The origins of the objective theory of contract formation and interpretation

Fordham Law Review

Volumn 69, Issue 2, 2000, Pages 427-477

  Perillo, Joseph M ^a  

^a NONE

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EID: 0034552161     PISSN: 0015704X     EISSN: None     Source Type: Journal    
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References (331)

1. Lawrence M. Friedman, Contract Law in America 87 (1965).
2. Id.
3. Id.
4. Id.
5. See Morton J. Horwitz, The Transformation of American Law, 1780-1860 (1977). Simpson has demolished most aspects of Horwitz's transformation thesis as applied to contract law, but does not discuss the objective-subjective issues of formation and interpretation. A.W.B. Simpson, The Horwitz Thesis and the History of Contracts, 46 U. Chi. L. Rev. 533 (1979) [hereinafter Simpson, Horwitz Thesis].
6. See Morton J. Horwitz, The Transformation of American Law, 1780-1860 (1977). Simpson has demolished most aspects of Horwitz's transformation thesis as applied to contract law, but does not discuss the objective-subjective issues of formation and interpretation. A.W.B. Simpson, The Horwitz Thesis and the History of Contracts, 46 U. Chi. L. Rev. 533 (1979) [hereinafter Simpson, Horwitz Thesis].
7. Grant Gilmore, The Death of Contract 12 (1974). Langdell published the first contracts casebook in 1871. His text, A Summary of the Law of Contracts, was published in 1880. Gilmore's history is quite eccentric. The first book with "contract" in its title was John Joseph Powell, Essay on the Law of Contract (1790). There was a considerable number of books on the subject of contracts prior to Langdell's.
8. Id. at 14. Holmes' lectures were published in book form entitled The Common Law in 1881. Id. at 6.
9. Id. at 14.
10. Id. at 35.
11. Gilmore quotes Friedman as follows: "[i]n both theoretical models - that of the law of contracts and that of liberal economics - parties could be treated as individual economic units which in theory enjoyed complete mobility and freedom of decision. . . ." Id. at 7 (quoting Friedman, supra note 1, at 24-25). Part of this sentence is also quoted by Gilmore at 95.
12. Sometimes one meets with and is stunned by generalizations such as this: "[a] standard history of contract doctrine represents that, from the sixteenth to the early nineteenth century, contract formation depended upon a subjective 'meeting of the minds.'" Clare Dalton, An Essay in the Deconstruction of Contract Doctrine, 94 Yale L.J. 997, 1042 (1985).
13. Restatement of Contracts § 227(3) (1932). Although the first Restatement stated this as a possible standard, it did not adopt it.
14. Referring to contract theory on the European continent, Gordley asserts that the theorists had jettisoned all aspects of medieval natural law theory except the foundation of contract in the will of the promisor. James Gordley, Contract in Pre-Commercial Societies and in Western History, in Contracts in General, VII International Encyclopedia of Comparative Law §§ 2-30-2-35 (1997).
15. See Hugo Grotius, Rights of War and Peace 192-204 (William Whewell trans., 1853) (1625).
16. See R. J. Pothier, A Treatise on the Contract of Sale 17-24 (L.S. Cushing trans., 1839) (1762).
17. See Immanuel Kant, The Philosophy of Law 102-05, 121-25 (W. Hastie, B.D. trans., 1887) (1796-97); see also Symposium on Kantian Legal Theory, 87 Colum. L. Rev. 419, 439-46 (autonomy), 495 (free will), 546-47 (promising and meeting of the minds), 563-68 (promise-keeping as a categorical imperative) (1987).
18. See Immanuel Kant, The Philosophy of Law 102-05, 121-25 (W. Hastie, B.D. trans., 1887) (1796-97); see also Symposium on Kantian Legal Theory, 87 Colum. L. Rev. 419, 439-46 (autonomy), 495 (free will), 546-47 (promising and meeting of the minds), 563-68 (promise-keeping as a categorical imperative) (1987).
19. Barry Nicholas, The French Law of Contract 35, 47-49 (2d ed. 1992).
20. See Pierre Bonassies, Report on French Law, in II Formation of Contracts (Rudolf B. Schlesinger ed., 1968).
21. See Nicholas, supra note 17, at 61-76.
22. See id. at 47-49.
23. See Simon Greenleaf, A Treatise on the Law of Evidence 137-38 (1842).
24. Greenleaf stated the parol evidence rule as follows: When parties have deliberately put their engagements into writing, in such terms as import a legal obligation, without any uncertainty as to the object or extent of such engagement, it is conclusively presumed, that the whole engagement of the parties, and the extent and manner of their undertaking was reduced to writing; and all oral testimony of a previous colloquium between the parties, or of conversation or declarations at the time when it was completed or afterwards . . . is rejected. Id. at 315. This encapsulates more modern statements of the rule, except that today, evidence of statements made subsequent to adoption of the writing are not barred by the rule. John D. Calamari & Joseph M. Perillo, The Law of Contracts § 3.2 (4th ed. 1998).
25. See Restatement of Contracts § 227(1) (1932).
26. Williston's rules are sketched in Calamari & Perillo, supra note 22, § 3.11.
27. "When the language of the contract is clear, the court will presume that the parties intended what they expressed, even if the expression differs from the parties' intentions at the time they created the contract." Nicholson Air Servs., Inc. v. Bd. of County Comm'rs, 706 A.2d 124, 132 (Md. Ct. Spec. App. 1998); see Restatement of Contracts § 230 illus. 1 (1932).
28. For one of many such statements, see Rickman v. Carstairs, 5 B. & Ad. 650, 662-63 (K.B. 1833) ("Unfortunately, however, they have used words which will not, we think, effectuate that intention. The question in this and other cases of construction of written instruments is, not what was the intention of the parties, but what is the meaning of the words they have used."). But one finds an occasional enlightened case holding that words of art can be overcome by other language found in a written instrument. See, e.g., Sherman's Lessee v. Dill, 4 Yeates 295 (Pa. 1806).
29. Paley's influence on the interpretive process is discussed infra in Part IV.B.
30. Adam Smith, Lectures on Jurisprudence 93 (R.L. Meek, D.D. Raphael & P. G. Stein eds., 1978) (lectures of 1762-63).
31. Id.
32. See Restatement of Contracts § 230 (1932) (illustrating the standard of interpretation for integrations).
33. Christopher Saint Germain, Doctor and Student; or, Dialogues Between a Doctor of Divinity and a Student in the Laws of England 179 (Legal Classics Library 1988) (1530-41). Saint Germain's name sometimes is styled as "St. German."
34. Id. Examples, given by the student, of "charges" include "[a]nd if a man say to another, heal such a poor man of his disease, or, make an highway, and I will give thee thus much; and if he do it, I think an action lieth at the Common law." Id. at 179-80. These examples, in modern parlance, are promises for a bargained-for exchange, the core of the modern doctrine of consideration.
35. Id. at 179; cf. 3 Arthur L. Corbin, Corbin on Contracts § 597 n.5 (1960) ("In an ancient case, Y.B. 17 Edw. IV, 2, Brian, C.J., remarked, perhaps erroneously, that 'the devil himself knoweth not the thought of man.'").
36. "[T]hat no evil should be unpunished, it was necessary to have the law of God that should leave no evil unpunished." Saint Germain, supra note 31, at 10.
37. Id. at 180 (emphasis supplied).
38. Throckmerton v. Tracy, 75 Eng. Rep. 222, 251 (K.B. 1816).
39. Id.
40. See id.
41. See id. (citing to H. 13 Ed. 3).
42. A croft is "[a] little close adjoining a dwelling house, and inclosed for pasture and tillage or any particular use. A small place fenced off in which to keep farmcattle." Black's Law Dictionary 375 (6th ed. 1990).
43. Throckmerton, 75 Eng. Rep. at 251.
44. Wood v. Lucy, Lady Duff-Gordon, 118 N.E. 214, 214 (N.Y. 1917).
45. See Wm. L. Clark, Jr., Handbook of the Law of Contracts § 262 (1894).
46. Francis Bacon wrote: "Ambiguitas Patens is never holpen by averrement, and the reason is, because the law will not couple and mingle matter of specialty, which is of the higher account, with matter of averrement, which is of inferior account in law; for that were to make all deedes hollow . . . ." Francis Bacon, The Elements of the Common Laws of England 91 (photo. reprint 1978) (1630).
47. Eric Mills Holmes, 3 Corbin on Contracts § 10.15 n.1 (Joseph M. Perillo ed., West Publ'g Co. 1996) (1950) (quoting Y.B. 1 Hen. 7, 14, 2). In some jurisdictions, the rule persisted well into the twentieth century. See Cammack v. J. B. Slattery & Bro., Inc. 148 N.E. 781 (N.Y. 1925). It may be alive somewhere. See Holmes, § 10.15 n.3 (stating that "[t]here are unreversed cases to the same effect in other states that have not abolished seals.").
