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It is suggested that an absolute discretion should be given to a court to permit or forbid the putting of any particular question. We agree that in any case the permission of the judge should be obtained before cross-examination to the credit of a witness is allowed at all. If a question is put and not allowed to be pressed the object of the cross-examination is in a measure attained. It ought, in all cases, to be a question for the judge whether the evidence of a witness is of such a kind that his credibility ought to be attacked. A further suggestion made by the writer in our contemporary is, that a witness should not be allowed to decline to answer on the ground that he will thereby criminate himself. This is a wide proposition, which we shall not at present discuss.
Carrier's LIABILITY: LIVE STOCK. - There will, in all probability, never be an end to the puzzling questions which arise as to the legal liability of railway companies and other carriers for injuries sustained through the negligence of the carriers by the persons and animals which they undertake to carry. There are few subjects on which a greater diversity of opinion has been entertained and expressed by our various common-law courts, and this notwithstanding the often repeated dictum that the question of negligence or no negligence is one for the jury.
The case of Gill v. The Manchester, Sheffield, and Lincolnshire Railway Company (28 L. T. Rep. n. s. 587), in which the court was empowered to draw inferences of fact, involved a question of liability on which the members of the Court of Queen's Bench were unable to agree. The plaintiff delivered a cow to the defendants at Doncaster, to be carried by the defendants' railway to Sheffield. The contract which the plaintiff had to sign contained a stipulation that “the animal named on the other side was to be conveyed only on the conditions mentioned upon the ticket received by the undersigned from the company and not to be insured.” And one of the conditions named on the ticket was that the railway company would not be responsible for any loss or injury to any horse, cattle, sheep, or other animal, in the receiving, forwarding, or delivering, if such damage be occasioned by the kicking, plunging, or restiveness of the animal.” When the train arrived at Sheffield, the cattle trucks were drawn up to their proper place, by the side of the cattle yard, and the plaintiff, who had to go to the office and sign a receipt for the cow before he was permitted to take it away, told the porter not to let the cow out of the truck until he came back. On his return from the office he observed that the porter was unfastening the truck. He called out to him, “Don't let the cow out: if you do, she'll go slap at you.” The porter replied, “She'll be all right when she gets out; close the gate," and proceeded to unbolt the door. The plaintiff thereupon left the yard, saying, “If you do that, I shall go outside.” The cow, being let out, began to run about the yard and towards a spot where she might have got on to the line. Being driven back by some persons who were there, she ran up to the pig-pen at the other end of the yard and leaped over the rails on to the line, where she was run over and killed by a passing train. Under these circumstances, was the company liable for the loss?
On the answer to this question the court was unable to agree. Mr. Justice BLACKBURN and Mr. Justice Lush were of opinion that, as the railway porter could, without loss or inconvenience to the company or any other person, have kept the cow in the truck for the reasonable time requisite to soothe her, so that she be driven safely home, he was bound to do so, and that, as the loss of the cow was attributable to his letting her at large, the railway company was liable for the loss. Mr. Justice MELLOR considered that the loss of the cow was wholly attributable to her character and condition, and not to any negligence on the part of the company; and that the true effect of the contract was to take ordinary and usual and reasonable means of delivering cattle, sufficient and reasonable for cattle in their normal condition ; but that the railway company were not, under the contract in question, obliged to depart from such ordinary, usual, and reasonable means, because the cow in question was restive, excited, and unfit to be delivered. His lordship considered that the business of the company should not suffer indefinite delay and inconvenience because the plaintiff had chosen to send a cow in an unfit condition; and that, according to the plaintiff's contention, the reservation in the contract, instead of relieving the company and restricting their liability, would positively extend it, and, instead of expressing that the company would not be liable for injury arising from the restiveness of such animals, would be construed to mean that "restive cows should be treated with unusual care.” The question involved is a very nice one, and in all probability the minds of the profession will continue in doubt as to the side in favor of which the balance of argument inclines. — The Law Times.
For a full understanding of the subject, it would seem that the condition of the cow and its causes should be stated considerably more in detail. It is difficult to guess from the statement how much of the trouble arose from the “ character” of the animal, and how much from her immediate experience.
