A Treatise On The Law Of Contracts | by William W. Story

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Preface To The First Edition

The present work is intended, primarily, as a text-book for students, but it is by no means restricted in its scope or design to such a use. Its purpose is not only to sketch an elementary outline of ...

Part I. Contracts Not Under Seal, Contracts Not Under Seal. Chapter I. Different Kinds Of Contracts

1. A contract is a deliberate engagement between competent parties, upon a legal consideration, to do, or to abstain from doing, some act.1 In its widest sense it includes records and specialti...

Express And Implied Contracts

11. Every contract is founded upon the mutual agreement of the parties; and that agreement may either be formally stated in words, or committed to writing, or it may be a legal inference, drawn...

Express And Implied Contracts. Part 2

There is no implied contract that a surety shall be paid by his principal for the use of his name; but the law allows the parties to make an express contract to that effect. Perrine v. Hotchkiss, 58 B...

Express And Implied Contracts. Part 3

I cannot assent. It has been said, that where one person is benefited by the payment of money by another, the law raises an assumpsit against the former; but that I deny: if that were so, and I owed a...

Express And Implied Contracts. Part 4

1 Aspdin v. Austin, 5 Q. B. 685; Dunn v. Sayles, ib. 685; Sampson v. Easterby, 9 B. & C. 505; 6 Bing. 644; Saltoun v. Houstoun, 1 Bing. 433; Duke of St. Albans v. Ellis, 16 East, 352; Earl of Shrewsbu...

Executed And Executory Contracts

22. Contracts are also distinguished into executed and executory contracts. An executed contract is one in which nothing remains to be done by either party, and where the transaction is complet...

Entire And Divisible Contracts

25. There is also another distinction, namely, that between entire contracts and divisible contracts, which it may be well to advert to in this place, inasmuch as it modifies the rights and alt...

Entire And Divisible Contracts. Part 2

1 Hubbard v. Belden, 27 Vt. 645 (1855); Fenton v. Clark, 11 Vt. 557; Robinson v. Davison, Law R. 6 Exch. 269 (1871). See post, 51; Patrick v. Putnam, 27 Vt. 759 (1855). 2 Whitcomb v. Gilman,...

Entire And Divisible Contracts. Part 3

3 Clark v. School District, 29 Vt. 217 (1857). 4 Byrne v. Pattinson, Abbott on Ship. 347. See also Smith v. Wilson, 8 East, 437; Mitchell v. Darthez, 2 Scott, 771; 2 Bing. N. C. 555; Gibbon v. Mend...

Entire And Divisible Contracts. Part 4

1 Miner v. Bradley, 22 Pick. 459. Miner v. Bradlee was fully approved in Costigan v. Hewkins, 22 Wis. 74 (1867). And see Manning v. Humphreys, 3 E. D. Smith, 218. 2 Johnson v. Johnson, 3 Bos. & Pul...

Entire And Divisible Contracts. Part 5

31. Where, however, several different articles are bought at one time, it is often exceedingly difficult to determine whether the contract is entire or several. The cases are very contradictory...

Entire And Divisible Contracts. Part 6

1 The doctrine of Lord Kenyon, in Chambers v. Griffiths, 1 Esp. 151 (ubi sup.), was said by Lord Brougham, in Casamajor v. Strode (Cooper t. Brougham, 510; 8 Cond. Ch. 516), not to be sound doctrine, ...

Entire And Divisible Contracts. Part 7

3 Badger v. Titcomb, 15 Pick. 414. In this case Mr. Justice Wilde says, With respect to the first point, it is undoubtedly true, that only one action can be maintained for the breach of an entire con...

Conditional And Absolute Contracts.1

39. Contracts are also divided into conditional and absolute. An absolute contract requires no explanations. It is simply tract is divisible in its nature. Thus, on a note or other contract pay...

Conditional And Absolute Contracts.1. Part 2

41. A contract to labor for another for whatever he may see fit to pay, partakes somewhat of the nature of a conditional contract. It does not create a binding obligation on the defendant to pa...

Conditional And Absolute Contracts.1. Part 3

45. A condition precedent corresponds to the suspensive condition of the civil and Scottish law, and a condition subsequent to the resolutive condition. Mr. Brown, in his Treatise on Sales, say...

Conditional And Absolute Contracts.1. Part 4

3 Worsley v. Wood, 6 T. R. 720; Com. Dig. D. 1; post, 586, 587. 4 Worsley v. Wood, 6 T. R. 710; Roumage v. Mechanics' Fire Ins. Co., 1 Green, 110; Leadbetter v. Etna Ins. Co., 13 Me. 265; Pr...

Joint And Several Contracts

52. Contracts may also be either joint or several, or joint and several.1 53. The first rule governing a contract where there is more than one party on either side, is that it is to b...

Joint And Several Contracts. Part 2

56. But if the agreement be to pay to each covenantee a specific sum, or to perform distinct and separate duties to each of the obligees, the contract wonld be treated as several.7 1 East, 4...

Joint And Several Contracts. Part 3

3 In Powis v. Smith, 5 B. & Al. 851, Abbott, C. J., says, It is clear that if there be a joint lease by two tenants in common, at an entire rent, the two may join in an action to recover the same, b...

Joint And Several Contracts. Part 4

61. In contracts which are not reduced to writing, the court will look into the special circumstances of the case and the situation of the parties, as well as into the consideration itself, in ...

Joint And Several Contracts. Part 5

5 Brooks v. Stuart, 9 Ad. & El. 854; Cocks v. Nash, 9 Bing. 345. But suppose the action, instead of being brought on the original agreement, should in such case be brought in assumpsit on the new prom...

Joint And Several Contracts. Part 6

3 Dean v. Newhall, 8 T. R. 171; Tuckerman v. Newhall, 17 Mass. 582; Couch v. Mills, 21 Wend. 424; McLellan v. Cumberland Bank, 24 Me. 566; Hutton v. Eyre, 6 Taunt. 289; Cocks v. Nash, 9 Bing. 348; Wal...

Joint And Several Contracts. Part 7

Taunt. 421; and Abbott, C. J., in Skaife v. Jackson, 3 B. & C. 422, and many other cases; which practice shows very clearly the opinion of the courts, that, but for their equitable interference, the r...

Joint And Several Contracts. Part 8

69. Where one of the obligors to a joint and several obligation is sued thereon, it seems that he would not ordinarily be entitled to receive contribution for the costs of defendsurety for cont...

Chapter II. Of The Parties To A Contract

72. We now come to the consideration of the competency of parties to contract. The general principle of law is, that all persons not rendered incompetent by personal disability, or by considera...

Lunatics And Idiots

74. And, first, as to the contracts of lunatics. A lunatic is a person who is crazy or deranged in intellect, and who is incapable of logical sequence of thought or argument.1 This class includ...

Lunatics And Idiots. Part 2

1 Staples v. Wellington, 58 Me. 454 (1870). 2 Banks v. Goodfellow, Law R. 5 Q. B. 549 (1870). In this very interesting case, Cockburn, C. J., thus lays down the law. The question whether partial u...

Lunatics And Idiots. Part 3

1 Allen v. Berryhill, 27 Iowa, 534 (1869). See also Behrens v. McKen-zie, 23 Iowa, 333 (1867). 1 Per Dillon, C. J., in Allen v. Berryhill, supra. Mr. Justice Cole dis- it nevertheless was afterw...

Lunatics And Idiots. Part 4

78. It was an old maxim of the common law, affirmed by Lord Coke, that a man shall not be allowed to stultify himself.6 And although a different doctrine had been previously laid down by Fit...

Lunatics And Idiots. Part 5

136. But see Yates v. Boen, 2 Str. 1104; Faulder v. Silk, 3 Camp. 126; Sergeson v. Sealey, 2 Atk. 412, contra. 1 Mitchell v. Kingman, 5 Pick. 431; Seaver v. Phelps, 11 Pick. 304; Fitzgerald v. Reed...

