slightly argued; yet, it is a provision not to be disregarded, though merely directory, like that requiring the legislature to use good English. But though the provision is not to be disregarded, it is to be observed according to some construction, and should receive such a one as to obviate its inconveniences and objectionable character, as far as consistently can be done."24

In cases reversed, the court construes that provision of the constitution to not require an opinion on every point presented by the record, but only enough to compel a reversal. Under this construction, a discussion of a single question which requires a reversal is all that need be covered by the opinion; and the query is why do the judges not always follow that plan and relieve themselves of the great burden of the preparation of unnecessarily long opinions.

The provision of the constitution does not necessarily require the preparation of long opinions. The short opinions at the end of each volume of many state reports in recent years are evidence of that fact. Of course, those kind of opinions cannot be used in all instances; and no one desires such opinions in all cases. But that provision. does not require nor call for arguing, and much less controversial opinions, the abomination of the reports.25

I think the profession would greatly appreciate short, clear, concise opinions, with a few-a very few-citations clearly in point, devoid of the essay characteristics, free from long quotations, without discussion of a statement of elementary principles of the law (which every lawyer ought to know), and without syllabi straddling over half the universe.

Indianapolis, Ind.

W. W. THORNTON.

(24) Willetts v. Ridgway, 9 Ind. 369. (25) "It is not every case which will justify the expenditure of time necessary to write an opinion. Many cases involve no new principles, and are appealed only for delay. It can serve no purpose of public good to report elementary principles of law which have never been questioned for centuries. The Court must therefore exercise its own discretion as to the necessity of giving an opinion upon pronouncing judgment, and if one is given, whether it shall be oral or in writing. In the exercise of that discretion, the authority of the Court is absolute. The legislative department is incompetent to touch it." Houston v. Williams, 13 Calif. 24.

CONTRACTS-MUTUALITY.

NATIONAL SURETY CO. v. CITY OF ATLANTA.

Court of Appeals of Georgia Division No. 2. February 7, 1920. Adhered to on Rehearing February 23, 1920.

102 S. E. 175.

(Syllabus by the Court.)

An instrument in writing purporting to be a bilateral contract, as set out in the first count of the petition, wherein only one of the parties promises to perform, there being no objection on the part of the other party, lacks mutuality and is a nudum pactum.

The city of Atlanta brought suit against the National Surety Company, alleging a breach on the part of the defendant as guarantor upon a bond guaranteeing to the plaintiff the performance of certain obligations assumed by the Tennessee & Southeastern Coal Company under alleged contract between the coal company and the city of Atlanta, whereby the coal company promised to furnish and deliver to the city of Atlanta coal in certain carload quantities at certain intervals during a period of 12 months. The alleged contract provided that the coal company would furnish the coal upon orders of a designated officer of the city, and contained a provision as follows:

"After a verbal or written notice to suspend deliveries under this contract, a further notice may be served in writing to suspend deliveries of coal, and the city will be at liberty to refuse to accept any coal delivered after fortyeight hours from date of such written notice."

The petition set out the bond and the alleged contract between the coal company and the city, which was executed by both parties, and alleged a failure upon the part of the coal company to carry out its promises and undertakings therein contained, and that by reason of such failure the defendant breached the bond sued on, to the damage of the plaintiff. The petition contained two counts. The first count alleged the existence of a contract between the coal company and the city of Atlanta by the terms of which the coal company was obligated to furnish coal to the city of Atlanta as above stated, and alleged a breach of the same by reason of the failure on the part of the coal company to perform, to the damage of the city, thereby constituting a breach of

the bond. The second count alleged written communications from the city to the coal company from time to time throughout the year, ordering coal in piecemeal lots, in accordance with the promises and obligations of the coal company as contained in the alleged contract, and also the refusal and failure on the part of the coal company to furnish the coal in compliance with such orders to the damage of the city, thereby constituting a breach of the bond. The defendant demurred to the petition, upon the ground that the alleged contract attached thereto was void for want of consideration, that it was lacking in mutuality, and fixed no binding obligation upon the city, and, there being no contract to be performed, there appeared no breach of the bond, which had been given to secure the performance of a contract which did not exist, and that the petition failed generally to set out a cause of action.

