1 The Moral Imagination & Contracts Classics 1 The Moral Imagination & Contracts Classics

1.1 THE SOCRATIC METHOD AND THE DEVELOPMENT OF THE MORAL IMAGINATION 1.1 THE SOCRATIC METHOD AND THE DEVELOPMENT OF THE MORAL IMAGINATION

[*647] A lawyer's professional life begins the day that he or she starts law school. This has not always been the case, of course, but today the first phase of almost every lawyer's career consists of a period of time spent studying law in a formal academic program under the supervision of university professors. However diverse their professional experiences may be in other respects, therefore, lawyers still share at least one thing in common: they have all been law students at one time or another, and it is as students that their professional habits first take shape. The single most prominent feature of twentieth-century American legal education is its heavy reliance on the so-called case method of instruction. By the case method I mean two things: first, the study of law through the medium of judicial opinions, mainly appellate opinions, that have been rendered in actual disputes; and second, the examination of these opinions in a spirit that has often, and aptly, been described as "Socratic." Though this latter term is sometimes used to denote a distinctive style of law teaching - one marked by an extreme of bullying and intimidation - it is the term's wider meaning that I have in mind. By Socratic I mean both an unwillingness to take the soundness of any judicial opinion for granted, no matter how elevated the tribunal or how popular the result, and a commitment to place the conflicting positions that each lawsuit presents in their most attractive light, regardless of how well they have been treated in the opinion itself. Most American law teachers today employ the case method of instruction in the broad sense just defined. It would be possible, of course, to teach the law by studying its operation at the trial and pretrial levels rather than concentrating as exclusively as American law teachers do on the decisions of appellate courts. But appellate opinions have the great advantage of bringing out the legal issues in a case with an economy and a precision that trial transcripts, for example, rarely do. To be sure, appellate opinions also have a characteristic deficiency that most law teachers recognize: they are typically mere distillates that leave out much of a dispute's original complexity and present its facts in an incomplete and stylized way. But the usefulness of appellate opinions as a vehicle for teaching the broad structure of the law outweighs this deficiency and explains why they are used instead of transcripts and briefs as the chief means for introducing students to the doctrine in most fields. This explanation for the heavy reliance on appellate opinions in American law teaching immediately raises the question why most American law teachers do not [*648] teach from treatises and textbooks instead? If the aim is to familiarize students with the doctrine in a certain field, why isn't a textbook that sets out the relevant rules in a clear and systematic way the best vehicle for doing so? What advantage is there in making students study these rules obliquely, by means of judicial opinions rendered in specific cases, rather than giving them the rules directly? There are three familiar answers to this question. First, since class time is scarce, it seems reasonable to concentrate on those problems likely to give students the greatest difficulty when they enter practice, and these will by definition be the problems that arise at the unsettled boundaries of a field, not those more routine ones that can be decided by already well-established principles. Boundary problems of this sort necessarily involve a clash of principles in which as much, or nearly as much, may be said on one side as on the other. The evenness of such contests means that at the margin of a field there are, in fact, no controlling principles at all, but only cases - controversies in which principles of roughly equal weight compete for precedence. The case method is certainly the most economical and perhaps the only way of giving students a feel for these controversies, for the boundary conflicts that define, at any given moment, the margins of a field. And from these conflicts it is easier for a student to construct an understanding of the field's settled interior than the other way around. Second, in addition to a knowledge of legal rules, practicing lawyers obviously also need skill in applying these rules to problems of a concrete kind. A lawyer must be able to apply the law to the complex, real-life dilemmas of clients. And the case method of instruction, which buffets students with a steady stream of such dilemmas, seems better adapted to the cultivation of this skill than textbook expositions do. A third justification for the case method is that it promotes rhetorical abilities needed in law practice. Lawyers are regularly called upon to defend their clients' interests before strangers in a public setting, often with little opportunity for advance preparation. To be effective a lawyer must therefore be skilled at spontaneous public speaking, and the case method of instruction - in which students are given no advance notice of the positions they will be required to defend before their classmates and under Socratic interrogation - seems the one best suited to teach this skill: better suited, in any case, than an abstract discussion of rules or principles that presents only familiar considerations of a general sort and no new facts that students must incorporate into their extemporaneous arguments. Each of these three justifications has merit, but each is also incomplete. The first justification, for example, tells us nothing about the way that boundary contests in the law should be resolved. A knowledge of general principles is clearly insufficient by itself to settle such disputes, for by definition they present dilemmas that existing principles do not straightforwardly decide. Is their decision therefore arbitrary? If not, what else must one know, what other skills must one possess, to decide them? And how does the case method teach these skills or convey the required sort of knowledge? The second justification is incomplete as well. No one will deny that the practice of law involves the application of general rules to specific cases. But the same may also be said of other disciplines, like medicine. The cases that doctors study differ, however, from those that constitute the subject matter of the lawyer's art. A law [*649] case is a fight or a contest; to say what it is, is necessarily to describe a disagreement. By contrast, to state a medical case - a patient's presenting symptoms - is not in the same way to report a controversy, though doctors may of course disagree in their diagnosis of a patient's problem. We might express this idea by saying that