This section is from the book "Cyclopedia Of Architecture, Carpentry, And Building", by James C. et al. Also available from Amazon: Cyclopedia Of Architecture, Carpentry And Building.
Any promise, not under seal, requires what is called consideration to render it legally a binding contract. If a promise be under seal the formality of the seal is the mark of the contract, as is consideration in the case of contracts not under seal. A valuable consideration in the sense of the law is said to consist either in some right, interest, profit or benefit accruing to one party, or some forbearance, detriment, loss, or responsibility given, suffered or undertaken by the other. The consideration must be of value in the eye of the law; but the question of degree of value is of no importance; the slightest consideration, so long as the law recognizes it as valuable, will support the largest promise. Consequently upon a mere promise by A to give X $100, no obligation arises; A's promise being without consideration. But if A offers X $100 for some service, which X performs, the performance, however unimportant, is good consideration for the promise. Another promise is also good consideration for a promise A says to X: "I will give you $100 if you will agree to draw me plans for a house." X agrees to draw the plans; the contract is then complete, and X's promise is consideration for A's, just as A's is consideration for X's. It is well to note a difference between the two foregoing examples. If A says "I will pay you for making plans," the offer can be accepted only by making the plans; until the offer is accepted it can be revoked, and A is not bound. On the other hand, if A oilers to pay a certain sum if X will agree to do the work, and X agrees, A is bound, and X is protected, from that time. The best protection it will be seen comes through the latter sort of contract, consist-ing in outstanding obligations on both sides. In the former case there is really no contract, but only an offer, until the time of acceptance by performance of one party.
The Statute of Frauds, which in somewhat varying form exists generally throughout the States, requires certain contracts to be in writing. The more important of these classes for the present purposes are:
Contracts to charge a person upon a special promise to answer for the debt, default, or misdoing of another; that is, contracts of guaranty.
Contracts for the sale of lands or any interest in or concerning them.
Contracts not to be performed within one year of the time of making.
Contracts for the sale of goods, wares, and merchandise of value above a certain amount (generally fifty dollars). In this case, however, a partial delivery of the goods, as a partial payment to bind the bargain, takes the place of writing,
Upon such contracts, except as stated as to contracts of sale, no action can be maintained unless the agreement or some memorandum or note thereof is in writing and signed by the party to be charged, or in his behalf by some person duly authorized thereto.
An architect may have connection with contracts of any of these sorts and the law should be borne in mind. The only class which will be especially discussed here is that of contracts not to be performed within one year from the time of making. In general, the statute does not include agreements which are merely not likely to be performed, but has regard to such as according to a fair interpretation, and in view of existing circumstances, do not admit of performance within a year from the time of making. If, for instance, there is no stipulation as to time, but performance depends upon some event which may occur within a year, the statute does not apply. But if it is the manifest intent of the parties that the contract shall not be executed within a year, the mere fact that it is physically possible it should be sooner completed, makes no difference.
In case a contract of one of the sorts above enumerated is not in writing, a party may recover upon it in spite of the statute, unless the other party takes advantage of the defense of the statute in his pleading in court. And where one party to a contract which is void under the statute, and which the other party refuses to carry out, has performed his part of the agreement without objection by the other party, he may recover compensation upon an implied contract, although the express contract is unenforceable. So if an architect renders services under an oral contract which is not to be performed within a year, and the other party refuses to pay for such services, the architect, while he cannot recover for breach of the express agreement, may recover the reasonable value of the services rendered, according to an implied contract. Moreover, in such a case the express contract can be given in evidence as tending to show the value of the services. Although the value so shown cannot be enforced, it is sometimes held that no more than the contract price can be recovered. This is one of the cases before referred to where the doctrine of implied contracts is of importance as furnishing a remedy to a party to an unenforceable express contract.