STEPHENS, J. (after stating the facts as above). The sole question for determination is whether or not there ever existed a contract between the parties as set out in either count of the petition. If there was no contract, there was no breach of the bond given to guarantee the performance of the contract.

1. The alleged contract which was attached to the petition contained certain promises and obligations on the part of the coal company, but did not contain any executed consideration or promise or undertaking on the part of the city. It purported to be a bilateral contract; i. e., a contract executory on both sides. The city not being obligated to the performance of any promise, and there being no mutual promises as a consideration for each other, the alleged contract is lacking in mutuality and therefore void. After reciting that the city of Atlanta had accepted a bid of the coal company to furnish coal to the city, which bid was attached to the instrument as an exhibit, and contained promises by the coal company only and the terms upon which the coal company would for a period of one year furnish coal to the city of Atlanta, the instrument provided:

"That for and in consideration of the promises and the acceptance of the bid of said contractor by said city, as above set out, and in consideration of the promise on the part of the said city to pay said contractor the sum of $2.50 per ton, said Tennessee & Southeastern Coal Company, contractor aforesaid, hereby agrees as follows:"

There is then set out the promises of the Tennessee & Southeastern Coal Company and the terms and conditions under which it will furnish coal to the city of Atlanta, subject to

certain directions as to quantities and times of delivery by the city. Nowhere therein does the city obligate itself to take the coal or any part thereof. The past acceptance of the bid by the city, and the promise on the part of the city to pay for the coal at so much per ton, recited as a consideration for the promise of the coal company, cannot be regarded as a consideration. A past consideration or an existing contractual obligation between the parties generally does not support a promise. The stipulation that the city agrees to pay so much per ton for the coal which it orders does not obligate the city to take any coal or to pay for any coal except that which it does order. The city not being bound to order or accept any coal, both parties were not bound, and there was no contract as set out in the first count of the petition.

2. The promises and undertakings of the coal company must therefore be considered as amounting only to an offer by the coal company to contract with the city, which promises and undertakings would become binding as a contract between the parties only upon acceptance by the city. There being, as a part and condition of the offer, a provision allowing the city to suspend deliveries of the coal, the action of the city in ordering coal under the terms of the offer in installments from time to time, without at once in the beginning obligating itself to make further orders, amounted to an acceptance of the offer of the coal company, which action by the city created a binding contract with the coal company respecting the coal actually ordered by the city. The right of the city to suspend deliveries of coal did not apply to any order for coal made by the city when delivered by the coal company before the expiration of 48 hours from the date of notice by the city to the coal company to suspend deliveries. The city therefore became bound for all coal which it actually ordered under the terms of the offer, and could not relieve itself of such obligation by any notice to the coal company to suspend the delivery of the coal so ordered unless the coal company delayed the delivery until after 48 hours from the date of notice to it by the city to suspend the delivery. Both parties therefore became bound as respects orders actually made by the city; the coal company being bound to make, and the city being bound to accept, deliveries. There was therefore a contract as set out in the second count of the petition, and it follows that the failure of the coal company to make deliveries of coal actually ordered by the city

constituted a breach of this contract, for which the coal company was liable to the city in damages.

Judgment affirmed.

SMITH, J., concurs.

JENKINS, P. J., concurs in the judgment.

NOTE-Contract Lacking in Mutuality Good o Offer. The instant case, it appears, does not hold that the contract which was entered into was wholly void, but only void to the extent claimed. It stood as an offer for whatever deliveries the obligee thereunder might order.

Thus in American Refrigerator Transit Co. v. Chilton, 94 Ill. App., p. 6, there was a contract for delivery of ice at the rate of $3.50 a ton for one year, which was held void for want of mutuality. The Court said: "The contract had the effect merely to bind appellant to pay $3.50 per ton for such ice as should be ordered and delivered to it. Further than that, it had no binding price for want of mutuality."

