and the burden is on the defendant to allege and prove the existence of the collateral stipulation. To go farther than this, however, is to confuse matters of form with matters of substance. The remedy of rescission, if allowed at all, is allowed on broad principles of justice. The basis of the remedy is that the buyer has not bought what he bargained for. In early times, the court said that what one party to a bilateral contract bargained for was the obligation of the other, and that if he got that obligation he could not complain because the obligation was not performed. This is unquestionably sound argument, if the form of the transaction is to govern; but since the time of Lord Mansfield, courts have no longer been willing to dispose of the matter on so technical a ground. It is apparent that the real thing bargained for was the performance, and that the obligation was merely a means to that end. Consequently, with limitations that need not now be considered, courts have allowed the defendant to refuse to perform, because the plaintiff had refused or failed to perform on his part. Similarly, in the case under discussion, it is obvious that when a buyer buys a horse, warranted sound, the real thing he is after is a sound horse. It is the performance of the warranty, not damages for the breach of it, which is in his mind. He does not want an unsound horse, worth half the money, and the difference in damages. He wants to be perfectly sure that he is getting a sound horse, and if the one transferred to him is not sound, he is as truly forced to perform a bargain which he never intended to make, as is any defendant, if compelled to perform his part of a contract when the plaintiff is materially in default.

When the question is considered from the standpoint of practical applications, the advantages of the Massachusetts rule are manifest. The advantages are twofold: first, greater justice; second, the avoidance of the necessity of determining certain very troublesome questions of fact in order to settle a buyer's rights. The facts in the recent case of Varley v. Whipp1 illustrate to some extent both advantages. The defendant agreed to purchase a specific second-hand reaping-machine which was in the seller's possession in another town. The seller assured the buyer that the machine was new and had been used to cut over only about fifty acres. By the bargain the machine was to be delivered on the cars at the seller's residence. The statements made about the machine were

1 [1900] Q. B. 513.

not true and the defendant rejected it. The court held that he was justified in so doing. This result is certainly to be commended. Any rule which would compel the buyer to take the machine and an action for damages would do violence to the usages and expectations of ordinary business men under such circumstances. Yet it may be doubted if the court in order to protect the defendant and yet maintain its theory of warranties did not find itself obliged to confuse important distinctions. The Sale of Goods Act provides (section 13) that "where there is a sale of goods by description there is an implied condition that the goods shall correspond with the description." Channell, J., said:

"The term sale of goods by description must apply to all cases where the purchaser has not seen the goods, but is relying on the description. alone. . . . If a man says that he will sell the black horse in the last stall in his stable, and the stall is empty, or there is no horse in it, but only a cow, no property could pass. Again, if he says he will sell a four-year-old horse in the last stall, and there is a horse in the last stall but it is not four years old. But if he says he will sell a four-year-old horse, and there is a fouryear-old horse in the stall, and he says that the horse is sound, this last statement would be only a collateral warranty."

Yet this was certainly a sale of specific goods, or, as the Act defines that term, "goods identified and agreed upon at the time a contract of sale is made." The parties were speaking of a particular machine, and the machine put on the cars was the machine in regard to which the parties were dealing. It did not possess all the qualities the seller asserted, but to say it was not the machine the parties were talking about is to confuse the attributes of the thing sold with the thing itself. In short, it is hard to see why the title to the machine did not pass not later than when it was put on the cars according to the contract. The facts may be varied slightly. Suppose the buyer had casually seen the machine a week before, when he was not thinking of purchasing, and the seller agreed to sell the buyer "that machine you saw," inducing the sale by false statements in regard to the machine. It would be as harsh as in the actual case to make the buyer keep the machine, yet surely there the court could not say that the sale was by description, or that there was a failure to identify the thing sold.