the problems with which lawyers deal are constitutively argumentative, at least in comparison with those of medicine. How is this distinctive feature of the cases they confront reflected in the method that is used to teach lawyers their craft? The claim that the case method teaches law students how to apply general rules to particular problems raises this question and brings it into focus, but by itself provides no answer. The third justification misses something too. A good lawyer must of course be an effective advocate, and it is reasonable to assume that this requires some skill at public speaking. But effective advocacy demands more than the ability to speak extemporaneously in front of strangers. It also requires that one be able to distinguish persuasive arguments from unpersuasive ones, and the third justification for the case method of laws teaching has nothing to say about the meaning of this distinction or the way in which the study of cases helps student to discern it. And it ignores a basic feature of the method itself. For while it is true that the case method forces students to practice the art of advocacy by making arguments on behalf of imaginary clients, it also compels them to reflect on the soundness of these same arguments from a judicial point of view and thus, some of the time at least, to adopt an attitude more neutral and inclusive than that of a committed advocate. These three justifications for the case method all lack one thing: an appreciation of the way in which it functions as an instrument for the development of moral imagination. It is this aspect of the method I now want to examine. The case method of law teaching presents students with a series of concrete disputes and compels them to reenact these disputes by playing the roles of the original contestants or their lawyers. It thus forces them to see things from a range of different points of view and to entertain the claims associated with each, broadening their capacity for sympathy by taxing it in unexpected ways. But it also works in the opposite direction. For the student who has been assigned a partisan position and required to defend it is likely to be asked a moment later for his views regarding the wisdom of the judge's decision in the case. To answer, he must disengage himself from the sympathetic attachments he may have formed as a committed, if imaginary, participant and reexamine the case from a disinterested judicial point of view. The case method thus works simultaneously to strengthen both the student's powers of sympathetic understanding and his ability to suppress all sympathies in favor of a judge's scrupulous neutrality. Most important, it increases his tolerance for the disorientation that movement back and forth between these different attitudes occasions. In this way he case method serves as a forcing ground for the moral imagination by cultivating that peculiar bifocality that I earlier described as its most essential property. One aim of this complex exercise in advocacy and detachment is the cultivation of those perceptual habits that lawyers need in practice. Forcing students to defend positions they do not believe in or that they consider morally offensive may seem arbitrary and insensitive, but it serves an important goal. The student who is put in this position must strain to see the claim he has been given to defend in its most [*650] attractive light. He must work to discover its strengths and to articulate them, and this he cannot do unless he temporarily puts his earlier convictions to one side. In this way students get used to looking with a friendly eye even at those positions they personally reject, and before long they acquire some skill at identifying the strengths and weaknesses of whatever claim is presented to them, those that are unfamiliar or morally distasteful as well as those they recognize and endorse. Gradually, much of this becomes habitual. One comes to see that the arguments for and against most positions fall into certain stylized patterns, and to recognize which argument forms are most appropriate to which causes. Over time these insights come to shape the increasingly instinctive scheme within which law students view the cases they are given. The gradual acceptance of this scheme marks a change in perception, in the way one sees legal conflict as well as thinks about it. Or more precisely, since this distinction is to some extent an artificial one, the way a law student learns to think about cases comes eventually to affect how he perceives them, below the level of reflective thought. This perceptual adjustment forms the core of the student's nascent professional persona, and is reflected in the habits and reflexes that increasingly distinguish his approach to legal problems from that of a layperson uneducated in the law. Along with this perceptual adjustment, the case method tends to promote a second change as well, a change in temperament or disposition. The role-playing and Socratic interrogation that are its central features force students to make the most of the conflicting claims presented by the cases. It forces them to entertain these claims from a sympathetic internal point of view. This means more than granting that their proponents have the right to assert them and accepting that they are not irrational to do so. To entertain a claim, one must make an effort to see its sense or value from the point of view of those who actually endorse it: to sympathize with their perspective and not simply tolerate it. The effort to entertain unfamiliar and disagreeable positions may at first cause some awkwardness and pain. But in time it increases a person's powers of emphatic understanding and relaxes the boundaries that initially restrict his sympathies to what he knows and likes. Some students find this experience disturbing and complain that the case method, which makes every position respectable, undermines their sense of integrity and personal self-worth. It is easy to understand why. For the discovery in oneself of a developing capacity to see the point of positions that previously seemed thoughtless or unfair is often accompanied by a corresponding sense of more critical detachment from one's earlier commitments, and this can lead to the feeling of being unmoored with no secure convictions and hence no identity at all. This experience, which law students sometimes describe, not inappropriately, as the experience of losing one's soul, strongly suggests that the process of legal education does more than impart knowledge and promote new perceptual habits. In addition it works - is meant to work - upon the students' dispositions by strengthening their capacity for sympathetic understanding. The strengthening of this capacity often brings with it the dulling or displacement of earlier convictions and a growing appreciation of the incommensurability of values, changes of attitude that many experience as personally transforming. It