CONTRACT BY LETTER.
EDITORS OF THE Law Review.
GENTLEMEN, — In connection with the instructive discussion in the April number of the “ Law Review,” of contracts made by letter, it may not be out of place to call attention to some other points in this interesting subject, which I have not seen fully cleared up. I believe the theory sound that contract relations in this class of cases should begin with the delivery, not with the posting, of the letter of acceptance. To do full justice to that position, however, and place the decisions in their true relation to each other and to the general inquiry, I think a further distinction must be made.
In the first place, neither Tayloe v. Merchants’ Ins. Co., 9 How. 390, nor Mactier v. Frith, 6 Wend. 103, was a genuine case of contract by letter. In the former case, it will be remembered, the suit arose from the burning of the plaintiff's house, while his letter, accepting the offered terms of insurance, was on its way to the defendants' agent: these facts alone would make the case, as it seems to have been taken by the court, one of mutual promises. But there was another essential circumstance. By the express request of the agent, the plaintiff had enclosed his check for the amount of the premium. The check being good, this was clearly payment, as the court had occasion to hold, in another part of the case. The contract was therefore fully performed on the plaintiff's part, at the time of the loss. His expression of assent was not material. The nature of the transaction and the terms of the agent's letter show that a simple enclosure of the check, without other answer, would have been sufficient. The defence which the court overruled involved the position that, after entire performance by the second party of the terms of the proposed contract, the first party might still be free. The judgment is therefore equally sound upon any view of the question unnecessarily gone into by the court, of the effect of posting a message of acceptance. That question can properly arise only in contracts executory (composed purely of mutual promises). In the above case, as in all of its kind, the contract was completed by the performance of the terms of the offer. There was no occasion for any promise. The message sent by the plaintiff was not of the nature of a promise, but of a letter of advice or information, such as prudence or courtesy may naturally dictate in such cases, though the contract is good without it. In brief, the contract sued on was not executory, but unilaterally executed, or rather (to mark the difference of the two classes, in their origin) it was a contract arising out of the performance - not the promise — of the second party. (See Leake on Contracts, pp. 23, 313, as to “contracts arising upon executed considerations.")
This case illustrates an essential distinction, repeatedly ignored in the jumble of principles which the decisions exhibit. The legal situation is altogether different from that presented, for example, in McCulloch v. Eagle Ins. Co., Mactier v. Frith is another instance of the same sort. There, however, the judgment was evidently based, in part, on the execution of the contract by Mactier's acts. (See, in particular, opinion of Senator Maynard, p. 141; also remark of Denio, J., on the case, in Vassar v. Camp, 1 Kernan, 441.) Duncan v. Topham, 8 C. B. 225, and Levy v. Cohen, 4 Geo. 1, were somewhat analogous cases. Brisban V. Boyd, 4 Paige, 17, was a different case, and is not in point.