In Cold Blast Transp. Co. v. Kansas City Bolt & Nut Co., 114 Fed. 77, 52 C. C. A. 25, Sanborn, Cir. J., in speaking of contract void for want of mutuality, says: "Accepted orders for goods under such void contracts constitute sales of the goods thus ordered at the prices named in the contracts, but they do not validate the agreements as to articles which the one refuses to purchase, or the other refuses to sell or deliver, under the void contracts, because neither party is bound to take or deliver any amount or quantity of those articles thereunder." For this he cites the following cases:

Crane v..

C. Crane & Co., 105 Fed. 869, 45 C. C. A. 96; Oil Co. v. Kirk, 68 Fed. 791, 15 C. C. A. 540; Campbell v. Lambert, 36 La. Ann. 35; Ry. Co. v. Mitchell, 38 Tex. 85, 95; Ashcroft v. Butterworth, 136 Mass. 511, 514; Drake v. Vorse, 52 Iowa 417, 3 N. W. 465; Hoffman v. Maffioli (Wis.), 80 N. W. 1032, 1035, 47 L. R. A. 427.

In the last case cited the Court, through Cassaday. C. J., speaking of a contract void as lacking in mutuality, said: "The writing so submitted by the plaintiff was a mere proposal to furnish stone described, at the prices named, and deliver the same on the street in the city of Waukesha in such quantities as might be desired."

In Crane v. C. Crane Co. supra, where the contract was held void for lack of mutuality, the prices fixed by the contract were allowed, and no recoupment for damages was permitted for sales subsequent to notice of rescission.

This rule certainly ought to be a good rule insofar as it may be invoked against one refusing to perform, because of the lack of mutuality. He ought not to be allowed to appear to be complying with the contract and then refuse to pay the price therein fixed. It would seem, however, to have the capability of harm to the other side, who might be able to prove a higher market value than the contract rate. But, then, he ought to have known better than to enter into a contract void for lack of mutuality.

Thus it was held in L. & N. R. Co. v. Coyle, Ky., 97 S. W. 772, 8 L. R. A. (N. S.) 433, that an indefinite offer to furnish within two years 'ties, up to a maximum number, which is followed by an acceptance of all that can be furnished within a year, was held to be binding upon deliv

ery and payment, so that neither party can withdraw from it during the contract period. The Court said: "Where the performance of a contract is not compulsory on one party and he has an election to perform or not as he chooses, and he elects to perform his part of the contract, and the other party accepts his election, the want of mutuality is thereby eliminated, and he may then have a specific performance *** although no cause of action would originally lie for a breach of performance." In that case, however, there was aliunde evidence to show the acceptance of what was done was as a part of the whole. C.

ITEMS OF PROFESSIONAL

INTEREST.

PROGRAM OF THE MEETING OF THE ALABAMA STATE BAR ASSOCIATION.

The Forty-Third annual meeting of the Alabama Bar Association will be held in Birmingham, in the ball room of the Tutwiler Hotel on April 30th and May 1st, 1920.

The meeting will be opened at 10:30 Friday morning by the address of the President, Mr. J. T. Stokely of Birmingham.

In addition to the usual reports of committees there will be the following papers and addresses: "The Centennial of the Supreme Court of Alabama," by Hon. John C. Anderson; "Our Judges in a Primary," by Mr. W. O. Mulkey; "Recent Legislation," by Mr. Sam Will John; "Constitutional Government in America," by Hon. Wm. H. Samford; "Forcible Entry and Unlawful Detainer," by Mr. Travis Williams; "Three Lawyers of the Black Belt," by Hon. Edw. de Graffenried.

The annual address will be given by Hon. A. Mitchell Palmer, whose subject will be, "Law Enforcement or the Enforcement of the Law."

That is not a correct statement of the argument of the Southern States in defense of their right to secede. They based their rights upon the sovereignty of the respective Colonial States, when they agreed to form the political and governmental corporation we call the "United States." That sovereignty they never parted with, and still exists.

