ion on any political question is received with great respect by his neighbors, and friends and clients. This condition carries with it a considerable responsibility, for it demands of every member of the bar great care lest he be a blind leader of the blind.

The men who seek and accept his opinions for their guidance believe that he has investigated and deliberated each public question; and fairness to these seekers for help and to himself demands that he thus qualify himself to play the oracle.

There are plenty of tongues that preach before they think and the man with the cool head must counteract the effect upon public opinion of all aimless, unthought and unthinkable twaddle.

In speech, newspaper interview, lecture and magazine article, in ordinary conversation and in general discussion of public questions let your deliberately formed opinions do battle with the crude, glib drivel of the man who has no time or inclination for careful thought.

Do what you can, too, to excite the interest of others in public questions and to incite them to take upon their shoulders at least their own share of the duty of the electorate.

There is but one fault in the system of government formulated for us by the lofty souls who were the recognized leaders at the end of the sixteenth century. Having paid the price of liberty they never counted on human nature being so careless of the great inheritance. They assume that each man would eagerly perform the full duty of citizenship by casting an honest and informed vote at the polls on election day and guarding his dearlybought rights and liberties from encroachment on every day.

The fact is clearly apparent to us now, however, that as Mr. Bryce has said: "The greatest peril to self-government is at all times to be found in the want of zeal and energy among the citizens. This is a peril which exists in democracies as well as despotisms. Submission is less frequently due to overwhelming force than to the apathy of those who find acquiescence easier than resistance."

Every man you can bring to a knowledge of his duty as a citizen and to an understanding exercise of his rights, privileges, opinion and vote, is another recruit enlisted in the crew of the Ship of State, U. S. Constitution.

The good old ship is sailing upon a happy and prosperous voyage, mates. The fair wind of freedom bears the shapely craft

swiftly on her way. Every seaman aboard ship fills his lungs with the same sturdy air as he bends his muscles to his will, Freedom's flag flutters in the breeze, and the ship sails on in calm and storm, by day and night, freighted with her millions of good men and true, and bearing them ever onward in safety. Countless millions line the shore stretching their sight to mark her course and other countless millions eagerly inquire, "The good ship, 'What of her'?" For, in the course she sails, our Ship of State, smaller craft and meaner dare to venture, in the hope that they too may ride the sea she breasts so nobly, and be wafted onward in her wake by the same fair wind. And God grant that each may weather the storms and sail on in prosperity and peace. Alton B. Parker.

New York City.

OPTION CONTRACTS

There are various kinds of options; in all of them the optionholder has a choice, a power of electing between alternatives.' Usually this choice or power of electing is possessed by only one party, and for that reason the transaction is often referred to as unilateral; but it is possible for both parties to a transaction to have an option. Thus, in the case of any subsisting, unaccepted offer, not yet become a contract, an option is possessed by both parties; the offeree may accept or reject at his option; the offerer has the option of withdrawing his offer before acceptance. Such two-sided options as this will be touched upon hereafter only to distinguish them. Their full discussion would cover the formation of almost all contracts. This article will be almost wholly restricted to a discussion of so-called "binding options", or option contracts giving to one the legal right of choice, but no such right to the other.

It might be said, also, that any party to a contract has the option of performing his contract or of breaking it; but this is not a lawful option, and both law and equity will do what they can, consistently with justice, to prevent and punish his making an illegal choice. This paper will not deal with the power of doing illegal things.

Again, there are certain option contracts that are made illegal by statutes the object of which is the prevention of gambling in stocks and commodities.2 These statutes do not make the exercise of his power of choice by an option-holder illegal; they forbid the making of the agreement by which one is given such a power of choice. These statutes have raised some difficult questions and have caused the courts to draw fine distinctions. These questions as to legality must also be excluded here.

1 The word "option" is derived from "opto", to choose. The Century Dictionary defines it as, "(1) Choice, wish, preference, election; (2) the power or liberty of choosing, the opportunity of electing, or selecting, an alternative, or one of several lines of conduct."

2 See Century Dictionary defining "option": "(4) On stock, or other exchanges, a privilege, secured by the payment of a certain premium, or consideration, either (1) of calling for the delivery, or (2) of making delivery, of a certain specified amount of some particular stock or produce, at a specified price, and within specified limits of time. The first kind of option is usually designated a call, and the second a put; but both are sometimes called futures."