Lunatics And Idiots. Part 6

1 The cases in this country are somewhat contradictory. Seaver v. Phelps, 11 Pick. 304; Rice v. Peet, 15 Johns. 503; Fitzgerald v. Reed, 9 Sm. & M. 94, are contrary to the rule as laid down in Beavan ...

Lunatics And Idiots. Part 7

The position taken by the tenant is, that the grantor or his guardian or heirs cannot avoid the grant, unless he or they place the grantee, in all respects, in the condition in which he was before th...

Lunatics And Idiots. Part 8

1 Read v. Legard, 6 Exch. 636; Shaw v. Thompson, 16 Pick. 198. Abilities of a lunatic are in many cases more extended than those of an infant, particularly in executed contracts which are not for n...

Drunkards

86. We now come to the second subdivision of persons naturally incompetent to contract, namely, drunkards. It was formerly held, that in order to obtain relief from a contract entered into duri...

Outlaws And Persons Attainted

90. The process of outlawry is almost wholly unknown in this country, and in the few States in which the English practice has been introduced, the same disabilities and forfeitures are not incu...

Aliens

94. The next class is that of aliens. An alien is a person born in a foreign country, of foreign parents, and not naturalized within his adopted country.3 The mere fact, that a person is born i...

Aliens. Part 2

95. Where a subject of one country resides in an enemy's country voluntarily, without forcible detention, and carries on commerce there, he becomes an alien enemy.3 So, also, the same rule obta...

Aliens. Part 3

The celebrated judgment of Sir William Scott, in the leading case of The Hoop, 1 C. Rob. 196, determined only that all trading with a public enemy, unless by permission of the sovereign, was interdic...

Aliens. Part 4

1 Com. Dig. tit. Alien, C. 5; Wells v. Williams, 1 Salk. 46; Boulton v. Dobree, 2 Camp. 163; Chitty on Prerog. 48, 49. We now come to the American cases cited for the defendant. The earliest is th...

Aliens. Part 5

97. Indeed, generally, an alien friend may, when injured, bring any personal action which a citizen can; and although nection with the offence. Intercourse inconsistent with actual hostility is...

Aliens. Part 6

Chief Justice of the Supreme Court of New York, said: ' The doctrine once held in the English courts, that an alien's bond became forfeited by the war (Year-Book, 19 Edw. IV. pl. 6), would not now be ...

Aliens. Part 7

2 Judd v. Lawrence, 1 Cush. 531. 98. The question whether an alien is at liberty to renounce all allegiance to the United States, at his pleasure, has been much discussed, and considerable d...

Infants

99. The next class of persons legally disabled from contracting, except under certain limitations, is that of infants. Human life is divided into four periods, each of which is a multiple of se...

Infants. Part 2

5 Zouch v. Parsons, 3 Burr. 1794; Keane v. Boycott, 2 H. Black. 511; Thus where a bond is executed by him as surety, inasmuch as it cannot be for his benefit, it would seem to be void;1 and where a...

Infants. Part 3

105. So, also, where the contract is executed, he may ordinarily disaffirm it at any time; as where he sells any article, he may reclaim it upon tendering the price he paid;4 or if he lease lan...

Infants. Part 4

1 Locke v. Smith, 41 N. H. 346; Heath v. Stevens, 48 N. H. 251 (1869). But the authorities are not agreed on this point. 107. Where the contract is executory on the part of the adult, if it ...

Infants. Part 5

1 Badger v. Phinney, 15 Mass. 359; Shannon v. Shannon, 1 Sch. & Lef. 324; Ilsley v. Stubbs, 5 Mass. 284. 2 20 Am. Jur. 260; 2 Kent's Comm. lect. 31, p. 240; Earl of Buckinghamshire v. Drury, 2 Eden...

Infants. Part 6

1 Burnham v. Seaverns, 101 Mass. 360 (1869). 2 Sterling v. Adams, 3 Day, 411. 3 Liverpool Association v. Fairhurst, 9 Ex. 422; Johnson v. Pye, 1 Sid. 258; s. c. 1 Keb. 913; Wright v. Leonard, 11...

Infants. Part 7

1 Newland on Cont. 14, sed qucere; Zouch v. Parsons, 3 Burr. 1808; Forresters Case, 1 Sid. 41; Reeve, Dom. Rel. 249, 254. See Minock v. Shortridge, 21 Mich. 304. 2 See Proctor v. Sears, 4 Allen, 95...

Infants. Part 8

6 Hussey v. Jewett, 9 Mass. 100; Ford v. Phillips, 1 Pick. 203; Harmer v. Killing, 5 Esp. 102; Smith v. Mayo, 9 Mass. 64; Robbins v. Otis, 1 Pick. 368; Millard v. Hewlett, 19 Wend. 301; Hinely v. Marg...

Infants. Part 9

8 Cheshire v. Barrett, 4 M'Cord, 241; Dana v. Coombs, 6 Greenl. 89; Lynde v. Budd, 2 Paige, 191; Hubbard v. Cummings, 1 Greenl. 11; 20 Am. Jur. 273, and cases cited. 1 Hubbard v. Cummings, 1 Greenl...

Infants. Part 10

In Aldrich v. Grimes an infant purchased property, with a privilege of return, if it did not answer. After he became of age, the vendor requested him to return it, if he did not intend to keep it. Th...

Infants. Part 11

On the review of the authorities it would seem that the dictum of Dallas, J., above cited, is not sustained, either upon principle or authority, and that some act is necessary, on any infant's part, ...

Infants. Part 12

124. Fourth. Executed contracts of marriage are binding upon an infant. By the common law, the age of consent, at which the contract of marriage may be made, is fourteen years in a male, and tw...

Infants. Part 13

1 Brooks v. Crowse, Andr. 277; Clowes v. Brooke, 2 Str. 1101; Barber v. Vincent, 1 Freeman, 531. 2 Hands v. Slaney, 8 T. R. 578; Harrison v. Fane, 1 Scott, N. It. 287; Peters v. Fleming, 6 M. & W. ...

Infants. Part 14

129. But if articles, however necessary in kind, be furnished to an infant, who is already supplied by his friends; or if things be furnished of too expensive a nature, or unsuitable to the inf...

Infants. Part 15

6 In Munson v. Washband, 31 Conn. 303 (1863), it was held that a female infant might employ an attorney to prosecute one who had seduced her, and would be bound to pay for his services and expenditure...

Infants. Part 16

1 Fluck v. Tollemache, I C. & P. 5 (supra); Rolfe v. Abbott, 6 C. & P. 286; Deane v. Annis, 14 Me. 26; Thayer v. White, 12 Met. 343. In Law v. Wilkin, 6 Ad. & El. 718, the defendant's son was at schoo...

Infants. Part 17

136. If the father be in a state of separation from his wife and allow his child to live with her, he impliedly constitntes his infant child, would be liable for necessaries, did not arise exac...

Infants. Part 18

1 Rawlyns v. Vandyke, 3 Esq. 250, 252; Rumney v. Keyes, 7 N. H. 571. 1 The King v. Greenhill, 4 Ad. & El. 624. 2 Atkyns v. Pearce, 2 C. B. (n. s.) 763 (1857). 137. Where the child volu...

Infants. Part 19

1 Jervoise v. Silk, Cooper, 52; Maberly v. Turton, 14 Ves. 499; Simon v. Barber, Taml. 22. 2 Newport v. Cook, 2 Ashm. 332; In the matter of Kane, 2 Barb. Ch. 375; Buckley v. Howard, 35 Tex. 565 (18...

Married Women

144. We now come to the fourth division of persons incompetent to contract, namely, married women. The rule of the common law is, that a married woman cannot, during her coverture, make an obli...

Married Women. Part 2

1 Ex parte Franks, 7 Bing. 762; Marsh v. Hutchinson, 2 Bos. & Pul. 231; Year-Book, 2 Henry IV. 7. 2 Spooner v. Brewster, 2 Car. & P. 35; Boggett v. Frier, 11 East, 304, note (Day's ed.); Ex parte F...

Married Women. Part 3

1 Osborn v. Nelson, 59 Barb. 381 (1871); Chapman v. Lemon, 11 How Pr. 235. 2 Gregory v. Paul, 15 Mass. 31; M'Arthur v. Bloom, 2 Duer, 151. 3 Abbot v. Bayley, 6 Pick. 93. 4 Co. Litt. 132 b, 13...

