promisee. This result would seem to show that section 1559 of the Civil Code does more than give the third person the mere power of an offeree to accept an offer. It confers a right in the beneficiary similar to the right of the promisee—namely, to sue upon the promise as one in privity with the promisor.

STATUTE OF FRAUDS: NOTE OR MEMORANDUM OF BROKER'S CONTRACT SATISFYING THE STATUTE-An oral agreement was entered into by plaintiff and defendant whereby the plaintiff was to receive a reasonable commission upon obtaining a purchaser of defendant's property. Plaintiff obtained a purchaser. Later the defendant sent a letter signed by him to the plaintiff stating, among other things, "All I can say is that you may keep this letter to show that I am indebted to you. You know me well enough to know it will be settled satisfactorily-everyone seems to think we made a fine sale." Held: the oral contract was unenforceable, as it did not meet the requirements of section 1624, subdivision 6, of the California Civil Code. The letter does not amount to a contract, enforceable by the courts, since its terms are too indefinite. Crawford v. Kenedy (December 12, 1923) 42 Cal. App. Dec. 709, 222 Pac. 644.

The decision of the court goes on the ground that the letter did not amount to a contract. The possibility of the letter being a sufficient note or memorandum to satisfy the statute of frauds is not considered.

In Kennedy v. Merickel (1908) 8 Cal. App. 378, 97 Pac. 81, the court allowed certain letters written by the owner to take the case out of the statute. And in Toomy v. Dunphy (1890) 86 Cal. 639, 25 Pac. 130, it is said that the purpose of the statute being to prevent the assertion of false claims for compensation by brokers which was possible under the old rule, it is sufficient if it be shown that the party to be charged has recognized the broker as his agent by a writing subscribed by him. This rule is affirmed by other decisions in this state (cases collected, 4 Cal. Jur. 558) and the court has not demanded that the note or memorandum symbolizing the broker's contract contain all the terms of the agreement. The essential fact which must be in writing is the fact of employment. The amount of compensation may be shown by parol or a recovery upon a quantum meruit may be had. Muncy v. Thompson (1915) 26 Cal. App. 634, 147 Pac. 178; Kennedy v. Merickel, supra. In this respect, California is more lenient than most jurisdictions. See 9 C. J. 560.

The letter signed by the defendant in the principal case cannot be taken as a sufficient note or memorandum of the oral contract. The fact that the plaintiff was employed as the agent of the defendant is not shown, and this, as previously stated, is the necessary fact to be established by a writing.

It has often been urged that the courts should allow a broker to recover for services performed upon a quantum meruit, irrespective of the question whether there is a written contract. But the California courts have refused to allow such a recovery. McCarthy v. Loupe (1882) 62 Cal. 299; Myres v. Surryhne (1885) 67 Cal. 657, 8 Pac. 523; Jamison v. Hyde (1903) 141 Cal. 109, 74 Pac. 695. In Paul v. Graham (1916) 193 Mich. 447, 451, 160 N. W. 616, the court in overruling the earlier Michigan cases said that to allow a recovery upon quantum meruit under an oral agreement would practically nullify the effect of the statute.

In Crawford v. Kennedy, supra, the further question arises whether a subsequent promise to pay the broker is enforceable because of the moral consideration resting upon the promisor by reason of the services rendered by the broker under the unenforceable oral contract. Several cases have held that the services performed by the broker are a sufficient moral consideration to support the subsequent promise to pay. Muir v. Kane (1909) 55 Wash. 131, 104 Pac. 153, 26 L. R. A. (N. S.) 519, note, 17 A. L. R. 1356, note. This result has been reached, although the statute declares the prior oral agreement to be void. Bagaeff v. Prokopik (1920) 212 Mich. 265, 180 N. W. 427, 17 A. L. R. 1292. California has followed this view. Carrington v. Smithers (1915) 26 Cal. App. 460, 147 Pac. 225.

