43. What is undue influence? When will it be presumed? When presumed what must the other party do to remove the presumption?
44. Define consideration. Can there be a contract without it?
Bar iron, $1.20 flat delivered by car, $1.25 by wagon. (Here follow other items and prices.)
R. C. Howes, Sec'y.
The K. C. Bolt & Nut Company,
By R. C. Howes, Sec'y."
Defendant answered this letter stating that he "accepted the offer" and ordering two cars. Can either party be held to this proposition? (Cold Blast Transp. Co. v. K. C. Bolt & Nut Co., 114 Fed. 77, 57 L. R. A. 696.)
46. Plaintiff, manufacturer of a certain cigar, offered to sell in future to defendant, a cigar dealer, as many of such brand as he might desire for his wants, and to continue to do so during the life of the brand, as long as defendant cared to sell them. Defendant accepted this proposition. Is there a contract? (A. Santaella & Co. v. Otto F. Lange Co., 155 Fed. 719.)
47. The Minnesota Lumber Co. agreed to buy and the White-breast Coal Co. to sell to the former "its requirements of anthracite coal" for season between August 5, 1896, and January 1, 1897 (terms, prices, description of coal and other material terms given). Is there a contract? (Minnesota Lumber Co. v. Whitebreast Coal Co., 160 111. 85.)
48. "The plaintiff states that she paid out money for the education at college of her son J. A. Gooch, without any contract or understanding that he would repay her. Years afterwards in consideration of money which she had so paid, he voluntarily gave her this note. That is really the consideration. Is that binding to make the note enforceable?" What is your answer? Why? (Gooch v. Allen, 37 L. R. A. N. S. 930 (W. Va.).
49. Plaintiff alleges that her husband was cruel to her and was so addicted to intoxicating liquors that she left him, that defendant, her step-son, requested her to return to her husband, promising her that if she did so and lived with her husband the rest of his life or her life, he would support her for the rest of her life; that in consideration thereof, she accepted and returned but that defendant repudiates the agreement. Defendant claims that his promise is unenforceable because of no benefit to him and because of its uncertainty, and because the wife only performed her duty. Is he right? Discuss all defenses. (Mack v. Mack, 67 Nebr. 819, 31 L. R. A. N. S. 441; Parker v. Russell, 133 Mass. 74.)
50. A was discharged in bankruptcy. He afterwards wrote a letter to a creditor saying: "You will be paid every dollar of it." The creditor sues. A pleads the discharge. Is it a good defense? (Herrington v. Davitt, 220 N. Y. 162, 115 N. E. 476, 1 A. L. R. 1700.)
51. A reward is offered for the capture of an accused person. The sheriff of the county captures him. Is he entitled to the reward?
52. A contracts to assign a patent to a certain corporation for a consideration which is paid him. He fails and refuses to assign the patent. The directors offer him $1,000 more to make the assignment.
He does so assign and now sues for the $1,000. Has the corporation any defense?
53. PI. sold and delivered to defendant goods to amount of $80.03. Defendant undertook to return a part of the goods sold of the value of $50.02. PI. disputed the right to do so, and refused to receive the goods from the teamster. While matters were in this condition the defendant sent plaintiff a check for $30.01, which was admittedly due, stating that it was in full settlement of the account. Plaintiff cashed the check, notified defendant it had done so, and brought suit for the balance claimed by it. Defendant claims there has been a settlement. How should court hold? (Whittaker Chain Tread Co. V. Standard Auto Supply Co., 216 Mass. 204, 103 N. E. 695, 51 L. R. A. N. S. 315. Contra: Chicago, M. R. Co. v. Clark, 178 U. S. 353. See notes, 51 L. R. A. N. S. 315, and 11 L. R. A. N. S. 1022.)
54. A's automobile strikes B. A claims the accident to have been unavoidable. B threatens suit. A offers $500 in settlement. B accepts. B afterwards repudiates the settlement, refuses to take the $500 and sues for $1,000. A offers no evidence except the settlement. Is it a good defense?
55. What is a composition with creditors? Is it binding?
56. A threatens suit against B for price of a ring sold by A to B. C tells A that he will pay him the price of the ring if A will forbear suit against B. A sues C on this promise. Has he got a good case?
57. The W. S. & T. Wks. was engaged in making and selling harvesting machines. It sold everything pertaining to the business to H. Mfg. Co., agreeing "not again to go into the manufacture of harvesting machines" anywhere in the United States. The seller had a national and international good will in its business. It now begins the manufacture of such machines contrary to this agreement. The buyer seeks to restrain it. Will the court issue an injunction?
58. What is a monopoly?
59. J went into the employ of P, the owner of an Express Company, and signed the following agreement:
"I do hereby agree in consideration of my employment by the express company, that I will assume all risks of accident or injury which I shall meet with or sustain in the course of such employment whether occasioned by the negligence of said company or any of its members, officers, agents or employees." J subsequently became injured by reason of P's negligence and brings suit. Is the above agreement a good defense? (Johnston v. Fargo, 184 N. Y. 379, 7 L. R. A. N. S. 537.)
60. The I. C. R. Co. leased to C, a grain elevator, the lease stipulating that "the risks of all loss, injury and damage by fire, however caused, and whether or not caused by the negligence of the lessor, its agents or servants, are hereby assumed by the lessee." Fire caused destruction of the premises, originating as C alleges from the negligence of the R. Co.'s servants. C brings suit. Is the provision a defense? (Checkley v. I. C. R. Co., 257 111. 491, 44 L. R. A. N. S. 1127.)