letin Mass. Const. Convention, vol. 2, pp. [ art. 1, § 2. "The Senate of the United States 212, 214, 219–223. shall be composed of two Senators from each state, elected by the people thereof, for six The electors in each state shall have the qualiyears; and each Senator shall have one vote. fications requisite for electors of the most numerous branch of the state Legislatures." Article 17, Amendments U. S. Const. "The times, places and manner of holding shall be prescribed in each state by the Legislature thereof; but the Congress may at any time by law make or alter such regulations, except as to the places of choosing Senators." Const. U. S. art. 1, § 4. Most of the statutes adopted during the war, instead of providing for voting by proxy at the place where the election was regularly held, provided for special elections at the places where the electors in the service of the federal government might be. Such a law was here adopted in 1864, applicable, how-elections for Senators and Representatives, ever, only to presidential electors and representatives in Congress. Laws 1864, c. 4030. The reasoning of justices in 1863 in some portions of their opinion is apparently fatal to this law also, but with the statement that the election of federal officers was not called to their attention the justices upon inquiry from the Senate expressed opinions in favor of the validity of the law of 1864. Opinion of Justices, 45 N. H. 595; Opinion of the Judges, 37 Vt. 665. There is nothing in the opinion, however, expressing doubt as to the view previously expressed as to the constitutional requirements for the election of state officers. The question was as to the place where the election must be held, not whether the elector's vote could be cast in his absence. [2] At each of the biennial elections to which the proposed bill applies a representative in Congress is elected and presidential electors and a Senator in Congress may be. The Legislature may desire to consider the advisability of legislation of this character applying to these officers alone, and we have considered this question also. This is a question not of state, but of federal, law, and authority must be found, if it exists, in the provisions of the federal Constitution. "All votes for Representatives in Congress must be by written or printed ballot, or voting machine the use of which has been duly au thorized by the state law; and all votes received or recorded contrary to this section shall be of no effect." R. S. U. S. § 27; Act Feb. 14, 1899, c. 154, 30 St. 836; Comp. St. § 24. The advice given in 1864 (45 N. H. 595) that voting for Representatives in Congress could be authorized at places other than those in which the voter was by the state Constitution qualified to vote was based upon the proposition that the place where a voter was qualified to vote was no part of his qualifications as an elector. Giving a narrow construction to the term "qualification," it might be concluded that the requirement of the state Constitution that the voter should present his vote in person related merely to the manner of voting, and not to the qualifications of a voter. But the elector is not capable of voting for members of the most numerous branch of our Legislature unless he is physically capable of attending the meeting and is there present in person. The requirement of the federal Constitution that the electors of Senators and Representatives should possess the qualifications of electors of a class of legislators in the state would seem to imply that only those who by state law were permitted to vote for such legislators should have the right to vote for candiThe statute dates for the federal offices. quoted requires Representatives in Congress "A ballot may be to be elected by ballot. defined to be a piece of paper, or other suitable material, with the name written or printed upon it of the person to be voted for ; and where the suffrages are given in this form, each of the electors, in person, deposits such a vote in a box or other receptacle provided for the purpose and kept in the custody of the proper officers." Cush. Leg. Ass. 8 103; quoted with approval, Cooley's Const. Lim. *604. That at common law in all elec [3] "Each state shall appoint in such manner as the Legislature thereof may direct" electors of President and Vice President. "The Congress may determine the time of choosing the electors." Const. U. S. art. 2, § 1. "The electors of President and Vice President shall be appointed, in each state, on the Tuesday next after the first Monday in November, in every fourth year." R. S. U. S. § 131 (U. S. Comp. St. § 199). As the manner of making the appointment is left to the Legislature of each state, there can be no constitutional objection to the scheme now proposed. The power of the Legislature as to this matter is discussed in the Opinion of Justices, 45 N. H. 599-601. Holding the opinions there expressed, we advise the Legislature that the provisions of the proposed bill so far as applicable to the choice of presidential electors, if enacted, would be a valid exercise of legislative power. As to Representatives and Senators in tions of a public nature every vote must be Congress the