the donor's death, the courts should presume that he, as a reasonable man, would prefer changes whereby his general intent would be more efficiently executed to strict obedience to his directions.24 Moreover, equity does not enforce bequests subject to freakish conditions or uses, such as a gift to a school with a provision that the descendants of certain persons should be excluded therefrom for one hundred years,25 or a devise of a house on trust with directions that it be bricked up for twenty years.26 In refusing to enforce these, equity prevents needless economic waste. For the same reason equity should not insist upon literal obedience to the terms of a charitable trust when, with advancement in civilization, the wisdom of the particular manner of use prescribed is denied or seriously questioned, or when the execution of the particular intent becomes economically wasteful to a considerable degree.27

DEDUCTION FOR BENEFITS RECEIVED BY THE PURCHASER ON RESCISSION FOR BREACH OF WARRANTY. - All courts agree that rescission will not be granted where any benefit that has been received under the contract cannot be restored. The difficulty, however, lies in defining precisely what constitutes a sufficient benefit to bar rescission. In England the most nominal benefit has been held enough, while the United States courts have given a less literal interpretation to the term.3 If this rule is strictly applied to the law of sales, it may be said that in every case where title has passed the purchaser must have received some

24 In the following cy-près application was allowed, although literal obedience was still possible. Attorney-General v. Haberdashers' Co., 3 Russ. 530 (1825); Tincher v. Arnold, 147 Fed. 665 (1906); Norris v. Loomis, 215 Mass. 344, 102 N. E. 419 (1913); Ely v. Attorney-General, 202 Mass. 545, 89 N. E. 166 (1909); Lackland v. Walker, 151 Mo. 210, 52 S. W. 414 (1899); St. James's Church v. Wilson, 82 N. J. Eq. 546, 89 Atl. 519 (1913); McIntire v. Zanesville, 17 Ohio, 352 (1848); Avery v. Home for Orphans, 228 Pa. 58, 77 Atl. 241 (1910); Brown v. Meeting Street Baptist Soc., 9 R. I. 177 (1869). In the following cy-près application was not allowed on account of expediency: Re Weir Hospital, supra; Harvard College v. Attorney-General, supra. And in the following the trust was held to fail for lack of a general charitable intent: Re Parker, [1918] 1 Ch. 437; Re Wilson, [1913] 1 Ch. 314; Bowden v. Brown, 200 Mass. 269, 86 N. E. 351 (1908); Teel v. Bishop of Derry, 168 Mass. 341, 47 N. E. 422 (1897); Morristown Trust Co. v. Morristown, 82 N. J. Eq. 521, 91 Atl. 736 (1913). If the original gift is to take effect only on a condition precedent, which is not performed, the bequest fails wholly. Re University of London Medical Funds, [1909] 2 Ch. 1; Cherry v. Mott, 1 Mylne & C. 123 (1835).

25 Nourse v. Merriam, 8 Cush. (Mass.) 11 (1851).

26 Brown v. Burdett, 21 Ch. Div. 667 (1882). See also 65 U. P. LAW REV. 527, 632. 27 An interesting analogy tending to uphold a more liberal use of cy-près is found in the fact that equity does not enforce a restrictive covenant if circumstances have so changed from the time the covenant was made that its enforcement would injure both the dominant and servient tenements. Sayers v. Collyer, 28 Ch. Div. 103 (1884); Jackson v. Stevenson, 156 Mass. 496, 31 N. E. 691 (1892).

1 WILLISTON'S WALD'S POLLOCK ON CONTRACTS, 342, 343.

2 In Hunt v. Silk, 5 East 449 (1804), where the plaintiff was not allowed to rescind for the lessor's failure to repair, Lord Ellenborough said, "if the plaintiff might occupy the premises two days beyond the time . . . and yet rescind the contract, why might he not rescind it after a twelvemonth on the same account." Beed v. Blandford, 2 Y. & J. 278 (1828).

Ankeny v. Clark, 148 U. S. 345 (1893); Campbell Printing Press Co. v. Marsh, 20 Colo. 22, 36 Pac. 799 (1894). See note 6, post.

benefit, however brief his retention of the goods. This rigid application of the rule is one reason why rescission of an executed sale for breach of warranty is not allowed in England, the purchaser being restricted solely to his action for damages. In the United States, however, such temporary ownership and use of the property as is necessary to discover the defect is not considered a sufficient benefit to prevent rescission, and a majority of the states now permit this remedy for breach of warranty." The American law on this point seems to reach the more just result. Such a brief retention of the property seldom confers any actual benefit upon the purchaser, while to compel him to keep defective goods and allow him a recovery only in damages causes real hardship. All jurisdictions allow rescission of an executed sale induced by fraud." But whether the seller acted in good faith or bad faith, the purchaser is equally injured by the seller's breach. In view of this hardship upon the purchaser the English courts have sometimes gone to considerable lengths in order to allow rescission in effect by finding that the title never passed.9