48. 77 Eng. Rep. 1177 (K.B. 12 Jac.).
49. Id. at 1178.
50. Cited for this proposition is Bayley v. Garford, 82 Eng. Rep. 441 (C.P. 17 Car.I), although the court merely set the case for reargument. Nonetheless, subsequent cases treated it as binding precedent. In Seaton v. Henson, 83 Eng. Rep. 527 (K.B. 30 Car.II) also reported in 2 Show. 28, 89 Eng. Rep. 772, where the seal of one joint obligor was broken off, Bayley v. Garford was treated as the governing precedent. In Nichols v. Haywood, 73 Eng. Rep. 130 (K.B. 36 and 37 Hen. 8), the case was distinguished because the rodents feasted after issue was joined while the document was in the custody of the court clerk. See generally, Samuel Williston, Discharge of Contracts by Alteration, I, 18 Harv. L. Rev. 105 (1904), II, 18 Harv. L. Rev. 165 (1905) (describing other situations in which a contract was discharged).
51. Cited for this proposition is Bayley v. Garford, 82 Eng. Rep. 441 (C.P. 17 Car.I), although the court merely set the case for reargument. Nonetheless, subsequent cases treated it as binding precedent. In Seaton v. Henson, 83 Eng. Rep. 527 (K.B. 30 Car.II) also reported in 2 Show. 28, 89 Eng. Rep. 772, where the seal of one joint obligor was broken off, Bayley v. Garford was treated as the governing precedent. In Nichols v. Haywood, 73 Eng. Rep. 130 (K.B. 36 and 37 Hen. 8), the case was distinguished because the rodents feasted after issue was joined while the document was in the custody of the court clerk. See generally, Samuel Williston, Discharge of Contracts by Alteration, I, 18 Harv. L. Rev. 105 (1904), II, 18 Harv. L. Rev. 165 (1905) (describing other situations in which a contract was discharged).
52. See A.W.B. Simpson, A History of the Common Law of Contract 95 (reprint 1987) (1975), citing Read v. Brookman, 3 T.R. 151, 100 Eng. Rep. 504 (K.B. 1789) [hereinafter Simpson, Common Law of Contract].
53. See John Henry Wigmore, A Treatise on the Anglo-American System of Evidence in Trials at Common Law 15 (3d ed. 1940).
54. Kevin M. Teeven, A History of the Anglo-American Common Law of Contract 110 n.240 (1990). The parol evidence rule seems to have caught on by the early part of the eighteenth century since it appeared in Lilly's Practical Register 48 (1719), as quoted in 5 C. Viner, A General Abridgment of Law and Equity 515-516 (1742) (If an agreement made by parol to do anything be afterwards reduced into writing, action must be brought on the writing because of its greater certainty, citing a 1681 case.). Id.
55. Kevin M. Teeven, A History of the Anglo-American Common Law of Contract 110 n.240 (1990). The parol evidence rule seems to have caught on by the early part of the eighteenth century since it appeared in Lilly's Practical Register 48 (1719), as quoted in 5 C. Viner, A General Abridgment of Law and Equity 515-516 (1742) (If an agreement made by parol to do anything be afterwards reduced into writing, action must be brought on the writing because of its greater certainty, citing a 1681 case.). Id.
56. Id. at 89.
57. See Joseph M. Perillo, The Statute of Frauds in the Light of the Functions and Dysfunctions of Form, 43 Fordham L. Rev. 39 n.1 (1974).
58. 3 T.R. 653, 100 Eng. Rep. 785 (K.B. 1790).
59. See E. Allan Farnsworth, Contracts § 3.17 n.16 (3d ed. 1999) (labeling Cooke v. Oxley "a confusing relic of the subjective era"); John Edward Murray, Jr., Murray on Contracts § 41 n.34 (The Michie Co. 3d ed. 1990); 1 Samuel Williston, The Law of Contracts § 56 n.48 (1920). But see A.W.B. Simpson, Innovation in Nineteenth Century Contract Law, 91 L.Q. Rev. 247, 261 (1975).
60. 3 T.R. at 653, 100 Eng. Rep. at 786.
61. 3 T.R. at 654, 100 Eng. Rep. at 786.
62. 3 T.R. at 654, 100 Eng. Rep. at 786.
63. 3 T.R. at 654, 100 Eng. Rep. at 786.
64. Hobart 88, 80 Eng. Rep. 238 (K.B. 1615); see also Kirkby v. Coles, Cro. Eliz. 137, 78 Eng. Rep. 394 (Q. B. 31 Eliz.).
65. Hobart 88, 80 Eng. Rep. at 238.
66. See Livingston v. Rogers, 1 Cai. R. 584 (N.Y. Sup. Ct. 1804).
67. Id. at 584-85. Kent cited Cooke v. Oxley for this point. His citation was to the case as reported in 3 D. & E. 653.
68. Id. at 584.
69. Id. at 585.
70. That merchants may have learned to cope with the impractical rule of Cooke v. Oxley is suggested by Humphries v. Carvalho, 16 East 45, 104 Eng. Rep. 1006, 1007 (K.B. 1812). The court upheld a sale of 5 casks of ipecacuanha made on a Saturday with an option by the buyer to terminate on the following Monday. While for many purposes such a contract is functionally identical to an irrevocable offer, the contract differs from an offer as to such issues such as risk of loss.
71. Ludlow v. Bowne, 1 Johns. 1 (N.Y. 1806); Read v. Gaillard, 2 S.C. Eq. (2 Des.) 552 (1808).
72. See Simpson, Common Law of Contract, supra note 49, at 458-59. Read, 2 S.C. Eq. (2 Des.) 552, was such a case.
73. Ludlow, 1 Johns. at 1, was such a case.
74. 6 U.S. (2 Cranch) 127 (1804).
75. Id. at 148. In a Pennsylvania case, a trust deed for the benefit of creditors was executed on a Saturday, a sheriff's execution took place on Monday, and the trustee accepted the deed on Wednesday. The court held that the acceptance related back to Saturday. Wilt v. Franklin, 1 Binn. 502 (Pa. 1809). This was one possible answer to Adams' question.
76. Head, 6 U.S. (2 Cranch) at 160.
77. Marshall also avoided the same issue in Lawrason v. Mason, 7 U.S. (3 Cranch) 492, 494 (1806). Defendant's counsel argued for the application of Cooke v. Oxley, saying "[t]here was no consideration, and consequently no contract." Id. at 494 (quoting Cooke v. Oxley, 3 T.R. 653). However, the case may have been inapplicable because (1) the offer was to a unilateral contract, and (2) the case involved a letter of credit governed by the law merchant. The case was decided on unrelated grounds.
78. See Kennedy v. Lee, 3 Mer. 442, 36 Eng. Rep. 170 (Ch. 1817).
79. See Keep v. Goodrich, 12 Johns. 397, 397 (N.Y. Sup. Ct. 1815) (Spencer, J.). Massachusetts applied Cooke v. Oxley in 1822. Neither the court nor counsel made reference to Adams v. Lindsell. M'Culloch v. The Eagle Ins. Co., 18 Mass. (1 Pick.) 278 (1822). Although Cooke v. Oxley has been applied in some later cases, none of these applications seem to have involved the "mailbox rule." As late as 1887 we find this in an American textbook: [T]o constitute a contract in fact, the two or more parties must concurrently assent to exactly the same thing at the same instant of time. So that, if one consents . . . at one time and the latter at another, by reason of which their wills do not at any instant completely coincide, they do not enter into a contract. Joel Prentiss Bishop, Commentaries on the Law of Contracts § 313, at 119 (1887). Earlier, in 1844, W.W. Story had written that the offer and acceptance must be simultaneous, citing a variety of sources based on Nichols v. Raynbred. William Wentworth Story, A Treatise on the Law of Contracts not under Seal § 128, at 81 (reprint 1972) (1844). Elsewhere, however, his treatise recognized the rule of Adams v. Lindsell. Id. §§ 84, 86.
80. 106 Eng. Rep. 250 (K.B. 1818).
81. See Murray, supra note 55, at 148, which states that Adams v. Lindsell "was decided when the subjective theory of mutual assent was still prevalent." My point here is that the common law's flirtation with the subjective theory had not yet seriously begun. Another scholar wrote, "[t]his subjective theory of formation was firmly established by the end of the eighteenth century," citing Adams v. Lindsell and Cooke v. Oxley. Dalton, supra note 11, at 1042 n.150. Moreover, Teeven takes the position that Cooke v. Oxley was based on subjective thinking and that "the subjective standard was reinforced" by Adams v. Lindsell. Teeven, supra note 51, at 182.