Married Women. Part 4

1 Mason v. Morgan, 2 Ad. & El. 30; s. c. 4 Nev. & Man. 46. 2 Day v. Pargrave, cited in Philliskirk v. Pluckwell, 2 M. & S. 393; 1 Roll. Abr. 345. 3 Woodman v. Chapman, 1 Camp. 189; Ankerstein v....

Married Women. Part 5

1 It is more convenient to consider this subject here than to transfer it to the chapter on Agents. 2 Montague v. Benedict, 3 B. & C. C35; Seaton v. Benedict, 5 Bing. 30; Mizen v. Pick, 3M.&W. 481;...

Married Women. Part 6

1 Kimball v. Keyes, 11 Wend. 33; Mott v. Comstock, 8 Wend. 544; Baker v. Barney, 8 Johns. 72; Cany v. Patton, 2 Ashm. 140. And see Boardman v. Silver, 100 Mass. 330 (1868). 2 Hunter v. Boucher, 3 P...

Married Women. Part 7

1 Phillipson v. Hayter, Law R. 6 C. P. 38 (1870). See Ruddock v. Marsh, 1 H. & N. 601 (1857). In this case the wife of a laborer had incurred a debt for provisions for the use of the family; and the h...

Married Women. Part 8

2 Ibid.; Freestone v. Butcher, 9 C. & P. 643. 3 Atkins v. Curwood, 7 C. & P. 756. See Smith v. Allen, 1 Lansing, 101 (1869). 4 Waithman v. Wakefield, 1 Camp. 120; Gilman v. Andrus, 28 Vt. 241; E...

Married Women. Part 9

1 Etherington v. Parrot, 1 Salk. 118; s. c. 2 Ld. Raym. 1006; Bolton v. Prentice, 2 Str. 1214; Hardie v. Grant, 8 C. & P. 512. A husband is not liable for goods supplied to his wife after notice to th...

Married Women. Part 10

175. Where the separation between the two parties is not by act of law, but is by deed, or by mutual agreement without deed, the wife cannot contract so as to bind the husband, provided he allo...

Married Women. Part 11

7 Ladd v. Lynn, 2 M. & W. 265. 178. A husband is not, however, bound for necessaries furnished to his wife, if she have left his house voluntarily without sufficient cause, although she do n...

Married Women. Part 12

2 Baker v. Sampson, 14 C. B. (n. s.) 383 (1863) ; Bazeley v. Forder, Law R. 3 Q. B. 559 (1868); Phillipson v. Hayter, Law R. 6 C. P. 38 (1870). 179. In case a husband has obliged his wife to...

Married Women. Part 13

In the case of an infant it was held, for a similar reason, that he could not be made liable for a fraudulent representation that he was of full age, whereby the plaintiff was induced to contract wit...

Slaves

182. We shall now consider the contracts of slaves. The condition of slaves in the slave-holding States in this country is analogous to that of slaves among the ancient Greeks and Romans, and ...

Seamen

184. We now come to the sixth class, namely, seamen, who are peculiarly under the guardianship of the law, and are often called the wards of admiralty. By a law of the United States,1 it is ...

Seamen. Part 2

1 Swift v. Clark, 15 Mass. 173; Johnson v. Sims, 1 Peters, Adm. 215; The George Home, 1 Hagg. Adm. 370. 2 Abbott on Shipping, pt. v. eh. 11, p. 558. 3 Hawkins v. Twizell, 5 El. & B. 883 (1856). ...

Seamen. Part 3

2 Melville v. De Wolf, 4 El. & B. 844 (1855). Lord Campbell, C. J., distinguished the case from Beale v. Thompson, 4 East, 546, in this, that the contract there was only suspended; an embargo being on...

Seamen. Part 4

1 Brown v. Jones, 2 Gall. 481; Willard V. Dorr, 3 Mason, 91, 161; The Sarah Ann, 2 Sumner, 206; Pitman v. Hooper, 3 Sumner, 286; The Rebecca, 5 Rob. Adm. 102. 2 Ibid.; Brown v. Jones, 2 Gall. 481. ...

Seamen. Part 5

1 Coffin v. Jenkins, 3 Story, 113; Abbott on Shipping, pt. v. ch. 3, p. 576; The Rovena, Ware, 309; Spencer v. Eustis, 21 Me. 519. 196. A desertion must, however, take place during the voyag...

Seamen. Part 6

1 Harris v. Carter, 3 El. & B. 559; 25 Eng. Law,& Eq. 221; Bartlett v. Wyman, 14 Johns. 261. In this case, the court referring to the act of Congress, 20th of July, 1790, said: This statute requires,...

Chapter III. Contracts of Agents

200. Having now considered the competency of persons to contract in their own behalf, we shall proceed to the consideration of contracts made by third persons, having no original interest in ...

Contracts of Agents. Continued

1 McKinley v. Irvine, 13 Ala. 681. 2 Murphy v. O'shea, 2 Jones & Lat. 422; Trevelyan v. Charter, 9 Beav. 140. 3 Ibid. 4 Ibid. 5 Commercial Bank of Lake Erie v, Norton, 1 Hill, 501; Lyon v. Jerom...

Extent Of Agent's Authority

209. In the next place, as to the extent of the agent's authority. The authority of the agent to bind his principal grows out of the power with which he is expressly or impliedly invested. If ...

Extent Of Agent's Authority. Part 2

3 Davidson v. Stanley, 3 Scott, N. R. 49; s. c. 2 Man. & Grang. 721, Fearn v. Filica, 7 Man. & Grang. 523. The principal is not liable for the failure of the agent to carry out a private arrangement w...

Extent Of Agent's Authority. Part 3

3 Smith v. McGuire, 3 H. & N. 554 (1858); Hurlburt v. Kneeland, 32 Vt. 316 (1859). 4 Iowa v. Haskell, 20 Iowa, 276 (1866); McCurdy v. Rogers, 21 Wis. 197 (1866). 5 White v. Langdon, 30 Vt. 599 (...

Extent Of Agent's Authority. Part 4

1 Helyear v. Hawke, 5 Esp. 72, 73; Lobdell v. Baker, 1 Met 193; Hubbard v. Elmer, 7 Wend. 446; Tillotson v. McCrillis, 11 Vt. 477. 2 Alexander v. Gibson, 2 Camp. 555; Cornfoot v. Fowke, 6 M. & W. 3...

Extent Of Agent's Authority. Part 5

6 Howard v. Sheward, Law R. 2 C. P. 148 (1866); Brady v. Todd, 9 C. B. (n. s.) 592, holding it otherwise in case the principal is not a dealer. 7 See post, Construction of Contracts. 8 Wiltshire...

Form And Execution Of An Agent's Power

222. We now come to the form and execution of an agent's power. And, first, we shall consider the proper form in which an agent should execute a contract in behalf of his principal, so as to ...

Form And Execution Of An Agent's Power. Part 2

Wolf, 8 Pick. 56; Staekpole v. Arnold, 11 Mass. 27; Hunter v. Miller, 6 B.'Mon. 612; Rogers v. March, 33 Me. 106; Cooke v. Wilson, 1 C. B. (N. s.) 153 (1856); Barlow v. Cong. Soc. in Lee, 8 Allen, 460...

Form And Execution Of An Agent's Power. Part 3

1 Wolff v. Horncastle, 1 Bos. & Pul. 323; Lucena v. Craufurd, 3 Bos. & Pul. 98; De Vignier v. Swanson, 1 Bos. & Pul. 346, n.; Bell v. Gilson, 1 Bos. & Pul. 343; Marsh, on Ins. B. 1, ch. 8, p. 311, ...

Duties And Liabilities Of An Agent To His Principal

232. An agent is bound to exercise only ordinary diligence, and reasonable skill; and he is responsible only for such injuries as arise from a want thereof.2 Ordinary diligence is that ...

