A Commentary On The Law Of Contracts | by Francis Wharton

A contract is an interchange of legal rights...

Title	A Commentary On The Law Of Contracts
Author	Francis Wharton
Publisher	Kay And Brother
Year	1882
Copyright	1882, Francis Wharton
Amazon	A Commentary On The Law Of Contracts

By Francis Wharton, Ll.D., Author Of Treatises On Conflict Of Laws, On Evidence, On Agency, On Negligence, And On Criminal Law.

In Two Volumes.

Preface: For several reasons the older English text-books on contracts, and the American treatises based on them, have ceased to represent the actual state of the law in England and in this country. 1. Rece...

Preface. Continued: Addenda Et Corrigenda Vol. I., page 199, at end of note 5, add:- Jordan v. Elliott, 12 Weekly Notes, 56. 493, 10th line, for selling, read delivering. 552, at end of note 1, add:- De...

Chapter I. Constituents Of Contract. Proposal And Acceptance: A contract is an interchange of legal rights, sec 1. Parties must he both hound, sec 2. Terms used must be susceptible of definite construction, sec 3. Concurrence must be as to the same thing, sec 4....

I. As To Their Working: (1) Unilateral and bilateral (unilate-rales and bilaterales). This distinction is based, not upon the way in which the contract is formed, since in this respect there is no contract that is not bilate...

II. As To Mode Of Formation: Contracts in this respect are divided into real, verbal, literal, and consensual. The Roman system prescribed certain forms as essential to the validity of contracts, on the same principle as is adopt...

II. As To Mode Of Formation. Part 2: Sec 3 It is not necessary that all the terms in a contract should be free from ambiguity. If it were, no contract could be framed, since it is impossible to use terms which are entirely free from d...

II. As To Mode Of Formation. Part 3: ' Infra, sec 670 ; Prichard v. Ovey, L. J. & W. 396 ; Kensington v. Phillips, 5 Dow, 61. In Miller v. Kendig, 55 Iowa, 174, it was held that a contract in which the grantee agreed to account to his...

II. As To Mode Of Formation. Part 4: Sec 4 There must not only be a concurrence of mind at a particular time, but this concurrence must be as to a particular thing. There must be, to constitute this, as will presently be seen more ful...

II. As To Mode Of Formation. Part 5: Sec 5 If terms be provisionally agreed to by the parties with the understanding that they are preliminary to a future and fuller contract, then the prior imperfect agreement is regarded as merged i...

II. As To Mode Of Formation. Part 6: Sec 645 The tendency of recent authorities, says Mr. Pollock, 3d ed. 41, citing the above cases, is to discourage any fixed rule or canon as governing these cases. It is not to be supposed, ...

II. As To Mode Of Formation. Part 7: Sec 8 Contracts, as we have just seen, may be by conduct, or they may be by word of mouth, or they may be by writing, or they may be by record; and in these relations they may present innumerable v...

II. As To Mode Of Formation. Part 8: Sec 9 When there is no time fixed as the limit within which a proposal is to bind, it is effective only for as long a period as may be supposed to have been within the contemplation of the parties,...

II. As To Mode Of Formation. Part 9: Sec 10 Supposing a proposal to be made orally, the negotiators conversing face to face, or by telephone, there can be no question that if the person addressed hesitates, the person proposing can wi...

II. As To Mode Of Formation. Part 10: Sec 11 When a proposal, therefore, is fully acted on by the party addressed, this establishes between the parties a contractual relation which cannot be broken unless by the provisions of the trans...

II. As To Mode Of Formation. Part 11: Sec 13 Can a proposer bind himself to keep open a proposal until a specific date, so that an acceptance any time within that date would be good ? That he can is affirmed by leading authorities in t...

II. As To Mode Of Formation. Part 12: 2 Cooke v. Oxley, 3 T. R. 653, which is supposed to rule that an offer which is to remain open till a specified date does not bind the proposer, does not, as will be seen, sustain that position. In th...

II. As To Mode Of Formation. Part 13: Sec 14 We have seen2 that a continuous proposal only binds for a reasonable time. Whether a proposal is continuous depends not only upon the language used, but upon the mode of the negotiation. If...

II. As To Mode Of Formation. Part 14: Sec 16a What has just been said applies to subscriptions to joint enterprises.7 Whether such subscriptions bind, as having sufficient consideration, will be hereafter considered.8 At present we ha...

II. As To Mode Of Formation. Part 15: Sec 18 That a proposal made by me to another, in writing or through a messenger, does not bind me until I know it is accepted, may be conceded in all cases in which the proposal, either from its ex...

II. As To Mode Of Formation. Part 16: 2 See discussion, supra, sec 13. In Adams v. Lindsell, 1 B. & Ald. 681, the proposal was, We now offer you 800 tods of weather fleeces, etc., receiving your answer in course of post. Here the prop...

II. As To Mode Of Formation. Part 17: A contract by telegram is complete when the acceptance by telegram is forwarded (infra, sec 27). 1 Thayer v. Ins. Co., 10 Pick. 326 ; Bryant v. Booze, 35 Ga. 438; supra, sec 17. made when it com...

II. As To Mode Of Formation. Part 18: Sec 21 The time of acceptance, as above fixed, determines the date of the contract.6 Until such acceptance, the buyer has no insurable interest;7 nor can he until acceptance, maintain an action for...

II. As To Mode Of Formation. Part 19: Sec 23 An exception to the maxim that a proposal must be accepted to be binding, is supposed to be found in the common law rule that a grant under seal binds the grantor, if held as an escrow, or d...

II. As To Mode Of Formation. Part 20: Sec 25a Circular letters, with no specific drawee mentioned, may be placed in the same category. There is a proposal, and when the conditions of the proposal are complied with, there is an acceptan...

II. As To Mode Of Formation. Part 21: Sec 26 From general proposals for interchange of services are to be distinguished bids for customers. A merchant may advertise to sell a particular article at a particular price. This, however, doe...

II. As To Mode Of Formation. Part 22: Sec 28 Much difficulty, as we will hereafter see, has arisen from the inexact use, in decisions referring to contracts, of the words void and voidable. A contract is executed under the influe...

Chapter II. Infants: Infancy at common law embraces twenty years, sec 29. When last year of infancy expires, sec 30. Contracts of infants voidable, sec 31. Other contracting party bound, sec 32. Only infant ...

Infants. Part 2: Sec 31 Although there is much ambiguity in the language of the old books in this respect, it is now settled that the contracts of an infant, when not made null by statute, are not void, but voidabl...

Infants. Part 3: Sec 33 No person but the infant, or his personal representatives, is entitled to set up his infancy.5 It is a privilege, however, on which he is entitled to fall back in connection with contracts c...

Infants. Part 4: Sec 36 It has, however, been doubted whether engagements by an infant are not absolutely void when prejudicial to his interests.9 And there may be cases where the policy of the law requires that su...

Infants. Part 5: Sec 37 There is no reason, on principle, why, if an infant's promise to pay by word of mouth is voidable, it should become void when put in the shape of negotiable paper. And the present tendency i...

Infants. Part 6: Sec 40 The better opinion is that an infant's contract of partnership is only voidable; and hence, if the partnership be continued by him without disaffirmance, when he arrives at full age, it bind...

Infants. Part 7: Sec 43 The evils which resulted in England from improvident bargains by minors, and the growing couviction in that country, that the line between v. Leighton, 5 N. H. 343; McCoy v. Huffman, 8 Cow. ...

Infants. Part 8: Sec 44 The statute just noticed sprang from the conviction, that in the long run less harm would be done by absolutely incapacitating infants, except so far as concerns the purchase of necessaries,...

Infants. Part 9: Sec 46 Whether a disaffirmance of part of a contract is a disaffirmance of the whole, depends upon its divisibility. Ordinarily, however, when the ground of disaffirmance goes to incapacity, this p...

Infants. Part 10: Sec 48 Where an infant, when within a few months of his majority, entered into a business arrangement, in carrying on of which a store was leased, a proportion of whose rent was paid by the infant,...

Infants. Part 11: Sec 48a We may, therefore, hold that where an infant repudiates, on arriving at age, a contract by which he has obtained assets he has in infancy wasted, he cannot be made to pay an equivalent for ...

Infants. Part 12: Sec 50 As has been already incidentally noticed,4 an executory contract, i. e., one which requires the action of a court to enforce if performance be refused, cannot, unless for necessaries as here...

Infants. Part 13: Sec 53 Trover, not being based on contract, is not barred by a plea of infancy.5 The same rule applies to replevin.6 That an infant cannot be made liable for tort for injuries sustained by a horse ...

Infants. Part 14: Sec 54 Even the Infants' Relief Act, which in England makes absolutely void an infant's contracts, does not preclude a party from recovering in equity from an infant property that he has obtained b...

Infants. Part 15: Sec 57 Supposing that there be no fraud on the part of the other contracting party, it is not necessary to the validity of an affirmance, that the person making it should be aware of its legal effe...

Infants. Part 16: Sec 59 A continuance, after majority, in possession of land purchased during minority may ratify ;9 and so may the payment of rent on a lease taken during minority;10 and the carving out of inferio...

Infants. Part 17: Sec 62 Where an executory contract by an infant is ratified by him conditionally, after he comes of age, the condition must be complied with, in order to enable the ratification to operate.2 A prom...

Infants. Part 18: Sec 64 Were an infant not liable for necessaries supplied to him at periods when he is absent from home, or without the support of parents or guardians, the privilege of minority, designed for his ...

Infants. Part 19: Sec 67 The object of restrictions of this class being to postpone business capacity until the age of twenty-one, articles furnished to an infant to enable him to carry on trade, no matter how essen...

Infants. Part 20: Sec 70 As necessaries cannot be regarded goods supplied to an infant living at home and there suitably maintained.1 And articles with which an infant is already supplied by parent or guardian are n...

Infants. Part 21: Sec 72 Money is not ordinarily included under the head of necessaries.7 Even though actually spent by the infant in the purchase of necessaries, it cannot, such is the prevalent English opinion, be...

Infants. Part 22: Sec 74 We have already seen1 that an infant by continuing in possession after majority may be estopped from asserting an adverse claim, and that enjoyment of the fruits of a contract may estop him ...

Chapter III. Married Women: At common law, married women, with certain limitations, cannot contract, sec 76. But woman with separate estate may hind such estate, sec 77. May contract for services, but not for goods or money, sec...

Married Women. Part 2: Sec 77 A married woman, who has a separate estate, is, in England, capable in equity of binding such estate under certain limitations. These limitations are thus condensed by Mr. Pollock from recen...

Married Women. Part 2. Continued: 1 Pike v. Fitzgibbon, L. R. 17 Ch. D. 454 ; 44 L. T. N. S. 562 ; Rice v. R. R., 32 Oh. St. 380 ; Pfirsching v. Falsh, 87 111. 260 ; Collins v. Underwood, 33 Ark. 265. 2 Ibid. 3 Morrell v Cowan, ...

Married Women. Part 3: Sec 77a When a married woman contracts for remuneration for her own services, she is, as is said, the meritorious cause of action, and she may sue on the contract, the coverture being no defence on...

Married Women. Part 4: Sec 79 Both in England and in the United States, statutes have been adopted by which the common law restriction just stated has been more or less removed.4 The statutes in force in this relation ar...

Married Women. Part 5: Sec 80 In England, under the divorce statute, a wife, when judicially separated from her husband, becomes, for business purposes, a feme sole; and a wife deserted by her husband who has obtained a...

Married Women. Part 6: Sec 82 The contracts executed by a married woman before her marriage, bind, at common law, her husband, and enure to his benefit, should he execute them and reduce their proceeds into his possessio...

Married Women. Part 7: Sec 85 Whenever the wife is competent to act, she may appoint her husband as agent; and as agent he may manage her separate estate.5 The question is so sanctioned his wife's pledging his credit, b...

Married Women. Part 8: Sec 87, A husband's liability for necessaries furnished to his wife living separate from him is limited to the cases in which this separation is compelled by his misconduct And the of the husband, ...

Married Women. Part 9: Sec 88 The wife's power to bind her husband for necessaries ceases, also, when they are living in voluntary separation, she receiving from him an allowance for her support.8 Notice to tradesmen tha...

Married Women. Part 10: Sec 90 A contract for the future separation of husband and wife, being against the policy of the law, is invalid.5 It is otherwise as to agreements for immediate separation, which, when there is su...

Married Women. Part 11: Sec 92 It has been already seen4 that a husband is liable for necessaries furnished the wife. Under the head of necessaries are to be included such reasonable supplies of dress and ornament as are ...

Chapter IV. Aliens: Capacity of aliens limited, sec 93. Contracts with alien enemies void, sec 94. Sec 98 As is shown more fully in another work,1 aliens, in all jurisdictions in the United States, have now the ...

Chapter V. Agents: Agent may bind principal by contract, sec 96. Sec 96 The power of agents to bind their principals by contract is discussed at large in another work, where the authorities are grouped and critici...

Chapter VI. Lunatics, Drunkards, And Spendthrifts: Total mental incapacity precludes contract, sec 98. By early authorities lunacy not generally ground for avoidance, sec 99. Subsequent tendency to hold such contracts void, sec 100. Exception...

Lunatics, Drunkards, And Spendthrifts. Part 2: Sec 11 Administrators may avoid contract of insane decedent, sec 12. And so of representatives and guardians, sec 13. And so of party himself, sec 14. Lunatic liable for torts, sec 15. Idiots ar...

Lunatics, Drunkards, And Spendthrifts. Part 3: Sec 101 Even supposing insanity to exist to such an extent as to preclude a party from making a binding contract, his estate will nevertheless be liable for necessaries furnished for his support. S...

Lunatics, Drunkards, And Spendthrifts. Part 4: Sec 103 A party who has mental capacity enough to make a contract which would bind him if fair, may, nevertheless, either in person or through his representatives, set up mental deficiencies as a d...

Lunatics, Drunkards, And Spendthrifts. Part 5: Sec 104 The question of mental incompetency rarely presents itself detached from that of undue influence.5 A person whose mind is enfeebled may make a will in solitude, but he cannot make a contrac...

Lunatics, Drunkards, And Spendthrifts. Part 6: Sec 105 Whether parties dealing with a lunatic have notice of his lunacy is to be inferred from the circumstances of the case. The mere fact that the bargain he makes is adventurous is no such noti...

Lunatics, Drunkards, And Spendthrifts. Part 7: Sec 107a A man of non-sane memory, it is said by Coke,3. may, without the consent of another, purchase lands; and idiots, madmen, lepers, deaf, dumb, and blind, minors, and all other reasonabl...

Lunatics, Drunkards, And Spendthrifts. Part 8: Sec 110 Were a monomaniac precluded from executing contracts relating to topics to which his monomania does not extend, the business power of the country would be seriously impaired, since some of ...

Lunatics, Drunkards, And Spendthrifts. Part 9: Sec 111 As has been already incidentally noticed, a party who seeks to rescind a contract made by him when insane, is ordinarily bound, as a preliminary, to restore to the other party, when practic...

Lunatics, Drunkards, And Spendthrifts. Part 10: Sec 113 On the one hand, proof of latent lunacy at the time of marriage will not avoid a marriage; since otherwise, few persons could be sure of legitimate descent, and titles by succession would, ...

Lunatics, Drunkards, And Spendthrifts. Part 11: Sec 113a It has been argued, that as an insane person is irresponsible, a divorce on ground of adultery cannot be granted against an insane person.1 To this it may be replied that divorce statutes ...

Lunatics, Drunkards, And Spendthrifts. Part 12: Sec 115 The same right passes to the administrators and heirs of a party claimed to be a lunatic3 Sec 116 On the guardian, curator, committee, or assignee of a person found to be a lunatic th...

Lunatics, Drunkards, And Spendthrifts. Part 13: Sec 118 Intoxication is a term embracing many degrees. In some countries, few bargains are struck at the fairs where business is largely done without one at least of the parties having previously t...

Lunatics, Drunkards, And Spendthrifts. Part 14: Sec 121 A drunkard, as is the case with lunatics and infants, is liable for necessaries sold him; though the action in such cases should be for goods sold and delivered, and not for an account stat...

Lunatics, Drunkards, And Spendthrifts. Part 15: Sec 124 In several European states, as is elsewhere shown,1 process is given by which persons shown to be irreclaimable spendthrifts are put under the charge of guardians, and decreed to be diveste...

Chapter VII. Corporations: A corporation is an artificial person created to facilitate business, sec 127. Corporations can bind themselves by parol, sec 128. Contracts prohibited by charter invalid, sec 129. Liable on ...

