Effectiveness of Oral Contracts, Within the Statute of Frauds

In Morris v. Baron and Co., (House of Lords, 1917), 87 L. J. R. (K. B.) 145, plaintiff and defendant had entered into a contract of sale and plaintiff, as vendor, had delivered part of the goods agreed upon. Delivery of the remainder would have been a condition precedent to any recovery by the plaintiff. This contract, however, was followed by a second one, not in writing, whereby plaintiff was absolved from delivering the rest of the goods, but by which he agreed that he would deliver them if the defendant should so request. Thereafter plaintiff brought this action for the price of the goods delivered. The defendant set up, by way of counterclaim, plaintiff\u27s failure to deliver the rest of the goods as requested under the second contract. The court held that the second contract, although not in writing, absolved the plaintiff from having to deliver all the goods under the first contract, and therefore allowed him to recover for the goods delivered, but that, because it was not in writing, the defendant could not maintain his counterclaim for breach of it

Performance of an Existing Obligation as Consideration for a Promise

The dictum that if there be nothing in a rule flatly contradictory to reason the law will presume it to be well founded, and that the office of the judge is jus dicere and not jus dare , is responsible for much agony of construction and tortious logic on the part of courts torn by desire to evade it in the interest of modern ideas of right. There is a trilogy of accepted legal principles which it has been particularly difficult for the courts to adhere to in spirit or to repudiate in letter. They are the propositions, that for a promise to be enforcible a consideration must emanate from the promisee, that doing what one is already legally bound to do is not a consideration, and that one is legally bound to perform a contract according to its terms. In other words, doing what one has already contracted to do is not consideration for a promise made on condition or in contemplation of such performance. Under this rule, if A. has contracted to do something for B., his actual performance of that promise can not be consideration for a new promise by B. or a collateral promise by C. There is no lack of real application of the rule

Liability Without Fault

In Ives v. South Buffalo Ry. Co., 201 N. Y. 271, appeared, as a basis for the decision, the statement that When our Constitutions were adopted, it was the law of the land that no man who was without fault or negligence could be held liable in damages for injuries sustained by another. That is still the law. Mr. Justice McKenna has recently voiced the same idea. In his dissenting opinion in Arizona Copper Co. v. Hammer, 39 Sup. Ct. Rep. 553, he contends that the Workmen\u27s Compensation Act of Arizona is unconstitutional, because, It seems to me to be of the very foundation of right-of the essence of liberty as it is of morals-to be free from liability if one is free from fault. Even the majority of the court seemed inclined to justify their decision, that the Act was constitutional, by the argument that, as the liability under it would be known in advance, employers could protect themselves by reducing wages and increasing the selling price of the product, in order to allow for the statutory liability

Co-operation Between the Judiciary and the Police

The problem in which I have been interested is the reason for the great disproportion between the number of arrests by the police and the number of convictions resulting.... Professor Waite expresses his opinion that judges occasionally thwart police in their lawful activities out of distrust or ignorance of police practices by capriciously interfering with criminal procedure

Effectiveness of Oral Contracts, Within the Statute of Frauds

In Morris v. Baron and Co., (House of Lords, 1917), 87 L. J. R. (K. B.) 145, plaintiff and defendant had entered into a contract of sale and plaintiff, as vendor, had delivered part of the goods agreed upon. Delivery of the remainder would have been a condition precedent to any recovery by the plaintiff. This contract, however, was followed by a second one, not in writing, whereby plaintiff was absolved from delivering the rest of the goods, but by which he agreed that he would deliver them if the defendant should so request. Thereafter plaintiff brought this action for the price of the goods delivered. The defendant set up, by way of counterclaim, plaintiff\u27s failure to deliver the rest of the goods as requested under the second contract. The court held that the second contract, although not in writing, absolved the plaintiff from having to deliver all the goods under the first contract, and therefore allowed him to recover for the goods delivered, but that, because it was not in writing, the defendant could not maintain his counterclaim for breach of it