But a real difficulty arises where the buyer has retained title to the goods for a substantial period of time and has received a substantial benefit before a latent defect could reasonably have been discovered. Even though the buyer has received some benefit, to forbid rescission would still cause considerable hardship. But in this case there is a new factor to be considered. Ordinarily the seller suffers no injustice by rescission, but under these circumstances there is an obvious hardship in requiring him to take back the property without any compensation for its use by the purchaser. Courts following the English doctrine would of course restrict the purchaser to his action for damages, 10 while the American courts, even in this case, would probably allow the buyer to rescind and recover the whole purchase price." Neither result accords with principles of justice. A recent Canadian case illustrates a more just solution of the difficulty-a compromise between these two opposite extremes. In Cushman Motor Works, Ltd. v. Laing 12 the company sold to the defendant what purported to be a twenty-five horse-power thresh

Street v. Blay, 2 B. & Ad. 456 (1831). See SALES OF GOODS ACT, 56 & 57 Vict., Chap. 71, § 11 (1). See also 15 HARV. L. REV. 148. In the case of a warranty a further ground for refusing rescission in England is that the warranty is said to be collateral to the principal contract. But the English law attempts to distinguish a condition from a warranty and, if the title has not passed, allow the purchaser to reject the goods for a breach of the former. "The essential thing. . . is whether the contract is executed or executory." See Samuel Williston, "Rescission for Breach of Warranty," 16 HARV. L. Rev. 465.

See note 4, supra.

Edson v. Mancebo, 173 Pac. (Cal.) 484 (1918); Roper v. Wells, 182 Iowa 237, 165 N. W. 385 (1917); Wilson v. Solberg, 145 Wis. 573, 130 N. W. 472 (1911). For other cases on this point, see WILLISTON ON SALES, § 608, note 90. See UNIFORM SALES ACT, § 69 (1), (d).

? See WILLISTON ON SALES, § 608, 647. See MECHEM ON SALES, § 932.

8 "A breach of warranty may be equally injurious to the buyer whether the vendor acted in good faith or bad faith." Milliken v. Skillings, 89 Me. 180, 36 Atl. 77 (1896). Varley v. Whipp, [1900] 1 Q. B. 513.

10 See note 5, supra.

11 See note 6, supra. In Roper v. Wells, supra, the purchaser was allowed to return the goods after three years' use without paying any part of the purchase price. 12 49 D. L. R. 1 (1919).

ing engine, which after two years' usage was discovered to have an actual capacity of only twenty-two horse-power. Upon suit by the plaintiff to recover the unpaid installments of the purchase price the defendant claimed the right to reject the engine and to recover the installments already paid. It was held that the defendant could recover the payments he had made, less $204, upon return of the engine to the seller. It was evident that the variation in horse-power could not reasonably have been discovered before. But to avoid the harsh operation of the English rule the court was forced to strain the facts in order to find that the representation was a condition of the sale and that title had never passed. However, on the findings the decision reaches a just result. The interesting feature of the case is that the seller was allowed to retain part of the purchase price. Curiously, however, the Canadian court did not state the basis upon which this deduction was estimated. One possible measure of the deduction might be the deterioration in value of the engine, but there seems to be no authority for this basis of calculation.13 Probably the deduction was the estimated value of the benefit conferred upon the purchaser a value based upon the principles of quasicontract for unjust enrichment. This seems to be a more logical basis, and there is some authority to support such a deduction.14 The adoption of the solution offered by the Canadian court would afford a practical and just rule for every case of breach of warranty - the buyer should be allowed to rescind on condition that he compensate the seller for any actual benefit received. In England, if this rule were applied, an attempt to value the purchaser's title for a day would prove the futility of offering such a benefit as a bar to rescission. The adoption in the United States of this solution would remove any possibility of hardship upon the seller.

RECENT CASES

AGENCY WRITTEN CONTRACT FOR UNDISCLOSED PRINCIPAL. - An action was brought against the agent for failure to deliver goods under a written contract in which he described himself as "manufacturers' selling agent" and signed his own name. No other evidence having been offered, the lower court dismissed the complaint. Held, that a new trial be granted. Levy v. Shour, 178 N. Y. Supp. 227.

AGENT'S LIABILITY TO THIRD PERSONS

For a discussion of the principles involved in this case, see NOTES, p. 591, supra.

13 In Rice v. Butler, 160 N. Y. 578, 55 N. E. 275 (1899), the court calculated the deduction either as the value of the benefit received by the purchaser or as the amount of the deterioration in the property.

