Contracts -- 1956 Tennessee Survey

In Shirley v. Slate the Supreme Court of Tennessee had an occasion to pass upon the status of a gambling transaction in Tennessee. In the Shirley case a petition was filed to recover money seized by a sheriff in a crap game. In denying recovery, the court held that the power of the court could not be invoked for recovery of money which the participant had won and which had been seized by the sheriff during a raid and turned over to the county court clerk. Tennessee visits severe consequences on gambling or wagering transactions. By statute it is provided that all contracts founded, in whole or in part, on a gambling or wagering consideration, shall be void to the extent of such consideration. \u27 To buttress further the policy of discouraging such transactions, another statute provides that no money, or property of any kind, won by any species or mode of gambling, shall be recovered by action. The final touch to discourage suits to enforce a gambling contract is provided in still a third statutory provision to the effect that any person who institutes an action for money or property, claimed under a contract founded on a gambling consideration, shall forfeit one hundred dollars, recoverable in any court having cognizance; one-half [of the forfeiture] to him who shall sue therefore, the other half to the county in which action is brought

Business Associations -- 1955 Tennessee Survey

Nature and Formation of Partnerships: The question whether a contract sued on was a partnership arrangement so as to be cognizable only in equity was considered by the Tennessee Court of Appeals in Powel v. Bundy.\u27 There Bundy, a real estate broker, sued Powell on the lawside to recover $500, alleged to be plaintiff\u27s one-half share of a commission earned by their joint efforts in selling a tract of real estate, but which commission had been collected and wrongfully retained by defendant. Among other defenses interposed was defendant\u27s contention that the contract sued on was that of a partnership arrangement between the parties and that one partner cannot sue another partner at law, exclusive jurisdiction of such a suit being in a court of equity. Although the question of jurisdiction may not have been squarely before the court, nevertheless the court concluded that the contract was not one of partnership but was a mere agreement of the parties to work together and divide the commissions. The court held that the suit was properly brought on the law side and affirmed a lower court judgment for the plaintiff

Constitutional Limitations on State Taxation of Corporate Income From Multinational Corporations

This Article explores the Supreme Court\u27s treatment, leading up to and including the Container decision, of state taxation of corporate income from multinational operations. Part II highlights the Court\u27s development, prior to 1982, of the basic principles of federal limitations on the states\u27 taxing powers that guided its decision in Container. Part III takes a more detailed look at two 1982 Supreme Court cases, ASARCO, Inc. v. Idaho State Tax Commission and F.W. Woolworth Co. v. Taxation and Revenue Department, in which the states suffered a setback in their efforts to extend the reach of their taxing powers over income from multinational businesses. Part IV dissects the Container opinion, with a more in-depth explanation of the Court\u27s analysis and the dissenters\u27 response, and concludes with a discussion of the issues that the Container Court reserved for future decisions

Contracts -- 1963 Tennessee Survey

Both the one year provision and the sale of goods provision of the Statute of Frauds were construed in Anderson-Gregory Co. v. Lea.\u27Regarding the duration of the contract, the facts in the opinion are somewhat sparse... The court held that the contract did not come within this provision of the statute. If a contract could have been performed, under its terms, within a year from the time of its making, it is not within the Statute of Frauds, even though it is improbable that the contract would be performed within a year. ================= The Tennessee Supreme Court case of Oman Construction Co. v.Tennessee Central Ry. raises an interesting and somewhat unusual question relative to the rule that several contracts relating to one transaction are to be construed together... A second count of plaintiff\u27s declaration was in tort and based upon alleged acts of negligence. It charged Oman and McKenzie with specific acts of negligence and alleged that Goldberg was negligent in the supervision of the work by allowing and approving the negligent and careless acts of the contractors... On appeal, the supreme court held that Goldberg was not liable to plaintiff. The court could find no provision in Goldberg\u27s contract with the city or in the contract between Oman and the city or in the contract between the plaintiff and the city which expressly provides for any contractual liability on the part of Goldberg to the plaintiff

Contracts -- 1961 Tennessee Survey

I. Offer and Acceptance--Notification of Acceptance Before Notification of Revocation--Duration of Offer with Fixed Expiration Date II. Implied and Quasi Contract--Claim for Services Where Family Relationship Involved III. Parol Evidence Rule--Application of Rule to Third Party Not a Party to the Written Instrument--Pre-existing Duty as Consideration IV. Exculpatory Contracts--Contracting Against Liability for Consequences of Own Negligent Conduct V. Agreement in Restraint of Trade-Agreement of Seller of Business Not to Compete--Enforcement of Restraint in Area Greater than Required to Protect Purchase