Duties And Liabilities Of An Agent To His Principal. Continued

236. Where the agent receives no instructions, he must conform to the usage of trade or the custom applicable to the particular agency; and any deviation therefrom, unless it be justified by ...

Defences Of Agents Against Their Principals

241. In the next place, as to the defences of agents against their principals. If an agent conform to all his duties, as stated in the foregoing pages, he will not be responsible to his ...

Defences Of Agents Against Their Principals. Continued

Co., 4 Fla. 200. But see Wheeler v. Nevins, 34 Me. 54; Baker v. Freeman, 35 Me. 485. 1 Codwise v. Hacker, 1 Caines, 526; Ward v. Evans, 2 Salk. 442; 2 Ld. Raym. 928; Thorold v. Smith, 11 Mod. 88; C...

Liabilities Of Agents To Third Persons

247. We shall next consider the liabilities of agents to third persons. Where an agent contracts in behalf of his principal, he will not be liable to third persons, when credit is given ...

Liabilities Of Agents To Third Persons. Part 2

1 Kennedy v. Gouveia, 3 Dowl. & Ryl. 503. 2 East India Co. v. Hensley, 1 Esp. 111. 3 Royce v. Allen, 28 Vt. 234 (1856); Meech v. Smith, 7 Wend. 315; Feeter v. Heath, 11 Wend. 478. 4 Owen v. G...

Liabilities Of Agents To Third Persons. Part 3

In the absence of any direct authority, we think that a party who executes an instrument in the name of another, whose name he puts to the instrument, and adds his own name only as agent for that oth...

Liabilities Of Agents To Third Persons. Part 4

252. Agents are also responsible, personally, when there is no other person who can be made legally responsible as a principal, upon the ground that he who contracts in his own name, as agent ...

Liabilities Of Agents To Third Persons. Part 5

2 Baldwin v. Leonard, 39 Vt. 260, 266 (1867), per Steele, J. 3 Borell v. Newell, 3 Daly, 233. 4 Macbeath v. Haldimand, 1 T. R. 172; Bowen v. Morris, 2 Taunt. 374, 387; Unwin v. Wolseley, 1 T. R....

Liability of Principal

258. If the principal represents the agent as principal, he is bound by that representation. So, if he stands by and allows a third person innocently to treat with the agent as principal, he ...

Rights Of Agents

259. We now come to the rights of agents, in respect of their principals and third persons. Every agent is entitled to a compensation for all services done by him in respect to the agency, ...

Rights Of Agents. Continued

1 King v. Steiren, 44 Perm. St. 99. 2 Nesbit v. Helser, 49 Mo. 383 (1872). 3 lb. See Gillett v. Coram, 7 Kans. 156 (1871). But the broker must find a purchaser able and willing to complete the b...

Rights Of Principals

269. Rights of principals. Inasmuch as the principal is bound by the acts and contracts of his agents, within the scope of their authority, he has, also, a reciprocal right against third ...

Rights Of Principals. Continued

A distinction was taken on the argument in the present case, by the defendant's counsel, between an executed and an executory contract; and it was said, that whatever might be the rule in the former ...

Dissolution Of Agency

272. In the next place, as to dissolution of agency. An agency may be dissolved in three ways: either by a revocation of the agent's power by the principal; or by a renunciation of such power ...

Chapter IV. Contracts Of Partners

278. We now proceed to the consideration of special contracts of agency, in which the powers, duties, and liabilities of the parties are modified by their peculiar relationship. This class we ...

Contracts Of Partners. Part 2

2 See Stewart v. Forbes, 1 Hall & Twells, 472; s. c. 1 Mac. & Gord. 137. In this case Lord Cottenham, referring to the case of Peacock v. Peacock, 2 Camp. 45, where Lord Ellenborough held, that in the...

Contracts Of Partners. Part 3

4 Burton v. Wookey, Madd. & G. 367; Story on Part. 177; 3 Kent, Comm. lect. 43, p. 51, 4th ed.; Long v. Majestre, 1 Johns. Ch. 305; Glassington v. Thwaites, 1 Sim. & Stu. 124. 5 Coll. on Pa...

Contracts Of Partners. Part 4

1 Haughey v. Strickler, 2 Watts & Serg. 411; Barcroft v. Haworth, 29 Iowa, 462 (1870); Byington v. Woodward, 9 Iowa, 360. 2 Town v. Hendee, 27 Vt. 258 (1855); Fitch v. Harrington, 13 Gray, 468 (185...

Contracts Of Partners. Part 5

4 Pick. 234; Rice v. Austin, 17 Mass. 197, 203; the Frederick, 5 Rob. Adm. 8. See Niehoffy. Dudley, 40 111. 406 (1866). 4 The cases on this point are exceedingly contradictory and confusing, and th...

Authority And Liability Of Partners

300. In the next place, as to the authority and liability of partners. Each partner is the general agent of the firm. For all purposes connected with the partnership, therefore, he may dispose ...

Authority And Liability Of Partners. Part 2

4 The Alliance Bank v. Kearsley, Law R. 6 C. P. 433 (1871). See Cooke v. Seeley, 2 Exch. 746. 5 Yates v. Dalton, 4 H. & N. 850 (18 8). 6 Edwards v. Tracy, 62 Penn. St. 374 (1869); Hoskinson v. Elio...

Authority And Liability Of Partners. Part 3

3 Com. Dig. Arbitrament, D. 2; 2 Bell, Comm. B. 7, p. 618, 5th ed.; Stead v. Salt, 3 Bing. 101; Adams v. Bankart, 1 C. M. & R. 681; Karthaus v. Ferrer, 1 Peters, 222, 228; Strangford v. Green, 2 Mod. ...

Authority And Liability Of Partners. Part 4

1 Snaith v. Burridge, 4 Taunt. 684; Rogers v. Batchelor, 12 Peters, 221; Story on Part. 110; Coll. on Part. B. 3, ch. 1, p. 259 to 282, 2d ed.; Green v. Deakin, 2 Stark. 347; Hope v. Cust, 1 East, 53;...

Dissolution of Partnership

316. We come next in order to the consideration of what constitutes a dissolution of partnership. A partnership may be dissolved in six ways: 1st. By the death, or incapacity, or bankruptcy, ...

Dissolution of Partnership. Part 2

2 Barker v. Goodair, 11 Ves. 78; Dutton v. Morrison, 17 Ves. 193; In re Wait, 1 Jac. & Walk. 605; Story on Part. 340, 341. 3 Moody v. Payne, 2 Johns. Ch. 548; Dutton v. Morrison, 17 Ves. 194...

Dissolution of Partnership. Part 3

2 Ibid.; Evans v. Drummond, 4 Esp. 89; Newmarch v. Clay, 14 East, 239; Farrar v. Deflinne, 1 Car. & Kir. 580; Magill v. Merrie, 5 B. Mon. 168; Hunt v. Hall, 8 Ind. 215 (1856); Ellis v. Bronson, 40 111...

Chapter V. Executors And Administrators

328. Another class of agents consists of executors and administrators,1 who are the personal representatives and agents for the testator, the former being appointed by him in his will, and the ...

Powers Of Executors

332. We now propose to consider the powers, duties, and liabilities of executors and administrators. And in the first place, as to the powers. An executor or administrator (for their powers ...

Powers Of Executors. Continued

1 Parry v. Harbert, Dyer, 45 b; Windsor v. Burry, Dyer, 45, note. 2 1 Williams on Executors, pt. 2, B. 3, ch. 1, 1, p. 556; Wheatley v. Lane, 1 Saund. 216 a, note (1) ; Le Mason v. Dixon, W....

Duties Of Executors And Administrators

339. In the.next place, as to the duties of executors and administrators. The first duty of the executor is to bury the deceased in a manner suitable to his condition and estate.3 He is not, ...

Duties Of Executors And Administrators. Continued

5 Bac. Abr. Executors (L. 2). 6 2 Black. Comm. 511. In Massachusetts the priority of debts is regulated by statute. See Gen. Sts. ch. 99, 1. 342. In respect to debts of the same cl...

Interest On Legacies

351. Where a specific legacy is given, it is appropriated to the legatee from the death of the testator, and any increase which may accrue to it in the intermediate time between the death of ...

