COMMEMNTS

725

Still

there

appears

no

justification

for

the

lengths to

which

the stamp

of

consti-

tutional

approval

has

been

applied

simply

because

the

defendant

hired

his

own

lawyer.

One

would

think

that

the

Sixth Amendment guaranteed

sober

counsel.

The Court

of

Appeals

for

the

Tenth

Circuit

has held

otherwise:

"The

most

that

can

be said

for

this

testimony

is

that

it

establishes

that

appellee's

counsel

drank

throughout

the

trial

and

that

he

was

under

the

influence

of

intoxicat-

ing

liquor

to

a

greater

or

less

degree

during

the

whole

trial.

But

what

of

it?

Appellee

employed

him;.

..

"4r

EXTENSION

OF

RELIEF

FOR

UNILATERAL MISTAKE

The

modem

trend

of

the

law of

mistake

in

contracts

is

toward

wider

relief

for

both

mutual

and

unilateral

error.

For most

types

of

unilateral

mistake,

rescis-

sion

is

opposed

by

adherents

of

the

rigidly

"objective"

view

of

mistake

in

con-

tracts.

Occasionally

courts

hesitate

to

give

relief

for

any

type

of

unilateral

error,

although

paying

lip

service

to

the

doctine

permitting

rescission

under

certain

conditions.

In

United

States

v.

Jones,'

the

War

Assets

Administration

made

a

special

offering

of

certain universal

gear

joints

declared

as

surplus

property

by

the

U.

S.

Maritime

Commission

and

fully

described

in

the

declarations.

The

WAA

asked

for

bids upon

the

property,

and,

receiving

none,

later

put

it

up

on

a

negotiated

sale

basis. Jones,

the

defendant,

asked

an

employee

of

the

WAA

if

there

were

jeep

motors for

sale

and

was

told

that

there

were

but

that

they

might

only

be

purchased as

part

of

an entire

odd

lot.

In

the

lot

Jones

recognized

the

universal

gear

joints

as

equipment worth perhaps

$6o,ooo.

Jones

knew

that

the

agent

of

the

government

was

not

aware

of

the

nature

or

value

of

the

equipment.

By

negotiation

he

lowered

the

asking

price

from

$250

to

$75

and

bought

at

the

latter

price. Upon learning

of

its

mistake

the

government

refused

delivery

and

brought

suit

for

rescission

of

the

contract.

The

court

admitted

that

rescission

was

proper

on

this

state

of

facts,

applying

the

test

of

whether

the

mistake

was one

as

to

the identity

of

the

subject

matter

or merely

as

to

a

collateral characteristic.'

The

metaphysical character and

in-

utility

of

this

test

have

misled

courts

into

dubious

and

occasionally

startling

41

Hudspeth

v. McDonald,

12o

F.

2d

962,

967

(C.A.

ioth,

1941).

The

district

court

had

found

that

the

defendant had

had

no

effective

assistance

of

counsel

as required

by

the

Sixth

Amendment.

McDonald

v.

Hudspeth,

41

F.

Supp.

182

(Kan.,

1941).

Compare

Wade

v.

Mayo,

334

U.S.

672 (1948),

where

the

district

court's

finding

that

the

defendant

was

handicapped

by

lack

of

counsel was

upheld

as

"not

clearly

erroneous."

The

district

court's

finding

in

the

McDonald

case

appears

to

be

clearly

"not

clearly

erroneous."

'

76F.

2d

278

(C.A.

9

th,

1949).

Adoption

of

this

test

rather than

the

modem

fundamental

assumption

test

might indicate

thecourt's

desire

to

restrict

relief

for

mistake,

for,

as

pointedout

in

5

Williston,

Contracts

§

1570A

(rev.

ed.

1937),

"under

the

modern

basic assumption

test

the

way

is

opened

for

further

develop-

ment

of

the

law

toward

greater

extension

of

relief.

..

."

The

court

cites

Frank's

concurring

opinion

in

Ricketts

v.

Pennsylvania

R.

Co.,

153

F.

2d

757

(C.A.

2d,

1946),

but

is

noncommital

as

to

his recommendation

of

extension

of

relief

for

unilateral

mistake.

176

F.

2d

278,

at

286

n.

4

(C.A.

9th,

1949).