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



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 the law relating to simple contracts, but to elucidate and systematize, as far as practicable, the general law applicable to the subject; in the hope that it may serve alike the student and the practitioner. It is believed, that such a work is now needed by the profession, for new circumstances and exigencies so modify and expand every department of jurisprudence, as to require new expositions of the law, however valuable preceding treatises may have been. The plan of the present work has been to render cases subordinate to principles, and, instead of pursuing the common method of merely digesting the various authorities, to throw the main body of them into the notes, and to incorporate those only in the text, which seemed to afford the best illustrations of the doctrine under consideration

TitleA Treatise On The Law Of Contracts
AuthorWilliam W. Story
PublisherLittle, Brown, And Company
Year1874
Copyright1874, William W. Story
AmazonA Treatise On The Law Of Contracts

By William W. Story, Counsellor-At-Law.

"Obligamur aut re, aut verbis, aut simul utroque, aut consensu, aut lege, aut jure honorario, aut necessitate, aut peccato."- PandectAE Justinianeae.

In Two Volumes.

Vol. I and II.

Fifth Edition.

To My Father This Work Is Affectionately Inscribed.

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The preparation of this edition was commenced about three years ago by the Hon. Edmund H. Bennett; but that gentleman, after prosecuting the work about a year, was compelled to abandon it by reason of...
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The last edition of this treatise has already been exhausted for nearly a year, but in the anxious desire to merit the increased favor with which it was received by the profession, the publication of ...
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Anew edition of this treatise having been called for, the author has taken occasion thoroughly to revise the text and substantially to enlarge it. Many additions have been made to it throughout, but p...
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In preparing the present edition for the press, the text has been thoroughly revised, and large additions have been made thereto as well as to the notes. The doctrines originally stated have been expa...
-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 ...
-Fraud Upon Third Persons. Part 5
3 Twyne's Case, 3 Coke, 80; s. c, reported under the name of Chamber-lane v. Twyne, Moore, 638. See also Shep. Touch. 66. 1 See Worseley v. De Mattos, 1 Burr. 482. 2 See Holbird v. Anderson, 5 T...
-Fraud Upon Third Persons. Part 6
664. In the Supreme Court of the United States, the doctrine of Edwards v. Harben, that an absolute bill of sale or conveyance, without surrender of possession, is, of itself, conclusive ...
-Fraud Upon Third Persons. Part 7
3 Young v. M'Clure, 2 Watts & S. 147; Clow v. Woods, 5 S. & R. 285; Welsh v. Bekey, 1 Penn. 57; Cowden v. Brady, 8 S. & R. 510; 2 Kent, Comm. 522, 523, 524; Brady v. Haines, 18 Penn. St. 113. 4 Boa...
-Fraud Upon Third Persons. Part 8
2 Bramley v. Alt, 3 Ves. 624: Veazie v. Williams, 3 Story, 620; Wheeler fore, all of the bidders except the purchaser be fictitious bidders, or if the bid immediately preceding that of the purchaser b...
-Fraud Upon Third Persons. Part 9
1 Wheeler v. Collier, Mood. & M. 125; Crowder v. Austin, 3 Bing. 368; Bowles v. Round, 5 Ves-. 508. See Latham v. Morrow, 6 B. Monr. 630; Thornett v. Haines, 15 M. & W. 371; post, 548. §...
-Immoral Contracts
669. Having considered the subject of contracts which are void on account of fraud, we now come to the consideration that is communicated. I do not mean to state a proposition so general, as ...
-Immoral Contracts. Continued
1 Fonbl. Eq. B. 1, ch. 4, 4, and notes; 1 Story, Eq. Jur. 296; Walker v. Perkins, 3 Burr. 1568; s. c. 1 W. Bl. 517; Franco v. Bolton, 3 Ves. 368; Gray v. Mathias, 5 Ves. 286; Matthews v....
-Contracts In Violation of Public Policy
674. We now come to the third class of illegal contracts, namely, contracts which violate the rules of public policy. The rule of law, applicable to this class of cases, is, that all ...
-Contracts In Restraint Of Trade
679. An agreement in general or total restraint of trade is void, although it be founded on a legal and valuable consideration. And this doctrine was held at as early a period as during the ...
-Contracts In Restraint Of Trade. Part 2
680. But an agreement in partial restraint of trade, restricting it within certain reasonable limits, as in one county.10 or within reasonable times,11 or confining it to particular persons, ...
-Contracts In Restraint Of Trade. Part 3
681. The limitations of such a contract must be reasonable in regard both to time and to place. The test of the reasonableness of any restriction is, whether it is such as only affords a fair ...
-Contracts In Restraint Of Trade. Part 4
Hitchcock v. Coker, 6 Ad. & El. 438; Tallis v. Tallis, 1 El. & B. 397, n.; 18 Eng. Law & Eq. 162. 1 See the remarks of Parke, B., in Ward v. Byrne, 5 M. & W. 548; Hinde v. Gray, 1 Scott, N. R. 123;...
-Contracts In Restraint Of Trade. Part 5
I am not here establishing any new rule. It is the doctrine to be deduced from all the cases, taken together, and it harmonizes with them all. Thus construed, there is no conflict among the authoriti...
-Contracts In Restraint Of Trade. Part 6
This bond, therefore, if not altogether illegal and punishable, is framed others than individuals specified in the contracts, which are not considered as against public policy, nor in restraint of t...
-Contracts In Restraint Of Marriage
687. In the next place, contracts in restraint of marriage are void, upon grounds of public policy. If a man and woman reciprocally agree to marry each other, the contract is undoubtedly good. ...
-Marriage Brokage Contracts
694. Marriage brokage contracts, by which are meant contracts or agreements to negotiate a marriage between two parties, for a certain compensation, are utterly void,6 and incapable of ...
-Wagers And Gaming
695. Gaming by itself is lawful by the common law, unless it be accompanied by fraud, and then the fraud invalidates the contract.3 Money fairly lost at gaming, and paid, cannot, therefore, be ...
-Wagers And Gaming. Continued
1 In the Revised Statutes of New York, 1 R. S. 663, 8, it is declared, that all wagers, bets, or stakes, made to depend on any race or upon any gaming by bet or chance, or upon any bet, chanc...
-Contracts To Offend Against The Obligations Of Common Law And Public Duty
700. Contracts to do acts which are indictable, or punishable criminally; or to conceal and compound such acts; or to suppress evidence in a criminal prosecution, - are void.2 Thus, it is a ...
-The Obligations Of Common Law And Public Duty. Part 2
1 Wallace v. Hardacre, 1 Camp. 45; Edgcombe v. Rodd, 5 East, 303; Johnson v. Ogilby, 3 P. Wins. 279; Harding v. Cooper, 1 Stark. 467. In Keir v. Leeman, 9 Q. B. 392, Tindal, C. J., reviews the cases a...
-Common Law And Public Duty Contract Offences. Part 3
703. But an agreement with a public officer to compensate him for doing an act which it is his legal duty to do without compensation, is void; because every officer is bound to do his duty, ...
-Common Law And Public Duty Contract Offences. Part 4
6 Denny v. Lincoln, 5 Mass. 385; Fanshor v. Stout, 1 South. 319. 7 Clark v. Foxcroft, 6 Greenl. 296. 8 Bac. Abr. Assumpsit, E.; Winch, 48; Hutt. 55; 2 Johns. Cas. 56. 706. So, also, a ...
-Common Law And Public Duty Contract Offences. Part 5
1 Lord Howden v. Simpson, 10 Ad. & El. 821; Simpson v. Lord How-den, 1 Keen, 583; 8. c. 3 Myl. & Cr. 97; Vauxhall Bridge Co. v. Earl Spencer, 2 Madd. 356. 2 Shrewsbury v. North Staffordshire Railwa...
-Common Law And Public Duty Contract Offences. Part 6
1 Hacket v. Tilly, 11 Mod. 93; 8. c. 2 Ld. Raym. 1207; Fox v. Tilly, 6 Mod. 225; Given v. Driggs, 1 Caines, 450; Kneeland v. Rogers, 2 Hall, 579; Hackett v. Tilley, Holt, 201; Swett v. Poor, 11 Mass. ...
-Common Law And Public Duty Contract Offences. Part 7
1 Thallhimer v. Brinckerhoff, 3 Cow. 647, supra. 2 1 Russell on Crimes, B. 2, ch. 20, p. 176; Strange v. Brennan, 10 Jur. 649. 3 1 Russell on Crimes, B. 2, ch. 21, p. 183; 1 Hawk. P. C. ch. 27, ...
-Common Law And Public Duty Contract Offences. Part 8
1 Chiles v. Conley, 9 Dana, 385. 2 Jackson v. Ketchum, 8 Johns. 482; Jackson v. Andrews, 7 Wend. 152; Murray v. Ballou, 1 Johns. Ch. 573; Hawk. P. C. B. 1, ch. 27, tit. Champerty; Mowse v. Weavor, ...
-Common Law And Public Duty Contract Offences. Part 9
1 2 Valin, Comm. art. 49, p. 127; 1 Emerigon, ch. 8, 5, p. 212, 215, 218, edit, par Boulay Paty. 2 Pothier, Assur. n. 58, note of Estrangin. Mr. Justice Story, in his Commentaries on the Con...
-Usury
721. In the next place, usurious contracts are void. Usury is denned by Sir Edward Coke to be a contract upon a loan of money, or giving days for forbearing of money, debt, or duty, by way of ...
-Usury. Part 2
1 Hardr. 420. 2 Crane t. Price, 35 N. Y. 494 (1866). 3 Stockwell v. Holmes, 33 N. Y. 53 (1865). 1 Scott y. Lloyd, 9 Peters, 418, 445; Bank of U. S. v. Waggener, 9 Peters, 400; Lloyd v. Scott,...
-Usury. Part 3
2 Tate v. Wellings, 3 T. R. 531; Smedley v. Roberts, 2 Camp. 607;, Stribbling v. Bank of the Valley, 5 Rand. 132; Barker v. Vansommer, 1 Bro. C. C. 149. 3 Bank of U. S. v. Owens, 2 Peters, 535; Ban...
-Usury. Part 4
2 Wilcox v. Howland, 23 Pick. 167; Hamilton v. Le Grange, 2 H. Bl. 144; 8. c. 4 T. R. 613; Newal v. Jones, Mood. & M. 449; Eaton v. Bell, 5 B. & Al. 34; Mowry v. Bishop, 5 Paige, 98; Ex parte Bevan, 9...
-Usury. Part 5
1 2 Kent, Comm. 460; Story, Confl. Laws, 304, 305; Andrews v. Pond, 13 Peters, 78; De Wolf v. Johnson, 10 Wheat. 383; Robinson v. Bland, 2 Burr. 1077; Van Schaick v. Edwards, 2 Johns. Cas. 355;...
-Usury. Part 6
737. But where a contract is valid, and not usurious in its inception, any subsequent taking of more than legal interest will not render the original contract void, but only subject the party ...
