or by any other agent duly authorized.

When can a policy be canceled? Unless this right is reserved in the contract, or given by statute, the insurer cannot cancel the contract without the consent of the insured. It often is reserved, and if exercised, this must be done before a loss occurs, and a cancellation made afterwards, though without knowledge of it, is void. The motive for making it is not important. If, as a condition of cancellation, the unearned portion of the premium is to be returned, the failure to return it renders the cancellation worthless. Nor is this effective until notice has been given to the insured.

A court of equity will reform a contract of insurance on the ground of accident, fraud, and mistake. Oral evidence is admissible to prove the fraud or mistake; it must, however, be clear before a court will grant relief. If mistake is the ground for asking relief, the insured must not have been guilty in causing it, and must act promptly after his discovery. This rule does not prevent him from seeking relief when the agent of the insurer has been negligent. Furthermore it may be granted even after the happening of a loss.

Should there be a conflict between the written and printed portions of a policy, the written portion will be presumed to represent the intent of the parties. If, therefore, the printed portion excludes certain articles from the risk, and the written portion covers them, they are included. Conditions also written or printed on the margin or back of the policy are regarded as portions of it, and these too will control the printed portions. Besides, the written application is usually considered a part of the contract and the policy is construed or interpreted in connection with it. This is especially so where the proposals and conditions are attached to the policy. If the intent of the policy is not clear from the language used, the surrounding circ.u.mstances may be shown for the purpose of ascertaining the intent of the parties. The known usage of trade may also be taken into account in construing the language of a policy.

The language of the policy should be so construed as to cover the property within the intention of the parties, and support, if possible, the contract of indemnity. Mere clerical errors or mistakes in describing it may be corrected even after it has been destroyed.

The location is an essential element, and the policy will not be stretched to cover property not within the description. If a building is described this does not include separate structures used in connection with it, nor fixtures const.i.tuting no part of the structure. Unless expressly excepted, however, insurance covers those things which have been so annexed as to become a part of the realty but none others. The term store fixtures covers fittings, fixtures, furniture used in the course of trade, whether they are part of the realty or not. Likewise the term "stock" used in a mercantile business includes everything usually kept for sale, in that business, but nothing more; while household furniture includes all articles necessary and convenient for housekeeping. With respect to future additions these are covered by the policy unless it is so drawn as to show a clear intent to exclude them.

The risk usually begins with the date of the policy, unless it is effected by a preliminary contract. In such a case the risk begins from the date of the preliminary contract, and continues for the period fixed in the policy, or, if none has been fixed, for a reasonable time.

A misrepresentation voids a policy generally. It must not only be false in fact, but the insured must have known that it was false when making it in a substantial and material respect. The misstatement of an agent of the insured will have the same effect. Indeed, any fraud of the insured in procuring the policy has the effect of voiding it if the insurer chooses to do so. Of course, the wrongful facts or acts of the insured possess a varied character. His conduct in concealing facts that ought to have been made known to the insurer may have that effect. Thus to conceal a fact of which the insured had knowledge, and which, if known by the insurer the risk probably would not have been taken, is a fraud rightly available to the insurer.

The parties to an insurance contract may agree that the questions put by the insurer and the answers given by the insured shall become a warranty. This, as experience has shown, is a simpler way of effecting a policy of insurance. When this is done a misrepresentation const.i.tutes a breach of warranty and the contract becomes void.

The modern policy provides that it shall be void if the insured "now has or shall hereafter make or procure any other contract of insurance, whether valid or not, on property covered in whole or in part by this policy." If the insured effects other insurance he must not forget to obtain consent of the insurer, and should he forget his good intention will not preserve his policy. Nor can the insured protect himself by canceling the prior policy if he breaks the condition. Nor does its expiration revive the subsequent policy. An overstatement of existing insurance under an express warranty will also violate the policy. While forgetfulness or good intention will not save the insured in such cases, insurance obtained by a third person without the knowledge of the insured on the same property will not endanger his rights under his policy.

If a fire occurs and a loss results, this may be total or partial. In every case of loss fire must be the proximate cause of the loss. What loss is covered by a policy has been the subject of frequent controversy. Damage by water used to extinguish a fire is usually covered; also damage to or loss of goods removed to prevent their destruction from fire in the insured or another building. Likewise the loss caused by blowing up a building to check a fire, likewise damage from an explosion which is the direct result of a fire, "but an explosion due to the ignition of a match or spark of an explosive substance, no fire resulting, is not within the terms of an ordinary fire policy." The standard policies contain a clause relieving the insured from liability to pay for property stolen during the progress of a fire, or during the removal of property necessitated by fire.

An exception of liability from lightning, unless followed by fire, excludes recovery unless there is loss from burning, but it is quite common to insure against loss from lightning as well as fire.