Corporations. Part 2: Sec 128 A corporation, however, being a purely ideal structure, can only act through its agents. It used to be said that only by contracts which are attested by its' seal could it be bound. Its sea...

Corporations. Part 3: Sec 129 A contract in express contravention of the charter, or of the legislation, under which the corporation comes into existence, is invalid.2 But it does not follow that because an act is prohi...

Corporations. Part 4: Sec 132 Mere informalities in the election and qualification of officers will not invalidate contracts made by such officers so as to defeat suits brought against subsequent receivers or liquidator...

Corporations. Part 5: Sec 135 A corporation can only bind itself contractually within its chartered limits. A banking corporation, for instance, chartered to do banking, cannot, without specific additional powers from t...

Corporations. Part 6: Sec 136 In the United States, under the shelter of the constitutional provision prohibiting laws impairing the obligation of contracts, corporations, unless the power of amending them be reserved i...

Corporations. Part 6. Part 2: It is true that the same conflict of opinion exists on this question as exists on the parallel question of the bestowal of any distinction for this purpose between statutory corporations under railway...

Corporations. Part 6. Part 3: Shores, 97 U. S. 272 ; Monument Bank v. Globe Works, 101 Mass. 57. In Thomas v. Railroad Co., 101 U. S. 71, a railroad corporation, without authority of the legislature, leased its railroad to thr...

Corporations. Part 6. Part 4: As was observed in Morville v. American Tract Society, 123 Mass. 129, 136, ' The power to make all such contracts as are necessary and usual in the course of business, or are reasonably incident to ...

Corporations. Part 7: Sec 138 A corporation is entitled to borrow money when this is necessary to enable it to exercise the franchises of its charter; and the right to borrow includes the right to give written acknowled...

Corporations. Part 7. Part 2: 1 Monument. Bank v. Globe Works, 101 Mass. 57 ; Mott v. Hicks, 1 Cow. 513 ; Banking Ass. v. White Lead Co., 35 N. Y. 505; Oxford Iron Co. v. Spradley, 46 Ala. 98. 2 Railroad Co. v. Howard, 7 Wall. ...

Corporations. Part 7. Part 3: Parties interested in corporation First, that it is usurious ; and, second, that the transaction is not a borrowing of money, but the issuing of a deferred stock, which is beyond the power of the comp...

Corporations. Part 7. Part 4: 2 Thomas v. R. R., 101 U. S. 71; Hitchcock v. Galveston, 96 U. S. 341; Kent v. Mining Co., 78 N. Y. 159; Screven Hose Co. v. Philpot, 53 Ga. 625 ; Bank of Michigan v. Niles, Walker, Mich. 99. 3 New...

Corporations. Part 7. Part 5: But in addition to the existence of grievances which call for this kind of relief, it is equally important that before the shareholder is permitted in his own name to institute and conduct a litigati...

Corporations. Part 8: Sec 141 We may, therefore conclude, that the doctrine of estoppel applies to corporations as well as to natural persons. Wherever a natural person would be estopped by his prior action in assuming ...

Corporations. Part 9: Sec 142 A distinction, also, is to be observed between suits against and suits by a corporation. When a corporation is sued on an executory contract which is ultra vires, the attempt is to drag it ...

Corporations. Part 10: Sec 143 Municipal corporations occupy, so far as concerns the questions now before us, a distinctive position. They are not chartered to do business in the sense that a bank or a railroad is cha...

Chapter VIII. Duress: Consent obtained by duress is inoperative, sec 144. Distinction between void and voidable, 145. Party or privies may defend on this ground, bona fide endorsees, sec 146. The danger must b...

Duress. Part 2: Sec 145 Duress, therefore, does not presuppose that the person acted on becomes a mere automaton. It is true that there may be, as has been just said, absolute duress. One man's hand may be used by...

Duress. Part 3: Sec 146 Not only the party himself, but privies, may contest a promise on the ground of duress, so that all parties taking with notice are infected with the same disability.2-An indorser, who has i...

Duress. Part 4: Sec 148 But there must be actual physical violence threatened. A deed, for instance, which is executed in dread of purely imaginary dangers may be contested on the ground of insanity, but not on th...

Duress. Part 5: Sec 149 Mere detention of goods, it has been frequently held, does not, in cases where this injury can be compensated for by a cross suit, constitute such duress as will invalidate a promise made i...

Duress. Part 5. Continued: Duress of goods also exists where one is compelled to submit to an illegal exaction in order to obtain them from one who has them in possession, but refuses to surrender them unless the exaction is s...

Duress. Part 6: Sec 150 It is no defence to a suit upon a contract that it was executed by the defendant for the purpose of compromising a civil suit threatened or impending, even though he was at the time under a...

Duress. Part 7: Sec 151 It is against the policy of the law that criminal prosecutions should be used to collect private debts; and in the Roman law this abuse was stigmatized as coucussion, and was held to vitiat...

Duress. Part 8: Sec 152 There must be shown, in order to make out this defence, to have been a causal connection between the duress and the consent. The mere fact that a man is under duress does not avoid all prom...

Chapter IX. Undue Influence And Imposition: That promisor is under influence of promisee does not invalidate promise, sec 157. Nor does great mental superiority of promisee over promisor, sec 158. Otherwise when position of superiority is...

Undue Influence And Imposition. Part 2: Sec 159 Equity will not permit a position of authority or influence to be used to extort unfair advantages. When-ever there is ascendancy on the one side, and mental inferiority and subjection on t...

Undue Influence And Imposition. Part 3: Sec 160 Abuses of personal influence for the undue enrichment of the party exercising it, have been regarded by equity judges as breaches of trust, falling peculiarly within the province of equitab...

Undue Influence And Imposition. Part 4: In Holmes' Est., 3 Giff. Ch. Rep. 345, Sir John Stuart, V. C, said : The law of this court as to gifts by a client to his solicitor, I think, is perfectly established. The principle is, that the rel...

Undue Influence And Imposition. Part 5: 1 Dent v. Bennett, 4 My. & Cr. 269 ; Billage p. Southee, 9 Hare, 534; Ahearne v. Hogan, Dru. 310; Greenfield's Est., 14 Penn. St. 489 ; Crispell v. Dubois, 4 Barb. 393; Cadwallader v. West, 40 Mo. 483...

Undue Influence And Imposition. Part 6: Sec 162 It is not to be supposed that long habits of submission will cease simultaneously with the technical cessation of the legal relation on which these habits were originally based. A ward, for...

Undue Influence And Imposition. Part 7: Sec 164 It has been held in England on high authority that, where a donation is claimed by a person holding a fiduciary or authoritative relation to another to have been made to him by the person t...

Undue Influence And Imposition. Part 8: Sec 165 Inadequacy of price is in itself no ground for setting aside a contract. A vendor may conscientiously depreciate his own property, and to say that he shall not sell at the price he himself ...

Undue Influence And Imposition. Part 9: Sec 166 The cases we have been considering are those in which the party seeking the aid of the court asks to have an unconscientious bargain rescinded. In such cases, as this unconscientiousness is...

Undue Influence And Imposition. Part 10: Sec 168 Contracts of this class, like contracts under duress,4 can be ratified by the party imposed upon, after the disturbing influence has been removed; and this may be either by continuance in p...

Undue Influence And Imposition. Part 11: Sec 170 Where there is no statue forbidding usury, courts of equity feel it peculiarly incumbent on them to revise contracts exacting extortionate interest. One great effect of such repeal was to ...

Chapter X. Error And Mistake. I. General Principles: Topic one of peculiar difficulty, sec 171. Embarrassed by ambiguity of terms, sec 172. Also by confusion of classification, sec 173. Will and expression must coincide, sec 174. II. Conscious Error ...

I. Error And Mistake General Principles: Sec 171 The subject of error (or mistake, as it is sometimes called) is beset with peculiar difficulties. A line has to be taken in such a way as to avoid two extremes, either of which would be fat...

I. Error And Mistake General Principles. Continued: Sec 173 Another difficulty is the confusion of classification that prevails. As has been pointed out by Savigny, and illustrated with much point by Windscheid, there are three distinct relations in...

II. Conscious Error: Sec 175 A promise uttered in jest has no binding force, so far as concerns parties conscious of the fact that it was so uttered. Verborum quoque obligatio constat, si inter contrahentes id agatur:...

III. Unconscious Error Of Apprehension: Sec 177 A consent of two minds to one and the same thing being an essential incident of contracts,1 it follows that there can be no contract when the parties differ essentially as to the thing they...

III. Unconscious Error Of Apprehension. Part 2: 1. The nature of the obligation. 2. The person to whom the obligation is made.-Nullity, however, under this head, is predicated only when the promisee is mistaken by the promisor for another person...

III. Unconscious Error Of Apprehension. Part 3: 1 See infra, sec 188 et seq. 2 Whether by blundering he does not render himself liable in other respects, will be hereafter discussed. Infra, sec 1043 et seq. 3 It is argued by Windscheid that a...

III. Unconscious Error Of Apprehension. Part 4: Sec 178 In our own law, the same rule is now generally recognized.1 Undoubtedly there are many cases of apparent conflict as to details. But on the general question, there is almost an unbroken lin...

III. Unconscious Error Of Apprehension. Part 5: Sec 180 When there is an esential error as to parties to a negotiation, it stands to reason that this negotiation cannot become a binding contract.4 A., for instance, marries B. under the impressio...

III. Unconscious Error Of Apprehension. Part 6: Sec 181 An essential error as to the subject matter of a bargain may prevent the inception of a contract in the following cases:- 1. When a party undertakes to alienate that which is unalienable...

III. Unconscious Error Of Apprehension. Part 7: Sec 182 When only a bare charge of chattels is given by the owner to a bailee, no title passes to the bailee, there being no concurrence of minds to one and the same disposition of the particular t...

III. Unconscious Error Of Apprehension. Part 8: Sec 184 A. cannot, by merely sending goods to B., establish with B. a contractual relation.3 A contract requires the assent of two minds to one thing; and the mere reception of goods by B., and eve...

III. Unconscious Error Of Apprehension. Part 9: Sec 186 An essential error as to the identity of a thing which is the subject of a negotiation (error in corpore), on the same reasoning, prevents the negotiation becoming a contract. This is an es...

III. Unconscious Error Of Apprehension. Part 10: Chancellor Kent, Com. II. 470, says : It would seem to be sound doctrine, that a substantial error between the parties concerning the subject matter of the contract, or as to the nature of the articl...

III. Unconscious Error Of Apprehension. Part 11: Sec 188 Savigny1 objects to the maxim, Quotiens in substantia erratur, nullus est contractus, as misleading;. The cases of this supposed class, cited by the jurists, are the following: (1) Utensi...

III. Unconscious Error Of Apprehension. Part 12: Sec 189 Error as to quality, we may therefore hold, does not avoid a contract, unless the quality goes to the generic character of the thing which is the subject-matter of the contract, or unless i...

III. Unconscious Error Of Apprehension. Part 13: Sec 190 By the Roman law, an error as to quantity only pro tanto invalidates. In unilateral contracts, the contract, when two sums conflict, is held good for the lowest sum. If, for instance, one p...

III. Unconscious Error Of Apprehension. Part 14: Sec 191 The cases that have just been stated, are those in which the error was one of mistake not induced by fraud on the part of the other bargaining party. In such case, when the thing in the min...

III. Unconscious Error Of Apprehension. Part 15: Sec 194 Error as to collateral matters is unessential so long as there is no error as to the thing to which such matters are collateral. As an illustration of this is given, in the Digest, a case i...

III. Unconscious Error Of Apprehension. Part 16: Sec 196 The ground on which the Roman jurists make essential error of fact an avoidance is that such error is sometimes inevitable; cumfacti interpretatio ple-rumque etiam prudentissimos fallat.7...

III. Unconscious Error Of Apprehension. Part 17: Sec 197 As a general rule, money paid under a mistake of fact may be recovered back ;3 though this rule does not apply, as we will see, to money paid in compromise, or in mistake of law.* As has ju...

III. Unconscious Error Of Apprehension. Part 18: 1 Bispham's Eq. sec 189 ; Story's Eq. Jur. 12th ed. sec 112; Kerr on Fraud and Mistake, 40 ; Gibbons v. Caunt, 4 Ves. 849 ; Naylor v. Winch, 1 Sim. & St. 555 ; Stevens v. Lynch, 12 East, 38; Perrott v...

III. Unconscious Error Of Apprehension. Part 19: Sec 199 It has been already noticed that error on the question, whether a particular case is subject to a particular law, is, in this relation, a question of fact, not of law. The subsumption, as t...

III. Unconscious Error Of Apprehension. Part 20: One of the learned editors of Judge Story's work on Equity Jurisprudence, argues that the idea of there existing in this class of cases (e. g., cases of mistake in the application of the law to a par...

III. Unconscious Error Of Apprehension. Part 21: 1 Mr. Warren gives an illustration of this in the report of the famous ejectment case, in Ten Thousand a Year, in which a deed of confirmation unexpectedly turns up, and that deed is as unexpectedly...

III. Unconscious Error Of Apprehension. Part 22: Sec 200 If a non-specialist makes a bargain with a specialist as to a topic within the range of the latter's duties, the same knowledge of the law will not be imputed to both. A lawyer, for instanc...

IV. Error Of Expression: Sec 202 Error of expression (error in nomine) is unessential when there is no error as to the thing referred to. This is a settled principle of the Roman law;1 and the same rule is there applicable...

IV. Error Of Expression. Part 2: Sec 202a The conclusions above stated may be sustained on the ground of estoppel. When the mistake is that of one party alone, it must be borne in mind that the general rule of law is, that whatev...

IV. Error Of Expression. Part 3: Sec 204 As has been elsewhere said,1 a patent ambiguity may be regarded as subjective, i. e., an ambiguity in the writer's own mind expressing itself imperfectly; while a latent ambiguity is object...

V. Rectification: Sec 205 It is a defence, as between parties with notice, that the transaction expressed has a materially different legal character from that intended. Hence, when a loan was intended, it is admissi...

V. Rectification. Part 2: Sec 206 Hence it is settled that while a contract may be rescinded on the ground of an error of one party, induced or fraudulently taken advantage of by the other; or the fraud may be made the basi...

V. Rectification. Part 3: Sec 207 So far as concerns the character of proof required, rescission and reformation are to be carefully distinguished. Rescission will be granted on proof of unilateral mistake.4 Though it is op...

V. Rectification. Part 4: Sec 208 To sustain a decree for the rectification of a contract (in other words, for the substitution of an amended correct contract for one containing terms held to be incorrect), the evidence mus...

V. Rectification. Part 5: Sec 209 When, however, a statute (e. g., the statute of frauds) requires for a certain kind of contract a particular mode of proof, a contract of this character cannot, in defiance of the statute, ...

Chapter XL. Representations And Warranty: Representations to be distinguished from conditions and warranties, sec 212. There must be causal relation between misrepresentation and contract, sec 213. Contract induced by honest misapprehen...

Chapter XL. Representations And Warranty. Part 2: Sec 214 Misrepresentation is distinguishable from fraud in the fact that a misrepresentation may be innocently made by the party to whose advantage it enures, and, honest misrepresentation may be r...

Chapter XL. Representations And Warranty. Part 3: Van Arsdale v. Howard, 4 Ala. 596; Munroe v. Pritchett, 16 Ala. 785 ; Lind-sey v. Veasey, 62 Ala. 421 ; Parham v. Randolph, 4 How. Miss. 435 ; Buford v. Caldwell, 3 Mo. 477. If a vendee, for instance,...

Chapter XL. Representations And Warranty. Part 4: Sec 215 From representation, as will hereafter appear more fully,4 are also to be distinguished expressions of opinion. There are innumerable matters as to which intelligent persons may honestly di...

Chapter XL. Representations And Warranty. Part 5: Sec 216 The test laid down as to fraudulent misrepresentations, that they must be material, applies equally to honest misrepresentations.4 There is this distinc- Misrepre-sentations of realizing...

Chapter XL. Representations And Warranty. Part 6: 3 Spurr v. Benedict, 99 Mass. 463 ; Watts v. Cummins, 59 Penn. St. 84 ; though see White v. Williams, 48 Barb. 222. 4 See Hammersley v. Biel, 12 CI. & F. 45 ; Prole v. Soady, 2 Giff. 1 ; Loffus v. ...

Chapter XL. Representations And Warranty. Part 7: Sec 218 A condition precedent in its technical sense, as we shall have occasion to see more fully,6 precludes such a concurrence of minds as constitutes an immediately effective contract. It is, i...