-Trading With An Enemy Without License
743. Every contract made with an enemy, with knowledge that he is so, is void, unless it be made with the special permission of the government.3 Thus, a policy of insurance upon the property ...
-Illegal Taxation
749. The rule concerning the liability of a party upon a note given for the payment of taxes during the existence of the Southern Confederacy has been in substance thus stated: A de facto ...
-Chapter XIX. Contracts In Violation of A Statute
750. We now come to the consideration of contracts in violation of a statute; and the rule in regard to such contracts is, that they are utterly void, whether the consideration of the ...
-Contracts In Violation of A Statute. Part 2
1 Wheeler v. Russell, 17 Mass. 258; Law v. Hodgson, 2 Camp. 147; s. c. 11 East, 300; Forster v. Taylor, 5 B. & Ad. 889. See also Springfield Bank v. Merrick, 14 Mass. 322. 2 Hunt v. Knickerbacker, ...
-Contracts In Violation of A Statute. Part 3
1 Pope v. Linn, 50 Me. 83; Tillock v. Webb, 56 Me. 100; Sayre v. Wheeler, 31 Iowa, 112; Day v. McAllister, 15 Gray, 433. See Cranson v. Goss, 107 Mass. 439 (1871), and cases cited. Quaere, whether an ...
-Contracts In Violation of A Statute. Part 4
757. If the contract has been settled and discharged, the law will not aid the parties to repudiate it and get back in statu quo.6 758. There has been a distinction lately drawn ...
-Contracts In Violation of A Statute. Part 5
2 Armstrong v. Toler, 11 Wheat. 258, 271, 276; The George, TheBoth-nea, and the Janstaff, 1 Wheat. 408; The George, 2 Wheat. 278; Tenant v. Elliott, 1 Bos. & Pul. 3; Farmer v. Russell, 1 Bos. & Pul. 2...
-Contracts In Violation of A Statute. Part 6
3 T. R. 418; Aubert v. Maze, 2 Bos. & Pul. 371; Farmer v. Russell, 1 Bos. & Pul. 296; Tenant v. Elliott, 1 Bos. & Pul. 3; Armstrong v. Toler, 11 Wheat. 271; Cannan v. Bryce, 3 B. & Ad. 179; McKinnell ...
-Contracts In Violation of A Statute. Part 7
766. This doctrine has always been admitted in cases where a part of the promise is void by the common law; but where a part of the promise is rendered void by the provisions of a statute, the ...
-Contracts In Violation of A Statute. Part 8
1 Lexington v. Clarke, 2 Vent. 223; Cooke v. Tombs, 2 Anst. 420. See Roberts on Frauds, 111, note 53; Lea v. Barber, 2 Anst. 425, note; Chater v. Beckett, 7 T. R. 201; Thomas v. Williams, 10 B. & C. 6...
-Contracts In Violation of A Statute. Part 9
If, however, though there has been in this'case a technical legal conversion, the real and substantial claim of the plaintiff is merely to recover damages for the breach of an illegal contract; if h...
-Contracts In Violation of A Statute. Part 10
We understand the decision in Gregg v. Wyman, to be put, in the first place, upon the ground that the claim of the plaintiff, though in form for a tort, was in substance to recover damages for the br...
-Chapter XX. Construction of Contracts
771. Inasmuch as every contract derives its force from the mutual assent of the parties thereto, to certain terms, it becomes necessary, not only to interpret those terms, in order to ...
-Construction of Contracts. Part 2
4 Cleaveland v. Smith, 2 Story, 287. 5 Bache v. Proctor, 1 Doug. 382. Through which there was a private way, having a gate across it, entered into covenants, by indenture, for widening the way, ...
-Construction of Contracts. Part 3
1 Worthington v. Hylyer, 4 Mass. 205. 2 Door v. Geary, 1 Vee. 255; Day v. Trig, 1 P. Wms. 286; Wigrara on Interp. of Wills, p. 54, 67. 3 Curtiss v. Howell, 39 N. Y. 211 (1868). And when th...
-Construction of Contracts. Part 4
1 Wallis v. Wallis, 4 Mass. 135; Doe v. Simpson, 2 Wils. 22; Doe v. Salkeld, Willes, 673; Doe v. Whittingham, 4 Taunt. 20; Shep. Touch. 82, 83; Roe v. Tranmer, 2 Wils. 78. In this case, Willes, C. J.,...
-Construction of Contracts. Part 5
These cases may be thus defined: Where the object of a testator's bounty, or the subject of disposition (that is, the person or thing intended), is described in terms which are applicable indifferent...
-Construction of Contracts. Part 6
1 The King v. Stevens, 5 East, 254-260; the King v. Skiplam, 1 T. R. 490; Wright v. Cartwright, 1 Burr. 285; 3 Leon. 211; 1 Evans's Pothier on Oblig. 92, and note b; Story on Agency, 152. 2 ...
-Construction of Contracts. Part 7
4 Jefferyes v. Legendra, 1 Show. 321; Lilly v. Ewer, 1 Doug. 72; Webb v. Thomson, 1 Bos. & Pul. 5; Anderson v. Pitcher, 2 Bos. & Pul. 164. 5 Chanudflower v. Prestley, Yelv. 30, and cases there cite...
-Construction of Contracts. Part 8
788. So, also, the recital of a bond will ordinarily limit the condition; for the condition must be connected with and restrained by the subject-matter of the recital.4 Thus, where one Jenkins ...
-Construction of Contracts. Part 9
1 Sansom v. Bell, 2 Camp. 39; Com. Dig. Parol, A. 19; Watson . Boylston, 5 Mass. 411. 2 Bell y. Bruen, 1 How. 169. 3 Robertson v. French, 4 East, 135. 4 Astor v. The Union Insurance Co...
-Construction of Contracts. Part 10
794. The proper office of a usage or custom is not to contradict the terms of a contract, but to afford an interpretation and explanation of the otherwise indeterminate intentions of the ...
-Construction of Contracts. Part 11
796. Nor is it every usage that is admissible even to explain a contract. For if it be to do an illegal act, or if it violate the express requirements of a statute, or defeat the essential ...
-Construction of Contracts. Part 12
Looking at the usage relied upon in the present case, and taking it to have been found by the jury to be well established by the proof, as a general usage of the dealers in similar commodities in Bos...
-Construction of Contracts. Part 13
3 Blackett v. Royal Exchange Assurance Co., 2 Cr. & J. 249, per Lord Lyndhurst; 3 Stark. Evid. 1036; Hawes v. Smith, 3 Fairf. 429; 2 Stark. Evid. 566; Greenl. Evid. 280, 295. See Partridge v. I...
-Construction of Contracts. Part 14
But when an attempt was made to prove that, by the usage, a boat lost from the stern davits was not to be paid for under a policy on a ship, her tackle, etc, or that a boat slung upon the quarter was...
-Construction of Contracts. Part 15
804. So, also, if a contract be to be performed partly in one country, and partly in another country, it has a double operation, and each portion is to be interpreted according to the laws of ...
-Construction of Contracts. Part 16
2 In the case of Washburn v. Gould, 3 Story, 162, Mr. Justice Story says: There is no magic in particular words; but we must understand them as they stand and are used in the particular instrument; a...
-Construction of Contracts. Part 17
2 Duke of Northumberland v. Errington, 5 T. R. 526; Rich v. Rich, Cro. Eliz. 43. See also Gervis v. Peade, Cro. Eliz. 615; Woodyard v. Dannock, Cro. Eliz. 762; Broughton v. Conway, Dyer, 240. An agree...
-Construction of Contracts. Part 18
1 Bac. Abr. Grants, L. 1; Stukeley v. Butler, Hob. 172; Moore, 880. 2 See Cutler v. Tufts, 3 Pick. 272; Savile, 71, pi. 147; Weak v. Escott, 9 Price, 595; Crowley v. Swindles, Vaugh. 173; Ferguson ...
-Construction of Contracts. Part 19
I admit that where the terms of a grant are to impose burdens upon the public, or to create a restraint injurious to the public interest, there is sound reason for interpreting the terms, if ambiguou...
-Construction of Contracts. Part 20
3 Whitney v. Emmett, Baldwin, 316. 4 Co. Litt. 42, 183, against the grantor; because a conveyance by lease and release might pass a leasehold interest; and because, unless this construction were gi...
-Construction of Contracts. Part 21
1 Levy v. Gadsby, 3 Cranch, 180; Woodman v. Chesley, 39 Me. 45; Drew v. Towle, 10 Fost. 531; Fowle v. Bigelow, 10 Mass. 384; Welsh ft, Dusar, 3 Binn. 337; Emery v. Owings, 6 Gill, 191; Kidd v. Cromwel...
-Chapter XXI. Of The Admissibility Of Parol Evidence To Affect Written Agreements
819. This subject comes more properly under that branch of law which treats of evidence, yet the subject of interpretation seems necessarily to require a brief outline, at least, of the ...
-Parol Evidence Admissibility on Written Agreements. Part 2
1 And parol evidence is inadmissible to show that the contract was different from that expressed in the writings even of an unlettered person, who can neither read nor write, if the material parts of ...
-Parol Evidence Admissibility on Written Agreements. Part 3
1 Boardman v. Spooner, 13 Allen, 361. And see Warren v. Wheeler, 8 Met. 97; Dutton v. Gerrish, 9 Cush. 89; Raymond v. Raymond, 10 Cush. 134; Howe v. Walker, 4 Gray, 318; Galpin v. Atwater, 29 Conn. 93...
-Parol Evidence Admissibility on Written Agreements. Part 4
2 Plain and certain words of grant or contract cannot be varied or controlled by proof of a usage or custom at variance with their grammatical and obvious meaning. Goodyear v. Ogden, 4 Hill, 104; Mutu...
-Parol Evidence Admissibility on Written Agreements. Part 5
1 Lapham v. Whipple, 8 Met. 59; Brigham v. Rogers, 17 Mass. 573; Blanchard v. Trim, 38 N. Y. 225 ; Clark v. Merriam, 25 Conn. 576 (1857) ; Miles v. Roberts, 34 N. H. 245 (1856) ; Seago v. Deane, 4 Bin...
-Parol Evidence Admissibility on Written Agreements. Part 6
3 Thus, although a bill of sale of a vessel, absolute in its terms, expresses a certain sum as the consideration, the vendor may prove an oral agreement to pay an additional sum upon a certain conting...
-Parol Evidence Admissibility on Written Agreements. Part 7
2 1 Powell on Cont. 372, 384; Graves v. Key, 3 B. & Ad. 313. The words more or less in a broker's note for the sale of goods as follows : Sold to N. W. for account of S. C, five hundred bundles, m...
-Part II. Particular Contracts. Chapter XXII. Preliminary
831. Having now discussed the law as applicable to the subject of contracts in general, the next branch of the subject which we propose to consider is the law applicable to Particular ...
-Chapter XXIII. Bailments. - Degrees Of Diligence
832. A bailment is a delivery of a chattel, in trust for a specific purpose.1 Bailments are of three kinds: 1st. Deposits and Mandates, in which the trust is for the benefit of the bailor, or ...
