conclusions. An agent for the consolidated corporation may act for and bind all the members; and this would undoubtedly be true of an act done outside all the incorpor ating States. In one of the incorporating States, however, one should hold in strict ness that it is the local corporation which is acting. But an act done anywhere bind ing one of the corporations will give a cause of action in either State of incorporation against the corporation in that State: whether because the corporations are to be taken as partners, or, more probably, be cause the State in incorporating it subjected it to such a liability;—created it to be dealt with as one corporation and not two. in the language of Judge Doe. "FREEDOM of Contract," says Professor Clarence D. Ashley in the Columbia Law Review for June, "has been the fetish of our modern law for years." "Every man is the master of the contract he may choose to make: and it is of the highest importance that every contract should be construed according to the inten tion of the contracting parties." Probably this statement of Chief Justice Erie would strike any one as both sound and common place. Nevertheless it is believed that the statement does not accurately express the law, and that it may be as well that it does not. . . . The subject of contract is still growing. Many of its principles are undeveloped and crude. This gradual growth is changing pre conceived views, and the student or writer of this subject must grow with it or be left hopelessly behind. To most lawyers it seems axiomatic to say that in our system of law every simple promise must be supported by a consideration. Probably that is so, but how far has that advanced us? What is this so-called consideration? If Dean Ames is right in his able and interesting articles it would seem to be a steadily decreasing something which has about reached the van ishing point. So also, we may inquire what we mean by this universal test of mutual assent. This may be well enough expressed
thus: The first essential of a contract is mutual assent, and mutual assent means the consent of the parties to the terms of the contract, intent by both parties to enter into .the proposed arrangement." There seems no reason to change this gen eral view, but nevertheless if too strictly and logically followed, it leads to situations which are intolerable and which the courts never have and never will strictly enforce. It is well enough for us to classify contracts as those obligations having their initiative in the intent and agreement of the parties, but when that preliminary has once taken place, there seems to be no essential reason why the courts cannot modify the obligation which thus arises, and why the mastery of a man over the contract he chooses to make should not be subject to rules and regu lations applied by the courts and directly lim iting the master)' of the parties. It is true that when a man bases his promise to pay upon the judgment of an eminent architect it is a somewhat strong proposition to sug gest that he shall not have such safeguard, but shall be turned over to the judgment of twelve inexperienced men. To say that this is only done when the architect unjustly or fraudulently withholds the certificate is only saying in another form that the entire ques tion is to be settled by the jury. Courts should disregard the expressed intention of the parties only in extreme cases and with great caution, but that it is sometimes bene ficial to do so seems certain. WE regret that lack of space this month makes it necessary to postpone, until our August issue, quoting from Professor James B. Scott's admirable article on "Interna tional Law in Legal Education," in the Columbia Law Review for June, from Mr. Chief Justice Mitchell's learned address on "Hints upon. Practice in Appeals," and Henry Wolf Biklé's able "Review of the Northern Securities Decision," in the Amer ican Law Register for June, and the several interesting articles and correspondence in the current number of the American Law Review.