Chapter XL. Representations And Warranty. Part 8: Sec 219 No particular words are essential to constitute a warranty.2 Any representation made at the time of a sale is a warranty if it was understood by the parties to be such.3 But estimates of va...

Chapter XL. Representations And Warranty. Part 9: Sec 220 A specification of a warranty on one point may exclude the implication of warranty on other points.13 Thus a contract to deliver Centre County iron, for a full market price, is satisfied if...

Chapter XL. Representations And Warranty. Part 10: Suppose the Villa Bella, undoubtedly incompetent to fulfil the task assigned to her, and with terrible danger to life, occupies a period beyond all time in the contemplation of the parties, a year we ...

Chapter XL. Representations And Warranty. Part 11: Sec 222 There has been much discussion on the question whether there is an implied warranty of whole-someness in sales of provisions. We have the high authority of Blackstone1 to this effect; and i...

Chapter XL. Representations And Warranty. Part 12: Sec 223 Selling by a merchant in the ordinary course of business implies that the goods are of the character designated, and are merchantable.1 The fundamental understanding is, property grounds, ...

Chapter XL. Representations And Warranty. Part 13: Sec 221 that on a sale by a manufacturer of goods of a class manufactured by him, there is an implied contract that the goods were of his manufacture In Scotland, however, it was held, in 1880 a...

Chapter XL. Representations And Warranty. Part 14: Sec 225 As we will hereafter have occasion to see more fully, selling by sample implies that the goods should correspond in quality to the sample, and if there be a material variance, the purchaser...

Chapter XL. Representations And Warranty. Part 15: Sec 228 Even where there is no warranty, a person selling an article so negligently made by him as to do injury,6 or of whose dangerous properties he, as seller, ought to.be cognizant,7 is liable i...

Chapter XL. Representations And Warranty. Part 16: In People's Bank v. Kurtz, 11 Weekly Notes, 226, Sup. Ct. Penn. 1882, it was held that while the vendor of stock in his own possession warrants his own title, he does not warrant that the stock was no...

Chapter XL. Representations And Warranty. Part 17: As sustaining the rule that as to goods in possession of the vendor there is an implied warranty of title, the learned American editor of Benjamin on Sales (sec 641) cites, in addition to cases give...

Chapter XL. Representations And Warranty. Part 18: The Roman law on this topic is thus succinctly stated by Windscheid, one of the most authoritative of recent German commentators.9 The vendor is liable in case of the purchaser's eviction (Entwehrung)...

Chapter XII. Fraud: Fraud is an intentional distortion of the truth, sec 232. Party defrauded may rescind or sue for damages, sec 232 a. Contracts may be divisible in respect to fraud, sec 233. False representat...

Fraud. Part 2: Sec 232 Fraud is a distortion of the truth with intent to inflict on another pecuniary damage.1 It makes no matter whether the fraud is expressed in words or in conduct;2 nor, if expressed in words...

Fraud. Part 3: Sec 232a A party induced by another's fraud to make a bargain, may elect either to rescind the bargain, or may sue the offending party on a false warranty, or in an action in the nature of deceit. ...

Fraud. Part 4: Sec 234 A false representation, either by the party himself or his agent, may estop him afterwards from asserting the contrary, and bind him contractually to the position the false representation t...

Fraud. Part 5: Sec 236 When false representations are knowingly made, and are operative in inducing the party imposed upon to agree to a contract, it is no defence that the party using the misrepresentation was i...

Fraud. Part 6: Sec 238 It is not necessary, to impose liability for a fraudulent misrepresentation, or to avoid a contract induced by it, that it should have been made for the purpose of gaining a pecuniary benef...

Fraud. Part 7: Sec 240 Falsity is shown by proving a contradictory opposite, or by establishing a series of conditions inconsistent with the statement alleged to be false, approximating as nearly as possible to a...

Fraud. Part 7. Continued: 5 Romilly, M. R., Pulsford v. Richards, 17 Beav. 87. 1 Burrowes v. Locke, 10 Ves. 470; Slim v. Croucher, 2 Griff. 37; Foster v. Charles, 6 Bing. 396; 7 Bing. 105; Taylor v. Ashton, 11 M. & W. 401. ...

Fraud. Part 8: Sec 242a It is not a sufficient reply, that a part of the representations made by the party charged were true. No body of representations can be wholly false; and, in fact, there is no single repre...

Fraud. Part 9: Sec 245 It has been said that a false representation, to impose liability on its maker, must have been calculated to impose on a person of ordinary sagacity. But this limitation cannot be sustained...

Fraud. Part 9. Continued: 1 Carmichael v. Vandebur, 50 Iowa, 651. 2 Savage v. Stevens, 126 Mass. 207. 3 Dyer v. Hargrave, 10 Ves. 505; Attwood v. Small, 6 Cl. & F. 232; Slaughter v. Gerson, 13 Wall. 379; Mead v. Bunn, 32...

Fraud. Part 10: Sec 246 A false statement as to a collateral matter, not entering into the merits of a contract, does not subject the party making it to an action for deceit; nor does it invalidate a contract whic...

Fraud. Part 11: Sec 247 Nor is a contracting party bound by the misstatements of a third person, unless agency or confederacy be proved.6 1 Williams's case, L. R. 9 Eq. 225, n.; Kintrea ex parte, L. R. 5 Ch. 10...

Fraud. Part 12: Sec 249 It may happen that all of a statement may be true, yet from the suppression of important qualifications, the effect is to leave a false impression. In this case the imperfect statement of t...

Fraud. Part 13: Sec 250 Fraud, as a basis for avoiding a bargain (as distinguished from fraud as a basis for a suit for deceit), involves an error of the party on whom the imposition was effected. There was no con...

Fraud. Part 14: Sec 251 A mere suppression, therefore, must not only be of a material matter, which the other party had no means of discovering, but must relate to a fact which is negatived by the active misconduc...

Fraud. Part 14. Continued: Neither party is bound to correct the other's unexpressed misconceptions. 1 See Law v. Grant, 37 Wis. 548. 2 Rawle v. Ins. Co., 27 N. Y. 282; Morrison v. Ins. Co., 18 Mo. 262; Keith v. Ins. Co.,...

Fraud. Part 15: Sec 254 Whenever there is a fiduciary relation between parties engaged in a business transaction, then, as has been intimated, the party occupying towards the other a position of trust, is bound to...

Fraud. Part 16: Sec 255 It has been said by high authority that parties proposing to the public a business enterprise are bound to disclose all knowledge they may have as to the enterprise, and not only to abstai...

Fraud. Part 17: Sec 256a Similar observations may be made as to the parties to family negotiations.1 Members of a family, in negotiating with each other in respect to a family settlement, are supposed to disclose ...

Fraud. Part 18: Sec 258 If there be an intention at the time of a purchase not to pay for the thing purchased (which is to be gathered from all the facts of the case), this is a fraud which entitles the vendor to ...

Fraud. Part 19: Sec 259 The fraud must go to a specific fact, as distinguished from a general opinion.3 It is not a fraudulent misstatement, therefore, which avoids a contract, to say untruly that a particular art...

Fraud. Part 20: Sec 260 We have noticed in the last section, the limitations under which opinions as to value may bind the party giving them. It may be said, in addition, that a value given conjecturally, or as an...

Fraud. Part 21: Sec 261 A misrepresentation is to be distinguished from a puff. Few articles are sold in the market without preliminary puff's, express or implied; but these puffs are regarded on all sides as mere...

Fraud. Part 22: Sec 263 The distinctions above stated apply, a fortiori, to false warranties. A warranty is distinguished from a statement in this, that a false statement can only be sued on in an action for decei...

Fraud. Part 23: Sec 265 Marriage, though founded on contract, is a fundamental institution whose modification is not within the power of individuals, nor, internationally, of particular states. A marriage, to be b...

Fraud. Part 24: Sec 266 Either party to a marriage may, prior to the marriage, make a settlement of property in such a way as to withdraw it from the control of the other party.6 But a woman's settlement of her pr...

Fraud. Part 25: Sec 268 Fair competition being an essential ingredient of sale by auction, a sale will be set aside if by means of false representations parties at the sale were deterred from bidding, and the prop...

Fraud. Part 25. Continued: 1 Sug. V. & P. 381; Perry on Trusts, sec 211; Wh. on Ag. sec 158 et seq.; Wilson v. Fuller, 3 Ad. & El. (N. S.) 58; Irving v. Motley, 7 Bing. 543; Mason v. Crosby, 1 Wood. & M. 342. 2 Watson v. Cra...

Fraud. Part 26: Sec 271 A statement by an agent may be either non-contractual or contractual. It is non-contractual when it is made by the agent casually, and not as part of a negotiation, but as narrating an inci...

Fraud. Part 27: Sec 273 This liability is not affected by the fact that the representations were put in the shape of reports by agents of the corporation to the corporation, when the reports are published by the c...

Fraud. Part 28: Sec 276 A party (whether a corporation or a natural person) issuing a prospectus for a proposed business adventure, is bound to make no statements of facts that cannot be substantially sustained; a...

Fraud. Part 29: Sec 279 A principal is not liable for collusive contracts fraudulently concocted by his agent with third parties.5 Thus, in a case before the English court of appeal, in 1881, it appeared that a co...

Chapter XIII. Rescission: Ratification: Party deceived may rescind contract, and so when the party is unable to perform, sec 282. Contracts induced by fraud are voidable, sec 283. Election must be in reasonable time, sec 284. Party...

Rescission: Ratification. Part 2: Sec 283 A contract induced by fraud is voidable, not void, it being within the option of the party defrauded to confirm or repudiate. By the Roman law, as we have seen, a party defrauded in a contr...

Rescission: Ratification. Part 3: Sec 284 A party who claims to be defrauded in a contract must exercise his election to rescind within a reasonable time. By letting his claims lie dormant after he has notice of the fraud, he may b...

Rescission: Ratification. Part 4: Sec 286 A party cannot compel rescission if he has kept his intention in this respect quiet until the other party has done or left undone things on the basis of the contract which would expose him ...

Rescission: Ratification. Part 5: Sec 287 A party who seeks to rescind on ground of fraud must give notice within reasonable time of his intention.7 If he resist the contract on this ground, and if he set up the fraud as a defence,...

Rescission: Ratification. Part 6: Sec 290 An election either to affirm or disaffirm a contract when once made is final. It is a question with which a party who claims to be defrauded cannot play fast and loose.5 Hence it has been h...

Rescission: Ratification. Part 7: Sec 292 A party, therefore, who takes no title to a chattel, cannot ordinarily (excepting in cases of market overt, which in this country does not exist),8 or in cases where the owner is estopped b...

Rescission: Ratification. Part 8: Sec 293 As will be hereafter more fully seen,5 when a contract is to be performed in successive instalments or deliveries, and when these instalments and deliveries are interdependent, so that fail...

Chapter XIV. Impossibility: Original impossibility may be either subjective or objective; may be temporary or permanent: may be partial or absolute, sec 296. Subsequent impossibility may be either culpable or non-culpable; te...

Impossibility. Part 2: Sec 297 With regard to subsequent impossibility the main question is, whether or no the impossibility is imputable to the promisor's misconduct. If there be no such imputability, the promisor, as w...

Impossibility. Part 3: Sec 299 Suppose the law of the jurisdiction forbids the alienation of a particular thing; is a contract to dispose of this thing valid? In the Roman law, where these restrictions are not uncommon, ...

Impossibility. Part 4: Sec 301 Should the parties to an agreement know that it is impossible for the object of the agreement to be performed, and should each know that the other knows this impossibility, then the agreeme...

Impossibility. Part 5: Sec 303 The promisee cannot, a fortiori, recover on the contract if he ought to have known the thing to have been nonexistent, or the promise to be, for other grounds, nugatory. This is illustrated...

Impossibility. Part 6: Sec 305 To a contract to do a particular thing it is also a defence that the service promised has subsequently been absolutely prohibited by law.4 In a modern English case, the defendant had leased...

Impossibility. Part 7: Sec 306 It has been said that the law which renders the performance impossible, and, therefore, excuses failure, must be a law operative in the state where the obligation was assumed, and obligato...

Impossibility. Part 8: Sec 307 In accordance with the distinction already taken, a legal incapacity resulting from the promisor's negligence, is no defence. Thus a railroad company which permits its power to purchase lan...

Impossibility. Part 9: Sec 309 It may happen, however, that a person who contracts to do a particular thing, does it in such a way as to encounter an obstacle which prevents the performance. When two or more ways are ope...

Impossibility. Part 10: Sec 310 Perfect caution, however, is not required. Were it required, business could not be efficiently conducted. It would be possible, for instance, for a railroad company not only to place watche...

Impossibility. Part 11: Sec 311 If a party guarantees against an event, he cannot defeat a suit for damages for non-performance on the ground that the event happened.7 Thus, where a charterer undertakes to unload within a...

Impossibility. Part 12: Sec 312 A party to a contract, who, by his own action, interposes an insuperable bar in the way of the performance of the contract by the other party, cannot claim damages for such non-performance....

Impossibility. Part 13: Sec 314 If by a casus which involves no culpability or guarantee in a party contracting to deliver a thing, such thing has ceased to exist, the contract falls. Thus in a case already noticed, where...

Impossibility. Part 14: Sec 315 An agreement to deliver fungible articles, e. g. gold, is not released by the loss of such articles by the party so agreeing. No matter what calamity may overtake him, or how completely he ...

Impossibility. Part 15: Sec 317 The rule of the Roman law, that if a sale is completed, the loss, in case of destruction, falls on the purchaser (there being no blame on either side) although there has been no delivery, h...

Impossibility. Part 16: Sec 318 Whether a covenant of a tenant is vacated by his ejection by a public enemy, will be hereafter considered.3 We have in this section to consider, who, in case of loss by either fire or hurri...

Impossibility. Part 17: Sec 319 To the rule that possession by a third party does not constitute impossibility,so as to extinguish liability,the Roman Digly v. Atkinson, 4 Camp. 275, and others of like character, in which...

Impossibility. Part 18: Sec 320 A bailee or other depositary of goods is not regarded as an insurer, but is responsible only for loss caused by his own negligence or mistake; and is not liable if he has shown the diligenc...

Impossibility. Part 19: Sec 322 With alternative and generic obligations impossibility is not a defence, unless it meets every contingency in which the work promised could be performed. An example of the generic obligatio...

Impossibility. Part 20: Sec 323 Subsequent impossibility is a defence to a suit for a personal duty when the contracting party becomes, without his own fault, incapable of performing his contract. He may become actually i...

Impossibility. Part 20. Continued: 9 Lindley on Part. 2d ed. 492; Holme v. Hammond, L. R. 7 Ex. 218; infra, sec 848. bound by a personal service of this class, which service is to be performed and paid for in instalments, that porti...

Impossibility. Part 21: Sec 324 A person who, knowing himself to be incapable of marriage by reason of a prior marriage on his part, of which the woman to whom he is engaged was ignorant at the time of the engagement, is ...

Impossibility. Part 22: Sec 325 It is elsewhere observed that casus is no defence when it is induced by the misconduct of the party setting it up as a ground of impossibility.2 The same remark may be made on the question ...

Impossibility. Part 23: Sec 326 The fact that a thing on which work is expended, as a divisible contract of labor, has been destroyed without fault of either party, before the work is complete, is no defence to a suit for...

Impossibility. Part 23. Continued: 1 Anglo-Egyptian Nav. Co. v. Rennie, L. R. 10 C. P. 271. See this case discussed infra, sec 745. In Rawson v. Clark, 70 111. 656, the contractors agreed to manufacture and put into a building, the...

Impossibility. Part 24: Sec 327 A common carrier, by our law, is an insurer of goods committed to him for carriage so far as to be responsible in all cases of non-delivery, unless such nondelivery results from casus or vi...

Impossibility. Part 25: Sec 330 So far as concerns even a non-culpable vendor, partial impossibility constitutes no defence. He has contracted for a specific price to sell a particular thing. Events for which he is not re...

Impossibility. Part 25. Continued: (d) Both parties knew that the house was consumed. (L. 57, sec 3.) Here the contract is invalid throughout Even if each party concealed his knowledge of the fact from the other, his fraud cannot give ...

Chapter XV. Illegality. I. General Principles: Unlawfulness and indictability not convertible, sec 335. Void contracts distinguished from illegal, sec 336. Where a contract is susceptible of an illegal and a legal construction, the latter is...

II. Violation Of Statute: Contract to violate statute is illegal, sec 360. In conflict lex loci solutionis prevails, sec 361. Evasions of statute invalidate, sec 362. Not necessary that penalty should be prescribed, s...

