CONTRACTS - SALES - EFFECT OF REASONABLE BELIEF IN BUYER\u27S INSOLVENCY ON SELLER\u27S DUTY TO PERFORM

The plaintiff ordered goods from the defendant, for immediate delivery, terms $1,500 down, balance covered by notes of three and six months. The check given for the down payment was dishonored because of insufficient funds but was subsequently honored. On investigation the defendant discovered that there were unpaid judgments outstanding against the plaintiff, some of which were upwards of three years old. Inferring that the plaintiff was insolvent, the defendant refused to deliver the goods unless cash was paid therefor and when plaintiff refused this offer defendant attempted to return the down payment. Held, plaintiff\u27s affairs were in such condition that any reasonable business man would be justified in believing him to be insolvent. A reasonable belief in the buyer\u27s insolvency is sufficient to excuse the seller from performing a contract to sell goods on credit. Leopold v. Rock-Ola Mfg. Corp., (C. C. A. 5th, 1940) 109 F. (2d) 611

INSURANCE -WHAT CONSTITUTES MARKS OF FORCE AND VIOLENCE WITHIN THE MEANING OF A POLICY OF SAFE BURGLARY INSURANCE?

P sued to recover on a policy of safe burglary insurance which required that the entry into the safe must have been made by force and violence of which there shall be visible marks made by tools . . . or other chemicals. P\u27s employee was forced to open the safe, after having been struck on the head with a gun, and in so doing the employee left blood stains on the safe. P contended that the policy was ambiguous in its terms and that the blood on the safe, having chemical qualities, demonstrated the use of chemicals to open the safe, as required by the policy. The trial court entered judgment for the defendant. Held, that blood was not a chemical within the meaning of the policy and that the policy was not ambiguous in its terms. Bridge v. Massachusetts Bonding & Insurance Co., 302 Ill. App. 1, 23 N. E. (2d) 367 (1939)

TRUSTS-RIGHT OF DIVORCED WIFE OF BENEFICIARY OF SPENDTHRIFT TRUST TO REACH THE BENEFICIARY\u27S INTEREST IN THE TRUST FOR ALIMONY AND SUPPORT FOR CHILDREN

P, divorced wife of D, brought this action for alimony and for support money for her children. The object of the action was to reach the income from a spendthrift trust created for the benefit of D and his present wife and children in the will of D\u27s mother. The will specifically provided that none of the proceeds of the trust were to go to P or her child. Held, the settlor had the right to devise her property in any manner she chose. There is nothing in the statutes or decisions of Wisconsin which forbid such terms in a trust. Nor is there any public policy which would prevent such. Bill dismissed. There was a strong dissent on the grounds that Wisconsin had not declared its policy on this question and that until such was done this court could decide as it thought just. Schwager v. Schwager, (C. C. A. 7th, 1940) 109 F. (2d) 754

TRUSTS - SPENDTHRIFT TRUSTS - BENEFICIAL INTEREST HELD NOT ATTACHABLE TO MAKE GOOD LIABILITY AS TRUSTEE

Janet Jones was an inactive trustee and one of the beneficiaries of a spendthrift trust. Because of lack of good judgment on the part of her co-trustee, and without any moral fault on her part, Janet was charged with liability for a large sum. Her surety, who paid the succeeding trustee, took an assignment of the rights of the trust estate against Janet Jones and demanded that the trustee pay to it all the income, past, present and future, which the trust instrument gave to such beneficiary. The trustee brought this action for instructions. Held, as the trust estate was only a creditor of Janet Jones and the will precluded attachment of her beneficial interest by creditors, an exception will not be made in favor of the trust estate or its assignee. Blakemore v. Jones, (Mass. 1939) 22 N. E. (2d) 112

CONTRACTS - DISCHARGE - ACCORD AND SATISFACTION WITH A THIRD PERSON

Action by P against D on an alleged oral promise to pay a debt owed to P by D\u27s mother. P had agreed to discharge the mother from liability. There was no direct evidence that the mother was a party to the transaction. Apparently the defense was that D\u27s promise was within the statute of frauds if the agreement to discharge was executory, or, if it was executed, that there was no consideration for D\u27s promise because the discharge of D\u27s mother was not legally binding since it was an accord and satisfaction with a third person. The trial court directed a verdict for D. Held, that the promise was not within the statute of frauds and that such a promise could be binding. The court said that, although a discharge by the creditor is not effective unless assented to by the debtor, the jury would have been warranted in inferring such assent from the circumstances here. F. I. Somers & Sons, Inc. v. LeClerc, (Vt. 1939) 8 A. (2d) 663