82. Adams, 106 Eng. Rep. at 251.
83. Id.
84. Id. There are three possible sources for this language and the thought behind it: (1) Pothier says much the same thing. "[T]he will of the party, who makes a proposition in writing, should continue until his letter reaches the other party . . . . This will is presumed to continue, if nothing appears to the contrary . . . ." Pothier, supra note 15, at 18. But under Pothier's test no contract would have been formed in Adams v. Lindsell because the defendant's sale of the subject matter appeared to the contrary. (2) The thought is consistent with the common law past-benefit cases. For example Beaucamp, at Neggin's request, paid £10 to C. See Beaucamp v. Neggin, 78 Eng. Rep. 536, 536 (K.B. 1591). A year later, Neggin promised Beaucamp reimbursement. See id. In holding the promise to be enforceable, the court stated, "when the payment is laid to be at his request, the consideration doth continue." Id. Another such case is Barker v. Halifax, 78 Eng. Rep. 974 (1598) ("[T]hat an assumpsit in consideration that you had married my daughter, to give unto you £40 was good; for the affection and consideration always continues."). (3) Chancery said much the same thing in enforcing contracts by correspondence prior to Adams v. Lindsell in Kennedy v. Lee, quoted infra at text accompanying note 85. Chancery's statement is likely to have been based either on (1) or (2) above or some combination of the two.
85. The first Restatement of Contracts indicated that there were at least six vantage points from which the meaning of language could be viewed. See Restatement of Contracts § 227 (1932). These were (1) general usage, (2) limited usage - local or trade meanings, (3) a mutual standard, (4) an individual standard, (5) reasonable expectation - the intention the speaker or writer would expect the addressee to understand, and (6) reasonable understanding - the reasonable understanding of the addressee of the language. See id. cmt. a. Comment b to the section indicates that the third and fourth vantage points are subjective. See id. cmt. b. I am doubtful about categorizing the third vantage point as "subjective." For example, is a mutually agreed-upon secret code "subjective?"
86. See Oliver Wendell Holmes, Jr., The Common Law 305-06 (1881).
87. See 1 Williston, supra note 55, § 81, at 144.
88. Nicholas, supra note 17, at 68 (citing Bordeaux 17.1.1870, S. 1870.2.219).
89. 36 Eng. Rep. 170, 173 (Ch. 1817).
90. Id. at 175.
91. 80 Eng. Rep. 238 (K.B. 1615); see also supra text accompanying notes 60-61 (discussing Nicholas v. Raynbred).
92. Kennedy, 36 Eng. Rep. at 174.
93. E.g., Mactier's Adm'r v. Frith, 6 Wend. 103, 119 (N.Y. 1830).
94. 3 Johns. 44 (N.Y. 1808).
95. Id. at 46.
96. The court put this thought in Latin: "[w]e sit here 'jus dare,' not 'jus facere'." Id.
97. Banorgee v. Hovey, 5 Mass. 11, 23 (1809). Although the courts did not have the power to direct verdicts, grant summary judgments or judgments n.o.v., they did not look with favor on jury nullification. In Wilkie v. Roosevelt, 3 Johns. Cas. 206 (N.Y. Sup. Ct. 1802), the jury twice found for the plaintiff despite the uncontroverted evidence that the plaintiff's loan to the defendant was usurious. The court ordered a third trial, saying, "[i]f the statute against usury is an unconscientious defense, or the law impolitic, it is the province of the Legislature to repeal it. But as long as it remains in force, it is the indispensable duty of a court and jury to carry it into effect." Id. at 208-09.
98. Paul v. Frazier, 3 Mass. 71, 73 (1807).
99. Beane v. Middleton, 4 H. & McH. 74, 78 (Md. 1797) (emphasis in original). Similarly, in Paca's Lessee v. Forwood, 2 H. & McH. 175, 179-81 (Md. 1787), a deed commenced with the words "this indenture" but was not indented. Plaintiff's successful argument was that "[t]hough indenting may be considered as a mere ceremony," it was necessary and therefore the deed was void, and "[a]ll writers agree, that indenting is a necessary circumstance to constitute a deed of bargain and sale." Id. at 178-79.
100. Beane, 4 H. & McH. at 78.
101. Id. at 79.
102. See, e.g., Williams v. Hodgson, 2 H. & J. 474, 483 (Md. 1809) ("[T]he chancellor's decree, however consonant to strict justice, ought to be reversed."); Pitcher v. Livingston, 4 Johns. 1, 13 (N.Y. Sup. Ct. 1809) ("It is the very nature of general rules, to sometimes operate harshly . . . ."); Hall v. Shultz, 4 Johns. 240, 244 (N.Y. Sup. Ct. 1809) ("[C]ourts of law cannot enforce moral duties, or relieve particular hardships, without a legal basis."); Davy v. Hallett, 3 Cai. R. 16 (N.Y. Sup. Ct. 1805) (certainty in measuring an insurance loss).
103. See 22 Encyclopedia Americana 117 (1984).
104. See William E. Nelson, Americanization of the Common Law 96 (1975).
105. See Lewis v. Gray, 1 Mass. 297 (1805).
106. See Engle v. Burns, 9 Va. (5 Call) 463 (1805); Buckner v. Smith, 1 Va. (1 Wash.) 296 (1794). The related doctrine of "apparent authority" was also honored. See Hooe v. Oxley, 1 Va. (1 Wash.) 19, 23 (1791).
107. See Nelson, supra note 100, at 171-72.
108. Story's article, entitled American Law, was published in Germany in a German translation. The original English-language text appears in Kurt H. Nadelmann, Joseph Story's Sketch of American Law, 3 Am. J. Comp. L. 3 (1954).
109. Id. at 22.
110. Zephaniah Swift, A Digest of the Law of Evidence in Civil and Criminal Cases and a Treatise on Bills of Exchange 99 (1810).
111. Northrup v. Speary, 1 Day 23, 27 (Conn. 1802); see also Bull v. Talcot, 2 Root 119 (Conn. 1794); Bradley v. Blodget, Kirby 22 (Conn. 1786).
112. See Watson's Lessee v. Bailey, 1 Binn. 470, 1808 WL 1490, at * 4 (Pa. 1808) ("We may regret that the unskilfulness or negligence of the scrivener had led to this error; but we are bound to say ita lex scripta est, and the party must abide by consequences of his own acts.").
113. See Cook v. Ambrose, Add. 322 (Pa. C. 1797). Although modern texts and Restatements treat the question of using parol evidence to interpret a contract as a distinct question from the parol evidence rule concerning additional terms of a contract, this separation is a twentieth century event. See Greenleaf, supra note 21, at 315-54, where they are treated as aspects of the same doctrine.
114. See Paul Brest, The Misconceived Quest for Original Understanding, 60 B.U. L. Rev. 204, 215-16 (1980).
115. These propositions are proved in detail in H. Jefferson Powell, The Original Understanding of Original Intent, 98 Harv. L. Rev. 885 (1985). For additional information on the survival of extreme textualism among Protestant Fundamentalists and the possible parallel survival among some legal analysts, see generally Vincent Crapanzano, Serving the Word, Literalism in America from the Pulpit to the Bench (2000).
116. Holmes v. Simons, 20 S.C. Eq. (3 Des.) 149, 152 (1810).
117. Id. at 153.
118. Bradford v. Hill, 2 N.C. (1 Hayw.) 22, 23 (1793) (counsel's argument accepted by the court).
119. Tabb v. Archer, 13 Va. (3 Hen. & M.) 399, 417 (1809) (emphasis in original).
120. Simmons v. Hill, 4 H. & McH. 252, 258 (Md. 1798). Hanson was the first president of the United States under the Articles of Confederation.
121. See Givens v. Calder, 20 S.C. Eq. (2 Des.) 171, 189-90 (1803); see also Sears v. Brink, 3 Johns. 210, 215 (N.Y. 1808) ("It is necessary to the prevention of fraud and perjury, that the consideration which leads to the promise should be in writing, as the promise itself.").
122. See Bayley v. Taber, 5 Mass. 286 (1809).
123. See Geiss v. Odenheimer, 4 Yeates 278 (Pa. 1806).
124. Id. at 279.
125. See Widgery v. Haskell, 5 Mass. 144 (1809).
126. For similar reasons, it could be shown that a grantee had subjective knowledge of a prior unrecorded deed. See Ludlow v. Gill, N. Chip. 63 (Vt. 1790).
127. Parol evidence was admissible to show that a deed absolute was a mortgage; see Washburn v. Merrills, 1 Day 139 (Conn. 1803); Critcher v. Walker, 5 N.C. (1 Mur.) 488 (1810) (found to be a conditional sale); Gay v. Hunt, 5 N.C. (1 Mur.) 141 (1806); Wilcox's Heirs v. Morris, 5 N.C. (1 Mur.) 116 (1806); German v. Gabbald, 3 Binn. 302 (Pa. 1811); Lessee of Thomson v. White, 1 Dall. 424 (Pa. 1789); and that a resulting trust should be imposed; Ross v. Norvell, 1 Va. (1 Wash.) 14 (1791) (that a conveyance of land was held on an oral trust).