No white man or woman brought with him or her from England a common law right to enslave negroes or Indians in the colonies they founded here. The institution of human slavery in the English colonies of America is the creation of the respective colonies themselves, as Colonial States. It was part of their rights as citizens of the Colonies, and not as subjects of Great Britain. Blackstone tells us:

"The idea and practice of this political or civil liberty flourish in their highest vigor in these kingdoms, where it falls little short of perfection, and can only be lost or destroyed by the folly or demerits of its owner; the legislature, and, of course, the laws of England, being pecu. liarly adapted to the preservation of this inestimable blessing even in the meanest subject. Very different from the modern constitutions of other states, on the continent of Europe, and from the genius of the imperial law; which in general are calculated to vest an arbitrary and despotic power, of controlling the actions of the subject, in the prince, or in a few grandees. And this spirit of liberty is so deeply implanted in our constitution and rooted even in our very soil, that a slave or a negro, the moment he lands in England, falls under the protection of the laws, and so far becomes a freeman." 1 Blackstone Comm. (19th London Edition) star. p. 127.

The 13th, 14th, and 15th amendments to the Federal Constitution are valid, as war measures, suggested by the experiences of the States, and adopted to prevent a recurrence of them by removing their cause, the institution of Negro Slavery.

Not a single personal common law right of citizens of States is affected detrimentally by any one of those amendments. On the contrary, their only effect is to enlarge these personal rights. They comply with the requirements of Article V of the Constitution. They were necessary to the stability and peace of the Union. FREDERICK G. BROMBERG.

Mobile, Alabama.

[The editor's suggestion with respect to the 13th, 14th and 15th Amendments was not intended to convey any intimation that these Amendments were not a part of the Constitution. They are not only a part of the Constitution but in striking down the institution of human slavery they effected one of the most salutary reforms of human society. Mr. Bromberg is correct in his assertion that slavery was not recognized in the British Isles. But the English Courts recognized the institution of

slavery and it was in English boats and by English slave traders that the institution of slavery took root in the English Colonies. The only point in our comment was in pointing out whatever analogy there might exist in previous Amendments of the Constitution to the Eighteenth Amendment in respect to the subject matter of the Amendment. We admit that there

is no very close analogy between the Eighteenth Amendment and any previous Amendments, but it did seem to us that if by the process of Amendment the question of suffrage, a matter of state regulation, can be controlled by Constitutional Amendment that there could be little ground for the contention that there were certain inalienable rights reserved for the state's exclusive control which could not be brought within the jurisdiction of the federal government by process of Constitutional Amendment. We do not wish, however, to take any position on this question for the present. Just how far the independence of the states can be destroyed without destroying at the same time the contract by which the union was formed we are not prepared to say.-Editor.]

HUMOR OF THE LAW.

"Why are you against government ownership of railroads?"

"Because it will do away with those beautiful railroad advertisements on travel."-Judge.

The need for higher educational standards for admission to the bar is clearly shown by the closing paragraphs of a petition recently served on the Minneapolis Tribune. Through the consent of the latter's counsel we quote the last two paragraphs of this petition:

"That the plaintiff will necessarily need, in the above injuries, doctor's and nurses care and medical and surgical treatment so as to leviate said damage caused by said defendant and which sum of money plaintiff pleads as continuing damages.

"That during all times mentioned the plaintiff was earning and capable of earning $65.00 (Sixty-Five Dollars) a week in and about his employment as a licensed chauffeur and by rea son of said defendant, the plaintiff is totally capsized and will be for a long period of time and and for which damage, plaintiff pleads for continucing damages in this action. WHEREFORE: Plaintiff prays judgment against Defendant in the sum of $5,000 (Five Thousand Dollars) together with such damage which may be proposed herein, together with interest at the rate of six per cent per annum from the 5th day of October, 1919, to the cost and dis bursements of said action."

evidence, the judge is at liberty to draw his own inferences and deduce his own conclusions.Walter v. Atha, U. S. C. C. A., 262 Fed. 75.

WEEKLY DIGEST.

1. Bailment Action by Bailee.-A bailee, entitled to the possession of the property bailed, has such a special interest therein as entitles him to maintain in his own name a suit against a third party for its loss or destruction for the benefit of the owner.-Marietta Ice & Coal Co. v. Western & A. R. Co., Ga., 102 S. E. 182. 2. Bankruptcy - Burden of bankrupt's wife, shortly after the bankruptcy, is in control of considerable property, she has the burden of proving, by clear and satisfactory evidence, the means whereby she acquired possession of such assets. Eberline V. Prager, Mich., 176 N. W. 428.