is this unsettling experience that underlies the law student's concern that his professional education threatens to [*651] rob him of his soul - an anxiety no mere increment in knowledge or refinement of perception can explain. It may seem implausible that the reading of appellate opinions can bring such a transformation about. Appellate opinions, after all, are typically rather dry documents that contain only an abbreviated statement of the facts; that commonly avoid decision on the merits but focus on the jurisdiction and procedure of lower courts instead; and that frequently fail to present the losing side in its most attractive light (for the obvious reason that doing so makes it easier for the court to justify its decision in the case). These characteristics might appear to make appellate opinions a poor vehicle for stimulating the moral imagination of law students by forcing them to sympathize with a diversity of points of view and to confront the impossibility of framing a comprehensive scheme of values within which all conflicting claims may be compared. If that is our goal, would it not be better to focus, say, on the parties' briefs and closing arguments at trial, where the facts are likely to be presented more fully and the positions of the contestants stated with maximum force? The answer is no, for several reasons. First, however incomplete the statement of facts in an appellate opinion, it almost always contains some details embarrassing to the winning party. These, so to speak, peep through the opinion and remind readers that the losing party had some facts on its side too. Second, the law teacher who teaches Socratically does not simply say, "On the facts as reported the court held thus and such," and let it go at that. Rather, using the court's selective but manageable statement of facts as a starting point, he invites his students to replay the case by considering whether the losing party might have put its position in a more compelling form and then imaging what could have been said in response. Often this means teaching against the grain of the court's opinion - by taking seriously facts it downplays and arguments it rejects. But many American law teachers teach this way, and since the appellate opinions that are selected for inclusion in student casebooks are often chosen precisely because they invite contrapuntal treatment of this sort, there is even a bias in favor of such teaching. Third, if it is objected that this can all be accomplished more easily by using other materials (a dubious claim in any case, given the length and disorderliness of most trial transcripts and the poor quality of many briefs), the response must be that this objection misses the point. For the students' imaginative powers are most likely to be strengthened if they are forced to work at reconstructing positions only partially visible to them rather than being presented with these positions in already finished form. The moral-educative function of law training requires that this work be strenuous; that it be possible but challenging. And the appellate opinion seems a particularly good instrument for this because it is rich enough in facts to give students something concrete to work with, but sufficiently schematic to make them struggle to reimagine fully the parties' conflicting claims. These considerations help explain why appellate opinions are more likely than treatises and textbooks, on the one hand, or briefs and transcripts, on the other, to encourage the growth of deliberative imagination, as well as being uniquely well adapted to conveying an understanding of legal doctrine. But there is another element to the moral education law students receive that is also linked to the study of judicial opinions and that would be missing if their reading consisted of [*652] academic synopses or partisan statements instead. Once we take this other element into account, moreover, reasons emerge for viewing the negative, belief-and commitment-threatening side of the case method in a more positive light. The task of an appellate judge is twofold: first, to decide the controversy before him, and second, to provide a set of supporting reasons for the decision that he gives. Both his decision and the rationale for it are set forth in the opinion the judge issues at the conclusion of the case. Of course, the parties to a legal dispute also often prepare documents of their own stating their version of the case. But it is the judge who has the final word, and his opinion enjoys priority over theirs. It establishes the point of view from which every other viewpoint must be assessed. Thus while it may in one sense be correct to describe the judge merely as another actor in the drama of the case, within the structure of this drama his perspective occupies a dominant place. In the case method of instruction, the priority of the judge's point of view is reflected in the disproportionate amount of class time typically devoted to questioning whether the case at hand was rightly decided, a question that must by definition be approached from the perspective of a judge whether one agrees with the decision or not. The case method is largely an exercise in forced role-playing. But it is important to remember that among the roles students are invited to play is that of a judge, and to recognize that the priority of this role over others is embedded in the method itself. If the effort to entertain the claims of the parties to a lawsuit demands enlarged powers of sympathy and leads to a loss of ideological conviction, to a blurring of the distinction between right and wrong, and to a diminished faith in the commensurability of values generally, the case method's emphasis on the priority of the judicial point of view underscores the need to conclude the dispute despite these certainties and to do so not by fiat but in a reasoned and publicly justifiable manner instead. In this way the case method provides its own counterweight to the student's growing acceptance of complexity and pluralism in the realm of values, and blocks the slide to what might otherwise become the cynical celebration of arbitrariness. It does this by habituating students to the need for reasoned judgment under conditions of maximum moral ambiguity, and by giving them practice at rendering such judgments themselves. The result is a combination of attitudes in tension with one another: an expanded capacity for sympathetic understanding coupled with the ability to see every claim with the coldest and most distant, most judicial, eye; a broad familiarity with diverse and irreconcilable human goods coupled with an indefatigable willingness to enter the fray, hear the arguments, render judgment, and articulate the reasons that support it, even when all hope of moral certainty is gone. At war with itself, this complex set of attitudes nonetheless describes a recognizable moral ideal, an ideal closest, perhaps, to the public-spirited stoicism