Liabilities Of Executors And Administrators

353. In the first place, as to the liabilities of an executor or administrator, for the contracts and acts of the deceased. 1 Barrington v. Tristram, 6 Ves. 345. See Merritt v. Richardson, ...

Liabilities Of Executors And Administrators. Part 2

6 Howse v. Webster, Yelv. 103; Helier v. Casebert, 1 Lev. 127. But query, whether this distinction between entry and non-entry in favor of the latter now obtains. See Williams v. Bosanquet, 1 Br. & B....

Liabilities Of Executors And Administrators. Part 3

1 Goring v. Goring, Yelv. 11; Bradly v. Heath, 3 Sim. 543; Childs v, Monins, 2 Br. & B. 460; Reech v. Kennegal, 1 Ves. 126. 2 Rose Vo Bowler, 1 H. Bl. 108; Powell v. Graham, 7 Taunt. 586.. 3 Dee...

Liabilities Of Executors And Administrators. Part 4

1 Richter v. Poppenhusen, 57 Barb. 309 (1870). 2 Marshall v. Broadhurst, 1 Cr. & J. 403; Edwards v. Grace, 2M.&W. 190; Dakin v. Cope, 2 Russ. 170; Garrett v. Noble, 6 Sim. 504; Siboni v. Kirkraan, ...

Liabilities Of Executors And Administrators. Part 5

3 Langford v. Gascoyne, 11 Ves. 335; Shipbrook v. Hinchinbrook, 11 Yes, 254; 16 Ves. 477. See Daly's Estate, 1 Tuck. 95 (1867). 4 Gill v. Attorney-General, Hardr. 314; Lees v. Sanderson, 4 Sim. 28;...

Liabilities Of Executors And Administrators. Part 6

870. Where an executor, after partially administering the estate, renounces his office, and surrenders the assets to his coexecutor, he is nevertheless liable for all the assets which he has ...

Chapter VI. Trustees

373. A trustee is a person holding the legal title to property, under an express or implied agreement to apply it, and the income arising from it, to the use and for the benefit of another ...

Trustees. Part 2

376. It is the duty of a trustee to keep regular accounts, to collect all debts, to defend all suits brought against the trust property, and to give notice of such suit to his cestui que trust;...

Trustees. Part 3

3 Moore's Appeal, 10 Barr, 435. 4 The duty of trustees to invest the trust funds in safe securities is most strictly enforced in King v. Talbot, 40 N. Y. 76 (1869), in which a very valuable opinion...

Trustees. Part 4

4 Harden v. Parsons, 1 Eden, 148. 5 Wilkes v. Steward, Coop. 6; Walker v. Symonds, 3 Swanst. 62. See also Lowson v. Copeland, 2 Bro. C. C. 156, and Mr. Bell's note. 6 Harvard College v. Amory, 9...

Chapter VII. Guardian And Ward

386. The same general principles that apply to trustees govern the relation of guardian and ward. During the existence of the relation, a general inability to contract with each other is ...

Chapter VIII. Corporations

390. Corporations are, in the United States, created by the legislature, and in England by the royal charter and act of Parliament. They may also arise by prescription. There are, in this ...

Corporations. Part 2

394. A corporation is an artificial person, having a corporate name, and having, in general, the same powers to contract as a natural person, unless it be limited by the charter or act of ...

Corporations. Part 3

Thus, where an agent made a promissory note, commencing I promise to pay, and signed it with his own name, adding the great multiplication of corporations, extending to almost all the concerns of bu...

Corporations. Part 4

1 Despatch Line of Packets v. Bellamy Manuf. Co., 12 N. H. 205. See also Flint v. Clinton Co., 12 N. H. 430; Hayward v. Pilgrim Society, 21 Pick. 270. 396. Again, a corporation may sue and b...

Corporations. Part 5

1 Shrewsbury & B. Ry. Co-, v. Northwestern Ry. Co., 6 H. L. Cas. 113 (1857). See Ernest v. Nicholls, ib. 401 (1857). 2 Susquenanna Depot v. Barry, 61 Penn. St. 317 (1869); Washington County v. Berw...

Chapter IX. Auctioneers

401. An auctioneer differs from a broker in two respects; in the first place, in the exercise of his functions as auctioneer, he cannot buy either for himself, or for a third person; and in ...

Auctioneers. Part 2

1 Mesnard v. Aldridge, 3 Esp. 271; Bywater v. Richardson, 1 Ad. & El. 508; Baglehole v. Walters, 3 Camp. 154; Eagleton v. East Ind. Co., 3 Bos. & Pul. 55. As to the effect of failing to offer for sale...

Auctioneers. Part 3

1 Edwards v. Hodding, 5 Taunt. 815; Gray v. Gutteridge, 3 C. & P. 40; Spittle v. Lavender, 6 Moore, 270; s. c. 2 Br. & B. 452. 2 Coles v. Trecothick, 9 Ves. 243; Commonwealth v. Harnden, 19 Pick. 4...

Auctioneers. Part 4

417. So, also, where the plaintiff, on the sale of a barge, addressed the company present, complaining of ill-usage from the owner, and asserted that the owner had a claim against him, by ...

Auctioneers. Part 5

3 Wheeler- v. Collier, Mood. & Malk. 125; Crowder v. Austin, 3 Bing. 368; Bowles v. Round, 5 Ves. 508. 4 See post, Illegal Sales. 5 Thornett v. Haines, 15 M. &. W. 367; Robinson v. Wall, 10 Beav...

Auctioneers. Part 6

1 Birch v. Depeyster, 4 Camp. 385; Johnston v. Usborne, 11 Ad. & El. 549; Phil. & Amos on Evid. 738, 739 (edit. 1838). 2 Bird v. Boulter, 4 B. & Ad. 446, 447. See also 8. c. 1 Nev. & Man. 316, note...

Chapter X. Brokers

427. A broker is an agent who is employed to negotiate sales between the parties for a compensation in the form of a commission, which is commonly called brokerage.1 In the proper exercise of ...

Brokers. Part 2

1 Brown v. Boorman, 11 CI. & Finn. 1, 44. 2 Fairlie v. Fenton, Law R. 5 Exch. 169 (1870). 3 Baring v. Corrie, 2 B. & AI. 148. 4 Keys v. Johnson, 68 Penn. St. 42 (1871); Glentworth v. Luther, ...

Brokers. Part 3

1 See Benjamin on Sale, 205 et seq. (2d ed.). 2 Rucker v. Cammeyer, 1 Esp. 105; Hinde v. Whitehouse, 7 East, 558; Kemble v. Atkins, 7 Taunt. 260; Rowe v. Osborne, 1 Stark. 140; Henderson v. Barnewa...

Chapter XI. Factors

434. A factor is an agent employed to sell the goods or merchandise of his principal, which are in his possession, for a commission. He is often called a commission-merchant, or consignee; and ...

Factors. Part 2

1 Story on Agency, 112; Drinkwater v. Goodwin, 1 Cowp. 256; Johnston v. Usborne, 11 Ad. & El. 549. 2 Rabone v. Williams, 7 T. R. 360; George v. Clagett, 7 T. R. 359; 8. c. 2 Esp. 557; Baring...

Factors. Part 3

440. Where a factor makes advances, or incurs liabilities upon a consignment of goods, he may sell them in the exercise of a sound discretion and according to the general usage, and reimburse ...

Factors. Part 4

* This power, which is in the nature of a general lien, is not given by the corresponding article of the French Code de Commerce (No. 93), or by any of the excellent dispositions of the Spanish code w...

Factors. Part 5

1 Blot v. Boiceau, 1 Sandf. Ill; 3 Comst. 78; Frothingham v. Everton, 12 N. H. 239. See Maynard v. Pease, 99 Mass. 555. 2 Brown v. M'Gran, 14 Peters, 495; Courcier v. Ritter, 4 Wash. C. C. 549; Man...