Proof. Where

3.- Creditor.-The word "creditor," as used in General Orders in Bankruptcy No. 4, (89 Fed. iv, 32 C. C. A. viii), does not include the agent, attorney in fact, or proxy of a creditor, and under such order and No. 22 a creditor cannot appoint a representative, who is not an attorney and counselor at law, to examine witnesses before a referee.-In re Looney, U. S. D. C., 262 Fed. 209.

of

5. Equitable Lien-Sale of property bankrupt on which a creditor had an equitable lien, and payment of the proceeds to the creditor, though within four months of bankruptcy, for preference purposes relate back to the date of the contract which they were designed to and did fulfill-Britton v. Union Inv. Co., U. S. C. C. A.. 262 Fed. 111.

6.- -Finding by Referee.-While a finding of fact by a referee on conflicting evidence will not be disturbed, unless there is cogent evidence of mistake, yet, if the referee's finding be a deduction from established facts or uncontradicted

7. Banks and Banking-Forgery.-Bank liable to depositor for money paid on check signed in blank and filled in and indorsed in another's name by third person.-Citizens' Nat. Bank of Evansville v. Reynolds, Ind., 126 N. E. 234. 8. Bills and Notes-Non Est Factum.-In an action on a note, defendant's plea of non est factum imposed on plaintiff the burden to prove the signing, selling, and delivery of the note to which the plea was interposed; such three facts constituting the affirmative of the issue.-Dever v. Silver, Md., 109 Atl. 67. 9.Renewal.-Where a renewal note is given instead of another which represented part of the indebtedness on a certain transaction, whatever defenses were available as against

original note, were equally available as against renewal note so long as the transaction remained one between the original parties.-International Harvester Co. of America v. Thomas, N. D., 176 N. W. 523.

10. Carriers of Passengers-Employes.Workmen being transported to their place of work by the master, at his expense and in their work time, are not passengers, but employes.Maryland Dredging & Contracting Co. v. State of Maryland, U. S. C. C. A., 262 Fed. 11.

11. Champerty and Maintenance-Strangers to Contract.-Strangers to a champertous contract cannot take advantage of it; only a party to it can do so.-Harrison v. Harman, W. Va., 102 S. E. 224.

12. Commerce-Employe. That a railroad empioye when injured was assisting in loading old rails on a car for delivery and shipment because they had been sold is insufficient to show that he was injured while employed in interstate commerce.-Illinois Cent. R. Co. V. Probus, Ky., 218 S. W. 724. 13. Foreign Corporation.-Right of foreign corporation, after complying with California laws as to foreign corporations, to carry on interstate business, and to acquire and convey real estate necessary therefor and maintain actions to protect its rights therein, is not subject to taxation by the state, though instrumentalities by means of which it carries on such commerce, and which have a local situs as property within the state, are taxable by it.-People v. Alaska Pac. S. S. Co., Cal., 187 Pac. 742.

Evidence.

Con

15. Contracts-Extrinsic struction of a contract where it is to be arrived at from a mere reading of the instrument, or from such reading aided by extrinsic evidence of circumstances and the like, is a matter of law. Brett v. Vanomar Producers, Cal., 187 Pac. 758.

16. Impossibility of Performance.-Where no provision as to the event of impossibility is found in a contract containing an absolute promise, the promisor remains responsible for damages notwithstanding the supervening impossibility of performance.-Mascall v. Reitmeier, Minn., 176 N. W. 486.

17.--Liability.-Act of one party in making new arrangement preventing execution of contract obligations cannot avoid his liability to another.-Suter v. Farmers' Fertilizer Co., O., 126 N. E. 304.

18.- -Mutuality. --An instrument in writing purporting to be a bilateral contract between a city and a coal company, whereby the latter promised to furnish and deliver coal, but wherein there was no obligation on the part of the city to take any coal, lacks mutuality and is a nudum pactum.-National Surety Co. v. City o. Atlanta, Ga., 102 S. E. 175.

19.- -Past Services.-Services rendered and benefits conferred gratuitously do not constitute a sufficient consideration for a subsequent promise to pay therefor, whether such promise