There remain for discussion, then, lawful transactions between two parties where it is their intention that one of them, but not the other, shall have a lawful power of electing between alternatives affecting their legal relations with each other. Such options are of various sorts. An option may be granted in a separate and independent agreement, as where A pays B a sum of money for an option to buy property at a fixed price within a certain time. The property involved may be land, chattels, or any commodity. On the other hand, the grant of an option may be merely one term or provision in a larger agreement, as where a lessee is given the option to purchase3 or to receive an extension of the lease, or where a partnership agreement provides that the survivor shall have the option of buying the interest of the other in case of death," or where a contract of sale gives also an option on other property or gives the vendor the option to repurchase, or where a lease or a contract of employment gives one party the option of terminating it on certain terms, or where a note holder has the option of converting it into stock."

7

The intention of giving such an option to one of the parties may be expressed in various ways. There is no set and invariable form. It may be agreed that A shall have "the option to buy", or "the first refusal", or the "right of pre-emption". The

3 McCormick v. Stephany, 57 N. J. Eq. 257; Dowling v. Betjemann, 2 Johns. & Hem. 544.

4 Hersey v. Giblett, 18 Beav. 174; Moss v. Barton, L. R. 1 Eq. Cas. 474; Nicholson v. Smith, 22 Chan. D. 640,

567.

Dibbins v. Dibbins, (1896) 2 Ch. 348; Homfray v. Fothergill, 1 Eq.

• Barrel v. Sabine, 1 Vernon 268; Woodruff v. Woodruff, 44 N. J. Eq. 349.

Hanau v. Ehrlich (1912), A. C. 39 (H. of L.); Rust v. Conrad, 47 Mich. 449 (lease); Singer S. M. Co. v. Union Co., Holmes 253; Pittsburg Co. v. Bailey, 76 Kans. 42.

8 Campbell v. London & B. R. Co., 5 Hare 519, 529. There is also another kind of option, called a contract in the alternative. Here the option is not between paying and not paying, or between doing and not doing; it is between doing one thing and doing another. See Brantly on Cont., Sec. 156-160. Another sort of option contract is one whereby the owner of goods agrees to sell the same at auction to the highest bidder without reserve. Warlow v. Harrison, 1 E. & E. 316.

"The terms of the option must not be too indefinite, or the contract cannot be enforced. Fogg v. Price, 145 Mass. 513 ("if the premises are for sale at any time, the lessee shall have the refusal of them." Held too indefinite to enforce.); Potts v. Whitehead, 20 N. J. Eq. 55; 23 N. J. Eq. 512

agreement may be under seal or not sealed, with consideration or without it, unilateral or bilateral. It may be a conditional contract to convey, or a contract to keep an offer open. The form in which such an agreement is expressed is an important matter. Courts frequently overlook this fact and lay down general rules as if they were applicable to all alike.

OPTION AGREEMENT WITHOUT CONSIDERATION.

Let us consider first an option agreement not under seal and without consideration. Such an agreement is not binding on either party and amounts to nothing more than an offer, revocable at will by the offeror.10 Such an offer may be accepted before withdrawal, however, and then becomes a contract,though not an option contract." In Cooke v. Oxley,12 the defendant agreed to sell certain hogsheads of tobacco to the plaintiff at a price named, provided the latter would give notice of acceptance by four o'clock. The plaintiff gave such notice before four o'clock, but previously thereto the defendant had sold the tobacco to another. The defendant had a right to do this, for prior to acceptance there was no consideration for this agreement. The court failed to consider the fact that there had been no formal revocation of the offer, evidently thinking that a mere change of mind by the offeror would prevent a contract from arising on acceptance. If this was sound law then, it is so no longer.

In Great Northern R. Co. v. Witham,13 the defendant agreed that the plaintiff might have, for one year, the option of buying at certain rates such quantities of specified goods as the plaintiff might choose to order. The plaintiff accepted this in writing. Such an acceptance made no contract, because the plaintiff's optional promise to order goods if it chose was no consideration. (enforcement refused because no time was fixed during which the credit to be given was to extend); Zimmerman v. Rhoads, 226 Pa. 174. An option very indefinite in character was enforced in Manchester Ship Canal Co. v. Manchester R. Co. (1901), 2 Ch. 37. In Hayes v. O'Brien, 149 Ill. 403, an option to buy "at the same price per acre, as any other person or purchaser might have offered" was enforced. See also Homfray v. Fothergill, 1 Eq. 567.

10 Cooke v. Oxley, 3 T. R. 653; Burnet v. Bisco, 4 Johns. 235; Reese Co. v. House, (Cal.) 124 Pac. 442.

11 B. & M. R. Co. v. Bartlett, 3 Cush. 224; Nyulasy v. Rowan, 17 Vict.

L. R. 663; Ide v. Leiser, 10 Mont. 5.

123 T. R. 653.

13 L. R. 9 C. P. 16.