128. See Skinner v. Hendrick, 1 Root 253 (Conn. 1791); Ward v. Lewis, 21 Mass. 518 (1827). But see Field for the use of Oxley v. Biddle, 2 Dall. 171 (Pa. 1792) (arguably going beyond the English precedents).
129. See Teeven, supra note 51, at 182.
130. William Wentworth Story was the son of his better known father, treatise writer and Supreme Court Justice, Joseph Story.
131. W. W. Story, supra note 75, § 231, at 149.
132. Id.
133. Id. § 231, at 150 (quoting Bache v. Proctor, 99 Eng. Rep. 247 (K.B. 1780)).
134. See id. (citing Bache, 99 Eng. Rep. at 247).
135. Bache, 9 Eng. Rep. at 247. An argument such as that successfully made in Bache v. Proctor was made in 1718 Maryland. In Gresham v. Gassaway, 1 H. & McH. 34 (Md. 1718), plaintiff's counsel argued, "[t]he intent of a condition or covenant is always to be regarded, as where there was a condition to pay 50l without saying of what - it shall be intended to be money." He collected, in an unsuccessful argument, other English cases where the court's interpretation went beyond the literal meaning of the words used.
136. See infra text accompanying notes 173-179.
137. See supra text accompanying notes 40-41.
138. One case cited by Teeven, supra note 51, at 182, for a subjective approach in this period is Bruce v. Pearson, 3 Johns. 534 (N.Y. Sup. Ct. 1808). The defendant ordered goods from the plaintiff on specified credit terms. Plaintiff shipped only part of the order and stated more stringent credit terms. The goods did not arrive intact because of weather conditions. It was held that the plaintiff had the risk of loss. See id. at 536. In today's parlance we would say that the offer had not been accepted; rather, a counter-offer had been made. The court said there was no agreement, no "aggregatio mentium." Id. at 535. While this Latin phrase means "meeting of the minds," a subjective concept, the case is perfectly consistent with objective thinking; the Latin phrase was a learned but unnecessary flourish.
139. See, e.g., Rodolitz v. Neptune Paper Prods., 239 N.E.2d 628, 630 (N.Y. 1968) While the Appellate Division's conclusion as to the real intent of the parties may be correct, the rule is well settled that a court may not under the guise of interpretation, make a new contract for the parties or change the words of a written contract so as to make it express the real intention of the parties if to do so would contradict the clearly expressed language of the contract . . . .
140. Smith v. Abington Sav. Bank, 50 N.E. 545, 546 (Mass. 1898).
141. Towne v. Eisner, 245 U.S. 418, 425 (1918).
142. James Kent, Commentaries on American Law 554-55 (12th ed. 1873) (1826) (citing, among others, Bache v. Proctor, 99 Eng. Rep. 247 (K.B. 1780)).
143. See Pierson v. Hooker, 3 Johns. 68 (N.Y. Sup. Ct. 1808).
144. Thompson v. Ketcham, 8 Johns. 189, 192 (N.Y. Sup. Ct. 1811).
145. Mumford v. Mc'Pherson, 1 Johns. 414 (N.Y. Sup. Ct. 1806).
146. Id. at 418; accord, Smith v. Williams, 5 N.C. (1 Mur.) 426 (1810) (extolling the superiority of written proof).
147. Bailey v. Ogden, 3 Johns. 399, 420 (N.Y. Sup. Ct. 1808).
148. Id. at 421.
149. The following passage from Frost v. Raymond, 2 Cai. R. 188, 195 (N.Y. Sup. Ct. 1804), illustrates stare decisis as an interpretive tool: We are not able to assign a very solid reason for this distinction between the force and effect of the words "give" [which import a warranty] and "grant" [which does not import a warranty]. It arose from artificial reasons derived from the feudal law. The distinction is now become merely technical, but it is sufficient that it clearly exists, and we are certainly not at liberty to confound the words, or change their established operation.
150. Jackson v. Myers, 3 Johns. 388, 395 (N.Y. Sup. Ct. 1808).
151. United States v. Gurney, 8 U.S. (4 Cranch) 333, 343 (1808). This real intention was found solely from the written contract.
152. See Grant v. Naylor, 8 U.S. (4 Cranch) 224, 235 (1808). Marshall's opinion was principally directed at preserving the integrity of the Statute of Frauds rather than the parol evidence rule. Not all such cases reached a similar conclusion. A court of equity might have reformed the document. In the early days, Pennsylvania had no separate courts of equity and equitable powers were bestowed on courts of general jurisdiction. Thus, in Lynn v. Risberg, 2 Dall. 180 (Pa. 1792), parol evidence was admissible to supply a blank name upon whom the party should draw, and in Fox's Lessee v. Palmer, 2 Dall. 214 (Pa. 1793), a subscribing witness was permitted to testify to contradict a date in a deed. The latter decision might have been made by a court of law in other jurisdictions. See, e.g., Oneale v. Lodge, 3 H. & McH. 433 (Md. 1796) (parol evidence admissible to contradict recital in a deed that consideration had been paid).
153. Grant, 8 U.S. (4 Cranch) at 235.
154. See, e.g., Rhinelander v. Ins. Co. of Pa., 8 U.S. (4 Cranch) 29 (1807) (propriety of abandonment); Lee v. Boardman, 3 Mass. 238 (1807) (right to abandon); Schmidt v. United Ins. Co., 1 Johns. 249 (N.Y. 1806) (same); Williams v. Smith, 2 Cai. R. 1 (N.Y. Sup. Ct. 1804) (describing what constitutes a blockade; effect of pestilential epidemic in Cadiz); Leavenworth v. Delafield, 1 Cai. R. 573 (N.Y. Sup. Ct. 1804) (delineating the rights of crew for wages during detention of ship); Patrick v. Ludlow, 3 Johns. Cas. 10 (N.Y. Sup. Ct. 1802) (meaning of "at or from"); Morgan v. Ins. Co. of N. Am., 4 Dall. 455, 457 (Pa. 1806) ("No adjudged case in point has been cited on either side."); Hood's Ex'rs v. Nesbit, 2 Dall. 137 (Pa. 1792) (what constitutes deviation or barratry); De Peau v. Russel, 2 S.C.L. (1 Brev.) 441 (1804) (right to abandon). For rare cases in which the policy is actually quoted, see Suydam v. Marine Ins. Co., 1 Johns. 181 (N.Y. 1806); De Peau, 2 S.C.L. (1 Brev.) at 441.
155. See generally Putnam v. Wood, 3 Mass. 481 (1807) (contract of affreightment); Avery v. Inhabitants of Tyringham, 3 Mass. 160 (1807) (contract employing a minister).
156. Teeven, supra note 51, at 183 (citing 2 T. Parsons, Law of Contracts, at 3-9 (1855)).
157. Parsons, supra note 152, at 6. A similar "plain meaning" approach was taken by a contemporaneous writer, who, however, avoided coming to grips with the problem of the interpretive vantage point. John William Smith, The Law of Contracts 24-41 (photo. reprint 1992) (1853). A revealing comment on the plain meaning versus real intention approach was made in Belmont v. Coman, 22 N.Y. 438 (1860). "It is one of the matters of fact, found at the trial, that the parties thus understood each other. This is no reason for a misinterpretation of the written language they used; but I am glad to believe, that they did not disappoint their own intentions." Id. at 441. An interesting instance where the proven common intentions of the parties were subordinated to the inherent meaning of language was Spencer v. Millisack, 2 N. W. 606 (Iowa 1879). "The court found as a fact that it is generally understood among merchants that wholesale price means the price paid by the buyer to the wholesale merchant, without carriage." Id. at 608. When the parties came together to calculate the amount owed they added five percent for carriage. "The question now is whether this understanding [about the additional charge for carriage] shall prevail over the real meaning of the contract, as imparted by its terms, and as generally understood by merchants." Id. "In a suit upon the contract its real and not its supposed meaning must prevail." Id. at 609. Thus, the parties' actual agreement was disregarded. This reasoning also ignores Iowa's enactment of Paley's rule. See infra text accompanying note 242.
158. 1 Swift, supra note 106, at 377. He would allow exceptions for "the most decisive reason." Id.
159. Mark P. Gergen, The Jury's Role in Deciding Normative Issues in the American Common Law, 68 Fordham L. Rev. 407, 418 (1999).