-Bailments. - Degrees Of Diligence. Continued
1 This subject has recently come under consideration in the Privy Council (Giblin v. McMullen, Law R. 2 P. C. 317); and the language of the court is worthy of special remark. Lord Chelmsford, in deliv...
-Chapter XXIV. Deposits
835. A deposit is a bailment of a thing for custody, without compensation.1 Depositum est quod custodiendum alicui datum est. A deposit differs from the mutuum of the civil law, in that, in ...
-Deposits. Part 2
1 1 Dane, Abr. ch. 77, art. 2; 2 Kent, Comm. 560, 4th ed.; Lafarge v. Morgan, 11 Martin, 462; Foster v. Essex Bank, 17 Mass. 500; Edson v. Weston, 7 Cow. 278; Doorman v. Jenkins, 2 Ad. & El. 256; Stor...
-Deposits. Part 3
4 Story on Bailm. 74, 79; Dig. Lib. 50, tit. 17, 1. 23; Jones on Bailm. 47, 48; Bradish v. Henderson, 1 Dane, Abr. ch. 17, art. 11, 4; Nelson v. Macintosh, 1 Stark. 238. 845. T...
-Chapter XXV. Mandate
852. A mandate is a bailment of personal property, in regard to which the bailee agrees to do some act without recompense.1 The only difference between a mandate and a deposit is, that the ...
-Chapter XXVI. Gratuitous Loans
858. This class of bailment, which is called commodatum in the Roman law, and is denominated by Sir William Jones a loan for use (prêt à usage), is the gratuitous lending of an article 1 to ...
-Chapter XXVII. Pawn Or Pledge
868. A pawn or pledge is the deposit of an article as security for debt. It is distinguished from a mortgage by two incidents. First, a pledge only confers a special property upon the pledgee; ...
-Pawn Or Pledge. Part 2
C. B. (n. s.) 338; Hoffman v. Noble, 6 Met. 74; Warner v. Martin, 11 How. 209. 1 Jarvis v. Rogers, 13 Mass. 105. 2 See Tibbetts v. Flanders, 18 N. H. 284; Cartwright v. Wilmerding, 24 N. Y. 521;...
-Pawn Or Pledge. Part 3
2 Whitwell v. Brigham, 19 Pick. 117. 3 Comstock v. Smith, 23 Me. 202. 4 Foote v. Brown, 2 McLean, 369; In the matter of Dyott's Estate, 2 Watts & Serg. 463; Roberts v. Thompson, 14 Ohio St. 1; G...
-Pawn Or Pledge. Part 4
1 Story on Bailm. 308; 2 Kent, Cqmm. 581, 582; 2 Story on Eq. Jur. 1031-1035; Pothier, Pand. Lib. 20, tit. 5, n. 1, 2, 3, 18, 19; Kemp v. Westbrook, 1 Ves. 278; Cortelyou v. Lansing, 2 C...
-Chapter XXVIII. Contract Of Hire
881. This contract, which in the Roman law is called Locatio or Locatio-Conductio, is a contract by which compensation is given for the temporary use of a thing, or for the labor of a person.1 ...
-Locatio Rei - Hire Of Things
883. In cases of Locatio rei, the letter is bound to make a delivery of the bailment, according to custom and usage, and to refrain from any interference or obstruction in regard to it, while ...
-Locatio Rei - Hire Of Things. Part 2
Although, among the numerous cases on this subject, some may be found (such as the case of Lamb v. Palk, 9 C. & P. 629) in which the courts have made some distinctions which are rather subtile and as...
-Locatio Rei - Hire Of Things. Part 3
2 In Platt v. Hibbard, 7 Cow. 501, the contrary doctrine was held, but it was overruled by Foote v. Storrs, 2 Barb. 329. See also Schmidt v. Blood, 9 Wend. 268; Harrington v. Snyder, 3 Barb. 380; Burn...
-Chapter XXIX. Locatio Operis - Hire Of Labor And Services
889. The class of bailments denominated in the Roman law Locatio operis is, as we have seen, subdivided into two others: 1. Locatio operis faciendi; 2. Locatio operis mercium vehendarum. &...
-Locatio Operis - Hire Of Labor And Services. Part 2
2 Story on Bailra. 431; Jones on Bailm. 22, 53, 62, 97, 98, 120, 121; Coggs v. Bernard, 2 Ld. Raym. 909; Moneypenny v. Hartland, 1 C. & P. 352; 2 C. & P. 378; Pothier, Contrat de Louage, n. 425...
-Locatio Operis - Hire Of Labor And Services. Part 3
1 Hayward v. Leonard, 7 Pick. 184. In this case H. contracted in writing to build a house for L., by a certain time, of certain dimensions, and in a certain manner, on L.'s land, and afterwards built ...
-Deposits For Hire
898. 2. We now come to the consideration of the case of Locatio custodial, or deposits for hire; and bailees of this class are responsible, like other bailees who receive a reciprocal benefit ...
-Chapter XXX. Innkeepers
903. An innkeeper is a person who keeps open house, and supplies the public with board and lodging for hire.1 A private boarding-house,2, or lodging-house, a restaurant,3 or a coffeehouse, is ...
-Innkeepers. Part 2
1 Markham v. Brown, 8 N. H. 523. 2 Thompson v. Lacy, 3 B. & Al. 283. See Smith v. Scott, 9 Bing. 14; Taylor v. Monnot, 4 Duer, 116. 3 Wintermute v. Clark, 5 Sandf. 247. An innkeeper is no less s...
-Innkeepers. Part 3
1 McDaniels v. Robinson, 26 Vt. 317. In this case Mr. Chief Justice Redfield says: This case, on the evidence put in by the plaintiff, seems to present, in the first instance, the relation of guest i...
-Innkeepers. Part 4
1 1 Roll. Abr. 24, pl. 31. 2 Kent v. Shuckard, 2 B. & Ad. 803; Mason v. Thompson, 9 Pick. 283; Berkshire Woollen Co. v. Proctor, 7 Cush. 417. In Dawson v. Chamneyy 5 Q. B. 164, it is held that the ...
-Innkeepers. Part 5
3 Story on Bailm. 470; Jones on Bailm. 94; Com. Dig. Action on the Case for Negligence, B.; Kent v. Shuckard, 2 B. & Ad. 803; Calye'a Case, 8 Co. 32; 2 Kent, Comm. 592, 593. 4 Towson v. Havr...
-Lodging-House Keepers
913. The keeper of a lodging or boarding house is not an innkeeper, as we have already seen.5 He is only liable in virtue of the special contract he makes with each lodger, and is not bound to ...
-Chapter XXXI. Common Carriers
915. In respect to that class of bailments for hire, called Locatio mercium vehendarum, or the carriage of goods, there is no difference of obligation from that which attaches to other bailees ...
-Common Carriers. Part 2
But, if they are not to form a distinct new category, I should be strongly inclined to the opinion that they must be treated as common carriers. Their occupation is essentially a public one; they...
-Common Carriers. Part 3
4 Hersfield v. Adams, 19 Barb. 577. 5 Ante, 916. 6 See Fish v. Clark, 49 N. Y. 122 (1872). 1 This distinction is borne out by the statement of Mr. Justice Story (Story on Bailments, 49...
-Common Carriers. Part 4
1 Steele v. McTyer, 31 Ala. 667. And the occasional transportation of goods on a passenger train, or vice versd, has been thought not to make the carrier a common carrier to that extent. See Elkins v....
-Common Carriers. Part 5
In conflict with these views, it has been held in Pennsylvania, that ' a wagoner who carries goods for hire is a common carrier, whether transportation be his principal and direct business, or an occ...
-Common Carriers. Part 6
But if it be admitted that, in any case, the bursting of a boiler has proceeded from causes beyond human skill and vigilance, still the loss cannot be referred to the act of God. The steam-engine is ...
-Common Carriers. Part 7
In a note to the case of Coggs v. Bernard, in the American edition of Smith's Leading Cases, 43 Law Lib. 180, the American decisions are collated and reviewed, and a definition is given to the expres...
-Common Carriers. Part 8
3 Russell v. Niemann, 17 C. B. (N. S.) 163 (1864). 4 Philadelphia, etc, R. R. Co. v. Harper, 29 Md. 330; Lewis v. Ludwick, 6 Cold. 368; Express Co. v. Kountze Brothers, 8 Wall. 342. 5 Warden v. ...
-Common Carriers. Part 9
2 Abbott on Shipping, pt. 3, ch. 4, 1, 2, 5th ed.; 3 Kent, Comm. 216, 217; Park, Ins. ch. 3; Pickering v. Barclay, 2 Roll. Abr, 248; Barton v. Wolliford, Comberb. 56; 1 Phillips on Ins. ch. 13,...
-Common Carriers. Part 10
Binn. 127; Hollingworth v. Brodrick, 7 Ad. & El. 40; Story on Bailm. 413 a-413 d. 1 Whitesides v. Russell, 8 Watts & Serg. 44. 2 Smith v. Shepherd, cited supra; King v. Shepherd, 3 Story,...
-Common Carriers. Part 11
1 Citizens1 Bank v. Nantucket Steamboat Co., 2 Story, 37; King v. Shepherd, 3 Story, 3.56; Morse v. Slue, 1 Vent. 190, 238; Kemp v. Coughtry, 11 Johns. 107; Barclay v. Cuculla y Gana, 3 Doug. 389; Tre...
-Common Carriers. Part 12
1 Ante, 751. Chapman, 2 Kelly, 355; Shelden v. Robinson, 7 N. H. 157; Story on Bailin. 501; Bean v. Sturtevant, 8 N. H. 146. 1 Crouch v. Great Northern Railway Co., 9 Exch. 556; 25...
-Commencement of Carrier's Risk
935. A common carrier is not liable until the goods are delivered, either to him or to his authorized agent,3 for carriage, and accepted. The acceptance may be either actual or constructive; 4 ...
-Termination Of Carrier's Risk
938. The carrier's risk terminates as soon as the goods are deposited at their proper place of destination;3 or rather as soon as the owner has had a reasonable time to remove them.4 And such ...
-Termination Of Carrier's Risk. Part 2
The present case is precisely analogous to that of the deposit of a letter for transportation in the letter-box of a post-office, or foreign packet vessel, and to that of a deposit of articles for ca...
-Termination Of Carrier's Risk. Part 3
3 Hand v. Baynes, 4 Whart. 214; ante, Conditional Contracts; post, Performance. But see Dows v. Cobb, 12 Barb. 310: Lowe v. Moss, 12 I11. 477. 4 Merwin v. Butler, 17 Conn. 138; Young v. Smith, 3 Da...
-Termination Of Carrier's Risk. Part 4
1 Hyde v. Trent & Mersey Navigation Co., 5 T. R. 389. 2 Duff v. Budd, 3 Br. & B. 177; Bodenham v. Bennett, 4 Price, 34; Birkett v. Willan, 2 B. & Al. 356; Storr v. Crowley, M'Clel. & Y. 129, 138; S...
-Termination Of Carrier's Risk. Part 5
In the case at bar, the goods were transported over the defendants' road, and were safely deposited in their merchandise depot, ready for delivhousemen, in case the goods are destroyed by an accident...
