242

ury, in 1808.240 Presidents Madison, Monroe and Jackson all vetoed bills for extensive internal improvements on constitutional grounds, but at the same time expressed a wish that the Constitution might be amended so such a policy could be adopted. It was not the policy of the government undertaking these matters, but the lack of power, that troubled these fathers of democracy. For the first twenty-five years of the agitation for a Pacific railroad it seemed to be assumed by all that it should be constructed by the government, as was the national road, and the elaborate surveys therefor were made by the federal government in 1853-5 under the supervision of Jefferson Davis, President Pierce's secretary of war. The first Pacific Railroad charter provided that in certain contingencies the government might enter and take possession of the road for itself.243 The federal law authorizing a telegraph company that accepts its provisions to build its lines along any post road in the country provides that the government may at any time acquire such line by paying its value," and for forty years many of the postmasters general and several congressional committees have urged the government to do this. The Interstate Commerce Act is a positive expression of a policy to control the internal transportation system of the country, as was also the anti-trust act, and as to the latter no one who reads the debates can doubt that the intention of Congress in 1890 was to control the industrial and trading as well as the transportation trusts and combinations.246 Both laws have been found defective. A few years ago President Roosevelt,

240 Report Apr. 6, 1808, Am. St. Papers, class X; Miscellaneous, vol. 1. 241 See Vetoes, in Richardson's Messages and Papers of the Presidents. 242 History of Pacific R. R., Encyc. Brit. xix, 913; Davis, Hist. of Union Pacific Ry., pp. 35, 59, 96.

243 See Charter, 12 St. at L. 489, 1862.

244 Act of July 24, 1866, c. 230, 3, 14 St. at L. 221, R. S. § 5267. 245 9 Indus. Com. R., pp. 243, 890; Report Postmaster General, 1892, p. 23 et seq. See also 4 Indus. Com. R. 24, 129-31, 724; 7 Ib. 204, 286-9; 9 Ib. 179, 193, 206, 241, 266, 884, 890.

246 Bills and Debates in Congress on Trusts, 1885-1902, 57 Cong., 2d Sess., Sen. Doc. 147.

after the method of President Jefferson, advocated a constitutional amendment in order to meet our difficulties. On the other hand, the descendants of the Jeffersonian democracy, both in the direct and collateral lines, have just united in resolving that monopolistic trusts should be forbidden the privileges of engaging in interstate commerce. The plan I urge strikes a middle ground; it is not so inflexible as the first, nor so drastic as the latter; it proposes to use a constitutional power by the only competent and responsible government in a way flexible enough to meet the varying conditions that may arise, and if properly worked out and administered adequate to the end to be accomplished.

248

A still broader view is possible. The German Imperial Legislature creates, under a constitutional power to regulate commerce among the commonwealths, corporations to operate throughout the empire; 27 the new Australian Constitution. confers upon the Parliament power in respect to trade among the states, and authorizes the creation of trading corporations to operate in all. The Canadian Dominion Parliament exercises a like power under the British North American act.249 The English Companies act authorizes the formation of companies to operate in the colonies.250 What the greatest trading peoples of the world have found necessary and desirable is not an unwise policy nor an idle dream; what the most centralized and the most democratic governments have found useful is not a dangerous policy; still less will it be dangerous where the people, inheritors of all the great guaranties of liberty, from Magna Charta to our Constitutions, imbued with their spirit, govern themselves under the forms and substance of a Constitution framed by themselves, in order to promote the general welfare, and to secure the blessing of liberty to themselves and their posterity.

247 2 Burgess, Political Science, pp. 169-70.

248 Clark, Australian Constl. Law, pp. 88, 405.

249 The Const. of Canada, J. E. C. Munro, p. 256; Hassard, Canadian Constl. Law and Hist., p. 139; A. G. for Quebec vs. Colonial Bldg. and Loan Assn., 9 App. Cas. 157.

250 Gore-Browne, Handy Book of Joint Stock Companies, 24th ed., p. 73.

1 DRAFT OF AN ACT FOR CODIFYING THE LAW RELATING TO THE SALE OF GOODS.

(As Revised after Consultation with the Conference of Commissioners on Uniform State Laws, at St. Louis, September 22, 23 and 24, 1904.)

Be it enacted, etc., as follows:

PART I.

FORMATION OF THE CONTRACT.

