BOOK REVIEWS

THE LAW OF ARCHITECTURE AND BUILDING: A CONSIDERATION OF THE MUTUAL RIGHTS, DUTIES AND LIABILITIES OF ARCHITECT, OWNER AND CONTRACTOR, WITH APPENDICES AND FORMS. By Clinton H. Blake, Jr. New York: The William T. Comstock Co. pp. xxxviii, 314.

The subtitle of this work better defines its purpose, since it treats of a relatively narrow field, as the respective rights, one against another, of the architect, contractor, and owner.

The reviewer's function is conceived, first, to enumerate informally the principal features, and then to comment fairly upon its avowed purpose, the methods of accomplishment or its failure to do so.

The book is divided into three principal parts:

I. The status of the architect toward the owner.
II. Relations of owner with contractor.

III. Liens.

In Part I, the principal chapters are: the "Architect as an Agent," which is well handled; the "Compensation of the Architect," certainly a matter of vital interest to him and carefully covered; and the "Duties and Liabilities of the Architect." These are the most prominent chapters of the book, and receive from twenty to twenty-five pages each.

As between the owner and contractor, the general relation receives sixteen pages, with chief attention given to builder's compensation, architect's certificate, and damages. These seem reasonably well covered, but the requisites of a construction contract, seemingly a natural foundation to the whole book, receives but four pages. Another chapter, however, of seven articles, gives eleven pages to the terms and operation of the building contract. Here, the principle of arbitration, extras, suspension, liquidated damages, and right of owner to complete are the topics treated, apparently well in the main. The part devoted to liens comprises forty pages, and has greater thoroughness than any other single topic, covering in turn liens of architect, of contractor, and sub-contractor. The text proper closes with five pages of meaty advice to the architect upon legal difficulties, summarizing to a certain extent the foregoing topics of the book.

Nearly a hundred pages are then given to various appendices. The full opinions in certain cases are cited, and occupy thirty pages. The merit of this is not obvious, since the lawyer could readily read the original reports - while the layman would be about equally at sea after reading them as before. Being only four in number, the variety of points covered is very limited.

Thirty-four pages are given to Standard Documents, referring to the uniform or standard form of agreement and setting out in full the general conditions of an architectural contract as adopted by the American Institute of Architects. The reviewer feels that this is an especially valuable piece of material, but is not so sure that it properly belongs in a text purporting to declare the law covering the architect and builder. The same remarks apply to the Schedule of Minimum Charges, the next appendix. Twenty pages then set out various Legal Forms commonly useful in building operations. There is also a well-arranged index.

The success of writing is to be measured by its purpose. Here the purpose is said to be (1) to help architects keep out of legal troubles, and (2) to make a compilation of architectural law useful to attorneys. From the special introduction by an architect, the aim first stated seems to be the leading one. The author must then state technical matters in a non-technical way for the layman. Failing to write intelligently for him, then the layman must still go

to the attorney the book has failed to serve him. He should have gone to the attorney in the first place. From the viewpoint of several years' experience in trying to teach certain elementary legal principles to engineering students both correctly and promptly an incident of which was the production of a textbook for that purpose the reviewer doubts whether the author has as fully accomplished his first purpose as he doubtless has the second.

His book seems written by one trained in the "case system" of learning law. This method studies at first hand frequently elaborate and complex cases, often bringing in many extraneous facts and legal factors. After a strong diet of close cases, which have in fact taxed the minds of eminent jurists (and are chosen for that reason), the student is supposed to formulate the principles illustrated. In this strenuous task most students are hopeless failures — hunters afield not knowing what game they are in quest of.

Those not intellectual giants need first a clear-cut statement of legal principles or rules in the abstract, with some argument for the reason and necessity for such principles. These later are clothed by the narration of actual events, such as befell in a real case. This is the "textbook system "—an easier path to the heights of legal knowledge.

These facts probably explain why much material in this book is not in a form more readily comprehensible to the lay reader, such as an engineer or architect. The author rather commonly states his principle last, if at all, and then frequently not comprehensively. He gives numerous details of decided cases, but does not string them together upon a cord of reasons, narrative, or connected criticism, which, however, the layman must chiefly rely upon if he is to grasp them clearly and in proper perspective. Nor does he commonly explain technical legal phrases when used.

True, his legal friends will not need any of this, but the architects are probably not so fortunate. They will see something, but "as through a glass, darkly."

Similarly the style evidences another fact worthy of at least passing

comment.

Lawyers perforce spend countless hours poring over the language of perhaps poorly educated and frequently centuries-dead jurists. If time was money, great judges gave no evidence of it in their ponderous and obscurely written opinions. Unfortunately for us, many modern lawyers succumb to this pernicious influence, tending toward involved and obscure expression. The lawyer becomes immune to this style, yet indeed his readers must suffer later. So here, sentences close to two hundred words in length are not uncommon, but they do not assist the layman to follow the thought-in fact they frequently obscure it, and the ideas are easily lost sight of before the end is reached.

