Exhibitors Herald World (Oct-Dec 1929)

October 26, 1929 EXHIBITORS HERALD-WORLD 121 LAW FOR EXHIBITORS IN NEW DECISIONS For illustration, in Rowland & Sons v. Bock (148 S. E. 549), a tenant sued a landlord, proving that although the lease contract contained no stipulation regarding repairs, the landlord had verbally promised to keep the premises in good condition. In commenting upon the law, the court said : "There is no question as to the correctness that an independent contract to make repairs to a rented building, where the lease contract is silent as to repairs, may be established." Expenses for Improvements Not Income Tax Expense In George H. Bowman Company v. Commissioner of Internal Revenue (32 F. [2d] 404), it was disclosed that a theatre owner rented a building from month to month and to better adapt the building for the intended purposes, he installed certain improvements consisting of fire doors, partitions, and plumbing, at a cost of $7,084.69. The theatre owner in making his yearly return of income and profits tax deducted the total cost of the imtheory that the improvement represented a provements as busii. ess expense. The commissioner disallowed the deduction on the capital expenditure which could be recovered only by an annual deduction for depreciation extending over the useful life of the property. The theatre owner contended that since he had rented the building without a lease, the expenditures could not be calculated over a greater period than a single year because he might not remain in occupancy of the building. However, the court held the expenditures must be recovered by small annual deductions for depreciation extending over the life of the building. Owner of Several Theatres Not Monopolist It is important to know that a person cannot be prosecuted for violating an antitrust law on the grounds that he owns all of the theatres in a city. For instance, in Good v. Dickinson (278 Pac. 730), it was disclosed that two persons entered into a contract by the terms of which one agreed to build a theatre building and the other agreed to lease it for ten years. The latter assigned his lease to a person who owned several theatres. The owner of the property filed suit, contending that the purchaser of the lease had violated the monopolistic laws, because "it is and has been at all times his announced, avowed, and determined purpose to obtain and preserve control of the theatre business in the city to the end that he may entirely stifle and prevent any and all forms of competition in that business." However, the court held the theatre owner not liable, saying: "A trust is declared to be 'a combination of capital, skill, or acts, by two or more persons, firms, corporations, or associations of persons, or either two or more of them, for either, any or all of the following purposes,' . . . The allegation shows that the statute referred to was not violated, for the reason that there was no combination of capital, skill, or acts by two or more persons or corporations, or associations of persons, for the purposes to which reference is made." Bank Liable for Filled-In Checks It is well known that banks are liable for payment to a depositor of money paid out on forged checks. However, few persons realize that a depositor may recover from a bank money paid on altered or filled in checks previously signed by the depositor, providing the bank should have discovered the discrepancy by the application of ordinary care. For example, in Gutfreund v. East River {Continued from page 36) National Bank (167 N. E. 171), it was disclosed that a bookkeeper was authorized to write out checks for payment of merchandise and present them to his employer for signature. Frequently he would make out checks to fictitious persons and attach them to fictitious bills, and after obtaining his employer's signature, he would endorse the fictitious names of the checks and present them to the bank for payment. When the employer discovered the bookkeeper's fraud, he sued the bank for recovery of the money thus paid, on the contentions that the bank employes were negligent in failing to observe the suspicious circumstances of the bookkeeper cashing the checks. The bank attempted to avoid liability on the grounds that a financial institution is required only to know that the depositor's signature is genuine. However, the court held the bank liable, stating the following important law: "The depositor in drawing checks is bound to take usual and reasonable precautions to prevent forgery, although he is not required so to prepare the check that no one can successfully tamper with it. The drawer of a check may be liable where he draws the instrument in such an incomplete state as to facilitate or invite fraudulent alterations. . . . If the negligence of the depositor enables the clerk to alter the check, and so causes the bank to make payment on a forged order, the depositor is estopped from disputing the authority of the banker to pay. ... A bank is bound by contractual obligation to the exercise of due care in the payment of checks bearing the genuine signatures of its depositors. Its negligence defeats the defense of negligence on the part of the depositor." When Employer Is Not Liable for Injury The law is well established that a negligent theatre owner is liable in