a maritime tort when the relation existing between the owner and the master and crew of the vessel at the time of the negligent collision, was that of master and servant," and cites the same two cases. The last statement seems to be a correct and accurate statement of the law, and was all that was necessary for the decision of that case. The first seems objectionable, because it includes cases other than collision, and so far as it does so is only a dictum, because the case was one of collision and it rests the liability upon respondeat superior, which seems, as shown above, to be a mistake. The cases cited do not support the proposition for which they are cited: the first being a case of the owner's own negli gence, and the second being decided wholly on the question of jurisdiction and dismissed because the tort was not maritime. It seems likely that the second statement was what the learned justice intended to express when he wrote the first. Certainly the first statement cannot be reconciled with Judge Swayne's statement as to the position and powers of the master under the general maritime law quoted above from the case of The China, a well-considered and leading and often cited case by the Supreme Court upon this subject. There are some interesting remarks bearing upon this subject in the February number of the Law Magazine and Review, at pp. 209-211, discussing the recent Liverpool Conference of the International Law Association, and showing the diversity of the laws of the different countries in this respect, from which it would appear that the rules of the American admiralty law as expounded up to date by the Supreme Court of the United States are a just and moderate mean, in regard to the liability of ship-owners in actions ex delicto. HARVARD LAW REVIEW. Published monthly, during the Academic Year, by Harvard Law Students. THE COAL ROADS DECISION. 35 CENTS PER NUMBER. WM. HALL BEST, Treasurer. PHILIP L. MILLER, JAMES W. MUDGE, GEORGE A. SHURTLEFF, It has been remarked many times that the common law may be relied upon to meet, by the continual development of its fundamental principles, the complex conditions created by the constant evolution in the industrial organization. One of the most striking of modern instances of this capacity of growth in the common law is the astonishing progress in the working out of the detail of the exceptional law governing the conduct of public callings. So dependent are all commercial activities upon adequate service by the great companies which conduct these public employments, that the general situation demands the stern code that all who apply shall be served with adequate facilities for reasonable compensation, and without discrimination. Enforcement of all branches of this law is necessary at all times; but the commercial community is most interested to-day in the prevention of personal discrimination. It is established now, past all qualification, that it is the duty of the common carrier to serve all alike who ask the same service, so that all shippers from a given point may compete with each other in distant markets upon equal terms. For it is now recognized that the slightest differences in the rate may result in the long run in building up one concern and in ruining its rival. This public condemnation of personal discrimination must have influenced the judges in coming to the striking decision handed down a few weeks ago by the United States Supreme Court. New York, New Haven, and Hartford Railroad et al. v. Interstate Commerce Commission, U. S. Sup. Ct., Feb. 19, 1906. The complaint in that case was filed by the AttorneyGeneral under the provisions of the Interstate Commerce Act which forbid personal discrimination, charging that traffic was being moved at less than the published rates. It was shown that the Chesapeake and Ohio Railroad had sold to the New York, New Haven, and Hartford Railroad sixty thousand tons of coal to be delivered to the buyer at $2.75 per ton; and it was averred that the price of the coal at the mines where the Chesapeake and Ohio bought it and the cost of transportation from Newport News to Connecticut would aggregate $2.47 per ton, thus leaving to the Chesapeake and Ohio only about twenty-eight cents a ton for carrying the coal from the Kanawha district to Newport News, whilst the published tariff for like carriage from the same district was $1.45 per ton. Upon these facts the United States Supreme Court decided that there was in effect the evil of personal discrimination against other shippers in this arrangement; and the final decree therefore was that the Chesapeake and Ohio was perpetually enjoined from taking less than its published tariff of freight rates, by means of dealing in the purchase and sale of coal. The paramount duty of the common carrier is to the public; it must do nothing inconsistent with that obligation; and to carry its own goods at lower rates