In the principal case the court considered this rule, but took the view that the subsequent promise was too indefinite to be enforceable, since the amount of the commission was not stated in the owner's letter. The court could have allowed a recovery of the reasonable value of the services. Such a recovery would be consonant with the principles of a recovery upon quantum meruit and with substantial justice. When it is clearly shown that the owner has received services from the broker and a written promise to pay for the services is before the court, the mere fact that the amount to be paid is not stated by the parties should not compel a technical evasion of justice.

Book Reviews

INTERNATIONAL LAW-By Charles G. Fenwick. Century Political Science Series, 1924. pp. xxxvii, 641.

This text is well suited for university study and for general reading of the principles of international law. It is throughout a new, clear, factual, finely proportioned and interesting statement of the law, the work of a scholar of full experience in research and in writing.

Before finishing his manuscript, Professor Fenwick requested full counsel of some of his colleagues in international law in American universities, also of the editor of the American Journal of International Law. Thus his work incorporates the best instructional and commentary qualities. For knowledge of international law in practice as affecting individual and company rights and obligations the well prepared lawyer will require to go much further, but he may well begin with Professor Fenwick's work. The list of books referred to, and especially the select references, segregated according to the chapters and placed at the end of the work, will prove very useful. Quality, and not number, controlled this selection. There are only two appendices, and they are the texts of the Covenant of the League of Nations and the Protocol and Statute of the Permanent Court of International Justice. The book is a remarkably fine example of the art of publication.

Frank E. Hinckley.

THE ART OF CROSS-EXAMINATION. By Francis L. Wellman. The Macmillan Company, New York. 1923. pp. xiv, 371.

The

The third edition of Mr. Wellman's book has the merits of the earlier editions. For the practicing lawyer, for the student of law, for the general public, it contains a store of entertainment. author's style is lucid and charming; examples of cross-examination by past and present leaders of the bar are well chosen-they fascinate the reader with their display of wit and skill.

In the preface to the first edition the author expresses the hope that in addition to affording something of interest or entertainment to the public, the book may afford something of instruction to the younger members of the profession. Is this latter hope realized?

The task is a difficult one. Mr. Wellman inserts as a foreword this encomium pronounced upon cross-examination by Cox: "Crossexamination, the rarest, the most useful, and the most difficult to be acquired of all the accomplishments of the advocate. . . . It has always been deemed the surest test of truth and a better security than the oath." A glance at the table of contents of Part I (Part II comprises "Some Famous Examples of Cross-Examination") is encouraging to the student. The chapter heads are: I. Introductory, II. The Manner of Cross-Examination, III. The Manner of CrossExamination, IV. Cross-Examination of the Perjured Witness, V. Cross-Examination of Experts, VI. The Sequence of Cross-Examination, VII. Silent Cross-Examination, VIII. Cross-Examination to the "Fallacies of Testimony," IX. Cross-Examination to Probabilities-Personality of the Examiner, etc., X. Cross-Examination to Credit and its Abuses, XI. Some Famous Cross Examiners and Their Methods. Here are the things that the young practitioner wants to know how to do here are examples of how they have been done successfully.

But is there one right way of doing any one of these things? The examples given show that methods of cross-examination are as various as are the men who employ them. Time and again the student is made aware that the personality of the cross-examiner determines his choice of method. Success-winning the case-is the goal. Sir Charles Russell achieved it largely by bullying the witness; Rufus Choate's "whole style of address to the occupants of the witness stand was soothing, kind and reassuring." (p. 180).

There is much truth in Choate's motto: "Never cross-examine any more than is absolutely necessary. If you don't break your witness, he breaks you." (p. 180). Mr. Wellman stresses this in his chapter on "Silent Cross-Examination"; it is the best advice to the young practitioner. It has been well said that the times for crossexamination are two when you have "something on" the witness, and when your case is hopeless anyway. In the latter situation the personality of the cross-examiner counts for much-his resourcefulness, his quickwittedness, his tact; in the former, personality is not so important—almost any method will suffice.