III. Immorality: Agreements to induce immorality void, sec 370. So of immoral agreements amounting to indictable conspiracies, sec 371. So as to agreements for libels, sec 372. So as to agreements for illicit...

IV. Cheating And Fraudulent Insolvency: Agreement to defraud void, sec 376. Conditions of voidability on ground of fraud, sec 377. Contract of agent to his private profit void against principal, sec 378. Agreements in fraud of bank...

V. Violation Of Sunday Law: Sunday contracts in some states void, sec 382. Statutes do not affect executed contract, sec 383. So as to Sunday transfer of property, sec 384. When statute relates to ordinary' calling it does not ...

VI. Interference With Family Relations: Agreements modifying marriage are void, and so are agreements for divorce, sec 394. Agreements providing for separation void, sec 395. Contracts in restraint of marriage void, sec 396. Partial limi...

VII. Injuury To Public Service: Agreement privately to influence legislature invalid, sec 402. And so of agreement to influence executive, sec 403. Professional services as to pardon permissible, sec 404. Agreements to infl...

VIII. Champerty And Maintenance: Champerty is illegal sharing of profits of litigation, sec 421. Maintenance is stirring up of unfounded litigation, sec 422. Agreement to sell claims on shares not invalid, sec 423. Purchase on spe...

IX. Restraints Of Trade: Agreement to surrender inalienable rights is void, sec 430. Agreement binding party not to do business in a particular place may be sustained, sec 431. No objection to such agreement that it is ...

X. Wagers And Gambling: Wagers on matters which ought not to be investigated are illegal, sec 449. And so of wagers on matters which it is against the policy of the law to have acted on, sec 450. By statute wagers are ...

XI. Usury: Usury laws local, and to be strictly construed, sec 461. Between conflicting laws, that least onerous is to be applied, sec 462. Law of place of performance controls, sec 463. Mistake in fact will not...

XII. Trading With Enemy; Breach Of Neutrality: Trading with public enemy void at common law, sec 473. Rule applicable to belligerent insurgents, sec 474. License validates trade with enemy, sec 475. Contract suspended during hostilities, ...

XIII. Compounding Offences: Contracts to compound offences void, sec 483. Distinction between felonies and misdemeanors obsolete, sec 484. Approval of magistrate does not legalize, sec 485. Settlement of private suit no...

I. Illegality General Principles: Sec 335 As is elsewhere shown,1 immorality and indictabil-ity are not convertible terms, since there are many immoral acts which are not indictable, and some indictable acts which are not immoral. ...

I. Illegality General Principles. Part 2: Sec 338a Whether an insurance policy, covering several illustrated objects, one of which is illegal, is invalid in toio. 1 Yundt v. Roberts, 5 S. & R. 139; Duchman v. Hagerty, 6 Watts, 65 (overr...

I. Illegality General Principles. Part 3: Sec 339 We have already seen that when fraudulent intention is proved, it is no defence that there were other motives more or less innocent prompting to the same act.3 It is no reply, also, to a pl...

I. Illegality General Principles. Part 4: Sec 341 Money contributed to violate the lex fori cannot be recovered back when the money has been so applied.9 But to bar such recovery, as will presently be seen more fully, the money must be giv...

I. Illegality General Principles. Part 5: Sec 343 It has already been incidentally observed that mere knowledge of the illegality of the object to which money or supplies are to be appropriated does not necessarily vitiate the contract. It...

I. Illegality General Principles. Part 6: Sec 344 It is not necessary, however, that complicity should be shown by proof of an express combination between the parties.2 When two persons, in correspondence with each other, are apparently p...

I. Illegality General Principles. Part 7: Sec 345 A distinction has been taken between crimes involving great moral turpitude, and other offences not amounting to felony, and it is argued that complicity in the latter does not preclude...

I. Illegality General Principles. Part 8: Sec 346 Even supposing that out of a sale of goods or loan of money, illegal acts spring, these acts are not imputable to the party furnishing the supplies unless designed by him at the time the su...

I. Illegality General Principles. Part 9: Sec 349 In accordance with the distinctions maintained in respect to agency,10 the courts will not enforce a contract of partnership for conducting an illegal enterprise, or compel an account of pr...

I. Illegality General Principles. Part 10: Sec 351 All subsequent securities, given for a prior illegal indebtedness, are, as between the parties, infected with the illegality of the original transaction.2 This is the case with bonds,3 and ...

I. Illegality General Principles. Part 11: Sec 353 To the rule that parties implicated in an executed illegal transaction have no remedy against each other, an exception is recognized in cases where one is the victim of duress, or fraud, or...

I. Illegality General Principles. Part 12: 1 Knight Bruce, L. J., opinion in Reynell v. Sprye, 1 D. M. G. 660; Osborne v. Williams, 18 Ves. 379. See Ford v. Harrington, 16 N. Y. 285, and cases cited Wald's Pollock, 333; Browning vi Morris, 2 C...

I. Illegality General Principles. Part 13: 2 Tappenden v. Randall, 2 B. & P. 467; Busk v. Walsh, 4 Taunt. 290; Colton v. Thurland, 5 T. R. 405; infra, sec 449 et seq. 3 Ibid.; Hodson v. Terrill, 1 C. & M. 797; Batson v. Newman, L. R. 1 C. P...

I. Illegality General Principles. Part 14: Sec 355 Goods deposited with a party for illegal purposes, the deposit not amounting to a substantive offence, may be reclaimed and recovered back by the owner upon repudiating the bailment.4 This ...

II. Illegality Violation Of Statute: Sec 360 A contract whose object is to violate a statute will not be enforced by the courts of the state by which the statute is enacted.8 Whether a contract conflicts with a statute is to be determ...

II. Illegality Violation Of Statute. Part 2: Sec 361 When there is a difference between the laws of the place of contract and of the place of performance, then, when the question is whether the performance of the contract is illegal, the laws...

II. Illegality Violation Of Statute. Part 3: Sec 364 It does not follow, on the other hand, because a statute imposes a penalty on a particular act, that such act is illegal. A penalty may be a mere police tax; it may be equivalent to saying,...

II. Illegality Violation Of Statute. Part 4: Sec 366 It may happen that by special legislation a particular class may be subjected to only a limited liability on its contracts. Such legislation has taken place with regard to contracts for lab...

II. Illegality Violation Of Statute. Part 5: Sec 368 A contract void at the time of its inception cannot be validated by subsequent legislation. And if it violates, when made, a statute, the repeal of that statute does not make it operative.2...

III. Illegality Immorality: Sec 370 Contracts to commit an immoral offence, or to give money or reward to another to commit an immoral offence, or to induce another to do something against the general rules of morality, thou...

III. Illegality Immorality. Part 2: Sec 371 Wherever an agreement amounts to an indictable conspiracy, it is void when sued on in a civil court. Under this head may be enumerated conspiracies to seduce or to cause to elope, or to deb...

III. Illegality Immorality. Part 3: Sec 373 An agreement is void when the consideration is future illicit cohabitation,1 no matter what other considerations may unite, or how skilfully the illegal object might be cloaked;2 nor is the...

III. Illegality Immorality. Part 4: Sec 374 Nor can a party recover the price of goods supplied for an immoral purpose.4 Thus, the price of goods sold for the purpose of carrying on a house of ill-fame cannot be recovered,5 nor can t...

IV. Illegality Cheating And Fraudulent Insolvency: Sec 376 A conspiracy to defraud being indictable at common law, all agreements to effect such a conspiracy are invalid.2 This rule is applicable to conspiracies to cheat by a mock auction;3 to cons...

IV. Illegality Cheating And Fraudulent Insolvency. Part 2: Sec 377 The subject of voidability of fraudulent conveyances is one which can only be treated in outline in such a work as the present. The following points, however, may be specifically noticed: -...

IV. Illegality Cheating And Fraudulent Insolvency. Part 3: 1 Story's Eq. Jur. 12th ed. sec 350, et seq. 3. Consideration must be valuable. This excludes mere moral obligations,2 though it is otherwise as to obligations founded on antecedent legal indebtedn...

IV. Illegality Cheating And Fraudulent Insolvency. Part 4: Sec 378 An agent is not allowed to make profit out of his agency, beyond his fixed salary or commissions, to his principal's detriment; and hence any contracts by an agent for purchase of principal...

IV. Illegality Cheating And Fraudulent Insolvency. Part 5: Sec 380 The essence of insolvent releases being equality, the law avoids a secret agreement with any particular creditor by which, in consideration of a release by him, he is to obtain peculiar adv...

V. Illegality Violating Sunday Law: Sec 382 By the statute of 29 Car. II. c. 7, s. 1, it is enacted that no tradesman, artificer, workman, laborer, or other person shall do or exercise any worldly labor, business, or work of their o...

V. Illegality Violating Sunday Law. Part 2: Sec 383 When a contract has been executed, neither party, as a general rule, can recover from the other what has been transferred, or in .any way disturb the rights which have been acquired under t...

V. Illegality Violating Sunday Law. Part 3: Sec 385 The English statute, as has been seen, prohibits labor in the ordinary calling of the parties prohibited. Under this and cognate statutes isolated private contracts made by parties outsid...

V. Illegality Violating Sunday Law. Part 4: Sec 386 As against a bona fide endorsee the maker cannot set up as a defence that the note was made on Sunday.1 Sec 387 Where the statute only prohibits business in a party's ordinary calling...

V. Illegality Violating Sunday Law. Part 5: Sec 390 A court will take judicial notice that a particular date was Sunday.3 But when the statute prescribes that Sunday closes with sun-setting, there must be proof that the contract was in that ...

VI. Illegality Interference With Family Relations: Sec 394 Marriage being an institution which is superior to local law, all contracts to modify its character are void. - Contracts are subordinated to the state, but the state is subordinated to ma...

VI. Illegality Interference With Family Relations. Part 2: Sec 396 The policy of the law being to encourage marriage, contracts imposing general restraints On marriage are void.6 A covenant, therefore, to marry no one but the covenantee, without engaging t...

VI. Illegality Interference With Family Relations. Part 3: Sec 398 It has also been held that all agreements to bring about marriages for a money consideration are void. The reason given is, that parties in a matter so important and so essential to the sta...

VI. Illegality Interference With Family Relations. Part 4: Sec 400 The right of a father, also, to the custody of his children, is inalienable, and he is not bound by an agreement surrendering such custody, unless, from their extreme infancy, or his incomp...

VII. Illegality Injury To Public Service: Sec 402 An agreement to solicit legislative action by the use of private personal influence on members individually is void as against the policy of the law.6 A fortiori, a promise made to a member...

VII. Illegality Injury To Public Service. Continued: In Meguire v. Corwine, 101 U. S. 111, Trist v. Child was reaffirmed. See to same general effect, Powers v. Skinner, 34 Vt. 274; Mills v. Mills, 40 N. Y. 543; Bryan v. Reynolds, 5 Wis. 200; Gil v. Will...

VII. Illegality Injury To Public Service. Part 2: Sec 404 When there is a board of pardons before whom counsel appear, or when there is a hearing before an executive, there is no reason why counsel should not present a case for consideration, and ...

VII. Illegality Injury To Public Service. Part 3: Sec 407 Agreements to pay money to secure public honors,6 or public office, have been held void at common law;7 and so of a sale by a person of his influence to obtain an office for another;8 and a...

VII. Illegality Injury To Public Service. Part 4: Sec 408 An agreement by which a trustee or director of a corporate body gives his influence for a particular candidate in exchange for a benefit received by himself, is void.4 And of offices in whi...

VII. Illegality Injury To Public Service. Part 5: Sec 410 On the same reasoning it has been held that when an election is contested, an agreement by one of the candidates to abandon the contest on the payment of a sum of money, is void.8 And so of...

VII. Illegality Injury To Public Service. Part 6: Sec 414 Railroad corporations may be regarded as public institutions, bound, in exercising their franchises, not to be governed by private considerations. In accordance with this view an agreement ...

VII. Illegality Injury To Public Service. Part 7: Sec 416 The right of free access to courts of justice is inalien able. Hence a condition that a title should be taken without investigation is void, and does not preclude investigation and litigati...

VIII. Illegality Champerty And Maintenance: Sec 421 Champerty (campi partitio), which is an offence by the English common law, is an agreement for the division between the parties of a particular piece of property to be sued for by one of th...

VIII. Illegality Champerty And Maintenance. Part 2: Sec 422 Maintenance does not necessarily involve a contingent division of the profits, and consists in an agreement, by a champertous agreement between the plaintiff and his attorney, is no ground ...

VIII. Illegality Champerty And Maintenance. Part 3: Sec 423 An agreement, also, by which a party seeking to establish his title to property, divides it with parties who are to aid him in collecting information by which his title may be secured, is n...

VIII. Illegality Champerty And Maintenance. Part 4: Sec 425 Partners jointly interested in a suit may bind themselves to divide the expenses of litigation, although their rights and interests are several;2 and this applies whenever there is an hones...

VIII. Illegality Champerty And Maintenance. Part 5: Sec 428 The difference between the English practice and our own in this relation may be in part attributable to the fact that in England a contract by a barrister for a fee for his professional ser...

IX. Illegality Restraint Of Trade: Sec 430 Life, liberty, and the privilege of pursuing any employment not prohibited or limited by the state are rights of which no person can divest himself by a binding contract. Jus publicum priva...

IX. Illegality Restraint Of Trade. Part 2: Sec 527), and is sustained, according to the learned editor, by Leather Cloth Co v. Lorsont, L. R. 9 Eq. 345; see Lange v. Werk, 2 Oh. St. 519. A covenant not to sell marl off the vendor's remai...

IX. Illegality Restraint Of Trade. Part 3: Sec 432 It is, therefore, no objection to such an agreement that it is unlimited as to time.1 So far from the public interests being impaired by the substitution of the industry of one man for that...

IX. Illegality Restraint Of Trade. Part 4: Sec 434 Such an agreement must have a valuable consideration; though the courts, if the consideration be the sale of a business, or instruction in a business, will not undertake to determine whethe...

IX. Illegality Restraint Of Trade. Part 5: Sec 436 A patent right, however, is not subject to these conditions; and contracts have been validated when transferring such rights either within particular states or districts,2 or absolutely wit...

IX. Illegality Restraint Of Trade. Part 6: Sec 488 It is against the policy of the law that common carriers should be relieved from all liability for negligence; and agreements so relieving them are void,3 though certain special duties may ...

IX. Illegality Restraint Of Trade. Part 7: Sec 439 Not only has every man a right to a market for his 1 Boynton, C. J., West. Un. Tel. Co. v. Griswold, Sup. C.t. Ohio, 1882, 25 Alb. L. J. 190; White v. West. Un. Tel. Co., U. S. Cir. Ct. ...

IX. Illegality Restraint Of Trade. Part 8: Sec 440 For the reason that the right to labor is inalienable, a party who agrees (unless for a specific consideration in reference to a particular place) not to labor except for a specific price, ...

IX. Illegality Restraint Of Trade. Part 8. Continued: When such contracts are made as a cover for gambling, without intention to deliver and receive the grain, but merely to pay and receive the difference between the price agreed on and the market price...

IX. Illegality Restraint Of Trade. Part 9: Sec 443 An agreement by parties capable of influencing a sale by auction to suppress competition at such sale is void, and as between the parties will not be enforced.1 Hence a sheriff's sale was s...

IX. Illegality Restraint Of Trade. Part 10: Sec 444 Whether an agreement between parties not to bid for a particular article but to make a lumping tender is illegal, depends upon whether the tendency of the agreement is to suppress competiti...

IX. Illegality Restraint Of Trade. Part 11: Sec 446 An action for the price of goods to be smuggled into England cannot be maintained in the English courts; even though the plaintiff', a domiciled Englishman, was, at the time of the contract...

X. Illegality Wagers And Gambling: Sec 449 At common law a contract on a wager, by which A. agrees to pay money to B. conditioned on a certain fact transpiring, in consideration of B. paying money to A. conditioned on the same fact ...

X. Illegality Wagers And Gambling. Part 2: Sec 450 A wager, also, will not be sustained when the thing to which the wager relates is one which it is against the policy of the law to have thus acted on. This has been held to be the case with...

X. Illegality Wagers And Gambling. Part 3: Sec 453 A contract to purchase shares of stock or other chattels, as a mere speculation, without any intention of receiving and holding them, is void as a gambling transaction under the English sta...