than it carries those of the shipping public will enable it to market those goods at lower prices than other shippers can make. Indeed it was a fact shown in the record of this case that the Chesapeake and Ohio, as a result of its being a dealer in coal as well as a carrier, had become virtually the sole purchaser and seller of all coal produced along its line of road. As the court points out, the inevitable tendency will be toward such monopoly if the common carrier is permitted both to deal in a commodity and to carry it. As a carrier may reduce or entirely eliminate the profit upon transportation to market in making its calculations as to the margin of profit that it will require in buying and selling the commodity, the result must be that no other person can compete on equal terms with the carrier in his capacity as dealer. The court is content, it seems, to decide no more at present than that the carrier must charge itself in its operations as a dealer with its own schedule rates as carrier; but much of its reasoning, if carried to the logical conclusion, would forbid the railroads to take the inconsistent positions of dealers and carriers. And indeed it seems that the possibilities of evil cannot be eradicated unless the common carrier is forbidden altogether to deal in the commodities which it transports.1 B. W. EFFECT OF ESTOPPEL UPON A CONTRACT VOID FOR USURY. Much of the conflict as to the effect of usury upon a contract is unquestionably due to the differences in the usury statutes in the various jurisdictions. But this will not account for the many irreconcilable decisions in a single state, - in New York, for example, where, in spite of a very explicit statute declaring usurious contracts altogether void,' the authorities seem hopelessly at odds. It is believed that the differences in judicial opinion on such an apparently simple point are due to a failure by many courts to distinguish between situations where it is proper to apply the doctrine of equitable estoppel and where it is not. A recent New York case has held that in an action on a note void under the usury statute, the maker may be estopped to set up his defense of usury. Hungerford Co. v. Brigham, 95 N. Y. Supp. 867. This 1 This radical principle may be found expressed in Attorney-General v. Great Northern Ry., 29 L. J. Ch. 794, and in Hannah v. People, 198 Ill. 77. 1 I Rev. Stats. 772, § 5; as amended, Laws 1837, c. 430, § 1. decision, in holding that a thing absolutely void may be made valid by estoppel, seems to violate the sound principle that the law should override the conduct of parties, and not the conduct of parties, the law. Although the decision finds support in New York and elsewhere, in closely analogous classes of cases the law is well settled otherwise. For instance, contracts void as against public policy cannot become enforceable by estoppel,5 nor can a married woman, by asserting that she is unmarried, be estopped to show her coverture, nor an infant his infancy. So one representing a contract not to be within the Statute of Frauds is not estopped. The reason given by the courts for the distinction between usurious contracts and other void contracts that if the estoppel is not allowed, the party for whose protection the statute was passed may find it a sword against him is precisely as applicable to other classes of void contracts as to which the law is settled beyond dispute. We might conceivably, however, shut our eyes to the technical impropriety of the present decision if in no other way could the deserving plaintiff recover adequate damages, on the ground that, after all, the common law court, in allowing an estoppel at all, is using this equitable device to work out a just result. But we are saved the necessity for this departure from logic, for the plaintiff, even if he fails on the usurious obligation, has several courses open to him. First, a usurious note is often given, as in the principal case, as security for, or payment of, an antecedent indebtedness, and if the law should declare the note unenforceable, it would forthwith revive the old claim. Or if the note were taken for present value, there would be a quasi-contractual recovery of the amount given." Further, in almost any case where, because of a controlling rule of law, the estoppel could not be set up, the courts would strain the language or conduct relied upon as a misrepresentation in order to give an action of deceit against the fraudulent person. As a general rule, then, there seems no good reason for allowing an estoppel to make valid a void contract. To this rule there is only one well-recognized exception. If a contract may be entered into either innocently or in a way that according to a statute will vitiate the resulting contract, an estoppel may be raised against one who, though in fact using the improper way, has represented that he used the other.11 10 Some courts would support the present decision by asserting that the statute, though saying "void," really means "voidable at the election of the defrauded party." This may, in many cases, be a proper construction of the statute; 12 but where the statute is as clear and unequivocal as the one upon which the present case turns, the legislature and not the courts should give the remedy. 