160. J. H. Baker, Book Review, 43 Mod. L. Rev. 467, 469 (1980). Consider this charge to the jury given by a judge who was not a lawyer: You have heard, gentlemen of the jury, what has been said in this case by the lawyers - the rascals! But, no, I will not abuse them. It is their business to make a good case for their clients. They are paid for it, and they have done in this case well enough. But you and I, gentlemen, have something else to consider. They talk of law. Why, gentlemen, it is not law that we want, but justice. They would govern us by the common law of England. Trust me, gentlemen, common-sense is a much safer guide for us - the common-sense of Raymond, Epping, Exeter, and the other towns which have sent us here to try this case between two of our neighbors. A clear head and an honest heart are worth more than all the law of the lawyers. There was one good thing said at the bar. It was from Shakespeare, an English player, I believe. No matter; it is good enough almost to be in the Bible. It is this: "Be just, and fear not." That, gentlemen, is law enough in this case, and law enough in any case. "Be just, and fear not." It is our business to do justice between the parties. Not by any quirk of the law out of Coke or Blackstone, books that I never read and never will, but by common-sense and common honesty, as between man and man. That is our business, and the curse of God is upon us if we neglect, or evade, or turn from it. And now, Mr. Sheriff, take out the jury; and you, Mr. Foreman, do not keep us waiting with idle talk, of which there has been too much already, about matters which have nothing to do with the case. Give us an honest verdict, of which, as plain common-sense men, you need not be ashamed. This charge, given in the late eighteenth or early nineteenth century, appears in the argument of defense counsel in King v. Hopkins, 57 N.H. 334, 337 (1876). He gives, as his source, a biography of William Plumer, a governor of New Hampshire. See id. at 336.
161. See Simpson, Horwitz Thesis, supra note 5, at 600; James Oldham, Reinterpretation of 18th Century English Contract Theory: The View from Lord Mansfield's Trial Notes, 76 Geo. L. J. 1949, 1959-60 (1988).
162. See Barker v. Sutherland, 1 Add. 123 (Pa. 1793).
163. Id. at 123-24. It is unclear from the report whether the alleged warranty was a guaranty of payment or a warranty that the buyer was owed a sum of money by the War Office. Because of the court's reference to the lack of a Statute of Frauds in Pennsylvania, it was seem that the alleged warranty was a guaranty of payment.
164. Id. at 124. Similarly, the issue in one case was whether an oral agreement to trade horses for steers and a note was a sale or an executory contract. The jury was charged to find "according to the true intention of the parties." Kimball v. Cunningham, 4 Mass. 502, 503 (1808).
165. See Armstrong v. McGhee, 1 Add. 261 (Pa. 1795).
166. See id.
167. Id. at 262.
168. See Calamari & Perillo, supra note 22, § 2.3.
169. "The true principle of sound ethics is, to give the contract the sense in which the person making the promise believed the other party to have accepted it, if he in fact did so understand and accept it." 2 James Kent, Commentaries on American Law 557 (Oliver Wendell Holmes, ed., Fred B. Rothman & Co. 12th ed. 1989) (1873). The rule was urged (without citation) in oral argument before the U.S. Supreme Court. Hazard's Adm'r v. New England Marine Ins. Co., 33 U.S. 557, 567 (1834). The insured in New York by letter to Boston underwriters described his ship as "coppered." Some evidence indicated this had a different meaning in Boston than in New York.
170. The rule is supported by Wigmore. 9 Wigmore, supra note 50, § 2466.
171. See, e.g., Weinstein v. Scheer, 120 A. 679, 680 (N.J. 1923); United States Rubber Co. v. Silverstein, 128 N.E. 123, 124 (N.Y. 1920) (Cardozo, J.).
172. Restatement of Contracts § 227 (1932).
173. William Paley, Moral and Political Philosophy, in The Works of William Paley, D.D. 27, 48 (J. J. Woodward 1841). Although the core of the rule appears in the original in quotations, it is uncertain what source, if any, Paley was quoting. Much the same line of thinking had been expressed by David Hume, A Treatise of Human Nature 523-26 (Selby Bigge ed., 1888) (1739-40). Paley seems also to have been influenced by Hutcheson. See 4 Francis Hutcheson, A Short Introduction to Moral Philosphy, (1747) in Collected Works of Frances Hutcheson 177-202, (Georg Olms Verlag 1990). Paley's thinking may have been derivative, but Paley's writings were known to every educated English-speaking person in the first half of the nineteenth century. Paley's "work was enormously popular; fifteen editions appeared in Paley's lifetime (d. 1805)." Simpson, Horwitz Thesis, supra note 5, at 590 n.348.
174. William Paley, Moral and Political Philosophy, in The Works of William Paley, D.D. 27, 48 (J. J. Woodward 1841). Although the core of the rule appears in the original in quotations, it is uncertain what source, if any, Paley was quoting. Much the same line of thinking had been expressed by David Hume, A Treatise of Human Nature 523-26 (Selby Bigge ed., 1888) (1739-40). Paley seems also to have been influenced by Hutcheson. See 4 Francis Hutcheson, A Short Introduction to Moral Philosphy, (1747) in Collected Works of Frances Hutcheson 177-202, (Georg Olms Verlag 1990). Paley's thinking may have been derivative, but Paley's writings were known to every educated English-speaking person in the first half of the nineteenth century. Paley's "work was enormously popular; fifteen editions appeared in Paley's lifetime (d. 1805)." Simpson, Horwitz Thesis, supra note 5, at 590 n.348.
175. Paley, supra note 169, at 48. Paley used a variant of Tamerlane's name, Temures.
176. Id.
177. See id.
178. 1 Williston, supra note 55, § 21, at 23.
179. Edwin W. Patterson, Equitable Relief for Unilateral Mistake, 28 Colum. L. Rev. 859, 878 n.56 (1928); see Ricketts v. Pennsylvania R.R. Co., 153 F.2d 757, 761 n.2 (2d Cir. 1946) (Frank, J., concurring).
180. See Potter v. Ontario & Livingston Mut. Ins. Co., 5 Hill 147 (N.Y. Sup. Ct. 1843).
181. Id. at 149.
182. Id. This approach was followed in Hoffman v. Aetna Fire Ins. Co., 32 N.Y. 405, 413 (1865) ("It is a rule of law, as well as of ethics, that where the language of a promisor may be understood in more sense than one, it is to be interpreted in the sense in which [the promisor] had reason to suppose it was understood by the promisee."). See also Gunnison v. Bancroft, 11 Vt. 490, 493 (1839). The first reported application in England seems to have been Mowatt v. Lord Londesborough, 118 Eng. Rep. 1156, 1167 (K.B. 1854).
183. See Barlow v. Scott, 24 N.Y. 40 (1861). Although Paley is not cited, Paley's test was employed. See also White v. Hoyt, 73 N.Y. 505, 515 (1878) (applying the same test by employing the testimony of one of the defendants against the defendants).
184. Barlow, 24 N.Y. at 42-44.
185. Paley, however, ends his discussion of the interpretive process with a mention of the "infirmity" of promisors caused by "confusion, or hesitation, or obscurity" causing them to "encourage expectations" that "they never dreamed of." Paley, supra note 169, at 49.
186. John Austin, 1 Lectures on Jurisprudence Lecture XXI 442 n.90 (5th ed. 1885). Adam Smith in his lectures at Glasgow University had also stressed the expectations of the promisee as the basis of contract. See generally Smith, supra note 28. A student's notes of these lectures was not published until the twentieth century. Thus, it is doubtful whether his thinking on the subject had any effect on the common law.
187. Hoffman, 32 N.Y. at 413 (citing to authorities as far back as the seventeenth century).
188. See 2 Wigmore, supra note 50, § 575. The rules were more complicated in courts of equity. The defendant's answer was deemed evidence that had to be rebutted by two witnesses or one witness and circumstantial evidence. But the defendant's statements in an affirmative defense are not evidence. 2 Joseph Story, Commentaries on Equity Jurisprudence as Administered in England and America §§ 1528-1530 (11th ed. 1873); Denton v. M'Kenzie, 1 S.C. Eq. (1 Des.) 289 (1792); Thornton v. Gordon, 41 Va. 719 (1844). To some extent parties' interrogatories could be considered by the equity court. See Greenleaf, supra note 21, § 329. If the plaintiff deposed the defendant, the defendant's denial was conclusive. See Pollard v. Lyman, 1 Day 156 (Conn. 1803).
189. See 2 Wigmore, supra note 50, § 575.
190. See Teeven supra note 51, at 9-10.
191. Thomas L. Smith, Elements of the Laws 257 (1860) (recommended by the State Board of Education for use in the public schools of Indiana on Dec. 24, 1852). As in the case of most common law rules, exceptions and qualifications existed. See Nelson, supra note 100, at 156-57.
192. Dillon, Laws and Jurisprudence of England and America 339-42, reprinted in Roscoe Pound & Theodore F. T. Plucknett, Readings on the History and System of the Common Law 241 (3d ed. 1993).
193. See Wigmore, supra note 50, § 575. Others include Dillon, supra note 187, at 241; Robert Wyness Millar, Civil Procedure of the Trial Court in Historical Perspective 30 (1952) ("Bentham expressing that dissatisfaction" with the ways of civil judicature "with unmistakable emphasis and laying down those postulates which are in time to furnish material for reconstruction" of the law of evidence and civil procedure). See also id. at 43.
194. These legislative acts are summarized in Millar, supra note 188, at 207. A more detailed summary appears in 2 Wigmore, supra note 50, at 488.
