Page:Harvard Law Review Volume 1.djvu/34

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in Goodwin v. Robarts,[1] “Usage, adopted by the courts, having been the origin of the whole of the so-called law merchant as to negotiable securities, what is there to prevent our acting upon the principle acted upon by our predecessors, and followed in the precedents they have left to us? Why is it to be said that a new usage which has sprung up under altered circumstances, is to be less admissible than the usages of past times? Why is the door to be now shut to the admission and adoption of usage in a matter altogether of cognate character, as though the law had been finally stereotyped and settled by some positive and peremptory enactment?”

It may be admitted that at one time, before the custom established itself as it now is, what is now a ticket was a mere receipt, or voucher. It is quite likely that a railroad ticket was originally a mere token to prove to the person in charge of the conveyance that a verbal contract of carriage had been made. In such case, of course, the ticket would not confer a right, but would merely prove a right; and equally of course it could not be transferred except by means of an assignment, good at common law, of the contract of carriage. In the same way a theatre ticket, probably, merely proved that the holder of it had “booked” his place after a primitive system like that now in use in England. Then there was no custom established giving validity to the ticket, and the ticket was not a contract. But, as soon as it became customary to issue these tickets in advance of the right they secured, and to make them good in the hands of the bearer, the custom thus created gave them a character and a power which they did not previously possess. The same process, doubtless, gave validity to a note, which, before the custom was firmly established, was simply evidence of a debt.

As a matter of fact it is evident that a ticket derives all its validity from the custom. The necessary elements of a consensual contract are wanting. The ticket-agent is an agent to sell tickets, not to make contracts for his employer.[2] There is no communication between the contracting parties; the terms are fixed by the custom, and the obligee may be one who has bought the ticket, not from the party issuing it, but from a prior holder. Such a contract as this is, in its essence, a formal, not a consensual, contract.

  1. L. R. 10 Ex. 337, 352.
  2. Duling v. R. R. Co., 7 East. Rep. 838.