Factors. Part 6

1 Story on Agency, 111; Smith on Merc. Law, 97; Smith v. Lascelles, 2 T. R. 189; Craufurd v. Hunter, 8 T. R. 13; French v. Backhouse, 5 Burr. 2727; Morris v. Summerl, 1 Marsh, on Ins., by Condy...

Factors. Part 7

1 Urquhart v. M'lver, 4 Johns. 103; M'Combie v. Davies, 7 East, 5. 1 Laussatt v. Lippincott, 6 S. & R. 386. 2 Martini v. Coles, 1 M. & S. 140. 3 Collins v. Martin, 1 Bos. & Pul. 648; Treuttel v....

Chapter XII. Ship's-Husbands

453. A ship's-husband is a person employed by the owner of the ship to superintend all matters relating to the repairs,1 equipments, management, and other concerns of the ship. His duties and ...

Chapter XIII. Masters of Ships

454. The master of a ship, so long as his agency lasts,1 has a general authority, growing out of his official relation to the ship, to make all contracts incidental to her ordinary employment. ...

Masters of Ships. Part 2

3 Hussey v. Allen, 6 Mass. 163; James v. Bixby, 11 Mass. 34; Wain-wright v. Crawford, 4 Dall. 226; Milward v. Hallett, 2 Caines, 77; Webster v. Seekamp, 4 B. & Al. 352; Stewart v. Hall, 2 Dow, 29; The...

Masters of Ships. Part 3

2 Barron v. Stewart, Law R. 3 P. C. 199 (1870). 3 The Fanny and Elmira, Edw. Adm. 118; Idle v. Royal Exch. Ass. Co., 8 Taunt. 775; Green v. Royal Exch. Ass. Co., 6 Taunt. 68; Read v. Bonham, 3 Br. ...

Chapter XIV. Change Of Parties By Assignment

464. In the next place, there may be a change of interest, duty, and responsibility between parties, growing out of an assignment of the old contract, or the novation or substitution of a new ...

Change Of Parties By Assignment. Part 2

The law relied upon on the part of the bank, as stated by Lord Eldon in the case of Ex parte South, is to the following effect: ' If a creditor gives an order on his debtor to pay a sum in discharge ...

Change Of Parties By Assignment. Part 3

Several cases were cited, which do not appear to me to have any material bearing upon the case. Among them was Ex parte Scudamore, 3 Ves. 85. A power of attorney was given in pursuance of a previous ...

Change Of Parties By Assignment. Part 4

1 See Hammond v. Messenger, 9 Sim. 327, in which the subject is fully examined by Shadwell, V. C.; Ontario Bank v. Mumford, 2 Barb. Ch. 596 2 2 Story, Eq. Jur. 1057; Ex parte South, 3 Swanst...

Change Of Parties By Assignment. Part 5

1 Ibid.; Leslie v. Guthrie, 1 Bing. N. C. 697. The same doctrine was maintained by Mr. Vice-Chancellor Shadwell, in Douglas v. Russell (4 Sim. 524), and his decree was afterwards affirmed by the L...

Change Of Parties By Assignment. Part 6

Lord Eldon in Pulvertoft v. Pulvertoft, 18 Ves. 84; Ex parte Pye, 18 Ves. 140; Dennison v. Goehring, 7 Barr, 179; Nesmith v. Drum, 8 Watts & Serg. 10. Kekewich v. Manning was followed in Mayo v. Carri...

Change Of Parties By Assignment. Part 7

1 Tibbits v. George, 5 Ad. & El. 115; Crocker v. Whitney, 10 Mass. 316; Mowry v. Todd, 12 Mass. 281; Warren v. Wheeler, 21 Me. 484; Ford v. Adams, 2 Barb. 349; De Bernales v. Fuller, 14 East, 590, not...

Change Of Parties By Assignment. Part 8

2 Mangles v. Dixon, 3 H. L. C. 702; 18 Eng. Law & Eq. 82. 3 Ibid. 4 Commercial Bank v. Colt, 15 Barb. 506. 5 Duncklee v. Greenfield S. Mill Co., 3 Fost. 245; Alner v. George, 1 Camp. 392. See Ri...

Chapter XV. Change Of Parties By Novation Or Substitution

479. The term novation, which is borrowed from the Roman law, signifies the substitution, with the agreement of all parties concerned, of one debt for another, or of one party for another. By ...

Change Of Parties By Novation Or Substitution. Part 2

1 Cuxon v. Chadley, 3 B. & C. 591; post, 1343, 1350. 2 This doctrine was held in Weston v. Barker, 12 Johns. 281 (Spencer, J., dissenting); Neilson v. Blight, 1 Johns. Cas. 205; Israel v. Do...

Change Of Parties By Novation Or Substitution. Part 3

What proceedings will constitute an assent to this contract, and discharge the original debtor ? Will a demand of the money have this effect ? An individual who should receive advices from his debtor...

Change Of Parties By Novation Or Substitution. Part 4

1 Thompson v. Percival, 5 B. & Ad. 932, where a separate bill was given for a joint debt, Lord Denman said: *' It appears to us that the facts proved raised a question for the jury, whether it was agr...

Change Of Parties By Novation Or Substitution. Part 5

In the case at bar the plaintiffs had acquired no title in the cotton against which the draft was drawn. The bill of lading was not attached to the draft, or made payable to the holder thereof, or de...

Change Of Parties By Novation Or Substitution. Part 6

1 Brewer v. Dyer, 7 Cush. 337; Mellen v. Whipple, 1 Gray, 323. But see Exchange Bank v. Rice, 107 Mass. 37 (1871), in which some doubt is thrown upon the authority of Brewer v. Dyer. 2 Dutton v. Po...

Chapter XVI. Mutual Assent Of The Parties

489. The next subject which we propose to consider is the assent of the parties to a contract. There are three requisites to legal assent: namely, it should be mutual; it should be without ...

Mutual Assent Of The Parties. Part 2

491. So, also, the silence of either party will import assent to the terms of a contract, whenever it would have been incumbent on him to express his dissent, if he did not agree thereto; or ...

Mutual Assent Of The Parties. Part 3

5 Eskridge v. Glover, 5 Stew. & Port. 264; 20 Am. Jur. p. 15-32; Oooke v. Oxley, 3 T. R. 653; Routledge v. Grant, 4 Bing. 661; Payne v. Cave, 3 T. R. 148; Boston & Maine Railroad v. Bartlett, 3 Cush. ...

Mutual Assent Of The Parties. Part 4

1 Code de Commerce de Hollande. Dispositions Generates, art. 1, p. 65; 1 Stair, 3, 9. 2 Toullier, Droit Civ. Frangais, p. 33, No. 30. 497. Again, it is difficult to see why the same rule ...

Mutual Assent Of The Parties. Part 5

H. L. C. 381, was commented on in British & Am. Tel. Co. v. Colson, Law R. 6Exch. 108 (1871). The Supreme Court of Massachusetts has, however, maintained the doctrine, that no acceptance is binding...

Mutual Assent Of The Parties. Part 6

Pothier, in his treatise on Sales, states an intermediate doctrine between to be binding until the other party has received information of it. 499. But where a proposal is made by letter, an...

Mutual Assent Of The Parties. Part 7

1 Pothier, Contrat de Vente, No. 32; Duranton, Cours de Droit Francois, Vol. 16; Contrat de Vente, Liv. 3, tit. 6, 45; 2 Pardessus, No. 253; Bell on Sales, p. 38. 2 Thomas v. Dering, 1 Keen,...

Mutual Assent Of The Parties. Part 8

507. Where goods not corresponding to the order are sent by mistake, it becomes important for the orderer to know what it is incumbent on him to do. If he elect to keep the goods, he should ...

Duress

510. Assent must not only be mutual, but it must- be freely and voluntarily given, in order to create a valid contract. Compulsion or duress will therefore avoid any agreement. Duress is ...

Duress. Part 2

2 Oates v. Hudson, 6 Exch. 346; 5 Eng. Law & Eq. 469, and note; Carey v. Prentice, 1 Root, 91; Chase v. Dwinal, 7 Greenl. 134; Ripley v. Gelston, 9 Johns. 201; Severance v. Kimball, 8 N. H. 386; Ellio...