X. Illegality Wagers And Gambling. Part 4: For rulings under Illinois statute against options, see Tenney v. Foote, 4 Ill. Ap. 594; Williams v. Tiedemann, 6 Mo. Ap. 269; and see article on Political Economy and Criminal Law, in Criminal Law Ma...

X. Illegality Wagers And Gambling. Part 5: 70 N. Y. 202; Story v. Salomon, 71 N. Y. 420; Morris v. Tumbridge, 83 N. Y. 95; Kirkpatriek v. Bonsall, 72 Perm. St. 155; Pixley v. Boynton, 79 111. 351; Cole v. Melmine, 88 111. 349; Logan v. Brown, ...

X. Illegality Wagers And Gambling. Part 6: ' There are other cases, arising between factors and brokers and their principals, which the courts have apparently treated as though the action was between the principals to the illegal transaction...

X. Illegality Wagers And Gambling. Part 7: 1 Aahton v. Dakin, 4 H. & N. 867. If the law were held to be otherwise, nearly every contract for the sale of stock on the London Stock Exchange would be gambling; for in almost every instance the jo...

X. Illegality Wagers And Gambling. Part 8: Option not necessarily illegal. 1 Biddle on Stock Brokers, 72. According to Mr. Dos Passos, an option is a contract by which A., in consideration of the payment of a certain sum to B., acquire...

X. Illegality Wagers And Gambling. Part 9: 1 Chicago Legal News, Oct. 15th, 1881, p. 37. 2 Pickering v. Cease, 79 111. 328; from selling or buying grain for future delivery; such was not the purpose of the statute; nor can it make any differen...

X. Illegality Wagers And Gambling. Part 10: Sec 4536 It has been held in Massachusetts,1 that a contract to get up a corner in stock, connected with a plan by the cornerers to make large purchases to be delivered to them after the corner...

X. Illegality Wagers And Gambling. Part 11: As to fraud, little need be said. If there be false pretences or false personation employed, there can be no question that to get up a ' corner' is indictable, even though the offence is unconsummate...

X. Illegality Wagers And Gambling. Part 12: Sec 455 By the statute 19 Geo. II. c. 37, s. 1, marine insurances, without interest in the thing insured, are void as far as concerns British ships.2 Hence to entitle a party on such an insurance t...

XI. Illegality Usury: Sec 461 According to modern political economy, the trade in money should be as unrestricted as the trade in goods, and laws limiting the one should be as strictly construed as laws limiting the oth...

XI. Illegality Usury. Part 2: Sec 462 When there are conflicting laws which may be claimed to be applicable to a particular contract, that most favorable to the validity of the contract will, all other things being equal, be pr...

XI. Illegality Usury. Part 3: Sec 464 Ignorance of fact, leading to a mistake in calculation, will not avoid a contract on account of usurious interest nominally charged.8 Mistake in fact will not avoid contract; otherwise a...

XI. Illegality Usury. Part 4: Sec 468 But while the statutes are to be applied to all loans, they are not to be stretched to extend to any transactions but loans.7 They do not cover, therefore, annuities;8 nor guarantees;9 nor ...

XI. Illegality Usury. Part 5: Sec 470 Under statutes avoiding usurious contracts, the question is not whether the usury was really received. It is enough, under the statutes, if the promise was exacted as a condition of the loa...

XI. Illegality Usury. Part 6: Sec 474 The general rule that no contracts with public enemies can be enforced, is applicable to all cases of belligerency; and hence, belligerent insurgents, when their belligerency is recognized ...

XI. Illegality Usury. Part 7: Sec 477 Insurances either of the ships of public enemies, or of goods which are the subjects of contraband trade, are illegal, as tending to encourage the enemy's trade.1 Sec 478 Even supposi...

XI. Illegality Usury. Part 8: Sec 480 A contract to run a foreign blockade is not illegal, and, when limited to matters of trade, will be enforced in the courts of a neutral state.6 ...

XIII. Illegality Compounding Offences: Sec 483 Not only is it an indictable offence to compound a felony,7 but all contracts to abate or compromise criminal offences of any class are held void as against the policy of the law. It is to...

XIII. Illegality Compounding Offences. Part 2: Sec 484 It used to be said that there was a distinction in this respect between felonies and misdemeanors. But this can be no longer regarded as the law. (1) In many jurisdictions the distinction b...

XIII. Illegality Compounding Offences. Part 3: Sec 486 There are many unlawful acts which may be proceeded against both criminally and civilly. Thus, an assault and battery may be sued for as a trespass on the person, entitling to damages, or a...

XIII. Illegality Compounding Offences. Part 4: Sec 488 It should further be observed, that in states where imprisonment for debt is abolished, it is not proper to permit indirectly, by means of a criminal prosecution, compulsory collection of d...

Chapter XVI. Consideration: Consideration is what is done in return for a promise, sec 493. Promise without consideration not binding, sec 494. Exception as to sealed documents, sec 495. Executed gift cannot be recalled...

Consideration. Part 2: Sec 493 Consideration, by our common law, is that which one party to a contract gives or does or promises in exchange for what is given or done or promised by the other party. A consideration, ther...

Consideration. Part 3: Sec 494 The distinctive rule of our law, therefore, is that unless with respect to negotiable paper, which is good though without consideration in the hands of popular usage. Hence, when the rule p...

Consideration. Part 3. Continued: Mr. Holmes, in his thoughtful chapter on the history of contracts, The Common Law, by 0. W. Holmes, Jr., Boston, 1881, maintains (p. 251) that debt was simply the general form in which any money c...

Consideration. Part 4: Sec 495 An exception at common law is recognized in cases of documents under seal. The solemnity of such an obligation is a guarantee, so it is argued, that it is deliberately made, and to deny it ...

Consideration. Part 5: Sec 496 When a gratuitous promise has been finally executed by a gift, then the party making the gift (though it is otherwise as to his creditors, supposing the transaction to be fraudulent) canno...

Consideration. Part 6: Sec 498 When a legal obligation already exists, a cumulative promise to perform it, unless upon a new consideration, is a nullity. Such promise adds nothing to and takes nothing from the original o...

Consideration. Part 7: Sec 500 A promise by A. to do what he is already bound to do to B. is not a sufficient consideration to support a promise by B. to do something in return to A.; in other words, a promise cannot be ...

Consideration. Part 8: Sec 503 When a seaman is bound by his contract of service to serve for a particular voyage, a promise to increase his wages, unless there is increased duty or hazard, does not bind the promisor.2 I...

Consideration. Part 9: Sec 505 It is frequently stated that detriment to the promisee is as good a consideration as is benefit to the promisor, and that either benefit to the promisor or detriment to the promisee will be...

Consideration. Part 9. Continued: 1 Infra, sec 514. 2 Per cur., Morley v. Boothby, 3 Bing. 113, cited Leake, 2d ed. 611; Brooks v. Ball, 18 Johns. 357. 3 Mather v. Maidstone, 18 C. B. 273; Forster v. Fuller, 6 Mass. 58; Stebbins...

Consideration. Part 10: Sec 507 We have just seen that the party from whom the consideration proceeds must be the party to sue for the equivalent of such consideration, though when the contract is made by an agent, he ma...

Consideration. Part 11: Sec 508 We have already considered numerous cases in which agreements have been held inoperative as illegal or against the policy of the law.2 Wherever a promise is of this type, it is not a valid ...

Consideration. Part 12: Sec 512 Gratitude for past benefits will not support a promise to repay the benefactor, unless the benefit was in some way conditioned on the promise. We have, it is true, the high authority of Lor...

Consideration. Part 13: Sec 513 An apparent exception to the rule that a moral obligation is not a sufficient consideration to support a promise is to be found in the rule still recognized that the fact that a debt once b...

Consideration. Part 14: Sec 514 An executed act (i.e., an act already performed) cannot constitute a valid consideration unless a request to perform such act be proved. That a benefit has been conferred on me, for instanc...

Consideration. Part 15: Sec 515 It may be, however, that a consideration is only part performed, as where one party agrees to do another a continuous service, and while this service has been begun but has not yet been com...

Consideration. Part 16: Sec 517 Whether a party has made a good or bad bargain, supposing he was capax negotii, and there was no fraud, is not a question for the adjudicating tribunal to determine. Every person competent...

Consideration. Part 17: Sec 519 It is also to be observed that while courts will not undertake to determine prices, a consideration that is necessarily and absolutely valueless will be regarded as insufficient.3 Hence a c...

Consideration. Part 18: Sec 521 But where an unliquidated debt is liquidated, and a new promise is made to pay the sum thus assessed, a release of the unliquidated claim is a sufficient consideration to sustain the new pr...

Consideration. Part 19: Sec 524 A promise for which no consideration has been given may be revoked before acceptance;1 but this contingency does not prevent a promise to sell certain goods, if ordered, from being a good c...

Consideration. Part 20: Sec 526 At common law, while the assignment of a debt does not authorize the assignee to sue in his own name,4 it conveys to him the control over the debt, and entitles him to use the assignee's na...

Consideration. Part 21: Sec 528 A voluntary subscription to a charity, or other object of general interest, when the consideration is the faithful discharge of duty by the party to whom the subscription is made, binds the...

Consideration. Part 21. Part 2: In University v. Livingston, Sup. Ct. of Iowa, 1881 (13 Rep. 584), the suit was to recover the amount of a subscription to the University of Des Moines in the following terms: ' For and in considera...

Consideration. Part 21. Part 3: In those states, also, in which it is held that a third party cannot sue B. and C. on a contract made between them for the subscription, and thus mutual and independent promises are made, which consti...

Consideration. Part 22: Sec 529 As we have already seen, subscribers to business corporations will be relieved from liability on subscriptions obtained from them by fraud.4 The same principle applies to subscriptions to c...

Consideration. Part 23: Sec 533 As has been incidentally noticed, a promise to compromise a claim utterly unfounded will not be regarded as a valid consideration, (1) because such a claim is obviously and transparently va...

Consideration. Part 24: Sec 534 It may be that a document which A. surrenders to B. may be worthless; but if there be no fraud, the mere fact that it would sustain prima facie a suit by which A. could be benefited makes t...

Consideration. Part 25: Sec 536 The assumption by A. of an indebtedness on condition of B. doing a particular thing, is a consideration to support B.'s promise to do that thing.5 Hence a promise by A. to buy certain prope...

Consideration. Part 26: Sec 538 When a gift though gratuitous has been fairly made, after full deliberation, a court of equity will not interfere to revoke it, unless it was intended by the donor to be revocable;4 and a d...

Chapter XVII. Conditions. I. Definition And Analysis: A condition is a limitation on an uncertainty, sec 545. Limitation must be as to uncertainty, sec 546. Contract conditioned on impossibility is void, sec 547. While condition is still undeter...

III. Conditions Precedent: 1. Truthfulness of description. Representations and warranties to be distinguished from conditions, sec 559. Description may be a condition precedent, sec 560. But this may be waived and suit br...

IV. Performance Of Condition Precedent: Performance depends on terms, sec 601. Fiction of fulfilment of condition when party releases, sec 602. And so when such party prevents fulfilment, sec 603. And so when performance is waived, sec ...

V. Conditions Subsequent: Conditions subsequent divest title, but not in favor of strangers, sec 608. Burden is on party setting up devolu tion of property by conditions subsequent, sec 609. Contract may give right to re...

I. - Conditions Definition And Analysis: Sec 545 A condition is a limitation making a contract arbitrarily dependent on an event at the time uncertain.1 Hence there can be no condition, in the proper sense of the term, when the limitation...

I. - Conditions Definition And Analysis. Part 2: Sec 548 While the condition is still undetermined, the promise, so far as concerns any legal efficiency, is suspended. Ante condicionem non recte agi, cum nihil interim debeatur.3 But the promise...

I. - Conditions Definition And Analysis. Part 3: Sec 550 A condition being a limitation upon a contingency, there are two ways in which it may operate; first, when the contract does not go into effect until the contingency, which is called a susp...

II. Conditions. Construction: Sec 553 If there appear on the whole contract an intention that either party is to have redress in damages for the default of the other, irrespective of the question of his own default, then mere f...

Conditions. Construction. Continued: The written memorandum, said Harlan, J., between that company (the Oregon) and the California Steam Navigation Company, in words aptly chosen, shows, as we have seen, an express covenant and agreem...

II. Conditions. Construction. Continued: Sec 556 It may happen that whether a particular allegation is a representation or a condition may depend on extraneous facts. If a vessel were described in a charter party as a French vessel, the ...

Conditions Precedent: 1. Truthfulness of description. . Sec 559 We have already seen that a representation is to be distinguished from a warranty in this, that while a warranty forms a basis for a suit no matter to w...

Conditions Precedent. Part 2: Sec 560 Throwing out of consideration misrepresentations which do not amount to misdescriptions, we have now, in the present relation, to recur to the important distinction between descriptions amo...

Conditions Precedent. Part 3: Sec 561 Yet there is a strong line of cases in this country which hold that a purchaser, to whom an article has been sold has paid for it, to recover the price as money had and received to his use,...

Conditions Precedent. Part 4: Sec 563 A vendor may bind himself absolutely to deliver goods on arrival of a particular ship by a contract to that effect. Whether delivery is conditioned on the goods being on the ship, is to b...

Conditions Precedent. Part 5: Sec 565 On a sale by sample it is a condition precedent to the perfecting the sale that the purchaser should have an opportunity of comparing the bulk with the sample.2 Should the vendor refuse to ...

Conditions Precedent. Part 6: Sec 570 A party offering to act as guarantor must have reasonably prompt notice that his offer was accepted in order to bind him;2 and such notice can be inferred from all the circumstances of the ...

Conditions Precedent. Part 7: 1 M'lver v. Richardson, 1 M. & S. 557; Tuckerman v. French, 7 Greenl. 115; Mussey v. Rayner, 22 Pick. 223; Allen v. Pike, 3 Cush. 238; Fellows v. Prentiss, 3 Denio, 512; Emerson v. Graff, 29 Penn. St....

Conditions Precedent. Part 8: 1 Louisville Co. v. Welsh, 10 How. U. S. 461; Wildes v. Savage, 1 Story, 22; Globe Bank v. Small, 25 Me. 366; Talbot v. Gay, 18 Pick. 534; Allen v. Rightmore, 20 Johns. 366; Douglass v. Howland, 24 We...

Conditions Precedent. Part 9: In all of these cases the agents were guilty of criminal misconduct or of positive dishonesty. In the last case it was expressly held that the agent may be trusted so long as the circumstances indica...

Conditions Precedent. Part 10: Sec 572 It may be a question whether a condition is properly notified to the party whom it is sought to charge with it. This (as where conditions are set up by common carriers, and by vendors of go...

Conditions Precedent. Part 11: Sec 574 A lessor's covenant to repair is ordinarily conditioned on notice being given to him of the defects requiring repairing. It may be that certain repairs, from the nature of the building, hav...

Conditions Precedent. Part 12: Sec 576 It may be that there are transactions between a bailor and bailee which, from the nature of things, must remain open until a demand is made by the bailor on the bailee. In such case the dem...

Conditions Precedent. Part 13: Sec 579 It may be, that by conditions of sale, express or implied, the delivery of the goods is to precede the payment of the price. If so, delivery is a condition precedent to the purchaser's liab...

Conditions Precedent. Part 14: Were it not, said Baggallay, L. J., for the authority of Simpson v. Crippin, ubi supra, which has been much pressed upon us, I should have felt no doubt as to the propriety of holding that the refu...

Conditions Precedent. Part 15: Gross, J., criticizes the tendency of the old cases to construe the covenants to be independent as 'contrary to the real sense of the parties and the true justice of the case.' See also the remarks of...

Conditions Precedent. Part 16: Sec 581 In executory agreements for the sale of goods, the vendor's obligation to deliver and purchaser's obligation to pay, are ordinarily concurrent,6 and each constitutes a condition precedent, ...

Conditions Precedent. Part 17: Sec 582 Where the time fixed for payment is to happen or may happen before the time fixed for performance, an action may be brought for the money (or other consideration) before the performance.3 s...

Conditions Precedent. Part 18: Sec 587 A promise, also, may be conditioned on the exercise of prudence and diligence on the part of the promisee. Illustrations of this are to be found in contracts of service which are conditione...

Conditions Precedent. Part 19: Sec 590 Contracts of sale or return differ from contracts of sale on trial in this, that the 6ale on trial calls for some sort of trial of the goods, and becomes absolute on expression of appro...

Conditions Precedent. Part 20: Sec 593 A third party may be made the arbiter of the compliance with a condition.5 Thus, an agreement to loan money on mortgage, provided the property to be mortgaged receives a certain valuation, ...