question is not so clear. "The House of Representatives shall be composed of members chosen every second year by the people of the several states, and the electors in each state shall have the qualifications requisite for electors of the most numerous branch of the state Legislature." Const. U. S. personally given is a proposition upon which the authorities are uniform. Authorities cit ed; 44 N. H. 635; Morawetz, Private Corp. 8 486; McCrary, Elections, § 48; Paine on Election, § 462; Richards Case, Clark & Hall: Cong. El. Cases, 95, 99. Congress has also fixed the day for the election of Senators (113 A.) and Representatives. R. S. U. S. § 25 (U. S. | pressed, that the law is valid or invalid in Comp. St. § 21); Act June 4, 1914, c. 103, 1; Comp. St. § 14a. [4] If the election is to be held on a certain day, the implication is that the vote must be cast on that day. The bill before us permits the voter to part with all control over his vote, to vote in short as early before the day of election as he can obtain a ballot. It seems most probable that Congress when it required an election by ballot meant an election where the ballot was presented by the elector in person, and we incline to the opinion that the scheme of this act for voting by proxy would not be a valid law if enacted as to the election of Representatives and Senators in Congress. As each House of Congress is judge of the elections and qualifications of its members, the question can only be determined by those bodies. We have not found such a decision. this respect, will not decide the question. Whether it is wise to proceed with legislation of at least doubtful validity is a question of expediency determinable only by the Legislature. Our duty is performed by stating the legal situation as it exists. To restate our conclusions: The manner FRANK N. PARSONS. DELAWARE SALES & BROKERAGE CO. v. March 10, 1921.) 1. Sales 24-Acceptance of option must be unconditional. [5] Although advisory opinions such as we now are giving are not judgments establishing the law, in practice they appear to be relied upon as authority as fully as decisions in litigated cases. Whenever possible it has been the practice in recent years to hear argument from parties holding opposing views. The practical result is that these opinions (Superior Court of Delaware. New Castle. have in effect the weight of declaratory judgments upon question within the jurisdiction of the court of which the justices are members. In the opinion in 45 N. H. the fact that the question is one not within the jurisdiction of the judiciary of the state is not referred to. But our duty to advise under the Constitution is not limited to questions which may be adjudicated by the courts of the state. Opinions of the Court, 60 N. H. 585. In that case the justices advised as to the legality of the election of a United States Senator by the existing Legislature, a ques-purchase price at the time of the purchase, tion which could be finally determined only by the Senate. Generally the acceptance of an option must be unconditional. 2. Sales 24-Offer to pay on receipt of invoice a sufficient acceptance of option, where amount was not ascertainable until receipt of invoice. Where option to purchase all or a portion required buyer to deposit 10 per cent. of the of certain merchandise within certain period buyer's offer within the required period to pay the 10 per cent. immediately upon receipt of invoices was a sufficient acceptance of the option, where amount required to be paid was not ascertainable before receipt of invoices, but der of the 10 per cent., if the amount due was was not sufficient without the payment or ten ascertainable. Action by the Delaware Sales & Brokerage Company against Thomas O. Haydock, Jr., and another, copartners trading under the name of National Pipe & Supply Company. Demurrer to declaration sustained as to third, fourth, fifth, seventh, and eighth counts, and overruled as to second and sixth counts. [6, 7] It is often said that a court will not declare beyond legislative power a law which has been duly enacted unless the conflict with the Constitution clearly appears. In the present case, where we are asked to advise as to legislative power in advance of action upon a question not within the jurisdiction of the state, it is clear we cannot safely give advice which might induce affirmative action unless the power clearly exists. We have such doubt as to what might be held by the final authority as to the validity of an election of a Senator or Representative in Congress which depended upon votes given by proxy as now proposed in a state where that method of voting is not permitted by state law that we are unable to advise the Legislature that the proposed legislation would be valid. We are not aware of any emergency which requires action by the Leg- Harry Emmons and L. Irving Handy, both islature at this time. Our opinion, if ex- of Wilmington, for defendants. See, also, 110 Atl. 668. CONRAD and HEISEL, JJ., sitting. William S. Hilles, of Wilmington, for plaintiff. PER CURIAM: This is a demurrer to all | ance must be unqualified and meet the exact the counts of the narr., the cause of demurrer terms of the option