Balkinization: Did Race Distort the rule of Taft v. Hyatt?

Did Race Distort the rule of Taft v. Hyatt?

Guest Blogger

For the Balkinization symposium on Dylan C. Penningroth, Before the Movement: The Hidden History of Black Civil Rights (Liveright, 2023).

Ian Ayres

The achievements of Dylan Penningroth’s recent book, Before the Movement: The Hidden History of Black Civil Rights, together with his article Race in Contract Law, are manifold. These materials powerfully excavate not only how African-Americans were the objects and victims of private law, but also how they historically have used and actively contributed to the development of common law rules. In this symposium piece, I suggest that race may have distorted the path of the common law of contract in the particular instance of Taft v. Hyatt.

The opinion in the case played an important role in developing the common-law rule that an offeree can only accept a communicated offer. The ruling grew out of allegations that led to the 1917 conviction of the physician, Robert E. Smith, for murdering Agnes Smith, the wife of Dr. Asa Smith, a prominent physician, in Parsons, Kansas, by pouring carbolic acid into her mouth. At his criminal trial, Robert Smith was convicted and sentenced to life imprisonment largely on the strength of Mrs. Smith’s “dying statement,” a large portion of which was read to the jury as an exception to the general rule against hearsay:

I know that I am about to die and this is my statement in the fear of death. Bob Smith came in at about 11 o’clock A. M., May 16th and says, ‘Why don’t you treat me better—why have you got it in for me?’ I picked up some scissors, off the table, and he started for me and he took them away from me and seized me by the throat and choked me and threw me on the floor. He choked me and poured something in my mouth and face and ran out, and I got up and got to Mrs. Neighbors’ and lost consciousness.

Stephen Carter in his recent Harvard DuBois Lectures has corrected the scholarly record concerning the race of the three principals:

Taft has been misunderstood – and, pedagogically, it has been deracialized. An influential article by my law school classmate Michael Hoeflich states categorically that both alleged perpetrator and victim were black. The same claim is found in later writing on the case, resting on Professor Hoeflich’s research. Professor Hoeflich made a number of important discoveries about Taft v. Hyatt, but on this particular point he is mistaken.

We now know that the dead woman, Agnes Smith, who was 24 at the time of her death, was white. She was the second wife of Dr. Asa Smith, who was also white and substantially older. Professor Carter explains that only the defendant was African-American:

The suspect is Dr. Robert Smith, known as “Bob” Smith. The reason the suspect and the widower have the same last name is that the widower’s family formerly owned the suspect’s parents as slaves. After the Civil War and Emancipation, the parents continued as paid servants in the Smith home, and took the family’s last name. Dr. Asa Smith saw to the education of Bob Smith, and paid for his medical training . . .

See also Fort Scott Tribune and The Fort Scott Monitor, p. 11 (May 22, 1917).

There is some question whether Robert Smith was in fact guilty. At trial, the defense presented evidence suggesting that Agnes Smith was mentally ill and committed suicide by drinking the carbolic acid. Initial newspaper reports of Agnes’s hospitalization assumed that she had attempted to take her own life. Only after her dying declaration the next day identifying Robert Smith, did the dominant narrative change from suicide to homicide. It is unclear whether Robert used carbolic acid in part to make Agnes’s death look like a suicide or whether she falsely accused Robert to avoid admitting that she had attempted to kill herself. An African-American newspaper commenting on these events in terms evocative of the central courtroom scene in To Kill a Mockingbird, observed:

[A] man would have to possess at least three good hands and arms to perpetrate the kind of crime charged. No man with two hands only could hold a woman, struggling against certain death and pour acid down her throat . . .

The Topeka Plaindealer, p. 2 (Jun 8, 1917). One newspaper characterization of the events included a suggestion of sexual assault:

From evidence given at the trial it was learned that [Robert Smith] went to the house where he gained admittance after asking Mrs. Smith for a mouse trap. When she turned to get it, he grabbed her and attempted a criminal assault. Failing in his purpose, he took a bottle of carbolic acid from his pocket and forced it down her throat.

The Oswego Independent, p. 3 (May 17, 1918).

These lurid allegations combined with the racial identities of the Agnes and Robert Smith created a substantial risk of lynching. Stephen Carter pointed out that a local newspaper at the time stated:

in the most casual way, “He would probably be lynched if caught.” We are talking, after all, about 1917 in Kansas. . . . Kansas had a long, bloody history of lynching white and colored men alike. Already in the young century, two Negroes were known to have been lunched.

See Fort Scott Tribune and Fort Scott Monitor, p. 11 (May 22, 1917) & Harriet C. Frazier, Lynchings in Kansas, 1850s-1932 (2015). Indeed, another newspaper reported that Smith “narrowly escaped death” when a mob formed in Parsons with the “avowed intention of hanging” a different African-American prisoner, John Winfield:

Had the mob gone to Oswego and found Smith there, he would have been hanged with Winfield.