Conditions Precedent. Part 21: 2 Smith v. Peters, L. R. 20 Eq. 511. 3 Leake, 2d ed. 640; Thurnell v. Balbirnie, 2 M. & W. 786; Clarke v. Westrope, 18 C. B. 765. See Fuller v. Bean, 34 N. H. 304; Borden v. Borden, 5 Mass. 67. ...

Conditions Precedent. Part 22: Sec 595 A subscription to a charity or other public undertaking may be conditioned on a certain amount being elsewhere subscribed; and if the condition be not complied with, the subscription is voi...

Conditions Precedent. Part 23: Sec 600 A carrier or other bailee may excuse himself from special liability on the occurrence of any event which would otherwise not affect his liability. He may say, for instance,I am bound to de...

Conditions. Performance: Sec 601 An affirmative condition is regarded as performed when the thing contemplated by the party imposing it as such occurs in the way that party prescribes. A negative condition is to be regarde...

Conditions. Performance. Part 2: Sec 604 A promisee cannot insist on the non-performance of a condition precedent when that non-performance is imputable to himself.7 Thus, in the familiar case of a sale of goods to be paid for on ...

Conditions. Performance. Part 3: Sec 606 A party who disables himself from performing a contract cannot set up in defence to a suit on it a technical default by the other party subsequent to the occurrence of the disability.4 Thus...

Conditions. Performance. Part 4: Sec 607 When there is a substantial performance of a condition precedent, the agreement, if the condition is divisible, will be enforced pro tanto.2 Thus, where a ship-owner contracted to load a fu...

Conditions Subsequent: Sec 608 A condition subsequent is a limitation of title so that it will be divested on the happening of a future contingent event. The term title is used in a general sense, and includes title to l...

Conditions Subsequent. Part 2: Sec 609 When property is vested in A. subject to a condition subsequent that on the happening of a certain contingency it is to revert to B., the burden is on B. to show that the property has thus...

Conditions Subsequent. Part 3: Sec 614 Deeds of separation between husband and wife remain in force only while the parties live apart, and cease to be operative when they resume cohabitation;4 though, when the deed by its own te...

Conditions Subsequent. Part 4: Sec 616 The happening of a condition subsequent (auflosende Bedingung) causes the title at once to revert to the party to whom it is limited. The reversioner has a right, on the condition occurring...

Conditions Subsequent. Part 5: Sec 617 Under a conditional sale, a title passes which, though defeasible, is attachable by the vendee's creditors. Thus in an action for trover in Massachusetts, in 1881, for the conversion of a m...

Chapter XVIII. Alternative Promises: Alternative promises may be at election of either party, sec 619. Unless otherwise provided, election is with promisor when mode of performance is alternative, sec 620. When election is with pro...

Alternative Promises. Continued: Sec 623 We have already seen that when an election is to be exercised as to rescission or ratification, such election is final.7 The same rule applies when an election is open between alternative c...

Chapter XIX. Interpretation And Construction. I. Interpretation: Distinction between construction and interpretation, sec 627. Classification of interpretation, sec 628. Genuineness of text to be first established, sec 629. Terms of art and business to be ...

II. Construction: Construction determined by laws of logic, sec 641. Unsealed contracts differ only in degree from unwritten, sec 642. Final written contract absorbs preliminary negotiations, sec 643. Writing may...

Interpretation: Sec 627 Between interpretation and construction several important points of difference are to be noted. In the first place, the office of interpretation is to determine the meaning of words: that o...

Interpretation. Part 2: Sec 629 The first office of interpretation is to determine the genuineness of the text.1 To establish or disprove this experts may be called;2 and ancient history may be appealed to to establish or...

Interpretation. Part 3: Sec 632 The last qualification cannot be overlooked without prejudicing the first. Parties familiar with business are apt to use terms in the sense in which these terms have been construed by the l...

Interpretation. Part 4: Sec 635 We have no right, in construing an ancient document, containing words whose meaning time has changed, to give such words a meaning which, though correct now, would not have been correct at...

Interpretation. Part 5: Sec 637 When a contract is drawn at the common domicil of both parties, the law prevailing in such domicil is to determine the interpretation of the contract.2 When, however, a contract is entered ...

Interpretation. Part 6: Sec 639 In construing informal memoranda much greater latitude is allowed in the admission of parol proof for the purpose of explanation, and extrinsic facts of all kinds may be put in evidence for...

Construction: Sec 641 We have already observed that, while the work of interpretation is mainly devoted to the meaning of words, appealing therefore to the critical faculties, that of construction is mainly dev...

Construction. Part 2: Sec 643 But when the question arises as to the mode of proving a contract, it is an established rule of evidence that all preliminary negotiations are to be regarded as merged in the writing which ...

Construction. Part 3: Sec 646 But unless it contain an actual proposal and acceptance of one and the same thing, a provisional agreement has no binding force. If the terms are settled and only the form is reserved, then...

Construction. Part 4: Sec 648 When a writing is lost, and parol proof is given of its contents, the province of determining the meaning of these contents remains with the court to the same effect as if the written docum...

Construction. Part 5: Sec 653 The practice of parties to a contract, also, may give the basis on which its construction may rest. Tell me, says Lord Chancellor Sugden, what you have done under a deed, and I will tell...

Construction. Part 6: Sec 655 Hence, when a contract has a primary meaning, which is ineffectual, from want of some technical requisite, and a secondary meaning, virtually to the same effect, which has no technical obst...

Construction. Part 7: Sec 658 When, however, the words of a contract have a clear and consistent meaning, and when no mistake or fraud is set up, the intention of the parties cannot be proved for the purpose of overridi...

Construction. Part 8: Sec 660 As is elsewhere more fully shown,6 it may be proved by parol that the parties to a contract have agreed to collaterally extend it in a mode not inconsistent with its written terms, and that...

Construction. Part 9: Sec 662 A contract is to be interpreted as a whole, and a meaning involving the consideration of all its stipulations is to be ascertained.1 It is a true rule of construction that the sense and me...

Construction. Part 10: Sec 663 An agreement may be collected from the entire document in which it is contained, and requires, unless prescribed by statute, no special technical terms to give it effect.4 Thus a covenant t...

Construction. Part 11: Sec 666 It is a rule of construction that when there is a general conveyance of a right, with an exception, the right is to be strictly construed. A grant might be made nugatory by a liberal constr...

Construction. Part 12: Sec 668 When an object is adequately described, the contract will not be vitiated by the introduction of minor descriptive details which may be erroneous. Falsa demonstratio non nocet.3 The mere ac...

Construction. Part 12. Continued: 1 Beeson V. Patterson, 36 Penn. St. 24. Where a stipulation is capable of two meanings equally consistent with the language employed, that shall be taken which is most against the stipulator, and ...

Construction. Part 13: Sec 671 We have already seen that in construing a document the construction most in accordance with good faith will be In the Roman law, on the question as to who is responsible in this sense for t...

Construction. Part 14: Sec 674 When there is a general conveyance of a right, this implies a conveyance of all the powers incidental to the exercise of such right.3 It is otherwise when after general terms of conveyance ...

Chapter XX. Deeds And Sealed Contracts: Delivery and acceptance essential to validity of deed, sec 677. Deed takes effect from delivery, sec 678. Escrow is a deed delivered on condition, sec 679. Sealing is a solema mode of assent,...

Deeds And Sealed Contracts. Part 2: Sec 678 The dates set out in a deed, though presumed 'prima facie to be true, may be contradicted and varied by parol.2 The deed takes effect from the time of its delivery, and not from its date.3 ...

Deeds And Sealed Contracts. Part 3: Sec 679 A deed delivered with the understanding that it is not to be effective until a condition is performed is called an escrow.4 Such delivery must be to a third party as custodian of the deed; ...

Deeds And Sealed Contracts. Part 4: Sec 680 Sealing is a solemn mode of assent adopted at a time when there were many who had property to convey who could not write their names.7 Sealing has been held to be sufficiently performed if ...

Deeds And Sealed Contracts. Part 5: Sec 682 By an arbitrary rule of the common law, a seal, as we have already seen,1 imports consideration, and in a suit on a sealed instrument a consideration need not be proved. The reason sometime...

Deeds And Sealed Contracts. Part 6: Sec 683 A party claiming under a sealed covenant is bound by the general character of the consideration stated in the document. He cannot, for instance, if money be averred, prove natural love and ...

Deeds And Sealed Contracts. Part 7: Sec 685 The distinction between sealed and unsealed documents, so far as concerns the statute of limitations, is still, in England and in most of our states, preserved. To a simple obligation the s...

Deeds And Sealed Contracts. Part 8: Sec 688 An acceptance of a contract under seal is inferred from the contract coming into the hands of the party benefited. In order to sue, therefore, on the con- Party exe-cuting deed is bound, tr...

Deeds And Sealed Contracts. Part 9: Sec 689 In the common money bond, the obligor binds himself in double the amount of the debt to pay the debt at a particular day, the condition being that in case of such payment the cautionary amo...

Chapter XXI. Lost And Altered Contracts: Lost contracts may be enforced on parol proof, sec 694. Material alteration in favor of custodian of paper precludes him from benefiting by it, sec 695. Alterations are material when tending to ...

Lost And Altered Contracts. Part 2: Sec 696 Whether an alteration is so material as to avoid a contract under the rule above given, depends upon the bearing of the alteration on the interests of the party who makes or permits the alt...

Lost And Altered Contracts. Part 3: Sec 697 When there are several parties to a contract, by some of whom it has been already signed, alterations as to the obligations of parties who have not yet signed may be made prior to their sig...

Lost And Altered Contracts. Part 4: Sec 698 When a document contains interlineations and alterations, on their face trivial or tending merely to clear an obvious obscurity, the burden of proving bad faith is on the party setting up b...

Lost And Altered Contracts. Part 5: Sec 699 The party to whose disparagement the alteration is made may sue on the contract, supposing its meaning can be ascertained and proved, to the same effect as if it had been lost or destroyed....

Lost And Altered Contracts. Part 6: Sec 701 Policies of insurance have been held to be avoided by alterations, in the hands of the insured, changing the port of destination,3 or the time of sailing,4 or the description of the thing i...

Lost And Altered Contracts. Part 7: Sec 705 Whether an alteration by consent is simply a correcting of the original contract, being absorbed in it, or starts a new contract, may be a question of some moment, not merely in reference t...

Chapter XXII. Implied Contracts For Sale And Service: Proposal and acceptance may be inferred from the facts of the case, but not to contradict written contracts, sec 707. From employment of labor, sale of goods, and bailment, sec 708. And from cou...

Implied Contracts For Sale And Service. Part 2: Sec 708 When a defendant has actually received the consideration of an agreement by a voluntary performance of an act by the other party, upon his proposition and suggestion, such performance cons...

Implied Contracts For Sale And Service. Part 3: Sec 709 When there is an established course of business between two parties, then services rendered by one to the other may be regarded as made subject to the general engagement previously institut...

Implied Contracts For Sale And Service. Part 4: Sec 711 If a contract of sale is inoperative under the statute of frauds, but the consideration has been received, the party receiving can be sued on a quantum meruit. The vendee has received the g...

Implied Contracts For Sale And Service. Part 5: Sec 713 It is within the power of the parties to make payment of an employee contingent on completion of work; and if so there can be no claim for payment until the work is complete, although he ma...

Implied Contracts For Sale And Service. Part 6: Sec 715 A contract of common carriage is dependent upon the delivery of the goods at a designated place; and if by casus such delivery is prevented, the carrier cannot recover pro tanto for freight...

Implied Contracts For Sale And Service. Part 7: Sec 717 If, however, when his wages are still running, an employee abandon his post, he exposes himself to a suit by his employer for damages if such are incurred by his abandonment. If any portion...

Implied Contracts For Sale And Service. Part 8: Sec 718 In England an engagement for domestic service is inferred, unless local or special custom be to the contrary, to be for a year, with a right of determination on a month's warning, or by pay...

Implied Contracts For Sale And Service. Part 9: Sec 720 When a stated salary is given, an officer is obliged, as a rule, to give his whole time, and cannot sue for extra compensation on a quantum meruit} Thus, when a salaried officer of a corpor...

Chapter XXIII. Money Had And Received: General rule that suit for money had and received may be maintained where one person receives money for another, sec 722. Money must have been received to plaintiff's use, sec 723. ...

I. Money Received By One Person Foe Another: Agent liable to principal subject to terms of agency, sec 724. Even though object be illegal, sec 725. So of trustee who admits balance, sec 726. Executor not liable to distributees unless on...

II. Money Wrongfully Obtained: Money wrongfully obtained may be sued for as money received to plaintiff's use, sec 730. A. may recover proceeds of his property wrongfully sold by B., sec 731. When A.'s money in B.'s hands is ...

III. Money Paid Without Consideration: Money paid on an inoperative contract may be recovered back, sec 742. Deposit on real estate may be recovered back on failure to make title, sec 743. Money paid for worthless securities may be r...

IV. Money Paid In Mistake: Money paid in mistake of fact may be recovered back, sec 752. Mere negligence does not preclude party from recovering, sec 753. Money paid in mistake of law cannot be recovered back, sec 754. When ...

I. Money Received By One Person For Another: Sec 724 Where an agent receives money from his principal for specific objects, and the principal revokes the directions before the money is appropriated, the agent is liable to the principal in an ...

I. Money Received By One Person For Another. Part 2: Sec 726 A trustee, so far as concerns funds flowing into his hands in his fiduciary capacity, is not liable in this form of action to the cestui que trust, until account stated, or until a sum is s...

I. Money Received By One Person For Another. Part 3: Sec 728 Where A. receives money from B. to be paid to C. (as where B. deposits money with A. to C.'s credit), A. is not, as a rule, liable to C. in an action for money had and received, unless ther...

I. Money Received By One Person For Another. Part 4: Sec 729 When money is deposited with a stakeholder, he is not liable in an action for money had and received until the contingency happens upon which the money is payable, unless such contingency b...

II. Money Wrongfully Ortained: Sec 730 A party who has been wrongfully dispossessed of his money or goods by another may either sue in tort, claiming damages for the injury sustained by him, or, electing to repudiate the sale, h...

II. Money Wrongfully Ortained. Part 2: Sec 731 If A.'s property is wrongfully sold by B., A., waiving the tort, may sue for the proceeds in B.'s hands, as money received to A.'s use; and this applies to a sale of real property,6 as well...

II. Money Wrongfully Ortained. Part 3: Sec 734 We have already seen that no title to goods passes when only a bare charge is given to the transferree, and that no title passes by goods obtained by false personation.6 It may be added tha...

II. Money Wrongfully Ortained. Part 4: Sec 736 When goods have been unlawfully obtained by B. and sold, A. may elect to waive the tort and to sue B. for the price as for money had and received.8 And a party bona fide purchasing lost or...

II. Money Wrongfully Ortained. Part 5: Sec 738 As has been already noticed,6 a common carrier is regarded as so far a public officer that excessive payments extorted by him can be recovered back in an action for money had and received;7...

II. Money Wrongfully Ortained. Part 6: Sec 739 Where A.'s goods are wrongfully seized under an execution against B., A. can recover the proceeds of the sale from the sheriff or other officer levying the execution.4 A bankrupt assignee, ...

II. Money Wrongfully Ortained. Part 7: Sec 741 As we have already seen, money which has been paid for an illegal purpose cannot be recovered back when the purpose has been put in operation.8 It is otherwise as to money paid on an execut...

Money Paid "Without Consideration": Sec 742 When there has been a total failure of consideration, or where a contract has been abandoned on both sides, or has been rescinded, an action lies for money had and received to recover back ...

Money Paid "Without Consideration". Part 2: Sec 743 Whether a deposit paid on a contract for the purchase of real estate can be recovered back on the purchase falling through, depends upon the terms of the contract.7 Where the purchaser refu...

Money Paid "Without Consideration". Part 3: Sec 745 When the consideration has been in part received, but its complete reception is made impossible by casus, the price paid cannot be recovered back.7 Thus, where engines were to be constructe...

Money Paid "Without Consideration". Part 4: Sec 747 When the failure of consideration is imputable to the plaintiff's own conduct, he cannot recover the money paid.3 Thus, when through the plaintiff's neglect to register a conveyance the tit...

Money Paid "Without Consideration". Part 5: Sec 749 A party who buys a speculative interest in property cannot, if the speculation disappoints him, recover back what he paid.7 This has been held to be the rule with regard to speculative purc...