Unless there is a stipulation in the policy the insurer is not relieved from liability by mere negligence or carelessness of the insured or his servants though directly contributing to the loss; on the other hand, the insured who does not take reasonable care to avoid loss from his negligence or that of his servants may defeat recovery under his policy. This rule is not easy of application, cases of clearly proved negligence are numerous, also cases free from negligence, a third cla.s.s of a doubtful nature. The field of the law is open in every direction to these.

For a total loss the insurer is liable for the entire value of the property to the limit covered by the insurance. Thus the loss of a building is total though some of the walls remain standing, but not when the remnant can be restored. In some states the statutes provide that in case of total loss the insurer shall be liable for the full amount of insurance, and shall not be allowed to show that the property was of less value than the amount insured.

When the loss is partial the insurer is liable only for the amount of the loss, not exceeding the insurance. The policy may limit the amount of recovery to the cost of restoring or replacing the property, and in such cases this is often done instead of paying the loss in money. If each of several cla.s.ses or items is separately valued, thereby separating the liability for them, the recovery for any one cla.s.s or item is limited to the damage to the same.

Lastly, in fixing the loss the distinction between open and valued policies must be explained. A fire policy is generally written in such a way that the liability of the insurer depends on the amount of the loss to be determined after the loss has occurred. When this is done, the valuation of the property in the application for a policy or in the policy, does not fix the liability of the insurer, even though the loss be total. This is called an open policy. On the other hand the loss may be fixed by a stipulation in the policy, and which binds the insurer to pay the whole sum insured in case of total loss. This is called a valued policy. A policy is regarded as an open one, unless it appears to have been the intention of the parties on a fair and reasonable construction of its terms, to value the loss and so fix by contract the amount that may be recovered.

=Fixtures.=--A fixture is something annexed to land either temporarily or permanently. Different rules apply to persons in different relations. The law favors removal by a tenant presuming that he does not put in things for the landlord's benefit, unless there is an agreement to that effect between them. On the other hand a different rule applies between the seller and purchaser of real estate. As between them the law presumes that the seller intended to keep the things affixed to the house, especially ranges and the like. On the other hand a somewhat different rule applies between mortgagor and mortgagee. The former is favored, but not so much as the tenant.

Suppose the mortgagor was a nurseryman, and the land was taken for the debt by the mortgagee, would it include the trees and shrubs that had been planted for sale? The courts have given an affirmative answer.

The facts that are of special value in finding out whether a thing is a fixture or not are: (1) the actual annexation of the article to the realty; (2) the immediate object or purpose of the annexation; (3) the adaptability for permanent or mere temporary use; (4) and whether the article can be removed without material injury to the property to which it is annexed. See _Lease_.

=Garage Keeper.=--The garage has been said to be the modern subst.i.tute for the ancient livery stable. A garage man who receives the automobile of another to keep or repair--a service for which the owner is to pay a compensation--is a bailee for hire. While this relation of bailor and bailee exists, the owner is not ordinarily responsible for the negligence of the garageman or his servants in the care or operation of the automobile.

A public garage is not a nuisance. Even the storage of gasoline in suitable tanks set down in the earth is not a nuisance. Yet the business may become a nuisance when conducted in some localities, or in an improper manner. The operation of a public garage may therefore be enjoined in a purely residential section within a short distance of large churches, a parochial school and houses. Likewise the odors, the noise, and the fire hazard, which are occasioned by the construction and management of a garage, create a situation which justifies public regulation.

A garage keeper is generally allowed a lien on an automobile for storage and repairs. If no price has been fixed in advance, the garage keeper is ent.i.tled to recover of the owner the reasonable value of the services and materials furnished. When the automobile is brought to the garage by a chauffeur, the garage keeper should a.s.sure himself of the chauffeur's authority to order repairs, especially those of a permanent nature.

The garage keeper when storing a car for another for compensation must exercise reasonable care and prudence. If negligent he is liable for the damage. It is said that the liability of a garage keeper for hire is not affected by reason of the knowledge of the owner as to the place where the property is kept. Its acceptance by the garageman imposes on him the duty of exercising due care for its safety and protection. But he is not an insurer of the property; and therefore is not liable for loss by fire unless he has been negligent. Generally, in such a case the burden of proof is on the owner of the machine to show that the fire was caused by the negligence of the garageman.

Sometimes one keeps a car for another for accommodation, receiving no compensation therefor. One who thus serves another is liable only for gross negligence.

The garage keeper must protect the property from theft. If he permits a machine to remain in an alley when it ought to have been inside his garage, he is liable. In one case a motorcyclist left his machine with a garage keeper to be kept over night, and also gave permission for its inspection by any one whom he might send around. A person appeared with a permit to inspect it who, under the permission, stole it and rode away. The garage keeper was rightfully held not liable.