In conclusion: The author has made a praiseworthy effort. It might have been more fruitful if in harmony with the criticisms made. On the whole, attorneys will probably find it of greater usefulness than practicing architects. JAMES IRWIN TUCKER.

THE PRINCIPLES OF EQUITY. By Edmund H. T. Snell. London: Stevens and Haynes Law Publishers. 1915. pp. xli, 579.

It is unfortunate that this admirable treatise on equity jurisprudence, now in its seventeenth edition, is not better known to American students and practitioners of law. Although strictly an English textbook in that only English cases are cited, the cases are well selected and carefully confined to those decisions in which the great principles of equity jurisprudence have been developed and enlarged. The expression is clear and direct, showing the accuracy of

thought of a true scholar, very different from the haphazard style which characterizes so many of our American text-writers. Confined to less than 600 pages, its breadth of scope is made possible only by its conciseness of expression. There is included, as well as the more strictly equitable field of trusts, specific performance, injunction and accident and mistake, such subjects as the administration of assets, conversion and reconversion, election, the rights of married women, infants and lunatics, mortgages, suretyship and partnership. Much of the discussion turns upon interests in real property, as, for instance, the theory of trusts is based largely upon the law underlying marriage settlements. In fact, the book contains much of interest to the student of property law. The principles of equitable conversion and reconversion are well stated. Conversion may occur only in four instances: (1) where realty becomes partnership property, (2) under an order of court, (3) under a trust with a direction to sell or purchase, and (4) under a contract to sell or purchase. In the last instance, only if specific performance is possible will there be a conversion. "A contract does not operate to convert the property unless it is one of which specific performance would be ordered." The author accepts the doctrine of Townley v. Bedwell, 14 Ves. 590, however, as law, but rightly considers it anomalous, for it is said: "If, however, the option is not exercised until after the lessor's death, on principle the lessor's interest ought to be treated as realty, for there was, at the moment of his death, no contract of which specific performance would be ordered." An interesting distinction is taken in the case where realty is given by will to trustees upon trust to sell and divide the proceeds between A. and B. equally, and A. dies in the testator's lifetime and there is a lapse of the gift to him, but B. outlives the testator; and where the gift is by deed instead of by will. Now if there is a total failure of the objects for which conversion was directed, no conversion takes place, since there is "no one who can insist on its character being altered." But the rule apparently does not work the other way, certainly as regards gifts by will, for in the above case, although B. could insist upon the conversion, yet it was decided in Ackroyd v. Smithson, 1 Bro. C. C. 503, that the property goes to the testator's heir at law and not to his next of kin. This principle is based upon the apparent intent of the testator, for if A. could not take there was no intention that the proceeds go to the testator's next of kin. Yet if "the testator's heir dies before receiving his share of the proceeds of sale, his share will be treated as part of his personalty, whether the trustees of the will have sold the realty in his lifetime or not, for the failure of the objects of conversion being partial only, the trustees are under an enforceable duty to sell, and the property is therefore converted into personalty, and the persons claiming the heir's realty have no equity to reconvert it, being merely volunteers." Where the gift is by deed, however, with a direction to sell and convey, and there is a partial failure, the property will revert to the settlor in its converted form. The test would seem to be, therefore, whether there is anyone who can demand that the character of the property be altered.

It is interesting to note that the author considers the twelve maxims of equity are based substantially on two: "Equity will not suffer a wrong to be without a remedy" and "Equity acts in personam." He hints at a common confusion of thought, by warning us that this last maxim should not be construed as determinative of the nature of an equitable right, for "this highly important maxim is descriptive of the procedure of equity" only. It is an important distinction to keep in mind when considering such problems as whether the right of a cestui qui trust against the trustee is a right in rem or in personam. Unquestionably the cestui must proceed against the person of the trustee, but the more recent and sounder view would seem to be that the cestui's interest is an equitable interest in the trust res itself. In the discussion of the maxim "Where the equities are equal, the first in time shall prevail," the English doc

trine of prior equities is followed to its logical conclusion. Hence, on the sale of an equitable interest subject to a mortgage, the equitable mortgagee is said to prevail over the transferee of the res for value without notice. The reason given is that in equity the doctrine of tortious conveyances does not apply, hence the mortgagor can convey no more than he has. Unfortunately the right of a beneficiary under an equitable trust as against the transferee for value without notice is not discussed. It would seem that on the same reasoning as in the case of an equitable mortgagee, the beneficiary should prevail if his interest be considered a property right in the trust res itself, although it might well be argued that equity should follow the law in protecting a purchaser for value without notice.

On the whole, the book is worth a careful study. Well indexed, well written, with a good selection of cases and statutes, it gives the reader a comprehensive idea of those principles of law underlying our equity jurisprudence.