implied by the Roman term gravitas, but in any event distinguishable from the indifferent cynicism that some believe the case method of instruction tends inevitably to produce. No doubt it sometimes does, and the fear that a person may lose his soul in the process is to that extent justified. But the aim of the case method is otherwise. For what it seeks to produce, ideally at least, are stoics rather than cynics, a distinction that becomes clear only when the priority of the judicial [*653] point of view and its function as a counterweight to relativism are recognized to be essential features of the method itself. The privileged position that the case method assigns the judicial point of view has another important consequence. Judges are expected to decide cases in a disinterested manner, meaning without concern for their own personal advantage. This does not mean, however, that a judge approaches his task without interests of any kind at all. There is one interest that all judges are allowed and whose absence in a judge is indeed considered a deficiency. That is the judge's interest in the administration of justice, in the integrity or well-being of the legal system as a whole. The judge's interest in the well-being of the law encompasses a variety of concerns - the concern for doctrinal coherence, for example, and for the responsiveness of doctrine to social and economic circumstances. It also includes a concern for the bonds of fellowship that legal conflict strains but that must be preserved to avoid other, more destructive conflicts. The judge's interest in all these things - which, far from compromising his authority, helps to constitute it - might be characterized, in general terms, as an interest in the good of the community represented by the laws. The judge's interest is thus broader or more inclusive than the interests of the parties. They are interested in their own separate welfare. He, by contrast, is concerned with the well-being of the larger community of which they are members, the community constituted by the laws the parties have invoked to settle their dispute. The judge's attitude is in this sense more public-spirited than theirs and his point of view more communitarian. When law students play-act at being judges, as the case method requires them to do, it is this public-spirited attitude they must assume. To begin with, the attitude is likely to be one most students merely "put-on," in the way an actor puts on a mask. It is too disinterested, too remote from most students' own partisan convictions, to be an attitude they experience as their own. But the built-in priority the case method gives the roles of judge and constant practice at playing it tend in time to blur the line between what a student puts on and what belongs to him in his own right. By a process of transference that the case method deliberately exploits, the judicial attitude that a student begins by mimicking becomes to some degree his own, and the student himself takes on a measure of the public-spiritedness that distinguishes the judge's view of legal conflict. The student to whom this has happened tends instinctively to look at the law and to argue about its meaning in the same way that a judge would, and even more important, to care with new intensity about the good of the legal system and the community it represents. One could of course devise a system of legal education in which the judicial point of view did not play the central organizing role it now does. Law students might be made, for example to consider problems from the point of view of a legislator rather than a judge. But a program of this sort would be less well-suited to the cultivation of civic-mindedness. No one doubts that legislators sometimes act for the sake of the public good, the good of the whole community whose laws they are empowered to enact, repeal, and adjust. But the actions of legislators are also often directed toward private ends, toward the advancement of the partisan interests of their constituents, the small groups of citizens that elect them and whose frequently parochial points of view they have pledged to represent. Public-spiritedness and partisanship are thus tangled up in legislation. In adjudication, by contrast, the [*654] civic-minded attitude appears in purer form. Unlike legislators, judges are expected to attend to the public good alone, and any deviation from this attitude, though acceptable in the sphere of legislation, is generally considered a failing in a judge. Without denying that civic-mindedness plays some part in the work of legislation, we may therefore say that it defines the judge's point of view in a more exclusive way. The priority that the case method gives to this point of view reflects the belief that it is part of what lawyers must be taught. It confirms that one purpose of their professional education is to acquaint lawyers with the attitude of civic-mindedness most perfectly exemplified in the work of judging and through repeated mimicry to inculcate this attitude in them as a dispositional trait. It is worth observing that this same purpose cannot be ascribed to every scheme of professional education that employs some form of case method as the vehicle for studying human conflict. Many business school programs, for example, use a version of the case method to study problems of entrepreneurship and management. The business school "case" resembles its law school counterpart in several respects. It, too, presents a concrete situation involving different actors with partly conflicting and partly cooperative interests, and challenges the student to discover or invent an appropriate solution to the problem. But the case that business school students study is simply a set of facts and not, as in law school, a judicial opinion. The business school case is not a problem conceived and articulated from the point of view of one who is expected by virtue of his office to be single-mindedly concerned with the promotion of the common good. Though it also involves considerable role-playing, the business school case thus lacks the one role to which the case method as it is practiced in law schools gives the greatest emphasis, the role of the judge, and hence it cannot be said to teach, as directly or insistently, the attitude that distinguishes this role form others. The dominant perspective in business school cases is that of a manager, not of a judge, and while a manager may more than others be concerned with the overall well-being of his firm, because the firm is situated in a competitive environment populated by other firms, managers must also be partisans in a way that judges are not. The managerial perspective mixes communitarian and self-interested attitudes, and to that extent encourages less forcefully than the judicial point of view the spirit of civic-mindedness that the latter exemplifies in an unmixed form. * Anthony Kronman, The Lost Lawyer 109-21 (1993).