If a garage keeper or his servant negligently runs a machine left in his custody for storage or repairs, the garageman is liable for the damage resulting to the owner. At the expiration of the bailment he must deliver the machine to the owner or person authorized by him to receive it, and is liable if neglecting or refusing. He is also liable if delaying unreasonably to make repairs, or for making them unskillfully. Lastly, if the car is driven by the garageman's servant while the bailment continues, the bailee, and not the owner, is responsible for any injury done to a third person by the servant's negligence. Of course, if the driver was acting outside the scope of his authority, and was using the car for personal purposes, neither the garageman nor the owner would be responsible for whatever happened. See _Automobile: Chauffeur_.

=Homestead.=--A legal homestead is the home or residence of a family land owner, and includes a specific area varying in the several states. By the more general rule the land must be connected in a single piece, though in some states the pieces may be distinct. Though divided by a highway this does not effect a separation, as the land therein belongs to the owner subject to the public rights to pa.s.s and repa.s.s and also use to keep the highway in repair. The peculiarity about a homestead is, it is protected by law from seizure by the owner's creditors.

One of the most important questions relating to a homestead is, the meaning of the head of a family. The term is not limited to a man having a wife and children. It includes an unmarried man with whom his widowed sister and children reside; or a man who supports his mother; likewise an unmarried woman with whom the children of a deceased sister are living. Nor need they live under the same roof, the essential thing is the relation and dependence existing between them. On the death of a husband owning a homestead the right survives to the widow, and usually to the minor children. Some statutes give her the absolute estate, others a life interest; in some states she loses the homestead by a subsequent marriage. In most states the rights of surviving children end on attaining their majority. In many states the surviving husband is ent.i.tled to the homestead right, even though there be no children. A husband does not lose his homestead when his wife withdraws from the family under a decree of divorce.

Non-residents as a rule are not within the privilege of the homestead laws.

On the dissolution of a marriage by divorce, as the wife ceases to be a member of the husband's family, she loses her rights to the homestead. The decree of divorce may, in the dissolution of the marriage, reserve to her the right, and if she is the owner of the homestead she may continue to occupy it as one. The mere desertion of husband or wife by the other spouse will not, in itself, destroy the character of the homestead although an entire dissolution of the family will have that effect.

By the federal law every head of a family, or a person twenty-one years old and a citizen, or intended citizen, of the United States, if not the owner elsewhere in the United States of one hundred and sixty acres of land and has not previously obtained a federal homestead, is ent.i.tled to a quarter section or less of the public land. Three things are necessary: (1) An affidavit showing that the applicant comes under the law; (2) a formal application; (3) payment of the land office charges. When these things are done, the certificate of entry is delivered to the applicant and the entry is made. Then the entryman must actually reside on and cultivate the land for three years, and at the end of that period, he is ent.i.tled to a patent. The lands thus acquired are not liable for any debts contracted prior to the issuing of the patent.

The head of a family can sell or mortgage his homestead, whether he is solvent or not, nor can his creditors prevent its sale since they have no rights therein. And if he sells his homestead and with the proceeds buys another, the second is as fully protected from creditors as the other.

From liability for most debts a homesteader is exempt, but not for all. Generally the homestead is not exempt from taxes, but not everywhere from fines for public offenses or liability on official bonds. Debts contracted prior to the acquisition of the homestead and pre-existing liens in most states are enforceable against the homestead. So are debts contracted in improving or preserving the homestead. These include materials furnished, also the wages of clerks, servants, laborers and mechanics.

=Husband and Wife.=--The law, while regarding marriage as a contract, adds something more, for it cannot be terminated by the will or consent of the parties; a contract on the other hand in most cases can be. To const.i.tute a marriage there must be an agreement or mutual a.s.sent by the parties. This agreement must be made freely, seriously and not as a joke. False representations of health, wealth, etc., do not invalidate the agreement, yet these may be grave enough to have that effect. Consent may be obtained by deceit or compulsion so gross as to justify a court in declaring that the parties were never legally married. A person may be too defective mentally to give an intelligent a.s.sent. A subsequent mental weakening would be no ground for annulling a marriage. An Illinois court recently remarked, it is a harsh rule that would permit a married man whose wife later in life became insane to put her away on account of her misfortune. If one were so intoxicated that he did not act intelligently, he could avoid his marriage.

A male at common law can marry at fourteen, a female at twelve. By statute a later date, twenty-one for males and eighteen for females has been fixed in many states. The right to disaffirm a marriage on the ground of non-age, unlike the parties to a contract, applies to both parties.