-Termination Of Carrier's Risk. Part 6
943. Where the common carrier is a railway company, it is said that the presumption created by usage is that the goods are only to be carried to the platform or warehouse of the company and ...
-Termination Of Carrier's Risk. Part 7
1 The leading cases which support this view are Thomas v. Boston & Providence Railroad Co., 10 Met. 472; Norway Plains Co. v. Boston & Maine Railroad Co., 1 Gray, 270; Francis v. Dubuque, etc, Railroa...
-Liability Beyond The Carrier's Own Line
945. The question has often been raised whether a railway company accepting goods marked to be forwarded to a place beyond the terminus of its line, renders itself responsible as common ...
-Liability Beyond The Carrier's Own Line. Part 2
In Nutting v. Conn. River Railroad Co., 1 Gray, 502, Metcalf, J., said: On the facts of this case, we are of opinion that there must be judgment for the defendants. Springfield is the southern termin...
-Liability Beyond The Carrier's Own Line. Part 3
1 Weed v. The Saratoga Railroad, 19 Wend. 534; Slocum v. Fairchild, 7 Hill, 292; Waland v. Elkins, 1 Stark. 272; Wilcox v. Parmelee, 3 Sandf. 610; Hart v. Rensselaer & Saratoga Railroad, 4 Seld. 37; F...
-Special Contracts of Carriers
947. Such are the rights, duties, and liabilities of a common carrier, growing out of the general contract. We now come to the question, whether a carrier can limit his responsibility by an ...
-Effect Of Notices
950. And this leads naturally to the consideration of the effect of an indirect or implied contract growing out of a general or particular notice given by the carrier. By the rules of the old ...
-Effect Of Notices. Part 2
1 Stat. 11 George IV. & 1 William IV. ch. 68. See Angellon Carriers, 256; Story on Bailm. 8th ed. 554 a, where the statute is stated at length, with the decisions on the subject. 219 ...
-Effect Of Notices. Part 3
After all that has been or can be said in defence of these notices, whether regarded either as a ground for presuming fraud or implying a special agreement, it is impossible to disguise the fact that...
-Effect Of Notices. Part 4
1 2 Greenleaf on Evidence, 215; 1 Bell, Comm. 382; Orange County Bank v. Brown, 9 Wend. 115; Fish v. Chapman, 2 Kelly, 349; Story on Bailm. 557; Clarke v. Gray, 6 East, 564. 2 Orange ...
-Effect Of Notices. Part 5
1 See Peek v. North Staffordshire Railway Co., 10 H. L. C. 473, 493; 4 Best & Smith (Am. ed.), 1008, Blackburn, J.; Allday v. Great Western Railway Co., 11 Jur. (n. s.) 12; McManus v. Lancashire & Yor...
-Effect Of Notices. Part 6
Now, there is no doubt that if there is any deception, or any improper package sent by the plaintiff, the defendants are not liable for a damage arising to it; but, if there is any deception as to th...
-Chapter XXXII. Carriers Of Passengers
961. The rights, duties, and obligations of carriers of passengers differ from those of common carriers in some respects. Their contract is not in the nature of an insurance, like that of ...
-Carriers Of Passengers. Part 2
1 McElroy v. The Nashua & Lowell R. R. Co., 4 Cush. 400; Philadelphia & Reading Railroad Co. v. Derby, 14 How. 468, 486; Steamboat New World v. King, 16 How. 469, 474. 2 Philadelphia & Reading Rail...
-Carriers Of Passengers. Part 3
1 See Delamatyrw. Milwaukee, etc. Railroad Co., 24 Wis. 578 (1869). 2 Bissell v. N. Y. Central Railroad Co., 25 N. Y. 442. And this rule would be enforced in other States, if the cause of action ar...
-Carriers Of Passengers. Part 4
4 Per Air. Chief Justice Best, in Bremner v. Williams, 1 Car. & Payne, 414. See, also, Ware v. Gay, 11 Pick. 106; Ingalls v. Bills, 9 Metcalf, 1. 5 Sharp v. Grey, 9 Bing. 457, per Mr. Justice Bosan...
-Carriers Of Passengers. Part 5
The doctrine of the American courts is still more strict and explicit; and the general current of the authorities is, that the carrier of passengers is bound to the utmost care and diligence of very ...
-Carriers Of Passengers. Part 6
In Massachusetts it is held that carriers of passengers are bound to use the utmost care and diligence to prevent the injury which human foresight can guard against. Ingalls v. Bills, 9 Met. 1, wher...
-Carriers Of Passengers. Part 7
To the general views thus expressed we perceive no objection. Indeed, it is quite manifest, we think, that in fixing upon a measure of the obligation of common carriers by railway to the travelling p...
-Carriers Of Passengers. Part 8
1 Jackson v. Tollett, 2 Stark. 37; Mayhew v. Boyce, 1 Stark. 423; McKinney v. Neil, 1 McLean, 540. 2 Stokes v. Saltonstall, 13 Peters, 181; Gough v. Bryan, 5 Dowl. P. C. 765; McKinney v. Neil, 1 Mc...
-As To Luggage
972. With regard to baggage and luggage, it is said that carriers of passengers have the liabilities of common carriers.8 1 Story on Bailm. 599; 5 Petersdorff, Abr. Carriers, p. 55, ...
-As To Luggage. Continued
1 Upshare v. Aidee, 1 Com. 24; Citizens' Bank v. Nantucket Steamboat Co., 2 Story, 17. 2 See Wilson v. Grand Trunk Railway Co., 56 Me. 60; 57 Id. 139. 3 Becher v. Great Eastern Railway Co., Law R. ...
-Carriers Of Passengers By Water
976. Carriers by water are bound by the same general rules as carriers by land. There are, however, certain rights and duties specifically pertaining to carriers by water, which it may be as ...
-Chapter XXXIII. Postmasters And Mail Contractors
979. Postmasters. - The post-office establishment is created by statute, for the purpose of revenue and public convenience. The postmaster-general enters into no contract with individuals, but ...
-Chapter XXXIV. Telegraph Companies
981. The rights and liabilities of telegraph companies in contract arise only with those who send messages. It has, indeed, been suggested in one case 1 that such companies may be liable in ...
-Chapter XXXV. Sale of Personal Property
990. The next subject of which we propose to treat is the Contract of Sale of Personal Property.1 Any person who can make any other contract may make a contract of sale. The doctrines of law ...
-The Subject
992. The thing to be sold must have an actual or possible existence, and must be capable of delivery. Thus, if A. sell a horse or certain goods to B., and at the time of the sale the horse be ...
-Chapter XXXVI. The Price
994. There can be no sale without a price. Sine pretio nulla venditio est.1 Unless there be a valuable consideration, it is a gift. So, also, the price must be in money, or in its negotiable ...
-Chapter XXXVII. Consent Of The Parties
995. Unless there be a mutual consent of both parties1 to terms which are either certain, or capable of being rendered certain by reference to some definite criterion, there is no sale.2 Thus, ...
-Chapter XXXVIII. Of The Form Of A Contract Of Sale
997. The simplest form of a sale is when the price is paid, and the article is immediately delivered. But inasmuch as there can be a sale of a thing in futuro, and also since the thing sold ...
-Of The Form Of A Contract Of Sale. Part 2
1 Union Bank of Louisiana v. Coster, 1 Sandf. 563. See Bainbridge v. Wade, 16 Q. B. 89; 1 Eng. Law & Eq. 236. 2 Stapp v. Lill, 1 Camp. 242; 9 East, 348. 3 Kenworthy v. Schofield, 2 B. & C. 945. ...
-Of The Form Of A Contract Of Sale. Part 3
4 Hinde v. Whitehouse, per Ld. Ellenborough, 7 East, 558, 568; Powell v. Edmunds, 12 East, 6, 7; Blagden v. Bradbear, 12 Ves. 466, 472. 5 Birch v. Depeyster, 4 Camp. 385; Phillips & Amos on Evid. p...
-Of The Form Of A Contract Of Sale. Part 4
1006. Secondly. We now come to the second exception mentioned in the statute; namely, the giving something in ing the ground of both the prior cases. But Lord Loughborough, who delivered the ...
-Of The Form Of A Contract Of Sale. Part 5
Among the American cases, Crookshank v. Burrell, 18 Johns. 58, decided in the Supreme Court of New York in 1820, is leading. In that case the plaintiff sued upon a contract by which he had agreed to m...
-Of The Form Of A Contract Of Sale. Part 6
1 Ruth, iv. 7. It will thus be seen that, while different constructions of the seventeenth section have been adopted in different States, the decisions of the same State are in harmony; and if the ...
-Of The Form Of A Contract Of Sale. Part 7
It would be very difficult to reconcile the cases on this subject; and the differences between them may be accounted for by the exact words of the seventeenth section of the Statute of Frauds not hav...
-Of The Form Of A Contract Of Sale. Part 8
In general there can be little doubt of the correctness of this last proposition. But it cannot be universally true; for the buyer of goods may sell them before he has had any opportunity of inspectin...
-Of The Form Of A Contract Of Sale. Part 9
4 Price v. Lea, 1 B. & C. 156. 5 See Gibbs v. Benjamin, 45 Vt. 124 (1872). 6 Miles v. Gorton, 2 Cromp. & M. 504; 4 Tyr. 295; Townley v. Crump, 5 Nev. & M. 608; Bloxam v. Sanders, 4 B. & C. 941; ...
-Of The Form Of A Contract Of Sale. Part 10
1 Farina v. Home, 16 M. & W. 119. In this case, where an order was given upon a wharfinger, Parke, B., said: This warrant is no more than an engagement by the wharfinger to deliver to the consignee,...
-Chapter XXXIX. Delivery Sufficient To Transfer The Property In The Goods Sold
1016. We come now to the question, what constitutes a sufficient technical delivery of the goods, so as to vest the right of property in the vendee. Delivery completes the contract of sale,1 ...
-Delivery Sufficient To Transfer The Goods Sold. Part 2
1 Tempest v. Fitzgerald, 3 B. & Al. 680; Goodall v. Skelton, 2 H. Bl. 316. 2 Holdernessv. Shackels, 8 B. & C. 612; Dan. & Lloyd, 203. 3 Wing v. Clark, 24 Me. 366; Houdlette v. Tallman, 14 Me. 40...
-Delivery Sufficient To Transfer The Goods Sold. Part 3
1021. But where the terms of a contract of sale show an intention not to transfer the possession of property until after the performance of some act by the seller,4 and especially where a ...
-Delivery Sufficient To Transfer The Goods Sold. Part 4
4 X. Y. Firemen Ins. Co. v. De Wolf, 2 Cow. 56. So where the vendor proposed to the vendee to take back a part of the goods sold, and to give his note on time for the same, and the vendee accepted the...
-Delivery Sufficient To Transfer The Goods Sold. Part 5
1 Barrett v. Pritchard, 2 Pick. 512; Bishop v. Shillito, 2 B. & Ald. 329, n.; Hill v. Freeman, 3 Cush. 257; Hotchkiss v. Hunt, 49 Me. 213 (1860). See Smith c. Mercer, Law R. 3 Exch. 51 (1867). Where i...