UNFAIR COMPETITION - TRUTHFUL DISPARAGEMENT OF A TRADER\u27S REPUTATION

Plaintiff sued for treble damages under the Anti-Trust Act, alleging that the defendants had conspired and combined to drive him out of the securities business. Plaintiff alleged that to accomplish their purpose the defendants published statements as to plaintiff\u27s criminal record. The facts are not clear, but it appears from the report that the crimes in question were committed twenty years previously, during plaintiff\u27s youth. The trial court instructed the jury that if that information was true [as to plaintiff\u27s criminal record], the Better Business Bureau, regardless of its purpose in disseminating the information, would not be liable, is not liable, because no person or firm can be liable for telling or publishing the truth. Held, that the instruction was substantially correct; that even though the instruction did not apply to this action the defendants would not be liable because there was not sufficient evidence to support the charge of illegality in the combination; that the avowed purpose of the defendants, to rid the securities business of unscrupulous persons, was not only lawful but commendable; that the only question was the illegality of the combination. McCann v. New York Stock Exchange, (C. C. A. 2d, 1939) 107 F. (2d) 908, certiorari denied (U.S. 1940) 60 S. Ct. 807

CORPORATIONS - NON-PROFIT CORPORATIONS - POWER OF COURT OF EQUITY TO PRESERVE ORIGINAL PURPOSES AND SET-UP OF SUCH A CORPORATION

The Osteopathic Hospital was incorporated in 1919 as a nonprofit corporation by five persons who subscribed funds for its support. Its articles provided that the qualifications for trustees, method of filling vacancies in the board of trustees and the manner in which persons could become members should be set out in the by-laws to be adopted by the original incorporators. The by-laws thus adopted provided for a self-perpetuating board of trustees with power in them to amend the by-laws. These by-laws were not questioned until January 20, 1938, when a group of the members attempted to amend the by-laws to permit election of the trustees by the members and the same group purported to elect trustees under such amendments. This bill in equity was brought by those who were trustees previous to January 20, 1938, in conjunction with the hospital, to determine who were the true trustees and also asking injunctive relief. The lower court found for the plaintiffs and enjoined the defendants from further attempts to amend the by-laws or elect trustees. Held, this was a trust and a court of equity had the power to enjoin interference with the intent of the founders. The injunction was properly granted. Detroit Osteopathic Hospital v. Johnson, 290 Mich. 283, 287 N. W. 466 (1939)

CONTEMPT - CONSTITUTIONAL LAW - PARDONS - POWER OF A GOVERNOR TO PARDON FOR CONTEMPT

Dolan and Quinn were indicted for crime, and while awaiting trial were cited for contempt because of alleged attempts to influence members of the jury panel who might be drawn to sit on the jury in the trials of Dolan and Quinn. They were convicted of contempt and committed to jail, from which they petitioned the governor for pardon. The governor and his council adopted an order requiring the opinion of the justices of the Supreme Judicial Court on the question whether the governor had power to pardon such a contempt. Held, these contempts were criminal in their nature and offenses against the commonwealth within the meaning of offenses as used in the pardoning clause of the constitution, so that a pardon would be valid. In re Opinion of the Justices, (Mass. 1938) 17 N. E. (2d) 906

On Zurek's derivation of the Born rule

Recently, W. H. Zurek presented a novel derivation of the Born rule based on a mechanism termed environment-assisted invariance, or "envariance" [W. H. Zurek, Phys. Rev. Lett. 90(2), 120404 (2003)]. We review this approach and identify fundamental assumptions that have implicitly entered into it, emphasizing issues that any such derivation is likely to face.Comment: 8 pages; v2: minor clarifications added; v3: reference to Zurek's quant-ph/0405161 added. To appear in Foundations of Physics (Cushing Volume

ASEPS-0 Testbed Interferometer

The ASEPS-O Testbed Interferometer is a long-baseline infrared interferometer optimized for high-accuracy narrow-angle astrometry. It is being constructed by JPL for NASA as a testbed for the future Keck Interferometer to demonstrate the technology for the astrometric detection of exoplanets from the ground. Recent theoretical and experimental work has shown that extremely high accuracy narrow-angle astrometry, at the level of tens of microarcseconds in an hour of integration time, can be achieved with a long-baseline interferometer measuring closely-spaced pairs of stars. A system with performance close to these limits could conduct a comprehensive search for Jupiter- and Saturn-mass planets around stars of all spectral types, and for short-period Uranus-mass planets around nearby M and K stars. The key features of an instrument which can achieve this accuracy are long baselines to minimize atmospheric and photon-noise errors, a dual-star feed to route the light from two separate stars to two beam combiners, cophased operation using an infrared fringe detector to increase sensitivity in order to locate reference stars near a bright target, and laser metrology to monitor systematic errors. The ASEPS-O Testbed Interferometer will incorporate these features, with a nominal baseline of 100 m, 50- cm siderostats, and 40-cm telescopes at the input to the dual- star feeds. The fringe detectors will operate at 2.2 micrometers , using NICMOS-III arrays in a fast-readout mode controlling high-speed laser-monitored delay lines. Development of the interferometer is in progress, with installation at Palomar Mountain planned to begin in 1994