To revert to Cox's encomium of cross-examination, is it true that it is "the surest test of truth"? How much of the fascination which these examples of clever cross-examination undoubtedly have for the reader is due to the fact that our methods of procedure make of our trials a species of game-a clashing of the wits of opposing counsel? There is danger that the clever cross-examiner-the man of dominating or the man of ingratiating personality-may become so imbued with the spirit of the game and with the concomitant desire to win that he will cease to seek the truth of the matter. Some of the examples given approach close to this evil.

For all of this, this book is well worth reading. Cross-examination is with us and the young attorney should familiarize himself with the art as it is practiced. Mr. Wellman hangs up many danger signs which it is well to heed. Would that we all could enjoy the intense pleasure and exhilaration which the great trial lawyer derives from his art. Douglas B. Maggs.

THE TRANSPORTATION ACT OF 1920. By Rogers MacVeagh. Henry Holt & Co., New York, 1923. pp. xxvii, 968.

Not so many years since it might fairly be said that the measure of a lawyer's success was not so much the amount of business which he did, or the quantity of the world's goods which he accumulated for himself or his clients, as it was the reputation which he established as a legal scholar and the contribution which he made toward the enrichment of the law. Today it seems that many of us—most of us have lost the ambition to be known for such attainments as these. We are at least as practical as plumbers. We do not aspire to be judges, because we can make more money in the practice of the law. We do not write books for the same reason, or because we don't see any value in research or theoretical discussion. We are afraid that any such digressions will delay or make impossible material success. But we congratulate ourselves and our profession when one of our number reverts to earlier standards, and sacrifices his own personal opportunities for our service.

Occasion for such congratulation comes with the recent publication by Rogers MacVeagh, of the Portland, Oregon bar, of a work embodying the sources, history, and text of the "Transportation Act of 1920." Mr. MacVeagh, throughout many years of practice, has given much of his time and attention to a study of the legal aspects of the country's transportation problems, and the experience which he gained in this work has enabled him to compile with accuracy and completeness the records which in the main comprise the book.

The author's undertaking was inspired by his opinion that the signing by the President on February 28, 1920, of the Transportation Act and the subsequent adoption of the Merchant Marine Act of 1920, marked a turning point in the history of the United States. Speaking of this legislation, he says, "Emasculation or repeal, by decision or legislation, is of course always possible; but, short of

modification by such means, history records no parallel delegation of power, either in nature or in extent.

"Its effects cannot yet be predicted; but it is clear that thereby the United States, one of the greatest of industrial and commercial nations, has abandoned the theory of private ownership and operation in matters involving transportation and communication."

It might be expected that one who advanced a proposition as revolutionary as this would hasten to support it with argument, but Mr. MacVeagh has been content to let his statement stand alone, and with a courage and courtesy perhaps unusual has offered to the many who will find themselves in disagreement with his thesis full access to the sources of information upon which depends its truth or error. Candor compels the writer of this comment to admit that more or less unwillingly he has been persuaded that the proposition is essentially sound.

In his treatment of the material which he has gathered Mr. MacVeagh makes no effort to offer interpretations of new matter in the Act or to cover the field of railroad regulation under the law as it stood prior to February 28, 1920. To use his own words in explanation of this policy, "Until the Supreme Court of the United States has spoken, it is idle to dogmatize; and Federal regulation of interstate commerce has been amply and ably treated elsewhere." "In brief," he adds, "this collection is neither a legal text-book, nor a treatise for students of traffic questions, nor an essay, nor an argument pro or con, but simply a 'source-book' where anyone,-lawyer, legislator, traffic man, shipper, newspaper man, economist, manufacturer, professor or ultimate consuming citizen, interested in what vitally affects his present and (still more) his future-may, it is hoped, find the materials he wants in accurate and convenient form."

The book is so arranged as to make readily available the information which it contains, and is excellently indexed. It includes not only the text of the "Transportation Act of 1920" and notes upon its history and sources, but also extensive extracts from reports and debates in Congress; ruling, interpretations and decisions of the Interstate Commerce Commission; opinions of the United States Supreme Court; prescribed forms and complete texts of all related acts, as amended to and including August 18, 1922.

All in all, the book represents a difficult piece of work well done, and merits a prominent place in the legal and economic bibliographies of the day.

John U. Calkins, Ir.