1.—(1.) A contract to sell goods is a contract whereby the seller agrees to transfer the property in goods to the buyer for a consideration called the price.

(2.) A sale of goods is an agreement whereby the seller transfers the property in goods to the buyer for a consideration called the price.

1 The original draft of this act was prepared in 1902-3, by Professor Samuel Williston, of Cambridge, Massachusetts, at the request of the Conference of Commissioners on Uniform State Laws. It was printed in the summer of 1903 and sent with a request for criticism to teachers of the law of sales and to other experts on the subject. Some criticisms were received, and with the light of these criticisms and his own further reflection, the draftsman presented to the Conference of Commissioners on Uniform State Laws, at its meeting at St. Louis, September 22, 23 and 24, 1904, a number of suggested amendments.

The draft was then gone over carefully, section by section, by the Conference. Doubtful points and changes in wording were discussed and voted upon. The draft was then recommitted to the draftsman with instructions to embody the changes adopted in the Conference and to present a revised draft at the Conference in August, 1905.

The draft in its present form is the outcome of these instructions.

This form is not to be regarded as final. It is hoped that before August, 1905, those who are learned in the law of sales will give the act the benefit of their further consideration and criticism.

If they will do so, doubtless further improvements can be made.

Comment and criticism are solicited that the act may be made as perfect as possible before its adoption. Communicate with Professor Samuel Williston, Harvard Law School, Cambridge, Mass.

(3.) A contract to sell or a sale may be absolute or conditional.

(4.) There may be a contract to sell or a sale between one part owner and another.

2. Capacity to buy and sell is regulated by the general law concerning capacity to contract, and to transfer and acquire property.

Where necessaries are sold and delivered to an infant, or to a person who by reason of mental incapacity or drunkenness is incompetent to contract, he must pay a reasonable price therefor.

Necessaries in this section mean goods suitable to the condition in life of such infant or other person, and to his actual requirements at the time of the sale and delivery.

Formalities of the Contract.

3. Subject to the provisions of this act and of any statute in that behalf, a contract to sell or a sale may be made in writing (either with or without seal), or by word of mouth, or partly in writing and partly by word of mouth, or may be implied from the conduct of the parties.

4.-(1.) A contract to sell or a sale of any goods or choses in action of the value of five hundred dollars or upwards shall not be enforceable by action unless the buyer shall accept part of the goods or choses in action so sold, and actually receive the same, or give something in earnest to bind the contract, or in part payment, or unless some note or memorandum in writing of the contract be signed by the party to be charged or his agent in that behalf.

(2.) The provisions of this section apply to every such contract or sale, notwithstanding that the goods may be intended to be delivered at some future time, or may not at the time of such contract or sale be actually made, procured, or provided, or fit or ready for delivery, or some act may be requisite for the making or completing thereof, or rendering the same fit for delivery; but if the goods are to be manufactured by the seller especially for the buyer and are not suitable for sale to

others in the ordinary course of the seller's business, the provisions of this section shall not apply.

(3.) There is an acceptance of goods within the meaning of this section when the buyer, either before or after delivery of the goods, expresses by words or conduct his assent to becoming the owner of those specific goods.

Subject Matter of Contract.

5.—(1.) The goods which form the subject of a contract to sell or a sale may be either existing goods, owned or possessed by the seller, or goods to be manufactured or acquired by the seller after the making of the contract of sale, in this act called "future goods."

(2.) There may be a contract to sell goods, the acquisition of which by the seller depends upon a contingency which may or may not happen.

(3.) Where the parties purport to effect a present sale of future goods, the agreement operates as a contract to sell the goods.

6.-(1.) There may be a contract to sell or a sale of an undivided share of goods. If the parties intend to effect a present sale, the buyer, by force of the agreement, becomes an owner in common with the owner or owners of the remaining shares.

(2.) In the case of fungible goods, there may be a sale of an undivided share of a specific mass, though the seller purports to sell and the buyer to buy a definite number, weight or measure of the goods in the mass, and though the number, weight or measure of the goods in the mass is undetermined. By such a sale the buyer becomes owner in common of such a share of the mass as the number, weight or measure bought bears to the number, weight or measure of the mass. If the mass contains less than the number, weight or measure bought, the buyer becomes the owner of the whole mass and the seller is bound to make good the deficiency from similar goods unless a contrary intent appears.