14 Todd v. Leach, 100 Ga. 227, 28 S. E. 43 (1897); Wilson v. Burks, 71 Ga. 862 (1883); Baston v. Clifford, 68 Ill. 67 (1873); Syck v. Hellier, 140 Ky. 388, 131 S. W. 30 (1910); Vanatter v. Marquardt, 134 Mich. 99, 95 N. W. 977 (1903); Todd v. McLaughlin, 125 Mich. 268, 84 N. W. 146 (1900); Johnson v. Northwestern Mutual Life Ins. Co., 56 Minn. 365, 59 N. W. 992 (1894); Kicks v. State Bank of Lisbon, 12 N. D. 576, 98 N. W. 408 (1904); Hall v. Butterfield, 59 N. H. 354 (1879); Rice v. Butler, supra; Mason v. Lawing, 10 Lea. (Tenn.) 264 (1882). See KEENER ON QUASI-CONTRACTS, 305, 306. See WOODWARD ON QUASI-CONTRACTS, § 266. See WILLISTON'S WALD'S POLLOCK ON CONTRACTS, 343, 344. See Samuel Williston, "Repudiation of Contracts," 14 HARV. L. REV. 326-328. See 13 HARV. L. REV. 410.

ATTORNEYS RELATION BETWEEN ATTORNEY AND CLIENT — LIABILITY FOR FAILURE TO BRING SUIT WITHIN PERIOD OF LIMITATIONS. - The plaintiff engaged the defendants, a firm of solicitors, to bring an action upon a claim. The obligor offered to settle, and the defendants transmitted the offer to the plaintiff. The latter delayed so long in answering that the defendants thought the offer was accepted. As a result, when suit was finally brought, the period of the Statute of Limitations (six months) had expired, and although the plaintiff contended that the obligor was estopped from setting up the statute, the judgment was against him. He then instituted this action for negligence in the performance of professional duties. The trial court found for the defendants. Held, that judgment be entered for the plaintiff. Fletcher v. Jubb, Booth, & Hollwell, 54 L. J. 411.

An attorney can be held to no higher standard than that of due care in the performance of legal work intrusted to him. Godefroy v. Dalton, 6 Bing. 460; Malone v. Gerth, 100 Wis. 166, 75 N. W. 972. But if he falls below that standard he is liable to the client for all damages proximately resulting therefrom to the latter. Hart v. Frame, 6 C. & F. 193; Forrow v. Arnold, 22 R. I. 305, 47 Atl. 693. Delay in the institution of proceedings, resulting in the barring of the action by the Statute of Limitations, has been held to be actionable negligence. Hunter v. Caldwell, 12 Jur. 285; Oldham v. Sparks, 28 Tex. 425. However, what constitutes negligence is a question to be decided, within the bounds of reason, by the trier of the facts. Hunter v. Caldwell, supra; Pennington v. Yell, 11 Ark. 212. Accordingly, it would seem that, in view of the complexity of the circumstances, the decision of the trial court should have been permitted to stand. Furthermore, in the trial against the obligor, the issue as to the Statute of Limitations involved a point of some nicety; and an attorney is not liable for an erroneous judgment on a reasonably doubtful legal question. Kemp v. Burt, 1 N. & M. 262; Citizens' Loan Ass'n. v. Friedley, 123 Ind. 143, 23 N. E. 1075.

CARRIERS

- DUTY TO TRANSPORT AND DELIVER APPROPRIATION BY CARRIER OF COMMERCIAL SHIPMENT OF COAL TO ITS OWN CONTRACT WITH THE CONSIGNOR.· -A coal company, as consignor, in pursuance to its contract with the plaintiff, put coal on the defendant railroad's cars tagged to the plaintiff as consignee. The defendant had previously notified the coal company of its intention to refuse to accept the coal for shipment and to appropriate the coal to its own use under a previous contract between it and the company on which the latter was delinquent. The defendant carried out this intention and the plaintiff brought this action for the conversion of the coal. Held, that the defendant is not liable. Springfield Light, Heat & Power Co. v. Norfolk & W. Ry. Co. 260 Fed. 254 (Dist. Ct. S. D. Ohio).

