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Art. V. —tin Essay on the Doctrine of Contracts; being an Inquiry how Contracts are affected, in Law and Morals, by Concealment, Error, or inadequate Price. By Gulian C. Vebplanck. New-York, 1825. 8vo. pp. 234.
The learning and industry of the American lawyer have been repeatedly exercised in the republication of professional works, with such additions as were proper to render them more useful to the American student; but an original treatise on the science of jurisprudence is a rare occurrence with us. It is a field on which genius and knowledge may be profitably employed; but it must be done with infinite caution and discretion. The peculiar situation of our country; the nature of our government; the habits and manners of our people, certainly require, and have already induced, many changes in the laws which govern in Europe; and particularly in the kingdom whence we are immediately derived. Untrammelled by the usages and prejudices of ages, we are able to receive improvements, which would not be admitted in older communities. In Pennsylvania, various beneficial alterations have been made, not only in the practice of the courts in the administration of the laws, but in some essential principles of jurisprudence. We have gone on slowly and cautiously, relying on long experience, not sudden emergencies or brilliant speculations, for our guide, and the result has seldom disappointed the anticipation.
On the other hand, nothing can be more unwise and dangerous than a wild, ungoverned spirit of innovation in the law. We must not break down established principles, long acted upon as land-marks of right, to indulge fanciful theories; much less to exhibit a rash courage of affected independence, or a foolish ambition to show we are all-sufficient for ourselves. It is the great privilege of a new people to profit by the experience of those who have gone before; and it is their highest wisdom to make use of it without either a slavish, indolent subserviency, or a reckless rejection of its lessons. We should be particularly vigilant and cool, when we would attempt any change in the English law. It is not only woven in all our institutions and systems of jurisprudence, but may be said to be a part of ourselves. On a question of property, we can hardly think out of it; to demolish it would break up the very foundations of society. Some inflated, dreaming politicians, build beautiful systems in their visions, and believe that, if all we have were swept away, they would produce a more admirable substitute. But let them beware: and let us beware how we listen to them. As easily could the pyramids of Egypt be replaced by a few modern bricklayers, as the common law of England by such jurists. We would not touch an important principle that has long been a rule of decision, without the clearest demonstration of a general and essential advantage from the change.
It is not enough to show, by actual or supposed cases, that the existing rule may sometimes fail to do complete justice; or that the proposed substitute would meet the exigency of such cases. Nothing could stand before suclra principle of destruction. No legislator ever expected to give a law which would exactly fit itself to every transaction that rises every hour in the diversified business of men. The laws of nature do not possess this universal beneficence. The genial shower that fertilizes one man's field, may injure another. The winds, without which the atmosphere would become a stagnant, pestilent element, sometimes tear up the lofty forest, and overturn the habitations of men, burying navies in the vast deep. The rains of heaven, without which famine would desolate the earth, occasionally swell the floods until they spread devastation and death over extended districts. Assuredly we will admit, that, if it were possible to render exact justice in every case of litigation, it would be a perfection in the law "devoutly to be wished;" but this is so far from obtaining, that we have strong doubts whether precise and full justice, as between the parties, is ever reached in any case. We do not now allude to the most simple and unembarrassed adjudications; but to causes of some contradiction in their evidence, and complication in their circumstances. How seldom does such a case come before the tribunal which is to decide it, as it really occurred between the parties. Witnesses die or remove; the memory of those who remain is defective; expressions are forgotten or misplaced; the meaning is sometimes mistaken by the manner of repeating them. All these things—to say nothing of wilful misrepresentations and fraudulent tricks, not unfrequent—produce the most material changes in the transaction they pretend to represent; but from such sources must the knowledge be derived that decides the right. Nay, further, when the whole evidence of the disputed contract consists of written documents, it is often found, when they come to be closely scrutinized, that from some careless omission or loose expression; or by passing through the crucible of construction and criticism, they receive an interpretation never understood by those who used them. Yet such is, and must be, what is called the administration of justice among men. Three-fourths of our differences and disputes are made up of mistakes and misapprehensions, from haste or confidence or carelessness in making bargains, and it would be idle in the law to attempt to reconcile or correct them. The difficulties are often intrinsic and insuperable. The law does enough when it settles them, with a reasonable and practical regard to the circumstances of the case, by rules just and equitable in their general application to similar transactions.
These introductory remarks appear to us to be a groundwork on which to proceed to the consideration of the "Essay on the Doctrine of Contracts."
The decision of the Supreme Court of the United States, in the suit of Luid'law v. Organ, in February, 1817, was the immediate occasion of the treatise before us. The consideration of this case led the author into a more extended examination of the subject; and finally produced the present work, in which he institutes a comparison between the law of sale, as established by the common law of England, and the Roman or civil law; and, without being willing to adopt all the principles of the latter, manifestly prefers it to the former. Indeed, he is not sparing of sharp censure upon the one, while on the other he lavishes adulation and applause. We propose to take a view of the case of Laidlaw v. Organ, with the author's remarks on the judgment of the court; of his objections to the common law of buying and selling, and the merits of his substitutes, in which he endeavours to compound a tertium quid. We hope and intend to perform this duty with the candour and justice which are due to the office of a critic; but with personal feelings of kindness and respect for the author, and a sincere pleasure at seeing his learning and talents employed on a subject at once elevated and useful. The example and wondrous success of men of genius and education, who have wholly devoted themselves to the amusement of the world, seems to have turned every hand that can hold a pen, in that direction; and disquisitions upon deeper and more useful matters, have been either abandoned, or left to inferior minds. When princely fortunes are accumulated in a few years, by brilliant poems and popular romances, who will think of writing books on jurisprudence, which probably will attract but little attention, and wind up, in an account between the author and his publisher, with a mortifying and embarrassing balance against the former?