311. 2 National Granite Bank v. Tyndale, 176 Mass. 547. 8 Payne v. Burnham, 62 N. Y. 69; but cf. Veeder v. Mudgett, 95 N. Y. 295, 310, Henry v. McAllister, 99 Ga. 557; contra, Chamberlain v. M'Clurg, 8 Watts & S. (Pa.) 31. 5 Langan v. Sankey, 55 Ia. 52; Brown v. First Nat. Bank, 137 Ind. 655. 6 Lowell v. Daniels, 2 Gray (Mass.) 161; Solomon v. Garland, 2 Mackey (D. C.) 113. 7 Sims v. Everhardt, 102 U. S. 300. And see 11 HARV. L. REV. 199. 8 Brightman v. Hicks, 108 Mass. 246. 9 Pollard v. Scholy, Cro. Eliz. pt. i. p. 20. 10 Pullman's Car Co. v. Transportation Co., 171 U. S. 138. 11 Veeder v. Mudgett, 95 N. Y. 295; Mutual Life Ins. Co. v. Corey, 135 N. Y. 326; Smith v. Weeks, 65 Vt. 566. 12 Cf. Ewell v. Daggs, 108 U. S. 143. POSITION OF DISCLOSED PRINCIPAL UNDER WRITTEN CONTRACT MADE BY HIS AGENT. The determination of a disclosed principal's position under simple written contracts purporting to be made by the agent personally, has given rise to conflicting views. Of course, even though the contract appears to be the agent's, if from its face there may be gathered an intention that the agent shall not be bound, he is not liable. Such, in a recent English case, was found to be the fact. Morley v. Makin, 22 T. L. R. 7 (K. B. Div.). But where, prima facie, the agent appears to be personally contracting, the accepted English law is that the third person has his option to sue either the agent or the disclosed principal, and the latter may enforce the contract as his own. In this country there is no holding on the agent's liability, and what little square authority is to be found on the principal's position is conflicting. This permits an examination of the question on principle. A careless assimilation is often made of the case of disclosed principal to the doctrine of undisclosed principal. The latter, of course, cannot be explained on any theory of contract. It is a distinct principle of the law of agency, founded on the practical identification from a business view of principal with agent. But when the principal's name is disclosed, a different situation arises. Only one contract is in fact made. Here the law of agency makes no peculiar demands, and the law of contracts should control in creating but a single liability. 3 This is so where the agreement is oral; but in case of written contracts the "parol evidence rule " asserts itself. This is really not a rule of evidence at all, but embodies rules of substantive law. As applied to contracts, it means that a writing expressing the terms of the contract is deemed the conclusive expression of intention of the parties. If, then, this rule have any vitality, the English doctrine is a clear infringement. The disclosed principal's liability has been defended on two grounds overlapping each other somewhat. It is suggested, on the one hand, that the principal may use any signature he pleases, and therefore the signature of the agent is really the principal's. This is a bald non sequitur. Of course the principal may use the agent's name as his business name, and when he does so he is liable." Further, if the agent's name is the disclosed principal's, the English doctrine giving an optional right against agent or principal is indefensible. The second argument is, that to show that the principal was in fact meant and not the agent is not varying the instrument, but only explaining it. This is ingenious, but contrary to fact. If X does business in his own name, and a contract is made by A, his agent, A cannot truthfully be identified as other than A. (If an omitted party may be introduced, why not an omitted term of the contract?) As far, then, as an action on the contract is concerned, the presumption of election to hold the agent should be conclusive. If, however, the parties intended that the principal be liable and have simply 1 The authorities are collected in Wambaugh, Cases on Agency 548-582; see also Barbre v. Goodale, 28 Ore. 465; Ferguson v. McBean, 91 Cal. 63. 2 Higgins v. Senior, 8 M. & W. 834; Calder v. Dobell, L. R. 6 C. P. 486; see also 2 Smith's Lead. Cas., 11th Eng. ed., 413 ff. 3 The rule as stated by American text-writers accords with the English doctrine. Story, Agency § 160, a; Clark & Skyles, Agency 758. See Byington v. Simpson, 134 Mass. 169. 5 Thayer, Prel. Treat. Ev. 397 et seq. 6 Trueman v. Loder, 11 Ad. & E. 589. This is also the case in the suggested analogy of a dormant partner represented by the ostensible partner's name. 7 This line of reasoning is equally applicable to sealed instruments, yet no one thinks of applying it. |