Money Paid "Without Consideration". Part 6: Sec 751 A mistake, not going to legal liability, is no ground for recovering back money whose payment it induces. I may pay from mistaken notions of kindness, or from mistaken notions of policy, bu...

Money Paid "Without Consideration". Part 7: Sec 513 That the money paid under a claim of right, though not the subject of suit, cannot be recovered back, see Kennedy V. Hughey, 3 Watts, 265; Keener V. Bank, 2 Barr, 237; Natcher V. Natcher, 4...

Money Paid In Mistake: Sec 752 We have already seen that money paid under mistake of fact may be recovered back.1 Where money, said Lord Mansfield, is paid under a mistake, which there was no ground to claim in consci...

Money Paid In Mistake. Continued: Sec 754 Money paid voluntarily cannot be recovered back when the mistake is purely one of law. It is on this ground that the court placed an early ruling that though an insurance was actually void ...

Chapter XXIV. Money Paid To Another's Use: Voluntary payment to another's use cannot be recovered back, but otherwise as to payment at request, sec 756. Request may be inferred from circumstances, sec 757. Money must have been actually p...

Money Paid To Another's Use. Part 2: Sec 757 While, however, the principle is settled that the mere payment of money by A. on behalf of B., unless requested by B., does not give A. a claim against B., yet it is not necessary, in order...

Money Paid To Another's Use. Part 3: Sec 760 A party whose goods are attached in another's hands, or which, when in such other person's hands, are subjected to a lien for a debt of such other person, and who pays the debt of such othe...

Money Paid To Another's Use. Part 4: Sec 763 Where one party pays money for another through his own negligence, he cannot recover from the party on whose behalf it is paid.4 Hence, as we have just seen, a party who negligently leaves ...

Money Paid To Another's Use. Part 4. Continued: 3 Craythorne V. Swinborne, 14 Ves. 160; Peaslee V. Breed, 10 N. H. 489; Boardman V. Paige, 11 N. H. 431. 4 Pars. II. 36; McDonald V. Magru-der, 3 Pet. 470; Decreet V. Burt, 7 Cush. .551; Westen V. ...

Money Paid To Another's Use. Part 5: Sec 766 We have already noticed instances in which the liability of co-sureties and co-guarantors to contribute has been held to be limited by special agreement.2 The right to contribution is subje...

Money Paid To Another's Use. Part 6: Sec 768 A surety who pays his principal's debt is entitled (supposing he has no security covering the debt) to come on his principal; and though this may be sustained on the ground that the princip...

Money Paid To Another's Use. Part 7: Sec 770 An insurer, who is compelled to pay a loss, is, on the same reasoning, entitled to recover from any party primarily liable for the loss against which the insurer insured. The insurer may be...

Chapter XXV. Account Stated: Where debt is admitted, promise to pay is implied, sec 774. An account may be evidence in favor of party stating, sec 775. Account stated proved by parol, sec 776. No defence that indebtedness was ...

Account Stated. Continued: Sec 777 It is no defence to a suit on an account stated that the debt was due only in equity. A trustee, for instance, may make himself liable on an account stated by stating his indebtedness on hi...

Chapter XXVI. Parties. I. Plaintiffs: Only party to contract can sue on it, sec 784. In some states it is held that a third party can sue on a contract for his benefit, sec 785. Such cases explicable on ground of novation or trust or ne...

II. Defendants: Assent of party charged necessary to bind him, sec 809. Only parties to a contract can be sued on it, sec 810. Illustrated in case of agents signing in their own names, sec 810 a. Exceptions ...

III. Joint Plaintiffs And Defendants: 1. Plantiffs. All joint promisees must join, sec 814. Otherwise when they are several,. Sec 815 Question one of construction and parol explanation, sec 816. Plaintiffs cannot sue both jointly...

IV. Assignees: Assignee by modern practice may sue, 1836. Assignment authorizes use of assignor's name, sec 837. Assignability distinguished from negotiability, sec 838. No particular form is necessary, sec...

I. Plaintiffs: Sec 784 We have already seen that privity, or reciprocal recognition, is essential to establish a contractual relation.1 Since a suit on a contract cannot be sustained unless there be a contractual...

I. Plaintiffs. Continued: 128 Mass. 29; Stoddard V. Ham, 129 Mass. 383; Treat V. Stanton, 14 Conn. 445; Colt V. Ives, 31 Conn. 25; Burnett V. Jersey City, 31 N. J. Eq. 341; Owings V. Owings, 1 Har. & G. 484; Ross V. Milne, 12 ...

I. Plaintiffs. Part 2: Sec 785 In this country the preponderance of authority is to the effect that a party may bring suit on a simple contract to vides as follows: sec 74. The benefit of third parties may be the objec...

I. Plaintiffs. Part 3: Sec 786 Many of the cases, however, cited to show that a stranger can maintain an action on a contract, are explicable person to another, from the performance of which a third would derive a benefi...

I. Plaintiffs. Part 4: Sec 786a On the principle of novation, also, may be explained the numerous cases in which the owner of mortgaged property sells it under an agreement with the vendee, by which the latter assumes th...

I. Plaintiffs. Part 5: Sec 788 It is agreed on all sides that on a deed inter partes none but parties can sue. If the deed, in Other words, on its face restricts its parties to A. of the first part and B. of the second ...

I. Plaintiffs. Part 6: Sec 790 It was stated at the beginning of this chapter, that by the English common law, a person cannot bring suit on a contract to which he is not a party. An exception to this rule is recognized ...

I. Plaintiffs. Part 7: Sec 792 Another apparent though not real exception is that of the consignee of goods, who, when beneficially interested, is entitled to sue the carrier. But, in point of fact, the cases in which th...

I. Plaintiffs. Part 8: Sec 794 A supposed exception, also, has been made in suits for money had and received, in which it is not a rule of universal application that it is necessary to show privity in order to maintain ...

I. Plaintiffs. Part 9: Sec 796 Even though a security be not on its face negotiable, a party who sells it for value cannot set up secret equities against a bona fide holder. And a party who entrusts such a document for s...

I. Plaintiffs. Part 10: Sec 797a Another exception is to be found in the case where a contract is made with the intention of injuriously affecting a third party. When this is done, such third party, if injured, may obtai...

I. Plaintiffs. Part 11: Sec 800 A contract implies the consent of two parties,1 but it does not follow that both parties should be known at the time of the proposal to each other. One may be indeterminate at the time the ...

I. Plaintiffs. Part 12: Sec 802 A principal, whose existence as such was not known to the other party at the time of making the contract, can sue on the contract, and this apparently militates against the rule above state...

I. Plaintiffs. Part 13: Sec 805 Since it is necessary to constitute a contract that there should be two parties, an engagement by which a party undertakes with himself to do a particular thing cannot be called a contract....

Defendants: Sec 809 Not only is the asseut to a contract of the party charged necessary to bind him, but this assent must be coincident with the formation of the contract. It is true that a stranger may be lia...

Defendants. Part 2: Sec 810a So far as concerns the respective liabilities of principal and agent on paper executed by the latter, the distinctions are obvious.7 A person who defines himself in a negotiable note or bi...

Defendants. Part 2. Continued: 1 Childs V. Monins, 2 Br. & B. 460; Forster V. Fuller, 6 Mass. 58; Tassey V. Church, 4 W. & S. 346. 2 Hills V. Bannister, 8 Cow. 31. 3 Jones V. Downman, 4 Q. B. 235; Childs V. Monius, 2 Brod. & ...

Defendants. Part 3: Sec 812 We have already seen that if B., in discharge of a contractual duty to A., so conducts himself as negligently or wilfully to injure A., he is liable to A. in damages.1 An action of tort, al...

Joint Plaintiffs And Defendants: 1. Plaintiffs. Sec 814 Where a contract is made for the benefit of two or more joint promisees, all must join in the suit;1 nor will a disclaimer even by deed by one of such joint promisees of a...

Joint Plaintiffs And Defendants. Part 2: Sec 816 The question of the relationship of promisees to each other in this connection is one of construction.7 It has been said, indeed, that when the promisees have separate and unequal interests...

Joint Plaintiffs And Defendants. Part 3: Sec 817 The prevalent opinion at common law is that a contract cannot be so framed as to give the promisees the right to sue on it both jointly and severally.8 The promisees must be held as entitle...

Joint Plaintiffs And Defendants. Part 4: Sec 820 Upon the death of a joint promisee, the survivor alone can sue, and on the death of the survivor the right accrues solely to his personal representatives.1 In equity, however, the survivor ...

Joint Plaintiffs And Defendants. Part 5: Sec 822 An unamended non-joinder of a plaintiff who ought to be joined, if it appears on the pleadings, is fatal on demurrer;2 if it appears on trial, and is not amended, is ground for a nonsuit, o...

Joint Plaintiffs And Defendants. Part 6: Sec 826 The question whether a debt is joint or joint and several depends on the construction of the terms used.1 With respect to the rights of two or more persons joining in a contract as credito...

Joint Plaintiffs And Defendants. Part 7: Sec 830 The liabilities of partners are joint and several, at least in equity, although by the strict rule of the common law the legal remedy exists only against the survivors.2 As the rule is s...

Joint Plaintiffs And Defendants. Part 8: Sec 998 As to release by joint debtor, see supra, sec 831; infra, sec 1031 et seq. 4 Brooks V. Stuart, 9 A. & E. 854; McAllister V. Sprague, 34 Me. 296; Shaw V. Pratt, 22 Pick. 305; Pond V. Will...

Joint Plaintiffs And Defendants. Part 9: Sec 833 The omission of a joint promisor, as a defendant, can at common law be taken advantage of by plea in abatement.5 Should the defendant go to trial on the merits, he cannot defend on the grou...

Joint Plaintiffs And Defendants. Part 10: Sec 835 Supposing there be no agreement limiting their contributions, each joint debtor, who pays more than his share of the indebtedness, may call upon the others to contribute their proportionate...

Assignees: Sec 836 The English common law, on grounds which it is not necessary here to discuss, does not permit the assignee of a contract to sue in his own name, though he is permitted to sue in the name of...

Assignees. Part 2: Sec 837 An assignment of a chose in action in itself implies a right to use the assignor's name. Hence after such an assignment, in states where the assignee cannot sue in his own name, he can sue ...

Assignees. Part 3: Sec 840 In equity, and now at law in England and in those states which have adopted equity practice in common law procedure, it is not necessary, in order to enable the assignee to sue in his own n...

Assignees. Part 4: Sec 841 As has been elsewhere shown,7 the question whether the debtor's assent is sufficient to destroy the right of the original creditor to revoke the deposit. Weston V. Barker, 12 Johns. 281; Ne...

Assignees. Part 5: Sec 843 It is elsewhere shown that three theories have been advanced as to the law to which a debt is subject: 1, that of the lex loci contractus; 2, that of the debtor's domicil; and, 3, that of t...

Assignees. Part 6: Sec 846 It is open, however, to the parties to a contract to provide that in the hands of an assignee no set-off between the parties should be permitted.6 In law the debtor may preclude himself by ...

Assignees. Part 7: Sec 847 A party, also, taking an order for the delivery of goods, takes it free from any equities existing between the original parties to the contract, whenever this was the understanding between ...

Chapter XXVII. Novation: Novation is the substitution of a new in the place of an old contract, sec 852. A new contract is essential to novation, sec 853. Consent of the creditor is essential, sec 854. And so of cons...

Novation. Part 2: Sec 853 Hence, the first essential to novation is the formation of a new contract. No particular form for this purpose is required in the Roman give him that right of action there must have been an...

Novation. Part 3: Sec 854 To constitute novation, according to the Roman law, it is essential that there should be shown to be an intention on the part of the creditor to institute a new contractual relation - animu...

Novation. Part 4: Sec 856 According to the Roman authorities, it is immaterial in what points the new contract differs from the old, provided the intention be to extinguish the old contract and create a new contract...

Novation. Part 5: Sec 857 Whether the new agreement operates as an extinguishment of the old, and hence technically as a novation, is a question to be determined from the entire contract. As will be elsewhere seen, ...

Novation. Part 6: Sec 859 Although, as has been already seen, the position has been disputed by courts in this country of high authority, the better opinion is that no one who is not a party to a contract can sue on...

Novation. Part 7: Sec 863 The mere fact of the continuance of business dealings with a firm after a change in its membership by the creditor of the firm, does not involve a release of the retiring partners. If the c...

Novation. Part 8: Sec 865 Novation, being a new contract, based, it is true, upon the extinguishment of a prior contract, but starting an independent obligation dating from its own inception, is not to be regarded a...

Chapter XXVIII. Mode Of Performance. I. General Rules: Performance must be in accordance with terms of contract, sec 869. By consent mode of performance may be varied, sec 870. [As to conditions, see supra, sec 545 et seg.] [As to part performanc...

I. General Rules: Sec 869 The performance of a contract must be in the mode the contract itself specifies.1 If there is a material failure in this respect, the promisor is liable to the promisee for the breach.2 Thu...

II. Place: Sec 871 When a particular time and place are designated for the performance, the performance must be at that particular time and place.1 If the place alone is designated, the debtor, in undertaking...

II. Place. Part 2: Sec 457; Fant V Miller, 17 Grat. 47; see infra, sec 881, 899. 7 Chapman V. Cottrell, 3 H. & C. 865; Horne V. Rouquette, L. R. 3 Q. B. D. 514; Towne V. Rice, 122 Mass. 67; Vanzant V. Arnold, 31 G...

II. Place. Part 3: Sec 875 In respect to negotiable paper, the limitations of capacity are not ubiquitous;2 formalities are regulated by the lex loci actus;3 the duties of acceptor and maker are determined by the law...

II. Place. Part 4: Sec 878 Where goods are delivered on board of a vessel to be carried, and a bill of lading is taken, the delivery by the vendor is not a delivery to the buyer, but to the captain as bailee for del...

II. Place. Part 5: Sec 879 When the question is one of delivery through a common carrier, the vendor must see that the goods are properly received by the carrier.4 Thus where it was notorious at a port of lading that...

III. Time: Sec 881 A bill or note, not designating any time for payment, is payable on demand, but interest does not begin to run, unless expressly provided by the instrument, until demand is made.8 On the ot...

III. Time. Part 2: Sec 883 When a place is fixed for the performance of a contract, but no specific time is designated, then the promisor must notify the promisee when he proposes to attend at the specified place for...

III. Time. Part 3: Sec 885 When goods are to be delivered within a certain period, the vendor may deliver on the last day of that period, at the latest business hour, though the purchaser will not be obliged to atten...

III. Time. Part 4: Sec 885a A promisor, by absolutely putting it out of his power to fulfil a contract entered into by him, may make himself liable, without demand, from the time he thus incapacitates himself, even t...

III. Time. Part 5: Sec 887 Cases, however, frequently occur in which it is essential to the fair carrying out of a contract that certain stipulations as to. time should be observed.4 Thus, when it is provided that ob...

III. Time. Part 6: Sec 889 The parties may, also, by agreement provide that, unless an article be delivered or labor done by a specific time, there shall be no compensation; and, when the time goes to the substance o...

III. Time. Part 7: Sec 891 Unless, also, punctuality goes to the substance of an engagement, a failure to keep time is waived by an acceptance of the goods or services; and if the promisee has sustained any loss by t...

III. Time. Part 8: Sec 894 The date at which a lease begins is determinable by the context.4 When the term is declared to begin with the making hereof, or from henceforth, without reference to any date given in t...

III. Time. Part 9: Sec 896 In mercantile obligations, month, by the custom of merchants, means calendar month.9 In other contracts, it is held in England, that 'months' denote at law 'lunar months' unless there...

IV. Quantity And Quality: Sec 898 When a specific quantity is stipulated for, the purchaser is entitled to demand this quantity. If less be delivered he may refuse to receive it; or if a partial delivery be made, with a pro...

IV. Quantity And Quality. Part 2: Sec 900 It is otherwise when an aggregate quantity of labor with interest thereon during the time he has been deprived of the use of such part, not exceeding six years. In Flu-reau V. Thornhill, 2 ...

IV. Quantity And Quality. Part 3: Sec 901 When the full performance of the contract is prevented by the interference of the party to whom the work or the goods are to be delivered, he cannot, when the contract is entire, set up imp...

IV. Quantity And Quality. Part 4: Sec 903 When a contract is for delivery of goods, the goods delivered must correspond in quality with the terms of the coutract.5 As has been already seen, when goods are warranted to be of a part...

IV. Quantity And Quality. Part 5: Sec 904 The receiver is not necessarily bound to return goods which do not answer the vendor's description. In cases where there is not absolute incongruity between the thing described and the thin...