1.2 Lucy v. Zehmer 1.2 Lucy v. Zehmer

Supreme Court of Appeals of Virginia

196 Va. 493

Record No. 4272

1954-11-22

Richmond

W. O. Lucy and J. C. Lucy v. A. H. Zehmer and Ida S. Zehmer.

November 22, 1954.

Record No. 4272.

Present, Eggleston, Buchanan, Miller, Smith and Whittle, JJ.

The opinion states the case.

A. S. Harrison, Jr. and Emerson D. Baugh, for the appellants.

Morton G. Goode and William Earle White, for the appellees.

Buchanan, J.,

delivered the opinion of the court.

This suit was instituted by W. O. Lucy and J. C. Lucy, complainants, against A. H. Zehmer and Ida S. Zehmer, his wife, defendants, to have specific performance of a contract by which it was alleged the Zehmers had sold to W. O. Lucy a tract of land owned by A. H. Zehmer in Dinwiddie county containing 471.6 acres, more or less, known as the Ferguson farm, for $50,000. J. C. Lucy, the other complainant, is a brother of W. O. Lucy, to whom W. O. Lucy transferred a half interest in his alleged purchase.

The instrument sought to be enforced was written by A. H. Zehmer on December 20, 1952, in these words: “We hereby agree to sell to W. O. Lucy the Ferguson Farm complete for $50,000.00, title satisfactory to buyer,” and signed by the defendants, A. H. Zehmer and Ida S. Zehmer.

The answer of A. H. Zehmer admitted that at the time mentioned W. O. Lucy offered him $50,000 cash for the farm, but that he, Zehmer, considered that the offer was made in jest; that so thinking, and both he and Lucy having had several drinks, he wrote out “the memorandum” quoted above and induced his wife to sign it; that he did not deliver the memorandum to Lucy, but that Lucy picked it up, read it, put it in his pocket, attempted to offer Zehmer $5 to bind the bargain, which Zehmer refused to accept, and realizing for the first time that Lucy was serious, Zehmer assured him that he had no intention of selling the farm and that the whole matter was a joke. Lucy left the premises insisting that he had purchased the farm.

Depositions were taken and the decree appealed from was entered holding that the complainants had failed to establish their right to specific performance, and dismissing their bill. The assignment of error is to this action of the court.

W. O. Lucy, a lumberman and farmer, thus testified in substance: He had known Zehmer for fifteen or twenty years and had been familiar with the Ferguson farm for ten years. Seven or eight years ago he had offered Zehmer $20,000 for the farm which Zehmer had accepted, but the agreement was verbal and Zehmer backed out. On the night of December 20, 1952, around eight o’clock, he took an employee to McKenney, where Zehmer lived and operated a restaurant, filling station and motor court. While there he decided to see Zehmer and again try to buy the Ferguson farm. He entered the restaurant and talked to Mrs. Zehmer until Zehmer came in. He asked Zehmer if he had sold the Ferguson farm. Zehmer replied that he had not. Lucy said, “I bet you wouldn’t take $50,000.00 for that place.” Zehmer replied, “Yes, I would too; you wouldn’t give fifty.” Lucy said he would and told Zehmer to write up an agreement to that effect. Zehmer took a restaurant check and wrote on the back of it, “I do hereby agree to sell to W. O. Lucy the Ferguson Farm for $50,000 complete.” Lucy told him he had better change it to “We” because Mrs. Zehmer would have to sign it too. Zehmer then tore up what he had written, wrote the agreement quoted above and asked Mrs. Zehmer, who was at the other end of the counter ten or twelve feet away, to sign it. Mrs. Zehmer said she would for $50,000 and signed it. Zehmer brought it back and gave it to Lucy, who offered him $5 which Zehmer refused, saying, “You don’t need to give me any money, you got the agreement there signed by both of us.”

The discussion leading to the signing of the agreement, said Lucy, lasted thirty or forty minutes, during which Zehmer seemed to doubt that Lucy could raise $50,000. Lucy suggested the provision for having the title examined and Zehmer made the suggestion that he would sell it “complete, everything there,” and stated that all he had on the farm was three heifers.

Lucy took a partly filled bottle of whiskey into the restaurant with him for the purpose of giving Zehmer a drink if he wanted it. Zehmer did, and he and Lucy had one or two drinks together. Lucy said that while he felt the drinks he took he was not intoxicated, and from the way Zehmer handled the transaction he did not think he was either.

December 20 was on Saturday. Next day Lucy telephoned to J. C. Lucy and arranged with the latter to take a half interest in the purchase and pay half of the consideration. On Monday he engaged an attorney to examine the title. The attorney reported favorably on December 31 and on January 2 Lucy wrote Zehmer stating that the title was satisfactory, that he was ready to pay the purchase price in cash and asking when Zehmer would be ready to close the deal. Zehmer replied by letter, mailed on January 13, asserting that he had never agreed or intended to sell.

Mr. and Mrs. Zehmer were called by the complainants as adverse witnesses. Zehmer testified in substance as follows:

He bought this farm more than ten years ago for $11,000. He had had twenty-five offers, more or less, to buy it, including several from Lucy, who had never offered any specific sum of money. He had given them all the same answer, that he was not interested in selling it. On this Saturday night before Christmas it looked like everybody and his brother came by there to have a drink. He took a good many drinks during the afternoon and had a pint of his own. When he entered the restaurant around eight-thirty Lucy was there and he could see that he was “pretty high.” He said to Lucy, “Boy, you got some good liquor, drinking, ain’t you?” Lucy then offered him a drink. “I was already high as a Georgia pine, and didn’t have any more better sense than to pour another great big slug out and gulp it down, and he took one too.”

After they had talked a while Lucy asked whether he still had the Ferguson farm. He replied that he had not sold it and Lucy said, “I bet you wouldn’t take $5.0,000.00 for it.” Zehmer asked him if he would give $50,000 and Lucy said yes. Zehmer replied, “You haven’t got $50,000 in cash.” Lucy said he did and Zehmer replied that he did not believe it. They argued “pro and con for a long time,” mainly about “whether he had $50,000 in cash that he could put up right then and buy that farm.”