This distinction bears upon the cases which have frequently arisen in England, in connection with the allotment of shares in joint-stock companies. That the corporate vote, and the registry which constitute allotment, are at least a part performance on the side of the company, seems to be clear upon general principles. (See cases collected in Cox's Law of Joint Stock Companies, p. 80, &c.) The position of things as between the applicant and the company, after allotment, therefore resembles that resulting from an executed order for goods (Duncan v. Topham); an executed request for payment of an insurance premium (Tayloe v. Merchants’ Ins. Co.); an executed invitation to a partner in trade to transfer a joint adventure to his own account (Mactier v. Frith). It seems to be settled, however, that a notification of the allotment must be sent to the shareholder within a reasonable time, as a condition precedent to his liability. This does not alter the necessary character of the notification. It is still, in its nature, a letter of advice. The difference between such a notification, following acts of performance, and the promise or letter of acceptance, which completes an executory contract, is so marked that it hardly needs dwelling upon. In one case, A. and B. contract by mutual promises, and the position here taken is that both parties must be in possession of each other's promise before the contract arises. In the other case, the contract arises with B.'s performance of A.'s offer, and there may then be a further question whether B. ought not to send word of the fact to A. In the class of cases just referred to, it is judicially held that he ought. What is the position of the parties at this stage? A. cannot retract, for B. has bound him by acting upon his offer. He is nevertheless only conditionally bound, for if B. fails to notify him, he will be discharged. This notice then, though a condition precedent to A.'s liability, is a condition subsequent to the contract. It comes to very much the same thing to suppose that the notice was within A.'s contemplation, and bargained for as a condition of his promise. B. has partly performed at all events. The letter of allotment cannot be taken as a promise. The contract is not executory. If this is an accurate statement, the treatment of Harris's case (L. R. 7 Ch. 587) was misconceived. The same may be said of the quite opposing case of British f. Am. Tel. Co. v. Colson (L. R. 6 Ex. 108), and of other decisions. The shareholder could not retract after allotment, and could only be released by the company's laches in notifying him. Whether posting is constructive notice, or whether the company must see that the shareholder actually gets the letter, is simply a question of mercantile and
legal policy, not unlike one already settled as to the duty of the holder of a dishonored bill toward the parties (Stocken v. Collin, 7 M. & W. 515). This view, of course, depends on the effect given to allotment. I do not see how this can be regarded otherwise than as an act of performance. Possibly upon the cases, however, it may be doubted. (See Hebb's Case, L. R. 4 Eq. 9; Gunn's Case, L. R. 3 Ch. 40.) At all events, whether or not, in a contract arising with performance, the duty of giving notice that the offer has been acted upon is discharged by posting the notification, is a question by itself, not affecting the argument that, in contracts where the only elements are mutual promises, the promise of B. is exactly the same sort of thing as the promise of A., and whatever is necessary to give effect to the one must be necessary, mutatis mutandis, to give effect to the other. If not, “promise" has two different meanings in law. But the precise likeness and equality of the two parties' position is lost in the use of such words as “ assent” and “acceptance." As applied to executory contracts and in the common law, " acceptance" seems simply to mean the making of the counter promise on which the first promise (the offer) is conditioned. When this is done, the contract is completed, and in no other way can it be completed. Any extra meaning the word may suggest may therefore be left out of account in this connection, as metaphysical surplusage, helping only to make confusion. A promise, ex vi termini, implies the action of two minds, or, in other words, the knowledge of the promisee. A contract is binding, “ on account of the expectation excited in the promisee" (Austin on Jur., notes following Sect. LVII., where he defines a contract as a promise, adding that in English law the term is often limited to mutual promises). But how can an undelivered message excite expectation? Assuming the accuracy of the remark quoted, the promise of the acceptor not only does not take effect, but cannot be said to exist until his correspondent knows of it. If this is the case, a fundamental principle is lost sight of in the doctrine which the courts seem to have been hitherto disposed to favor. For this the word above referred to must perhaps be held responsible, to a great extent. “ Acceptance" is often used to signify the establishment of the contract by performance, as well as by promise (as by Cresswell, J., in Harvey v. Johnston, 6 C. B. 304: “If a man writes, send me such and such goods and I will pay for them, is not the sending the goods, without more, an acceptance of the offer?” The word covers two different meanings, and thus, in one application, suggests the presence of an element which exists only in the other. The essence of the common law executory contract is the knowledge or expectation of each promisee (each party). Both stand alike.
The word " notice" is another specimen of ambiguity. Its use in describing the duty of parties in certain cases, e. g., the holder of dishonored paper, is confounded with its more accurate and usual meaning (as is submitted) of knowledge (of the recipient), as where A. in sending an offer stipulates for o notice of acceptance” from B. (Compare Lord Cottenham's remarks in Dunlop v. Higgins, 1 H. of L. C. 381, and comments thereon in British 8. Am. Tel. Co. v. Colson; also Vassar v. Camp, 1 Kernan, 441, a case very open to criticism.) What is said above as to letters of allotment bears on this point.
Perhaps the most obvious reply to the above argument concerning “ acceptance” is in the theory that posting a letter of acceptance is constructive de