195. See 2 Wigmore, supra note 50, at 693 n.9, (citing Michigan Rev. St. 1846, ch. 102 § 99).
196. See Millar, supra note 188, at 207 (citing Act of 27 June, 1848: Public Acts of Connecticut ch. 80, at 71).
197. See The Code of Civil Procedure of the State of New York § 1708 (1998 reprint) (1850) ("All persons, without exception, otherwise than as specified in the next two sections, who, having organs of sense, can perceive, and perceiving can make known their perceptions to others, may be witnesses. Therefore neither parties, nor other persons who have an interest in the event of an action or proceeding, are excluded; nor those who have been convicted of crime; nor person on account of their opinions on matters of religious belief. . . ."). Section 1709 provided for the disqualification of persons of unsound mind and some children under the age of ten. Section 1710 is not really an exception; rather it recognized certain privileges such as the attorney-client privilege. On David Dudley Field and the Codification movement, see Daun van Ee, David Dudley Field and the Reconstruction of the Law (1986), a dissertation submitted in 1974.
198. See The Code of Civil Procedure of the State of New York § 1708 (1998 reprint) (1850) ("All persons, without exception, otherwise than as specified in the next two sections, who, having organs of sense, can perceive, and perceiving can make known their perceptions to others, may be witnesses. Therefore neither parties, nor other persons who have an interest in the event of an action or proceeding, are excluded; nor those who have been convicted of crime; nor person on account of their opinions on matters of religious belief. . . ."). Section 1709 provided for the disqualification of persons of unsound mind and some children under the age of ten. Section 1710 is not really an exception; rather it recognized certain privileges such as the attorney-client privilege. On David Dudley Field and the Codification movement, see Daun van Ee, David Dudley Field and the Reconstruction of the Law (1986), a dissertation submitted in 1974. For a formidable bibliography on the subject see Roscoe Pound, David Dudley Field: An Appraisal, in David Dudley Field Centenary Essays 3 (Alison Reppy ed., 1949); Alison Reppy, The Field Codification, in id. at 17.
199. See The Code of Civil Procedure of the State of New York § 1708 (1998 reprint) (1850) ("All persons, without exception, otherwise than as specified in the next two sections, who, having organs of sense, can perceive, and perceiving can make known their perceptions to others, may be witnesses. Therefore neither parties, nor other persons who have an interest in the event of an action or proceeding, are excluded; nor those who have been convicted of crime; nor person on account of their opinions on matters of religious belief. . . ."). Section 1709 provided for the disqualification of persons of unsound mind and some children under the age of ten. Section 1710 is not really an exception; rather it recognized certain privileges such as the attorney-client privilege. On David Dudley Field and the Codification movement, see Daun van Ee, David Dudley Field and the Reconstruction of the Law (1986), a dissertation submitted in 1974. For a formidable bibliography on the subject see Roscoe Pound, David Dudley Field: An Appraisal, in David Dudley Field Centenary Essays 3 (Alison Reppy ed., 1949); Alison Reppy, The Field Codification, in id. at 17.
200. Graves v. Graves, 45 N.H. 323, 324 (1864); see also Downes v. The Union Congregational Soc. in Francestown, 63 N. H. 151, 152 (1884) ("[w]hen the intention of the parties to a transaction is material, they may testify to it directly."); Delano v. Goodwin, 48 N.H. 203, 205-06 (1868) ("where the intention or good faith of a party to a suit becomes material . . . the party himself, if a competent witness, may testify directly to his intention or understanding."); Hale v. Taylor, 45 N.H. 405, 407 (1864) (holding that while intention not manifested by words or deeds is irrelevant, testimony to explain the intent of one's words or deeds is admissible). Compare the preceding with twentieth century New Hampshire cases. E.g., Riley v. Springfield Sav. Bank, 168 A. 721 (N.H. 1933) (holding evidence of subjective intent admissible where contract is ambiguous; there is no valid contract if there was a misunderstanding); A. Perley Fitch Co. v. Phoenix Ins. Co., 133 A. 340 (N.H. 1926) (using an objective test to interpret oral contracts).
201. Thurston v. Cornell, 38 N.Y. 281, 287 (1868) (examining party's intent to either receive usurious compensation for a loan or to receive reimbursement of expense of collection); see also Bedell v. Chase, 34 N.Y. 386 (1866) (stating that inventory purchasers could testify as to their intent not to defraud seller's purchasers); McKown v. Hunter, 30 N.Y. 625 (1864) (holding that a defendant can testify as to his intention in a malicious prosecution action); Forbes v. Waller, 25 N.Y. 430 (1862) (holding that an assignor may be asked whether his intention was to defraud creditors); Seymour v. Wilson, 14 N.Y. 567 (1856) (same).
202. See Bank v. Kennedy, 84 U.S. 19 (1872).
203. Id. at 26.
204. See 2 Wigmore, supra note 50, § 581. One observer wrote about "the good old times" when "everybody as witnesses except those who knew something about the subject matter." A. B., Testimony of the Parties in Criminal Prosecutions, 14 Am. L. Reg. & U. of Pa. L. Rev. 129, 130 (1866).
205. 6 L.R.-Q.B. 597 (1871).
206. See id. at 599.
207. Id. at 607.
208. Phillip v. Gallant, 62 N.Y. 256 (1875) (apparently the reasonable French woman should understand English).
209. A favorite of old casebooks was White v. Corlies, 46 N.Y. 467 (1871), which held that an uncommunicated intent to accept an offer does not create a contract. Under the subjective theory, as applied in France, it could be argued that a contract would have been formed because the offeree took concrete steps (purchasing and working on lumber), thus providing objective evidence of the subjective intention to accept. The court, on the cusp of subjective and objective thinking, thought that the concrete steps were not clearly referable to the claimed contract. See id. at 470. Silent acquiescence in plaintiff's offered terms could be presumed under certain circumstances. See Alexander v. Vane, 150 Eng. Rep. 537 (Ex. D. 1836); accord, Hall v. Inhabitants of Holden, 116 Mass. 172 (1874). Holmes cited Hall for the proposition that "[a]ssent, in the sense of the law, is a matter of overt acts, not of inward unanimity in motives, design, or in the interpretation of words." O'Donnell v. Town of Clinton, 14 N.E. 747, 751 (Mass. 1888). The United States Supreme Court used this language: "the belief of one party to a transaction is not the criterion by which the rights of the parties are to be governed, unless the other party, by his conduct or declarations, induced that belief." Bank v. Kennedy, 84 U.S. 19, 28 (1872). This case, however, allowed testimony by a party of his intent. See id. This is one of the transitional cases from a subjective to an objective approach.
210. A "receiptor" is defined as "[a] person who receives from a sheriff another's property seized in garnishment and agrees to return the property upon demand or execution." Black's Law Dictionary 1275 (7th ed. 1999).
211. Wright v. Willis, 84 Mass. 191, 193 (1861); see also Daley v. Carney, 117 Mass. 288 (1875) (basing decision on evidence which justified the inference of a particular intent on the part of defendant). Holmes entered law school in 1864. Liva Baker, The Justice from Beacon Hill 163-77 (1991) (detailing Holmes' 12 years of legal education).
212. Wright, 84 Mass. at 193.
213. Nichols v. Mercer, 44 Ill. 250, 252 (1867).
214. 43 N.Y. 231 (1870). In a similar case, the court said that a party may not be asked by his counsel whether he intended to be bound by signing a written guaranty, but the question was proper on cross-examination. See Quimby v. Morrill, 47 Me. 470 (1859).
215. Dillon, 43 N.Y. at 236.
216. See Greenleaf, supra note 21, § 297, at 340-41.
217. Id. § 284, at 322-23.
218. 2 Ch. D. 463 (1876).
219. Id. at 473.
220. See Dillon, 43 N.Y. at 236.
221. "He was elected to the United States Senate in 1852, and refused the offer of a seat on the Supreme Court. He became Attorney General, Secretary of War, and then Secretary of State for the Confederate Government. Biographies by P. Butler (1907) and R.D. Meade (1943), and E. Evans (1988)." A. W. Brian Simpson, Leading Cases in the Common Law 240 n.45 (Clarenden Press Oxford 1995) [hereinafter Simpson, Leading Cases]. After the Civil War, Benjamin emigrated to England and became England's "leading appellate barrister." Id. at 240.
222. J. P. Benjamin, A Treatise on the Law of Sale of Personal Property 357-58 (London 1868), as quoted by Simpson, Leading Cases, supra note 214, at 159.
223. Reuben M. Benjamin, The General Principles of the American Law of Contract 7-8 (2d ed. 1907). This Benjamin is described on the title page as "Professor of Law in Bloomington Law School." In the same year, a new edition of Bishop on Contracts was published. It contained subjective language similar to that quoted supra, at note 73. Joel Prentiss Bishop, Commentaries on the Law of Contracts 126 (2d enlarged ed. T. H. Flood and Co. 1907).