Finally, said Zehmer, Lucy told him if he didn’t believe he had $50,00,0, “you sign that piece of paper here and say you will take $50,000.00 for the farm.” He, Zehmer, “just grabbed the back off of a guest check there” and wrote on the back of it. At that point in his testimony Zehmer asked to see what he had written to “see if I recognize my own handwriting.” He examined the paper and exclaimed, “Great balls of fire, I got ‘Firgerson’ for Ferguson. I have got satisfactory spelled wrong. I don’t recognize that writing if I would see it, wouldn’t know it was mine.”

After Zehmer had, as he described it, “scribbled this thing off,” Lucy said, “Get your wife to sign it.” Zehmer walked over to where she was and she at first refused to sign but did so after he told her that he “was just needling him [Lucy], and didn’t mean a thing in the world, that I was not selling the farm.” Zehmer then “took it back over there and I was still looking at the dern thing. I had the drink right there by my hand, and I reached over to get a drink, and he said, ‘Let me see it.’ He reached and picked it up, and when I looked back again he had it in his pocket and he dropped a five dollar bill over there, and he said, ‘Here is five dollars payment on it.’ I said, ‘Hell no, that is beer and liquor talking. I am not going to sell you the farm. I have told you that too many times before.’ ”

Mrs. Zehmer testified that when Lucy came into the restaurant he looked as if he had had a drink. When Zehmer came in he took a drink out of a bottle that Lucy handed him. She went back to help the waitress who was getting things ready for next day. Lucy and Zehmer were talking but she did not pay too much attention to what they were saying. She heard Lucy ask Zehmer if he had sold the Ferguson farm, and Zehmer replied that he had not and did not want to sell it. Lucy said, “I bet you wouldn’t take $50,000 cash for that farm,” and Zehmer replied, “You haven’t got $50,000 cash.” Lucy said, “I can get it.” Zehmer said he might form a company and get it, “but you haven’t got $50,000.00 cash to pay me tonight.” Lucy asked him if he would put it in writing that he would sell him this farm. Zehmer then wrote on the back of a pad, “I agree to sell the Ferguson Place to W. O. Lucy for $50,000.00 cash.” Lucy said, “All right, get your wife to sign it.” Zehmer came back to where she was standing and said, “You want to put your name to this?” She said “No,” but he said in an undertone, “It is nothing but a joke,” and she signed it.

She said that only one paper was written and it said: “I hereby agree to sell,” but the “I” had been changed to “We”. However, she said she read what she signed and was then asked, “When you read We hereby agree to sell to W. O. Lucy,’ what did you interpret that to mean, that particular phrase?” She said she thought that was a cash sale that night; but she also said that when she read that part about “title satisfactory to buyer” she understood that if the title was good Lucy would pay $50,000 but if the title was bad he would have a right to reject it, and that that was her understanding at the time she signed her name.

On examination by her own counsel she said that her husband laid this piece of paper down after it was signed; that Lucy said to let him see it, took it, folded it and put it in his wallet, then said to Zehmer, “Let me give you $5.00,” but Zehmer said, “No, this is liquor talking. I don’t want to sell the farm, I have told you that I want my son to have it. This is all a joke.” Lucy then said at least twice, “Zehmer, you have sold your farm,” wheeled around and started for the door. He paused at the door and said, “I will bring you $50,000.00 tomorrow. No, tomorrow is Sunday. I will bring it to you Monday.” She said you could tell definitely that he was drinking and she said to her husband, “You should have taken him home,” but he said, “Well, I am just about as bad off as he is.”

The waitress referred to by Mrs. Zehmer testified that when Lucy first came in “he was mouthy.” When Zehmer came in they were laughing and joking and she thought they took a drink or two. She was sweeping and cleaning up for next day. She said she heard Lucy tell Zehmer, “I will give you so much for the farm,” and Zehmer said, “You haven’t got that much.” Lucy answered, “Oh, yes, I will give you that much.” Then “they jotted down something on paper and Mr. Lucy reached over and took it, said let me see it.” He looked at it, put it in his pocket and in about a minute he left. She was asked whether she saw Lucy offer Zehmer any money and replied, “He had five dollars laying up there, they didn’t take it.” She said Zehmer told Lucy he didn’t want his money “because he didn’t have enough money to pay for his property, and wasn’t going to sell his farm.” Both of them appeared to be drinking right much, she said.

She repeated on cross-examination that she was busy and paying no attention to what was going on. She was some distance away and did not see either of them sign the paper. She was asked whether she saw Zehmer put the agreement down on the table in front of Lucy, and her answer was this: “Time he got through writing whatever it was on the paper, Mr. Lucy reached over and said, ‘Let’s see it.’ He took it and put it in his pocket,” before showing it to Mrs. Zehmer. Her version was that Lucy kept raising his offer until it got to $50,000.

The defendants insist that the evidence was ample to support their contention that the writing sought to be enforced was prepared as a bluff or dare to force Lucy to admit that he did not have $50,000; that the whole matter was a joke; that the writing was not delivered to Lucy and no binding contract was ever made between the parties.

It is an unusual, if not bizarre, defense. When made to the writing admittedly prepared by one of the defendants and signed by both, clear evidence is required to sustain it.