M. B. ANGELL.

FEDERAL TRADE COMMISSION MANUAL. By Richard S. Harvey and Ernest W. Bradford. Washington: John Byrne & Co. 1916. pp. xxii, 457FEDERAL TRADE COMMISSION, ITS NATURE AND POWERS. By John M. Harlan and Lewis W. McCandless. Chicago, Callaghan & Co. 1916. pp. vi, 183. The constitutional status of the Federal Trade Commission, the scope and limits of its powers and duties, and the meaning of the new anti-trust legislation which it is called upon to administer, have as yet received almost no judicial definition. A few cases in which the Clayton Act was involved have been reported. But the juristic development of the administrative and substantive provisions of the legislation of 1914, a development corresponding to that which followed the establishment of the Interstate Commerce Commission, lies in the future. For the present, lawyers must look to the text of the Federal Trade Commission Act and Clayton Act, and to the large background of decisions under the Sherman Law, the Interstate Commerce Act, and, at common law for an understanding of the scope of the new legislation.

For this purpose the book of Messrs. Harvey and Bradford is a valuable aid. To a thorough analysis of the structure and details of the statutes is added a comprehensive review of the common law of unfair trade and monopoly, a historical sketch of the Sherman Law and its judicial interpretation, and an examination of the specific prohibitions contained in the Clayton Act, in the light of existing decisions. The relation of the statutes to patent and copyright law, to the law of trade marks and unfair competition, and to the struggle of labor and capital is adequately treated. Since industrial legislation is no longer framed abstractly in a legal vacuum, the authors have wisely extended their discussion beyond the strictly legal phases to the economic and social background on which the statutes are projected. A series of appendices contains in convenient form texts of the Trade Commission and Anti-trust acts, the Commission's Rules of Practice, the report of the Senate Committee on Interstate Commerce, on anti-trust legislation, and extracts from the ensuing debates in Congress.

Messrs. Harlan and McCandless have covered a narrower field, but in a no less useful manner. The book is designed as a guide to the general structure and theory of the statutes, rather than as a detailed reference manual. The underlying thesis of the authors is twofold: (1) The substantive provisions of the Clayton and Trade Commission Act do no more than re-enact the Sherman Law, as interpreted by the courts. The "rule of reason" is embodied in the Clayton Act by provisos extending the specific prohibitions only to transactions which "substantially lessen competition" or "tend to create a mo

nopoly." It may be implied in the general purpose of the Trade Commission Law, prohibiting "unfair methods of competition," for the law was designed to strike at practices which were injurious to the public, and not to merely private wrongs. This is indicated by the provision that the Commission shall institute proceedings only where it is "in the interests of the public." (2) The administrative provisions of the laws are not designed to make the Commission a judicial tribunal, but to give it merely administrative functions; and the provision authorizing review of its proceedings by the Circuit Court of Appeals does not devolve on that body appellate jurisdiction, but gives it original jurisdiction over the controversy, the Commission being the complainant. These two theses are clearly developed and forcibly maintained.

G. C. HENDERSON.

CASES ON THE LAW OF PUBLIC SERVICE. BY C. K. Burdick. Boston: Little, Brown & Company. 1916. pp. xiii, 544.

The present-day law school case book marks a reversion to type. Its original prototype was compiled solely as a shop tool for the law school. Then followed a generation of case books approximating treatises in their scope and elaborateness of detail. Such works as Gray's Cases on Property, Ames's Cases on Bills and Notes, and Thayer's Cases on Evidence are much more than mere skeletons upon which to hang law courses. In the present generation, however, the case book has again become the mere superstructure for the course. As a consequence, it has become the fashion for every law instructor who has reached the age of pedagogical puberty to compile his own case book adapted to the purposes of his own course. The result is regrettable although perhaps inevitable. For the practitioner, who in these busy days must have his law predigested, the case book is useless. To the student the substantial, thoroughgoing volumes of Gray and Ames represent too great a capital outlay too soon "scrapped." Moreover, the idea that case books must be kept abreast of the rising tide of judicial decisions and the shifting sands of the curriculum has also tended to destroy the incentive to more permanent works. Yet, strangely enough, Ames's Cases on Bills and Notes, Ames's Cases on Partnership, and Thayer's Cases on Evidence have seen service in the Harvard Law School for thirty-five, twenty-nine, and sixteen years respectively without substantial revision, and their age has not seriously impaired their usefulness. While the old saw about leading horses to water still holds good, it is also true that many a man will eat what is put before him when he would never think of asking for it. May it not be a false economy to cut the cloth to fit the course too closely? Might it not be worth while, by furnishing him with a case book which will serve as a full historical guide to its particular field of law rather than as mere analytical outline, to tempt the student to stray from the narrow alleys of the classroom into the more secluded and less traveled lanes of the law? There are those who still believe it is worth while: witness Wigmore's Cases on Torts.

Doubtless the law of public utilities, or public service, as Professor Burdick calls it, is in need of less historical elaboration than some other branches of the law, but one cannot conceive of its development being adequately traced in a selection of cases compressed within less than five hundred pages. An inspection of the index of Professor Burdick's new case book, which, by the way, like most case-book indexes, is entirely inadequate, reveals the secret. The liability of the public utility for injuries to the person or property of its patron in the course of the undertaking is entirely omitted, probably because the subject is regarded as adequately treated in the course on Torts. This stamps the book as of the present generation of case books (better, perhaps, course