224. Reuben M. Benjamin, The General Principles of the American Law of Contract 7-8 (2d ed. 1907). This Benjamin is described on the title page as "Professor of Law in Bloomington Law School." In the same year, a new edition of Bishop on Contracts was published. It contained subjective language similar to that quoted supra, at note 73. Joel Prentiss Bishop, Commentaries on the Law of Contracts 126 (2d enlarged ed. T. H. Flood and Co. 1907).
225. C.C. Langdell, A Summary of the Law of Contracts (2d ed. 1880).
226. Williston's capsule description of Langdell makes Langdell seem weird or, at least, quirky. See Samuel Williston, Life and Law: An Autobiography 199-201 (1940).
227. Langdell, supra note 217, § 148, at 193 (emphasis supplied).
228. Id.
229. Id. § 149, at 194 (emphasis supplied).
230. See Frederick Pollock, Principles of Contract *30 (1876) ("not intention in the abstract, but communicated intention, is what we have to look to in all questions of the formation of contracts"); see also id. at *4.
231. See Edward Avery Harriman, Elements of the Law of Contracts 34 (1896).
232. See Lazell v. Pinnick, 1 Tyl. 247 (Vt. 1801).
233. See Wigglesworth v. Steers, 11 Va. (1 Hen. & M.) 70 (Va. 1806). But see, 1 Zephaniah Swift, A System of the Laws of the State of Connecticut 358 (photo. reprint 1972) (1795) (stating that drunkenness is "a crime, and is of the party's own procuring," thus not grounds for avoiding a contract unless he was debauched by the other party).
234. See G. H. Treitel, The Law of Contract 44, 513-14 (9th ed. 1995).
235. See Restatement (Second) of Contracts § 48 (1979); Restatement of Contracts § 48 (1932); Joseph M. Perillo, 1 Corbin on Contracts § 2.34 (revised ed. 1993) (stating and criticizing the rule).
236. 18 F. Cas. 1062 (D. Me. 1847).
237. A predecessor was Mactier's Adm'rs v. Frith, 6 Wend. 103 (N.Y. 1830).
238. Palo Alto, 18 F. Cas. at 1067.
239. See R. J. Pothier, A Treatise on the Contract of Sale No. 32 (Legal Classics Library 1988) (photo. reprint 1839) (1762). Other American cases have reached the same result by analogy to the common law of agency pursuant to which the death of the principal terminates the agent's authority even if the agent is unaware of the death. See Michigan State Bank v. Estate of Leavenworth, 28 Vt. 209 (1856) (death of promisor of a letter of credit), overruled on other grounds by Austin v. Curtis & Walker, 31 Vt. 64 (1858). Michigan State Bank, which employed the analogy to agency, has been cited for the broader ground that death terminates the power of acceptance created by an offer. See Chain v. Wilhelm, 84 F.2d 138, 141 (4th Cir. 1936).
240. See Westhead v. Sproson, 158 Eng. Rep. 301 (Ex. 1861); Treitel, supra note 226, at 43.
241. See Harriss v. Fawcett, 8 L.R.-Ch. 866, 869 (Ch. App. 1873).
242. See Pothier, supra note 15, at 32.
243. See Perillo, supra note 227, § 2.19.
244. See Cal. Civ. Code §§ 1586-1588 (West 1982).
245. See N.Y. Civil Code (reprint 1998) (1865). Revocation is dealt with in § 771-772. Section 772 states that the manner of transmission is governed by §§ 766 and 768. Section 768 adopts the mailbox rule of Adams v. Lindsell. For a brief history of the adoption of the California Civil Code, see Joseph L. Lewinsohn, Contract Distinguished from Quasi Contract, 2 Cal. L. Rev. 171, 171 n.1 (1914).
246. One commentator noticed the subjective elements in the California Code and appeared perplexed by their presence and pronounced its provisions with respect to contract formation as "radically defective both in form and content" and replete with "unexplained departures from established principles." Joseph L. Lewinsohn, Mutual Assent in Contract Under the Civil Code of California, 2 Cal. L. Rev. 345, 366 (1914).
247. N.Y. Civil Code § 814.
248. See Cal. Civ. Code § 1649 (West 1985).
249. See Ga. Code Ann. § 13-2-4 (Michie 1982) ("The intention of the parties may differ among themselves. In such case, the meaning placed on the contract by one party and known to be thus understood by the other party at the time shall be held as the true meaning.").
250. See Iowa Code Ann. § 622.22 (West 1999) ("When the terms of an agreement have been intended in a different sense by the parties to it, that sense is to prevail against either party in which a party had reason to suppose the other understood it.").
251. See Mont. Code Ann. § 28-3-306 (1999).
252. See N.D. Cent. Code § 9-07-14 (1987).
253. See Okla. Stat. Ann. tit. 15, § 165 (West 1993).
254. See Kytlica v. Albertson & Co., 190 N.W. 159 (Iowa 1922); Brannen v. State Exch. Bank of Parkersburg, 180 N.W. 886 (Iowa 1921); Musselshell Valley Farming & Livestock Co. v. Cooley, 283 P. 213 (Mont. 1929); Peterson v. Ramsey County, 563 N.W.2d 103 (N.D. 1997).
255. See supra note 192 for a discussion of The Code of Civil Procedure's impact on party testimony.
256. See Continental Cas. Co. v. Rapid-Am. Corp., 609 N.E.2d 506 (N.Y. 1993) (stating that evidence of practical construction not admissible if the contract is unambiguous); W.W.W. Associates, Inc. v. Giancontieri, 566 N.E.2d 639 (N.Y. 1990) (holding that parol evidence inadmissible to show that a term with a plain meaning is ambiguous).
257. See Alexander v. Gardner-Denver Co., 415 U.S. 36, 52 n.15 (1974); Long v. Sears Roebuck & Co., 105 F.3d 1529, 1534 (3d Cir. 1997); Gorman v. Earmark Inc., 968 F. Supp. 58, 62 (D. Conn. 1997) (addressing pension claims under ERISA, age and disability discrimination statutes and comparable state law).
258. See Kabil Devs. Corp. v. Mignot, 566 P.2d 505 (Or. 1977).
259. See Gordley, supra note 13, § 68.
260. See Val D. Ricks, American Mutual Mistake: Half-Civilian Mongrel, Consideration Reincarnate, 58 La. L. Rev. 663, 688-704 (1998). I have subscribed to the notion that the term "failure of consideration" should be abandoned. See Calamari & Perillo, supra note 22, § 11.21. Nonetheless, we are here discussing doctrine prior to the twentieth century which employed this concept. Today, scholars generally subscribe to Corbin's terminology, "failure of constructive condition."
261. 1 William Blackstone, Commentaries on the Laws of England *127 (William S. Hein & Co., Inc. 1992) (1766).
262. W.W. Story shared a similar belief. See his eloquent passage in Story, supra note 75, § 92.
263. The doctrine of duress of goods originated with the case of Astley v. Reynolds, 2 Strange 915, 93 Eng. Rep. 939 (K.B. 1732) where a pledgee refused to surrender pledged property to the pledgor except on payment of an unjustified bonus. The pledgor made the payment and recovered the excess payment, the court stating the owner "might have such an immediate want of his goods, that an action of trover would not do his business." Id.
264. See, e.g., Jones v. Barkley, 2 Doug. 684, 696-98, 99 Eng. Rep. 434, 441-44 (1781) (discussing the unreported case of Smith v. Bromley).
265. See Austin's Adm'x v. Winston's Ex'x, 11 Va. (1 Hen. & M.) 33, 44 (1806).
266. Parsons deals with duress under "Persons of Insufficient Mind to Contract," along with non compos mentis, spendthrifts and seamen. This category is sandwiched between infants and married women on one side, and aliens, slaves, and outlaws on the other. 1 Parsons, supra note 152, at 319-21. Williston, who edited the eighth edition of Parsons' treatise, speaks disparagingly of the work. Williston, supra note 218, at 136-37.
267. See Austin's Adm'x, 11 Va. (1 Hen. & M.) at 33.
268. Id. at 35.
269. Id. at 39.
270. Id. at 43 (Roan, J., concurring).
271. Id. at 45, 49.
272. Id. at 48.
273. Parsons, supra note 152, at 769.
274. Id.
275. Gordley, supra note 13, at 30.
276. John Dalzell, Duress by Economic Pressure, I, 20 N.C. L. Rev. 237, 238 (1942); see also Robert L. Hale, Bargaining, Duress and Economic Liberty, 43 Colum. L. Rev. 603 (1943) (discussing the notion that one's choices under compulsion are still "voluntary"); F.C. Sharp, The Ethics of Breach of Contract, 45 Int'l J. of Ethics 27, 30- 31 (1934).