The usual rule is that delivery by the shipper to the carrier vests title in the consignee. Cox v. Andersen, 194 Mass. 136, 80 N. E. 236; Glauber Mfg. Co. v. Voter, 70 N. H. 332, 47 Atl. 612. But this rule presupposes that the delivery is complete and with the consent of the carrier. Sears, Roebuck & Co. v. Martin, 145 Ala. 663, 39 So. 722; Ward v. Taylor, 56 Ill. 494. The principal case, then, might possibly be supported on the ground that the plaintiff was not the owner of the coal at the time of the alleged conversion and, therefore, not the proper party to sue; although an earlier case seems to indicate the contrary. See Luhrig Coal Co. v. Jones & Adams Co., 141 Fed. 617, 624. The court, however, went further, and asserted a right of self-help by the carriers in cases of necessity to secure the performance of contractual obligations. It has been held that there is no right in a bailee in possession of another's property to appropriate it to an executory contract with the latter. Atlantic Building Supply Co. v. Vulcanite Portland Cement Co., 203 N. Y. 133, 96 N. E. 370; Newcomb-Buchanan Co. v. Baskett, 4 Ky. L. Rep. 828. And a public service

company cannot refuse service solely because of past debts due it from the consumer. Danaher v. Southwestern Telegraph Co., 94 Ark. 533, 127 S.W. 963; Crumley v. Watauga Water Co., 99 Tenn. 420, 41 S. W. 1058; State ex rel. Atwater v. Delaware L. & W. R. Co., 48 N. J. L. 55, 2 Atl. 803. If a carrier enjoys any rights of priority, it is only to the use of its own facilities for its own indispensable needs as a carrier. Louisville & Nashville R. Co. v. Queen City Coal Co., 13 Ky. L. Rep. 832. See Royal Coal & Coke Co. v. Southern Ry. Co., 13 Interst. Com. Comm. R. 440. In the instant case the carrier had no contract right to the specific coal and therefore could not get specific performance as to this coal even in equity. The virtual recognition by the court of a right of angary in public utilities, it is submitted, is without precedent and should not be followed. Its implications involve all the dangers of self-help. Even the power of eminent domain is no defense to a taking of property by self-help, which is certainly not due process. City of Clinton v. Franklin, 119 Ky. 143, 83 S. W. 140.

CARRIERS-DUTY TO TRANSPORT AND DELIVER - REFUSAL TO DELIVER WITHOUT PRODUCTION OF A LOST ORDER BILL OF LADING. - An interstate shipment of perishable goods was routed over connecting carriers, the initial carrier giving a through bill of lading to the shipper's order, notify a third party. The bill of lading was lost or delayed, and upon the arrival of the goods, the shipper's agent requested delivery. The terminal carrier refused to deliver without production of the bill of lading or a bond of indemnity. The initial carrier did not require a bond, and wired the terminal carrier to deliver. Several days elapsed after the receipt of this telegram before the terminal carrier made delivery, and in this period the goods were injured by frost. Suit was brought by the shipper against the initial carrier. The Carmack Amendment to the Interstate Commerce Act subjects the initial carrier to liability for "loss, damage or injury" caused goods by the default of a connecting carrier (34 U. S. STAT. AT L. 595, c. 3591, § 7). Held, that the shipper may recover. McCotter v. Norfolk So. R. Co., 100 S. E. 326 (N. C.).

A carrier in delivering goods without requiring the production of an order bill of lading, does so at its peril, and in case of misdelivery is liable for a conversion to the person entitled to receive the goods. Forbes v. Boston & Albany R. Co., 133 Mass. 154; Ratzer v. Burlington, etc. R. Co., 64 Minn. 245, 66 N. W. 988. The same is true though the bill of lading contains a direction to notify a third person. No. Pa. R. Co. v. Commercial Bank, 123 U. S. 727; Atlanta Nat. Bank v. So. R. Co., 106 Fed. 623; Union Stock Yards Co. v. Westcott, 47 Neb. 300, 66 N. W. 419. Accordingly, the carrier may, for its own protection, make the production of the bill of lading a condition to delivery. Kaufman v. Seaboard Air Line R., 10 Ga. App. 248, 73 S. E. 592. That the consignor, to whose order the bill was taken, requests a delivery, should not alter the situation. See Schlichting v. Chicago, etc. R. Co., 121 Ia. 502, 96 N. W. 959. If the goods are perishable, and the bill of lading has been lost or delayed, the law should not allow an impasse. It would seem proper to require that the carrier deliver in such case without receiving the bill of lading, if he is properly indemnified against possible loss by the party requesting delivery. In the principal case recovery was allowed as for a default of the terminal carrier. But as it does not appear that it was offered indemnity, or that it assented to deliver without such protection before the delivery was actually made, it seems questionable whether a breach of duty on the part of the terminal carrier has been made out. It is possible, however, that the initial carrier was itself in default in failing to take and offer to the terminal carrier the indemnity offered by the shipper.

CARRIERS - REGULATION OF RATES - GOOD FAITH IN RECEIVING A REBATE AS A DEFENSE TO THE SHIPPER UNDER THE ELKINS ACT. - The de