Page:Harvard Law Review Volume 12.djvu/517

NOTES. 497 courts have yielded to the temptation to lay down qualifying rules. When the subject-matter of the contract involves personal taste or judg- ment, an agreement that it shall be satisfactory to the promisor, it is said, necessarily makes him sole judge whether it answers that condition. Gibson v. Lanage, 39 Mich. 49. But when the satisfaction stipulated for involves other standards, such as quality, utility, salability, and the like, then, it is said, it is a necessary implication that he must decide as a rea- sonable man. Duplex Co. v. Garden, loi N. Y. 387. However, these rules seem little more than attempts to classify the cases. Upon principle the test should be the simple one of the actual intention of the parties. This is not to be sought by set rules of interpretation which foster fictions. The rules above recited express, it is true, certain postulates of experience which will guide the triers of fact — the court if the contract be written, the jury if the contract be oral. But to harden these into rules of law will often result in imposing upon one of the parties a liability which neither intended that he should assume. This view, moreover, that it is a problem of fact whether actual or reasonable satisfaction be requisite is well sustained by authority. Singerly v. Thayer, 108 Pa. St. 291 ; Wood Co. v. Smith, 50 Mich. 565. The decision in the principal case that satisfaction there meant personal satisfaction is, indeed, unexceptionable ; but that result would seem to be not, as the court holds, a conclusion of law but a conclusion of fact Larceny of a Building. — From its very nature, larceny of a build- ing must be a rare occurrence. Yet this is what was attempted by the defendant in Regina v. Richards, noted in the Law Journal, Jan. 14, 1899. Richards tore down an unoccupied building and removed it without the owner's knowledge. He was charged with stealing a house, but larceny of real estate having no place in the common law, the court were compelled to proceed against him under a statute to secure his conviction. Ap- parently the tearing down and the carrying away were one transaction ; if so, the decision and its reason are clearly correct. The house remained realty until it was pulled down, when its materials became chattels. As such they immediately passed into the wrongdoer's dominion ; and before their severance it is clear that the owner never had possession of them as personalty. Unless, therefore, between the conversion into personalty and the act of taking away there was an interval during which the chattels passed into the dominion of their owner, there could be no larceny. What is sufficient to make these two acts distinct and vest the posses- sion where it rightfully belongs may well be a matter of doubt from the cases. Where the wrongdoer has left the chattels in a ditch on the owner's land and returned for them several hours later, never having intended to relinquish his control, it has been held that no larceny was made out. Regina v. Townley, 12 Cox C. C. 59. Where three days elapsed between the severance and the taking, the defendant was con- victed, in spite of the continuance of his felonious state of mind, on the grounds that his control ceased with his physical abandonment, and that continuity of intention is not equivalent to continuity of possession. Regina v. Foley, 26 L. R. Ir. 299. This case, moreover, was not sup- posed to overrule Regina v. Townley, supra, and Regina v. Fetch, 14 Cox C. C. 116. It is clear that no one can divest himself of possession of a