Last Chapter in Smith Case, The Chanute Daily Tribune, p. 5 (Jun 17, 1918).

With this searing background, we can turn to associated private law dispute in Taft v. Hyatt. The contract rule for which that case became known grew out of multiple parties claiming a reward of $750 offered by the Anti-Horse Thief Association for the arrest or information leading to the arrest of Robert Smith. [The plaintiff in the case, B.L. Taft was the president of the Association, of which Asa Smith was a member. Hyatt was one of the reward claimants.] One of the claims was made by “members of the lodge of colored Masons to which the accused belonged.” The court found that:

Smith expressed to them his fears of mob violence, and it was agreed that he would give himself into their custody, and they agreed to protect him; and that none of these [Colored Mason] defendants had heard of the offer of reward at the time they called Murray, the chief of police, to their assistance.

The court ultimately rejected the Masons’ claim for the reward. Michael H. Hoeflich, in reviewing the appellate record, has pointed out that only the members of the Colored Masons were asked why they wanted the reward and their response suggested that the group sought the money to pay for Smith’s defense. See Michael Hoeflich, On Reading Cases: The Law Student in Wonderland, 42 Syracuse Law Review 1163 (1991). The disparate questioning of the white and black claimants led both Randy Gordon and Hoeflich to ask whether race played a role in the court’s reward decision:

Because these questions have no relevance to the issue of knowledge of the reward, Hoeflich is compelled to ask why they were asked. Could it have something to do with the setting and circumstances—i.e., a black man accused of murder in small Kansas town that was already on the verge of forming a lynch mob? Did the townsfolk want to prevent Smith from mounting an adequate defense through the use of the reward money? Could this have influenced the outcome at trial and, perhaps, even on appeal?

Randy D. Gordon, How Lawyers (Come to) See the World: A Narrative Theory of Legal Pedagogy, 56 Loyola L. Rev. 619, 619, 640-46 (2011).

Then again, the narrow rule of the case – that an uncommunicated offer cannot be accepted – is consistent with one traditional conception of contract formation. The Kansas Supreme Court in Taft v. Hyatt reasoned:

There must be a meeting of the minds of the parties; on the one side, of the person who makes the offer; on the other, of the person who performs the service. Where a claimant for the reward was not aware that it had been offered until after he had performed his services, there has been no meeting of minds which would constitute a contract.

Given the power of this reasoning, one might answer Professor Gordon’s questions in the negative – that common-law courts had no other choice in deciding the question of first-impression than to hold that uncommunicated offers could not be accepted.

But I don’t believe this to be the case. There were at least two legal pathways that might have allowed an unbiased court to rule in favor of the Colored Mason claimants. First, the court might have been able to provide compensation under a “quantum meruit” or contract “implied in law” equitable theory. After all, a benefit was conferred, and the offer even provides evidence of how much the offeror valued performance.

Second, a court might have employed reasoning analogous to that used in a celebrated opinion of the Queen’s Bench decided 26 years before – which also involved carbolic acid. In Carlill v. Carbolic Smoke Ball Co., 1 Q.B. 256 (1893), the court was willing in perhaps the most famous unilateral contract dispute to allow the offeror, as master of their offer, to dispense with one of the traditional “meeting of the minds” requirements:

One cannot doubt that, as an ordinary rule of law, an acceptance of an offer made ought to be notified to the person who makes the offer, in order that the two minds may come together. Unless this is done the two minds may be apart, and there is not that consensus which is necessary according to the English law—I say nothing about the laws of other countries—to make a contract. But there is this clear gloss to be made upon the doctrine, that as notification of acceptance is required for the benefit of the person who makes the offer, the person who makes the offer may dispense with notice to himself if he thinks it desirable to do so and I suppose there can be no doubt that where a person in an offer made by him to another person, expressly or impliedly intimates a particular mode of acceptance as sufficient to make the bargain binding, it is only necessary for the other person to whom such offer is made to follow the indicated method of acceptance; and if the person making the offer, expressly or impliedly intimates in his offer that it will be sufficient to act on the proposal without communicating acceptance of it to himself, performance of the condition is a sufficient acceptance without notification.

If the offeror can waive the communication of acceptance, a court might analogously allow an offeror to “expressly or impliedly” waive the requirement that the offer be communicated before acceptance. Consider, for example, Lady Gaga’s “no question’s asked” offer of a $500,000 reward for the return of her lost dog. At the time of making the offer, she might have wanted to be bound by anyone who fulfilled her condition even if that person had not heard of her offer in order to incentivize potential search by people who surmise that a reward will be offered. The Carlill logic applies. Because notification of the offer is required for the benefit of the person who makes the offer, the person who makes the offer should be able to dispense with that communication, if they think it is desirable to do so.

All this is not to say that race must have caused the outcome of Taft v. Hyatt. But it keeps the troubling questions of Professor Gordon alive. Meeting-of-the-minds theory could have accommodated a different outcome.

Posted 9:30 AM by Guest Blogger [link]