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Page:Harvard Law Review Volume 1.djvu/200

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formal. Stephen’s, 96. Chandelor v. Lopus was on a motion in arrest of judgment. To this I confine myself. No one concerned in the decision ever knew, therefore, what were the facts, or the merits, or the evidence. There was but this single point: Does this averment show a cause of action?

As happened in the commentaries on Pordage v. Cole, this has been generally overlooked, and it has been supposed by some, who ought to have known better, that the case had decided that, without the use of a cabalistic word, or some special form of words, a contract could not have been made.

In Chandelor v. Lopus all that was decided was this: that the legal effect of an alleged contract or conduct must be stated, and not evidence from which that effect can be inferred, or by which it may be proved. And this, though the fact, if used as evidence, may be such that the inference is inevitable that a cause of action is proved. How, then, can it have been that men of the capacity and in the position of Chief-Justice Gibson of Pennsylvania, in Borrekens v. Bevan, 3 Rawle, 44, and Chief-Justice Parker of Massachusetts, in 13 Mass. 143, made such absurd mistakes?

It is impossible to assign any other reason than that both were not familiar with the despised art of the pleader.

The divergence of the deductions from the same premises is most characteristic.

Now, what is it that both these eminent men thought was decided, and which one accepted and gloried in, and the other rejected, refusing to be bound by any such law? A jeweller dealing with his customer exhibited a stone and affirmed it to be a bezoar stone. The purchaser bought it for £100, and it was not a bezoar stone. There is no liability in that case, says one. There is, says the other. Observe. There is no fraud or intentional false statement. But there was a statement of a fact connected with a thing being sold; it was a fact peculiarly within the province of the seller and unknown to the buyer, and which he had a right to suppose the seller knew. It was of an occult quality of a substance, constituting the very essence of the substance.

The purchaser evidently relied on the statement, and presumably was known to have relied on it. All this is implicitly contained in the averment as matter of evidence or proof.

What makes C. J. Gibson’s mistake the more remarkable is that