and that nothing short relied upon being that the acceptance of the of such acceptance is sufficient. option as alleged in the narr. was not in accordance with the terms of the option as alleged therein. The plaintiff contends, first, that the option did not require a 10 per cent. deposit at the time of purchase; and second, that if it did The allegations of the several counts in require such deposit, the exact amount of so far as the question before us is concerned, the purchase was unknown to the plaintiff are that on the 6th day of January, 1920, the at the time of the purchase, and, therefore, plaintiff offered to buy certain merchandise an allegation of the payment of the 10 per from the defendant, describing it and giv-cent. was not required, and the allegations ing quantities and prices in counts 3, 4, 5, 7 and 8 and prices only in counts 2 and 6. The counts then allege: of the narr. in that respect are sufficient. fifth, seventh and eighth counts, but would [1, 2] The general rule is that the acceptance of an option must be unconditional. "The said proposition further provided that And while it may be that the allegation “if the plaintiff should pay to the defendants check plaintiff did purchase any merchandise, the for $100, for which defendants were to give said $100 was to be retained by the defendplaintiff an option on any part, or any lot, or ant and was to apply on the 10 per cent. deall of the above merchandise located on all or posit required upon purchase of the goods" any of the plants aforesaid, said option to be would require an allegation of acceptance subject to the acceptance by the plaintiff upon showing a payment or tender of 10 per cent. inspection of said merchandise. Said proposal of the purchase price under some circumfurther provided that if the plaintiff should not stances, we are not satisfied to hold, on depurchase the said merchandise after inspection, defendants were to return to plaintiff the murrer, where from the allegations of the $100 given to bind the proposition, the said narr., the amount required thus to be paid $100 to be returned without any charges of any is not ascertainable, that plaintiff must alnature whatsoever, if no merchandise was pur-lege such payment or tender. chased. If plaintiff did purchase any merchan- In those counts in which the amount necesdise, the said $100 was to be retained by the sary to cover the 10 per cent. is ascertaindefendants and was to apply on the 10 per able from the allegations, we think the paycent. deposit required upon purchase of the ment or tender of such amount should be algoods. The terms of purchase were to be f.leged. This would apply to the third, fourth, o. b. plants, balance sight draft, bill of lading. The said proposition further provided that in case of any loss, or damage or shortage, defendants were to indemnify plaintiff to the amount of loss. Said option was granted for a 10-day period, and if not exercised in the time specified, through causes beyond plaintiff's control, either the length of the option was to be renewed or the check returned in like manner as above set forth. That the said proposition was on the said 6th day of January accepted by the defendants who then and there accepted the said check for $100 above referred to. That on the 15th day of January, 1920, the (Supreme Judicial Court of Maine. April 26, plaintiff exercised the option given to it as aforesaid and advised the defendants that it accepted the following merchandise at the prices noted. * *Said acceptance further notified the defendants that plaintiff had inspected the merchandise mentioned and formally advised the defendants of plaintiff's acceptance of the same and wish to avail itself of said option. Said acceptance further provided that as defendants were then unable to present to plaintiff invoice covering merchandise from each plant at time of acceptance, plaintiff would send the 10 per cent. deposit immediately upon receipt of such invoices, and requested that such invoices might be furnished as soon as possible." The question thus presented is, whether or not the plaintiff's offer to pay to defendant the 10 per cent. deposit immediately upon receipt of such invoices is a sufficient acceptance of the option to bind the defendant. The defendant contends that the accept MADDOCKS v. GUSHEE. 1921.) (120 Me. 247) 1. Judgment 678(2) Creates estoppel against parties and those in "privity," which denotes mutual or successive rights. Parties and those in privity with them are estopped by judgment, and the term "privity" denotes mutual or successive relationship to the same rights of property. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, PrivityPrivy.] 2. Judgment 713(2)-Conclusive as to issues which were or might have been litigated. As a general rule a judgment by court of competent jurisdiction is conclusive between same parties and their privies on all properly alleged matters within the issue or which might have been litigated therein regardless of whether issue was actually joined by defendant or tendered him and left unanswered. (113 A.) 3. Judgment 651, 652—Judgment by default | plaintiff in the case. Then the present acor on confession is conclusive. A judgment by default or upon confession is in its nature just as conclusive upon the rights of the parties before the court as a judgment upon a demurrer or verdict. 