-Delivery Sufficient To Transfer The Goods Sold. Part 6
3 Leeds v. Wright, 3 B. & P. 320; Dixon v. Baldwen, 5 East, 175; Bradford v. Marbury, 12 Ala. 520. Proof that, before the lumber which had been contracted for was delivered, the seller was summoned as...
-Delivery Sufficient To Transfer The Goods Sold. Part 7
453; Slingerland v. Morse, 8 Johns. 474; Barr v. Myers, 3 Watts & Serg. 295. In Vermont and New York, however, portable goods must be delivered at the domicile of the creditor; but if the goods be ...
-Delivery Sufficient To Transfer The Goods Sold. Part 8
2 Bawls v. Deshler, 3 Keyes, 572 (1867). 3 Chaplin v. Rogers, 1 East, 194; Hurry v. Mangles, 1 Camp. 452; 2 Stark. Ev. 591, and cases cited; Hollingsworth v. Napier, 3 Caines, 182; Wilkes v. Ferris...
-Delivery Sufficient To Transfer The Goods Sold. Part 9
2 Where one partner sold goods which were in the hands of warehousemen, giving at the same time a written order upon the warehousemen for the goods, and notice to them that the goods are no longer the...
-Delivery Sufficient To Transfer The Goods Sold. Part 10
1 Slubey v. Heyward, 2 H. Bl. 504; Rohde v. Thwaites, 6 B. & C. 393; Hanson v. Meyer, 6 East, 614. 2 2 Kent, Comm. lect. 39, p. 505; Sands v. Taylor, 5 Johns. 395; Adams v. Minick, cited 5 Serg. & ...
-Chapter XL. Stoppage In Transitu
1036. After the contract of sale is completed, the vendor still retains the right to reassume the possession of goods, while on their way to the vendee, if they be unpaid for, and if the ...
-Stoppage In Transitu. Part 2
3 Bos. & Pul. 119. See Ash v. Putnam, 1 Hill, 302; Naylor p. Dennie, 8 Pick. 198. 1 Bartram v. Farebrother, Dan. & Lloyd, 42; 1 M. & P. 515; 4 Bing. 579. 2 Sweet v. Pym, 1 East, 4; Siffken p. Wr...
-Stoppage In Transitu. Part 3
1045. So, also, where goods are landed on a wharf, at a distance from the vendee's place of business, yet if it be proved that the wharf is the place where the vendee usually received goods, ...
-Stoppage In Transitu. Part 4
6 In Newhall v. Vargas, 15 Me. 314, 321, Mr. Justice Shepley says, The position that it does not proceed upon the ground of rescinding the contract also shows that the principle upon which it does pr...
-Chapter XLI. Express And Implied Warranty
1050. The question which comes naturally next in order, after the contract of sale is completed, and the goods are reduced to the possession of the vendee, is, whether the goods are of the ...
-Express Warranty
1051. Every affirmation made by the vendor, at the time of the sale,2 in relation to the goods, amounts to a warranty, provided it appear in evidence to be so intended.3 But no store, and ...
-Express Warranty. Part 2
2 In Morrill v. Wallace, 9 N. H. 111, Mr. Justice Parker, after commenting on the cases, says: We think that the matter does not depend upon the question whether it was a representation or not, or wh...
-Express Warranty. Part 3
1 Lamb v. Crafts, 12 Met. 353, 355. 2 Budd v. Fairmaner, 8 Bing. 48. In this case, said Tindal, C. J., a written instrument was produced by the plaintiff to show the nature of the contract betw...
-Implied Warranty
1060. There is scarcely a subject in the law more perplexed and unsatisfactory than the law relating to implied warranty. The old rule of the common law in relation to sales was caveat emptor. ...
-Implied Warranty. Part 2
In the late case of Morley v. Attenborough, 3 Exch. 500, this doctrine has, however, been disputed. It is said by Baron Parke, after a review of the old authorities on this question: From the authori...
-Implied Warranty. Part 3
In this country, Mr. Chancellor Kent, in his Commentaries (vol. ii. lect. 39, p. 478), states the distinction, and says: In every sale of a chattel, if the possession be at the time in another, and t...
-Implied Warranty. Part 4
1 Spratt v. Jeffery, 10 B. & C. 249; Rodrigues v. Habersham, 1 Speers, 314; Smith v. The Bank of South Carolina, Riley, Eq. 113; McCoy v. Artcher, 3 Barb. 323; Purvis v. Rayer, 9 Price, 488; Earry v. ...
-Implied Warranty. Part 5
Again in Strong v. Barnes, 11 Vt. 221, where a carding machine, not in the possession of the vendor, was sold by a written contract of sale, without warranty of title contained therein, but it appeare...
-Implied Warranty. Part 6
In Dresser v. Ainsworth, 9 Barb. 620, the court clearly lay down the contrary doctrine. Welles, P. J., says: It is a principle of law that in every sale of personal property there is an implied warra...
-Implied Warranty. Part 7
1064. In an executory contract of sale the vendee may refuse to accept the article sold unless the vendor make him a clear title;6 and if he have advanced the purchase-money, he may, upon ...
-Implied Warranty. Part 8
1 Ibid.; Case v. Hall, 24 Wend. 103; Beecker v. Vroomau, 13 Johns. 302. 2 Dig. Lib. 12, tit. 4, De Condictione causa, 16; Celsus, lib. 3. Degestorum. 3 Dig. Lib. 19, tit. 4; De Rerum Perm...
-Implied Warranty. Part 9
Justinien a transports ces decisions dans son Digeste et les a érigées en loi; en sorte que, tirant leur force du caractere de loi, et non des cir-constances particuliéres du fait d'apres lesquelles ...
-Implied Warranty. Part 10
1 Stevens v. Smith, 21 Vt. 90; Bluett v. Osborne, 1 Stark. 384. 2 Oneida Manuf. Co. v. Lawrence, 4 Cow. 444; Rose v. Beatie, 2 Nott & McCord, 538. 3 Mody v. Gregson, Law R. 4 Ex. 49 (1868). &...
-Implied Warranty. Part 11
5 Bull v. Robison, 10 Exch. 342; 28 Eng. Law & Eq. 586. 1 Jones v. Bright, 5 Bing. 533; 8. c. 1 Dan. & Lloyd, 304. See Brown v. Edgington, 2 M. & G. 279; Dickson v. Jordan, 11 Ire. 166; Burns v. Fl...
-Implied Warranty. Part 12
1 Jones v. Bright, 5 Bing. 533; Brown v. Edgington, 2 M. & G. 279; Carnochan v. Gould, 1 Bailey, 179; Brenton v. Davis, 8 Blackf. 317. The same rule applies to a mechanic or artisan who undertakes to ...
-Implied Warranty. Part 13
1 3 Black. Coram. 165; Van Bracklin v. Fonda, 12 Johns. 468; Osgood v. Lewis, 2 Harr. & Gill, 495; Winsor v. Lombard, 18 Pick. 57; 2 Kent, Coram. 479. Upon a contract to supply provisions, not only is...
-Chapter XLII. Fraudulent Misrepresentation Or Concealment
1080. Fraud vitiates every contract, and may consist either in misrepresentation or in concealment.1 1081. Every misrepresentation, whether fraudulent or not, which actually deceives ...
-Chapter XLIII. Remedy For A Breach Of The Contract Of Sale
1085. If, after the goods have been delivered, and the time of payment has arrived, the vendee refuse or neglect to pay for them, the vendor may have an action for goods sold and delivered, ...
-Remedy For A Breach Of The Contract Of Sale. Part 2
1 Voorhees v. Earl, 2 Hill, 288. See post, 977; Masson v. Bovet, 1 Denio, 69; Ferguson v. Oliver, 8 S. & M. 332; Christy v. Cummins, 3 McLean, 386; Coolidge v. Brigham, 1 Met. 550; Conner v. He...
-Remedy For A Breach Of The Contract Of Sale. Part 3
1 Hanna v. Mills, 21 Wend. 90. See post, 1343. 2 Ibid. 3 Hennequin v. Sands, 25 Wend. 640. 4 Boulter v. Arnott, 3 Tyrw. 267; 1 Cr. & M. 333; Long on Sales, Rand'sed. 476; Langfort v. ...
-Remedy For A Breach Of The Contract Of Sale. Part 4
1 Woodward v. Thacher, 21 Vt. 580; Buffington v. Quantin, 17 Penn. St. 310. 2 Street v. Blay, 2 B. & Ad. 456; Story on Agency. If a vendee' on credit leave the goods in the possession of the vendor...
-Remedy For A Breach Of The Contract Of Sale. Part 5
1 Freeman v. Clute, 3 Barb. 425. 2 Douglass Axe Co. v. Gardner, 10 Cush. 88; Street v. Blay, 2 B. & Ad. 460. 3 Poulton v. Lattimore, 9 B. & C. 259; 4 Man. & Ry. 208; Adam v. Richards, 2 H. Bl. 5...
-Remedy For A Breach Of The Contract Of Sale. Part 6
1 Cory v. Thames Iron Works Co., Law R. 3 Q. B. 181 (1868), explaining Hadley v. Baxendale, 9 Exch. 341. 2 Where pork was sold with a warranty that the barrels would not leak, the purchaser stored ...
-Remedy For A Breach Of The Contract Of Sale. Part 7
1104. Where the vendor has acquired possession of property wrongfully, and without the knowledge, connivance, or assent of the owner, as where he has stolen or found them, or holds them merely ...
-Chapter XLIV. Guaranty And Suretyship
1107. The relation of a guarantor or a surety to the other parties to a contract is so similar that it is proper to consider the nature of their undertaking together. In both cases the ...
-Chapter XLV. Of The Form Of A Contract Of Guaranty Or Suretyship, As Affected By The Statute Of Frauds
1113. The English Statute of Frauds enacts that no action shall be brought, whereby to charge the defendant upon any special promise to answer for the debt, default, or miscarriage of another ...
-Of The Form Of A Contract Of Guaranty Or Suretyship, As Affected By The Statute Of Frauds. Continued
2 Birkmyr v. Darnell, 1 Salk. 27. 3 Brady v. Sackrider, 1 Sandf. 514. 4 Keate v. Temple, 1 B. & P. 158. See D'Wolf v. Rabaud, 1 Pet. 476; Lane v. Burghart, 1 Q. B. 933; Goodman v. Chase, 1 B. & ...
-Chapter XLVI. Guaranty Of A Bill Of Exchange Or Promissory Note
1119. Where a general guaranty of a promissory note or bill of exchange is made upon the instrument, and is not limited to a particular person or restricted in its terms, but purports to be a ...
-Chapter XLVII. Construction of The Contract
1122. The general rule applicable to the liability of guarantors or sureties is that their liability is only coextensive with that of the principal upon the particular transaction in regard to ...
-Construction of The Contract. Part 2
2 Arlington v. Merricke, 2 Saund. 403; United States v. Kirkpatrick, 9 Wheat. 720. Arlington v. Merricke turned upon the particular nature of the recital in the bond, which was that the principal had ...