In his testimony Zehmer claimed that he “was high as a Georgia pine,” and that the transaction “was just a bunch of two doggoned drunks bluffing to see who could talk the biggest and say the most.” That claim is inconsistent with his attempt to testify in great detail as to what was said and what was done. It is contradicted by other evidence as to the condition of both parties, and rendered of no weight by the testimony of his wife that when Lucy left the restaurant she suggested that Zehmer drive him home. The record is convincing that Zehmer was not intoxicated to the extent of being unable to comprehend the nature and consequences of the instrument he executed, and hence that instrument is not to be invalidated on that ground. 17 C. J. S., Contracts, § 133 b., p. 483; Taliaferro v. Emery, 124 Va. 674, 98 S. E. 627. It was in fact conceded by defendants’ counsel in oral argument that under the evidence Zehmer was not too drunk to make a valid contract.

The evidence is convincing also that Zehmer wrote two agreements, the first one beginning “I hereby agree to sell.” Zehmer first said he could not remember about that, then that “I don’t think I wrote but one out.” Mrs. Zehmer said that what he wrote was “I hereby agree,” but that the “I” was changed to “We” after that night. The agreement that was written and signed is in the record and indicates no such change. Neither are the mistakes in spelling that Zehmer sought to point out readily apparent.

The appearance of the contract, the fact that it was under discussion for forty minutes or more before it was signed; Lucy’s objection to the first draft because it was written in the singular, and he wanted Mrs. Zehmer to sign it also; the rewriting to meet that objection and the signing by Mrs. Zehmer; the discussion of what was to be included in the sale, the provision for the examination of the title, the completeness of the instrument that was executed, the taking possession of it by Lucy with no request or suggestion by either of the defendants that he give it back, are facts which furnish persuasive evidence that the execution of the contract was a serious business transaction rather than a casual, jesting matter as defendants now contend.

On Sunday, the day after the instrument was signed on Saturday night, there was a social gathering in a home in the town of McKenney at which there were general comments that the sale had been made. Mrs. Zehmer testified that on that occasion as she passed by a group of people, including Lucy, who were talking about the transaction, $50,000 was mentioned, whereupon she stepped up and said, “Well, with the high-price whiskey you were drinking last night you should have paid more. That was cheap.” Lucy testified that at that time Zehmer told him that he did not want to “stick” him or hold him to the agreement because he, Lucy, was too tight and didn’t know what he was doing, to which Lucy replied that he was not too tight; that he had been stuck before and was going through with it. Zehmer’s version was that he said to Lucy: “I am not trying to claim it wasn’t a deal on account of the fact the price was too low. If I had wanted to sell $50,000.00 would be a good price, in fact I think you would get stuck at $50,00.0.00.” A disinterested witness testified that what Zehmer said to Lucy was that “he was going to let him up off the deal, because he thought he was too tight, didn’t know what he was doing. Lucy said something to the effect that ‘I have been stuck before and I will go through with it.’ ”

If it be assumed, contrary to what we think the evidence shows, that Zehmer was jesting about selling his farm to Lucy and that the transaction was intended by him to be a joke, nevertheless the evidence shows that Lucy did not so understand it but considered it to be a serious business transaction and the contract to be binding on the Zehmers as well as on himself. The very next day he arranged with his brother to put up half the money and take a half interest in the land. The day after that he employed an attorney to examine the title. The next night, Tuesday, he was back at Zehmer’s place and there Zehmer told him for the first time, Lucy said, that he wasn’t going to sell and he told Zehmer, “You know you sold that place fair and square.” After receiving the report from his attorney that the title was good he wrote to Zehmer that he was ready to close the deal.

Not only did Lucy actually believe, but the evidence shows he was warranted in believing, that the contract represented a serious business transaction and a good faith sale and purchase of the farm.

In the field of contracts, as generally elsewhere, “We must look to the outward expression of a person as manifesting his intention rather than to his secret and unexpressed intention. ‘The law imputes to a person an intention corresponding to the reasonable meaning of his words and acts.’ ” First Nat. Bank v. Roanoke Oil Co., 169 Va. 99, 114, 192 S. E. 764, 770.

At no time prior to the execution of the contract had Zehmer indicated to Lucy by word or act that he was not in earnest about selling the farm. They had argued about it and discussed its terms, as Zehmer admitted, for a long time. Lucy testified that if there was any jesting it was about paying $50,000 that night. The contract and the evidence show that he was not expected to pay the money that night. Zehmer said that after the writing was signed he laid it down on the counter in front of Lucy. Lucy said Zehmer handed it to him. In any event there had been what appeared to be a good faith offer and a good faith acceptance, followed by the execution and apparent delivery of a written contract. Both said that Lucy put the writing in his pocket and then offered Zehmer $5 to seal the bargain. Not until then, even under the defendants’ evidence, was anything said or done to indicate that the matter was a joke. Both of the Zehmers testified that when Zehmer asked his wife to sign he whispered that it was a joke so Lucy wouldn’t hear and that it was not intended that he should hear.

The mental assent of the parties is not requisite for the formation of a contract. If the words or other acts of one of the parties have but one reasonable meaning, his undisclosed intention is immaterial except when an unreasonable meaning which he attaches to his manifestations is known to the other party. Restatement of the Law of Contracts, Vol. I, § 71, p. 74.