4. Judgment 682 (2)-Seller notified in replevin between successive buyers to make good his warranty is party to judgment. One who sold the same horse successively to two different parties, and who was notified by the first buyer to come in and make good his warranty of title in replevin brought by that buyer against the second buyer, who had possession of the horse, became thereby in privity to the record, and is bound by the judgment to the extent to which his rights were tried and adjudged. 5. Judgment 524-Judgment in replevin that property "belongs" to plaintiff therein determines ownership. A judgment in replevin by the first buyer of a horse against the second entered on default which recited that the horse belongs to the plaintiff in that action, decides the ownership of the horse, since the primary meaning of the words "to belong," and also their common and ordinary meaning, is to be the property of, and not merely the right to possession thereof, so that such judgment is conclusive as to the ownership of the horse in a subsequent action by the second buyer against the seller, who had been notified to appear in the replevin action and make good his warranty of title (citing Words and Phrases, Belong-Belonging). 6. Judgment 951 (2)-Docket entries admissible to show judgment where record is not extended. Where the record of a prior action is not extended, the docket entries showing what was adjudged therein would be proper evidence of that fact. tion was begun. When this action came on for trial, evidence was offered tending to show that in the replevin case he who had twice sold one horse was notified by the first vendee to come into court and make good a warranty of title, express or implied, against asserted subsisting previous ownership. He disregarded the notice. In the instant case, however, he asked the justice presiding to instruct the jury that, as the judgment in replevin was by default, title to the horse was not thereby determined as between himself and him who is plaintiff now and was defendant before. The justice declined to so rule. Nor would the judge permit this defendant to show that, in advance of the later sale, he had received the horse back in amicable adjustment of the unpaid note. justice was clearly right. The [1-3] Parties and privies are estopped by a judgment. Corey v. Russell, 106 Me. 485, 76 Atl. 930; Stacy v. Thrasher, 6 How. 45, 12 L. Ed. 337. "It is well settled doctrine in this state," said Chief Justice Peters, "that if any issue be judicially established between parties to a litigation, the benefit of the finding will inure in favor of the winning party whenever such issue again arises between the same persons or their privies in any other suit. This is upon the principle of estoppel which declares that an issue or fact once judicially proved is forever proved." Parks v. Libby, 90 Me. 56, 37 Atl. 357. The term "privity" denotes mutual or successive relationship to the same rights of property. Greenleaf on Evidence, § 523. As a general rule a judgment by a court of competent jurisdiction directly upon the point is, as a plea, a bar, or as evidence, conclusive and binding between the same parties and their Exceptions from Supreme Judicial Court, privies upon all properly alleged matters Knox County, at Law. Action by Eden C. Maddocks against T. E. Gushee. Verdict for the plaintiff, and defendant excepts. Exceptions overruled. Argued before CORNISH, C. J., and SPEAR, PHILBROOK, DUNN, WILSON, and DEASY,.JJ. A. S. Littlefield, of Rockland, for plaintiff. R. I. Thompson and M. A. Johnson, both of Rockland, for defendant. DUNN, J. The defendant in this action sold and delivered a horse to a man named Hopkins, taking a Holmes note in payment. Defendant afterward made sale and delivery of the same horse to the plaintiff in this action. Thereupon the original purchaser replevied the horse from the second vendee. Eventually, on default of the defendant in the replevin suit, the court adjudicated, to quote from its record, that the property which has been recovered "belonged to" the embraced within the issue in action, and which were or might have been litigated therein. Corey v. Russell, supra. It is immaterial whether issue actually was joined by the defendant or tendered him and left unanswered. The rule applies as well to a judgment by default, when the facts stated warrant the relief sought, as to one rendered after contest. Gates v. Preston, 41 N. Y. 113; Goebel v. Iffla, 111 N. Y. 170, 18 N. E. 649. A judgment by default or upon confession is, in its nature, just as conclusive upon the rights of the parties before the court as a judgment upon a demurrer or verdict. Gifford v. Thorn, 9 N. J. Eq. 702. [4] Whether the present defendant was seasonably and reasonably vouched in the replevin suit was a question of fact, in regard to the finding, and the effect, as a matter of law of the finding, of which the jury was guided by instructions to which exceptions were not taken. If the defendant were duly called in, as he seems to have been, to defend