-Construction of The Contract. Part 3
2 Bell v. Bruen, 1 How. 169; Lawrence v. McCalmont, 2 How. 426. So if a guaranty is drawn with reference to a mortgage as an already existing writing to be thereafter executed, the two are to be const...
-Construction of The Contract. Part 4
1 Cremer v. Higginson, 1 Mason, 323; Fellows v. Prentiss, 3 Denio, 517, 520; Campbell v. French, 6 T. R. 200. 2 Cremer v. Higginson, 1 Mason, 323. 3 Fellows v. Prentiss, 3 Denio, 512. 4 White...
-Chapter XLVIII. Discharge Of Party
1124. Inasmuch as the liability which the guarantor or surety intends to assume must depend upon a full knowledge of the terms of the original agreement, it becomes the duty of the party ...
-Discharge Of Party. Part 2
1 Stone v. Compton, 5 Bing. N. C. 142. Railton v. Mathews, 10 Clark & F. 935 (1844), was also a case where a party became surety on a bond for an agent, payment of which he afterwards refused on th...
-Discharge Of Party. Part 3
Where communication does take place between the creditor and the surety, the duty of the creditor cannot be better illustrated than by the case of the assured; but, in the case of an insurance, commu...
-Discharge Of Party. Part 4
In the North British Ins. Co. v. Lloyd, 10 Exch. 523; 28 Eng. Law & Eq. 456 (1854), the ground is clearly taken that actual fraud must be made out, and that the mere concealment of a material fact is ...
-Discharge Of Party. Part 5
1 This was the ground upon which the case of Hamilton v. Watson, 12 Clark & F. 119, was decided. No fraud was alleged, but simply a concealment of material facts, and the ground of the decision was th...
-Discharge Of Party. Part 6
1 Browne v. Carr, 7 Bing. 508; 8. c. 2 Russ. 600; Langdale v. Parry, 2 Dowl. & Ry. 337. In a suit against the principal and sureties on a bond given by a debtor arrested on execution, a discharge of t...
-Discharge Of Party. Part 7
2 If several persons at the same time, acting together, sign a bond as surety for the principal, and one surety's name is afterwards erased by him without the knowledge of the others, they are release...
-Discharge Of Party. Part 8
1 A surety to a bond who signs and delivers it to the principal, upon his promise to procure certain other sureties, is bound, although the latter delivers it to the obligee without any such names, un...
-Discharge Of Party. Part 9
1132. The guarantee is also bound to exercise proper diligence, and to perform all the duties incumbent upon him;2 proving solvency, and of injury flowing from want of notice, upon the ...
-Discharge Of Party. Part 10
1 Mayhew v. Crickett, 2 Swanst. 185. A creditor who holds the personal contract of his debtor with a surety, and has or receives subsequently property from the principal as security for his debt, must...
-Discharge Of Party. Part 11
1134. A mere forbearance or omission to sue by the creditor will not discharge the guarantor unless such creditor be under some obligation to sue, and unless his forbearance would prejudice ...
-Discharge Of Party. Part 12
2 Gibbons v. M'Casland, 1 B. & Ald. 690. 3 Mayor of Kingston v. Horner, Cowp. 102; Oswald v. Legh, 1 T. R. 270. 4 Calvert v. Gordon, 3 Man. & Ry. 124; s. c. 7 B. & C. 809; 4 Russ. 581; s. c. 1 M...
-Chapter XLIX. Rights Of Surety And Guarantor
1140. A surety or guarantor of a debt may, if his character as such be apparent on the face of the instrument1 upon which suit is brought, require the creditor to proceed against the principal ...
-Rights Of Surety And Guarantor. Part 2
1 Craythorne v. Swinburne, 14 Ves. 162; Parsons v. Briddock, 2 Vern. 608; Wright v. Morley, 11 Ves. 12; 1 Story, Eq. Jur. 459 a to 459 g, 499, 3d ed.; Copis v. Middleton, Turn. & ...
-Rights Of Surety And Guarantor. Part 3
4 Peter v. Rich, 1 Ch. Rep. 34; Hole v. Harrison, 1 Ch. Cas. 246; Layer v. Nelson, 1 Vern. 456. See Deering v. Earl of Winchelsea, 2 Bos. & Pul. 270; s. c. 1 Cox, 318. In Henderson v. McDuffee, 5 N. H...
-Chapter L. Of The Appropriation Of Payments
1153. The general rule in regard to the appropriation of payments on account is that the party who pays money has a right to apply the payment as he sees fit; if there be several debts due ...
-Chapter LI. Bills Of Exchange And Promissory Notes
1157. A bill of exchange is a written order or request, and a promissory note is a written1 promise, to pay to a certain person named, or to such person or order (or, what is the same thing, ...
-Bills Of Exchange And Promissory Notes. Part 2
3 Thompson v. Sloan, 23 Wend. 71; Irvine v. Lowry, 14 Pet. 293; Redfield & Bigelow's L. C. 1-7. But see Swetland v. Creigh, 15 Ohio, 118; White v. Richmond, 16 Ohio, 5; Butler v. Paine, 8 Minn. 324. ...
-Bills Of Exchange And Promissory Notes. Part 3
1170. Acceptance supra protest, or for honor, occurs where, upon dishonor of the paper, a third person, or some party to the paper other than the drawee, accepts the bill for the honor, i. e. ...
-Bills Of Exchange And Promissory Notes. Part 4
1178. The drawer of a bill of exchange is, for many purposes, regarded as the first indorser of the paper; and his contract is the same as that of an indorser, his liability being conditional ...
-Bills Of Exchange And Promissory Notes. Part 5
6 Barton v. Baker, supra. 7 See Renner v. Bank of Columbia, 9 Wheat. 581; Cookendorfer v. Preston, 4 How. 317; Redfield & Bigelow's L. C. 306-309; Staples v. Franklin Bank, 1 Met. 43. 8 Staples ...
-Bills Of Exchange And Promissory Notes. Part 6
1 Bowling v. Harrison, 6 How. 248. 2 Peirce v. Pendar, 5 Met. 352, 356; Sheldon v. Benham, 4 Hill, 129, 133; Story on Promissory Notes, 323. 3 Shaylor v. Mix, 4 Allen, 351. 4 Eagle Ban...
-Bills Of Exchange And Promissory Notes. Part 7
6 Simpson v. Turney, 5 Humph. 419; Turner v. Leech, 4 B. & Ald. 451; Marr v. Johnson, 9 Yerg. 1; Beale v. Parrish, 20 N. Y. 407; Palen v. Shurtleff, 9 Met. 581; Story on Promissory Notes, 303. ...
-Checks
1198. A check is a written order or request, addressed to a bank, or to persons carrying on the business of bankers, by a party having money in their hands, and requesting them to pay, on ...
-Chapter LII. Landlord And Tenant
1204. The Statute of Frauds, 29 Car. II. ch. 3, in its first section, provides that all leases, estates, interests in freehold or terms of years, etc., made or created by livery of seisin only ...
-Chapter LIII. Commencement, Extent, And Duration Of A Lease
1212. The lease being made, the next question which arises is in regard to the time at which the term of the lease is to commence, and its extent and duration. A lease by deed was formerly held ...
-Chapter LIV. Rights And Liabilities Of The Landlord
1220. We now come to the Rights and Liabilities of the Landlord and Tenant in respect of each other; and in the first place, as to the Rights and Liabilities of the Landlord. When a lease is ...
-Rights And Liabilities Of The Landlord. Continued
Such being the evidence in the case, the jury held that it proved an eviction of the tenant; and we think their conclusion was correct. It is no longer necessary that there should be a physical e...
-Chapter LV. Rights And Liabilities Of The Tenant
1226. The tenant is bound to treat the premises demised to him in such a manner that no injury may accrue to them other than that which is necessary, and incidental to their use. He is, ...
-Liability Of The Tenant For Repairs
1237. There is no obligation upon a landlord, in the absence of express contract to that effect, to do substantial repairs,2 but the duty to make repairs devolves upon the tenant;3 but what ...
-Liability Of The Tenant For Rent
1246. The liability of the lessee to pay rent depends upon his being put in possession, or afforded the opportunity and power to take possession, of the demised premises, and of being secured ...
-Chapter LVI. Of The Determination of The Tenancy
1251. The relation of landlord and tenant may be determined, 1st. By the happening of any event upon which the lease is limited; 2d. By the death of the lessor, if he be tenant for life, but ...
-Expiration Of The Lease By Its Own Limitation, And Holding Over
1252. Where the tenant holds for a fixed and limited period, or until a certain event occurs,2 the occurrence of the event or the passing of the time determines the lease, and the landlord may ...
-Notice To Quit
1253. We have seen that notice to quit is unnecessary where the lease has expired by its own limitation.6 But where, in such case, the landlord receives rent, he impliedly acknowledges a ...
-Notice To Quit. Continued
7 Thunder dem. Weaver v. Belcher, 3 East, 449. 8 Keech v. Hall, 1 Doug. 22. 9 Birch v. Wright, 1 T. R. 380. 10 Johnstone v. Hudlestone, 4 B. & C. 932; Gulliver v. Burr, 1 W. Bl. 596; Right v....
-Forfeiture
1264. The relation of landlord and tenant may be dissolved by the breach of some condition, express or implied, and the reversioner's entry thereupon. But a fraudulent misrepresentation by a ...
-Entry Of The Lessor
1265. The estate of a tenant at will may be determined by the entry of the lessor5 upon the premises for that purpose, and possession will thus be restored to him, subject to-the right of the ...
-Merger
1267. A term for years may be extinguished by merger. Merger arises when a greater estate and a less coincide and meet in one and the same person, without any intermediate estate; 3 in which ...
-Surrender
1268. A term of years may, also, be determined by a surrender. Surrender is the yielding up of an estate for life or years to him that hath the next immediate estate in reversion or remainder, ...
-Chapter LVII. Assignment of The Lease
1273. Where the lease is assigned1 by the tenant to a third person, the original tenant still continues liable to the lessor on all his express covenants, even though the lessor assent to the ...
-Chapter LVIII. Rights And Liabilities Of The Outgoing Tenant
1277. After the tenancy is dissolved, and the lessee has quitted possession,1 certain rights still remain to him, in virtue of his tenancy, 1278. 1st. He has a right to enter upon ...
-Chapter LIX. Action Of Assumpsit For Use And Occupation
1284. The landlord's remedy for rent is, by common law, upon the demise. It is a matter savoring of the realty, for which debt or covenant is the proper remedy; and assumpsit will not lie ...
-Chapter LX. Master And Servant
1289. We now propose to consider the contract of hiring and service as between master and servant.1 Their rights and duties as principals and agents are not peculiar, and have already been ...
-Chapter LXI. Rights, Duties, And Liabilities Of The Master
1295. In the next place, as to the rights, duties, and liabilities of the master. When the contract is for a specific time, as if the master agrees to pay wages to the servant for a year, the ...