Duress. Part 3

513. In order to constitute duress by imprisonment, either the imprisonment, or the duress consequent upon it, must be tortious and unlawful.5 If, therefore, while a person is illegally ...

Duress. Part 4

1 As to the reason for this rule, see Bacon's Abridgment, Duress, A.; 2 Starkie on Evid. 482 (4th Am. ed.); Chitty on Cont. 208. 2 See United States v. Huckabee, 16 Wall. 414, 432 (1872); Foshay v....

Mistake Of Law

526. Mistake is of two kinds: mistake in matters of law, and mistake in matters of fact. With regard to the former class, it is a well-established maxim, both in law and equity, that ignorance ...

Mistake Of Law. Continued

As where the drawer of a bill of exchange, knowing that time had been given by the holder to the acceptor, but supposing held in Massachusetts, that a promise to pay under mistake of law is not bindin...

Mistake Of Fact

528. In the next place as to mistakes of fact.-Where an act is done, or a contract made, under an injurious mistake or ignorance of a material fact, it is voidable;3 and this rule is not ...

Mistake Of Fact. Part 2

3 Roberts v. Fisher, 43 N. Y. 159 (1870). See also Baldwin v. Van Deusen, 37 N. Y. 487; Leger v. Bonnaffe, 2 Barb. 475; Lightbody v. Ontario Bank, 11 Wend. 11; 13 ib. 101. 1 Bell v. Gardiner, 4 Man...

Mistake Of Fact. Part 3

Markle v. Hatfield, 2 Johns. 455; Young v. Adams, 6 Mass. 182; and Jones V. Ryde, 5 Taunt. 488. But, without entering upon any examination of this doctrine, it is sufficient to say, that the present i...

Mistake Of Fact. Part 4

Considering, then, the credit in this case as a payment of the notes, the question arises, whether, after payment, the defendants would be permitted to recover the money back; if they would not, then...

Mistake Of Fact. Part 5

1 Bank of U. S. v. Bank of Georgia, 10 Wheat. 333; Price v. Neal, 3 Burr. 1355; Smith v. Mercer, 6 Taunt. 76. Against the pressure of these authorities there is not a single opposing case; and we ...

Mistake Of Fact. Part 6

It is not thought necessary to go into a consideration of other cases cited at the bar, to establish, that the acceptor may show that the accepted bill was void in its origin, as made in violation o...

Mistake Of Fact. Part 7

1 Jones v. Edney, 3 Camp. 285. 2 Farrer v. Nightingal, 2 Esp. 639. 3 Nichol v. Godts, 10 Exch. 191; 26 Eng. Law & Eq. 527. fact as a defence to an action for the consideration-money; or he ma...

Mistake Of Fact. Part 8

1 Kennebec Log Driving Co. v. Burrill, 18 Me. 314; Case v. Hall, 24 Wend. 102; Vibbard v. Johnson, 19 Johns. 77; Whitney v. Lewis, 21 Wend. 132; Lloyd v. Jewell, 1 Greenl. 352; Sumner v. Gray, 4 Pike,...

Mistake Of Fact. Part 9

1 Okill v. Whittaker, 2 Phillips, 338; 11 Jur. 681. 2 See post, Sales. 3 Warner v. Daniels, 1 Woodb. & M. 91. 4 Mitchell v. Lapage, Holt, N. P. 253. 5 Pothier on Oblig. pt. 1, No. 9. &s...

Mistake Of Fact. Part 10

4 Ibid.', Waite v. Leggett, 8 Cow. 195; Wheadon v. Olds, 20 Wend. 174; Kelly v. Solari, 9 M. & W. 54. 1 Bell v. Gardiner, 4 Man. & G. 11. ...

Chapter XVII. The Consideration

542. We now come to that incident of a simple contract, which distinguishes it from a specialty, and without which it cannot exist, namely, the consideration. 543. An agreement, ...

Benefit Or Injury

548. In the first place, as to considerations arising from benefit or injury. The principal requisite, and that which is the essence of every consideration, is, that it should create some ...

Benefit Or Injury. Part 2

8 Ad. & El. 743. In Train v. Gold, 5 Pick. 384, Mr. Justice Wilde said: If a contract is deliberately made without fraud, and with a full knowledge of all the circumstances, the least consideration w...

Benefit Or Injury. Part 3

5 Scotson v. Pegg, 6H.&N. 295 (1861). 6 Richardson v. Gosser, 26 Penn. St. 335 (1855). 7 Gwynne v. Heaton, 1 Bro. C. C. 5, and cases cited in the note by Mr. 551. Where a benefit is do...

Forbearance

554. In the next place, as to forbearance. Forbearance to sue is a good consideration only when the party forbearing has a right to sue in his own name, either at law or in equity.1 ...

Forbearance. Part 2

4 King v. Upton, 4 Greenl. 387; Elting v. Vanderlyn, 4 Johns. 237; Allen v. Pryor, 3 A. K. Marsh. 305. See Morton v. Burn, 7 Ad. & El. 19; Willatts v: Kennedy, 8 Bing. 5. 5 Payne v. Wilson, 7 B. & ...

Forbearance. Part 3

1 Longridge v. Dorville, 5 B. & Al. 117. See Wade v. Simeon, 2 C. B. 548. 2 Reynolds v. Prosser, Hardr. 71; Davison v. Hanslop, T. Raym. 211 j Quick v. Copleston, 1 Sid. 242. 3 Sage v. Wilcox, 6...

Assignment Of A Chose In Action

563. The assignment of a chose in action is a sufficient consideration for a promise by the assignee, unless it be void for illegality or other sufficient reason.1 An assignment of a chose in ...

Mutual Promises

568. Mutual promises are concurrent considerations, and will support each other, unless one or the other be void;2 in which case, there being no consideration on the one side, no contract can ...

Unilateral Contracts

572. When the party to whom an offer or promise has been made makes no express promise in return, the contract is said to be unilateral; and it is not binding until accepted. Indeed, it cannot ...

Consideration Moving Prom Third Persons

573. It is now well settled as a general rule, although the early cases are quite contradictory on the point, that in cases of simple contract, if one person make a promise to another for the ...

Insufficient Considerations

576. We now come to the second division, namely, insufficient considerations. These we shall divide into the following classes: 1st. Gratuitous; 2d. Illegal and Impossible: 3d. Moral; 4th. ...

Gratuitous Promises

577. Promises which are wholly gratuitous are void, for want of consideration; for, however obligatory they may be in morals or in honor, inasmuch as they are not founded upon an injury or ...

Gratuitous Promises. Part 2

1 Worcester Med. Inst. v. Bigelow, 6 Gray, 498. See also North Ecclesiastical Society v. Matson, 36 Conn. 26 (1869); Berkeley Divinity School v. Jarvis, 32 Conn. 412; McDonald v. Gray, 11 Iowa, 508; W...

Gratuitous Promises. Part 3

The general principle, that in an action of assumpsit there must be either an express or an implied promise from one party to the other; that there must be privity of contract of some kind between t...

Illegal And Impossible Consideration

582. Every contract, the consideration to which is tainted with illegality or immorality,3 is void; and as the consideration of a contract is twofold, moving from either party to the other, it ...

Illegal And Impossible Consideration. Continued

6 Armstrong v. Toler, 11 Wheat. 258; Story, Confl. Laws, 250; Clugas v. Penaluna, 4 T. R. 466; Holman v. Johnson, 1 Cowp. 344. 585. Where the consideration is illegal, either party ma...

Moral Consideration

590. A moral obligation alone is not a sufficient legal consideration to support either an express3 or implied promise; for the law, although it will not suffer any immorality, cannot ...

Moral Consideration. Part 2

Without doubt there are great interests of society which justify wilh-holding the coercive arm of the law from these duties of imperfect obligation, as they are called; imperfect, not because they ar...

Moral Consideration. Part 3

1 Besford v. Saunders, 2 H. Bl. 116; Maxim v. Morse, 8 Mass. 127; Scouton v. Eislord, 7 Johns. 36; Erwin v. Saunders, 1 Cow. 249; Shippey v. Henderson, 14 Johns. 178; Willing v. Peters, 12 S. & R. 177...