on a warrant of title, then of right he could have summoned witnesses to testify in his favor: he could have cross-examined witnesses introduced by the opposite side; indeed, the defense would have been his to control. Actual notice in apt time to the party liable over, with request and opportunity to assume the defense, makes him, in the absence of fraud or collusion, a privy to the record, and binds him by it to the extent to which his rights were tried and adjudged. Ryerson v. Chapman, 66 Me. 557; Boston v. Worthington, 10 Gray (Mass.) 496, 71 Am. Dec. 678; Blasdale v. Babcock, 1 Johns. (N. Y.) 517. Quoting our own Judge Kent: "When a person is responsible over to another, either by operation of law or by express contract, and he is notified of the pendency of the suit, and requested to take upon himself the defense, he is not afterwards to be regarded as a stranger to the judgment that may be recovered; because he has a right to appear, and make as full defense, as if he were a party to the record. * A judgment, after such notice, will be conclusive against him, whether he appeared or not." Veazie v. Penobscot Railroad Co., 49 Me. 119. See, too, Davis v. Smith, 79 Me. 351, 10 tl. 55. Blasdale v. Babcock, supra, was an action on the case on an implied warranty in the sale of a horse, which a defendant had sold to a plaintiff, but which belonged to another person, who had recovered it from the plaintiff. The record of the judgment in favor of the owner of the horse against the plaintiff was admitted in evidence on the question of title. would be proper evidence of that fact. The primary meaning of the words "to belong" and also their common and ordinary meaning, is to be the property of. State v. Fox, 80 Iowa, 312, 45 N. W. 874, 20 Am. St. Rep. 425; Gammon v. Seminary, 153 Ill. 41, 38 N. E. 890; Com. v. Hamilton, 15 Gray (Mass.) 480; Words and Phrases, vol. 1, p. 744. Virtually the court said to the then plaintiff: Keep the property that you replevied, because you own it. Such was its judgment concerning an issuable fact in the case. record thereof is not subject to explanation or contradiction by evidence from outside. As between the parties and their privies a judgment must be conclusive upon all questions settled by it, as long as it stands; motives of public policy so dictate. Defendant's exceptions are meritless. Exceptions overruled. FENNESSEY'S CASE. Its (120 Me. 261) (Supreme Judicial Court of Maine. April 26, I. Master and servant 348-Compensation The Workmen's Compensation Act is to be liberally construed to further its object of compensating injured employees for loss of capacity to earn. 2. Statutes 183-Not literally construed if producing irrational interpretation and absurd result. A statute will not be literally construed if such a construction would produce an irrational interpretation and an absurd result. 3. Master and servant 419-Termination of "compensation" on cessation of disability not change of "status" forbidden. [5, 6] This defendant, albeit he had ample notice, did not heed it. He now contends and insists that notwithstanding, yet judgment in replevin went only to the determination of that plaintiff's right to the possession of the property. To prevail in replevin a plaintiff must show that at the time of the unlawful started working for another employer, and on Where an employee receiving compensation taking or detaining of the replevied chattel being injured was awarded compensation from he had either a general or special property the other employer, the accident commission, therein, and right to its possession. How far on first employer's petition for discontinuance a plaintiff must go to make proof of his case of compensation, under Rev. St. c. 50, § 36, auoften depends upon his adversary's plea. In thorizing the commission to discontinue comthe replevin case adverted to, no plea was pensation, or make such order as justice may filed. A default was suffered. An action of require but shall order no change of the "stareplevin is not finally disposed of by the en- terminate the compensation from the first emtus" existing prior to the application, should try of a default. That is not the final judg- ployer, not as of the date of the filing of the ment. It has been said that an action of petition, but as of the date on which the emreplevin is not disposed of until the question ployee commenced working for the second emof the return of the property is acted upon. ployer, on the ground that disability then ceasTuck v. Moses, 58 Me. 461. Default of the ed, since "compensation" is not a gratuity, but replevin defendant did not settle the ques-"status" has reference to his relation toward is paid to make good a loss, and the employee's tion of the return of the property. This was the previous employer. determined by the inquiry into the facts and the adjudication thereon by the court. The court adjudged the property to belong to the plaintiff. The record so shows. Were the record not extended, then the docket Appeal from Supreme Judicial Court, entries likewise in this instance so showing Aroostook County, at Law. [Ed. Note-For other definitions, see Words and Phrases, First and Second Series, Compensation; Status.] |