damages for injuries sustained by an employe who is working within the scope of the employment. But if the employe was aware of the dangers and sustained the injury as a result of his own carelessness the theatre owner is not liable. For illustration, in Blair v. Kinema Theatres (277 Pac. 398), it was disclosed that a theatre employe sustained serious injuries while ascending to the roof of the theatre for the purpose of repairing a defective electric sign. On the center of the roof was an unguarded ventilating fan in which the employe accidently put his hand. The injured employe filed suit against the owner of the theatre to recover damages contending that the latter was negligent in failing to provide an adequate guard or safety device on the fan. However, since it was proved that the employe was aware of the location of the dangerous fan, the theatre owner was held not liable, and the court instructed the jury in the following language : "If you find that plaintiff (injured employe) climbed or attempted to climb up the steel bars in front of the fan-house in the darkness on the night in question, and that while climbing he slipped, causing the injuries complained of, and if you find the plaintiff knew or by the exercise of reasonable care should have known of the existence and operation of the fan and of the dangers attendant thereof, then he assumed the risk and all the dangers incident to such climbing in the proximity of the fan, and if such was the proximate cause of the injuries, plaintiff cannot recover." What Are Legal Fixtures? Generally speaking, a fixture is an article which was a chattel, but by being physically annexed or affixed to realty, became accessory to it and a part and parcel of it. However, it is important to know that under certain circumstances personal property or chattels may be permanently attached to real property and yet not be a legal fixture. For instance, in Williamson v. Pye (18 S. W. [2d] 707), it was disclosed that a person obtained permission from a landowner to build a house on the property. Twenty years later the builder sought to remove the structure. The landowner refused to permit him to do so, contending that the house was a legal fixture and therefore it was annexed to the real property. However, the court held the builder of the building entitled to remove the house, stating the following important law : "The improvements belong to the owner of the land, when made under a stipulation to this effect. But where an improvement, such as a building, is put upon the land of another, by his permission, under an agreement or understanding that it shall belong to the occupant or may be removed at any time, it does not become a part of the real estate but continues to be personalty, and the property of the person making it. If the improvement is made by the owner's permission, an agreement that it shall remain the property of the person making it is implied in the absence of any other facts or circumstances showing a different intention." Contract by President Binds Corporation Generally speaking, a corporation is bound by any and all contracts signed by its president, particularly where such contracts relate to corporation business. For example, in Browne-Brun Company v. Hinton (18 S. W. [2d] 369), it was disclosed that a corporation employe owed the corporation a sum of money as advanced salary when he resigned. The president of the corporation signed a release. Later the corporation sued the employe to recover this amount. However, since it was shown that the president was informed that the employe owed the corporation the money when he signed the release, the court held the corporation not entitled to recover from the employe, saying: "Browne was president and general manager of appellant (corporation). This gave him authority to execute contracts which were necessary to conduct the business of appellant. The release was a contract which was necessary to carry on the business, and Browne had the authority to execute it." Compensation Laws Cannot Be Waived It is well to know that in the majority of states, a theatre owner is not permitted to settle a claim for injuries with an injured workman or his dependents, unless the terms of the settlement conform with the provisions of the workmen's compensation laws. For illustration, in Comingore v. Shenandoah Company (226 N. W. 124), it was disclosed that the dependents of a deceased workman who was killed while performing his regular duties, compromised with the proprietor for $4,500. This settlement was approved by the industrial commission. However, in view of the fact that this amount was less than that specified in the compensation laws, the higher court held the agreement void, stating the following important law : "In law, no contract, rule, regulation, or device whatsoever shall operate to relieve the employer from any liability created by the Workmen's Compensation Act. ... It is further provided that no employe or beneficiary shall have the power to waive any of the provisions of this act in regard to the amount of compensation which may be payable to such employe or beneficiary, to whom the act applied. . . . The Industrial Commissioner has power to approve an agreement only when the terms of such agreement conformed to the provisions of the act."