IV. Quantity And Quality. Part 6: Sec 906 This is a fortiori the case where the purchaser relies on the skill or judgment of the vendor as an assurance that the thing sold will answer the desired purpose; it being understood that c...

IV. Quantity And Quality. Part 7: Sec 908 Aside from his liability on warranty, express or implied, a vendor may become liable in an action for injuries to parties to whom he negligently exposes articles of a character likely to pr...

IV. Quantity And Quality. Part 8: Sec 914 When there is a sale by sample, goods delivered must correspond with the sample, and if they do not, they may be returned by the purchaser.6 But beyond this the implied warranty on a sale b...

IV. Quantity And Quality. Part 9: Sec 917 It is not necessary, if a large lot is sold, that each item should correspond with the sample. It is enough if there is an average correspondence.3 And, in any view, it is admissible to pro...

Chapter XXIX. Payment. I. Appropriation: Appropriation of payment to be in accordance with debtor's intent, sec 923. Intent to be inferred from circumstances, sec 924. Insolvent distribution must be equal, sec 925. Right is one whic...

V. Payment By Negotiable Paper: Receipt of check prima facie proof of payment, sec 953. Negotiable security may be taken as mere collateral, sec 954. Question one of inference, sec 955. Acceptance of immature negotiable paper on ...

I. Appropriation: Sec 923 Supposing several distinct debts are due from A. to B., and B. transmits to A. funds only sufficient to pay a part of those debts, the question arises as to which of them the money is to be...

I. Appropriation. Part 2: Sec 925 When a creditor holds several claims against an insolvent debtor, and when a specific sum is sent to him on account of these debts, the object being to effect a composition for debts, there...

I. Appropriation. Part 3: Sec 928 A debtor who makes a payment to a creditor to whom he owes several debts, has the right, according to the Roman law, to determine the debt to which the payment is to be appropriated. If he ...

I. Appropriation. Part 4: Sec 930 A creditor, also, under the English system, may appropriate a payment to a claim not recoverable by action, provided there is a sufficient consideration to support the claim.7 Even a debt b...

I. Appropriation. Part 5: Sec 931 When a payment is made, without designation, it will be applied to a debt which is due, in preference to one not yet matured.1 A debt absolutely due will also be paid in preference to a deb...

I. Appropriation. Part 6: Sec 933 According to Sir W. Grant, there is no room [in accounts] for any other appropriation than that which arises from the order in which the receipts and pay ments take place and are carried i...

I. Appropriation. Part 7: Sec 934 Where there is no running account, and no designation by either debtor or creditor, then, according to Judge Story, if there are various debts due to the creditor, the court will make the...

II. Partial Payment: Sec 935 A receipt of part of a debt operates only to discharge the debt pro tanto, and does not, without an agree- Receipt for less sum may extinguish debt, if there be distinctive consideration. ...

II. Partial Payment. Continued: Sec 936 A plaintiff, by electing to take judgment for part of his claim, may absorb the whole claim in the judgment. The plea of res judicata applies, except in special cases, not only to points ...

III. Receipts: Sec 938 A receipt, though written, is open to parol explanation; and the party by whom it was signed may show, as against the other party, that it was made by mistake, or does not exhibit the real ...

IV. Payment By And To Agents, Executors, Trustees, And Joint Debtors: Sec 942 A payment by a third party on behalf of a debtor, though without authority at the time, discharges the debt when afterward adopted by the debtor, but, by the old authorities, not till then....

Payment By And To Agents, Executors, Trustees, Joint Debtors. Part 2: Sec 943 Payment made in the usual course of business, either to a general agent of the principal, or to an agent specially authorized to receive the debt, concludes the principal.1 - The conditions...

Payment By And To Agents, Trustees, Joint Debtors. Part 3: Sec 945 A factor is entitled to receive payment and give receipt for the price of goods sold;l though he is restricted to the reception of currency which is a legal tender;2 nor can he set off his ...

Payment By And To Agents, Trustees, Joint Debtors. Part 4: Sec 947 Executors and administrators are empowered by law to give receipts for purchase-money on sales made by them, and the purchaser is, therefore, not bound to see to the application of the purc...

Payment By And To Agents, Trustees, Joint Debtors. Part 5: Sec 950 When a payment is made bona fide to one of several joint creditors, this bars the debt so far as concerns all.10 If, however, the debtor knew that the creditor had no authority to receive t...

Payment By Negotiable Paper: Sec 953 The reception of a cheque in payment of a debt suspends the remedy on the debt until the cheque has been pre- Joint deposit in bank can only be drawn by joint order, sented and dishonore...

Payment By Negotiable Paper. Part 2: Sec 954 It is competent for the parties to agree that a negotiable security given by the debtor to the creditor should be held by the creditor merely as collateral security.1 It has been held, also...

Payment By Negotiable Paper. Part 3: Sec 955 When goods are, by the agreement of sale, to be paid for by the buyer's note or acceptances, or like forms of credit, the inference is that the payment is only conditional, and that, upon d...

Payment By Negotiable Paper. Part 4: Sec 956 The accepting of negotiable paper as yet immature, suspends a debt on account of which it is given; though in case of its dishonor at maturity, the debt is revived in full force.2 Until the...

Payment By Negotiable Paper. Part 5: Sec 957 A negotiable security may be accepted in discharge of a debt, when such is the understanding of the parties, in which case the dishonor of the security does not revive the debt.1 If the buy...

Payment By Negotiable Paper. Part 6: Sec 958 When a debtor gives on account of his debt negotiable paper on which he is liable as drawer or endorser, the acceptance of this paper is prima facie an answer to a suit for the debt; and th...

VI. Payment In Bank Notes: Sec 961 As is elsewhere noticed, a payment in bank notes is valid when a legal tender.3 When bank notes are not a legal tender, they will nevertheless constitute, if not objected to, payment; thoug...

VII. Payment By Letter: Sec 962 When a creditor designates the post as the way in which payment is to be made to him, and his directions are followed, then the post-office is to be regarded as the agent of the creditor, a...

VIII. Payment In Goods And Set-Off: Sec 963 When it is agreed between debtor and creditor that certain goods are to be taken in satisfaction of a debt, the delivery and acceptance of the goods will be regarded as a payment, either i...

IX. Effect Of Payment: Sec 966 No matter how great may be the damage a creditor may sustain from the non-payment of his debt at maturity, he is not entitled to recover anything beyond principal and interest from his debt...

Chapter XXX. Tender: Distinction between tender of debt and tender of something in compliance with contract, sec 970. Tender is an offer of payment in full of a debt, sec 971. Tender stops interest and costs, sec 972. Ten...

I. Tender Of Monet In Discharge Of Debt: Sec 970 Tender is of two kinds. The first is where a debtor offers to his creditor money sufficient to pay a definite debt. This, as we will see, suspends interest on the debt and precludes damages...

I. Tender Of Monet In Discharge Of Debt. Part 2: Sec 973 In England, though there is authority to the effect that a tender is pleadable to a quantum meruit,o there can be no such plea to a suit for unliquidated damages.2 In this country, under st...

I. Tender Of Monet In Discharge Of Debt. Part 3: Sec 977 The tender, to be operative, must be absolute. The debtor can place on it no conditions other than those incident to the nature of the transaction;6 and thence if made on the condition that...

I. Tender Of Monet In Discharge Of Debt. Part 4: Sec 978 A tender of a sum greater than that due, is not sufficient when the sum is exhibited in large notes or coin, and the creditor is called upon to make change which he refuses to do;2 though i...

I. Tender Of Monet In Discharge Of Debt. Part 5: Sec 980 Whenever by the terms of a contract a debt must be paid on a particular day, it must at common law be tendered on that day; and the tender must be made a sufficient time before midnight to ...

I. Tender Of Monet In Discharge Of Debt. Part 6: Sec 981 The plea of tender must aver not only a past tender, but a continued readiness to perform entirely the contract on which the suit is founded. It must aver that the defendant was always read...

I. Tender Of Monet In Discharge Of Debt. Part 7: Sec 983 To give effect to a tender of money, there must be opportunity given to the creditor to inspect it. It will be sufficient to bring it in bags or other receptacles usual for carrying money, ...

I. Tender Of Monet In Discharge Of Debt. Part 8: Sec 984 Tender must be made in current coin, lawful in place of tender.7 The fact that a note is issued by a party does not make that note currency so far as concerns that party.8 Even to the bank ...

I. Tender Of Monet In Discharge Of Debt. Part 9: Sec 985 The objection to the character of the money must be specific, and may be waived by the creditor. Thus where a creditor, on a payment being tendered to him in bank-notes which are not a lega...

II. Distinctive Rule As To Goods: Sec 987 A tender of goods, to be operative, must be made in such a way as to enable the creditor to see that the articles tendered are what he is really required to take.7 Hence, an offer to delive...

II. Distinctive Rule As To Goods. Part 2: Sec 992 We have already seen that when no place is designated for the performance of a contract, the place of performance is to be inferred from the contract, taking into consideration all the pert...

II. Distinctive Rule As To Goods. Part 3: Sec 995 To a party who declares he will not be bound by a contract, it is not necessary that a tender should be made.3 The general principle is that a party cannot defend himself on the ground of t...

Chapter XXXI. Accord And Satisfaction: Accord and satisfaction is agreement to accept in satisfaction for a debt something received, sec 996. Acceptance of less amount is no satisfaction without release, sec 997. Accord and satisfact...

Accord And Satisfaction. Part 2: Sec 997 An acceptance of an amount less than a debt cannot operate as a discharge of the debt unless there be a sealed release of the residue, or some additional consideration as an equipoise to th...

Accord And Satisfaction. Part 3: Sec 998 Where one of several parties jointly liable makes an accord and satisfaction with the common creditor for the common debt, this discharges the debt as to all the debtors;1 though a partial ...

Accord And Satisfaction. Part 4: Sec 1000 A cash payment for a smaller amount may be an accord and satisfaction for a larger unliquidated claim.1 And an agreement by which a claim for unliquidated damages is suspended until the cr...

Accord And Satisfaction. Part 5: Sec 1002 The fact that a payment of a smaller sum is made in cash will add the increment of consideration which is requisite to sustain an accord and satisfaction.1 Change of place of payment, also...

Accord And Satisfaction. Part 6: Sec 1003 An agreement by which a lesser sum, with additional security, is accepted in discharge of a prior debt, is an accord and satisfaction, and operates when the new security, being accepted as...

Accord And Satisfaction. Part 7: Sec 1004 It has been already stated that the acceptance of a third party as security on a new contract, before breach, constitutes novation, by which the old agreement is merged in the new.6 And in...

Accord And Satisfaction. Part 8: Sec 1007 A creditor who elects to take judgment for the fractional part of a debt, may bar himself from the recovery of the remainder.6 There is in such cases a merger of the debt in the judgment.7...

Chapter XXXII. Set-Off: Set-off a processual right, and governed by lex fori, sec 1009. No set-off at common law, sec 1010. Set-off may be specially stipulated, sec 1011. By statute extended to mutual debts,. Sec 1012...

Set-Off. Part 2: Sec 1011 Agreements for mutual set-offs are common in certain classes of contracts, and this is generally the case with contracts of partnership.1 In contracts of service, also, it is frequently pr...

Set-Off. Part 3: Sec 1014 That a set-oft' does not extinguish the debt, but only affects the remedy, is shown by numerous rulings. Thus a tender, as we have seen, is not good if limited to the defendant's indebtedn...

Set-Off. Part 4: Sec 1018 When a debt barred by the statute of limitations is put in evidence by the defence, the plaintiff, according to the English practice, must specially plead the statute in reply, if the obje...

Set-Off. Part 5: Sec 1021 It is essential, to enable a set-off to be put in evidence, that it should be a debt from the plaintiff to the defendant. The test is mutuality.2 Set-off, in regard to parties, may be cons...

Set-Off. Part 6: Sec 1022 When an executor sues in his representative capacity, a debt due by him personally cannot be set off by the defendant, nor when he sues as an individual can a debt due by him as executor b...

Set-Off. Part 7: Sec 1024 When a surety is sued on his obligation as surety, he is entitled to set off any debt due from the creditor to the principal, by which the debt of the principal to the creditor could be di...

Set-Off. Part 8: Sec 1027 To a suit by A. against B., B. is not permitted to answer that behind A. is C., who is B.'s debtor, unless it should be alleged that the suit is really for the benefit of C.3 If, however, ...

Set-Off. Part 9: Sec 1030 From the nature of the case there can be no set-oft in a proceeding in rem,-5 and a foreclosure suit is a proceeding in rem.6 Tax procedure falls within the same category.7 Hence a debt du...

Chapter XXXIII. Release: A release is a discharge of a claim, sec 1031. At common law must be under seal, or must have consideration, sec 1032. No special words required to constitute,. Sec 1033 Release discharges d...

Release. Part 2: Sec 1033 To constitute a valid release no special form of words is requisite. A covenant not to sue indefinitely or never to sue bars the creditor, though not technically a release;3 and so with ex...

Release. Part 3: Sec 1035 A court of equity, according to the old practice, would restrain a release to its specific object if its general terms were such that it would be inequitable to give them effect; and the s...

Release. Part 4: Sec 1037 The rules for the construction of releases are the same as those for the construction of other contractual documents;2 it being kept in mind that in a release, when a unilateral document, ...

Release. Part 5: Sec 1039 A release may be made dependent upon conditions.1 If the condition be subsequent, the release operates as a suspension, and the debt revives on the happening of the condition. This is the ...

Release. Part 6: Sec 1042 When an agreement provides for immediate action, and no action is taken under it, and when the position and character of the parties are such that it would be very unlikely that the agreem...

Chapter XXXIV. Negligence In Contracting: Non-existence of valid contract does not preclude action for negligence. sec 1043. Liability of party to void contract affirmed in Roman law, sec 1044. Party may recover back expenses on void co...

Negligence In Contracting. Part 2: Sec 1044 The liability of a party who by his negligence leads another into a prejudicial negotiation of this class, graph office the following dispatch, addressed to a Frankfort house: Sell (Verka...

Negligence In Contracting. Part 2. Continued: 1 Gesammelte Aufsatze, von Rudolph von Ihering, Bd. 1, Jena, 1881. On the same principle, according to Bahr, are to be explained the numerous German rulings by which a party is made liable to bona ...

Negligence In Contracting. Part 3: Sec 1045 The party who is thus disappointed by the negligence of another is entitled, in the first place, to recover expenses which he has been put to in order to perfect the transaction which turn...

Negligence In Contracting. Part 4: Sec 1047 That an infant may be made liable for negligence in so using his property as to injure another, cannot be quesant, in order to put some horses there which the plaintiff wished to dispose o...

Negligence In Contracting. Part 5: Sec 1048 The same distinctions may be taken as to other forms of mental incapacity. Unless there be some positive statute in the way, a contract made bona fide with a lunatic, without notice of his...

Negligence In Contracting. Part 6: Sec 1050 In the Roman law, a party who uses wrong words in an obligation he enters into is liable, in case he be relieved from the obligation in consequence of such mistake, for any damages his neg...

Negligence In Contracting. Part 7: Sec 1052 We have seen that a party employing a telegraph company is bound by the message the company delivers.1 The same principle would make the principal liable on an invalid bargain his agent ma...

Negligence In Contracting. Part 7. Continued: And so of parties advertising rewards or making public offers. And so of telegraph companies. 1 Wh. on Neg. sec 756; infra, sec 1056. 2 See supra, sec 707, 756. 3 See supra, sec 24. 4 Op. cit...

Chapter XXXV. Constitutional Limitation As To Impairing: CONTRACTS. Motives of limitation, sec 1061. Invalidates state legislation impairing contracts between individuals, sec 1062. Invalidates repeals by state legislatures of grants of franchises ...

Constitutional Limitation As To Impairing. Part 2: Sec 1064 We have already seen that the question whether engagements restricting trade are to be regarded as contracts depends upon public policy.2 The same distinctions are applicable to grants of ...

Constitutional Limitation As To Impairing. Part 3: Sec 1065 In the constitutions of several states, it is provided that in all charters granted by the state the right of repeal or of amendment is reserved; and a clause to this effect is now include...

Constitutional Limitation As To Impairing. Part 4: Sec 1068 Whether a state law discharging under insolvent procedure binds contracts elsewhere to be performed, or the parties to which are elsewhere domiciled, are questions which are discussed in a...

Constitutional Limitation As To Impairing. Part 5: Sec 1071 Nor do the engagements made by state or municipality with public officers constitute a contract within the purview of the limitation before us. The salaries of such officers may be reduced...

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