"The law therefore, judges of an agreement between two persons exclusively from those expressions of their intentions which are communicated between them. Clark on Contracts, 4 ed., § 3, p. 4.

An agreement or mutual assent is of course essential to a valid contract but the law imputes to a person an intention corresponding to the reasonable meaning of his words and acts. If his words and acts, judged by a reasonable standard, manifest an intention to agree, it is immaterial what may be the. real but unexpressed state of his mind. 17 C. J. S., Contracts, § 32, p. 361; 12 Am. Jur., Contracts, § 19, p. 515.

So a person cannot set up that he was merely jesting when his conduct and words would warrant a reasonable person in believing that he intended a real agreement, 17 C. J. S., Contracts, § 47, p. 390; Clark on Contracts, 4 ed., § 27, at p. 54.

Whether the writing signed by the defendants and now sought to be enforced by the complainants was the result of a serious offer by Lucy and a serious acceptance by the defendants, or was a serious offer by Lucy and an acceptance in secret jest by the defendants, in either event it constituted a binding contract of sale between the parties.

Defendants contend further, however, that even though a contract was made, equity should decline to enforce it under the circumstances. These circumstances have been set forth in detail above. They disclose some drinking by the two parties but not to an extent that they were unable to understand fully what they were doing. There was no fraud, no misrepresentation, no sharp practice and no dealing between unequal parties. The farm had been bought for $11,000 and was assessed for taxation at $6,300. The purchase price was $50,000. Zehmer admitted that it was a good price. There is in fact present in this case none of the grounds usually urged against specific performance.

Specific performance, it is true, is not a matter of absolute or arbitrary right, but is addressed to the reasonable and sound discretion of the court. First Nat. Bank v. Roanoke Oil Co., supra, 169 Va. at p. 116, 192 S. E. at p. 771. But it is likewise true that the discretion which may be exercised is not an arbitrary or capricious one, but one which is controlled by the established doctrines and settled principles of equity; and, generally, where a contract is in its nature and circumstances unobjectionable, it is as much a matter of course for courts of equity to decree a specific performance of it as it is for a court of law to give damages for a breach of it. Bond v. Crawford, 193 Va. 437, 444, 69 S. E. (2d) 470, 475.

The complainants are entitled to have specific performance of the contracts sued on. The decree appealed from is therefore reversed and the cause is remanded for the entry of a proper decree requiring the defendants to perform the contract in accordance with the prayer of the bill.

Reversed and remanded.

1.3 Kirksey v. Kirksey 1.3 Kirksey v. Kirksey

Alabama Supreme Court

8 Ala. 131

1845-01

8 Ala. 131

KIRKSEY
v.
KIRKSEY.

JANUARY TERM, 1845.

Error to the Circuit Court of Talladega.

[132] ASSUMPSIT by the defendant, against the plaintiff in error. The question is presented in this Court, upon a case agreed, which shows the following facts:

The plaintiff was the wife of defendant's brother, but had for some time been a widow, and had several children. In 1840, the plaintiff resided on public land, under a contract of lease, she had held over, and was comfortably settled, and would have attempted to secure the land she lived on. The defendant resided in Talladega county, some sixty, or seventy miles off. On the 10th October, 1840, he wrote to her the following letter:

"Dear sister Antillico—Much to my mortification, I heard, that brother Henry was dead, and one of his children. I know that your situation is one of grief, and difficulty. You had a bad chance before, but a great deal worse now. I should like to come and see you, but cannot with convenience at present. . . . I do not know whether you have a preference on the place you live on, or not. If you had, I would advise you to obtain your preference, and sell the land and quit the country, as I understand it is very unhealthy, and I know society is very bad. If you will come down and see me, I will let you have a place to raise your family, and I have more open land than I can tend; and on the account of your situation, and that of your family, I feel like I want you and the children to do well."

Within a month or two after the receipt of this letter, the plaintiff abandoned her possession, without disposing of it, and removed with her family, to the residence of the defendant, who put her in comfortable houses, and gave her land to cultivate for two years, at the end of which time he notified her to remove, and put her in a house, not comfortable, in the woods, which he afterwards required her to leave.

A verdict being found for the plaintiff, for two hundred dollars, the above facts were agreed, and if they will sustain the action, the judgment is to be affirmed, otherwise it is to be reversed.

RICE, for plaintiff in error, cited 4 Johns. 235; 10 id. 246; 6 Litt. 101; 2 Cowen, 139; 1 Caine's, 47.

W. P. CHILTON and PORTER, for defendant in error, cited 1 Kinne's Law Com. 216, 218; Story on Con. 115; Chitty on Con. [133] 29; 18 Johns. 337 ; 2 Peters, 182 ; 1 Mar. 535; 5 Cranch, 142 ; 8 Mass. 200; 6 id. 58; 4 Maun. 63; 1 Conn. 519.

ORMOND, J.—The inclination of my mind, is, that the loss and inconvenience, which the plaintiff sustained in breaking up, and moving to the defendant's, a distance of sixty miles, is a sufficient consideration to support the promise, to furnish her with a house, and land to cultivate, until she could raise her family. My brothers, however think, that the promise on the part of the defendant, was a mere gratuity, and that an action will not lie for its breach. The judgment of the Court below must therefore be, reversed, pursuant to the agreement of the parties.