The case of Laidlaw v. Organ, was, originally, tried in the District Court for'the Louisiana district . The facts, as they appear on the record transmitted to the Supreme Court, were as follow: In the night of the 18th of February, 1815, three persons brought to New-Orleans, from the British fleet, the news of the signing of the treaty of peace at Ghent. Mr. White, one of these persons, published this news, in a handbill, on the next morning, being Sunday, and it was made public by eight o'clock of the morning of that day. This news was communicated on Sunday morning, by one of the three gentlemen who brought it, to Mr. Organ, the plaintiff in the suit below, and purchaser of the tobacco in question. Mr. Organ called on Francis Gerault,*a partner in the firm of Laidlaw & Co., soon after sunrise on Sunday morning, before F. G. had heard the news. F. G. asked him if there was any news which was calculated to enhance the price or value of the article about to be purchased—the buyer was silent; the purchase was made; the bill of parcels delivered between eight and nine o'clock, and the article immediately rose from thirty to fifty per cent. The next day, F. G. was applied to for an invoice of the tobacco, when he made no objection to the sale, but promised to deliver the invoice in the course of the day. It also appeared that the parties had been bargaining for this tobacco the preceding evening. It is obvious there are circumstances in this transaction, which, on the most liberal equity, would cut the seller off from any strong pretensions to complaint and redress. Men must do something for themselves in their dealings, and not throw all the consequences of their blindness and folly on the law. It is impossible to take care of such dolts in any other way than by treating them as idiots and children, incapable of making any contract. There had been a bargaining the preceding evening for this tobacco, without agreement; and the next morning, soon after sunrise, and on Sunday too, the purchaser comes and is ready to conclude the purchase. He is asked the direct question, whether there is any news to enhance the price of the article, and he makes no answer to this most pertinent inquiry. A most significant silence is observed, which would have put a man of common discretion on his guard, and induced him to pause, and, at least, step into the street and seek the information about which his purchaser was so marvellously dumb; but this vender, with so much to excite caution and distrust, even in a dull and unsuspicious mind, runs headlong into the contract, and then calls upon the law to draw him out of the consequences of such gross negligence. On the next morning, when fully acquainted with the treaty, and all its effect upon his tobacco, he makes no complaint of his bargain, no objection to complete it, but gives a full ratification to all he had done. His moral sense did not suggest to him that he was wronged; he thought it an ordinary chance of trade, which had turned against him. It was for a doctor of the civil law, with a conscience more sensitive, or better trained, to discover the iniquity of the transaction.
We have recapitulated these circumstances, that the whole case may be known to the reader; but, at the same time, acknowledge they do not enter into the decision given by the Court . The Chief Justice states a broad and clear principle, which, in the opinion of the Court, was the law of the land in that and similar cases. Judgment was delivered in these words:
"The question in this case is, whether the intelligence of extrinsic circumstances, which might influence the price of the commodity, and which was exclusively in the knowledge of the vendee, ought to have been communicated by him to the vendor? The Court is of opinion, that he was not bound to communicate it. It would be difficult to circumscribe the contrary doctrine within proper limits, where the means of intelligence are equally accessible to both parties. But, at the same time, each party must take care not to say or do any thing tending to impose upon the other." •
Was this a just and legal judgment? We cannot doubt it . It must be observed, that this case is not of that class which falls under the rule of "caveat emptor," as applied to any defect of quality in the thing sold, known to the seller and unknown to the buyer, or unknown to both; nor yet to that class in which the civil law gives redress on the ground olinadequacy of price. It is a mixt case of concealment and inadequacy of price; that is, of inadequacy of price occasioned by the concealment of a fact, which, if known to the seller, would have enhanced the price. The concealment would have been no cause of complaint, if it had not affected the price the latter would have demanded for the article; nor would the subsequent increase of price have afforded a claim for redress, if the circumstance which caused the increase had not been known to the buyer and concealed by him from the seller.
We recur to the case. Nobody appreciates and reverences the "logical and original mind" of the Chief Justice more than we do; nor estimates more highly the invaluable benefits these United States have derived from it; and it is not a little in favour of the rule the Chief Justice has adopted, without reserve, that such a mind has yielded full assent . It would indeed, as he says, "be difficult to circumscribe the contrary doctrine within proper limits;" and in these few, but pregnant words, he exposes the inconvenience, instability and danger of referring such questions to what Mr. Verplanck calls the "moral judgments of men;" or "their unstudied impressions of right and