Executed Considerations

594. A consideration, in regard to the time when it operates, is either, 1st. Executed, or something already performed before the making of the defendant's promise; 2d. Executory, or something ...

Executed Considerations. Part 2

2 Dyer, 272 a. 1 Durnford v. Messiter, 5 M. & S. 445. 2 Jeremy v. Goochman, Cro. Eliz. 442. 3 Oliverson v. Wood, 3 Lev. 366. See also Hayes v. Warren, 2 Bar-nardiston, 141; 8. c. 2 Str. 933; ...

Executed Considerations. Part 3

600. But wherever the law does not raise an implied promise on these grounds to pay, a previous request must be proved in order to sustain an action; for no express promise, made upon a past ...

Total Or Partial Failure of Consideration

605. We shall now consider the effect of a total or partial failure of consideration. Where the consideration of a contract totally fails, that is, when that which was supposed to be a ...

Total Or Partial Failure of Consideration. Continued

1 Story on Sales, 204, 205, 423, and cases cited; Johnson v. Johnson, 3 Bos. & Pul. 162; Casamajor v. Strode, Coop. t. Brougham, 510; Roffey v. Shallcross, 4 Madd. 227. 2 Tye v. Gwynne, 2 Ca...

Chapter XVIII. Illegal Contracts

610. The next subject of which we propose to treat is that of unlawful contracts. Contracts are sometimes said to be illegal, either because the consideration of the promise is illegal, or ...

Illegal Contracts. Continued

1 Bank of U. S. v. Owens, 2 Peters, 538; Aubert v. Maze, 2 Bos. & Pul. 371; Watts v. Brooks, 3 Ves. 612. 2 Bartlett v. Vinor, by Lord Holt, Carth. 252; Clark v. Protection Ins. Co., 1 Story, 109; D...

Contracts In Violation Of The Common Law

619. This class of contracts we shall subdivide, for the sake of convenience, into the following classes: 1st. Contracts void on account of fraud; 2d. Contracts void on account of immorality; ...

Contracts Void On Account Of Fraud

620. 1st. Fraud has been defined to be every kind of artifice employed by one person for the purpose of deceiving another, and this is sufficiently descriptive of fraud.1 The courts, however,...

Contracts Void On Account Of Fraud. Part 2

Again, where a party has made a false representation to one person as an inducement to a contract, and he knows that that person has stated such representation to a third person, who, upon faith there...

Contracts Void On Account Of Fraud. Part 3

1 Ibid.; Irvine v. Kirkpatrick, 7 Bell, App. 186; 3 Eng. Law & Eq. 17. 623. The general rule is, that before a party can rescind a contract and recover the advances he may have made thereon,...

Contracts Void On Account Of Fraud. Part 4

1 Cod. Lib. 2, tit. 21, 6. 2 Beatty v. Fishel, 100 Mass. 448 (1868); Stewart v. Thomas, 15 Gray, 171; Baldwin v. Parker, 99 Mass. 79; Howe v. Howe, 99 Mass. 88. 3 Pasley v. Freeman, 3 T. ...

Contracts Void On Account Of Fraud. Part 5

1 M1Diarmid v. M'Diarmid, 3 Bligh (n. s.), 374. See also Farnam v. Brooks, 9 Pick. 212. 628. But mere inadequacy of consideration will not alone be sufficient to avoid a contract, unless it ...

Misrepresentation

632. Where a party designedly misrepresents a certain fact, for the purpose of misleading and imposing upon the other party, to his injury, he is guilty of positive fraud; dolum malum ad ...

Misrepresentation. Part 2

1 3 Black. Comm. 166; 1 Story, Eq. Jur. 202; 2 Kent, Comm. 482; Dig. Lib. 2, tit. 14, 1. 7, 9; Dig. Lib. 18, tit. 1, 1. 43, 2; Pothier, de Vente, 234, 237, 238; Cochran v. Cumming...

Misrepresentation. Part 3

In this case the right to maintain the action rests upon the alleged assertion by the wife that she had a right to distrain. But there could be no retainer of the plaintiff to distrain given by wife,...

Misrepresentation. Part 4

From the situation of the parties and of the country, and from the form of the entry, it is reasonable to presume that this apology is true in point of fact; but the court does not conceive that the...

Misrepresentation. Part 5

633. The misrepresentation must, however, be in regard to some material fact, operating as an inducement or consideration to the contract. Thus, if a party should offer an estate for sale, ...

Misrepresentation. Part 6

1 James v. Morgan, 1 Lev. 111. See also Smith on Contracts, p. 99, and the remarks on the case of Thornborow v. Whitacre, 2 Ld. Raym. 1165. 2 Corbett v. Brown, 8 Bing. 35; 1 Moo. & S. 86; 5 C. & P....

Misrepresentation. Part 7

2 Pike v. Fay, 101 Mass. 134 (1869). 3 Hazard v. Irwin, 18 Pick. 105; Evans v. Collins, 5 Q. B. 804, 820; Stebbins v. Eddy, 4 Mason, 414; Taylor v. Ashton, 11 M. & W. 401; Moens v. Heyworth, 10 M. ...

Misrepresentation. Part 8

1 Winsor v. Lombard, 18 Pick. 60; Shepherd v. Kain, 5 B. & Al. 240; Hastings v. Lovering, 2 Pick. 214; Henshaw v. Robins, 9 Met. 83; Hazard v. Irwin, 18 Pick. 95; Budd v. Fairmaner, 8 Bing. 51. 2 D...

Misrepresentation. Part 9

641. It is not necessary that the misrepresentation should be made directly between the actual parties; for if a party make a representation to one person in respect to a sale, and that ...

Misrepresentation. Part 10

4 Ibid.; Hutchinson v. Bell, 1 Taunt. 558. 5 See Young v. Hall, 4 Ga. 95; Stiles v. White, 11 Met. 356. 6 Pasley v. Freeman, 3 T. R. 51; Eyre v. Dunsford, 1 East, 318. 7 Foster v. Charles, 4 ...

Concealment

643. The general rule, both of law and equity, in respect to concealment, is, that mere silence, with regard to a material fact, which there is no legal obligation to divulge, will not avoid a ...

Concealment. Part 2

4 See ch. on Auctioneers. 5 Pidcock v. Bishop, 3 B. & C. 605; Smout v. Ilbery, 10 M. & W. 1; Railton v. Mathews, 10 CI. & Finn. 934; Smith v. Bank of Scotland, 1 So, it has been held, directors ...

Concealment. Part 3

Holt held, that if one buys upon a representation of so much rent, and relies upon it, and will inquire no further, if the representation be false, an action will lie; but if the vendor will inquire f...

Concealment. Part 4

1 1 Story, Eq. Jur. 148, 149, 197, and note; 205, 207, 208; 2 Kent, Comm. 484, 485, 4th ed.; Laidlaw v. Organ, 2 Wheat. 178, 195. 647. But, if there be a special trust or confi...

Concealment. Part 5

1 Hill v. Gray, 1 Stark. 434. See also Turner v. Harvey, Jacob, 169; Matthews v. Bliss, 22 Pick. 53. 2 But most authorities hold that there must be an intention not to pay, for which relief might b...

Fraud Upon Third Persons

650. In the next place, as to fraud upon third persons, Where any agreement is made which operates as a fraud upon third persons, it is void as to them, though it may be good between the ...

Fraud Upon Third Persons. Part 2

653. But where a debtor, in embarrassed circumstances, enters into an arrangement with all his creditors,.to pay them a legal claim to demand? In Seavingv. Brinkerhoff, 5 Johns. Ch. 329, where ...

Fraud Upon Third Persons. Part 3

654. Again, where a man is deeply indebted, or in embarrassed circumstances, every voluntary assignment or conveyance to third persons, not his creditors, for which a valuable consideration is ...

Fraud Upon Third Persons. Part 4

658. If the conveyance, or bill of sale, be conditional on its face, and possession be not, by its terms, to be surrendered until such condition is performed, the contract is binding against ...