277. John Dalzell, Duress by Economic Pressure, I, 20 N.C. L. Rev. 237, 238 (1942); see also Robert L. Hale, Bargaining, Duress and Economic Liberty, 43 Colum. L. Rev. 603 (1943) (discussing the notion that one's choices under compulsion are still "voluntary"); F.C. Sharp, The Ethics of Breach of Contract, 45 Int'l J. of Ethics 27, 30- 31 (1934).
278. John Dalzell, Duress by Economic Pressure, I, 20 N.C. L. Rev. 237, 238 (1942); see also Robert L. Hale, Bargaining, Duress and Economic Liberty, 43 Colum. L. Rev. 603 (1943) (discussing the notion that one's choices under compulsion are still "voluntary"); F.C. Sharp, The Ethics of Breach of Contract, 45 Int'l J. of Ethics 27, 30-31 (1934).
279. Union Pac. R.R. Co. v. Public Serv. Comm'n of Mo., 248 U.S. 67, 70 (1918).
280. Id.
281. 2 Edward Coke, The First Part of the Institutes of the Laws of England *253b (19th ed. 1832) (1628).
282. Pothier, supra note 15, at 20-22.
283. See id. at 20. Common law text writers usually distinguish misunderstanding (Pothier's example) from mistake, but common law courts do not generally make the distinction. See, e.g., Hughes v. Mercantile Mut. Ins. Co., 55 N.Y. 265 (1873) (the two ships "Empress"). Usually cited to illustrate misunderstanding is Raffles v. Wichelhaus, 2 H. & C. 906, 159 Eng. Rep. 375 (Ex. 1864) (the two ships "Peerless"), but Simpson has shown us how little we can understand about the case as the court dismissed the complaint without opinion. Simpson, Leading Cases, supra note 214, at 135-62 (1995). For a discussion of misunderstanding, see George E. Palmer, The Effect of Misunderstanding on Contract Formation and Reformation Under the Restatement of Contracts Second, 65 Mich. L. Rev. 33 (1966).
284. See Coles v. Bowne, 10 Paige Ch. 526 (N.Y. Ch. 1844).
285. See Calamari & Perillo supra note 22, ch. 9 ("Avoidance or Reformation for Misconduct or Mistake"); Farnsworth, supra note 55, at 241 ("Abuse of the Bargaining Process," except that mistake is dealt with in Chapter nine under "Failure of a Basic Assumption"); Murray supra note 55, at § 92 ("Abuse of the Bargaining Process," except for mistake which is dealt with in section 91 under "Operative Expressions of Assent.").
286. See Clark, supra note 43, ch. 7 (1894). Clark, a professional writer of law books, is best known today for his contract with West which contained a condition that he not imbibe alcoholic beverages and for the consequences of noncompliance with that condition. Clark v. West, 86 N.E. 1 (N.Y. 1908).
287. See Wm. L. Clark, Jr., Handbook of the Law of Contracts ch. 7 (Archibald H. Throckmorton & Alvin C. Brightman eds., 4th ed. 1931).
288. See supra text accompanying note 216.
289. See Benjamin, supra note 216, ch. 5. [Reference is to Reuben B., not Judah B.]
290. Clarence D. Ashley, The Law of Contracts § 46 (1911).
291. See 1 Williston, supra note 55, § 20; 3 Williston, supra note 55, §§ 1486-1627 (1920).
292. See 3 Holmes, supra note 45, ch. 27. This volume deals with interpretation, the parol evidence rule, and mistake.
293. See Calamari & Perillo, supra note 22, at 309.
294. See Kaplan v. Kaplan, 182 N.E.2d 706, 709 (Ill. 1962); Silsbee v. Webber, 50 N.E. 555 (Mass. 1898) (a classic exposition by Holmes); Rubenstein v. Rubenstein, 120 A.2d 11 (N.J. 1956); 13 Samuel Williston, The Law of Contracts § 1605 (3d ed. 1957). But see Three Rivers Motors Co. v. Ford Motor Co., 522 F.2d 885 (3d Cir. 1975) (applying a standard of duress whereby threats of actual bodily harm are required).
295. See Young v. Hoagland, 298 P. 996 (Cal. 1931). At times the "mind of a person of ordinary firmness" rule is routinely stated, but usually in a case where the precise test is not really at issue. See, e.g., Bata v. Central-Penn Nat'l Bank, 224 A.2d 174 (Pa. 1966), where the old rule is stated but in a context where "we find it inconceivable that appellant was subject to any degree of restraint or danger." Id. at 180. The test is, however, repeated in Strickland v. University of Scranton, 700 A.2d 979 (Pa. Super. Ct. 1997).
296. See Murray, supra note 55, § 93(I).
297. See Farnsworth, supra note 55, § 4.18.
298. 264 F.2d 821, 824 (8th Cir. 1959).
299. Id. at 824.
300. 451 S.W.2d 539 (Tex. Civ. App. 1970).
301. Id. at 543-44. Other well-known undue influence cases clearly employing a subjective test include Francois v. Francois, 599 F.2d 1286 (3d Cir. 1979), cert. denied, 444 U.S. 1021 (1980), and Odorizzi v. Bloomfield School Dist., 54 Cal. Rptr. 533 (1966).
302. 3 Williston, supra note 55, § 1605 at 2832-33 (footnotes omitted).
303. See Farnsworth supra note 55, § 4.18 at 270.
304. See Loral Corp. v. United States, 434 F.2d 1328 (Ct. Cl. 1970); Austin Instrument, Inc. v. Loral Corp., 272 N.E.2d 533 (N.Y. 1971).
305. See King v. Donkenny, Inc., 84 F. Supp. 2d 737 (W.D. Va. 2000).
306. Id. at 739.
307. Farris v. County of Camden, 61 F. Supp. 2d 307, 336 (D. N.J. 1999) (quoting Continental Bank v. Barclay Riding Acad., Inc., 93 N.J. 153, 177 (1983)).
308. 61 F. Supp. 2d at 337 (quoting McBride v. Atlantic City, 146 N.J. Super. 498, 503 (Law Div. 1974)).
309. Wrongful conduct need not be criminal or tortious. The abusive exercise of a legal right can be the predicate for duress. See Calamari & Perillo, supra note 22 § 9.3; Joseph M. Perillo, Abuse of Rights: A Pervasive Legal Concept, 27 Pac. L. J. 37, 60-69 (1995).
310. See, e.g., Am. Life Ins. Co. v. Parra, 63 F. Supp. 2d 480, 502 (D. Del. 1999) (methodically going through the elements for relief for misrepresentation, though ignoring reliance, proceeding to ask the question "[w]as Parra's reliance on Fernandez's misrepresentation justifiable?").
311. Restatement (Second) of Contracts § 167 (1981).
312. See McCormick & Co. v. Childers, 468 F.2d 757 (4th Cir. 1972); Gary v. Politte, 878 S.W.2d 849 (Mo. Ct. App. 1994); Copland v. Nathaniel, 624 N.Y.S.2d 514 (Sup. Ct. 1995). But see Fisher v. Mr. Harold's Hair Lab Inc., 527 P.2d 1026, 1034 (Kan. 1974); Restatement (Second) of Contracts § 167 ill. 1 (1981).
313. See Engalla v. Permanente Med. Group, 64 Cal. Rptr. 2d 843, 859 (1997).
314. Restatement (Second) of Contracts § 152, cmt. a.
315. See, e.g., American Law Review 6:3550 (1871), reprinted in 1 The Collected Works of Justice Holmes 271-73 (Sheldon M. Novick ed. 1995) (reporting Massachusetts District Court Bankruptcy decisions).
316. Baker, supra note 204, at 208-09.
317. See id. at 209-12.
318. See 2 Kent, Commentaries on American Law, supra note 138, at 452 n.1(c).
319. Id. at 451 n.1(a).
320. Id. at 482 n.1.
321. See id. at 553-57.
322. The true usher appears to have been Judah Benjamin. See supra text accompanying notes 214-15. Benjamin's text on sales was cited to the court on another point. Smith v. Hughes, 6 L.R.-Q.B. 597, 599 (1871). Thus, all the lawyers and judges in the case were familiar with this text.
323. 84 U.S. 19 (1872). This was a suit by a receiver of one bank against another bank.
324. See Holmes, Jr., supra note 82, at 310 n.1.
325. Id. at 307.
326. Id. at 309.
327. O. W. Holmes, The Path of the Law, 10 Harv. L. Rev. 457, 464 (1897).
328. Despite the predominance of the objective approach, a considerable number of decisions today are subjectively based and parties testify as to their intentions. See, e.g., Sutton v. Bank of New York, 673 N.Y.S.2d 380 (N.Y. App. Div. 1998) (basing a determination that a bank account was jointly held on parties' submissions).
329. See Holmes, Jr., supra note 82, at 308-39.
330. See Robert L. Birmingham, Holmes on 'Peerless': Raffles v. Wichelhaus and the Objective Theory of Contract, 47 U. Pitt. L. Rev. 183 (1985).
331. The phrase is Blackstone's. 1 Blackstone, supra note 253, at *76.