Open main menu

Page:Harvard Law Review Volume 1.djvu/113

This page has been proofread, but needs to be validated.

or, at least, that it was intended to be bilateral. If one side of a contract fails, but the other is, for some reason, binding, it is really a unilateral contract; yet equity will not enforce it. A recognized exception is the case where one side of a contract is in writing, the other unenforceable by the Statute of Frauds. In that case, perhaps in deference to the language of the statute, the side which has been put in writing will be enforced. (Hatton v. Gray, 2 Ch. Cas. 164.)

It is generally agreed that the mutuality has reference to the state of things when the contract was made; otherwise the rule involves an absurdity, for the remedy is almost never mutual at the time of filing the bill. The plaintiff alone can then have a remedy; he cannot maintain his bill unless the defendant is in default and he himself is not in default; the defendant in such a case could not maintain a bill. It is not a question, therefore, of the time when the remedy is sought, but of the time when the contract is made.

It is doubtful whether the rule as to mutuality is in force in Massachusetts. In the case of Dresel v. Jordan (104 Mass. 407), it was assumed that the rule was in force, and that, therefore, it would follow that a vendor of land could generally file a bill for the purchase-money. The correctness of this assumption, however, seems to be greatly shaken by the later case of Jones v. Newhall (115 Mass. 244), decided by the same judge. That was the case of a contract for the sale of shares in a land company. The purchase-money was payable absolutely; conveyance of the shares was conditional on payment of the purchase-money. The vendor filed a bill to recover the purchase-money, and the court dismissed the bill, on the ground that the remedy at law was adequate.

It seems impossible to reconcile this decision with the assumption in the case of Dresel v. Jordan. The vendee could have performance; therefore, if the rule as to mutuality of remedy is in force, the vendor should have it. The court does not notice the case of Dresel v. Jordan, and does not discuss the question of mutuality of remedy; it inquires only whether in the particular case the plaintiff has an adequate remedy at law. This is in fact an utter repudiation of the principle of mutuality of remedy. It is by no means to be regretted that this rule should be repudiated.




RECENT CASES.

AttorneyImplied Authority. — An attorney-at-law has implied authority to do all things which affect the remedy only, and not the cause of action; he may, therefore, dismiss a suit. Davis v. Hall, 3 S. W. Rep. (Mo.) 383.

CarrierLimit of Liability. — A common carrier cannot by contract avoid its liability for negligence; but where rates of transportation of freight are graduated according to the value of freight, and a limit of liability is fixed for each class of freight, a shipper who chooses to ship an animal worth $5,000 in a class in which the limit is fixed at $75, cannot for the loss of the animal recover more than $75. Hill v. R. Co., 10 N. East. Rep. (Mass.) 836. To the same effect. R’y Co. v. McCarthy, Weekly Notes (Eng.) 1887, p. 34, reversing s. c. L. R. Ir. 18 Q. B. D. 1.

Conditional Sale. — When the question is whether corn was bought conditionally upon the result of “inspection” after delivery to vendee, it is for the jury to decide whether the selling of a portion after delivery but before inspec-