Bills and Notes -- 1956 Tennessee Survey

Section 23 of the Negotiable Instruments Law, adopted in all of the forty-eight states,\u27 provides: When a signature is forged or made without the authority of the person whose signature it purports to be, it is wholly inoperative, and no right to retain the instrument, or to give a discharge therefor, or to enforce payment thereof against any party thereto, can be acquired through or under such signature, unless the party, against whom it is sought to enforce such right, is precluded from setting up the forgery or want of authority.\u27 In Nashville Trust Co. v. Southern Buyers the Tennessee Court of Appeals was faced with the question whether a principal was precluded from setting up the want of authority of his agent who drew several checks on the principal\u27s bank account for the agent\u27s own personal use. In short, the agent misappropriated the principal\u27s funds. The unfaithful agent had been given express authority to draw checks on the account of his principal

Collection of the Use Tax on Out-of-State Mail-Order Sales

The states\u27 inability to collect taxes on out-of-state mail-order sales constitutes a major fiscal problem. The federal government\u27s Advisory Commission on Intergovernmental Relations estimates that states are losing as much as 1.5 billion dollars each year in unpaid out-of-state mail-order purchase taxes.\u27 In addition to raising revenue, the compensating use tax serves two purposes: (1) The use tax helps local sellers to compete with retail dealers in other states who are subject to a lesser tax burden;and (2) the use tax avoids the likelihood of draining the taxing state\u27s revenue by removing buyers\u27 incentive or temptation to go bargain hunting by mail orders or through other means to escape payment of the tax on in-state sales. The legislatures of states with sales taxes could not plug these economic leaks by extending the reach of the sales tax. One reason was the idea that a state could not, consistently with the due process clause, tax extraterritorial sales. Prior to the Supreme Court\u27s 1940 decision in McGoldrick v. Berwind-White Coal Mining Co.,it was assumed that an interstate sale was immune from state or local taxation.\u27 Later, McLeod v. J.E. Dilworth Co. placed severe constitutional constraints on a destination state\u27s ability to tax a sale consummated in another state. These restrictions on the states\u27 taxing power enabled residents of states with sales taxes to make their purchases either tax free or at a lower tax rate beyond the territorial limits of the taxing jurisdiction. Purchasers either could travel beyond the borders of their state, use the telephone,mail orders, or buy from solicitors

Creditors\u27 Rights and Security Transactions -- 1957 Tennessee Survey

Fraudulent Conveyances--Effect of Recordation of Fraudulent Conveyance on Subsequent Creditors: In Butler v. Holland, the Tennessee Supreme Court was faced with the question of whether the constructive notice of a recorded deed which is a fraudulent conveyance prevents a creditor, who became such after the recordation, from setting the conveyance aside. The plaintiff-creditor (Butler), in an effort to collect a debt due him from the estate of one Jesse Nolen, deceased, brought a suit in equity to have set aside, as a fraud against plaintiff, a conveyance of real estate by one Nolen to the defendant (Holland). The conveyance admittedly was a gift by Nolen to defendant. Plaintiff\u27s claim arose after the conveyance in question was recorded. Nolen (grantor) continued to live on the land for sometime after the questioned deed. He then moved off the property and went to live with defendant, who was a non-resident. While the opinion is not clear, there is considerable indication that Nolen may have been living on the land when plaintiff gave credit to Nolen. The Supreme Court sustained defendant\u27s demurrer on the sole ground that since the deed was on record before plaintiff\u27s claim arose plaintiff was charged with constructive knowledge of the conveyance and it was not, therefore, fraudulent as to plaintiff

State and Local Taxation

That the field of state and local taxation is bedoming much more important, as well as increasingly active, is shown by a number of recent significant major developments that are of interest and concern to taxpayers and their counsel everywhere. Ten state tax cases are already on the United States Supreme Court docket for consideration during the Term commencing October 5, 1959.\u27 During the past term at least a half dozen important state tax cases were decided by the Supreme Court, including the epochal Northwestern-Stockham decision, which threw much of the legal profession, as well as many taxpayers, into a swivet. In that case the Supreme Court decided that a state can tax the net income of a foreign corporation which is earned within its borders although the income is earned exclusively in interstate commerce. The consternation resulting from this decision galvanized Congress into such action that it passed an act to circumscribe the power of the states to tax income derived solely from interstate - commerce. Moreover, with most states avidly searching for more revenue to satisfy the pyramiding demands for public services, new ways for raising taxes have been explored. The fiscal pattern varies from state to state and it keeps changing constantly, with the number of items and activities taxed increasing all the while. Skyrocketing state tax collections (not counting local government taxes) in fiscal 1959 rose by nearly $1 billion over 1958, reaching a new high of$15.8 billion, which was double the collections of only a decade ago. Local taxes usually total about the same amount as state taxes, which means that the tax take for states and their political subdivisions was over $31.5 billion in the last fiscal year. Reflecting the growing importance of the state and local tax field, the courts in Tennessee have considered a relatively large number and variety of tax cases during the period covered by this survey