The Prevention of Repeated Crime

Though this study is concerned fundamentally with the prevention of crime, it deals only with that part of the field wherein prevention of further crime is sought through treatment of known criminals. The whole field of crime prevention is, of course, much wider than that particular part. With a reasonable degree of logical distinction, it represents five major divisions of particularized interest. The first involves the question of what activities are to be considered as crimes and ought, as such; to be prevented. The second division assumes that a crime has been committed and covers the various activities by which responsibility for its commission is fixed upon a particular individual. The third and fourth divisions assume certain activities as definitively criminal and involve the procedures by which organized society seeks to forestall their perpetration. This prophylactic, preventive activity is of two essentially different types. One type seeks to prevent crime by correcting or alleviating the social and economic conditions which cause crime through their pressure upon the individual. Of this type are efforts toward slum clearance, unemployment insurance, community facilities for lawful expenditure of surplus energies, prohibition of the manufacture or sale of intoxicating liquors. The other type of prophylactic activity, which may be called the fourth division of preventive effort, includes the preventive measures designed to operate upon the individual himself, in the hope of guiding his reactions to social and economic conditions into safe channels, or of so controlling his person in one way and another as to render his reactions harmless. This fourth division may in its turn be divided into two. One comprises all such efforts-trade-training, crime preventive medicine and surgery, teaching of temperance, education, instilling of fear-as are directed toward the group as a whole, without special regard for those who have already offended against the law. The other division comprises such activities as may be directed particularly toward prevention of repeated criminality on the part of persons who have already offended one or more times.It is this latter problem, this fifth division of crime preventive activities, with which this discussion is concerned-the problem of preventing repeated crime through treatment of the known criminal himself.https://repository.law.umich.edu/michigan_legal_studies/1022/thumbnail.jp

The Patentability of a Mental Process

The fact of possession has been so correlated with the theory of property that it is difficult to dissociate ownership from the possibility of physical possession. One finds that the average lawyer, even though he may defind a right in rem as a right enforcible against any person, is extremely apt, unless after especial thought, to explain that it is enforcible against anyone because it pertains to a thing capable of physical possession and control, a thing that could be actually sequestered, from all other persons. Not at all infrequently the term property has been judicially stripped even of its significance of a right, and confined to the objective material thing to which the right might apply. As a matter of fact, comparatively few things have ever been legally recognized as the object of property which have not been tangible. The right to one\u27s reputation, and, more lately recognized, the right to privacy, for instance, are rights in rem, although incapable of tangible possession. The right to have a contract performed without interference by a third party and, it has been said, the right created by assignment of a chose in action, are equally rights in rem. These, and other res, are mere concepts, in no sense whatever corporeal, although the rights concerning them so appertain to the particular person in whose favor they exist as to be truly property rights, and correctly said to be owned by him. But the whole number of these is small compared to the quantity of tangible things which are the subject of property, and even these rights are not usually spoken of, even judicially, in terms of property, as are those pertaining to tangible things

Search and Seizure - Suppression of Evidence - Judicial Attitude Toward Enforcement

The numbers game is today the most profitable of the wide-spread gambling rackets. And like all organized gambling it is a focal source and the financial support of far more serious crimes. At the same time it is one of the most difficult forms of crime for the police to control. It needs no costly installations which the police can confiscate or destroy. Unlike house gambling it cannot practically be harassed out of business. It can be operated by one man alone, if he survives failure to pay off for lack of capital; or by a syndicate with capital enough to hire runners. All that such operators need is some sort of headquarters to which pick-up men can report and where the bookkeeping can be carried on. This headquarters may be someone\u27s private house, or merely a rented room. In consequence, the only possibility of holding such gambling in check is through discovery and punishment of its pick-up runners, or fortuitous convictions of the more important operators. And even this latter has been made almost impossible as a practical matter by judge-made limitations on police invasion of a criminal\u27s privacy

A Definition of Consideration

COMPOSING general statements of law is at best a didactic pursuit rather than a practically useful one, however agreeable an occupation it may be. The particulars of the past are not evaded by statement of their essence, and courts tend to guide their rulings by analogy to specific precedents in preference to rules educed therefrom by however studious laymen. And, on the other hand, the general expressions and definitions, so called, formulated by courts themselves, often hastily and hap-hazardly, which have been followed by other courts, do more to confuse the law, and confute its real precision of statement, than any other one factor. Comparatively little conflict exists among adjudications; most of it is between decisions and broad expression. Often when a result has been reached in the nomenclature of a particular rule, the truth is that the rule has been itself selected to fit the result desired, and terminology has been perpetuated in use where it has no real application whatever, in respect for the tenuous tradition that courts do not make law. This is undoubtedly the case in judicial findings as to consideration in contractual agreements

Caveat Emptor and the Judicial Process

There are many issues in the law whose solution has an essentially economic cost. There is one issue in particular, however, of immense and most important economic effect, which has been decided and re-decided, but which, strangely enough, the courts never seem to have considered on the merits of its economic relations and effects.... ...[O]ught one to be permitted safely, if honestly, to intrust possession of goods to others; or should one have power safely, if honestly, to buy goods from those in possession...