NOTE

The plaintiff subsequently amended his complaint in accordance with Cardozo's suggestions. It was dismissed at Special Term. No appeal was taken because of a settlement. Shientag, The Opinions and Writings of Judge Benjamin N. Cardozo, 30 Colum. L. Rev. 597, 629 (1930).

In his Growth of the Law 110-111 (1924), a series of lectures given a short while later, Cardozo defended his position as follows:

Here was a case where advantage had been taken of the strict letter of a contract to avoid an onerous engagement. Not inconceivably a sensitive conscience would have rejected such an outlet of escape. We thought this immaterial. The court subordinated the equity of a particular situation to the overmastering need of certainty in the transactions of commercial life. The end to be attained in the development of the law of contract is the supremacy, not of some hypothetical, imaginary will, apart from external manifestations, but of will outwardly revealed in the spoken or the written word. The loss to business would in the long run be greater than the gain if judges were clothed with power to revise as well as to interpret. Perhaps, with a higher conception of business and its needs, the time will come when even revision will be permitted if it is revision in consonance with established standards of fair dealing, but the time is not yet. In this department of activity, the current axiology still places stability and certainty in the forefront of the virtues. ''The field is one where the law should hold fast to fundamental conceptions of contract and of duty, and follow them with loyalty to logical conclusions." [Imperator Realty Co. v. Tull, 228 N. Y. 447, 455.]

In a footnote, Cardozo makes the following qualification: "Of course, a different result may be reached if the omitted term is of subsidiary importance (1 Williston, Contracts §48), but ordinarily the price to be paid, if reserved for subsequent agreement, is to be ranked as fundamental." In contrast to the Court of Appeals, the Appellate Division had treated the arrangement as an enforceable option and held that the contract was no longer indefinite as to the price as soon as the buyer agreed to pay the maximum provided in the contract. For a further discussion of the case see Notes, 23 Colum. L. Rev. 783 (1923); 27 Colum. L. Rev. 708 at 711, n.11 (1927); Corbin, Mr. Justice Cardozo and the Law of Contracts, 39 Colum. L. Rev. 56, 58 (1939); 52 Harv. L. Rev. 408, 410 (1939); 48 Yale L.J. 426, 428 (1939). The Wood v. Duff-Gordon case is reprinted infra p. 451.

What does the reference to arbitrary refusal mean?

Suppose the contract had contained the following clause: "If any disputes or differences shall arise on the subject matter or construction of this agreement the same shall be submitted to arbitration." Same result? Foley v. Classique Coaches, Ltd., [1934] 2 K.B. 1 (C.A.). See Note, 44 Yale L.J. 684 (1935).