Page:The Green Bag (1889–1914), Volume 19.pdf/550

 CONSTRUCTIVE CONTRACTS And now to return to the dispute about agency by estoppel. Professor Cook's theory that the liability of a principal for the contracts entered into by his agent within the scope of the latter's ostensible but forbidden authority is really contractual, instead of being based on estoppel, may probably be traced to Professor Holland who has pointed out in many editions of his Elements of Jurisprudence that in the case of contracts made by post " the question whether or not the contract is made turns . . . not on the coincidence of the wills of the parties, but on the fact of their having exchanged expressions of intention" and that in agency " the liability of a principal continues not merely so long as he continues mentally to empower his agent to act for him, but also so long as he has not, to the knowledge of third parties, revoked the agent's authority." 1 In any event, it is with Professor Holland as much as with Professor Cook that one who objects to resting on "consent." (Wald's Pollock on Con tracts, 3d ed. 2.) And the consent of the parties he says, " the first and most essential element of an agreement" is expressed by the doctrine that "there must be the meeting of two minds in one and the same intention" (ibid, 3.) This defini tion of "consent" he modifies, however, by the statement that "when it is said, therefore, that the true intent of the parties must govern the decision in all matters of contract, this means such an intent as a court of justice can take notice of. If A, being a capable person, so bears himself towards B that a reasonable man in B's place would naturally understand A to make a promise, and B does take A's.words or conduct as a pro mise, no further question can be made about what was passing in A's mind." (ibid, 4.) Sir Frede rick Pollock tries to save his retreat from his first stand in favor of a meeting of minds by adding: "But in the common and regular course of things the consent to which the law gives effect is real as well as apparent " (ibid, 5.) In other words the con sensual contract, as distinguished from the con structive contract, is the ordinary kind. The reluctance to abandon the old phraseology is explained by that fact, and the necessity of a name such as consensual contract is emphasized by it. 1 Holland's Elements of Jurisprudence. 3d ed. ' 1886' 215, 216, 10th ed. ' iqo6' 257.

Professor Cook's essential argument will have to reckon. What therefore must we say of the fight which Professor Holland has made to prove that the notion of an actual consensus of mind is not an essential ingred ient of the conception of a contract? We must of course applaud it, because as a practical matter it would never have done to regard as actual contracts only those based on a genuine " meeting of minds." Yet in applauding it, we must not go so far as to say .that the absence of a consensus of minds is the same thing as its presence. We must join with Professor Holland in saying that in contracts " the law looks, not at the will itself, but at the will as voluntarily manifested " and that "when the law enforces contracts, it does so to prevent disappoint ment of well founded expectations, which, though they usually arise from expressions truly representng intention, yet may oc casionally arise otherwise," 1 but we must at the same time insist that he separate under appropriate names the cases where the expressions truly represent intentions from those which do not. In the above quoted language he has recognized that the distinction itself exists, and has properly classified "agency by estoppel " with those cases of contracts where " the coincidence of the wills of the parties " does not exist; and to save us from confusion of ideas he must help us seek for a phrase which shall do for the law of contracts what " agency by estoppel." when contrasted with " agency by consent" does for the law of agency. On the theory herein advanced, Professor Cook would seem to be in error in insisting on abolishing the established distinction between those cases, on the one hand, where the agent does either what his principal told him to do or what his principal has since ratified or adopted, and those cases, on the other hand, where the agent acts in viola tion of the principal's instructions and con1 Holland's Elements of Jurisprudence, 10th ed. 253.