-Chapter LXII. Eights, Duties, And Obligations Of The Servant
1302. In the first place, a servant is bound to perform the service according to his agreement. If, therefore, he agree to serve his master for a definite period, he must serve during the ...
-Eights, Duties, And Obligations Of The Servant. Continued
1 Moses v. Stevens, 2 Pick. 332; Thomas v. Dike, 11 Vt. 273; Corpe v. Overton, 10 Bing. 252; Moulton v. Trask, 9 Met. 577; Stone v. Den-nison, 13 Pick. 1; Breed v. Judd, 1 Gray, 460. 2 Per Lord Abi...
-Eights Of Master And Servant On Dissolution Of The Contract
1308. In the next place, as to the dissolution of the contract, and the rights of the master and servant consequent thereupon. If the hiring be for a definite period, and be an entire contract,...
-Eights Of Master And Servant On Contract Dissolution. Continued
2 See Rossiter v. Cooper, 23 Vt. 522; Seaver v. Morse, 20 Vt. 620. 3 Pilkington v. Scott, 15 M. & W. 657; Hartley v. Cummings, 5 C. B. 247; s. c. 2 C. & K. 433. 4 Archard v. Hornor, 3 C. & P. 34...
-Part III. Defences And Damages. Defences. Chapter LXIV. Defences - Preliminary
1317. Having completed the consideration of the law applicable to contracts in general, and also the principles governing those contracts which are of a peculiar nature, or which seemed to ...
-Chapter LXV. Performance Of A Contract
1321. The first of these special defences which we propose to consider is Performance of the Contract; and the first question that arises is, By whom the contract is to be performed. The ...
-Performance Of A Contract. Part 2
2 West v. Murph, 3 Hill, S. C. 284; Appleton v. Chase, 19 Me. 74; Howe v. Huntington, 15 Me. 350. 3 Mill Dam Foundery v. Hovey, 21 Pick. 437; Coombe v. Greene, 11 M. & W. 480; Knight v. New Eng. Wo...
-Performance Of A Contract. Part 3
1328. When there is any uncertainty as to whether the time allowed is to be inclusive or exclusive of particular days stated in the contract, the question must be determined by the agreement ...
-Performance Of A Contract. Part 4
99; Catesby's Case, 6 Coke, 62; Lacon v. Hooper, 6 T. R.224; 3 Burge, Comm. on Col. and For. Law, pt. 2, ch. 20, p. 776, 777. 1 Lester v. Garland, 15 Ves. 248; Pellew v. Inhabitants of Wonford, 9 B...
-Performance Of A Contract. Part 5
1 Farnsworth v. Garrard, 1 Camp. 38. And see Appleby v. Myers, Law R. 2 C. P. 651 (1867). 2 Duncan v. Blundell, 3 Stark. 6. See, also, Duffit D.James, 7 East, 480. 3 Ante, 1074; Ollivant v...
-Performance Of A Contract. Part 6
1 On the same ground it has been very recently held that permanent illness of an apprentice, rendering it impossible for him to fulfil the contract of apprenticeship, is a good excuse even to his fath...
-Performance Of A Contract. Part 7
Phillpotts v. Evans [5 M. & W. 475] is to the same effect. There, upon a contract to accept wheat, the defendant gave notice, before the time for the delivery, that he would not accept it. Afterward,...
-Performance Of A Contract. Part 8
1 Tufnell v. Constable, 3 Nev. & Per. 47; 7 Ad. & El. 798; Story on Bailments, 36. See ante, 587; Fischel v. Scott, 15 C. B. 69; 28 Eng. Law & Eq. 404. But in the case of a substitute so...
-Performance Of A Contract. Part 9
1 Richmond v. Smith, 15 Wall. 429 (1872). 2 As to the powers of the parties to a contract of sale to rescind it, see Story on Sales, ch. xiv. 3 See Bailey v. James, 11 Grat. 468. 4 Towers v. ...
-Performance Of A Contract. Part 10
4 Thorpe v. Thorpe, 1 Salk. 171; s. c. 1 Ld. Raym. 665; Peeters v Opie,2 Saund. 350; Campbell v. Jones, 6 T. R. 570; Ikin v. Brook. 1 B payment of money, etc, and the clay is to happen after the thing...
-Performance Of A Contract. Part 11
1 Duke of St. Alban's v. Shore, 1 H. Black. 270; Large v. Cheshire, 1 Vent. 147; Dakin v. Williams, 11 Wend. 67. See Butler v. Manny, 52 Mo. 497 (1873). 2 W. Bl. 1312, cited in 1 H. Bl. 273, in a n...
-Chapter LXVI. Payment
1340. Another defence which may be made to a contract is Payment. To enable a party to set up the defence of payment there must be the concurring intention of the party making and the party ...
-Payment. Part 2
Stewart v. Lee, Mood. &Malk. 158; Smith v. Jameson, 1 Esp. 114. But see Can v. Read, 3 Atk. 695. 1 Com. Dig. Accord, B. 1, B. 2; Bac. Abridg. Accord & Satisfaction, A. 2 Fitch v. Sutton, 5 East,...
-Payment. Part 3
1345. But the taking a negotiable note for a pre-existing debt is, in some States, primâ facie a discharge of such debt, and not a mere collateral security therefor, and the burden of proof is ...
-Payment. Part 4
And a receipt of payment given on the bill for goods sold, a receipt being by law explainable by evidence aliunde, does not bar the vendor from recovering for goods sold, where the acceptance of the ...
-Payment. Part 5
1350. When payments of debts are made, a question often arises as to the manner in which they are to be appropriated when there are different debts due to the person to whom payment is made. ...
-Chapter LXVII. Receipts
1353. In the next place, as to the effects of Receipts. A receipt for money paid constitutes generally only presumptive proof of payment, and may be explained by parol evidence,1 or it may be ...
-Chapter LXVIII. Accord And Satisfaction
1354. Another defence is Accord and Satisfaction. An accord is an agreement between two parties to substitute some equivalent in satisfaction of a claim due from one to the other.1 It must be ...
-Accord And Satisfaction. Part 2
1 Blinn v. Chester, 5 Day, 359; Reed v. Bartlett, 19 Pick. 273. An agreement by a bank with a shareholder to take his stock at an agreed price for cash, or to allow him credit for it on any debt due f...
-Accord And Satisfaction. Part 3
2 Sard v. Rhodes, 1 M. & W. 153; Wiseman v. Lyman, 7 Mass. 286; Harris v. Johnston, 3 Cranch, 311. See also ante, 1344, and cases cited. See supra. 4. In all cases where the party intends t...
-Chapter LXIX. Arbitrament And Award
1359. Connected with the last defence which we have considered is another which is called the plea of Arbitrament and Award. An arbitrament or award is the judgment or decree of persons ...
-Arbitrament And Award. Part 2
4 Stone v. Phillipps, 4 Bing. N. C. 39, 40; Houston v. Pollard, 9 Met. 164; Com. Dig. Arbitrament, E. 4, E. 5; Boston Water Power Co. v. Gray, 6 Met. 158; Howard v. Cooper, 1 Hill, 44. 5 Gray v. Gw...
-Arbitrament And Award. Part 3
44; Nichols v. Rensselaer Mutual Ins. Co., 22 Wend. 125; Skeels v. Chick-ering, 7 Met. 316; Pearson v. Archbold, 11 M. & W. 477; Lutz v. Lin-thicum, 8 Pet. 165; Bigelow v. Maynard, 4 Cush. 317; French...
-Arbitrament And Award. Part 4
3 Ibid.; Bridges v. Bedingfield, 2 Mod. 27; ante, Conditional Contracts, 32. 4 Ibid.; Lumley v. Hutton, 1 Cro. Jac. 447; Godfrey v. Godfrey, 2 Mod. 303. 1869. In the construction o...
-Arbitrament And Award. Part 5
But where the whole matter of law and fact is submitted, it may be open for the court to inquire into a mistake of law, arising from matter apparent on the award itself; as where the arbitrator has, ...
-Arbitrament And Award. Part 6
4 2 Story, Eq. Jur. 1456. 5 2 Story, Eq. Jur. 1456. A letter from the arbitrator to one of the parties, stating the grounds of his award, is not admissible to show an error in law. Ho...
-Chapter LXX. Pendency Of Another Action - Former Judgment, Or Verdict
1379. This brings us to the consideration of another defence, namely: The Pendency of another Action, or a Former Verdict or Judgment. And in the first place, as to the pendency of another ...
-Pendency Of Another Action - Former Judgment, Or Verdict. Continued
1 King v. Hoare, 13 M. & W. 494-504; Laughton v. Taylor, 6 Ib. 695; Brinsby v. Gold, 12 Mod. 201; Seers v. Turner, 2 Ld. Raym. 1102; Sparry's Case, 5 Coke, 62 a. But see, in this country, Smith v. The...
-Former Judgment Or Verdict
1383. In the next place, as to a Former Judgment or Verdict. A judgment may always be pleaded in bar of a subsequent suit upon the identical cause of action, although the form of the two ...
-Former Judgment Or Verdict. Continued
1 1 U. S. Stat, at Large, ch. 11, p. 122 (May 26, 1790); subsequently extended to the territories, 2 Ib. ch. 56, p. 298 (March 27, 1801). 2 See Bigelow on Estoppel, 195. 3 Ibid. 4 Mills v. Durye...
-Chapter LXXI. Release - Alteration
1390. In the next place, as to the force and effect of a Release. A release may be made either by the express agreement of the parties, or may take effect by mere operation of law. A parol ...
-Release - Alteration. Part 2
1 Lyman v. Clark, 9 Mass. 235; Rich v. Lord, 18 Pick. 325; McIntyre v. Williamson, 1 Edw. Ch. 34; Payler v. Homersham, 4 M. & S. 426; Jackson v. Stackhouse, 1 Cow. 126; Dunbar v. Dunbar, 5 Gray, 103; ...
-Release - Alteration. Part 3
6 Tuckerman v. Newhall, 17 Mass. 583; Hutton v. Eyre, 6 Taunt. 289; Lacy v. Kynaston, 12 Mod. 548; Ward v. Johnson, 6 Munf. 6. See ante, Joint and Several Contracts, 62, 63. Sewall v. Sparrow, ...
-Release - Alteration. Part 4
2 Pigot's Case, 11 Co. 26 6; Markham v. Gonaston, Cro. Eliz. 626; Master v. Miller, 4 T. R. 320; 5 T. R. 367; Miller v. Stewart, 4 Wash. C. C. 26; Mollett v. Wackerbarth, 5 C. B. 181; Martendale v. Fo...
-Release - Alteration. Part 5
1 Aldous v. Corn well, Law R. 3 Q. B. 573 (1868), modifying anything contrary in Pigot's Case, 11 Rep. 27 a, or in Master v. Miller, 4 T. R. 320. 2 Hutchins v. Scott, 2 M. & W. 809, and cases cited...
-Chapter LXXII. Tender
1403. In the next place, as to Tender. A tender of money, in satisfaction of a debt, if made before the issuing of the writ, is a defence to costs of suit and damages,1 and interest upon the ...