Even if the reasoning of the decision be supported, it is evident that the English court will have to take very nice distinctions in order to determine when there is a sale with warranty, and

when the sale fails because the goods do not comply with the description. If the contract is to sell a sound four-year-old horse in the last stall, title will not pass apparently, but if the contract is to sell a four-year-old horse which the buyer says is sound, there is a sale with a collateral warranty. In view of the careless way that oral bargains and even written bargains are worded, it is evident that the questions will be very difficult, and the answers bear little relation to the intention of the parties, for the parties mean the same thing whichever way they happen to express themselves. It is at all times a troublesome question in the law of sales to determine when title passes and when it does not - so troublesome that often nothing but litigation can determine it. If the distinctions taken in Varley v. Whipp are sound, the difficulty is increased. For some purposes it is necessary to decide whether title has passed, difficult as the question may be, but it is certainly a clear, practical advantage if, in a given situation, the same rule is applicable whether title has passed or not. Under the Massachusetts rule not only are the fine-spun distinctions between conditions and warranties unimportant, but in this connection it makes little difference whether title has passed.1 If the seller has promised in any form that the goods possess some quality and they do not, the buyer may refuse to take the goods if he has not already taken them, and may return them if he has previously received them. He may refuse to pay the price if he has not already paid, and if he has paid it he may recover it. The simplicity of the rule is perhaps its greatest merit.

If a sale is induced by fraudulent statements, rescission is admittedly proper. And if a seller knows of the falsity of the statements he makes which constitute a warranty, he is fraudulent. The morality of taking advantage afterwards of false statements innocently made, by insisting on retaining the advantage of a sale induced thereby, is almost as questionable as that of making knowingly false statements to bring about the sale. It is a difficult question of fact, and one which arises in very many cases of broken warranty, how far the seller knew that his warranty was

1 There seems to be one difference. If title has not passed and goods are offered which do not comply with the seller's agreement, the buyer may not only reject the goods, but may sue the seller for damages. If title has actually passed, though the buyer may at his option reject the goods, or keep them and sue for damages, the authorities do not seem to allow him both rights. If he rescinds the sale, he cannot recover damages.

2 See Mechem, § 932 and cases cited.

false. It is clear gain if this question also becomes immaterial, as it does in Massachusetts and other states allowing rescission for breach of warranty.

The English rule represents in truth a partial survivorship of the principle of caveat emptor. This remnant of the doctrine may well be swept away, as the more obviously barbarous applications of the doctrine have already been.

Samuel Williston.

GOVERNMENT OWNERSHIP OF PUBLIC UTILITIES

FROM THE STANDPOINT OF CONSTITUTIONAL LIMITATIONS.

IN

N the great and widespread industrial warfare which is being waged in this country, no one occurrence has brought so forcibly to the attention of the people at large the portentous significance of this strife to the whole nation as has the great strike in the anthracite coal regions of Pennsylvania. The close observer and intelligent student of public affairs ought not to be surprised to observe, as one of the more remote consequences of this strike, an increase of the receptivity of the public mind to the principles of thoroughgoing socialism. To my mind, this tendency of thoughtful minds to subscribe to and indorse socialism is one of the serious dangers to our present civil polity, which, as is well known, is based upon the principles of individualism.

If we were living in an European country, there would be not occasion for the penning of this paper, for I am not a political economist, nor do I propose to present here an economic argument for or against the government ownership of public utilities. But American constitutional law imposes upon the courts of this country the imperative duty to declare legislation to be unconstitutional and void which contravenes some provision of the constitutions, national and state. And it is a matter of common information that the courts are not loath to pronounce their veto upon legislation which restricts personal liberty or interferes unconstitutionally with the continued possession and enjoyment of vested rights. It seems to me, for these reasons, that the constitutional aspect of the proposition for the government ownership of public utilities, and the distinction which the political economists make between that proposition and the principles of socialism, may be a timely subject for the consideration of students of jurisprudence. This is the purpose and subject of this paper.

If a business or occupation is absolutely and inherently harmful to society, or fraudulent in character, it matters not how or by whom it is carried on, the only possible effective police regulation is the total prohibition of such trade or business. But it may