-Tender. Part 2
1 Bro. Tend. pl. 39; Bac. Abr. Tender, B.; Warner v. Harding, Latch, 70. 2 Black v. Smith, Peake, 88. 3 Goodland v. Blewith, 1 Camp. 477. 4 Thetford v. Hubbard, 22 Vt. 440. 5 Evans v Judki...
-Tender. Part 3
3 Douglas v. Patrick, 3 T. R. 683; Leatherdale v. Sweepstone, 3 C. & P. 342; Dickinson v. Shee, 4 Esp. 68; Dunham v. Jackson, 6 Wend. 22; Read v. Goldring, 2 M. & S. 86; Strong v. Blake, 46 Barb. 227....
-Tender. Part 4
2 Lane County v. Oregon, 7 Wall. 71; Perry v. Washburn, 20 Cal. 318. But see Rhodes v. O'Farrell, 2 Nev. 60, if there has been a judgment for the taxes. 3 1 Saund. 33 b, note (2); Bull. N. P.; Pool...
-Chapter LXXIII. Statute Of Limitations
1414. In the next place, the Statute of Limitations may be pleaded as a defence to an action upon a contract. At common law, no lapse of time creates a bar to an action, although it may raise ...
-Statute Of Limitations. Part 2
3 Chievly v. Bond, 4 Mod. 105. 4 Spring v. Gray, 5 Mason, 505; 6 Pet. 151; Forbes v. Skelton, 8 Sim. 335. 5 Inglis v. Haigh, 8 M. & W. 769. This case was an action of indebitatus assumpsit in wh...
-Statute Of Limitations. Part 3
1419. Under this statute, it has been held that the party who avers a disability must prove it clearly;l but when a party is once shown to be within the exception, he will be presumed to ...
-Statute Of Limitations. Part 4
15 Vt. 727; but in England the statute has been held to commence on the temporary return of the debtor, although not known to the creditor. Gregory v. Hurrill, 5 B. & C. 341; Holl v. Hadley, 2 Ad. & E...
-Statute Of Limitations. Part 5
1 Ibid. Per Chancellor Kent, in Demarest v. Wynkoop, 3 Johns. Ch. 129; Doe d. Duroure v. Jones, 4 T. R. 300; Doe d. George v. Jesson, 6 East, 80; Stowel v. Zouch, Plowd. 353; Jackson v. Wheat, 18 John...
-Statute Of Limitations. Part 6
1426. This statute cannot be set up as a bar to an action at law or in equity by a defendant who has been guilty of fraud unknown by the plaintiff at any time within the six years.3 But it ...
-Statute Of Limitations. Part 7
The English decisions upon this subject have gone great lengths, - greater, indeed, in our judgment, than any sound interpretation of the statute will warrant, and in some instances to an extent whic...
-Statute Of Limitations. Part 8
1 Bell v. Morrison, 1 Pet. 351, 360; Clementson v. Williams, 8 Cranch, 72; Tanner v. Smart, 6 B. & C. 609; A'Court v. Cross, 3 Bing. 329. A simple acknowledgment of a debt without any qualification ma...
-Statute Of Limitations. Part 9
In the case of Bland v. Haselrig, 2 Vent. 151, where the action was against four, upon a joint promise, and the plea of the Statute of Limitations was put in, and the jury found that one of the defen...
-Statute Of Limitations. Part 10
1 As to the construction to be placed upon these words, see Smith v. Thome, 18 Q. B. 131; Sidwell v. Mason, 2 H. & N. 306, 310. In the American courts, so far as our researches have extended, few ...
-Statute Of Limitations. Part 11
But since the decisions in Atkins v. Tredgold and Slater v. Lawson, the Court of King's Bench have twice decided that payment by one of two joint makers of a promissory note is sufficient to take the ...
-Statute Of Limitations. Part 12
4 Grenfell v. Girdlestone, 2 Y. & C. 662; Wakeman v. Sherman, 5 Seld. 86; Godwin v. Culley, 4 H. & N. 373. 5 Mountstephen v. Brooke, 3 B. & Ald. 141; Peters v. Brown, 4 Esp. 46; Clark v. Hougham, 2...
-Statute Of Limitations. Part 13
1 Shoemaker v. Benedict, 1 Kern. 176. In this case Allen, J., said: Another fact relied upon to distinguish this case from Van Keuren v. Parmelee is, that the payments were made before the Statute of...
-Chapter LXXIV. Statute Of Frauds
1433. In the next place, the Statute of Frauds may be pleaded in defence of a contract not made in compliance with its requisitions.1 And if money be paid or an article be delivered by a party ...
-Statute Of Frauds. Part 2
3 Alger v. Scoville, 1 Gray, 391; Eastwood v. Kenyon, 11 Ad. & El. 446; 3 P. & Dav. 282; Aldrich v. Ames, 9 Gray, 76 (1857). See, also, Jepherson v. Hunt, 2 Allen, 417; Perkins v. Littlefield, 5 Allen...
-Statute Of Frauds. Part 3
3 Bligh v. Brent, 2 Y. & C. 268. 4 Gould v. Mansfield, 103 Mass. 408 (1869). 5 Purcell v. Miner, 4 Wall. 513 (1866). 1 Rodwell v. Phillips, 9 M. & W. 505. In Scorell v. Boxall, 1 Y. & J. 399, Ba...
-Statute Of Frauds. Part 4
2 Bank of Lansingburgh v. Crary, 1 Barb. 542; Warren v. Leland, 2 Barb. 619. 1442. The next clause requires that all contracts be in writing unless they are to be performed within one year ...
-Statute Of Frauds. Part 5
4 Peter v. Compton, Skin. 353; Fenton v. Emblers, 3 Burr. 1278; Wells v. Horton, 4 Bing. 40; Blanding v. Sargent, 33 N. H. 239. 5 Lyon v. King, 11 Met. 411. And see Richardson r. Pierce, 7 R. I. 33...
-Statute Of Frauds. Part 6
Mass. 230. In Packard v. Richardson, 17 Mass. 122, where the action was on an indorsement of a promissory note in these words, We acknowledge ourselves to be holden as surety for the payment of the w...
-Statute Of Frauds. Part 7
1 See cases cited supra. 2 Jackson v. Lowe, 1 Bing. 9. See, also, Dobell v. Hutchinson, 3 Ad. & El. 355. 3 Boydell v. Drummond, 2 Camp. 157. 4 Cooper v. Smith, 15 East, 103; Archer v. Baynes,...
-Statute Of Frauds. Part 8
4 Williams v. Byrnes, 1 Moore, P. C. (N. S.) 154 (1863), a carefully considered case on this subject. See, also, Williams v. Lake, 2 El. & E. 349 (1859); Vandenbergh v. Spooner, 4 H. & C. 519 (1866). ...
-Statute Of Frauds. Part 9
1 Ante, 790; Maberley v. Sheppard, 3 M. & S. 442; 8. c. 10 Bing. 99; Baldey v. Parker, 2 B. & C. 44; Phillips v. Bistolli, 2 B. & C. 513; Miles v. Gorton, 2 C. & M. 504; Morton v. Tibbett, 15 Q...
-Statute Of Frauds. Part 10
1462. By the Statute of 9 Geo. 4, c. 14, 7, which was passed in extension of the Statute of Frauds, it is provided, That the said enactments shall extend to all contracts for the sale ...
-Statute Of Frauds. Part 11
3 Clinan v. Cooke, 1 Sch. & L. 40; O'Herlihy v. Hedges, Ib. 129; Jackson's Assignees v. Cutright, 5 Munf. 318; 2 Story, Eq. Jur. 760, and cases cited; Leak v. Morrice, 2 Ch. Cas. 135; Alsopp v....
-Chapter LXXV. Set-Off
1468. In the next place as to Set-off. The subject of set-off is a cross debt or claim on which a separate action might be sustained, due to the party defendant from the party-plaintiff. This ...
-Chapter LXXVI. Penalties And Liquidated Damages
1472. Where a certain gross sura of money is reserved, in an agreement, to be paid in case of the non-performance of such agreement, it is generally to be considered as a penalty,1 the legal ...
-Penalties And Liquidated Damages. Part 2
1 See Beale v. Hayes, 5 Sandf. 640. 2 Tayloe v. Sandiford, 7 Wheat. 13; Astley v. Weldon, 2 Bos. & Pul. 346; Merrill v. Merrill, 15 Mass. 488; 2 Stark. Ev. (5th Am. ed.) 620, and cases there collec...
-Penalties And Liquidated Damages. Part 3
We think that some of these covenants are clearly certain in their nature, and that the damages for their breach may be readily ascertained by a jury. Such is the covenant against wrongfully detainin...
-Penalties And Liquidated Damages. Part 4
Blackf. 206; Dakin v. Williams, 17 Wend. 447; 2 Story, Eq. Jur. 1313-1318. 1 Fletcher v. Dyche, 2 T. R. 36. See, also, Crisdee v. Bolton, 3 C. & P. 241. 2 Sainter v. Ferguson, 7 C. B. 716...
-Penalties And Liquidated Damages. Part 5
It has, however, been held, and rightly so, as I think, that where a seaman, hired for the outward and return voyage, was improperly dismissed by the captain before the service was completed, a recov...
-Chapter LXXVII. Interest
1479. Simple interest is recoverable in an action of assumpsit, or in an action upon the case wherever there is either, 1st, an express or implied contract therefor; or, 2d, whenever there has ...
-Interest. Part 2
1 Ilsley v. Jewett, 2 Met. 168; Gibbs v. Bryant, 1 Pick. 118; Rensselaer Glass Factory v. Reid, 5 Cow. 601; Winthrop v. Carleton, 12 Mass. 4; Ekins v. East India Co., 1 P. W. 396, upon default of t...
-Interest. Part 3
1 Norris's Appeal, 71 Penn. St. 106, 125, and cases cited. And where the trust funds cannot be discriminated, the cestui que trust may select the most profitable. Ib. 126. 2 DeWolf v. Johnson, 10 W...
-Interest. Part 4
1 Andrews v. Pond, 13 Pet. 65, 77, 78. In this case a bill of exchange was drawn in New York, payable in Alabama, for an antecedent debt, and a discount was made from the bill greater than the interes...
-Interest. Part 5
In Allen v. Kemble, 6 Moore, P. C. 314, the court say: The drawer, by his contract, undertakes that the drawee shall accept, and shall afterwards pay the bill according to its tenor, at the place and...
-Interest. Part 6
I am aware that a different rule in respect to balances of accounts and debts due and payable in a foreign country was laid down in Martin v. Franklin (4 Johns. 125) and Scofield v. Day (20 Johns. 10...
-Interest. Part 7
1 Dodge v. Perkins, 9 Pick. 368; Weeks v. Hasty, 13 Mass. 218; Wood guilty of a breach of trust in using money belonging to the estate which they are to administer for their own private profit or adva...
-Interest. Part 8
In support of the argument for allowing interest on interest from the time it becomes due, we are referred to the case of Dodge v. Perkins, 9 Pick. 368. There is some general statement in that case, ...









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